A COVID-19 Roundtable Discussion Navigating the Pandemic: An Employee’s Guide in Uncharted Waters COVID-19 Business Interruption Insurance Basics How Technology Has Moved Into the Estate Planning and Probate Practice A Family Law Perspective on the Pandemic
lawyer
THE HOUSTON
inside...
Volume 58 – Number 1
July/August 2020
Bill Kroger 2020-2021 President Houston Bar Association
thehoustonlawyer.com
July/August 2020
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contents July/August 2020
Volume 58 Number 1
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FEATURES COVID-19 Roundtable 10 ADiscussion the Pandemic: 18 Navigating An Employee’s Guide in Uncharted Waters
By G. Scott Fiddler and Brooke Leondar
Business Interruption 20 COVID-19 Insurance Basics By David H. Brown
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Technology Has Moved 24 How Into the Estate Planning and Probate Practice
By Amber A. Homolka
in the Time of Corona: A 28 Love Family Law Perspective on the Pandemic
By Kate McConnico and Anietie Akpan
Covid-19 Impacted 31 How My Law Practice
Compiled by Anietie Akpan and Braden Riley
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for Engagement: 32 AAnYear Interview with
The Houston Lawyer
HBA President Bill Kroger
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, 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, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, 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. ŠThe Houston Bar Association/QuantumSUR, Inc., 2019. All rights reserved.
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contents July/August 2020
Volume 58 Number 1
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departments Message 6 President’s A Way Forward By Bill Kroger
the Editor 8 From Houston, We Still Have a Problem By Anna M. Archer
Milestones 39 HBA HBA Office Responds to COVID-19
Challenges
By Anna M. Archer THE RECORD 40 OFF Alison Sulentic: Unmasking
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42
a Balance
By Kimberly A. Chojnacki Profile in professionalism 41 AAnne Chandler
Executive Director, Houston Volunteer Lawyers
Organization Spotlight 42 Ancillary Houston Volunteer Lawyers
Transitions to Virtual Clinics to Serve Pro Bono Clients By Randall “Randy” Clark
Spotlight 43 Section Spotlight on the Family Law and
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Corporate Counsel Sections: Meeting the Pandemic with Creativity and Innovation By Trey Holm
trends 44 legal A [Texan] COVID Success Story By Heather M. Bustos
Covid-19’s Impact on Supply Chain By C. Mark Murrah and Jose L. Trevino
Covid-19 and Foreign National Workers in the United States By Sang Shin
reviews 46 Media Legal Writing for the Rewired The Houston Lawyer
Brain: Persuading Readers in a Paperless World
Reviewed by Benjamin K. Sanchez
Court Proceedings Amid the Coronavirus Pandemic
Reviewed by Brooksie B. Boutet
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48 Litigation MarketPlace
Join the HBA 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, government agencies, law schools and corporate legal departments 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, Aziz & Stogner Adair Myers Graves Stevenson PLLC Ajamie LLP Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Campbell & Riggs, PC Carter Morris, LLP Christian Smith & Jewell LLP Cozen O’Connor Crady, Jewett, McCulley & Houren, LLP Crinion Davis Richardson & Langley LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Galligan & Manning Germer PLLC Gibson, Dunn & Crutcher LLP Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Hall Maines Lugrin, P.C. Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP
Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC Kean | Miller LLP Kelly, Sutter & Kendrick, P.C. Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Kroger Burrus Nelson Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Lorance Thompson, P.C. MacIntyre McCulloch & Stanfield, L.L.P. McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Nathan Sommers Jacobs PC Pagel Davis & Hill PC Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Echols, Slay & Nelson-Archer, P.C. Schiffer Hicks Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP
Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Spencer Fane LLP Sponsel Miller Greenberg PLLC Sprott Newsom Quattlebaum & Messenger Strong Pipkin Bissell & Ledyard LLP Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart Boundas Easterby LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Andrews Myers, P.C. Beck Redden LLP Blank Rome LLP BoyarMiller Coats | Rose Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Kane Russell Coleman & Logan PC Liskow & Lewis Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom McDowell & Hetherington LLP Ogletree Deakins Nash Smoak & Stewart, P.C. Yetter Coleman LLP
Firms of 50-99 Attorneys Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy EOG Resources, Inc. MAXXAM, Inc. Occidental Petroleum Corporation Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies 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 1st Court of Appeals 14th Court of Appeals
president’s message By Bill Kroger Baker Botts L.L.P
I
A Way Forward
The Houston Lawyer
have been studying Abraham Lincoln. The United States was pulled apart during the winter of 1861, as a new President was assuming office. On February 22, 1861, at Independence Hall in Philadelphia, Lincoln offered the ideals expressed in the Declaration of Independence as a beacon of hope amidst the darkness. “I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.” Its words were a “promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance.” The promise of “that Declaration giving liberty” gave “hope to the world for all future time.” Lincoln viewed the Civil War as a conflict over the Declaration’s idea of liberty—with “the principle that all men were created equal” hanging in the balance. Lincoln saw divine truth in the surrender of Vicksburg on July 4, 1863, “the birthday of the United States of America.” (Response to Serendade, Washington D.C., July 7, 1863). A few months later, at the Gettysburg cemetery, he began famously: “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” The Civil War was a test of that principle—“whether that nation, or any nation so conceived and so dedicated, can long endure.” Today, we face new struggles. Millions have become sick and thousands have died from a virus heretofore unknown to man. People have protested over a wrongful killing and other social injustices. Many see a country that has lost its way, a society governed by unearned privileges, and a justice system no longer balanced. Others see the Union divided between factions left and right, a media without professional standards, and a citizenry that no longer engages and listens, but rather spits and spites. We can learn from Lincoln. The promise of the Declaration of Independence again lights a path forward in darkness. We will find our way with those “self-evident” truths that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” When we debate how police should protect, governments should lead, media
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should report, and people should act, the answers are found in those foundational expressions of equality and freedom. The battlefield for these values lies in the hearts and minds of every one of us. A strong, active, volunteer bar association can be a powerful advocate for these ideals. Your Houston Bar Association aims to do just that and will rededicate itself to those principles by its actions during this time of crisis. In two months: • We and our sections and committees have become fully staffed and mobilized. • We have found a fine leader, Anne Chandler, to reinvigorate Houston Volunteer Lawyers with fresh ideas and new services for those most in need. • Our LegalLine has answered hundreds of calls from people who need friendly, competent help. • Our Dispute Resolution Center has been conducting virtual mediations for hundreds of eviction disputes. • Our new HBA Emergency Response Committee has been updating response plans for the next natural disaster. • We have been working with the Harris County District Courts on efforts to restart grand and petit juries in Harris County. • We were among the first to speak out against the murder of George Floyd and have been working on a “Justice” edition of The Houston Lawyer and a new implicit bias training program and a diversity conference with the University of Houston Law School. • We have organized major blood drives, with more than 200 HBA donors giving blood. • We have been working on a plan for providing volunteers to help the Houston Food Bank with the distribution of food in Houston to those in need. • We have been partnering with other local bar associations on each other’s projects, coordinating our responses and leverage our resources. And that is only the beginning. Now is the time for engagement. Join us. Get involved. Serve on a committee or join a section. Together we can ensure that the ideals of the Declaration lead the Union through these dark days and to a brighter future.
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from the editor By Anna M. Archer U.S. District Court
Associate Editors
Anietie Akpan METRO
Brooksie Bonvillain Boutet Shipley Snell Montgomery LLP
Kimberly Chojnacki Baker Donelson
Elizabeth Furlow Baker Botts
The Houston Lawyer
Andrew Pearce BoyarMiller
Koby Wilbanks Murrah & Killough
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“I
Houston, We Still Have a Problem
hate COVID-19!” Everyone who has children likely has heard this, and many of us have said it, or even yelled it in frustration ourselves. COVID-19 seems to have taken its slimy little tentacles and touched everything in our lives. I had to cancel a European vacation, I’ve reverted from being an empty nester to having six “adults” living in my house, and I have lost the ability to escape by going to the gym or office. But these problems are so minor compared to what I am witnessing around me. Friends and family members have lost jobs, and some members of our community don’t know where their next meal is coming from; high-risk friends and family members are terrified when they need to go out and somebody coughs nearby; and coworkers have gotten severely ill or passed away. Maybe I kind of hate COVID-19 because I can’t go to Europe and my kids are driving me crazy, but COVID-19 has shown me that I need to count the blessings I have every single day and take nothing for granted. When we started planning this issue in April 2020, we were concerned that some of the topics may no longer be relevant by the time it went to print in August because the virus would have moved on. We were so wrong. The theme of the issue is COVID-19, and the subthemes you will see repeated throughout are (1) COVID-19 is responsible for a whole host of new legal issues; (2) it has forced us to become more technologically savvy; and (3) some of the changes brought about by the virus are here to stay. The main feature of this issue is a condensed transcript of a Roundtable discussion held on May 26, 2020, and moderated by HBA President Bill Kroger. It focuses on how COVID-19 has impacted the Houston legal market and Houston lawyers. Each of the nine outstanding panelists added something interesting and helpful. You can read the full transcript on our website, and I encourage you to do so. The feature articles focus on specific practice areas that have been impacted by COVID-19, including employment law, probate, insurance, and family law. In addition to educating us on important legal changes, several of the authors remind us to look out for each other during this thehoustonlawyer.com
challenging time. The Legal Trends, Media Reviews, Section and Committee Spotlights, and Off the Record columns are also all about how the virus has impacted our community. Finally, we have included a new column just for this bar year to celebrate the HBA’s 150th anniversary called “HBA Milestones.” This month the Milestone focuses on the HBA’s response to the COVID-19 crisis. In addition to all of the incredibly helpful articles and columns in this issue, I am proud to announce that readers who want to learn more can now listen to our new podcast: “Behind the Lines: The Houston Lawyer Podcast.” The topic of each podcast will correspond to the theme of the current issue of The Houston Lawyer, but the podcast will delve more deeply into the issues or broaden the themes. The inaugural episode continues the COVID-19 theme and has two segments: (1) the impact of COVID-19 on our juvenile justice system; and (2) Intellectual Property issues associated with the virus now and in the future. The podcast will launch during the month of August and you will be able to find a link at www.hba.org/thehoustonlawyer. I am honored to be the Editor in Chief of The Houston Lawyer and have the opportunity to play a role in educating and informing our community as we face a multitude of challenging issues this year. I would like to thank Taunya Painter, last year’s Editor in Chief, for being a great mentor and teacher. I also want to thank the guest editors of this issue, Carly Milner and Ryan Kinder, for their hard work and creativity. All of the editors of The Houston Lawyer have gracefully adapted to the challenges COVID-19 has presented, and their dedication makes working on this journal interesting and fun. Finally, congratulations to the new Associate Editors of The Houston Lawyer: Anietie Akpan – Articles; Koby Wilbanks – Legal Trends; Kimberly Chojnacki – Section and Committee Spotlights; Andrew Pearce – Media Reviews; and Liz Furlow – Off the Record. And congratulations to Brooksie Boutet, the Podcast Editor and voice of “Behind the Lines, The Houston Lawyer Podcast.”
BOARD OF DIRECTORS President
Secretary
President-Elect
Treasurer
First Vice President
Past President
Bill Kroger
Daniella D. Landers
Jennifer A. Hasley
Chris Popov
David Harrell
Benny Agosto, Jr.
Second Vice President
Diana Gomez
DIRECTORS (2019-2021)
Collin Cox Pamela Medina
Greg Moore Greg Ulmer
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HBA office staff Executive Director Mindy G. Davidson Associate Executive Director Tara Shockley Finance Director Michael J. Nicknish, C.P.A. Director of Education Ashley G. Steininger Public Information Liaison & Education Assistant Christina Treviño Director of Projects Bonnie Simmons Projects Assistant Amanda McLeroy Communications Assistant / Web Manager Carly Wood Communications Assistant / Public Relations Francesca Rainosek Director of Membership and Technology Services Ron Riojas Membership Assistant Danielle Keith Database Assistant Leo Skelly
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Bill Kroger
O
A COVID-19 Roundtable Discussion
n May 26, 2020, The Houston Lawyer held a Roundtable Discussion via GoToMeeting to address issues the Houston legal community has faced relating to the COVID-19 pandemic as well as issues that we will continue to face in the coming year.1 HBA President Bill Kroger, who is a partner at Baker Botts LLP and whose practice focuses on energy law, moderated the discussion. The transcript below has been substantially condensed due to space constraints in the print version of the journal.2 The full transcript, along with additional resources, can be found at hba.org/thehoustonlawyer.
PANELISTS Stephen A. Barnes, M.D., J.D., F.A.C.L.M. Dr. Steve Barnes is the founding partner of Barnes & Associates. His practice focuses on health care law and representing plaintiffs in medical malpractice lawsuits including catastrophic neurological and birth injury cases. He is both a board-certified general surgeon/surgical oncologist and a licensed attorney practicing in Texas, New Mexico, and Montana. Zenobia Bivens Zenobia Harris Bivens is a member at Frost Brown Todd LLP. Her practice focuses on business litigation and all things related to U.S. government contracts, including white collar criminal defense and compliance. Zenobia serves as an adjunct professor for the University of Houston Law Center Trial Advocacy Program and frequently writes and speaks on the procedural issues that arise in parallel proceedings—cases involving both civil and criminal allegations. Keri Brown Keri Brown is a partner at Baker Botts L.L.P., where she specializes in transfer tax controversy and fiduciary litigation. A longtime volunteer and supporter of pro bono, Keri is the firmwide partner-incharge of Corporate Social Responsibility at Baker Botts, in addition to serving as the chair-elect of the board of Houston Volunteer Lawyers. Hon. Andrew Edison Judge Andrew Edison is a United States Magistrate Judge for the Southern District of Texas—Galveston Division. Prior to taking the bench in 2018, Judge Edison was a highly respected trial lawyer. He lectures frequently at various continuing legal education seminars and serves as an adjunct professor at the University of Houston Law Center, teaching Remedies and Trial Advocacy. 10
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Hon. Mike Engelhart
Mike Engelhart has been the judge of the 151st Civil District Court since January 1, 2009. He is Board Certified in Personal Injury Trial law. In 2019, he received the President’s Award from the Houston Bar Association for his work as co-chair of the 2019 Civil/Appellate Bench Bar Conference.
Justine Fanarof
The founding member of Fanarof Law, Justine Fanarof has taught yoga and mindfulness since 2004. She is also a practicing lawyer with a Masters in Public Health. Aligned with the mission and vision of the American Bar Association’s Wellness Pledge, Justine partners with law firms to reduce stress and improve well-being through corporate wellness programs, including her signature, research-based yoga and meditation program Mindful Law Firm™.
Grace Ho
Grace Ho is senior counsel at Chevron, where she focuses on employment law and investigations. She has served on the HBA Diversity and Inclusion Committee, as the Secretary of the International Law Section of the State Bar of Texas, and as VP of Membership of the Asian American Bar Association of Houston.
Wayne Kitchens
Wayne Kitchens has been practicing bankruptcy and insolvency law for over 35 years. He has represented creditors, debtors, chapter 7 and 11 trustees, and committees. His practice emphasizes asset sales and purchases, preference and fraudulent transfer prosecution and defense, bankruptcy claims litigation, lender representation, and serving entrepreneurs and small to mid-size businesses. He is certified by the Texas Board of Legal Specialization in Business Bankruptcy Law, and is co-managing partner of the Houston law firm Hughes Watters Askanase, LLP.
Joshua Pherigo
Joshua Pherigo is director of Data Analytics at the Greater Houston Partnership, where he monitors Houston’s economic and demographic trends with a focus on digital innovation, trade, and employment. He holds a Master of Science degree in Analytics from Texas A&M University and a Bachelor’s in Journalism from the University of North Texas.
B
TRANSCRIPT
ill Kroger: We want to kick off this first edition of The Houston Lawyer for the new bar term by setting the table on where we are and what we’ve been through, and help readers understand, to the extent we can, where we’re going and what we need to do in the months ahead. We also believe this conversation will be helpful to people who look back at this edition many years from now so they can better appreciate what we’ve been experiencing.
THE ECONOMIC SITUATION Bill Kroger: I want to start off with Joshua Pherigo with the Greater Houston Partnership Research Team. Joshua, can you help us look at the big picture for the City of Houston? What does this downturn mean for the city? Josh Pherigo: We are in a period that is going to change a
lot about the economy of Houston, probably for the foreseeable future. In January, at the annual meeting of the Greater Houston partnership, Bobby Tudor, the board chair of the Partnership, spoke about the nature of the energy industry and its function as a driver of Houston’s economy over the past 25 years, and how it is not going to be the same as a driver of the economy in the next 25 years. We can’t depend on the energy industry to continue to drive Houston’s economy, and that’s something that’s being magnified by the COVID-19 crisis right now. As of late April 2020, over 380,000 insurance claims for unemployment have been filed in the Houston region, and it’s expected to be well over 400,000 claims by the end of May. It has already surpassed the claims we had during the Great Recession and with the oil bust of the 1980s. This is unprecedented in Houston. Over the past few years, jobs that have been driven by population growth, like restaurants and health care, have helped the Houston economy come out of downturns. We can’t depend on those to help drive growth now because those are some of those industries that have been most affected during this downturn. We need to look at diversifying the economy by considering opportunities like renewable energies and trying to transition some of the energy sector into new opportunities with power generation. We should also try to harness the intellectual capital that we have at Texas Medical Center by turning it more towards innovation like gene and cell therapy. Additionally, manufacturing and things like that are all potential ways that the economy can pivot in the next few years.
GENERAL IMPACT ON THE COURT SYSTEM Bill Kroger: There is a lot of interest in how the courts have
adapted to this environment. Judge Edison and Judge Engelhart, how do you see the judicial system unfolding in terms of how it conducts court proceedings and what do you see as the demands on the court system in the coming months?
Hon. Andrew Edison: This is uncharted territory. Judges are used to being in the courtroom, and we work hard to make sure that the justice system operates smoothly and efficiently. I have been incredibly impressed by not only the judges, but by how the court staff and everyone has adapted to conducting proceedings, both criminal proceedings and civil, remotely, whether using teleconferencing, video conferencing, or some other platform. We’re really trying to continue to move justice along even though, in many cases, the courthouses have been closed. Prior to the pandemic, most proceedings and all criminal proceedings were handled in person. The CARES Act (the Coronavirus, Aid Relief and Economic Security Act), which was passed in March, allowed the courts to use video conferencing and audio conferencing, where possible, in virtually all criminal pretrial hearings.3 Sentencing and felony pleas are now being done by video conferencing. And even some judges have moved to conduct bench trials by video conference. Hon. Mike Engelhart: The experience from the state-court perspective has been remarkable. Many moving parts have come together quickly to keep our dockets moving. In the beginning, there was a lot of pushback about the idea of conducting depositions remotely. Judges and lawyers around the state worked quickly to create form orders that would eliminate or at least greatly reduce motions to quash remote depositions. Our court implemented a standing order, and I think that procedure quickly grew around the state. One of the things that we needed early on were orders that allowed judges to conduct our hearings remotely. Under the law we needed to be in the county seat, which is typically at the courthouse, to conduct court proceedings. Through the Texas Supreme Court’s various orders, our local regional administrative judge was able to approve conducting proceedings from their judges’ homes via Zoom or similar platforms. thehoustonlawyer.com
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Prospectively, there has been an incredible push towards getting closer to normal and figuring out a way to conduct jury trials. Judge Miskel in Collin County conducted what a lot of people perceived to be the first remote jury trial.4 It was a summary jury trial, but it probably gave a good number of data points for practitioners going forward as to how we might be able to get closer to normal conducting jury trials. I’ll be returning to the courthouse very soon to conduct at least some in-person hearings and eventually bench trials using very specific protocols for safety and social distancing. But there is not a schedule for when we can actually have jury trials, that I’m aware of.
CONTINUED USE OF REMOTE TECHNOLOGY BY THE COURTS Bill Kroger: Do either of you see video conferencing as being a
substitute for functions of a court that historically have required inperson physical communication, such as voir dire of a jury, grand jury work, or a complex evidentiary hearing? Or do you see there being some areas of court practice where the new technology will not be able to provide a substitute?
Hon. Mike Engelhart: I think that technology will be much
more of a supplemental part of court proceedings going forward than it ever was. Lawyers have commented, with respect to the summary jury trial in Collin County, that they were able to save a significant amount of money because they didn’t have to fly in witnesses from around the country. And when you are remote like that, you don’t have to worry about issues like masks and gloves and social distancing that might be perceived as awkward or limiting in front of a judge or jury. I would say 75-80% of the things that you could do live in a courtroom can be done remotely. Now, let’s turn to the flip side, bringing things back to the courtroom. As I said, you’ve got masks, and there is plexiglass now in Harris County District Courts to protect people. How will that impact jurors’ perception of witnesses, and how will it affect everyone’s ability to hear each other? If you’ve got a mask on a witness, that will impact the jury’s ability to assess the credibility of that witness. So, do you move to clear face shields versus the regular masks so that you can assess credibility? And how will document sharing work? And jury deliberation? And, of course, voir dire? All of these are considerations going forward. So, unless and until we have a vaccine, all of these things are going to have to be considered.
Hon. Andrew Edison: I think all judges would rather be in the courtroom with the litigants and the parties. But the reality is that sometimes that is just not possible, and I think that one of the long-term impacts from the COVID-19 pandemic will be that courts will be more likely to use technology. I think the extent of use of remote technology is going to be, on the federal side, on a 12
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judge-by-judge basis. Some judges are going to feel more comfortable trying to conduct hearings in person. But I, for one, am a big proponent of video conferencing. The parties see the judge, and the judge sees the parties. Now, of course, for certain things, like jury trials and huge hearings that involve evidentiary issues, people are going to continue to be more comfortable being in the courtroom. Hopefully one of the good things that will come out of this is that we are more adaptable and more willing to use technology, hopefully to not only further justice, but also to be more efficient, both from a judicial standpoint and from the party standpoint as well.
IN-HOUSE AND LAW FIRM IMPACT Bill Kroger: I want to move from the public sector to the private
sector and start with Grace Ho, who’s one of the senior lawyers at Chevron and practices in the area of employment law. Can you help us understand how the COVID-19 pandemic has impacted in-house operations, and how you see that playing out over the coming months?
Grace Ho: I think the impact on in-house legal operations is
probably not significantly different from the impact on law firm operations. Everything is moving to a digital platform. At Chevron, we are fortunate to have been in a situation where we already had the infrastructure in place to conduct a lot of day-to-day office work remotely, given our need to work with colleagues all over the world. That being said, we have all had to become more familiar with the technologies that allow us to connect.
Bill Kroger: Let’s move to some of our leaders at law firms.
We’ll start with Wayne Kitchens, who is a co-managing partner of Hughes Watters Askanase. Can you share with us how your firm is doing and what adjustments you’ve made?
Wayne Kitchens: Our firm has never totally shut down. We’ve had some core essential employees there and have been trying to follow all the various federal, state, and local guidelines. We have set up a mandatory temperature check for anybody who comes in the door, and masking when anybody is in a public area. We are moving towards people coming back to the office as they can, taking into account individual needs, such as childcare needs and personal health needs. We don’t ever deal with jury trials, but bankruptcy is a hearingintensive process, and the Houston bankruptcy judges have been phenomenal at switching to a remote hearing process. It’s been easy to adapt. Some of the attorneys in my firm deal with more discovery and jury trials, and we’ve equipped their offices and our conference rooms with webcams and microphones. We’ve been very fortunate in that we have an incredibly loyal group of employees and lawyers and partners. I think we’re prob-
ably in step with most of the firms in town and trying to do the best we can, while maintaining a safe environment.
Bill Kroger: Grace, is your law department transitioning some people back to the office with some people working from home, or is everybody working from home?
ment colleagues have helped each other continue working productively is to have regular check-ins, either as a practice group or smaller team, and we’ve also had virtual happy hours and a from-home concert.
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OPENING A FIRM DURING A PANDEMIC
Bill Kroger: I want to introduce Zenobia BivGrace Ho: Our Law Department employees in the I think we’re all ens. Zenobia, I understand you’re starting a new Houston office are still predominantly working from home (as of late June 2020). In terms of employees going to have Houston office of Frost Brown Todd. I can’t imagreturning to work in the Houston office, we’re priorito be patient with ine a more challenging environment to start up a new law office. How is that going and what chaltizing safety and health, and looking at various facourselves and our lenges have you encountered? tors, including relevant guidance from public health businesses and authorities and other authorities at all levels of government. We are taking a phased approach, as is comfigure out how to Zenobia Harris Bivens: I think we have encountered the same challenges that non-law mon in the industry, to allow for return to the workadjust as it comes businesses are having. Any time a business exforce and also flexibility to make changes as needed. at us.” pands its footprint or opens a new office or goes We are also mindful of the specific issues posed by into new area, it tries to do analytics and forecasts our downtown location, with a concentrated workand determine trends. But, it’s not an exact science in normal force, limited parking, and strong reliance on elevator access. circumstances. And right now, where it’s completely unpredictable, it’s very hard. We are having to learn how to pivot quickly. ENSURING PRODUCTIVITY IN THE REMOTE Come August, October, December, none of us really knows where ENVIRONMENT we’re going to be. I think we’re all going to have to be patient with Bill Kroger: Wayne and Grace, what have you learned about how ourselves and our businesses and figure out how to adjust as it to make sure that people are working in a productive way when ev- comes at us. For lawyers, that is very difficult. Because we are in eryone’s mostly working from home? Wayne Kitchens: We have modern
timekeeping systems. We see what people are working on, and we have a very dedicated accounting staff who have been getting our bills out. If there is a problem, our attorneys can call their section head, the administrator, or somebody in accounting. I’m not going to say that everybody’s at 100%. It has not been that way, and I’m not sure it can be. But people have been trustworthy. If there are problems, our people come to us, and if we see that something’s not happening, we go to them.
Grace Ho: I work with a group of folks
who are really engaged, conscientious, and responsive. I haven’t had any issues getting in touch with anyone who I need to speak with. There are a lot of different ways to contact people. If anything, some might feel like they need to be available all the time, so we should moderate that because it can be counterproductive. Another way I think our Law Departthehoustonlawyer.com
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of that stress release that we all need so much. Our stress didn’t start with the pandemic. We have had stress building through university, through law school, through the Bar Exam. Now, the stress is different. As Zenobia mentioned, you Bill Kroger: Let me ask you, when did you enter your space for may be transitioning during a pandemic, or as Judge Edison said, perhaps you were adopting Zoom conferencing during a pandemyour office? ic. All of this demonstrates that we’re resilient and we’re creative. I Zenobia Harris Bivens: We have two attorneys in Houston think sometimes as lawyers we get very into our heads and forget right now, and we have space in Two Allen Center that we ob- that we’re actually living breathing human beings. And that part tained during the pandemic. I was a lateral hire just two months of being a living breathing human being is relating to other people. before this all started. People who are changing law firms in the So, we need to find out what our people are up to and how they’re middle of all of this have to adjust to not only the chaotic things feeling, and what they may be experiencing in their personal and professional lives. that are going on with their lives personally and their This assessment is an important thing that can law practice and their business, but also getting to be done in a range of different ways. Utilizing surknow new co-workers remotely. I have basically been veys can help assess how your employees are feeltransitioning, in different respects, for five months. Our stress didn’t ing and establish a baseline for stress, anxiety, and other markers of mental, physical, and emotional Bill Kroger: I was wondering, now that we’re were start with the panwellness. It is useful to gather qualitative data to several months into this problem, whether your view demic. We have help determine where professionals working in of your office has changed in terms of the technology or the space? had stress building law firms, as solos, in the judiciary, and in business environments, both for and not-for profit, are through university, right now in terms of well-being and where they Zenobia Harris Bivens: Any space that we’re going to have for a larger number of attorneys is gothrough law school, hope to be moving forward. ing to have to have technology, because technology through the Bar Bill Kroger: Do you think, looking at the big is now racing forward and it’s not going to go away. Office spaces that do not have the capability to let us Exam. Now, the picture, that the home working environment will do large conference calls, that don’t have webcams, or be healthier and less stressful for our workers? Or stress is different.” lighting that’s good for video, are going to be a probdo you think it’s the opposite, that working from lem. I think that whether you are starting a new firm home creates a greater level of stress and pressure? or you have an old building, you’re going to have to figure out how to get that connectivity. Justine Fanarof: It is going to depend. I live by myself with a dog, and I have an elderly parent who needs caregiving. I have friends who run practices and are living with three kids under 10 WELLNESS DURING THE PANDEMIC and having to relate also to their husbands. Each family is going to Bill Kroger: I’d like to turn to Justine Fanarof. One of the things have different needs, and we have to be open to the fact that people that made us want to include you on our panel is, not only are are not cookie cutter versions of whatever we think they may be. I don’t think it has to be either-or. We’re multidimensional and you running your own firm, but you have had a particular focus on wellness. I’d like to know what you have learned over the last complex human beings. You can ask the employee, “Will it make several months from all of this, in terms of how lawyers stayed sense for you to be at home for three days a week and to come into the office for two days a week? Or will an alternate balance make healthy and well? more sense?” This is based on the client demands, of course, conJustine Fanarof: What we know about stress is that stress ag- sidering the business flow of the legal cycle. We keep that in mind, gregates. We need to continually remind ourselves to release some and then we think about the human needs. Care is a continuum, and, over time, we should re-assess what of that stress, like putting the car in neutral if you’re driving a we’re doing, and say, “Is this working?” And if it’s not working, we standard. We have to do that for the body as well. Now is the time for an assessment and to ask people, what have should think about our values and ask, “Are we valuing our valyou learned about this time? What have you learned about your ues?” These qualitative assessments within the workplace, within needs? You commute two hours a day. Would it be better if you our personal and professional lives, can help us to understand that had that time at home with your family twice a week? Are there wellness is a comprehensive space. There has to be some balance. other opportunities to shift and to pivot? We can use technology to We should also think about mental health issues and encouraging make our workplaces healthier and more whole and support more one another. Think about becoming mentors and accountability an industry where we always try to know what’s coming next, and when we’re dealing with the unpredictability on the law side, and also on the business side, it’s just challenging.
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partners with our colleagues, and finding ways to build teams.
Bill Kroger: Is there any data out there that things like yoga make a difference in the health of our workers?
Justine Fanarof: There is quantitative and qualitative data out
there supporting some form of yoga, meditation, contemplative prayer, or some sort of spiritual connection that helps with understanding ourselves as part of an inter-dependent space. I’ll call it the field of care that we exist within, a community. We’re not on our own. We’re all dealing with uncertainty all the time in our lives, pandemic or no pandemic. Now is the time to practice developing a relationship with uncertainty. As Ram Dass said, be here now.5 One of the best ways that we can do that is to develop some form of regular, ongoing, mindfulness-based practice. There are a range of them, everything from compassion-based practices to gratitude practices. I encourage everyone to find something that brings you joy and also stillness. Because the stillness that we can observe in contemplation helps us to deal with the uncertainty of life. And it allows us to be more present and responsive to our selves, to our colleagues, to our co-workers, to our clients, and to the community in which we all serve. It gives us a little bit more reason to exist when things are coming at us rapid fire. We call this responsivity and resiliency, as compared to reactivity and breakdown.
Hon. Mike Engelhart: I totally agree with the idea of creating
a routine and a sense of normalcy. My children are older and much more independent, so I don’t have the homeschooling issues that some have faced during this pandemic. But I have made it a point, even though I’m not going into the office, to wake up early every day and exercise, and help around the house by cooking, cleaning, or doing the dishes. I’ve just been trying to find things to create a sense of routine in this environment. And it has been very helpful to have that structure. Being more useful and productive for others has made a tremendous difference in helping me maintain a sense of normalcy and sanity.
Bill Kroger: Has anyone else found a personal practice or routine
or something that you’ve done that’s helped you get through this?
Wayne Kitchens: I went to two State Bar online CLEs about
anxiety and stress about a month ago. The panelists discussed the importance of watching what we put into our bodies, especially alcohol and drugs, because our profession has a huge problem with that. The statistics show about 36% of lawyers have some form of chemical dependency or abuse problem.6 We need to be cognizant of that, and of the stress, not only because of our own profession, but due to the stress of this pandemic and of working at home. The somewhat lower level of accountability of not being in the office can be a real trap. We all need to be aware of this, and if we see colleagues in distress in that manner, we should try to reach out and utilize the systems that are in place within the State
Bar of Texas, and especially the Lawyers Assistance Program, which can be of great, great value.7
Zenobia Harris Bivens: This discussion made me think about the impact of the pandemic on women, and particularly women lawyers. Certainly, a lot of women who practice law have huge support systems. The ones who can afford it have nannies and housekeepers. But research shows that women are disproportionately taking on the home workload. There were issues with that before the pandemic, but now, we are all in one space, and, for a lot of women, there is no housekeeper, no nanny, and no daycare. We should all be mindful of that when we are working with our colleagues. It’s obviously not just women; it impacts all of the lawyers who have to home-school or who have lost their childcare situation. PANDEMIC-RELATED UNEMPLOYMENT Bill Kroger: Do you have any thoughts about the impact of the high unemployment rates associated with this pandemic? Zenobia Harris Bivens: Long term, I’m concerned about
the research I’m seeing about job loss. Women are disproportionately losing their jobs, and many of these jobs might not come back. Many of us have worked very hard to increase the visibility of women and people of color in the legal profession. And I think that everyone in our profession needs to be mindful going forward, particularly in light of this economic downturn and the pandemic, about the impact this will have on women in the legal profession.
Justine Fanarof: The impact of unemployment in our community is far reaching. We need to think about generational inequity, lack of access to upward mobility, and lack of access to mentorship. We should also think about ways to encourage mentorship to continue to thrive. If the readers of The Houston Lawyer know somebody out there who is a new graduate, or who is interested in becoming a lawyer, continue to reach out to them during this time. We know that there has been a disproportionate impact from the pandemic within brown and black communities, and we should all make a concerted effort within those communities to make sure that we’re reaching out to young, promising attorneys and ensuring they have a place to shine, grow, and be supported within the legal community.8 GENERAL LITIGATION ISSUES Bill Kroger: Let me move to Dr. Stephen Barnes, who is the
founding partner of his firm and does a lot of work with health care. I’d like to get your assessment of how we’re doing in the Houston community. What are the issues that you see going forward? Continued on page 34 thehoustonlawyer.com
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By G. Scott Fiddler and Brooke Leondar
Navigating the Pandemic:
An Employee’s Guide in Uncharted Waters
H
istory is no stranger to plagues and pandemics that have damaged economies and the ability of workers to earn a living. For Americans, the 1918 Spanish Flu pandemic is the best example. In the span of 18 months, the virus killed 675,000 people in the United States and, much like today, led to the cancellation of public gatherings and professional sporting events. But while the 1918 pandemic might have provided some guidance on the effect on labor of a partial economic shut down, it is of little help from an employment law perspective for a very simple reason: almost all of the employment laws that govern the workplace today were passed a generation or more after the 1918 pandemic and the 1918 Spanish Flu was long forgotten by the time they were passed. Title VII of the Civil Rights Act (1964), the Age Discrimination in Employment Act (1967), the Occupational Safety and Health Act (1970), the Americans with Disabilities Act (1990), the Health Insurance Portability
and Accountability Act (1996), and the Worker Adjustment and Retraining Notification Act (1988) were all passed long after the 1918 Spanish Flu pandemic. In determining how our patchwork of employment laws will apply in this pandemic, and with the exception of only a few amendments to existing employment laws passed in response to the current pandemic, we are in uncharted waters. Having said that, employees are not without rights. This article will identify those rights, which can function as a guide for employees navigating the pandemic. Rights of the Employed The Families First Coronavirus Response Act (“FFCRA”) was passed on March 18, 2020, and became effective April 1, 2020.1 The FFCRA applies to employers with fewer than 500 employees and is in effect until December 31, 2020, unless extended. The FFCRA provides for up to two weeks of paid sick leave through the Emergency Paid Sick Leave Act (“EPSLA”)2, and an additional ten weeks of paid sick leave through the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).3 Under EPSLA, an employee is entitled to up to two weeks of paid sick leave if the employee meets one or more of six qualifying reasons: (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) is advised by a health care provider to self-quarantine related to COVID-19; (3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis; (4) is caring for an individual who meets one of the first two qualifying reasons; (5) is caring for his or her child whose school or place of care is closed due to COVID-19; or (6) is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.4 For reasons 1 through 3, the employee is entitled to a maximum of $511 per day for a maximum of ten days. For reasons 4 and 6, the employee is entitled to a maximum of $200 per day for a maximum of
ten days. However, reason 5 is much more expansive than the other provisions. An employee who has been employed for at least 30 days and is qualified for leave under reason 5 is entitled to up to two weeks of paid sick leave under EPSLA, and up to an additional 10 weeks of paid sick leave under EFMLEA. Thus, under reason 5, an employee could receive a total of 12 weeks of paid sick leave of up to $200 per day, a maximum of $12,000. However, the sick leave is only available if the employee is unable to work, including from home. So, if the employee must quarantine from home but is able to telework, he or she is not entitled to sick pay.5 The FFCRA sought to avoid turning employers into medical professionals or investigators—if the employee certifies in writing that he or she falls under one of the six qualifying reasons for leave and provides the required information, the employer must ordinarily provide it.6 Employers are prohibited from discharging, disciplining, or in any other manner discriminating against an employee who takes paid sick leave under the FFCRA or who otherwise engages in protected activity. The FFCRA provides a private cause of action for employees whose rights are violated, incorporating the procedures and remedies under the FMLA and FLSA.7 Under the Americans with Disabilities Act (“ADA”), and the Texas Commission on Human Rights Act (“TCHRA”), employers are required to make reasonable accommodations for the known disabilities of their employees.8 Of note with regard to the pandemic is that such accommodations can include modified work schedules, reduced contact with others in the workplace, and permitting an employee whose disability places him or her at a higher risk of a COVID-19 fatality to work from home. Employees should not be dissuaded by having to prove their health problem was a disability because the definition of disability under the ADA (and the TCHRA) is quite liberal, including “a physical or mental impairment that substantially limits one or more major life ac-
tivities,” a record of such an impairment, or being regarded (even erroneously) as having such an impairment.9 On the other hand, an employer who involuntarily excludes workers over 60 years of age (or over 40) from the workplace because of their age—even though they are in an age group that public health officials contend is at an increased risk of severe COVID-19 illness10—may be found to have violated the Age Discrimination in Employment Act and the TCHRA, which prohibit age discrimination. Rights of the Furloughed The word “furlough,” much like the phrase “wrongful termination,” is often used but has no particular meaning or legal significance. It is not a word typically used in the statutes governing employeremployee relations. However, a furlough is generally considered to be a separation from work that is not intended to be permanent. It is a way for employers to say, “We don’t need you right now, but don’t go anywhere.”
And, being furloughed certainly sounds better than being terminated, sacked, riffed, bounced, decruited, dehired, downsized, or even subjected to a workforce imbalance correction. For all practical purposes though, those who have been furloughed should consider their employment terminated, perhaps not permanently, but for the time being. An employee furloughed for COVID-19 related reasons should be eligible for unemployment benefits. In response to the pandemic, the Texas Workforce Commission (“TWC”) has temporarily waived the waiting week—the first payable week of an individual’s claim for Unemployment Benefits—to more quickly distribute benefits.11 The TWC has also temporarily waived its work search requirements.12 The Worker Adjustment and Retraining Notification Act (“WARN”) requires employers give at least 60 days’ written notice to employees suffering an employment loss as a result of a mass layoff or plant closure.13 An employment loss includes a layoff exceeding six months or
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and that reason does not fall into one of the defined categories of reasons for a permissible termination under the employment agreement.
employment laws governing the employment relationship were not passed with a pandemic in mind, they do provide some guidance by which to navigate it.
Rights of Employees Returning to the Workplace As employees return to the workplace from furlough or from working from home, they should be aware of what their employer must, may, and may not do. The Occupational Safety and Health Administration (“OSHA”) requires emRights of the Terminated ployers to provide “employees employEmployees terminated (or suffering other ment and a place of employment which adverse employment action) after April are free from recognized hazards that 1, 2020, the effective date of the FFCRA, are causing or are likely for having taken leave or to cause death or serious engaged in other FFCRAphysical harm to his emprotected conduct, will be ployees.”14 Thus, employentitled to pursue a private Employees are in cause of action for damages ees have a right to expect and attorney’s fees. uncharted waters their workplace will not Similarly, those who sufunnecessarily subject when it comes to fered adverse employment them to an unreasonable their rights in the risk of a COVID-19 infecactions because of their age or an underlying health midst of this tion. problem such as chronic obTo that end, employpandemic, but they structive pulmonary disease ers may take steps such (“COPD”), diabetes, or heart are not without as temperature testing problems, may have a viable and questioning employguidance.” ees regarding COVID-19 claim, even if the employer contends it took the adverse symptoms (fever, chills, employment action to protect the employdry cough, shortness of breath or difficulty ee from a COVID-19 fatality. breathing) before allowing them to begin a It has been rumored that employshift.15 An employer may also require emers sometimes use layoffs triggered by ployees to wear masks when interacting legitimate reasons (e.g., an economic with other employees, customers, or vendownturn) as an opportunity to include dors; may require work be done in shifts; employees for unlawful motives (e.g., and may impose social distancing requiredisability, age, retaliation). Regardless of ments.16 And, if an employee tests positive whether the layoff was caused by the panfor COVID-19, an employer may notify demic, including employees in the layoff those who were in close contact with that because of an otherwise unlawful reason employee of the positive diagnosis. will provide an employee with a private However, in notifying employees of a cause of action or administrative claim to COVID-19 infection, an employer must vindicate his or her rights. not reveal the infected employee’s name. Additionally, those with employment agreements, requiring the employer have Conclusion “good cause” or one or more specifically Employees are in uncharted waters when defined reasons for termination, may it comes to their rights in the midst of have a claim for breach of contract if the this pandemic, but they are not without employer cites the pandemic as a reason guidance. And while the patchwork of
G. Scott Fiddler is a partner at Jackson Walker LLP. He is board certified in Labor & Employment Law and Civil Trial Law by the Texas Board of Legal Specialization. Brooke Leondar is an associate at Jackson Walker LLP in the Labor and Employment Practice Group.
a reduction in work hours of at least 50 percent in each month of a six-month period. So, while WARN contemplates a temporary layoff (hence, a furlough), if that furlough exceeds six months during the pandemic, an employee’s rights under WARN may be triggered. Perhaps more importantly, because a furlough is a termination, all the protections provided to employees against a discriminatory termination are available.
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Authors’ note: This article does not constitute legal advice and is only a brief description of its subject matter. Specific situations may lead to a different result than ones expressed or implied here. Employers and employees should consult counsel as to the application of these principles to their own circumstances. Endnotes
1. The Families First Coronavirus Response Act, Pub. L. No. 116-127, 134 Stat. 178. 2. Id. §§ 5101–5111. 3. Id. §§ 3101–3106. 4. Id. § 5102. 5. Id. § 5102(a). 6. Paid Leave Under the Families First Coronavirus Response Act, 29 C.F.R. § 826.100. 7. Families First Coronavirus Response Act, Pub. L. No. 116-127, 134 Stat. 178, Sec. 3104, 5104. 8. Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; Texas Commission on Human Rights Act, TEX. LABOR CODE ANN. § 21.001 et seq. 9. Americans with Disabilities Act, 42 U.S.C. § 12102. 10. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, https://www.eeoc.gov/wysk/what-yous h o u l d - k n o w - a b o u t - c o v i d -19 - a n d - a d a rehabilitation-act-and-other-eeo-laws (last updated June 17, 2020). 11. TWC Waives Certain Requirements for Unemployment Benefit Services, TEX. WORKFORCE COMM’N (March 17, 2020), https://www.twc.texas. gov/news/twc-waives-certain-requirementsunemployment-benefits-services. 12. Id. 13. Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq. 14. Occupational Safety and Health Administration, 29 U.S.C. 654. 15. General Business Frequently Asked Questions, CTRS. FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019ncov/community/general-business-faq.html (last updated May 3, 2020). 16. Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020, CTRS. FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/ coronavirus/2019-ncov/community/guidancebusiness-response.html (last updated May 3, 2020).
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 made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. Large Firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Kirkland & Ellis LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP
Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company
Mid-Size Firm Champions Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley & Lardner LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP
Porter Hedges LLP ReedSmith LLP Winstead PC Winston & Strawn LLP
Rapp & Krock, PC Shortt & Nguyen, P.C. Squire Patton Boggs (US) LLP Trahan Kornegay Payne, LLP
Boutique Firm Champions
Individual Champions
Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP
Law Office of Peter J. Bennett Law Office of Travis A. Bryan I, PLLC Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Pilgrim Law Office Law Office of Robert E. Price The Reece Law Firm, PLLC Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Law Office of Cindi L. Wiggins, J.D. Trey Yates Law
Small Firm Champions Coane & Associates Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP
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By David H. Brown
COVID-19 Business Interruption Insurance Basics
S
ince the declaration of the coronavirus pandemic, insurers, legislators, and lawyers have generated a torrent of commentary addressing insurance coverage for business interruption (BI). The range of opinion is considerable due to the variability of the exact wording of commercial property insurance policies, differences in the insurance law of the states, the absence of pandemic-specific case law, and the extent to which the outcomes in the pertinent case law are fact intensive.1 Pandemic-related insurance initiatives include bills introduced in the legislatures of at least eight states that require insurers to provide BI coverage not otherwise afforded by policies. Insured policyholders have reportedly filed over 560 lawsuits (as of July 1, 2020) seeking coverage for BI losses in courts across the country. Some suits involve specialized coverages such as for event cancel-
lation or communicable disease. Most suits, however, involve routine though non-standardized property policy forms. Against this complex backdrop, the objective of this article is to sketch basic BI issues under the most common commercial property-policy insuring clause, citing cases of interest to Texas lawyers. Commercial property policies typically insure against “all risks of direct physical loss or damage to property” insured under the policy. This phrase is broadly descriptive of the various perils that might cause property loss or damage, such as fire and windstorm. The words used in the “all-risk” phrase are typically not defined by the policy and, therefore, are given their plain or ordinary meaning with reference to dictionary definitions.2 The purpose of BI coverage, in those policies that include it, is to pay for loss of income in addition to the loss of value or the expense of repair or replacement of damaged property. It is termed a “time element” coverage because covered lost income is quantified based on the duration of the interruption. A grant of BI coverage, or the BI insuring agreement, typically covers economic loss due to the “necessary interruption”3 of the insured’s business and repeats or incorporates the all-risks-of-direct-physical-loss-or-damage phrase. Policies affording BI coverage typically include coverage “extensions” for categories of economic loss in addition to lost income. Most extensions, such as that for “extra expense” needed to continue in business, typically include the same physical-loss requirement as the BI insuring clause. Some extensions, however—notably that for loss of business income caused by order of civil authority—require property loss to non-insured property, as where loss or damage to non-insured property causes the government to limit access to the insured property.4 The applicable causation analysis for a civil authority extension also differs from BI coverage because coverage turns on the
rationale for issuance of the government order. In making a claim, or in court, the insured bears the burden to show a loss within one or more of the BI or coverage extension insuring agreements.5 The threshold coronavirus coverage question, therefore, is to identify a factual scenario showing a loss caused by a risk of direct physical loss or damage. The insured also would need to demonstrate a loss meeting the policy’s loss quantification requirements.6 Base property insurance coverage forms (the so-called “coverage part”) exclude a more or less standard set of perils, or possible causes of loss. These do not ordinarily include viral infection, which may, however, be excluded in any of several common endorsements.7 If not excluded, due to the breadth of the term “all risks,”8 coronavirus might cause covered loss if the terms of the insuring clause are otherwise met. The many policies that require “direct” physical loss or damage require a close causal relationship—a so-called “immediate” or “proximate” cause of loss or damage—as distinguished from loss or damage that is more remote and is simply caused by, or is a “natural consequence” of, the peril.9 The disjunctive wording “loss or damage” requires that the words “loss” and “damage” have different meanings. Otherwise, one word or the other impermissibly would be rendered a nullity.10 Few Texas cases address the meaning of “damage” in the property insurance context, although “damage” plainly refers to physical damage.11 Accordingly, the most natural plain meaning distinguishing “loss” from “damage” is that “loss” includes not only property that is entirely lost but also loss of use of property that is otherwise undamaged. While few Texas cases address loss-ofuse claims under property policies,12 a number of out-of-state cases have found coverage in various loss-of-use scenarios. One line of cases, for example, holds that the physical-loss requirement may be
Where a physical risk is absent, howmet by a loss of use resulting from an imever, the courts have generally rejected minent threat of physical damage, such coverage. As one auas the danger of collapse or 13 thor recently concluded, the risk of an avalanche. In these cases, the immediacy “Courts have uniformly of a physical threat in conagreed that pure ecoIn making a claim, nomic or financial losses junction with loss of use of insured property results in a or in court, the do not constitute physicovered loss. cal loss or damage under insured bears the A larger number of out-ofa property insurance polstate cases hold that various burden to show a icy.”18 forms of contamination may Similarly, in civil auloss within one or result in a covered direct loss thority cases, courts more of the BI have rejected loss-of-use of use. The Ninth Circuit, for example, affirmed an award or coverage claims where the factual based on the closure of a res“nexus” between physiextension insuring taurant due to e-coli contamcal loss or damage and agreements.” the government order ination of the water supply.14 foreclosing access was Similarly, the physical-loss deemed insufficient. For example, the requirement was met where otherwise Fifth Circuit held that the required nexundamaged buildings were rendered us between a hurricane evacuation order unfit for occupancy due to ground satu15 and direct loss or damage to property rated with gasoline or due to a release was missing where no damage had ocof ammonia. Some courts have rejected curred at the time the order was issued loss-of-use contamination claims absent and the order did not reflect that it was evidence of uninhabitability.17
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issued “due to” property damage.19 An argument that the coronavirus pandemic was a direct cause of loss of use might begin with the observation that the relevant time frame commences with the onset of the interruption, and should not include post-loss hindsight based on advances in scientific understanding. Several interrelated factors suggest a physical risk of loss at the time of the March shutdown. First, the virus has a physical though microscopic existence, distinguishing non-physical economic loss scenarios. Second, stay-athome orders referencing possible surface contamination20 gave the imprimatur of government sanction to the risk of surface contamination. Third, the public arguably perceived commercial premises as unsafe for several reasons, including the reported novelty of the coronavirus, uncertainty as to its exact means of transmission, health officials’ early emphasis on the importance of surface cleaning, uncertainty as to exactly what to clean, and the lack of availability of cleaning supplies. Fourth, the absence of any ready means of surface testing to assess the risk of contamination would naturally heighten the perceived risk of viral contamination. On the other hand, how the courts will assess the sufficiency of evidence of direct causation in coronavirus cases is uncertain. Courts might require proof of contamination in fact21 or proof of the income loss after consideration of the susceptibility of the virus to cleaning. One unique aspect of coronavirus coverage litigation will be the personal familiarity of every lawyer, judge, and juror with events surrounding the March shutdown. Ultimately, the threshold BI and civil authority coronavirus coverage questions come down to a nuanced, word-byword reading of the potentially applicable insuring-agreements. One key is the exact wording describing the causation standard. A second issue is the extent to which the “risk” causing the loss of use must in some sense be a “physical” 22
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risk to property. If the risk of airborne person-to-person transmission, requiring social distancing, were not regarded as a “physical” risk to property, then the controlling consideration may be the relative weight given to the concurrent risk of viral surface contamination as a cause of loss. David H. Brown represents policyholders in insurance disputes and is a partner at Copeland & Rice LLP. Endnotes
1. See John K. DiMugno, The Implications of COVID-19 for the Insurance Industry and Its Customers, 41 INS. LITIG. REPORTER 8 (2020) (surveying business interruption issues, legislative initiatives, and liability coverage for virus-related claims). 2. E.g., De Laurentis v. U.S. Auto. Ass’n, 162 S.W.3d 714, 723 (Tex. App.—Houston [14th Dist.] 2005, pet denied). 3. See GBP Partners, Ltd. v. Maryland Cas. Co., 505 F. App’x. 389 (5th Cir. 2013) (explaining that the words “necessary suspension of operations” required complete cessation of business for some interval). 4. See 730 Bienville Partners, Ltd. v. Assurance Co. of Am., No. 02-CV-106, 2003 WL 21145725, 67 F. App’x 248 (5th Cir. Apr. 29, 2003) (per curiam) (La. law) (New Orleans hotels that remained open were not covered for lost income due to the September 11 attacks). 5. E.g., Tex. Windstorm Ins. Ass’n v. Dickinson Indep. Sch. Dist., 561 S.W.3d 263 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (addressing the insured’s burden of proof under policy given the concurrent cause doctrine, which required the insured to distinguish damage caused by a covered event from excluded damage). 6. BI coverage is usually for a “period of restoration” and is limited to the “actual loss sustained,” precluding resort to speculative damage models. E.g., Royal Indem. Co. v. Little Joe’s Catfish Inn, Inc., 636 S.W.2d 530 (Tex. App.—San Antonio 1982, no writ). Most forms include loss mitigation requirements. Policies often also contain provisions limiting the covered loss to pre-occurrence sales. E.g., Catlin Syndicate, Ltd. v. Imperial Palace of Miss., 600 F.3d 511 (5th Cir. 2010) (Miss. law). 7. Some policies include a virus exclusion endorsement issued by the Insurance Services Office in 2006. Some contain a “Biological and Chemical” endorsement excluding loss caused by “pathogenic” material. Pollution exclusions, arguably textually inapplicable in their standard form, might apply if excluded “pollutants” are defined as including a virus or biological material. Microorganism exclusion endorsements pose the question of whether a virus is, in fact, a microorganism. Some contamination exclusions reach viruses, but only if listed in the federal environmental statutes or rules. 8. See JAW the Pointe, LLC v. Lexington Ins. Co., 460 S.W.3d 597, 603 (Tex. 2015) (all-risk policy covers physical loss “no matter what causes that loss” unless an exclusion applies, but ultimately denying coverage due to anti-concurrent causation provision).
9. De Laurentis, 162 S.W.3d at 723; Allianz Cornhill Int’l v. Great Lakes Chem. Corp., 2006 WL 778618, at *7 (S.D. Tex. Mar. 24, 2006) (applying fact-driven direct loss analysis). 10. See Pan Am Equities, Inc. v. Lexington Ins. Co., 959 F.3d 671, 676 (5th Cir. 2020) (“Texas law commands that we honor the Policy’s plain language— every word on every page—‘giving effect to all . . . [the Policy’s] provisions,’ such that no term is rendered a nullity.”). 11. See Glens Falls Ins. Co. v. Covert, 526 S.W.2d 222 (Tex. App.—Beaumont, 1975, writ ref’d n.r.e.) (insured failed to prove physical loss or damage where sealed product fell to the floor causing the manufacturer to withdraw its warranty due to possible interior damage); see also Trinity Indus., Inc. v. Ins. Co. of N. Am., 916 F.2d 267, 270–71 (5th Cir. 1990) (La. law) (“physical loss or damage” implies “an initial satisfactory state that was changed by some external event into an unsatisfactory state”). In the liability insurance context, “property damage” means “actual physical damage” to property. E.g., Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 24 (Tex. 2008). 12. See EMS USA, Inc. v. Travelers Ins. Co., No. H-161443, 2018 WL 1545700 (S.D. Tex. Feb. 28, 2018) (loss of use of pilot hole due to stuck drill string was direct loss). 13. Hampton Foods, Inc. v. Aetna Cas. & Surety Co., 787 F.2d 349 (8th Cir. 1986) (risk of physical loss shown where grocery store was in imminent danger of collapse, construing the term “direct loss” in the insured’s favor because it was held to be ambiguous); Murray v. State Farm Fire & Cas. Co., 509 S.E.2d 1 (W.Va. 1998) (threat of avalanche caused physical loss of homes that were unsafe for habitation). 14. Cooper v. Travelers Indem. Co., C-01-2400-VRW, 2002 WL 32775680 (N.D. Cal. Nov. 4, 2002), aff’d, 113 F. App’x. 198 (9th Cir. 2004). 15. W. Fire Ins. Co. v. First Presbyterian Church, 437 P.2d 52 (Colo. 1968). 16. Gregory Packing, Inc. v. Travelers Prop. Cas. Co., No. 2:12-cv-04418, 2014 WL 6675934 (D. N.J. Nov. 25, 2014). 17. E.g., Universal Image Prods. v. Fed. Ins. Co., 475 F. App’x. 569 (6th Cir. 2012) (bacterial and mold contamination not shown to render building uninhabitable); Commonwealth Enter. v. Liberty Mut. Ins. Co., 1996 WL 660869 , 101 F.3d 705 (9th Cir. Nov. 13, 1996) (unpublished table op.) (tenants’ perception of asbestos contamination did not meet requirement of direct physical loss). 18. Scott G. Johnson, What Constitutes Physical Loss or Damage in a Property Insurance Policy?, 54 TORT TRIAL & INS. PRAC. L.J. 95, 102 (2019). 19. Dickie Brennan & Co. v. Lexington Ins. Co., 636 F.3d 683 (5th Cir. 2011) (La. law) (adopting the reasoning of S. Tex. Med. Clinics, P.A. v. CNA Fin. Corp., No. H-06-4041, 2008 WL 450012 (S.D. Tex. Feb. 15, 2008) (evacuation order prompted by fear of hurricane damage did not supply nexus required for civil authority coverage). 20. For example, Harris County Judge Lisa Hidalgo’s March 24, 2020 Order recited both that the virus “causes property loss or damage due to its ability to attach to surfaces for prolonged periods of time” and that the virus “spreads through person-to-person contact.” 21. E.g., Source Food Tech., Inc. v. U.S. Fid. & Guar. Co., 465 F.3d 834 (8th Cir. 2006) (USDA embargo of Canadian beef due to “mad cow” concern did not cause “direct physical loss” because no “actual physical contamination” was shown).
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By Amber A. Homolka
How Technology Has Moved Into the Estate Planning and Probate Practice
I
Estate Planners Seek Technology Solutions during the Pandemic n late March, the Harris County stayat-home order took effect and the public’s health concerns grew. Google searches for “Will” and related queries were at an all-time high. Forward-thinking attorneys scrambled to harness technology, meeting the public’s needs with video and phone consultations. But even with a beautiful estate plan drafted, how would we safely execute it during a pandemic?1 Lawyers pursued safe ways to deliver clients a valid, attested Will. However, the necessity of physical presence for the signing was a growing concern. Under Texas law, a valid, self-proving Will includes the Testator’s signed affidavit, attested by two witnesses and a notary, which makes hauling witnesses in to probate court to recount the signing unnecessary. Estate planning attorneys furnish clients with this high level of testamentary formality
so that a Will may withstand a contest, fulfill the Testator’s wishes, and provide efficient resolution for a grieving family. To execute with this level of formality, four individuals (Testator, notary, and two witnesses) must physically attend the signing and touch the same pages. While the notary is not required for a valid Will, the self-proving affidavit requires notarization.2 Holographic wills are efficacious in an emergency because of the Testator’s ability to wholly complete one in his or her own handwriting. However, estate planning attorneys are reluctant to counsel clients on valid holographic wills for a host of sound reasons. Notably, the selfproving affidavit that makes the Will harder to contest and easier to prove still requires a notary or “officer authorized to administer oaths” and two witnesses.3 In the time of a pandemic, the requirement of physical presence of a notary, Testator, and witnesses suddenly seems onerous, especially relative to the skyrocketing demand for a Last Will and Testament. Certainly, estate planners can guide clients to write a holographic will or draft a valid Will for signing without a self-proving affidavit, though the best practice is to include an affidavit. Signing the self-proving affidavit later is an option, but the attorney is gambling that both client and witnesses will survive and be available to sign it.4 On April 8, 2020, Governor Greg Abbott signed an Emergency Order (the “Order”) suspending the requirement of the physical presence of the notary and signers.5 This temporary relaxation of the notary’s presence requirement was issued to help “avoid the need for face-to-face contact during a pandemic.”6 Under the Order, the notary can acknowledge a testamentary document, power of attorney, and several other documents on two-way audio-video conference. Verifying identities on video, the notary receives the signed document via fax or scan and then signs it. Even still, the Order did not change the requirement of the Estates Code or the
caselaw that witnesses be in the “conscious presence” of the Testator.7 Therefore, even under the Order, a self-proving Will requires witnesses to be in the “conscious presence” of the Testator when they sign the attestation clause, before scanning the document to the notary. How will courts verify an “original” self-proving affidavit signed under the Order? The Testator and witnesses’ signatures are all copies, not wet ink. If the court cannot identify an “original” of the self-proving affidavit, is its value lost? The Order states that the signer “shall transmit by fax or electronic means a legible copy of the signed document to the notary public, who may notarize” and who will then “transmit the notarized copy back to the signing person by fax or electronic means, at which point the notarization is valid.”8 The gray areas created by the Order disquiet many estate planners. Perhaps it would be equally beneficial to draft an unattested Will for a client to sign at home, without a notary. The Order created an option but also reopened discussions about technology in estate planning. Suspending a traditional notary’s presence requirement for a Will leaves concerns about an “original” with a wet signature. However, Texas has allowed a remote online notary to digitally notarize the same documents as a traditional notary since 2017.9 Testamentary documents are specifically excluded at this time. All the same, germ avoidance during the pandemic has pushed the concern of technology to the forefront.
authentication can increase the integrity of a testamentary document and be used for both the principal and notary. To become a Texas online notary, one must acquire a PKI-based digital certificate from a third-party vendor, such as Entrust, that verifies identity. The vendor checks identity against reliable public directories, such as the State Bar of Texas or the Secretary of State’s business records. The vendor verifies that the notary is authorized to obtain the designation. This
verification allows for issuance of a digital certificate to the notary. After issuance, the notary learns how to digitally “stamp” documents in Adobe or Word. The notary is required to keep video record of all notarizations according to a process outlined in the Texas Administrative Code and on the Secretary of State’s website. The result of digital notarization is that the document, after being stamped, will show evidence of any subsequent tampering. Imagine a future in which probate
What About Remote Online Notarization? Remote notarization creates a digital stamp on a document and requires the notary to have a public key infrastructure (or “PKI” based digital certificate) from a trusted certificate authority.10 While most attorneys are challenged by the technology, the PKI-based digital certificate holds great promise. Currently, Texas does not permit electronic or digital signatures on testamentary documents, nor are electronic Wills valid. However, the PKIbased digital certificate and multi-factor thehoustonlawyer.com
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courts can authenticate an electronic Will that has been encrypted and digitally certified, with a high level of certainty that the Testator himself or herself signed it, without any subsequent meddling or content manipulation. This process and expertise are not yet built into our probate courts in Texas. Can legal minds and technological savvy bring this into reality? Many say yes.11 Discussions over the use of new technology in estate planning tend to balance the following interests: (1) authenticating identity and capacity, (2) assuring testamentary intent and lack of undue influence, (3) establishing an “original” Will, and (4) providing access to Will execution for more of the public. Identity can be verified with existing technology, including PKI-based digital certificates and multi-factor authentication. Capacity, and testamentary intent and undue influence are all verifiable with technology and witnesses, and facts still tell the tale if undue influence is afoot. The concept of an authentic “original” electronic Will may vex us today, but with the partnership of data encryption experts, soon it may not. Could a solution preserve our role as skillful legal advocates for our clients while increasing efficiency and access to Wills? Today, our civic duty and public health considerations require social distancing. Thus, we sprint forward to a paperless society, and the drums beat for these discussions between our legal and tech gurus. Technology is a Win for Probate Court Probate courts harnessed technology this spring to overwhelming success. Judges, probate auditors, clerks, and staff attorneys raced to establish new practice norms for video hearings. Online hearings for uncontested probate matters allowed dockets to move efficiently, and while a public health crisis may have been the reason for the tech immersion, the new online system led to applause across the board. Courts must be open to the public, and Harris County utilized YouTube for live broadcast of proceedings, 26
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as did other courts. Courts in the metro area preferred Zoom for online hearings. The number of high-risk, elderly probate applicants heightened the need for safety. Harris County’s probate docket did not miss a beat. Judge Jason Cox, presiding judge for Harris County’s Probate Court No. 3, along with his colleagues on the bench, complied with the Office of Court Administration and Supreme Court guidelines for online hearings. “The Bar has shown that it is highly adaptable,” relays Judge Cox. “We have seen many secretaries acting as IT consultants to attorneys, who have learned to use the technology.”12 Applicants coming to probate court often feel anxious about the hearing and may be grieving the death of a loved one. Historically, a probate hearing may require travel for elderly clients and witnesses. “Online hearings remove the stress of traveling to the courthouse and provide more access to the public. That is an enormous benefit of online hearings,” states Judge Cox, who sees no measurable downside to online hearings.13 In Fort Bend County, veteran probate auditor Benny Charles reports that COVID-19 has forced courts to learn new online technology. While there was a learning curve, court staff rose to the challenge and embraced change. “Probate attorneys also seem to like it, and clients do not need to travel to the courthouse. It’s an all-around win,” says Charles, who hopes the new technology is here to stay.14 Judge Juli Mathew of Fort Bend County Court at Law No. 3 adds, “Most appreciate the use of remote hearings. They save time and are environmentally friendly.”15 Echoing other voices from the bench, Judge Mathew hopes to see even more progress with remote proceedings as we move forward. Local probate judges and court staff have provided the following helpful tips for online hearing success: 1. Make sure that your pleadings are accurate; routine filings may require new changes for the new online processes.
2. Inform your client of the procedure for accessing the hearing, gently reminding them that the hearing is a court proceeding; on occasion, attire such as tank tops have been spotted in the online hearing. To that end, clients and attorneys should be aware of facial expressions during online hearings, a point mentioned by court staff. 3. Learn how your local probate court will handle the particulars of the hearing. For example, for a Will prove-up, will the Court visually reference the Will by screen sharing or use judicial notice? 4. Make sure that your profile on Zoom (or another video conferencing platform if applicable) is your full, professional name. Your name must be correct on the call so that you can be identified and admitted, and this will make your case heard more quickly on a long docket. 5. Learn whether unsworn declarations or notarizations will be required for oaths and affidavits. If you need a notarization and cannot physically see the client, digital notarization could fulfill your needs. Harris County Probate Courts plan to continue online hearings for uncontested probate matters for the foreseeable future. If and when in-person uncontested hearings are set, they may proceed at quarterhour settings rather than the old “cattle call” dockets. According to Judge Cox: “Unless there is no demand, we plan to keep online hearings in our toolkit.” None of the Judges interviewed for this article had probated a Will written under Governor Abbott’s Order as of late-June 2020. However, it was suggested that attorneys using the Order take good notes and keep the client files neat in anticipation of potential litigation based on gray areas in the Order (see above). Nevertheless, courts are ready and have no reservations in probating such a Last Will and Testament. When asked whether courts are seeing
an uptick in digital notarization, Judge Cox reports that the permitted use of an unsworn declaration often negates this need in his court. Some courts report seeing digital notary certificate stamps on oaths and affidavits, and courts welcome them as another instrument in our toolkit.16 Technology Provides New Solutions Estate planners and probate courts are showing up with creativity and intelligence to provide apt solutions to the public during the pandemic. With the use of available technology such as video conferencing, online hearings, and digital notarization, there is no reason to delay filing a probate application. For the more tech savvy among the bar, it may be a time to reach out to a struggling colleague to help him or her get up to speed. As for the execution of Wills or estate plans, attorneys should continue to think creatively within the parameters of the law and public health concerns, finding solutions and highlighting holes in technology
or areas where the law might catch up. The marriage of law and technology will move forward for the public’s good. Amber A. Homolka serves a diverse array of clients in her estate planning practice. Licensed in Texas, Louisiana, and Georgia, she is a member of both the LGBT Law and Real Estate, Property, Trusts and Law Sections of the State Bar of Texas. For further questions, contact her at: main@amberhomolkalaw.com. Endnotes
1. See A GUIDE TO EXECUTING ESTATE PLANNING DOCUMENTS IN UNCERTAIN TIMES (2020), available at http://texaslawpracticemanagement.com/wpcontent/uploads/2020/04/A-Guide-to-Executing-EstatePlanning-Documents-in-Uncertain-Times-PPT-4-10-20. pdf and “SIGNING” WITHOUT SIGNING: WHAT ESTATE PLANNERS SHOULD KNOW ABOUT THE FEDERAL E-SIGN ACT AND THE TEX. UNIF. ELEC. TRANSACTIONS ACT (2020), available at https://static. spacecrafted.com/da7f17753020450896a58abe0f39a7cb /r/d9c923510557411580ba759a96791f13/1/Signing%20 Without%20Signing%20-%20What%20Estate%20 Planners%20Should%20Know%20About%20the%20 Federal%20E-Sign%20Act%20and%20the%20Texas%20 Uniform%20Electronic%20Transactions%20Act%20(323-20).pdf, for invaluable practice guidance for estate planning lawyers during the pandemic. 2. TEX. EST. CODE ANN. § 251.101 (defining a “selfproved Will”); id. § 21.005 (self-proving affidavits); TEX. GOV’T CODE ANN. § 406 (statute governing notaries);
TEX. CIV. PRAC. & REM. CODE ANN. § 132.001 (unsworn declarations). 3. TEX. EST. CODE ANN. § 251.104. 4. See id. § 251.103(2) (explaining that a Will may be attested at any time during the life of the testator and witnesses). 5. Press Release, Office of the Tex. Governor, Governor Abbott Temporarily Suspends Certain Statutes to Allow for Appearance Before Notary Public Via Videoconference (Apr. 9, 2020), available at https://gov.texas. gov/news/post/governor-abbott-temporarily-suspendscertain-statutes-to-allow-for-appearance-before-notarypublic-via-videoconference. 6. Id. 7. “To be within the testator’s presence, the attestation must occur where the testator, unless blind, is able to see it from his actual position at the time, or at most, from such a position as slightly altered, where he has the power readily to make the alteration without assistance.” Nichols v. Rowan, 422 S.W.2d 21, 24 (Tex. Civ. App.—San Antonio 1967, writ ref’d n.r.e.). 8. See Press Release, Office of Tex. Governor, supra note 5. 9. TEX. ADMIN. CODE ANN. § 406.106. 10. While the scope of encryption and the power of PKIbased certificates are outside of this article, they are worthy of examination as it pertains to the future of document authentication, inside and outside of our courts. 11. Texas has not adopted the Uniform Wills Act of 2019 at this time, and few states have. See H.B. 3848, 86th Sess. (Tex. 2019) (relating to the adoption of the Electronic Wills Act). 12. Interview with Hon. Judge Jason Cox, Harris County Probate Court No. 3, in Houston, Tex. (June 10, 2020). 13. Id. 14. Interview with Benny Charles, Fort Bend County Court at Law No. 3, in Houston, Tex. (June 8, 2020). 15. Interview with Hon. Judge Juli Mathew, Fort Bend County Court at Law No. 3, in Houston, Tex. (June 11, 2020). 16. Supra note 12.
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By Kate McConnico and Anietie Akpan
Love in the Time of Corona:
A Family Law Perspective on the Pandemic
W
hether this pandemic creates a Baby Boom, a Divorce Boom, or both, we are all learning as we go.1 This article provides pandemic practice tips for family lawyers, provided by Kate McConnico; a discussion of COVID-19’s impact on domestic violence and how Houston is responding, written by Anietie Akpan; and Judge Mike Engelhart’s Zoom hearing tips, which he shared with Kate McConnico during a remote interview and will be helpful to all litigators. A. Practice Tips for Family Lawyers Are things getting weirder, or is it just me? Having been generally homebound since March, I’m learning new ways to get things done and cope with case challenges. Family law typically involves frequent hearings. Judges and lawyers across Texas have stepped up to the plate with creative solutions to the fact that this can no longer happen in person, but we still need to work things out for our clients. The “why didn’t we think of this before?” conversation has probably happened to most of us. God bless ingenuity and problem-solving skills. I just wish I’d had
the foresight to invest in Zoom. Below is an unscientific collection of observations and tips that will hopefully be of assistance to those who are working on family law cases during the pandemic: • Call opposing counsel to talk it out first. You have leverage. It is not likely that either of you can get in front of a judge or get instant relief, so work on your negotiating skills. • However, some counties allow inperson hearings for issues involving emergency, domestic violence issues, so long as only the two parties and two lawyers are present. Important witnesses may be allowed with prior permission. Check your local rules. • Call the court clerk to ascertain the judge’s hearing schedule if you need to request a hearing. This will at least give you an idea of when you might be heard. • Talk with your client about the cost/ benefit analysis of their perceived going forward plan and discuss potential alternate plans. You may be able to reshape your client’s mindset. I recently met a client for coffee and a short walk, and while I cannot explain the change of mind, the client transformed from an obstinate client into someone who was relaxed and comfortable with the settlement opportunity. Sometimes a change of scenery is helpful. • Mediate with someone suited to the personalities in the case and someone the judge respects. • Arbitrate. • Check in on your good clients from the past. People like attention and respond with the same. • Finally, COVID is no excuse to deny a parent’s visitation. Keep on hand paragraph 12 of the Texas Supreme Court’s Second Emergency Order (which the Court has re-affirmed several times): In determining a person’s right to possession of and access to a child under a court ordered possession schedule in a Suit Affecting the
Parent-Child Relationship, the existing trial court order shall control in all instances. Possession of and access to a child shall not be affected by any shelter-in-place order or other order restricting movement issued by a governmental entity that arises from the pandemic. The original published school schedule shall also control, and possession and access shall not be affected by the school’s closure that arises from the pandemic. Nothing herein prevents parties from altering a possession schedule by agreement if allowed by their court order(s), or courts from modifying their orders on an emergency basis or otherwise.2 B. COVID-19’s Impact on Domestic Violence Encouraged isolation, financial stressors, and limited shelter has been the impetus of yet another public health emergency in the midst of the coronavirus pandemic: domestic violence. In Houston, the self-quarantine resulted in a 158% increase in reports of aggravated family assaults in Harris County from February to March, causing a 40% increase of calls to the Houston Area Women’s Center (HAWC).3 This recent uptick in family violence is part of a pattern that sadly perpetuates the relationship between natural disasters and domestic violence. Experts have found that although “emergencies do not create the dynamic of domestic violence... they do exacerbate an environment in which domestic violence can occur[.]”4 The most recent example of the cumulative trauma of family violence and natural disaster was in 2017 in the aftermath of Hurricane Harvey, where there was a 68% increase in fatal domestic violence in counties impacted by flooding.5 Against the backdrop of this dark pathology, local advocates and law officials anticipated that the pandemic would result in a surge of domestic violence cases, and used Hurricane Harvey as a lesson learned to better prepare (and
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respond) to how new public local family violence health measures can create centers, which proopportunities for abusers to vide a wide spectrum of terrorize their victims: Encouraged supportive services, inThe City of Houston Maycluding but not limited isolation, finanor’s Office, in partnership to, rental assistance, recial stressors, and location expenses, telewith HAWC and other advocacy groups, has launched a limited shelter has health, and peer supcity-wide awareness initiaport.10 been the impetus of tive to reach domestic vioAlthough local and yet another public state lence survivors and provide government them with resources, includhealth emergency and advocacy leading giving hotel vouchers to ers have demonstrated in the midst of the organized and comshelters.6 The initiative also includes partnering with coronavirus pan- passionate responses to this “double pandemic” of HEB and the Houston Food demic: domestic domestic violence durBank, to print resource flyviolence.” ing the age of COVID-19, ers and place the flyers in this public health cridistributed boxes and bags, sis continues to marginalize domestic respectively.7 Mayor Sylvester Turner violence survivors here in Houston and also recently announced a $50,000 grant around the world. As we try to navigate from Uber to provide ride services to victhis unparalleled reality, it is imperatims of human trafficking and domestic tive for governments imposing future violence.8 quarantine and shelter-in-place orders, State leaders have also been responincluding our own, to implement a husive to the domestic violence crisis. Governor Greg Abbott recently announced that the Texas Health and Human Services Commission (HHSC) has received more than $3 million in federal funding, made available through the Coronavirus Aid, Relief, and Economic Security (CARES) Act, to provide family and domestic violence prevention services during the COVID-19 pandemic.9 This funding will provide direct support to 78 HHSC-funded thehoustonlawyer.com
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man rights and gender lens into their COVID-19 responses and funding efforts. C. General Tips for Zoom Hearings At this point, we are all relatively experienced with Zoom hearings. However, the following tips from Judge Mike Engelhart of the 151st Civil District Court in Harris County should prove valuable for family lawyers and others:11 Zoom Hearings: 1. Dress appropriately for court unless the Judge says you don’t have to. 2. Check your background. 3. Change your name on your Zoom settings so it says your full name and who you represent (Pet. or Respond. or Plaintiff or Defendant). 4. Use good lighting. 5. Practice ahead of time. 6. Make sure you are unmuted when you start talking. Zoom Exhibits: Most judges want you to file and/or
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exchange your exhibits and send the marked exhibits to the court reporter BEFORE THE HEARING. Work out disagreements if possible so exhibits can come in without objection. Practice sharing your screen so everyone can see your exhibits when you’re talking about them. Practice with your client, too, so they know what you are showing them in exhibits. Zoom Witnesses: Make sure witnesses are dressed properly, have good lighting, and a good background. For example, ensure nothing incriminating is behind them like a bong or vodka bottles, weapons, etc. Make sure their sound is good and they can hear you and you can hear them. Court reporters really struggle with video conferences. Make sure you and your clients are speaking extra slowly and loudly to make your record intelligible.
Orders: Proposed orders are extra important for remote hearings because you’re not there to mark them up. Circulate proposed orders ahead of time if possible to get agreements, even if only as to form. Preparing orders ahead of time helps you focus your presentation because you actually know what you’re asking for. You’d be surprised how many lawyers are not certain what relief they’re asking for when they start the hearing.
Kate McConnico has practiced family law and estate planning in Houston for over 25 years. In her free time, she likes to sail. Anietie Akpan is in-house counsel for the Metropolitan Transit Authority of Harris County, Texas (METRO). Endnotes
1. For some great tips on “getting through it together” for “couples [who] are struggling to cope with the stress that comes with reopening cities and towns,” see Amelia Nierenberg, Tackle Reopening Choices As a Couple, N.Y. TIMES, July 11, 2020, available at https://www.nytimes.com/ 2020/07/11/at-home/couples-coronavirus-pandemic. html. 2. As of July 7, 2020, the current emergency order that addresses custody orders was the Eighteenth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9080, available at https://www.txcourts. gov/media/1448109/209080.pdf. 3. Hannah Dellinger, Houston to Help Prevent Domestic Violence During COVID-19, HOUS. CHRON., Apr. 22, 2020, https://www.houstonchronicle.com/news/houston-texas/ houston/article/Houston-to-help-prevent-domesticviolence-during-15219710.php. There has also been concern about COVID-19’s impact on incidences of child abuse, as many children are now separated from trusted adult allies, such as school teachers, who are required to report child abuse to the state. Moreover, with children out of school, more families have had to consider “alternative measures of child care,” which some studies have linked to higher incidents of child abuse. Domestic Violence Rose in Harris County During Stay Home Order, ABC13 EYEWITNESS NEWS (Apr. 28, 2020), https:// abc13.com/domestic-violence-houston-harris-countycalls-on-the-rise-during-covid-19-coronavirus/6134989/. 4. Hannah Dellinger, Domestic Violence Calls on the Rise in the Houston Region Under Stay-at-Home Orders from Coronavirus, HOUS. CHRON., Apr. 1, 2020, https://www. houstonchronicle.com/news/houston-texas/houston/ article/domestic-violence-harris-coronavirus-stay-athome-15172180.php?utm_campaign=chron&utm_ source=article&utm_medium=https%3A%2F%2Fwww. chron.com%2Fnews%2Fhouston-texas%2Fhouston%2F article%2FHouston-to-help-prevent-domestic-violenceduring-15219709.php (quoting Linda Phan, Policy Director for the Texas Council on Family Violence). 5. Id.; see UNDERSTANDING THE IMPACT OF HURRICANE HARVEY ON FAMILY VIOLENCE SURVIVORS IN TEXAS AND THOSE WHO SERVE THEM, TEX. COUNCIL ON FAM. VIOLENCE (2019), available at https://tcfv.org/wp-content/uploads/2019/08/HurricaneHarvey-Report-FINAL-and-APPROVED-as-of-060619. pdf. 6. #NoCOVIDabuse, Stopping Violence During COVID-19, https://nocovidabuse.org/ (last visited July 13, 2020); see Dellinger, supra note 3. 7. Michelle Homer, Don’t Suffer in Silence: Domestic Violence in Houston Up 40% Since COVID Crisis Began, KHOU11 (May 9, 2020, 10:58 a.m.), https://www.khou.com/article/ news/health/coronavirus/dont-suffer-in-silence-houstonlaunches-initiative-to-help-domestic-violence-victimsduring-covid-crisis/285-42101101-5ef b-4d8a-befc08425bfb076a. 8. Id. 9. Press Release, Office of the Tex. Governor, Governor Abbott, HHSC Announce $3 Million For Family and Domestic Violence Prevention Services (May 14, 2020). 10. Id. 11. Interview by Kate McConnico with the Hon. Mike Engelhart, Judge, 151st Civil District Court, in Houston, Tex. (via email in June 2020).
How Covid-19 Impacted My Law Practice Compiled by Anietie Akpan and Braden Riley
Maria Holmes
Erin Rodgers
“As part of the legal community, you’re also resilient, with inventive ways of getting the job done despite very difficult situations. Working from home during the COVID-19 pandemic has helped me set stricter task guidelines for myself—being more communicative than usual via email, text, and chats with clients. I have successfully re-channeled my energy from the usual traffic jam stress found in everyday Houston living into optimizing positive results for my clients’ matters.”
“Most of our clients are artists and/or entrepreneurs, and what COVID-19 has confirmed for me is that artists are going to make art, no matter what. Live performances may be canceled, but we’ve had a lot of clients cleaning up or properly setting up their businesses, filing copyrights and trademarks, and finding new ways to collaborate.”
C.Y. Lee Legal Group, PLLC, Associate Attorney, Family Law
Naomi Howard
Rusty Hardin & Associates, LLP, Associate Attorney, Criminal Defense
“COVID-19 has hit the criminal justice system particularly hard. Much of our practice requires the presence of our clients in the courtroom so appearances have been pushed back to June and beyond. During this uncertain waiting period, clients have criminal charges hanging over their heads and justice is being delayed. Clients facing exposure to the virus while in custody require particular urgency and attention. But in the midst of all the bad, it’s been encouraging to see aspects of our practice move into the 21st Century and adopt new technology. I’ve been impressed with the courts adapting to this crisis.”
Veronica Jones
Fort Bend County District Attorney’s Office, Asst. District Attorney, Criminal Prosecution (Domestic Violence Division)
“During this pandemic, the work at the District Attorney’s office has not slowed down and transitioning to working from home has forced us to rely on technology more than ever to continue to pursue justice and keep victims of abuse safe. Because of the more limited interaction with others, this pandemic has encouraged me even more to take advantage and appreciate the in-person time I have with coworkers, victims, and advocates in the pursuit of justice.”
Sophia George
Germer PLLC, Associate Attorney, Insurance Defense
“COVID-19 had a significant impact on my practice as a litigator. As an insurance defense attorney, I deal with high volume dockets that are constantly moving. It felt like the world stopped for a brief period of time in March. As an attorney and mother, I had the unique experience of learning to be a litigator and kindergarten teacher at the same time. I commend our courts for their swift response to the pandemic and my fellow attorneys for being a shining example of what it means to treat each other with dignity and respect.”
Rodgers Selvera PLLC, Partner, Entertainment, Nonprofit and IP Law
Alexander Perez
Hughes Watters Askanase, Associate Attorney, Business Bankruptcy Law
“The transition to work from home has been seamless. The United States Bankruptcy Court for the Southern District of Texas has implemented sensible procedures allowing electronic access to the court system, thereby ensuring the safety of all stakeholders in the bankruptcy process.”
Juliana Serrano
YMCA of Greater Houston, Attorney for Unaccompanied Children, Immigration Law “COVID has profoundly affected immigration practice; specifically practicing with minors crossing the border unaccompanied. An important part of the practice is connecting with the children so we can help them as best we can. Zoom or phone calls versus communicating in person, hinders our ability to fully grasp the dire situations that led them to flee their countries and families.”
Mariame Aana
Lone Star Legal Aid, Staff Attorney, Public Interest Law
“The work from home transition has gone smoothly with all the support given by colleagues and measures taken by our office and in the greater legal field, enabling cases to continue progressing. Work has remained as busy as ever, and every day there is renewed motivation to meet the ever-increasing needs in our community. During this time, many Texans are struggling economically resulting from COVID related loss of wages and require legal assistance in housing, family law, public benefits, and much more. Fortunately, technology has allowed the basic aspects of providing legal services to continue virtually, with client and team meetings, as well as court appearances, able to take place remotely—our office even launched an online intake portal to accept applications via our website 24/7, www.lonestarlegal.org. Nevertheless, in-person interaction with colleagues, clients, and the courts is irreplaceable and I’m looking forward to a day when this element of the practice of law is safely restored.” thehoustonlawyer.com
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A Year for Engagement:
An Interview with HBA President Bill Kroger As Bill Kroger leads the 150-year-old bar association through a year of challenges and changes, he discusses how music, history and working with great lawyers and clients have shaped his life, practice, and sense of community. What was your childhood like? Kroger: Our family moved to Houston from Indiana in 1973 and bought the oldest, largest music company in Texas, called Parker Music Company, which had multiple stores throughout the Houston area. We worked in our stores on weekends, summers, and holiday breaks. I started by putting flyers on windshields when I was nine. By the time I was 12, my parents would drop my siblings and me off to work in different stores throughout the city. I grew up quickly, and enjoyed hanging out with musicians like Joe Hibbs and Steve Baker. My coming of age was shaped by music. I was able to take home returned records (and some new ones), and I first heard B. B. King and Bob Marley on returned records. I was introduced to James Brown, Marvin Gaye, and the Isley Brothers while working in our downtown store, and I was introduced to the music of Mickey Gilley, George Jones, and Willie Nelson in the Pasadena store. I unboxed and stocked seminal records when they just came out, like “Rumors,” “Hotel California,” Pink Floyd’s “The Wall,” and “Off the Wall” by Michael Jackson. Did any famous musicians come into the store? Kroger: Many great Texas musicians were in our store at one point or another – some as customers, others to do clinics. There are many that you have heard of, but to me the most important was Billy Gibbons of ZZ Top. Gibbons went to Lee High School. An old friend of his named Tony Dukes worked in the store and sold vintage guitars to the stars. Tony was something—long blonde hair, rattlesnake boots, giant belt buckles. Gibbons came into our Memorial City Mall store several times when I was working there, and I got to know him a little. He sent me records and concert tickets. This was before the beards and MTV, when they had animals on stage and sang Texas songs. It was the biggest show in Texas at the time, and the fact that he took time for me made a huge impression. He wouldn’t remember it now. There is a lesson there – five minutes of your time can change a child’s life. What were your parents like? Kroger: My father, Rudy Kroger, is the son of 32
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Bill in his o ffi entire 31-yea ce at Baker Botts, wher e he has pra r legal care er. cticed for h is
German immigrants who grew up in Chicago. My mother, Linda Kroger, grew up on a farm in rural Indiana. They believe in education, hard work, saving money, and staying out of debt. They re-invented the music store every five years: from band instruments and sheet music in the 1970s, rock and roll and pianos in the 1980s, Tejano in the 90s, and DJ equipment in the 2000s. They paid for their inventory in cash, and made money in good times and bad. They ran the company for 40 years. My business model at Baker Botts is torn from their guidance and the Parker Music playbook— stay current, offer your services for a reasonable price, work hard, and stay out of debt.
What did you study at college? Kroger: I graduated from the University of Texas with a business degree in accounting, and passed the CPA exam on a first sitting. I love math and numbers. But I also loved reading, especially the Greek and Roman classics. When I was in college, I just completely took in Homer’s Iliad, Herodotus’s Histories, and Thucydides History of the Peloponnesian War. Those remain seminal books for me. While at the University of Texas, I ran the Reagan/Bush Campaign on the campus for the 1984 election. It was the only time that the University of Texas precincts voted Republican. But then, Reagan and Bush were special candidates. I later earned two additional advanced degrees in business and law from the University of Texas. I was a “Teaching Quizmaster” or “TQ” in law school for two years. I wasn’t a good writer when I entered law school, but by being a TQ, I learned how to research and write well. While in law school, I met my wife Elizabeth, who was also a TQ. Can you tell us about your family? Kroger: Elizabeth and I have been married nearly 30 years. Everyone who knows me from the old days knows that Elizabeth made me a better person. She is a partner in the Labor & Employment Section at Martin Disiere Jefferson & Wisdom. We complement and have learned from each other, over many years. We have a wonderful marriage. We have three children: Ben, who is currently at Southwestern Medical School; Rebecca, who
is attending Trinity University in San Antonio; and Caroline, who is at Carnegie Mellon. They are wonderful, smart, talented, thoughtful children. In other words, they take after their mother. You have work at Baker Botts since 1989. Who has influenced your career? Kroger: I met Elizabeth, started work at Baker Botts, and joined the Houston Bar Association in the same year—1989. That was the year that changed my life. I was lucky, because we had a general assignment program back then. I tried every area of law and worked for many great lawyers, including Steve Massad, Walter Workman, Paul Yetter, Irv Terrel, Greg Copeland, Rufus Cormier, Diana Marshall, Lee Rosenthal, David Kirkland, George Shipley, Michael Goldberg, Keith Ellison, Ron Lewis, Lee Kaplan, Jim Maloney, Lou Bagwell, Joe Cialone, Ted Weiss. I learned from each of them. Secretary Baker’s father, grandfather, and great-grandfather were partners who helped build the firm, and Secretary Baker joined the firm in 1993 when he retired from public service. Baker influenced every lawyer who has worked at the firm, including me. He has been on the floor above me for 27 years, and over time, I have gotten to know him pretty well. He has so many remarkable qualities: a quick sense of humor, perfect manners, a careful listener, a lifetime learner. He has made all of us better people and lawyers. He is just a unique, special person. How did your clients shape your growth as a lawyer? Kroger: Clients play an important role in developing young lawyers. I worked for clients who have stood by me through the ups and downs. My career started with HL&P, now CenterPoint, in the early 1990s, taking direction and guidance from lawyers like Hugh Rice Kelly, Hank Roper, and Scott Rozzell. I also worked for Pennzoil in the early 1990s, with lawyers like James Shaddix and Paul Siegel. They were teachers at heart. Shaddix and Siegel sent me to Oil City, Pennsylvania as part of the emergency response to a major fire
and explosion that killed and injured many workers at an old refinery. That was how I got started in energy litigation, which is what I do today. I have also been greatly influenced by Gerald Hines. I started representing Hines Interest Limited Partnership in the mid-1990s and Marley Lott, who oversaw their work, put me on an important lawsuit. I have been their lawyer now for 25 years. I’ve worked with John Mooz and others at Hines on many of their projects in Houston, on matters arising from the great storms, accidents, commercial issues, and now COVID-19. Gerald Hines understood Houston would never fulfill its promise to be a great city if it was all billboards and strip malls, so he fought against that. He knew the importance of good design, open spaces, and bright lighting. Since I have worked with his company for so many years, that carried over to my thinking about the responsibilities of lawyers to get out and improve their communities. The founders of Baker Botts understood that too– if you want to build a firm, you have to build a great city.
20th Century. Partner Charles Szalkowski taught me about our firm’s history, and then I took over from him when he retired. Baker Botts has been collecting materials in our files for 180 years. We have hundreds of banker boxes of materials stored in a warehouse, and most of it hadn’t been looked at for decades. I decided to start requesting boxes and going through them. I have reviewed so many interesting documents— ledgers dating to 1874, Captain Baker’s real Elizabeth, C ar estate maps, and case files Starbuck an oline, Rebecca and Bill d Gandalf. , holding fa relating to Texas railroads mily pets A rwen, from the 1870s and the foreclosure of the Shamrock Hotel in the 1950s. The VID-19 infected city in America. It’s a history of Texas is in those files. unique moment in history. I feel like my education This has been a lifetime of work for me. It has and experiences that I’ve described here have led given me a huge reservoir of knowledge and exup to this moment, where I get to apply what I’ve perience. Most of the history of the City of Houslearned to help lead us through this. Fortunately, What are some significant matters that you ton is in our files, and I have spent 20 years trying I’m not alone—we have never had more strong have handled? to understand that. It gives me a special perspecleaders at all levels at the HBA, and more support Kroger: Between roughly 1995 and 2005, I tive on our City and times like the present. and enthusiasm among our members. worked with lawyers like Scott Rozzell, Daryl Bristow, Jim Barkley and others on the deregulaYou then got involved in preserving court Is a volunteer bar association like the HBA tion of the electric utility industry in Texas. After records across the State of Texas? important during times like this? that, Barkley and I worked on many of the early Kroger: That project evolved out of the preserKroger: It is critical. This is the 150th Anniversary matters involving the development of the early vation work at the firm. The history of Texas is of the Houston Bar Association. Peter Gray formed wind farms in Texas. Since 2009, my practice has about conflict, and that spilled out into the Texas the HBA in 1870 because he understood the imalso focused on the oil and gas shale plays and courts. Texas has the largest collection of historic portance of lawyers working together to solve the the legal issues arising out of horizontal drilling. court records in the United States, and most of varied problems of the City. Those were troubled My clients have included EOG, Murphy Oil, TxOGA, them are not preserved and haven’t been studied. days—Texas was still under federal occupation, Shell, Marathon, Courson Oil and Gas, and others. People talk about saving history in the context of struggling with the legacy of slavery, and the monuments. If you want to save history, save our Texas economy was still trying to recover from Are you also the historian for Baker Botts? historic buildings and our court records. the war. There was even a yellow fever outbreak Kroger: Yes. Peter Gray, one of the firm’s foundI spent a year driving around Texas, finding that year. ers, paid for the first history of Texas to be written old court records to save. You would be amazed Today, the HBA is diverse in every way. And we in the 1870s. Partner Clarence Wharton was by the history I discovered. I was particularly are committed to building a diverse Houston. If we one of the top Texas historians at the moved by the hundreds of records pertaining want the 21st century to be a good one for this beginning of the to enslaved Americans from before the Civil City, we need to fight for it—together. Diversity is War. Many African Americans don’t realize the calling card of Houston; it is where our future that information on their family histories is lies. We have an opportunity to show the country locked up in the courthouses throughout that a diverse, integrated city can be a source of Texas. It needs to be preserved, studied, strength and pride. That will only happen if we and made accessible. This is my greatest have education and justice systems that work for unfinished project. I hope to focus on that all, and make our democratic and free society later in my career. thrive. And the HBA can play an important role in all of that. What are your goals for this bar This is the year to remind us of the importance year? of a volunteer bar association in the city. It is part Kroger: To work with our lawyers and of the social infrastructure that makes the City law firms to help get the City of Houston work. through our greatest challenge since World War II. We have layers of probWhat can lawyers do? lems being thrown at us: COVID-19, Kroger: First, join and pay your bar dues. We a collapse of oil prices, civil unrest can’t do our work if we don’t have the necessary caused by many problems that have financial and member resources. Second, get not been addressed for decades, and involved. Join a committee or section. Write an maybe a depression. At the time I’m ool. h c article. Take a pro bono case. Do a LegalLine sesanswering these questions, HousS l a ic d Me uthwestern sion. This is a year for engagement. ton may become the most COdent at So en, a stu
Bill and B
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From page 15
Stephen A. Barnes, M.D, J.D., F.A.C.L.M.: As a medical
evidence in the same way we did in 1780? malpractice plaintiffs’ attorney, I see a proper jury trial as an ongo- Dr. Stephen A. Barnes: The plaintiff in a medical malpractice ing problem with the pandemic. I am on the front line with other case has the burden of proof. Every glitch and hiccough that hapICU doctors in Houston. But I’m also a plaintiffs’ attorney, and I’m pens with virtual or remote feed impacts that. Many times, jurors licensed in Texas, New Mexico, and Montana. So, I’ve seen the ef- are already upset that they’re there in the first place, missing work fects of COVID-19 on the legal system in different jurisdictions. My and having to arrange childcare. In my opinion, that is generally first take home point is that what you see and hear on the news held more towards the person who brought people to that portal in and on the internet is highly context and geographically dependent. the first place, which is the plaintiff. Moreover, humans are highly New York City is different than Montana. In the short-term, it is dependent on non-visual cues. There is a huge difference between good that we have done a lot more depositions by video rather than the non-visual cues with a three-dimensional live witness without getting on a plane and traveling in the middle of a pandemic. But, a mask than there is with a two-dimensional witness on a comon the other hand, I put some depositions on hold because there is puter screen. I have seen that when I do studies with groups of folks watching video. While presenting experts by video something unique about a live deposition. is often seen as a cost-saving measure, it is probI’ve been working hard with defense attorneys not to lematic because juries still expect live witnesses. flood or abuse the system. My big fear was that attorSitting in a room and watching experts on video neys would file more motions than necessary because While I see does not evoke the same feelings about the dispute they were not having to travel to argue them, and in some cases, opposing parties have taken advantage of turning people away as live witnesses. the ability to have a video conference with courts. But I remaining a viable MEDICAL MALPRACTICE CLAIMS have not seen that in Harris County. I’ve actually seen a big drop off here. It’s one thing when the judge is in lawsuit, I don’t Bill Kroger: Do you think we are going to have chambers; it’s another thing when he or she is at home, see huge success a mountain of medical malpractice claims due to sheltering in place as well. In the long term, I’d like to see having out-of-town suing on COVID-19 COVID-19? hearings by remote video as the standard. It’s a huge otherwise.” Dr. Stephen A. Barnes: There has been resource saver, and I don’t think that there’s a big loss some discussion that we should not sue over COin the lack of an in-person interaction with the judge because the judges read the briefs, there’s a question and answer VID-19 because there’s no standard of care. But, believe it or not, period, and judges are not as focused on body language as a juror there are certain things that are the standard of care. First, I do see some lawsuits about turning people away from healthcare proviwould be. As a medical malpractice plaintiffs’ attorney, however, my long- sion down the line. Additionally, even though this is new, we know term concern is the jury trial. I want to minimize the damage to not to intubate until it’s absolutely a last-ditch effort, and we know litigants’ right to a jury trial, and I think that is going to require an to put the patient prone or on his or her stomach. These are the open mind. When I did Zoom depositions, there were little glitch- nationally published standards in New England Journal of Medicine es. You have to, for the most part, exchange exhibits beforehand. and other journals. However, if your argument is going to be that There’s a share screen function, but it’s boring because it it’s not like the standard of care was breached regarding antiviral treatments, having a big blow up in front of a jury. And the muting function those cases will be difficult to litigate. Whether you want to love or can go bad. Also, you’re onstage all the time. The eye rolls and the hate hydroxychloroquine, whether you like Remdesivir or not, that huffing and puffing and such is amplified. There’s a difference in litigation likely is out the window. While I see turning people away remaining a viable lawsuit, I demeanor and stage presence and everything else that goes on, and don’t see huge success suing on COVID-19 otherwise. If I were a dethat’s just for depositions. My worry is that with plaintiffs in tort cases and in cases that fense attorney, my number one defense would be—they call it novel are highly jury dependent, we are in a no-win situation right now coronavirus because we’ve never seen it before. From a damages between a virtual trial that doesn’t require masks, but has all those analysis standpoint, the sickest among us are the most vulnerable glitches and is very dry, versus the live trial, which may require us- and are the ones getting hit. Texas has a long-standing tort reform ing masks, and possibly fewer jurors. The social distancing precau- that basically makes these cases worth $250,000 of capped pain tions may be necessary until a vaccine comes out. Nothing sounds and suffering, because these folks don’t have economic damages. more miserable than having a live trial with people wearing masks This low damages return elevates an already risky coronavirus case. and social distancing without the traditional gallery, but if that’s the RETURNING TO THE OFFICE new norm, then what are we going to do? Bill Kroger: Josh, from an economic perspective, and Grace, Bill Kroger: How do you see this as different from using a video from a labor and employment perspective, do you think the safety deposition transcript as testimony? Why isn’t this just the natural risk will have a dampening effect on employment and economic evolution to a technology-based society as opposed to presenting recovery? For example, are employers really going to hire their
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employees back if they think there’s a health risk or litigation risk by doing so?
Josh Pherigo: We have been surveying companies, and we’re
getting about 100 responses every week. By mid-March, anyone who was able to work from home has been working from home, and that really hasn’t changed too much. We’ve also been tracking health, activity, and economic metrics. There is a dashboard on our website that shows these metrics.9 We want the health metrics, which we get straight from the Texas Medical Center, to pair up well with the activity metrics. So, some of the things that we’re looking at for activity are, for example, data for traffic from Transtar for the Houston area, which shows how activity has returned to our benchmark. We are also looking at things like office occupancy and downtown parking. While we’ve seen that activity has gone up and traffic patterns are up as people are getting more comfortable leaving the house, the office workers are not back to work. That tells us, along with our survey results, that we expect people who can stay out of the office to remain out of the office for some time. Essential workers and manufacturing businesses have continued operating. Their major concerns have been around finding ways to operate safely. That’s why the phrase has been “Stay Home, Work Safe.” As far as the Work Safe aspect, concern for being on the hook for legal issues is going to keep companies from bringing their full workforce back for a while. I think you will see rolling return dates.
Grace Ho: I think the more dominant concerns for employers will be safety—including employee health and security—and business needs. Employers likely are taking a commonsense approach in determining the appropriate time for people to return to the workplace. It will depend on the functions specific groups of employees perform, whether those are things that are successfully done remotely, and what the employee’s personal circumstances and needs are. If employers are trying to assess potential liability for employees who may return to the workplace, get infected with COVID-19, and seek redress from their employer, the analysis will largely turn on the workers’ compensation scheme in whatever state the employers
are located. In Texas, with few exceptions for things like intentional acts or gross negligence that lead to fatality, generally, an illness or injury that’s work related is going to be addressed under the Texas Workers’ Compensation System. Under that scheme, you need to know whether the injury was work related to determine whether workers’ compensation coverage applies, which actually opens a whole set of questions. Several states have at least temporarily changed their workers’ compensation laws to broaden the protection and create a rebuttable presumption for certain workers. My sense is that on the whole, the liability considerations are secondary to the question of how do we bring folks back in a way that allows us to protect our employees and operate our business safely and productively?
THE PAYCHECK PROTECTION PROGRAM Zenobia Harris Bivens: There is one other thing I wanted
to add. I primarily do white collar and government contracts, and an issue that’s come up in my practice is the Paycheck Protection Program (PPP). The Department of Justice is starting to go after employers who have abused it, and we’ve had to work a lot with our employment law folks to better understand the PPP and how to interpret it for our clients who have taken that money. This is going to be a huge issue that will be percolating in the next few months because at the state level, and also at the federal level, there are taskforces that are specifically investigating employers who have wrongfully used that money. I think we had our first indictment and arrests two weeks ago with more on the horizon. As a legal community and as a business community, we have to be aware of those issues, particularly since the guidance on the PPP has been changing almost daily.
LEGAL NEEDS AND CHALLENGES FROM A PRO BONO PERSPECTIVE Bill Kroger: Thank you. I want to bring Keri Brown into our conversation. Keri has been a very successful wills and estates lawyer
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and is also the leader of our pro bono work at Baker Botts. She is now co-chairing a disaster and preparedness taskforce for the HBA. Keri, can you describe for us what you see as being the legal needs in the community and the challenges we’re going to have?
Keri Brown: From the pro bono perspective, we’re already seeing a marked increase in evictions since the moratorium on pursuing evictions was lifted, and we expect an increase in foreclosures, personal and business bankruptcies, general debt issues, paying your student loan provider, paying your taxes, paying your child support, and so on. Then, also, as government stimulus packages and government assistance increase for folks in Houston, we’re going to see corresponding rising questions about these topics and requests for assistance in general for programs that are being provided by the federal, state, and local governments. The growing number of people who need pro bono assistance is directly proportionate to a growing need for lawyers to volunteer to take a case pro bono. This really is an excellent opportunity for lawyers in our community to step up, help somebody in need, fulfill their pro bono goals, and perhaps even learn a new area of law. So, if you don’t yet have a pro bono case from Houston Volunteer Lawyers or your favorite pro bono partner, let me know. I can help you find one. As Bill alluded, the HBA, under Bill’s leadership, has formed a disaster preparedness committee, and Mitch Reid and I are cochairing that committee. The goal of the committee is to establish, develop, and implement disaster preparedness plans and resources, both for the HBA and our community. We plan to have something ready to go when we have our next natural or man-made disaster or other catastrophic emergency that affects Houston and our surrounding communities. The goal is to give the HBA the tools that it needs to prepare for, respond, and recover from disasters and their economic repercussions both through legal assistance programs and through advanced planning.
Bill Kroger: Often, the folks who are in the greatest financial
need do not have access to technology. How do we reach these people and how do we provide pro bono legal services to people who may not have access to the required technology?
Keri Brown: In the past, Houston Volunteer Lawyers has provided services and intake by using satellite offices at community centers. How do we continue to address the needs that were addressed through this community outreach during the pandemic? One of the things that Houston Volunteer Lawyers and the HBA are both doing, which I think has been helpful, is making LegalLine virtual. Houston Volunteer Lawyers is having virtual intake clinics as well. Getting the word out when we don’t have a lawyer going out to the community requires an even greater partnership with leaders in the respective communities. One option is coordinating to get the information on emails that are sent by state representatives to their constituents. Another option is to create a one-pager to distribute to people who are going to Houston Food Bank, for example, or who 36
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are picking up breakfast and lunch for their students at HISD. We could also potentially get churches or church food pantries to help with that. We need to think about people and organizations that have day-to-day contact with those members of our community. Once the client is in the door, how do we help them achieve access to justice? There are three things that come to mind. First, the lawyers should be actively thinking of ways to make sure that their pro bono clients have access to the necessary technology, whether it is borrowing an old laptop so that they have Zoom connectivity, setting them up with a hotspot, or finding out who they know that might have a phone they can use with a camera for a hearing. Second, the actual referral organizations, such as the Houston Volunteer Lawyers, Lone Star Legal Aid, and other pro bono providers, may be able to come up with their own solutions for this problem. Perhaps we can set up a remote working space for members of the community who need to go to court, but can’t really get to court for various reasons, and outfit that space with the necessary technology. Third, we can work with the judiciary on this issue. There may be courthouse annexes that can be used for clients who need access to technology for court appearances. I don’t know that any of these are perfect solutions, but at least they are things that can help get the ball rolling and get people talking about ways to make sure that the issue of not having access to technology encountered by people in our community who need assistance the most is mitigated as much as possible.
CLOSING THOUGHTS Bill Kroger: Can each of you address, before we conclude, some-
thing we have not discussed that you think is important?
TIPS FOR REMOTE HEARINGS Hon. Andrew Edison: People always ask me for suggestions
or advice on how to act during remote hearings. The answer is relatively short and simple, and it is complete common sense: Act as if you are in a normal court proceeding. Don’t do anything differently. Dress appropriately. Act appropriately. And by that, I mean, watch what is happening on the screen. Don’t e-mail. Don’t get on the phone. Don’t walk around your house. Don’t be eating a big sandwich or chugging a beer during your court hearing, all of which I have seen. I encourage everyone to remember that when you do a video conference, everyone can see you, and everyone can hear everything you say. Be very careful if you don’t press that mute button. Otherwise, everyone hears what you say and knows what you think about the judge or the other side. And be very careful of that chat function because when you chat, you may think you’re talking to one person, and lo and behold, you send it to not only opposing counsel and the law clerks, but the judge. Treat remote hearings the same as you would a normal hearing, and you’ll be fine.
PUTTING YOUR CLIENT’S NEEDS FIRST Hon. Mike Engelhart: What I would like to emphasize is that
as lawyers and as litigators, we sometimes live in a bit of a bubble. Certainly, as a judge, I do, because I don’t have direct access to cli-
ents, who are often regular folks who are going through the most difficult, complicated, and scariest thing they’ve ever gone through in their lives. Now this is compounded by the fact that they have to use new technology on top of the uncertainty of not actually appearing in a courtroom, but sitting in their living room and perhaps connecting to the court proceedings remotely, not knowing what to expect. I would like to emphasize that as litigators, and as judges, we all need to be much more cognizant that real people have real issues here that we’re dealing with. You may have a criminal defendant who is sitting in jail, a child waiting for her adoption to be complete, or perhaps a personal injury case where litigation has stalled. We can’t have jury trials right now to help resolve these issues. I think it is the role of the bar and litigation attorneys to understand that we have difficulties at the courthouse in processing all your cases, and it’s going to be a while, at least on the civil side, before we have anything approaching normalcy and jury trials. Some cases are just going to be on hold. I’m imploring you as litigators to develop an ethos of compromise. Look at your cases and your billable hours and your contingency fees through the lens of your individual clients and their needs. And look for ways to resolve your cases short of jury trials. If you’re an insurance adjuster or inhouse counsel or the vice president for risk assessment at a huge oil company, you need to do your part to help us move these cases forward. Because we just don’t have the capacity right now that we would have had a few months ago, and we won’t have that for a considerable amount of time going forward. So, in the interest of your individual clients, who are real human beings with real problems that need solving, try to find ways through ADR and other ways to compromise your cases and get them resolved without trial as much as possible in the short term.
CONSIDER YOUR EMPLOYEES’ PRIVACY INTERESTS Grace Ho: I think the focus of many—if not all—employers
across the city and beyond is to protect the safety and health of the workforce. This must be done in a way that is compliant and respectful of employees’ privacy interests and compliant with various legal obligations that employers will have, depending on the type of information that is collected. It’s important to look at the different laws and regulatory agencies at various levels, including OSHA and the EEOC, concerning types of information that can be collected, disclosures and consents that should be obtained, and appropriate uses and storage of that information. Collecting information from employees outside of the U.S. requires additional considerations. Regardless of the legal requirements, when employees know the reasons they’ve been asked for certain information, there tends to be an understanding that we are all in this together, and this is being done for the safety of everyone. So open communication about these sorts of things is usually a good approach.
TAKE A PRO BONO CASE Keri Brown: If you have room in your practice to take on a pro bono case, go to makejusticehappen.org to find the perfect fit.
THE HUMAN COSTS FROM A BANKRUPTCY PERSPECTIVE Wayne Kitchens: I’ll just speak from my perspective as a bank-
ruptcy practitioner that represents small and mid-sized businesses. You’re not seeing a huge wave of bankruptcies with these clients right now. I think that is partially because a lot of those business owners are still in shock. Some of them may be living on PPP money. But I think that wave is coming. A big part of my practice is representing Chapter Seven Bankruptcy Trustees. When the moratoriums in the mortgage industry run out, you’re going to have real people who are really, really hurting. You’re going to have small businesses that did well in the past that can’t even afford to file a Chapter 11 to re-organize anymore. Sometimes, they don’t even have the money to pay a retainer. So, I think compassion, going forward, is important. So, I would just urge everybody to think about the human cost of this pandemic in personal and financial terms.
ENCOURAGEMENT FOR LAW STUDENTS Zenobia Harris Bivens: I would like to address law students.
I graduated from law school during a financial crisis in 2008. I came out of law school terrified because I had a clerkship with a judge and not a job. When I finished my clerkship, I had secured a job, but they were basically furloughing all of us for three months to a year. I decided that I was going to be creative during the furlough, and I sent out applications for internships to every judge in the Houston, San Antonio, and Galveston area. I ended up getting a three-month internship with Judge James Rodriguez in the Western District of Texas. He didn’t pay me, but those were some of the best months of my career. It was time for me to learn and make connections with lawyers and improve my writing and speaking abilities. I teach trial advocacy at the University of Houston now, and I’ve talked to the students about their summer jobs and how they are getting shorter and shorter. I tell the students, from somebody who has lived through an economic crisis and was able to ultimately get employed and make partner, that it will be okay. They will figure it out. And, I advise them to think creatively about what they’re going to do. This, too, will pass.
WE ARE EXPERIENCING TRAUMA Justine Fanarof: I love this quote from the teacher Jack Korn-
field: “If you can sit quietly after difficult news; if in financial downturns, you remain perfectly calm; if you can see your neighbors travel to fantastic places without a twinge of jealousy; if you can happily eat whatever is put on your plate; you can fall asleep after a day of running around without a drink or pill; if you can always find contentment just where you are; you are probably a dog.”10 These are really hard times. People are struggling, and there’s a lot of trauma. The American Psychological Association defines trauma as “an emotional response to a terrible event like an accident, rape or natural disaster.”11 Collectively, as a society, we have experienced a trauma.12 We know that self-care is beneficial and an important counterbalance to trauma. We also know that finding meaning in work has thehoustonlawyer.com
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been shown to be an important wellness strategy. So, continue to think about encouraging your sense of purpose. Take a pro bono case. Connect with the family. Connect with a small business. Take the time to learn a new skill as an attorney. We must be resilient. We may be in a space, collectively or individually, where people are feeling depressed, anxious, financially strained, or beyond means. And so, as a community, and specifically as the HBA, it’s really exciting to think about the wellness initiatives that the HBA has put in place over the past year in coordination with the American Bar Association’s Well-Being Pledge.13 We need to refocus our attention towards individual and collective wellness. In Houston, we lead in oil and gas, and we lead in the medical field. Let’s also lead in well-being and satisfaction and employee health. This is a beautiful opportunity to shine from Houston and show other communities how we lead with care.
KEEPING AN OPEN MIND REGARDING COVID-19 LITIGATION Dr. Stephen A. Barnes: We are all in this together. We’re still
learning. We need to respect the needs of the clients to get to the end of their disputes. But at the same time, we have to respect the current limitations in place and embrace technology to get there, particularly during discovery. I urge all of us – plaintiffs, defendants, and judges – to keep an open mind. I’m talking about the balance between the medicine, as we know it, as of May 2020, versus the medicine that will develop, going forward. My message for plaintiffs is that most COVID-19 cases will be hard, especially when you consider immunity associated with the Federal and Texas Tort Claims Acts and the novelty of COVID-19. For defendants, I would encourage attorneys to not automatically take on the mantra that all doctors and hospitals are superheroes, as he or she may have been at home during the crisis, like many of us. And for judges, my choice as a tort medical malpractice attorney would be to allow the parties to put off trial rather than force a video trial. All of us should tailor our approach and decisions regarding the case to the facts at hand and not make a snap decision that, just because we are coming out of a crisis or even in the midst of a crisis, we have to do things differently regarding the rights of the parties, including the right to a traditional jury trial.
THE NEXT GENERATION OF ECOMONIC GROWTH Josh Pherigo: COVID-19 is exacerbating and accelerating under-
lying changes in the Houston economy that have been bubbling up for a while, and there’s no turning back. It’s going to be up to the business community and everyone in Houston to define what Houston’s economy is going to be for the next half century. This is the time to take the steps and figure it out. The acquisitions, mergers, and bankruptcies that will be happening in the next few months may seem surprising, but it’s not a new trend. It has been going on for the last decade. In 2009, there were 29 Fortune 500 companies headquartered in Houston. Last year, there were 22. The difference in those numbers is because very large energy companies have been getting swallowed up by other energy companies. This crisis is only going to continue that trend as we see consolidation in the energy industry.
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Figuring out where the next generation of growth for Houston’s economy is going to come from is important. I am not saying that energy is not going to be a heavy part of our economy going forward, but when it comes to growth and job production, we’re going to have to find that from somewhere else. This crisis provides an opportunity to figure that out. Endnotes
1. The opinions, statements, links, and other content shared by the panelists are for informational purposes only and do not constitute legal or professional advice. 2. The Houston Lawyer Editorial Board has added titles to assist the reader in finding the most relevant information. 3. Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), Pub. L. No. 116-136 (2020). 4. See Charles Scudder, In a Test Case, Collin County Jury Rendered a Verdict on Zoom for the First Time; Too Risky for a Full Trial?, DALL. MORNING NEWS, May 22, 2020. 5. RAM DASS, BE HERE NOW (1978). 6. Am. Addiction Ctrs., Addiction & Substance Abuse in Lawyers: Stats You Should Know (Feb. 19, 2020), https://americanaddictioncenters.org/rehab-guide/workforce/white-collar/lawyers. 7. See www.tlaphelps.org. 8. See Leonard M. Baynes & Jennifer Collins, Opinion, Black Lawyers Matter: What the Texas Legal Community Can Do to Eradicate Racism, HOUS. CHRON., June 19, 2020. 9. See Greater Hous. P’ship, Reopen Houston Safely – Monitoring Dashboard, https://www. houston.org/reopen-safely-dashboard (last visited June 30, 2020). 10. JACK KORNFIELD, A LAMP IN THE DARKNESS: ILLUMINATING THE PATH THROUGH DIFFICULT TIMES (2011). 11. Am. Psychol. Ass’n, Trauma, https://www.apa.org/topics/trauma/ (last visited June 6, 2020). 12. For information about “trauma-informed lawyering,” see Sarah Katz & Deeya Haldar, The Pedagogy of Trauma-Informed Lawyering, 22 NYU CLIN. L. REV. 359 (2016). 13. See Wellness, HOUS. BAR ASS’N, https://hba.org/index.cfm?pg=wellness (last visited June 15, 2020); see also Am. Bar Ass’n, Working Group to Advance Well-Being in the Legal Profession, https://www.americanbar.org/groups/lawyer_assistance/ working-group_to_advance_well-being_in_legal_profession/ (last visited June 23, 2020).
HBA Milestones
The HBA also immediately created a COVID-19 web page to provide Houston lawyers and members of the public with important resources and information. The HBA communications department created the site, which initially provided information that the courts asked the HBA to disseminate. The web page quickly developed into a comprehensive resource for legal information related to COVID-19, for both lawyers and the community. The HBA also has provided timely CLEs via Zoom to address the rapidly changing legal landscape. The first such CLE, held on By Anna M. Archer March 27, was entitled “Practicing Law in the Time of Coronahe Houston Bar Association was founded 150 years virus: How to Conduct Effective Hearings and Remote Deposiago. The HBA Milestones feature, which will appear tions.” This CLE had over 400 attendees – more than double the in each issue of The Houston Lawyer during the 150th number of people who usually attend in-person CLEs. A second anniversary bar year, will highlight milestones in the extremely helpful and popular CLE entitled, “The Harris County HBA’s history. Due to this anniversary coinciding with a District Courts Response to COVID-19: What Houston Trial Lawworld pandemic, the HBA has modified its normal programming yers Need to Know Now,” had approximately 900 attendees. This and focused on how to best serve the bar and community during program was followed by a this crisis. The first HBA Milesimilar update on the Probate stone will thus consider what Courts in June and the Crimiwill in the future be considered nal Courts in July. Moving the the HBA’s historic response to HBA CLE program to an onCOVID-19. line format has made it easier In March 2020, the COfor more attorneys to obtain VID-19 situation was rapidly essential information needed changing, and the HBA was for their legal practices during quickly gathering resources this unusual and challenging and considering the best way time. in which it could serve its COVID-19 has forced most membership during the crisis. businesses, including the The HBA staff holds a virtual meeting every morning since it went remote in March. The March 9 e-Bulletin advised HBA, to embrace technology, and many of the changes we have members to watch the HBA website for developing updates rewitnessed will be long-term changes that will result in more effigarding COVID-19. By March 13, the HBA canceled all in-person cient operations. Certainly, we hope to return to in-person meetseminars and committee meetings. Three days later, the national ings and CLEs, attend large networking events, build houses, Centers for Disease Control (CDC) recommended that all gatherclean up bayous, and participate in all the other fantastic events ings that involved ten or more people should be canceled or held that have defined the HBA throughout its 150-year history. But virtually for the next 15 days.1 Given this guidance, on March 17, right now, other aspects of the HBA’s commitment to the bar and the HBA’s staff packed up the items that would be needed for the community are more pressing, and technology has opened the foreseeable future and began conducting business remotely from door to meeting those needs. COVID-19 will be a milestone in their individual homes. the HBA’s history not only because it was forced to change the Remarkably, the HBA has been able to continue to provide its way it does business for the short-term, but because it was able membership and the community with the same or even supeto embrace technology and provide exceptional services to the rior service during this crisis. While meetings and some major Bar and the members of our community that most need those events unavoidably have been canceled or postponed, the HBA services now. has ramped up other services to better address the unique needs that have arisen during the pandemic, said Mindy Davidson, HBA Anna Archer is the editor in chief of The Houston Lawyer and a executive director. For instance, the HBA was able to continue member of The Houston Lawyer’s History Subcommittee. The memand expand its LegalLine program, which is a community serbers of this subcommittee will be writing about the HBA’s history in vice outreach program that allows members of the public to rethe HBA Milestone feature throughout the 2020-2021 Bar Year. ceive legal advice over the phone. The HBA made modifications
HBA Office Responds to COVID-19 Challenges
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so that volunteers could answer calls from home and temporarily expanded the LegalLine hours due to the vast number of legal questions members of the community had relating to COVID-19.
Endnotes
1. https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/eventplanners-and-attendees-faq.html (March 16 Update).
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OFF THE RECORD
Alison Sulentic:
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Unmasking a Balance
The Houston Lawyer
By Kimberly A. Chojnacki
ence, which harkens back to when she cared for her husband afhere are very few crafts that Alison Sulentic, an attorter his ALS diagnosis. During that time, she was working from ney, mediator, and coach in Houston, hasn’t tried. It home and caregiving under exceedingly stressful circumstancfirst began in middle school when she took a basic sewes. What she found was that doing art projects was a significant ing class. That evolved to sewing her children’s Halcomponent of managing the stress of being another’s caregiver. loween costumes when they were young. When her When the pandemic hit, children began eschewing her talents, she turned to other she was just starting to recrafts. In recent years she has explored the fine arts through boot her practice and reenwater colors, drawing, art challenges, and exploring color ter life as a fulltime lawyer theory. following her husband’s By the time COVID-19 hit, Alison hadn’t used a sewing passing. Then COVID-19. machine in about 12 years. But she heard on the news about She found herself back a hospital in Georgia that had run out of personal protechome again, a uniquely fative equipment. The hospital miliar space for her. And instructed its employees to use now again, her art—maktheir work time to make masks. ing masks—has become a creIt struck a chord with Alison. ative outlet, all-consuming, and A few weeks later, she learned cathartic. She found it to be a that a friend of hers in Boston natural response to the circumhad started making masks for lostance, while also being somecal hospitals. So she pulled out thing she could do to help others. her sewing machine. She also By having to focus on the task at pulled out the old threads, fabhand, she’s taken out of worrying rics, and accessories used for her about everything going on in the children’s Halloween costumes: world. cowboy fringe and gold toile for “You need something other a princess dress. Her sewing mathan the practice of law to keep chine still worked and the fabrics sane. One way to do that is to would do just fine. She found a mask pattern that a nurse had For Alison Sulentic, making masks for others creates a sense of community. live in the moment and focus on something other than difficulties of practice, of a global pandesigned to cover an N95 mask and she got to work. demic,” Alison says. She urges us to take “the opportunity to Initially she intended to give the masks to healthcare workfind what it takes to be creative and how to use that creativity.” ers, but shortly after starting her work came the recommendaAlison estimates she’s made around 130 to 140 masks. Some tion that we all should wear masks. So she put a note on Faceof those have gone to healthcare workers, while many others book and within 24 hours, she had a long list of requests. She have gone to friends and family. In the past few months alone, has been sewing masks ever since for friends and family, friends her work has connected her to people she might not have known of friends, and even clients. otherwise and reconnected her to others. For her, it “creates a For Alison, it’s a meditative activity, pairing fabrics and going sense of community” and has enabled her to “experience comthrough the motions. Since working through her existing fabric munity, even when we can’t connect in person.” stash, she has used fabrics donated to her, some that she found at a fabric store, and even on Etsy for hand-crafted and unique fabrics. Kimberly A. Chojnacki is a litigation associate at Baker DoShe says she often thinks about the people she’s making the nelson in Houston. She represents corporate clients in eminent mask for when she’s sewing, even those people she doesn’t really domain proceedings, complex commercial litigation, and insurance know. Beyond meditative, it has become a caregiving experidefense disputes.
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A Profile
in pro f e s s i o n a l i s m
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Anne Chandler Executive Director, Houston Volunteer Lawyers
he Mandate for Professionalism issued by the Texas Supreme Court and the Court of Criminal Appeals in 1989 does not begin by detailing the duties we owe our paying clients. Rather the Creed starts by highlighting our obligation to the community. And it deliberately uses the first person. It instructs: “I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.” Further, “I commit myself to an adequate and effective pro bono program.” Today in Houston, we face a gap between the aspirations of our Creed and the performance of our legal community. Houstonians have always shined in the face of hurricanes and other trouble. And so, this difficult year of 2020 is a moment not just for our medical profession to excel but also for our Houston legal profession to further that tradition. As the new Executive Director for the Houston Volunteer Lawyers, I am committed to do everything I can to facilitate a renewed commitment to our Creed. Prior work has shown me how volunteer attorneys make a huge difference in the lives of clients. I have faith that many attorneys will find immense satisfaction in doing so. I do not need to tell you of the havoc wreaked on our economic and social systems by the terrible pandemic. I do not need to lecture you on the pre-existing racial injustices and tensions to which Houston is not immune. Space permits only a few statistics, but consider this: the CARES Act likely gives legitimate defenses to over 20% of those facing eviction and yet only 3% of those facing eviction and homelessness during COVD-19 in Harris County were represented by counsel. You can make a difference not just in landlord tenant disputes but in the bankruptcy, unemployment, and domestic violence claims in which pro se representation is now often the norm. Houston Volunteer Lawyers will be asking you with renewed fervor to answer the call. We are adding training and mentorship systems to support you. You may face the challenges of working with people of different cultures, education, language or race. But if you say, “Yes, I’ll take a case,” I promise that, with HVL standing behind you, the quality of justice will improve. And, whatever harms 2020 has wrought, you will feel pride in how our legal community stepped up during these difficult times and honored the Creed to which we swore an oath those few or many years ago.
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Ancillary Organization spotlight
Houston Volunteer Lawyers Transitions to Virtual Clinics to Serve Pro Bono Clients
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The Houston Lawyer
By Randall “Randy” Clark
ouston Volunteer Lawyers (HVL), like every other law firm and business here in Houston, found itself displaced from its downtown offices in mid-March of 2020 because of the COVID-19 pandemic. The impact of the pandemic on its core mission was felt almost immediately. Founded in 1981 by the Houston Bar Association, HVL delivers free legal services to lowincome residents of Harris County by linking qualified applicants with attorneys volunteering their time on a pro bono basis. Much of those 35 years, HVL has operated using a legal clinic model. Hosted by partner service organizations at their locations, volunteer attorneys and applicants for legal services meet face-to-face, resulting in applicants receiving immediate legal advice. Subsequently, if an applicant needs further representation and financially qualifies, HVL will seek to match the applicant with a volunteer attorney for further representation. When the partners were forced to close the locations of these legal clinics, HVL began looking for an alternative to the way it conducted business. The result was a “virtual intake application” similar to those at the legal clinics and accessible on HVL’s website. Individuals now are able to apply for legal services by completing the online application which directs them to the HVL staff for completion of the intake process. The application process also pre-qualifies individuals at the same time. Once the application is completed, the individual is scheduled for a telephonic conference with a volunteer attorney. Initially, the number of individuals utilizing this new online website approach was significantly lower than the traditional legal clinic model but participation has been trending upward each week due to 42
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HVL’s significantly increased social media presence. Mindful of the substantial number of individuals it serves who have absolutely no access to internet technology or are simply untrained in the necessary computer skills required to apply for HVL services through the virtual intake application, HVL staff had traveled to residential or treatment facilities to meet with clients who had limited mobility. In many of those cases, social workers serve as an intermediary for the clients. However, those residential and treatment facilities remain closed to HVL and the general public, and HVL has reached out by leaving flyers and telephone numbers to let its clients know HVL remains available to provide legal assistance. In those instances, HVL staff can complete the client application over the telephone and a telephonic conference with a volunteer attorney similarly occurs. HVL has expanded on its success and replicated the “virtual legal clinic” to assist clients in domestic violence matters, partnering with attorneys from local Houston law firms as partner volunteers. All in all, HVL has found that it has had to improvise and innovate using new methods for doing business in these trying times. If you are interested in volunteering your legal services as a volunteer, you can reach HVL by calling (713) 278-035 or by accessing our web page at www.makejusticehappen.org. Randall “Randy” Clark is the Associate Executive Director of Houston Volunteer Lawyers. After leaving active duty in the United State Air Force, he has been an active member of the Houston legal community. He remained in the Air Force Reserves until retiring in 2003 with the rank of Colonel.
SECTION spotlight
Spotlight on the Family Law and Corporate Counsel Sections:
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Meeting the Pandemic with Creativity and Innovation
By Trey Holm
t the writing of this article, the reported cases of COapplications. Fritsch explained that the section sponsored Zoom VID-19 have surpassed 4 million in the U.S. alone. The webinars and invited Family District Court Judges to discuss resteadfast annual ritual of the “First Day of School” conmote hearing policies. tinues to be pushed back further into the fall, with some “Judges offered commentary and tips on Zoom policies, submisdistricts not returning to in-person instruction until sion policies, and expectations of lawyers during Zoom hearings,” 2021.Through the opacity of masks and physical distance, personal she said. These webinars led to online chat sessions between the connections, once innumerable and effortless judges and the section board officers wherein with a smile or handshake, must tenuously the officers would bring feedback from the memgrasp to a muffled voice and a passing glance. bership on the new policies and procedures. It is in this uncertain and constantly changRealizing the import of this type of dialogue in ing environment that the practice of law must the current environment, Fritsch said, “We all adapt. With the hope to provide encourageagreed to continue these sessions on a monthly ment to HBA members, this article shares basis to make sure information was flowing back stories from two sections exemplifying the and forth from our judiciary and members.” idea that coming together in support of one Another section meeting this pandemic another and in service to our community is with creativity and innovation is the Corpopossible and worthwhile. rate Counsel Section. With businesses shutterIn many ways, those practicing family law ing one after another and the oil industry in a were at the legal “tip of the spear” when the tailspin, the leadership of the HBA’s Corporate HBA Family Law Section invited Family uncertainty was at its highest and the stay-at- The District Court Judges to discuss remote Counsel Section is needed more than ever. Imhome orders were in full force and effect. We hearing policies via a Zoom webinar. mediate Past Chair Ed Burdzinski confidently all heard the stories of children being withheld from their loving proclaims, “The Corporate Counsel Section rose to the occasion first-responder parent by the opportunistic parent. Or of those in when faced with the stay-at-home orders, social distancing guideimmediate danger from an abusive spouse or parent now living in lines, and general downturn in the economy.” “quarantine” with daily violence and no reprieve. As our HousThe section had successfully converted its in-person meetings ton legal community does on so many occasions, the Family Law into webinars as early as April. Additionally, working with the Section, under the leadership of Kelly Fritsch, Amy Allen, Tammy HBA, the section assisted in the design, testing, and implemenMoon, and Jennifer Caras, acted quickly to develop alternative avtation of a new secure electronic voting system for its memberenues for connection among members of the section and with the ship. “We were the first section to hold elections this way, allowing Family District Court Judges. “We decided we needed a way to other sections to benefit from the new platform, providing for a connect with the section without having the typical face-to-face seamless transition into the coming year,” Burdzinski said. contact at the Courthouse and during the monthly lunches,” ImWithout question, we are living in unprecedented times with mediate Past Chair, Kelly Fritsch, said. little ability to plan the future. However, with the shared strength The most outwardly apparent action the section leaders took was of our local bar community, each of our sections, committees, and to create a robust cache of information and daily updates of any individual members will continue to innovate, share, and support court policy changes on the section website. The website is accessione another in the service of our clients and our community. ble to section members and nonmembers alike. The section posted and continues to post updates from Harris County and counties Trey Holm is a member of The Houston Lawyer editorial board. He beyond, such as Fort Bend and Montgomery County. Additionally, is an associate with Killeen & Stern, PC where he focuses on insurthe section wholeheartedly adopted the use of video conferencing ance litigation. thehoustonlawyer.com
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LEGAL TRENDS
A [Texan] COVID Success Story
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The Houston Lawyer
By Heather M. Bustos
il and gas are as engrained in Texas culture as barbecue and Dr. Pepper. Well, at least that is what I have learned in my six years living here. In that time, I have built my law firm specializing in the niche area of Food and Drug law. Although to many attorneys this may seem like a tiny corner of the legal world, the Food and Drug Administration’s (FDA) regulatory authority is quite broad. According to an October 2019 FDA Fact Sheet, FDA-regulated products account for about 20 cents of every dollar spent by U.S. consumers.1 This makes the world of FDA regulation vast, expansive and thereby always keeping me on my toes. Practicing in this area of law in the time of the COVID-19 pandemic has also placed me at a unique vantage point. From the moment the pandemic was declared, to this very moment writing this article, my firm has been bombarded with companies wanting to boost supply of all kinds of COVID-related products: from N95’s and gloves to soaps and sanitizers. One of the most interesting developments I have been lucky enough to witness is, what I believe to be, a true Texas success story. Enter the oil and gas industry in Texas, which expands all over the globe. In my few years living here, I have seen its ups and downs. It is the nature of the industry, but this pandemic has caused a downturn of seismic proportions. Some news outlets are calling it a “double crisis” as oil prices swiftly dropped, almost simultaneously, with coronavirus hitting the State of Texas. Traditionally, the oil and gas industry has been on the hunt for ways to diversify its products and services, which it has now found in antiseptic rubs, more commonly known as hand sanitizers. Hand sanitizers are regulated by the FDA as topical over-
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the-counter drugs. The FDA uses a system called the OTC Monograph process to regulate these products. Although these products are commonplace in the market, there are still many questions about their efficacy and there remains to be a debate on how they may be causing antibiotic resistance. However, that is a conversation for another article. When many companies began jumping on the hand sanitizer band wagon, they likely began using what is known as the “WHO formulation.” This is essentially a recipe that has been authorized by the FDA for firms who may not have had prior experience in the industry. It consists of a high percentage strength of alcohol along with hydrogen peroxide, purified water and glycerol. Many firms, including distilleries, began to manufacture sanitizer utilizing this formula and quickly realized that consumers, used to the standard set by brands like Purell and GermX, were not too happy with a strongsmelling liquid solution. The standard most common in the industry is a cool cucumber or clear gelled end product. Many of these companies are still trying to formulate the smell out and the viscosity up only to realize that formulating OTC drug products may be more difficult than it initially seems. The oil and gas clients that have approached my firm all have something in common: the ability to move quickly, but cautiously, into new arenas with a swiftness more akin to Silicon Valley. Moving into these heavily regulated areas is no easy task. The differences between oilfield chemicals and consumer products are pretty easy to spot, but the industry has decided to meet it head on. Their access to ethyl alcohol (also referred to as ethanol), one of the most commonly used active ingredients in hand sanitizers, and to many commonly used inactives has provided a vehicle for these companies to keep their doors open and employees running at full steam. The processes and safeguards will need to be tighter and more stringent as these products are meant to come into contact with human skin, but
the shift has been taken in great stride. The ability to pivot is in the nature of the industry and from my vantage point, this new industry is here to stay. Heather M. Bustos is an FDA compliance attorney and the owner of Bustos Law Group located in The Woodlands, Texas. She assists both U.S.-based and international companies with FDA compliance for food, dietary supplement, pharmaceutical drug, medical device, and cosmetic products as well as, FDArelated import/customs issues. She serves on the board of the Woodlands Bar Association and the WBA’s Diversity and Inclusion Committee. Endnotes
1. Fact Sheet: FDA at a Glance, U.S. FOOD AND DRUG ADMIN. (Oct. 2019), https://www.fda.gov/about-fda/ fda-basics/fact-sheet-fda-glance
Covid-19’s Impact on Supply Chain
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By C. Mark Murrah and Jose L. Trevino
oronavirus has had a variety of impacts on traditional business (such as working-from-home becoming a possible new norm), but one of the most important long-term impacts will be the permanent disruption of the global supply chain. China plays an enormous role in global manufacturing, with the latest U.S. Census report showing that U.S.-China trade in goods and services amounts to almost US$138 billion for the first quarter of 2020 alone. As early as January 2020, U.S. companies began to feel the effect of Covid-19’s disruption to the global supply chain and government and corporate voices are increasingly raising concerns about the United States’ overwhelming reliance on China. As Coronavirus decimated China’s production, U.S. companies began to see Chi-
LEGAL TRENDS
nese companies invoke contractual force majeure provisions. At first, this affected only in-bound contracts, with Chinese companies, knowing their plants would soon be shut down, refusing to take delivery of natural gas, copper, and other commodities. Outbound contracts followed as China shut down its manufacturing hubs and Chinese companies simply defaulted on contracts, leaving US wholesalers unable to fulfill their contractual obligations to end buyers. As Covid-19 spread worldwide, U.S. companies discovered that an alarming amount of goods, including personal protection equipment (PPE) and pharmaceuticals, were manufactured in China, leading to a shortage of masks, gloves, gowns, and potential antivirals as China shut down. As hospitals, medical providers, governments, and other private businesses scrambled to procure PPE, the global supply chain adopted a Wild West model of just-in-time pricing and deals. Brokers sought to place PPE sales with same-day closing requirements and required upfront payment in full. The lack of security and structure created what was effectively a black market in PPE, with buyers requiring ‘proof of life’ videos to establish that the product actually existed. Hospitals were defrauded out of millions of dollars as they desperately sought to fill PPE orders. It was not uncommon for the price of goods to rise during the course of a conversation with an alleged supplier once the supplier realized he had a serious buyer. Force majeure, shortages, free-for-all buying, and fraud have made clear that supplychains (particularly in medical supplies) will be impacted long-term by Covid-19. To combat disruptions in supply chain, U.S. companies should be mindful of two overarching trends. First, U.S. companies must rethink the way they procure their products to minimize inventory disruptions that could jeopardize their viability. Several executives of major local companies consider their top priority to be reshoring or near-shoring
their suppliers to “safer” locations. Reshoring, loosely defined, is the decision to relocate a manufacturing process back to its home country. Near-shoring, on the other hand, is a relocation of a manufacturing process to a nearby country of a company´s home country. For the United States, this means sourcing products and services from Canada and Mexico under the terms of the United States Mexico Canada Agreement (USMCA). Second, economic nationalism and the breakdown of globalization structures will continue apace. Numerous countries, including China and India, shut down the export of PPE and pharmaceuticals to ensure their own citizenry had ample supply. Such actions show that in times of crisis the United States cannot rely on external supply-chain sources to remain uninterrupted. In response, the current US administration has already announced additional tough economic nationalist measures such as removing Hong Kong’s favored trade status, possible additional tariffs, and paying U.S. companies to move their manufacturing and supply chain back to the U.S. In conclusion, both the government and private business in the United States have received a shocking wake-up call from Covid-19. U.S. companies should and will implement a relocation strategy of their manufacturing and supply chain either to the U.S. or to friendlier countries such as Mexico or Canada. Such relocation strategies will be heavily influenced by the United States’ domestic and foreign policies regarding preferred trade partners and support of locally made goods. C. Mark Murrah is the managing partner of Murrah & Killough, PLLC, a business law firm with offices in Texas and Mexico that provides transactional and litigation services to both US and international clients. Jose Trevino manages the firm’s Monterrey, Mexico office and advises businesses on the intricacies of Mexican law and U.S./Mexico relations.
Covid-19 and Foreign National Workers in the United States
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By Sang Shin
ver the last three months, stay-at-home orders have become commonplace around the United States and in Houston due to the COVID-19 pandemic. For foreign national workers who are employed by multinational corporations and businesses, these orders have practically broadened into “stay-in-country” directives. The United States boasts the most intricate immigration system in the world and is home to an alphabet soup of temporary visas, which are available to foreign nationals depending on their circumstances. For example, the H-1B visa is reserved for foreign nationals who will be employed in “specialty occupations,” or positions that normally require a Bachelor’s degree or higher; the L-1 visa is issued to intra-company transfers who will perform work at a related U.S. parent, subsidiary or affiliate company; and the TN visa is dedicated to Canadian and Mexican nationals who will work in a specific professional position. While these visas primarily bestow lawful work authorization and status to foreign nationals in the United States, they also serve the dual purpose of allowing foreign nationals to travel internationally— whether they are visiting their home countries or for business purposes. Citing high domestic unemployment caused by the pandemic, President Donald Trump recently issued a Presidential Proclamation suspending the entry of foreign nationals who present a risk to the U.S. labor market following the Coronavirus outbreak on June 22, 2020.1 The order continued and expanded upon a previous order (isContinued on page 49 thehoustonlawyer.com
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Media Reviews
Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World By Robert Dubose ALM (2010) and published articles Reviewed by Benjamin K. Sanchez
The Houston Lawyer
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ttorneys are in the business of persuasion. We do so by recitation of facts, presentation of applicable law, and argument on how the law supports our client or fails to support the opposing party. We often speak before clients, mediators, arbitrators, and judges. Before we get to speak, however, we must write. It is rare that a fantastic oral argument can overcome a poorly written motion or brief. Thus, every attorney should constantly be updating their writing skills considering new data about readers and technology that comes out on a regular basis. This is where Robert Dubose comes in. Dubose is a partner at Alexander Dubose & Jefferson LLP. He’s a magna cum laude graduate of Rice University and a cum laude graduate of Harvard Law School. He primarily handles appeals and is an accomplished author and adjunct professor. In 2010, because of the interest in continuing legal education seminars he was presenting on the subject, Dubose authored Legal Writing
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for the Rewired Brain: Persuading Readers in a Paperless World, which was published by ALM Media. Although the book is now out of print, copies of the book are still out there. More importantly, Dubose has written additional CLE papers on the topic and was an advisor to the American Bar Association’s Council of Appellate Lawyers when they published their 2017 report entitled “The Leap from E-Filing to E-Briefing: Recommendations and Options for Appellate Courts to Improve the Functionality and Readability of E-Briefs, which can be found at www.americanbar. org/content/dam/aba/administrative/ appellate_lawyers/2017_cal_ebrief_ report.authcheckdam.pdf. Dubose’s latest paper entitled “Legal Writing for the Rewired Brain” can be found on his firm’s website at www.adjtlaw.com. The book is 134 pages, with an additional three pages of Frequently Asked Questions and 10 pages of endnotes. The book is divided into two parts. Part I has five chapters that cover how our brains have been rewired over time. More specifically, the topics include (1) the screenreading revolution, (2) how communication revolutions rewire the human brain, (3) the screen-reading environment, (4) the way we read is changing, and (5) communicating with a rewired reader. Although Dubose acknowledges that his book can be read and used in a variety of ways, I was tempted at first to skip Part I and get straight to the 10 tips for writing to the rewired reader covered in Part II. I’m glad I didn’t, because in understanding the history of screen reading and writing, and how that has changed how we read, the writing tips made much more sense and became ingrained in me. Dubose backs up his information with various studies about how people read on a screen.
This book can be read in one sitting and then referred to repeatedly when you want a refresher on a particular writing tip. I have owned this book since it came out 10 years ago, and this book along with Matthew Butterick’s Typography for Lawyers, have had the most influence on how I present my written pleadings, motions, and briefs to trial and appellate courts. The tips included in Part II cover such topics as logical structure, using effective headings, number lists, bullet points and summaries, keeping it simple, and using white space and visuals. In this day and age, if your writing still looks like it has been done on a typewriter, you are doing a disservice to your reader and, more importantly, to your client, who is relying on you to effectively communicate to a judge, arbitrator, mediator, opposing counsel, or regulatory agency. If you are not actually writing your own legal documents, then you should also ensure that your associates and paralegals learn this information. It has been proven time and time again that screen readers read in a certain pattern and look for visual clues to not only guide them through the document but also propel them to keep reading. If your writing fails to take these reading habits into account, your writing will be less effective and has a higher chance of not being read at all. If you are lucky enough to find a copy of this book, don’t pass up the chance of adding it to your library. At the very least, look for Dubose’s CLE paper mentioned above and the ABA report, both of which contain a wealth of information similar to that found in the book. Benjamin K. Sanchez is a 22-year attorney practicing consumer law and family law. He is a bar leader and national columnist. Additionally, he is certified by John Maxwell and Les Brown as a speaker, trainer and coach.
Media Reviews
Court Proceedings Amid the Coronavirus Pandemic
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Reviewed by Brooksie Bonvillain Boutet
The First and Fourteenth Courts of Appeals have also heard oral arguments in a manner similar to the Supreme Court of Texas.1 At the trial court level, the Harris County District Court has been quick to transition to telephonic or Zoom hearings that are publicly accessible, and on April 20, Judge Beau Miller held the first bench trial via Zoom, garnering more than 2,000 viewers. By embracing technology, the local courts have allowed online access to proceedings so that attorneys and the public may attend virtually, without the obstacles that come with
in-person jury trials should resume in the fall and support precautionary measures such as requiring face coverings, asking COVID-19 screening questions upon entry to the courthouse, and taking temperatures.3 Most participants expressed concerns over conducting voir dire and jury trials remotely over a video service such as Zoom.4 The most divergence appeared in response to the question of which precautions to take in seating a jury, with the leading choice being conducting voir dire in larger spaces.5 As our legal community continues to rise to the challenges posed by the Coro-
he Coronavirus 14. Which of the following precautions do you think should be taken to seat a jury? (check all that apply) pandemic has forced the Texas judiciary to quickly adapt and adopt technology to continue court business. The Supreme Court of Texas made history with its first remote oral arguments on April 8. The Court and the advocates conducted the proceedings by Zoom, as they were livestreamed to the public on observing in person. navirus pandemic, with the leadership of YouTube. This represented a stark deparHowever, the issue of how to handle our judiciary, we will surely develop soture from in-person proceedings tradijury trials remains. The most recent lutions to tailor the traditional jury trial tionally held before the nine-justice panel emergency order from the Texas Supreme to restrictions imposed during these unin the formality of the Supreme Court’s Court instructed that “[a] court must not certain times and return to in-person proCourtroom. hold a jury proceeding, including jury ceedings. All involved did a brilliant job in makselection or a jury trial, before August 1,” ing the transition appear seamless, as the Brooksie Bonvillain Boutet is a trial with a narrow provision allowing for “a advocates presented their arguments with attorney at Shipley Snell Montgomery, limited number of jury proceedings prior the same formality and dignity of in-perLLP. She is a member of The Houston to August 1, whether in-person or remote son proceedings, and the justices posed Lawyer editorial board. 2 proceedings.” thoughtful questions to the advocates. The local judiciary has been exploring Perhaps the most interesting change Endnotes ideas to facilitate jury trials and return is the livestream technology. Prior to 1. Houston Courts of Appeals, YOUTUBE, www.youtube. com/channel/UCDAyebRKtqp8Wdobo8HZXNw/ (last to in-person proceedings, and the Harthe Coronavirus pandemic, the Court visited July 22, 2020). ris County District Courts COVID Rewebcasted video recordings of oral argu2. In the Supreme Court of Texas, Misc. Docket No. 20-9071, Seventeenth Emergency Order Regarding The Covid-19 sponse Judicial Task Force surveyed the ments, but the remote YouTube livestream State of Disaster,” ¶¶ 6–7, accessible at www.txcourts.gov/ local legal community on their opinions has the power of providing a more intimedia/1446702/209071.pdf. 3. Results from Harris County District Courts COVID Reregarding returning to the courthouse for mate experience for the viewer. As each sponse Judicial Task Force Survey, accessible at https:// in-person proceedings. speaker appears face-to-face on the comhba.org/?pg=News&blAction=showEntry&blogEntry =55167. Based on the responses of more than puter screen, it feels as though you are 4. Id. 3,100 surveyed, the majority believe that personally engaged in the argument. 5. Id. thehoustonlawyer.com
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LITIGATION MARKETPLACE
Office Space HOUSTON/Greenway Plaza/West University area (Edloe St.) 1715 sq.ft. Garden entry. Quiet, elegant office. Current occupant, attorney, retiring. Current rent: $1.80/sq.ft. + CAM. Available at the end of the year. Contact attorney/landlord at lawtks2727@yahoo.com. Working from home not cutting it? Find sanitized law offices with empty LawSpace for lease. LawSpacematch.com is exclusively for lawyers sharing LawSpace. Search for LawSpace by zip code and let us do the work. Sign up and save your search. Receive email notifications when LawSpace becomes available in your desired area. Houston Heights Office Space Available Individual, multiple, executive suite, or an entire building with one to six offices plus support staff areas available in historic Houston Heights Buildings! Historic charm with modern amenities. One property on Yale and one on Heights Blvd, both easily accessible and with ample visibility. Available space includes a conference room wired for flat screen and data ports in each office, full kitchen, ample parking. Price flexible on needs. Call: 504-237-6535 for more information. HEIGHTS AREA I-10 at Shepherd LAW OFFICE SHARING One office space (9’ x 14’) and two cubicle spaces available to sublet. Month to Month term. Great location. Beautiful first floor space. 5151 Katy Freeway, Houston, TX 77007. Free parking, free valet visitor parking, One large and two small conference rooms, file cabinets, reception area, receptionist, kitchen, phones, internet, Wi-Fi. Space includes two experienced family law attorneys (referrals and contract work possible) and one plaintiff’s personal injury attorney. Contact Frank at 713-443-5752.
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Video Mediations Available
LEGAL TRENDS From page 45
sued on April 22, 2020) that temporarily suspended the entry of certain immigrants and lawful permanent residents for a period of 60 days.2 The latest proclamation maintained the initial ban placed on certain immigrants and lawful permanent residents and additionally restricted the entry of certain nonimmigrant or temporary visa categories (H-1B, H-2B, J-1 and L-1 visas). The combination of these two orders was intended to primarily impact those outside of the United States. However, it has significantly impacted the mobility of foreign national employees in the United States. In addition to the latest proclamations, other immigration-specific measures have already been implemented due to the pandemic, including the following: • The United States borders with Canada and Mexico are closed for non-essential travelers until at least July 21, 2020. This means Canadian and Mexican nationals are not allowed to travel to and from the U.S. unless immigration officials deem them an “essential traveler.”3 • Individuals who have spent time in China, Iran, Brazil, the Schengen Area of Europe, the United Kingdom, or Ireland in the past 14 days are banned from entering the U.S.4 The government agencies responsible for immigration benefits have largely been closed to the public during the pandemic period as well. Since March 20, 2020, the U.S. Department of State, which is the agency responsible for issuing immigrant and nonimmigrant visas have cancelled routine appointments at their consular locations worldwide and have continued to do so through the month of July. The U.S. Citizenship and Immigration Services, which is the benefit-giving agency for immigration matters within the United States, has re-opened some of their offices for interviews and appointments but they are not operating at full capacity. With the issuance of these presidential proclamations, the continued uncertainty of the pandemic, high domestic unemployment and the continuing nature of immigration restrictions, foreign national workers have practically been forced to remain in the United States during the pandemic. Exacerbating this travel dilemma, companies in Houston have considered and partaken in laying off and furloughing their workforce. When foreign workers are laid off, an additional layer of concern arises because immigration law requires individuals to return to their home country upon termination of work with a minimal grace period. However, international flights are just coming back online and some countries, such as India, are not even allowing their citizens to re-enter unless under emergency situations. For those affected foreign nationals, they are forced to file last-minute filings to keep them in a temporary status in the United States. Practically, most immigration firms and providers are advising their clients to stay in the United States and to temporarily refrain from traveling internationally until the pandemic is resolved and/or immigration restrictions are lifted at the end of 2020. The two appear to be mutually inclusive. Sang Shin is an experienced immigration attorney with Jackson Walker, LLP., and has a demonstrated history of successfully partnering with and representing clients in immigration matters. Sang advises his employment-based and investment-focused clients through various immigration applications and helps keep clients compliant in their immigration programs. Endnotes
1. Proclamation No. 10052, 85 Fed. Reg. 38263 (June 22, 2020). 2. Proclamation No. 10014, 85 Fed. Reg. 23441 (Apr. 22, 2020). 3. Fact Sheet: DHS Measures on the Border to Limit the Further Spread of Coronavirus, DEP’T OF HOMELAND SEC., https://www.dhs.gov/news/2020/06/16/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus (last updated June 16, 2020). 4. Fact Sheet: DHS Notice of Arrival Restrictions on China, Iran and Certain Countries of Europe, DEP’T OF HOMELAND SEC., https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certaincountries-europe (last updated Mar. 17, 2020).
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