Dallas Bar Association
HEADNOTES November 2013 Volume 38 Number 11
Focus Tort & Insurance Practice
Payne Mitchell Law Group: Making a World of Difference gn pai am
Equ al A c
C �ce Jus
$600,000+
$550,000 $500,000
Andy Payne and Jim Mitchell
course of this young man’s life. I am glad that I was there to help him keep his plans on track.” Andy Payne and Jim Mitchell, attorneys with the law firm of Payne Mitchell Law Group, know a lot about getting their personal injury clients’ lives back on track. And with another $25,000 donation to the 2014 Equal Access to Justice Campaign, benefitting the Dallas Volunteer Attorney Program, Payne Mitchell continues its generous tradition of extending their help to DVAP clients. With more than $125,000 contributed to DVAP in the last seven years, Payne Mitchell is one of the largest contributors to legal aid to the poor in the North Texas area, and the firm’s impact on pro bono in Dallas is extremely significant.
“It is critical for all people to have access to our legal system whether it is to get some advice or an attorney to represent them,” said Jim Mitchell. “DVAP does a great job of matching pro bono lawyers with clients and getting the legal aid to those who need it.” “Jim and I see DVAP as our pro bono program. It is a natural extension of what we do every day,” said Andy Payne. “We feel fortunate to be able to help.” *Note – The client’s name has been changed to HN protect his confidentiality.
To Give: www.dvapcampaign.org.
Sometimes it is the simplest things that mean the most and make a world of difference. Like name changes. Name changes certainly are not the most complex legal matters. They do not take much time and are pretty straightforward, but they can make a tremendous difference in someone’s life. This is what pro bono attorney Victoria Neave and her client “Carter” learned during their recent DVAP case. “Carter,” a high school football standout, was thrilled to learn that he was awarded a college football scholarship. With this scholarship, Carter was several steps closer to his dream of a college education, but his scholarship, and his dream, started to slip away when the university refused to release his funds. Dotting their i’s and crossing their t’s, the university noticed something that no one else had ever cared about— that Carter’s birth certificate had a different last name on it than the one he had been using his entire life. When Carter was born, he was given his mother’s maiden name on his birth certificate even though Carter’s parents were married at the time. No one ever questioned his name, and it was never an issue until he was awarded his scholarship. The university gave Carter a short time to get his name changed or forfeit the scholarship. He had to act quickly, but he and his family had no financial resources to hire an attorney to help. In stepped DVAP and Ms. Neave, who was able to work with the university and complete Carter’s name change in time for him to enroll in school and receive his scholarship. “This was a roadblock that could have had a tremendous impact on Carter’s life. Losing a college scholarship would have been devastating,” said Ms. Neave. “It really could have changed the
ces s to
by Alicia Hernandez
Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at ahernandez@dallasbar.org.
$450,000
$400,000 $350,000 $300,000 $250,000 $200,000 $150,000 $100,000 $50,0000
Boutique Firms Support Campaign The Dallas Bar Association and Legal Aid of NorthWest Texas kicked off their annual Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program in September with a number of Dallas’ boutique firms committing major support. Please join the DBA and Legal Aid in recognizing and thanking the following boutique firms for their generous gifts to the Campaign*:
CHAIRMAN’S COUNCIL ($25,000) Crain ♦ Lewis, L.L.P. Hon. Deborah G. Hankinson Payne Mitchell Law Group L.L.P.
DIAMOND ($15,000) Anderson Tobin PLLC Connatser Family Law Gruber Hurst Johansen Hail Shank LLP
PLATINUM ($10,000) GOLD ($5,000) Deans & Lyons Carter Stafford PLLC Godwin Lewis PC Jordan, Houser & Flournoy The Hartnett Law Firm Waters & Kraus, L.L.P. KoonsFuller Simon, Greenstone, Panatier & Bartlett, P.C. *Boutique firm donors as of press time.
Law firms, corporations and individuals wishing to make a pledge will be prominently recognized beginning at the $5,000 level each month through January. To donate, contact Alicia Hernandez, ahernandez@dallasbar.org. For more information about the Campaign see www.dallasbar.org/dvapcampaign. For additional donors, see page 4. The severe recession has hit poor people especially hard. More than 600,000 people in Dallas County qualify financially for DVAP’s help.
Inside 5
Is the Witness a Fact Witness or an Expert?
8
Belo Renovation Photos
17 Eight Corners and True Facts 18 Ring in 2014 with a New Subrogation World Order
DBA MEMBER REMINDER: Your 2014 DBA DUES STATEMENT was mailed to your office or home in mid-October! 2014 DBA DUES must be paid by December 31, 2013 to continue receiving ALL your member benefits. Thank you for your support of the Dallas Bar Association!
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
November Events FRIDAY CLINICS
NOVEMBER 1-BELO Noon
“How to Effectively Use the Internet to Market a Law Firm Within the Boundaries of the State Bar Rules,” Chad Ruback . (MCLE 1.00)* RSVP to trivas@dallasbar.org.
NOVEMBER 8-NORTH DALLAS** Noon
“Recovering Attorney’s Fees,” Nick Kennedy. (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 Underwood Perkins, P.C. RSVP to trivas@dallasbar.org.
NOVEMBER 15-BELO Noon
“Shoulder to Shoulder: Equipping Attorneys to Recognize and Assist Fellow Attorneys in Crisis,” Bill Edwards and Brian Farlow. (Ethics 1.00)* Sponsored by the Peer Assistance Committee. RSVP to sevans@dallasbar.org.
FRIDAY, NOVEMBER 1 Noon
Friday Clinic-Belo “How to Effectively Use the Internet to Market a Law Firm Within the Boundaries of the State Bar Rules,” Chad Ruback. (MCLE 1.00)* RSVP to trivas@dallasbar.org.
Public Forum Committee
3:30 p.m. DBA Annual Meeting
5:30 p.m. Bankruptcy & Commercial Law Section “Classification Counts, A Review of Relevant of Case Law Regarding Classification Under Section 1122 in Light of the Ninth Circuit BAP’s Decision in In re Loop 76, LLC,” Jason P. Kathman. (Ethics 1.00)
MONDAY, NOVEMBER 4
THURSDAY, NOVEMBER 7
Noon
Tax Law Section “Net Investment Income Tax and the Impact on Real Estate Investments,” Todd Keator. (MCLE 1.00)* Peer Assistance Committee
TUESDAY, NOVEMBER 5
8:30 a.m. Juvenile Justice Committee Child Welfare Course Registration DBA members: $120; Nonmembers: $150. (MCLE 7.50, Ethics 3.00)* Register online at www2.dallasbar.org/ DBAWeb/EventRegistration/juvjustice.aspx. Noon
Construction Law Section “Update on Recent Construction Case Law,” Rob Shapiro. (MCLE 1.00)*
Noon
Corporate Counsel Section Topic Not Yet Available
Tort & Insurance Practice/Business Litigation Sections “‘The Price of Justice’: The True Story Behind Caperton v. Massey Coal Company,” Laurence Learner. (Ethics 1.00)*
Family Law Section Board Meeting
Judiciary Committee
Lawyer Referral Service Committee
DAYL Attorneys Serving Troops
St. Thomas More Society
6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, NOVEMBER 6 Noon
Novem ber 2013
Employee Benefits & Executive Compensation Section “Current Developments in ERISA,” Christopher A. Beinecke and Deborah Perry. ( MCLE 1.00)* Solo & Small Firm Section “Nuts and Bolts of Law Practice Succession: How to Sell the Practice,” Brian Wendler. (MCLE 1.00)*
5:30 p.m. Media Relations Committee CLE “The Power of the Press: Freedom, Ethics & Responsibility,” Chip Babcock, Carolyn Barta, Dr. Rita Kirk and Shawn Williams. (Ethics 1.00)* Reception at 5:30 p.m., CLE at 6:00 p.m. RSVP to jsmith@dallasbar.org.
FRIDAY, NOVEMBER 8 Noon
Morris Harrell Professionalism Committee
Friday Clinic-North Dallas** “Recovering Attorney’s Fees,” Nick Kennedy. (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
DBA COMMEMORATES PRESIDENT JOHN F. KENNEDY With Two Special Events:
RECEPTION AT THE SIXTH FLOOR MUSEUM Tuesday, November 12, 6:00-9:00 p.m. 411 Elm St., Dallas RSVP to jsmith@dallasbar.org.
JFK PUBLIC FORUM Thursday, November 21, Noon at Belo Speakers: Jerry Alexander, Attorney, Passman Jones Darwin Payne, Professor Emeritus, SMU Chris Vognar, The Dallas Morning News, Moderator
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Underwood Perkins, P.C. RSVP to trivas@ dallasbar.org.
“Mexican Energy Reform: Was it Worth the Wait?” Eduardo Márquez. (MCLE 1.00)*
Legal History Discussion Group “Lost and Found: David Hoffman and the History of American Legal Ethics,” Prof. Michael Ariens. (Ethics 1.00)*
Legal Ethics Committee “Topic Not Yet Available,” Mike Prince. (Ethics 1.00)*
Community Involvement Committee
Speakers Committee
Dallas Bar Foundation Board Meeting
DAYL Elder Law Committee
Trial Skills Section Topic Not Yet Available
MONDAY, NOVEMBER 11 Noon
Alternative Dispute Resolution Section “Comparison of Lubbock and Dallas Mediation Systems,” Gene Valentini. (MCLE 1.00)* Real Property Law Section “What Lawyers Need to Know when Working with Real Estate Brokers: A Few Things I’ve Learned in my First 50 Years in Dallas/ Ft. Worth Real Estate,” Wayne Swearingen. (MCLE 1.00)*
TUESDAY, NOVEMBER 12 Noon
Government Law Section “The Federal Trade Commission – Fighting For Consumers,” Tom Carter. (MCLE 1.00)*
Mergers & Acquisitions Section “Insurance in M&A Transactions: How to Avoid Pitfalls and Overcome Obstacles,” Janice Davis and Kara Altenbaumer-Price. (MCLE 1.00)*
Entertainment Committee
DAYL Lawyers Promoting Diversity
6:00 p.m. Home Project Committee
WEDNESDAY, NOVEMBER 20 Noon
Energy Law Section “Royalty Calculation Update,” Stuart Hollimon. (MCLE 1.00)*
Health Law Section “Enforcement Issues in the Health Care Industry,” Bill Mateja. (MCLE 1.00)*
Law Day Committee
Pro Bono Activities Committee
Non-Profit Law Study Group
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
WEDNESDAY, NOVEMBER 13 THURSDAY, NOVEMBER 21 7:45 a.m. Dallas Area Real Estate lawyers Discussion Group
Noon
Appellate Law Section “Testing Conventional Wisdom on Appeal,” Don Cruse . (MCLE 1.00)*
Criminal Law Section Topic Not Yet Available
Collaborative Law Section Meeting
JFK Public Forum. Speakers: Jerry Alexander, Darwin Payne, Chris Vognar. RSVP to sevans@dallasbar.org. Public welcome. Hosted by the DBA Public Forum Committee.
Minority Participation Committee
DBA Community Service Fund Board Meeting
Christian Legal Society
DAYL Animal Welfare Committee
Dallas Gay & Lesbian Bar Association
11:30 a.m. House Committee Walk Through Noon
Family Law Section “A Tale of Two Balance Sheets,” Carrie D. Wilson. (MCLE 1.00)*
Magna Carta Discussion Group “Principles of Legal Ethics,” Justice Kerry FitzGerald. (Ethics 1.00)*
DAYL Lunch & Learn CLE. Contact cherieh@ dayl.com for more information. DVAP New Lawyer Luncheon. For more information contact reed-brownc@lanwt.org.
3:30 p.m. Investiture for Justices Mary Murphy and Ada Brown 5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, NOVEMBER 14 Noon
Law in the Schools & Community Committee
Publications Committee
Christian Lawyers Fellowship
Dallas Asian American Bar Association
FRIDAY, NOVEMBER 22 Noon
MONDAY, NOVEMBER 25 Noon
Computer Law Section “New Trends in Telecom Contracting Practices Could Affect Your Client’s Bottom Line,” Bob Miller. (MCLE 1.00)*
Securities Section “What Makes a Board Successful?” Stephen Grace. (MCLE 1.00)*
Criminal Justice Committee
DAYL Solo & Small Firm Committee
3:30 p.m. DBA Board of Directors Meeting 5:30 p.m. DBA New Member Reception. Honoring our New DBA Members and Newly Licensed Attorneys. For more information, contact Kim Watson at kwatson@dallasbar.org. or (214) 220-7414. 6:00 p.m. J.L. Turner Legal Association
FRIDAY, NOVEMBER 15 Noon
Friday Clinic-Belo “Shoulder to Shoulder: Equipping Attorneys to Recognize and Assist Fellow Attorneys in Crisis,” Bill Edwards and Brian Farlow. (Ethics 1.00)* Sponsored by the Peer Assistance Committee. RSVP to sevans@dallasbar.org. Transition to Law Practice Committee CLE
MONDAY, NOVEMBER 18 Noon
Forum is open to the public. RSVP to sevans@dallasbar.org.
TUESDAY, NOVEMBER 26 Noon
Probate, Trust & Estate Law Section “Handling Estate Personal Property,” Norm Lofgren. (MCLE 1.00)*
Courthouse Committee
DAYL Aid to the Homeless Committee
American Immigration Lawyers Association
6:00 p.m. Dallas Hispanic Bar Association Meeting
Labor & Employment Law Section “Update on the Americans With Disabilities Act,” Susan Motley. (MCLE 1.00)*
WEDNESDAY, NOVEMBER 27
Senior Lawyers Committee
THURSDAY, NOVEMBER 28
TUESDAY, NOVEMBER 19 Noon
DAYL CLE Committee
Antitrust & Trade Regulation Section “Antitrust Activity Update from the Texas Attorney General’s Office,” Gabriel Gervey. (MCLE 1.00)*
Noon
Municipal Justice Bar Association
DBA Offices Closed in Observance of Thanksgiving Holiday
FRIDAY, NOVEMBER 29
DBA Offices Closed in Observance of Thanksgiving Holiday
International Law Section
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
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2013
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4 He a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2013
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
A Time to Reflect By sally crawford
This year marks the 50th anniversary of the assassination of President John F. Kennedy in Dallas. Unless you have been in a coma for the last 10 months, you have been hearing anew about every detail of that fateful day in November 1963. If you are over the age of 60, you have no doubt been asked about and have reflected on where you were on that day and how you reacted to the news of the assassination. While we reminisce about where we were and argue over conspiracy theories, we might also consider the involvement of the Dallas Bar Association and the legal community in Dallas in the events relating to the assassination. H. Louis Nichols was the President of the Dallas Bar in 1963. On the afternoon of November 23rd, less than 24 hours after Lee Harvey Oswald was arrested for shooting the President, Mr. Nichols started receiving calls asking if Oswald had a lawyer. Apparently the news media was saying that Oswald could not get a lawyer in Dallas to represent him. Mr. Nichols had no idea if Oswald had asked for an attorney or if he was being represented. Being a civil trial lawyer, Mr. Nichols did not know the specifics of the criminal law relating to the obligation to appoint a lawyer in criminal cases, so he began making some calls of his own. After talking to a couple of his friends who were criminal lawyers, he learned that the obligation to appoint counsel began after the accused was indicted. Of course Oswald had not been indicted at that point so the obligation to appoint counsel for him had not arisen. Nevertheless, Nichols continued his inquiry into whether or not Oswald had or wanted an attorney. After talking with several others, including the District Attorney, Henry Wade, and Glen King, a captain on the Dallas police force, Nichols still did not know if Oswald had an attorney. At the suggestion of Captain King and others, Nichols decided he should visit Oswald in jail to find out if he had a lawyer or if he wanted and had asked for a lawyer. Nichols testified before the Warren Commission in fascinating detail about his interview of Oswald. In that historic meeting, Oswald told Nichols that he was being held incommunicado and that he did not know why he had been arrested. Nichols did not recall exactly what he told Oswald about the President being shot but he did recall asking Oswald repeatedly if he wanted Nichols to arrange representation for him. The initial response from Oswald was to ask Nichols if he knew a New York lawyer by the name of John Abt. Nichols did not know him but Oswald said that Abt was the lawyer he would like to have represent him. Oswald asked if Nichols knew any lawyers who were members of the American Civil Liberties Union. Oswald said he was a member and would like someone who was also a member to represent him. Nichols said he did not know any members of the ACLU. Then Oswald said if neither John Abt nor a member of the ACLU could represent him, if a lawyer could be found who would believe in him, believe as he believed and believe in his innocence, he might let them represent him. Again, Nichols asked if Oswald wanted Nichols to try to get a lawyer in Dallas to represent him. Oswald responded “no, not now.” Nichols continued his conversation with Oswald to be sure that Oswald knew what he was doing and understood that Nichols was offering to arrange for representation. Once Nichols was satisfied that Oswald did not want Nichols to find him a lawyer for him, Nichols left the jail cell. On his way out, Nichols talked to the police chief who confirmed that Oswald had never asked for a lawyer. When Nichols stepped out of the courthouse, he was swarmed with reporters and photographers asking him all kinds of questions about Oswald. Nichols reported to them that he had spoken to Oswald to determine if he had an attorney or wanted the Dallas Bar Association to arrange for an attorney for him. Nichols reported that Oswald appeared to be rational and seemed to know his rights with regard to being represented but that he had turned down the offer of help made by Nichols. Of course we know that Oswald never had the opportunity to obtain counsel because he was shot the very next day by Jack Ruby. Why were the actions of Louis Nichols significant? Was he obligated or was the bar obligated to insure that Oswald had counsel? The answer is “no.” The appointment of counsel is handled by the judiciary. The Warren Commission inquired into the role of the bar association in the representation of indigents (Oswald was indigent) and Nichols explained how attorneys were appointed by the court.
He also pointed out that he had spoken to a Dallas judge who said he knew of no occasion where a lawyer could not be found to represent an indigent defendant. Why did Nichols undertake to determine if Oswald had counsel or wanted counsel appointed for him? He certainly was not doing it for his own benefit since he was not a criminal lawyer and was not offering to personally represent Oswald. He no doubt did so, in his role as DBA President, out of his sense of duty to the legal system and the profession. These were clearly exigent circumstances and, as the leader of the bar association, Nichols stepped up to insure that our legal system worked as it was intended. In the first section of the Texas Lawyers Creed, which was not adopted until 1989, it states that “a lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism” including being “responsible to assure that all persons have access to competent representation regardless of their wealth or position in life.” Nichols was fulfilling this obligation, although unwritten at the time, to the profession and the legal system. The Dallas Bar and Dallas lawyers were involved in other situations related to Kennedy’s assassination. In December of 1963, the Dallas Bar was asked to weigh in on whether or not the trial of Jack Ruby should be televised. Mr. Nichols, who was still president of the Bar, reported to the DBA board that the executive committee of the board was of the unanimous opinion that the trial should not be televised. The board discussed the issue at length and ultimately agreed, for many reasons, that it would not be advisable to televise the trial. The resolution of the board stated that the resolution should be delivered to the court only and should not be released to the press, unless or until the court decided to do so. Mr. Nichols presented the resolution to Judge Joe B. Brown, the judge in the Ruby trial, and the trial was not televised. Another incident surrounding the assassination that involved Dallas lawyers relates to the movie recorded of the Kennedy assassination by Abraham Zapruder. Mr. Zapruder was a client of Sam Passman of the firm of Passman & Jones. Mr. Zapruder knew instinctively that his film of the assassination would be very important and could possibly have tremendous value. He sought out the counsel of Sam Passman to help protect the confidentiality of the contents of the film, as well as to protect his ownership rights in the film. Mr. Passman and his partner, Shannon Jones, Jr., did an amazing job under great pressure and on extremely short notice of protecting the constitutional rights of Mr. Zapruder to the ownership of the film. In 1998, 35 years after the assassination, by an Act of Congress all original evidence from the Warren Commission and government files relating to the assassination, including the Zapruder film, became the property of the National Archives and Records Administration. As a consequence, the Zapruder film was taken by the government by eminent domain. However, with the help of Passman & Jones, the Zapruder family was well compensated for their property. The DBA Public Forum Committee will host a CLE program on November 21, 2013 relating to the handling of the Zapruder film. The panelists will include Jerry Alexander, an attorney with Passman & Jones, Chris Vognar of The Dallas Morning News, and Darwin Payne, a former newspaper reporter and author of several books, including one on the Kennedy assassination. The program is open to the public, and I know it will be very interesting and educational. The DBA also hosted a CLE entitled: The Trial of Lee Harvey Oswald on October 25th. Victor Corpus, of Jackson Lewis, LLP, organized the program which was held in the Central Jury Room at the George L. Allen, Sr. Courts Building. The trial was presided over by Judge Martin Hoffman and Toby Shook and Bill Wirskye, both of Shook, Gunter & Wirskye, acted as defense counsel and prosecutor, respectively. Law students from SMU, Texas A&M and Texas Tech participated as witnesses in the trial. The program was well attended and very well received. In this year of learning about and reflecting on the Kennedy assassination, it is good to be reminded of the role our bar and lawyers played in ensuring that justice and order were maintained in the face of a national crisis. Whether it is through role playing, educational programming or advising clients and the courts, the DBA and Dallas lawyers are clearly committed to the improvement and preservation HN of the profession and our legal system.
THANK YOU!
The Dallas Bar Association and Legal Aid of NorthWest Texas kicked off their annual Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program in September with a number of Dallas’ legal community committing major support. Please join the DBA and Legal Aid in recognizing and thanking the following for their generous gifts to the Campaign*:
CHAIRMAN’S COUNCIL ($25,000) Anonymous DIAMOND ($15,000) AT&T
PLATINUM ($10,000) Baker Botts L.L.P. Haynes and Boone Foundation Jackson Walker L.L.P. Vinson & Elkins LLP
GOLD ($5,000) Jerry Alexander Baker & McKenzie Bloom Strategic Consulting Carrington, Coleman, Sloman & Blumenthal, L.L.P. Energy Future Holdings, Luminant & TXU Energy Fish & Richardson Mark & Laurie Johansen *Donors as of press time.
Law firms, corporations and individuals wishing to make a pledge will be prominently recognized beginning at the $5,000 level each month through January. To donate, contact Alicia Hernandez, ahernandez@dallasbar.org. For more information about the Campaign see www.dallasbar.org/dvapcampaign.
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: Sally L. Crawford President-Elect: Scott M. McElhaney First Vice President: Brad C. Weber Second Vice President: Jerry C. Alexander Secretary-Treasurer: John A. Goren Immediate Past President: Paul K. Stafford Directors: A. Shonn Brown (At-Large), Rob Crain (Chair), Wm. Frank Carroll, Hon. King Fifer (Judicial At-Large), Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst (Vice Chair), Michele Wong Krause, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Karen McCloud, Christina McCracken (At-Large), Mandy Price (President, J.L. Turner Legal Association), Sarah Rogers (President, Dallas Association of Young Lawyers), Mary Scott, Scott Stolley, Diane M. Sumoski, Robert L. Tobey, Aaron Tobin and Jennifer Wang (President, Dallas Asian American Bar Association). Advisory Directors: Tatiana Alexander (President-Elect, J.L. Turner Legal Association), Mey Ly (President-Elect, Dallas Association of Young Lawyers), Sakina Rasheed (PresidentElect, Dallas Asian American Bar Association) and Elisabeth A. Wilson (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Elizabeth Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Frank Carroll, Andy Payne, Tino Ramirez and Ike Vanden Eykel HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Jessica D. Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Dawn Fowler and Lea Dearing Vice-Chair: Jared Slade Members: Timothy Ackermann, Kevin Afghani, Vincent Allen, Natalie Arbaugh, Favad Bajaria, Matthew Baker, Martha Beard-Duncan, Jody Bishop, Lisa Blackburn, Jason Bloom, Eric Blue, Bobby Braxton, Kandice Bridges, William Brown, Eliot Burriss, Stacie Cargill, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, Walter Dean, David Dodds, Adam Dougherty, David Dummer, Paul Garrett, Megan George, Jenny Givens, Jennifer Gjesvold, Melanie Glover, James Gourley, Virginia Greenberg, Jerry Hall, Susan Halpern, William Hammel, Jeremy Hawpe, Zachary Hilton, Kelli Hinson, Zachary Hoard, Tyler Hokanson, James Holbrook III, Ezra Hood, Mary Louise Hopson, Dyan House, Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Yoon-Joo Jung, Adam Kielich, Robert Kisselburgh, Lissa Kivett, Michelle Koledi, Susan Kravik, Shruti Krishnan, Norman Lofgren, Mallory Loudenback, Sixuan Lu, Margaret Lyle, Andrew Mayo, Ashley Mayya, Jennifer McCollum, Scott McElhaney, Elizabeth McShan, John McShane, Paige Montgomery, Nick Nelson, Yvette Ostolaza, Seth Phillips, Kirk Pittard, Irina Plumlee, Laura Anne Pohli, Robert Ramage, Gabriel Reyes, Morgan Richards, Carl Roberts, Richard Salgado, Brendan Sansivero, Brooke Schultz, Isabel Segarra, Yon Sohn, Thad Spalding, Paul K. Stafford, Jacob Stasny, Jeanette Stecker, John Stevenson, Scott Stolley, Brian Stork, Michael Sukenik, Billye Summers, Christine Tamer, Kristopher Tate, Robert Tobey, Pryce Tucker, David Urteago, Peter S. Vogel, Suzanne Westerheim and Andrew Wirmani DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law Related Education Coordinator: Kimberlynn Taylor-Corbin Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Andrew Musquiz, Carmen Perales Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2013. 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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Focus
D al l as Bar A ssoci ati on l Headnotes 5
Tort & Insurance Practice
Is the Witness a Fact Witness or an Expert? by Jacquelyn V. Clark
We have all listened to a witness testify, whether in court or in a deposition, where the witness starts to offer opinions as to liability or damages. You should probably ask yourself, what do you do next? While witnesses may testify as hybrid fact and expert witnesses, it is always helpful to know both the distinctions between such testimony and the requirements of each. Fact witnesses may give opinion testimony if they are based on the rational perception of the witness and are helpful to a clear understanding of the fact issue. In contrast, expert witnesses must be qualified by knowledge, skill, experience, training or education in an area of scientific, technical or other specialized knowledge. Not all witnesses are one or the other. For example, what type of witness is the bank president who has specialized knowledge of the banking industry or the investigating officer who has specialized knowledge of accident reconstruction? It may depend on your ultimate goal in the case and at which counsel table you sit. Litigation is becoming more specialized. A dispute over a foreclosure on real property does not require the same type of witnesses as the personal injury case involving a motor vehicle accident; yet each of them may have hybrid witnesses. These witnesses will provide both fact testimony that may lead to valuable and useful expert testimony without the need to incur the costs of retained experts. A bank president who can explain the intricacies of the foreclosure process used within
his bank may prove very useful when attempting to convince a jury that a foreclosure was proper. An investigating police officer who has investigated and reconstructed hundreds of accident scenes may be very useful in explaining the contributing factors listed on a particular accident report and which of them may be relevant in the jury’s deliberations. A person with specialized knowledge may testify about their own observations under Texas Rule of Evidence 701 and may also testify about the theories, facts and/or data used in their specific area of experience under Rule of Evidence 702. Unfortunately, a distinct line cannot be drawn between lay opinion and expert testimony. All perceptions are based on experience and each must be evaluated within the confines of the facts presented and the witnesses’ experience. Generally, a lay witness, whose testimony does not require significant expertise to interpret or explain and which is not based on a specialized knowledge, will be permitted to testify as to their individual experiences and observations. When a jury may not fully understand the evidence or if the jury is not able to reach a determination of a fact issue without the assistance of a witness with specialized knowledge, it is then that expert witness testimony may be required. Indeed, it is even possible for an expert witness to provide lay opinion testimony based on their own observations and experiences. Courts have a great deal of discretion in determining whether or not a witness qualifies as an expert or whether their opinions are simply that
of a lay person. In order for a witness to testify as an expert, the court must determine whether there is an issue for which expert testimony is needed to assist the jury. If so, the court must determine whether the chosen witness is qualified to be an expert. General specialized knowledge is not sufficient by itself to qualify a lay witness as an expert. As was demonstrated in My Cousin Vinny, the witness must have particular expertise in a relevant area and the witness must have expertise or practical knowledge of the specific question at issue, not simply general knowledge in the area. For example, an expert neurologist may be
able to give expert testimony regarding his treatment of patients who may have suffered a stroke and may also testify as to his hospital’s protocol with respect to such treatment; but without qualifying him as an expert, the doctor cannot opine on the protocols utilized by other hospitals for such treatment as there is no basis for such opinion. The lesson is to listen to the testimony, research the witness and determine whether the testimony is lay testimony or expert testimony. Each case will be HN different. Jacquelyn V. Clark is a senior associate at Cowles & Thompson. She can be reached at jclark@cowlesthompson.com.
join us for the Dallas Bar Association’s
Fall Fiesta honoring our Newest DBA Members and newly licensed attorneys!
Thursday, November 14, 2013 5:30 - 8:00 p.m. at Belo For more information or to become a sponsor, please contact Kim Watson, Membership Coordinator at kwatson@dallasbar.org or (214) 220-7414
Now You Have a Choice Do your Labor and Employment referrals receive the attention they deserve? Send your referral to the front of the line. Contact Joe Kendall or Matt Scott at 214-744-3000.
Advocating for employees from all walks of life. 3232 McKinney, Suite 700 | Dallas, Texas 75204 www.kendalllawgroup.com
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
November is Texas IOLTA Prime Partner Bank Month By Betty Balli Torres
In 1984, the Supreme Court of Texas created the Interest on Lawyers’ Trust Accounts (IOLTA) Program as a means of providing funds for legal aid. For many years, the system worked as it was intended, and played a major role in the funding of the state’s legal aid system.
Fast-forward 29 years and the picture has changed drastically. Due to historically low interest rates, the revenue generated from the program has plummeted. As a result, low-income Texans are forced to face serious, complicated and sometimes life-threatening civil legal issues on their own. In 2007, IOLTA revenue was $20 million; in 2013, it is projected to total only $3.6 million—a decline of more than 80 percent. More than 5.7 million Texans qualify for legal aid, and many are turned away due to a lack of resources. The decline in IOLTA revenue has resulted in a crisis in access to the justice system for low-income and poor Texans. Fortunately, more than 70 Texas banks have helped to address the problem by becoming Prime Partner banks. Prime Partner banks voluntarily pay higher interest rates on IOLTA accounts, helping close the gap in funding. These banks increased IOLTA revenue by millions throughout Texas. In November, we recognize the important role of these banks during Prime Partner Bank recogni-
tion month. In Dallas, Addison, Frisco & Plano area Prime Partner banks include: American Momentum Bank Bank of the Ozarks Collin Bank F & M Bank & Trust Co. First National Bank Southwest LegacyTexas Bank PlainsCapital Bank Preston State Bank Share Plus Federal Bank Southwestern National Bank Texas Security Bank Town North Bank Funds from the Prime Partner program help the Texas Access to Justice Foundation provide assistance to Texas families seeking justice for an abused child, receiving health benefits for an elderly person, or getting a family back in their home when faced with a foreclosure or eviction. The Prime Partner program needs help from the legal community to keep up the momentum. You can: Bank with a Prime Partner bank to strengthen the program and encourage additional banks to join the cause. Thank your local Prime Partner bank for their assistance in helping low-income Texans and join the “ I Bank of Justice ”campaign to highlight your support. A more direct way to help is to contact eligible banks and ask them to join the Prime Partner program. Visit the Texas Access to Justice Foundation website at www.teajf.org to see a list of eligible banks and to learn how to recruit new Prime Partners. With the support of the legal community, we’ll continue to close the gap in funding for legal aid. Banking with a Prime Partner is banking on HN justice.
IOLTA Prime Partners “Banking on Justice” The Supreme Court of Texas requires attorneys to place IOLTA accounts at eligible banks—those that pay interest rates comparable to other similarly situated accounts. To see a list of committed banks or for more information on Prime Partners, contact the Texas Access to Justice Foundation at www.teajf.org or 512-3209-0099.x
DVAP’s Finest
Jennifer Vermillion
Jennifer Vermillion is an associate attorney at The Vermillion Law Firm, LLC, where she practices estate planning and probate and represents veterans before the VA. She has taken several cases with DVAP, including uncontested divorces, a custody dispute, a guardianship, name changes, expunctions, small claims court matters, probate matters, and one contested probate matter. She has also done intake at various DVAP Wills Clinics. “I’ve gained so much from taking pro bono cases through DVAP. Not only is it great experience and effective business development, it’s the most rewarding volunteer work I’ve ever done, and a great way to meaningfully impact the lives of individuals in the local community,” Jennifer said. Thank you for all you do, Jennifer!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
Novem ber 2013
Jones Day Recognized as Pro Bono Law Firm of the Year of pro bono to further develop the reach of their pro bono activities and encourage the participation of its lawyers and staff. Staff report Victoria Neave, of Victoria Neave Law Firm, PC, was named Pro Bono Each year, the Dallas Volun- Lawyer of the Year. Ms. Neave contributed teer Attorney Program more than 400 hours of (DVAP), a joint project of pro bono service through the Dallas Bar Association her participation in the and Legal Aid of NorthDVAP Lend-A-Lawyer west Texas, honors the lawProgram. The program creyers, judges and other legal ated by Weil, Gotshal & professionals who donate Manges, LLP in 2006 gives pro bono services. young lawyers an opporAt the Annual Pro tunity to learn about pro Bono Awards Reception bono over a three-month on October 30, the Dallas period by serving full-time office of Jones Day was recat the DVAP offices. In ognized as Pro Bono Law addition, she performed an Firm of the Year for proadditional 325 hours of pro viding nearly 1,500 hours bono legal service in the of pro bono services to Victoria Neave community. DVAP clients. Ms. Neave focuses on civil litigaJones Day has a long history of and commitment to pro bono work, public tion, family law and criminal defense. service and community involvement in Her commitment to pro bono service all of their locations around the world. continues with her position as the chair The firm not only encourages all of its of the Dallas Hispanic Bar Association’s attorneys to participate in pro bono Pro Bono Committee. DVAP congratulates Jones Day and work throughout the year, each office HN also has a designated partner-in-charge Victoria Neave!
Victoria Neave Recognized as Pro Bono Lawyer of the Year
•2013 Pro Bono Awards• Law Firm of the Year Jones Day
Pro Bono Appreciation Award Sally Crawford, Jones Day
Lawyer of the Year Victoria Neave, Victoria Neave Law Firm, PC
Outstanding Clinic Sponsor K&L Gates LLP
Lisa Blue and Fred Baron Access to Justice Award Jay Patterson Gold Award for Pro Bono Service Baker Botts, L.L.P. Bracewell & Giuliani LLP Locke Lord LLP Patton Boggs LLP Silver Award for Pro Bono Service Cozen O’Connor Haynes and Boone, LLP Vinson & Elkins LLP Weil, Gotshal & Manges LLP Bronze Award for Pro Bono Service Alston & Bird LLP Andrews Kurth LLP Norton Rose Fulbright LLP Thompson & Knight LLP Hartman Judicial Pro Bono Service Award Hon. Brenda Hull Thompson, Probate Court No. 1 Outstanding Small Firm Pro Bono Lawyers Amy Bosway and Camille Reed, Bosway Reed, PLLC Pro Bono Coordinator of the Year Tricia DeLeon, Bracewell & Giuliani LLP
Outstanding Mentor Attorney Jack Wilburn, Attorney at Law Outstanding Clinic Attorney Volunteers West Dallas Clinic Marvin Estes, Attorney at Law Garland Clinic Bill Milne, Attorney at Law South Dallas Clinic Jeff Moore, Verizon East Dallas Clinic Scott Robelen, Bailey & Galyen Outstanding Veterans Clinic Attorney Winifred Cannon, Law Office of Winifred Cannon Lois Bacon Special Services Award Michael Hurst, Gruber Hurst Johansen Hail Shank LLP Pro Bono Court Reporter of the Year Elizabeth Griffin, 302nd District Court Outstanding Court Personnel Donna Hall, 301st District Court Outstanding Support Volunteer Rissa Burgess, Texas Instruments
Professionalism Tip Remember that we are advocates of our clients’ causes, not of our ego. We are entrusted to solely think of and advance the charge that the client has placed on us. Advocate for your client with confidence not arrogance. The results will speak for themselves. Provided by the DBA Professionalism Committee
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D al l as Bar A ssoci ati on l Headnotes 7
At PayneMitchell, we believe our clients have suffered enough without having to worry about the costs of fair legal representation. We commit to cases when we truly believe that the time and effort of going to trial or negotiating a settlement is worthwhile. That’s why we handle both personal injury and business litigation on a contingency fee basis. And because we have complete confidence in every case we represent, we’re able to combine passionate advocacy with compassionate support and understanding for the challenges our clients face. We measure success not only by achieving the best possible results for each client, but also by the positive changes in products, processes and practices we influence that result in a safer, better community for all. To learn more about why it pays to talk to PayneMitchell Law Group, contact us today.
phone: 21 4 .252.18 8 8 • f a x : 21 4 .252.18 8 9 • pay nemitchell .com Av i AT i o n • P ro du c T s L i A b iL i T y • M edi c A L M A L P r Ac T i c e • n eGL i G en c e coM M erc i A L v eHi c L e s • W H is T L eb LoW er / Qu i TA M • b usine ss To rT s
connecT WiTH us on
8 He a d n o t e s l D a l l a s B a r A s s o ciationâ€
R
Novem ber 2013
estoring
O H ur
Thank you to all who made our renovation possible. A special thank you to Culinaire, Inc., Dallas Bar Association Sections, Dallas Association of Young Lawyers, Dallas Asian American Bar Association, Dallas Hispanic Bar Association and J.L. Turner Legal Association for your support. Photos courtesy DBA and Pro360 Virtual Tours & Photography
Need to book your holiday party, wedding, business breakfast or special event? Contact Kevin Brant, Belo General Manager, at kbrant@dallasbar.org or (214) 220-7471. We hope to see you soon!
ome
Nov e mb e r 2 0 1 3
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Tort & Insurance Practice
Misrepresentations in an Insurance Application by Beverly Bell Godbey
Most insureds recognize that material misrepresentations in an insurance application can cause the insurer to seek rescission (void from inception) of a policy issued in reliance on the application if the insured sustains a loss from a risk the insurer would not have covered if the insurer had known the true facts. But, what does the insurer need to prove to obtain rescission? A recent opinion from the Dallas Court of Appeals sheds new light on this thorny topic. In Medicus Ins. Co. v. Todd, 400 S.W.3d 670 (Tex. App. - Dallas, 2013), Justice Lana Myers concluded that rescission requires proof of the insured’s intent to deceive the insurer regardless of potentially disparate language found in the insurance policy or the Texas statutes. Virtually every type of insurance policy contains language advising the insureds that material misrepresentations in the application can give the insurer the right to void the policy or deny coverage for a claim. Many insureds are not aware, however, that Section 705.004 of the Texas Insurance Code says that these provisions “have no effect” and “do not constitute a defense in a suit brought on the policy.” Because the statute contains an exception to the general rule, further analysis is necessary to determine if rescission remains a potential threat to coverage when the insurance policy contains this type of provision. The statutory exception applies if it “is shown at trial” that the misrepresentation was (1) material to the risk and (2) “contributed to the contingency or event on which the policy became due and payable.” The statute never men-
tions intent to deceive. Nevertheless, since 1933, the Texas Supreme Court has imposed an intent to deceive requirement on any rescission lawsuit. The seminal case on the issue, Mayes v. Mass. Mut. Life Ins. Co., 608 S.W.2d 612 (Tex. 1980), lists the elements an insurer must prove before an insurance policy can be rescinded: (1) a representation; (2) the falsity of the representation; (3) the insurer’s reliance on the misrepresentation; (4) the insured’s intent to deceive the insurer in making the misrepresentation; and (5) the materiality of the misrepresentation. In Medicus, the insurer argued that the Supreme Court’s five-pronged test provided a common law path to rescission and the Texas Insurance Code provided a parallel statutory path. According to the insurer, either path would lead to rescission even though the elements of proof were distinct. In other words, an insurer could obtain statutory rescission without proving the insured’s intent to deceive as required by the common law. In contrast, the insured argued that some form of Section 705.004 had been on the books in Texas since 1903, so the Supreme Court had known about the statute in expressing the five-pronged test and had determined that an intent to deceive was a necessary element of proof for rescission despite the statutory silence on the issue. After reviewing dozens of cases over the years in which Texas courts had applied the Supreme Court’s test to rescission claims involving every type of insurance policy imaginable (homeowners, life, credit disability, health care, motorcycle, aircraft, and property, just to name a few), Justice Myers determined
2014 INAUGURAL OF Scott M. McElhaney
that the statutes and the common law can and should be read together to determine the correct test for rescission. She held that proof of the insured’s intent to deceive was required no matter how the insurer denominated the rescission claim. As Medicus demonstrates, insurers face a heavy burden of proof to rescind an insurance policy. Even so, Medicus goes on to confirm that an intent to deceive can be established by circumstantial evidence. In addition, some commercial insurance policies, like Directors and Officers, Employment Practices Liability, Fiduciary Liability, Employee Theft and Professional Liability, contain definitions of “application” that may expand the definition to include documents and information other than the application itself. Examples include financial state-
ments, public filings with the SEC or other regulatory agencies, press releases and other publicly disseminated materials, any of which might contain false statements. Also, some definitions of “application” include applications and documents submitted to prior insurers, thereby further expanding the universe of statements that could form the basis of a rescission action. Notwithstanding the heavy burden of proof, insureds should be careful to read the application carefully, answer all questions truthfully and consult with their broker or coverage counsel in advance of submission to avoid any HN chance of rescission. Beverly Bell Godbey is a Trial Partner and member of the Policyholder Practice Group in the Dallas office of Gardere Wynne Sewell LLP. She can be reached at bgodbey@gardere.com.
PARKING OPTIONS AROUND BELO Please plan to arrive at your noon meetings early. Parking is limited at Belo during the noon hour. To view other parking options in the area, log on to: www.thedallasartsdistrict.org/ plan-your-visit/parking/index.htm
BECOME AN E-MENTOR! Be a positive role model to a high school student in the Dallas ISD! If you have a few minutes each week to send an email and you are looking for an easy way to make a positive impact on today’s youth, then sign-up as a volunteer today! www.dallasbar.org/ementoring
Park Place Motorcars Dallas Ticket to Drive Raffle ...Winner receives 2014 Mercedes-Benz CLA-Class
At The Westin Galleria Dallas
Saturday, January 1 1, 2014 The Dallas Bar Association will inaugurate its 105th President, Scott M. McElhaney at the inaugural ball on Saturday, January 11. The black-tie ball will include dinner, dancing to music by the band New Ground and silent and live auctions.
Cocktails 6:30 p.m. | Dinner 7:30 p.m. Tickets $150; Tables $1,500 | Judiciary $100 To reserve your ticket, contact Shawna Bush at (214) 220-7453 or sbush@dallasbar.org. Visit www.dallasbar.org for more information!
Runner-Up Receives: Key West Marriott Beachside Hotel 4-Night Stay with Rental Car and Airfare for 2 Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, which provides legal services to the less fortunate in our community. No more than 1,500 tickets will be sold. Purchase raffle tickets online at
www.dallasbar.org/dvap/raffle.asp or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201). Drawing will be held at the DBA Inaugural Ball on January 11, 2014. The winner need not be present to win. The winner is responsible for all taxes, title and licensing. Prize is non-transferable. No cash option is available.
10 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2013
Battling Suicides and Depression: How Lawyers Can Help By Brian A. Farlow
Usually kept in the shadows, recent events and the corresponding response have helped focus on a disturbing threat facing lawyers: depression and suicide. The Texas Lawyer Assistance Program (TLAP) notes that suicide is the third leading cause of death among lawyers and that the rate of death by suicide for lawyers is two to six times that of the general population. Other studies found that, among professions, (a) lawyers suffer the highest incidence of depression; (b) lawyers have the highest suicide rate (overtaking dentists in 1996); and (c) approximately 15-20 percent of all U.S. lawyers suffer from alcohol/substance abuse. A study by Campbell University found that 11 percent of attorneys in North Carolina had contemplated suicide in the last month and 26 percent of respondents exhibited symptoms of clinical depression. Only one other profession is similarly threatened by depression and suicide: the U.S. military. In 2012, 349 members of the U.S. military took their own lives. The Army alone lost 182 soldiers to suicide—actually exceeding the 176 Army soldiers killed in Afghanistan in 2012. Importantly, more than a third of the military personnel who committed suicide were never deployed—suggesting the cause may likely go beyond deployments and the stress of combat. By any measure, these are grim statistics. To me, a lawyer with over 15 years of practice and a U.S. Army officer who
has served multiple deployments, they are alarming. The U.S. military is actively combating this “internal enemy” that continues to claim lives of our soldiers. As lawyers we can and must do more to recognize lawyers in need, and to reduce suicides in our profession. Having worked in both environments, I believe there is much to learn from the U.S. military’s experience in battling suicide. Like soldiers, lawyers often view themselves as combatants that “go to battle” against an adversary (sometimes “in the trenches”) on behalf of their clients. Soldiers are often worried that “taking a knee” or seeking help violates the Warrior Ethos they were trained to uphold. Similarly, lawyers are trained to fight through difficult assignments and regularly manage an astronomical work load. Among legal professionals, seeking help has been described as a “career killer”—signaling to peers and clients alike that the attorney cannot be trusted or may “crack” under pressure. Often, when an attorney falls to depression or suicide, others think the failure was evidence that the attorney simply “could not handle the stress.” My experience has taught me that my two professions are strikingly similar. The Army’s current suicide prevention video, Shoulder to Shoulder, stresses a soldier’s obligation to take care of his or her “battle buddy.” Soldiers readily understand the concept of being responsible to the soldiers on one’s left or right in a combat or training exercise—and the Army is seeking to refocus this understanding
to all soldiers in crisis, whether on the battlefield or elsewhere. The video also emphasizes that it is perfectly acceptable to “take a knee” when necessary. This point is made to combat the fear soldiers have in seeking help even if they recognize they are in crisis. Soldiers would not think twice about running to their buddy’s aid—even if such effort exposed the soldier to mortal danger. The Army demands all soldiers to be willing to take action to potentially save their battle buddy’s life when a soldier is contemplating suicide. Obviously the bar cannot impose such a demand. But we can adjust our moral compass to make sure we take care of our brothers and sisters in crisis. The card distributed by the TLAP (containing information on readily available resources to assist lawyers in crisis) advises us to “consider the totality of the situation and trust [our] intuition.” It also recommends us to “research” the facts—including ask-
ing the other lawyer “[A]re you thinking of hurting yourself?” In 2008, the Army produced the ACE program—Ask, Care, Escort—by distributing playing-card sized suicide intervention cards. The first step is to have the courage to directly ask the question: “[A]re you thinking of hurting yourself?” As revealed in Shoulder to Shoulder, just asking that simple, profound question can set in motion a chain of events that actually prevents the death of a battle buddy. While I do not understand why or how asking that question seems to often lead to turning things around—the survivors in Shoulder to Shoulder make it very clear that it is often a successful first step. Lawyers must not be afraid to ask the same question of their battle buddies, HN their fellow lawyers.
Payments from relatives or other third parties. Make sure to include the specific client name, invoice number and matter number if possible. Obtain signature from the third party to confirm they are accepting responsibility for payment of another party. Obtain client initials next to any specific cancellation policies included in your client agreements.
Your firm will need to provide documentation to support the transaction in question. This should include any payment authorization or payment communication from the client. You may also be asked to show proof of work or services performed by your firm. Please note, you will not be asked to disclose sensitive client information or details on a particular matter. Keep in mind your client is declining payment to your firm, so the bank is already aware you are working with that particular cardholder. As part of our service, LawPay is available to support your firm in your efforts to win a chargeback dispute. We are also happy to review your chargeback process and make recommendations to avoid potential client dispute situations. Our goal is to help you and your clients have a positive payment HN experience.
Brian A. Farlow is a Member of Elrod, PLLC. He is also a Major in the U.S. Army Reserves and active with the Dallas Bar Association’s Peer Assistance Committee. He can be reached at bfarlow@elrodtrial.com.
Preventing Chargebacks by Amy Porter
A chargeback occurs when your client or the cardholder disputes a specific credit card transaction. A chargeback is initiated by the cardholder through their card-issuing bank. This action allows a cardholder to temporarily not pay for a specific transaction while the charge is investigated. In the event of a client chargeback or charge dispute, the best defense is a good offense. The card issuing bank is looking to see if you, the merchant, had permission to charge the credit card, and did you perform the work charged for. A few simple steps on the front end can help ensure your firm has the best opportunity of win a chargeback case, and avoid potential loss of income.
Most Common Chargeback Reasons Include:
The firm does not have permission from the card holder to charge the card.
The firm did not provide the service or work agreed to by the cardholder. The dollar amount charged was different than what was agreed to.
Tips to Avoid Potential Client Chargebacks:
Obtain authorization from the cardholder for the specific dollar amount being charged. Confirm the name on the card. If the name is different from your actual client, obtain additional approval from the actual cardholder. This is common in certain practice areas such as family law. When accepting credit card information over the phone or through your website, ensure you have a charge authorization or previous client agreement to charge payments on file. Have clients specifically initial the firm’s payment and credit card policies in their client agreements. This specifically shows the client was notified of the firm’s payment policies and agreed to them.
What Happens When You Receive a Chargeback Notice?
Your client has filed a formal dispute on a specific charge amount. Notice is generally sent by the mail from the Card-issuing Bank. As a courtesy, LawPay will attempt to notify you via email or phone to expedite the process. Time is critical. Your firm will be asked to respond within a 7-10 day time period. (The exact date will be set by the card-issuing bank). It is important to respond promptly.
Amy Porter is CEO of LawPay, a full-service bankcard processing company specializing in the legal industry.
You Are Invited to:
Shoulder to Shoulder: Equipping Attorneys to Recognize and Assist Fellow Attorneys in Crisis Friday, November 15, Noon at Belo Speakers: Bill Edwards, Ph.D, and Brian Farlow Ethics 1.00 RSVP to sevans@dallasbar.org. Sponsored by the Peer Assistance Committee.
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Dal l as Bar A ssoci ati on l Headnotes 11
THANK YOU The Jewish Federation of Greater Dallas wishes to recognize and thank those members of the Cardozo Society who make our community so strong, caring and vibrant. Warren N. Abrams David G. Adler Martin Barenblat Darren L. Barnett Sheli L. Barnett Gilian Baron Steven T. Baron Jeffrey M. Becker David Bell Lindsay Bendorf Rachel Berke Keefe Bernstein Stuart E. Blaugrund Steven R. Block Brian R. Bloom Lisa Blue Alan J. Bogdanow David R. Brickman Barry S. Brown Craig W. Budner Susie Carp Jeffrey A. Chapman Jacob C. Cherner Robert M. Cohan Harlan Cohen Michael B. Cohen Roxy Diamond Calman Donsky Brian Eberstein Gary D. Eisenstat Stefani Eisenstat Stephen L. Enda Leonard A. Epstein Robert E. Feiger Alan D. Feld Robert L. Feldman Steven A. Felsenthal Jeffrey R. Fine William B. Finkelstein Felicia Finston Bradley R. Foxman Ronald A. Foxman Gilbert Friedlander Jason Friedman Lawrence J. Friedman David B. Gail
Brad W. Gaswirth Ronald M. Gaswirth Lisa A. Genecov David M. Genender Paul R. Genender Toby L. Gerber Lawrence D. Ginsburg Kenneth R. Glaser Daniel Gold Jennifer Goldman Lawrence B. Goldstein Luis F. Gomar Eric C. Green Alan Greenspan David Greenstone William R. Gutow Linda Hart Marcy C. Helfand Lawrence P. Hochberg Michael L. Hoffman Jane R. Hurst Michael K. Hurst Mark Iola Randall L. Iola Jack E. Jacobsen David Judson Michael L. Kaufman David Kleiman Alan C. Klein Marc H. Klein Harold F. Kleinman William S. Kleinman Robin Kosberg Robert Krakow Richard Krumholz Rick A. Lacher Carl B. Lee James J. Lee Lew A. Lefko Julian A. Lerner Jeffrey S. Levinger Brian M. Lidji Barbara M. Lynn Ronald M. Mankoff Sean Markowitz James Markus
Richard A. Massman Alexander More Daniel Morenoff Stuart A. Morse Rory Nerenberg Lisa R. Newman Michael H. Newman David E. Olesky Sarah Pailet Elaine Pearlman Trevor L. Pearlman Alan J. Perkins Joseph Pevsner Eric W. Pinker Jerome L. Prager Richard D. Pullman Charles D. Pulman Howard E. Rachofsky David Radunsky Eliot D. Raffkind Manuel Rajunov Jeffrey Rasansky Jerry Rasansky Richard Reister Marc Richman Clifford J. Risman Richard A. Rohan Thomas E. Rosen Sheldon Rosenberg Jeff L. Rosenfield Jonathan Rubenstein Helene & Joe Rudberg Morton A. Rudberg Michael A. Saslaw Steven A. Schneider Larry Schoenbrun Michael R. Schulman Jessica Schwarz-Zik Scott Seideman Jerry R. Selinger Ben Setnick Howard Shapiro Todd D. Shapiro Alan Shor Charles S. Siegel Jonathan A. Siegel
Mark J. Siegel Maxel B. Silverberg Ira W. Silverman Jeffrey Simon Gregory Singer Mark Solls Mark S. Solomon Martin A. Sosland Sidney Stahl Marc R. Stanley Bruce W. Steckler Barbara Stein Sheldon I. Stein Lawrence E. Steinberg Marc I. Steinberg Arlene Switzer Steinfield Barrett A. Stern Evan D. Stone Israel L. Suster Michael C. Titens Daniel L. Tobey David J. Tobin Jay L. Tobin Peggy M. Tobolowsky Josh Ungerman Julie Ungerman Gerald Urbach Robert Velevis Peter Vogel Craig Weinstein Carl M. Weisbrod Ronald M. Weiss Richard S. Wilensky Robert K. Wise Marc Wolens Steve D. Wolens Lawrence M. Wolfish Sally Wolfish Melvin H. Wolovits Harrison Yoss Jeffrey A. Zlotky *We apologize if any names were inadvertently omitted or listed incorrectly. Please let us know of any changes by emailing honor@jfgd.org so we can make immediate corrections for future listings.
ABOUT THE CARDOZO SOCIETY The Cardozo Society, founded in 1995, and named in honor of Supreme Court Justice Benjamin Cardozo, is the leadership and programming arm of the Attorneys Division of the Jewish Federation of Greater Dallas. The goal of the society is to serve the Jewish Community and strengthen relationships among Jewish lawyers by promoting community service, tzedekah, education and leadership. Cardozo Society members support the work of the Federation by volunteering their time for worthwhile causes that benefit Jews locally, around the world and in Israel and by making a pledge to our community’s annual campaign of $2,000 or more ($1,000 for legal professionals under the age of 40 or over the age of 80). For more information about the Cardozo Society, contact Ashleigh Miller at amiller@jfgd.org or 214-615-5272.
www.JewishDallas.org Jewish Federation of Greater Dallas
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2013
DBA Bench Bar Conference At Horseshoe Bay
THANK YOU TO POINT MULTIMEDIA
For providing all the AV support at Bench Bar for 10 years!
We appreciate you!
Point Multimedia: (214) 247-2000 • www.pointmultimedia.com Graphic Development, Courtroom Operation, Video Depositions
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D al l as Bar A ssoci ati on l Headnotes 13
Emeritus Members The Dallas Bar Association honors members who have contributed to the legal profession for 50 or more years. All 50-year members are invited to attend the Annual Meeting on Friday, November 1, 2013 at 3:30 p.m. to be recognized. To RSVP, please contact Mary Ellen Johnson at 214-220-7474 or mjohnson@dallasbar.org.
Licensed in 1939 Lawrence W. Anderson Bernard Hirsh Licensed in 1940 Bardwell D. Odum Licensed in 1941 Royal H. Brin, Jr. Robert S. Strauss Licensed in 1942 William F. Alexander Claude D. Bell, Jr. Frank Ripy McWhorter Licensed in 1946 James R. Alexander Frank G. Newman Robert E. Rain, Jr. Jean L. White Licensed in 1947 Gordon R. Carpenter Joseph W. Geary George Hopkins George Garrison Potts John F. Wilson Licensed in 1948 George Ashley Thomas T. Barnhouse Lamar Carnes H. Gene Emery Florence K. Fletcher Lionel E. Gilly Paul Harkey Joel T. Williams, Jr. Licensed in 1949 Jack E. Brady William N. Hamilton Harold L. Hitchins William L. Keller Cecil G. Magee B. Thomas McElroy Hon. Ted Z. Robertson Licensed in 1950 George C. Anson Albert L. Bartley, Jr. Harold B. Berman D. Louise Boucher Hon. Dean M. Gandy Charles C. Garner Henry Gilchrist Wayne Hancock
William C. Herndon H. Louis Morrison, Jr. William C. Odeneal A.W. Patterson, Jr. Ralph W. Pulley, Jr. F.W. Reese Robert G. Vial Licensed in 1951 Hon. L.A. Bedford, Jr. Ramsey Clark M. Wayne Cummings James E. Day, Jr. Zack E. Mason Joseph W. McKnight John L. Roach Hon. Thomas B. Thorpe H.E. Walker, Jr. J. Ralph Wood, Jr. Licensed in 1952 John R. Anthony, Jr. Robert F. Ashley Prof. Alan R. Bromberg John H. Chiles James E. Coleman, Jr. Hon. Harry T. Holland Vester T. Hughes, Jr. Jerry N. Jordan Graham R.E. Koch Joseph M. Stuhl William (Bill) H. Tinsley James A. Williams Richard S. Woods Licensed in 1953 Joe Don Denton Roy W. Howell, Jr. James A. Knox Hon. James W. Mast William R. McGarvey Licensed in 1954 Frederick H. Benners Cooper Blankenship Paul M. Brewer Hon. Ben F. Ellis Charles W. Hall John M. Hamilton Harold F. Kleinman J. Redwine Patterson Benjamin E. Pickering Hon. Robert E. Price Allen P. Schoolfield Maxel (Bud) Silverberg James C. Tubb John R. Wright
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Licensed in 1955 Hon. Ted M. Akin Dennis G. Brewer, Sr. Charles D. Cabaniss Eugenio Cazorla Thomas N. Griffith Jess T. Hay Lawrence P. Hochberg Jack Pew, Jr. Anthony G. Riddlesperger Forrest Smith Robb Stewart Lee D. Vendig Licensed in 1956 Benjamin R. Collier John L. Estes Frank Finn Merle R. Flagg Richard A. Freling Joseph J. French, Jr. Roger A. Hansen Frank S. La Barba, Jr. Marvin L. Levin Wilmer D. Masterson Elton M. Montgomery Hobert Price, Jr. Frank Tupper Smith, Jr. Sidney Stahl Claude R. Wilson, Jr. Gerry N. Wren Licensed in 1957 Barton E. Bernstein William F. Bowles Bill H. Brister Don T. Cates Frank W. Elliott Jerry C. Gilmore V. Rock Grundman Ivan Irwin, Jr. Tom James William C. Koons Edward J. Lynch Bernard C. McGuire Kenneth J. Mighell Harold E. Moore Neil J. O’Brien William D. Powell Ronald Roberts Morton A. Rudberg Merlyn D. Sampels J. Richard Sanderson Clay C. Scott, Jr. Carl A. Skibell Jason B. Sowell, Jr. Hon. Milton Sturman
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Robert H. Thomas Louis J. Weber, Jr. Licensed in 1958 Burt Berry Walton P. Bondies, Jr. R.W. Calloway Leland W. Carter Robert C. Cox Robert Edwin Davis Hon. John M. Duhe F. Lynn Estep, Jr. Robert (Jim) Foreman Ben A. Goff John W. Hicks Jr. Bill C. Hunter Jerry Lastelick John E. Lawhon John T. McCully John H. McElhaney Robert H. Power William T. Satterwhite Harry R. Shawver, Jr. Dan W. Stansbury Jack R. Wahlquist Emory L. White, Jr. Barney T. Young Norman A. Zable Licensed in 1959 Tom A. Blakeley, Jr. Allen Butler Durwood D. Crawford Marshall J. Doke, Jr. Robert A. Fanning A.D. “Gus” Fields Frederick W. Fraley, III Larry L. Gollaher James J. Hartnett Jack W. Hawkins Norman P. Hines, Jr. James H. (Blackie) Holmes, III Herbert L. Hooks Ray Hutchison Jerry P. Jones Richard A. Lempert George R. Milner George David Neal Donald F. Padgett Burton H. Patterson Paul L. Salzberger Edwin M. Sigel Joe A. Stalcup Charles M. Supple Robert C. Taylor Licensed in 1960 E. Karl Anderson Anthony Atwell Paul E. Ave Lester V. Baum P. Oswin Chrisman
Edward A. Copley David S. Curtis Alan D. Feld Paul L. Fourt Lawrence W. Jackson Leo J. Jordan, Sr. John L. Lancaster, III Joe H. Loving Jr. Hon. Robert B. Maloney Tom D. Matthews, Jr. Hon. Pat McDowell Hon. Robert C. McGuire Hon. Don Metcalfe Robert L. Meyers, III Robert F. Middleton Hon. Robert O’Donnell Jerome L. Prager William M. Ravkind Cecil A. Ray, Jr. Rust E. Reid James B. Sales Malcolm L. Shaw C. Freeman Stallings, Jr. Donald A. Swanson, Jr. Arthur I. Ungerman William D. White, Jr. Licensed in 1961 Arch A. Beasley, Jr. John F. Boyle, Jr. William T. Burke, Jr. Adelfa B. Callejo Roy C. Coffee, Jr. Jim E. Cowles Adair Dyer, Jr. Albert B. Fenton John A. Gilliam David G. Glickman Jay Rodney Kline Larry M. Lesh Warren C. Lyon Clark J. Matthews, II Donald C. McLeaish Stan McMurry John W. Payne Paul W. Phy Virgil E. Rogers James T. Rudd Miles L. Schulze Wade C. Smith Simeon R. Trotter Paul B. Underkofler Fred D. Ward Christopher M. Weil Ben B. West Fletcher L. Yarbrough Licensed in 1962 Frederick P. Ahrens Reyburn U. Anderson Bernard B. Athey, Jr. Bruce Baldwin
Charles G. Barnett John H. Boswell Joseph T. Cain George C. Chapman George C. Dixie Robert E. Edwards Raymond J. Elliott Christie S. Flanagan Kenneth D. Fuller Houston E. Holmes, Jr. A. Holt Irby Jimmy D. Ivy Tim K. Kirk Hon. Don Koons Hon. William F. Kortemier, II David R. Latchford O. Fred Lohmeyer Donald J. Malouf Lawrence R. Maxwell, Jr. Hon. John P. McCall Frank E. McLain William H. McRae Curtis W. Meadows, Jr. William C. Roberts, Jr. Norman R. Rogers John Q. Stilwell, JD, PhD Mark A. Troy James A. Walters Licensed in 1963 Douglas Adkins Joseph E. Ashmore, Jr. Buford P. Berry Jerry W. Biesel Kenneth E. Blassingame John Willard Clark, Jr. George W. Coleman A.B. Conant, Jr. William (Bill) P. Davis James A. Donohoe Lawrence B. Gibbs Major Cyrus Ginsberg Jay L. Gueck R, Brooks Hamilton William M. Hayner Ronald M. Holley Joe T. Hood Bernard P. Malone P. Mike McCullough Robert H. Mow, Jr. Walter E. (Rip) Parker Harry M. Roberts, Jr. Michael E. Rohde Edward V. Smith, III G. Dennis Sullivan Roy J. True J. Glenn Turner, Jr. Robert W. Turner Bill R. Womble
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2013
Mary Murphy and Ada Brown Appointed by Governor Perry Joint Investiture to be held November 13 Staff Report
Governor Rick Perry appointed Hon. Mary Murphy as presiding judge of the First Judicial Administrative Region. In the position, she will oversee Dallas County and 33 additional counties in Texas. Her responsibilities include hearing
motions to recuse judges or assigning other judges to hear those cases, as well as appointing visiting judges. Her appointment expires in October 2017. Previously a Dallas County civil court state judge, Judge Murphy most recently retired from the 5th Court of Appeals in Dallas. She is a graduate of SMU Dedman School of Law. Also recently appointed by Governor Perry was Ada Brown. She
has been selected to serve as a justice on the 5th Court of Appeals in Dallas. From 2005 to 2006, Brown was judge of the Dallas County Criminal Court No. 1. Prior to that, she was an assistant district attorney in Dallas County from 2000 to 2005. She earned her law degree from Emory University School of Law in Atlanta in 1999, and she earned her undergraduate degree from Spelman College in Atlanta in HN 1996.
Justice Ada Brown
Justice Mary Murphy
DBF Provides $2.48 Million in Grants by Elizabeth Philipp
Since 1981, the Dallas Bar Foundation has provided $2.48 million in grant awards to organizations whose program goals are consistent with the Foundation’s mission. Continuing that tradition, the DBF is pleased to have awarded almost $90,000 in grants for the 12month period ending September 30, 2013. These grant awards are in addition to the other programs funded by the DBF including the Sarah T. Hughes Diversity Scholarships, the Collins Clerkships, the Justice James A. Baker Clerkship, the Donald C. McCleary - Gardere Leadership Scholarship and the Philbin Awards for excellence in legal reporting. The 2013 Grants Committee is chaired by Rey Rodriguez, of Norton Rose Fulbright LLP, with Frank Stevenson, of Locke Lord LLP, serving as Vice Chair. They are joined on the committee by Nina Cortell, of Haynes and Boone, LLP, and Victor Corpuz, of Jackson Lewis LLP. Each grant request is reviewed by the committee before being presented to the DBF Board of Trustees for final determination. Committee members review the requests to ensure the programs align with the DBF mission of supporting law related scholarships and education, charitable and legal aid for the indigent, law related forums for the fur-
therance of justice and historical preservation and observances. The organizations must provide financial statements, a program budget and a list of their board members which often include attorneys who are DBF Fellows. “It is always so inspirational to see the many attorneys actively serving on the boards of non-profit organizations and making a difference in the community,” Mr. Rodriguez, said at a recent meeting. Throughout the year, selected grantee organizations are invited to attend a DBF Board meeting to report on the measurable difference the grant has brought to the beneficiaries of their programs. All grantees are asked to submit a written narrative on the results they have achieved from their initiatives described in the grant request. In a recent report, the Dallas Urban Debate Alliance, a pipeline for future attorney leaders, shared some wonderful quotes from DISD students thanking the DBF for its support. “Thanks for literally one of the best, most moving, most intellectual teaching moments of my life. You made me think of debate in a way I can’t even begin to comprehend...for all that, thank you.” – Luis, junior at Sunset High School, now a second year debater. “Honestly, you changed my life, for the better.”– Brenely, senior at Samuell High School, now a 3rd year debater.
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“My favorite time is the time I was really happy for the first time in a while. Be back next year. I’ll be here.” - Tommy, sophomore at Garza Early College High School, now a second year debater. A partial list of grantees approved this past year include: • Conference on Crimes Against Women, the premier national conference organized by Genesis Women’s Shelter, for prosecutors, judges, and law enforcement personnel. • CASA (Court Appointed Special Advocates) which provides abused and neglected children a caring volunteer to represent their best interests in court. • Human Rights Initiative which provides legal services for children clients who have been victims of violence or are immediate relatives of crime victims. • “Appealing to the Public,” a public service program of the DBA, Dallas ISD and the Fifth District Court of Appeals at Dallas for Dallas ISD students and the public to enhance their understanding of the Court system and appeals process. An actual appeal is heard by the Court at Belo with 400 students in attendance. • DBA Diversity Summit which received the 2013 ABA Partnership Award. The summit explored diversity challenges and developed action items for increasing diversity in the Dallas area legal profession in four key areas.
• Dallas Minority Attorney Program Nuts and Bolts Family Law, which saw a record attendance at this year’s one day seminar designed to address the special needs of solo, small, minority and female attorney practices. • Dallas Urban Debate Alliance which provides debate instruction, debate competition, and attorney mentors to DISD students who would not otherwise have had an opportunity to participate on a debate team. • Dallas Volunteer Attorney Program CLE and recruitment program which enlists volunteer attorneys to accept pro-bono family law cases. • IGNITE, an after-school civics program for high school girls, which encourages their understanding of the political process, and the importance of having women involved in leadership positions as elected officials. • Mosaic Family Services which provides legal assistance to a diverse and underserved immigrant population. • Texas High School Mock Trial program which is organized and supported by the DBA. Local attorneys and judges volunteer many hours each year to host and judge the state-wide high school competition. The winning school advances to the national HN competition. Elizabeth Philip is Executive Director of the Dallas Bar Foundation and can be reached at ephilipp@dallasbar.org.
Nov e mb e r 2 0 1 3
Focus
Dal l as Bar A ssoci ati on l Headnotes 15
Tort & Insurance Practice
Caught in the Crossfire? Insurance Intermediaries in Litigation by Jesse Shumway
Most insurance policies, whether personal or commercial, are sold through insurance intermediaries— “brokers” or “agents.” In addition to their role in the purchase of insurance, these intermediaries can have varying levels of involvement in insureds’ risk management programs. When a dispute arises out of insurance placed by an intermediary, the intermediary’s actions often come under scrutiny. For example, Law360 recently reported a mounting number of lawsuits in New Jersey blaming insurance brokers for coverage gaps that resulted in denial of claims associated with Superstorm Sandy. A common procedural and strategic question at the outset of coverage litigation involving potential claims against an intermediary is whether the insurer and the intermediary can or should be joined in the same lawsuit. Setting aside forum considerations, these cases often involve fundamental contradictions between the insured’s claim against the insurer (i.e., the policy provides coverage) and the insured’s claim against the intermediary (i.e., the intermediary failed to procure the right coverage or otherwise voided coverage). Inconsistent claims can be pleaded in the alternative, but they cannot always be litigated together effectively. Similarly, the broker caught in this crossfire can be aligned with, or adverse to, either the insured or the insurer. Determining whether an insurer and intermediary can or should be joined in the same litigation may also require navigating tension between statutes of limitations, principles of ripeness and
damages. In a coverage-denial situation, the intermediary’s potential liability is frequently contingent, at least as a practical matter, on a judicial determination that the insured’s loss was not covered by the policy at issue. But the claim against the intermediary may be barred by limitations if the insured waits until the conclusion of coverage litigation to sue the intermediary. Options here include entering a tolling agreement, arguing an equitable tolling theory, or filing suit and then seeking abatement as to the intermediary claims. On the merits, a threshold question in litigation involving an insurance intermediary is: who did the intermediary represent? The answer is important in determining the existence and scope of legal duties owed by the intermediary. Texas law no longer categorizes intermediaries into distinct classes like “local recording agent,” with their corresponding statutory agency rules. While it remains easy to identify certain intermediaries as the representative of one party or the other for most purposes—an Allstate or State Farm agent, for example—some insurance intermediaries, especially commercial insurance brokers, have more nuanced relationships with insureds and insurers. A number of Texas cases recognize that these relationships may involve “dual agency,” in which the broker represents the insurer for some purposes and the insured for others. The Texas Insurance Code adds another layer of complexity by identifying certain acts that render an intermediary the agent of the insurer for certain purposes. Commercial brokers also often have contracts with insurers and insureds
that may create and define agency relationships. The conduct of the parties will also come into play in a fact-intensive analysis of who represented whom for what purpose. If an intermediary is found to owe the insured a duty, what is the scope of that duty? Texas generally does not recognize a fiduciary relationship between an insurance broker and its client. When a broker undertakes to procure insurance for a client, the broker’s duties include using reasonable diligence to place the requested insurance, and informing the client promptly if unable to do so. Texas courts have generally rejected claims against intermediaries for failing to read or explain insurance policies to insureds after the policies were issued. Broader duties, however, can be established by a contract or course of dealing. An important question that remains unsettled in Texas is whether insur-
ance intermediaries qualify as “professionals,” like lawyers and accountants, for purposes of various litigation doctrines. Insurance intermediaries are licensed by the state and, especially at large commercial brokerage firms, may be highly trained and specialized in complex technical matters. Whether they are considered professionals may determine the types of claims that can properly be asserted against them under the claim-fracturing doctrine, as well as the nature of the proof required to establish the standard of care. For now, litigants on both sides of the question would be well-advised to develop facts demonstrating professional or non-professional characteristics as appropriate to the circumstances, and in any event, engaging experts to address the stan HN dard of care. Jesse Shumway is an attorney at Carrington Coleman. He can be reached at jshumway@ccsb.com.
Juvenile Justice Child Welfare Course Thursday, November 7 | 8:30 a.m. to 5:00 p.m. MCLE 7.75, Ethics 3.00 DBA Members: $120; Non-Members: $150 Register online at: www2.dallasbar.org/DBAWeb/EventRegistration/juvjustice.aspx. Sponsored by the DBA Juvenile Justice Committee
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16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2013
Column Ethics
The Tripartite Triangle: Ethical Dilemmas for Defense Counsel by Linda Dedman and Ashley Mason
Cleverly referred to as the Bermuda Triangle, the tripartite relationship invokes a myriad of complex ethical issues between the insurance carrier, the insured, and counsel defending the insured. Defense counsel confronts a precarious situation because, as Justice Gonzales concluded in State Farm Mut. Auto. Ins. Co. v. Traver, it may be near impossible for defense counsel to approach the tripartite relationship with unqualified loyalty to the insured. Under Texas law, defense counsel owes a duty of unqualified loyalty to the insured, making the insured the client—not the carrier. Rules 1.06, 2.01, and 5.04 of the Texas Disciplinary Rules of Professional Conduct discuss the importance of loyalty, independent judgment, and trust in the attorneyclient relationship. The engagement agreement should identify the client and limit the scope of the representation where appropriate if, for example, the representation only extends to covered claims. Disclosing the relationship between defense counsel and the carrier is critical to allow the insured to make an informed choice about whether to retain independent counsel. Defense counsel’s awareness of covered and non-covered claims is paramount. Does defense counsel’s duty of loyalty to the
insured obligate her to seek coverage for the insured, in spite of the carrier’s defenses? Under California law, Jordache v. Brobeck, Phleger & Harrison shows a finding of malpractice is likely if a firm fails to advise a client regarding insurance coverage for defense of a lawsuit. Similarly, should defense counsel follow the carrier’s instruction to file a motion for summary judgment that will result in loss of coverage? Rule 5.04(c) of the Texas Disciplinary Rules prescribes that a lawyer shall not permit a person who pays the lawyer to regulate the lawyer’s professional judgment when rendering services for another. As discussed above, the carrier’s right to control the defense is typically a contractual right, unless a conflict of interest exists. If all parties’ interests are aligned, defense counsel’s ethical obligations are easier to satisfy. When the carrier sends a reservation of rights letter, the possibility of a conflict arises. Under N. County Mut. Ins. Co. v. Davalos, the insured may reject counsel selected by the carrier and obtain independent counsel if the “facts to be adjudicated in the liability lawsuit are the same facts upon which coverage depends.” Davalos warns defense counsel to recommend independent counsel if the liability defense can be used to steer the litigation toward a denial of coverage, but opined that a conflict perceived to
be minor, such as venue, does not warrant independent counsel. A conflict may also arise if financial influence persuades defense counsel to redirect the litigation strategy in accordance with the carrier’s billing guidelines. Texas Disciplinary Rule 1.08(e) states a lawyer cannot accept compensation from anyone other than the client unless there is no interference with the lawyer’s independent judgment or with confidential information between the lawyer and the client. Traver clarified that defense counsel cannot shield herself from malpractice by claiming the carrier is vicariously liable due to the constraints imposed by billing guidelines. Similarly, Texas Ethics Opinions 532 and 552 establish that defense counsel must obtain the insured’s consent before submitting a fee statement to a third party auditor evaluating defense counsel’s compliance with billing requirements. But, even if the insured consents, are those communications protected by a joint defense or common interest agreement? Likely not, unless the purpose of the communication is to obtain legal advice. Defense counsel’s loyalty to the insured is critical when evaluating settlement demands. Defense counsel has the best vantage point to evaluate the insured’s exposure and should consider whether to advocate for settlement of the claim. If counsel elects
not to pursue settlement, defense counsel should consider any consequences that may result from destroying the insured’s prospect of a viable Stower’s claim. Defense counsel may also have a duty to warn the insured of a potential reimbursement claim by the carrier. While the holding in Texas Ass’n of Counties County Gov’t Risk Mgmt. Pool v. Matagorda County was more limited, Lloyd’s London v. Frank’s Casing Crew & Rental Tools, Inc. held that an insured’s agreement to a settlement can be implied only if the insured requests the carrier to accept a settlement offer and the insured expressly agrees the carrier should accept the settlement offer. According to the recent New Jersey case Buchanan v. Leonard, even if defense counsel is aware of illegal or fraudulent acts by the insured, defense counsel should tread carefully before drafting a settlement memo to the carrier that is against the insured’s interest or betrays confidences. Tilley’s prohibition of defense counsel underhandedly mounting evidence against the insured indicates Texas defense counsel might also be at risk of malpractice under HN Buchanan’s facts. Linda Dedman is the founding partner of Dedman Law, PLLC. Ashley Mason is an associate at Dedman Law, PLLC. They can be reached at ldedman@coveragelawdallas.com or amazon@coveragelawdallas.com, respectively.
Book Review: Cried for No One by Mary Louise C. Hopson
Busy lawyers are not known for having vast amounts of free time, especially as the holiday season approaches. But
if you can squeeze in a book for a little leisure reading, you should check out a new novel written by Dallas Bar Association member Hubert A. Crouch III. Published earlier this year, Cried for
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No One is a fictional Texas courtroom drama that will engage lawyers and anyone else who appreciates a suspensefilled page-turner. The novel, which provides a glimpse into the world of Texas law firms, the people who run them and the intricacies of our state’s legal system, was inspired by a case Mr. Crouch handled several years ago. He won the real-life case on a pretrial motion, but the strange crime, which involved a body stolen from a cemetery, was never solved. The perpetrator was never identified, and the reason it happened was never known. The case continued to nag at Mr. Crouch, who in his “day job” practices at the firm he co-founded, Crouch & Ramey, L.L.P., in the areas of toxic tort, personal injury and commercial litigation. He decided to write a work of fiction in which he would create the characters and solve the crime. The novel is not intended to solve the crime that actually formed the basis for the actual lawsuit; the only common thread is that a young co-ed’s body was stolen and a lawsuit followed. With his busy law practice, it took Mr. Crouch 15 years to complete the novel, his first published book. In the fictional story, a University of Texas co-ed’s body is removed from her grave in the middle of the night, only to be discovered later, marked with a pentagram and left on the altar of a small church. The girl’s parents hire flamboyant Fort Worth lawyer Cal Connors, who sues the cemetery and looks forward to winning his next high-profile case. The cemetery hires high-powered Jace Forman to defend the case, thrusting him into the world of dead bodies
and the places that hold them. Who could have done this horrific crime, and why did they do it? And, as the details of the case continue to change almost daily, with all sorts of new information and complicating factors, how will Jace get ready for trial within the judge’s “rocket docket” timeframe? The story is set primarily in Fort Worth and Austin and features reallife local landmarks. Rich with dialogue and well-developed characters, the tale reveals surprising twists and turns all along the way. Lawyers who work on the corporate side of the law will find this book an interesting glimpse into the world of courtrooms and criminal and defense law. Trial lawyers may even find a new idea or two. And anyone who has ever worked at a law firm will enjoy reading about the relationships between coworkers and other professionals, and the constant challenge to get the work done. If you are looking to put off your holiday shopping for a while, grab a copy of this book and take a ride through its gripping plot, intriguing characters and shocking conclusion, all seasoned with a hearty dose of Texas flavor. The book is available in print form from Amazon (where it is rated five stars by readers) and Barnes & Noble by order, and in digital format on Kindle, HN iBooks, Nook and Google. Mary Louise Hopson is a longtime member of the Publications Committee and former Co-Chair. Her background includes a journalism degree, corporate paralegal work, and law firm marketing. She helps clients with marketing, communications, writing, and editing. She can be reached at mlhops@sbcglobal.net.
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N ove mb e r 2 0 13
Focus
Dal l as Bar A ssoci ati on l Headnotes 17
Tort & Insurance Practice
Eight Corners and True Facts by Summer Frederick
The Texas Supreme Court adopted the eight-corners rule, which governs an insurer’s duty to defend an insured, in 1965 in Heyden Newport Chemical Corp. v. So. Gen. Ins. Co.. A basic application of the eightcorners rule is this: if, when comparing the four corners of the policy with the four corners of the complaint, the allegations potentially fall within the scope of coverage, the insurer’s duty to defend is triggered. Under the eight-corners rule, it is the allegations of the complaint that trigger the duty to defend, not the true facts. The Texas Supreme Court has never expressly recognized an exception to the eight-corners rule. The Court considered this issue in 2006 in GuideOne Elite Insurance Co. v. Fielder Road Baptist Church. While the Court did not hold that a true facts exception could never exist, it declined to hold that an exception was warranted under the facts of that case. In its decision, the Court
noted that the policy’s insuring agreement provided that the insurer should “defend any suit brought against [the insured] seeking damages, even if the allegations of the suit are groundless, false or fraudulent[.]” The Fielder Road decision created uncertainty. For one thing, it was unclear whether its holding should be limited to policies containing the “groundless, false or fraudulent” language. This language was written out of the standard ISO general liability form in the mid-1980s. After Fielder Road, some argued that because the language at issue in that case no longer appeared in the standard general liability form, the eight-corners rule was essentially dead. As the argument went, if policy language did not require insurers to defend against groundless, false, or fraudulent claims, true facts could be considered. This position seems to have been rejected. But the question still remains: is there an exception? If there is, what limits define it? If there is no exception, why doesn’t the Court just say so? These questions have been the
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topics of controversy for many years. Texas federal courts and the Fifth Circuit have recognized the existence of a narrow exception to the eight-corners rule for several years. These courts have permitted the consideration of extrinsic evidence when the complaint is silent concerning particular facts that bear upon an issue of insurance coverage only. The true facts can be considered if the facts would not overlap with the merits of the case, or engage the truth or falsity of any allegation. The Fifth Circuit recently affirmed a true facts exception in Ace Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012). There, the Court considered true facts to answer the threshold question of whether a party was an insured before engaging in an eight-corners analysis. In a similar vein, the Fourteenth Court of Appeals in Houston considered a scenario in which the underlying pleading contained erroneous facts that triggered the insurer’s duty to defend in Weingarten Realty Mgmt Co. v. Liberty Mut. Fire Ins. Co. The party seeking coverage argued that even if the petition was mistaken, the court was bound by the allegations because of the eight-cor-
ners rule, and was prevented from looking at true facts. Under those circumstances, the court recognized the need for a very narrow exception to eight-corners. It emphasized that the party seeking coverage was not the named insured, and was therefore not entitled to the benefit of the eight-corners rule. A petition for review to the Texas Supreme Court in Weingarten was denied. While the eight-corners rule has been the law of the land for decades, a slow trend in lower courts appears to favor finding more reasons to consider true facts. The Texas Supreme Court has taken an equivocal position on the topic, neither expressly recognizing an exception nor stating that an exception could never exist. Although the parameters of the rule could have been defined if the petition had been accepted in Weingarten, review was denied. Until the Texas Supreme Court directly addresses the issue of whether and when true facts can be considered, there will likely continue to be cases falling on HN both sides of this issue. Summer Frederick is an attorney at Tollefson, Bradley, Mitchell & Melendi, LLP. She can be reached at summerf@tbmmlaw.com.
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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 o ciation
Focus
Novem ber 2013
Tort & Insurance Practice
Ring in 2014 with a New Subrogation World Order by Ben K. DuBose and Thad D. Spalding
For 92 years, Texas law embraced the Made Whole Doctrine which provided that an insurer was not entitled to be repaid until the injured plaintiff was made whole by recovering at least the full amount of their loss. The doctrine was grounded in principles of equity. If a loss had to go unrecovered, Texas courts routinely held, it was better borne by the insurer. After nearly a century, however, the Texas Supreme Court in 2007 effectively ended the Made Whole Doctrine in Fortis Benefits v. Cantu. The Fortis court held that the Made Whole Doctrine does not apply where an insurance policy itself provides for a clear and specific right of subrogation. Viewing health insurance policies as negotiated contracts, the court found that contract-based subrogation rights could not be invalidated by equitable considerations. In the wake of Fortis, Texas plaintiffs frequently faced the prospect of a personal injury recovery being swallowed up by an insurance carrier’s contractual subrogation interest. This made resolution of both the underly-
ing tort claims, as well as subrogation claims difficult for all parties, particularly where the party responsible for an injury was financially unable to make the plaintiff whole. So, this year, citing concerns over “very aggressive” carriers recovering benefits paid “without contributing to the injured parties legal fees or expenses,” and inequities arising from responsible parties without “adequate assets or insurance to make the injured party whole,” the Texas Legislature passed HB 1869 to address the issues created by Fortis. HB 1869 creates Chapter 140 of the Civil Practice and Remedies Code, which expressly limits contractual subrogation rights and in the process attempts to balance the carrier’s right to reimbursement with the injured party’s recovery, while also making the carrier contribute to the fees and costs incurred in obtaining that recovery. The most prominent part of the new law is that which defines the carrier’s right to recovery as the lesser of: (1) half of the injured party’s “gross recovery;” or (2) the “total cost of benefits paid, provided, or assumed by the” carrier. If the injured party is represented by counsel, then “procurement
Court of Appeals at Belo
costs” and attorney’s fees must also be deducted from the carrier’s recovery. “Procurement costs” are not defined, but should be construed rather broadly; certainly, more inclusive that just “court costs” or “litigation expenses.” The statute elsewhere seems to agree with this interpretation, requiring that the carrier pay its “pro rata share of expenses incurred in connection with the recovery.” “Attorney’s fees” are more specifically addressed. If the carrier is not “actively represented” by counsel, the carrier must pay a fee to the injured party’s attorney as set out in a fee agreement with the injured party’s counsel. If no fee agreement, then the carrier must still pay “a reasonable fee … not to exceed one-third of the payor’s recovery.” Interestingly, the statute seems to encourage a fee agreement between the carrier and the injury party’s attorney. Absent an agreement, the statute only requires that the court award “a reasonable fee,” but in no event one that exceeds one-third of the recovery. In other words, the statute sets an upper limit on the fee to be paid, but no minimum. The “reasonable fee” could therefore be one-third, or it could be less. But, if set by agreement, this fee uncertainty may be avoided. A fee agreement may also be help-
ful in the event the carrier has its own counsel. If the carrier is “actively represented” by counsel, then the fee payable out of the carrier’s recovery is to be apportioned between the carrier’s and injured party’s counsel. The court is charged by statute to apportion fees, and—in doing so—is directed simply to consider “the benefit accruing to the payor as a result of each attorney’s service.” A fee agreement that defines, ahead of time and contractually, how the fee is to be apportioned could avoid any need for a court to apportion fees upon recovery. A few other provisions of the new statute are also worth noting. First, if a declaratory judgment is brought, presumably to determine the amounts a party is entitled to recover under the statute, a court cannot award costs or attorney’s fees to any party. Also, the statute is expressly not applicable to workers’ compensation, Medicare, Medicaid, state child health plans, and ERISA plans. And, finally, the new statute will apply only “to a contractual right of subrogation in a cause of action that accrues on or after” January HN 1, 2014. Happy New Year! Ben K. DuBose is an attorney at DuBose Law Firm, PLLC and can be reached at bdubose@duboselawfirm.com. Thad D. Spalding is an attorney at Kelly, Durham & Pittard, LLP and can be reached at tspalding@texasappeals.com.
United States Postal Service -- PS Form 3526 Statement of Ownership, Management, and Circulation (1) (2) (3)
On September 16, justices from the Fifth District Court of Appeals heard a live oral agreement at the Belo Mansion in front of nearly 200 DISD students. The presiding justices included (left to right) Hon. Elizabeth Lang-Miers, Hon. Michael O’Neill and Hon. David Evans.
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Publication Title: Headnotes. (2) Publication Number: 1057-0144. (3) Filing Date: September 17, 2013. (4) Issue Frequency: Monthly. (5) Number of Issues Published Annually: Twelve. (6) Annual Subscription Price: $30. Complete Mailing Address of Known Office of Publication: 2101 Ross Ave., Dallas, TX 75201-2768. Contact Person: Jessica D. Smith. Telephone: 214-220-7477. (8) Complete Mailing Address of Headquarters or General Business Office of Publisher: 2101 Ross Ave., Dallas, TX 75201. (9) Full Name and Complete Mailing Address of Publisher: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Editor: Cathy Maher, Executive Editor, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Managing Editor: Jessica D. Smith, Editor, 2101 Ross Ave., Dallas, TX 75201. (10) Owner: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. (11) Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None. (12) Tax Status: Has Not Changed During Preceding 12 Months. (13) Publication Title: Headnotes. (14) Issue Date for Circulation Data: September 1, 2011.
(15) Extent and Nature of Circulation. (First number is Average No. Copies Each Issue During Preceding 12 Months; Second number is No. Copies of Single Issue Published Nearest to Filing Date). (15a) Total Number of Copies (net press run): 11,521; 14,917. (15b1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 1,607; 1,489. (15b2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 9,345; 9,172. (15b3) Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS: 0; 0. (15b4) Paid Distribution by Other Classes of Mail Through the USPS: 0; 0. (15c) Total Paid Distribution: 10,952; 10,661. (15d1) Free or Nominal Rate Outside-County Copies Included on PS Form 3541: 172; 1,560. (15d2) Free or Nominal Rate In-County Copies Included on PS Form 3541: 240; 2,494. (15d3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 30; 42. (15d4) Free or Nominal Rate Distribution Outside the Mail: 76; 94. (15e) Total Free or Nominal Rate Distribution: 518; 4,190. (15f) Total Distribution: 11,470; 14,851. (15g) Copies not Distributed: 51; 66. (15h) Total: 11,521; 14,917. (15i) Percent Paid: 95.48%; 71.79%. (16) Publication of Statement of Ownership. Publication required. Will be printed in the November 1, 2013, issue of this publication. (17) Signature and Title of Editor, Publisher, Business Manager, or Owner: Jessica D. Smith, Editor. Date: September 17, 2013. I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).
Teach the Law to Dallas ISD Students–Nov. 18-22
Volunteers are needed to teach in Middle School and High School classrooms this fall. Times and class sizes vary by school. Curriculum will be made available Please email your contact information and available volunteer date(s)/times to: ktaylor@dallasbar.org.
Attorney Coaches Needed for Mock Trial Teams – Civil Case Coaches are needed to instruct teams for the 2013-2014 mock trial season (a civil case). Firms and partners can adopt teams as well. Dates and times vary with the schools. To sign up, please email Kimberlynn Taylor at ktaylor@dallasbar.org.
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N ove mb e r 2 0 13
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 19
November
EXPERT WITNESS
Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com Drug/Alcohol Expert - Pharmacy Professor; 33 years’ experience consulting, teaching, researching prescription, illegal, overthe-counter drugs, alcohol, drug testing. Trial and deposition experience specializing in drug-related domestic, civil, criminal cases. Reviews, summaries, depositions, discovery, trials. Allison Welder, Ph.D. (361) 542-5636; allisonannewelder@yahoo.com; www.welderconsulting.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, valuation and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 5137113. troney@thomasroneyllc.com. “We Count.”
FOR SALE
SLIGH Tradition Hardwood Executive Office Furniture. Desk: 7 drawer, leather in-laid top (3 panel) excellent condition. 72” wide, 36” deep, 30” tall. Credenza: 4 drawer, excellent condition: 74” wide, 20” deep, 30” tall. High Back Leather Chair: Blue in color, recliner, swivel, excellent condition. Contact: John Hilz (jhilz@ altacm.com) Cell: (214) 808-0065.
OFFICE SPACE
Office Space In Campbell Center – Near North Park, Full Service Building, All
Amenities. Three year sublease available immediately. Window office, conference room, waiting room, kitchen and storage. Underground parking for tenants. Contact linsolomon@sbcglobal.net or (214) 361-8771. Office Space - Nicely decorated in North Dallas has 2 window attorney offices available to share with a Board Certified Family Law specialist. Great location and easy access from either LBJ or Central Expressway. Attractive reception area, free covered parking, large conference room, copier, highspeed Internet, phones, kitchen and free health club. (214) 580-8000 or email kim@buholzlaw.com. Uptown/ Travis Walk: Law firm has up to 2 affordable window/patio offices in Travis Walk off Knox St. for sublease. Great location at 4514 Travis Street, large conference room, kitchen, secretarial space, all amenities, short walking distance from a dozen restaurants. Seek compatible attorneys with their own practice to office with friendly group of litigators. Call Andrew Bergman at (214) 528-2444 or Paul Sartin at (214) 599-0448 or email rsanchez@abergmanlaw.com. Available Immediately - Uptown Dallas. Office Space Law office seeks to sublease to attorney or non-attorney businesses. Shared amenities, free visitor parking and convenient to DART rail. Contact dallasuptownoffice47@gmail.com. Downtown Dallas – Office available, located in the historic KATY Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, Wi-Fi, fax and copier available for tenants use. No lease required. Please inquire at (214) 7481948. Downtown AV preeminent law firm has two window offices available for lease with secretarial station (if needed), reception area, conference room, elevator exposure and kitchen. Please call Mark or Vicki at (214) 752-0400. Park Cities/Central Expwy – Law firm has up to 3 window offices in Class A
Spanish for Lawyers: NEED TO REFER Sign Up Now! A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/ dallas-lawyer-referral-service or call (214) 220-7499.
10-Week Course Spring 2014 | Cost: $180
January 7March 11, 2014 For more information, contact Teddi Rivas at TRivas@dallasbar.org or (214) 220-7447.
building for lease. Great location at 8080 Central Expwy. at Caruth. Spectacular views of downtown and Park Cities. Elevator exposure and expensive finish out. Large conf. room and kitchen. Secretarial space, high speed scanner/copier, broadband, extra storage and other amenities available. Call John at (214) 546-6337 or (214) 292-4202. Small law firm with transactional and litigation practice seeks relationship with established attorney(s) having portable complementary practice, and/or office sharing. Firm is located in a downtown Dallas Class A building minutes away from courthouse with partner/associate offices, conference room, law library, secretarial station, kitchen, parking garage, photocopy/ scanner/ postage/facsimile and related amenities. Contact Laura at (214) 922-9265.
POSITION AVAILABLE
Bankruptcy/Litigation Attorney. Boutique commercial bankruptcy and litigation firm is looking for an attorney with 0-2 years of experience who is a self-starter. Recent law school graduates are welcome. The firm offers training, flexible hours and friendly environment. Please send all inquiries to information@acosta-law.com. Health Law Attorney Needed. Experience in healthcare regulatory and payment matters - Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-motivated and will participate in marketing & seminar presentations. Please email resume to markskennedylaw@msn.com. Come practice law with (not for) a really great 14-lawyer firm in beautiful offices in Campbell Centre. Walk in the door and start practicing immediately. We will take care of virtually everything else. Bring your own staff or we will supply. Also 1 or 2 window offices with secretarial space and conference room available for sublease. Contact Steve Palmer at (214) 242-6440 or spalmer@pamlaw.com. See our website at www.pamlaw.com. AV-rated North Dallas/Galleria law firm seeks an attorney with two to four years of experience and strong academics. Immediate opening for a litigation associate with commercial litigation or employment litigation experience. Competitive pay and benefits offered. If interested, direct replies to Kim at kpsencik@andersontobin.com. Estate Planning Attorney. Estate planning practice for sale. Great opportunity for an experienced estate planning attor-
ney to build own practice. Established high-net worth clientele, steady income stream, experienced paralegal/secretary. Ideal for attorney wanting to focus exclusively on estate planning, but who does not yet have a large client base or existing infrastructure (office furniture, phone system, extensive forms, etc.) Current practice does not handle any litigation matters and does not advertise to the general public. Owner will stay on as long as necessary to assist with a smooth transition. Send confidential letter to Dallas Bar Association, Box 13–10, 2101 Ross Avenue, Dallas, Texas 75201. Patent Agent. Law firm and great place to work, seeking a Patent Agent for its downtown Dallas office. USPTO Registration and a minimum of 5 years of patent prosecution required. Advanced degree in mechanical or electrical engineering preferred. Interested candidates please forward a resume and writing sample to resumes@solidcounsel.com. Intellectual Property Associate. Law firm and great place to work, seeking intellectual property associate for its downtown Dallas office. USPTO Registration and a minimum of 2 years of patent prosecution and/or litigation experience required. An electrical engineering background preferred. Interested candidates please forward a resume and writing sample to resumes@solidcounsel.com. Established boutique Estate Planning Law Firm in North Dallas has an immediate opening for a full time legal assistant with estate planning and probate background. Email your resume to sc@smithstephenslaw.com.
SERVICES
Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089. Oil and Gas Buyer. Buying royalty interests, overriding royalty interests and nonoperating working interests. Send descriptive information to royalty@coromandelenergy.com for a prompt and fair evaluation. Owner is SBOT and DBA member. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
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20 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
Novem ber 2013