May 2017 Headnotes: Tort & Insurance Practice by Jessica Smith

Dallas Bar Association

HEADNOTES Focus Tort & Insurance Practice

May 2017 Volume 42 Number 5

DBA Hosts Mock Voir Dire

Focus

Tort & Insurance Practice

Insurance Considerations in Tort Cases: Common Pitfalls BY MICHELLE HARTMANN, DAVID SILLERS, AND TIFFANIE N. LIMBRICK

Thank you to the volunteers who helped make the Law Day Committee’s Mock Voir Dire a success. Held at the George Allen Courthouse on April 7 for more than 200 Dallas ISD students, the event addressed the 14th Amendment. Special thanks to event organizers Law in the Schools & Community Co-Chairs Katie Anderson and Sean Whyte, and Judge Martin Hoffman. The opening panel consisted of (left to right): DBA President Rob Crain, Hon. Martin Hoffman, Katie Anderson, Dominique Sims, and Prof. Dale Carpenter.

Focus

Tort & Insurance Practice

Alexa, Will You Testify Against Me? BY JOHN G. BROWNING

Americans are more “connected” than ever- at least to the Internet. A 2015 study by Deloitte revealed that collectively we look at our smartphones around 8 billion times per day; when accounting for all age groups, that translates to about 46 times per day, per person. And the number of web-enabled devices is projected to almost triple in the next few years, from 13.4 billion in 2015 to 38.5 billion by 2020. Consumers are filling their homes with everything from “smart” kettles and refrigerators to interconnected lightbulbs, toothbrushes, baby monitors, and medical devices. But along with the explosive growth of the “Internet of Things” (or IoT) and the unprecedented information-gathering by such devices have come dramatic new concerns about consumer privacy, data security, and the potential uses for such data in litigation. It is already happening, as recent headlines have demonstrated. In February, police in Ohio charged 59-year-old Ross Compton with aggravated arson and insurance fraud after data from his pacemaker was inconsistent with his story about his physical activity when his house burned down. Compton claimed that he had frantically packed some belongings, broken the glass of a bedroom window to get out and scrambled to escape. But a cardiologist reviewed the heart monitor’s data (obtained through a warrant), and concluded that Compton’s account was “highly improbable.” Earlier this year, Arkansas police sought help in

solving a murder from an unusual source: the Amazon Echo, the popular web-connected wireless speaker that, upon voice command, can provide music and information on a variety of topics. As users know, “Alexa” is always listening through 7 built-in microphones, and when a voice command is made it also records under 60 seconds of sound from its surroundings (streaming this audio into the cloud)—including a fraction of a second before its “wake word.” Prosecutors sought this data to aid in their case against Andrew Bates, who was charged with first-degree murder after his friend Victor Collins was found strangled and drowned in Bates’ hot tub. They believed that Bates’ Amazon Echo may have recorded incriminating audio, such as the sounds of an argument or struggle; Amazon, however, has resisted turning over the data, citing user privacy. Wearable technology, including activity/fitness trackers like Fitbit or Apple’s “smartwatch,” has also helped usher in the IoT revolution. Devices like the Fitbit, Jawbone, or Nike Fuelband monitor and store a whole host of data about one’s physical condition, location, heart rate, exertion level, and even sleep patterns. This digital trove of insight into the health and lifestyle of the device’s wearer can have considerable value for enterprising attorneys in virtually any kind of case in which an individual’s physical condition might be relevant. In late 2014, a Canadian personal injury case demonstrated this fact when the attorney for the plaintiff continued on page 16

In tort suits, especially those involving multiple parties with indemnity and cross-indemnity obligations, it is important for counsel to understand— at the outset of the matter—the coverage that a client may have. Choices made at the beginning of a case can be critical to the eventual outcome—and who pays for it. To avoid some common pitfalls when handling your next tort suit, bear the following in mind: Know Your Client’s Insurance Tower. Although not a pitfall per se, it is important to have an understanding of your client’s insurance tower—including the levels of liability insurance and what each level covers. Knowing these facts at the beginning of a case can guide case strategy and how to approach both offers of settlement and settlement. For example, your client may be motivated to settle below a particular dollar amount so that it stays within a particular level in its insurance tower. And, particularly when the case involves a Stowers demand from the opposing side, it is important to keep insurers from all relevant tower levels involved in early offers of settlement. Multi-Defendant Suits: Right to Indemnification vs. the Duty to Defend. In the typical multi-defendant tort suit, your client may find itself with a duty to indemnify other parties involved, as well as a duty to defend those parties. Those duties are separate under Texas law. • The duty to defend is a contractual right that often includes the authority to select the attorney who will defend the claim and to make other decisions that would normally be vested in the insured as the named party in the case. • The duty to indemnify arises at the end of the suit after liability is actually established. The courts have held there is no justiciable controversy regarding the insurer’s duty to indemnify before a judgment has been rendered against an insured. • One pitfall to keep in mind is the potential for a conflict of interest between the insurer and insured if the insurer reserves the right to deny the indemnity claim. If the facts used to potentially dispute coverage are the same as in the underlying lawsuit, a conflict may exist and the insurer may have more limited rights in terms of guiding the defense or selecting counsel.

Anti-Indemnity Statutes. Whether in the role of indemnitor or indemnitee, it is important to know whether an antiindemnity statute applies that may limit whether there is a duty to indemnify. For example, the Texas Oilfield AntiIndemnity Act prohibits indemnification of a negligent indemnitee, with only very specific exceptions. When analyzing indemnification obligations in any field of the law, it is sensible to check for requirements to enforce indemnification agreements under applicable anti-indemnity laws. Also be mindful of complex conflicts of laws issues that may arise if different states’ laws are implicated. Workers’ Compensation Insurance. If there is a physical injury involved, you may have to consider multiple sources of insurance, including workers’ compensation insurance and liability insurance. Consider whether value can be created for your client by understanding that, in some situations, a workers’ compensation claimant may be willing to adjust his or her demands based on whether the settlement will also affect current or future credit for workers’ compensation benefits. Depending on who funds and/or insures the policies (particularly in the instance of an entity which is self-insured), additional coverage and/or leverage may be discovered. Settlement: Understanding the Stowers Duty. In G.A. Stowers Furniture Co. v. American Indemnity Co., when faced with a set of particularly egregious facts, the Texas Supreme held that insurers are subject to a duty to accept reasonable offers within policy limits. If an insurer violates the duty, you may be able to seek damages for the judgment separate from the contract and in excess of the insurance coverage. A settlement offer typically triggers this duty when (1) the claims are within the scope of coverage, (2) the demand is within policy limits, and (3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment. When presented with such a settlement offer, make sure it fully and completely releases the insured and any indemnitees, including the satisfaction of any HN outstanding liens or obligations. Michelle Hartmann is a Partner at Sidley Austin LLP and can be reached at mhartmann@sidley.com. David Sillers and Tiffanie N. Limbrick are Associates at Sidley Austin LLP and can be reached at dsillers@sidley.com and tlimbrick@sidley.com, respectively.

Inside 9 Storage Woes – A Cautionary Tale of Stolen Art & Subrogation Rights

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13 Ask and You Shall Receive (Maybe) – Stowers After Nearly 90 Years 17 Texas Dram Shop Claims . . . Back from the Dead

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

May 2017

Calendar May Events MAY 5-BELO Noon

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

FRIDAY CLINICS

“The Jury Likes Me, The Jury Likes Me Not: Building Rapport In The Courtroom,” Jason Bloom. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.

MAY 12-NORTH DALLAS** Noon

“The Dos and Don’ts of Regulating Employees’ Use of Social Media,” Leiza Dolghih. (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 Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org.

CLE Committee Criminal Justice Committee Publications Committee Christian Lawyers Fellowship DAYL Pro Bono Partners Committee 6:00 p.m. J.L. Turner Legal Association

FRIDAY, MAY 12 Noon

MAY 19-BELO Noon

“Fighting the Rising Tide of Suicides in the Legal Profession: How Can You Help Prevent It?” Brian Farlow and Terry Bently Hill. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org. Sponsored by the CLE & Peer Assistance Committees, and Transition to Law Practice Program.

MONDAY, MAY 1 Noon

Tax Law Section “Current Issues and Transaction Structures for Tax-Free Spin-offs,” David Wheat. (MCLE 1.00)*

TUESDAY, MAY 2 8:30 a.m. Intellectual Property Law Section Seminar “Lone Star Strategies for IP in China.” (MCLE 5.25)* Noon Corporate Counsel Section “Document Retention Programs,” Steve Graham. (MCLE 1.00)* Tort & Insurance Practice Section “Living an Impactful Life in the Law,” Lewis Sifford. (Ethics 1.00)* Morris Harrell Professionalism Committee 6:00 p.m. DAYL Board of Directors Meeting

member. Register online at www2.dallasbar. org/dbaweb/eventregistration/EthicsFest.aspx or contact mmejia@dallasbar.org. (Ethics 3.00)*

11:45 a.m. Annual Law Day Luncheon Keynote speaker: Hon. Tonya Parker, 116th District Court. To purchase tickets, visit www.dallasbar.org or contact lhayden@ dallasbar.org.

Noon

Employee Benefits & Executive Compensation Law Section Topic Not Yet Available Solo & Small Firm Section “Fixin’ to Get Bought”—How to Prepare Your Client for an Acquisition,” Brad Whitlock. (MCLE 1.00)* Courthouse & Public Forum Committees “Courthouse & Public Safety Forum,” Larry Thompson. (MCLE 1.00)* RSVP to lori.bodino@ dallascounty.org.

ADR/Collaborative Law Sections “A Bicycle Built for Two: Using Mediators in Collaborative Cases,” Lawrence Maxwell and Anne Shuttee. (MCLE 1.00)*

TUESDAY, MAY 9 Noon

FRIDAY, MAY 19 Noon

MONDAY, MAY 22 Noon

MONDAY, MAY 15 Noon

Labor & Employment Law Section “Waivers of Class Action/Collective Action in Arbitration Agreements,” Jay Forester and Matthew Kolodoski. (MCLE 1.00)* Real Property Law Section Topic Not Yet Available

TUESDAY, MAY 16 Noon

Mergers & Acquisitions Section “Best Practices for Working with In-House Counsel on M&A Transactions,” Panel of in-house counsel. (MCLE 1.00)*

Antitrust & Trade Regulation Section Topic Not Yet Available Business Litigation Section “General Counsel Report: What Dallas GCs are Thinking for 2017 and Beyond,” Russ Coleman, Lauren Leahy, and Josh Nicosia. (MCLE 1.00)*

Home Project Committee

International Law Section “U.S. Customs Compliance in 2017: Best Practices in the Heightened Enforcement Climate,” Elsa Manzanares. (MCLE 1.00)*

WEDNESDAY, MAY 10

Science & Technology Law Section “The Privacy/Security Legal Risks of Connected Vehicles,” Alma Murray and Chad Pinson. (MCLE 1.00)* Securities Section “Navigating the Wells Submission Process for Individual Clients,” David Silva and Arielle Tobin. (MCLE 1.00)*

SUNDAY, MAY 14 10:30 a.m. Mother’s Day Brunch at Belo. Adults: $39.95, Children 6-12: $13.75. RSVP: culinairesales@dallasbar.org or (214) 2207404 by May 5.

Friday Clinic-Belo “Fighting the Rising Tide of Suicides in the Legal Profession: How Can You Help Prevent It?” Brian Farlow and Terry Bently Hill. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org. Sponsored by the CLE & Peer Assistance Committees, and Transition to Law Practice Program. DAYL Lawyers Against Domestic Violence Committee

DAYL Student Debt Program

Courthouse Committee

Noon

1:00 p.m. DWLA Board of Directors

DAYL Freedom Run Committee

Immigration Law Section “ICE Enforcement in 2017,” Liz Cedillo-Pereira and Sarah Saldaña. (MCLE 1.00)* Peer Assistance Committee

DAYL Judiciary Committee 5:30 p.m. Bankruptcy & Commercial Law Section “Student Loan Discharge: Nearly Impossible, or Growing Necessity?” Thomas Berghman and Davor Rukavina. (MCLE 1.00)*

Friday Clinic-Belo “The Jury Likes Me, The Jury Likes Me Not: Building Rapport In The Courtroom,” Jason Bloom. (MCLE 1.00)* RSVP to yhinojos@ dallasbar.org.

MONDAY, MAY 8

WEDNESDAY, MAY 3 Noon

Trial Skills Section “All Wired Up: Effective Use of New Technology and Engaging Visuals for Increasingly TechFriendly Juries,” Casey Gooden and Mark Reiter. (MCLE 1.00)*

FRIDAY, MAY 5

Noon

Friday Clinic—North Dallas** “The Dos and Don’ts of Regulating Employees’ Use of Social Media,” Leiza Dolghih. (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 Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org.

Minority Participation Committee Christian Legal Society DAYL Animal Welfare Committee DAYL Lunch & Learn Dallas LGBT Bar Association Dallas Women Lawyers Association

Senior Lawyers Committee DAYL Membership Committee

TUESDAY, MAY 23 Noon

Probate, Trusts, & Estates Law Section “Tax Law Update,” Prof. Stanley Johanson. (MCLE 1.00)* DAYL Lawyers Promoting Diversity

1:15 p.m. DVAP Ad Litem Certification (1:15 p.m., immediately following Probate CLE) “Guardianship Ad Litem Certification Course— Probate Law,” Speakers include experienced probate law practitioners and a probate judge. (MCLE 4.00, Ethics 1.00)*

WEDNESDAY, MAY 24 Noon

Entertainment, Arts & Sports Law Section “Challenges to the Model of Intercollegiate Athletics,” Oliver Luck and Marc Taubenfeld. (MCLE 1.00)* DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.

THURSDAY, MAY 25

THURSDAY, MAY 4

Family Law Section “An Ounce of Prevention: Family Law Help for Abuse Cases,” Ona Foster. (MCLE 1.00)*

Noon

Construction Law Section “Quirky Texas Mechanic’s Lien and Bond Case Law and Issues in Multi-Lien Claimant Litigation,” Misti Beanland. (MCLE 1.00)*

Bench Bar Conference Committee

Media Relations Committee “Fake News and the Very Real Risks Associated With It,” Jason Bloom, Allen Pusey, and Randall Samborn. (Ethics 1.00)*

Public Forum Committee

Community Involvement Committee

Christian Legal Society

Summer Law Intern Program Committee

Entertainment Committee

DBA CSF Board Meeting

Family Law Section Board Meeting

Dallas Asian American Bar Association

Dallas Bar Foundation Board of Directors

DAYL CLE Committee

Judiciary Committee Lawyer Referral Service Committee St. Thomas More Society 4:45 p.m. Annual Evening Ethics Fest Early registration deadline: April 30 at midnight. Early Pricing: $65 DBA members/$135 non-

5:15 p.m. Legalline. Volunteers needed. RSVP to sbush@ dallasbar.org.

THURSDAY, MAY 11 Noon

Government Law Section Topic Not Yet Available

Noon

Environmental Law Section “Topic Not Yet Available,” Howard Slobodin. (MCLE 1.00)*

DAYL Elder Law Committee 4:00 p.m. DAYL Swearing-In Ceremony 6:00 p.m. DAYL Aid to the Homeless Committee

FRIDAY, MAY 26 No DBA Events Scheduled

Dallas Hispanic Bar Association

WEDNESDAY, MAY 17 7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group Noon

Energy Law Section “Texas Oil & Gas Cases to Watch in 2017,” Austin Brister and Chris Halgren. (MCLE 1.00)* Health Law Section “Trends and Emerging Issues in Managed Care Litigation,” Jonathan Herman. (MCLE 1.00)* Courthouse Committee “Courthouse Technology Bootcamp,” Hon. Martin Hoffman. At the George Allen Building. (MCLE 1.00)*

MONDAY, MAY 29 DBA Office Closed in Observance of Memorial Day

TUESDAY, MAY 30 No DBA Events Scheduled

WEDNESDAY, MAY 31 Noon

THURSDAY, JUNE 1 Noon

Pro Bono Activities Committee Non-Profit Law Study Group

Noon

Appellate/Criminal Law Sections “Criminal Appeals: A Panel Discussion with Members of the Dallas Court of Appeals,” Hon. Molly Francis, Hon. Lana Myers, and Hon. Craig Stoddart. (MCLE 1.00, Ethics 0.25)* DVAP CLE “The OAG is Involved in My Divorce Case, What do I do Now?” (MCLE 1.00)* RSVP to vallejod@ lanwt.org. South Dallas Clinic “Immigration 101,” Michelle Alonzo and Angela Lopez. (MCLE 1.00)* At UNT Dallas, 7400 University Hills Blvd, Building 2, Room #138. Park in lot in front of 7400 University Hills Blvd. RSVP to yhinojos@dallasbar.org.

Construction Law Section “Environmental Law Impacts on a Construction Project,” Jean Flores. (MCLE 1.00)* Family Law Section Board Meeting

5:15 p.m. Legalline. Volunteers needed. RSVP to sbush@dallasbar.org.

THURSDAY, MAY 18

DAYL Equal Access to Justice Committee Municipal Justice Bar Association

Judiciary Committee 2:00 p.m. Law Student Professionalism Program “A Program for Law Students & Recent Law Graduates,” Keynote speaker: Hon. Catharina Haynes. Additional speakers: Wes Alost, Justice Douglas S. Lang, and Frank Stevenson. (MCLE 3.00)* RSVP to kzack@dallasbar.org. Sponsored by Morris Harrell Professionalism Committee.

FRIDAY, JUNE 2 Noon

Friday Clinic-Belo “Texas Litigation Update on Topics Throughout Energy Space,” Jonathan Childers. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org. Summer Associates Pro Bono Luncheon (MCLE 1.00)* To RSVP, email vallejod@ lanwt.org. Sponsored by DVAP and the DBA Pro Bono Activities Committee.

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Yedenia Hinojos at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.

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

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

May 2017

President’s Column

Headnotes Published by: DALLAS BAR ASSOCIATION

Stronger Together BY ROB CRAIN

One of the best perks of serving on the DBA’s Board of Directors is we occasionally have the opportunity to speak at naturalization ceremonies for new U.S. Citizens. This is one of the most humbling and prideful ceremonies you will ever witness in connection with our Constitution. Thanks to the U.S. Northern District’s Chief Judge, Barbara Lynn, the DBA will host its first Naturalization Ceremony on June 29 at 11:00 a.m. at the Belo Mansion—please mark your calendar. When I speak at these ceremonies, I often reference Shakespeare’s famous line from his play, Henry VI, “the first thing we do, let’s kill all the lawyers.” It usually elicits a few laughs, but it also provides the context for educating the audience about the importance of the Rule of Law and the role of lawyers. Shakespeare’s point is that lawyers are the protectors of the rule of law. In the play, the line is spoken by a co-conspirator planning to overthrow the English government. The idea is that if the conspirators get rid of the lawyers, the protectors of the rule of law are removed and the overthrow can commence with ease. There are several moments in our history I personally relate to this quote: John Adams’ famous representation of British soldiers; former DBA President Louis Nichols offering representation to Lee Harvey Oswald (if you have not seen Louis’ interview after meeting with Oswald, google it; you will be proud); as well as a number of moments in recent history when lawyers volunteered to represent terrorists—Timothy McVeigh’s representation by Oklahoma attorney Stephen Jones, and 9/11 mastermind Khalid Sheikh Mohammad’s representation by Idaho attorney David Nevin. All of these lawyers took risks to maintain the integrity of our Constitution and laws. These examples are criminal matters, and as we all know, individuals charged with serious crimes have the right to an attorney regardless of whether they can afford an attorney. Protecting the rights of individuals in civil matters is just as important for the health and fabric of our nation. The 7th Amendment of the Bill of Rights, as well as many state constitutions, codifies the right to jury trials in many civil cases. James Madison stated that “trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” Unfortunately, many U.S. residents cannot afford an attorney to access this fundamental right. There are thousands of North Texans struggling with serious civil matters who are unable to traverse the legal system: husbands and wives in abusive relationships who cannot get protections or a simple divorce, tenants who are mistreated by unethical landlords, hardworking individuals who are being financially crushed by unscrupulous lenders engaging in usury, real property interest holders who are taken advantage of due to disparate bargaining positions. On any day, you can go to the library at the George L. Allen, Sr. Courthouse and find 50 people trying to navigate their civil legal problems without an attorney. Most of them are confused, frustrated, and losing hope. Most of them cannot afford an attorney.

Naturalization Ceremony at Belo Join us as we host the ﬁrst U.S. Naturalization Ceremony at the Belo Mansion. Thursday, June 29, 11:00 a.m. Presiding Judge: Hon. Barbara M.G. Lynn

In the early 1980s, Judge Merrill Hartman started a free legal clinic at his Church, Lake Highlands United Methodist Church. His efforts were the building blocks for the Dallas Volunteer Attorney Program (DVAP). For Judge Hartman, “Justice for All” was not just a slogan, it meant access to the courts started with access to a lawyer. DVAP recruits, trains, and supports volunteer attorneys to provide free, civil legal help to low-income people in Dallas County. DVAP volunteers provide advice and full representation in a variety of cases, including family, housing, landlord tenant, real property, consumer, wills, expunctions and nondisclosures, probate, and more. Last year, DVAP opened 4,414 new cases. Nearly 600 attorneys volunteered their time. These attorneys are the unsung heroes of our profession. They give their time and service to strangers. They make us safer. They hold the unscrupulous accountable. They remove obstacles of progress. They improve the quality of life for our community. They are protectors of the Rule of Law. For those who would like to volunteer, please contact Michelle Alden at (214) 243-2234. This is also an excellent opportunity for young lawyers to get experience. The types of cases are diverse and range from the simple to the complex. Mentors are available to assist. For those who do not want to take on a case there are also opportunities to volunteer at one-day clinics. Funding for DVAP comes from multiple sources, including funds raised by our Equal Access to Justice Campaign. Last year’s Co-Chairs, David Kent and Karen McCloud, raised a record amount of $1,100,415. DVAP also relies on grants from the state-funded Texas Access to Justice Foundation (TAJF) and the federally-funded Legal Services Corporation (LSC). Thanks to the campaign, DVAP relies on TAJF and LSC on a more limited basis. Most other legal aid organizations across the state and country rely heavily on these two entities. Unfortunately, this year’s proposed budget from the Texas Senate zeroed out TAJF funding and the Texas State House of Representatives reduced the $20 Million line-item for TAJF to $10 million. Likewise, President Trump’s proposed budget eliminates all federal funding for LSC, approximately $375 million. If the current budgets are approved, most legal aid organizations across the state and country will disappear or be greatly diminished. An entire segment of our population will be denied access to our justice system. Nathan Hecht, Chief Judge of the Texas Supreme Court, is an ardent supporter of funding for legal aid. In a recent Texas Lawyer article he notes there are approximately 5.6 million Texans who qualify for legal aid. He references studies showing the economic benefits of helping people deal with their legal problems, “and get on their feet” to be productive. He is reaching out to the White House and Congress to express his support for legal aid. People seeking help from legal aid are the individuals trying to improve their lives. There are many among us who need our help. Thank you to all of you who donate your talents, time, and money to lift up our brothers and sisters in need. Stronger Together Rob HN

SIGN UP FOR THE 2017 DBA 100 CLUB! What is the DBA 100 Club? The Dallas Bar Association 100 Club is a special membership recognition category given to firms, agencies, law schools and organizations that have 100% membership in the Dallas Bar Association. What is the cost to join the DBA 100 Club? It’s FREE! How do you join? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments may qualify for the DBA 100 Club if all attorneys are members of the Dallas Bar Association. To join the 2017 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2017 DBA 100 Club membership list! What are the perks? Our 2017 DBA 100 Club members will be recognized in Headnotes, the 2018 DBA Pictorial Directory and receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November.

JOIN TODAY!

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: Rob D. Crain President-Elect: Michael K. Hurst First Vice President: Laura Benitez Geisler Second Vice President: Robert L. Tobey Secretary-Treasurer: Rocio Cristina Garcia Immediate Past President: Jerry C. Alexander Directors: A. Shonn Brown, Jonathan Childers, Dawn Estes, Sakina Foster, Stephanie Gause, Hon. Bonnie Goldstein (Judicial At-Large), Hon. Martin Hoffman, Christopher Kang (President, Dallas Asian American Bar Association), Krisi Kastl, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud (Vice Chair), Kate Morris, Cheryl Camin Murray, Erin Nowell, Paul Simon (President, Dallas Association of Young Lawyers), Tramaine Tinner (President, J.L. Turner Legal Association), Aaron Tobin (Chair), and Victor D. Vital Advisory Directors: Isaac Faz (President-Elect, Dallas Hispanic Bar Association), Ashlei Gradney (PresidentElect, J.L. Turner Legal Association), Shruti Krishnan (President-Elect, Dallas Asian American Bar Association), Stephanie Osteen (President-Elect, Dallas Women Lawyers Association), Jennifer Ryback (President-Elect, Dallas Association of Young Lawyers), and Dena DeNooyer Stroh (President, Dallas Women Lawyers Association) Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Leon Carter, John Jansonius, Gregory Sampson, and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Josh Garza Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Alexander Farr and Keith Pillers Vice-Chairs: Andy Jones and Carl Roberts Members: Timothy Ackermann, Logan Adock, Wes Alost, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Amanda Brown, Paul Chappell, Charles Coleman, Shannon Conway, Rob Crain, James Deets, James Dockery, Maria Fernandez, Dawn Fowler, Andrew Gould, Susan Halpern, Meghan Hausler, Jeremy Hawpe, Beth Hearn, Lindsay Hedrick, Nicole Holland, Michael Hurst, Brad Jackson, Andrew Jones, Kristi Kautz, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravick, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jr., R. Sean McDonald, Kadie Michaelis, Terah Moxley, Jessica Nathan, Eugene Olshevskyy, Kirk Pittard, Laura Anne Pohli, Charles Price, Mark Rasmussen, Adam Reed, Kathy Roux, Joshua Sandler, Mary Scott, Jared Slade, Christopher Snyder, Thad Spalding, Shana Stein, John Stevenson, Scott Stolley, Amy Stowe, Adam Swartz, Ashely Swenson, Michael Tristan, Pryce Tucker, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karra Rybicki, Dominick Vallejo Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2017. 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.

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AUBREY M. CONNATSER Top 100 Attorneys in Texas (Super Lawyers 2014-15, 2017) Top 100 Attorneys in DFW Top 50 Women Attorneys in Texas (Super Lawyers 2014-17) Board Certified in Family Law (Texas Board of Legal Specialization )

Professionals in law, medicine, business and sports rely on Aubrey Connatser and her talented family law team for wise counsel and a shrewd approach to problem solving. That’s why she is recognized among Texas’ top family lawyers.

To retain Aubrey M. Connatser for a family law matter, call 214 306-8441 or email aubrey@connatserfamilylaw.com.

AUBREY M. CONNATSER, PLLC 300 Crescent Court, Suite 270, Dallas, TX 75201 214 306-8441 | connatserfamilylaw.com info@connatserfamilylaw.com

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

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

May 2017

Column State Bar of Texas President

Solving the Justice Riddle BY FRANK STEVENSON

Are you good at riddles? Try this one. Last year, Texas lawyers gave roughly 3.21 million hours of free or heavily discounted pro bono legal services to the poor worth—conservatively—$870.4 million. Yet still thousands of Texans desperately needing legal assistance go without help. So, is the glass half empty or half full? Or maybe that is not the riddle that needs solving. Maybe instead it is simply: Where is the faucet? I have been spending time with a decidedly “find-the-faucet” group of Texas lawyers, all committed to solving the justice riddle. Last December, a commission appointed by the Texas Supreme Court issued a series of recommendations to expand civil legal services for modest-means clients in Texas. This report was the harvest of over a year of

work by leading legal scholars, judges, and lawyers—every one a find-the-faucet type. Among its recommendations was for the Supreme Court to “support and promote ‘legal incubators,’ providing supervision and training for lawyers who plan to open their own offices after law-school graduation, and (to) expand such Frank Stevenson programs.” Three months later, Texas was honored to host the national Consortium for Access to Justice Conference at Texas A&M University School of Law in Fort Worth. People came from across the country—in fact, from around the world—to advance incubators,

Annual Evening Ethics Fest Thursday, May 4, at the Belo Mansion

Check-In and Dinner begins at 4:45 p.m. Program begins at 5:30 p.m. (3.00 Ethics) DBA members: $65 early registration | $95 late registration Non-members: $135 early registration | $155 late registration To register, log on to www.dallasbar.org. For more information contact Marcela Mejia at (214) 220-7410 or mmejia@dallasbar.org. Sponsored by the DBA Legal Ethics Committee

residencies, apprenticeships, and nonprofit law firms as means to solve the justice riddle. I heard from the find-the-faucet crowd all the remarkable progress being made elsewhere, and was honored to report on all the progress being made right here. Texas A&M University School of Law has launched the Texas Apprenticeship Program to match recent law graduates with practitioners who share the goal of serving modest-means clients. Baylor Law School’s Legal Mapmaker program is operating in cooperation with other law schools—including SMU Dedman and UNT Dallas—to provide a practice development template for young lawyers who want to start their own firms. And the State Bar launched the inaugural cohort of our own incubator program in April. The Texas Opportunity and Justice Incubator—or TOJI—will expand access to justice for low- and moderateincome Texans by assisting new lawyers in establishing sustainable practices that serve this population. TOJI training will equip our grads to support themselves and their families, thus conferring careers affording the rare opportunity to do good and do well. It’s been accomplished elsewhere and it’s being accomplished here. Since November, we have responded to over 400 phone and email inquiries from potential TOJI applicants, volunteer attorneys, and law school faculty and administrators. Forty-eight qualified Texas lawyers applied for the 10 spots in our inaugural cohort, and we are now accepting applications for the second cohort, expected to begin in October. Please tell any find-thefaucet types you know about TOJI.

While most of TOJI’s activities take place in Austin, TOJI is not just an Austin program. TOJI participants are required to reside in Austin during our 18-month program, but our graduates will be welcome— in fact encouraged—to relocate anywhere to establish their practices. And our ultimate goal is to establish TOJI as a model and curriculum for similar incubator projects throughout Texas. We want to have faucets running all across the state. We also see growing interest in the nonprofit law firm model—another find-thefaucet initiative. Several nonprofit firms are operating in Texas, and two members of TOJI’s inaugural cohort intend to launch their own. That model, which typically utilizes sliding-scale fees based on income, is yet another innovative way to solve the justice riddle. So, if you are good at riddles, there is none worthier than this one. When I was DBA president, we honored Morris Dees of the Southern Poverty Law Center. And a photo of the Center’s Civil Rights Memorial appeared on the screen. An inscription on the Center’s façade reads “…until justice rolls down like waters and righteousness like a mighty stream,” Martin Luther King’s paraphrase in his “I Have a Dream” speech of Amos 5:24—a modern prophet summoning an ancient one. It sounds no less prophetic today. And all it might take is to find enough faucets. HN Frank Stevenson, a partner in Locke Lord in Dallas, is the 20162017 president of the State Bar of Texas and a former president of the Dallas Bar Association.

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

Our team consists of experienced trial lawyers with rich knowledge and distinguished track records in and out of the courtroom.

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

May 2017

Column Ethics

Ethical Considerations in Fixed Fee Agreements by David Dummer and Brandon A. Fuqua

Lawyers provide valuable services to clients, but setting a price on that value is one aspect of the attorney-client relationship that is often most strained. While alternative fee arrangements have long been available options, they are becoming increasingly popular among lawyers and clients alike. One of an admittedly infinite number of such alternatives is the fixed fee that allows for a flat fee for an entire matter or a subset. Fixed fees allow clients to control costs, create a budget, and avoid the uncertainty of the hourly rate arrangement. Lawyers, too, can benefit from fixed fees by receiving payment based on performance and efficiency rather than the ultimate, uncertain outcome. By delivering efficiency and agreeing to share some of the risk inherent in any engagement, lawyers have the ability to remove the possibility of sticker shock to clients and further strengthen the attorney-client relationship. Further, it can be an effective way to build a relationship with a client by demonstrating an ability to deliver results rather than having the client focus on an hourly rate, which to many clients may seem like a dollar figure rather than a reflection of expertise.

While there can be advantages to using alternative fee arrangements, such as fixed fee agreements, lawyers must be aware of the ethical considerations in drafting these agreements. Best practices would include ensuring that the agreements is in writing, that it unambiguously states the amount of the fee, and clearly identifies what services are included with the fee (and possibly what services are excluded or subject to further negotiation).

Zealous Representation Still Required

Regardless of the type of fee arrangement, it remains the lawyer’s ethical responsibility to provide the necessary professional representation to the client. Commentary to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct maintains that a lawyer act with “competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf.” This applies to fixed fees and hourly billing alike. But a lawyer’s zeal may not vary if a matter becomes more complicated than initially anticipated. Fixed fees help align the interests of lawyers and clients since both parties are accepting some risk in the matter.

Fees Must be Reasonable

Rule 1.04 of the Texas Disciplinary Rules of Professional Conduct mandates that any fee agreement between lawyer and client must be “reasonable.” This determination entails considering a variety of factors, which may include (1) the time and labor involved, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; and (2) the experience, reputation, and ability of the lawyer or lawyers performing the services. Rule 1.04(b)(1), (7). With traditional hourly billing, a lawyer who has specialized in a niche area of the law and has handled many cases with similar facts will likely bill fewer hours than a competent but less experienced lawyer under similar circumstances. By contrast, a fixed fee agreement allows skilled lawyers to use their prior matters as an asset.

Client May Reject Renegotiated Fee

In a typical fixed fee matter, the attorney will agree to represent the client for discrete issues. But what happens in the event the case takes an unexpected turn thus becoming more complicated and time-intensive

in a manner not contemplated by the initial agreement? Once the attorney-client relationship has been established, there is a presumption of unfairness or invalidity when the attorney tries to renegotiate the fee during the course of representation. As a fiduciary, the lawyer must fully explain the new proposed terms as well as the client’s option not to accept them unless the client deems them to be reasonable. Thus it is critically important to express a clear statement of the scope of the lawyer’s services to be provided to mitigate the likelihood of later fee renegotiations. For example, counsel may agree to represent a client who has received a pre-suit demand through mediation with both the lawyer and client agreeing that the representation will be re-evaluated if mediation fails. Ultimately, fixed fee agreements and other alternates to traditional hourly billing provide lawyers with choices that can serve to strengthen the attorney-client relationship. By remaining apprised of ethical responsibilities, a lawyer can best and most ably serve his or her client in this dynamic period of change throughout the industry. HN David Dummer is counsel at Sidley Austin LLP, and Brandon A. Fuqua is an associate at the firm. They can be reached at ddummer@sidley.com and bfuqua@sidley.com, respectively.

Judicial Investiture at Belo

Fighting the Rising Tide of Suicides in the Legal Profession: How Can You Help Prevent It? Speakers: Brian Farlow and Terry Bently Hill Friday, May 19, Noon at Belo | Ethics 1.00 Sponsored by the CLE, Peer Assistance & Transition to Law Practice Committees

On March 22, the DBA hosted the Judicial Investiture of Justice Jason E. Boatright, of the Fifth District Court of Appeals, (center, shown with Mrs. Boatright), being sworn in by Justice Carolyn Wright (right).

8th Annual Child Welfare Conference Thursday, June 8, 8:00 a.m. to 5:00 p.m. at Belo MCLE 7.50 (Ethics 3.50) For rates and registration information, log on to www.dallasbar.org. Presented by the DBA Juvenile Justice Committee

oin us for a culinary tour at the beau�ful Pavilion at the Belo Mansion as you celebrate Mother’s Day. Dine in the ballroom or on the exquisite terrace overlooking the Arts District and enjoy complimentary champagne and mimosas. A boun�ful selec�on of fresh fruit, breakfast breads, chilled seafood sta�on, carved prime rib, omelets and freshly made pancakes and waﬄes, a variety of pies, cakes and sweets, and the ever-popular children’s buﬀet. Serving hours from 10:30 a.m. to 2:30 p.m. | Adults: $39.95; Children 6-12: $13.75 Garage parking available ( from Olive Street. ) Taxes, gratuities and parking not included Reservations Required by May 4. Credit Card to hold reservation. No-shows will be billed. Call: ( 214 ) 220-7404 or email culinairesales@dallasbar.org. Limited seating. Sponsored by the DBA Entertainment Committee.

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Focus

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

Tort & Insurance Practice

Storage Woes - A Cautionary Tale of Stolen Art & Subrogation Rights BY JAMIE K. BAKER AND LINDSEY SHINE LAWRENCE

While stories of art heists often conjure images of thieves absconding from museums, artworks in storage are also at risk of theft. One Southern California woman placed paintings she inherited into a Public Storage unit for years, only to later discover that her paintings, which included works by Picasso, Degas, and Modigliani, had vanished. In 2013, a Norman Rockwell painting disappeared from storage shortly after it was purchased for over $1 million at auction. Storing art and other collectibles requires careful consideration of the storage facility, including physical risks relating to security, location, and climate and pest control. Understanding the storage facility’s contract terms is just as important. Contract terms may define the storage facility’s role as a lessor or bailee, impact liability, impose all insurance obligations on the unit occupant, and, depending on the type of facility, may even state that the premises are not suitable for the storage of heirlooms or irreplaceable property like art. Of special concern to art insurers are contract terms that attempt to limit or release the storage facility from loss or damage liability. A recent Southern District of Texas case involving paintings stolen from a Houston storage unit highlights the potential impact of contract terms on art insurers’ subrogation rights. In AXA Art Americas Corporation v. Public Storage, CV H-15-3609, 2016 WL 5372530 (S.D. Tex. Sept. 26, 2016), stolen

paintings, valued at over $800,000, were insured by AXA Art Americas Corporation (AXA). After the theft, AXA brought a subrogation suit against Public Storage for breach of contract and tort duties. The Court dismissed AXA’s suit without leave to amend, finding that the storage unit lease terms shielded Public Storage from liability for the stolen artwork. AXA’s right to sue as the insureds’ subrogee had been extinguished in light of the insureds’ waiver of their own recovery rights. It is axiomatic that a subrogation claim allows an insurer to stand in the shoes of the injured insured; however the insurer is not entitled to any greater rights than those possessed by the insured. As the Court noted, Texas law is clear that an insurer may assert only those rights that the insured could assert, whereas Texas law remains unclear regarding whether an insured may unilaterally waive an insurer’s subrogation rights separately from waiving his or her own right of recovery. In this case, the Court found that AXA’s claims against Public Storage could not proceed, regardless of whether the contractual subrogation waiver was effective, because its tort claim was barred by the economic-loss doctrine and its contractual claims were barred by the terms of the unambiguous storage lease agreement, in which the parties disclaimed Public Storage’s liability for lost or damaged property in express, specific terms. The moral of the story: if an insured contractually releases a storage facility lessor from liability for damage to, or loss of, property such

as artwork stored on the premises, the insurer’s subrogation rights may be extinguished under Texas law. In contrast, a New York court recently held that a loss/damage waiver was unenforceable to waive a fine art storage company’s liability for Superstorm Sandy damages to an insured gallery’s stored works. In XL Specialty Insurance Company v. Christie’s Fine Art Storage Services, Inc., 137 A.D.3d 563, 27 N.Y.S.3d 528 (N.Y. App. Div. 2016), the court found that the contract created a bailor/bailee relationship under UCC Article 7 rather than a lessor/ lessee relationship, and the insurer’s ability to pursue its subrogation claim survived despite the loss/damage waiver signed by the insured. While liability could be limited, the loss/damage waiver was found unenforceable because it purported to exempt the storage facility from all liability in contravention of UCC Article 7.

The AXA v. Public Storage case is a cautionary tale for art insurers managing the risk of insuring art and other valuable items housed in storage in Texas, putting insurers on notice of the need to protect their subrogation rights before a loss occurs. Carriers may seek to add policy language excluding coverage for certain storage losses. They may also require insureds to obtain prior written approval when attempting to limit or release a storage facility lessor from liability. The insured’s waiver of his or her own rights may have a significant effect on insurers’ ability to recover through subrogation, which in turn may impact the coverage offered by insurers for art and other valuables in storage. HN Jamie Baker is Of Counsel, and Lindsey Lawrence is a Senior Attorney at Thompson Coe. They can be reached at jbaker@ thompsoncoe.com and llawrence@thompsoncoe.com, respectively.

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

May 2017

ON FRIDAY, APRIL 7, the Dallas Bar Association, Arlington Bar Association, and Tarrant County Bar Association hosted a 214/817 Night at the Ballpark at Globe Life Park in Arlington. The event was a great success and brought together nearly 500 local judges and attorneys. Thank you to event sponsors: Crain Lewis Brogdon; Deans & Lyons; Estes Thorne & Carr; Morrow Settlement Services; Stephens Anderson & Cummings; and US Legal Support.

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D al l as Bar A ssoci ati on l Headnotes 11

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

May 2017

LAW DAY 2017

Madison Franklin, 6th Grade, W.H. Atwell Middle School First-Place (6th-8th)— Dallas | First-Place (6th-8th)— State of Texas

The 14th Amendment: Transforming American Democracy Each year, the American Bar Association sponsors Law Day, and regional bar associations, including the Dallas Bar Association, host various events, programs and contests to commemorate the chosen theme. Law Day not only educates students and citizens about our government, but also the legal system itself. One of its main goals is to focus students’ attention on important constitutional principles. As part of the DBA’s Law Day celebration, the association sponsors essay, art and photography competitions for Dallas ISD students in grades K-12. Here are some of this year’s winning entries, which depicted the Law Day theme of “The 14th Amendment: Transforming American Democracy.”

Antanee R. White, 2nd Grade, R.C. Burleson Elementary First-Place (K-5th)—Dallas | Second-place (K-2nd)—State of Texas

LOOKING FOR A JOB? NEED TO POST A JOB OPENING? VISIT THE DBA’S ONLINE CAREER CENTER The DBA’s Online Career Center is a great resource for attorneys and legal professionals! Jobseekers can search jobs, post their resume, request a resume critique, and set up email alerts. Employers can post job openings as well as search resumes to find the right candidate! Log on to www.dallasbar.org/career-center to get started.

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A Alicia De Leon, 12th Grade, L.G. Pinkston High School First-Place (6th-12th)—Dallas | Second-Place—State of Texas

Save the Date Crossing Cultural Differences in Mediation Monday, June 12, Noon at Belo | MCLE 1.00 Sponsored by the ADR Section and the Minority Participation Committee

DVAP’s Finest Michael Jones Michael Jones is a partner with Henry & Jones, LLP where he specializes in civil trial work and appeals, as well as estate and probate matters. He has handled many pro bono matters over his years of practice. Several years ago, Mike began volunteering at the Veterans Legal Clinic at the VA Hospital and has handled several pro bono cases for veterans. Mike believes that all attorneys have an obligation to help those who cannot afford to pay for necessary legal services. Some of his most rewarding moments and appreciative clients have come from pro bono representations. Thank you for all you do, Mike!

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

Tort & Insurance Practice

Ask and You Shall Receive (Maybe)â&#x20AC;&#x201C;Stowers After Nearly 90 Years BY JAY ENGLISH AND SUSAN TAYLOR

â&#x20AC;&#x153;[An] indemnity company is held to that degree of care and diligence which a man of ordinary care and prudence would exercise in the management of his own business.â&#x20AC;? G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex. Commâ&#x20AC;&#x2122;n App. 1929, holding approved). Nearly 90 years later, â&#x20AC;&#x153;Stowers demandâ&#x20AC;? is one of the most bandied-about phrases in law offices across Texas, and courts continue to interpret Stowers.

Drafting the Stowers Demand The Fifth Circuit explained in OneBeacon Insurance Co. v. T. Wade Welch & Assoc., 841 F.3d 669 (5th Cir. 2016) that â&#x20AC;&#x153;[T]he Stowers duty to settle is activated by a settlement demand when three prerequisites are met: 1) the claim against the insured is within the scope of coverage, 2) the demand is within the policy limits, and 3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insuredâ&#x20AC;&#x2122;s potential exposure to an excess judgment. [citation omitted] The demand must also offer to release fully the insured in exchange for a sum equal to or less than the policy limits. Id. at 848-49. For an in-depth review of Stowers, Michael Huddlestonâ&#x20AC;&#x2122;s paper, â&#x20AC;&#x153;The Duty to Settle in Texas,â&#x20AC;? explores recent Stowers developments. Ineffective Stowers demands include (but are not limited to): â&#x20AC;˘ a settlement offer for an act that is not covered by the policy; â&#x20AC;˘ a settlement offer that exceeds the policy limits, which requires extra care in cases where more than one insurer provides coverage, either primary or excess, or where the policy is a wasting policy; â&#x20AC;˘ a settlement offer that purports to release the insured fully, but does not address outstanding liens; â&#x20AC;˘ a conditional settlement offer; â&#x20AC;˘ a settlement offer for the entire policy limits when the insurer has settled with another claimant; and â&#x20AC;˘ a settlement offer that is unclear as to terms or parties.

potential exposure to an excess judgment are open to interpretation. The case underlying the Stowers opinion is one example. Vincent Morgan and Michael Sean Quinnâ&#x20AC;&#x2122;s fascinating article, â&#x20AC;&#x153;Looking Back at Stowers After 75 Years,â&#x20AC;? provides a guide to the people and issues behind Stowers. On January 23, 1920, the G. A. Stowers Furniture Companyâ&#x20AC;&#x2122;s van ran into a wood wagon on the rainy, dark streets of Houston, damaging the van and making its lights inoperable. While the van driver went to the nearest telephone to get help, a taxi ran into the furniture van, injuring the taxiâ&#x20AC;&#x2122;s passenger, Mamie Bichon. Ms. Bichon sought to recover her medical expenses of $174 for a surgical procedure and week-long hospital stay, $33 for destroyed clothing, and $20,000 as unspecified damages for her injuries, including arterial bleeding, heart strain, heart murmur, and valve disease (or approximately $258,000 in total damages in todayâ&#x20AC;&#x2122;s dollars). American Indemnity Company, Stowersâ&#x20AC;&#x2122; insurer, rejected Bichonâ&#x20AC;&#x2122;s first

pretrial settlement offer of the $5,000 policy limit, then rejected Bichonâ&#x20AC;&#x2122;s second settlement offer of $4,000, unless Stowers agreed to contribute $1,500. Stowers refused, the case went to trial, and Ms. Bichon obtained judgment, including costs of suit and interest, for $14,103.15 (approximately $180,000 today). Stowers unsuccessfully appealed the judgment, paid Ms. Bichon, sued American Indemnity for the full amount of the judgment, and courts and lawyers have been invoking the Stowers name ever since. In retrospect, while one can fault American Indemnity for asking its insured to contribute to a settlement well under the policy limits, one can also see that it might not have expected the plaintiff to recover nearly seventy times the verified medical expenses and lost clothing damages when evaluating the â&#x20AC;&#x153;likelihood and degree of the insuredâ&#x20AC;&#x2122;s potential exposure to an excess judgment.â&#x20AC;? (As the Morgan and Quinn article indicates, contemporary racial attitudes may have contributed to the jury verdict.)

Recent Developments: Patterson and OneBeacon According to one unpublished opinion. the insured may direct the insurer to reject an offer to settle that does not release all insureds, and no Stowers liability will attach. Patterson v. Home State Cty. Mut. Ins. Co.,No. 01-12-00365-CV, 2014 WL 1676931 (Tex. App.â&#x20AC;&#x201D;Houston [1st Dist.] Apr. 24, 2014, pet. denied) (mem. op.). However, the Fifth Circuit declined to follow Patterson in its OneBeacon opinion, noting that Patterson conflicts with Fifth Circuit and Texas supreme court precedent allowing for settlement of claims against one insured. Stowers demands are as vital today as in 1920, and deserve careful crafting and attention from lawyers. HN Jay English, of English Law Group, PLLC, can be reached at jenglish@englishpllc.com. Susan Taylor is a sole practitioner who assists other lawyers with legal research and writing. She can be reached at susan.durr.taylor@gmail.com.

Historical Background of Stowers Less obvious are cases in which the likelihood and degree of the insuredâ&#x20AC;&#x2122;s

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

May 2017

New For 2017

CRAIG HALL at Hall Arts Fund holder at Communities Foundation of Texas

Maslankaâ&#x20AC;&#x2122;s TEXAS FIELD GUIDE TO EMPLOYMENT LAW, FLSA, FMLA, ADA, TEXAS LABOR CODE A must-have book for any HR professional, manager or enterpreneur and the attorneys representing them. Maslanka Walks Through t 8IJDI CVTJOFTT NVTU DPNQMZ XJUI FBDI MBX t 8IFSF UP mOE UIF UFYU PG FBDI MBX t 8IJDI GFEFSBM BHFODZ FOGPSDFT FBDI MBX t 8IBU FBDI MBX BMMPXT BOE QSPIJCJUT t 1SBDUJDBM UJQT UP SFNBJO XJUIJO UIF TDPQF PG UIF MBX t 3FTPVSDFT GPS GVSUIFS SFTFBSDI BOE JOGPSNBUJPO To order, call 1.800.756.8993 or visit www.TexasLawyerBooks.com.

R E A L E S TAT E to R E A L I M PAC T Charitable giving can be an art form in itself. An avid supporter of the arts, Craig Hall wanted the real estate he owned in the Dallas Arts District to be used to help the arts ďŹ&#x201A;ourish. To make that happen, he donated two premium restaurant spaces to his fund at Communities Foundation of Texas. Through CFT, Hall could then

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ABOUT THE AUTHOR Michael P. Maslanka has over three decades of experience. He litigates and tries employment law cases across Texas. He shares his knowledge through his Work Matters blog, the Maslanka Field Guide series on employment law, and his monthly â&#x20AC;&#x153;Work Mattersâ&#x20AC;? column for In-House Texas. He uses his practical knowledge to help clients simplify their issues, and to be a cost-effective partner to them. Chambers USA states that he is a â&#x20AC;&#x153;strong, insightful thinkerâ&#x20AC;? who takes a â&#x20AC;&#x153;holistic approachâ&#x20AC;? to resolving his clients challenges. A Chambers USA source states that he is the â&#x20AC;&#x153;best teacher of labor and employment law . . . and just great before a jury.â&#x20AC;? Mike has served as Adjunct Counsel to a Fortune 10 company where he provided multi-state counseling on employment matters. He also served as a Field Attorney for the National /DERU 5HODWLRQV %RDUG +H LV %RDUG &HUWLÂżHG LQ /DERU DQG (PSOR\PHQW /DZ E\ WKH 7H[DV Board of Legal Specialization. He is a Master of the Inns of Court. He also writes as the â&#x20AC;&#x153;Literate Lawyer,â&#x20AC;? a column on how literature makes us better lawyers and better people.

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

Tort & Insurance Practice

Civil Liability for Diversion of Opioids BY KAY L. VAN WEY

An estimated 1.9 million people in the United States have an opioid addiction and another 586,000 suffer from heroin addiction. Eighty percent of heroin addicts started with opioids. More than 28,000 people die every year from an unintentional opioid overdose. The United States consumes 90 percent of the world’s supply of hydrocodone. Although addiction was once believed to be reserved for people of ill repute or poor willpower, it is now recognized as a brain disease which alters the brain circuits responsible for reward, habit and decision making. So, how did we get here? At one time, opioids were reserved for patients with post-surgical pain, acute injury pain or cancer pain. But, a movement inspired by the drug manufacturers created a new disease known as “chronic pain syndrome.” By 2013, doctors were writing a quarter of a BILLION prescriptions for opioids every year…enough for every American adult to have their own bottle of pills. So, what causes of action are available for patients? Physicians, Physician’s Assistants, Nurse Practitioners, and Pain Clinics are liable under traditional negligence and negligence per se standards. It is illegal to prescribe a drug without a valid medical need. The Texas Medical Board has very specific guidelines on prescribing to try and limit doctors who abuse their DEA license, as well as to give guidance to legitimate pain physicians on how to avoid trouble.

Pharmacists and Pharmacies have a corresponding duty to ensure that a prescription is written for a valid medical purpose before filling it. The Texas Pharmacy Board gives clear guidance on how pharmacists can spot suspicious prescriptions and suspicious prescribers. All of the above are traditional subjects of medical malpractice cases and are therefore subject to all of the limits and restrictions imposed upon Texas patients. An often-overlooked defendant is the wholesale distributor of the drugs. In a situation where a doctor or clinic is prescribing an excessive amount of illegitimate pain killers and a pharmacy is filling them indiscriminately, a drug wholesaler has a legal duty to stop the flow of drugs to the pharmacy. This is commonly referred in the industry as “know your customer.” The law requires drug wholesalers to have sophisticated monitoring programs which can detect “suspicious orders.” They can slice and dice the data to spot suspicious orders, investigate the cause and stop shipment to the pharmacy, if the pharmacy appears to be diverting the drugs for non-legitimate purposes. In addition, field representatives for the drug wholesalers are required to “know their customer” in order to determine whether, in the context of the patient demographics of the pharmacy’s customers, the orders are suspicious and indicative of drug diversion. If, and when the drug wholesaler suspects a suspicious order, they are required to report it to the DEA so that the agency can suspend or revoke the DEA license of the pharmacist and/or pharmacy and potentially the doctor who prescribed the high number of opioids.

The DEA and other government agencies have the authority to bring civil enforcement actions against drug wholesalers, who fail in their duty to monitor the fulfillment of suspicious orders and to report DEA registrants who are making suspicious orders. The efforts of the government, however, have been lackluster at best. Civil case filings by government entities against manufacturers, pharmacies, and doctors dropped from 131 in 2011 to 40 in 2014. Immediate suspension orders fell from 65 to 9. In 2016, Congress passed a bill allowing distributors, accused of failing to report suspicious orders, to file a “corrective action plan” to avoid enforcement proceedings against them. Additionally, many of the officials at the DEA who were responsible for enforcement

were hired away by the drug industry. See Scott Higham, Lenny Bernstein, Steven Rich and Alice Crites, “Drug industry hired dozens of officials from the DEA as the agency tried to curb opioid abuse,” The Washington Post, December 22, 2016. In conclusion, there is a societal need for litigation to be pursued on behalf of persons who have become addicted to opioids, as a result of improper prescribing practices. Once believed to merely be medical malpractice cases with all the attendant difficulties due to “tort reform”, a negligence and negligence per se cause of action may be considered with the correct fact pattern. HN Kay L. Van Wey is the owner of Van Wey Law, PLLC. She can be reached at kay@vanweylaw.com.

Dallas Minority Attorney Program

On April 7, the Dallas Minority Attorney Program presented its annual program, which is designed to meet the unique challenges facing the minority or female attorney practicing in the small firm or as a solo practitioner. Thank you to all of the CLE presenters and Judges who participated. Shown: (left to right): Michele Wong Krause, event organizer; Faith Johnson, Dallas District Attorney and luncheon keynote speaker; and Rhonda Hunter, event organizer.

Kay Van Wey Board Certiﬁed in Personal Injury Trial Law

Medical Malpractice | Dangerous Drugs Defective Medical Devices | Catastrophic Injury | Wrongful Death

Van Wey Law, PLLC 12720 Hillcrest Road, Suite 725 Dallas, TX 75230 214-329-1350 | www.vanweylaw.com

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

May 2017

Objecting to Evidence with Ancient Latin Phrases BY LELAND C. DE LA GARZA AND LILY H. SHANKS

Search Westlaw for Texas cases using “res inter alios acta” and you will quickly notice that the most recent case law incorporating the antiquated Latin phrase is more than 10 years old. However, for those not into or familiar with fancy Latin phrases, the translation and rationale of this doctrine underpin rules of evidence still virile and vital in litigation today. Res inter alios acta alteri nocere non debet means “a transaction between others does not prejudice one who was not a party to it.” Or, things done between strangers must not cause an injury to people who are not parties to such acts. The general rule, also known as the doctrine of “res inter alios acta,”

is that transactions of a party to a lawsuit with persons not parties to the same suit are inadmissible because they are irrelevant, immaterial, and highly prejudicial. The Courts of Appeals continued to cite the common law rule well after the adoption of the Rules of Evidence in 1983, and the logic underlying this dictum is clearly alive and well in the form of Texas Rules of Evidence 401 through 406, which provide that a party’s prior bad acts are generally inadmissible unless they are being introduced for limited purposes, such as to show intent or habit. Awareness of the exceptions to res inter alios acta and the courts’ analyses under the exceptions will guide practitioners in their objections and arguments against the admission of evidence of previous bad acts.

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Where a party’s intent is material to a plaintiff ’s claims, courts may admit evidence of prior acts or transactions with other persons, if those individuals are so connected with the transaction at issue that they may all be parts of a system, scheme, or plan. For example, where an insurer’s intent in denying a claim is a central issue, the insurer’s previous denial of claims without adequate investigation might be admissible. A court would focus on the timing of the denial of claims—whether they were contemporaneous or around the same time—as well as whether the insurer’s reason for rejecting the claims was similar. The closer in time and the more similar the bases for denial—for example, failure to disclose past medical history or preexisting conditions—may make the other claims so connected with the transaction at issue that they could all be part of a system, scheme or design of the insurer. Likewise, allegations regarding an employer’s policy of firing employees who filed workers’ compensation claims might also be proper circumstantial evidence of causation and, therefore, beyond the doctrine of res inter alios acta. A practitioner seeking to prevent the admission of previous acts should focus on distinguishing the act at issue based on number of occurrences, timing of the acts, and similarity of underlying claims. Similarly, Rule 406 provides that evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is

corroborated or whether there was an eyewitness. As under the intent exception, courts should strenuously test the resemblance of the act in question against prior acts before admitting the prior acts. For testimony of the routine practice of an organization to be admissible, it must show a regular response to a repeated specific situation. In other words, the response must be the same specific one to the same set of facts. One to two examples is insufficient to demonstrate a habit. In the context of a driver’s history of previous car accidents, for example, three low-speed accidents during a sixyear period would be properly excluded as not rising to the level of a habit under Rule 406. Contrast this rationale for excluding a history of accidents with a premises liability case in which evidence of similar accidents could be admissible as relevant to the premises owner’s knowledge of the condition causing the accident. Call it what you will, and gauge your audience before citing the doctrine in Latin, but there are still judges who will sustain objections for “res inter alios acta,” likely surprising opposing counsel in the process. Regardless of whether you say it in Latin or by Rule number, a good working knowledge of res inter alios acta and the Rules is necessary to keep out that confounding evidence of HN other bad acts. Leland de la Garza is a shareholder at Hallett & Perrin, P.C., and can be reached at ldelagarza@hallettperrin.com. Lily is an associate at the firm and can be reached at lshanks@ hallettperrin.com.

Sponsored by the DBA Media Relations Committee

Alexa, Will You Testify Against Me? continued from page 1 (a personal trainer) used data from her Fitbit to support his contention that her post-injury activity levels were well below the norm. The attorney used an analytics company, Vivmetrica to analyze and compare the plaintiff’s information with the general population to show how her physical condition had been compromised as a result of her injuries. Even apps are figuring into litigation. In a 2016 personal injury case in Georgia, Maynard v. McGee, the plaintiff blamed not only the teenage driver who struck him, but also Snapchat. The plaintiff alleged that, motivated by Snapchat’s “speed filter” that gives digital “trophies” for driving at high speeds, the defendant driver was going 107 mph at the time of the accident. While Snapchat was dismissed as a defendant, evidence from its use may still be introduced as evidence. Litigators need to be aware of the gold mine of information that awaits,

thanks to the IoT, but they also need to know about potential problems. Evidence preservation issues will arise; since a user can easily delete or modify data from wearable devices, litigation hold letters will be a crucial tool if data from wearable technology factors into a case. Retrieval and production of data can also pose challenges. Lawyers must determine if the data resides on the device itself, or if it gathers and stores it to the cloud or on a remote server maintained by a manufacturer. Finally, admission of the data as evidence poses any number of questions, from relevance to reliability to the expectation of privacy to authentication concerns. In addressing these challenges, courts will need to apply laws that never envisioned such technology—and judges do not get to ask “Alexa” for help. HN John G. Browning is a shareholder at Passman & Jones. He can be reached at browningj@passmanjones.com

Courtroom AV Technology Bootcamp at George Allen Courthouse, 5th Floor (600 Commerce St, Dallas) Wednesday, May 17, Noon | MCLE 1.00 In partnership with the DBA Courthouse Committee and Hon. Martin Hoffman

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Focus

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

Tort & Insurance Practice

Texas Dram Shop Claims . . . Back from the Dead BY DANIEL M. KARP

Handling the prosecution or defense of Dram Shop (Tex. Alc. Bev. Code Title 1, CH. 2.01 et. Seq) claims takes knowledge of the statutory requirements and a thorough understanding of the science involved to prove or refute the required proof of “obvious intoxication” and being a “danger” to yourself or others. To succeed on a Dram Shop claim, the plaintiff must prove the establishment sold, served, or provided alcohol to a person who was both obviously intoxicated and a clear danger to himself or others. This seems simple, yet it is incredibly complex. Most of the time, the bar or restaurant is unaware of the existence of the claim until days or weeks after the accident. By the time it has notice, video of the night is often long gone, bartenders may no longer be employed, and nobody remembers the person who was allegedly over-served. In those situations, both the plaintiff and defendant face significant challenges. For the plaintiff, the earlier the notice is, the better. Preservation letters are great tools, yet with many establishments, letters go unopened until an owner comes in to check the mail. As a result, always

hand deliver notice to the manager on duty. Get the information for the general manager and owner and call them. Send an email. Oftentimes the manager is the one who can preserve the video and handles the day-to-day operations of the establishment. That same manager knows the bartenders and can lock down key information, including TABC certifications and contact information. The preservation of video can be the difference between making a case and being dead at the starting line. Do not forget to preserve the credit card receipts and the electronic POS system printout for the night in question. For the defense, a site visit cannot be stressed enough. Knowing where the bartender is located, whether there is an outside seating area, the sight lines, music, volume when crowded, etc. all come into play as important factual aspects to show the jury that it would have been impossible for a bartender to notice one intoxicated person. Unless that person came to the bar swaying, slurring, and barely able to stand and personally ordered the drinks, almost every bartender I have ever spoken with has no recollection of any individual patron. If the plaintiff is deceased, or if the plaintiff

was a third-party with no knowledge of what occurred at the bar that night, this leaves the plaintiff having to prove obvious intoxication by science alone. Some claims are easier than others. If the individual over-served was three times the legal limit, video shows the person stumbling around, a receipt puts him at one location, and then ten minutes later there is an accident, it is not difficult to prove the case. That almost never happens. Instead, there is argument regarding the “obvious” nature of the alleged intoxication at the time alcohol was provided. Most experts (plaintiff and defense) will tell you that the minimum Blood Alcohol Content (BAC) to cross the “more likely than not” line with obvious intoxication is .15%. That is a LOT— and in fact, is almost double the legal limit for operating a vehicle. For an average man to reach .15% over the course of three hours, he would have to consume between 8-10 alcoholic drinks. That presumes a .02% increase of alcohol level per drink, and .015-.020% elimination of alcohol per hour. These numbers are critical, but they are just an average. Take any 10 people with the same alcohol consumed over the same time, and you will get 10 completely different results.

From the defense side, attacking these experts and having them admit this scientific reality allows a demonstration that the allegedly over-served patron may have had a good tolerance, was a heavy drinker, and while his BAC may have been elevated, he was not demonstrating any “obvious intoxication.” Texas law does not require bartenders to make a BAC analysis. What bartenders must observe are outward signs of intoxication, such as stumbling, slurring, over-tipping, obnoxiousness, etc. No matter how good a plaintiff’s expert may be, none of them can ever say that they witnessed the intoxicated person demonstrating those signs, because they were not there on the night in question. Rather, taking the expert through other possible intoxication levels using the same amount of drinks in the same time by simply changing the elimination and absorption rates within the normal range will show a jury that scientific calculations to prove obvious intoxication really are nothing more than a best guess. In closing, master the science, win the case. HN Daniel Karp is a Partner at Fee, Smith, Sharp & Vitullo, L.L.P. and can be reached at dkarp@feesmith.com.

Access to Documents at Henry Wade Juvenile Justice Center For attorneys who have been retained or appointed to represent client’s at the Henry Wade Juvenile Justice Center. You may access records in one of 2 ways. 1.

request an electronic invoice will be sent advising the total cost. Attorneys can use the online portal to make an online payment for the record request @ www.dallascounty.org – select Services, Pay online, and Pay District Clerk Court Records Requests. After confirmation is received, please send the tracking number and name that appears on the credit card used for payment to DCJuvenile@dallascounty.org

Submit an email on your firm’s letterhead with your client’s name, the cause number and the information you are requesting to DCJuv e n i l e @ d a l l a s c o u n t y. o r g ; or Submit and email with your photo ID and Bar Card along with your client’s name, the cause number and the information you are seeking to DCJuvenile@ dallascounty.org. For retained attorneys, upon completion of your email

Once the clerk receives the request and confirms the information, you will be sent an email with the documentation requested. 2.

There are also computers available on the 3rd Floor of the Henry Wade Juvenile Justice Center

that may be used by retained or appointed attorneys. The Odyssey System will allow you to view events and documents. If

THE

a retained or appointed attorney needs a hard copy of a document they may request it from the clerks.

COLANERI FIRM, P.C.

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

In the News

May

KUDOS Sheryl B. Latham, of Hallett & Perrin, PC, has become a Shareholder. Yvette Ostolaza, of Sidley Austin LLP, has been elected to the firm’s global management committee. Steven Dimitt and S. Jordan Smith, of Jackson Walker LLP, have been promoted to Partner. Sawyer Neely, of Sayles Werbner, P.C., has been promoted to Shareholder. Artoush Varshosaz, of K&L Gates LLP, has been elected to Partner. Bruce Howell, of Schwabe, Williamson & Wyatt, P.C., has been appointed as a founding member of the National Board of Health Lawyers, a new entity under the National Board of Trial Advocacy. Garrin Fant, of Cutler-Smith, P.C., is now Board Certified in Construction Law by the Texas Board of Legal Specialization.

Andrew Stubblefield, of Bradley Arant Boult Cummings LLP, has earned Board Certification for Construction Law by the Texas Board of Legal Specialization.

ON THE MOVE

Glenn Singleton, of Gardere Wynne Sewell LLP, will serve on the Dallas Innovation Alliance’s Board of Directors.

Robert Bogdanowicz III joined Calhoun, Bhella & Sechrest, LLP as Partner.

Justice Elizabeth Lang Miers, of the Fifth District Court of Appeals, received the Texas Bar Foundation Samuel Pessarra Outstanding Jurist Award for 2017.

David W. Black has joined Greenberg Traurig, LLP as a Shareholder.

Edward V. Smith lll, of StephensGuthrie, PLLC, received the Texas Bar Foundation’s Outstanding 50 Year Lawyer Award for 2017. Carol P. Dabner, of the Denton County Probate Court, has earned her PhD in Applied Gerontology from University of North Texas. Former Texas Supreme Court Justice Deborah Hankinson, now of Hankinson LLP, received the University of Texas Dallas Distinguished Alumni Award.

Support the DBA Home Project

Habitat House $80,000 $60,000 $40,000 $30,000 $20,000 $10,000 $5,000

May 2017

Help us reach our goal of $80,000 to build our 26th house for Habitat for Humanity. For more information, log on to www.facebook.com/DBAHomeProject or contact Co-Chairs David Fisk (dfisk@krcl.com) or Mike Bielby (mbielby@velaw.com). Make checks payable to Dallas Area Habitat for Humanity and mail donations: c/o Yedenia Hinojos Dallas Bar Association 2101 Ross Avenue Dallas, TX 75201

Colby Roberts and Nga Tran have joined Cutler-Smith, P.C.

Frank Vecella has joined McKool Smith as a Principal.

Nicholas A.F. Sarokhanian has joined Holland & Knight LLP as Associate. Jennifer Withrow has joined Scheef & Stone, L.L.P. as Partner. Kathryn Pruitt has joined McCathern, PLLC as Partner. Sean Hamada and Samuel Smith have opened the firm Hamada Smith, PLLC located at 15455 N. Dallas Parkway, Suite 600, Addison, Texas 75001. Thomas Slover has joined Hiersche, Hayward, Drakeley & Urbach, P.C. as a Shareholder. Natalie

Arbaugh and Tom

Walsh

have joined Winston & Strawn LLP as Partners. Patrick J. Maher has joined Ogletree, Deakins, Nash, Smoak & Stewart, P.C., as Senior Counsel. David Kleiman and Laird Lawrence have joined Vincent Serafino Geary Waddell Jenevein, P.C. as Shareholders. Christopher Anaya and Kimberly Kerns have joined the firm as Associates. Patrick Keating has formed the partnership of Keating Marshall PLLC, located at 101 East Park Boulevard, Suite 879, Plano, Texas 75074. Dyan House has joined Baker McKenzie as Counsel. Joshua Abrams joined Fletcher, Farley, Shipman & Salinas, LLP as Associate. 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

Courthouse & Public Safety Forum May 3, 2017, Noon, at Belo Larry Thompson, Logistics Chief for the Dallas County Homeland Security and Emergency Management Office, will provide important information for your safety in and around courthouses in Dallas County. MCLE 1.00. RSVP to lori.bodino@dallascounty.org. Sponsored by the Courthouse & Public Forum Committees

Bring Your Summer Clerks to Belo Learn about the broad range of opportunities in Dallas. Law Student Professionalism Program (MCLE 3.00)

31st Annual Conference of the Professions

Thursday, June 1, at 2:00 p.m. RSVP to kzack@dallasbar.org Speakers: Hon. Catharina Haynes, Wes Alost, Justice Doug Lang, and Frank Stevenson

“Responding to Racial Conflict: Responsibilities of the Professions”

Summer Associates Pro Bono Luncheon (MCLE 1.00)

Friday, May 26, 2017, 8:00 a.m.-Noon at Texas Scottish Rite Hospital

Minority Clerkship Luncheons

Keynote Speaker: Dr. Brian H. Williams, M.D. Trauma Surgeon and Associate Surgery Professor, UT Southwestern

Friday, June 9, and July 7, at Noon. RSVP to bavina@dallasbar.org

Friday, June 2, at Noon. RSVP to vallejod@lanwt.org

™

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

Classiﬁeds

May

EXPERT WITNESS

Economic Damages Experts – HSNO is the Forensics Firm. The Dallas office of HSNO has six CPA testifying experts who specialize in the calculation of economic damages in areas such as commercial lost profits, personal lost earnings, business valuations, property damage, insurance litigation, intellectual properties, commercial litigation, contract disputes, bankruptcy, and fraud. HSNO is qualified in most industries including, but not limited to; energy (offshore and onshore), manufacturing, hospitality, service, insurance, transportation, entertainment, product liability and construction. HSNO has 17 U.S. offices and an office in London. Contact Peter Hagen or Karl Weisheit at (972) 980-5060 or go to HSNO.com. Mexican Law Expert - Attorney, former law professor testifying for 20 years 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) 222-9494. 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, and business valuation 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) 5137113. troney@thomasroneyllc.com. “We Count.”

OFFICE SPACE

Lee Park Area - executive office space available for lease in a professional, legal environment. Two large executive window offices available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or paraprofessionals. Three bench seat spaces available for daily or short-term use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, Wi-Fi, notary, conference room, kitchen area, covered visitor parking, and free secured office parking. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 7405033 for a tour and information. Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference room. 2619/2608 Hibernia St 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & Internet. Phone (214) 987-8240.

Virtual Office – Available Immediately! Contemporary office space, 12222 Merit Drive, Suite 1200, offers five conference rooms, receptionist, Internet service, mail service, parking, fully equipped breakroom. $300 monthly fee – competitive rates! Email Amy at arobinson@englishpllc.com or (214) 528-4300. Stop Looking!! Your next office in Downtown Dallas is available now for immediate move-in. Active law firm has very modern, newly built offices for rent in a “turn-key” executive suite arrangement (secretary station also available for a little extra) in Class A building with restaurants, Starbucks, conference center, Wi-Fi Lounge and 24/7 security. In-office amenities include receptionist, telephone, Wi-Fi access, conference rooms and a stocked kitchen (unlimited coffee, soda and snacks; lunch is sometimes provided). Get it all for one price (parking and postage extra). You will enjoy a great working environment. Call Kathleen at (214) 965-9999. North Dallas – Galleria. Attorney offices available with law firm located in Galleria towers. Amenities include conference room, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Scott at (972) 789-1162. North Dallas. Law Firm – Merit Tower Office Space - For Lease: Contemporary office space, 12222 Merit Drive, offers five conference rooms, receptionist, Internet service, lobby, library, fully equipped breakroom, parking, workout facilities. Available 5/1/17. Email Amy at arobinson@englishpllc.com or (214) 528-4300. North Dallas/Farmers Branch - Law firm has several offices for lease. $400/ month per window office. Includes use of furniture, Internet, fax, parking, conference rooms, and kitchen. Convenient location. No lease required. Please contact Ilene Smoger at (214) 532-8892 or ilene@texasinjurylaw.com. Downtown Dallas – Two window offices with included secretarial space available, in the historic KATY Building overlooking the Old Red Courthouse and Kennedy Memorial. Receptionist, notary, phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at (214) 748-1948. Coit/Churchill - Office share opportunity with small established law firm. Large corner window office with separate support staff custom built work station. No lease; 60 day move-out notice required. Includes shared reception area-two conference rooms-kitchen, two 5-drawer lateral cabinets, DD phones, Wi-Fi, fax, copier/printer/scanner/postage meter at pass-thru cost, 24/7 security and tenant access, free gym, free large meeting room, 1 underground executive parking space, 1 secured upper level parking, free visitor parking. Contact Renay @ (214) 292-2614. Uptown - Executive Office space available for lease in a professional Legal

Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee

environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax and copy machines, two conference rooms, two kitchen areas, and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa (214) 696-9253 for a tour. Office with secretarial area available at 4054 McKinney Avenue. Shared conference room, break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $800.00 for the furnished or unfurnished large office and $300.00 for the furnished secretarial office. Call (214) 520-0600 Office Space Available - 1700 Pacific Avenue. Title insurance agency has 3,000 square fee +/- available for sublease. The remaining term on the lease is 4+ years. We will consider any term of one year or more. The rate is $17.00 + E and parking is included. The suite is partially furnished and has a reception area, conference room, small library, and four offices. Three high quality cubicles are available to use. Photos and a floor plan are available upon request. There is a large conference room available on a “space available” basis for the subtenants use, in our suite. Please contact Mike Neary (214) 855-5950 or mike@ sentineltitlecompany.com if interested. Three offices with two secretarial areas (1530 sq. ft.) available at 4054 McKinney Avenue. Monthly rate of $2,500.00 per month. Call (214) 520-0600. Downtown Dallas - Arts District. 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. Addison law firm has two offices and an assistant station for rent. Includes covered parking, kitchen facilities, receptionist and access to conference rooms. Please email kelly@crb-law.com for more information.

POSITIONS AVAILABLE

Experienced Civil Litigator. Boutique construction law firm seeks experienced civil litigator with trial experience. Strong writing skills required. Compensation negotiable. Send cover letter and resume in confidence to: oaklawnfirm@ aol.com Dallas Firm Seeks Litigation Attorney. Small, AV rated, downtown insurance defense litigation firm seeks a full-time attorney with a minimum of 5 years of litigation experience. Personal injury and first party bad faith experience required. Applicant should be highly motivated, a team player, Computer literate, work

well without supervision, and possess excellent research and writing skills. Fax resume and salary requirements to Administrator at (214) 748-1421 or e-mail to jtbdal@tx.rr.com. Downtown Defense Firm – Experienced Associate. Downtown mid-sized defense litigation firm looking for associate with 5+ years’ experience. Practice areas include overall defense litigation, premises liability, automobile, trucking and subrogation (both workers’ compensation and ERISA). Must have good communication skills, solid writing ability, be able to work independently and with others, and have experience working with insurance companies. Great opportunity for a motivated, self-starting individual. Please submit resume and salary requirements to dwoodard@downsstanford.com. Palmer & Manuel, LLP, a 14 attorney firm in Campbell Centre, seeks one or two experienced attorneys with established practices to join our family law team and/ or our general civil practice group. Work with us, not for us. Our formula based compensation system allows attorneys to keep a substantial portion of their fees. See our website at www.pamlaw.com or contact Steve Palmer or Rebecca Manuel at (214) 242-6444.

SERVICES

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 Kirk Leitch or Brenda Phillips at 1 (800) 760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Licensed Spanish Court Interpreter. Trials, Hearings, Depositions. Translations: legal documents, contracts, articles of incorporation, financial and technical correspondence. 1623 Main St. Suite 210, Dallas TX 75201. Email: Agsantos3@live.ru or call: (832) 916-0283. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www.ProfessionalAncestryResearch. com. Wanda Smith, (972) 836-9091. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@ dallasbar.org.

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

May 2017