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Civil Litigation Trends in One of the Nation’s Largest Counties A Glossary of Common Trial Objections Overlapping Jurisdiction in the Houston-based Courts of Appeals New Statute Modernizes Trade Secret Protection and Litigation in Texas Interview with New President David A. Chaumette

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Volume 51 – Number 1

July/August 2013

David A. Chaumette 2013-2014 President Houston Bar Association

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contents Volume 51 Number 1

July/August 2013

10

16

FEATURES Litigation Trends in One of 10 Civil the Nation’s Largest Counties

By The Hon. Randy Wilson

of Common 16 ATrialGlossary Objections

By The Hon. Dan Hinde

Jurisdiction in the 22 Overlapping Houston-based Courts of Appeals:

Could a Special En Banc Procedure Alleviate Problems?

By Ray Blackwood

22

28

Statute Modernizes Trade 28 New Secret Protection and Litigation in Texas

By Greg Porter

30 An Interview with the President Takes Office as 34 Chaumette HBA President 35 50-Year Lawyers Awards and 36 President’s Special Recognition 34

38

Practices: HBA Committee 38 Best Promotes Gender Fairness

The Houston Lawyer

By Anna Archer and Courtney Ervin

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonTHLy by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715.

Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association, 2013. All rights reserved.

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Join Us! Thursday, October 24, 2013 6pm - 9pm | KoonsFuller, P.C. Family Law Open House | Family Law Attorney Sherri Evans will be hosting an Open House in our new office. Come join us!

Hor d'oeuvres - Drinks - Networking 109 North Post Oak Lane Suite 425 Houston, Texas 77024 Call to RSVP (713) 789-5112

contents Volume 51 Number 1

July/August 2013

34 41

42

departments Message 6 President’s 21st Century Bar

By David A. Chaumette the Editor 8 From You Never Know When You Will

be Asked to Save a Dinosaur

By Robert Painter

Lawyers 41 Houston Who Made a Difference

Barbara Jordan

By Judge Mark Davidson

43

44

Profile in Professionalism 42 AFarrah Martinez

Legislative Affairs Director Office of Harris County District Clerk

SPOTLIGHT 43 COMMITTEE AIDS Outreach Committee:

May We Never Forget

By The Hon. Jeff Work

the Record 44 OffJudge Mike Wood:

Volunteering for the Line of Duty

By Jeffrey L. Oldham

Trends 45 Legal It’s a New Day, Time, and

Place in Texas!

By Julie Barry

The Texas Supreme Court Holds That Plaintiffs’ Nonsuit Tolls the 120-day Expert Report Requirement in Medical Malpractice Cases

By Chance McMillan Reviews 47 Media The Texas Supreme Court: A

Narrative History, 1836-1986

Reviewed by Chance McMillan

The Houston Lawyer

Cover: New HBA president, David Chaumette, also serves as chair of Neighborhood Centers, Inc. Neighborhood Centers provides resources, education and connections to emerging neighborhoods, helping individuals and communities achieve their full potential.

Cover and President’s Message photos: Alefiya Akbarally Photography.

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48 Litigation MarketPlace

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president’s message

By David A. Chaumette Chaumette, PLLC

21st Century Bar

W

ship, enthusiastic and knowledgeable. These Ambassadors will elcome to the new bar year! Becoming presigo to different sections of the bar, different Harris County bar asdent of the HBA is an honor for me on a scale sociations, and similar organizations to remind others of the opthat I find hard to put into words. Yes, I know portunities and possibilities within the bar. that I stand in the shoes of history, a first in It is my hope that these Ambassadors will come to embody the some ways, and not a first in so many others.

21st century Houston Bar Association: vibrant, relevant, responBut more than any obligation to live up to the sive and connected. Yet, as we work to better inform our members past, my hope is that twelve months from now, you — my friends, about us, Ambassadors will be only part of the solution. There’s my co-workers, and my constituents — will be able to say that I more as we will take a real look at our messaghave served you well.

To do that, I would like focus on our future We lawyers need ing and our partnerships. It’s time to build more bridges. Simply, it takes a village to raise a vil— the future of our bar, the future of our comour bar to be lage, and all of us have a role to play. From a remunity, the future of the city that is our home. vamped website to increased efforts at coordinaThose three things are inexorably linked, and not just a tion between legal organizations, the HBA will that conclusion is really unavoidable. If you ‘bar of lawyers,’ grow in its role at the epicenter of the Houston look at the boards of any other organization in legal community, the portal for our members’ intown — non-profit or otherwise — they are all but also a bar volvement in their community. full of lawyers. And those lawyers are leaders In addition, there is something else important on those boards. As members of the bar, that ‘for lawyers.’ to me that I would like to accomplish over the service should be a source of pride for us, and, next year. As you may know, I am a naturalized US citizen and the more importantly, it should be something that we must work to child of immigrants. Immigration is in the minds of many and encourage in the future. As we develop better lawyers, our comHouston, as the most diverse city in the country, is at the forefront munity benefits. of this issue. But there’s a great deal of misinformation out there.

Our bar has a long-standing, strong history and tradition of doOur bar can serve an important educational function as to what is ing for the community. But our organized bar must be more than the law and how to legally operate within that framework through that. We lawyers need our bar to be not just a “bar of lawyers,” a helpful handbook or other materials. My hope is that that handbut also a bar “for lawyers.” What do I mean by that? Let me step book will be a cross between the “Now You are 18” information back for a second. Last year, I learned about the work of Simon that the HBAA disseminates and the Family, Consumer and Elder Simek. Mr. Simek, when speaking about organizations, asks how Law handbooks which the HBA has produced for years. This will do you complete this sentence: “We as an organization exist to take some time to put together, but I think that it’s time for us to ___________.” You see, once you figure out the why, the what take this step. We will also address these issues through recruiting and the how follow naturally. Take a moment to think about your knowledgeable attorneys to speak to the public on immigration own answer to that question. Why does the bar exist? topics and, if Congress acts on immigration reform, providing inTo me, the HBA exists first and foremost to serve its lawyers; to formation to attorneys on the new law and its ramifications. make its members’ lives better, whatever that means. Practically Neither of these efforts are small in scale, I realize that, and though, many members of our bar do not know about the depth twelve months is not a long time to implement these programs, and breadth of our programs, and therefore do not know how but the long term impact of each could be signficant. My hope the HBA can help them in their practice. Our response to this is that I will inspire you to get more involved with your HBA, dilemma is the creation of a system of Ambassadors chosen to because it is your HBA. I look forward to seeing you at our next go into the community to tell other lawyers about our HBA. Our HBA event.

Ambassadors will be a broad cross section of the bar’s member-

“

The Houston Lawyer

”

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Seyfarth Shaw LLP is proud to announce that Suzanna Bonham has joined the firm’s Houston office as a Litigation Partner.

Formerly of Schwartz, Junell, Greenberg & Oathout, Suzanna’s commercial litigation practice is focused on handling disputes in the energy/oil and gas, healthcare, transportation, construction and real estate sectors. She also serves as outside general counsel to many of her clients on non-litigation matters.

Suzanna’s full biography and contact information can be viewed at www.seyfarth.com/suzannabonham 700 Louisiana Street, Suite 3700, Houston, TX 77002 Seyfarth Shaw has over 800 attorneys located in 10 offices throughout the United States, including: Atlanta, Boston, Chicago, Houston, Los Angeles, New York, Sacramento, San Francisco and Washington, D.C., as well as internationally in London and Shanghai. Seyfarth Shaw provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. The firm’s clients include over 300 of the Fortune 500 companies, and our practice reflects virtually every industry and segment of the economy.

www.seyfarth.com

©2013 Seyfarth Shaw LLP

Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Office of Ned Barnett

Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017

713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com

July/August 2013

7

from the editor

By Robert Painter Painter Law Firm PLLC

Associate Editors

Julie Barry Attorney at Law

Angela L. Dixon Attorney at Law

Farrah Martinez Harris County District Clerk

The Houston Lawyer

Don Rogers Harris County District Attorney’s Office

Jill Yaziji Yaziji Law Firm

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You Never Know When You Will be Asked to Save a Dinosaur

A

n exciting aspect of practicing law for me have the TRO application heard and signed, flown to is not knowing what facts or challenges New York City to attend the auction and arranged serthe next case will present. Even though vice of the TRO, which prohibited proceeding with the many lawyers limit their practice to speauction or transferring possession of the dinosaur. cialized areas, we all have clients or acWhen I arrived in the auction hall Sunday mornquaintances who ask us to represent them ing, I heard murmurs that the dinosaur auction would on matters outside our typical focus. proceed. What would I do if they chose to ignore the One Friday evening last May, I had such a call. The judge’s TRO? I considered how, during depositions, atclient was the president of Mongolia, Tsakhia Elbegtorneys sometimes call the presiding judge to rule on dorj. While that is unusual enough, the assignment was a disagreement. I borrowed this technique and found truly amazing—find a legal means to a quiet corner to call the judge. I exsave a dinosaur. plained the situation and asked if he Paleontologists had advised the would clarify his order to the auction president that a complete Tyrannocompany. He agreed and said somesaurus skeleton had been dug up and thing like, “Tell them it’s an order, not smuggled from Mongolia’s Gobi Desa suggestion, and unless they want to ert. It would be sold at auction in New spend 60 days in the Dallas County York City in two days, on a Sunday. A Jail, they better follow it.”

Dallas-based auction house was runI took an aisle seat near the middle ning the sale. of the seating area. When the auctionSaving a dinosaur was certainly outeer stated that they would proceed side my normal scope of practice. This with the auction subject to the outwould be a fast-moving case with high come of pending litigation, I called the stakes. After all, you can’t buy a Tyranjudge, stood up, raised my right hand Robert Painter at the dinosaur museum nosaurus from Wal-Mart, or even the in Mongolia, with the museum curator with the phone in it and said, “I’m sorNeiman Marcus catalog, for that matter. and the president’s chief of staff. ry to interrupt, but I have the judge on I had several substantive questions. What is the the phone, and he is ready to explain to you that what Mongolian law on smuggling? What is the U.S. law on you’re doing violates the temporary restraining order.” smuggling? What about treaties?

The auction officials refused to speak with the judge Beyond those, I had practical questions. Can a Texas and completed the auction. It looked like we were state court enjoin a New York auction by a Texas-based headed for contempt of court proceedings, but within company? How do I find a Dallas judge to hear a TRO a few days they changed their position and became coapplication on a Saturday? If the order is granted, to operative. whom will I pay the bond? Will I be able to get the TRO Within the next week, I got the U.S. Attorney for the served on such short notice on Sunday? What will I do Southern District of New York involved. Our Texas state if the auction house ignores the order? court civil matter transitioned into a New York federal Within 24 hours, I had answered my questions, court asset forfeiture case. A federal judge signed an drafted the petition, gone to a Dallas judge’s home to Continued on page 49 thehoustonlawyer.com

BOARD OF DIRECTORS President

Secretary

David Chaumette

Neil D. Kelly

President-Elect

Treasurer

M. Carter Crow

Laura Gibson

First Vice President

Past President

Todd M. Frankfort

Brent Benoit

Second Vice President

Benny Agosto, Jr.

DIRECTORS (2012-2014)

Alistair B. Dawson Brent C. Perry

Warren W. Harris John Spiller

Hon. David O. Fraga Bill Kroger

DIRECTORS (2013-2015) Jennifer Hasley Daniella D. Landers

editorial staff Editor in Chief

Robert Painter Associate Editors

Julie Barry Farrah Martinez Jill Yaziji

Angela Dixon Don Rogers Editorial Board

Keri Brown Stacey Burke Suzanne Chauvin Alan Curry Britt Davis Eric Davis Jonathan C.C. Day Todd Dupont Sammy Ford Kelly Fritsch Jason Goff Polly Graham John Gray Amy Hargis Al Harrison Preston Hutson Tammy Manning Chance McMillan Judy Ney Anjali Nigam Angie Olalde Jeff Oldham Taunya Painter Bridget Purdie Aaron Reimer Hon. Josefina Rendon Timothy Riley James Stafford Hon. Jeff Work

Managing Editor

Tara Shockley

HBA office staff Membership and Technology Services Director

Executive Director

Kay Sim

Ron Riojas

Administrative/ Financial Assistant

Membership Assistant

Ashley G. Steininger

Ariana Ochoa

Project Coordinators

Claire Nelson Rocio Rubio Bonnie Simmons

Continuing Legal EducationAssistant

Receptionist/ Resource Secretary

Director of Education

Amelia Burt

Lucy Fisher Cain

Lucia Valdez

Communications Director

Tara Shockley

Communications/ Web Designer

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July/August 2013

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By The Hon. Randy Wilson

Civil Litigation Trends in One of the Nation’s Largest Counties

H

arris County is the largest county in the State of Texas. This article examines the considerable data that exists on the history of civil litigation in Harris County and litigation trends.

Harris County Population Trends Harris County currently has a population of just over four million, making it the third largest in the nation.1 Indeed, if the county was a state, it would rank 27th, between Kentucky and Oregon. In the past 10 years, Harris County population has grown 20 percent, making it one of the fastest growing areas of the country. Over the same time period, the number of civil litigation matters in Harris County has increased by 66 percent.

The Texas Judicial System The Texas judiciary can be described as a haphazard patchwork of courts. As this diagram 10

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illustrates (Fig. 1), there are multiple layers of trial courts with overlapping jurisdictions.2 Indeed, the Texas Supreme Court recently described our judicial system as “one of the most complex in the United States, if not the world.”3 Elsewhere the Texas court system has been described as Byzantine,4 confusing and inefficient5 and a patchwork of overlapping jurisdictions.6 The Harris County Judicial System The Harris County court system suffers from the same inefficiencies as the state-wide system. Harris County has district courts, statutory county courts, probate courts, justice of the peace courts, and municipal courts. (Fig. 2) The district courts of Harris County have been divided into the civil, criminal, family and juvenile trial divisions by both statutory requirements and administrative board policies.7 This article will focus on the

24 civil district courts in Harris County.8 The data from these courts are generally quite good and provide the opportunity to examine civil litigation trends in depth.

Growth of Civil Litigation Civil filings have grown considerably over the past 40 years. Although it follows a general trend line of population, civil filings have wavered over the years. For example, in the 1970s, filings dramatically outpaced population, and declined during the 1990s. Over the past decade, once again the rate of civil filings has grown considerably faster than that of population growth (Fig. 3).

one can see that while civil filings have increased dramatically in the last 10 years, the number of civil district courts has remained flat and even declined (Fig. 4). Currently, there are nearly 1,900 new suits filed per year for each Harris County civil district court, whereas in 2000, the number was only 948 new filings per court.

What Kinds of Suits are Being Filed?

The types of civil suits being filed in Texas are varied and complex. Generally speaking, suits can be divided into five categories: tort suits, business actions, suits for tax deficiencies, appraisal district challenges or HCAD suits and miscellaneous actions (Fig. 5).

Tort Suits.

Although the numbers vary from year to year, approximately twothirds of all tort filings are automobile accident personal injury cases. The remainder of the personal injury tort cases consists of medical malpractice, Jones Act, asbestos and silicosis, slip and fall, products liability, construction injuries, adverse reactions to drugs and pharmaceuticals and others. Finally, there are “other torts,� which are non-personal injury tort actions. Examples of such non-personal injury tort cases would be theft and conversion, fraud, defamation, tortious interference and legal malpractice (Fig. 6).

Over the past several decades, the Texas legislature has added a number of civil district courts to Harris County. When the number of courts is plotted against the number of civil filings,

Business Suits. Business litigation suits, which comprise about 30 percent of all filings per year, are equally varied. Examples of such filings include: breach of contract or lease, suits on notes, suits to remove liens, credit card or other debt actions, suits to partition property, trespass to try title, adverse thehoustonlawyer.com

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possession, receiverships, securities fraud and business dissolution (Fig. 7).

Ike Claims. In recent years, Harris County has experienced a significant spike in litigation as a result of Hurricane Ike which made landfall in Galveston on September 13, 2008. Harris County estimates that Hurricane Ike caused approximately $8.2 billion in residential property damage in Harris County alone.9 Not surprisingly, Hurricane Ike has spawned many lawsuits by insureds against their carriers. A total of 2,179 and 6,774 Ike suits were filed in Harris County in 2009 and 2010, respectively.

Ike filings, obviously, declined dramatically in 2011 and 2012, totaling only about 550 new suits filed each year.

Tax Suits. The various taxing authorities of Harris County frequently file suit to collect delinquent property taxes. The taxing authorities include the county, municipalities, school districts, and municipal utility districts. Roughly 10,000-12,000 tax suits are filed annually. Many of these tax suits are handled in the first instance by two tax masters who make recommendations to the district judge for their disposition (Fig. 8).

Appraisal District Suits. Each county in Texas has an appraisal district that makes property tax valuations. Property owners are then permitted to challenge these valuations in district court. These suits challenging Harris County Appraisal District valuations have grown to be a 12

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significant part of each district judge’s docket, now totaling approximately five percent of the total (Fig. 9).

Miscellaneous Actions District courts hear a wide variety of actions, all of which impact their dockets. Some of the most significant include: • Sale of Structured Settlements—We have all heard the commercials that proclaim, “It’s your money; you deserve it now!”

From time to time, lawsuits are settled by the purchase of an annuity pursuant to which an insurance company makes payments to a plaintiff over time. If the annuitant wishes to sell his or her periodic payments for a lump sum, the annuitant must seek permission from a district court, which must find that the sale is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents.10 These cases are increasing in frequency; there are about 350 such actions filed annually.

• Expunctions of Criminal Records—A person who was charged with a crime and acquitted, or arrested and never charged may petition to have his or her arrest record expunged.11 Upwards of 1,000 such suits are filed per year in Harris County.

• Home Equity Foreclosures—If a homeowner is delinquent on a home equity loan or reverse mortgage, the lender must make an in rem application under Rule 736 to a district judge to obtain permission to post the property for foreclosure.12 These filings have become a significant part of a district court docket, currently comprising about four percent of all filings. Surprisingly, notwithstanding the economic downturn since the fall of 2008, the filings of home equity foreclosures fell slightly in 2009 and 2010, and fell sharply in 2011 (Fig. 10).

• Homeowners’ Association Suits—Actions by homeowners’ associations against homeowners had recently been as many as 950 suits per year. The vast majority of such suits are to recover delinquent dues, but some are to enforce deed restrictions. In the last two years, however, the number of such suits has fallen to about 500-600 annually.

• Others—In addition to the above, Harris County civil district courts hear a variety of other miscellaneous matters.

Some of them include: • Name changes—About 400 per year; • Depositions before suit under Rule 202—About 100 per year; • Seizure and forfeiture of items recovered by police—About 700-800 per year;

• Declaratory judgment actions—About 500 per year; • DTPA suits—About 300 per year; • Employment and discrimination actions—About 200 per year; • Attorney discipline actions—About 20 per year; • Bills of review, enforcement of foreign judgments, and miscellaneous collection writs, such as sequestration, garnishment, attachment, and replevy.

Outside Influences on the Number of Suits Being Filed Some outside influences affect the number of suits being filed.

For example, as previously mentioned, Hurricane Ike has resulted in thousands of new suits. Two additional outside influences bear discussion.

Tort Reform Over the past two decades, a number of changes have been made to Texas’ tort system. Some of the more significant changes include: • Punitive Damages—Punitive damages now have caps,13 and require a burden of proof of clear and convincing evidence,14 with a unanimous jury verdict 15 • Venue Changes16 • Offers of Settlement17 • Establishment of MDL Courts18 • Forum Non Conveniens19 • Responsible Third Party Practice20 • Judgment Interest—Lower judgment rates21 • Medical Malpractice—Caps22 and 120-day expert report screening process23 • Paid or Incurred Medical Bills24 • Asbestos/Silica—Impairment before suit can be commenced25 • New Rules—Including motions to dismiss, expedited suits under $100,000, interlocutory appeals, breach of contract fees for both sides and barratry cause of action.

Not surprisingly, these various changes, generally characterized as tort reforms, have resulted in a significant reduction of various tort claims. One of the most significant tort reforms enacted in recent years is the so-called Proposition 12 changes in 2003, which dramatically altered medical malpractice claims (Fig. 11). These changes include limitations on noneconomic damages26 and a requirement to submit an expert report at the beginning of the litigation.27 All of these changes took effect for suits filed subsequent to September 1, 2003. The numerous wholesale changes to Texas medical liability claims resulted in a dramatic increase of medical malpractice claims prior to September 2003 in order for plaintiffs to avoid their effect. After 2003, these changes have cut

medical malpractice claims roughly in half.

The various tort reforms have had an impact across the board. Virtually all tort filings have reduced (Fig. 12).

Indeed, notwithstanding the fact that population in Harris County has increased by approximately 25 percent from the mid-90s to the present, tort filings in general have decreased by about 20 percent.

Deceptive Trade Practice Act (DTPA) suits have experienced the same fate. DTPA filings have decreased from 616 per year in 1996, to only 294 in 2012.

Statewide data are consistent with the Harris County experience. Data from the Texas Office of Court Administration also shows a longterm decline in tort filings (Fig. 13).

Automobi le tort filings have only increased by 10 percent over the last 20 years, while non-motor vehicle tort filings decreased by 52 percent during the same period.28 Economic Downturn According to the National Bureau of Economic Research, America’s recession began in December 2007, continued until at least June 2009, and recovery has remained sluggish thereafter. The traditional wisdom is that business litigation increases when the economy weakens.29 Not surprisingly, this downturn is reflected in filing data in Harris County. [Figure 14] Two of the best indicators of business litigation are contract and debt suits. In Harris County, such business litigation takes the form of suits for breach of contract, suits on notes and sworn accounts. An analysis of these filings indicates that such suits have risen dramatically in recent years. This follows precisely the trend that one would expect. As the economy worsened in late 2008, and continued through 2009, suits by banks, credit card companies and other lenders have spiked. However, the number of debt suits began declining in 2010.

Again, the statewide data are the same as Harris County. thehoustonlawyer.com

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While tort suits have generally declined over the past 20 years, debt, contract and note cases have increased.

Indeed, suits involving accounts, contracts and notes have increased by nearly 80 percent in district court over the past 20 years.30 Again, however, such filings decreased statewide in 2011 and 2012 (Fig. 15).

The Vanishing Trial Federal Courts A tremendous amount has been written in recent years about the so-called “vanishing trial.”31 Nationwide, there is no question that the number of trials is decreasing. This article will not attempt to repeat this wealth of writing except to provide a brief summary of the data.

Professor Marc Galanter of University of Wisconsin Law School was the first to quantify what trial lawyers had sensed for years—that jury trials were on the decline. Galanter’s landmark article looked at the number of federal trials over a 40 year period, from 1962 to 2002.32 Recently, the data have been updated through 2010 in an unpublished paper33 (Fig. 16). The conclusion in the updated paper is simple: no news and big news. The no news story is that the trend lines regarding the decline of trials are unchanged. The big news story is that the civil trial seems to be approaching extinction.34 The absolute number of civil trials, either to a jury or bench, continues to decline. In 2010, only 2,154 jury trials were commenced in all federal district courts. Astonishingly, this averages to fewer than four civil jury trials per Article III federal judge.35 This decline in litigation extends to all case types. On average, only about 600 tort cases are tried nationwide in federal court and about 700 contract cases.36 The percentage of cases that is terminated by trial continues to fall precipitously. Only 0.73 percent of civil cases are terminated by trial in federal court.37 Texas Courts Data compiled by the Texas Office of Court Administration show a similar decline statewide (Fig. 17). While the data may not be 14000

Bench Trials

Jury Trials

12000 10000 8000 6000 4000

0

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1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

2000

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perfect,38 the general trends show a decline comparable to the federal experience.

The absolute number of civil trials in nonfamily cases has steadily declined.

The percentage of non-family civil cases that is disposed during or after trial is strikingly similar to federal court. As of 2009, only 0.6 percent of all such cases are disposed of after trial. While the percentage was never great,39 the trend line is clear: the percentage rate of disposition following a jury trial has declined steadily since 1986.

While the point of this article is not to attempt to identify and dissect the possible causes of the decline of the jury trial, one point needs to be made. Many have argued that summary judgments have increased, particularly since the advent of the no evidence summary judgment in 199740 The data, however, do not support this assertion (Fig. 18). Only about 2 percent of all non-family civil cases is disposed of via summary judgment.41 While the percentage has varied slightly over time, the percent of cases disposed of by summary judgment has remained relatively flat for the past 25 years.

Harris County The experience in Harris County may follow the same general trend line, but not to the same extent. There are several problems with the Harris County data. First, virtually no trial data exist prior to 1994. Second, the trial data in the 1990s are invalid because a single trial with, for example, three plaintiffs were often counted as three verdicts. As a result, data prior to 2000 are virtually worthless. Fortunately, multiple counting of trials stopped in approximately 2000. Nevertheless, the number of trials shows a decline in the 2000s versus the 1990s (Fig. 19). Harris County civil district judges average about 15-20 jury trials per year,42 which are broadly divided two-thirds personal injury, and one-third everything else.

Does not total to 100% due to rounding

Some have speculated that while the number of trials has declined, the length of trials may have increased. Harris County has some data that will shed light on this question. Harris County measures “units of evidence” which is defined as a day in which testimony is received. A unit of evidence is imprecise, because both testimony from five witnesses that lasts all day and testimony from a single witness for one hour are both counted as one unit of evidence. Nevertheless, it provides some measure of trial length. Each civil jury trial in Harris County has an average of three to four units of evidence. Adding voir dire, closing arguments and deliberations, an average civil trial length is approximately four to six days. The trial length shows a slight increase over the past 10 years.

Conclusions Civil district judges are confronted with a tremendous variety of types and sizes of cases. The diversity of the types of cases filed and disposed is vast and complex. Looking at the filing and trial data from Harris County and elsewhere, a few conclusions can be drawn: • The number of civil lawsuits is affected dramatically by external factors, such as legislation and economic swings; • Tort reform has significantly affected the number of tort lawsuits filed; • While the decline in jury trials marches forward in federal court, Texas and Harris County trial rates appear to have stabilized.

The Hon. Randy Wilson is judge of the 157th District Court in Harris County.

Endnotes Harris County is behind only to Los Angeles and Cook Counties. Population Estimates, United States Census Bureau. See U.S. Census Population Estimates, County Totals: Vintage 2012, available at http://www.census.gov/popest/counties/CO-EST2009-07.html.

2. Texas Courts Online. available at http://www.courts.state.tx.us.

3. In re United Services Auto Ass’n, 307 S.W.3d 299, 304 (Tex. 2010), citing Braden, et al., The Constitution of the State of Texas: An Annotated and Comparative Analysis 367 (1977).

4. Sultan v. Mathew, 178 S.W.3d 747, 753 (Tex. 2005) (Hecht, J., dissenting).

5. Camacho v. Samaniego, 831 S.W.2d 804, 807 n.4 (Tex. 1992).

6. Continental Coffee Prod. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996).

7. Harris County District Judges Rules of Administration, available at http://www.justex.net/ LocalRules/RulesOfAdministration.aspx.

8. Harris County had 25 civil district courts from 1983 to 2008, at which time the 280th Dist. Court was converted to a family domestic violence court.

9. Hurricane Ike, Residential Damage Assessment, Dec. 2008, available at http://www. hchatexas.org/documents/disasterrelief/Harris-County-Damage-Assessment-Report.pdf.

10. TEX. CIV. PRAC. & REM. CODE §141.004.

11. TEX. CODE CRIM. PROC. § 55.01.

12. TEX. R. CIV. P. RULE 736.

13. TEX. CIV. PRAC. & REM. CODE § 41.008.

14. TEX. CIV. PRAC. & REM. CODE § 41.003(b).

15. TEX. CIV. PRAC. & REM. CODE § 41.008(d).

16. TEX. CIV. PRAC. & REM. CODE § 15.002(3).

17. TEX. CIV. PRAC. & REM. CODE § 42 et seq.

18. TEX. R. JUDICIAL ADMIN. Rule 13.

19. TEX. CIV. PRAC. & REM. CODE § 71.051.

20. TEX. CIV. PRAC. & REM. CODE § 33.004.

21. TEX. FIN. CODE § 304.003.

22. TEX. CIV. PRAC. & REM. CODE § 74.301.

23. TEX. CIV. PRAC. & REM. CODE § 74.351.

24. TEX. CIV. PRAC. & REM. CODE § 41.0105.

25. TEX. CIV. PRAC. & REM. CODE § 90 et seq.

26. TEX. CIV. PRAC. & REM. CODE § 74.301.

1.

TEX. CIV. PRAC. & REM. CODE § 74.351.

27. Annual Report for the Texas Judiciary for 2011, Office of Court Administration, Dec. 2010,

available at http://www.courts.state.tx.us/pubs/AR2012/AR12.pdf.

28. More In-House Counsel Predict Jump in Litigation, Spurring Lawyer Hiring, ABA Journal,

available at http://www.abajournal.com/news/article/more_in_house_counsel_predict_ jump_in_litigation_spurring_lawyer_hiring.

29. See n.28.

30. Nathan Hecht, The Vanishing Civil Jury Trial: Trends in Texas Courts and an Uncertain Future, 47 S. TEX. L. REV. 163 (Winter 2005).

31. Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (Nov. 2004).

32. Galanter and Frozena, The Continuing Decline of Civil Trials in American Courts, available at http://poundinstitute.org/docs/2011%20judges%20forum/2011%20Forum%20 Galanter-Frozena%20Paper.pdf.

33. Id. 34. Id. at 24.

35. Id. at 17.

36. Id. at 3.

37. See Hecht, supra n.31 at 166-67 for a discussion of possible limitations on the data.

Additionally, for some reason the data do not exist for two years.

38. The apex during the study period was in 1996, when 1.33 percent of all non-jury civil dispositions occurred after a jury trial.

39. TEX. R. CIV. P. 166a(i) 40. Supra, n.28.

41. According to the most recent Galanter data, federal judges conduct an average 10 jury trials per year, which are roughly one-half criminal and one-half civil. See n.33 at p. 25.

By The Hon. Dan Hinde

A Glossary P of Common Trial Objections

roper trial objections are becoming increasingly rare. While lawyers in the throes of trial still often recognize that a question is flawed or an answer or exhibit is inadmissible, many no longer can reflexively state the grounds for objecting to the question or evidence. Instead, more and more often, lawyers rely on “speaking” objections in which they stand up and start arguing substantively why a question, answer or exhibit is objectionable. Or, lawyers go the opposite way, resorting to the deposition rules and simply announcing, “Objection, form” out of habit.

Neither approach is proper at trial.

Speaking objections are not permitted under Rule 103(c) of the TEXAS RULES OF EVIDENCE, which requires that jury trials “be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements... in the hearing of the jury.” Moreover, they often lead to a free for all.1 Conversely, “Objection, form” runs afoul of Rule 103(a)(1), which requires that parties “stat[e] the specific ground of objection.” In other words, objections should be both succinct and particular.

In reflecting on the trend of inappropriate objection practice, it occurred to me that some lawyers might find a glossary of common trial objections useful. So, I wrote this article.2 Part I lists common grounds for objection at trial, organized alphabetically. A short explanation or a reference to a synonymous objection follows each ground. Unless otherwise indicated, all references to a “Rule” is to the Texas Rules of Evidence.

Additionally, lawyers occasionally raise succinct, particular objections that, nevertheless, are not valid. I have listed a few of the most common of those “objections” in Part II. Their invalidity is easier to see after reviewing the list of valid objections in Part I.

I. VALID OBJECTIONS Argumentative: The question is argumentative. Argumentative questions do not solicit testimony from the witness or call for the witness to provide a fact3 but instead present an argument to the jury, summarize or comment on evidence, or draw inferences from the evidence.4 (This objection can also apply when the interrogating lawyer argues with the witness, but “badgering” may be a more appropriate ground to assert in that circumstance.)

Asked and answered: The question has been asked and answered or is repetitious.

When a witness’s previous responses sufficiently answered the questions, a trial court can preclude examination on questions that would merely elicit repetitive answers.5 Under Rule 403, the judge may exclude relevant evidence if its probative value is substantially outweighed by considerations of undue delay or needless presentation of cumulative evidence. Additionally, Rule 611(a) requires the judge to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to... avoid needless consumption of time...”

Badgering: Basically, badgering occurs when the interrogating counsel argues with the witness.6 When this occurs, the trial court may stop the harassing line of questioning.7 Best evidence: Rule 1002 requires that a proponent prove the contents of a writing, recording, or photograph by producing the original.8 But the proponent may satisfy this requirement with a duplicate unless the authenticity of the original is challenged or it would be unfair to admit the duplicate in lieu of the original under the circumstances.9 Additionally, other evidence of the contents of the writing, recording, or photograph is admissible if: 1. The original was lost or destroyed, 2. The original cannot be obtained through any available judicial process or procedure, 3. No original is located in Texas,

4. The objecting party possessed the original at a time it had notice that the original would be a subject of proof but failed to produce the original, or 5. “[T]he writing, recording, or photograph is not closely related to a controlling issue.”10 Compound question: A question is compound if it combines more than one question jointly.11 Such questions can confuse the witness or mislead the jury; therefore, the trial court may exercise its authority under Rule 611(a) to determine whether a witness must answer such questions.12 Conclusory: This ground arises when the question calls for a conclusion or the answer is conclusory. Conclusions are opinions; they are deductions drawn from facts.13 But witnesses may only testify on matters for which they have personal knowledge.14 They cannot offer opinion testimony (i.e., conclusions) unless they are offering opinion testimony rationally based on their own perceptions,15 or they are qualified as an expert and providing expert opinion testimony.16 Confusing: The question confuses the issues. Under Rule 403, the trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of confusion of the issues. This objection has merit when the testimony relates to collateral or side issues that might distract the jury from the main issues in the case.17 It does not apply to a question that is likely to confuse or mislead the witness or jury. In that case, the proper objection is that the question is vague or unintelligible. See “Vague,” “Unintelligible.”

Cumulative: The evidence is needlessly cumulative. See “Asked and answered.”

Facts not in evidence: The question assumes facts not in evidence. A question that assumes facts not in evidence is objectionable because it risks providing hearsay—specifically, the lawyer’s description

of a fact not in evidence—to the jury.18 But if the witness has personal knowledge of the fact not yet in evidence, then the interrogating lawyer can simply ask the witness to testify as to the fact and thereby introduce it into evidence.

Harassing: Counsel is harassing the witness. See “Badgering.”

Hearsay: Innumerable scholars and jurists have written volumes on the scope, application, and nuances of the hearsay rule.

Such inquiry is beyond the scope of this glossary. Suffice it to say that, generally, hearsay is any “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”19 Out-of-court statements by the opposing party, depositions, and certain prior statements by the testifying witness are not hearsay.20 If those carve-outs from the hearsay definition do not apply, then an out-of-court statement is not admissible unless it falls within one of the 24 exceptions in Rule 803 or one of the three exceptions in Rule 804.21 Improper characterization: The question (or answer or argument) improperly characterizes the witness or a party. Basically, this objection applies when counsel use a name (like “frenzied dog,” “financial wizard,” or “spoiled brat”) to characterize someone.22 Such questions or statements are objectionable because they are argumentative or conclusory.23 See “Argumentative” and “Conclusory.” Additionally, similar name-calling during closing argument is objectionable. For example it was improper to describe a defendant as a “low life”24 or nickname him “Jim Devil”25 during closing arguments.

Improper impeachment: Any party—including the party who called the witness— may impeach a witness.26 But the procedure for properly impeaching a witness is technical, and interrogating counsel often do not adhere to the rules for impeachment.27 Failure to follow the procedures thehoustonlawyer.com

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for impeaching a witness is objectionable.

The main provisions governing witness impeachment are: 1. Rule 607 (any party may impeach), 2. Rule 608 (witness character and conduct), 3. Rule 609 (criminal convictions), and 4. Rule 613 (prior statements).

Additionally, other rules touch on the procedures for impeachment, such as: 1. Rule 404(a)(3) (evidence of a witness’s character), 2. Rule 405 (proving character by reputation), 3. Rule 803(21) (character reputation), 4. Rule 803(24) (statements against interest), 5. Rule 804(b)(1) (using a witness’s former testimony), and 6. Rule 806 (impeaching a hearsay declarant’s credibility).

Incompetent: The witness is not competent to testify. Generally speaking, every person is competent to testify unless

they are incompetent.28 Two categories of witnesses are generally incompetent in all proceedings: insane persons and children.29 But a child only lacks competence if the child does not appear to possess sufficient intellect to relate the transactions under examination.30 Other categories of witnesses are incompetent to testify on specific issues. For example, judges may not testify in the trial over which they preside,31 and a juror is incompetent to testify about deliberations32 or as a witness before the jury in the same trial in which the juror is serving as a juror.33 Irrelevant: “Evidence which is not relevant is inadmissible.”34 To be relevant, evidence must tend “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”35 Lacks authenticity: Evidence must be authentic; it must be what the offering party claims it is.36 Authentication is a condition

precedent to admissibility.37 But to establish admissibility, the party offering the evidence need only present predicate testimony or evidence sufficient to enable a juror to find that the evidence is authentic.38 Rule 902 lists the kinds of evidence that are self-authenticating. If the evidence is not self-authenticating, Texas Rule of Evidence 901(b) and Texas Rule of Civil Procedure 193.7 provide several other ways to make a prima facie showing of authenticity.

Lacks foundation: Whenever the Rules of Evidence require that a party offering evidence establish certain predicates to make the evidence admissible, the failure to establish the predicates—i.e., “lay a foundation”—can draw an objection.39 This most commonly happens after a failure to establish personal knowledge of the witness,40 authenticity of a document,41 or an exception to the hearsay rule.42 But it can also apply whenever a predicate set of facts are required to make evidence admissible, such as when a party offers lay or expert opinion testimony,43 duplicates,44 other evidence of a document’s contents,45 translations,46 a witness’s prior statements,47 or summaries.48 Lacks personal knowledge: Rule 602 prohibits testimony on a matter “unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Witnesses cannot guess or speculate, except for certain lay or expert opinions.49 Testifying witnesses can provide the necessary foundational testimony to establish their personal knowledge.50 Leading: “Leading questions are questions that suggest the desired answer; instruct the witness how to answer; or put words into the witness’s mouth to be echoed back.”51 Rule 611(c) generally prohibits leading questions on direct examination.

But counsel may ask leading questions in several circumstances, such as when: 1. examining or cross-examining a hostile or adverse witnesses or a witness identified with an adverse party;52

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examining children53 or witnesses who have difficulty understanding English54; 2. “necessary to develop the testimony of the witness”55; or 3. laying the foundation for admitting evidence.56 Legal conclusion: This objection arises when the question calls for—or the witness gives—a legal conclusion.57 Generally, witnesses are “not competent to give an opinion or state a legal conclusion regarding a question of law because such a question is exclusively for the court to decide and is not an ultimate issue for the trier of fact.”58 See also “Conclusory.”

Misleading: The question is misleading.

Under Rule 403, the trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of misleading the jury. Evidence has the danger of misleading the jury when it has a tendency “to be given undue weight by the jury on other than emotional grounds.”59

when a witness’s answer does not directly respond to the question or when the witness volunteers more than what is necessary to answer.62 Nonresponsive testimony is inadmissible for several reasons. First, it deprives the opposing party of the opportunity to object to inadmissible evidence before it is introduced to the jury.63 Second, practically speaking, it often leads to the introduction of at best marginally relevant evidence that nevertheless risks unfairly prejudicing the parties, confusing the issues, misleading the jury, or unduly delaying the trial.64 And third, it complicates the Court’s duties to make the presentation of evidence effective for ascertaining truth and to avoid needless consumption of time.65 Opinion: See “Conclusory.”

Privileged: Various rules and other laws make certain information and communications—though relevant—privileged and therefore inadmissible. Here is a non-exhaustive list of such privileged communi-

cations and information: 1. Attorney-client communications,66 2. Clergy-penitent communications,67 3. Mental-health information,68 4. Physician-patient communications,69 5. Political votes,70 6. Reports required by statute,71 7. Spousal communications,72 8. Trade secrets,73 and 9. Work product.74 The party asserting a privilege has the burden of establishing it.75 Repetitive: See “Asked and answered.”

Speculative: The question calls for speculation, or the witness’s testimony is speculative. Fact witnesses may only give testimony from personal knowledge.76 Questions that call for fact witnesses to speculate or guess, in essence, ask the witness to give testimony without personal knowledge of the matter.77 Unfairly prejudicial: Under Rule 403, relevant evidence may be excluded if its pro-

Misstates the evidence or testimony: Questions that misstate or distort evidence or that misquote a witness are improper.60 The difficulty with this objection is its potential for drawing the judge into an inadvertent comment on the weight of the evidence if there is conflicting evidence or if the witness gave ambiguous testimony.

Narrative: The question calls for a narrative answer, or the witness is testifying in the narrative. To start, a narrative answer is objectionable because it “allow[s] a witness to inject inadmissible evidence into trial without giving opposing counsel a reasonable opportunity to make a timely objection.”61 Additionally, narrative answers tend to consume inordinate amounts of time that are better spent on answering focused, direct questions. So, they also are objectionable under Rules 403 and 611(a) for undue delay.

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bative value is substantially outweighed by the danger of unfair prejudice.78 “‘[P]robative value’ refers to the inherent probative force of an item of evidence— that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation— coupled with the proponent’s need for that item of evidence.”79 As for “unfair prejudice,” it is not enough that the evidence is prejudicial (i.e., harmful) to the opponent’s case.80 Instead, to be unfairly prejudicial, the evidence must have “a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”81 Rule 403 permits exclusion of evidence only when the danger of such unfair prejudice substantially outweighs the probative value of the evidence.

Unintelligible: A question is unintelligible or vague when it is likely to confuse the jury or witness.82 Vague: See “Unintelligible.”

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II. COMMON INVALID OBJECTIONS Counsel is testifying: Objecting to interrogating counsel’s question on the grounds that the lawyer is testifying is nonsensical.

Testimony comes from the witness stand.

Only witnesses who swear or affirm to tell the truth may testify.83 Usually, a lawyer making this objection is actually challenging opposing counsel’s use of a leading or argumentative question. Counsel should rely on those grounds—not, “counsel is testifying”—when objecting to such questions.

Form: Sometimes a lawyer will simply rise and announce, “Objection, form.”

Although the Rules of Civil Procedure require this form for depositions in state court,84 it is not valid at trial because it does not inform the judge of the specific ground for inadmissibility.85 Prejudicial: Evidence is not inadmissible simply because it is prejudicial.86 To be inadmissible, evidence must be unfairly prejudicial, and such unfair prejudice

must substantially outweigh the probative value of the evidence.87 III. CONCLUSION The lists in Parts I and Part II are not exhaustive. I have not sifted through the South Western Reporter in search of every possible ground recognized or invalidated

by Texas courts. Rather, I have sought to identify the most common grounds for objecting at trial and to list them here—with brief explanations—as a quick reference guide for lawyers to use in future trials.

It is not the final word on objections. In the end, it is up to the professional judgment of lawyers to determine whether and when to assert a succinct and specific ground when objecting to inadmissible evidence.

The Honorable Dan Hinde is the Judge of the 269th District Court in Harris County, Texas.

Endnotes

1. Knorpp v. State, 645 S.W.2d 892, 902 (Tex. App.—El Paso 1983, no writ).

2. In addition to the cases and rules cited in this article, particular credit goes to three texts on which I have repeatedly—and heavily—relied in preparing this article: STEVEN GOODE ET AL., TEXAS PRACTICE: HANDBOOK ON TEXAS EVIDENCE (2011 ed.); PETER T. HOFFMAN, TEXAS RULES OF EVIDENCE HANDBOOK (2012); THOMAS A. MAUET, TRIAL TECHNIQUES § 9.6 (4th ed. 1996). I constantly consulted at least one of these texts on each of the objections listed in this Glossary, and their influence is found throughout.

3. Flanigan v. State, No. 09-97-474-CR, 1999 WL 498184, at *4 (Tex. App.—Beaumont July 14, 1999, no pet.) (not designated for publication) (“That question was argumentative, in that it did not really call for a fact, but it was not particularly inflammatory, either.”).

4. 2A GOODE, supra note 1, at Obj. 2.

5. See, e.g., Scott v. State, No. 2-03-458-CR, 2005 WL 555278, at *2 (Tex. App.—Fort Worth Mar. 10, 2005, no pet.) (not designated for publication) (“The trial court did not err in limiting Appellant’s examination of the complainant because her prior responses sufficiently answered the questions and any response to the excluded questions would have been repetitive.”)

6. See, e.g., Hobbs v. State, 650 S.W.2d 449, 451 (Tex. App.— Houston [14th Dist.] 1982, pet. ref’d) (“I will not have you badgering the witness or arguing with the witness . . . .”).

7. See Wilson v. State, 90 S.W. 312, 314 (Tex. Crim. App. 1905) (“It is proper for [a] trial court to protect a witness against any supposed imposition or badgering . . . .”).

8. TEX. R. EVID. 1002.

9. TEX. R. EVID. 1003.

10. TEX. R. EVID. 1004.

11. 2A GOODE, supra note 1, at Obj. 5.

12. See, e.g., In re Commitment of Gollihar, 224 S.W.3d 843, 850 n.6 (Tex. App.—Beaumont 2007, no pet.).

13. MAUET, supra note 1, § 9.6(12), at 438-39.

14. TEX. R. EVID. 602.

15. TEX. R. EVID. 701.

16. TEX. R. EVID. 702.

17. See MCCORMICK’S HANDBOOK OF THE LAW OF EVIDENCE § 185, at 439 (Edward W. Cleary et al. eds., 2d ed. 1972); see, e.g., Silcott v. Oglesby, 721 S.W.2d 290, 294 (Tex. 1986); Mumphrey v. State, 155 S.W.3d 651, 664-65 (Tex. App.—Texarkana 2005, pet. ref’d); New Braunfels Factory Outlet Ctr., Inc. v. IHOP Realty Corp., 872 S.W.2d 303, 311-12 (Tex. App.—Austin 1994, no writ); Rodriguez v. Universal Fastenings Corp., 777 S.W.2d 513, 517-18 (Tex. App.—Corpus Christi 1989, no writ) (all affirming the exclusion of evidence of collateral matters because of the risk of confusing the issues).

18. Ramirez v. State, 815 S.W.2d 636, 652 (Tex. Crim. App. 1991).

19. TEX. R. EVID. 801(d).

20. TEX. R. EVID. 801(e).

21. TEX. R. EVID. 802-805.

22. MAUET, supra note 1, § 9.6(21), at 445.

23. ID. § 9.6(21), at 444.

24. Thomas v. State, No. 14-99-00419-CR, 2000 WL 1676216, at *1 (Tex. App.—Houston [14th Dist.] Nov. 9, 2000, pet. ref’d) (not designated for publication).

25. Grant v. State, 472 S.W.2d 531, 533 (Tex. Crim. App. 1971).

26. TEX. R. EVID. 607.

27. MAUET, supra note 1, § 9.6(26), at 448-49.

28. See TEX. R. EVID. 601; Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d).

29. TEX. R. EVID. 601(a).

30. In re A.W., 147 S.W.3d 632, 634 (Tex. App.—San Antonio 2004, no pet.).

31. TEX. R. EVID. 605.

32. TEX. R. EVID. 606(b).

33. TEX. R. EVID. 606(a).

34. TEX. R. EVID. 402.

35. TEX. R. EVID. 401.

36. TEX. R. EVID. 901(a).

37. ID. 38. Llamas v. State, 270 S.W.3d 274, 281 (Tex. App.—Amarillo 2008, no pet.); Reavis v. State, 84 S.W.3d 716, 719 (Tex. App.—Fort Worth 2002, no pet.); Coleman v. State, 833 S.W.2d 286, 289 (Tex. App.—Houston [14th Dist.]

1992, pet. ref’d).

39. See generally MAUET, supra note 1, § 9.6(7), at 433-34.

40. See TEX. R. EVID. 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”).

41. See TEX. R. EVID. 901(a) (requiring authentication as a condition precedent to admissibility).

42. See TEX. R. EVID. 802 (“Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority.”).

43. See TEX. R. EVID. 701-702.

44. See TEX. R. EVID. 1003.

45. See TEX. R. EVID. 1004.

46. See TEX. R. EVID. 1009.

47. See text accompanying notes 26-27.

48. See TEX. R. EVID.1006.

49. TEX. R. EVID. 701-702.

50. TEX. R. EVID. 602.

51. Tinlin v. State, 983 S.W.2d 65, 70 (Tex. App.—Fort Worth 1998, pet. ref’d); see also Newsome v. State, 829 S.W.2d 260, 269 (Tex. App.—Dallas 1992, no pet.).

52. TEX. R. EVID. 611(c).

53. Clark v. State, 952 S.W.2d 882, 886 (Tex. App.—Beaumont 1997, no pet.) (“In cases dealing with child witnesses, the rule against leading questions is somewhat relaxed.”).

54. See, e.g., Hernandez v. State, 643 S.W.2d 397, 400 (Tex. Crim. App. 1982) (permitting leading questions posed to a witness who had difficulty understanding English).

55. TEX. R. EVID. 611(c).

56. See TEX. R. EVID. 104(a) (providing that the Court is not bound by the Texas Rules of Evidence when determining the admissibility of evidence).

57. See Martin v. State, No. 06-03-00139-CR, 2004 WL 1778277, at *11 (Tex. App.—Texarkana Aug. 11, 2004, no pet.) (mem. op., not designated for publication).

58. National Convenience Stores, Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

59. Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007).

60. MAUET, supra note 1, § 9.6(16), at 441.

61. ID. § 9.6(11), at 427-28.

62. ID. § 9.6(22), at 445.

63. TEX. R. EVID. 103(c).

64. TEX. R. EVID. 403.

65. TEX. R. EVID. 611(a).

66. TEX. R. EVID. 503.

67. TEX. R. EVID. 505.

68. TEX. R. EVID. 510.

69. TEX. R. EVID. 509.

70. TEX. R. EVID. 506.

71. TEX. R. EVID. 502.

72. TEX. R. EVID. 504(a).

73. TEX. R. EVID. 507.

74. TEX. R. CIV. P. 192.5.

75. Peeples v. Honorable Fourth Supreme Judicial Dist., 701 S.W.2d 635, 637 (Tex. 1985) (orig. proceeding).

76. TEX. R. EVID. 602.

77. See, e.g., Hall v. Douglas, 380 S.W.3d 860, 876 (Tex. App.—Dallas 2012, no pet.).

78. TEX. R. EVID. 403.

79. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).

80. Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993).

81. Id. 82. 2A GOODE, supra note 1, at Obj. 1.

83. TEX. R. EVID. 603.

84. TEX. R. CIV. P. 199.5(e).

85. TEX. R. EVID. 103(a)(1).

86. Cohn, 849 S.W.2d at 820.

87. See text accompanying notes 78-81.

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By Ray Blackwood

Overlapping I Jurisdiction in the Houstonbased Courts of Appeals

n the Texas judicial system, there are two intermediate appellate courts that share the same geographical jurisdiction. This arrangement is unique and its deficiencies have been pointed out repeatedly by Texas jurists. The Supreme Court of Texas and various members of the bench and bar have long advocated merging the two courts. Attempts at merger have failed in the past, and they may continue to be unsuccessful. Presuming that the Houston-based courts of appeals will not be merged, a question still remains as to whether other measures may be adopted to mitigate the undesirable effects of these courts’ overlapping jurisdiction. This article outlines one of the measures that could be considered in this regard—a special en banc procedure for resolving conflicts between the Houston-based courts of appeals at the intermediate level.

Could a Special En Banc Procedure Alleviate Problems?

Some of the History In the 1960s, there was a substantial increase in the number of civil appeals filed in the First Court of Civil Appeals, which was the only intermediate appellate court for civil appeals in the Houston area.1 The Texas Constitution limited the number of justices on each intermediate appellate court to three, preventing the Texas Legislature from adding any justices to the First Court.2 Apparently deciding that it could not afford to await the conclusion of what would likely be a time-consuming process to amend the Texas Constitution, in 1967, the Texas Legislature addressed the problem by creating the Fourteenth Court of Civil Appeals and giving it the same jurisdiction over the same counties covered by the First Court of Civil Appeals.3­ Eleven years later, in 1978, Texas voters amended the Texas Constitution to remove the constitutional limit on the number of justices on each intermediate appellate court.4 In November 1980, the people of Texas approved amendments to the Texas Constitution giving the intermediate appellate courts jurisdiction over criminal

appeals.5 Not included in these changes to the Texas judicial system was any change to address the overlapping appellate jurisdiction of the two Houston-based courts of appeals (“Houston Appellate Courts”).

The Fourteenth Court is now 45 years old, and, throughout its existence it has had the same geographic jurisdiction as its older sister, the First Court.6 The Problems of Overlapping Appellate Jurisdiction Having two intermediate appellate courts with the same geographic jurisdiction creates various problems. First, disagreement between the two Houston Appellate Courts may lead to different outcomes on the same facts.7 In one instance, the First Court held that the City of Houston was not immune from a suit filed by the families of three occupants of a car who died in a car accident, but the Fourteenth Court held that the City of Houston was immune from a suit filed by the fourth occupant in the same car in the same accident.8 In addition to inconsistent outcomes between similarly situated persons in the same appellate jurisdiction, overlapping jurisdiction creates inefficiency and uncertainty in appellate precedent. A conflict between intermediate appellate courts whose jurisdiction does not overlap creates a lack of uniformity in the judicial system, which lasts until the conflict is resolved. But, even while this conflict exists, under principles of vertical stare decisis, the holding in each of the appeals binds the trial courts in the respective jurisdiction of each appellate court.9 In addition, unless abrogated by a higher court or the court of appeals sitting en banc or superseded by statute, the holding in each of the appeals binds future panels of each appellate court.10 But a conflict between holdings of the First Court and the Fourteenth Court means that there is no mandatory precedent for the trial courts in the geographical jurisdiction of the Houston Appellate Courts.11 In addition, under current law, there is no means for resolving such a conflict at the intermediate appellate level.12 This situation results in a significant lack of certainty and predictability,

as well as increased transaction costs, for parties, lawyers and the trial courts in this jurisdiction. 13 In cases in which there has been no prior appeal or original proceeding, appeals from the 10 counties in the jurisdiction of the First Court and the Fourteenth Court are randomly assigned between these two courts.14 While such cases are pending in the trial court, a conflict between the Houston Appellate Courts means that the trial judge, the lawyers and the parties do not know what the applicable law is, despite the existence of at least two prior holdings of the Houston Appellate Courts that are on point.15 But in such cases, the trial judge, the lawyers and the parties do know that the issue will be decided in one of two different ways based upon the random determination of the court to which the appeal is assigned.16 This determination usually will not be made until after the trial court has rendered final judgment, at which point the parties have incurred substantial costs and have formulated their positions regarding any possible settlement of the case.17 Scott Brister, who served as a justice on the Supreme Court of Texas as well as on both Houston Appellate Courts, has described this situation as “practicing law on a guess and a gamble.”18 If the trial judge makes the wrong guess, then the court of appeals may reverse the trial court and render a different judgment or the appellate court may reverse and remand the case for further proceedings.19 In either case, the uncertainty regarding the law results in a waste of resources by the parties, the lawyers and the court system, all of which could have been avoided if there was a binding precedent in the jurisdiction served by the Houston Appellate Courts.20 One author describes this situation as “absurd, unnecessary, and unworthy of the many fine judges and lawyers working in both the lower courts and courts of appeals [in the geographical jurisdiction of the Houston Appellate Courts].”21 The Supreme Court of Texas has the power to resolve conflicts in the precedent of the two Houston Appellate Courts.22 But the high court can only exercise this power

if a party files a petition for review in the high court raising this issue.23 Presuming that the Supreme Court of Texas acts quickly to resolve such conflicts whenever it can, it may still be a long time before the high court gets the opportunity to act.24 A recent example of this may be seen by reviewing the majority and dissenting opinions in Tucker v. Thomas, a case decided by the Fourteenth Court sitting en banc.25 In June 2004, in Hardin v. Hardin, a panel of the Fourteenth Court held differently from the First Court on a recurring family law issue.26 In Hardin, no party sought review in the Supreme Court of Texas.27 In the seven years after Hardin was decided, the same issue was raised in at least 19 intermediate court of appeals opinions throughout Texas.28 In 17 of these cases, no party sought review in the Supreme Court of Texas.29 In the other two cases, even if the Supreme Court of Texas had granted the petition for review, the high court would not have been able to address this issue.30 Thus, even though the issue was raised in 19 appeals over seven years, the Supreme Court of Texas was powerless to resolve the split between the Houston Appellate Courts.31 Finally, in March 2012, a petition for review raising this issue was filed in the Supreme Court of Texas in Tucker v. Thomas, and the high court has granted review to determine this issue.32 Attempts at Merger A substantial majority of the appeals in the Houston Appellate Courts’ jurisdiction comes from Harris County. Thus, there is no way to effectively address these problems by dividing the 10 counties in the jurisdiction between the two Houston Appellate Courts. However, these adverse consequences would be avoided if the Fourteenth Court were merged into the First Court, resulting in a single intermediate appellate court for the 10 counties in question.33 Various jurists have advocated the merger of these two courts over the years. In 1993, the Supreme Court of Texas advised the Texas legislature that no Texas county should be in the geographical jurisdiction of more than one court of appeals.34 thehoustonlawyer.com

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In 2002, in its recommendations to the Texas Legislature regarding reallocation of the courts of appeals, the Supreme Court of Texas reiterated this proposition and recommended the merger of the Houston Appellate Courts “to eliminate overlapping districts.”35 The Texas Legislature has not followed this recommendation.

Special En Banc Procedure Presuming that the Houston Appellate Courts will not be merged, there are still other measures that may be adopted to mitigate the undesirable effects of these courts’ overlapping jurisdiction. One such measure would be a special en banc procedure for resolving at the court-of-appeals level conflicts between the First Court and the Fourteenth Court. This procedure could take various forms, but for the purposes of illustration, this article will outline one form that might be considered.

Under current law, en banc consideration is a procedure that a court of appeals may use to secure or maintain uniformity in the court’s precedent or when “extraor-

dinary circumstances require en banc consideration.”36 In the Houston Appellate Courts, a special en banc procedure could be added that would be available in even more limited circumstances. This procedure could be made available if a holding in the pending appeal conflicts with the precedent of the other Houston Appellate Court. In such cases, if rehearing is denied under the regular en banc procedure or if the conflict persists even after regular en banc rehearing, then the appeal would be eligible for a special en banc rehearing.

Under this special procedure, the court in which the appeal is pending would sit in special en banc session, and all members of the two Houston Appellate Courts who are not disqualified or recused would sit on the court. Upon a favorable vote of the members of this special en banc court, the case would be considered and decided by special en banc rehearing. The opinion of the special en banc court would be rendered by the court in which the appeal is pending, but the law would provide that the decision of a special en banc court binds

both Houston Appellate Courts. To enforce compliance with holdings of these special en banc courts, another basis for invoking this special en banc procedure would be that, as to one or more of the appellate issues, the court in which the appeal is pending, either by panel decision or by regular en banc consideration, has held differently from a special en banc court.

Parties in appeals in the Houston Appellate Courts could request this special en banc procedure in a motion for rehearing. The movant could note that as to one or more of the issues on which the case has been decided, there is a conflict with a holding of the other Houston Appellate Court or with the holding of a special en banc court. In a motion for rehearing from the decision of a panel, the movant could request that the panel change the opinion to remove the conflict, and if the panel declines to do so, the movant could request regular en banc rehearing to resolve the conflict. In the same motion, the party could request special en banc rehearing to resolve this conflict if the conflict survives

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review at the panel and regular en banc levels. To conserve resources, it could be provided that motions for special en banc rehearing will not be circulated to the members of the special en banc court unless in the motion: (1) the party specifically states a proper basis for special en banc rehearing; and (2) the party cites at least two precedents that allegedly conflict and that would be a basis for special en banc rehearing if they conflicted. If a member of the special en banc court so requests, a vote would be taken to determine whether a case will be reheard using the special en banc procedure. The special en banc court would rehear the case if a majority of the special en banc court so votes and perhaps under other circumstances.37 This procedure would be unusual. But peculiar problems sometimes merit uncommon responses. This en banc procedure could be effected by statute, without the need to amend the Texas Constitution and without the need to merge the Houston Appellate Courts or to effect any other change to the structure of the Texas court

system. Existing law already requires intermediate appellate courts, in certain appeals, to follow the precedent of a sister court even though that precedent conflicts with the precedent of the court in which the appeal is pending.38 Thus, requiring the Fourteenth Court to follow the prior holding of the First Court, sitting in special en banc session, would not be unprecedented, and it would not be unfair because all members of the Fourteenth Court participated in that prior case, unless they were disqualified or recused. Under existing law, justices who are currently members of one of the Houston Appellate Courts may temporarily be assigned to sit as justices on the other Houston Appellate Court.39 One might think that a Houston Appellate Court, sitting en banc, could be comprised of no more than the nine members of that court. But, under existing law, the en banc court may consist of more than nine members and may include justices who are not members of that court.40 Thus, legislation establishing a special en banc procedure for the Houston Appellate Courts would

not be a major departure from existing law.

Conclusion When the Texas Legislature created the Fourteenth Court, it was not possible under the Texas Constitution to add justices to the First Court. In the 34 years since it became possible to do so, the Texas Legislature has not merged the Fourteenth Court into the First Court. But there are various measures short of merger that may be adopted to mitigate the undesirable effects of these courts’ overlapping jurisdiction. One such measure would be to enact a special en banc procedure that would allow the members of the Houston Appellate Courts, sitting en banc on either the First Court or the Fourteenth Court, to resolve conflicts between the precedent of these two courts. This procedure would provide a way to expeditiously resolve such conflicts at the intermediate appellate level.

Ray Blackwood is a staff attorney at the Fourteenth Court of Appeals working in the chambers of Justice Kem Thompson Frost.

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This article was written in the author’s private capacity. The author speaks only for himself. No endorsement by the Fourteenth Court of Appeals or any justice of that court is intended or should be inferred.

Endnotes

1. See Miles v. Ford Motor Co., 914 S.W.2d 135, 137 n.3 (Tex. 1995).

2. See TEX. CONST. art. V, § 6 (amended 1978, 1981, 1985, 2001).

3. See Act of May 29, 1967, 60th Leg., R.S., ch. 728, §§ 1, 2, 3, 1967 TEX. GEN. LAWS 1952, 1952–54.

4. See TEX. CONST. art V, § 6.

5. See TEX. CONST. art. V, § 5 (amended 2001).

6. See TEX. GOV’T CODE ANN. 22.201 (West 2013).

7. See Scott Brister, Is It Time to Reform Our Courts of Appeals? HOUS. LAW., Mar.–Apr. 2003, at 25–26.

8. See Montes v. City of Houston, 66 S.W.3d 267, 267–68 (Tex. 2001) (Hecht, J., joined by Owen, J., concurring in the denial of the petition for review); Brister, supra, at 25–26.

9. See TEX. R. APP. P. 41.3; Glassman v. Goodfriend, 347 S.W.3d 772, 781–82 & n.8 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc).

10. See Glassman, 347 S.W.3d at 781–82 & n.8.

11. See Tucker v. Thomas, No. 14-09-01081-CV, —S.W.3d—,—, 2011 WL 6644710, at *19 (Tex. App.— Houston [14th Dist.] Dec. 20, 2011, pet. granted) (Frost, J., concurring, joined by Seymore and Brown, JJ.).

12. See id. at *20.

13. See id. at *18–20.

14. See TEX. GOV’T CODE ANN. §22.202(h) (West 2013); 1st Ct. App. (Houston) Loc. R. 1.3, 1.4; 14th Ct. App.

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(Houston) Loc. R. 1.3, 1.4; Tucker, 2011 WL 6644710, at *18 (Frost, J., concurring).

15. See Tucker, 2011 WL 6644710, at *18–19 (Frost, J., concurring).

16. See id.

17. See id.

18. Scott Brister, Is It Time to Reform Our Courts of Appeals?

HOUS. LAW., Mar.–Apr. 2003, at 22, 26. See Tucker, 2011 WL 6644710, at *19 (Frost, J., concurring).

19. See Tucker, 2011 WL 6644710, at *18–19 (Frost, J., concurring).

20. See id.

21. David J. Schenck, Are We Finally Ready to Reshape Texas Appellate Courts for the 21st Century? 41 TEX. TECH LAW REV. 221, 227 (2009).

22. See TEX. R. APP. P. 53.1, 56.1.

23. See TEX. R. APP. P. 53.1, 53.7; Tucker, 2011 WL 6644710, at *18 (Frost, J., concurring).

24. See Tucker, 2011 WL 6644710, at *18 (Frost, J., concurring).

25. See Tucker, 2011 WL 6644710, at *3–5 (majority); id. at *18 (Frost, J., concurring); id. at *27–28 (Christopher, J., dissenting).

26. See Hardin v. Hardin, 161 S.W.3d 14, 24–27 (Tex. App.— Houston [14th Dist.] 2004) (declining to follow In re Moers, 104 S.W.3d 609, 611–12 (Tex. App.—Houston [1st Dist.] 2003, no pet.) and holding to the contrary), judgm’t vacated, op. not withdrawn, No. 14-03-00342CV, 2005 WL 310076, at *1 (Tex. App.—Houston [14th Dist.] Feb. 10, 2005, no pet.); see also Tucker, 2011 WL 6644710, at *18 (Frost, J., concurring).

27. See id.

28. See Tucker, 2011 WL 6644710, at *3–5 (majority); id. at *18 (Frost, J., concurring); id. at *27–28 (Christopher, J., dissenting).

29. See Tucker, 2011 WL 6644710, at *3–5 (majority); id. at

*18 (Frost, J., concurring); id. at *27–28 (Christopher, J., dissenting).

30. See TEX. R. APP. P. 53.1, 53.7; Petition for Review, In the Interest of D.C.M., No. 09-0094 (Tex. denied June 12, 2009); Petition for Review, McCloskey v. McCloskey, No. 09-0092 (Tex. denied May 7, 2009); McCloskey v.

McCloskey, No. 14-06-00470-CV, 2009 WL 3335868, at *2 (Tex. App.—Houston [14th Dist.] Apr. 2, 2009, pet. denied) (mem. op.); In re D.C.M., No. 14-06-00844-CV, 2008 WL 4146785, at *10 (Tex. App.—Houston [14th Dist.] Sept. 9, 2008, pet. denied) (mem. op.).

31. See Tucker, 2011 WL 6644710, at *18 (Frost, J., concurring).

32. See Petition for Review, Tucker v. Thomas, No. 12-0183 (Tex. granted Nov. 16, 2012).

33. See Tucker, 2011 WL 6644710, at *20 (Frost, J., concurring).

34. See Miles, 914 S.W.2d at 140.

35. Misc. Docket No. 02-9232, p.1 (Tex. Dec. 17, 2002).

36. TEX. R. APP. 41.2(c).

37. It might be deemed advisable to provide that the special en banc court would also rehear the case if a vote is requested and all the members who regularly sit on one of the Houston-based courts of appeals, who are not disqualified or recused, vote to rehear the case using the special en banc procedure, even though a majority of the special en banc court does not vote to rehear the case using the special en banc procedure.

38. See TEX. R. APP. P. 41.3 39. See TEX. GOV’T CODE ANN. §74.003(a) (West 2013).

40. See TEX. R. APP. P. 41.2(a) (West 2013); Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 416 (Tex. App.—Houston [14th Dist.] 2001, pet. granted, judgm’t vacated w.r.m.) (involving en banc court consisting of 12 justices).

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By Greg Porter

New Statute T Modernizes Trade Secret Protection and Litigation in Texas

exas has now joined 47 other states that have some version of the model Uniform Trade Secrets Act.1 The Texas Uniform Trade Secrets Act (“TUTSA”) takes effect on September 1, 2013, and will govern lawsuits for any misappropriation of a trade secret that occurs on or after that date.2 The act modernizes the law of trade secrets in Texas, and brings it into substantial harmony with the laws of most other states.

The Act Provides a Broader Definition of a Trade Secret Before the act, Texas courts, relying upon the Restatement of Torts, defined a trade secret as “any formula, pattern, device or compilation of information which is used in one’s business and presents an opportunity to obtain an advantage over competitors who do not know or use it.”3 While some Texas courts have held otherwise,4 the Restatement’s additional “continuous use” requirement excluded potentially valuable confidential information that is: (1) still in development and thus not in use, e.g., research and development information; (2) used previously, e.g., a sales bid; or (3) “negative know-how,” e.g., expensive research determining paths not to pursue.5 In contrast, the act defines a trade secret as follows: information, including a formula, pattern, compilation, program, device, method, technique, process, financial data, or list of actual or potential customers or suppliers, that: (A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.6

The act’s definition eliminates the thorizes protective orders to limit discloRestatement’s “continuous use” lansure of alleged confidential information, guage, and includes information that has and states that they may include provi“potential” economic sions for in-camera value, which broadhearings, sealing reThe act should ens the type of inforcords, and other promation that may be tective measures.10 streamline trade claimed as a trade seThis should simplify cret.7 Moreover, even how trade secrets are secret litigation in protected during the though the act was course of litigation. patterned after the several ways.

The act also UTSA, the act’s trade streamlines trade secret definition difInitially, the act secret litigation by fers from it by proauthorizing injuncviding that “financial includes the uniform tions and awards for data” or a “list of attorney’s fees. Before actual or potential act’s express the act, attorney’s customers or supplifees could not be ers” may constitute statement that its awarded in a Texas protectable trade setrade secret misapcrets. This broader general purpose propriation case. As definition, which a result, trade secrets was borrowed from is to make the plaintiffs would ofthe Illiniois trade se8 ten bring additional cret act, will provide law uniform among claims under statadditional certainty utes such as the as to what may be the states Texas Theft Liabilprotected as a trade ity Act that authorize secret. adopting it. awards for attorney’s’ fees, which in turn The Act Should increased the complexity and associated Streamline costs of the cases. The act now authorizes Trade Secret Litigation awards for attorney’s fees in cases involvThe act should streamline trade secret ing either a willful and malicious misaplitigation in several ways. Initially, the act propriation or bad faith misappropriation includes the uniform act’s express stateof a trade secret,11 and that should proment that its general purpose is to make the law uniform among the states adopttect legitimate trade secret holders from ing it.9 The uniformity should eliminate malicious actions while discouraging unwarranted trade secret claims. many of the battles that frequently ensue The act also authorizes a court to issue in trade secret cases over which state’s an injunction to prevent “threatened mislaw controls the dispute. appropriation.”12 For example, an emThe sealing of records is another way in which the act makes litigation more ployer will be able to seek an injunction efficient. Currently, the parties in trade to prevent a former employee’s threatsecret litigation in Texas state courts are ened disclosure of key trade secrets to a required to use the procedure described new employer without having to resort in Texas Rule of Civil Procedure 76(a) to to a potentially difficult to enforce nonseal a court record. Unfortunately, this compete agreement. procedure is often burdensome because it requires notice to the public and an opConclusion portunity to be heard. Notably, the act auThe act modernizes Texas trade secret

“

”

law and harmonizes it with that of most other states. Over time this will likely provide more certainty and predictability to the scope of trade secret protection and litigation. As stated in the legislative committee hearings on the TUTSA bill, it is believed that certainty and predictability in Texas trade secret law will attract more businesses that rely on trade secret protection to Texas.

Greg Porter is a partner in the Houston office of Andrews Kurth LLP. His practice emphasizes trade secret and patent litigation, as well as patent prosecution. He assisted with drafting the TUTSA bill and testified in hearings at the Texas Legislature in favor of its passage.

Endnotes 1. Only New York and Massachusetts lack some version of the Uniform Trade Secrets Act. 2. The act will be codified as Title 6, Chapter 134A of the Texas Civil Practice and Remedies Code.

3. Computer Assoc. Intern v. Altai, 918 S.W.2d 453, 455 (Tex. 1994); Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (1958) (quoting Restatement of Torts § 757 (1939)).

4. Bertotti v. C.E. Shepherd Co., 752 S.W.2d 648, 653 (Tex. App. —Houston [14th Dist.] 1988, no writ) (holding that the mere fact that a company is not presently using information or producing a product does not prevent the information from being a trade secret); Elcor Chemical Corp. v. Agri–Sul, Inc., 494 S.W.2d 204, 213 (Tex. Civ. App.—Dallas 1973, writ ref’d n.r.e.) (holding that the mere fact that a trade secret-owner is not presently using information does not allow others to appropriate the information).

5. The existing case law is less than clear on whether negative know-how is currently protectable in Texas.

Negative know-how has been held in some cases to not rise to the level of a protectable trade secret. See e.g., Hurst v. Hughes Tool Co., 634 F.2d 895, 899 (5th Cir. 1981). In at least one other case, a court has upheld a trade secret based on a company’s competitive advantage from “trial and error of eliminating what did not work.” Mabrey v. Sandstream, Inc., 124 S.W.3d 302, 319 (Tex. App. —Fort Worth 2003, no pet.).

6. TEX. CIV. PRAC. & REM. CODE §134A.002(6).

7. In fact, the comments to the uniform act upon which the TUTSA is based specify: “The definition of ‘trade secret’ contains a reasonable departure from the Restatement of Torts (First) definition which required that a trade secret be ‘continuously used in one’s business.’ The broader definition in the proposed Act extends protection to a plaintiff who has not yet had an opportunity or acquired the means to put a trade secret to use. The definition includes information that has commercial value from a negative viewpoint, for example the results of lengthy and expensive research which proves that a certain process will not work could be of great value to a competitor.”

8. 765 ILCS § 1065(2)(d) (2012).

9. TEX. CIV. PRAC. & REM. CODE § 134A.008.

10. TEX. CIV. PRAC. & REM. CODE § 134A.006.

11. TEX. CIV. PRAC. & REM. CODE § 134A.005.

12. TEX. CIV. PRAC. & REM. CODE § 134A.003.

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An Interview with the President The Houston Lawyer talked to new HBA president, David Chaumette, about his family, his legal career and his mission to show how the HBA benefits all lawyers in the Houston legal community.

THL: Where were you born and where did you grow up?

Chaumette: I was born in London England in 1968. I moved to the U.S. at a very young age, around six months old, so I don’t really have much of an accent. Originally, I landed in Chicago and eventually my family moved to western Michigan, Houston, and Los Angeles before I graduated from high school. I spent most of my high school years in Sugar Land, where I have essentially lived since law school.

THL: Tell me about your family.

Chaumette: My father is from Port-auPrince, Haiti. He is a retired doctor who came to this country via Canada in the 1950s. After he got his feet under him, he brought four of his brothers and sisters and his parents to the states. Today, only one of his siblings lives outside of the Unit-

ed States, although I have many cousins still in the Carribean and Europe.

My mother was born in Lochboisdale, South Uist in Scotland. She came to the States on the Queen Mary in the 1950s with four other women she met in nursing school. I am still close to one of them, May Costanzo, who is my godmother. I have two sisters, Sonia and Juliana. Sonia lives in Chicago and Juliana lives in Seattle.

And, of course, I have two teenage sons, Raphael and Alex, who basically are my life outside of the bar and the office.

THL: Where did you go to college and law school?

Chaumette: I have my Bachelor’s from Princeton in Aerospace Engineering and a Master’s in Aeronautics and Astronautics from Stanford. My law degree is from the University of Chicago.

THL: With that background, how did you become interested in law as a career?

Chaumette: While at Princeton, I was a certificate student in the Woodrow Wilson School of Public and International Affairs.

Essentially, that meant that I fulfilled

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the degree requirements for a public policy degree in addition to the requirements for the engineering degree. About ten people in each Princeton class do this, and my year I was one of three in aerospace engineering alone. For my senior thesis, I wrote on the problem of midair collisions and how President Reagan’s firing of the air traffic controllers in the early 80s, combined with the deregulation of the airline industry, created increased risk of midair collisions. Yes, I talk about this sometimes when I fly, and that makes me a ton of fun. This experience taught me that I really enjoy the nexus where technology and policy meet, and I discovered then what I know now: people with technical backgrounds often do not communicate well with people from other disciplines. I saw a niche where I could meet a need and the rest is history.

THL: What are your areas of specialty and with what firms have you worked in your legal career?

Chaumette: Over my twenty years of practice, I have worked with several

firms including Mayor, Day, Caldwell & Keeton; Porter & Hedges; Shook, Hardy & Bacon; and Baker McKenzie. I have had my own firm for the last few years, which is both exciting and terrifying at the same time.

I have always had a general commercial litigation practice, but I am probably best known for my work in electronic discovery. I speak on that topic often, and I just finished teaching e-discovery at University of Houston Law Center for the third time.

THL: Who were your mentors?

Chaumette: Several years ago, I began actively thanking the people who had helped make me the person I am today. My eighth grade English teacher, Mary Williams, taught me more than just the stories of King Arthur. By the time I got to college, she had moved from Chicago to Princeton and we had dinner regularly over my four college years. Through her, I developed a love for Buffalo Wings. Two Princeton professors, Barrie Royce and Enoch Durbin, also taught me that being an active member of the community was as important as anything you learned in the classroom.

More recently, Michael Connelly and Jess Womack were very influential in my professional career and how I learned to practice law. Meanwhile, Angela Blanchard at Neighborhood Centers has taught me how to lead, innovate and live. And finally, my parents who, in their own very different ways, provided sterling examples of how to live and helped me define who I am.

THL: How did you get interested in volunteering with the bar?

Chaumette: Simply, I am a joiner. In school, I was a class president more than once. When I returned to Houston as a judicial clerk, I didn’t really know many people so the HBA and the Houston Young Lawyers Association gave me a place to meet people and

learn about being a lawyer. Next thing I knew, I was chairing a committee or two and moved on to Bar boards from there.

THL: What do you think is the role of the organized bar in society today?

Chaumette: Today, the legal market presents a different set of challenges than in years past. We are more diverse in practice and focus than ever, yet there is significant commonality.

However, with so much information aimed at each of us, it’s hard to get anything through.

The bar of today must be a portal for its lawyers, a portal of information related to their practice, their community, and their overall betterment.

Doing that, we can remain relevant to our members and continue to thrive.

THL: What do you see as the role of the president in the Houston Bar Association?

Chaumette: In my mind, the president is the physical embodiment of the bar. That means that if people have a question or request about the bar, I should be the person who is ready to listen and help if I can. I am reminded of my time as president of my Little League in Sugar Land where I felt that, as president, I could root for every kid on every field. Similarly now, as the president of the Bar, I can root for every lawyer as he or

she volunteers for one of our projects or heads one our sections or something similar across the organization.

THL: What areas will you focus on during your administration?

Chaumette: I have two focuses

for this year. The first is immigration education. As a naturalized citizen, I know first-hand that there is a lot of bad information out there on this topic. It’s a natural place for the bar to come in and fill some gaps in an effort to ensure that people are not deprived of their rights because of bad information

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year and learned that our members wanted more specific directed communication from us. They did not feel that they heard from us the way they wanted to. In response to that, I am directing the Bar to look more at ways to tailor the communication to the different members of the bar so that they can get the information and the access to the resources that they want. In addition, I am establishing a group of HBA Ambassadors. Ambassadors will go to other bar associations and collections of lawyers across our area to discuss the HBA, its programs and what the HBA has already implemented that might be of interest to

or bad people. We will work with organizations throughout the Houston area to improve coordination on this issue, one of the biggest facing our region and our country today.

My second issue is more inward look-

ing for the HBA. People today know that the ability to deliver your message is often as important as the message itself. We held some focus groups during the last bar

other associations.

We will start that work in the fall, and I hope that it will allow the HBA to keep the greater Houston legal community apprised about our great programs.

THL: What do you think has changed most about the practice of law since you became licensed?

Chaumette: Frankly, the practice has changed significantly. It’s more fluid and rapidly changing. With the advancements in technology and their impact on society, lawyers face a new set of challenges from non-traditional quasilegal vendors like LegalZoom and others. These challengers make the practice of law more complicated than ever, but it can also be more rewarding too.

The bar can play a role in helping our members stay abreast of these changes as we all tackle these issues.

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THL: What do you like to do outside of the practice of law?

Chaumette: Anyone who knows me knows that I’ve spent a ton of time at baseball fields across the state and across the country. In the past year, my sons have played across Texas from Dallas to San Antonio to La Grange and across the country from Omaha to Phoenix to Springfield, Missouri.

It’s another full time job just to follow them around. That said, my first job in life is to be the best parent to my children, to lead them by example and to support them in any way possible. I know that I am hardly unique in that feeling, so I don’t think I am anything special with that, but being a parent has kept me humble and grounded. I literally learn something new every day.

THL: Are you involved with other professional or community organizations?

Chaumette: I have served on a few State Bar committees, most notably the Steering Committee for the Texas Minority Counsel Program. I have attended that program for about 15 years straight, and have really enjoyed my involvement there. I have been on the Board of Neighborhood Centers, Inc., for ten years now and am currently the chair, after serving more than six years as the chair of the committee overseeing NCI’s charter school and Head Start program. That work reminds me of my mother’s commitment to children and building community, and is immensely rewarding. I just “retired” after six years on the First Colony Little League board, including one year as president. Over the years, I have also been involved with the Alley Theatre, the Holocaust Museum, and Young Audiences of Houston. Each of those organizations still holds a special place in my heart.

THL: Is there anything else you would like to bring out in this interview that

is important to you?

Chaumette: I worry that I have gone on too long, but I would leave you with this thought. If there is a hallmark of my presidency, I hope that people will say that I led with my heart and I worked to make the bar, the city and the state a better place for all of us. There is great joy in being part of something bigger. I hope you will agree and join me for my part of our mutual journey.

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Chaumette Takes Office as HBA President Brent Benoit, Christy Benoit, David Chaumette, Alex Chaumette and Rafe Chaumette

David Chaumette presents Brent Benoit with recognition for an outstanding year.

David A. Chaumette of Chaumette, PLLC took up the gavel as the 2013-2014 president of the Houston Bar Association at the organization’s Annual Dinner Meeting on May 16 at River Oaks Country Club. Chaumette succeeded Brent Benoit of Locke Lord LLP. The gala evening was dedicated to the accomplishments of the HBA and its members during the past year. Benoit presented the President’s Awards to outstanding committee and program chairs for 20122013, and the HBA honored its emeritus members who reached their 50th year of practice during the last bar Photos by Fred Provada year.

David Chaumette with new State Bar of Texas President Lisa Tatum.

David Chaumette with Annette Duggan, president of the Houston Bar Association Auxiliary, and the Hon. Lee Duggan.

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www.hba.org

50-Year Lawyers

50-year member Harry Gee, Jr. and his wife, Antje Gee.

50-year member Richard E. Griffin and his wife, Betty Griffin.

50-year member Harold A. Chamberlain.

50-year member W. Wiley Doran and his wife, Jeanne Doran.

50-year member Ted Hirtz and his wife, Susan Hirtz.

50-year member Karl C. Hoppess.

50-year member Jake Johnson and his wife, The Hon. Carolyn Johnson.

50-year member Richard P. Keeton and his wife, Susan Keeton.

50-year member Kenneth H. Knop and his wife, Virginia Knop.

50-year member Lee R. Larkin and his wife, Jane Larkin.

50-year member Peter Linzer.

50-year member William E. Matthews and his wife, Cinda Matthews.

50-year member Michael S. Moehlman and his wife, Carol Jean Moehlman.

50-year member Harvin C. Moore III and his wife, Mary Moore.

50-year member Oliver Pennington and his wife, Beverly Pennington.

James Perkins stood in for his father, 50-year member James I. Perkins.

50-year member the Hon. Frank C. Price and his wife, Melissa Price.

50-year member Daniel J. Snooks and his wife, Margaret Snooks.

50-year member Kenneth L. Tekell and his wife, Meredith Tekell.

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President’s Awards and Special Recognition Brent Benoit presented the 2012-2013 President’s Awards and Special Recognition Awards to outstanding committee chairs and program leaders during the HBA’s Annual Meeting.

Marilyn Kulifay and the Hon. Meca Walker were honored as co-chairs of the Continuing Legal Education Committee.

Daniella Landers was honored as chair of the Gender Fairness Committee.

J. James Cooper was honored as chair of the Historical Committee.

Sheila Hansel and Erin Powers were honored as cochairs of the Law & the Media Committee.

Alistair Dawson was honored as chair of the Law Week Committee.

Laura Gibson was honored as chair of the Lawyers Against Waste Committee.

The Hon. Ravi K. Sandill, Genetha Turner and Travis Torrence were honored as co-chairs of the Minority Opportunities in the Legal Profession Committee.

Omar Lemus and David Godwin of the Video and Media Services Department of Vinson & Elkins LLP and the firm’s managing partner, Mark Kelly, were honored for outstanding service to the HBA’s Living History Project. The firm provides video services to capture the stories, memories and perspectives of Houston’s most illustrious and influential legal practitioners.

Keri D. Brown was honored as editor in chief of The Houston Lawyer.

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Join the Houston Bar Association’s 100 Club The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Adair & Myers PLLC Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Ajamie LLP Andrews Myers, P.C. Bair Hilty, P.C. Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Barrett Daffin Frappier Turner & Engel, LLP Bateman | Pugh | Chambers, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & House Blank Rome LLP Brewer & Pritchard PC Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, L.L.C. Butler | Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P. Campbell Harrison & Dagley LLP Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski, Larkin & Johnson LLP Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Ebanks Horne Rota Moos LLP Edison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLC Faubus & Scarborough LLP Fernelius Alvarez PLLC Fibich Hampton Leebron Briggs Josephson, LLP Fisher, Boyd, Brown & Huguenard, LLP Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C. Fleming, Nolen & Jez, L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk Funderburk Courtois, LLP Galloway Johnson Tompkins Burr & Smith Germer Gertz, L.L.P. Givens & Johnston PLLC Godwin Lewis, P.C. Goldstein Law PLLC Gordon & Rees LLP Greer, Herz & Adams, L.L.P. Hagans Burdine Montgomery & Rustay, P.C. Harberg Huvard Jacobs Wadler Melamed, LLP Harris, Hilburn & Sherer

Harrison, Bettis, Staff, McFarland & Weems, L.L.P. Hartline Dacus Barger Dreyer LLP Hays McConn Rice & Pickering, P.C. Henke Law Firm, LLP Hicks Thomas LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Hunton & Williams LLP Jackson Gilmour & Dobbs, PC Jackson Lewis LLP Jenkins Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P. Jones Walker LLP Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C. Kroger | Burrus LeBlanc Bland P.L.L.C. Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre & McCulloch, LLP McGinnis Lochridge & Kilgore LLP McGuireWoods LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C. Murray | Lobb PLLC Nathan Sommers Jacobs Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Pagel Davis & Hill PC Parrott Sims & McInnis, PLLC Perdue Brandon Fielder Collins & Mott Perdue Kidd & Vickery Phelps Dunbar LLP Phillips, Akers & Womac, PC Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PC Reynolds, Frizzell, Black, Doyle, Allen & Oldham L.L.P. Roach & Newton, L.L.P. Roberts Markel Weinberg PC Ross, Banks, May, Cron & Cavin, P.C. Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Moore, Jackson & Echols, P.C. Schiffer Odom Hicks & Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Shannon Martin Finkelstein & Alvarado, P.C.

Shepherd, Scott, Clawater & Houston, L.L.P. Shipley Snell Montgomery LLP Short Carter Morris, LLP Singleton Cooksey PLLC Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P. Sprott, Rigby, Newsom, Robbins & Lunceford, P.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P. Stuart & Associates P.C. Sutton McAughan Deaver, PLLC Tekell, Book, Allen & Morris, L.L.P. Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Tucker Vaughan Gardner & Barnes, P.C. The Ward Law Firm Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson Henneman & Sullivan LLP Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P. Williams Kherkher Hart Boundas LLP Williams Morgan & Amerson, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wright Abshire, Attorneys, PC Wright & Close, L.L.P. Yetter Coleman LLP Ytterberg Deery Knull LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zimmermann, Lavine, Zimmermann, & Sampson, P.C. Zukowski, Bresenhan, Sinex & Petry LLP Firms of 25-49 Attorneys Adams & Reese LLP Akin Gump Strauss Hauer & Feld LLP Baker & McKenzie LLP Beck I Redden LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain Hrdlicka White Williams & Aughtry Coats I Rose Cokinos Bosien & Young Gibbs & Bruns LLP Greenberg Traurig, LLP Hoover Slovacek LLP Jones Day Littler Mendelson, PC Olson & Olson LLP Seyfarth Shaw LLP Firms of 50-100 Attorneys Baker Hostetler LLP Gardere Wynne Sewell LLP Jackson Walker L.L.P. Martin, Disiere, Jefferson & Wisdom, L.L.P.

Morgan, Lewis & Bockius LLP Porter Hedges LLP Thompson & Knight LLP Winstead PC Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski LLP Haynes and Boone LLP Locke Lord LLP Vinson & Elkins LLP Corporate Legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc LyondellBasell Industries MAXXAM Inc Newfield Exploration Company Petrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University S & B Engineers and Constructors, Ltd Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System Law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center Government Agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County Texas

By Anna Archer and Courtney Ervin

Best Practices

T

he mission of the HBA Gender Fairness Committee, created in 2003, is to examine issues related to gender fairness in the legal profession and develop programs that provide a forum for discussion of these issues, including training and support for attorneys. The committee promotes awareness within the profession and encourages law firms and corporate legal departments to set policies that promote gender fairness.

This year, the committee’s focus was on “best practices: past and future.” Among other activities, the committee hosted a Fall Associates Luncheon and a Management Breakfast in the spring, designed to provide managing partners with anonymous feedback from an associate’s perspective regarding how Houston firms have met and continue to progress toward these goals.

Representatives from 20 different firms attended the Fall Associates Luncheon, where they were given four topics of discussion: (1) Secrets to Success: Unwritten Rules to Success in the Workplace; (2) Career Path Options: To Be or Not to Be on the Partnership Track; (3) Balancing Your Work-Life Scale: Mission Impossible?; and (4) Not Your Mother’s Law Firm: Bridging the Generation Gap. The associates were assured anonymity, which encouraged an open and honest discussion of the topics.

The discussion of the first topic, Secrets to Success, centered on mentoring. Associates recognize the importance of mentoring throughout their career, and would like The Fall Associates Luncheon provided the opportunity to discuss topics such as mentoring, career path options and work-life balance. mentoring programs

HBA Committee Promotes Gender Fairness

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to begin in the first year. They stressed agement representatives each received a that it is very important for firms to encopy of the discussion questions/topics courage both formal and informal mentorprovided to the associates during the Fall ing of young associates. It was noted that Associates Luncheon as well as a detailed male associates form informal mentoring summary of the points discussed. The reprelationships more easily than female asresentatives discussed successes and best sociates, and work could be done to close practices for the promotion and retention this gap. of women attorneys in law firms and legal The second topic, Career Path Opdepartments, using the points raised by tions, spurred discussion about whether the associates as a springboard. associates who choose to work part-time The management representatives disare fairly compensated and how to meet cussed the value of formal mentoring propersonal obligations (both family and grams, but also the need to bridge their non-family) without negatively impacting an associate’s career.

Associates who discussed the third topic, Balancing Your Work-Life Scale, noted that everyone defines work/life balance differently, but achieving a good balance is just as important for men as it is for women. Associates discussed effective ways Law firm and corporate management representatives discuss best practices to set boundaries and 2012-2013 Gender Fairness Committee’s Management Breakfast. communicate them to their firms and clishortcomings through informal mentorents. They felt women’s organizations and ing, which can sometimes be more benefiactivities were very important, but wanted cial. Many firms have regular lunches for more guidance on balancing family and female associates and partners to encourwork, including role models that have age these informal relationships. In addisuccessfully balanced the two. tion to mentoring, one partner noted that As for the fourth topic, Not Your Mothit is important for management to encourer’s Law Firm, the associates noted that age associates to network, and to publicize success is defined more on a generational the resources available for networking. level than by gender, and that a greater One firm supports networking by its feappreciation across generations of the difmale attorneys with an annual women’s ferent definitions of success would faciliretreat for attorneys and clients, which tate associate/partner relationships. The provides an opportunity for younger feassociates also pointed out the differences male attorneys to develop their networkbetween generations with regard to aping skills. propriate dress and that associates need to The management representatives also understand the dress code protocol (both discussed career-path options, and the written and unwritten). best way to communicate policies regardThe firms and legal departments that are ing flexible or part-time schedules. They signatories to the 2009 Gender Initiative noted the importance of eliminating the Commitment Statement were invited to stigma often associated with an alternative send a management representative to the work schedule, and communicating that Management Breakfast. Representatives partnership on an alternative work schedfrom 19 firms attended and participated ule is possible. The management represenin a round-table discussion. The mantatives additionally discussed the effective

use of affinity groups for both male and female attorneys to address work/life balance and other issues important to associates and other lawyers. Such groups can include organizations such as Moms-inLaw or book clubs.

At the end of the Management Breakfast, Daniella Landers, the 2012-2013 chair of the Gender Fairness Committee, encouraged the managers in attendance to sign the revised Gender Fairness Initiative Commitment Statement. The committee revised the statement in 2013, and is distributing it to all firms and legal departments in the Houston area, encouraging them to join as signatories. In signing the 2013 Gender Fairness Initiative Commitment Statement, firms and legal departments commit to a material increase in the number of women at the partnership level and/or leadership positions in law firms by year-end 2016 and to (1) promote policies and practices to retain at the women; (2) create processes to obtain feedback from employees and their assessment of gender issues in the workplace; (3) offer formal and/or informal networking opportunities, client development opportunities, and mentoring programs to women attorneys; (4) identify and promote opportunities for women attorneys at all levels to participate in challenging projects, leadership committees, practice groups, and management training to help enable women to assume significant management roles within their firms; and (5) embrace the concept of part-time attorneys and flexible work schedules.

If your firm or legal department would like to like to review or sign the Gender Fairness Commitment Statement, please contact Tara Shockley at the Houston Bar Association, 713-759-1133 or taras@hba. org.

Anna Archer is an attorney with the U.S. District Court for the Southern District of Texas and Courtney Ervin practices with Andrews Kurth LLP. They are members of the HBA Gender Fairness Committee.

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Pro Bono in Houston...

Rebuilds Families…Helps Veterans . . .Provides Peace of Mind for Seniors

Equal Access Champions

The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has signed a five-year commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. For more information contact Kay Sim at (713) 759-1133.

Large Firm Champions Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski LLP Locke Lord LLP Vinson & Elkins LLP

Small Firm Champions

Corporate Champions

Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips Exxon Mobil Corporation Halliburton LyondellBasell Marathon Oil Company Shell Oil Company

Intermediate Firm Champions Gardere Wynne Sewell LLP Haynes and Boone, L.L.P. King & Spalding LLP

Mid-Size Firm Champions

Adams & Reese LLP Akin Gump Strauss Hauer & Feld LLP Baker & Hostetler LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain, Hrdlicka, White, Williams & Aughtry Greenberg Traurig, LLP Jackson Walker L.L.P. Jones Day Looper Reed & McGraw, P.C. 40

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Morgan, Lewis & Bockius LLP Porter Hedges LLP Strasburger & Price, L.L.P. Susman Godfrey LLP Weil, Gotshal & Manges LLP Winstead PC

thehoustonlawyer.com

Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Beck | Redden LLP Gibbs & Bruns LLP Hays, McConn, Rice & Pickering, P.C. Hughes Watters Askanase LLP Johnson DeLuca Kurisky & Gould, P.C. Kroger | Burrus McGuireWoods LLP Schwartz, Junell, Greenberg & Oathout, L.L.P Sidley Austin LLP Sutherland Asbill & Brennan LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Yetter Coleman LLP

Boutique Firm Champions

Blank Rome LLP Coane & Associates Connelly • Baker • Wotring LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Hicks Thomas LLP Jenkins & Kamin, L.L.P. Ogden, Gibson, Broocks, Longoria & Hall, L.L.P. Squire Sanders LLP

Sutton McAughan Deaver LLP Strong Pipkin Bissell & Ledyard, L.L.P. Wilson, Cribbs & Goren, P.C.

Solo Champions

Peter J. Bennett Law Office of J. Thomas Black, P.C. Law Office of Robbie Gail Charette Chaumette, PLLC Law Office of Papa M. Dieye The Ericksen Law Firm Flowers & Frankfort Frye, Steidley, Oaks & Benavidez, PLLC Fuqua & Associates, P.C. Terry L. Hart Hunton & Williams LLP Law Office of James and Stagg, PLLC Katine & Nechman L.L.P. The Keaton Law Firm, PLLC KimLy Law Firm PLLC Gregory S. Lindley Law Office of Maria S. Lowry Martin R.G. Marasigan Law Offices The Law Office of Evangeline Mitchell, PLLC Bertrand C. Moser Law Office of Brent C. Perry, P.C. Pilgrim Law Office Robert E. Price Cindi L. Robison Scardino & Fazel Shortt & Nguyen, P.C. Jeff Skarda Tindall & England, P.C. Diane C. Treich Norma Levine Trusch

Houston Lawyers Who Made a Difference

Barbara Jordan

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By Hon. Mark Davidson

he 1950s and 1960s were difficult times for women lawyers and African-American lawyers to make a difference in the profession or in society. At the time Barbara Jordan became a lawyer, she was not allowed to use the Harris County Law Library or even join the Houston Bar Association. Notwithstanding those challenges, she made her mark on our community.

After passing the Texas Bar Exam in 1959, her practice centered on meeting the legal needs of the congregation of her church, the New Hope Missionary Baptist Church. Although she became a very good lawyer, she decided that she loved politics more and was elected to the Texas Senate in 1966.

In 1969, she sponsored legislation that others had tried and failed to pass. Using her skills as an orator and her quickly evolving ability at negotiation, she authored legislation enacting a minimum wage for Texas workers of $1.25 an hour. She knew from her clients’ cases that injured Texas workers received

one of the lowest workers’ compensation benefits in the nation.

She sponsored a bill that raised the workers’ compensation benefit from $35 to $49 dollars a week, and the death benefit for the widows of workers killed in industrial accidents. Both bills passed. In a Texas Senate that consisted of Barbara Jordan and thirty older males, she quickly made a mark as a legislative force to be reckoned with.

She is best known for her career in the United States House of Representatives and, more particularly, her role on the House Judiciary Committee’s hearings on the impeachment of President Richard M. Nixon. Refusing to act or speak as a partisan, she listened to the evidence without comment, unlike most of the

breathtaking 360⁰ views memorable meetings & events the43rd.com

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other committee members from both parties. When she did speak, her comments were an eloquent and succinct summary of the record and American Constitutional history. Even those who supported Nixon praised her performance.

As singular proof of the difference she made, Barbara Jordan is the only Houston lawyer who has ever been commemorated with a United States Postal System stamp in her honor.

In each step of her quick rise from a neighborhood lawyer to a legislative technician to a national level orator, she excelled. In each role, she made a difference for those she represented and for all of the people of Texas.

The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on the law, the legal profession and those served by the law.

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A Profile

in pro f e s s io n a l i s m

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Farrah Martinez Legislative Affairs Director, Office of Harris County District Clerk

The Houston Lawyer

o whom much is given, much is required.”

There is no right to practice law.

It is a privilege that is accompanied by a great deal of ethical and professional responsibility. It is likened to the biblical scripture “to whom much is given, much is required.”

Indeed, every day much is required. Lawyers face a great deal of temptation to pursue any action necessary to triumph over the legal obstacles and gain the approval of valued clients, colleagues and most of all establish a reputation as trusted counselor. While not all attorneys travel to court, we all at some point in our careers face the difficult and often challenging

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task of advising clients and solving problems in an efficient yet ethical manner.

Courage is paramount. Occasions arise when clients will test our ethical standards and like children— they want their way even when it is not in their best interest. As lawyers we have to maintain patience, establish boundaries and learn to say “no” over and over again while consistently educating our clients until the message is clear. Hopefully, the client chooses to listen but the choice is theirs to make.

No matter the outcome, I believe that when we are true to the ethical and professional standards governing the Bar our reputations will precede us and so will the display of endless opportunity.

COMMITTEE SPOTLIGHT

AIDS Outreach Committee:

May We Never Forget

By The Hon. Jeff Work

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In the spring, the committee typically he AIDS Outreach Committional program sponsored by the comjoins the Houston Volunteer Lawyer’s tee was created during the mittee was in 2010 when it teamed up AIDS unit to participate in the AIDS 1996-1997 bar year to prowith the Montrose Counseling Center to Walk. The money they raise is donated vide legal education and serpresent, “What you need to know about vices to people fighting discrimination, obliving with HIV/AIDS. The taining benefits, and protectCenter for Disease Control ing your decisions.” The preestimates that the number of sentation was geared towards people living with HIV/AIDS persons living with HIV/ in the United States is 1.2 AIDS, their attorneys, healthmillion. Although diagnosis, care providers, family memtreatment and mortality rates bers, partners, and friends. have improved since the first The committee is exploring reported case in 1981, in the once again offering an educaU.S. alone, there are still aptional component this year. proximately 50,000 new HIV At the helm of the 12-perinfections each year. For son AIDS Outreach Comthose afflicted, AIDS has bemittee are co-chairs, Danicome the forgotten epidemic, ella Landers, with Sutherland often leaving them feeling Asbill & Brennan LLP, and isolated, alone and abanKathryn Gottlieb, with Seydoned by society.

Seyfarth Shaw was one of 65 Houston firms and legal departments that farth Shaw LLP. Both womFor 17 years, the HBA participated in the AIDS Outreach Committee Adopt a Family Project en encourage you to become AIDS Outreach Committee during the last holiday season. involved with the committo the AIDS Foundation. The commithas been working to reduce that sense tee, whether as a member or as a donor tee also provides an Easter lunch for the of abandonment among the HIV/AIDS to the holiday project. If you would like residents of the Bering Omega House, a victims in Houston. The HBA AIDS Outmore information about participating local AIDS hospice. Bering Omega House reach Committee’s signature project is in the holiday project, please contact is a small, eight bed residential facility for called the “Holiday Adopt a Family ProjClaire Nelson at 713-759-1133 or clairen people in the late stages of HIV/AIDS. The ect.” This project asks local law firms @hba.org by September 20, 2013. residents of Omega House are also “adto “adopt” a needy family or individual opted” during the committee’s holiday affected by HIV/AIDS during the holiThe Hon. Jeff Work is a former state project. day season. In 2012, 65 Houston firms district court judge. He practices comIn past years, the committee has particprovided gifts for 57 families, which mercial and personal injury litigation as ipated in and co-sponsored legal clinics was a record setting year. The commitwell as serving as mediator and arbitrator and presentations within the community tee worked with ten local social services through Work Law Firm. He also serves as on various topics relevant to individuals agencies to fill the wish lists for these “Of Counsel” with Karczewski|Bradshaw dealing with HIV/AIDS. The last educafamilies.

L.L.P., primarily a school law firm. thehoustonlawyer.com

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OFF THE RECORD

Judge Mike Wood:

Volunteering for the Line of Duty

By Jeffrey L. Oldham

The Houston Lawyer

A

to volunteer firefighting. s a young boy, Judge Mike Wood was fascinated

By September 2004, Judge Wood was riding at several fire stawith fire engines and firefighters. He went with his tions around Houston. At first he would do half-day shifts followmother to the local library, which was near a fire ing work. He switched to spending a full shift on Saturdays— station, and would quickly pick out his books so from 6:00 a.m. Saturday until 6:30 a.m. Sunday—when he found that he had more time to look at the fire trucks and it was a better way to get to know wander around the fire station. Later the full-time firefighters. In 2007, in life, he listened to radio scanners the 100 Club named Judge Wood following nearby fires, even memothe Houston Volunteer Fire Departrizing the unique tones that would ment’s Firefighter of the Year. Today, indicate calls to stations near his Judge Wood says he rides nearly evhouse. He loved firefighting, and ery Saturday with the District Chief dreamed of doing it himself. or Safety Officer at four fire stations.

Judge Wood is now living that Judge Wood’s passion and excitedream. By day, he has served as Judge ment for firefighting are evident of Harris County Probate Court No. when talking with him about the 2 since August 1993. For the past subject. He tells stories, filled with decade, he has spent his Saturdays vivid details, about going into burnworking as a volunteer firefighter ing buildings and the few times he at fire stations around Houston, responding to whatever calls come Judge Mike Wood presides over Harris County Probate has felt truly at risk. In his chamin—from calls for medical help or Court No. 2 during the week, but devotes most of his week- bers, pictures are displayed of him and fellow firefighters undergoing small kitchen fires, to four-alarm end to volunteering as a firefighter. training exercises at the Drayton Fire Field outside College Stablazes. He has served alongside the full-time Houston firefighttion, where he fought staged oil tank fires and performed drills ers as “the fifth member of the crew,” but now primarily rides on a 35-foot ladder. with District Chiefs in responding to fires, or with Safety Officers When asked about the dangers of firefighting, as demonstrated who respond to large fires or whenever a firefighter is injured by the tragic loss of four heroes last May, Judge Wood responds or is involved in an accident. Judge Wood estimates that he has that he knows it is dangerous, but that the best he can do is to volunteered over 1,000 hours per year as a firefighter since 2006. know what he’s doing and to be mindful of the situation and his He became involved with volunteer firefighting in January training. He says his family (including former Judge Sharolyn 2003, around the time his children went off to college, when he Wood) is very supportive, and that he loves firefighting because learned about the Houston Volunteer Fire Department. Judge it’s “exciting” and because of the brotherhood in the fire departWood explains that he was introduced by a mutual friend to Jay ment. According to Judge Wood, he’s not a judge out there; he’s Evans, the Chief of the Houston volunteer department, and he just a fireman. talks vividly about going that day with Chief Evans in response to a call about a four-alarm fire at a flooring materials warehouse.

Judge Wood says he “remembers it like yesterday” and that, of Jeffrey L. Oldham is a partner at Bracewell & Giuliani LLP his first up-close look at fighting a fire, he “loved it.” He soon and is board certified in Civil Appellate Law. He is a member of obtained the required “Level 1” certification and was on his way The Houston Lawyer editorial board.

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LEGAL TRENDS

It’s a New Day, Time, and Place in Texas!

By Julie Barry

O

ur Texas legislators were hard at work during the 83rd Regular Legislative Session, creating several new days and capitals for the State of Texas. Gregg County is now the “Balloon Race Capital of Texas” [HB 23]; Nacogdoches is the official “Garden Capital” [HCR 24]; Jewett is now the “Sculpture Capital of Texas” [HCR 41]; and Grand Prairie is the “Purple Martin Conservation Capital of Texas” [HCR 54]. Several of the approved bills involved the creation of new honorary days. For example, HB 419 moves the “Texas Arbor Day” to the first Friday in November. Prior to this bill, Texas had observed the last Friday in April for that purpose. However, it was argued that it is best to plant trees in early winter so that they have optimal time to strengthen before summer, and so the date was moved accordingly. HB 174 designates the last Friday in September as “American Indian Heritage Day” in Texas, in recognition of the historic, cultural, and social contributions American Indians have made to Texas. But my all-time favorite new day has been created under HCR 36, which designates February 16 as “Texas Homemade Pie Day.” Creation of the Texas Uniform Trade Secrets Act SB 953 creates a new “Uniform Texas Trade Secrets Act” by adding Chapter 134A to the Civil Practice and Remedies Code. Texas follows suit with a majority of the other states in adopting a slightly

modified version of the Uniform Trade Secrets Act, which establishes a framework for litigating “trade secret” matters.

Euthanizing Animals SB 360 prohibits animal shelters from using carbon monoxide gas chambers to euthanize dogs and cats. The new law is in line with the nationwide trend, which views carbon monoxide gas chambers as cruel, expensive and unsafe to workers.

Under the new law only sodium pentobarbital may be used in such procedures.

Changes to the Business Organizations Code Senator John Carona authored two bills that amend the Business Organizations Code. SB 847 seeks to resolve certain ambiguities in the law with respect to partnerships and limited liability companies. In one regard, the bill seeks to add some clarity to the laws governing series of a limited liability company, which operate as independent divisions of the LLC. SB 847 clarifies that a series is not an independent entity but has the power to buy and sell assets and has the authority to conduct its business purpose. In another respect, the bill adds much-needed simplification to the filing of a restated certificate of formation by removing the requirement that the restated certificate identify by reference and description each added, altered or deleted provision from the prior filing. The bill also clarifies that partnership agreements and LLC operating agreements can extend rights to third parties not privy to the agreements. Senator Carona also authored SB 849, which amends the Business Organizations Code to authorize for-profit corporations to include “social purposes” in their charters.

This change allows for-profit officers and directors to make decisions for the corporation based on a stated social purpose without violating their duty to shareholders to maximize profits.

Veteran Affairs During the 83rd Regular Legislative Session, several bills benefiting veterans were passed and signed into law by the Governor. HB 87 grants a partial property tax exemption to veterans who are less than 100% disabled and have had a homestead donated to them by a charitable organization. Tax Code, Sec. 11.131 already provides a tax exemption for 100% of the appraised value of a veteran’s homestead if the veteran is 100% disabled. The new bill provides for a partial exemption for partial disabilities. The percentage of exemption would be equal to the percentage of the veteran’s disability rating. The new law is narrowly tailored to allow only veterans who become disabled during military service to claim the exemption and receive their homestead from a charitable organization. The exemption, once allowed, remains until the property changes ownership, and may be claimed by the veteran’s spouse after the death of the veteran, so long as the spouse remains in the residence. In analyzing the fiscal impact of HB 87, the Legislative Budget Board found no data available as to the number of homes that are typically donated to partially-disabled veterans. It did find evidence, however, that most veterans who receive homes are 100% disabled. Accordingly, it determined no significant fiscal impact would result from the passage of the bill.

SB 163 grants a total property tax exemption to the surviving spouse of a member of the armed forces killed in action for the total appraised value of the property that constituted the couple’s homestead residence at the time of death.

This exemption would remain with respect to the homestead and could be transferred and claimed by the surviving spouse to any new homestead for so long as the surviving spouse does not remarry.

The fiscal note relating to the bill reported that the negative fiscal impact on the State’s revenues would be approximately thehoustonlawyer.com

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The Houston Lawyer

LEGAL TRENDS

$94,000 for fiscal year 2014-2015, rising to approximately $425,000 in fiscal year 2016-2017. Opponents of the bill pointed to this negative fiscal impact as well as the potential disincentive for a surviving spouse to remarry. Nevertheless, proponents of the bill prevailed. As all property tax exemptions must be authorized by the Texas Constitution, formal enactment of SB 163 is contingent upon voter approval of an amendment to the Constitution.

SB 1476 added a new Section 434.022 to the Government Code for the purpose of requiring the Texas Veterans Commission (TVC) to establish and implement a Veteran Entrepreneur Program. The goal of the program is to assist veteran entrepreneurs and business owners by educating them on the state and federal services available to them, providing seminars and workshops, advocating for them through legislative initiatives and providing increased public awareness. Opponents of the bill argued that the program is an unnecessary waste of taxpayer dollars since some assistance is already available through federal programs. According to the Legislative Budget Board, the program would have an estimated negative fiscal impact of approximately $437,118 during the first year of the programs implementation. Proponents of the bill, however, successfully argued that assisting veterans in creating and expanding their businesses would ultimately generate more tax revenues for the State.

HB 1514 affords World War II veterans possessing veteran specialty license plates with greater parking privileges. Current law already provides certain veterans and military award recipients who possess specialty license plates with certain exemptions from paying parking meter fees. HB 1514 extends those privileges to World War II veterans.

Julie Barry dedicates her practice to commercial transactional matters. She is an associate editor for The Houston Lawyer.

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The Texas Supreme Court Holds That Plaintiffs’ Nonsuit Tolls the 120-day Expert Report Requirement in Medical Malpractice Cases

By Chance McMillan

O

n June 21, 2013, the Texas Supreme Court delivered CHCA Woman’s Hospital, L.P. v. Lidji, 2013 WL 3119577 (Tex. June 21, 2013). The issue was whether a plaintiff’s nonsuit of a health care liability claim tolls the 120-day expert report deadline in medical malpractice cases. The Court was faced with conflicting opinions from the First Court of Appeals and the Third Court of Appeals on this issue.1 Ultimately, the Court ruled in favor of the plaintiffs, holding that a nonsuit in fact tolls the 120-day expert report requirement.

On April 2, 2009, Scott and Angela Lidji filed a health care liability suit on behalf of their daughter, claiming that she suffered permanent neurological damage as a result of the care provided by The Woman’s Hospital of Texas during childbirth. On July 27, 2009, 116 days after filing their original petition, plaintiffs nonsuited their claim without providing defendant with an expert report. Approximately

two years later, plaintiffs refiled the same claim, serving defendant with an expert report on the day the petition was filed.

Under Chapter 74 of the Civil Practice and Remedies Code, also known as the Texas Medical Liability Act, a party must serve each defendant with an expert report within 120 days after filing suit.2 Failure to serve the report results in a nonsuit with prejudice.3 In CHCA Woman’s Hospital L.P., the defendant objected to the plaintiffs’ expert report as untimely, arguing that plaintiffs were required to serve the report by July 31, 2009 (i.e. 120 days after plaintiffs filed their first petition). Plaintiffs, by contrast, contended that their nonsuit tolled the expert report deadline and that by serving the report with the second petition they complied with Chapter 74.

The trial court overruled defendant’s objection and denied its motion to dismiss. The court of appeals affirmed and defendant sought interlocutory review by the Texas Supreme Court. Arguments were heard on February 5, 2013, and Justice Lehrmann delivered the opinion of the Court.

Specifically, Chapter 74 does not address the tolling of the expert-report period in the event of a nonsuit. The Court considered a party’s right to nonsuit a case under Texas law and the legislative intent behind the Act, whose aim was to decrease the cost of medical claims and stop frivolous lawsuits. The Court opined that tolling the 120-day expert report requirement was not against the legislative intent behind the Act and that allowing the tolling would protect a claimant’s absolute right to nonsuit a case. The Texas Supreme Court affirmed the decision of the appellate court.

In light of CHCA Woman’s Hospital L.P., a plaintiff has a total of 120-days to serve a defendant with the expert report.4 The 120 days start accumulating once the lawsuit is filed; the clock stops when a plainContinued on page 49

Media Reviews

The Texas Supreme Court: A Narrative History, 1836-1986

By James L. Haley Texas Supreme Court Historical Society, 2013 Reviewed by Chance McMillan

T

he Texas Supreme Court: A Narrative History, 1836-1986 is a good read for the history buff turned lawyer. It is the first book-length history of the Court published since 1917. As the name entails, the book chronicles the evolution of the Texas Supreme Court from its origins in the Republic of Texas to the upheavals of the mid-1980s. It discusses the challenges and moral stamina faced by those who served the Court during the turbulent 150 year period. Rather than being bogged down in legal drudgery, James Haley wrote his book to read less like a textbook and more like a novel.

This story starts prior to Texas joining the Union. The author leads the reader through the historical background and concentrates on Queen Isabella of Castile’s contribution to the discovery of the New World. Readers also learn about Alvar Nunez Cabeza de Vaca’s tribulations upon first setting foot on the territory that later became the State of Texas and how Spanish jurisprudence would come to have significant implications for Texas’ most basic legal features.

Throughout the entire book, the reader is introduced to famous Texans or individuals whose names are historically recognized with early Texas. For example, in Chapter One we meet Stephen

F. Austin and Thomas Jefferson Chambers, who is the name sake for Chambers County, Texas. In Chapter Two, aptly titled “Good Intentions, Fitful Beginnings,” the author tells of the early Texas judiciary with the likes of David G. Burnet, Mirabeau B. Lamar, and Sam Houston wielding executive authority, and the district judges whose accomplishments in the face of overwhelming adversity is mind-boggling. “A Functioning Judiciary,” Chapter Three discusses what came to be known as the traveling judge, whereby each district judge traveled in a circuit to hold court in the various counties of his jurisdiction twice a year.

Later in 1846, Texas surrendered its sovereignty and became part of the United States; thus, the Republic of Texas was no more. In Chapter Five, “The Antebellum Court,” cases dealing with the homestead exemption, the status of women before the law, and slaves and slavery demanded much consideration from the judiciary. And so it goes, through “The Civil War Court,” “The Reconstruction Courts,” “The Redeemer Court,” “The Capital Court and the Public Lands,” “The Capital Court and the Gilded Age,” “The Consensus Court,” “The Wrench in the Gears,” “The Cureton Court,” “The Wartime Court,” “The Fifties Court,” “The Calvert Court,” and “The Court in Flux,” which are the titles of chapters 6-17, respectfully.

Appendix A is a

detailed chronology of milestones in the Texas Supreme Court’s history, and Appendix B is a list with appointment and election dates of the more than 150 justices who have served on the Court since 1836.

The Texas Supreme Court: A Narrative History, 1836-1986 is a good read for anyone interested in Texas law or Texas history. In the book, there is no way to really discern the two. Legal theory is discussed and cases are cited, but the author does not bore or bog down his reader with legal jargon. It is an interesting story about historic people and how the ruling of Texas’ highest court helped create our state’s unique heritage.

Chance A. McMillan is an associate with Thomas N. Thurlow & Associates. His practice is dedicated to personal injury and civil litigation. He is a member of The Houston Lawyer editorial board.

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from the editor From page 8

The 64Th AnnuAl hArvesT CelebrATion Monday, November 18, 2013 7 p.m. - 10 p.m.

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Benefiting the Houston Bar Foundation.

100% of net proceeds raised for the Harvest Celebration directly benefit pro bono efforts in our community through the Houston Bar Foundation. underwrite the harvest Celebration.

Pledge form and ticket order form available at www.hba.org. the

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order to arrest the dinosaur. Then there was a separate federal criminal case against the smuggler. I supported the federal cases by providing expert paleontological and Mongolian legal testimony, and interfacing with the Mongolian government.

All of the cases were resolved in less than a year. A federal judge ordered the Tyrannosaurus to be returned to Mongolia.

The smuggler pled guilty to three felonies.

By May 2013, the dinosaur was back home in Ulaanbaatar, Mongolia in a temporary museum on the main square. In the first month, over 250,000 people visited the Tyrannosaurus.

The moral of the story: as attorneys, we never know what type of matter we will get asked to handle. It’s advantageous to stay generally informed about areas of the law outside our day-to-day practices.

Each year, The Houston Lawyer devotes one issue to general topics. In this issue, you will enjoy Judge Dan Hinde’s article about trial objections, Judge Randy Wilson’s discussion of Harris County civil litigation trends, an idea for reorganizing the Houston appellate courts by Ray Blackwood and an update on trade secrets law by Greg Porter.

Editor’s note: In the May-June Off the Record, the website for the Supreme Court Fantasy League was listed two different ways.

The correct site is fantasyscotus.net.

LEGAL TRENDS From page 46

tiff nonsuits, and resumes running when the lawsuit is refiled. In the CHCA Woman’s Hospital case, plaintiffs nonsuited the defendant after 116 days had passed. When they refiled, they served defendants with the expert report on the day the petition was filed. Thus, due to the tolling of the 120-day requirement, in effect, plaintiffs served the defendant with the expert report on 117th day and complied with section 74.351 of the Texas Civil Practice and Remedies Code.

Chance McMillan is an associate with Thomas N. Thurlow & Associates in Houston, Texas. His practice is dedicated to personal injury and civil litigation. He is a member of the The Houston Lawyer editorial board.

Endnotes 1.

For classifieds ads please contact:

Mary Chavoustie

mary@quantumsur.com

281.955.2449 ext.13

2.

3.

4.

See, CHCA Woman’s Hospital, L.P. d/b/a The Woman’s Hospital of Texas, Inc. v. Scott Lidji and Angela Lidji, 369 S.W.3d 488 (Tex. App.—Houston [1st Dist.] 2012), aff’d, 2013 WL 3119577 (Tex. 2013); See also, Estate of Allen v. Scott & White Clinic, No. 03-08-00576-CV, 2011 WL 2993259 (Tex. App.—Austin July 22, 2011, no pet.) (mem. op.)

TEX. CIV. PRAC. & REM. CODE § 74.351(a).

TEX. CIV. PRAC. & REM. CODE § 74.351(b)(2).

TEX. CIV. PRAC. & REM. CODE § 74.351(a).

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