Dallas Bar Association
HEADNOTES July 2014 Volume 39 Number 7
DBA Trial Lawyer of the Year: Tom Melsheimer get too high or too low.” In addition to Miki, Mr. Melsheimer attributes his success to following “I’m very competitive and like to win. If you two values: looking to work with “people who are not passionate about winning—and by that inspire me” and pursuing the “the gift of insecuI don’t mean trivial scorekeeping, but turning rity” (which he borrowed from the title of former your client’s situation into a success for them— federal judge and special prosecutor Lawrence then I don’t know how you go to work everyday,” Walsh’s autobiography). Mr. Melsheimer was proud to revealed Thomas M. Melsheimer, have had “the good fortune to work the Managing Principal of Fish & with good people.” After clerking Richardson’s Dallas office and this for the Honorable Homer Thornyear’s recipient of the Dallas Bar berry on the Fifth Circuit, Tom Association’s Trial Lawyer of the cut his teeth at Akin Gump before Year. It is clear from his winning joining the U.S. Attorneys’ office. record and praise from colleagues, Those experiences were formaadversaries and jurists alike that tive and taught Tom about being a Tom brings passion, skill and suctrial lawyer. He learns from others, cess with him everyday. though counsels young attorneys “He’s a superlative lawyer, truly that “you can’t be an impressionthe whole package,” remarked ist—you have to learn from the best Judge Craig Smith, who presides but make it your own.” Eventually, over the 192nd District Court of you “have to be comfortable in your Dallas County. Judge Smith, who own skin” and employ what works not only has seen Mr. Melsheimer Thomas M. Melsheimer in action from the bench, but faced him as an for you. Judge Smith agreed, noting that Mr. adversary years before, calls Mr. Melsheimer “the Melsheimer has earned the loyalty and allegiance best oral advocate I know or have seen—he has of a “great team of attorneys that surround him the voice of a stage actor and mixes humor and and have helped him become a great lawyer.” The gift of insecurity provides Mr. Melsheimer wit while being great on his feet.” Baker Botts L.L.P.’s Rod Phelan agrees and summed up Tom with that sense of purpose that pushes him to as “the complete package:” “He is virtually a work harder and do more. He notes that gift unique combination: exceptionally bright, artic- cannot become all consuming—at some point ulate, passionate, earnest and likeable. He has the advocate must have the confidence and selfassuredness to take action—but it must drive the good judgment, and he works like hell.” Plus, Judge Smith noted, Mr. Melsheimer is lawyer to persevere. Arguably the best example provocative with his very convincing arguments. of Mr. Melsheimer following this approach came A perfect example is likely the most viral motion long before the Dallas native left town to earn to dismiss ever: Mr. Melsheimer’s famous inclu- his bachelors from Notre Dame and his law sion of a “true and correct copy of one of many degree from the University of Texas. In elemenvictory celebrations” of the Dallas Mavericks tary school, Tom stuttered. Though he is quick Championship in support of a successful motion to point out his situation was not as profound as to dismiss a lawsuit alleging Mav’s owner Mark depicted in The King’s Speech, he pursued speech and debate at Jesuit in part to overcome the chalCuban mismanaged the NBA franchise. It is that sort of lawyering that makes Mr. lenge. Were he not regaling juries, convincing Melsheimer one of the most sought out advocates around and has secured a track record of judges, challenging opposing counsel, and leadphenomenal jury verdicts for his clients, includ- ing his Fish & Richardson team, Mr. Melsheimer ing numerous cases cited by the National Law likely would still be behind a podium, teaching. Journal as among the nation’s top cases, two nine- He notes that he has enjoyed teaching law school figure jury verdicts as a plaintiff, and last fall’s classes as it, like practicing law, offers “lots of insider trading defense for Mark Cuban against feedback and personal interaction.” Fortunately for our Bar, Mr. Melsheimer has the SEC. “Simply put, Tom Melsheimer is, without a doubt, the best trial lawyer I have ever had no plans to step away. In fact, “Tom’s main probthe privilege of trying a case with,” effused Juan- lem may be that he’s peaking too soon,” joked ita Brooks, a San Diego-based partner of Tom’s at Judge Smith after learning that Mr. Melsheimer Fish & Richardson, “It doesn’t matter what the is the youngest recipient of this award. “Tom is a case might be, from complex patent litigation to worthy recipient of the Trial Lawyer of the Year securities fraud to mass tort, Tom handles all of Award not only because of his record of excelthe issues with his classic charm, wit and intel- lence in the courtroom, but also because of his ligence. Juries love him because he’s genuine and dedication to the craft of being a great advocate has a unique ability to connect with people from and his desire to follow in and continue the long line of great Dallas trial lawyers,” added Dallas all walks of life.” Mr. Melsheimer admits that his wife of over Bar Association President and Jackson Walker HN 30 years, Miki, is his unsung hero and secret litigator Scott McElhaney. weapon. As an accomplished playwright and director, “she provides insight and perspective.” Jared M. Slade litigates for Alston & Bird LLP, serves as Co-Chair of the DBA Plus, Tom shared, “she keeps me level so I don’t Publications Committee, and can be reached at jared.slade@alston.com. by Jared M. Slade
Inside 3 A Defense Under a Liability Policy Must Be Requested 7 Civil Liability for Commercial Use of Drone Aircraft in Texas 10 Bar None XXIX: Kinky Suits 13 Cyberliability: Considerations for Mitigating Risk
Focus Tort & Insurance Practice
An Idea Whose Time Had Come On June 12, the Dallas Bar Association presented the second of a series of programs to mark the 50th anniversary of the Civil Rights Act of 1964. Author Todd Purdum spoke on his book An Idea Whose Time Had Come, which discusses the passage of the Act.
Mr. Purdum (left), DBA President Scott McElhaney (center) and Kevin Wiggins, who moderated the event.
(Left to right) Michele Wong Kraus, William Bridge, Karen McCloud, Betsy Julian, Ed Cloutman, T.J. Johnson, Laura Benitez Geisler and Mary Scott.
The 2014 DBA Membership Directory is now available in print & online. Check out the directory and legal resource guide used by Dallas attorneys! To view the Online Directory and Legal Resource & Expert Witness Guide, go to www.dallasbar.org/pictorial and login. To request a copy of the new directory, contact pictorial@dallasbar.org.
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
July Events
JULY 11-NORTH DALLAS** Noon
Jul y 2014 Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. about the broad range of opportunities in Dallas. RSVP to bavina@dallasbar.org.
FRIDAY CLINICS
“State Tax Considerations: Helping your Clients Effectively Manage Interactions with the Texas Comptroller’s Office,” Kevin Oldham. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor The Dallas Bar Foundation. RSVP to kzack@dallasbar.org.
JULY 18-BELO Noon
“Primary Procedural Differences Between Federal and State Court Rules,” Rebecca Rutherford. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
TUESDAY, JULY 1
Noon
Family Law Section “Six Shades of Spousal Relief,” Charles Pulman. (MCLE 1.00)*
Solo & Small Firm Section Topic Not Yet Available
Bench Bar Conference Committee
Criminal Justice Committee
6:00 p.m. DAYL Board of Directors Meeting
Dallas Asian American Bar Association
WEDNESDAY, JULY 2
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.
Noon
Corporate Counsel Section “The In-House Attorney’s Tech Toolbox,” Mark Stachiw, Cori Ulrich and Scott Wilson. (MCLE 1.00)* Tort & Insurance Practice Section “Nonsubscriber Cases and Arbitrations – Recent Developments,” Jerry Fazio, Clay Miller, Bryan D. Pope and Mark Stradley. (MCLE 1.00)*
Noon
DAYL Judiciary Committee
5:30 p.m. Bankruptcy & Commercial Law Section “Commercial Paper Update,” Professor Xuan-Thao Nguyen. (MCLE 1.00)*
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, JULY 3
Noon
CLE Committee
Publications Committee
DAYL Lawyers Serving Children Committee
Noon
Construction Law Section “The Economic Loss Doctrine – Still a Viable Defense in Construction Disputes?” Jeff Rusthoven. (MCLE 1.00)*
FRIDAY, JULY 4
DBA Offices Closed in Observance of Independence Day
MONDAY, JULY 7
THURSDAY, JULY 10
FRIDAY, JULY 11
No DBA Events Scheduled
TUESDAY, JULY 8 Noon
Business Litigation Section “How to Make Better Presentations—In and Out of the Courtroom,” Talmage Boston. (MCLE 1.00)*
Entertainment Committee
Morris Harrell Professionalism Committee
DAYL Lawyers Promoting Diversity
DAYL Young Partners Committee
WEDNESDAY, JULY 9
11:30 a.m. House Committee Walk Through
Friday Clinic-North Dallas** “State Tax Considerations: Helping your Clients Effectively Manage Interactions with the Texas Comptroller’s Office,” Kevin Oldham. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor The Dallas Bar Foundation. RSVP to kzack@dallasbar.org. Trial Skills Section “A Different Perspective on Trying Your Case: Tips From Top Ft. Worth Judges and Lawyers,” Marshall Searcy, Jack Strickland and Hon. Melody Wilkinson. (MCLE 1.00)* Minority Clerkship Luncheon Panelists include Tatiana Alexander, Meyling Ly, Sakina Rasheed and Elisabeth A. Wilson. Learn
DAYL Freedom Run Committee
Noon
Friday Clinic at Belo “Primary Procedural Differences Between Federal and State Court Rules,” Rebecca Rutherford. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
MONDAY, JULY 14 Noon
Alternative Dispute Resolution Section Topic Not Yet Available
Real Property Law Section “Legal Editing – a New Look at an Old Topic,” Kevin Kerr. (MCLE 1.00)*
Legal Ethics Committee “Peeling Back the Layers of Peeler vs. Hughes & Luce,” (Ethics 1.00)*
Peer Assistance Committee
Juvenile Justice Committee “Dallas County RDT/START Programs,” Brown bag lunch program held at Henry Wade Juvenile Detention Facility. (MCLE 2.00)*
TUESDAY, JULY 15 Noon
Antitrust & Trade Regulation Section Topic Not Yet Available
International Law Section “Deemed Export Controls for Foreign National Workers,” Jennifer Horvath. (MCLE 1.00)*
Community Involvement Committee
DAYL Elder Law Committee
Dallas Bar Foundation Board Meeting
WEDNESDAY, JULY 16
11:30 a.m. SOLD OUT! Inspiring Women: Humor & War Stories to Reach the Top of Your Game. Panelists: Elizabeth Daane, Beverly Bell Godbey, Hon. Marilea Lewis, Jill Louis, Hon. Irma C. Ramirez, Hon. Brenda Rhoades and Hon. Karen Gren Scholer. (Ethics 1.00)*
6:00 p.m. J.L. Turner Legal Association
Noon
FRIDAY, JULY 18
Health Law Section “Long-Term Care Workforce, Licensures Involved, CHOWs and OIG Exclusions of Certain Staff in Long-Term Care,” Richard Y. Cheng. (MCLE 1.00)* Non-Profit Law Study Group
MONDAY, JULY 21 Noon
Labor & Employment Law Section “Lost It To The Right. My Round In The U.S. Supreme Court,” Brian P. Lauten. (MCLE. 1.00)*
Senior Lawyers Committee “What It’s Like to be a Senior Lawyer, How You Feel, and What You Should be Looking Out For,” Hon. Ted Akin, John Estes,Frank Finn and Robert Vial. (MCLE 1.00)*
Pro Bono Activities Committee
TUESDAY, JULY 22 Noon
Courthouse Committee
American Immigration Lawyers Association
WEDNESDAY, JULY 23 Noon
Noon
Media Relations Committee
Minority Participation Committee
DAYL Animal Welfare Committee
Christian Legal Society
Dallas Gay & Lesbian Bar Association
3:30 p.m. DBA Board of Directors Meeting 5:30 p.m. DAYL Dinner & Dialogue. For more information, contact cherieh@dayl.com.
Sports & Entertainment Law Section “License to Lie: Exposing Corruption in the Department of Justice,” Sidney Powell. (MCLE 1.00)*
DAYL Financial Literacy 101 CLE. For more information, contact cherieh@dayl.com.
DVAP New Lawyer Luncheon. For more information contact reed-brownc@lanwt.org.
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, JULY 17
Energy Law Section “The Future of Water in Texas,” Ty Embry. (MCLE 1.00)*
THURSDAY, JULY 24 Noon
Criminal Law Section “Felony DWI Court,” Judge Tracy Holmes. (MCLE 1.00)*
Environmental Law Section “Environmental Case Law Update,” Edward Grauman. (MCLE 1.00)*
Legal History Discussion Group “Frederick Douglass’s Constitution: From Garrisonian Abolitionist to Lincoln Republican,” Prof. Paul Finkelman. (MCLE 1.00)*
Mentoring Committee
DBA Community Service Fund Board Meeting
FRIDAY, JULY 25
9:00 a.m. Christmas in July Donation Drop Off Noon
Intellectual Property Law Section “Supreme Court and Federal Circuit: A Year in Review,” Gale R. “Pete” Peterson. (MCLE 1.00)*
DAYL CLE Committee
MONDAY, JULY 28 CLE Topics Include:
Noon
Securities Section “Supreme Court Securities Litigation Update,” Thad Behrens and Richard Guiltinan. (MCLE 1.00)* DAYL Solo & Small Firm Committee
Dealing with the News Media in an Electronic Age
Tomorrow’s Lawyers: The Future of Legal Education and the Practice of Law
TUESDAY, JULY 29
State and Federal Judges’ Panels
And breakouts covering iPads at Trial, Michael Morton Act, Receivers, Ad Litem and more
6:00 p.m. Dallas Hispanic Bar Association
REGISTER NOW for the discounted EARLY BIRD RATE!
Events/Activities: Plan to Stay Friday Night! Sporting Clays, Games, Golf, Tennis, Yoga, Golf and more! More than 6 hours CLE, including 1.00 hour ethics. | Casual Attire Only!
YOUNG LAWYERS (Licensed 1-5 years): CATCH THE YOUNG LAWYER EARLY BIRD SPECIAL RATE!
www.dallasbar.org or 214-220-7403
WEDNESDAY, JULY 30 Noon
Municipal Justice Bar Association
THURSDAY, JULY 31 Noon
Collaborative Law Section Topic Not Yet Available
FRIDAY, AUGUST 1 Noon
Friday Clinic at Belo “Avoiding Legal Malpractice: Traps for the Unwary,” Randy Johnston. (Ethics 1.00)* RSVP to kzack@dallasbar.org.
Dismantling the Schools to Prison Pipeline “Turn This School Around,” Linda Cliatt-Wayman, Principal, Strawberry Mansion High School. (MCLE 1.00)* A special CLE presentation celebrating the 60th anniversary of Brown v. Board of Education.
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
Jul y 2 0 1 4
Focus
D al l as Bar A ssoci ati on l Headnotes 3
Tort & Insurance Practice
A Defense Under a Liability Policy Must Be Requested by Chris Gabriel
The issue of properly tendering coverage for a defense under a liability insurance policy is not solely pertinent to the insurance practitioner. This issue may intersect with many areas of practice and has come up so frequently that a body of jurisprudence has formed around it. The seminal case is National Union Fire Insurance v. Crocker, 246 S.W.3d 603 (Tex. 2008), which held that an insurer has no duty to defend or indemnify an insured who does not tender suit and request a defense. Crocker and its progeny hold that actual knowledge of suit is not enough to trigger an insurer’s policy duties and that the insurer has no duty to inform the insured that it may be entitled to a defense or indemnity. In fact, the insurer owes no duties to insured A unless insured A expressly requests a defense. That is true even if insured A is owed a defense under a liability policy, and the insurer is defending insured B under the policy. Most liability policies provide a duty to defend an insured against third party claims. This includes policies for commercial auto, commercial general liability, directors and officers, errors and omissions, homeowners insurance and other types of insurance covering an insured sued for its alleged negligence. An insured may have coverage for defense or indemnity under several policies for any given claim. In addition to coverage under policies taken out as the named insured, there may also be coverage as an additional insured, depending on if there is an agreement with another entity (usually a subcontractor) requiring additional insured coverage under that entity’s policy, and the policy so provides.
Learn About the Broad Range of Opportunities in Dallas at the Minority Clerkship Luncheon Friday, July 11, Noon at Belo Panelists: Tatiana Alexander, President J.L. Turner Legal Association Meyling Ly, President Dallas Association of Young Lawyers Sakina Rasheed, President Dallas Asian American Bar Association Elisabeth A. Wilson, President Dallas Hispanic Bar Association For more information or to RSVP, e-mail bavina@dallasbar.org.
Connecting Dallas Beyond the Automobile: A Roadmap of Transportation Options in Dallas Thursday, August 7, Noon at Belo Speakers: Gary Thomas, President, DART Leandre Johns, General Manager, Uber Hon. Margaret Keliher, Texas Business for Clean Air, Moderator Open to the public. | MCLE 1.00 (pending) RSVP to sevans@dallasbar.org. Sponsored by the Public Forum Committee
In either case, in order to trigger the duty to defend or indemnify, coverage must be properly tendered and a defense must be requested. Liability policies require this as a condition precedent to coverage. Though the rule in Crocker arose in a factual scenario involving an additional insured—i.e., someone provided coverage under a policy in which another party is the named insured—the Fort Worth Court of Appeals rejected the argument that the rule only applies to additional insureds. See Jenkins v. State & County Mut. Fire Ins. Co., 287 S.W.3d 891, 89798 (Tex. App.—Fort Worth 2009, pet. denied). The court held that the rule is even more pertinent to named insureds because a named insured has a duty to read the policy issued to it. The practical effect is that an insured, whether a named insured or additional insured, who fails to tender and request a defense will forfeit coverage for an otherwise covered liability claim. Because actual knowledge will not suffice to trig-
ger these duties, simply forwarding suit papers may not be enough. The cases cited above have held that a defense must specifically be requested. The reasoning is sound: it is not efficient to place the duty on the insurer to keep up with all suits filed against its insureds, nor should the insurer be forced to guess whether or not an insured seeks a defense. The insured may have its own counsel defending, may not want the insurer controlling the defense, or may not request a defense for any number of reasons. The rule dovetails with the pre-tender defense rule. That is, an insurer will not owe defense costs incurred prior to the insured tendering and requesting the defense. In other words, the duty is not retroactive. The insurer is only required to cover defense costs, if the claim is otherwise covered, from the date the defense is requested going forward. The argument is frequently put forth that the insurer must show prejudice in
order to deny paying pre-tender defense costs. However, Crocker distinguished between late notice and no notice cases. In a no notice case, even though an insurer may have notice of the suit, if the insured has not requested a defense, there is no duty to defend or indemnify. Thus, a case in which no notice is given falls under the authority of Crocker and Jenkins instead of PAJ, Inc. v. Hanover Ins. Co., 243 S.W.3d 630 (Tex. 2008), which would govern in a situation in which an insurer is denying coverage for late notice from prejudice for the entire claim, including from the date of tender forward. No matter in what area you practice, if your client is sued, your client may be owed defense or indemnity under liability policies as the named insured or as an additional insured. Be aware that these duties can be forfeited unless a defense is HN expressly requested. Chris Gabriel is an associate at Thompson, Coe, Cousins & Irons, LLP. He may be reached at cgabriel@thompsoncoe.com.
4 He a d n o t e s l D a l l a s B a r A s s o ciation
Jul y 2014
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
Pipelines Scott M. McElhaney
It might seem odd at first for a bar association to be concerned with pipelines. Some oil and gas lawyers and land use lawyers work on issues surrounding the kinds of pipelines that transport oil to refineries and natural gas to end users. Many communications lawyers are following the debate about net neutrality for what some might term the “pipelines” that carry internet traffic. But those are not the sorts of pipelines the Dallas Bar addresses. Several programs we sponsor each year deal with pipelines of a more metaphorical nature—the pipelines that operate in society and channel people towards both dangers and opportunities. I want to take this opportunity to tell you about some of these programs. One pipeline Dallas Bar members are addressing this year is one that needs to be stopped: the so-called schoolto-prison pipeline. Rutgers University professor Paul Hirschfiled has argued that “American schools increasingly define and manage the problem of student discipline through a prism of crime control.” His research suggests that a weak economy, high unemployment—especially in poor and minority communities—and strained school district budgets have combined with school disciplinary procedures and the perceptions of some school administrators in ways that turn school discipline issues into criminal justice issues. Instead of treating fighting and unruly behavior at a school as issues to be handled through detentions or suspensions, some of these incidents are turned over to the criminal justice system when it may not be entirely appropriate to do so. This practice has apparently occurred in Texas with some frequency. Teachers and principals have dealt with much student misbehavior, but some school districts have had school police handle incidents such as disruption of class or fighting by charging students with Class C misdemeanors. While Class C misdemeanors are the least serious criminal offense, a person charged with that kind of crime must appear before a county or municipal judge and can face a fine of up to $500 if found guilty. Someone who does not pay can later be arrested, and even if a fine is paid, records of the incident have been known to appear on some criminal background checks when they should not have. In its last session, the Texas Legislature passed a law to address this practice. Senator Royce West shepherded to passage Senate Bill 393, which prohibits school police from handing out citations for most misbehavior at school. School police officers can submit complaints, but prosecutors will decide whether to charge students with Class C misdemeanors. Students who are charged by prosecutors can also take advantage of diversion programs where they may be sent to tutoring or counseling or to do community service. Even with this and other legislation, there is still room to combat the problem of turning a student who gets into a fight at school into a defendant who may be convicted of assault. Former DBA President Rhonda Hunter, along with representatives of several DBA Committees and sister bar associations, has planned a series of programs about the school-to-prison pipeline. The first program was held last month with panelists State Representative Helen Giddings, Associate Judge George Ashford and former DBA Presi-
dent Christina Melton Crain, CEO of DOORS, discussing existing legislation and diversionary programs that reduce recidivism and put students on a more productive path. On August 1 Linda Cliatt-Wayman, the principal of Strawberry Mansion High School in Philadelphia, will discuss how she and her team brought Strawberry Mansion from one of the most persistently dangerous schools in the nation to a school with students who now have hope. In a final program in the fall, we will hold a town hall meeting to address what we can do as lawyers to help school administrators in their efforts to produce productive members of society and dismantle the school-to-prison pipeline. The DBA is also involved in addressing pipelines of a more positive sort—filling the pipeline of well-qualified students from all backgrounds to practice law in Dallas. One of our core goals as an association is to educate the community about the legal system and motivate students to consider careers in the legal field. And once students are in law school, we encourage well-qualified lawyers to choose Dallas as a place to practice. On the education front, we recently concluded our annual Law Day events, where we brought hundreds of high school students to the Allen courthouse to introduce them to the jury trial and voir dire process. We also sponsored the Law Day essay and art competitions, which asked Dallas ISD students to complete projects reflecting on the importance of the rule of law in our society. Later this year, in our Appealing to the Public program, we will have hundreds of students come to Belo to learn about and witness an argument before the Dallas Court of Appeals. We also try to help fill the qualified students pipeline through the Summer Law Intern Program, which places exceptional DISD students from all backgrounds in Dallas law offices for the summer. Moreover, we take advantage of the summer months to encourage a diverse array of outstanding law students to fill the pipeline of lawyers coming to Dallas to practice. For each of the past 10 years, through the Morris Harrell Professionalism Committee, chaired by Kim Askew, we have put on a Law Student Professionalism Program, which introduces law students to the importance of service, integrity and professionalism, such as the principles set out in the Texas Lawyer’s Creed. This year, the program was moderated by Aaron Tobin, and the law students who attended were treated to a thoughtful address by Judge Tonya Parker and then had an opportunity to participate in breakout sessions with other fine members of the judiciary such as Judge Jim Jordan, Justice Doug Lang, Judge Ken Molberg, Justice Mary Murphy and Justice Lana Myers. For even longer, we have also sponsored a series of Minority Clerkship Luncheons. Led by Minority Participation Committee Co-Chairs, Victor Corpuz and Camille Stearns Miller, minority law students are invited to Belo to participate in a program that gives insight into the practice of law in Dallas, offers perspectives from seasoned minority attorneys, and provides an overview of pro bono opportunities in Dallas. The next luncheon is scheduled for Friday, July 11, noon at Belo. With these programs, we hope to help strengthen the pipeline that brings outstanding law students to Dallas to HN serve the needs of our growing community.
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Scott M. McElhaney President-Elect: Bradley C. Weber First Vice President: Jerry C. Alexander Second Vice President: Rob Crain Secretary-Treasurer: Audrey Moorehead Immediate Past President: Sally L. Crawford Directors: Tatiana Alexander (President, J.L. Turner Legal Association), A. Shonn Brown (At-Large), Wm. Frank Carroll, Laura Benitez Geisler (Vice Chair), Hon. Martin Hoffman, Hon. David Horan (Judicial At-Large), Michael K. Hurst (Chair), Krisi Kastl, Michele Wong Krause, Meyling Ly (President, Dallas Association of Young Lawyers), Karen McCloud, Courtney Barksdale Perez (At-Large), Sakina Rasheed (President, Dallas Asian American Bar Association), Mary Scott, Scott Stolley, Diane M. Sumoski, Robert L. Tobey, Aaron Tobin and Elisabeth A. Wilson (President, Dallas Hispanic Bar Association) Advisory Directors: Jonathan Childers (President-Elect, Dallas Association of Young Lawyers), Monica Lira (President-Elect, Dallas Hispanic Bar Association), Bill Richmond (PresidentElect, Dallas Asian American Bar Association) and Ebony Rivon (President-Elect, J.L. Turner Legal Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Wm. Frank Carroll, E. Leon Carter, John Jansonius and Florentino A. Ramirez HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Tina DeRobertis, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Dawn Fowler and Jared Slade Vice-Chairs: Paul Clevenger and Meghan Hausler Members: Timothy Ackermann, Vincent Allen, Natalie Arbaugh, Benjamin Barmore, Joi-lee Beachler, Martha Beard-Duncan, Lisa Blackburn, Jason Bloom, Eric Blue, Leigh Bradford, Bobby Braxton, Kandice Bridges, Kelsey Brock, Sara Ann Brown, John G. Browning, Casey Burgess, Eliot Burriss, Stacie Cargill, Nancy Carroll, Lance Caughfield, Julie Chandler, Joel Crouch, Walter Dean, Lea Dearing, David Dodds, Adam Dougherty, Brandon Duck, Christopher Elam, Alexander Farr, J. Martin Futrell, Jenny Givens, Jennifer Gjesvold, Andrew Gould, James Gourley, Nadia Haghighatian, Susan Halpern, William Hammel, Jordan Harrison, Jeremy Hawpe, John Herring, Zachary Hilton, Kelli Hinson, Tyler Hokanson, Alison Hollender, Mary Louise Hopson, Mandy Jenkins, Soji John, Amanda Kelley, Cynthia Jon-Ubabuco, Yoon-Joo Jung, Tiffany Kamuche, Nicholas Kennedy, Adam Kielich, Michelle Koledi, Matthew Kolodoski, Susan Kravik, Norman Lofgren, Sixuan Lu, Margaret Lyle, Ashley Mason, Andrew Mayo, Jennifer McCollum, Christina McCracken, R. Sean McDonald, Scott McElhaney, Elizabeth “Jodi” McShan, John McShane, Michael Merrick, Christopher Meuse, Aaron Michelsohn, Wendy Mills, Constance Mims, Ethan Minshull, Paige Montgomery, Caitlin Morgan, Hon. Jim Moseley, Terah Moxley, Derek Neilson, Nick Nelson, Christopher Norcross, David Parham, Murali Pasupulati, Seth Phillips, Keith Pillers, Amiee Pingenot, Kirk Pittard, Irina Plumlee, Laura Anne Pohli, Ellen Pryor, Gabriel Reyes, Edward Rice, Morgan Richards, David Ritter, Carl Roberts, Richard Salgado, Joshua Sandler, Brandon Schwarzentraub, Calvin Scott, Ifeyinwa “Ify” Seales, Isabel Segarra, Micah Skidmore, Crystal Smith, Phillip Smith, Bradley Smyer, Yon Sohn, Thad Spalding, Timothy Springer, Jacob Stasny, Cori Steinmann, John Stevenson, Scott Stolley, Brian Stork, Amy Stowe, Billye Summers, Kristopher Tate, SaKinna Thomas, Pryce Tucker, Brent Turman, Peter S. Vogel, Whitney Warren, Bradley C. Weber, Suzanne Westerheim, Elisabeth Wilson and Andrew Wirmani DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Kimberlynn Taylor Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Marisol Guzman, Andrew Musquiz, Carmen Perales Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2014. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
Jul y 2 0 1 4
D al l as Bar A ssoci ati on l Headnotes 5
At PayneMitchell, we believe our clients have suffered enough without having to worry about the costs of fair legal representation. We commit to cases when we truly believe that the time and effort of going to trial or negotiating a settlement is worthwhile. That’s why we handle both personal injury and business litigation on a contingency fee basis. And because we have complete confidence in every case we represent, we’re able to combine passionate advocacy with compassionate support and understanding for the challenges our clients face. We measure success not only by achieving the best possible results for each client, but also by the positive changes in products, processes and practices we influence that result in a safer, better community for all. To learn more about why it pays to talk to PayneMitchell Law Group, contact us today.
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6 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
Jul y 2014
Tort & Insurance Practice
Avoiding the Deadline Trap Doors in a Property Policy by Stephen Burnett
A practitioner pursuing a property damage claim under a first-party property policy must navigate several deadlines. A myriad of different coverages and policy forms exist, so every claim presents a practitioner with unique policy language establishing different deadlines. While nothing eliminates the need to read the specific policy language, a practitioner should be alert to a number of deadlines and conditions that appear in many property policies in one form or fashion. And many of these deadlines expire mere weeks after the loss, making it crucial to act immediately after a potentially covered loss occurs. If these deadlines are not met, an insured may be unable to recover some or all of its damages. An insured’s policy-mandated duties in the event of a loss include a requirement that the insured give “prompt notice” and provide a description of the loss or damage “as soon as possible.” When a client seeks assistance with a property damage claim, the first question to ask is, “Have you notified the insurance carrier?” If the answer is no, providing notice should
be the lawyer’s first task. In addition to “prompt notice,” property policies routinely require an insured to provide a sworn proof of loss statement within 60 or 90 days of an insurer’s request. Insureds may have further duties, such as notifying the police if a crime was committed, taking reasonable steps to protect the property from further damage, and resuming business operations as quickly as possible. Even after an insurer pays a claim, an insured’s duties may continue because some property policies permit an insurer to cancel a policy if the insured has not started or contracted for repairs within 30 days of the initial payment of loss. Many commercial lines policies provide “Additional Coverages” that extend coverage for different types of circumstances or damages and that may come with their own deadlines. For example, a policy may cover pollution cleanup, but only if reported to the insurer within a certain time period after the loss. Perhaps no deadline varies from policy to policy as much as the deadline to make a claim for “replacement costs.” The baseline coverage under most property policies is “actual cash
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value,” i.e., the property’s value after considering depreciation. The cost to repair and replace the property is typically higher than “actual cash value.” Property policies often, though not always, permit an insured to seek the higher “replacement costs” provided the insured meets certain conditions. Whereas some policies condition the payment of “replacement costs” on the actual repairs having been made “as soon as reasonably possible” after the loss, others more specifically require repairs be made within a year after the loss. The “replacement costs” deadline in still other policies runs not from the date of loss but from the date the insurer paid the “actual cash value” portion of the loss. Property policies usually provide the insured and insurer a right to demand an independent appraisal if the parties cannot agree on the amount of a loss. Many policies provide deadlines for when to select an appraiser once the appraisal process has been invoked, but policies typically do not establish a precise deadline to invoke the appraisal process. Either party can waive their right to an appraisal if it failed to invoke the appraisal process within a reasonable time after the parties reached impasse and if the delay prejudiced the other party. Texas courts caution, however,
that proving prejudice will be difficult since both parties enjoy the same right to demand appraisal. Courts may also enforce a prejudice requirement if an insured breaches other policy provisions and conditions. But a first-party property insurer may often have a strong argument that prejudice exists in many circumstances (with the exception of the aforementioned appraisal process). Moreover, courts distinguish between what is a policy condition where prejudice may be required such as the “prompt notice” requirement, and what is a fundamental aspect of coverage that does not require prejudice, such as a bar against certain types of damages to buildings that have been vacant for more than 60 days. Finally, a practitioner should note that some policies effectively reduce the limitations period by which an insured can bring suit against an insurer. The first rule in any insurance coverage dispute is always, “Read the policy.” But that is never truer than when dealing with a first-party property policy replete with trap doors at every turn through which an unsus HN pecting insured may fall. Stephen Burnett is a member at Schubert & Evans, P.C. and can be reached at sburnett@schubertevans.com.
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D al l as Bar A ssoci ati on l Headnotes 7
Focus
Tort & Insurance Practice
Civil Liability for Commercial Use of Drone Aircraft in Texas by David C. Kent
Widespread commercial use of Unmanned Aircraft Systems (UAS)— “drones” in popular parlance—is coming. The FAA is developing regulations for integrating UAS into the national airspace system. Texas A&M-Corpus Christi has been awarded one of six national research and development contracts for this purpose. Stories of new ways businesses plan to use UAS, from Amazon’s delivering orders to customers’ homes to a micro brewery’s plan for delivering six-packs to ice fishermen on the frozen lakes of Minnesota (stopped by the FAA before it could get started), fill headlines daily. Along with exciting and imaginative ideas for commercialized uses of UAS come concerns about potential infringements on privacy and civil liberties. The very features that make UAS attractive to businesses— their small size and weight, high-resolution imaging systems, remote control and communication capabilities, low altitude flight ranges and relatively low costs—also prompt fears of easy access to New Age Peeping Toms, Big Brother government surveillance and high tech corporate espionage. Indeed, in March, U.S. Senator Dianne Feinstein reported opening her window drapes one
morning to find a small helicopter drone unit hovering inches from her window. A local protest group acknowledged the unit may have belonged to one of its members. Because the FAA is focusing on the technological and safety aspects of integrating UAS into the national airspace, state legislatures have been left to address the way in which UAS may be used. At least 43 state legislatures considered UAS legislation in 2013. Seven states—Texas among them—passed laws limiting the ways UAS can be used. Most of those statutes focused on the uses of UAS by law enforcement agencies, with only limited controls over commercial uses. Texas entered the fray with HB 912, the “Texas Privacy Act.” 4 Tex. Gov. Code, Ch. 423 (Vernon Supp. 2013). Enacted in last year’s legislative session and effective September 1, 2013, the statute has farreaching implications. Unlike other states that require law enforcement agencies to obtain search warrants in order to conduct UAS surveillance, the Texas statute only encourages the use of search warrants. It does make illegallyobtained UAS evidence inadmissible and not subject to discovery (except to prove violations of the statute) in both criminal and civil cases.
The Texas statute is more notable, however, for its criminal and civil penalties. It makes the capture or possession of an image of a person or private property “with the intent to conduct surveillance” a Class C misdemeanor punishable by a fine of up to $500. Publication of an image is a Class B misdemeanor punishable by a fine of up to $2,000 and 180 days in jail. Each improper use of each image constitutes a separate offense. For unauthorized images of private property or owners or tenants while on their property, the statute creates a civil cause of action by which violators can be subject to injunctive relief and be liable for a civil penalty of $5,000 for capturing images, $10,000 for distributing the images, actual damages if done with malice and mandatory attorneys’ fees and costs. An obvious purpose of the private cause of action is to protect against acts of corporate espionage and invasions of personal privacy. Unlike some other UAS statutes, the Texas statute does not expressly recognize a First Amendment “free speech” defense or contain a journalism exception. The author of the statute and the House Research Organization claim this is not a problem, because the statute only prohibits “surveillance” activities. Critics respond, however, that
the statute does not define “surveillance.” Consequently, some worry the statute may criminalize and have a chilling effect on “drone journalism.” Perhaps reflective of the compromises necessary to enact legislation, the Texas law went through numerous changes as it wound its way through the legislative process. Beginning as a broadly worded prohibition against UAS surveillance, the bill was engrafted with exception after exception (19 in all) authorizing UAS imaging for various law enforcement, public health and safety, educational and industrial uses. The final product, in the words of one Texas legislator, was a “zebra law,” where the definition of legal and illegal activity changed in “extremely confusing” ways depending on the specific activity involved. Given the rapidly advancing and ever-changing state of the technology and the ongoing study and development of regulations by the FAA, it is difficult to predict the long-term effects of the Texas statute. These factors, however, make it a prime candidate for legislative “tinkering” in future sessions of the Texas HN legislature. David C. Kent is Of Counsel at Sedgwick LLP and can be reached at david.kent@sedgwicklaw.com.
North Dallas Friday Clinic Presents:
Professionalism Tip
Friday, August 8, Noon
I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.
Two Lincoln Centre (5420 LBJ Frwy, Ste. 240) Speaker: Brian Farlow • Ethics 1.00 RSVP to kzack@dallasbar.org. • Sponsored by the Peer Assistance Committee.
Find the complete Creed online at http://txbf.org/texas-lawyers-creed/. Excerpt from the Texas Lawyers Creed
Shoulder to Shoulder: Equipping Attorneys to Recognize and Assist Fellow Attorneys in Crisis
Transforming LEGAL EDUCATION WITH
DEAN ANDREW P. MORRISS ANTHONY G. BUZBEE DEAN’S ENDOWED CHAIRHOLDER
• Holds a Ph.D. in economics from Massachusetts Institute of Technology in addition to his J.D. earned at The University of Texas at Austin • Recently recognized by Brian Leiter as “a prolific and well-known scholar” on his list of “Top Ten” Lateral Moves for 2013-14 • Formally the D. Paul Jones, Jr. & Charlene A. Jones Chairholder of Law at the University of Alabama School of Law • Chair of the editorial board for the Cayman Financial Review • Scholarship focuses on regulatory issues involving environmental, energy, and offshore financial centers
SAVE THE DATE JULY 17, 2014 BELO MANSION DALLAS, TX
SEPTEMBER 25, 2014 ASHTON DEPOT FORT WORTH, TX *Subject to change
COMMUNITY RECEPTIONS INTRODUCING DEAN ANDY MORRISS RSVP TO EVENTS@LAW.TAMU.EDU DBA ad.indd 1
STAND AND BE RECOGNIZED. 6/11/14 10:50 AM
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Focus
Jul y 2014
Tort & Insurance Practice
Opting Out: Advising Clients on Workers’ Compensation Alternatives by Brian J. Fisher
Texas enjoys a reputation of being a little different. In the world of workers’ compensation, that reputation is well-earned. When Texas enacted its first workers’ compensation laws roughly a century ago, an employer’s participation in the State’s workers’ compensation system was optional. As other states amended their laws to mandate employer participation, Texas did not. Accordingly, an employer’s participation in the State’s system remains optional in Texas. When advising a client considering the “nonsubscriber” option, the client should be educated on both the advantages and the challenges nonsubscribers face. Approximately one out of three Texas employers have decided to opt out of the State’s system, and that number continues to grow—
however, it is not the right solution for every employer. By developing and administering their own programs or plans, many nonsubscribers have discovered a more cost-effective approach to handling and administering onthe-job injury claims. Although an employer may simply “go bare” and not offer an alternative to the State’s system, this is never recommended. Perhaps the most attractive benefit to nonsubscribing employers is the reduction in costs. In addition to reduced insurance premiums, nonsubscribers that administer their own plans or programs are provided increased control over how injured employees are treated and compensated, leading to lower expenses. Even with the reduced costs, the nonsubscriber can still provide injured employees with benefits that actually exceed
PLEASE SAVE THESE DATES October 5‐11, 2014
President Jimmy Carter, together with thousands of volunteers, will be in the DFW area for a weeklong build. The DBA and the sister bar associa�ons will partner with Dallas Habitat for Hu‐ manity on this project. For more informa�on about volunteering, contact kzack@dallasbar.org.
those provided under the State’s system. With increased benefits for the employee at a decreased cost to the employer, the decision to become a nonsubscriber can be beneficial not only to the employer but also to the employee. Nonsubscribers are also in a better position to control fraudulent claims, since they can be directly involved in claims administration. While a subscribing employer in Texas is prohibited from participating in the claims process at all, this restriction does not apply to a nonsubscriber. Therefore, nonsubscribers have greater control over selection of medical providers as well as the medical treatment received by an injured employee. A nonsubscriber may even designate specific medical providers with whom its employees may treat for work-related injuries through the program or plan. This provides the employer with the ability to work directly with providers to ensure that medical treatment rendered is reasonable and necessary and restrictions on work are closely followed. Finally, the standard for establishing whether an injury occurred in the course and scope of employment is far more favorable to a nonsubscriber. To deny a claim as a subscriber, the employer must prove the employee was not injured during the course and scope of employment, which can be especially challenging in unwitnessed incidents. As a non-subscriber, though, the burden of proof can be shifted so that the injured employee must establish that the injury occurred in the course and scope of employment. Although the advantages of nonsubscription are numerous, employers must also be aware of certain accompanying challenges. The most significant challenge is usually the increased risk of litigation. Since work-
2014
ers’ compensation benefits provided under the State system are an employee’s exclusive remedy for damages, employees are generally prohibited from bringing lawsuits against employers for on-the-job injuries. In contrast, there is no statutory provision preventing injured employees from doing so. Additionally, when a nonsubscriber is sued, Texas law mandates that the nonsubscriber forfeits several common law defenses that would otherwise be available. Specifically, nonsubscribers are prohibited from asserting the defenses of comparative or contributory negligence, assumption of risk, or negligence of a fellow employee. Because the defenses are not available to a nonsubscriber, if a jury determines that an employer was negligent in any way – even if the injured employee’s own negligence was the more significant cause of the injury – the nonsubscriber can be on the hook for all damages awarded. One final drawback for certain employers is the management and administration of an alternate program or plan for injured employees. Although this may be a significant concern for some small employers especially, assistance is available to nonsubscribers through third-party plan administrators at a reasonable cost. For clients concerned with the rising cost of workers’ compensation premiums on their bottom lines, nonsubscription may be a significant money-saving option. As long as your client is aware of both the benefits and the challenges associated with nonsubscription, opting out of the State’s system is not something that HN should generally be feared. Brian J. Fisher is a senior attorney at Kane Russell Coleman & Logan PC. He can be reached at bfisher@krcl.com.
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J ul y 2 0 1 4
D al l as Bar A ssoci ati on l Headnotes 9
2014 DBA 100 CLUB – We Want YOU! What is the DBA 100 Club? The DBA 100 Club is a distinguished membership recognition category that consists of Firms and Government agencies with two or more attorneys as well as corporate legal departments that have 100% membership in the DBA. Recognition for 100% support is given to the 2014 DBA 100 Club members in our June, July and August Headnotes and at our Annual meeting in November. Please note that the DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. Do you see your name on the list? If not, you need to GET ON THE LIST! To become a 2014 DBA 100 Club member, please submit your request via email and include a list of all lawyers in your Dallas office or corporate legal department to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and if you qualify, your firm will be added to the 2014 DBA 100 Club! If we receive your list by July 9th, your firm will be included on the August DBA 100 Club recognition list in Headnotes. Send in your list TODAY! DBA 100 Club Members As of June 16, 2014 Law Firms with 2 to 5 Attorneys 123 Divorce Company A. William Arnold III & Associates, P.C. Ackerman & Savage, L.L.P. Adair, Morris & Osborn, P.C. Aldous Law Firm Alexander Dubose & Townsend LLP Anderson & Brocious P.C. Anderson Beakley, PLLC Armstrong Kellett Bartholow P.C. Ashley & Laird Atkins, O’Toole & Briner, L.L.C. Atwood Gameros LLP Bailey Brauer PLLC Barnett • McNair • Hall, L.L.P. Blackwell & Duncan, PLLC Blankenship, Wiland & O’Connor, P.C. Boone, Boone & Phillips, L.L.P. Broden & Mickelsen Brousseau Naftis & Massingill Calabrese Huff, P.C. Campbell & Chadwick, P.C. Carlock-Gormley-Hight Clark Law Firm Clark Law Firm PC Coffin & Driver, PLLC Collins Law Group PC Connatser Family Law Crain Lewis, L.L.P. Curtis | Castillo PC Daniel Sheehan & Associates, LLP Dedman Law, PLLC Dunn Sheehan LLP Edwards & de la Cerda, L.L.C. Elliott Thomason & Gibson, LLP ELROD, PLLC Erhard & Jennings, P.C. Fisher & Welch, P.C. Franklin Chapman Skierski Hayward LLP Grau Law Group, PLLC Grogan & Brawner P.C. Groover Hamilton, LLP Hamilton & Squibb, LLP Hance | Wickham, P.C.
Harper | Washam LLP Hicks Thomas LLP Hollingsworth Walker Horton & Archibald, P.C. Hunt | Ham, PLLC Johnson | Broome, P.C. Johnston ♦ Tobey, P.C. Kabani & Kabani, PLLC Kapioltas & Forni, PLLC Karel & Hicks, P.C. Keane, Fowler & Donohue Kelly, Durham & Pittard, LLP Kevin Buchanan & Associates, P.L.L.C. Kinser & Bates, L.L.P. Kish Manktelow & Bailey, P.C. Koning Rubarts LLP Langley Weinstein LLP Law Offices of Carmen S. Mitchell, LLP Law Office of Kevin B. Ross, P.C. Law Offices of Richard A. Gump, Jr., P.C. Law Offices of Terrence G. Turzinski, P.C. Lawrence Law PLLC Lidji Dorey & Hooper Little Pedersen Fankhauser LLP Malouf & Nockels LLP Maris & Lanier, P.C. Marshall & Kellow, LLP Mincey-Carter, PC Prager & Miller, P.C. Pratt & Yungblut, P.C. Raggio & Raggio, P.L.L.C. Ramirez & Associates, P.C. Rosenberg Paschall Johnson LLP Sawicki & Lauten, LLP Schein Calixto Stevens PLLC Schubert & Evans, P.C. Schuerenberg & Grimes, P.C. Sessions Fishman Nathan & Israel LLP Sheils Winnubst, PC Simon | Paschal PLLC Simon, Ray & Winikka LLP Smith Kendall P.C. Smith, Stern, Friedman & Nelms, P.C. The Elliott Law Firm, P.C. The Holmes Law Firm The Korn Diaz Firm, LLP The Law Offices of Shanna Nugent, P.C. The Vermillion Law Firm, LLC Tobolowsky & Burk, P.C.
Walker & Long Weeks Law Firm, PLLC Winn, Beaudry & Winn, L.L.P. Withers & Withers, P.C. Wolfish & Newman, P.C. Woodward & Shaw Woolley <> Wilson, LLP. Wormington & Bollinger Yarbrough & Elliott, P.C. Zaby & Associates Law Firms with 6 or More Attorneys Ackels & Ackels, L.L.P. Addison Law Firm P.C. Anderson Tobin, PLLC Andrews & Barth, PC Baker Botts, L.L.P. Beirne, Maynard & Parsons, L.L.P. Boyle & Lowry, L.L.P. Brown Fox Kizzia & Johnson PLLC Burford & Ryburn, L.L.P. Canterbury, Elder, Gooch, Surratt, Shapiro & Stein, P.C. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Cavazos, Hendricks, Poirot & Smitham, P.C. Cooper & Scully, P.C. Cowles & Thompson, P.C. Cox Smith David & Goodman, P.C. Deans & Lyons, LLP Estes Okon Thorne & Carr PLLC Farrow-Gillespie & Heath LLP Fee, Smith, Sharp & Vitullo, L.L.P. Figari & Davenport, L.L.P Ford, Nassen & Baldwin, P.C. Godwin Lewis PC Goranson Bain, PLLC Griffith Davison & Shurtleff, P.C. Gruber Hurst Johansen Hail Shank LLP Guida, Slavich & Flores, P.C. Hankinson LLP Hiersche, Hayward, Drakeley & Urbach, P.C. Higier Allen Lautin, P.C. Hoge & Gameros, L.L.P. Johnson Jordan Cresswell Monk, PC Kessler Collins, P.C.
Key Harrington Barnes PC Klemchuk Kubasta LLP KoonsFuller Kroney Morse Lan, PC Locke Lord LLP Loewinsohn Flegle Deary L.L.P. Malouf Lynch Jackson & Swinson, P.C. McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Milby, PLLC Munsch Hardt Kopf & Harr, P.C. Passman & Jones, P.C. Rochelle McCullough LLP Rose Walker, L.L.P. Sayles Werbner, P.C. SettlePou Sorrels, Udashen & Anton Staubus & Randall, L.L.P. Susman Godfrey L.L.P. The Bassett Firm, P.C. The Hartnett Law Firm The Law Offices of Frank L. Branson, P.C. Thiebaud Remington Thornton Bailey LLP Thompson & Knight LLP VernerBrumley PC Winstead PC Wright Ginsberg Brusilow P.C. Zelle Hofmann Voelbel & Mason LLP Corporate Legal Departments Alon USA Energy Inc. Austin Industries, Inc. Baptist Foundation of Texas Contran Corporation Front Burner Restaurants, LP Morgan Management Corporation Neuberger Berman Tenaska Power Services Co. The North American Coal Corporation Government Agencies City of Irving
COMMUNITY VOLUNTEER OPPORTUNITIES FOR LAWYERS
Donate to the Christmas in July Donation Drive. Contact kzack@dallasbar.org.
Tutor a Child Confined to the Henry Wade Juvenile Justice Center, contact ahernandez@dallasbar.org.
Mentor a Child Impacted by Incarceration, contact Mandy Klem at (214) 288-3551.
Speak to a Community or Civic Group on a Law-Related Topic, contact mjohnson@dallasbar.org.
10 H e a d n o t e s l D a l l a s B a r A s s o ciation
Jul y 2014
s t i u S y k n i BAR NONE XXIX: K Once again, Bar None’s cast revealed that their abilities extend beyond the practice of law. With a cast of more than 50 performers from the legal community, Bar None XXIX, “Kinky Suits,” brought the house down! Led by show director Martha Hardwick Hofmeister, choreographer Rhonda Hunter and producer Tom Mighell, the show played for four nights in June, and thanks to the Dallas Bar Foundation and these hard-working singers, dancers and actors, more than $1.5 million has been contributed to the Sarah T. Hughes Diversity Scholarships, benefitting nearly 50 law students since 1986. For more information, visit www.barnoneshow.com. Photo credit: Scott Alden.
Thank You, Bar None Sponsors! On behalf of the Sarah T. Hughes Diversity Scholarship, the Dallas Bar Foundation salutes and thanks the following sponsors of Bar None XXIX. Their generous contributions not only benefit the scholarships, but they made this year’s show possible.
Mogul
Point MultiMedia
Producers:
Baker Botts, LLP • Carter Scholer Arnett Hamada Mockler, PLLC • Sarah T. Hughes Alumni Scholars
Directors:
Burdin Mediations • Coats Rose, P.C. • Cowles & Thompson, P.C. • DBA Corporate Counsel Section • DBA Tax Law Section • ExxonMobil • Farrow-Gillespie & Heath, LLP • Kastl Law, P.C. • Lafitte, Abbott, Wingo, Rehfeld & Holloway • Merrill Corporation • Norton Rose Fulbright, LLP • Shackelford, Melton & McKinley & Norton, LLP • University of North Texas School of Law
Stars:
Brown & Hofmeister, P.C. • Cooper & Scully, P.C. • DBA Appellate Law Section • DBA Bankruptcy & Commercial Law Section • DBA Business Litigation Section • DBA Trial Skills Section • Godwin Lewis, P.C. • Goranson Bain, PLLC • Hunton & Williams, LLP • Jackson Walker, L.L.P. • Jones Day • Millennium Settlements • Russell & Wright, PLLC • Siemens PLM Software • Steven Shaw
J ul y 2 0 1 4
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Tort & Insurance Practice
The Texas Property and Casualty Insurance Guaranty Association by Joe Gregory and Chris Villa
As four large insurance companies were declared insolvent in 2013, practitioners need to reacquaint themselves with the Texas Property and Casualty Insurance Guaranty Association (TPCIGA), established in Chapter 462 of the Texas Insurance Code. When an insurance company becomes insolvent or impaired, TPCIGA assumes the handling of the claims of the defunct insurance company. TPCIGA is a nonprofit, unincorporated association of all Texas-licensed property and casualty insurers. The Texas legislature created the TPCIGA to provide protections to Texas insurance policyholders and claimants when an insurance company fails. Chapter 462 states that TPCIGA must only pay “covered claims.” In general, a covered claim is an unpaid claim that arises out of a policy issued by an impaired insurance company. The claim must be made by a Texas resident at the time of the insured event or must be a first-party claim for damage to property that is permanently located in Texas. Chapter 462 also defines claims that are not covered. Subrogation claims are not covered claims. Adjustment fees, attorneys’ fees, court costs, interest and penalties incurred before an insurer is determined to be an impaired insurer are also not covered claims. In addition, pre-judgment or post-judgment interest accrued after an insurer is determined to be an impaired insurer is not a covered claim. Further, a claim against the insured, insurer, TPCIGA, receiver, special deputy receiver or commissioner for recovery of punitive, exemplary,
extra-contractual or bad-faith damages awarded in a judgment is not a covered claim. The Insurance Code limits the amount which can be paid as a covered claim. An individual covered claim may not exceed $300,000 or the limits of the insurance policy under which the claim is made. Section 462.251 of the Texas Insurance Code prevents the duplication of recovery. That section requires claimants to first exhaust their rights under the policies of solvent insurers. If a claimant has a claim under a policy other than an impaired insurer’s policy, and the claim arises from the same facts, injury, or loss giving rise to the claim under an impaired insurer’s policy, the claimant must first exhaust its rights under the solvent insurance policy. This includes a claim for benefits under policies of workers’ compensation, health, disability, uninsured/ underinsured motorist, personal injury protection, medical payment, liability or other insurance policies. Moreover, any claim amount paid by TPCIGA is reduced by the full applicable limits of another insurance policy, and TPCIGA receives a credit in the amount of the full applicable limits of the solvent insurance policy. The liability of the person insured by the impaired insurer’s policy is reduced by the same amount. Thus, the maximum amount payable by TPCIGA is the damages incurred by the claimant, less TPCIGA’s credit, and the maximum amount payable may not exceed the lesser of $300,000 or the limits of the insurance policy under which the claim is made.
The Insurance Code further limits claims subject to lien or subrogation. If a claimant seeks recovery of benefits that, had the impaired insurer not been insolvent, would be subject to lien or subrogation by any other insurer (such as a workers compensation insurer or health insurer), TPCIGA’s credit is deducted from the lesser of the damages incurred by the claimant or the limits of the policy under which the claim is made. Moreover, if the amount subject to lien equals or exceeds the lesser of total damages or the limits of the impaired insurer’s policy, the offset cancels out any recovery. For example, where a claimant with $100,000 in damages recovers $50,000 in other insurance benefits subject to lien, the $50,000 credit is applied to the lesser of his $100,000 damages or the policy limit. If the policy limit is $25,000, the $50,000 credit excludes any fur-
ther recovery. This is because Section 462.207 of the Texas Insurance Code prohibits TPCIGA’s payment of any claim to an insurer, as subrogation or otherwise. Latter v. Autry, 853 S.W.2d 836 (Tex. App.—Austin 1993, no writ). Finally, claims of assignees are not covered claims. In Carney v. TPCIGA, 354 S.W.3rd 843 (Tex. App.—Austin 2011, pet. denied), the court held that the claim of an assignee that is neither an insured nor a third party claimant does not meet the definition of a “covered claim” under the Guaranty Act and, thus, is not payable by TPCIGA. Thus, a plaintiff ’s attorney must get an assignee to waive his assignment in order for the claimant to have a covered HN claim. Joe Gregory is a partner at the Willis Law Group and Chris Villa is an associate. They can be reached at jgregory@thewillislawgroup.com and barristervilla@gmail.com, respectively.
Dismantling the Schools to Prison Pipeline: What Can Lawyers Do? Speaker: Linda Clia��Wayman
Principal, Strawberry Mansion High School Presen�ng “Turn This School Around”
The story of how a prosecutor and a principal transformed Strawberry Mansion from one of the most dangerous schools in the country to a school of hope.
Friday, August 1, Noon at Belo MCLE 1.00 RSVP mjohnson@dallasbar.org
CelebraƟng the 60th Anniversary of Brown v. Board of EducaƟon
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
Jul y 2014
Prevent Chargebacks When Accepting Credit Cards from Your Clients LawPay Can Help You by Tracey Gavin
LawPay is a custom credit card payment solution designed for attorneys. LawPay meets the ABA and state requirements for managing client funds. As a member benefit of the Dallas Bar Association, law firms save up to 20–25 percent off standard credit card fees by using LawPay. Credit cards and debit cards are becoming the payment of choice among consumers. According to a March 2009 report of the American Bankers Association, some 10,000 payment card transactions are made every second around the world. Based on these trends, attorneys can no longer ignore the importance of accepting credit cards, but should proceed with caution. One of the most common concerns with credit card acceptance is the risk of chargebacks which occurs when a client disputes a charge. A chargeback occurs when your client or the cardholder disputes a specific credit card transaction. A chargeback is initiated by the cardholder through their cardissuing bank. This action allows a card-
holder to temporarily not pay for a specific transaction while the charge is investigated. In the event of a client chargeback or charge dispute, the best defense is a good offense. The card issuing bank is looking to see if you, the merchant, had permission to charge the credit card, and did you perform the work charged for. A few simple steps on the front end can help ensure your firm has the best opportunity to win a chargeback case, and avoid potential loss of income.
Most Common Reasons for Chargebacks:
1. The firm does not have permission from the card holder to charge the card. 2. The firm did not provide the service or work agreed to by the cardholder. 3. The dollar amount charged was different than what was agreed.
Tips to Avoid Chargebacks:
1. Obtain authorization from the cardholder for the specific dollar amount being charged. 2. Confirm the name on the card. If the name is different from your actual client, obtain additional approval from the
CHRISTMAS IN JULY Friday, July 25 ~ 9 a.m. to Noon ~ The Belo Mansion ~
actual cardholder. This is common in certain practice areas such as family law. 3. When accepting credit card information over the phone or through your website, ensure that you have a charge authorization or previous client agreement to charge payments on file. 4. Ensure clients initial the firm’s payment and credit card policies in their client agreements. This specifically shows the client was notified of the firm’s payment policies and agreed to them. 5. When receiving payments from relatives or other third parties, make sure to include the specific client name, invoice number and matter number if possible. Obtain signature from the third party to confirm they are accepting responsibility for payment of another party. 6. Obtain client initials next to any specific cancellation policies included in your client agreements.
What Happens When You Receive a Chargeback Notice:
1. Your client has filed a formal dispute on a specific charge amount. 2. Notice is generally sent by the mail from the Card-issuing Bank. 3. As a courtesy, LawPay will attempt to notify you via email or phone to expedite the process. 4. Time is critical. Your firm will be asked to respond within a 7-10 day time period. (The exact date will be set by the card-issuing bank). It is important to respond promptly.
5. Your firm will need to provide documentation to support the transaction in question. This should include any payment authorization or payment communication from the client. You may also be asked to show proof of work or services performed by your firm. Please note, you will not be asked to disclose sensitive client information or details on a particular matter. Keep in mind your client is declining payment to your firm, so the bank is already aware you are working with that particular cardholder. As part of our service, LawPay is available to support your firm in your efforts to win a chargeback dispute. We are also happy to review your chargeback process and make recommendations to avoid potential client dispute situations. Our goal is to help you and your clients have a positive payment experience.
About LawPay
The LawPay program is a custom payment solution designed for attorneys. The LawPay program complies with ABA and state requirements for managing client funds. As a member benefit of the Dallas Bar Association, law firms save up to 20–25 percent off standard credit card fees. If you are currently accepting credit cards, we encourage you to compare your current processor with LawPay. To learn more contact (866) 376-0950 or HN www.LawPay.com/dallasbar.
Tracy Gavin is the Marketing Director for LawPay. She can be reached at tgavin@affinipay.com.
The DBA Community Involvement Committee is coordinating a drive to benefit local charities, including the Austin Street Centre, Big Brothers Big Sisters, Genesis Women’s Shelter, The Family Place, North Texas Food Bank and W.W. Samuell High School. Items needed: men’s/women’s clothing, nonperishable canned food items, hotel/travel-sized toiletries, gently-used luggage/ duffle bags, high school and elementary school supplies, bed and bath linens, home décor items and kitchen supplies. Drop off is at the Belo Mansion on Friday, July 25. For more information, contact Elaine Mosher (elaine@attorneytxs.com) or Tracye McGaughy (tmcgaughy@higierallen.com).
WHY DONATE TO THE EQUAL ACCESS TO JUSTICE CAMPAIGN BENEFITTING DVAP? 1. Help provide legal aid to the poor. 2. Receive recognition in Headnotes, Texas Lawyer, D Magazine and The Dallas Morning News. Receive recognition in the DBA’s weekly e-newsletter and on the DBA website and social media pages. Be highlighted in press releases. Be the subject of a feature Headnotes article on you, your
firm or organization.
Receive complimentary tickets to the DBA Inaugural Ball. Plus many more perks!
Donate now to take advantage of these great benefits!
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Jul y 2 0 1 4
Focus
D al l as Bar A ssoci ati on l Headnotes 13
Tort & Insurance Practice
Cyberliability: Considerations for Mitigating Risk Through Insurance by Amanda Kelley
With recent data breaches at major retailers making headlines, businesses are aware of cybersecurity threat. As FBI Director Robert Mueller recently stated, “there are only two types of companies: those that have been hacked and those that will be. And even they are converging into one category: companies that have been hacked and will be hacked again.” However, what businesses may not be aware of is that data breaches are not just the result of hackers, but may be caused by employee mistake, unauthorized access by a former employee, or theft of a company device. Further, a company’s high-risk data is not limited to just customer credit or bank account information, but also includes information possessed by every small or medium sized business, such as employee Social Security and driver’s license numbers. The wide breadth of potential cyber risks is accompanied by the prospect of large expenses that can be fatal to a business. As indicated by the Ponemon Institute’s most recent study, the costs of a data breach continue to rise. In 2013, the average cost of a corporate data breach increased 15 percent to $3.5 million, and the average cost for each lost or stolen record containing sensitive or confidential information was $145. The harm suffered by a company as a result of a data breach is not strictly limited to monetary damages, but extends to brand reputation, customer loyalty, and a myriad of new privacy statutes. Given the potentially large exposure, all businesses should seriously consider insurance as a risk transfer solution. While traditional insurance policies may afford some protection, insurers now offer special cyber insurance policies that may best protect a business from the harm posed by cyber risks.
While the best insurance policy for a business is a highly individualized decision, there are certain fundamental considerations for all businesses. Before addressing cyber insurance, it is worth noting that coverage under a traditional insurance policy—directors and officers liability coverage, commercial general liability (CGL), and commercial crime—for a cyber-related loss may still be possible. For example, the standard CGL provision covering “personal and advertising injury” is commonly claimed for coverage of a data breach resulting in the theft of customers’ credit or bank account information. Or, a company may successfully argue that a cyber-attack resulting in the loss of the physical use of a company’s servers or network is covered under a policy’s property damage provision. However, insurers are increasingly adding specific exclusions denying coverage for violations of privacy laws or damages from a data breach, and courts are upholding these exclusions. In fact, last year the Insurance Service Office filed several data breach exclusionary endorsements for use with the standard-form CGL policy. Taking into account the large number of restrictions on traditional insurance policies, companies should seriously consider cyber insurance. There are numerous scenarios that may be covered by cyber insurance that would not be covered by traditional insurance; for example, credit monitoring for customers or employees after a data breach. As cyber insurance varies greatly across carriers, companies should analyze the scope of the offered coverage and limitations before purchasing. An effective policy should cover both first-party losses and third-party losses. Together, these provisions should include coverage for the costs associated with responding to a cyber-issue, disruption to the
company’s network, and potential lawsuits. Specifically, these provisions should cover: forensic services to determine the location and scope of a breach; public relations and crisis management; costs stemming from providing both mandatory and voluntary notification to customers and authorities; credit monitoring and identity theft counseling; call centers; the costs to restore a company’s data or servers; legal advice to ensure regulatory compliance; and any e-extortion demand. In addition to coverage, a company should be aware of potential cyber insurance exclusions. For example, regulatory fines, government investigations, or criminal penalties commonly are not covered. Further, the widespread use of vendors and contrac-
tual liability exclusions may greatly impact the scope of a business’s coverage. Cloud providers pose a high-risk for a cyber-attack; a business should closely review the terms of its contracts with providers to understand the serious consequences presented by applicable indemnification provisions. Finally, it should be noted that CGL policies and cyber insurance policies may work together. There may be additional coverage limits if both policies provide coverage for a cyber-incident, or a CGL policy may cover indemnity agreements and protect a business whose cloud pro HN vider is breached. Amanda Kelley is an associate at Alston & Bird LLP. She can be reached at amanda.kelley@alston.com.
Donor Wall Recognition Available
More than 200,000 people visit the Belo Mansion every year. Many of your clients hold parties in the building and view the large donor wall in the Pavilion Atrium. Is your name listed? If your name is not listed, or your name is listed, but you want to be listed in a higher category, now is your chance for prominent recognition. For more information contact Elizabeth Philipp, Dallas Bar Foundation Executive Director, at (214) 220-7487.
Holmes Diggs & Eames PLLC i s c e l e b r a t i n g i t s 2 0 t h y e a r. We are one of the largest law fi r m s i n Te x a s d e v o t e d t o family law. Our attorneys offer a wealth of experience in every aspect of family law.
A Passion for Excellence www.texasfamilylawyers.com 214.520.8100 Dallas-Houston-Denton-Frisco
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
Jul y 2014
In The News
FROM THE DAIS
Darin Klemchuk, of Klemchuk Kubasta LLP, spoke at the 2014 Internet Law Leadership (ILL) Summit in Las Vegas. Amy B. Ganci, of Ganci, LLP, spoke to the National Business Institute Equine Law Seminar on Ethics in the Horse Industry. Fred C. Moss, SMU Prof. Emeritus, spoke on “The Ethics of Witness Preparation” at the ABA’s 40th National Conference on Professional Responsibility in Long Beach, CA.
KUDOS
Ted M. Benn, of Thompson & Knight LLP, has been elected to Secretary of the National Club Association based in Washington, D.C. Mandy Price, of Weil, Gotshal & Manges LLP has been named the 2014 Outstanding Young Lawyer of Texas by the Texas Young Lawyers Association (TYLA). She
also was honored by the Dallas Association of Young Lawyers (DAYL) as Dallas’ Outstanding Young Lawyer for 2014. Michael Rumac, of David & Goodman, P.C., has been named Shareholder. Michael D. Wysocki, of McCurley Orsinger McCurley Nelson & Downing, L.L.P., recently received the Distinguished Young Alumnus award from the University of Texas at Tyler Alumni Association. Daniel P. Novakov, of Greenberg Traurig LLP, has been honored with the “Father of the Year” award presented by the 2014 Father of the Year Committee, founded in 1976. Barbara Van Duyne, of Raggio and Raggio, P.L.L.C., is the 2014 recipient for the Louise Raggio Women’s Legal Advocate Award sponsored by Legal Aid of NorthWest Texas. Timothy Powers, of Haynes and Boone,
LLP has been named Partner. Audrey Moorehead was appointed by the Board of Directors to serve as Chair of the State Bar of Texas Council of Chairs for 2014-2015.
MOVE
Amy E. LaValle joined Conley Rose, P.C. as Shareholder. Joseph L. Mira joined Ford Nassen as Shareholder. Vynessa Nemunaitis joined Weil, Gotshal & Manges LLP as Associate.
Dallas, TX 75252. Phone: (214) 5780941. Robert Radcliff and Gregory Weinstein have formed Weinstein Radcliff LLP located at 6688 North Central Expressway, Suite 675, Dallas, TX 75206. Phone: (214) 865-6130. R. Ashley Veitenheimer joined Curtis Law Group as Associate. Todd B. Goldberg joined Cobb Martinez Woodward PLLC Associate.
O. Rey Rodriguez joined Hankinson LLP.
Rodney P. Geer joined The Willis Law Group PLLC as Partner.
Douglas M. Berman joined David & Goodman, P.C. as Of Counsel.
Kamal Jafarnia joined the New York office of Greenberg Traurig LLP, as Of Counsel.
Jaime Ramón joined Cox Smith’s Dallas office as Shareholder.
News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org
Keeli L. Rule opened a new practice Rule Law PC, 17760 Preston Road, Suite 103,
Does Advertising Work? It Just Did! Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County.
Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
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THINKING ABOUT SET TING UP A P R I VAT E F O U N D AT I O N ?
At Communities Foundation of Texas, a donor-advised fund is a quick, easy, tax-advantaged alternative to starting your own foundation. You can work with our expert staff to develop a strategy so your gifts will make a positive impact on the community right away. Let us do the work for you.
Call or email Geri Jacobs at 214-750-4255 or g jacobs@cftexas.org
5 5 0 0 C A R U T H H AV EN L A N E | DA L L A S , T E X A S | CF T E X A S .O R G /G I V I N G F U N D
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
J ul y 2 0 1 4
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 15
July
EXPERT WITNESS
Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.”
OFFICE SPACE
Pearlstone Suites in the West End of downtown Dallas are unique new law offices combined with professional law firm marketing services to help attorneys launch or grow a solo practice or small firm. Suites include these amenities at no additional cost: Direct dial phone with personalized voicemail and call forwarding, high-speed Internet access, IT support, law office reception, on-site building security, conference rooms, kitchen and coffee service, fitness center, building directory listing, all utilities and CAM charges. Marketing services available include websites, branding, brochures, strategy, coaching and more. Pre-leasing discounts available until June 30. Visit www. pearlstonesuites.com or call (214) 446-3943.
Two window offices - $1000/mo./each; one interior office - $800/mo.; and one legal assistant area -$600/mo. available. Office environment is quiet and friendly with new furnishings and updated technology. Base rent includes receptionist, use of four conference rooms, up to date security system, three kitchen areas, free parking with 24-hour access to building. Additional costs include telephone, Internet, office and kitchen supplies. For more information please email Jennifer Som at Jennifer@baalegal.com or call (214) 570-0700. Downtown Dallas – Office available, located in the historic KATY Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, Wi-Fi, fax and copier available for tenants use. No lease required. Please inquire at (214) 748-1948. Offices available for rent with law firm located in Downtown Dallas Class A, arts district building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. Large furnished office space available within small real estate law firm located at 4054 McKinney Avenue. Shared Conference and break room, copier, fax, DSL & phone equipment are available if needed. There is a possibility of overflow real estate work. No long term commitment and a monthly rate of $750.00. Call Tom Smith at (214) 520-0600.
and parking garage. Contact: Cindy Robbins (972) 458-5358. Furnished Office Suite - Seeking Spanish speaking attorney to office share with Spanish speaking attorneys in Arlington. Free standing building centrally located 17 miles between downtown Dallas and Fort Worth. Receptionist, phone system, conference and break rooms. Contact George at (817) 277-5458. Uptown/Travis Walk: Law firm has an affordable window/patio office in Travis Walk off Knox St. for sublease. Great location at 4514 Travis Street, large conference room, kitchen, secretarial space, all amenities, short walking distance from a dozen restaurants. Seek compatible attorneys with their own practice to office with friendly group of litigators. Call Andrew Bergman at (214) 528-2444 or Paul Sartin at (214) 5990448 or email rsanchez@abergmanlaw.com.
POSITION AVAILABLE
Business litigation firm seeks experienced trial attorney with first chair trial, deposition, and appellate experience. Some existing hourly clientele a plus. Compensation negotiable. Firm offers first rate office facility, a tenured, experienced support staff, and good work environment. Send cover letter and resume in confidence to oaklawnfirm@aol.com.
ence preferred. Send resume in confidence to: Dallas Bar Association, Box 14–07, 2101 Ross Avenue, Dallas, Texas 75201. Legal Aid of NorthWest Texas (LANWT) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org.
POSITION WANTED
Freelance Attorney. Experienced, AV-rated commercial litigation attorney/UT Law honors graduate available for legal research, legal writing, and editing work on a project basis. High quality work product for your firm with no commitment and no overhead. Excellent references. attorney3503-7615@yahoo.com.
SERVICES
Oil and Gas Buyer. Buying royalty interests, overriding royalty interests and non-operating working interests. Send descriptive information to royalty@coromandelenergy.com for a prompt and fair evaluation. Owner is SBOT and DBA member.
Legal Administrative Assistant. Addison Law Firm, a nationally recognized, boutique, transactional firm is seeking an administrative assistant with five or more years of experience, strong word processing and administrative skills. Competitive compensation. Qualified candidates should send their resumes to mmartin@addisonlaw.com.
Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1-800-760-9890 or (214) 720-9890 for a friendly and quick analysis and response.
Dallas Firm Seeks Litigation Attorney. Small, AV rated, downtown defense litigation firm seeks a full-time attorney with a minimum of 3 years of litigation experience. Personal injury and first party bad faith experience required. Fax resume and salary requirements to Administrator at (214) 748-1421.
Child Custody Evaluations. Drs. Rinella & Talmage. Phone: (866) 882-9676.
In the June 2014 edition of Headnotes, Ms. Kimberly Gonzalez’s article-Look Out for Change at the Dallas Municipal Courthouse-was inadvertently edited in a way that suggested drivers could not prove financial responsibility after receiving a ticket. They can. The Transportation Code change provides that drivers can use electronic proof of insurance on a cell phone to prove financial responsibility but at a pre-trial hearing or at trial a judge may require written proof.
North Dallas. Intellectual Property Law firm located at Lincoln Centre is looking for a Patent Agent. At least 3 years’ experience in patent prosecution. Engineering or Computer Science preferred. Email: dallasipfirm@gmail.com for more information.
To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org
DVAP’s Finest
Small AV rated North Dallas firm seeks experienced civil litigator, probate experi-
Office Sublease. Very nice updated law office in Richardson at Central/Campbell.
North Dallas Tollway/LBJ – Class A Building - Lincoln Centre. Approx. 5,000 sq. ft. of office space for sublease. Several varying sized offices available. Shared Amenities include: Receptionist, use of conference rooms, copiers, postage meter, high speed Internet, phones, kitchen area
Correction:
John Cohn
John Cohn is a Partner in Thompson & Knight’s Tax Practice Group in Dallas. He has served as Thompson & Knight’s Pro Bono Chair, working with DVAP and other pro bono providers, for more than a decade. John’s first involvement in pro bono in his professional career was volunteering at the landlord-tenant clinics at the Housing Crisis Center, an organization dedicated to preventing homelessness and stabilizing families, the elderly, and the disabled in decent, affordable and permanent housing. John has played a vital role in organizing Thompson & Knight’s staffing of this HCC clinic once a month for more than 20 years. He has volunteered with the organization for the duration of his career, serving in various leadership roles as a board member and as president. John also serves on the Dallas Bar Association Pro Bono Activities Committee, as well as its Community Resources Subcommittee. He promotes all types of pro bono work, but specifically focuses on landlord-tenant matters, largely due in part to his involvement with HCC. Thank you for all you do, John!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
Do You Want to Refresh Your Spanish? Spanish for Lawyers is the Answer! 10-Week Fall Course | $180 • September 2-November 4, 2014 All courses are a continuation of spring semester. For more information, contact Teddi Rivas at trivas@dallasbar.org or (214) 220-7447.
Need Help? You’re Not Alone.
Need Help? You’re Not Alone. Need Help? You’re Not Alone. Need Help? You’re Not Alone. Alcoholics Anonymous…………………………...(214) 887-6699
Texas Lawyers’ Assistance Program…………...(800) 343-8527 Texas Lawyers’ Assistance Program…………...(800) 699-9306 343-8527 Narcotics Anonymous…………………………….(972) Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Al Anon…………………………………………..…..(214) Texas Lawyers’ Assistance Program…………...(800) 363-0461 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) Mental Health Assoc…………………………….…(214) 699-9306 828-4192 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Crisis Hotline………………………………………..1-800-SUICIDE Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health 828-4192 Suicide Crisis Assoc…………………………….…(214) Ctr SMU.…………………………...(214) 363-0461 828-1000 Al Anon…………………………………………..…..(214) Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Metrocare Services………………………………...(214) Mental Health Assoc…………………………….…(214) 743-1200 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE SuicideHotline………………………………………..1-800-SUICIDE Crisis Ctr SMU.…………………………...(214) 828-1000 Crisis Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 DBA Peer Assistance Committee Metrocare Services………………………………...(214) 743-1200 Metrocare Services………………………………...(214) 743-1200 DBA Peer Assistance Committee
16 H e a d n o t e s l D a l l a s B a r A s s o ciationâ&#x20AC;
Jul y 2014
Two Practices, One Mission, Helping People.
ROB CRAIN (left) | Catastrophic Personal Injury CHRIS LEWIS (right) | Criminal Defense
At Crain Lewis, we represent people when life takes an unexpected turn. With 37 collective years of trial experience, our firm is dedicated to providing the highest quality legal representation. We take pride in the fact that many of our cases are referred to us by fellow attorneys and former clients. Please call us when there is a need for personal injury or criminal defense representation. We would be honored to assist you and your family.
Crain Lewis, L.L.P. 3400 Carlisle St., Suite 200 | Dallas, TX 75204 | 214.522.9404
www.CrainLewis.com