Dallas Bar Association
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October 2021 Volume 46 Number 10
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Focus | ADR/Collaborative Law
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Jerry and Sherri Alexander Support Access to Justice BY MICHELLE ALDEN
Jerry and Sherri Alexander have stepped forward to support this year’s Equal Access to Justice Campaign, with a generous contribution of $25,500. The Alexanders have a long and distinguished history of contributing to the Campaign. Including this gift, they have donated more than $189,000 to legal aid for low-income people in Dallas since 2006. The Equal Access to Justice Campaign is the annual fundraising campaign which supports the activities of the Dallas Volunteer Attorney Program (DVAP). Jerry Alexander practices complex business litigation at Passman & Jones, served as the 107th President of the Dallas Bar Association, and was Chair of the Board of the State Bar of Texas in 20192020. Sherri Alexander serves as Chair of the Health Care Litigation practice at Polsinelli. Together, the Alexanders believe in doing things that benefit the Dallas community. They also believe contributing to DVAP benefits the Dallas community in many different ways. Low-income Dallasites are always challenged to make ends meet, but they have faced the additional hardships of the pan-
Focus
Jerry and Sherri Alexander
demic and the winter storm this past year. Phoebe is a hardworking woman who recently came to DVAP for help, after being laid off due to the COVID-19 pandemic and struggling to pay her bills with her unemployment benefits. She was sued
for a credit card debt of $1,916, plus attorneys’ fees and court costs. She applied for help, and DVAP found volunteer attorney Jason Tyra to assist her in negotiating with the bank. Trial was set for February, and then postponed until June due to Winter
Storm Uri. With Jason’s help, Phoebe won at trial and was not required to pay anything towards the debt. As Jason said, “My client attempted in good faith to work out an arrangement with her lender before seeking help from DVAP, but the lender would not even speak with her unless she retained an attorney. The debt collectors in these cases tend to be aggressive to the point of sloppiness, with the result that some defendants ultimately are forced to pay debts that they don’t owe. I believe it is reasonable to expect citizens to pay their bills, but I also believe that lenders that use the court system ought to be required to do so in a legally sound manner. Phoebe was entitled to due process, and the case fell apart when the plaintiff was not able to meet that standard.” Relieved of this debt, Phoebe looks hopefully to the future. The reality is, helping people like Phoebe requires financial support. Jerry stated, “Dallas is a city that is growing incredibly quickly, even in these times. With that growth and the difficulties that the ‘start and stop’ COVID environment has caused comes the growing need for continued on page 12
ADR/Collaborative Law
Collaborative Practice and Civil Disputes BY DIANNE E. CARLSON
Your client calls about a dispute with its best supplier over a sudden, unexpected price change caused by distribution challenges arising from COVID-19 business interruptions. The two parties are at an impasse over these price changes and distribution challenges, not to mention the impact of Force Majeure clauses. They need help resolving their dispute. What options are available for your client? Your litigation team is at the ready with hammers held high. Mediators are ready to extract settlement based on threatened legal theories. But what your client really wants is to sit down with the supplier and work this out, face to face. Both sides have worked in the business long enough to realize they prefer
to stay together. Experience suggests that hammering out a solution in litigation usually means the relationship gets hammered. Enter civil collaborative law. Collaborative law is a structured way of engaging in open, candid discussions with opposing parties that can lead to both resolution of a dispute and reconciliation between the parties. Long tested on the battlefield of divorce and family law, collaborative law is making its way into the arsenal of the wellprepared business lawyer. Through the collaborative process, any civil dispute involving parties who want to remain in an agreeable relationship can be confidentially and creatively resolved with guidance from specially trained counsel. In Texas, collaborative law in civil settings is conducted by contract based on the
principles established by the Uniform Collaborative Law Act and best practices. The parties play a central role in making the collaborative process successful. The parties, their counsel, and any shared neutral experts are signatories to the Participation Agreement (PA), which outlines important distinctions between this process and other traditional settlement processes. The most important distinction between this process and other forms of settlement discussions is the attitude of both the parties and counsel. The PA includes a commitment from all parties and their counsel to resolve the dispute within the collaborative process. Importantly, the attorneys for each party must agree to withdraw from representing the client should the process fail to come to a resolution and the par-
ties choose to engage in litigation. These measures ensure that thoughts and strategies essential to litigation do not hinder or derail the commitment to resolution. No one is listening for an admission or the production of the “smoking gun.” The parties contractually agree to full and voluntary disclosure, negating the need for formal discovery. Documents exchanged, information shared, and statements given are all made in the context of collaborating on a solution, not for any other purpose. The process offers a number of financial incentives when compared with traditional litigation. If experts are needed to help understand technical issues, the cost can be shared and a single expert will be partycontinued on page 18
Inside 8 When Loyalty and Collaborative Transparency Collide 12 Overcoming the Sunk Cost Fallacy and Settlement Dynamics 24 Entrepreneurs in Community Lawyering Class of 2021 29 Using C.O.V.I.D. to Increase Chances of Settling Mediations
RENEW ONLINE MID-OCTOBER
You may renew your 2022 DBA Dues online beginning October 15, 2021! Go to dallasbar.org and click on the My DBA button to log in and Renew online or print the 2021 Renewal Dues Invoice to mail in with payment. Your 2022 DBA DUES must be paid by December 31, 2021 in order to continue receiving ALL your member benefits. Thank you for your support of the Dallas Bar Association!