“It really was a hard deci sion,” Moyé said, “but it was the best decision for my fam ily, and I’ve still been able to have a very satisfying career. I don’t regret it at all.” Moyé recounts that each of her three children has a litigation story, includ ing having her five-week-old with her during an oral argument before the Fifth Circuit. “There is no good time to have a child. You just have to decide ‘I’m going to have a child’ and everything else is going to have to work around,” Moyé said. Moyé has more good days as a trial lawyer than she can remember—a mark of a career well-served so far. “Putting on Tim Cook [Apple’s CEO] for his trial testimony was pretty momentous.” She recounted that, like anyone, the global CEO was just as human as the next person, but also brilliant. “The counselor role is frequently more important than the trial attorney part,” Moyé said. “It requires complete candor, honesty, and integrity.” Moyé certainly has her fair share of interest ing clients. She represented Tyler Perry at trial of a copyright infringement action, at which she obtained a prevailing jury verdict, and the pair emerged on the courthouse steps where Perry gave his victory statement. “The good thing about doing this is you get a broad range of interesting clients that you really get to know well and develop a personal relationship
Single Sign On Easily login to the App using your DBA website username and password. Groups & Engagement Sections and Committees–we lis tened. You wanted a better way to engage and communicate with each other, and now we have it! The Groups option on the App allows back-andforth communication. You can post reminders about your CLEs and pro grams, discuss hot topics in your area of law, or just connect with other mem bers in your Sections and Committees.
Focus
• You must be a DBA Member to access all of the options and engage ment tools, so be sure to renew now!
The App has a lot to offer, here are some areas to be sure to check out:
Veronica Moyé’s recognition as the Dallas Bar Association’s Trial Lawyer of the Year is indicative of her commitment to both the preparation and candor necessary for effective advocacy on a global scale.Nominated for the award by DBA President Krisi Kastl, Moyé embod ies excellence.“Veronicais exception ally talented and bright, as well as hardworking and ambitious,” Kastl said. “Her dedication to her clients and to the profes sion is admirable, and I am most inspired by her ability to thrive in a male-domi natedMoyéworld.”‘s career is marked by her commit ment to authenticity and preparation in the court room. Moyé is a partner in Gibson Dunn’s Dallas office, a member of the Firm’s Executive Com mittee, and Co-Chair of the Firm’s Global Litiga tion Practice Group. She just finished representing Apple at trial in what some dub “The Superbowl of Antitrust.” Moyé noted the case was special to her because her trial team was incredibly diverse in gender and ethnicity. As Moyé put it, this diversity paired with the subject matter—technology—”felt like the “Thefuture.”teamI was working with for closing argu ment was all women...It’s the beginning of a bright new future other women will have. It’s going to be so much better than the world I came up in,” remarked Moyé. In a new world of trial consultants, the trial team’s diverse composition was not premeditated. “We pulled together the best people and it happened to be that everyone was that diverse.” Moyé’s hope for the future is prophetic in view of her experiences. Moyé grew up in Dallas before attending MIT, and received her law degree from Harvard Law School in 1986. Upon graduation, Moyé received feedback that the Dallas legal mar ket at the time was not “ready” for a black woman lawyer. She then moved to New York to commence her trial practice at a globally renowned law firm. Moyé excelled. She became a nationally recognized antitrust trial lawyer, and her accolades followed.
“I had this mentality of being extremely hardcharging with perfection as the goal,” Moyé said. As life happened, Dallas called Moyé’s name once more. She made one of the most difficult, but rewarding, decisions of her career to move back for the sake of her family—stepping away from her successful practice in New York.“It was hard to step away and start from scratch. When you come in new to the city, and you’re already kind of senior, it’s much harder to start over,” Moyé said, but “It turns out I really needed to be here [in Dal las].”Despite her professional reluctance, Moyé rebuilt her antitrust, class action, and commercial litigation prac tice in Dallas.
Once logged in, you can connect with other members of your Groups, or those in the Member Directory via email through the App. This keeps your email address and personal infor mation secure, while still encouraging engagement and connection. Some Reminders
• Please remember that this is a work in progress. Be kind. If you need assistance, please email jsmith@dallasbar.org. HN | Law
Homepage On the App homepage you will find quick links such as the DBA Calendar of Events, Career Center, Online CLE, Advertising and Spon sorship Opportunities, and a “Renew Membership” button. You must be a member to log in and access other resources such as Groups, Feed, Member Directory, and more. It’s always easy to find the daily CLEs, programs, and events. Just click on the homepage “Calendar of Events” image and it will take you straight to our Online Calendar. Connection and Contacts
• Once you log in using your DBA website username and password, you will receive a code in your email to verify for security purposes. If you stay logged into the App, you will not need to do this step every time. If you log out, it will again ask for verification.
The Dallas Bar Association is proud to announce its new App available to both Apple and Android users. This new Member Benefit offers upto-date content, communication and networking via Groups. You will have your own personal Feed that updates directly with information from the Sections and Com mittees of which you are a part. Download it now!
Family
HEADNOTES Dallas Bar Association HEADNOTES 12 The Trauma-Informed Attorney 18 Divorce and In Vitro Fertilization 28 What’s Required When Children Resist or Refuse Possession 35 Top 5 Concerns for Business Owners During Divorce Inside September 2022 |Volume 47 |Number 9 DBA’s Trial Lawyer of the Year: Veronica Moyé DBA Announces New App BY GRACEN DANIEL STAFF REPORT Veronica Moyé continued on page 34 JOIN NOW & SAVE! Newly joining members that join the DBA during the month of September will save over 30% on dues, which includes up to 16 months of membership for the price of 12 months. Questions? Contact membership@dallasbar.org. This special is available to NEW MEMBERS of the DBA (never joined before) or former DBA members that have not paid dues since 2020. JOIN NOW & SAVE! Join the Dallas Bar Association. All the Best Lawyers Call the DBA home!
Remember to follow the online community guidelines (these are the same ones found in your E-Communities).
• If you feel someone’s post is inap propriate or not following the commu nity guidelines, you can “Flag” it and it will be reviewed by an administrator.
Yes, there is an App for that!
• Remember to be professional in your posts and comments and not dis cuss confidential legal information.
Noon Appellate Law Section “Practice and Procedure at the 5th Court of Appeals,” Justice Erin Nowell, Jeanette Strange, and Cliffie Wesson. (MCLE 1.00)* In person only Living Legends Program “Hon. Irma Carrillo Ramirez, interviewed by Javier Perez. (DEI Ethics 1.00)* Co-hosted by the DBA Allied Bars Equality Committee and Dallas Hispanic Bar Association in honor of National Hispanic Heritage Month. Virtual Only 4:00 p.m. DBA Board of Directors Meeting
as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored
TUESDAY, SEPTEMBER 13
Family Law Section “Owelties and Creative Financing Options with Homestead in the Context of Divorce,” John Snell. (MCLE 1.00)* Bench Bar Conference Committee 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.
Noon Alternative Dispute Resolution Section “Impact of Mental Health on Mediation and Vice Versa: What Mediators Should Know,” Brian Shannon. (MCLE 1.00, Ethics 0.25)* Virtual only Real Property Law Section “What Commercial Landlords Need to Know About Lease Defaults,” David Leonard. (MCLE 1.00)* In person only Tax Law Section “Taxation of Digital Assets,” Andrea Kramer. (MCLE 1.00)* In person only Peer Assistance Committee. In person only
Noon Bankruptcy & Commercial Law Section “State of the Economy and Impact on the Restructuring Industry,” Hannah Birch and Rachael Sparks. (MCLE 1.00)* In person only
Environmental Law Section Topic Not Yet Available
THURSDAY, SEPTEMBER 29 9:00 a.m. Bench Bar Conference at Horseshoe Bay. Register online at dallasbar.org.
DBA offices closed in observance of Labor Day
Programs and meetings are presented Virtually, Hybrid,
Antitrust & Trade Regulation/Health Law Sections “Antitrust Enforcement Trends in the Healthcare Space,” Wendy Arends, Jody Rudman and Mark Tobey. (MCLE 1.00)* In person only Law in the Schools & Community Committee. Virtual only Pro Bono Activities Committee. In person only 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.
THURSDAY, SEPTEMBER 8 9:00 a.m. DVAP’s Jeff Coen Family Law Nuts & Bolts Video Recording of 2021 CLE. To register, email martinm@lanwt.org. (MCLE 6.00, Ethics 1.00)* Virtual only Noon CLE Committee. Virtual only Publications Committee. Virtual only
THURSDAY, SEPTEMBER 22 Noon Criminal Law Section Topic Not Yet Available
WEDNESDAY, SEPTEMBER 28 Noon Collaborative Law Section Topic Not Yet Available Entertainment, Art & Sports Law Section Topic Not Yet Available 8:00 p.m. Bench Bar Conference at Horseshoe Bay. Register online at dallasbar.org.
Intellectual Property Law Section “From Start-Up to Scale-Up to IPO—Patent Prosecution and Portfolio Management for Growth-Oriented High-Tech Companies,” Michael K. Henry, Ph.D. (MCLE 1.00)* Minority Participation Committee. Virtual only
MONDAY, SEPTEMBER 19 Noon Labor & Employment Law Section “Pretext Update,” Amanda Hernandez. (MCLE 1.00)* Virtual only Solo & Small Firm Section “An Arbitrator’s View of the Arbitration Process,” William Frank Carroll. (MCLE Senior1.00)* Lawyers Committee. In person only
Day of Civility: Professionalism Through Mentoring Tuesday, September 20, 2022 | 12:00 - 1:00 pm Arts District Mansion | MCLE: 1.00 Ethics RSVP at DallasBar.org Moderated by H Hon Douglas S. Lang, Thompson Coburn LLP Sponsored by the DBA Morris Harrell Professionalism Committee Jay Madrid Dorsey & Whitney, LLP Julia Simon Mary Kay Inc. Hon. Karen Gren Scholer U.S. District Court Northern District
*For confirmation of State Bar of
MONDAY, SEPTEMBER 5
WEDNESDAY, SEPTEMBER 7 Noon Employee Benefits & Executive Compensation Law Section Topic Not Yet Available Allied Bars Equality Committee. In person only Public Forum Committee. In person only 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.
Immigration Law Section “Crash Course – Overview of EmploymentBased Immigration,” Lisa Sotelo. (MCLE 1.00, Ethics 0.25)* In person only Mergers & Acquisitions Section “SRS Acquiom 2022 Private Target M&A Deal Terms Highlights and Other Insights,” Eric Martin. (MCLE 1.00)* Virtual only Courthouse/Library Committee. Virtual only Home Project Committee. In person only Legal Ethics Committee. Virtual only
TUESDAY, SEPTEMBER 20 Noon Day of Civility “Professionalism Through Mentoring,” Jay Madrid, Judge Karen Scholer, and Julia Simon. (Ethics 1.00)* RSVP at dallasbar.org. In person only
FRIDAY, SEPTEMBER 23 11:30 a.m. Senior Lawyers Luncheon “Characters & Stories from Dallas’ Legal Past,” Hon. Ted Akin and Jerry Alexander. Spouses welcome. RSVP at dallasbar.org. Noon Friday Clinic Topic Not Yet Available. Virtual only 12:30 p.m. Moms in Law Lunch At La Pizza & La Pasta - Eataly Dallas. RSVP cpleatherberry@gmail.com.
SATURDAY, SEPTEMBER 10 7:30 a.m. DAYL Freedom Run www.freedomrun.com MONDAY, SEPTEMBER 12
2 Headnotes l Dallas
September 2022 Calendar September
WEDNESDAY, SEPTEMBER 14
FRIDAY, SEPTEMBER 9 Noon Trial Skills Section “Game Face Getting Heavy? HighPerformers Need Help Sometimes, Too,” Terry Bentley Hill, Kelly Rentzel, Ryan Casey Waller, and moderator Allie Parnell. (Ethics 1.00)* 2:00 p.m. Judicial Investitures of Hon. Ada Brown and Hon. Brantley Starr. At the Arts District Mansion.
WEDNESDAY, SEPTEMBER 21 Noon Energy Law Section Topic Not Yet Available
FRIDAY, SEPTEMBER 30 7:00 a.m. Bench Bar Conference at Horseshoe Bay. Register online at dallasbar.org.
for updates on Friday Clinics and other CLEs. FRIDAY CLINICS SEPTEMBER 16 Noon Topic Not Yet Available SEPTEMBER 23 Noon Topic Not Yet Available. Virtual only If special arrangements are required for a person with disabilities to attend a particular seminar,
SATURDAY, SEPTEMBER 24 DBA Day of Service. To volunteer, log on to https://buff.ly/3PyNdkZ.
for
**For
Noon Business Litigation Section “Insurance Considerations for Business Litigators,” Craig Reese. (MCLE 1.00)* In person only
MONDAY, SEPTEMBER 26 Noon Science & Technology Law Section Topic Not Yet Available Securities Section “Working with Financial Experts: Best and Worst Practices,” Sydne Collier and Brian Finley. (MCLE 1.00)* In person only
FRIDAY, SEPTEMBER 2 No DBA Events Scheduled
TUESDAY, SEPTEMBER 6 Noon Corporate Counsel Section “ESG Compliance and Disclosure: What’s to Come?” Harry Etra, Ferrell Keel, and Betty Ungerman. (MCLE 1.00)* Virtual only Tort & Insurance Practice Section “Ten Things Lawyers Should Learn from Ted Lasso,” Will Adams and Andrew Tuegel. (Ethics 1.00)* In person only Morris Harrell Professionalism Committee. Virtual only
THURSDAY, SEPTEMBER 1 Noon Construction Law Section “Overview of Liquidated Damages in Texas,” Brian Carroll and Shaina Swanson. (MCLE 1.00)* Virtual only Admissions & Membership Committee. Virtual only Judiciary Committee. Virtual only
approval,
THURSDAY, SEPTEMBER 15
TUESDAY, SEPTEMBER 27 Noon Fireside Chat with Doug Parker and JaqcueRae Sullivan “How Our Differences Bring Us Together,” Moderator Nnamdi Anozie. (DEI Ethics 1.00)* *Qualifies as 2022 DBA DEI challenge CLE. In person only. RSVP at dallasbar.org. Presented by the DBA Public Forum Committee in conjunction with American Airlines and Southwest Airlines. In person only Probate, Trusts & Estates Law Section “Navigating Subpoenas for Client Files,” Andrea Uresti Barr. (Ethics 1.00)* In person only
FRIDAY, SEPTEMBER 16 9:00 a.m. Trauma Training “Creating Trauma Informed Lawyers, Judges and Partners: An Interactive Trauma Training,” Judge Carole Clark. (MCLE 6.00) In person only Noon Friday Clinic Topic Not Yet Available Legal History Discussion Group “The Trials of Thomas More and John Fisher,” Hon. Robert J. “Bob” Conrad, Jr. (Ethics 1.00)* In person only
NATIONAL HISPANIC HERITAGE MONTH
International Law Section “Transcending International Borders in Uncertain Times: Is Your Global Mobility Strategy a Competitive Advantage or a Disaster in the Making?” Olesja Cormney. (MCLE Community1.00)*Involvement Committee. Virtual only Entertainment Committee
September 15-October 15 is National Hispanic Heritage Month. For information about the Dallas Hispanic Bar Association, visit dallashispanicbar.com. For more on the DBA’s Diversity Initiatives, log on to www.dallasbar.org. Bar Association Events Visit www.dallasbar.org please contact Alicia Hernandez at (214) 220-7401 by the DALLAS BAR FOUNDATION. Texas MCLE please call the DBA office at (214) 220-7447. information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org. or In-Person. Check the DBA Online Calendar (www.dallasbar.org) the most up-to-date information. Programs in green are Virtual Only programs.
CMYCYMYCMYMC HN_Sept2022-AnotherEra_Final2.pdf 1 7/27/2022 3:02:54 PM
Christina Melton Crain Christina Melton Crain continues to help so many people through tough times as Founder and President/CEO of Unlock ing Doors Through her innovative program, “Reentry Brokerage,” Crain created a unique model for people to re-enter the workforce after involvement in the criminal justice system. Before she created Unlocking Doors, she was the president of the DBA in 2009—our 100th president and the seventh female president to serve. A lifelong resident of Dallas, she attended Kimball High School and graduated with her bachelor’s degree in government from the University of Texas at Austin and a law degree from Oklahoma City University School of Law. Crain is dedicated to education and was appointed to a 6-year term on the University of Texas System Board of Regents by Governor Greg Abbot. Her law practice specializes in child/juvenile representation, mediation, and legislative issues. She was the former president of the Dallas Association of Young Lawyers, the Dallas Women Law yers Association, and a former Director of the State Bar of Texas. She has received numerous honors and awards, including the Silver U.S. Congressional Medal of Honor for Voluntarism, the Texas Corrections, Association Ellen Halbert Victims Advocacy Award, and was named as Texas Monthly Super Lawyer as well as D Magazine’s Best Women Lawyers in Dallas, to name a few. Beyond these many accolades, Crain is also a professional singer. It was amazing to see her talent on full display at the Inspiring Women event on July 29 at the Arts District Mansion. Her rendition of Gloria Gaynor’s hit song “I Will Survive,” was as mesmerizing as it was inspiring. It also speaks of how we sur vive despite circumstances like 911 and the Covid Pandemic.
4 Headnotes l Dallas Bar Association September 2022 Headnotes Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas,
is published monthly by the Dallas Bar Association,
Members:Huffman Logan
News:
In
KrisiWarmly,Kastl Texas Phone: (214) 220-7400 Fax: (214) 220-7465 Website:Establishedwww.dallasbar.org1873
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.
Looking Ahead Like Gaynor’s anthem, we continue to not only survive, but thrive. We are back together and better than ever with the DBA’s Bench Bar Conference on September 28-30. It is the premier event to network and socialize with peers and members of the judiciary and includes an opportunity to earn CLE credit. We will return to the exquisite Horseshoe Bay Resort in the heart of Texas Hill Country in Horseshoe Bay, Texas. We kick off the event on Wednesday, September 28with a reception. The fun, learning, and networking continue for the next two days. Regis tration ends on September 16. For more information check out www.dallasbar.orgHopetoseeyou there as we kick off Fall.
President:OFFICERSKrisi 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 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
Editor:
Advisory Directors: Alison Ashmore (President-Elect, Dallas Women Lawyers Association), Carla Green (President-Elect, Dallas Hispanic Bar Association), Amber Hamilton Gregg (President-Elect, J.L. Turner Legal Association), Nadia Haghighatian (President, Dallas LGBT Bar Association), Nicole Munoz Huschka (President-Elect, Dallas Association of Young Lawyers), and Janet Smith (President-Elect, Dallas Asian American Bar Delegates,Association)American Bar Association: Rhonda Hunter, Mark Directors,SalesState Bar of Texas: Chad Baruch, Rebekah Brooker, Michael K. Hurst, Mary Scott, Robert Tobey
Ian
Agree,
ExecutiveHEADNOTESDirector/Executive Editor: Alicia Communications/MediaHernandez Director & Headnotes Jessica D. Smith the Judi Smalling Annette Planey, Jessica Smith Deets and Joshua Smeltzer (Leiza) Dolghih and Ted Adcock, Benjamin David Brickman, Catherine Bright Haws, Brown, Srinivasan Chakravarthi, Gracen Daniel, Lindsay Drennan, Alexander Farr, Dawn Fowler, Neil Issar, Beth Johnson, Andrew Jones, Alexandra Jones, Dallas 1057-0144) 2101 75201. 75260. 2101 Melton Crain
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 Headnotespublisher. 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
Bar Association’s sole discretion. Headnotes (ISSN
Display Advertising:
Ross Ave., Dallas, TX
Non-member subscription rate is $30 per year. Single copy price is $4.00, including handling. Periodicals postage paid at Dallas, Texas
75201
Vice-Chairs: Elisaveta
PUBLICATIONS COMMITTEE Co-Chairs: James
“After going through something like we did, all you can do is try to live your best life from day to day and move forward with gratitude.” – Brian Clark, 911 World Trade Center Survivor For many years I clung to September in relative comfort. The Fall holidays were nipping at our heels, the weather grew more temperate, and safety felt solid until a singular September morn ing when certainty was shattered, and our country’s resilience was tragically tested. I was a second-year lawyer getting ready for work when the news broke on the Today show. Horrified, I called in and others at my law firm were equally shaken. I fielded calls from friends and family and was heartened to hear that my cousin Bruce, who worked in the twin towers, was able to reach safety. I remember the raw footage networks displayed of peo ple choosing to face the horrors of leaping from the 94-story World Trade Center rather than being consumed by fire. My heart pounded, as recounts of 911 Passengers on doomed flights furtively whispered their final goodbyes to those they loved. We scrambled as a nation to make sense of the atro cious acts that penetrated our sense of selves and changed transportation and national security forever. Last September was the 20th Anniversary of that morning when life changed. We were all struggling with what we once took for granted. Everything had a raw edge to it. It felt strange to live in a city known as a transportation connector to grow silent. It felt that normalcy was far away, but slowly and steadily we did we do best and rebuilt. We instilled safety measures to prevent and discour age such attacks and we settled into a new normal. Then the world shifted again. This time it was on March 11, 2020, when the World Health Organization officially declared COVID-19 as a global pandemic. Once again, our bustling city came to a grinding halt and new norms had to be established. Like so many, I abstained from unnecessary excursions and was quarantined with my husband in our home. We consumed all the pertinent news, trying to map out the next move for our selves, our clients, and members of the Kastl Law, PC team. Like so many, we leaned into Zoom and had to redefine what work meant. Our collective breath was bated for a way out. We waited as science caught up with the virus and were heartbroken as it lay claim to many lives. As we slowly emerge from the unthinkable plot twist in our shared story, I am reminded again of our ability to recalibrate and heal. As the virus continues to morph, so does our approach to mitigating its influence. The anniversary of September 11 and the continued push to eradicate Covid and its many variants reminds me of our capacity for resilience. Once the initial shock of change surfaces, we have been able to come together and rebuild. It is not easy. It is not quick. But it is necessary to move on. This process is echoed in our practice of law. Many times, when the unthinkable occurs, there is a shock as we scramble to make sense of the events that have transpired. After this sea son passes, we are called to action. This can mean searching for someone to serve as a navigator for the challenging path ahead. Our profession can fill that role. I realized my passion to aid those in catastrophic circumstances. These national and global challenges also remind me of the process that must be recognized as we move from hurting to healing in a unique time frame.
Ross Ave., Dallas, TX 75201. President’s Column Navigating Challenge BY KRISI KASTL Christina
POSTMASTER: Send address changes to Headnotes,
September 2022 Dallas Bar Association l Headnotes 5
the final order *Partners Natalie L Webb, Gregory
The prospect of one’s death may be difficult to think about. But making plans for the future of a child in the event something happens to one, or both, par ents is one of the most important legal decisions a person can make. This article will address some important aspects to consider when making such a decision
of the courtroom. Their
The death of a parent is a “material and substantial change of circumstances,” which is sufficient to justify the modifica tion of an existing court order or divorce decree. This means a surviving parent can immediately bring a suit to modify con servatorship of a child.
6 Headnotes l Dallas Bar Association September 2022
Is the Other Parent Living, but Unfit?
What About Stepparents?
The dedicated family law attorneys at the Webb Family Law Firm, P C put family first Whether collaborating on high or emergency custody hearings, these attorneys have earned an esteemed reputation out combined legal experience along with backgrounds in finance complex Backed by top notch the attorneys at the Webb Family Law Firm are equipped to handle their initial consult to the entry of S and M
If a child has no living parents, the child will likely be placed with a family member, so long as that family member is fit to care for the child. In such cases, the family member is often required to take special classes and do some work before receiving placement of the child.
BY MEGAN ERINAKES
A court’s primary goal is always the best interest of the child. A court will consider all facts and circumstances when rendering an order regarding conservatorship, possession, or access to a child.
child
Are There No Living Parents?
If a surviving parent is unfit, a court will not automatically award conservatorship if there are previous restrictions on the parent’s access to the child and the reasons behind those restrictions still exist. Before modify ing an order based on the death of a conser vator, the court must “consider any term or condition of the order or portion of a decree that denies possession of the child to a par ent or imposes restrictions or limitations on the parent’s right to possession of or access to the child.”
Loveless are board certified in family law by the Texas Board of Legal Specialization 325 N Saint Paul Street, Suite 4450 Dallas, Texas 75201 PH: (214) 871 2730 | FX: (214) 871 9339 firm@webbfamilylaw com webbfamilylaw.com The Webb Family Law Firm P C welcomes new Partners *Jim Loveless (left) and *Lon Loveless (right) to the team THE WEBB FAMILY LAW FIRM, P.C. Kelvin Malone Brant M Webb *Natalie L Webb *Gregory S Beane
Beane, Jim Loveless,
Is the Other Parent Living and Fit?
HN Megan Erinakes is the owner of Erinakes Law, PLLC. She can be reached at megan@erinakeslaw.com.
and business development are added benefits in handling
Lon
stakes divorce cases
How Do I Plan for My Child’s Future?
paralegals and staff,
marital estates
First, it is important to speak with the other parent and any family members regard ing your desires for your child in the event of your own death. Second, you should state in your will who you want to take care of your child in the event there is no other parent or the other parent is unfit. Third, if there is no other parent or the surviving parent is unfit, it might be helpful to complete a Nonparent Authorization Agreement. Under this type of agreement, you authorize a nonparent to have basic parental rights. This includes the ability to consent to medical treatment for the child, enroll the child in insurance, apply for and receive public benefits on behalf of the child, and get copies of the child’s identi fication documents. The authorization form can remain effective even after your incapac ity or death, assuming you check the correct boxes. Court permission is only needed if there is a current court order about the child or there is case involving the child pending in court.
What Will the Court Consider?
in and
If the surviving parent is living and fit, that parent will generally be given care of the children. It is a deeply embedded presumption in Texas law that the best interests of a child are served by award ing custody to a parent. This means that, in the event of a managing conservator’s death, the surviving parent has a presump tive right to possession of the children. This presumption exists unless the court finds that the appointment of that parent would not be in the best interest of the child, for example, because the appoint ment would significantly impair the child’s physical health and emotional well-being.
clients' needs The firm is committed to providing wisdom and guidance to their clients from
What Happens to My Children When I Die? Focus Family Law
Is There a Prior Court Order?
So, even though you may want your child to be looked after by another relative or friend, that will not happen unless the other living parent is declared unfit.
Tex. Fam. Code § 156.106. If Sole Managing Conservatorship has already been awarded to a third party prior to a par ent’s death, conservatorship is less likely to be transferred to a surviving parent who is or has previously been deemed unfit.
While the surviving parent will most likely be appointed as managing conser vator, there are sometimes grounds for requesting that a stepparent have pos sessory conservatorship of a child or, in some cases, joint managing conservatorship. This may occur when it is in the best interest of the child to continue a rela tionship with persons that have served in a parent-like role, such as a stepparent.
September 2022 Dallas Bar Association l Headnotes 7
HN Aimee Pingenot Key and Lindsey Obenhaus are Board Certified lawyers in Family Law at GoransonBain Ausley. They can be reached at akey@gbafamilylaw.com and lobenhaus@ gbafamilylaw.com, respectively.
Immigration Law Issues in Family Law Practice Focus Family Law 8 Headnotes l Dallas Bar Association September 2022 FEDERAL & STATE CRIMINAL DEFENSE | FEDERAL & STATE CIVIL TRIAL MATTERS Knox Fitzpatrick ✯ Jim Jacks ✯ Bob Smith ✯ Mike Uhl ✯ Ritch Roberts 500 NORTH AKARD STREET, ROSS TOWER, SUITE 2150 DALLAS, TEXAS 75201-6654 | 214-237-0900 *Independent Law Offices Hon. Irma Carrillo Ramirez U.S. District Court Northern District Magistrate Judge Thursday, September 15 | Noon - 1:00 PM MCLE: 1.00 DEI Ethics Hosted virtually on Zoom. Register at Dallasbar.org. Interviewed by Javier Perez, Perez Law Co-hosted by the DBA Allied Bars Equality Committee and Dallas Hispanic Bar Association in honor of National Hispanic Heritage Month.
There are humanitarian-based cat egories for lawful permanent residence in the United States, including the Vio lence Against Women Act (VAWA). Divorce greatly affects a person’s eligibil ity to apply under VAWA. A person may apply if his or her marriage was termi nated within two years prior to filing the VAWA petition and there is a connec tion between the termination of the mar riage and physical battery or extreme cru elty by an abusive spouse. In such divorce cases, the noncitizen spouse will often strategically attempt to invoke VAWA by alleging violence and cruelty in the divorce
There are several scenarios where a divorce proceeding may impact a non citizen’s ability to apply for or retain his or her immigration status and remain legally in the United States. If an individual is in the process of applying for an immigrant visa at the time a divorce is filed, there is a possi bility that the visa application will not be approved. Divorce generally ends any dependent or derivative relation ships created through the immigration sponsorship process. If a client’s pending application is tied to the divorcing spouse (for example, through a spouse’s applica tion sponsorship), then the application may fail on its face as the result of the divorce. This result is especially likely if the divorcing spouse revokes spon sorship during the divorce proceeding. Additionally, once the divorce is final, the noncitizen may fall out of eligibility for U.S. residency status. For these rea sons, parties in many instances agree to postpone the filing of their divorce until their U.S. residency cases are approved. This ensures that both parties can remain in the United States, especially for the benefit of any children of the marriage. Divorce proceedings fortunately do not affect the immigration status of the par ties’ children, as children remain “chil dren” under immigration law before and after the Childdivorce.custody proceedings can be complicated when one or both parent’s permanent residence in the United States is not guaranteed due to their immigra tion status. In a child custody proceed ing, courts will prioritize the best inter est of the child when deciding various issues, such as which parent to appoint as the primary conservator, whether to establish a geographic restriction on the child’s primary residence, and whether to impose any passport or travel restrictions on the children. It is possible for a non citizen spouse to be appointed as the pri mary conservator of the child. However, in many cases courts will impose a geo graphic restriction requiring the parents to live within a limited geographic area so that both parents can have continuing and frequent contact with their children.
Special Issues in Divorce and Child Custody Proceedings
The role of legal immigration status in family law cases is often overlooked. Yet a party’s immigration status may tremendously impact a divorce or child custody proceeding.
BY AIMEE PINGENOT KEY AND LINDSEY OBENHAUS
Immigration Statuses
Therepetition.arecertainly other aspects of immigration law that may intersect with issues raised in family law proceedings. But the general principles addressed above should bring light to many of the immigration law scenarios that are most often overlooked. A better understand ing of immigration issues will help family lawyers provide thoughtful and stra tegic counsel.
If your client or the client’s spouse is not a U.S. citizen, it is imperative prior to representation to determine his or her immigration status. There are several types of visas. An immigrant visa (IV) is issued to a person wishing to live permanently in the United States. A nonimmigrant visa (NIV) is issued to a person with permanent residence outside the United States, but who wishes to be in the United States on a temporary basis such as for tourism, medical treatment, business, temporary work, study, family rea sons, or humanitarian concerns. There are also nonimmigrant visa statuses for depen dents such as a nonimmigrant’s spouse or unmarried children under the age of 21. Many, but not all, nonimmigrants eventually seek an immigrant visa or U.S. residency status.
September 2022 Dallas Bar Association l Headnotes 9 connatserfamilylaw.com
Court for the Northern
of Texas Friday, September 9, 2:00 p.m. Arts District Mansion, 2101 Ross Avenue, Dallas
10 Headnotes l Dallas Bar Association September 2022
Premarital agreements, more com monly known as “prenups,” are no lon ger taboo. Instead, a premarital agreement is a smart idea for individuals contemplating marriage. Addressing how property and debt will be han dled during the marriage and upon divorce while a couple is in a positive headspace is beneficial to both future spouses. It also saves substantial money in the event of a divorce. However, it is vital to ensure that the agreement is enforceable and covers all terms the parties want to include. When first meeting with a poten tial client regarding a premarital agree ment, the prudent attorney should be prepared with questions to obtain a clear view of the estates of the future spouses. Specific questions should be asked regarding the property and debt of both parties, their family plans, their future goals, the lifestyle and career of each party, any prior marriages, and any prior or pending legal actions involving either party. It serves everyone best to be candid about facts and goals up front rather than to try to revise the agree ment with terms based on newly discov ered facts or concerns once negotiations are underway, especially as the marriage date draws closer. For example, does the client want to simply protect assets owned before marriage, or does the client want to provide for penalties due to infidelity or a short-term marriage?
Starr United
BY ROBERT EPSTEIN AND JORDAN WATSON of Premarital Agreements Ada Brown Brantley States District District
HN Robert Epstein is the Managing Partner at Epstein Family Law, P.C. and. Jordan C Watson is an Associate at the firm. They can be reached at robert@epsteinpc.com and jordan@epsteinpc.com, respectively.
Drafting a premarital agreement is more than filling in blanks on a form. Premarital agreements bring a chance to flex the attorney’s creative muscles. Relying solely on formbook language would be a disservice to both parties. Creative terms can range from agreeing that certain presumptions regarding community property under the Texas Family Code will not apply, to altering evidentiary standards for proving sepa rate property in the event of a divorce, to providing for spousal support pay outs based upon adultery or the length of the marriage. So long as the terms do not violate public policy, do not adversely affect child support, and do not defraud creditors, a variety of issues can be addressed in the premarital agreement. At a minimum, the agree ment should specify what is community property and what is separate property, as well as how the income each spouse earns or receives during the marriage will be Premaritalcharacterized.agreements in Texas are governed by Chapter 4 of the Texas Family Code. The agreement must be in writing and signed by both parties. It is not uncommon for four originals of the agreement to be signed and retained by both parties and their attorneys so that everyone has an original. No consideration is necessary for a premarital agreement to be enforceable. However, premarital agreements must be signed voluntarily, and the terms must not be unconscionable. Volun tariness is best ensured by each future spouse having independent counsel, even though this is not required. Also, the further in advance of the wed ding date the premarital agreement is signed, the better. Unconscionability is not specifically defined in the Texas Family Code, but the Code provides that agreements may be set aside on such grounds if 1) a party was not pro vided fair and reasonable disclosure of assets and liabilities of the other party, 2) a party did not voluntarily waive his or her right to any further disclo sure beyond the aforementioned, and 3) a party did not have or could not have had knowledge of the assets and liabilities of the other party. For this reason, it is common practice for a waiver of further financial disclosures to be signed by the parties before the premarital agreement is signed. Then, after the couple is married, it is wise for the spouses to sign a marital prop erty agreement ratifying the premarital agreement. The premarital agreement will often state that the spouses will sign such an agreement with thirty days after the date of their marriage. Hopefully, the couple will there after live happily ever after; however, divorce can happen to even the most passionate of couples. If the spouses can avoid a messy battle in the future, then they can each exit the marriage with money saved and more peace, which is of course ideal if there are children involved. Child custody terms, how ever, are not included in a premarital agreement, as they would be unen forceable. Therefore, child custody and child support would still need to be addressed and resolved in a divorce involving children. While premarital agreements may seem unnecessary when a couple is madly in love or does not have much in the way of assets to protect, the reality is that emotional and financial circum stances can change during a marriage, and premarital agreements can solve many issues that arise during divorce; thereby avoiding a great deal of stress and legal fees later.
Focus Family Law You are Invited to the Judicial Investitures of Hon.
Enforceability
and Hon.
September 2022 Dallas Bar Association l Headnotes 11 Divorce | Child Custody | Prenups and Marital Agreements Your answer to a better future. SERVING THE GREATER DALLAS AREA 5949 Sherry Lane, Suite 1070, Dallas, Texas 75225 | 972-232-7673 | epsteinpc.com Contact Us. Board Certified in Family Law –Texas Board of Legal Specialization Robert Epstein Managing Partner Jordan Watson Associate Attorney Discerning lawyers in North Texas are referring their clients to Epstein Family Law. These colleagues trust us and know that we are diligent, compassionate, respectful, honest and driven. We are your clients’ answer to a better future. A trusted family law referral for attorneys across the Metroplex.
The National Center for TraumaInformed Care identifies six principles for a trauma-informed approach: 1) safety, 2) trustworthiness and transparency, 3) peer support, 4) collaboration and mutuality, 5) empowerment and choices, and 6) recogni tion of cultural, historical and gender issues. Each principle requires thoughtfulness, planning, and consistent implementation when dealing with a client who has expe rienced trauma. For many attorneys, applying these prin ciples requires internal organizational sup port. Some, such as collaboration and peer support, require the attorney to reach outside their organization for implementation.
First, always consider a client’s safety, both physical and emotional. Asking a client about their trauma can trigger the “flight, fight, or freeze” response, which makes the person feel like they are reliving the event. Questions about the traumatic event should be done in a sympathetic and private manner. A triggered client cannot give you details or lead you through a chain of events, so important interviews should not be rushed. This does not mean an attor ney should avoid hard conversations. In family law, for instance, an attorney needs to know all the details if the trauma relates to the opposing party. Some clients will never be comfortable discussing their trauma in detail, and that should be factored into the litigation strategy, with clear litigation con sequences communicated to the client. Take steps to address client safety con cerns within the litigation process. When preparing for a hearing, think of the day from the client’s perspective: someone unfamiliar with the setting, perhaps confront ing another who intimidated or hurt them in an adversarial manner. Spend the five extra minutes explaining parking, how to get inside the courthouse, and where to go. A person who has experienced trauma can struggle to remember minor details and will already be anxious. The last thing you want is them showing up rattled to an important hearing.Second, spend time building trust with clients by being transparent and available. Individuals who have experienced trauma, particularly women or people from mar ginalized communities, have likely already had negative experiences with the legal system and expect the system to fail them. Explain each step in the process to the cli ent, making sure all support staff are on the same page, so answers remain consistent and will not surprise the client. Even when it is a question within your full discretion, explaining your reasoning or demystifying the litigation process goes a long way towards building client rapport.
However, all attorneys from solo practitio ners to big law firms can individually imple ment three of these principles on a daily basis in their client support: Safety, Trust worthiness and Transparency, and Empowerment and Choices.
The Trauma-Informed Attorney Focus Family Law FREE MCLE J O I N O R R E N E W N O W A T W W W D A L L A S B A R O R G One of the many Member Benefits that the DBA offers is more than 400 CLE courses each year, most of which are offered at no charge RISK-TAKING CAN BE FUN... …BUT NOT WHEN IT’S A MALPRACTICE CLAIM. Personal Injury Claim* • Lawyer sued for allowing a default judgment taken against client • Damages of up to $4,000,000 sought ($200,000 policy limit) • TLIE settled case for $300,000 INSURED BY TLIE IF NOT INSURED Deductible $1,000 Defense costs $10,000 Amount over policy limit + $109,000 Settlement + $300,000 Total out-of-pocket = $110,000 Total out-of-pocket = $310,000 * Based on actual claim handled by TLIE. FIND OUT MORE: TLIE.ORG or (512) 480-9074 TURLEY LAW CENTER Professional Friendly On-Site Staff 24-hour Cardkey Access Complimentary Valet Reserved Conference Room (No Charge) High-Speed Internet Deli Serving Breakfast & Lunch Full Service Salon & Spa FedExATM Drop Box Near Dart Station Satellite TV Connections Car Detail Service Furnished Executive Suites Conveniently located at N. Central Exp. & University Blvd. Competitive lease pricing. Is your office building “Dog Friendly?” OURS IS! TAKE A TOUR! Email us at Brendag@wturley.com or call 214-382-4118 NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/lawyerreferralserviceorcall(214)220-7444.
As our society grows more comfort able discussing traumatic events and their impacts, the legal field should adapt by incorporating trauma-informed approaches into regular practice. Traumatic events come in small and large forms, what professionals call “big T or little t traumas.” Large-scale events, like global pandemics, with isolation, disruption of life, and deaths of millions, are traumatic events. Personal traumatic events, such as accidents that cause serious injury, the sudden death of a loved one, or inci dents of domestic violence, abuse, and sexual assault, can leave more hidden traumas. For a lay person, the legal system, with its byzan tine structure and adversarial nature, may be trauma-inducing on its own.
An attorney’s job is to represent their client ethically, lawfully, and zealously. To do this, an attorney must understand a cli ent’s goals, and a client’s emotional and physical limitations, including concerns about the toll that litigation may take. Being trauma-informed is necessary for cli ent or witness interviews as well, as trauma tized people can be reluctant to speak about their experiences, or may speak in jumbled or non-linear ways. This can affect a trau matized person’s ability to find good repre sentation when an attorney imputes their own biases and assumptions about a person who presents this way without understand ing why they present this way. Adopting a trauma-informed approach to legal repre sentation can improve client outcomes and attorney-client relationships by encourag ing the attorney to develop better listening skills, open communication from the client, and promote client trust in the attorney.
Third, assist a traumatized individual by empowering them. A person with nega tive experiences within the legal system will expect to be ignored and their story discounted. Take the time to validate their experiences and feelings while explaining and reinforcing that they make the ultimate decision whereas you explain the legal con sequences. Well-meaning attorneys may unintentionally convince a client to acqui esce because the attorney “knows best.” Recognize attorneys hold power as author ity figures, but to the client, voice and choice
Adoptingmatters.these trauma-informed prin ciples will allow an attorney to create the best potential atmosphere for any client who comes through their door and will help foster attorney-client relations built on trust, empowerment of the client, and zeal ous advocacy. It’s a win-win! HN Jessica Alexander is the Managing Attorney at Hope’s Door New Beginning Center. She can be reached at jalexander@hdnbc.org. Rachel Elkin is the Director of Legal Services at Genesis Women’s Shelter & Support. She can be reached at relkin@genesisshelter.org.
BY JESSICA ALEXANDER AND RACHEL ELKIN
12 Headnotes l Dallas Bar Association September 2022
September 2022 Dallas Bar Association l Headnotes 13 ® Improving Lives Join the thousands of Family Law Professionals who trust our expertise in remote alcohol monitoring. 714.975.7200 | soberlink.com “SoberlinkPEACEPROTECTIONPROOFOFMINDisreliable.Ithasconsistenttestingandmonitoring,andthesystemisalwaysimproving.IdefinitelyrecommendSoberlinkinanycasewherethereisalcoholabuseorallegedabuse.”–FAMILYLAWATTORNEYFacialRecognitionReal-TimeResultsAdvancedReporting
HN Claire James is a shareholder at Cowles & Thompson and can be reached at cjames@cowlesthompson.com.
Don’t Underestimate Pro Se Opponents
Paper the File or Have a Witness When communicating with a pro se liti gant, a lawyer cannot state or imply the law yer is disinterested or provide legal advice to the pro se, other than to obtain counsel. This seems straightforward until a pro se party begins asking questions about the process or trying to negotiate a settlement. While a lawyer can and should explain the legal basis for his or her actions, a lawyer cannot make recommendations to the pro se litigant and must avoid the appearance of doing so. To mitigate risk, lawyers should consider com municating solely in writing or having a wit ness present when communicating with a pro se Negotiatingopponent.a settlement can be particularly risky with a pro se opponent because he or she might misunderstand an agreement, renege on an agreement, or claim a lawyer unduly influenced him or her in reaching an agreement. Employing a mediator, reduc ing an agreement to writing in the form of a Rule 11 agreement, and reciting agreements on the record are ways to mitigate these risks.
Consider Requesting a Vexatious Litigant Finding
BY CLAIRE E. JAMES
Try This at Home: Tips for Handling Pro Se Opponents Focus Family Law 14 Headnotes l Dallas Bar Association September 2022 Join us on Friday, September 23, 2022 11:30 am Social Gathering & 12:00 pm for the Lunch Buffet at the Arts District Mansion Spouses welcome! Senior ArtsFriday,LuncheonLawyersSeptember23DistrictMansion Characters & Stories from Dallas’ Legal Past with the Honorable Ted Akin and moderated by Jerry Alexander, Passman & Jones, P.C. lunch...usJoinfor RSVP online at tinyurl.com/SrLawyerLunch or call Marcela Mejia at 214-220-7410 2022 Evening of Ethics Tuesday, October 11 • 5:00 - 8:00 pm MCLE: 3.00 Ethics • Hosted on Zoom Topics Include: • Ethical Communications with the Court and its Staff • Zealous Client Advocacy in Civil and Criminal Litigation • The Texas CommitteeGrievanceProcess • Strategies in Litigation of Complaints Free for DBA RegistrationMembersopensSeptember1 You are Invited to the Judicial Investitures of Hon. Ronald Hurdle and Hon. Tahira Khan Merritt Associate Judges to the Civil District Courts Monday, October 17, 3:30 p.m. | Arts District Mansion 2101 Ross Avenue, Dallas
Occasionally, a pro se litigant abuses the process so egregiously that he or she can be declared a vexatious litigant under Texas Civil Practice & Remedies Code Section 11.001, et. seq. A pro se who is declared a vexatious litigant will be required to post a bond before filing suit or to obtain permis sion from the local administrative judge to file Insuit.family law matters, pro se litigants have been found to be vexatious when, for example, they file numerous lawsuits for modification of orders or applications for protective orders that allege the same facts as prior applications. A vexatious litigant finding is a very powerful tool, but one that can only be utilized with the most egregious pro se litigants.
In a hearing or trial, it may be tempting to constantly object to a pro se litigant, who may have no knowledge of things like evi dentiary predicates. While pro se litigants must adhere to the same rules as lawyers, in the interest of justice, judges often dis play a great deal of patience (and sometimes lenience) toward pro se litigants. Objecting frequently to a pro se can be seen as bullying, so lawyers should choose their battles wisely. When given their turn, pro se litigants sometimes fail to understand the difference between evidence and argument and will present their case without being sworn in. In these instances, consideration should be given to whether it benefits the case to have the pro se litigant sworn in.
Employ Creative Strategies in Court
Millions of Americans cannot afford legal representation, so it is unsurprising that pro se litigants are common in family law disputes, where litigation is frequently unavoidable. Pro se litigants are often unfa miliar with the legal system, and their emo tions generally run high. For these reasons and others, litigating against a pro se party can be uniquely challenging. Below are some tips for handling pro se opponents.
Stay Objective and be Professional Some pro se litigants are discourteous, combative, or even offensive in commu nications, and they sometimes file plead ings that are groundless, inflammatory, or both. Although these tactics are frustrating, allowing a pro se opponent to elicit an emo tional response compromises the lawyer’s ability to objectively and effectively advo cate. Waiting to respond to a contentious pro se litigant allows time to refocus on the relevant issues and respond appropriately. Because pro se litigants are personally invested and may not understand the legal process, they often struggle to stay on topic when communicating. For example, if a lawyer emails a pro se litigant to con fer on a discovery matter, the pro se might respond with a long, angry email about their soon-to-be-ex spouse’s parenting decisions, spending habits, or new girl or boyfriend. Redirecting back to the relevant issues can help prevent the case from becoming overly contentious and expensive.
Don’t
Although most pro se litigants have not been trained as lawyers, they have far more skin in the game than the lawyers do, so it is fair to assume they will spend a great deal of time preparing for hearings and trial. Pro se litigants also usually know far more about the underlying facts than the lawyers do. Assuming it will be easy to defeat a pro se litigant can be dangerous, so it is best to prepare the case as if the opponent were a competent lawyer.
September 2022 Dallas Bar Association l Headnotes 15
Sheils Winnubst is proud to welcome Philip Kingston the brings unmatched experience help the city and N.
1. Because separate property is everything you acquired prior to marriage or during marriage as a gift or inheritance, ignore those snowy “December to Remember” car com mercials. Don’t put a bow on that very nice car when you bring it home to your spouse, and don’t put the keys to that very nice car under the Christmas tree in a box addressed to your spouse.
Top 10 Family Law Issues Every Lawyer Needs to Know Focus Family Law
firm. Kingston
4. The Texas Supreme Court holds that there is fiduciary duty between spouses. An easy definition of fiduciary duty is the Golden Rule: Treat your spouse as you would want to be treated. In practical terms that means 1) do not get your spouse to sign a post-marital property agreement that is highly ben eficial to you and gives little or noth ing to your spouse; 2) do not take busi ness opportunities during your marriage that favor your separate property in a large way and hurt or hinder the community property.
16 Headnotes l Dallas Bar Association September 2022
in Austin. philip@sheilswinnubst.com | sheilswinnubst.com 1701
8. Look carefully at the recom mendations of your financial advisor dealing with your separate property accounts. Because dividends on sepa rate property are community prop erty, dividend reinvestments are mixing community and separate property. If you keep the records, you can trace your separate and community property in the future if needed, but you have built in the need for record-keeping and increased your need for a forensic CPA.
Family lawyers—just like ER doctors—have seen it all. And if we weren’t bound by our client confiden tiality, oh, the stories we could tell. But we are bound, so we don’t tell. Instead, we just offer our best advice for avoid ing the worst of what we have seen.
7. Do not sign a personal guaran tee for your spouse’s business. Let’s say your spouse signs an office lease for their business. Because the business is small or new, you and your spouse are each asked to personally guarantee that lease. Don’t! If for any reason your spouse’s business defaults on the lease, the landlord may get a judgment against the business and your spouse. If you have not signed a personal guaran tee, then the creditor can get assets in your spouse’s name or in your and your spouse’s names jointly. But the creditor cannot get your separate property and cannot get community property solely in your name if you have not signed the personal guarantee.
6. If you and your spouse are each running your own businesses, keep separate checking accounts. Keep your separate property separate and only in your own name. This limits the ability of creditors to get all of the property of you and your spouse (see # 5).
10. Do not put anything in a text or email to your spouse or your child that you would not want to read back to you in court. Demeaning, bullying, hypercritical, and profane speech should not be said, and certainly not be put into writing. You could not send that type of message at the office, and you should not with your family either.
Carol Wilson, of Law Office of Carol A. Wilson, PLLC, is Board Certified in Family Law by the Texas Board of Legal Specialization. She can be reached at carol@cawilsonlaw.com.
5. Look at the check books, credit card records, and tax returns at least annually for all of the household. You are 100 percent jointly liable on all joint federal income tax returns. You are liable on all joint debts. You ought to know how the household income is being spent.
hall,
Collins Blvd., Suite 1100, Richardson, Texas 75080 Texas HS Mock Trial Needs Volunteers! Coach a Team Help team prepare for competition Schools located in Dallas No litigation experience required Work around your schedule! HOW YOU CAN HELP Score a Competition Earn self-study CLE & network with attorneys No litigation experience required Only 3 hour time commitment • It takes over 200 attorneys to score a day of competition! We need you! 2023 Competitions: Sat, January 21, Sat, January 28, Sat, February 4, Fri, March 3 - Sat, March 4 Questions? Contact the State Coordinator at texashsmocktrial@dallasbar.org or call 214-220-7484 www.texashighschoolmocktrial.com Texas Lawyers’ Assistance Program TLAP provides confidential help for lawyers, law students, and judges who have problems with substance abuse and/or mental health issues. In addition, TLAP offers many helpful resources, including: Live Ethics CLE presentations TLAP Newsletter Request of specific educational materials 1-1, group telephone calls on topics Friday noon AA telephone meeting 1-800-393-0640, code 6767456 Find out more at www.texasbar.com.
your clients in
3. Income from separate property is community property. That means dividends, rent income, and inter est income from separate property are all community property. Appreciation of assets is not income. If you owned stock at $100 per share when you got married and the value of the stock is now $150 per share, that increase in value is not community income.
to
and relationships in land use, litigation, and lobbying. We can
HN
9. If you owned separate property before you married or received it dur ing your marriage, keep good records of that property. Banks are only required to keep records for five years; the IRS, seven years; the SEC eight years. Keep ing your own records in a fireproof file cabinet is the best self-protection of your own separate property assets.
2. Community property is every thing you have, except what is separate property. It doesn’t matter if the asset is in your name or your spouse’s. That property, which is not separate prop erty, is as much yours as your spouse’s.
The
Bonus advice : Try not to get a divorce. Even amicable divorces cost a lot of money and usually leave both partners worse off financially. Spouses are human, and all humans are at least a little bit irritating and more than occasionally disappointing. Of course, some marriages cannot be saved, and abusive relationships should end. But many of the divorces my family law colleagues and I see could have been prevented with hefty doses of grace, humility, and hard work.
courtroom,
BY CAROL WILSON
September 2022 Dallas Bar Association l Headnotes 17 QUAID FARISH LLC. CONGRATULATES JULIE H. QUAID ON BEING NAMED THE 2022 RECIPIENT OF THE GAY G. COX AWARD FOR EXCELLENCE IN COLLABORATIVE LAW Chosen by the professionals at Collaborative Divorce Texas in recognition of Julie’s commitment and skill in helping clients prevent the destruction often associated with divorce by guiding them toward respectful, cooperative ways of divorcing in which they achieve optimum results. Julie helps clients focus on the future and protecting what is most important: children, relationships, and financial security. Julie H. Quaid Honors and Recognition: 2022 Gay G. Cox Award for Excellence in Collaborative Law- Collaborative Divorce Texas 2017 Lawyer of the Year: Collaborative Law: Family Law Dallas/Ft. Worth: U.S. News and World Report 2011 D Magazine Top Female Attorney Dallas - for Collaborative Divorce & Family Law. Texas Super Lawyer 2011–2022 Best Lawyers in America 2014–2022 Past President Collaborative Divorce Texas Past Chair Collaborative Law Section-State Bar of Texas Past Chair Collaborative Law Section-Dallas Bar Association Past Multi-Term President-Collaborative Divorce Dallas Past Multi-Term Chairman of the Board Café Momentum Quaid Farish, LLC. Awards and Recognition: Top-Listed Family Law 2014–2022 (Tier 1) (Dallas/Ft. Worth) Best Lawyers in America/U.S. News and World Top-ListedReportCollaborative Family Law for 2017–2022(Tier 1) (Dallas/Ft. Worth) Best Lawyers in America/U.S. News and World Report Quaid Farish, LLC. 8150 North Central Exp. Suite 600 Dallas, Texas 214.373.910075206 collaborativedivorcecollincounty.comCollaborativeDivorceDallas.comQuaidFarish.comCollaborativeDivorcePlano.com Julie H. Quaid
The Court held that not enforcing the agreement would amount to an abuse of its judicial discretion. The Court reasoned that because the parties entered the agree ment voluntarily, and neither party disputed the agreement when signing, the parties intended every clause to have an effect; thus, the frozen embryos were destroyed.
our
The recent Supreme Court ruling over turning Roe v. Wade may raise new issues. Written embryo agreements currently rec ognized by the state could potentially vio late Texas public policy if the agreement is to destroy the embryos in the event of a divorce. Presently, it is still too soon to know what the impact on current IVF practices might be.
18 Headnotes l Dallas Bar Association September 2022
As a community property state, property acquired or created during the marriage by either spouse is presumed community prop erty. A divorcing couple is faced with sev eral options when it comes to division of the marital estate, such as the marital residence and financial accounts; but what about cryo preserved (frozen) embryos created through in vitro fertilization (IVF) during the mar riage? Does one spouse keep all the embryos, are they destroyed, or are they donated?
The contractual approach is a very black and white tactic to an extremely sensitive and emotional situation. This is the most successful way for a court to determine the disposition of frozen embryos created during the marriage in the event of a divorce. Under this method, an agreement between the par ents governing disposition of the embryos is presumed valid and enforceable. This would potentially eliminate an issue of litigation. It would be wise for the parties to consult with an attorney prior to starting the IVF process to discuss the possibility of a pre- or postmarital agreement detailing each parent’s rights rather than relying solely on the clin ic’s forms, as this will help with the enforce ability in the event of a future dispute. This will empower the parties to create their own outcomes and allows them to know what to expect before pursuing the IVF process. Additionally, in the Final Decree of Divorce there should be a section addressing the dis position of the embryos.
The Texas Family Code currently does not address how to determine the disposi tion of embryos created for assisted repro duction if the couple divorces. Roman v. Roman, 193 S.W.3d 40, 42 (Tex. App.— Houston [1st Dist.] 2006). Written Embryo agreements between the medical provider and parties have become common and generally address this scenario. An embryo agreement does not violate Texas public pol icy if the agreement (1) allows the parties to voluntarily decide the disposition of frozen embryos before cryopreservation, (2) is subject to the parties’ mutual change of mind, and (3) is jointly expressed by the parties. Texas has adopted the Uniform Par entage Act which applies to children only conceived by means of assisted reproduc tion. Tex. Fam. Code Ann. § 160.701. The Act has a provision regarding divorce that states “(a) If a marriage is dissolved before the placement of ... embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record kept by a licensed physician that if assisted reproduction were to occur after a divorce the former spouse would be a par ent of the child. (b) The consent of a for mer spouse to assisted reproduction may be withdrawn by that individual in a record kept by a licensed physician at any time before the placement of ... embryos.” Tex. Fam. Code Ann. § 160.706. Texas has adopted the contractual approach as illustrated in the first impression case involving frozen embryos. A married couple sought IVF at the Center of Repro ductive Medicine and signed an Informed Consent for Cryopreservation of Embryos. Roman v. Roman, 193 S.W.3d 40. In the documents with the Center, the parties selected the option to discard the embryos in case of divorce. The IVF cycle resulted in embryos that reached a proper stage but sev eral months later the couple filed for divorce. At trial the husband requested the agree ment with the clinic be enforced, and the embryos be destroyed. However, the wife wanted to have the embryos implanted. The wife argued that she understood the agreement to apply to remaining embryos only after implantation occurred. Further more, she testified that she never agreed to destroy all the embryos without an opportu nity to get pregnant. When the issue of consent arose, both the husband and the doctor at the clinic testified that the wife did not seem too emotionally upset to give consent. In fact, the doctor testified that the wife “was able to participate in the consult, and that she was able to understand the questions... and that all her questions were answered con cerning the process.”
BY DANIELA RUELAS Divorce and
After 15 years of presence in Texas, Crowe LLP is excited to welcome the Houston-based Briggs & Veselka team and enhance presence throughout the state. Crowe is a public accounting, consulting, and technology firm with offices around the world. Together, experienced teams
HN Daniela Ruelas is an Associate at Armstrong Divorce & Family Law, PLLC. She can be reached at daniela@armstronglawtexas.com.
our
provide a variety of services and solutions for legal departments and law firms. • Forensic accounting and litigation support • Business valuation • Family law forensic accounting • Digital forensics and incident response services • Legal management consulting Learn more at crowe.com Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global. © 2022 Crowe MBV2301-001ALLP. 2022 DAYL Freedom Run 5K-Run,1-Mile Walk, or Ruck Saturday, September 10, 2022 Register Online at www.freedomrun.com Organized by the Dallas Association of Young Lawyers.
In Vitro Fertilization Focus Family Law Texas Globalvalues.reach.
BETTER DIVORCE.
A
September 2022 Dallas Bar Association l Headnotes 19 With big conflictamicableapproachfocused,providesCalabreseboutiqueexperiencefirmandservice,Budneraclient-results-driventobothandhigh-divorce. DALLAS | COLLIN | DENTON | TARRANT | PARK CITIES | PRESTON HOLLOW 214.939.3000| CALABRESEBUDNER.COM CALABRESEBUDNER.COM
A MODERN APPROACH TO FAMILY MATTERS ® As a Master Credentialed collaborative attorney with over 30 years of family law experience, Carla Calabrese is the go-to lawyer for Collaborative Divorce. When handling complicated family matters, a collaborative lawyer’s depth of experience can make or break the case. Carla is one of only a handful of Master Credentialed Dallas lawyers, which gives her clients an edge. Carla also combines her business background with the firm’s Emotionally Intelligent Divorce® services to judiciously guide clients through the most complex and high-pressure Strategy-focuseddivorces.anddriven, Lee Budner deploys his former big firm commercial litigation experience to excel in high-stakes divorces with millions in controversy. He also possesses the emotional intelligence necessary to effectively handle highly sensitive and contentious custody battles. Lee and his team of litigators handle cases large and small, intent on working tenaciously to drive home successful results for his clients.
DBA Inspiring Women XII
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.
HN
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.
2022 Dallas Bar Association DEI CLE Challenge
DBA WE LEAD WOMEN EMPOWERED TO LEAD APPLY NOW!
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 Need-based scholarships are available For information and online application visit: www.tinyurl.com/2023DBAWELEAD Questions? Contact Judi Smalling at jsmalling@dallasbar.org.
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. Scan to learn more and report your hours.
20 Headnotes l Dallas Bar Association September 2022
After a two-year hiatus, DBA Inspiring Women was back at the Arts District Mansion on July 29, 2022. Our all-star panelists, led by Hon. Karen Gren Scholer and Dawn Estes , included: Hon. Ada Brown , Christina Melton Crain , Felecia Epps , Laura Benitez Geisler , Monica Latin , Helen Yu , and moderator Terry Bentley Hill . The program offered an hour of Ethics CLE, along with humor and war stories to help you reach the top of your game. This year’s theme was a play on ABBA, and how you need to add singing, dancing, and humor to your lives – all of which are needed for everyone, but especially those in the arena of law.
September 2022 Dallas Bar Association l Headnotes 21 Register now at DallasBar.org UP TO 7 HOURS MCLE INCLUDING ETHICS MEET YOUR JUDGES AWESOME NETWORKING TRIAL LAWYER OF THE YEAR AND JURIST OF THE YEAR AWARDS DBA MEMBERSHIP Adding value to your career and the profession. + CommunitiesOnline6,950+ members participate in one or more of the DBA online communities. Members11,000+ DBA members come together to learn, to share, to teach, and to advocate for the profession. Sections 30 practice areas with hundreds of opportunities for networking and development.professional Online Directory 2,500 searches per month for attorneys in the DBA Online Member Directory. Publications9,300 attorneys and legal professionals read Headnotes each month. $1,000+Savingsestimated savings through DBA membership. 15,000+ attendees at Section CLE, networking and social events.CLE 600 CLE hours including...offered 40 hours of on demand CLE. Mock 1,900+Trialmembers and high school students participate in the Texas High School Mock Trial Competition. Pro 12,134Bonohours of pro bono services by 1,297 volunteer attorneys. DBA MEMBERSHIP What are you waiting for? Join today at DallasBar.org Back in the Groove in 2022
On August 18, the DBA presented a DBA Living Legends webinar featuring Laura Benitez Geisler, of Sommerman, McCaffity, Quesada & Geisler, L.L.P., who was interviewed by Chandler Winslow, GoransonBain Ausley PLLC, and Nikki Chriesman-Green, Foster & Foster. Find all the Living Legends videos on our YouTube Channel at https://buff.ly/3FwEmN3.
22 Headnotes l Dallas Bar Association September 2022
Moms in Law
Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is a no pressure, no commitment, informal, fun, support group for lawyer moms.
Does the child simply feel more comfortable or bonded with one parent? Allegations of alienation some times can be grounded in one parent providing things to the child to gain favor; however, this is behavior is not in and of itself grounds for a finding of parental alienation. For example, one parent giving the child a cell phone to ease communications does not necessarily constitute intrusion rising to the level of alienation. There must be proof that the parent is complicit in a pattern of denigration of the other par ent, and/or attempting to target the other parent to cut that parent out of the child’s life. Isolated examples do not necessarily constitute a pattern of behavior. Absent proof of emotional manipulation of the child by one par ent against the other parent, the fact that one parent is preferred is not nec essarily indicative of parental alien ation. Did the expert reach a poorly reasoned conclusion based on their own biases ? Where expert witnesses are involved – who might be private men tal health professionals, police offi cers, or public employees of TDPFS –hindsight bias and confirmatory bias should be analyzed in the context of child custody evaluations, particularly where there are allegations of parental alienation.Thoseof us who focus on child wel fare cases or who specialize in family law owe a responsibility to our cli ents and to their children to adhere to the professional canons and practice zealously, while assuring that the best interests of the children made the subject of such cases are protected (Cf. Child Welfare Information Gate way. (2020). Determining the best inter ests of the child. Washington, DC: U.S. Department of Health and Human Services, Administration for Children and Families, Children›s Bureau). There are many valid reasons why a child might reject a parent. There are, however, many parents who push a child to reject another parent for rea sons that are at best spurious. As the parent child relationship is one of the utmost importance, due diligence is an absolute necessity on the part of all professionals involved in cases where allegations of parental alienation are asserted.
HN Elisa Reiter is a Senior Attorney at Underwood Perkins, P.C. She is Board Certified in Family Law and Child Welfare Law by the Texas Board of Legal Specialization. She can be contacted at ereiter@uplawtx.com. If one side has an do not, you can level the playing field by Martin can try the case, or simply serve as health law analyst. You stay in control of the Martin Merritt litigates cases against the 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. Best 2018, 2020, 2022)
DBA/DAYL
The term parental alienation seems to be tossed about with frequency in custody litigation. Parental alienation is so inconsistent with the best interests of the child, that when one parent alienates the other parent, there is a strong likelihood that the errant parent is unfit to be appointed as the child’s primary conservator. Unfortunately, evaluators sometimes are wrong in concluding that a case involves paren tal alienation. With so many players (parents, lawyers, mental health pro fessionals, mediators, judges, appellate court judges), how can you substan tiate that your case does not involve parental alienation? Here are some factors to keep in mind in evaluating whether parental alienation is an issue in your case: Vile behavior of a parent is not equivalent to alienation . In the Eddins case ( No. 05-16-01451-CV), the trial court judge determined that the mother engaged in parental alienation against father, and issued temporary orders arbitrarily naming the father as the children’s primary caretaker, even though the father did not have plead ings on file requesting such relief. The judge determined that, whether con sciously or unconsciously, the mother was undermining the children’s rela tionship with the father. On appeal, the Fifth Circuit disagreed, noting that, while the mother’s behavior (swearing in front of the children regarding the father) might be vile, it did not rise to the level of parental alienation. Thus, a dysfunctional relationship between co-parents does not necessarily indi cate parental alienation. Angry or vol atile exchanges in front of the children were not sufficient to justify temporary orders making an arbitrary change of custody. A child’s resistance to one parent is not necessarily indicative of alienation . Estrangement in and of itself is insufficient to support a finding of parental alienation. Rejection of a par ent combined with denigration and refusing to see a parent may be indica tive of alienation, or it may simply indicate the child is naturally growing estranged from a parent. Where one parent fails to show that the child’s preference not to engage in visits with a parent is caused by inter ference by the other parent, and where the record reflects that the parent child relationship worsened, in part, due to the parent’s own conduct, there may be insufficient evidence to war rant a change of custody on the basis of parental alienation. Spewing vile epi thets regarding the other parent in the child’s presence may be an indicator of poor judgment, but not of alienation.
FBI,
case and keep the client. Experienced. Over 30 years, in Texas and nationally,
associating Martin Merritt as co-counsel. You keep the client. Hourly and flat monthly rates available.
prepare and argue hearings,
Friday, September 23, 12:30 p.m., at La Pizza & La Pasta - Eataly Dallas To RSVP for this lunch, email Christine at cpleatherberry@gmail.com
BY ELISA REITER Who Says It’s Parental Alienation? Focus Family Law MARTIN MERRITT Health Law and Healthcare Litigation “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 MartinDir.Martin@MartinMerritt.com(214)952.1279Merrittisyourco-counsel in healthcare litigation cases.
experienced health lawyer in their firm and you
(D Mag.
DBA Living Legends
Join Moms in Law for lunch
September 2022 DANA p o d c a s t T h e L a w y e r You can’t course correct if you aren’t running a course. S c a n t o s e e o u r l a t e s t e p i s o d e !
Father’s attorney also expressed intent to use an explicit photograph of Mother contained in the messages at trial and provided the iPad to a retained expert.
• Upon being retained in a matter, provide your client with: – Written information about both state and federal laws relating to digital evidence and electronic communica tions, including applicable civil and crim inal–penalties;Yourfirm’s policy regarding same; – A copy of the applicable standing order, if any, with specific reference to provisions relating to digital evidence and electronic communications; and – Written instructions regarding the preservation of materials related to the case, and the penalties for spoliation of evidence.Thisinformation can be provided in the body of or in an attachment to your engagement letter. As digital communication and infor mation sharing continues to evolve, so should we as attorneys, both to fulfill our duties to our clients to be technologically competent but also to preserve the protection of attorney immunity.
To volunteer or make a donation, call 214/748-1234, x2243.
DVAP’s Finest MELISSA THRAILKILL
WWW.THOMASRONEYLLC.COM Personalinjury Wrongfultermination Intellectualproperty Commercialdamages/lostprofits Businessvaluations Whenyouneedanumber callournumber 817.733.6333 DAMAGES DALLAS•FORTWORTH•HOUSTON•ATLANTA Need Help? You’re Not Alone. More resources available online at www.dallasbar.org/content/peer-assistance-committee 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 MetrocareSuicideHotline………………………………………..1-800-SUICIDECrisisCtrSMU.…………………………...(214)828-1000Services………………………………...(214)743-1200 BY CARMEN EIKER AND ABBYE WEST Digital Evidence: Boosting Your Attorney Immunity Focus Family Law
Pro Bono: It’s Like Billable Hours for Your Soul.
Melissa Thrailkill is an associate at the Law Offices of Brandy Wingate Voss, PLLC. How did you first get involved in pro bono? I began my legal career working with a legal aid organization and that passion for serving those who need legal help but cannot afford it has followed me into private practice. Describe your most compelling pro bono case. This is a hard one because I find all of them compelling. People need our help. I was thrilled to win an appeal for a client who had been steamrolled as a pro se litigant at trial, but I was also just as thrilled to help a woman gain custody of her younger sibling when their disabled conservator could no longer serve as conservator. Helping a client get their dignity and driver’s license back also brought joy, and assisting a son who lost his parent with a simple probate issue was just as fulfilling as winning a big trial. I can hon estly say that all of these clients were compelling and deserving of my time. Why do you do pro bono? My law license gives me a special power that not everybody has the privilege of having. With part of that power comes a duty to help the public—lawyers have enormous influence over people’s lives, from contracts to legislation to helping establish new legal precedents. People need lawyers to navigate our legal system, and the legal system can fail if a person’s house, child, job, or life is dependent upon their economic status and ability to afford an attorney. What impact has pro bono service had on your career? I always learn something new about the law and the process when I take on a new pro bono matter. It has also helped me meet others in the profession and in the community who share the same interests as myself. Making positive connections and learning from others and their experiences has helped me become a more well-rounded attorney, mentor, and colleague. What is the most unexpected benefit you have received from doing pro bono? Feeling purposeful. While I always feel as though my work serves a purpose, it just feels different when I’m doing it pro bono and being of service to the public and profession. Pro bono work does require us to give up our time freely, and that can be hard. But the payback in spirit and soul is priceless.
Your firm has accepted a new case involving hotly contested child custody issues. Your client, waving his smart phone, excitedly tells you the evidence that will win the case is right here, in the palm of his hand. All you need to do is download the screenshots of the other parent’s texts, photos, and emails, and your work is done. Sounds too good to be true, and when it comes to your attorney immunity, it may be.
24 Headnotes l Dallas Bar Association September 2022
A recent Texas Supreme Court case explores the parameters of the attorneyimmunity defense in a civil suit where the alleged conduct is criminalized by stat ute. In Taylor v. Tolbert, 644 S.W.3d 637 (Tex. 2022), plaintiffs sued under federal and Texas wiretap statutes, which provide civil remedies in addition to criminal penalties, alleging that the attorney rep resenting Father in a modification action improperly used and disclosed illegally intercepted electronic communications in violation of those statutes. The electronic communications forming the basis of the wiretapping claims were text messages and emails between Mother and various other individuals that were allegedly illegally intercepted. The child who was the subject of the modification action logged onto her aunt’s iPad using Mother’s email address and password, and the aunt soon discov ered that the iPad was receiving Mother’s electronic communications. Aunt then mailed the iPad to the child’s Father, who shared the messages with his attorney for use in the modification proceeding. Spe cifically, Father’s attorney produced the messages in discovery and used informa tion gleaned from them in the litigation.
HN Carmen Eiker, Of Counsel, and Abbye West, Associate, are attorneys with Carrington, Coleman, Sloman & Blumenthal, L.L.P. Ms. Eiker is board certified in Family Law and Civil Trial Law. They can be reached at ceiker@ccsb.com and awest@ccsb.com, respectively.
While an attorney’s actions in the course of representation are generally shielded from liability to non-clients under the attorney-immunity defense, the availability of the defense turns on the type of task being performed. The immu nity defense applied to the attorney’s con duct in Taylor because her actions were within the scope of representation and were not foreign to the duties of a law yer. Because the use and disclosure of the electronic communications fell squarely within the confines of attorney immunity, the Court held that the alleged criminal ity of the conduct did not itself preclude the Rather,defense.whether the defense applied was a matter of whether the wiretap stat utes precluded the defense, a question of statutory construction. Because the Texas legislature did not specifically exclude attorney-immunity as a common-law defense and the statutory language did not otherwise show clear legislative intent to do so, Father’s attorney was entitled to summary judgment on the state wiretap ping claims. However, Texas’s attorneyimmunity defense did not extend to fed eral wiretapping claims, the Court reasoned, because federal courts would be unlikely to apply a state-law defense to a federal statute and federal common law does not recognize a corresponding attor ney-immunity defense. Father’s attorney was therefore not entitled to summary judgment as to the federal wiretapping claims.Although attorneys are shielded from civil liability under the Texas wiretap stat ute, the availability of attorney immunity in this specific instance does not categori cally protect an attorney from account ability for using or disclosing illegally intercepted electronic communications. Those actions may still subject the attorney to other consequences for wrong ful conduct, including sanctions, profes sional discipline, and criminal penalties. So, what is the takeaway for our daily practice?•Familiarize yourself and staff with both state and federal laws relating to digital evidence and electronic commu nications.•Implement firm policies and proce dures for collecting and reviewing digi tal evidence and electronic communi cations, verifying how materials are (or were) obtained, and specifying how they can be accessed and used, within the requirements of any applicable state or federal laws.
September 2022 Dallas Bar Association l Headnotes 25 We believe the practice of law does NOT have to suck. We focus on empowering people to divorce with hope, not destruction. And we’re home for dinner. Sound too good to be true? Think again. We are building a team for success at work and in life. • Over 90% of our team works remotely or hybrid-remotely • We fiercely protect our collaborative, connected culture • We heavily invest in our team members’ professional and personal growth • We achieve steady growth year over year, with 400% growth in the last 3 years • We empower our team, encouraging mentorship and promotion from within We value our clients’ families. We also value our team members’ commitment to their families. It is possible to have a rewarding, successful, and meaningful career while also being present for your family. We’re doing it. Lawyers who love working at our firm are people who: • Are driven by exceptional client service • Are creative problem solvers • Are dedicated to continually refining their own legal tool box • Empower themselves and those around them • Thrive in a collaborative environment If this is you, join us. HargraveFamilyLaw.com @DivorceDFW @HargraveFamilyLaw HargraveFamilyLaw
Out of Texas’s 254 counties, Dallas is one of only two fortunate enough to have a specialized court dedicated to children in care. The Child Protec tion and Permanency Court in Dal las launched in 2019 with the goal of helping youth in the foster care system to achieve positive outcomes as they exitSelectedcare. to preside over the CPPC, Judge Delia Gonzales left behind a long career in private practice to focus on helping children in care.
A teenager whose case was referred to the CPPC in 2019 shares his experi ence: “It’s weird to know a judge who really cares what happens to me,” John* said. “She always remembers me—even little things about me. I can actually talk to her about my problems.”
How to Help The Permanency Court needs more attorneys to assist the children in care. Attorneys who practice immigra tion, probate, public benefits, personal injury, education, and mental health law are especially needed to volunteer their expertise. Email Judge Gonzales if you are willing to help - delia.gonza les@txcourts.gov. You can also donate to the court through Friends Investing in Foster Kids – Venmo @careforkids.
BY SAEDRA PINKERTON
Judge Gonzales recently partnered with the Texas Department of Pub lic Safety to provide a one-stop clinic where 30 teens received state ID cards. “This event was a year in the mak ing,” Judge Gonzales said. “I wasn’t prepared for how proud the kids felt. They came out beaming and saying ‘Look, Judge, I’m legit now!’” “One thing we do is help fam ily members who need extra financial assistance to get their permanency done—things like getting fire extin guishers, smoke detectors, and paying for fingerprints,” Judge Gonzales said. “We helped one family make a car pay ment and assisted another with pay ing their rent so they could have extra money to buy Christmas presents— giving that family the integrity and pride of providing gifts for the chil dren. We also get laptops for all gradu ating seniors and find resources to help youth participate in normalcy activi ties in addition to specialized thera peutic services they may need.”
The CPPC’s work is living up to the goals set by Judge Callahan and others at its“Theseinception.children present very com plex issues and time demands on the court that must be dealt with in such a way that the Family District Court system is not up to the task,” said Judge Callahan. “I hope that the family judges who have yet to use the ser vices of the Permanency Court will reconsider their position. The amount of time this specialized court devotes to these children creates a fertile envi ronment for a prosperous future, cre ates a bond between that child and the Court, and validates for these children every day that they are loved, worthy, and most importantly, seen.”
The Permanency Court partners with community groups such as Com munity Partners, Lions Club, Kiwanis, and can accept donations through a 501(c)(3), Friends Investing in Fos ter Kids. These organizations donate everything, from journals and stuffed animals to money, for caregivers in need of financial assistance. Judge Gonzales says that “every child who walks into the Permanency Court leaves with something and knows they are heard. We give monogrammed backpacks for youth who are adopted, regardless of age, and laptops for youth graduating and aging out of care.”
Focus Family Law DAY OF DSERVICE AY OF SERVICE S A T U R D A Y , S E P T E M B E R 2 S4 A T U R D A Y , S E P T E M B E R 2 4 DBA COMMUNITY INVOLVEMENT COMMITTEE Scan the QR code to volunteer for service projects at North Texas Food Bank Distribution Center Pack a Box, Salvation Army Organic Gardening, or Habit for Humanity. www.dallasbar.org/careercenter Here are some simple tips on how to diversify yourself from the others: 1. Add your objective in the title 2. Add your LinkedIn, Twitter and Facebook links so employers can see your personality 3. Add more accomplishments to show your strengths Thousands of top employers could be looking at your resume right now. The first way to stand out from the other candidates on the DBA Career Center is to update your resume to show the employers why you’re the one they’re looking for. Get resumeUpdatenoticed!youronthe DBA CenterCareertoday! 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.
*all names changed. HN Saedra Pinkerton, of Turton & Pinkerton, can be reached at saedra@turtonpinkerton.com.
26 Headnotes l Dallas Bar Association September 2022
“I knew that Delia had the experi ence, expertise, talent, tenacity and intelligence for this job,” Judge Tena Callahan , then-presiding judge over the family courts, said. “What I was not prepared for was her heart; the heart she gives to the job and that she shows the children who are in her Court. They see a woman of vast intel ligence who is driven; driven to seek justice for these children and for her community. I am humbled to know her and most thankful for her service to ourWithcommunity.”afocus solely on kids in care, the Court streamlines services and com munication, bringing together all the moving parts in the child’s life (CPS, CASA, Assistant District Attorney, parents, caregivers, etc.). Unlike tradi tional courts, the CPPC is positioned to offer personalized assistance and help kids overcome barriers to independence.
Dallas Specialty Court Puts Foster Youth First
September 2022 Dallas Bar Association l Headnotes 27
BY CHRIS MEUSE
Did You Know? Members can gain exposure through speaking and opportunitieswritingorDBAmemberscanbelicensedinANYstate.NotjustTexas. Over 600 CLE programs annually plus 15 free hours of On-DemandCLEforDBAmembers. onlyLRScanmembersDBAjointhepanelfor$100peryear–Lessthan$9permonth!monthly,downbrokenWhen a membershipDBA is only $9 - $20 per license(dependentmonth.ondate) theircanMembersdevelopcareersandleadershipskillsthroughspeciallyfocusedprograms. Best colleagues!Bringdowntown.buffetlunchyour theirattorneysisandCoachingmentoringofferedtolaunchingownpractices.CommitteeservingasaDBAorSectionofficer.Watchformore“DBAFacts”inDBAOnlineeveryThursday. Y o u r 2 0 2 3 d u e s s t a t e m e n t s w i l l a r r i v e s o o n a n d w e a s k t h a t y o u c o n s i d e r r e n e w i n g a s a S u s t a i n i n g M e m b e r ( $ 5 3 5 ) . Y o u r c o n t r i b u t i o n a t t h e S u s t a i n i
What’s Required When Children Resist or Refuse Possession Focus Family Law
“But I can’t make them go!” some thing every family law practitioner has heard at least once. When chil dren resist spending time with one parent, it can put the other parent in hot water before the family court. So, what is required of parents, and why do families find themselves in situations where children are resisting or refusing to spend time with a parent? Children may resist a parent’s phys ical custody for a number of reasons, and their resistance can vary greatly in severity. Although intentional alien ation is often alleged, a child pushing back on a parent’s access does not, by itself, mean a child is being “alienated” by the parent the child wishes to be with.As detailed in Joan B. Kelly and Janet R. Johnston’s work on paren tal alienation, The Alienated Child: A Reformulation of Parental Alienation Syndrome , and other similar studies, children resist contact with a parent for normal, realistic, or developmental reasons that have nothing to do with a favored parent’s actions. These rea sons could include the age of the child, a desire to be with the parent of the same sex, separation anxiety, accom modation preferences, contrasting parenting styles, the rejected parent’s own actions or inactions, or the child’s con cern for a fragile parent. However, a parent can knowingly or unknowingly drive a wedge between the other parent and child. Such actions can include badmouthing the other parent, limiting the other par ent’s communication with the child, withholding access, manipulating a child, blurring boundaries between parent and child roles, creating unhealthy alliances, and more. When a parent behaves in one of these ways, it can erode a child’s relationship with the other parent, to the point that a child may refuse to spend time with the rejected parent. When a child refuses one parent’s access, a lawsuit to enforce a posses sion order can arise. Thus, a parent under a requirement to transfer posses sion must be aware of his or her indi vidual duties in turning the child over in accordance with court orders. Rami fications for failure to abide by a possession order could include fines, attor ney’s fees, make-up time to the other parent, grounds for modification, con tempt, and jailtime. A contempt conviction in a pos session proceeding requires, among other things, proof beyond a reason able doubt that one parent willfully violated the possession order. When children are the ones refusing posses sion, parents facing an enforcement suit will often point to the required element of “willful intent” in assert ing a defense of involuntary inability to comply with the court order. For if the child will not go, “how could I comply?” Applying this defense, Texas appellate courts have split on what is a “willful violation” of a possession order. Some courts have held that only overt or covert violations, such as actively discouraging or impeding visi tation with other parent, are sufficient to find contempt. Other courts have held parents in contempt for mere passive violations, for example, when the parent fails to insist that a child go despite the parent’s ability to compel compliance.Whatisclear is that a child’s prefer ence alone does not control the issue. There is no legal authority that grants a child complete discretion over possession by a parent. If a child’s prefer ence were taken at face value alone, it would neuter the court’s ability to enforce the state’s #1 public policy in assuring that children will have fre quent and continuing contact with parents who have shown the ability to act in the best interest of the child. When presented with claims of inability to comply, trial courts will typically analyze case circumstances as a whole versus solely based on the child’s resistance. The record unfortu nately often reflects a history of games manship or raises questions about wit nesses’ credibility and self-interest. Thus, it is imperative that parents comply strictly and fully with their duties to surrender and deliver the child to avoid contempt. If a parent has a child who is resist ing change of parental possession, that parent should self-evaluate to deter mine if he or she is contributing to this dynamic. Parents should actively encourage the child’s relationship with the other parent, while being sure not to interrogate the child about time spent with the other or guilt trip the child by instilling how much the child will be missed when gone. Finally, a parent should openly and actively communicate with the rejected parent about the child’s resis tance, engage the help of family and friends, employ professionals, or seek family therapy. If the problem persists, consider filing a suit to modify the possession order, as it is always better to seek per mission from the court rather than for giveness.
28 Headnotes l Dallas Bar Association September 2022
HN Chris Meuse is a shareholder at KoonsFuller, P.C. and can be reached at cmeuse@koonsfuller.com.
On August 10, the DBA presented a DBA Living Legends webinar featuring Beverly Godbey, of Amy Stewart PC, who was interviewed by Mauri Hinterlong, HEYCO Energy Group, Inc., and DBA Living Legends n g M e m b e r l e v e l w i l l h e l p u s c o n t i n u e t h e e s s e n t i a l u p k e e p n e e d e d t o p r e s e r v e o u r b e a u t i f u l b u i l d i n g a s t h e p r e m i e r e b a r h e a d q u a r t e r s i n t h e n a t i o n T h a n k y o u f o r y o u r s u p p o r t E L P P R E S E R V E O U R H E A D Q U A R T E R S : B E C O M E A S U S T A I N I N G M E M B E R A l l S u s t a i n i n g M e m b e r s w i l l b e p r o m i n e n t l y r e c o g n i z e d i n H e a d n o t e s a n d a t o u r A n n u a l M e e t i n g
H
September 2022 Dallas Bar Association l Headnotes 29 FAMILY LAW IS NOT ONLY WHAT WE DO. IT’S ALL WE DO. At KoonsFuller, we offer our clients a level of legal representation and a range of resources that are unmatched by any other family law firm in the Dallas area. We have an office with nine experienced attorneys—five of whom are board certified in family law by the Texas Board of Legal Specialization—that has been established in Dallas for almost twenty-five years. Our attorneys, who are no strangers to the Dallas County and Collin County courts, are experienced and equipped to handle estates of all sizes and all kinds of custody issues. Whether your case calls for informal negotiations, mediation, collaborative law, or court proceedings, KoonsFuller’s Dallas office is who you need in your corner. To learn more about KoonsFuller, please visit koonsfuller.com KOONSFULLER: DIVORCE, CHILD CUSTODY, POST-DIVORCE MODIFICATIONS, CHILD SUPPORT, MARITAL PROPERTY AGREEMENTS, ENFORCEMENTS, GRANDPARENT’S RIGHTS, PATERNITY, COLLABORATIVE LAW, AND APPEALS As recognized among Tier 1 U.S. News – Best Lawyers® “Best Law Firms” in Dallas/Fort Worth for Family Law by U.S. News & World Report L.P. DALLAS** | 1717 McKinney Avenue, Suite 1500 | Dallas, Texas 75202 | 214.871.2727 DENTON | 320 West Eagle Drive, Suite 200 | Denton, Texas 76201 | 940.442.6677 PLANO | 5700 W. Plano Parkway, Suite 2200 | Plano, Texas 75093 | 972.769.2727 SOUTHLAKE | 550 Reserve Street, Suite 450 | Southlake, Texas 76092 | 817.481.2710 *Board certified in family law by the Texas Board of Legal Specialization. **Principal office. KOONSFULLER DALLAS TEAM Left to Right: Lindsey Vanden Eykel, Justin Whiddon, Taylor Joeckel, Fred Adams,* Ike Vanden Eykel,* Liz Porter,* Chris Meuse,* Laura S. Hayes,* and Lauren Shaw
30 Headnotes l Dallas Bar Association September 2022
In In re J.J., __ S.W.3d __, No. 06-2200016-CV, 2022 WL 1787337 (Tex. App.—Texarkana June 2, 2022, no pet. h.), one attorney was initially appointed to represent both parents, who were separated. When the Texas Department of Family Protective Services questioned whether it was permissible for both parents to have the same attorney, the trial court reasoned that it was acceptable because both parents were “rowing the same boat,” and the parents’ attorney assured the court he would inform the court if any conflict arose. Additionally, the mother and the father both consented to the dual Unfortunately,representation.notlong after that hear ing a conflict arose. The appointed attorney withdrew from representing the mother, and a new attorney was appointed to represent her. The original appointed attorney continued to represent the father. Subse quently, the mother signed an affidavit vol untarily relinquishing her parental rights, and after a trial the court terminated the father’s parental rights. Allegations of ineffectiveness must be firmly founded in the record. When an ineffective assistance of counsel claim is raised for the first time on appeal, the complaining party must show that the counsel’s conduct fell below an objectively reasonable stan dard of Theperformance.fatherargued for the first time on appeal that he received ineffective assis tance of counsel because the original appointed attorney should not have con tinued to represent him after the conflict arose. The Texas Disciplinary Rules of Professional Conduct prohibit “a lawyer who has formerly represented a client in a matter” from “represent[ing] another per son in a matter adverse to the former client … if the representation in reasonable probability will involve a violation of [the Rule prohibiting disclosing a client’s confi dential information]; or … if it is the same or a substantially related matter,” “[w]ithout prior consent.” Here, because the mother consented to the attorney’s representation of the father, this Rule did not preclude the representation.Moreover, the father was required to show that his counsel actively represented conflicting interests. The record showed that despite the mother’s voluntary relin quishment, she still wished for father to retain his parental rights. Thus, the moth er’s and the father’s rights were aligned, and father’s counsel’s withdrawal was unneces sary.In In re Marriage of Pratz, No. 12-2000187-CV, 2021 WL 6061779 (Tex. App.—Tyler 2021, pet. denied) (mem. op.), an attorney (“Wife’s attorney”) appealed an award of sanctions against her after representing the wife in a divorce proattorneys, who responded that service was improper. Wife’s attorney told Girlfriend’s attorneys they would not have to appear if they provided the girlfriend’s address, but Girlfriend’s attorneys refused to disclose that information. Wife’s attorney accused Girlfriend’s attorneys of being evasive and of allegedly violating the Penal Code. Wife’s attorney tried again and issued another subpoena to one of Girlfriend’s attorneys. Girlfriend’s attorney responded that service was still improper and advised Wife’s attorney that Girlfriend’s attorneys did not represent the girlfriend in the wife’s divorce suit. Eventually, Wife’s attorney was able to personally serve the girlfriend with a subpoena.Onthe motion of one of Girlfriend’s attorneys, the court granted sanctions against Wife’s attorney finding the initial subpoena on Girlfriend’s attorneys was groundless and brought for purposes of harassment.Wife’sattorney argued that she was prohibited from contacting the girlfriend directly because the girlfriend was rep resented by counsel. However, the plain language of the Texas Disciplinary Rules of Professional Conduct prohibit a lawyer from communicating with another person if the lawyer knows the person has legal counsel in that matter. Thus, Wife’s attorney BY BETH M. JOHNSON
Although ineffective assistance of counsel is not typically a viable claim in civil suits, parental-rights terminations are quasi-crim inal in nature, and parents are entitled to effective assistance of counsel when counsel is appointed to represent them.
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.
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. Your support of DVAP will assist low-income people with eviction issues, family law matters, estate planning, bankruptcy filings, veterans benefits, and more. Find out more dallasvolunteerattorneyprogram.orgat
Recent Attorney Representation Issues in Family Law Column Ethics THANK YOU! To our Home Project *Sponsors! Vinson & Elkins LLP Baron and Blue Foundation Bracewell LLP Business Litigation Section Hunton Andrews Kurth Hon John C Ford Real Property Law Section $7,000 $5,000 $3,500 American Inn of Court $2,500 Underwood Law Firm P C Bankruptcy & Commercial Law Section DBA Corporate Counsel Section Clark Hill Strasburger Cokinos | Young Sara Evans Griffith Davison, P.C. Kane Russell Coleman Nixon Jach Hubbard Peckar & Abramson, P C Slates Harwell LLP Underwood Perkins PC Winstead PC $1,500 Logan PC *As of August 16, 2022 Help us reach our goal! Donate at https://donate.dallasareahabitat.org/DBA Check out the directory and legal resource guide used by Dallas attorneys! To request a copy of the new directory, pictorial@dallasbar.org.contact 2022 DBA Membership Directory Now Available!
TOGETHER, WE CAN MAKE A DIFFERENCE. After a recent parental-rights termi nation case, the father appealed, raising a claim of ineffective assistance of coun sel based on an alleged conflict of interest.
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.
32 Headnotes l Dallas Bar Association September 2022
10. Claiming “bad faith”. Disputes are based upon disagreements on facts and fairness. Even if you strongly disagree with an offer that does not mean that the offer was made in bad faith. Claiming bad faith will negatively affect your cli ent’s confidence in the mediation process. Remember, the mediator is navigating a different perception of the dispute in each room.
After mediating over 1,700 cases in the last decade, I have found that regardless of the type of case, the following things can breakdown a mediation:
11. Questioning the mediator’s role The mediator is a facilitator and the mes senger at times. Listen to the message and process it before responding. Assail ing the mediator or blaming the media tor because the other side does not accept your terms will diminish the effectiveness of the mediator to your client and may put the mediator on the defensive.
HN Suzanne H. Wooten is the Founder and Director of North Texas Litigation Solutions. She can be reached at ntxlitsol@gmail.com.
4. Taking the position that mediation is a battle. Your client may follow your lead if you have an unyielding, combat ive demeanor. Your words and your atti tude should not reflect that mediation is a battle. “Fight” mode, chest beating, or threats of trial are not persuasive. Con versely, if your client is histrionic, hysteri cal, or just stubborn, do not adopt their attitude or behavior.
12. Calling an impasse. The media tor calls the impasse or recess, not the attorneys or parties. Usually, the mediator knows the settlement limits of the parties and the mediator may still have ideas in their back pocket for settlement.
Top 12 Things That Can Breakdown a Mediation BY SUZANNE H. WOOTEN When you cannot help a prospective client, remember... • Qualified panel of lawyers in all areas of practice and most areas of town. • $20 fee to the client for a 30-minute consultation with a lawyer. • All lawyers carry professional malpractice insurance. TH E DBA L A WYER REFERRAL S ER VICE! (214) 220-7444 | w www.dallasbar.org/lawyerreferralservice Let's Keep it Social. Follow us! Facebook Instagram TLinkedIn witter Find out what's going on at #DallasBarAssoc
3. Refusing to provide information Even if you believe that your side com plied with all discovery requests and the other side did not, make sure you have access during mediation to the documents, evidence, etc. that are critical to your position. Withholding information of your client’s claims could shut down any chance of resolution. Do not put the mediator in the position of being the dis covery delivery service.
5. Disregarding the mediation boundaries. “In mediation, we can ask for any thing,” tells your client that there are no boundaries during mediation. In response, the mediator may need to bring your side down to reality. The requirement of “good faith” can be raised if you insist that the mediator assert a claim/offer that clearly has no basis in law or fact.
7. Asking the mediator’s opinion about the strength of your client’s case Not only will this remove the mediator from the role of the neutral, it violates a mediator’s ethical duty not to impose their own opinion in mediation.
8. Making an unrealistic first offer. Unrealistic first offers or counter-offers may be seen as bad faith or cause others to shut down. If an offer was made before mediation, do not begin with an offer that will be perceived as worse than your pre-mediation offer. The mediator may have to spend time working toward a dif ferent starting point to keep everyone at the table. 9. Counting concessions. Do not utter “we’ve given everything, they’ve given nothing” or “that offer is not fair”. Such negative statements can fuel unre alistic expectations. Mediation is a give and take. Neither room knows what the mediator is managing in the other room, nor what efforts the mediator has made to work toward a resolution. Focus on the progress of the negotiations and the big picture.
6. Asserting “all or nothing” or “we’ll just go to trial”. Similar to unfounded offers, digging in or falling back on entrenched positions equates to a brick wall for the mediator. Being immov able when there are legitimate moves is not productive.
1. Scheduling mediation prema turely. If a case is not ready due to out standing discovery and/or an incomplete investigation of the claims/defenses, mediation may not be effective if sched uled too early. Additionally, make sure to schedule a sufficient mediation ses sion as a short session can put pressure on the mediator to rush through the issues, giving the impression that the claims are not important enough to have time to explore. Or, it may be perceived as “checking the box” of a mediation requirement, rather than a good faith effort to settle.
2. Not preparing. “Winging” media tion can negatively impact your client’s confidence in you and the mediation process. Prior to mediation, ensure that your client understands (1) realistic set tlement options, (2) the risks if the case does not settle, and (3) the mediation process. If offers have been exchanged, provide them to the mediator prior to mediation, along with a confidential position statement.
September 2022 Dallas Bar Association l Headnotes 33
Alternative Spoliation Argument in Family Law Drug Cases Focus Family Law e Mustang Bar Law Alumni Association
Thoughts of suicide Mental health or substance use crisis, or Any other kind of emotion distress
Spoliation is defined as the act of losing, altering, or destroying evidence. In 1852, the Texas Supreme Court in Cheatham v. Riddle,8 Tex. 162, 167 (1852). held that “everything is to be pre sumed in odium spoliatoris.” Meaning that everything is to be presumed against the wrongdoer so that, to the extent possible, the innocent party is restored to where they should have been. While spoliation is normally applied to documentary and digital evidence, broadening the spec trum of applicable evidence in family law drug cases has the ability to streamline the issues in the case to a simpler resolu tion to protect the children of the suit. Family law cases are known to be vol atile due to the myriad of emotions the litigants experience before, during, and after the case. Fleeting emotions can frequently erase rational conduct and thought, and violations of interim and temporary orders during the pendency of a custody and divorce case can quickly become the norm. Add a substance use disorder (SUD) to the fray, and a recipe for violations of court orders may be a daily occurrence. The National Cen ter on Substance Abuse and Child Wel fare estimates that over sixty percent of removals by child welfare agencies in Texas were due to alcohol abuse and drug use. SUD’s are not specific only to CPS cases and are quickly becoming a trend in private custody Court-orderedcases.drug testing is used regularly in private custody cases and can 1) absolve the accused of wrongdoing, or 2) confirm the suspicion of drug use. However, the orders are useless to pro tect the children who are the subjects of the suit when the parent does not com ply with the drug testing orders. Rather than file an enforcement action to hold the noncompliant parent in contempt of court, a motion for sanctions for spolia tion of the evidence can give the case the teeth needed to protect the children of the suit. Unlike an enforcement motion that may financially sanction a party or subject the party to unlikely short-term incarceration, only a sanction against the wrongdoer can make the innocent party whole by establishing a positive test result against the wrongdoer. In order to prevail on the motion, the court must find that 1) the spoliating party had a duty to reasonably preserve evidence, and 2) the party intentionally or negligently breached that duty by fail ing to do so. Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014). A duty to preserve evidence arises when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evi dence in its possession or control will be material and relevant to that claim. Id, at 21. In this instance, the party knows that the evidence in his or her possession will be material and relevant to that claim, which is probably why they are noncom pliant. The alleged drug user is the only person who has custody and control of the evidence contained in and on his or her body because the drug testing is con ducted by samples of urine, fingernail clippings, or hair strands from the party.
988 offers 24/7 access to trained crisis counselors who can help people experiencing mental health related distress That could be: People can call or text 988 or chat 988lifeline org for themselves or if they are worried about a loved one who may need crisis support
Noncompliance with the court’s order for drug testing shows an inten tional breach of the duty to preserve the evidence because the party acted with the subjective purpose of concealing or destroying discoverable evidence. At a minimum, the destruction of the evi dence by the passage of time and normal bodily functions of the parent that erad icate the evidence contained in and on the person can establish negligent spo liation that irreparably deprives movant from any meaningful ability to present a claim.Movant must show the court that the spoliated evidence is extremely prejudi cial against movant; then establish that a lesser remedy is insufficient to restore the prejudice caused by the noncompliant party. Drug test results are either negative, positive, or inconclusive, all of which are taken at face value in family courts and are nearly indisputable with few excep tions. A lesser sanction of a presumption that the drug test results are positive is not the same as a sanction against the non compliant party of a finding of positive results for each drug in the drug testing panel requested for each date of missed testing. The judge or jury can disregard a presumption at final trial because a pre sumption takes into account the weight of evidence while a sanction of a finding of a positive test is indisputable. As the number of family law cases involving a substance use disorder contin ues to rise, it is increasingly important that the practitioner utilize all available tools to advocate for their client and seek the best interests of the children. Spoliation sanction can be one of those tools.
HN Rachel Li is the Managing Attorney at Li Family Law Group. She can be reached atrli@lifamilylaw.net.
9 8 8 S U I C I D E & C R I S I S H O T L I N E
The court’s order for the parent to sub mit to drug testing further compounds the duty to preserve the evidence through the submission of the body samples.
BY RACHEL LI
She credits her mentors for elevating her to her great heights. One piece of instru mental learning comes from a Cravath, partner she worked with early in her career, Tom Barr, who told her, “We win cases by being smarter and working harder. Neither is enough. You have to do both all the time.”
of run ning
Name Your Firm
Whether you are starting off on your own or with a partner, there are a variety of possible naming scenarios for your busi ness. It is important to remember most states do not allow lawyers to operate under a trade name, like “American Lawyers.” Generally, the name of an owner or part ner must be included in the title of the firm. if your state requires to establish firm as a business entity which type of decision needs to know how much income will be required over a given period of time to successfully cover both per sonal budgetary needs and the costs a Many studies have shown that, if you are correctly priced in local market, an income of four hours per business day should be sufficient to successfully operate a law office. It most helpful to consider these are a few different ways to deter mine your hourly rate as a new lawyer. Many attorneys will put together a budget based on monthly expenses. Divide your total expenses by the amount of billable hours you can reasonably work each week to get a baseline of the effective rate you will charge for your services. Of course, not all hours will be considered billable hours. Every legal pro fessional is tasked with managing collections and other administrative duties that you may want to factor in when determining your rate.
For more information on LawPay ben efits as a Dallas Bar Association member, log on to www.lawpay.com/dallasbar.
Adopt Secure Legal Software
Of course, your law practice cannot be successful if you are not getting paid regu larly and on time. That is why it is impor tant to choose a payment processor that prioritizes your needs and ensures your payments are reliable and secure. It is also best to use an online payment processor designed specifically for the legal industry. As you process transactions, your fees will be properly separated between your trust and operating accounts and deposited accordingly. You will also avoid the risk of third-party transactions debiting from your IOLTA account.
is
HN Emily Burns is a Senior Content Writer at LawPay.
A Checklist for Going Off on Your Own BY EMILY BURNS
practice.
your
Another mentor, Ted Wells at Paul Weiss, taught her the importance of authenticity. He taught Moyé that she need not advocate like a man to succeed—but to present in her own style while maintaining her own culturalDuringbonds.trial, Moyé learned it is impor tant to motivate and inspire rather than just give orders. “Trial should also be fun,” Moyé said. And while she may have fun, Moyé ‘s trusted trial ritual is simply “super-prepara tion.” During trial, she gets very little sleep, often dreaming of her case and waking up to jot down notes for the next day. As Trial Lawyer of the Year, Moyé is wellrespected in the Dallas legal community. Kim Askew, Moyé ‘s friend in the profes sion for years, notes Moyé is “an exceptional lawyer and person.” The DLA Piper part ner says Moyé, “built a stellar law practice in a space that had been long dominated by men. While rising to the top of the profes sion, she raised beautiful and accomplished daughters. She sets an example for all of us and deserves this great honor.” Spoken like a true trial lawyer, Moyé says, “Candor, authenticity, honesty, and preparation—those are the things that help you win trial and those are things that cli ents ultimately Congratulationsappreciate.”toVeronica Moyé, the Dallas Bar Association Trial Lawyer of the Year. HN Gracen Daniel is a commercial and intellectual property litigator at Griffith Barbee PLLC. She can be reached at gracen.daniel@ griffithbarbee.com.
and
as to whether you will be better protected by having professional liability insurance in the event of a claim. Odds are, your clients will likely be better protected as well. Areas of insurance include: • Professional Liability • Workers’ Compensation • Health Insurance • Property, Casualty & Cyber Insurance Calculate Costs + Expenses Every lawyer
Today’s law firms can be far more pro ductive (and profitable) with modern technology, such as timekeeping, pay ment processing, and practice manage ment software solutions. These are a few different types of software you may want to
variables: • Hourly rate/daily income • Anticipated overhead • Personal budget/living costs • Work schedule/bandwidth Establish Your Hourly Rate There
consider: •WordProcessing•TimeandBilling•ConflictsChecking•CaseManagement•AccountingSystem
Starting your own business can be simul taneously exciting and nerve-racking. It requires careful planning and commitment to get off to a good start. There’s often a lot more work to manage—you may have to take more financial risks, work longer hours, and rely on an unsteady income at first. However, the prospect of being your own boss, setting your own hours, building a busi ness, and carving your own path in the legal world has a lot of appeal for many attorneys and can be extremely rewarding. In this arti cle, we will walk you step by step through some of the essential steps to launch a suc cessful law firm in the Digital Age: Choose Your Practice Area When choosing an area of law to prac tice, consider both your ideal work envi ronment and what will provide you with a rewarding and long-lasting career. Whenever possible, explore a field of law which is underrepresented.
CONTINUED FROM PAGE
34 Headnotes l Dallas Bar Association September 2022 with. Watching them go through the pro cess is very satisfying,” Moyé said.
Trial Lawyer of the Year: Veronica Moyé 1
Choose the Right Payment Processor
Obtain the Necessary Licenses and Permits Determine
From the Bench BRETT BUSBY Supreme Court of Texas Why did you decide to become a judge? I’m a third-generation Eagle Scout, and my parents taught me to find opportunities to be useful and serve others. As a law clerk to Justices Byron White and John Paul Stevens of the U.S. Supreme Court and Judge Gerald Tjoflat of the U.S. Eleventh Circuit Court of Appeals, I became interested in judicial service. And after specializing in appeals for twelve years, I gained experience that I could put to work for the people of Texas. I also developed a firm conviction that the role of a judge is to decide the issues presented by the parties impartially according to the law and the record, not to serve as an advocate or seek a particular outcome. Why do you participate in bar programs? I enjoy participating in many bar programs at the local, state, and national level because they provide excellent opportunities to learn and improve our skills, pro mote professionalism, serve our community, and get to know our fellow attorneys. What are you currently reading? “Who Decides? States as Laboratories of Constitutional Experimentation,” by Judge Jeff Sutton Fun fact about me: I have played the violin since the age of three.
entity you qualify for: 1. Sole Proprietorship 2. General Partnership 3. Limited Liability Partnership 4. Professional Service Corporation/Pro fessional Association 5. Professional Limited Liability Com pany Open Bank + Trust Accounts Make sure that your business’s accounts have been correctly set up to start accept ing payments. This includes ensuring you have lined up an attorney trust account and operating account and securing malpractice insurance, if that is required, such as: • Operating Account • IOLTA • Non-IOLTA Trust Account Sign Up for Business Insurance Protect your firm’s success by verifying that you are properly insured. Check your own state’s rules on professional liability coverage. Depending on your area of prac tice, you should make a reasonable
your
their
you
Often, the value of a spouse’s busi ness interest is the most hotly contested issue in a divorce. When a court divides the community estate, it generally does so with reference to the value of each asset and debt comprising the estate. It is not required that the division be completely equal, but courts often end up awarding spouses equal or near-equal portions of the community estate. For this reason, the value of a business interest is para mount. Some business owners attempt to manage the process by which their inter est is valued at divorce through a buysell agreement in which the non-owner spouse signs a consent. These types of agreements are generally enforceable. However, if the non-owner spouse did not consent to the terms of the agreement, then the non-owner spouse may have claims against the owner spouse such as breach of fiduciary duty.
In many counties in Texas, divorce courts impose “Standing Orders” that go into effect immediately upon the filing of a divorce suit. These Standing Orders impose numerous restrictions on both spouses, including the ability to conduct their busi ness. The purpose of the Standing Orders is generally to preserve the status quo and to protect the parties’ property. This can often impair a business owner’s right to make deci sions to navigate changing economic conditions, unless they want to risk being held in contempt for violating the Standing Orders. While a business may need to deviate from its usual business activities, these Standing Orders need to be considered before acting contrary to the status quo.
Adam Mundt is a Senior Associate at McClure Law Group, PC, and a licensed CPA. He can be reached at amundt@mcclure-lawgroup. com. Spencer Page is an Associate at the firm and can be reached at spage@mcclure-lawgroup.com.
September 2022 Dallas Bar Association l Headnotes 35 F A M I L Y L A W L I T I G A T I O N E X C E L L E N C E I N D U F F E E + E I T Z E N F A M I L Y L A W | D A L L A S T X L E G A L C O M | 2 1 4 4 1 6 9 0 1 0 D U F F E E + E I T Z E N M a r i a n n e H o w l a n d V a n e s s a S h e p p a r d B r i a n D u r s t J o d i B e n d e r M a r i l e a W L e w i s L i s a D u f f e e M e l i n d a E i t z e n T H u n t e r L e w i s G e o r g e S h a k e B r i t t n e y B r a m l e t t J o s h u a D o s s e y
Sale of, or Inability to Sell, the Business Similarly, the Standing Orders often prevent the sale of assets owned by either spouse. This would include an ownership interest in a business. Even if the businessowner spouse receives a once-in-a-lifetime offer for their business, they face contempt of court and potential reconstitution claims if they sell the business without their spouse’s consent.Onthe other hand, a divorce court could order their business interest sold against their will simply to ensure that both spouses receive a just and right division of the com munity estate. This is similar to ordering a house, car, or other asset sold and the pro ceeds split. This is an uncommon and severe remedy but sometimes becomes the reality.
Characterization
While divorce is a tumultuous process for nearly everyone, business owners stand in a unique position in that their livelihood—the business they built—is simulta neously a source of their income and an asset often subject to division. During divorce, business owners face strict limitations on their actions and are forced to make difficult decisions that could impact their ability to support themselves for years to come. With so much at stake, effective legal representation is paramount to assuage business own ers’ concerns and protect their livelihood.
Dragging the Business into Litigation
Business Valuations
Hamstrung ManagementBusiness
However, if the interest is community property, the business-owner spouse could find their interest split, sold off, or overval ued. Some spouses unwittingly contribute separate property assets into a community property business and cause the separate assets to lose their character.
Characterization refers to whether an asset is considered separate or community property. While this is an issue with any asset, the importance of characterization is highlighted with ownership interests in businesses, which are often one of the largest assets owned by either spouse. If the business-owner spouse’s interest is deemed separate property, then they will walk away from the divorce with the interest intact.
A final concern that many business owners have during divorce is the risk that their business becomes entangled in the divorce litigation. It is not uncom mon that the non-owning spouse may allege civil causes of action against the business itself, such as fraud, breach of fiduciary duty, etc. If that is the case, the business must now defend itself against these claims, which can be costly for the business. Furthermore, the business-owner spouse then must contend with the pos sibility that a judgment may be entered against their business. While a divorce may seem like a business-owner’s worst nightmare, many of these concerns can be minimized or avoided altogether with proper planning and effective counsel. In our experience, we often see business owners taking the steps necessary to achieve a favorable result and come out the other side unscathed. So, although these five concerns should be in the back of every business-owning spouse’s mind, prudent attorneys can help prepare a business owner to either avoid or contend with these concerns.
HN
BY SPENCER PAGE AND ADAM MUNDT Top 5 Concerns for Business Owners During Divorce Focus Family Law Classif Ads Availa Onlin O f f i c e S p a c e , P o s i t P o s i t i o n s A v a i l a b l e , S e r v i c e s C o n t a c t J u d i S m a l l i n g j s m a l l i n g @ d a l l a s b a r o r g 2 1 4 2 2 0 7 4 5 2
