Designing Better Client Service Protecting Client Data in Today’s TechnologyDriven World Lawyers as Managers of People and Time Alternative Fee Structures Best Practices to Avoid Hiring Mistakes Three Steps to a Powerful Personal Brand COVID-19 Legal Trends
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THE HOUSTON
inside...
Volume 57 – Number 5
March/April 2020
Law Practice Management
Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Adair Myers Graves Stevenson PLLC Ajamie LLP Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Campbell & Riggs, PC Carter Morris, LLP Christian Smith & Jewell LLP Cozen O’Connor Crady, Jewett, McCulley & Houren, LLP Crinion Davis Richardson & Langley LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Galligan & Manning Germer PLLC Gibson, Dunn & Crutcher LLP Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Hall Maines Lugrin, P.C. Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP
Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC Kean | Miller LLP Kelly, Sutter & Kendrick, P.C. Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Kroger Burrus Nelson Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Lorance Thompson, P.C. MacIntyre McCulloch & Stanfield, L.L.P. McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Nathan Sommers Jacobs PC Pagel Davis & Hill PC Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Echols, Slay & Nelson-Archer, P.C. Schiffer Hicks Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP
Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Spencer Fane LLP Sponsel Miller Greenberg PLLC Sprott Newsom Quattlebaum & Messenger Strong Pipkin Bissell & Ledyard LLP Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart Boundas Easterby LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Andrews Myers, P.C. Beck Redden LLP Blank Rome LLP BoyarMiller Coats | Rose Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Kane Russell Coleman & Logan PC Liskow & Lewis Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom McDowell & Hetherington LLP Ogletree Deakins Nash Smoak & Stewart, P.C. Yetter Coleman LLP
Firms of 50-99 Attorneys Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy EOG Resources, Inc. MAXXAM, Inc. Occidental Petroleum Corporation Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals
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contents March/April 2020
Volume 57 Number 5
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FEATURES Better Client Service 10 Designing By John Strohmeyer Client Data in Today’s 14 Protecting Technology-Driven World By Darryl E. Scott
as Managers of 18 Lawyers People and Time By Ruby L. Powers
Fee Structures: 22 Alternative When Breaking the Mold
18
22
Makes Sense
By Joseph M. Schreiber
Practices to Avoid 26 Best Hiring Mistakes By Debra L. Bruce
Steps to a Powerful 30 Three Personal Brand
By Precious Williams Owodunni
Bar Foundation 32 Houston Installs New Officers
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Awards presented for Pro Bono Service, Volunteerism and Legal Writing
John J. Eikenburg Law 34 35th Week Fun Run Benefits Center
The Houston Lawyer
for Pursuit
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ŠThe Houston Bar Association/QuantumSUR, Inc., 2019. All rights reserved.
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contents March/April 2020
Volume 57 Number 5
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departments Message 6 President’s Choices By Benny Agosto, Jr.
the Editor 8 From Wait It Out? Or Continuous
Improvement?
By Taunya Painter THE RECORD 36 OFF Kat Statman:
From the Cyclocross Course to the Courtroom By Kimberly A. Chojnacki
39
Spotlight 38 committee Habitat for Humanity: Building
Homes, Communities, and Hope By Deanna Markowitz Willson
in professionalism 39 ATheProfile Hon. Alice Oliver-Parrott
Mediator-Arbitrator. Former Chief Justice, First Court of Appeals. Former Judge, 151st District Court
trends 40 legal COVID-19: Force Majeure to the
Rescue?
By Russell Lewis, Jonathan Havens, and Cornelius Sweers
COVID-19 and Government-Issued Quarantine Directives By Anietie Akpan
The Houston Lawyer
44 Litigation MarketPlace
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March/April 2020
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Please consider supporting the HBA’s community partners.
With the stay-home order in place, more of our neighbors are facing hunger. The Houston Food Bank supplies them with the nutritious food they urgently need. Donate online to HFB through the HBA’s Food from the Bar Campaign – just $1 makes 3 meals.
tinyurl.com/HBAFFTB Communities In Schools of Houston empowers local students – many in at-risk areas – to stay in school and become successful adults. Help fund virtual services for struggling students and emergency supplies for families affected by job loss.
cishouston.org The HAY Center is an essential service for former foster youth, providing emergency food supplies, rental assistance to those who have lost their jobs, and educational resources for those in school. Contribute online to help young adults in dire need of support.
haycenter.org The Center for Pursuit provides residential, employment, and healthcare services to adults with intellectual and developmental disabilities. Help make up for The Center’s lost Rodeo revenue by shopping for baked goods.
gingersnapsetc.org
president’s message By Benny Agosto, Jr. Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner
Choices
E
very day we make choices, for the good of our family, our firms, our city and our country. And for our own good. The Covid-19 pandemic has shaken our country. But even the darkest night will end, and the sun
difficult the challenge that choice may bring. • Service to others –Service that is predicated on empowering others, looking out for each other, supporting each other, and building a better future together.
will rise. Traditionally, spring is a time for growth and new begin• Determination –Determination that is characterized nings. Even as we face turbulent times, I see our bar and our by an attitude of faith, steadfast commitment, pacommunity coming together to adapt the way we live our tience, and optimism that human beings can prevail daily lives, serve our clients and help those against all odds. in our community who are in need. I assure you that the Houston Bar Association is comYou made a choice to be a member of the mitted to providing you with vital services Houston Bar Association. Our pledge to to help you continue to effectively serve your The Covid-19 you is that we will work hard to keep you clients. And we are gearing up to continue up to date on developments that impact pandemic has shaken our profession, provide CLE and other the service to our community that is the hallmark of our great association. our country. But even programs that help you navigate changes Stay home orders, teleconferences, Zoom in the way we practice law, and provide meetings, video depositions—all have the darkest night will you with opportunities to use your legal changed the way we practice law and have beexpertise to help restore our community. end, and the sun come the new normal. How we adapt to CoPlease reach out to me and let me know vid-19 is key. Change is never bad as long as will rise. Traditionally, how we can continue to work together to we change for the better. serve you and our community. Let’s make spring is a time for One of the changes I have made in my daily choices that will positively impact the peolife is to make more time to read; not just leple around us. I pray for the many friends growth and new gal reading, but reading to keep my mind and and family of the HBA. Please stay well spirit well during these tough times. Recently, beginning.” and stay safe. The Houston Bar AssociaI have been reading about Cesar Chavez, the tion is here for you. eminent Latino American civil rights activI leave you with these words on choices ist, who would have celebrated his birthday from an unknown author. on March 31. He taught us many core values that I believe can help us today. Chavez once said, “We draw our strength I Choose Love from the very despair in which we have been forced to live. I choose Inclusion. I choose Empathy. Compassion. We shall endure.” Today, I want to share with you these thoughts about the values that will get us through this unEquality. Dignity. Diversity. I choose Community. certain time. Kindness. Integrity. Honesty. Respect. I choose Justice.
The Houston Lawyer
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• A preference to help the neediest among us –A concerted effort to support programs that reach the most needy, the forgotten people in society, no matter how 6
March/April 2020
thehoustonlawyer.com
I choose Facts. Peace. The Planet. I choose Humanity. I choose Love.
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from the editor By Taunya Painter Painter Law Firm PLLC
Associate Editors
Anietie Akpan METRO
Anna M. Archer U.S. District Court
Kimberly Chojnacki Baker Donelson
The Houston Lawyer
Trey Holm Killeen & Stern, PC
Koby Wilbanks Murrah & Killough
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March/April 2020
Wait It Out? Or Continuous Improvement?
I
never imagined when we were planning our topics for the March-April issue that we would all be serving our clients from home or that we would see a tweet from @JusticeLehrmann with a screen shot of eleven smiling #SCOTX Justices in a Zoom meeting. We all adapt in the short term, but what are the implications for our practice as we deliver our legal services? We now know that we should prepare for disruptions, but also, what are the changes that we can incorporate into our practice to increase profitability, efficiency, and client experience? While the articles were largely written before COVID-19 was integrated into our lexicon, they are surprisingly on point to provide guidance on what we are experiencing. I highlight the article by Precious Owodunni, “Three Steps to a Powerful Personal Brand,” first because it is personal to me. Specifically, it covers a topic I had requested, but it is something we all should individually evaluate. For me, as an attorney that has made several career transitions—going from working in the U.S. Senate, to working as inhouse counsel to Wal-Mart International, to now being in a law partnership with my husband—I’ve had to reevaluate the value of a legal identity tied to my employer versus my own skills. Early on, I cannot say I side-stepped the trap to be known as “I work for XYZ” instead of “I offer XYZ.” Precious nails not only the advice about why every lawyer needs a personal brand, but also how to develop it. Another introspective yet practical article to consider is how we lead people in our office and how we manage our time. Ruby Powers makes a strong case for self-improvement in this area, in the article, “Lawyers as Managers of People and Time,” and she gives practical advice on how to implement change. Another great article to consider while on quarantine is, “Designing Better Client Service,” by John Strohmeyer. As a former manager at the Four Seasons Hotel, thehoustonlawyer.com
John knows a lot about customer service, and his article covers both tangible and intangible elements that will keep your clients happy and raise service standards in the legal profession. Attorney’s fees make a topic that is always popular, and now may be a perfect time to try something new in fee structuring. Joseph Schreiber writes about revamping the straight hourly or contingency arrangement: “Alternative Fee Structures: When Breaking the Mold Makes Sense.” He outlines what the alternatives would look like, when they could be used, and how he implemented them. Darryl Scott has an article, “Protecting Client Data in Today’s Technology-Driven World,” that could not be more relevant as we must access our client data remotely. He looks at client data and confidentiality both from a technology standpoint as well as our legal ethics obligations. An article I will be using shortly is from Debra Bruce, “Best Practices to Avoid Hiring Mistakes.” I laugh about some of my past hiring mistakes, like when I hired a “mini me,” but hiring mistakes are costly. When I start my search for a new paralegal next month, I will definitely pull up Debra’s article again to guide me on the technologies to use and steps to take. Right before this issue on practice management went to print, I thought it would be useful if we could incorporate information on issues my business clients were already calling me about—force majeure clauses in contracts and the parameters and enforceability of government quarantines. I am grateful to Anietie Akpan, Russell Lewis, Jonathan Havens, and Cornelius Sweers for writing these Legal Trends. Regardless of the size or type of firm where we work, we all manage a practice. Now actually might be a good time for many of us to reevaluate how we do that. Will you wait it out and hope for the best or take the opportunity for continuous improvement?
BOARD OF DIRECTORS President
Secretary
President-Elect
Treasurer
First Vice President
Past President
Benny Agosto, Jr.
Diana Gomez
Bill Kroger
Jennifer A. Hasley
Chris Popov
Warren W. Harris
Second Vice President
David Harrell
DIRECTORS (2018-2020)
Greg Moore Mitch Reid
Collin Cox Hon. Erin Lunceford
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By John Strohmeyer
Designing Better Client Service
A
s lawyers, we are highly trained specialists who work for years to gain the education, experience, and skills to represent our clients well. Despite all of these efforts, many lawyers do not invest in learning how to provide a high level of client service and manage client relationships. Younger lawyers learn by watching senior lawyers, generally treating what the senior lawyers do as precedent on par with a Supreme Court ruling. But the market for legal services is being squeezed by the combined pressure of an increase in lawyers entering the profession, a populace that has more access to basic legal information (but not expertise) via the internet, and companies creating automated alternatives to solve problems that lawyers traditionally have been paid to solve. Lawyers can no longer rely on merely having a law license and doing great legal work to get clients—we are surrounded by competitors that arrived in the last decade. The market for legal
services is transforming, and we must transform with it. You have probably noticed this shift already as you deal with other service providers. What you considered acceptable service 10 years ago no longer meets your minimum standard. As industries have changed, you, as a customer, have raised your standards. None of us would dream of calling a taxicab, while that was an industry norm only 10 years ago. More professional industries, such as banking, have also changed dramatically. Banks used to be Monday to Friday, 9 to 5. Now, many banks have extended hours, 24-7 online access, and Apps for a more integrated experience. Furthermore, nonbank Apps are now directly competing with the money-transfer and payment services of traditional banks. The standards have risen, and consumers have driven it. Your standards as a customer are not the only ones that have changed—your clients are raising the bar. Just like you expect of your bank, your clients now expect you, their lawyer, to make the process easier and more efficient. What does this mean for lawyers? Today’s clients have a choice and are demanding something that is sorely lacking in most law offices: service. While clients come to you to achieve a result (e.g., starting a lawsuit, estate planning, or probating a last will), you will need to develop your service delivery to be competitive. Every business engages in the same fundamental transaction: a customer (or a guest or a client) exchanges money for a product. When a business provides a product to a customer, it is providing a combination of three intertwined components: a physical component, a technical component, and a service component. All three components are present in every transaction, though the relative percentages of each component vary from business to business, and even product to product within a single business.
I. Physical Component: The physical component is what a client can pick up and touch. It may be an undifferentiated commodity (e.g., coffee beans and frozen concentrated orange juice), a processed good (e.g., whole milk or a Mercedes-Benz), or a bespoke item (e.g., a custom-fit shirt). The client gets a physical item from the transaction. For the legal profession, the physical component is what a client can touch or pick up. This can be everything from the bottled water you serve to how fancy your offices are decorated. Ultimately, these items can be replicated by any other firm with a credit card. While you can improve things by spending the money, you are not necessarily improving the service, and clients typically will not choose you for your physical components. Consider a potential client looking at a Google review for a firm. If a review raved about the fancy bond paper, office décor, and artwork, should that potential client hire that firm based on that review? Probably not, as the client is looking for a service, and the bond paper will not change whether the documents are effective for the client. Extra focus on physical components may support your value proposition, but ultimately will not improve your service. So, make sure your offices are clean, orderly, and professional, but limit your spending.
learning how to do things—the business is more efficient at those tasks and the customer prefers to pay someone else to do it. For a lawyer’s technical component, focus on how you deliver your hardearned expertise to your clients. The best way to improve your service is to focus on one practice area so you develop your skills, developing your proficiency from a rank amateur until you reach expert practitioner. While some lawyers are tempted to take anything that comes through the door, they are unlikely to develop proficiency in any skills, which limits how well they serve any client. So, focus on a practice area to increase your knowledge. III. Service Component: The service component is how the business delivers its physical and technical components. Higher levels of service are associated with the smooth and consistent delivery of a polished prod-
uct. How do the employees, whether line staff or owner-operators, interact with the customers? Is that interaction consistently delivered to all customers, or do some customers receive better delivery than others? For lawyers, the “service component” is distinctive. It is how that expertise is delivered to clients. As we design a better service for our clients, here are a few things to consider. A. Know your typical client and target market: First, who are you serving? You need to define your typical clients, so you can adapt your services and improve service delivery. When defining your typical client, consider the client’s age, demographic information, and preferences. What does your typical client care about? Is your typical client proficient with technology? By defining your typical client, you should see patterns emerge that allow you to tailor your
II. Technical Component: The technical component is a business’s expertise. A technical component can be captured knowledge, such as a recipe, a patent, or a copyright that can be packaged and sold. A technical component could be the application of knowledge to a situation, such as developing a legal strategy for trial, investment advice, or strategic marketing advice. It could be the business’s ability to complete a task faster than the customer could do themselves. The client is paying the business to avoid having to spend time gaining knowledge or thehoustonlawyer.com
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services and limit the addition of services that will not move the needle for you. “Service” is not delivered at a single level—it’s delivered along a continuum from low to high. Consider how AAA ranks hotels, with multiple options existing in the market. After meeting AAA’s minimum standards for cleanliness, comfort, and hospitality, AAA uses diamonds to convey the expectation of the experience, whether it is a no-frills motel or a full-service resort: • Approved Noteworthy hotels meet AAA standards inspections and include chains such as Best Western and La Quinta. • Three Diamonds hotels build on minimum standards to add amenities, style, and comfort level, and include chains like Doubletree, Embassy Suites, and Hilton Garden Inn. • Four Diamonds hotels go beyond the Three Diamonds with additional style, amenities, and services. Westin and Hyatt Regency hotels can be found in this range. • Five Diamonds hotels offer worldclass luxury to guests looking to indulge in a once-in-a-lifetime experience focused on service. The Four Seasons and Ritz-Carlton offer many locations with a Five Diamond award. Notice that each brand has targeted a specific portion of the market, and individual locations will not stray from their service level. For example, you would not expect to find a concierge or room service at a Best Western. That is not to say that any service level is “wrong” or “inappropriate,” but that each brand has targeted a specific portion of the market and tailored service delivery accordingly. But guests are not so constrained. Some guests may stay in only one service level (e.g., only a Five Diamond hotel every time, or only the lowest price every time). Other guests may pick a service level depending on the trip and 12
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law is a technical field, but we are not reason for travel (e.g., normally cost mindless legal automatons. conscious, but willing to spend more Moving to your firm’s service deon special occasions). The choice for livery, it can be boiled down to this which service level to use is with the question: What is it like to work with guests, and each hotel chain will delivyou? Smooth and polished, or a whiteer its specific level of service. knuckle ride? Lawyers should follow this continWhen the firm’s employees interact uum example to first determine their with clients, they should be focused typical clients, and then tailor their on the client. It seems services for that typical simple, but think client. If your practice foabout a time when you cused on non-profits, you dealt with someone would start by considering ‘Service’ is not who was not lookthe size of your clients. If they are national non-profdelivered at ing at you while they were supposedly helpits with huge budgets, they a single level— ing you. Did you feel will need more specific adit’s delivered like you were being vice tailored for them. But if they are smaller, they along a continuum served? Ensure that employees are not dismay just need a little help from low to tracted while interacthere and there. So, rather high.” ing with clients. than focusing on bespoke You can improve solutions, address a comyour service delivery mon problem with a lessby using client names, especially on the customized solution that can be dephone. While we can easily display atlivered quickly. This could be a single tentiveness when someone is across the memo addressing common issues, with table, doing so on a call requires a speadditional specific advice delivered by cific verbal strategy. By using a person’s phone call. name three times during a call, you can show you know who they are and care B. People delivering the service: about their individual needs. While usService starts and can only come from ing a name three times in a call sounds the people in your firm. Every employexcessive, it becomes easy with pracee of the firm, from the mail clerk to tice. You will use it when you start the the managing partner, is responsible conversation, and you know you will for service. So, improvement starts with use their name again when you end ensuring that every person is friendly. the call. This leaves a single time to be Having the technical wizard who is a worked in during the call. A phone call bear to deal with will only create probonly allows voices to be transmitted, lems. so by using a person’s name, you help To improve this aspect of service, evensure that they know you are paying eryone in your firm needs to start each attention to the caller. interaction with the expectation of delivering a pleasant experience. A warm, C. Systems for consistency: friendly smile conveys that the firm is a Another aspect of service includes the warm and friendly place to do business. systems used to consistently deliver That does not mean we need a fake grin the product. It’s not acceptable to have permanently plastered on our face, and a high service day on Monday, then it is not to say that we take a mindlessly fall apart on Wednesday. Every client optimistic view of every situation. Taishould receive a similar (exceptional) lor your emotions as needed to each experience. Systems provide the metsituation after starting with a smile—
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rics to evaluate service delivery and allow your team to consistently deliver for clients. For many law firms, merely documenting the informal systems in place can improve service delivery. Though checklists are often dismissed as dry and “one size fits all,” they serve as a roadmap to any service delivery, allowing employees to focus on the client’s needs and demeanor. By systematizing your firm and training your staff, you will raise the bar to where they are not worried about the basics, and they can focus on taking care of the client. You will need to experiment and tweak what works to improve. What you do the first time will not be as good as what you do the tenth time. As an attorney, you are smart, capable, and probably care a lot about your work—but that does not mean that you have cornered the market on serving clients well. Clients come to you in times of need, and you can give them more than just a good lawyer. By improving your service delivery, you can be the lawyer who clients talk about and who sets a new standard in the profession. John Strohmeyer is the proprietor of Strohmeyer Law PLLC, and board certified in both Tax Law and Estate Planning and Probate Law by the Texas Board of Legal Specialization. Prior to law school, he spent four years in management at the Four Seasons Hotel, Austin.
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By Darryl E. Scott
Protecting Client Data in Today’s TechnologyDriven World
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n January 1, 2014, the State of Texas issued, at the time, the largest statewide e-filing mandate in the country.1 This required all attorneys to file their documents (i.e., original petitions, service of process, motions, orders, etc.) electronically with the courts instead of standing in line to file physical documents at the clerk’s office. The mandate to electronically file in Texas started with the state’s ten most populous counties, which included Bexar, Collin, Dallas, Denton, El Paso, Fort Bend, Harris, Hidalgo, Tarrant, and Travis counties. The remaining counties were required to comply with the mandate by 2016. Although some attorneys were accustomed to e-filing in federal courts, many attorneys who only practiced in state lower courts were not ready for the sudden change the mandate required. Some attorneys retired early to avoid learning the new e-filing process, while others were able to foresee potential issues relating to data protection (i.e., client’s data). At its core, the practice of law does not require an advanced knowledge of technology, unless you are an intellectual property attorney with a focus on software and network-related patents. Generally, the practice of law requires a keen sense of the law and how it applies to the facts of your case – neither of which requires the knowledge of how cloud-based or encrypted data works. Historically, attorneys would simply maintain their clients’ confidential and sensitive information in file folders and storage bins. The State of Texas’s mandate to e-file all civil cases was the catalyst that forced an arranged, and seemingly unwanted, relationship between lawyers and technology. Under the Texas Disciplinary Rules of Professional Conduct,2 lawyers are required to protect their clients’ confidential information.
Protecting clients’ data was relatively simple prior to the advent of technology. Sensitive information was not stored in remote servers or cloud-based systems but was stored in file folders locked in a storage closet. Requiring attorneys to e-file forced attorneys to scan and store their clients’ data on electronic storage systems (i.e., servers or desktop computers). This created data security risks most attorneys were not (and mostly are still not) prepared to manage. This is problematic because attorneys manage some of the most sensitive information about individuals, and storing that data in electronic storage systems makes the data susceptible to hackers. To reduce the risk of exposing confidential and sensitive information, all law firms (including solo attorneys) should be familiar with these three areas of technology: Data Storage, Data Retention, and Data Communication. The following basic steps will ensure that your clients’ data is protected. 1. Data Storage First, an attorney should consider the method by which his or her clients’ data is stored. “Data storage” is a general term for archiving data in electromagnetic or other forms for use by a computer or device.3 There are many types of data storage devices to consider. An attorney should never use a mobile device, such as a smartphone, laptop, or tablet as a storage device for clients’ confidential and sensitive data. Although mobile devices can be password protected or encrypted, those protective measures are moot if the mobile device is lost or stolen. Your clients’ confidential and sensitive data should be stored on a secure system and remote system. At a minimum, your clients’ data should be stored on a server or desktop computer configured as a server. The server should be password protected with a strong password (i.e., numbers, letters, special characters) and should only be accessible by at most two trusted people. In situations where a solo attorney is incapacitated, measures should be in place such that a trusted thirdparty can access the server and retrieve the confidential data. There are exceptions for trial attorneys. For example, trial or hearing documents
In September 2018, the Professional Ethmay be temporarily stored on your remote ics Committee for the State Bar of Texas device, but they should be password proconsidered whether Texas lawyers may use tected and encrypted. However, those docucloud-based data storage systems. The Comments should be removed from the mobile mittee determined that a lawyer may use a device once the hearing or trial is completed cloud-based system; howor the documents are no lonever, a lawyer must take ger needed. USB storage drives reasonable precautions in (a.k.a. jump drives) should not the adoption and use of be considered as a storage deAt its core, cloud-based technology for vice and should only be used the practice of law client document and data for transferring a file from one does not require an storage or the creation of computer to another. USB storage drives have limited life advanced knowl- client-specific documents spans and can fail at any given edge of technology, that require client confi5 moment. unless you are an dential information. Both methods should have the intellectual propcapacity to “restore” data if 2. Data Retention erty attorney with a it is lost. Second, all attorneys should focus on software Note, it is also imporhave a method for retaining their clients’ confidential and and network-related tant to retain billing data, sensitive data on the data storpatents.” emails, and software configurations. You should age device. “Data retention” is consider investing in an organization’s policy or pro“ghosting” software. Ghosting software will tocol regarding the saving of data for regulaclone your computer and store the clone in tory or compliance purposes or the disposal a secure location. The clone file can be used of it when no longer needed. The policy highlights how data or records need to be formatted and what storage devices or systems to use, as well as how long to keep the information.4 Simply rephrased, all attorneys should have a back-up system for situations where the data is lost or needed. Power failures, hard drive failures, and intentional security breaches are some ways data can be lost or become inaccessible. Not having access to or a means of restoring data can cripple most law firms. Consider for a moment the devastation your firm would endure if you did not have access to your clients’ confidential and sensitive data, your case file, or your documents. Further, consider for a moment how long you can operate without having access to your data. Retention is critical. All attorneys should consider at least two separate and distinct methods of data retention. One method may include having a tape or disk backup system connected to your server that saves your files to a separate disk once every four to eight hours. Another method to consider is having a cloud-based system that remotely stores your files.
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to restore your computer settings (and all of your program configurations) if your computer becomes corrupt or inoperable from a virus or malware. 3. Data Communication Finally, attorneys should be cautious of how information is electronically communicated or transferred. “Data communication” is defined as the process of using computing and communication technologies to transfer data from one place to another, and vice versa.6 Prior to the advent of technology, attorneys communicated through courier service, which subsequently advanced to facsimile. Although these forms of communication are still used today, most attorneys now transfer information through email. All attorneys should be conscious of the potential security risks when using email to transfer information. Preventative measures should be taken to avoid inadvertently exposing confidential and sensitive information. For example, before sending any information to an opposing attorney for the first time, send a test email to the attorney and
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have that attorney confirm receipt of the test email. You should also confirm and verify any email you receive from an attorney with whom you correspond for the first time. In addition, you should avoid opening any attachments you receive from an unknown source without first verifying the source. All attorneys should also have separate email accounts for their personal email and their professional email. Further, attorneys should never transfer confidential or sensitive information in the body of the email. Instead, attorneys should send sensitive information in password protected PDF documents or redact sensitive information. 4. Hiring a Technology Security Company To mitigate these potential risks, many attorneys have taken the additional step of either hiring a technology security company or installing client-management software on their systems. Technology security companies specialize in data protection, are up to date on new threats, and are equipped to prevent a breach of your system. In addition, these companies are constantly monitoring your network traffic and can react quickly if suspicious activity occurs. When hiring a technology security company, an attorney should ask the following questions: a. Where is the data stored and secured? b. How is the data accessed? c. How quickly can you restore the data to the system if lost due to a breach, system failure, or damaged equipment? d. What software, if any, do you use to protect data from breaches? The attorney should also independently research the company and determine the quality of its customer service, hours of operations, physical location, and whether there is an assigned personal representative. Further, a technician should be accessible 24 hours a day. If budget is an issue, the attorney should implement practices that limit, when practical, the amount of sensitive data that is stored on a system that can be remotely accessed. 5. Client-Management Software Alternatively, installing client-management software is a great option if you are unable to 16
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hire a technology security company. Keep in mind, however, that the ultimate responsibility of protecting your clients’ data is yours. One benefit of installing client-management software is that, in most cases, the software stores your clients’ data on encrypted databases that are only accessible by the software itself, thus making it difficult for hackers to penetrate the data. These applications are either installed locally on the attorney’s computers or are accessed remotely through a cloud-based system (i.e., website portal). There are many types of client-management software (e.g., MyCase, Clio, AppColl) that can manage and secure your clients’ data. All software has its pros and cons, and it would be advantageous to conduct independent research prior to purchasing software (hint: take advantage of free trial periods). The goal is to determine how best to protect your clients’ sensitive data from breaches and exposure and whether the software helps you manage your firm’s daily tasks. Here are the areas to consider before purchasing clientmanagement software: A. The Type of Law You Practice First, consider the type of law you practice. All law is not the same, and thus all clients’ data is not the same. Information gathered from a defendant in a criminal case may be different from the information gathered in a probate case. Some information may be of public record, whereas other information is privileged. The easiest way to answer this question is to divide the data into three categories– client’s personal data, client’s case data, and docket management data. Client’s personal data may include the client’s full name, address, telephone numbers, spouse’s information, social security number, date-of-birth, and driver’s license number, for example. Any reputable clientmanagement software can store and manage this type of information. However, do you need all this information to handle your client’s case? Could you manage your client’s case without knowing the client’s social security number? The attorney needs to consider what information is critical and what information is unnecessary to effectively handle the case. If, for example, you require
your client’s social security number to conduct a background search, protocol should be implemented such that the social security number is used for that single purpose and then discarded from the system. Although all your clients’ information should be protected, care should be taken when managing non-public sensitive information. When choosing the best software for your practice, be sure to know exactly what information you need to store. Do not purchase more than you need, and limit the type of information you store in the software. Clients’ case information is contingent on the type of law you practice. For example, a personal injury attorney may have each client’s medical records, mental health records, police reports, and photographs of the client’s injury. Whereas, a trademark attorney may only have images of clients’ business logos or brand names, which may already be available to the public. Again, most software has the capacity to upload files and images into the database such that it is encrypted and only accessible through the software. If you prefer to upload your clients’ case information into a client-management software database, be sure to purchase software that allows you to upload password protected PDF documents. Docket management is not as critical to the client as it is to the attorney. Many attorneys manage court hearings, submission dates, and deadlines using an Outlook calendar, Google Calendar, or other similar platforms. Fortunately, most client-management software has features that allow integration between an attorney’s calendar and the client’s case. Protecting this information is not as critical as protecting the attorney’s clients’ personal information and case information, but it requires attention and accuracy nonetheless. B. How You Practice Are you a trial attorney who is in court every day or a transactional lawyer who is in the office every day? Trial attorneys should consider purchasing client-management software that is cloud-based, which may require a monthly or annual licensing fee. Cloudbased systems store data on remote servers,
giving you remote access to your clients’ data from any device. Again, if you decide to use cloud-based client-management software, be cautious of what information is stored on the software and what measures are in place if connection fails. Although, transactional attorneys will benefit from a cloud-based system, they are not necessary for transactional attorneys. A transactional attorney can store their clients’ data on an offline server, giving the attorney more control in accessing it and protecting it from breaches. Regardless of what software you use, be sure to have protocol in place if your cloud-system is not accessible or when your local system fails. C. How Your Data Is Exported
Finally, you should consider how your data is exported from the software. To put this concern into context, consider the following scenario. You purchase and use a cloud-based client-management system to manage your clients’ information, clients’ data, and your calendar. You successfully use the software
in your practice for three years and have over 200 clients updated in the software. Suddenly, you receive notice that the vendor who provides and supports the cloud-based software is going out of business soon, thus requiring you to export and transfer your data. This process can be overwhelming and stressful. One tip is to be sure that your data can be exported to a CSV, XLS, or another similar file type. Those types of files are easier to transfer from and to an Excel spreadsheet or other database. Once exported, this file can easily be transferred to another client-management software. Regardless of the exporting features, all attorneys should keep either hard copies or electronic PDF copies of the clients’ information in a secure location separate from the cloud-based software. There are many other preventative methods and alternatives one can use to protect a client’s confidential and sensitive information. One way to assure that you are consistently diligent in protecting your clients’ information is to protect their data with the same tenacity you protect your bar license.
Darryl E. Scott is an intellectual property attorney and is registered to practice before the United States Patent and Trademark Office (USPTO). He has a Bachelor of Science degree in Mechanical Engineering and has 20 years of information technology experience. For any additional questions, you may reach him at dscott@darrylscottlaw.com. Endnotes
1. See Press Release, Texas Office of Court Administration, Largest Statewide E-Filing Mandate in the Country Begins in Texas Courts (Jan. 1, 2014), available at http://efiletexas.gov/media-kit/01-01-14_Press_ Release.pdf. 2. See TEX. DISCIPLINARY RULES OF PROF’L CONDUCT R. 1.05 (1989), available at www.legalethicstexas. com/Ethics-Resources/Rules/Texas-DisciplinaryRules-of-Professional-Conduct.aspx 3. See Data Storage, TECHOPEDIA, www.techopedia. com/definition/23342/data-storage (last visited Feb. 24, 2020). 4. See Data-Retention Policy, TECHOPEDIA, www. techopedia.com/definition/31812/data-retentionpolicy (last visited Feb. 24, 2020). 5. See Tex. Ctr. For Legal Ethics, Op. 680 (Sept. 2018), available at https://www.legalethicstexas.com/EthicsResources/Opinions/Opinion-680. 6. See Data Communications (DC), TECHOPEDIA, https://www.techopedia.com/definition/6765/datacommunications-dc (last visited Feb. 24, 2020).
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By Ruby L. Powers
Lawyers as Managers of People and Time
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s lawyers who are also business owners, we are taught to have strong mindsets, often forgetting that managing a business comes with corresponding leadership roles. These roles require that we are proficient not only as leaders but also as managers. One tool that every good manager should have in You must evaluate his or her toolkit is the conyour strengths and cept and regulated practice of Time Management. As I weaknesses as a have been the sole managing manager, both partner of my firm for over a personally and decade, I have endured a number of tried and true experiprofessionally .” ences. As I reflect back on my law school experience, I realize that law school does not teach us about law practice management
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and being an all-around successful attorney. There are many aspects of running a successful law practice that one learns from experience while managing a firm. This being said, I was inspired to author a book on law practice management to help attorneys navigate through the complexities of managing their own firm. In this article, I will coach you on how to be a good lawyer as a manager, while managing your time effectively. Lawyer as a Manager Your firm’s office structure could be top notch, you could have the best staff and a great reputation—but these assets will not be sustainable if your managerial skills are not up to par. You must evaluate your strengths and weaknesses as a manager, both personally and professionally. Below are some of the elements that every lawyer manager should understand and know how to do. A. Not Everyone Can Be a Good Manager Often we make the mistake of choosing our managers based mostly on their experience, seniority, or technical skills. As the employer, your job is to assess your manager candidates to assure their qualifications will work well with both the firm and the rest of the staff. It is important for the individual to be prepared, groomed, and trained for management to ensure success in the position. A manager that is not involved with and has little to no communication with the staff will not have a good impact in your overall office environment. It is important for your staff to feel as though they can communicate efficiently and readily with their upline to ensure honesty and a prosperous firm. B. Know Your Team We all hear the saying “teamwork makes the dream work,” and that is exceptionally true for a prosperous law firm. I personally find personality tests are a great start to getting to know your team. There are a series of different assessments, such as the Profile XT assessment, the MyersBriggs Type Indicator, and others, which
can serve as a way of getting to know your team, be used later to determine new learning styles and behaviors that will favor team building, ensure a productive and welcoming atmosphere, and help others be more understanding of each other. Though it can be an investment of time and finances, such efforts will result in a closer relationship with your staff and a more collegial work environment overall.
Time Management A. Time Management Matrix This tool happens to be one of my favorites to use for time management. It’s a concept that originated with President Eisenhower and author Stephen Covey.1 The matrix is divided into four quadrants: urgent, not urgent, important, and not important. B. Quadrants Explained One of my favorite representations for the
time management matrix (graphic on next page) is from Alex Czarto, in his piece on time management practices.2 Quadrant 1 (Important/Urgent): Things that are impossible to resist, like emergencies and family-related issues. Managers and business owners may feel that everything is important and urgent; however they need to zoom out and see the big picture at hand in order to escape that mindset and move to Quadrant 2. Quadrant 2 (Important/Not Urgent):
C. Office Culture It is important to create a work environment that adheres to your own core values. I referred to “cakes and tacos” in my book because we have cake to celebrate birthdays and tacos on Tuesdays to celebrate the success of the office. For my office, I have found what works best is a friendly environment. Lawyer managers need to be aware of how seemingly small factors build expectations and establish a firm’s culture. D. Communicate with Your Staff In order to have a successful relationship with any individual, there needs to be communication on both ends. Communicating with your staff has to be a priority in order to assure that the workload is put out efficiently and orderly. In my experience, I found that having other “channels” as a means of communicating with all my staff works quite well. For example, a channel could be an office manager with whom the staff can easily communicate so that the information can go up the chain and in turn be addressed. Another means of communication that works effectively is a weekly staff meeting with everyone in the office, during which we can discuss any new success stories, any new changes, or whatever the case may be. This allows your staff members to all sit down as a collective and do an overview of the week. In this way, everyone is able to communicate with one another about any work-related issues and may propose solutions or new changes to the office’s day-to-day operation.
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ee would live, racking up hours but not accomplishing anything. Avoid Quadrant 4.
Tasks that are useful for planning and prevention purposes, like exercise or office meetings. This quadrant remains difficult. Sifting through projects to identify those that are most in line with your priorities requires a strong sense of purpose when you are constantly bombarded with activities, opportunities, and choices. For the first ten years as an attorney, I was constantly hustling and working hard for opportunities. Then a switch flipped and opportunities I had never imagined started knocking on my door. Considering I never imagined them, I had to review my goals and priorities to reassess and evaluate where they fit, if at all, in my life. Quadrant 3 (Not Important/Urgent): Distractions such as irrelevant emails or texts that can wait until a later time. This quadrant can best be described as interruptions. These could include emails (alerts or constantly checking), text messages, staff members walking into the door to ask a question, and procrastinated projects and duties that become urgent. It is best to minimize time in this quadrant. Quadrant 4 (Not Important/Not Urgent): Things that are complete time wasters, like scrolling through social media for no beneficial gain or surfing the internet “just because.” You never want to be here. It is a complete waste. It does not further goals and is basically busy work. This is where a worst-case employ20
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C. Attention Residue and the Evil of Multitasking Multitasking may seem like the most beneficial thing to do at any given point in time because you feel that the more things you are doing, the more you will get done. Unfortunately, this is not the case. In “Deep Work,” Cal Newport discusses “attention residue.”3 He explains how during our daily activities our attention does not quickly follow when switching tasks because often our mind is still occupied with the previous task. His solution for this is something called “deep work,” in which an individual focuses on one single task before moving to the other. Give yourself a deadline to keep yourself accountable, and keep track of time to ensure you are not spending too much time on one task. D. Distractions I use the terms “dopamine” and the “addiction to distraction” in my book as a theoretical explanation to the popular usage of smartphones in this day and age. Dopamine is a chemical in the brain that is involved in a multitude of brain functions, including regulating pleasure. When we have an enjoyable experience, dopamine is released into our brain; this makes us want to repeat the activity. Hence, the constant usage of smartphones, which causes a huge distraction to your overall schedule. Such dependency on technology and internet-generated gratification can impact our long-term ability to stay focused. We can fight our distractions by slowly decreasing our technology usage, perhaps by turning off email notifications on your desktop and turning off your smartphone at work. These are just two ideas to lessen dependency on technology.
E. Fatigue and Burnout As a business owner and manager, I have experienced firsthand what both fatigue and burnout look like. Through my experience, I found that it is important to block off time for certain tasks, and sometimes the tasks need to be assigned based on when I have optimal effectiveness versus when I need a lighter task. We need to strive to manage our time more effectively so we can avoid the stress that comes with fatigue and burnouts. F. Eat the Frog This is a reminder to tackle your most important and hardest tasks earlier in the day to prevent them from lingering in your mind all day. We often tend to put aside the most important task because we know how time consuming and difficult that task may be, which leads us to procrastinate and think about it throughout the day, making it more stressful than it should be. As a lawyer, this may be a difficult brief. However, as a lawyer manager, this very well could be a difficult conversation with an employee on their own performance. Not procrastinating the management decisions will be most useful for you and your staff. Not only must you make a decision to tackle the most important tasks first, but you also need to be free of outside distractions. For instance, you could literally place a plastic frog on your desk, and let staff and others know that you should not be disturbed whenever the frog is out. Staff members could do the same when they need a distraction-free working period at some point in the day. G. Zooming Out and Zooming In The process of “zooming out” refers to tracking and working towards long-term goals. Through my experience, in order to proceed with a goal, break it down into smaller, more accomplishable goals that can be tracked and measured. Also, implement accountability, like telling others or having them help you track progress.
“Zooming in” is a process of building your ability to focus. By honing your ability to commit to intense work, you can expect a greater work turn out. Rhythmic scheduling can help you by fixing your time for intense work every day or throughout your week. Allowing yourself to commit to one task at a time will maximize your focus on said task. Not only will this aid with the work that you may want to put out, but in return you will become accustomed to said schedule, which will help you with future projects. Conclusion Management is rarely taught in undergraduate or law school; nonetheless, management skills set successful professionals apart. These skills are essential for moving your business forward and continuing to grow. I hope that what I learned from running my own law firm can motivate you to seek out books, mentors, and other guidance to improve the critical skills that are essential to a firm’s growth. As the Chinese proverb says, “a journey of a thousand miles begins with a single step.” Begin your journey by applying these ideas to your work life and personal life. Don’t be overwhelmed, but start with a couple of small steps. When you give yourself time to reassess, it also allows you to manage a life you love. Ruby L. Powers is the founder of Powers Law Group, P.C., an immigration law firm in Houston, Texas, and is Board Certified in Immigration and Nationality Law. Ruby has authored “Build and Manage Your Successful Immigration Practice (Without Losing Your Mind).” Endnotes
1. See STEPHEN R. COVEY, THE 7 HABITS OF HIGHLY EFFECTIVE PEOPLE (2004); Shana Lebowitz and Weng Cheong, How to Use a Simple Time-Management Trick Invented by President Eisenhower to Become More Productive and Less Stressed at Work, BUSINESS INSIDER (Dec. 27, 2019), available at https://www.businessinsider.com/how-to-use-stephen-coveys-time-management-matrix-2015-12. 2. Alex Czarto, The Four Quadrants of Time Management (Apr. 24, 2012), https://czarto.com/2012/04/24/fourquadrants-of-time/. 3. CAL NEWPORT, DEEP WORK (2016).
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By Joseph M. Schreiber
Alternative Fee Structures:
When Breaking the Mold Makes Sense
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he goal of alternative fee structures1 in attorney engagement agreements is to give something to clients that they want, either a capped fee and cost certainty or a way to shift risk of loss to the attorney, while sharing some of the potential recovery. Most importantly, the goal of alternative fees is to align the incentives of the attorney and the client, while making legal fees affordable. Alternative fee structures are generally defined as anything other than a pure hourly fee or pure contingency fee. A pure hourly fee structure entails a set rate per hour for each attorney and/or paralegal. The use of hourly fees is typically attributed to insurance companies that wanted to take more control of their legal bills. Law firms typically set an hourly rate, like the MSRP on a car, that is higher than they actually collect. A large defendant (such as an insurance company or Fortune 500 defendant) with market power—because that defendant has lots of legal work—will negotiate down the list rate. Many times, the actual rate may
be well below the list rate. On the other hand, individuals and small clients end up paying at or near the list rate, which does not seem very fair. Law firms are willing to cut their hourly rates for large clients on the expectation of getting more work. These billing dynamics can create both distrust and resentment between attorney and client at the outset of the relationship. Large clients frequently negotiate their bills by attempting to audit and cut the bills for the attorney allegedly taking too much time on tasks. Alternatively, a large client may simply exert their leverage for cost savings. Thus, for an attorney to safeguard from aggressive discounts, there is incentive to pad the bills by creating additional work tasks and tracking every waking moment spent on a file. This way, the attorney has room to negotiate the bill down. In contrast, a pure contingency fee is where the attorney and client contract to pay the attorney a set percentage of the recovery if the case is resolved and paid prior to filing a lawsuit (at the demand and negotiation stage), a higher percentage if a lawsuit is filed, and a third higher rate if an appeal is filed. The attorney typically advances money for all expenses, which are paid back on recovery after the fee is calculated. If the case is lost, the attorney eats the costs. Contingency fee arrangements are most common for personal injury claims, where an injured client comes in the door, and there may be a police report from a car or truck wreck showing the potential defendant was at fault. For a contingency fee case to be viable for the attorney, the case requires three elements: (1) injury; (2) liability on the defendant, the clearer the better; and (3) a defendant with the ability to pay. If any of those elements is missing, a pure contingency fee is not viable for the attorney. Likewise, in business disputes, a contingency fee may be too expensive, risky, or time consuming. Alternatives to these traditional types of fee arrangements can thus be very attractive to give a worthy client access to the legal system.
Types of Alternative Fees, Where They Seem to Work Best, and How They Work Best Split-Structure: Hourly Transitioning to Contingency In a split-structure engagement, the client will pay an hourly fee for some portion of the work, and at a predetermined point, the engagement will transition to a contingency. The transition point is frequently after a demand letter is sent and no settlement is reached. This arrangement may work where a client has money to pay an hourly fee and where there is potentially a large recovery. For example, for an insurance claim arising from a severe personal injury, a split-structure engagement allows the client to not surrender a third of its recovery in what may be a quick settlement. A split-structure engagement also makes sense for wrongful termination of a highly compensated employee or executive. The employee gets to keep the possibility of a larger payout (and less legal fees) when they think their former employer will pay rather than be sued, and the attorney gets paid before finding out what the company’s reasons for termination were. In the employment context, while there is usually a demonstrable injury (like a termination), liability is not clear until the employer comes back with their response to the demand. Sometimes the employer has a good reason for termination, or at least a documented reason that may stand up. This typically does not come out until after a demand letter has been drafted and sent—with usually a decent amount of work, making the contingency worth far less. Other times, the defendant’s liability is clear—or at least their desire to settle is clear—and settlement occurs. The lawyer is paid for his or her time—at the normal hourly rate—and the client keeps the settlement, which, after the legal work, is usually more than it would have been had there been a contingency fee. After a demand has been sent and negotiations have failed, the facts establishing (or negating) liability will usually be
clearer, and the attorney and client can then transition to a contingency fee, if it still makes sense based on the risk of liability and possibility of collection.
sist on a hybrid contingency, rather than a pure contingency. In these cases, the first two elements of a successful contingency case are not clear—injury and liability. Business litigation Alternative is rife with bad emails Hybrid Contingency Fees fee structures that can turn the tide of a In a hybrid contingency fee structure, the law firm are generally case half-way through or combines a percentage of its defined as anything establish counterclaims. hourly fee and a proportionClients are far more likely other than a pure ate reduction in a contingento disclose bad emails or hourly fee or pure bad facts early if they are cy fee on the outcome. For instance, the law firm will contingency fee. paying fees throughout. charge half of its hourly fee A pure hourly fee Clients, knowing the atand will receive 20% of the torney is on a hybrid constructure entails a settlement of verdict. Hybrid tingency, are less likely set rate per hour for to feel that an attorney is contingencies are most often used in business litigaeach attorney and/or over-billing. tion, but can also be used on Who pays expenses deparalegal.” behalf of a personal injury pends on case complexplaintiff who has the funds ity. In a typical business to pay a smaller hourly fee to retain more dispute, if deposition and expert expensof the settlement or verdict result. es are split, there is a discussion of costA pure contingency fee is used in most benefit of the action or expert. Both the personal injury cases because most perclient and lawyer have skin in the game, sonal injury victims do not have the money to fund a lawsuit when they are injured, out of work, and have to pay medical bills. When an injured person has a high net worth and the ability to pay hourly fees, particularly when liability is clear and there is a serious injury, it makes sense for the injured person or their family to pay either hourly or on a hybrid contingency.2 In business litigation, it is often appropriate to in-
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over-paying for legal services they do not use—and the money paid is for the peace of mind of having an attorney ready for them, and if the client unexpectedly has more legal work than usual, the lawyer does not eat the extra time. At the end of the year, the monthly legal flat fee can be reset based on the prior year’s billings Flat Fees and the next year’s expected needs. Flat fee or “fixed fee” arrangements are Flat fees also work for smaller corpotypically arrangements where the attorrate matters that a law ney agrees to handle a matfirm has done many ter or group of matters for a times in the past or does sum certain for the total matter, or for a certain amount of Flat fee or on a regular basis and can utilize prior forms or primoney per month. Monthly ‘fixed fee’ arrange- or work to benefit newer flat fees are best used for climents are typically clients. In this case, the ents with steady legal work that want a lawyer on call arrangements where law firm does not charge and legal expense assurance the attorney agrees the first client the lion’s share of the legal fees, that the client can budget to handle a matter or and have subsequent clieach month, and the lawyer group of matters for ents—if they are on an wants guaranteed income each month. a sum certain for the hourly fee—get the benThe difficulty in any flattotal matter, or for efit of prior work without paying for it. For very fee arrangement is determina certain amount of simple things, setting up ing pricing that makes both money per month.” simple single-member the attorney and client happy. LLCs, a low flat fee can Clients wants to know that be used, particularly as a they are not overpaying, and way to get a client in the door. For more the lawyer wants to be sure that while complicated, but still smaller, corporate there is steady income, the client’s legal work, the flat fee should price in legal demands will not eat up too much time. counseling. No flat fee should be agreed, Where the attorney has done work for the even for single member LLCs, without client for a while and has a pretty good first learning about the client’s industry, idea of the time commitments required, goals for the future—bringing in partthe attorney and client can agree on a ners or investors, and business experimonthly price based loosely on the avence. This is because certain industries erage amount of attorney time the client are regulated, an attorneys’ forms may has used in the past. A way to formalize not be useful, and the matter may take the cost process and balance the risks is longer than budgeted. When contacted for the attorney and client to agree to a set about flat fee work for smaller corporate amount of money each month. The attormatters, a good practice is to allow a halfney keeps his or her time each month. At hour consultation, in person or on the the end of a fixed period (usually a year), phone, to learn basic facts to see if the flat to the extent that the attorney has billed fee will be viable. If it is not, it is impormore than double the budgeted amount tant to explain that to the client, so they of hours, the client pays for the extra do not think it is a bait-and-switch, and time. To the extent that the client has not to make sure they do not go to an online used more than half the amount of hours, legal document repository and set up an the attorney will refund a set percentage. illegal business. My firm has been conIn this way, if the client does not have tacted by doctors who want to go into a many legal issues, they are not greatly sharing responsibility and risk. Alternatively, in a complex intellectual property case, hybrid fees provide risk management of the fee structure, and the client weighs the cost of litigation against its business goals.
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business that, on first glance, did not appear to violate the law on doctors being in medical businesses with non-doctors, but after a few questions, realized it definitely would violate the laws. We were still able to work for these clients, but it was a more complicated endeavor that was not subject to a flat fee. Flat fees are not the best option for single litigation matters. Flat fees in litigation tend to discourage settlement and can create friction between client and attorney over things like the number of depositions to take, experts to hire and motion practice. Because the client has already paid, or agreed to pay a certain amount, the client wants the attorney to do everything possible. The lawyer has financial incentives to do as little legal work as possible on the case. Even if the lawyer is not doing the bare minimum, the client may perceive that the lawyer is not doing enough. The only time a flat fee should be used in litigation is: if the attorney and client agree in writing on the desired outcome; if the lawyer can get the outcome at any point, the lawyer can settle the case for the pre-determined desired outcome; and if the attorney retains the authority to settle based on these parameters. All such agreements must be in writing. Further, if it is the type of case that will require experts or depositions, there should be an expense agreement whereby the client will begin paying expenses above a certain point. Non-Negotiable Hourly Rates and Non-Negotiable Bills While still an hourly rate, an alternative to the common practice of higher list rates, negotiation of rates, and negotiation and discounting of bills is a non-negotiable hourly fee. This practice, which my law firm uses and is very upfront about with clients, is to charge an hourly rate that we believe is fair in the market at the price that it is set, without an expectation for discounting. We audit ourselves and show the client anything we write off, but we do not discount the bills on a percentage basis, nor do we discount
the hourly rate for any particular clients. Everyone pays the same rate, and nobody negotiates the bill. If you are very up front with clients about this approach, they appreciate it. Clients get a fair bill, which eases much of the tension when the bill goes out and at inception. Smaller clients know that they are not being charged more than large clients. Larger clients know what the billing rate is going to be and what the bill is, and there is no incentive for the billing manager, inhouse counsel, or accounting department to try to negotiate the bill or have to answer to a higher-up about why the bill was not negotiated. The bill is the bill. Conclusion Clients frequently say that they want an alternative fee arrangement. However, the traditional hourly fee and pure contingency fee still dominate legal billing. For an alternative fee arrangement to work, it has to align with both the goals of the attorney and client, and their incentives. Alternative fees can work well, and have worked well for my law firm, but only when discussed early and honestly. Seek what is best for the client in the fee arrangement, but make sure that it still protects the law firm’s interests. An open and frank discussion of the risks and benefits of each type of fee arrangement, done in conjunction with the initial consultation, adds value to the representation. Joseph M. Schreiber is a founding partner of Schreiber | Knockaert, PLLC. His practice focuses on personal injury, business litigation, and employment disputes. Endnotes
1. This article addresses fees primarily in the civil litigation context, the primary area of my law firm’s practice. I do not have experience in criminal law, large deals, tax work, immigration, or family law. Those areas may have different fee practices that I cannot and do not address 2. My firm has represented high-net worth individuals on hybrid contingency fees in personal injury litigation, usually in cases where we would rather have had a pure contingency for our own financial reasons, but for the same reason, it was in the client’s best interest to retain some of the risk and pay fees up front to receive a
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By Debra L. Bruce
Best Practices to Avoid Hiring Mistakes
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o you dread the hiring process because it is so difficult to find the right people? Perhaps new hires have repeatedly disappointed you. They turn out not to have the skills or experience you expected or that they claimed to have. Perhaps co-worker drama seems to ferment around your new hire or communication breakdowns negatively affect work product and deadlines. Most law firms can tell tales of hiring mistakes that cost the firm time, money, and office harmony. This article provides tips on how law firms and law departments can make better hiring decisions. 1. Define in detail the skills and behaviors required for the role. Do not let yourself off easy with a broad description like “litigation associate with 5 to 7 years of experience.” Invest time in identifying your expectations of what the new hire will be able to handle competently on Day 1 and what other talents and skills will be crucial to the new hire’s success at the firm. Also, do not shy away from posting the aspects of the job that you would personally find boring or tedious if it is an essential aspect of the job. By way of example, which of these capabilities will the candidate need?
• Manage all aspects of a case from start to finish • Conduct the same routine depositions and motions in case after case without losing focus and engagement • Envision the timeline of a case and plot deadlines and critical phases • Recognize early on when clients might be misrepresenting or “forgetting” significant facts • Sufficient expertise to discredit the testimony of an expert witness or the procedural acumen to disqualify the expert • Grasp how to pierce the corporate veil to reach the deep pockets of a parent company or wealthy sole shareholder • Sufficient confidence, patience, and empathy to calm worried and stressed out clients • Equanimity in a hearing to swiftly counter unexpected or bullying arguments by opposing counsel • Requisite attention to detail to present pristine documents to a general counsel with high quality standards • Acumen to negotiate settlements strategically, differentiating between what is essential to the client and what can be traded away • Collaborate effectively in a team environment • Comfortable working hour after hour in isolation These roles call for different experience and talents, some of which may tend to be mutually exclusive. Until you break the job down into its parts, you will not be able to discern the most important traits of your ideal candidate. 2. Draw on your network to find qualified candidates. Once you articulate the qualities of the candidate you want to hire, how do you find the candidate who possesses them? Some lawyers jump to posting on job boards, because it does not take much time. However, time invested up front in
methods that pre-qualify candidates can save the later frustration of dealing with unqualified candidates, or worse, making a bad hire. Here are several methods to find qualified candidates without recruiters. a. Word of mouth referrals. This is the preferred method because the candidate gets prequalified by a person who vouches for them. Let your network know what you are looking for and share your job description. Ask people you respect in similar roles whether they know someone who possesses the qualities and standards you are seeking. Most will not want to tarnish their own reputation by recommending people who do shoddy work. Ask opposing counsel, former colleagues, law school professors, former classmates, bar association committee chairs, and even in-house counsel clients. When seeking support professionals, talk to your own employees. Ask friends to make inquiries among their paralegals, assistants, and administrators. Support professionals often have a broad network that lawyers rarely encounter. Active participants in relevant associations, committees, and certifying organizations will be familiar with who works hard, knows their stuff and is reliable.
neys and paralegals. Various premium packages get higher positioning in listings, plus monthly job flash emails to Bar members. Other sites for job postings include LinkedIn, Indeed, Glassdoor, ZipRecruiter, CareerBuilder, Craigslist, as well as law school job boards, job fairs, and on campus interviews. Many paralegal schools also have online job boards. Broad-based listing services garner more inappropriate applications to filter out. 3. Identify mechanisms to assess the qualifications of your candidates. Once you have determined the necessary qualifications, how will you verify whether your candidates actually possess them? Certification by the Texas Board of Legal Specialization provides a lot of comfort, but only about 7% of Texas lawyers are board certified, so that bar is usually too high. The Texas Board of Legal Specialization also offers certification exams for paralegals in certain specialty areas of law. Additionally, a number of
paralegal organizations provide paralegal certification exams. The best recognized organizations are The Paralegal Association (NALA) and the Association for Legal Professionals (NALS). You can also look at The National Federation of Paralegal Associations (NFPA), as well as post baccalaureate college paralegal degrees and paralegal technical school certificates as evidence of training, at least. To judge the written communication skills of the candidate, ask for sample work product (redacted to protect confidentiality) such as memoranda, briefs, contracts, letters, articles, or blog posts that the candidate drafted. Some firms design a test project to judge the applicant’s skills. Others pay job finalists as a contractor to perform a small client project to see how well they handle real firm work. Note whether the candidate asks clarifying questions to verify that they understand what is needed. Note how long it takes and discuss their analysis with them afterwards. Almost all law firm employees need
b. Social media. Facebook has a very active group for Texas Lawyers in which members frequently seek the “wisdom of the hive,” including when they need to hire additional help. Search LinkedIn profiles for the skills you need or make inquiries in LinkedIn groups. If you find people with the right qualifications, see whether you have any connections in common that might help open doors or provide feedback. c. Job postings. If your network fails, the State Bar of Texas and the HBA Career Centers accept paid job postings for both attorthehoustonlawyer.com
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proficiency with Microsoft Office tools. An internet search will reveal various types of Microsoft Office skills tests. Look for tests that include simulated actions in Microsoft Office. Two such products are TOSA (www.Isograd.com) and Skills Arena (www.skillsarena.com). Procertas Legal Technology Assessment (www.procertas.com) is the gold standard for lawyers, however. It was designed by an in-house counsel who required his outside counsel to pass the test because having the right skills dramatically reduced document prep time, and thus legal fees. Joe Lawson, Deputy Director of the Harris County Law Library (HCLL), says lawyers and staff can use Procertas onsite at HCLL for free to evaluate and improve their own skills. You will not get certified results at HCLL, so that probably will not work as a screening tool. Lawson also points out other resources available at HCLL that provide some guidance on hiring. Two examples are How to Manage Your Law Office published by LexisNexis and Texas Legal Practice Forms published by Thomson Reuters Westlaw. If your office uses G Suite, Google offers a G Suite certification exam covering Gmail, Drive, Docs, Sheets, Slides, Forms and Hangouts Meet. The two-hour remote proctored exam has multiple choice and performance-based questions. You can see how remote proctoring works at https://vimeo.com/129576577. For shorter onboarding time, look for candidates familiar with other technology platforms used in your office. In addition to Microsoft Office vs. G Suite, think about Apple vs. Windows and iPhone vs. Android. For seamless coordination and communication with clients, strive for technologically diverse or technologically “multilingual” personnel in your office. Also quiz applicants about other technology your firm uses, such as document management software like NetDocuments, Worldox or NextChapter, and practice management software like MyCase, Clio, Rocket Matter, Practice 28
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Panther, Zola Suite, Smokeball, etc. Familiarity with programs other than the ones you use still merits bonus points. Because they have core features in common, any familiarity will make training and onboarding easier. 4. Check for personality fit with the role and the firm culture. If an employee’s personality and strengths do not match the employee’s role well, he or she may procrastinate or avoid uncomfortable tasks. The employee may become disengaged and negatively affect office morale. A myriad of personality and talent assessments can provide insights to inform your qualifying questions. Two of the better-known personality assessments are DISC and the Myers-Briggs Type Indicator. Request sample reports from any assessments you consider to see what kind of information you will receive and how you can use it. My law firm clients find the DISC reports easy enough for them to understand and implement without always needing a consultant by their side to interpret the results. The CliftonStrengths assessment developed through decades of research by the Gallup organization identifies 34 natural strengths. Gallup research found that people who are able to use their primary strengths at work every day are more engaged and productive in their role. You can purchase the inexpensive assessment on the Gallup website, or you can purchase the book StrengthsFinder 2.0 by Tom Rath, which explains the research and includes a single-use code to take the CliftonStrengths assessment online. When hiring high level candidates who may take an active role in firm or practice group leadership, consider using a leadership skills assessment such as the CPI 260, the Campbell Leadership Descriptor or the Caliper Profile. These assessments will usually require debriefing by a consultant. You also may want to consider emotional intelligence tests. They can reveal which candidates have
greater personal awareness, emotional regulation, and relationship management skills. Two examples are the EQ-i 2.0 and the Mayer-Salovey-Caruso Emotional Intelligence Test (MSCEIT). Culture fit can be a tricky issue. On one hand, organizations need a diversity of experiences and ideas to develop creative solutions, recognize and capitalize on new opportunities, and otherwise support valuable innovation. On the other hand, people who do not share the firm’s vision and values can undermine them, negatively affect morale, and sow resentment and discord among employees. Make sure you have clarified within the firm who you are as a firm and what values are most important. Speak to those values frequently and make it safe for all employees to speak up when those values are dishonored. Catch people doing things right and provide recognition for their alignment with firm values. Ask job candidates behavioral interview questions that will surface their values on the topics important to the firm. Ask each person who interacts with the candidate what the person observed that might indicate whether the candidate shares the firm’s values. 5. Conduct effective interviews. Despite your solid groundwork in preparation for hiring, the fatal flaw in the hiring process may emerge during interviews. Here are common mistakes that interviewers make, together with better options. a. They telegraph to the candidate the response they want to hear. The interviewer says, “We work hard to meet our clients’ needs. Are you willing to work hard?” Instead, use behavioral interviewing techniques. Pose an open-ended question asking the candidate to tell you how the candidate has handled certain situations in the past. Past behavior provides a reasonable predictor of future behavior. You might say, “Tell me about a time when your to-do list got longer than the hours in your workday. What did
you do?” The response may tell you how willing they are to work late to get the project done or provide insight into their prioritization skills and ability to focus and avoid distractions. You can find many articles on the internet with examples of behavioral interview questions. b. They gravitate toward candidates just like themselves. We have natural affinity toward someone who sees the world the way we do. However, when you hire a “mini-me,” you may compound the weaknesses of your firm or department. Your team needs complementary strengths, not duplications. A big-picture thinker needs a refiner who pays attention to details. The hard-driving results-oriented lawyer needs a teammate who has the patience to engage in “handholding” with clients. Refer frequently to your previously identified skills and traits that the role calls for in order to keep yourself on track in the evaluation process. c. They succumb to unconscious bias. We all have biases. They allow us to progress without evaluating and analyzing every step afresh. In the workplace, we may be unaware of biases that degrade our decision processes. Many kinds of unconscious bias impact employment. The American Psychological Association reports, for example, that tall people make more money and enjoy more success than short people, even when height is irrelevant to the job duties. In a study with identical resumes except for a male name or a female name, based on the resume alone, the female was judged as less competent and a 13% lower starting salary was suggested for her than for the male. One mechanism to reduce unconscious bias involves standardization of interview questions. Have multiple people interview each candidate to-
gether, with standardized questions. Immediately after the interview without discussion among the interviewers, have each interviewer turn in a written score sheet regarding the candidate’s responses. This mechanism subjects each candidate to the same criteria, and it also combats the tendency to have perceptions influenced by conformity bias when others have expressed their opinions. 6. Do your homework and check references. Call the references provided by the candidate. Sometimes the reference had no idea they had been listed and may be candid in their response. Call acquaintances in their prior workplaces to get their perceptions of the candidate. Unlike the Human Resources Department, your friends may give you detailed information. Consider Googling the names of the candidates who have survived the inperson interview process and search for them on social media (Facebook, LinkedIn, Twitter, Instagram, TikTok, etc.) to review their posts for any questionable activity. Beware of the risks of unconscious bias or illegal discrimination that may arise with such searches, however. The Pros and Cons of Social Media Background Checks1 contains a good discussion of those risks. Law office employees have access to confidential client information and data used in identity theft. An online search in the ABA Journal reveals report after report of embezzlement from law firms or their clients. Consider background screening for criminal records and a credit report. Make certain that you un-
derstand and comply with the requirements of employment laws and the Fair Credit Reporting Act in the screening process, as well as liability issues for negligent hiring if you do not do background checks. This article offers many suggestions, and such thorough hiring processes may sound overwhelming and exhausting. Not every job opening merits all of these steps. Extra effort pays off, however. Hiring mistakes not only waste the time and money invested in the process, they distract management from strategic responsibilities. They also can dampen morale, decrease teamwork, and increase turnover of good employees, all of which impact the bottom line. Debra L. Bruce is president of LawyerCoach LLC. With 18 years in law practice and 20 years coaching, she guides legal professionals on leadership and management, team effectiveness, and productivity. She was the first lawyer in Texas to be credentialed by the International Coach Federation, and she has held leadership roles in law practice management committees of the Houston, Texas, and American bar associations. Visit: www.lawyer-coach.com Endnotes
1. Chad Brooks, The Pros and Cons of Social Media Background Checks, Business News Daily (Aug. 2, 2016), https://www.businessnewsdaily.com/9289-socialmedia-background-checks.html.
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By Precious Williams Owodunni
Three Steps to a Powerful Personal Brand
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hen I say “personal branding,” the response is often a deer-in-the-headlights look. The term is nebulous enough to elicit feelings of uncertainty in even the most senior professionals. Over the decade that my company has been advising legal leaders, my team has chronicled the three main challenges that attorneys encounter with personal branding. This article will examine those hurdles and outline how you can overcome them to craft and confidently communicate an authentic, powerful personal brand. #1 Determine What You Do Best and For Whom The first challenge most lawyers encounter is communicating what they do in a differentiated, simple, and memorable way. Putting your brand into a brief statement might feel difficult for a variety of reasons, including: • You do many different things for many types of people in varied industries, so where do you even start?
• You do not want to name a target audience, because that feels limiting. • You recognize that identifying what makes you and your work special is hard. In response to these concerns, I urge you to remember that branding (including personal branding) is about differentiation. Unfortunately, you will not be distinct if you suggest that you do all things for all people. How do you identify what you do best? People who have put their trust in you— your employer, your clients, and your colleagues—are the best sources of that information. Survey them. Ask them why they selected you, what they like about working with you, what they believe makes you different from competitors, and what they perceive as your areas of expertise. You will notice some common threads that should form the basis of your personal brand. The second part of the equation is for whom you do it (that thing you do best). The audience you name should be one you are comfortable making part of your brand and one that accurately reflects your client base (or the client base you aspire to have). #2 Get the Word Out The second challenge you will face in building your personal brand is getting the word out about your capabilities. You can take on this challenge by honing your elevator speech and promoting your brand online. • Refine Your Elevator Speech Your elevator speech is the explanation you can share with someone in just a few seconds to explain what you do and to prompt them to want to know more. The first bullet point provides ways to determine the content of your message, but here is an example from my own practice: “I help lawyers make more money.” Does this fit the criteria we discussed for effectively communicating a personal brand? 3 It is short.
it is hard to know what it is and why it matters. Put simply, people can usually 3 It identifies what I do best. tell when you are not being yourself. It’s 3 It identities for whom I do it. like wearing a hat that is too tight. You Here’s what’s interesting—lawyers are uncomfortable, and other people can are not my only clients; in fact, other sense it, which will make professionals and industries them feel like you are hidmake up 30–40% of my busiing something, which makes ness. Nonetheless, my law them uncomfortable in turn. degree from Yale and extenHow do Discomfort does not engensive track record of success with attorneys make them an you identify der trust. Authenticity, on the othideal, defined audience for my what you do er hand, works because it branding efforts. It also distills what I do best down to best?” builds trust. Even as new technologies, artificial intela few words. My tagline does ligence, sales bots, and other not explain that I provide means of automation and virtual connecstrategy consulting services, deliver tion flourish, the one constant is that we workshops on leadership and business are selling to humans. In the legal indusdevelopment topics, etc. I simply say, try, where you often interact with people I help lawyers “make more money,” at the most vulnerable points in their and let the person’s curiosity prompt lives, on their most important business a question that gives me permission and personal matters, you need to make to share a recent success story. Yours them feel secure. When “what you see is should do the same. what you get,” people trust you. And you get the business. • Share Your Brand Online Your audience is online somewhere. Even when someone receives a direct referral or introduction to you, the first place they will go to look for proof that you are who you say you are, or that you can do what you say you can do, is online. That makes it imperative that you share your personal brand wherever your audience frequents—whether that is LinkedIn, Facebook, organization websites, or other areas. Make it easy for your audience to remember and find you by being active and consistent. If you are not convinced, Google your name. It is likely that, like most attorneys with whom we work, your LinkedIn profile is one of the top Google search results alongside your firm bio. That’s great news, because it’s a search result whose content you control. Take advantage of the platform to reinforce your personal brand. 3 It is memorable.
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Conclusion I hope these brief insights give you what you need to start developing your personal brand with confidence. Each of these three challenges holds enough nuances to fill several volumes. If you are feeling a little overwhelmed, I encourage you to start with your elevator speech— what you do best and for whom. Identify this statement, and then try it out at your next networking event. If you get prompted to share more, you’re off to a great start. Precious Williams Owodunni is the president at Mountaintop Consulting. A trusted strategist for business and law firm leaders, she advises, coaches, and trains emerging and senior leaders, because she believes everyone in a business can contribute to profitable growth. A Yale Law graduate and former Goldman Sachs investment banker, she is a frequent speaker on business development, strategic career management, and leadership.
#3 Authenticity Is Everyone’s Secret Sauce “Authenticity” feels like a buzzword, and thehoustonlawyer.com
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Houston Bar Foundation Installs New Officers
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Awards presented for Pro Bono Service, Volunteerism and Legal Writing
he Houston Bar Foundation installed new officers and presented its annual awards for outstanding pro bono service, volunteerism and legal writing at the annual luncheon on February 25 at the Marriott Marquis Houston. Susan L. Bickley of Blank Rome LLP became the 2020 Foundation Chair, succeeding Travis Torrence of Shell Oil Company. Other new officers and directors are Jason M. Ryan of Centerpoint Energy, Inc., Vice-Chair and Neil Kelly of Hunton Andrews Kurth LLP, Treasurer. Serving as Directors are Denise Scofield of Winston & Strawn LLP; Polly Fohn of Haynes and Boone, LLP; Jim Hart of Williams Hart Boundas Easterby, LLP; Greg Heath of Locke Lord LLP; Richard Mithoff of Mithoff Law Firm; Christian Garza of Enterprise Products; Daniella Landers of Reed Smith LLP; Alyssa Schindler of Chevron; and Travis Wofford of Baker Botts L.L.P. Torrence will serve on the board as immediate past chair. HBA President Benny Agosto Jr. and HBA Executive Director Mindy Davidson serve as ex officio members. Reid Ryan, Houston Astros Executive Advisor, was the keynote speaker. The Foundation also presented an update on the Kay Sim Endowment, a campaign to provide future funding for pro bono legal services provided by Houston Volunteer Lawyers. The Foundation presented its highest honor, the James B. Sales Pro Bono Leadership Award, to Harry M. Reasoner of Vinson & Elkins LLP. In 2009, the Susan Bickley, 2020 Foundation Chair, succeeded 2019 Foundation Supreme Court of Texas appointed Reasoner as Chair Chair Travis Torrence. of the Texas Access to Justice Commission, which seeks to improve access to justice for the millions of Texans who cannot afford legal representation in life changing situations, such as women and children trapped in domestic violence, veterans denied disability payments or medical care, and the elderly cheated out of life savings or their homes. A decade later, he still leads the Commission. Awards also were presented for outstanding contributions to the Houston Volunteer Lawyers (HVL), which provides pro bono legal services to low-income Harris County residents; for volunteer service to the Dispute Resolution Center, providing free alternatives to formal litigation; and for legal writing in the HBA’s professional journal, The Houston Lawyer.
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HBF Director Denise Scofield presented the James B. Sales Pro Bono Leadership Award to Harry M. Reasoner of Vinson & Elkins LLP.
Reid Ryan of the Houston Astros served as keynote speaker. Omonzusi Imobioh was recognized for Outstanding Contribution to HVL by an Individual.
Hunton Andrews Kurth LLP was honored for Outstanding Contribution to HVL by a Large Firm.
KoonsFuller, P.C. was honored for Outstanding Contribution to HVL by a Small Firm.
Alyssa Schindler accepted the award on behalf of Chevron Corporation, honored for Outstanding Contribution to HVL by a Corporate Legal Department.
Blank Rome LLP was honored for Outstanding Contribution to HVL by a Mid-size Firm.
John G. Browning was honored as the author of the outstanding legal article published in The Houston Lawyer.
Alyssa “Allie� Romano, left, and Julie LaEace (inset) of Kirkland & Ellis LLP were both honored for Outstanding Contribution to HVL by a Pro Bono Coordinator.
Adrian Almaguer was recognized for Longevity of Exemplary Service to the Dispute Resolution Center.
James D. Gaughan was recognized for Outstanding Contribution to the Dispute Resolution Center. thehoustonlawyer.com
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35th John J. Eikenburg Law Week Fun Run Benefits Center for Pursuit
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he 35th HBA John J. Eikenburg Law Week Fun Run, held February 15, raised over $65,000 for The Center for Pursuit. The Center for Pursuit is a nonprofit agency that promotes the pursuit of choice, growth, and personal independence for adults with intellectual and developmental disabilities. Over the life of the race, the event has raised over $1,550,000 for The Center for Pursuit. More than 600 walkers and runners participated in the event in downtown’s Sam Houston Park. Named for the HBA president
Runners start the 8K race.
who founded the race in 1985, the John J. Eikenburg Law Week Fun Run is a team effort that requires many months of planning and coordination. Special thanks to race directors Brooksie Bonvillain Boutet of Shipley Snell Montgomery LLP; Steven Howard of Steven C. Howard, PC; and Alex Kamel of Vinson & Elkins LLP. Are you interested in serving on the Fun Run Committee for 2020-2021 and planning next year’s event? Contact Bonnie Simmons at bonnies@hba.org. Photos by Anthony Rathbun Photography
HBA President Benny Agosto, Jr. and Constable Alan Rosen celebrate wins with the Eikenburg family and friends.
HBA Fun Run Committee Co-Chairs/ A lucky winner of one of the great Race Directors Steven Howard, door prizes provided by local Attorneys from Taylor Book Allen & Morris, L.L.P. get ready to run. Brooksie Boutet, and Alex Kamel. businesses.
The team of John Spiller, Catherine Kruppa and Mark Speets of Clark Hill earned the President’s Trophy as President Agosto celebrates at the finish HARRA runners place 1st-5th in the 8K, with elite the fastest law firm team. line with participants in the 1K Kids Run. runner Calum Neff taking 1st place. 34
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9 President Agosto greets a participant from The Center for Pursuit.
For complete race results, visit hba.org/funrun
Runners and walkers enjoy post-race festivities.
Congratulations to the winners of the new registration competition! • Platinum Partner: Lone Star Legal Aid • Gold Partner: Vinson & Elkins LLP • Silver Partners: Haynes and Boone, LLP; Shell Oil Company • Bronze Partners: Bracewell LLP; Fleckman & McGlynn, PLLC; Jenkins & Kamin LLP; McGinnis Lochridge; Shipley Snell Montgomery LLP; Steven C. Howard, PC; Taylor, Book, Allen & Morris, LLP. Special Awards Overall Award (highest overall combined totals): Lone Star Legal Aid • Best All-Around Award (outstanding achievement based on participation in numerous point categories): Vinson & Elkins LLP • Name Creativity award (voted most creative team name by the Fun Run Committee): “Queen and Spalding” (King & Spalding LLP) • Spirit Award (most volunteers and social media promotion for the Fun Run): Lone Star Legal Aid
HBA Fun Run Sponsors Gold Sponsors Archer Solutions Exxon Mobil Corporation Anne & Don Fizer Foundation Gregor | Cassidy | Wynne, PLLC Steven Howard Mediations Locke Lord LLP Matthews & Associates Norton Rose Fulbright US LLP Reed Smith LLP Serpe, Jones, Andrews, Callender & Bell, PLLC Shipley Snell Montgomery LLP Vinson & Elkins LLP Marc Whitehead & Associates, LLP Silver Sponsors Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Jim Adler & Associates Amicus Search Group, LLC Baker Botts L.L.P. Beck Redden LLP Brooksie & Ryan Boutet Bracewell LLP BWA Video, Inc. Judge Kyle Carter Alicia & David Castro Clark Hill Terry G. Fry, P.C. Fullenweider Wilhite
Germer PLLC Hartline Barger LLP Haynes and Boone, LLP HBA Family Law Section HBA Litigation Section HBA Real Estate Section Hollins Law Group Hunton Andrews Kurth LLP Jenkins & Kamin LLP Johnson DeLuca Kurisky & Gould, P.C. Jones Walker LLP The Lanier Law Firm Latham & Watkins, LLP Oweyssi Law Firm, PLLC Benjamin Roberts Law, PLLC Ross Reporting Services, Inc. Schlanger Silver, LLP Shook, Hardy & Bacon L.L.P. South Texas College of Law Houston The Law Office of Diane St. Yves Thompson & Knight Foundation Veritas Research, L.P. The Zwernemann Law Firm Friends of Fun Run Anonymous Donor Jeffry S. Abrams Supporters who have made the race possible include: 1100 Smith Garage BakerHostetler LLP
Cheerful Clowns Coffee-Q Faust Distributing Company Fleet Feet Gingersnaps Etc. Holler Brewery Houston Dynamo/Houston Dash Houston Lawyer Referral Service, Inc. Houston SPCA Iron Keel Strength Karbach Brewing Company Todd Lonergan SnoBunny SnoBalls Strohmeyer Law PLLC Doug Teel Race Partner HARRA – Houston Area Road Runners Association Security Constable Alan Rosen and his staff from Harris County Precinct 1 Master of Ceremonies Services donated by long-time emcee, Lee Jolly Music Grand Old Grizzly Logo Design Daniela Desire Diaz and the Art Institute of Houston
OFF THE RECORD
Kat Statman:
From the Cyclocross Course to the Courtroom
F
The Houston Lawyer
By Kimberly A. Chojnacki
to keep their fitness in winter with the added benefit of crossrom mid-September to mid-December in any given training through running. year, you can find Kat Statman—a litigation associate Kat balances his practice with the demanding race schedule at Baker Donelson in Houston—tearing through 10 he keeps through early morning training sessions, with the to 20 cyclocross races, right on the heels of the eight commensurate early retirement in the evenings. He is sure to acto 12 mountain bike races he completed since March. count for his work obligations and the ever-present emergencies As he puts it, the racing season helps him “handle the day to that arise in litigation when he and day stress of work and stay sane” his coach develop his annual trainand hone his “ability to make deciing plan. He plans five to six trainsions in stressful situations,” such ing rides per week, ranging from one as “mak[ing] tactical decisions on to six hours (the latter falling on a the fly at high speed while accountweekend), with one to two short runs ing for a variety of variables around per week as the cyclocross season apyou and while your heart rate is at or proaches. All told, his training takes near its maximum.” If that’s what he up about eight–14 hours of his week. signs up to do in his spare time, it’s And during the travel for races, he’ll no wonder he finds it “easy to stay take advantage of riding shotgun to calm, collected, and rational” in his work in the car and “keep [his] mind everyday practice. While originally a competitive Kat Statman says cyclocross sometimes involves running as off of the upcoming race to keep from swimmer from second grade through well as biking, depending on the terrain. Photos©HardcorvTM overthinking things.” Having raced competitively for 15 years, Kat has racked up high school, he also taught mountain biking to middle school an impressive set of achievements. He is most proud of the mostudents during a summer camp in the Black Forest. Without a ment he became “pro” as a mountain bike racer (that being the swim team to call home in college, he picked up mountain bike highest category achievable) after the season in which he won racing his sophomore year. His achievements in that regard led the expert 19–29 age group National Mountain Bike series, him to join the collegiate cycling team, work with a professioncapped off in Brian Head, Utah. He also is proud of winning al mountain biker and coach in upstate New York, and branch his first “pro” cyclocross race in the fall of 2010 in Texas before out into cyclocross between the mountain biking season and going to law school, followed by finishing on the lead lap at off-season training. multiple national-level races during his first year of law school So, what’s cyclocross? “Cyclocross is a little hard to describe. against the best cyclocross racers in the country. It’s sometimes described as steeplechase on bikes,” though Kat While Kat is deliberate in his planning, and has built up an isn’t entirely on board with that description. Rather, it’s a hyimpressive foundation of fitness, consistency, and expertise in brid, is high intensity, and lasts about an hour on a two- to the sport, he insists that “none of it would be possible without three-kilometer course. A cyclocross bike looks like a road bike, [his] wonderful wife to help keep [his] head on straight.” And but has wider, knobby tires for racing on mixed terrain. Yet the throughout it all, he’s had the pleasure of meeting people from bike won’t always be all you need to finish the race: sometimes a all different walks of life and backgrounds, from engineers to cyclocross event “can involve running due to a variety of course business owners, in-house counsel to architects, and so on. conditions that are not rideable, be it long sections of sand on a beach, a set of stairs, a set of 40 cm wooden planks in the middle of the course.” And in those scenarios, Kat must not Kimberly A. Chojnacki is a litigation associate at Baker Donelson only run, but carry his cyclocross bike at the same time. in Houston. She represents corporate clients in eminent domain It’s no wonder that the sport—developed in France in the earproceedings, complex commercial litigation, and insurance defense ly 20th century—was originally designed for road bike racers disputes. She is an associate editor of The Houston Lawyer.
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Continued on page 41
Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. Large Firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Kirkland & Ellis LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP
Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company
Mid-Size Firm Champions Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley Gardere Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP
Porter Hedges LLP ReedSmith LLP Winstead PC Winston & Strawn LLP
Shortt & Nguyen, P.C. Squire Patton Boggs (US) LLP Trahan Kornegay Payne, LLP
Individual Champions Boutique Firm Champions Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP
Small Firm Champions Coane & Associates Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP
Law Office of Peter J. Bennett Law Office of J. Thomas Black, P.C. Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Pilgrim Law Office Law Office of Robert E. Price The Reece Law Firm, PLLC Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Law Office of Cindi L. Wiggins, J.D. Trey Yates Law
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committee spotlight
Habitat for Humanity:
Building Homes, Communities and Hope
T
The Houston Lawyer
By Deanna Markowitz Willson
he HBA’s Habitat for Humanity Committee partners with Houston Habitat for Humanity to help provide safe, affordable housing to those who qualify. Houston has a shortage of affordable single-family homes with only 18 units available for every 100 low-income households. The devastation of Hurricane Harvey only exacerbated Houston’s affordable housing crisis and left many residents without a decent place to live. By building homes and providing financial assistance to qualified applicants, Houston Habitat works to meet the needs of low-income Houston residents and provides a founHBA volunteers at a Habitat build site. dation for future success. Since 1987, Houston Habitat has served more than 5,000 families by facilitating homeownership and home repair. Habitat homeowners receive financial guidance and home maintenance training. These future homeowners put in hundreds of “sweat equity” hours building their homes alongside volunteers and ultimately purchase their home with an affordable mortgage made possible by Houston Habitat. Time after time, Houston Habitat has witnessed how the stability of homeownership is transformative for the Habitat families. Homeownership provides the foundation to save more, invest in education, live in a healthier environment, and improve financial stability. Affordable housing empowers these homeowners to build a better future for themselves and their families for generations to come. Over the course of the HBA Habitat Committee’s 23-year partnership with Houston Habitat, the HBA has built 22 houses for deserving Houston families. Each year, the HBA Habitat Committee has two primary objectives. First, the Committee raises the funds necessary to build a Habitat home from the generosity of HBA Sections, law firms, legal organizations, and individual donors. Second, the Committee coordinates build days during 38
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which members of the Houston legal community volunteer to participate in the actual measuring, sawing, and hammering required to build the home. This year, the HBA Habitat Committee is fundraising for its 23rd home. Once the home is completed and the new homeowner is about to move in, Houston Habitat and the HBA Habitat Committee take part in a dedication ceremony. During this ceremony, members of the HBA and Houston Habitat meet and congratulate the new homeowners. It is beyond rewarding to hear the family explain how meaningful homeownership is for them. Of course, none of this could be accomplished without support from the HBA, donors, volunteers, and all the invaluable assistance of Houston Habitat. Thank you! For more information on the HBA’s Habitat for Humanity Committee, please reach out to Bonnie Simmons (BonnieS@ hba.org). If you wish to make a tax-deductible donation toward our 23rd HBA Habitat home, please visit www.houstonhabitat. org/hba/. Deanna Markowitz Willson is the co-chair of the HBA Habitat for Humanity Committee and a litigation associate at Locke Lord, LLP where she focuses her practice on complex commercial litigation. She can be reached at Deanna.Willson@lockelord.com.
A Profile
in pro f e s s i o n a l i s m
The Hon. Alice Oliver-Parrott Mediator-Arbitrator Former Chief Justice, First Court of Appeals Former Judge, 151st District Court
“True we (lawyers) build no bridges. We raise no towers. We construct no engines. We paint no pictures—unless as amateurs for our own principal amusement. There is little of all that we do that the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our own efforts we make possible the peaceful life of men in a peaceful state.” —John W. Davis
The Houston Lawyer
M
y favorite lawyer quote may be no more relevant than it is today. I was honored with the task of writing a short profile in professionalism just before our lives changed with the onset of COVID-19 or Coronavirus. I scrapped my initial words in favor of this. I no longer want to write about me, I want to write about you. I have practiced law over 45 years, and this last few weeks has been the most challenging time. It is also the best time. We are all together…a brotherhood/sisterhood of lawyers who only want the best for each other and our clients. My mediations are now on video conferencing or the oldfashioned and never failing telephone. My arbitrations are using video for hearings, depositions, and conferences. I had a hearing on the very morning that I write this, and I was so overwhelmed with admiration and love, yes, love for the lawyers. They were collegial and kind and flexible. We talked of how we would get the depositions needed, the medical exam, and document discovery when businesses are closed, restrictions imposed and employees disbursed. The tone was friendly, kind, understanding, and yet each of the lawyers was an advocate for the needs of his client. Yes, you cannot see what we build, but we build every single day. We are the stewards of the rules and servants to our vital and living Constitution. The manner in which we treat each other, the way we perform our mission defines us. I have observed lawyers for many years and never have I been more proud to be one. Brothers and sisters in law, stay strong and stay true to our mission, continue to take up the burdens of others, and in the end, the structures we build will far outlive any of those made of stone or steel.
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LEGAL TRENDS
COVID-19: Force Majeure to the Rescue? By Russell Lewis, Jonathan Havens, and Cornelius Sweers
W
The Houston Lawyer
hile businesses are battling the coronavirus 2019 disease (COVID-19)—the most challenging epidemic the world has faced since the Spanish Flu outbreak that occurred after World War I—their contractual obligations do not disappear. Force majeure may, however, excuse those obligations. But as discussed below, force majeure may be a limited potential solution, rather than a panacea.
A brief overview of force majeure Force majeure generally refers to the excusing of performance under contracts because of either “acts of God” (e.g., hurricanes) or human events beyond a party’s control (i.e., wars). In the United States, force majeure can be asserted either as an affirmative defense to breach of contract, or by a preemptive declaratory judgment action. Most U.S. jurisdictions, including Texas, look first to the language of the force majeure clause and only use common law rules to “fill in the gaps” where the contract is silent.1 However, some U.S. jurisdictions (notably New York and California) will typically read additional common law requirements into force majeure clauses; for example, the event giving rise to the force majeure claim must be “unforeseeable” or “beyond the reasonable control” of the party.2 While 40
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law impossibility6 defense rather than force majeure clauses vary from short force majeure.7 So, the few cases addressboilerplate to full-page bespoke proviing force majeure in the context of episions, clauses typically include: demics all concern epidemics in domes• a laundry list of events which may ticated animals (such as avian flu, swine give rise to force majeure (someflu, or similar diseases). times expressly including epidemFor instance, in Rembrandt Enterprises, ics); the court reasoned that a force majeure • a “catch-all” provision for other clause in a contract for events “beyond the an egg producer to purreasonable control” chase an industrial egg of the party asserting dryer would not apply, force majeure; Force majeure as the producer’s per• a requirement that the generally refers to formance (paying cash party claiming force majeure give notice to the excusing of for the dryer) was not prevented by the 2015 the counterparty; and performance under avian flu outbreak that • a requirement that the contracts because of caused the purchaser to party claiming force majeure uses reasoneither ‘acts of God’ (e.g., eliminate over a million able diligence to perhurricanes) or human chickens and cut egg production by 50 perform despite the force events beyond a party’s cent.8 Likewise, in Macmajeure event.3 control (i.e., wars). In romex SRL, the SouthBut even if an event is expressly listed in the force the United States, force ern District of New majeure clause, to successmajeure can be assert- York confirmed an arbitration award rejecting fully claim force majeure, ed either as an affirmaa force majeure claim in a party typically must be tive defense to breach a contract for the sale of prevented from performing its obligations by the of contract, or by a chicken to a Romanian 4 event. In other words, preemptive declaratory company, when the Romanian government force majeure is not a “get judgment action.” imposed an import ban out of jail free” card in on chicken based on an tough economic times. U.S. avian flu outbreak (in courts typically hold that chickens, not people).9 In rejecting the economic hardship standing alone is inseller’s force majeure defense, the arbisufficient to excuse performance under a trator pointed to the fact that the U.C.C. force majeure clause.5 allows for commercially reasonable alternatives for performance, and that the Precedent of force majeure in past buyer had proposed the seller ship the outbreaks and epidemics chicken to a nearby country unaffected Despite the history of the Spanish Flu, by the import ban. These few cases adwe could find no reported cases from dressing force majeure and epidemics any U.S. jurisdiction that addressed force illustrate that, even in the face of an epimajeure in the context of an epidemic, demic such as COVID-19, parties must pandemic, or disease outbreak in the hualso satisfy the other elements of their man population. Instead, caselaw from force majeure clauses to secure relief.10 the time of the Spanish Flu focused on While not directly relevant to its force whether parties were excused from conmajeure analysis, the court in Rembrandt tractual performance using the common
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LEGAL TRENDS
Enterprises noted that the egg producer “declared a force majeure to its buyers and began distributing eggs and egg products on a pro rata basis.”11 The court also noted that the egg producer in Rembrandt Enterprises “was largely compensated for the damages from the avian flu outbreak by insurance and government payments.”12 Analysis: considerations for assessing COVID-19 force majeure issues In the limited caselaw applying force majeure clauses to epidemics, courts appear to apply force majeure clauses narrowly. Where COVID-19 has a direct effect on a party’s performance, force majeure may excuse performance (depending on the specific terms, including whether epidemics are specifically included), such as the egg producer’s successful declaration of force majeure to its egg buyers. In contrast, where COVID-19 affects issues secondary to performance, such as impairing a party’s ability to pay, it is possible that force majeure will not excuse performance. Caselaw also suggests that courts analyzing force majeure clauses may also consider other factors related to a party’s ability to perform its contractual obligations during an epidemic like COVID-19. A business may have insurance policies that provide coverage for losses due to an epidemic like COVID-19. Likewise, the government may support businesses impacted by COVID-19. However, unlike the situations in cases addressing animal epidemics, governments have taken actions in response to the COVID-19 pandemic that we have not seen since the Spanish Flu, such as: imposing shelter-in-place orders; prohibiting entire categories of businesses (such as bars and restaurants) from being open to the public; and issuing construction moratoriums, emergency declarations, and the like. For example, if a city has issued a construction moratorium, general contractors and subcon-
tractors may have arguments supporting force majeure claims and extensions of time under their contracts. As governments take increasingly aggressive steps to slow the spread of COVID-19, we expect many businesses will be prevented from performing their contractual obligations in one way or another.13 In summary, depending on the specific language of the force majeure clause, failure to perform a contractual obligation due to COVID-19 may be excused. But a party should be prepared to prove how COVID-19 prevented performance and that there were no other reasonable alternatives to performance. A party should also be ready to prove that it used due diligence to overcome the effects of COVID-19. Russell Lewis is a partner and department chair of litigation for the Houston office of Baker Botts, LLP where he advises clients on complex commercial cases, crisis response, class actions, and government investigations. Jonathan Havens is a senior associate in the Houston office of Baker Botts, LLP. He advises clients on a broad range of energy and complex business matters, including force majeure claims. Cornelius Sweers is an energy litigation and construction associate in the Houston office of Baker Botts, LLP; He advises clients on a broad range of energy, construction, and general commercial matters, including force majeure claims. Endnotes
1. E.g., TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176, 181 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). 2. See, e.g., Watson Labs. Inc. v. Rhone-Poulenc Roher, Inc., 178 F. Supp. 2d 1099, 1110 (C.D. Cal. 2001) (under California common law, courts read an unforeseeability requirement into force majeure clauses); Goldstein v. Orensanz Events LLC, 146 A.D.3d 492, 493 (N.Y. App. Div. [1st Dept.] 2017) (A force majeure clause “must be interpreted as if it included an express requirement of unforeseeability or lack of control.”). 3. See, e.g., TEC Olmos, LLC, 555 S.W.3d at 179. 4. See, e.g., Sherwin Alumina L.P. v. Aluchem, Inc., 512 F. Supp. 2d 957, 967 (S.D. Tex. 2007) (finding that in order for the force majeure clause to excuse performance, a party must not be able to produce the
product at all or within the time specified in the contract). 5. See Valero Transmission Co. v. Mitchell Energy Corp., 743 S.W.2d 658, 663 (Tex. App—Houston [1st Dist.] 1987, no writ) (“An economic downturn in the market for a product is not such an unforeseeable occurrence that would justify application of the force majeure provision, and a contractual obligation cannot be avoided simply because performance has become more economically burdensome than a party anticipated.”); U.S. v. Panhandle E. Corp., 693 F. Supp. 88, 96 (D. Del. 1988) (noting that “American courts routinely refuse to excuse performance” because of adverse economic conditions); Route 6 Outparcels v. Ruby Tuesday, Inc., 910 N.Y.S.2d 408, 2010 WL 1945738 (N.Y. Sup. Ct. May 12, 2010) (unreported) (granting summary judgment on defendant’s defense that recession was a force majeure event because recession was foreseeable and did not prevent performance); OWBR LLC v. Clear Channel Commc’ns, 266 F. Supp. 2d 1214, 1223 (D. Haw. 2003) (rejecting force majeure claim based on post-September 11 travel disruption and economic downturn, finding that “nonperformance dictated by economic hardship is not enough” to be excused under a force majeure provision). 6. The impossibility defense was focused on an “act of God” and so was narrower than a typical force majeure event, which can include human events beyond a party’s control. 7. Several cases have analyzed force majeure’s common law precursor, impossibility, in the context of pandemics, but the cases are of limited applicability because the holdings were based on policy reasons, not contractual language. Compare Phelps v. Sch. Dist. No. 109, Wayne County, Ill., 221 Ill. App. 500, 503 (Ill. App. Ct. 1921) (holding that a teacher was entitled to her monthly salary of $50 per month even though the “school was closed because of the influenza epidemic” because the teacher was ready, willing, and able to teach), with Sandry v. Brooklyn Sch. Dist. No. 78 of Williams Cty., 182 N.W. 689, 690 (N. D. 1921) (holding that a bus driver was not entitled to his salary while the school was closed because of the epidemic of influenza despite being ready, willing, and able to drive). 8. See Rembrandt Enters., Inc. v. Dahmes Stainless, Inc., NO. C15-4248-LTS, 2017 WL 3929308, at *1–3, *13 (N.D. Iowa, Sep. 7, 2017). 9. See Macromex SRL v. Globex Int’l, Inc., No. 08 Civ. 114(SAS), 2008 WL 1752530 (S.D.N.Y. Apr. 16, 2008), aff’d 330 F. App’x 241 (2d. Cir. 2009). 10. See id. (confirming arbitral award finding performance in contract for sale of chicken not excused by Romanian government’s import ban on chicken imposed in response to avian flu outbreak when substitute performance was available and suggested by the buyer); SNB Farms, Inc. v. Swift & Co., C012077, C01-2078, C01-2080, 2003 WL 22232881 (N.D. Iowa Feb. 7, 2003) (while it was undisputed that outbreak of Porcine Reproductive and Respiratory Syndrome, which led to hog production problems, qualified as force majeure event under hog production contract, the court found a fact issue on whether hog producer provided proper notice of the force majeure event). 11. See Rembrandt Enters., 2017 WL 3929308, at *1–3. 12. Id. 13. The analysis in this article discusses contracts between and among private parties. Force majeure issues also arise as to agreements with administrative agencies of federal, state, and local governments. Those agreements may present unique force majeure issues not addressed above.
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LEGAL TRENDS
COVID-19 and GovernmentIssued Quarantine Directives
P
The Houston Lawyer
By Anietie Akpan
ublic health emergency law is the unique and ever-evolving jurisprudence that governs responses to and management of man-made emergencies (e.g., the Deepwater Horizon oil rig explosion), natural disasters (e.g., Tropical Storm Imelda) and infectious diseases (e.g., COVID-19 pandemic).1 With the rapid global outbreak of COVID-19, public health emergency law affords our government at the national, state, and local level the authority to enforce control measures to mitigate the disease’s spread and transmission. This has been demonstrated most prevalently and notably with quarantine directives. Over the past several weeks, governments have imposed quarantines on an unprecedented scale: the federal government has enforced travel bans from people traveling from highly-affected countries such as China and Italy, and local and state governments have imposed quarantines or have directed individuals to “self-quarantine.” Although there is no broad definition of “quarantine” in Texas statutory law,2 in public health practice, “quarantine” generally refers to the separation of persons who have been exposed to an infectious or communicable disease.3 The authority to implement quarantines is a well-established exercise of state police 42
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tines however, an LHA is responsible for: (1) establishing, maintaining, and enforcing quarantine in the LHA’s jurisdiction; (2) aiding the State with local quarantine, Local Authority to Administer inspection, and disease prevention statisQuarantines tics; (3) providing sanitation in the LHA’s On March 11, 2020, Mayor Sylvester jurisdiction; (4) reporting presence of Turner and County Judge Lina Hidalgo contagious and infecplaced the City of Houstious epidemic diseases ton and Harris County, rein the LHA’s jurisdicspectively, under an emertion to the State; and (5) gency health declaration Over the past aiding the State in the in an effort to control the spread of COVID-19, and several weeks, enforcement of quaranand sanitation subsequently, on March 24, governments tine rules 10 laws. 2020, they issued a more have imposed Dr. David Persse restrictive “Stay-at-Home” quarantines on an serves as the LHA for Order, similar to “Shelterin-Place” orders that other unprecedented the Houston Health 5 Department.11 As Houscounties have issued. The scale...” ton’s LHA, Dr. Persse Texas Government Code has the supervisory affords both Mayor Turner control over the administration of comand Judge Hidalgo the authority to make municable disease control measures these declarations, which subsequently within Houston’s jurisdiction (unless activates the Harris County emergency preempted by the State of Texas).12 Durmanagement plans; this authorizes the ing this COVID-19 pandemic, Dr. Persse’s furnishing of aid, resources, and assis6 advice regarding quarantines has genertance needed to combat the coronavirus. ally been for persons to self-quarantine if Although both leaders have encouraged exhibiting mild symptoms.13 However, as Houstonians—particularly those who an LHA, Dr. Persse does have authority have recently traveled—to self-quaranto impose more restrictive and stringent tine as an aspect of their emergency re7 quarantine directives if needed. sponse plans, the legal authority to impose quarantines and other communicaJudicial Authority to Enforce Quarantines ble disease control measures is provided The role of courts during a public health to Local Health Authorities. emergency, specifically within the disA Local Health Authority, or “LHA,” is course of quarantines, is also yielding a physician appointed under the provinovel concerns as we navigate through sions of the Local Public Health Reorgathe COVID-19 crisis. If those subject to nization Act to administer state and local control measures ordered by an LHA vollaws related to public health within the untarily comply with the LHA’s orders, appointing body’s jurisdiction. An LHA then the role of the courts is minimal.14 must be legally qualified to practice medHowever, when an individual refuses to icine in Texas, be a resident of Texas, and comply with said control measures, the take and subscribe to an official oath.8 courts must become involved by way of An LHA serves a term of two years and adjudicating cases regarding that individmay be appointed to successive terms.9 ual’s non-compliance, and subsequently LHAs have a number of duties prescribed issuing a court order quarantining said by the Texas Department of State Health individual to prevent transmission of a Services. Specifically related to quaranpower rooted in Texas’s statutory duty to protect and preserve public health.4
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communicable disease.15 The impetus of these hearings is initiated by a municipal, county, or district attorney filing a sworn written application for an Order for the Management of a Person with a Communicable Disease (“OMPCD”), at the request of an LHA.16 The application must include a medical evaluation, as well as a copy of the written orders from the LHA made under Section 81.083 of the Texas Health and Safety Code.17 Additionally, the application must be filed in the county in which the person resides, is found, or is receiving court-ordered health services.18 Although there have not been any OMPCD court hearings in Texas specifically related to COVID-19 at the time this article was written,19 that does not mean that judicial leaders have not been proactive in preparing for the possibility of the rogue COVID-19 patient who refuses to follow medical orders. In early March, Texas Supreme Court Chief Justice Nathan Hecht reached out to the State’s presiding judges to select a group of “on call” jurists to issue emergency coronavirusrelated quarantine orders.20 Thirty-one judges, including judges from Harris, Fort Bend, and Montgomery County, have been selected to oversee cases related to health emergencies, including after court hours and on weekends.21 As the number of confirmed COVID-19 cases increases, the sensitive balance of the government’s responsibility to protect public health and protect individual rights to autonomy will likely become more challenging.22 Issuing quarantines, and seeking judicial enforcement of the same as above-described, is usually the first response against infectious diseases. For some Houstonians, these types of directives may seem superfluous. We must remember, however, that these quarantine instructions are not administered arbitrarily. Rather, they reflect our government’s constitutional responsibility to preserve the betterment of the health of
its inhabitants. It is our responsibility to follow such orders for the betterment of the health of our loved ones, our neighbors, and ourselves. For recent developments and news on COVID-19, please refer to the following resources: Houston Health Department: @HoustonHealth (Twitter) Harris County Public Health: @hcphtx (Twitter) Houston Bar Association: hba.org/updates University of Houston Law Center, Health Law & Policy Institute: @HLPI_UHLC (Twitter) Centers for Disease and Control Prevention: @CDCgov (Twitter) Reporter Zach Despart: @zachdespart (Twitter) Anietie Akpan is in-house counsel for the Metropolitan Transit Authority of Harris County (METRO). She is an associate editor for The Houston Lawyer. Endnotes
1. U.S. EQUAL EMP’T COMM’N, h UNIV. OF HOUS. LAW CTR. HEALTH LAW & POLICY INST., CONTROL MEASURES AND PUBLIC HEALTH EMERGENCIES, A TEXAS BENCH BOOK 9 (2020), https://www.law. uh.edu/healthlaw/HLPIBenchBook.pdf. 2. See TEX. HEALTH & SAFETY CODE ANN. § 826.002(9); TEX. ADMIN. CODE ANN. §169.22(25) (defining “quarantine” as related to infected animals). 3. “Quarantine” and “isolation” are often – in error – used interchangeably. Although both are used as a tool to protect the public by preventing exposure to contagious diseases, it is widely accepted in the public health space that “quarantine” is used to separate and restrict the movement of well persons who may have been exposed to a contagious disease. “Isolation,” on the other hand, refers to the separation and restricted movement of ill persons who have a contagious disease in order to prevent transmission to others. This usually occurs in a hospital setting, whereas quarantines may take place at home. See Quarantine and Isolation, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc. gov/quarantine/index.html (last visited Mar. 24, 2020), for further discussion on this subject. 4. TEX. HEALTH & SAFETY CODE ANN. § 81.002; see Jacobson v. Massachusetts, 197 U.S. 11, 19, 38 (1905) (noting that “[t]he safety and health of the people... are matters that do not ordinarily concern the National Govern-
ment[,]” and further recognizing a State’s “unquestioned power to preserve and protect the public health”); see also Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380 (1902); Zucht v. King, 260 U.S. 174 (1922). 5. Press Release, Office of the Mayor, Mayor Sylvester Turner and Harris County Judge Lina Hidalgo Declare Public Health Emergency Due to COVID-19 (Mar. 11, 2020); Zach Despart, Hidalgo Orders Stay-at-Home for Harris County, Closing Most Businesses Through April 3, HOUS. CHRON. (March 24, 2020), available at www. houstonchronicle.com/news/houston-texas/houston/ article/harris-county-shelter-in-place-stay-at-homeorder-15153071.php; see also Dall. Cty., Amended Order of County Judge Clay Jenkins (amended Mar. 22, 2020), www.dallascounty.org/Assets/uploads/docs/judgejenkins/covid-19/03232020-AmendedOrder.pdf. 6. TEX. GOV. CODE ANN. § 418.108(d). 7. Sally Mamdooh, Mayor Turner Asks Domestic and International Travelers to Self-Quarantine, CLICK2HOUSTON (Mar. 15, 2020, 10:18 p.m.), www.click2houston.com/ news/local/2020/03/16/mayor-turner-asking-travelersboth-domestic-and-international-to-self-quarantine/. 8. TEX. HEALTH & SAFETY CODE ANN. § 120.022. 9. Id. § 121.023. 10. Id. § 121.024. 11. Houston Health Department, About Us, CITY OF HOUSTON, https://www.houstontx.gov/health/aboutus.html. 12. TEX. HEALTH & SAFETY CODE ANN. § 81.082(a). 13. Houston’s Free COVID-19 Testing Site Expands to See All Ages, ABC13 (Mar. 21, 2020, 7:59 p.m.), https://abc13. com/6033809/. 14. Supra note 1, at 23. 15. See TEX. HEALTH & SAFETY CODE ANN. § 81.169. 16. Id. § 81.151(a)–(e). 17. Id. § 81.083(b). 18. Id. § 81.151(b). 19. As of March 24, 2020. 20. Chuck Lindell, Texas Judges Tapped to Enforce, If Needed, Coronavirus Quarantines, AUSTIN AM. STATESMAN, Mar. 6, 2020, www.statesman.com/news/20200306/ texas-judges-tapped-to-enforce-if-needed-coronavirusquarantines; Angela Morris, Forced Coronavirus Quarantines? Texas Appoints Judges for Emergency Hearings, TEX. LAW. (Mar. 5, 2020, 3:12 p.m.), www.law.com/texaslawyer/2020/03/05/forced-coronavirus-quarantines-texasappoints-judges-for-emergency-hearings/. 21. TEX. SUP. CT., JUDICIAL ASSIGNMENTS FOR PROCEEDINGS UNDER TEX. HEALTH AND SAFETY CODE CH. 81 (Mar. 6, 2020), available at https://www. txcourts.gov/media/1446000/209032.pdf. 22. Under the Fifth and Fourteenth Amendments’ rights of Due Process and Equal Protection, any regulations imposed by a state—including health regulations— cannot be unreasonably arbitrary or oppressive. See Liggett Co. v. Baldridge, 278 U.S. 105, 113 (1928); Treigle v. Acme Homestead Ass’n, 297 U.S. 189, 190 (1936). The recent rise of quarantine and isolation orders have recharged the discourse on weighing constitutional liberties against public good during health emergencies. E.g., David Welna, Self-Isolation Orders Pit Civil Liberties Against Public Good in Coronavirus Pandemic, NPR (Mar. 17, 2020, 5:44 p.m.), https://www.npr.org/2020/03/17/817178765/ self-isolation-orders-pit-civil-liberties-against-publicgood-in-coronavirus-pan; Scott Bomboy, Constitutional Powers and Issues During a Quarantine Situation, NAT’L CONSTITUTION CTR. (Mar. 13, 2020), https://constitutioncenter.org/blog/constitutional-powers-and-issuesduring-a-quarantine-situation.
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Office Space HOUSTON/GREENWAY PLAZA AREA – 3555 Timmons Three Solo Estate Planning attorneys seeking a transactional attorney for suite mate. Beautiful, quiet, elegant, unobstructed views from a triple window office plus staff office available. Amenities include conference rooms, reception area, copier/scanner/ printer, kitchenette, high-speed internet, free parking for clients. Elevator lobby exposure. Immediate occupancy. Easy commute to West U, Bellaire and River Oaks @ $2600/month. Please call Michael Ramirez at 713-621-7057 or email tfrierson@friersonlaw.com Heights area law office sharing. 1 large office (approx 15x15) available August 1. Modern building with 24 hour security on North Loop near Shepherd with downtown views. Beautiful conference room with 60” TV/ Whiteboard, color copier/fax/ scanner available on network, internet, full featured VOIP phone system, Wi-Fi and wired internet, attached covered parking, room for your files. Kitchen in suite with microwave/pizza oven, coffee, soft drinks, water and snacks available. Contact Mike or Teri at 713-529-2020 for more information.
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Find and Rent the Ideal LawSpace for Your Practice w w w.L a w S p a c e M at c h .c om connects lawyers with offices and offices with lawyers. Exclusively for lawyers. Created by lawyers who share space. Search for offices in existing law firms in 40,000 zip codes for free. Find empty law offices for rent in law firms. HEIGHTS AREA I-10 at Shepherd LAW OFFICE SHARING One office space (9’ x 14’) and two cubicle spaces available to sublet. Month to Month term. Great location. Beautiful first floor space. 5151 Katy Freeway, Houston, TX 77007. Free parking, free valet visitor parking, 44
March/April 2020
One large and two small conference rooms, file cabinets, reception area, receptionist, kitchen, phones, internet, Wi-Fi. Space includes two experienced family law attorneys (referrals and contract work possible) and one plaintiff’s personal injury attorney. Contact Frank at 713-443-5752. HOUSTON – ONE GREENWAY PLAZA, SUITE 100 Class A space available for sublease. Great Multi-Lawyer/Corporate/Professional Suite - 1st floor, 15 ft+ ceilings, garage/ covered parking, digital phone/ fax/internet/cable system, 2 conference rooms, front fulltime receptionist, kitchen area, walk to restaurants/gym. Available now: 1 large window office; Also Available: virtual office option; Coming in FALL 2020: 2 window offices; 2 furnished secretarial spaces. Call Lawrence at 713-650-1222 or email: legal@texas.net HOUSTON/ENERGY CORRIDOR I-10 & 1155 Dairy Ashford. Established law firm with estate/trust planning, probate/ trust administration, elder law and business practice seeks to lease large 12x15 window office in friendly, beautiful office suite, with reception area. Office easily accommodates credenza, full size desk, two client chairs, two 5-drawer lateral files. Telephone, WiFi, high speed Internet, copiers/scanners, fax. Kitchen with microwave and coffee. Notary available. Access to conference rooms on scheduled basis. Free covered parking for attorney and clients. Possible overflow work subject to attorney availability, skill and experience. $895/month, quarterly term. Steve 713-553-0732 (cell) steve@mendellawfirm.com.
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