The Future of Electronic Courts in Harris County Getting to No (Paper) Using Technology in the Courtroom The Court of Babel: The Multilingual Courtroom of the Future The Law Firm of the Future Houston Bar Foundation Recognizes Outstanding Efforts by Volunteers
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THE HOUSTON
inside...
Volume 50 – Number 5
March/April 2013
A Futurist’s View of the Legal Profession
The Standard of Excellence
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Karen Highfield
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contents Volume 50 Number 5
March/April 2013
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FEATURES Crystal Ball: 10 The Insights into the Future of Houston By Suzanne R. Chauvin
Future of Electronic Courts 12 The in Harris County By Chris Daniel
to No (Paper) 16 Getting By the Honorable Mike Engelhart Technology in the Courtroom 20 Using By Chance a. McMillan
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Court of Babel: The Multilingual 26 The Courtroom of the Future By The Honorable Josefina M. Rend贸n and Lingling Dai
Law Firm of the Future 34 The By Toby Brown Bar Foundation 37 Houston Recognizes Outstanding Efforts by Volunteers
The Houston Lawyer
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The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonTHLy by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. 漏The Houston Bar Association, 2013. All rights reserved.
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contents Volume 50 Number 5
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departments Message 6 President’s Meeting Challenges of Tomorrow By Brent Benoit the Editor 8 From What I Want To Know is,
Where is My Hoverboard? By Keri D. Brown
Lawyers 25 Houston Who Made a Difference
Ewing Werlein, Sr. and Newell H. Blakely By Judge Mark Davidson
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SPOTLIGHT 40 COMMITTEE The Lawyers Against Waste
Committee Makes Houston a Greener and Cleaner City By Polly Graham
in Professionalism 41 ATheProfile Hon. Marc C. Carter
Judge, 228th Criminal District Court
the Record 42 OffJammin’ with The Writ Kickers By Erika Anderson Trends 43 Legal New Civil Procedure Rules from
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the Texas Supreme Court By Chance A. McMillan
Texas Supreme Court Reinforces the Distinction Between Contract and Tort Claims By Suzanne R. Chauvin the Bar 45 AtJudicial Investitures Reviews 46 Media Government Control of News: A
Constitutional Challenge
Reviewed Suzanne R. Chauvin
The Law of Superheroes The Houston Lawyer
Reviewed by Robert Painter
48 Litigation MarketPlace 49 Placement Service 4
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Join the Houston Bar Association’s 100 Club The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Adair & Myers PLLC Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Ajamie LLP Andrews Myers, P.C. Bair Hilty, P.C. Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Barrett Daffin Frappier Turner & Engel, LLP Bateman/Pugh, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & House Blank Rome LLP Brewer & Pritchard PC Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, L.L.C. Butler I Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P. Campbell Harrison & Dagley LLP Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski, Larkin & Johnson LLP Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Ebanks Horne Rota Moos LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLC Faubus & Scarborough LLP Fernelius Alvarez PLLC Fibich Hampton Leebron Briggs Josephson, LLP Fisher, Boyd, Brown & Huguenard, LLP Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C. Fleming, Nolen & Jez, L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk Funderburk Courtois, LLP Galloway Johnson Tompkins Burr & Smith Germer Gertz, L.L.P. Givens & Johnston PLLC Godwin Lewis, P.C. Gordon & Rees LLP Greer, Herz & Adams, L.L.P. Hagans Burdine Montgomery & Rustay, P.C. Harberg Huvard Jacobs Wadler Melamed, LLP Harrison, Bettis, Staff, McFarland & Weems, L.L.P.
Hartline Dacus Barger Dreyer LLP Hays McConn Rice & Pickering, P.C. Hicks Thomas LLP Hirsch & Westheimer, P.C. Holm I Bambace LLP Hunton & Williams LLP Jackson Gilmour & Dobbs, PC Jackson Lewis LLP Jenkins Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L. L. P. Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C. Kroger | Burrus LeBlanc Bland P.L.L.C. Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre & McCulloch, LLP McGinnis Lochridge & Kilgore LLP McGuireWoods LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C. Murray | Lobb PLLC Nathan Sommers Jacobs Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Pagel Davis & Hill PC Parrott Sims & McInnis, PLLC Perdue Brandon Fielder Collins & Mott Perdue Kidd & Vickery Phelps Dunbar LLP Phillips, Akers & Womac, PC Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PC Reynolds, Frizzell, Black, Doyle, Allen & Oldham L.L.P. Roach & Newton, L.L.P. Roberts Markel Weinberg PC Ross, Banks, May, Cron & Cavin, P.C. Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Moore, Jackson & Echols, P.C. Schiffer Odom Hicks & Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Shannon Martin Finkelstein & Alvarado, P.C. Shepherd, Scott, Clawater & Houston, L.L.P.
Shipley Snell Montgomery LLP Short Carter Morris, LLP Singleton Cooksey LLP Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P. Sprott, Rigby, Newsom, Robbins & Lunceford, P.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P. Stuart & Associates P.C. Sutton McAughan Deaver, PLLC Tekell, Book, Allen & Morris, L.L.P. Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Tucker Barnes Garcia & De La Garza, P.C. Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson Henneman & Sullivan LLP Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P. Williams Kherkher Hart Boundas LLP Williams Morgan & Amerson, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wright Abshire, Attorneys, PC Wright & Close, L.L.P. Yetter Coleman LLP Ytterberg Deery Knull LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zukowski, Bresenhan, Sinex & Petry L.L.P. Firms of 25-49 Attorneys Adams & Reese LLP Akin Gump Strauss Hauer & Feld LLP Baker & McKenzie LLP Beck I Redden LLP Beirne, Maynard & Parsons, L.L.P. Coats I Rose Cokinos Bosien & Young Edison, McDowell & Hetherington LLP Gibbs & Bruns LLP Greenberg Traurig, LLP Hoover Slovacek LLP Jones Day Littler Mendelson, PC Olson & Olson LLP Seyfarth Shaw LLP Firms of 50-100 Attorneys Baker Hostetler LLP Chamberlain Hrdlicka White Williams & Aughtry Gardere Wynne Sewell LLP Jackson Walker L.L.P. Martin, Disiere, Jefferson & Wisdom, L.L.P. Morgan, Lewis & Bockius LLP
Porter Hedges LLP Thompson & Knight LLP Winstead PC Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Haynes and Boone LLP Locke Lord LLP Vinson & Elkins LLP Corporate Legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc LyondellBasell Industries MAXXAM Inc Newfield Exploration Company Petrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University S & B Engineers and Constructors, Ltd Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System Law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center Government Agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County Texas
president’s message
By Brent Benoit Locke Lord LLP
Meeting Challenges of Tomorrow
The Houston Lawyer
H
ouston is an exciting and challenging place to practice law. As Houston attorneys, we benefit from a vibrant legal economy, a buoyant general economy, a growing and diverse population, and growing important and cutting edge industries. All of this allows each of us to have the opportunity to practice law in a market that is the envy of lawyers around the country. One of the secrets of Houston’s success is a drive that causes us to never be satisfied with the status quo and to always push for improvements. This often puts Houston at the forefront of change, change often for the better and change that leads to exciting new opportunities. The Houston legal market is no exception. With new firms constantly entering our market, profound changes in the structures of existing firms, the development of new, cutting edge practice areas, and a host of other factors, it is certain that the legal market of tomorrow will be substantially different than the legal market of today. As we contemplate our everchanging city and legal economy, I thought it would be useful to our members to contemplate some of the major future issues confronting our attorneys
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neys) to interact with a variety of culthat will need to be addressed. By distures and languages. A changing legal cussing these issues and planning for market will require firms to adapt busithem, we can prepare and react quicker ness strategies and operations leading than other areas maintaining our envito firms that are mateous position of a prerially different than the mier place to practice I hope that firms of today. I hope law. you enjoy the discusIn this issue you will this issue sion of these topics and find a look at what the inspires you to find them beneficial as future has in store for you plan for the future. Houston and our proconsider planning I want to take this fession. I know you opportunity to also diswill not be surprised to for the exciting cuss a separate future see that the future use future of Houston issue and that is the of technology features continued success of prominently in our and our legal our Bar. I have had the discussion. The exploopportunity to meet sion of electronic commarket. with bar organizations munications through I hope that part from cities all over this Facebook, Twitter, text country and I can remessages, and other of that plan port that that our Bar means places additionis uniformly viewed as al discovery strains and will be to a leader among metro costs on the litigation become (or stay) bar organizations. process. In addition, We should all be clients and courts are deeply involved proud of this reputamoving towards papertion. But, if we are to less files that will reat the HBA. stay on top, we will quire lawyers and firms need to work hard and I want to mento be technologically savvy to succeed. tion three ways that you can contribute But the challenges of tomorrow exto the future success of the Bar. tend beyond technology. The growing First, the Bar must continue to grow diversity of Houston will require our its membership. If you practice at a Firm courts (as well as our firms and attor-
“
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that is not a member of our 100 Club (having 100% of its attorneys enrolled as members), encourage the Firm to become a part of this important group. The best way for new firms to become integrated or plugged into our local Bar is to join the HBA and become active in it. By growing our membership, we develop the financial resources we need to continue and grow our services to our members. Second, we need you to join and become active in multiple sections. Our sections are one of the primary ways we are able to provide important professional assistance to our members. Sections provide important networking opportunities, keep you abreast of important developments in that practice area (a must for remaining competitive), and provide a plethora of convenient and affordable CLE options. An increase in section membership means we are serving more of our members professionally and ensures that our Bar will remain relevant to each of our members. Third, we need you to volunteer to work on a committee. If you cannot find an HBA committee that matches one of your interests, then you are just not interested in much. We have an incredible selection of committees that will allow you to give back a little to the community, whether through assisting Special Olympics, helping to build a house with Habitat for Humanity, tutoring at a local school, or any of a host of other service projects. Why is this important and useful to you? It is a great way to network, promote balance in your life, improve the perception of our profession by the community at large, and a great way to have fun. I hope that this issue inspires you to consider planning for the exciting future of Houston and our legal market. And I hope that part of that plan will be to become (or stay) deeply involved at the HBA. Help us as we work together to better our profession and our community for the future.
Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Office of Ned Barnett
Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017
713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com
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from the editor
By Keri D. Brown Baker Botts L.L.P.
Associate Editors
Julie Barry Attorney at Law
Angela L. Dixon Attorney at Law
Robert W. Painter Painter Law Firm PLLC
The Houston Lawyer
Don Rogers Harris County District Attorney’s Office
Jill Yaziji Yaziji Law Firm
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What I Want To Know is, Where is My Hoverboard? When HBA President Brent Benoit tasked The Houston Lawyer with putting together an issue focused on a futurist’s view of the legal profession, the Editorial Board was put to the test. An entire issue on the future of the legal profession? Regardless, our Board, with input from our fearless leader (that would be Brent) and the time and effort of our authors, has put together an interesting issue covering a variety of forward-looking topics.
I
n March, Slate introduced me to an article1 published in 1988 by the Los Angeles Times Magazine predicting what life would be like in 2013, a mere 25 years into the future.2 The article3 made a variety of predictions about the world (or at least Los Angeles), some of which came to fruition and some that are laughable. The house of the future was fully automated — coffee makers and ovens could be programmed to begin brewing and baking, respectively, at the appointed hour. The article missed the boat on the extent of technological advances in the news world, predicting that news personalized to the family would be printed off the home computer each morning. Close, but no cigar. The home of the future featured a $5,000 home robot named “Billy Rae” whose first job of the day was to wake up the family. Billy Rae later changes the sheets and does other chores around the house, including (poorly) attempting to make dinner. In the alternate-universe 2013, the patriarch of the family uses technology that does exist today as he teleconferences with colleagues in Tokyo. Later, he drives to a park-and-ride and hops onto a subway (using a Metro Rail card to gain access). Once at his office, he’s immediately 3-D videoconferencing with more associates (well, we aren’t all quite there yet). The matriarch telecommutes, using her “powerful home computer” — the only one in the house — and never has to leave the study (at least not until she drives to her satellite office). She also has the benefit of email to remain in thehoustonlawyer.com
contact with her colleagues. Lawyers always wishing to shave time off their morning preparations for work will be disappointed to know that we do not today have “Denturinse,” a mouthwash that is “much easier and more effective than toothbrushing.” The home of the alterna-2013 is outfitted with video intercoms. (At least we have Facetime on our iPhones and iPads today.) The child of the house carries to school a personal portable computer holding his educational history. Floppy disks (remember those?) are still in wide use, and encyclopedias are electronically stored on laser discs. While the family can access video on demand, it does require a call to the cable company to order a movie. For some reason, the house of the future has a “stark white kitchen.” Thank goodness we still have color options in our homes in the real 2013. The predictions about the technology of cars of the future was pretty close: Cars are operated with key-cards, adjust automatically to fit the driver, and feature GPS (although called an electronic map system). I daresay that the authors featured in this issue of The Houston Lawyer make no such bold predictions, but they do provide us with information on a variety of advances in our profession from a variety of perspectives. Toby Brown writes about the future of the law firm, looking at the firm of the future from five perspectives: human resources, facilities, financial management, marketing, and technology. Speaking of technology, Chance McMillan provides an overview of technology in the courtroom, exploring the ways our courtrooms have become more user-friendly of late. Judge Mike Engelhart, one of the most (if not the most) aggressive Harris County jurists in the quest to reduce our reliance on paper, writes about ways he has attempted to reduce paper in his courtroom and the benefits of eliminating the paper waste. Harris County District Clerk Chris Daniel explains the changes on the way Continued on page 49
BOARD OF DIRECTORS President
Secretary
Brent Benoit
Laura Gibson
President-Elect
Treasurer
David A. Chaumette
M. Carter Crow
First Vice President
Past President
Benny Agosto, Jr.
Denise Scofield
Second Vice President
Todd M. Frankfort
DIRECTORS (2011-2013)
Hon. David O. Fraga Neil D. Kelly
Alistair B. Dawson Brent C. Perry
Jennifer Hasley Daniella D. Landers
DIRECTORS (2012-2014) Warren W. Harris John K. Spiller
editorial staff Editor in Chief
Keri D. Brown Associate Editors
Julie Barry Robert W. Painter Jill Yaziji
Angela L. Dixon Don Rogers
Erika Anderson Suzanne Chauvin Jonathan C.C. Day Polly Graham Stephanie Harp Hon. Dan Hinde Chance McMillan Jeff Oldham Tamara Stiner Toomer
Editorial Board
Sharon D. Cammack Melissa Davis Sammy Ford IV John S. Gray Al Harrison Farrah Martinez Judy L. Ney Hon. Josefina Rendon
Managing Editor
Tara Shockley
HBA office staff Membership and Technology Services Director
Executive Director
Kay Sim Administrative Assistant
Ron Riojas
Ashley G. Steininger
Membership Assistant
Administrative Assistant
Bonnie Simmons
Ariana Ochoa
Receptionist/Resource Secretary
Committees & Events Director
Lucia Valdez
Claire Nelson
Director of Education
Lucy Fisher Cain Continuing Legal Education Assistant
Amelia Burt
Committee & Events Assistant
Rocio Rubio
Communications Director
Communications/ Web Designer
Tara Shockley
Brooke Benefield
Advertising sales Design & production QUANTUM/SUR
12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher
Leonel E. Mejía Production Manager
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Mary Chavoustie
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The Crystal Ball: Insights into the Future of Houston
By Suzanne R. Chauvin
T
he Center for Houston’s Future — The Region’s Think Tank — works to solve the eight-county Houston region’s most difficult challenges by bringing together leaders from throughout the community and business, providing research and identifying solution strategies. For 31 years, Rice University has conducted extensive survey research into the region’s economy, population, and changing attitudes, making the Kinder Houston Area Survey the nation’s longest running study of its kind. The Kinder Institute for Urban Research was launched by Rice University under the direction of sociology professors Stephen L. Klineberg and Michael O. Emerson. The future of Houston’s legal community is tied intrinsically to the demographics and other information presented in this research. The Center for Houston’s Future and the Kinder Institute for Urban Research at Rice University shared these facts and trends of the Houston region. • The petrochemical industry gave Houston a strong competitive advantage when the nation’s economy was focused on natural resources. Increasingly, however, Houston’s economy is becoming global, and is more high-technology and knowledge-based.1 • The city of Houston now has 2.1 million people – about the same as the population of Manhattan.2 • The Center for Houston’s Future has developed two scenarios centered on how Houston will look in 2040; one scenario is based on explosive population growth, and the other is based on more steady growth, with a focus on quality of life. In discussions surrounding these scenarios, Houston leaders focus on how the region
should plan now for either scenario.3 • Attitudes about the urban lifestyle are changing. In 2012, more than half the people surveyed in Harris County said they would choose a “smaller home in a more urbanized area, within walking distance of shops and workplaces” over “a single family home with a big yard,” where they would need to drive more.4 • Over two-thirds of area residents believe that Houston’s ethnic diversity will eventually become “a source of great strength for the city.”5 • Between 2000 and 2010, the Houston metropolitan area added more people than any other metropolitan area in the United States.6 • Houston is the most culturally diverse large metropolitan area of the country, surpassing New York, Los Angeles, Chicago, Miami and San Francisco.7 • As diverse as Houston is, the cities of Missouri City and Pearland are the region’s most racially and ethnically diverse cities.8 • Harris County is a majority-minority county. About 33 percent of the population is Anglo, 18 percent is African-American, 40.8 percent is Hispanic and 7.7 percent is Asian or other.9 • Most seniors in America are Anglos, as are the 76 million Baby Boomers, aged 47 to 65. During the next 30 years, the number of Americans over the age of 65 will double.10 • A higher percentage of younger Americans are non-Anglo, and are less privileged in terms of income,
education, health status and opportunities.11 • In Harris County, over half the population over age 65 is Anglo. Among those aged 0 to 17, over half the population is Hispanic. For ages 18 to 64, over half the population is minority.12 Suzanne R. Chauvin is a partner in the Houston office of Strong Pipkin Bissell & Ledyard, L.L.P. Her practice emphasizes complex commercial litigation, including contract disputes and business torts, toxic tort defense, products liability and industrial accidents, commercial real estate disputes, and labor and employment disputes. She is a member of The Houston Lawyer Editorial Board. Endnotes Rice University Kinder Institute for Urban Research and Klineberg, Stephen L. (2012). The Changing Face of Houston: Tracking the Economic and Demographic Transformations Through 31 Years of Surveys, available at http://has.rice.edu/uploadedFiles/Houston_Area_ Survey/Complete%20Presentation%20(2012).pdf. 2. Id. 3. http://w w w.centerforhoustonsfuture.org /cf hf. cfm?a=cms,c,261,3,29 4. Rice University Kinder Institute for Urban Research and Klineberg, Stephen L. (2012). The 2012 Kinder Houston Area Survey: Perspectives on a City in Transition, available at http://has.rice.edu/ uploadedFiles/Houston_Area_Survey/2012%20 Kinder%20Houston%20Area%20Survey.pdf. 5. Id. 6. Rice University Kinder Institute for Urban Research and the Hobby Center for the Study of Texas, and Emerson, Michael O., Bratter, Jennifer, Howell, Junia, Jeanty, P. Wilner, Cline, Mike (2011). Houston Region Grows More Racially/Ethnically Diverse, With Small Declines in Segregation. A Joint Report Analyzing Census Data from 1990, 2000, and 2010, available at http:// kinder.rice.edu/uploadedFiles/Urban_Research_ Center/Media/Houston%20Region%20Grows%20 More%20Ethnically%20Diverse%202-13.pdf. 7. Id. 8. Id. 9. Rice University Kinder Institute for Urban Research and Klineberg, Stephen L. (2012). The 2012 Kinder Houston Area Survey: Perspectives on a City in Transition, available at http://has.rice.edu/ uploadedFiles/Houston_Area_Survey/2012%20 Kinder%20Houston%20Area%20Survey.pdf. 10. Rice University Kinder Institute for Urban Research and Klineberg, Stephen L. (2012). The Changing Face of Houston: Tracking the Economic and Demographic Transformations Through 31 Years of Surveys, available at http://has.rice.edu/uploadedFiles/Houston_Area_ Survey/Complete%20Presentation%20(2012).pdf. 11. Id. 12. Id. 1.
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By Chris Daniel
The Future of Electronic Courts in Harris County T
he goal of the Harris County District Clerk’s Office is to streamline the processes of the judicial system and create transparency. Technology plays a key role in helping us achieve an improved courthouse that better serves the citizens. Electronic dockets, e-Filing, and other features have greatly improved and changed the way the bar
practices law in Harris County. Former Harris County district clerks and their staff members have made numerous advances that resulted in quicker docket movement, faster case-related communications and fewer pieces of paper filling file cabinets. While we still have tons and tons of paper and hundreds of file cabinets, the wave of the future in Harris County is electronic courts. By Order of the Supreme Court The Texas Supreme Court has ordered electronic filing in all civil, family and probate cases by attorneys in appellate courts, district courts, statutory county courts, constitutional county courts and statutory probate courts. On January 1, 2014, Harris County is scheduled to participate in the mandatory statewide electronic filing system in all of the previous courts mentioned. Beginning next year, all attorneys must file electronically through the Texas State Portal, called TexFile. All pro se litigants may file either electronically or in person by paper at the courthouse. While this order will not be without its short-term hurdles, in the long run it will greatly improve the legal community’s efficiency at work and generate enormous tax payer savings for years to come. The Harris County judicial community will work tirelessly together to meet this steadily approaching deadline. The Supreme Court order disallows any other filing alternative. The only electronic filing system deemed permissible will be TexFile. As a result of the order, many of our local improvements like FREEFax will no longer be available to the bar in these courts. While these improvements have made the practice of law more efficient and cost-effective, a truly paperless system—much like the current federal PACER system—is the best option for future courts. The ability to file anywhere in the world allows an advocate to respond to his or her client’s needs immediately and without delay. This concept is not only good for the client;
it also saves money for the taxpayer. The Supreme Court has yet to give district clerks the specifics of how the new e-filing system will work. As these requirements are communicated to my office, we will do our best to inform the bar on how the new system will work and how it will affect your practice. Additionally, there are many subfeatures that tie into such a paperless system. Technological Advances Many features, such as electronic citations, electronic subpoenas, electronic signatures for judges and certain court parties/personnel and courtroom kiosks are being piloted and programmed as we speak. For decades, citations sent to the Constable’s Office for service first had to be sent by paper to Precinct 1, since that precinct is both downtown and the closest in proximity to the District Clerk’s Office. Then, Constable Precinct 1’s Office was responsible for sorting and delivering the citations to the other constables by agreement, leading to delays and subjecting the process to human error. Now, through electronic citations and service of process, the paper will not only be eliminated, but the process will become streamlined, leading to faster service and freeing up resources to more adequately address crime and other duties. Electronic subpoenas (“e-Subpoena”) are part of a laundry list of technological items to improve the criminal court process. We continue to survey the defense bar and the District Attorney’s Office to find out what is needed and wanted, and this was a major item that both sides requested. This is a multiagency project involving the Sheriff’s Office, the District Attorney’s office and the District Clerk’s office that feeds into the larger Justice Web (“JWEB”) project to revamp the Justice Information Management System (“JIMS”). E-subpoenas will allow for expedited trial settings and speed up justice as a whole.
New County JIMS Project JIMS, once a state-of-the-art case management system, is now aged beyond its intended use and is set for a multi-stage overhaul. An enormous and important undertaking, creating the new case management system is a joint countywide effort that will provide a vastly improved product for the needs of Harris County. Beginning soon, the first stage is to move the entire system off a mainframe and onto the web. This project phase is estimated to take about three years. Once the system has been upgraded to a web-based system (JWEB), each department will have the opportunity to review and provide input to make department specific JIMS screens userfriendly. Ultimately, once JIMS has been converted off the mainframe, end-users should begin to see dramatic improvements to departmental JIMS screens as the county tackles them. Courtroom Kiosks Simultaneous to the JWEB project is the courtroom kiosks initiative. As part of our goal to streamline and increase the data that attorneys can access in the courtroom, criminal courts will soon have kiosks that allow them to see their docket (mug shots and criminal history for each client included), the judge’s daily docket and any motions, documents, etc. that have been filed with the case. The screens will be touch screen, and the information will be user-friendly and easily searchable. Judges will be able to make public and private notes. Furthermore, staff and attorneys will be able to sign documents electronically. Attorneys will not only be able to sign the same documents (users sign in by SPN), but they will be better able to manage their practices. Similar kiosks will be custom designed for juvenile, family and civil courts based on common practices and needs. Future piloting of kiosks for public libraries and law libraries will cut down the paper submitted by pro se or indigent filers. thehoustonlawyer.com
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Electronic Signatures Another upcoming initiative under consideration is the use of electronic signatures. This would allow judges to bypass signing papers and permit the judge to digitally sign any type of document filed electronically. This will result in the rapid reduction of paper at the courthouse. No longer will the clerk have to print the electronically filed document for the judge to sign and then rescan the signed document back into the system. Also, judges may be able to expedite rulings if they can sign digitally while reviewing pleadings online without waiting for the appropriate paper version to be printed and presented for signature. The goal is to allow judges, attorneys, court staff and the viewing public to securely and quickly sign documents at their computers. As Local Rules are updated, this might also allow judges to sign orders and documents remotely from anywhere in the world. Ultimately, the point is to speed up the process while drastically
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cutting down on the volume of paper received into the clerk’s office. What the Future Holds These future components of electronic courts could then be incorporated into a mobile device or tablet-friendly technology and even be synced to future applications (“apps�) for mobile devices. In addition, the public would benefit from various features such as background checks, document searches and rescheduling jury service. Each feature could be incorporated into the app as a tab or button for easy access and use. As we continue to move forward with electronic courts, the process created by Harris County will set the standard across the state just as JIMS once revolutionized the statewide justice system and legal practice The goal of achieving truly electronic courts will not come without its hurdles. As a joint effort of all county stakeholders, there are many concerns that need to be addressed. However, with sound
leadership from the Justice Executive Board and with cooperation throughout, there will be few opportunities for failure, and instead many chances to shine. We live in exciting times for our legal community. As we embrace change, your practice and your clients will be better served with the technological advances knocking at our doorstep. My job is to shepherd the changes and make the advances manageable for you. When each stage is complete, we will have the usual public classes and CLE for all users of the website/e-courts to teach the community how to use the features. We welcome comments and suggestions to help us facilitate the process along the way to provide the best electronic filing system possible. Chris Daniel was elected Harris County District Clerk in 2010. He graduated from the University of Texas at Austin with a degree in mechanical engineering and from South Texas College of Law in 2010.
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Getting to No (Paper)
By the Honorable Mike Engelhart
“G
etting to Yes” is a famous 30 year-old guide to successful negotiations and sales. From my experience as an environmentally and fiscally conscious judge, getting to no (paper) in the courtroom will continue to take a heck of a sales job on my part. In April 2009, I became the first judge in the history of Harris County to require electronic filing in all new cases filed in my Court. The District Clerk and I subsequently teamed up to create and implement FREEfax, a free local portal that approximates e-filing in many ways, yet still adheres to the 1991 Harris County local fax-filing rules. Today, many Harris County district courts require electronic filing, and all civil district courts allow FREEfax filing. Additionally, both of Houston’s courts of appeals mandated electronic filing for briefs in most civil cases, as well as for clerk’s and reporter’s records. In my opinion, these efforts helped fend off more catastrophic layoffs in the District Clerk’s office, save taxpayer funds, eliminate countless car trips to the courthouse and preserve exactly1 four million and seven trees. In December 2011, I was the only Texas district judge invited to speak before the Supreme Court about the future of
Texas e-filing. The Supreme Court has now ordered that after December 31, 2013, Harris County District and County Court filers, other than pro se parties, must electronically file all documents through a newly implemented statewide electronic filing system. Harris County’s push for electronic filing, and FREEfax’s impact on the total volume of paperless filing, in my view, accelerated the Supreme Court’s mandatory e-filing timetable by at least a few years. We have come a long way in the last four years toward eliminating paper usage at the Harris County courthouse. But even though I ask parties to give me their proposed jury charges on a flash drive, my bailiff copies the jury’s read-along charges double-sided, and I prepare for hearings by reading filings only on my computer screen, I still find piles of paper all over my chambers. So, how do we get rid of those stubborn stacks once and for all? And do we want to? What would that look like?
“We have come a long way in the last
four years
toward eliminating paper usage at
the Harris County courthouse.
...So how do we get rid of those
stubborn stacks once and
What’s in the Stacks? It’s best to attack the paper stacks by identifying them. The piles of pages populating my chambers are predominantly: (1) manila envelopes stuffed with documents filed under seal for in camera inspection; (2) case law, exhibits, and deposition transcripts handed to me during hearings to review later; (3) court orders my staff or I have printed and signed and put in my outbox for my clerk to enter into our case management system; and (4)
”
for all?
filled notepads with notes taken during hearings or while reading motions on my computer. Each of these categories presents different obstacles for elimination. Sealed Documents Repeat customers in the 151st have learned that I do not want stacks of supposedly sensitive papers to review in camera. Not everyone has gotten the message, though, and weekly, I find a ream’s worth of paper in a large envelope in my inbox, taped up like Arian Foster’s bad ankle, and marked FILED UNDER SEAL all over. Solution: Put these on a flash drive or DVD disc. If you are concerned about security, give the flash drive a password known only to your side and the Court. Exhibits, Depositions, and Case Law It is certainly helpful to have exhibits, case law, and deposition excerpts at the hearing, but if my goal is to eliminate paper, what do we do to get around this sticky wicket? The answer to this one, as with most things lawyerly, is preparation. I know it is a pain, and I cannot practically refuse to look at a paper exhibit, a deposition or a case cite, but you can help with my target-zero-paper mission with a little foresight. First, if you insist that I have my own set, bring these items to the Court electronically in PDF format on a single flash drive. These should be the only things on the drive, and should have descriptive file names. Make sure it is virus free! Give it to me at the start of the hearing and I can view it on my laptop as we proceed. Alternatively, learn how to quickly hook up your computer to the court’s A/V system and put these documents on my A/V screen. Or, as I have seen lately, put them on your iPad or other tablet and hand them to me as we proceed. Any of these methods will aid our cause. And, as a bonus, the more thought you put into how you will use these items at the hearing, the more prepared you will be for the hearing in general. thehoustonlawyer.com
March/April 2013
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Court Orders When I took office in 2009, my clerk would regularly present me with a yellow folder full of paper comprised of “agreed” motions and orders including continuances and dismissals. I would sign the orders, if appropriate, and then recycle the paper motions. My clerk and I soon undertook to eliminate this waste. She took advantage of the tools in our DEEDS case management system to place these motions and orders electronically in a separate section of my home page. Now I can read these electronically and print only those orders to be signed. Yet, if I want to get to 100 percent paperless, it is still problematic that I have to print the orders to sign them, and then have the clerk scan them into the file. One important (hopefully not-toodistant) future innovation for Harris County judges would be a change in the law to allow us to sign orders electronically. Presently, Harris County’s local district court e-filing Rule 6.1(a) (available at www.Justex.net) requires that
judges print and sign paper orders only.2 Thus, the elimination of these paper documents would require both a technology upgrade for judges’ computers, and a change to our local rules (to be approved by the Supreme Court of Texas). There are dozens of vendors advertising online, with technology ranging from signing with a stylus on your smartphone, to signature pads on your desktop, like at your pharmacist’s counter. Separately from our local rule change, perhaps the Supreme Court’s new e-filing rules that will accompany its recent statewide efiling mandate will address this issue. Legal Pads I learn best by writing what I hear. So, I take a lot of notes in hearings and during voir dire. While I often do this in a Word document on the computer on my bench, sometimes this method is not practical. For example, when I am reading lengthy motions and need to keep track of the parties and issues, I will take handwritten notes. As a result, I usually have sev-
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eral filled or half-filled notepads sitting around my chambers at any one time. I suspect there are many others out there like me with legal pads scattered around their offices. How to eradicate these? Well, the most elegant solution seems to be something called a digital notepad. A quick Google search demonstrates that several are available for under $150. An iPad app that uses a stylus like uPad or Noteshelf is a potential solution as well. But the digital notepad is specifically designed to mimic a paper notepad, and, using OCR software, can save your handwritten notes in editable format on your computer. One brand even claims to be perfect for southpaws like me. Are We There Yet? How’s the View? So, what if we are successful in this endeavor? If we imagine a 2014 complete with mandatory e-filing in all County district courts, and court chambers with no stacks of sealed paper documents, no paper exhibits, case law, or deposition excerpts, no printed and to-be-scanned orders, and no legal pads gathering dust, how does that look? To me it looks like even more taxpayer savings, more green leafy trees in old growth forests, cleaner air, and a really neat and tidy desk. It also looks like a highly-coordinated file management system that efficiently and reliably serves litigants in Harris County. It would look like progress and a furtherance of justice. I can’t wait! Next up, let’s see about getting solar panels and windmills on the courthouse roof. Judge Mike Engelhart was elected as Judge of the 151st Civil District Court in Harris County, Texas in November 2008. He has taken the lead on many e-filing initiatives since his election. Judge Engelhart is board certified in personal injury trial law. Endnotes 1. 2.
Approximately. On February 12, 2013, the Board of District Judges of Harris County approved a local rule change that would allow for electronic signatures on orders. The change still must ultimately be approved by the Texas Supreme Court.
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3/11/13 March/April 20135:02 PM 19
Using Technology in the Courtroom
By Chance a. McMillan
T
echnology affects nearly every aspect of our lives. If it is not some new product being introduced, it is an old product being improved. In the past 20 years, we have seen computers become embedded into our daily lives, experienced cell phones become personal assistants, and witnessed globalization open doors to markets that were inaccessible before. We are truly living in interesting times. So, how has technology affected Harris County attorneys? Specifically, how has technology affected the practice and presentation in the courtroom? This article focuses on how technology is being utilized in Harris County courtrooms and gives insight into how technology may assist us in the future. New Courthouses: State-of-the-Art Tools for Persuasion and Efficiency I was not around to practice law in the old civil courthouse, which has been renovated and now houses the First and Fourteenth Courts of Appeals. Before it was replaced by a modern, tech-friendly facility, the old courthouse was overcrowded and its technological capabilities were limited to blow up presentations, overhead projectors, chalk boards, and dry erase boards. Practicing in the new civil and criminal courts has changed dramatically. The civil courthouse is 660,000 square feet and has Wi-Fi. It has 39 courtrooms equipped with state-of-the-art technology to ensure the administration of justice runs smoothly. Each courtroom has the technological capability to display documents and videos in a number of locations throughout the courtroom. Jurors can view documents or videos collectively on ceiling-mounted projectors or individually on screens provided in the jury box. Screens are also located at counsel tables, the witness stand, and at the bench.
Each judge has a computer equipped Visuals Dominate the Court Scene with Microsoft Office and connected to Research has shown that as much as 80 the Harris County database. This allows percent of all of our learning takes place judges to easily navigate back and forth through our eyes.1 Learning is most efthrough documents when hearing and fectively accomplished through visual deciding motions. For example, in a sumcomprehension. This is not shocking, mary judgment hearing, a judge can easconsidering the multimedia age we live ily read the parties’ moin. We spend countless tions, listen to the oral hours on the internet ...how has technology arguments, and pull up surfing, working, and the electronically filed communicating. We affected Harris County exhibits before comare constantly exposed attorneys? Specifically, ing to a decision. This to various visual forms enables each judge to of advertising throughhow has technology work efficiently and out the day. This kind leads to more litigants of constant communiaffected the practice being heard daily. cation and media exLikewise, parties are posure has created sigand presentation no longer limited to nificant challenges for in the courtroom? simply arguing at heartrial attorneys to keep ings. Now, attorneys jurors’ attention. regularly create PowerPoint presentaOne leading trial consultant suggests tions or use the court’s video capabilithat attorneys should think like film ties to enhance their presentations. Pardirectors when preparing for trial.2 It ties can also prepare extremely detailed should come as no surprise, given the demonstrative exhibits to educate the technological opportunities the new judge and jury. Thus, technology has becourthouse affords, that attorneys are come an aid in the art of persuasion. utilizing visual aids more than ever Skype has also made its way into the when communicating to jurors. The courtroom. Skype is a software applicamost common aid used is Microsoft tion that allows users to make voice calls PowerPoint; however, new trial presenover the internet while presenting imtation software provides even more inages of the users on a computer screen. teractive opportunities. This allows the type of face-to-face comRecently, I watched a trial in which a munications that regularly takes place surveillance video was the primary foin court. It is already being used in dicus for both parties, and both parties vorce actions involving military personused trial presentation software to presnel stationed overseas. This technology, ent their cases. The parties were able to or similar technology, could be used by stop and start the video at specific points courts to reduce travel expenses or other almost instantaneously without mislitigation costs. haps. They also used video depositions As the use of technology grows, lawwith subtitles; the attorneys were able yers who do not keep up with the new to highlight portions of deposition excourtroom technology may find themhibits and show them to the jury while selves at a disadvantage. Unfortunately, questioning the witnesses. It was very the courtrooms do not have neutral effective and appeared to keep the jury’s technicians to assist attorneys in trial attention. or court procedures; therefore, prudent Trial presentation software allows atlawyers preparing for trial should contorneys to better utilize exhibits, video sider going to the courthouse in advance evidence, and deposition testimony. Atto get a basic understanding of the courttorneys can highlight and write on releroom’s amenities. vant sections of documents, and can ma-
“
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nipulate exhibits to focus on important points. Although the software has been around for some time, new versions are constantly being introduced. With practice and patience, an attorney can learn to operate this software smoothly to more effectively present cases. Attorneys should also consider hiring a trial consultant. Trial consultants offer a variety of services applying technology to assist in presentations, including document management, medical il-
lustrations, 3D printing, medical film, trial exhibits, court reporting, and video services, to name just a few. It is not uncommon at trial to see video technicians assisting both sides in presenting their cases. Obviously, not every case requires a trial consultant or trial presentation software. In some cases, the potential benefit will be greatly outweighed by the cost. In other cases, these services provide can provide a cost-effective way of
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presenting complex facts and ideas. An attorney should consider the complexity of the case and its specific issues when deciding whether to use a trial consultant or trial presentation software. Products to Consider A variety of trial presentation software is available today. Some to consider are: Trial Director 6 (by InData), Sanction 3 (by LexisNexis), and Visionary 8 (by Visionary Legal Technologies).3 Visionary 8 offers a “Pro” version and a “Free” version. The “Free” version is meant for small cases with five or fewer depositions, and may be perfect for small firm practice or individual practitioners. Most of these software programs are available for Microsoft and iPad. 3D printing is another technology that can be helpful in the presentation of a case. 3D printing is literally a printer that creates 3D scale models that could potentially be used as demonstrative evidence during trial. It is easy to see why this technology is appealing. What is more likely to catch the jury’s intrigue in deliberations in a medical malpractice case – and an interactive model of a damaged heart or a picture from a text book? In a complex construction dispute, a model of a construction site showcasing the site’s defect or a PowerPoint slide of the premises? Prior to the use of 3D printers, 3D demonstratives had to be handcrafted by artisans, were expensive, and took time that many attorneys simply did not have. Today, 3D printing is becoming a quicker, more affordable alternative. Currently, many national and local trial consulting firms offer this service to aid in the presentation of a case. Regardless of firm size, attorneys should consider Skype. To get started, all that is required is to download the software and purchase a video camera. Skype is inexpensive and can be used for video conferencing. Skype could be the next big thing to cut down travel expenses, benefiting both clients and attorneys. It is not too farfetched to believe
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Skype or something similar will be used in the very near future for court proceedings. Access to Additional Information The HBA’s Law Practice Management Section offers CLE programs on technology and networking opportunities. Dues are $20 per year. The HBA/CLE Committee offers a number of technology-related seminars throughout the year, and many of them are free to HBA members (www.hba.org). The State Bar of Texas Computer and Technology Section is an excellent resource to find technology applications for lawyers. It only costs $25 to join, and members are continually updated on new technology available to attorneys. The section also offers apps for dozens of Texas and federal codes, rules, and statutes. You can download the apps to iPhone/iPad/iPad Touch and Droids. The American Bar Association (ABA) also keeps its members technologically
educated. Each year, the ABA holds its annual Tech Show to assist lawyers in applying technology in their practices. Last year’s conference included such topics as: Effective E-Filing in Small Cases, Courtroom Technology-Evidence and Persuasion, Productive PDF Tips and Tricks Every Lawyer Should Know, How to Stay Safe in the Cloud, Managing the Information Tsunami, Electronic Discovery for Small Cases, Supercharging Outlook—MS Outlook Hidden Features and Add-Ons, and Beyond the FAQ: Building a ClientFriendly Website. It is beyond the scope of this article to discuss all the new products that are available and that may be employed by the attorney in practice, but every attorney should consider incorporating technology to improve his or her practice. The question is how much. To answer this question, an attorney should consider the firm size, client expectation, and the amount of money available to spend on new or additional technology.
Conclusion Technology is a valuable asset to any profession, and the legal profession is no different. We live in a fast paced and hyper-interactive world. Every attorney can benefit by having a basic understanding of what technology is available and the options at the courthouse. Chance A. McMillan is an associate with Thomas N. Thurlow & Associates, where he dedicates his practice to personal injury and civil litigation. He is a member of The Houston Lawyer Editorial Board. The author would like to thank the Honorable Roy L. Moore, of the 245th Judicial District Court and Kris M. Allfrey, a trial consultant and president of The Legal Wizards, Inc. Endnotes 1.
2.
3.
Robert R. Farrald and Richard G. Schamer, Journal of Learning Disabilities 6 (1973). William S. Bailey and Robert W. Bailey, Show the Story, (Trial Guides, LLC, 1st ed., 2011). Trial Director 6 retails at $695; Sanction 3 retails at $895; Visionary 8 retails at $495.
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Houston Lawyers Who Made a Difference
By Hon. Mark Davidson
F
Ewing Werlein, Sr. and Newell H. Blakely
or most people, the biggest difference in our lives, other than our parents, was made by the teachers who educated us in our formative years. Few legacies last longer, since their work carries forward to the next generation. For members of the bar, our law professors brought us from the world of our undergraduate majors to people who could “think like a lawyer.” Every one of our law professors made a difference in our system of justice. Two law professors in our community stand out for their life’s work: Ewing Werlein, Sr. and Newell H. Blakely. Ewing Werlein, Sr. co-founded the Houston Law School in 1923 as a night law school. His quest was to give young men who could not afford to go to school on a full time basis an opportunity to attend classes at night and become lawyers. Among his more famous students were Roy Hofheinz and Searcy Bracewell, together with some of the great judges of the 1950s and 1960s, including Ben Moorhead, John Compton and Bill Hatten. Werlein was also a civil leader. In 1942, as a member of the Houston School Board, he led the effort to equalize the salaries of White and African American teachers. In 1958, he became the first judge of the 157th District Court. After a month of service, he became a member of the First Court of Civil Appeals, where he acquired a reputation as a great judicial scholar and writer. In that role, he was a mentor to young justices of the court during a time in which the number of appellate justices in Houston doubled. Newell Blakely was one of the founding professors of the University of Houston Law School. Three generations of law students learned evidence from him. His austere classroom style and dominating intellect guaranteed both preparation and understanding of the subject by his students. He
also served as dean of the law school during a time in which it grew in size and stature. In the early 1970s, Blakely helped draft what became the 1974 Texas Penal Code. In the 1980s, he helped write the Texas Rules of Civil Evidence that were promulgated by the Texas Supreme Court and the Texas Rules of Crimi- Ewing Werlein, Sr. Newell Blakely nal Evidence promulgated by the Texas Court of Criminal Appeals. the law, the legal profession and those served All lawyers who make a difference for by the law. their clients owe their law professors a debt of thanks. Werlein and Blakely were two of the best. To their hundreds of students, and to those students’ thousands of clients, these two legendary educators made a difference that will endure for years to come. The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on thehoustonlawyer.com
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The Court of Babel: The Multilingual Courtroom of the Future Therefore is the name of it called Babel; because the Lord did there confound the language of all the earth – (Genesis 11:9)
By the Hon. Josefina M. Rendón and Lingling Dai Imagine a courtroom in Houston, Texas circa 2050. “All rise,” the court bailiff announces in a heavy accent to call the court in session. Lu E. Peng remains seated with a confused look on her face as the entire courtroom stands up almost in unison. Lu is a Chinese national who speaks only Mandarin, although she studied English in college. A savvy business woman who owns a manufacturing company, she also had three business partners from India, Africa, and Mexico, all of whom marketed Lu’s products to the SouthAsian, African, and Latino communities in Houston. Now she sits in a Texas courtroom being sued by people she once worked with side by side. The court informed Lu that she had the right to appear by a remote digital channel, and all of her co-defendants chose to do so. Upon advice of her American counsel, Lu appeared in person—the old-fashioned way—even though it is the technologicallyadvanced 2050. There is a lot of whispering in different languages, and her co-defendants’ faces pop up on the court’s screen in dialogue bubbles. She wonders, “How can we all communicate at the same time?”
T
his scene is not far from current reality. Already, Houston’s courtrooms frequently have trials where languages other than English are spoken. In most instances, the foreign language is Spanish; however, other languages, some very dissimilar to English, are also spoken with increasing frequency. Under those circumstances, what one hears or understands may be significantly different from the original statements. This reality presents the need for accurate interpretation to bridge the gap between English and the target foreign language, and vice versa. Foreign accents already pose challenges for court reporters to transcribe an accurate record, so imagine what a foreign language without adequate interpretation could do to the accuracy of court proceedings and records,
and hence the exercise of justice in our court system. An International, Multilingual City In Houston, an international city with approximately 700 foreign-owned firms,1 many different languages are spoken daily. About 100 countries have either business or government offices here. Numerous large non-U.S. based corporations have a presence in Houston.2 In turn, around 400 Houston-area companies have offices in at least 129 countries.3 Altogether, more than 3,300 area firms, foreign government offices, and non-profit organizations in Houston are involved in international business.4 The Port of Houston is ranked first nationally in international cargo tonnage, and second in total tonnage handled.5 Jeff Moseley, president and chief executive of the Greater Houston Partnership, notes that “[m]uch of our economic growth is due to our international trade ties.”6 Houston’s total international trade is $167.7 billion per year. However, Houston’s international ties are not only economic.7 A surprisingly high percentage of Houstonians are foreign-born. In 2012, about one in seven Texans was born in another country,8 compared to more than one in five in the Houston Metropolitan Statistical Area9 and even higher in Houston proper. According to the U.S. census, 28.4 percent of Houstonians are foreign-born10 and 45.8 percent live in homes where a foreign language is spoken.11 In fact, more than 90 languages are spoken throughout the Houston area.12 Even one of Houston’s law schools recently boasted of its international status13 and the multilingual composition of its 2015 graduating class (26 languages).14 Foreign Parties Meet American Justice? If the defendant takes the stand in his own behalf, but has an imperfect command of English, there exists the additional danger that he will either misunderstand crucial questions or that the jury will misconstrue crucial responses. The right
to an interpreter rests most fundamentally, however, on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment.15 Houston’s international character, and the resulting presence of many foreign parties with Limited English Proficiency (LEP), poses unique problems for the courts. The legal-interpreter literature is replete with examples of cases in which the lack of appropriate interpretation for persons with LEP led to unjust outcomes and the denial of access to justice.16 It has been argued that, when an LEP party lacks adequate interpretation during a trial, he/she is in effect constructively absent from the trial due to the fact finder’s different understanding of what transpired or was said. This problem will be magnified with the increased incidence of multiple languages in the courtroom. In response, our federal and state legal institutions have shown a heightened awareness of the needs of persons with LEP. Since 1978, federal legislation has provided for the appointment of interpreters for cases initiated by the government in federal courts.17 Similarly, the Civil Rights Act includes interpreter services as part of its protection against national origin discrimination.18 The Act’s application to federally funded programs arguably applies to state court systems receiving federal financial assistance.19 In 2000, Executive Order 13166 mandated that federal agencies and recipients of federal financial assistance provide meaningful judicial access for LEP persons.20 In 2010, the Office of the U.S. Attorney General spelled out Language Access Obligations under Executive Order 13166 that require court personnel to possess working knowledge in identifying and coordinating the needs of persons with LEP.21 Nationally, organizations such as The National Center for State Courts and the American Bar Association have promulgated standards for courts to follow regarding LEP parties.22 Besides reinforcing the principle of equal access to courts thehoustonlawyer.com
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as a fundamental right, these organizaCurrent Trends tions have recommended ways to: (1) Courts nowadays are still heavily reliant identify those in need of interpretation; on interpreters’ in-person appearances (2) train interpreters; (3) train court perin cases where a party or party’s witness sonnel, including judges; and (4) license has LEP. As such, much of the current or certify interpreters. state of the law addresses human interIn Texas, the Court of Criminal Appreters, their compensation, and their peals has also long recognized crimiqualifications. However, technology-asnal LEP defendants’ sisted interpretation right to an interprethas steadily gained In Texas, the Court er as a right protectrecognition. These of Criminal Appeals has ed by both the U.S. mostly involve realso long recognized and Texas constitumote telephonic contions.23 Since at least ferencing29 or video criminal LEP defendants’ 1965, Texas statutes conferencing30 Alright to an interpreter have guaranteed though useful, these criminal LEP defenmethods are merely as a right protected dants the right to gap-fillers, and do by both the U.S. appointed interpretnot fully replace a and Texas constitutions. ers, requiring payface-to-face inter31 ment of interpreters preter. Since at least 1965, from county funds.24 Texas statutes have In 2001, the Texas Telephonic guaranteed criminal LEP Government Code interpreting mandated the licensTelephonic interpretdefendants the right ing and certification ing is a quick, inexto appointed interpreters, of court interpreters, pensive way to have providing that “A language interpretarequiring payment court shall appoint a tion when a live inof interpreters from certified court interterpreter is not availcounty funds. preter or a licensed able.32 Telephonic court interpreter if a interpreting operates motion for the appointment of an interon the premise that “a good interpreter preter is filed by a party or requested by a at a distance is better than a bad one up witness in a civil or criminal proceeding close or none at all.”33 It is easier for court in the court.”25 staff to manage and it saves time that But the law has not addressed many interpreters can allocate to actual work of the issues facing LEP parties. Though rather than to travelling.34 The downcivil courts are more likely to encounter sides of telephonic interpreting are probmultiple languages in one proceeding, lems with accuracy and reliability, as well LEP parties in civil courts are not affordas the lack of trained and equipped court ed the same constitutional guarantees staff. Therefore, it is only recommended as criminal defendants. Even the “shall” for short proceedings.35 Studies also show language cited above has been interthat interpreters themselves generally preted not to mandate the appointment dislike telephonic interpreting because of interpreters in civil cases, but simply the lack of visual cues may affect the acto require that they be licensed once the curacy of the interpretation.36 26 court chooses to appoint them. Texas civil statutes27 and rules28 have addressed Video Remote Interpreting (VRI) some civil LEP issues, such as non-manA mobile VRI device, which operates datory appointment and payment of inover a phone line or via internet, is vastly terpreters, but more challenges remain. implemented in the medical field. When
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needed, it will connect the caller to a qualified interpreter to provide prompt and accurate patient care. So far, courts have not adopted this kind of mobile device in court-spoken language interpreting. In sign-language interpreting, however, VRI is prevalently used when an in-person interpreting is not immediately available. Voice over Internet Protocol (VOIP) VOIP is a relatively new technology that has gained wide acceptance and use.37 This technology operates on software over the internet to conduct the interpreting. The advantages are that it is cost effective, easy to install, accessible, and (most of all) mobile. The disadvantages are the risk of a possible dropped connection, slow speed, or poor quality, and sometimes VOIP cannot be controlled like other stationed equipment or systems.38 Courts’ Use of Interpreting Technologies As a result of the federal initiative brought by executive order and the Attorney General’s mandate,39 the U.S. Justice Department developed a “Language Access Assessment and Planning Tool for Federally Conducted and Federally Assisted Programs.” It requires federally-assisted programs to provide language assistance service, either oral or written,40 which could include in-language communications such as bilingual staff or interpreting (either in person, telephonically, via internet, or by video).41 In response, courts have implemented various procedures and technologies: (1) an “I Speak” card or Notice of Right video dubbed in foreign languages to identify interpreting needs for persons with LEP,42 (2) training for more qualified interpreters through partnership programs,43 (3) resource sharing among courts by building a network of PSIRCs (Public Service Interpreting Centers),44 or (4) use of speaker phones, digital audio platforms, specialized telephonic equipment, videoconferencing, and VOIP technology.45 A poignant example is Florida’s Ninth Circuit Court, which has implemented
Pro Bono in Houston…
Rebuilds Families…Helps Veterans . . .Provides Peace of Mind for Seniors
Equal Access Champions
The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has signed a five-year commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. For more information contact Kay Sim at (713) 759-1133.
Large Firm Champions
Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Locke Lord LLP Vinson & Elkins LLP
Corporate Champions
Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips Exxon Mobil Corporation *Halliburton LyondellBasell Marathon Oil Company Shell Oil Company
Intermediate Firm Champions Gardere Wynne Sewell LLP Haynes and Boone, L.L.P. King & Spalding LLP
Mid-Size Firm Champions
Adams & Reese LLP Akin Gump Strauss Hauer & Feld LLP Baker & Hostetler LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain, Hrdlicka, White, Williams & Aughtry Greenberg Traurig, LLP Jackson Walker L.L.P. Jones Day Morgan, Lewis & Bockius LLP Porter Hedges LLP
Mid-Size Firm Champions, cont. Strasburger & Price, L.L.P. Susman Godfrey LLP Weil, Gotshal & Manges LLP Winstead PC
Small Firm Champions
Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Beck I Redden LLP Gibbs & Bruns LLP Hays, McConn, Rice & Pickering, P.C. Hughes Watters Askanase LLP Johnson DeLuca Kurisky & Gould, P.C. Kroger | Burrus *McGuireWoods LLP Schwartz, Junell, Greenberg & Oathout, L.L.P *Sidley Austin LLP Sutherland Asbill & Brennan LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Yetter Coleman LLP
Boutique Firm Champions
Blank Rome LLP Coane & Associates Connelly • Baker • Wotring LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Hicks Thomas LLP Jenkins & Kamin, L.L.P. Ogden, Gibson, Broocks, Longoria & Hall, L.L.P. Squire Sanders LLP Sutton McAughan Deaver LLP
Boutique Firm Champions, cont.
Strong Pipkin Bissell & Ledyard, L.L.P. Wilson, Cribbs & Goren, P.C.
Solo Champions
Law Office of O. Elaine Archie Peter J. Bennett Law Office of J. Thomas Black, P.C. Law Office of Robbie Gail Charette Chaumette, PLLC Law Office of Papa M. Dieye The Ericksen Law Firm Frye, Steidley, Oaks & Benavidez, PLLC Fuqua & Associates, P.C. Terry L. Hart Law Office of James and Stagg, PLLC Katine & Nechman L.L.P. The Keaton Law Firm, PLLC Gregory S. Lindley Law Office of Maria S. Lowry Martin R.G. Marasigan Law Offices The Law Office of Evangeline Mitchell, PLLC Bertrand C. Moser *Law Office of Brent C. Perry, P.C. Pilgrim Law Office Robert E. Price Cindi L. Robison Scardino & Fazel Shortt & Nguyen, P.C. Jeff Skarda Tindall & England, P.C. Diane C. Treich Norma Levine Trusch *The HBA welcomes these new firms to the Equal Access Champions program. thehoustonlawyer.com
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Cisco T3 Systems to integrate remote interpreting for short criminal proceedings instead of face-to-face interpretation.46 Orange County, California also has similar technologies.47 Fairfax County, Virginia has implemented an audio-video teleconferencing system by design firm Miller, Beam & Paganelli that is a more advanced version of VRI in which courts have control over the entire process during video interpreting.48 This advanced system facilitates easier interaction between the court and remote interpreters, and between the court and remote witnesses.49
Future Trends Mobile VRI With VRI gaining acceptance, current technology makes it more easily accessible and appealing to the general public. Software developers have created software that can handle these types of demands. For example, free or low-cost software such as AnyMeeting, Cisco WebEx meeting, AdobeConnect, and GotoMeeting or GotoMeeting Shared Space can be used over phones, over the internet, or on computers to allow large numbers of participants. With a few adaptations in functions, it will not be difficult to design a low-cost digital interpreting channel to suit court needs. Machine Interpretation Machine translation or interpretation has been a widely-discussed topic and has achieved significant growth in the past few decades. Machine translation, computer-assisted translation, electronic dictionaries, and voice-response translators are the four major translation modules.50 Statistics show that machine translation or interpretation has fewer errors in certain languages, such as Italian, than others, such as Hindi.51 The idea of machine interpretation basically relies on three steps of computer processing: speech recognition, text to machine translation, and text to speech. Current speech-recognition technol30
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ogy can achieve approximately 90 percent accuracy,52 and empirical studies or trials show that text-to-speech technology is amazingly accurate in English. Several speech-recognition-based commercial applications have made their way into our daily lives. These include navigation software, Google SearchTM, phone personal assistants such as Siri by Apple, Galaxy by Samsung, Google Voice Action by Google, Edwin Speech to Speech, SpeakToIt Assistant, and Vlingo. These applications have proven efficient, useful, and almost error-free for simple tasks such as directions and locations. Google Translate and Bing Translator have proven helpful with machine interpretation, but user experience is that they still cannot handle translation in long or complicated sentences in either source or target language. In recent years, Microsoft achieved a breakthrough in speech-recognition technology based on deep neural networks that may change the landscape for machine interpretation.53 In layperson’s terms, a deep neural network is an artificially engineered cognitive pattern that imitates the human brain. As such, it filters through ambiguous layers of interpretation of the received input using the context of the speech. Deep neural networks in computer science is based on the theory that “word sense disambiguation... can be accomplished by a neural network without prior linguistic analysis.”54 The neural network is constructed by word associations in their machinereadable dictionary definitions.55 Deep neural network is “a feed-forward, artificial neural network that has more than one layer of hidden units between its inputs and its outputs.”56 However, this method is not without its challenges, including the thousands of hours of data mining required and the need for development of effective speaker-adaptation techniques.57 Human Interpretation - Back in the Future? As of 2012, machines have not yet replaced humans to perform automated
language interpretation. However, once the weak link of speech-to-speech technology is perfected to almost 100 percent accuracy, a machine interpretation module will be possible in a more complex and commercially viable context. As such technology develops, the legal system will have to keep up to ensure meaningful access to justice. But the question remains whether such technology could replace human interpreters. Based on our research, this proposition still seems doubtful. Part of the reason may be human resistance to the idea itself. As one author stated, “Speech is perhaps the most human of all form of human expression. And that is what makes human interpreters essential.”58 Humans are apparently not yet willing to trust machines.59 This might be partly because language interpretation may require the use of interpersonal skills, critical thinking, and creativity that many believe machines will never accomplish. It has also been argued that a face-to-face interpreter whose livelihood depends on work quality would have more ethical accountability with the court than machines or their makers.60 Even if machines were not able to replace human interpreters, current literature in the field predicts that such technology will actually create more opportunities for “global” meetings and consequently more demand for interpreters.61 Furthermore, interpretation technology will certainly aid professional interpreters in doing a better job. Most importantly, when human interpreters are not readily available, technologicallyenhanced interpretation would become essential to LEP parties’ meaningful access to court. In short, as University of Maryland Professor Dr. Don Olcott, Jr. envisioned, it is likely that “[t]echnology will continue to be a powerful force in shaping our constitutional destinies, second only to our most valuable resource, human creativity.”62 Conclusion Houston’s growth as an international,
multilingual city will continue and this growth will become increasingly evident in our courts. We foresee that court interpreting technology worldwide will exponentially advance to assist interpreters, LEP parties, and the courts in bridging much of the language gaps that will inevitably take place in a multilingual courtroom. We finally anticipate and hope that, in the future, our legal system will continue to honor the best of our sound traditions of due process and equal protection for all, including equal access to court to parties with Limited English Proficiency. The Hon. Josefina M. Rendón is an Associate Municipal Judge and former District Judge. Born a U.S. citizen in San Juan, Puerto Rico, she has lived in Texas since her adolescence. Judge Rendon has conducted simultaneous Spanish-English court interpretations. She also has some knowledge of French and German. Lingling Dai is an attorney in Houston. Born and raised in China, Ling has lived in Texas
for 11 years. She graduated from South Texas College of Law. She also pursued post-graduate studies in applied linguistics at Beijing Language and Culture University. She speaks Mandarin and has some knowledge of French.
3.
4. 5. 6.
Endnotes 1.
2.
International Business: Global Advantage, GREATER HOUSTON PARTNERSHIP, available at http:// www.houston.org/international-business/globaladvantages/index.aspx. About Houston: Houston Facts and Figures, THE CITY OF HOUSTON’S OFFICIAL SITE FOR HOUSTON, TEXAS, available at http://www.houstontx.gov/ abouthouston/houstonfacts.html.
7.
8.
Edward Russell, How Houston Became a Global City, NEXT CITY (Sept. 22, 2010), available at http:// nextcity.org/daily/entry/how-houston-became-aglobal-city. Global Advantage in Foreign Trade, supra n.1. About Houston: Houston Facts and Figures, supra n.2. George Hugh, Immigrant Growth Powers Houston As a Global City, PLANETIZEN (Sept. 24, 2010), available at http://www.planetizen.com/node/46136. International Business: Gateway to Global Markets, GREATER HOUSTON PARTNERSHIP, available at http://www.houston.org/international-business/ gateway-to-global-markets.html. Jeannie Kever, Census shows record growth in foreignborn population (May 10, 2012), available at http:// w w w.chron.com /news/houston-texas/article /
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Foreign-born-altering-face-of-U-S-Texas-3550385.php. Economic Development: Facts & Figures—Demographics, GREATER HOUSTON PARTNERSHIP, available at http://www.houston.org/economic-development/factsfigures/demographics/index.aspx. 10. State & County QuickFacts: Houston, Texas, U.S. CENSUS BUREAU (last revised Jan. 10, 2013), available at http:// quickfacts.census.gov/qfd/states/48/4835000.html. 11. Id. 12. About Houston: Houston Facts and Figures, supra n.2. 13. Global Influence: From Houston to the World, BRIEFCASE MAGAZINE: UNIVERSITY OF HOUSTON LAW CENTER, vol. 31:1, at 6-8 (2012), available at http:// www.law.uh.edu/news/briefcase/v31n01.pdf. 14. Briefly Noted (Class of ‘15: From Arias to Zumba), BRIEFCASE MAGAZINE, supra n.13, at 19. 15. United States v. Carrion, 488 F.2d 12 (1st Cir. 1973). 16. E.g., Lupe S. Salinas, et al., The Right to Confrontation Compromised: Monolingual Jurists Subjectively Assessing the English-Language Abilities of Spanish-Dominant Accused, 18 AM. UNIV. J. OF GENDER & SOCIAL POLICY AND LAW 543, 543-561 (2010), available at http://digitalcommons.wcl.american.edu/cgi/ viewcontent.cgi?article=1493&context=jgspl; Maxwell A. Miller, Hon. Lynn Davis, et al., Finding Justice In Translation: American Jurisprudence Affecting Due Process for People with Limited English Proficiency, 14 HARV. LAT. L. REV. 117 (2011); Elena M. de Jongh, Court Interpreting: Linguistic Presence v. Linguistic Absence, THE FLOR. BAR. J., July-Aug. 2008, available at http://www.floridabar.org/DIVCOM/ JN/JNJournal01.nsf/Author/089C9FC08403FDF885 257471005ECF98; Virginia Benmaman, Interpreter Issues on Appeal, 9 PROTEUS (Newsletter of the Nat’l Assoc. of Judiciary Interpreters and Translators), Fall 2000, available at http://www.najit.org/certification/ FAQarticleBenmaman.htm; Alex Rainof, The Lessons of the Méndez Case: Suggested Transcription, Translation and Interpretation Assessment Methodology for the Courts, 21 PROTEUS, Spring 2012, available at http:// www.najit.org/publications/spring12mendezcase. php; Diana Cochrane, Note, ¿Cómo se Dice “Necesito un Intérprete”? The Civil Litigants Right to a Court Appointed Interpreter in Texas, 12 SCHOLAR 47 (St Mary’s L. Rev. on Minority Issues), Fall 2009, available at https://litigation-essentials.lexisnexis.com/webcd/p? action=DocumentDisplay&crawlid=1&doctype=cite& docid=12+SCHOLAR+47&srctype=smi&srcid=3B15&k ey=3cae550f7d395b824ed6733ecd1f030a. 17. 28 U.S.C. § 1827 (2012). 18. Title VI, 1964 Civil Rights Act, 42 U.S.C. § 2000(d) (2012). 19. Id. 20. Exec. Order No. 13,166, 65 Fed. Reg. 50, 121 (Aug. 16, 2000). 21. Office of the Attorney General, Memorandum, Federal Government’s Renewed Commitment to Language Access Obligations Under Executive Order 13166 (Feb. 17, 2011), available at http://www.justice.gov/crt/lep/AG_021711_ EO_13166_Memo_to_Agencies_with_Supplement.pdf. 22. William E. Hewitt, Standards for Language Access in Courts (Feb. 6, 2012), available at http://www. americanbar.org/content/dam/aba/administrative/ legal_aid_indigent_defendants/ls_sclaid_standards_ for_language_access_proposal.authcheckdam.pdf; William E Hewitt. et al., COURT INTERPRETATION: MODEL GUIDES FOR POLICY AND PRACTICE IN THE STATE COURTS (National Center for State Courts 1995), available at http://ncsc.contentdm.oclc.org/cdm/ singleitem/collection/accessfair/id/162/rec/18; Title VI, 1964 Civil Rights Act, supra n.18. 23. Garcia v. State, 210 S.W.2d 574, 579 (Tex. Crim. App. 9.
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1948); Ex Parte Marez, 464 S.W.2d 866, 866 (Tex. Crim. App. 1971) (citing Pointer v. Texas, 380 U.S. 400 (1965)); Diaz v. State, 491 S.W.2d 166, 168 (Tex. Crim. App. 1973); Flores v. State, 509 S.W.2d 580, 581 (Tex. Crim. App. 1974); Garcia v. State, 149 S.W.3d 135, 141 (Tex. Crim. App. 2004); Ex parte Nanes, 558 S.W.2d 893, 894 (Tex. Crim. App. 1977); Garcia v. State, 149 S.W.3d 135, 140 (Tex. Crim. App. 2004). 24. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722; TEX. CODE CRIM. PROC. ANN. arts. 38.30 (Vernon Supp. 2002) (spoken-language interpreters), 38.31 (interpreters for the deaf). 25. TEX. GOV’T CODE ANN. § 57.002(a) (West Supp. 2012). 26. Salem v. Asi, No. 02-10-00295-CV, 2011 WL 2119640, at *2 (Tex. App.—Fort Worth May 26, 2011, no pet.); Op. Tex. Att’y Gen. No. JC-0584, 2002 WL31674922, at *14 (2002). 27. TEX. CIV. PRAC. & REM. CODE ANN. ch. 21 (Vernon Supp. 2011) (interpreters for the deaf, interpreters for Spanish in border counties, interpreters for county courts, and interpreter fee). 28. TEX. R. CIV. P. 183 (addressing courts’ power to appoint and fix interpreter compensation). 29. FED. JUDICIAL CENTER & THE NAT’L INST. FOR TRIAL ADVOCACY, EFFECTIVE USE OF COURTROOM TECHNOLOGY: JUDGE’S GUIDE TO PRETRIAL AND TRIAL 16 (Feb. 2001), available at www.law.arizona.edu/it/court/judgesguide.pdf. 30. Carola E. Green & Wanda Romberger, Leveraging Technology to Meet the Need for Interpreters (National Center for State Courts 2009), available at http:// cdm16501.contentdm.oclc.org/cdm/ref/collection/ accessfair/id/184. 31. Tom Pointon, Telephone Interpreting Service is Available, British Medical Journal, vol. 312, at 53 (Jan. 6, 1996), available at http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC2349723/?page=1. 32. Roberto A. Gracia-Garcia, Telephone Interpreting: A Review of Pros and Cons, available at http://www.a2hc. org/articles/Telephone_interpreting-pros_and_cons. pdf. 33. Id. 34. Id. 35. Id. 36. Id. 37. Tex. Remote Interpreter Project (TRIP), available at http://www.txcourts.gov/oca/DVRA/trip.asp; Green & Romberger, supra n.30. 38. Green & Romberger, supra n.30. 39. See supra nn.20-21. 40. Language Access Assessment and Planning Tool for Federally Conducted and Federally Assisted Programs, Fed. Coordination and Compliance Sec., U.S. Dept. of Justice, at 5 (May 2011). 41. Id. 42. Rodney Olson, An Analysis of Foreign Language Interpreter Services Provided for the District Court in Cass County, N. Dakota and Improvement Recommendations (May 2009); Pamela Sanchez, New Mexico Justice System Interpreter Resource Partnership, Final Grant Report (Dec. 2010) (“I Speak” cards are cards distributed to LEP persons for them to identify which non-English language they speak). 43. Sanchez, supra n.42. 44. William E. Hewitt, Interpreter Resource Center for Justice System and Other Public Agencies: A Concept Paper NCSC (2004). 45. Green & Romberger, supra n.30. 46. Remote Centralized Interpreting presentation, NINTH JUDICIAL CIRCUIT COURT OF FLORIDA, available at http://www.ninthcircuit.org/programs-services/courtinterpreter/downloads/RemoteInterpreting.pdf.
47. Tracey
Clark, et al., Recommended Guidelines for Video Remote Interpreting (VRI) for ASI-Interpreted Events, JUDICIAL COUNCIL OF CALIFORNIA/ ADMINISTRATIVE OFFICE OF THE COURTS: COURT INTERPRETERS PROGRAM (2012), available at http://www.courts.ca.gov/documents/CIP-ASL-VRIGuidelines.pdf. 48. CTMS: Courtroom Technology Management System presentation, FAIRFAX COUNTY COURTHOUSE (revised Jan. 24, 2013), available at http://www. fairfaxcounty.gov/courts/crto/pdf/ctmstrainingguide_ audiovideotelecon.pdf. 49. Id. 50. White Paper On Court Interpretation: Fundamental to Access to Justice, CONFERENCE OF STATE COURT ADMINISTRATORS, at 13 (Nov. 2007), available at http://cosca.ncsc.dni.us/WhitePapers/ CourtInterpretation-FundamentalToAccessToJustice. pdf. 51. Franz Josef Och, Statistical Machine Translation presentation at Google Faculty Summit (July 30, 2009), available at http://www.youtube.com/watch?v=y_ PzPDRPwlA. 52. Patrick Marshall, Speech-recognition Software Now Faster, More Accurate than Ever, THE SEATTLE TIMES (Mar. 23, 2012), available at http://seattletimes.com/ html/businesstechnology/2017827402_ptspeech24. html. 53. Rich Rashid, Speech Recognition Breakthrough for the Spoken, Translated Word presentation (Nov. 8, 2012), available at http://www.youtube.com/watch?v=NunlQqFCKg (last visited Feb. 1, 2013). 54. Paul Deane, Book Review: Computational Lexical Semantics, 21 Computational Linguistics 593, 596, available at http://acl.ldc.upenn.edu/J/J95/J95-4010.pdf. 55. Id. 56. Geoffrey Hinton, et al., Deep Neural Networks for Acoustic Modeling in Speech Recognition, IEEE SIGNAL PROCESSING MAGAZINE, Nov. 2012, available at http://www.cs.toronto.edu/~hinton/absps/DNN-2012proof.pdf; Frank Seide, et al., Conversational Speech Transcription Using Context-Dependent Deep Neural Networks, Interspeech 2011, available at http://research. microsoft.com/pubs/153169/CD-DNN-HMM-SWBInterspeech2011-Pub.pdf. 57. Seide, supra n.70, at 4. 58. Barry Olsen’s Remarks to the National Judiciary Interpreters and Translators Association, transcribed at Interpreting and the Digital Revolution, INTERPRETAMERICA (remarks delivered May 13, 2011), available at http://interpretamerica.blogspot. com/2011/05/interpreting-and-digital-revolution.html. 59. Charles W. Bailey, Jr., Truly Intelligent Computers (Am. Library Assoc. 1992), available at http://old.cni. org/pub/lita/think/bailey.html; Spencer Ackerman, The Pentagon Doesn’t Trust Its Own Robots, WIRED, Sept. 11, 2012, available at http://www.wired.com/ dangerroom/2012/09/robot-autonomy/; Sharon Weinberger, Next Generation Military Robots Have Minds Of Their Own, BBC, Sept. 28, 2012, available at http://www.bbc.com/future/story/20120928-battlebots-think-for-themselves; Katie Scott, Robot Taught to Think for Itself, WIRED UK, Aug. 2, 2011, available at http://www.wired.com/wiredscience/2011/08/robotthinking-autonomy/. 60. COURT INTERPRETATION: MODEL GUIDE, supra n.22 at 184-185. 61. Olsen, supra n.58. 62. Holly Mikkelson, Plus ça change... The Impact of Globalization and Technology on Translator/Interpreter Education (originally presented as keynote address Oct. 29, 1999), available at http://www.acebo.com/papers/ pluschng.htm (quoting Dr. Don Olcott).
The Law Firm of the Future
By Toby Brown
P
eering into a crystal ball on the future of the practice of law, one thing seems clear: Things need to change. And more specifically, lawyers need to change the way they practice law. Of all the talk of new technologies and new competitors in the legal market, there is a basic assumption that the status quo cannot hold. So then the question becomes: What does that change look like and how do we get there? Taking a step back, it makes sense to review what is driving this change. The market is putting intense pressure on lawyers of all types. In-house counsel are under direct pressure to lower costs. Large firm lawyers are under pressure from in-house counsel clients to reduce rates and fees. Solo/small firm lawyers are now competing with well-funded document forms companies. Even government lawyers are being pressed to find ways to deliver legal services that are better-faster-cheaper. From experience in the large firm market, the pressure to adapt is intensifying. Alternative fee arrangements (AFAs) are one manifestation of this pressure. At its foundation, what we are witnessing is a shift from a sellers’ market to one that is truly competitive. Whereas lawyers in the past could rely on being good lawyers to have a successful practice, now they must wear many hats and serve in many demanding roles. So this look into the future is no small challenge. Years back I used to give law practice management seminars and categorized law practice functions into five topics: human resources (HR), facilities, financial management, marketing and technology. For this exploration, I will tackle each topic with an eye toward what each function might be like for a future firm.
Human Resources (HR) Law firms are in the knowledge business and people are the means of production
in the form of knowledge workers. The to dedicated conference space as the future firm will do better to view all of only option for client meetings. Worktheir people as knowledge workers, exing floors are properly restricted to firm pecting each person to add value to their personnel for both security and conficlient services regardless of whether they dentiality reasons. This of course means bill their time. Current practices where the working space no longer needs to impeople are expected to be sitting at their press clients and can be configured much desk to have value will need to be redifferently. Although high-rent locations examined. Telecommay be retained, muting and other large offices with A fundamental work arrangements many windows will challenge for lawyers will motivate and enno longer need to be able employees to dethe norm. For good looking to embrace liver the most in the examples of what the future is what least amount of time. this might look like, Law firm personnel check out the acI call The Paradigm will also need concounting industry or of Precedence... tinual professional even the investment development in orbanking industry. der to constantly Here offices occupy ...Lawyers need drive up their value the center of a floor, to the firm’s clients. with cubicles and to break from this On the lawyer side work spaces aligned of personnel, every along the windows. way of thinking lawyer does not need This allows for priand re-align to be on a partner vacy for executives track. Our future and makes better use their businesses firm will happily emof exterior spaces, alwith the needs ploy “staff lawyers” lowing light in and who have great lawreducing the overof today and yer skills and are fulall amount of space tomorrow’ s clients. filled performing as a needed. lawyer – versus runAs noted above The result will be ning a business. The in the HR section, more satisfied clients “up or out” model for future firms will all lawyers will be set embrace telecomand a healthy aside. muting, enabling sigpractice. In too many firms, nificant cost savings HR has become a on space. Firms that compliance function, enforcing leave reach this level of enlightenment will policies and administering benefits. In have realized the true value that space the future, HR will need to embrace a taladds to their services. ent role. In this role, HR’s job will be constantly increasing each person’s value in Financial Management the firm. This, in turn, will increase the Traditional law firm finances focus on value of services provided to clients. billing rates and realization for revenue. On the expense side, the four major costs Facilities (a.k.a. Office Space are people, space, insurance and everyand Equipment) thing else. The future law firm will have to seriously For revenue, the future firm needs to reconsider the value of its office space. shift to an orientation more focused on Many firms have already transitioned profit margin. Here rates and realiza-
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tion may still matter, however, the better question becomes: What is the cost of goods sold versus the revenue received? A basic challenge for firms of all sizes is that partner compensation is, by definition, profit. Yet partners are also workers. So firms will need new profitability methods for separating partner compensation into a wages component and a profit component. This revised margin approach will drive a reexamination of the various costs incurred, making sure they each drive value and are efficiently deployed. The bottom line of financial management is the bottom line on the balance sheet. Of course, expense control will continue to be important to future firms. However, much like in the past, this effort should not consume too much valuable leadership time. Our future firm will put reasonable overhead cost controls in place using effective oversight and then perform check-ups annually. This sounds simple, yet too many lawyers focus too much time on expense control because they view every dollar spent as coming out of their pocket. The reality is that time spent on revenue growth has significantly more impact on the bottom line than time spent managing expenses. Marketing The days of using attorney bios as THE source of marketing are over. This outdated approach assumes clients hire lawyers for one reason: expertise. And it assumes a bio is sufficient for demonstrating the value proposition of expertise to a client market. In the future firm, marketing takes on its full business definition, including advertising, business development and sales. In this new, truly competitive market for services, law firms will need to do more marketing. The impulse to cut marketing to save on overhead will need to be avoided. Our future firm will retain people, internally or on contract, who have marketing expertise... and let them do their jobs. Too many times firms hire great marketing people, and then relegate them to event 36
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planning and newsletters. As lawyers recommend that their clients listen to their legal counsel, so should lawyers trust the counsel of their marketing professionals. A new, emerging layer of marketing is utilizing social media and other webbased options. Embracing these tools will be critical to the future law firm given the relationship nature of legal services. Do not think of these tools as replacements for existing relationship activities, but instead as enhancements and extensions for further building client relationships. So far law firms have been very slow to adopt these new approaches, evidenced by the slow uptake of legal content blogs. Our future firm will be willing to take risks and experiment with various social media platforms. Technology For our future firm, we will split technology into two sub-categories: back office and front office. Back office technology is that which runs the law firm. It is practice management, financial management, document management and the various technologies that keep a practice functioning. The future firm will have all of these applications hosted on-line, in the cloud. Law firms have never been the best IT shops and this cloud approach will get them out of the IT business. Of course, security of client information will be an issue. However, I suggest that reputable cloud providers have far more secure technology than an average law firm. Front-office technology will also be better positioned in the cloud, but for a different reason. Interactive tools are the future. Being able to co-edit documents with a client, or interact on projects in real-time, will have tremendous value. Our future firm may even opt to build an app, allowing clients to interact with the law firm via smart phones and other mobile devices. Beyond moving technology to the cloud, future firms will need to integrate next-generation technologies into the
way they practice. One example is the document analysis engine provided by KIIAC (www.kiiac.com). This technology is able to read volumes of documents and extract the clause structure for a document type and determine the most standard language for each clause. This tool effectively replaces the functions of a lawyer, and is able to do it on a much larger scale. Where a lawyer might review a few past document examples to create a clean draft, a tool like KIIAC can easily analyze hundreds of documents, giving a much more reliable work-product. KIIAC is just an example of the type of technology future firms should seek out and embrace. Back to Business Basics In covering our five topics, we have essentially begun the task of drawing up a business plan for our future firm. This foundation of doing things differently could easily be fleshed out into a complete plan for the firm of the future. In fact, some firms are already doing this (e.g., Clearspire, Valorem Law Group, etc.). A fundamental challenge for lawyers looking to embrace the future is what I call The Paradigm of Precedence. The basic idea is that lawyers have been trained in, and practice daily an approach of “look to the past to determine the present.” This way of thinking has crept into the way lawyers run their businesses and impacts many of their daily decisions. If you have ever heard the response “what are other firms doing?” to a proposal, then you have witnessed this in action. Lawyers need to break from this way of thinking and re-align their businesses with the needs of today and tomorrow’s clients. The result will be more satisfied clients and a healthy practice. Toby Brown is Director of Strategic Pricing & Analytics at Akin Gump Strauss Hauer & Feld, L.L.P. He also maintains the American Bar Association award-winning blog, 3 Geeks and a Law Blog, with two colleagues at www. geeklawblog.com.
Houston Bar Foundation Recognizes Outstanding Efforts by Volunteers Ballard Takes Office as 2013 Chair
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he Houston Bar Foundation marked its 30th year of service with an Annual Meeting and Luncheon held February 7 at the Four Seasons Downtown. The luncheon not only commemorated the installation of new officers, but also recognized the contributions of volunteers who provide pro bono legal representation and other services to the community. Glenn A. Ballard, Jr. of the Houston office of Bracewell & Giuliani LLP took office as 2013 Chair of the Houston Bar Foundation. Welcoming him and serving as keynote speaker was Rudolph W. Giuliani, name partner in the New York office of Bracewell & Giuliani, former Mayor of the City of New York and former Presidential candidate. Ballard succeeded Robert J. McAughan of Sutton McAughan Deaver PLLC as chair of the Foundation. Gregory Ulmer of Baker Hostetler LLP was elected vice chair of the Houston Bar Foundation and Craig Glidden of LyondellBasell Industries was elected treasurer. New directors are David Brinley of Shell Oil Company; William R. Buck of Rudy Giuliani welcomed his law partner, Glenn A. Ballard, Jr., Exxon Mobil Corporation; and Denise Scofield of Morgan, Lewis & as the 2013 Chair of the Houston Bar Foundation. Bockius LLP. Completing terms as directors are Christopher J. Arntzen of CenterPoint Energy; Chris Popov of Vinson & Elkins LLP; and John Eddie Williams of Williams Kherker Hart Boundas, LLP. McAughan will serve on the board as immediate past chair. McAughan presented the Foundation’s annual awards for pro bono service through the Houston Volunteer Lawyers (HVL), volunteer mediation services through the Dispute Resolution Center (DRC), and legal writing in The Houston Lawyer, the HBA’s professional journal.
Presentation of James B. Sales Pro Bono Leadership Award Kay Sim, executive director of the Houston Bar Association and secretary of the Houston Bar Foundation, was named the fourth recipient of the James B. Sales Pro Bono Leadership Award. Throughout her long career with the HBA, Sim has built many of the association’s most enduring public service and community education programs. Her passion for educating young people led to the Robert J. McAughan presented the James B. Sales Pro Bono development of the Juvenile Justice Mock Trial Program, which has Leadership Award to Kay Sim, executive director of the HBA. given more than 39,000 young teens a positive look into the legal system. She has worked tirelessly to enhance the learning environment for students at B.C. Elmore Middle School, the HBA’s “adopted” school in North Forest ISD. Sim also was instrumental in developing the Juvenile Consequences Program, a partnership of the HBA, the Harris County District Attorney’s Office, the Houston Police Department and the Harris County Juvenile Probation Department that educates youth and their parents and gives them a second chance when they enter the juvenile system. In 2008, she worked with then-HBA president, Travis Sales, to establish the Veterans Legal Initiative, which provided legal services to nearly 7,500 veterans and served as a model for statewide programs. Photos by Temple Webber thehoustonlawyer.com
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Andrius Kontrimas accepted the award for Fulbright & Jaworski L.L.P. for Outstanding Contribution to HVL by a Large Firm for the 13th consecutive year. Awards were presented by 2012 Houston Bar Foundation Chair, Robert J. McAughan
Stephen Moll accepted the award for Gardere Wynne Sewell LLP for Outstanding Contribution to HVL by an Intermediate Firm.
Dan Hedges accepted the award for Porter Hedges LLP for Outstanding Contribution to HVL by a Mid-size Firm.
Michael Richardson accepted the award for Beck|Redden for Outstanding Contribution to the HVL by a Small Firm.
Lynne Kamin and Joan Jenkins accepted the award for Jenkins & Kamin, L.L.P. for Outstanding Contribution to the HVL by a Boutique Firm.
Benjamin Ederington accepted the award for LyondellBasell, one of two corporations honored for Outstanding Contribution to HVL. 38
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Peter J. Bennett was honored for the third time for Outstanding Contribution to HVL by a Solo Practitioner.
Jack Balagia accepted the award for Exxon Mobil Corporation, one of two corporations honored for Outstanding Contribution to HVL, and Susan Sanchez of Exxon Mobil was one of two pro bono coordinators honored for Outstanding Contribution to HVL.
Monica Karuturi of LyondellBasell was one of two pro bono coordinators honored for Outstanding Contribution to HVL.
Francine Barton earned her second consecutive honor for Outstanding Contribution to the Dispute Resolution Center.
James Greenwood III was honored for Longevity of Exemplary Service to the Dispute Resolution Center.
Caroline C. Pace was honored as the author of the Outstanding Legal Article in The Houston Lawyer for 2012.
Only Lawyers Can Fill the Need. Volunteer Today. www.makejusticehappen.org thehoustonlawyer.com
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COMMITTEE SPOTLIGHT
The Lawyers Against Waste Committee Makes Houston a Greener and Cleaner City By Polly Graham
The Houston Lawyer
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thousand trees during his term. His comuring the recent drought, the mitment was deeply needed in Houston. Houston Arboretum & Nature Urban forests play a critical role in the Center—a preserve nestled health and economics of metropolitan within Memorial Park—lost life by increasroughing air and water ly half of its quality, fostering tree canopy. The wildlife diversity, Lawyers Against and moderating Waste Committemperatures. tee stepped in to This results in help, and coordithe equivalent of nated a fundraishundreds of miling drive that led lions of dollars in to the purchase of HBA members and their families planted over 1,000 trees pollution removal over a thousand at the Houston Arboretum and Nature Center. and carbon stortrees to replenage every year in ish the depleted Texas.1 But unforforest area. On Arbor Day, over tunately, a recent 200 volunteers Forest Service arrived to begin report shows that settling the sapthe tree canopy lings into their is steadily declinnew home. It was ing in urban areas the largest plantacross the Uniting by a single ed States,2 and group in the ArHouston is at the boretum’s history. HBA President Brent Benoit and Lawyers Against Waste top of the charts.3 Working in two Committee Chair Laura Gibson. Committee hour shifts, the Chair Laura Gibvolunteer lawyers son, a founding slowly changed partner of Ogden, the landscape of Gibson, Broocks, dried brush and Longoria & Hall, bare trees into a L.L.P, put the terrain budding plan into action. with new life. In a joint letter, HBA PresiLaura and Brent dent Brent Ben- Students from South Texas College of Law helped with reg- reminded bar oit spearheaded istration. members that the the initiative by promising to plant one Houston Arboretum “[p]lays a vital role
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in protecting native plants and animals in the heart of the city where development threatens their survival,” and “[p]rovides education about the natural environment to Houstonians of all ages.” As a result of their efforts, the committee easily exceeded its fundraising goals. The tangible legacy is a contribution to a healthy urban forest that will benefit Houston for many years to come. For over a decade now, the committee has been working to transform the local community. Last fall, dozens of volunteer lawyers arrived to clean-up the DawsonLunnon Cemetery, a small tract located just a few miles southeast of downtown. The historic plot once served as the burial ground for the Mt. Gilead Missionary Baptist Church, but over time had been all but forgotten. The volunteers cleared heavy brush and trash, uncovered headstones, and planted 15 trees in the process. And the cemetery now has a new trail adjacent to Brays Bayou leading to the grave stones of individuals who lived at the turn of century. Contact Claire Nelson (ClaireN@hba. org) or Rocio Rubio (RocioR@hba.org) or call the HBA office at 713-759-1133 for more information about the Lawyers Against Waste Committee. Polly Graham is is an associate in the appellate group at Haynes and Boone, L.L.P. and a member of The Houston Lawyer Editorial Board. Endnotes 1. 2.
3.
USDA Forest Service, Urban Forest Data, http://nrs.fs.fed.us/ data/urban/state/?state=TX (last visited February 9, 2013). David Nowak & Eric Greenfield, Tree and Impervious Cover Change in U.S. Cities, 11 URBAN FORESTRY & URBAN GREENING 21, 21 (2012). Id. at 23.
A Profile
in pro f e s s io n ali s m
The Hon. Marc C. CarteR Judge, 228th Criminal District Court
“There but for the grace of God go I.”
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s a criminal district court judge, and judge of the Harris County Veterans Court, I see the worst and the best of our community: I see families ravaged by crime; I see people who have lost everything as a result of their addiction to drugs and alcohol; I see chronically mentally ill men and women come through the courthouse doors day after day; I see men and women that have fought this country’s wars come home broken, isolated, afraid and eventually charged with crimes. That of course is the worst, but I also see the best of our community: I see the victims of crime forgive their trespassers, and state that by forgiving, they are now free to embrace life and able to love those around them; I see drug addicts and alcoholics go into treatment programs and regain their ability to control their
addictions; I see the chronically mentally ill treated and become competent, happy, and productive citizens. In addition, I see our fighting men and women regain their sense of pride, honor, and duty. These struggles and victories are why I am a lawyer and serve as judge for Harris County. There are a host of tremendous individuals and agencies that come together to create these victories: There are the professionals at the Harris County District Attorney’s Office who seek justice and not convictions; there are defense lawyers who take the time to know their client, their family, and their story. Additionally, there are all the support agencies such as the Probation Department, the VA Medical Center, MHMRA, and countless other entities that work together to make our community safer and our lives better. I want to thank every one of you for your hard work, patience, and commitment to justice.
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OFF THE RECORD
Jammin’ with
The Writ Kickers By Erika Anderson
Since then The Writ Kickers have recruited Steve Ferrell, the band’s newest member, and have continued to practice and refine their signature bluesy, folk-rock-style sound. They’ve he members of The Writ Kickers share a long love of played over a dozen concerts. They’ve played at outdoor fesmusic. Judge Bill Burke has been playing guitar for tivals in Old Town Spring and as the opening act for a local more than 50 years. He also plays the harmonica and theater company. They’re even semi-regulars at Puffabelly’s in the banjo. Steve Ferrell has been singing all his life Old Town Spring, as a group and as individuals. and playing guitar for 41 years. Judge Brent Gamble Asked how they find the time for regular practice and perforhas been playing guitar for 49 years. Judge Patricia Kerrigan has mances between their busy schedules as lawyers and judges, always loved to sing, but sang for the first time in public only Judge Kerrigan laughed and a few years ago at a judge’s said simply that they make CLE. She also sometimes time because it’s so much provides percussion, and is fun. That sense of fun is cerworking on adding an intainly evident to the audistrument to her repertoire. ence when you watch them The members of The Writ play. They’re a talented Kickers have played off group, and they clearly enand on together for years, joy the spotlight. separately and with other You can find videos of The musicians, at judicial holiWrit Kickers’ performances, day parties and for fun on and some impromptu jam weekends, only occasionsessions, by searching for ally playing serious songs. The Writ Kickers on YouThe first time Judges Burke, Tube and on Facebook. The Gamble and Kerrigan band also updates its Faceplayed together was at the book page with information 2009 judicial holiday party. about future performances. Then in January 2011 the You can catch them, togethas-yet-unnamed band had er or separately, at Thursday the opportunity to put on a The Writ Kickers: front row, Steve Ferrell and Judge Patricia Kerriopen mic nights at Puffabelserious public performance gan; back row, Judge Bill Burke and Judge Brent Gamble. ly’s in Old Town Spring. The at the Houston Livestock band is also available for events! Show and Rodeo. They practiced, and posted on Facebook looking for a name. A friend, Cheri Duncan, suggested “The Erika Anderson is an associate with The Stinemetz Writ Kickers” and the name stuck. The band members sucLaw Firm, PLLC and a member of The Houston Lawyer cessfully launched their musical side careers with a 30 minute editorial board. intermission set at the Rodeo’s Drilling & Grilling tent.
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LEGAL TRENDS
New Civil Procedure Rules from the Texas Supreme Court By Chance A. McMillan
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n March 1, 2013, the Texas Rules of Civil Procedure received two new rule additions that could potentially affect a large portion of the State Bar’s litigation practice. One rule, Texas Rule of Civil Procedure (“TRCP”) 91a, created a new procedure allowing a party to file a motion to dismiss on causes of action that have no basis in law or fact.1 The other rule, TRCP 169, will streamline cases involving claims of $100,000.00 or less to trial with limited discovery rules.2 The court also amended TRCP 47, 190, 190.2, and 190.5 to adhere to the expedited trial process.3 The following is a brief summary of the changes. New Rule: Texas Rules of Civil Procedure 91a (Dismissal Rule) In order to utilize TRCP 91a, a party must file a Rule 91a Motion to Dismiss within 60 days of receiving the pleading containing the inadequate cause of action.4 The court must then grant or deny the motion within 45 days after the motion is filed.5 The court may (but is not required to) conduct a hearing before ruling on the motion.6 The court must dismiss a cause of action if it has “no basis in law or fact.”7 A cause of action has no basis in law if
the allegations do not entitle the claimant to the relief requested.8 A cause of action has no basis in fact if “no reasonable person could believe the facts pleaded.”9 When considering the motion, the rule forbids the court from considering any evidence; the court must focus solely on the believability of the pleading when dismissing the cause of action.10 Once the court grants or denies the motion, it must then award the prevailing party attorneys fees.11 TRCP 91a is unique. It introduces a new believability standard that will allow the court to subjectively look at a party’s pleadings and dismiss a cause of action before it ever reaches a jury.12 It also forbids the court from considering evidence that could potentially aid the court in the believability of the cause of action.13 Rules of Civil Procedure 169 (Expedited Actions) The Supreme Court amended TRCP 47 to force parties to plead into one of five specific categories ranging from $100,000.00 or less to over $1,000,000.00.14 Failure to plead into one of the specific categories will preclude the offending party’s discovery until the pleading is adequately amended.15 If a party seeks monetary relief of $100,000.00 or less, the case is governed by the new rule, TRCP 169.16 Under the framework of TRCP 169, and upon request of either party, the court must set a trial date for the case for within 90 days after the discovery period ends.17 The discovery period begins when the case is filed and ends 180 days after the first request for discovery is served on a party.18 So, in theory, if a party files discovery with its petition, the court must set the case for trial, at the latest, 9 months after the pleading and discovery is filed with the court. Amendments to TRCP 190.2 also introduce limited written discovery rules to adhere to the expedited trial process.19
For cases seeking under $100,000.00, the parties now will be limited to 15 interrogatories, 15 requests for productions, and 15 requests for admission.20 Also, each party is only allowed five hours total to complete jury selection, opening statements, direct examination and cross-examination of witnesses, and closing argument.21 TRCP 169 appears to be plaintiff’s friendly. After all, it is the party seeking relief that decides how much to plead and whether to subject itself to the expedited action.22 There is no mechanism in TRCP 169 that allows for a defendant to force a party into an expedited action if the party affirmatively pleads above $100,000.00 in its initial pleading. For more information on the new rules check the Texas Supreme Court website or contact the court’s rules attorney, Marisa Secco at marissa.secco@txcourts. gov. Chance A. McMillan is an associate with Thomas N. Thurlow & Associates located in Houston, Texas. His practice is dedicated to personal injury and civil litigation. He is a member of The Houston Lawyer Editorial Board. Endnotes Tex. R. Civ. P. 91(a). Tex. R. Civ. P. 169. 3. Tex. R. Civ. P. 47; Tex. R. Civ. P. 190; Tex. R. Civ. P. 190.2.; Tex. R. Civ. P. 190.5. 4. Tex. R. Civ. P. 91(a)(3)(a). 5. Tex. R. Civ. P. 91(a)(3)(c). 6. Tex. R. Civ. P. 91(a)(6). 7. Tex. R. Civ. P. 91(a)(1) 8. Id. 9. Id. 10. Tex. R. Civ. P. 91(a)(6). 11. Tex. R. Civ. P. 91(a)(7). 12. Tex. R. Civ. P. 91(a)(1) 13. Tex. R. Civ. P. 91(a)(6). 14. Tex. R. Civ. P. 47. 15. Tex. R. Civ. P. 47, cmt. 1. 16. Tex. R. Civ. P. 169(a)(1). 17. Tex. R. Civ. P. 169(d)(2). 18. Tex. R. Civ. P. 190.2(b)(1). 19. Tex. R. Civ. P. 190.2. 20. Tex. R. Civ. P. 190.2(b)(1-5). 21. ex. R. Civ. P. 169(d)(3). 22. Tex. R. Civ. P. 169(a)(1). 1.
2.
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LEGAL TRENDS
Texas Supreme Court Reinforces the Distinction Between Contract and Tort Claims By Suzanne R. Chauvin
The Houston Lawyer
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or the past 25 years, the Texas Supreme Court has struggled to clarify the boundary between contract and tort claims.1 In a recent case, the Court provided further guidance in the area of “contort,” that is, the “overlapping domain of contract law and tort law.”2 On June 15, 2012, in El Paso Marketing, L.P. v. Wolf Hollow I, L.P.,3 the Court held that a gas-fueled power plant could not maintain a negligence claim against a gas pipeline because the claim was contractual in nature. The power plant had argued that it could sue the pipeline under a tort theory because there was no contractual privity between the pipeline and the power plant, and the pipeline had allegedly delivered gas that caused property damage to the plant’s equipment. The Texas Supreme Court concluded that the pipeline’s duty to deliver gas of a certain quality arose out of contracts, although not directly between the power plant and the pipeline, and that the 44
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plant’s claims sounded in contract, not in tort. The case required the Court to analyze a series of complex, interrelated contracts for the supply and delivery of natural gas to the plant. Wolf Hollow owned and operated a gas-fueled electric generating plant, and hired El Paso Marketing, L.P. to manage the gas fuel supply under a Supply Contract. The Enterprise pipeline delivered raw natural gas to the plant under a Transportation Agreement that was originally executed by Wolf Hollow, but Wolf Hollow immediately assigned the Transportation Agreement to El Paso as required by the Supply Contract. The Supply Contract also required El Paso to deliver gas meeting certain quality specifications, and if it did not, El Paso was required to assign to Wolf Hollow any claim it might have against Enterprise for breach of the Transportation Agreement. Wolf Hollow complained of four brief service interruptions, and contended that it sometimes received gas contaminated with heavy liquid hydrocarbons, causing damage to sensitive plant equipment. Wolf Hollow sued El Paso for breach of contract and Enterprise for negligence. Wolf Hollow sought damages for plant repairs and equipment upgrades to pre-
vent future harm to the plant, as well as damages for replacement power purchased during shutdowns for repairs and upgrades. Wolf Hollow chose not to accept a re-assignment of the Transportation Agreement in order to assert a breach of contract claim against Enterprise, because the Transportation Agreement contained damage waivers that would have precluded recovery of all the damages Wolf Hollow sought against Enterprise. In concluding that Wolf Hollow could not assert a claim for negligence against Enterprise, the Court looked to the source of Enterprise’s duty and the injury alleged to have occurred. The Court reaffirmed the distinction between claims sounding in contract and those sounding in tort: “[t]ort obligations are in general obligations that are imposed by law—apart from and independent of promises made and therefore apart from the manifested intention of the parties—to avoid injury to others.”4 The Court found that Wolf Hollow alleged violations of specific obligations that existed only in the Supply Contract and the Transportation Agreement. Therefore, Wolf Hollow was not asserting that Enterprise had failed to act as a reasonable pipeline should have— that is, the liability standard for negli-
15, 2012, “OninJuneEl Paso Marketing, L.P. v.
Wolf Hollow I, L.P., the Court held
that a gas-fueled power plant
could not maintain a negligence claim against a
gas pipeline because
the claim was contractual
”
in nature.
LEGAL TRENDS
gence. Instead, Wolf Hollow was alleging that Enterprise violated obligations imposed by contract, not by law. The Court also noted that, if Wolf Hollow had sued Enterprise for breach of contract, Wolf Hollow would not be able to recover the damages it sought because they were consequential damages, and were waived under the Transportation Agreement. The Court declined, however, to allow Wolf Hollow to expand its remedies against Enterprise after assigning away the contract that created the obligations and remedies in the first place. After determining that Wolf Hollow could not pursue a negligence claim against Enterprise, the Court addressed Wolf Hollow’s claims against El Paso. The Court found that Wolf Hollow’s claims for damage to its plant were all consequential, and were precluded by the parties’ contracts. The
Court further found that Wolf Hollow’s claims for replacement-power damages were not direct damages, because they derived entirely from the agreements Wolf Hollow had with its customers, and therefore, did “not flow necessarily from plant shutdowns due to gas supply problems.”5 Nevertheless, the Court found that the language of the Supply Agreement contemplated replacement power as a cover standard, precluding summary judgment against Wolf Hollow based on the consequential damages waiver.6 This decision is the latest in a line of cases addressing the overlap between contract and tort law, and the distinctions between claims and remedies for each. In the El Paso case, the Texas Supreme Court has reinforced the source of the defendant’s duty in determining whether a claim sounds in contract or in tort.
Suzanne R. Chauvin is a partner in the Houston office of Strong Pipkin Bissell & Ledyard, L.L.P. Her litigation practice includes commercial, environmental, and products liability matters in state and federal courts. She is a member of the Defense Research Institute and is a Fellow of Litigation Counsel of America. She is a member of The Houston Lawyer Editorial Board. Endnotes 1.
2.
3. 4.
5. 6.
See, e.g., Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493 (Tex. 1991); Jim Walter Homes v. Reed, 711 S.W.2d 617 (Tex. 1986). BLACK’S LAW DICTIONARY 365 (9th ed. 2004). See also Erin Hopkins, Contort vs. Tort: Are We There Yet?, The Houston Lawyer, July/August 2011, at 16. 383 S.W.3d 138. 383 S.W.3d at 142-143 (quoting DeLanney. 809 S.W.2d at 494, and W. PAGE KEETON, DAN B. DOBBS, ROBERT E. KEETON & DAVID G. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS § 92 at 655 (5th ed. 1984)). 383 S.W.3d at 144. El Paso filed a Motion for Rehearing, which was denied on December 14, 2012.
at the bar JUDICIAL Investitures
The Hon. Ryan Patrick was sworn in as judge of the 177th District Court on March 1, 2013 by the Hon. Eric Andell, senior judge, First Court of Appeals. He was joined by his wife, Kellie Patrick.
The Hon. Kristin M. Guiney was sworn in as judge of the 179th District Court on February 21, 2013 by the Hon. Susan Brown of the 185th District Court. She was joined by her children, Cate and Abby McClees, and husband, Ed McClees.
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Media Reviews
Government Control of News: A Constitutional Challenge By Corydon B. Dunham iUniverse, 2011
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Reviewed by Suzanne R. Chauvin oday, we can instantly access news from such wide-ranging sources as MSNBC, Fox, the Huffington Post, and the Drudge Report, all with a click of a mouse. But with so many sources of information, we often forget the days before the 24-hour news cycle, when major news stories came through only three networks, and we trusted Walter Cronkite, Chet Huntley and David Brinkley to present accurate, unbiased news. In those days, the Federal Communication Commission’s Fairness Doctrine required radio and television news broadcasters to present contrasting views on important and controversial public issues. In Government Control of News: A Constitutional Challenge, Corydon Dunham argues that the FCC’s proposed “Localism, Balance and Diversity Doctrine” would violate the First Amendment guarantees of freedom of speech and freedom of the press, and establish a new era of federal regulation over the content of speech. Dunham, who served as executive legal counsel for NBC from 1965 to 1990, argued that the proposed new doctrine threatens to limit freedom of the press by placing broadcasters under fear of costly investigations, fines, and 46
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the potential loss of FCC licenses. In his opinion, the proposed doctrine will bring back the worst abuses of the Fairness Doctrine which, he believed, chilled free speech through intimidation by the FCC and other regulators. While the Localism, Balance and Diversity Doctrine seems unlikely to be adopted as proposed in 2008—as an FCC-sponsored study recommended that the doctrine proceeding be ended in 2 0 1 1 — D u n h a m ’s book, nevertheless, contains insights into clashes between the media, Congress, and different political administrations from a seemingly bygone news era. Dunham’s Government Control of News is at its best when recounting colorful stories of the early days of network news and government efforts to influence reporting. He describes the historic coverage of the Republican and Democratic conventions of 1948, when the conventions were carried live to only nine cities through coaxial cable. He recounts how during the Republican Convention, an engineer from the local NBC affiliate climbed to the roof of the convention center during a thunderstorm to hold antennas in place so that the network could continue to broadcast. He also recounts how an African-American delegate at the Democratic Convention caused an uproar when he demanded that the convention refuse to seat the Mississippi delegation, who had threatened to walk out if the convention adopted a strong civil rights platform. From these dramatic beginnings, networks continued to broadcast controversial content, sometimes resulting in confrontations with presidents and con-
gressional leaders. For example, when the networks covered stories about protests and violence at the Chicago Democratic Convention of 1968, Congress initiated an investigation to determine whether the coverage was biased. After reviewing films, thousands of documents, and hearing testimony from witnesses, Congress filed a complaint with the FCC charging that the coverage was biased and staged. Congress also began a lengthy investigation of CBS during the Vietnam War after the network aired a documentary about military spending on public relations, and after CBS refused to produce outtakes of film. In 1971, the Nixon Administration held meetings with each of the networks, threatening antitrust suits if the tenor of coverage did not change. The administration followed through on its threats when there was no change in the coverage. Although Dunham’s dystopian vision of FCC control over news content sounds, at first, far fetched, his examples of past governmental abuses are thought provoking. It remains to be seen whether the Localism, Balance, and Diversity Doctrine will be adopted; nevertheless, this book illustrates the tension between the government and the news media, and argues strongly against any regulation of content, regardless of the policy motivations behind such regulations. Suzanne R. Chauvin is a partner in the Houston office of Strong Pipkin Bissell & Ledyard, L.L.P. Her litigation practice includes commercial, environmental, and products liability matters in state and federal courts. She is a member of The Houston Lawyer Editorial Board.
Media Reviews
The Law of Superheroes By James Daily & Ryan Davidson Gotham Books, 320 pages
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Reviewed by Robert Painter he Law of Superheroes brings back a lot of memories. It reminds me of a time when the law was new to me. It reminds me of a time when I had the luxury to think about the philosophy behind laws, rather than just their practical implications. And, of course, it reminds me of the fun world of superheroes. Each chapter of the book deals with broad areas of the law, including constitutional law, criminal law, evidence, criminal procedure, tort law and insurance, contracts, business law, administrative law, intellectual property, travel and immigration, and international law. The last two chapters, though, are particularly fun, dealing with the uniquely superhero legal issues confronting immortality, alter egos, and resurrection, and superhuman intelligence. What makes The Law of Superheroes a decidedly more fun read than a typical law book is the stories. Jury psychologists frequently remind us that stories make it easier for people to understand, sympathize, and retain information—by turning facts into narrative. They also make
things more interesting. And some of the best-selling fiction in the world involves stories about superheroes. Each chapter discusses an area of law in the context of stories involving superheroes. The stories are other-worldly, but the legal analysis is real. Imagine, for instance, the issue of immigration, which mobilizes opinions all over the political and legal spectrum, being debated in the world of superheroes. In one chapter on travel and immigration, the authors take up a discussion about the legal implications of the abilities of Superman, the Flash, and Nightcrawler, to go anywhere they want—pretty much instantly—under their own powers. The reader finds himself wondering about the significance of Superman having to cross over national borders while Nightcrawler avoids this issue by simply disappearing on one side of the border and reappearing on the other. One of the most interesting legal hurdles raised in the travel and immigration chapter is the United States Munitions List (USML). In the USML, the federal government lists weapons and related technology that are restricted from export. The USML makes it illegal to export a gas turbine specifically designed for use in a ground vehicle. Thus, Batman could not take his Batmobile abroad. For Iron Man, pretty much his whole suit would be export-restricted. That can really crimp a superhero’s style! The constitutional chapter raises equally interesting legal issues. Should Batman, for example, be considered a state actor? In 1982, the United States Supreme Court held in Lugar v. Edmonson Oil Co. that, under certain circumstances, pri-
vate individuals may be considered state actors. In that case, the Supreme Court set out the following standard: first, does the action have its source from a right or privilege created by state authority, and second, can one fairly describe the private party as a state actor. Sometimes Batman springs into action when he sees the Bat Signal sent out by the Gotham City Police Department. One can make a good argument for why Batman in this context should be considered a state actor. After all, as an undercover billionaire, Batman is not on Gotham City’s payroll, but he does respond to the City’s calls for help. The book indulges both sides of the argument equally convincingly. The Law of Superheroes allows the civil litigator to think beyond his highly specialized legal practice and go into the many other legal specialties he does not often encounter by positing them through the highly entertaining world of superheroes. Robert Painter is a trial lawyer with the Painter Law Firm PLLC, where he handles plaintiff medical malpractice cases. He is an associate editor of The Houston Lawyer.
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to Harris County courts that his office will help implement. Finally, Judge Josefina Rendón and Lingling Dai address the changing demographics of Harris County and the growing need for adequate court interpretation. Our guest editors for this issue were Sammy Ford and Farrah Martinez. They tackled this challenging topic with gusto and managed to beat deadlines (no small feat for our Editorial Board!). Their leadership and hard work, along with the work of our entire Board, brought this interesting issue to life. Endnotes 1.
2.
3.
Emma Roller, L.A. Times Magazine Story From 1988 Predicts Life in 2013, http://www.slate.com/blogs/future_tense/2013/03/15/los_angeles_times_story_ predictions_about_life_in_2013_from_1988.html (March 15, 2013). On an entirely unrelated note, new lawyers joining your firms this year likely were born in 1988 or thereabouts. While I am not what many would consider a seasoned lawyer, this nevertheless makes me feel old. Nicole Yorkin, A Day In The Life, Los Angeles Times Magazine 7 (April 3, 1988), available at http://documents.latimes.com/la-2013/.
PLACEMENT POLICY The Placement Service will assist HBA members by coordinating placement between attorneys and law firms. The service is available to HBA members and provides a convenient process for locating or filling positions.
2. If you are registered, resumes will be sent out under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. The placement coordinator will then contact the attorney, give him/ her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/she wishes personal information to be released to the firm. This process will insure maximum confidentiality and get the information to the firms and attorneys in the most expedient manner.
4. To reply for a position available, send a letter to Pplacement Coordinator at the Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002 or e-mail Brooke Benefield at BrookeE@hba.org. Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers.
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attorney, 33 year Houston area practice serving Harris/Fort Bend counties, seeking associate attorney with advanced estate planning and probate experience. Positions Wanted
2062 Very Experienced Trial Attorney intimately familiar with the mechanics and operation of the Commercial Mortgage Backed Securities (CMBS) industry, including the securitization process of commercial loans and the duties and responsibilities of Mortgage Loan Originators/Depositors, Underwriters of REMIC Trusts, Rating Agencies, Trustees, Servicers and Special Servicers. Looking for in-house position. 2066 2008 graduate of University of Texas Law, licensed in Texas with interest in civil litigation, and especially labor and employment. Summa cum laude B.A. in political science from Middlebury College. Worked for Texas Supreme Court during law school. Strongest assets are analytical, research, and writing skills. Looking for permanent position or temp-to-perm opportunity. If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office:
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