HBA Sections: Learning, Leading, and Liaising Since 1976 69th Harvest Celebration Raises Nearly $780,000 for Pro Bono Legal Services
lawyer
THE HOUSTON
inside...
Volume 56 – Number 3
November/December 2018
HBA Sections
Alternative Dispute Resolution
Criminal Law & Procedure
Law Practice Management
Animal Law
Litigation
Antitrust & Trade Regulation
Entertainment and Sports Law
Mergers and Acquisitions
Appellate Practice
Environmental Law
Oil, Gas & Mineral Law
Bankruptcy
Family Law
Probate, Trusts & Estates
Commercial & Consumer Law
Federal Practice
Real Estate
Health Law
Construction Law
International Law
Securities Litigation & Arbitration
Corporate Counsel
Juvenile Law
Social Security
Labor & Employment Law
Taxation
Building champions. NAMED #1 BEST OF THE DECADE by PreLaw Magazine for Best Moot Court. NATIONAL ADVOCACY WINNER: 131 TIMES. No other law school has won half as many. More ABA NATIONAL APPELLATE ADVOCACY CHAMPIONSHIPS than any other law school in the U.S. More Scribes BEST BRIEF LEGAL WRITING AWARDS than any other law school in the U.S. 17 FIRST-PLACE NATIONAL AND INTERNATIONAL ADR COMPETITIONS, ranking as a top law school for ADR.
Hire a South Texas grad:
stcl.edu/hire
1303 SAN JACINTO • HOUSTON, TEXAS • 713-659-8040
Thank you, Houston legal community, for helping low-income Houstonians in need. $30,000 Baker Botts L.L.P. Bracewell LLP Eversheds Sutherland (US) LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP Williams Kherkher Hart Boundas, LLP $10,000 Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Chevron Corporation Exxon Mobil Corporation Gibson, Dunn & Crutcher LLP Hicks Thomas LLP Juvenile Law Section King & Spalding LLP Litigation Section LyondellBasell Industries Morgan, Lewis & Bockius LLP Phillips 66 Company Winston & Strawn LLP $7,500 Beck Redden LLP
$4,000 Nikki & Benny Agosto, Jr. $3,500 Labor & Employment Law Section $3,000 Hon. Jane N. Bland & Doug Bland Debbie & Tom Godbold Kay Sim $2,500 Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz Jim Adler & Associates, P.C. Amegy Bank Baker Wotring LLP Berg & Androphy Bissinger Oshman & Williams, LLP BMC Software Burford Perry LLP CenterPoint Energy, Inc. Christian Smith & Jewell Clark Hill Strasburger Clark, Love & Hutson, GP Cokinos | Young Dobrowski, Larkin & Johnson LLP Donato, Minx, Brown & Pool, P.C. Duane Morris LLP Energy Transfer Partners L.P. EOG Resources, Inc. Esquire Deposition Solutions Federal Practice Section Fisher, Boyd, Johnson & Huguenard, L.L.P. Fogler Brar Ford O’Neil & Gray, LLP Foley Gardere Frost Bank FTI Consulting Goldman Sachs – Jeff Paine / Brandon Holcomb Gray Reed & McGraw, P.C. Hagans Montgomery & Rustay, P.C.
Rusty Hardin & Associates, LLP Hirsch & Westheimer Hogan Lovells US LLP Houston Lawyer Referral Service, Inc. Jackson Walker LLP Jenkins & Kamin LLP Jones Walker LLP Liskow & Lewis Littler Mendelson P.C. Mayer Brown LLP McGinnis Lochridge & Kilgore LLP McGuireWoods LLP Munsch Hardt Kopf & Harr, PC Olson & Olson LLP Plains All American Pipeline, L.P. Reynolds Frizzell LLP Schiffer Hicks & Johnson PLLC Service Corporation International The Law Offices of Hilda Sibrian Sidley Austin LLP Smyser Kaplan & Veselka, L.L.P. South Texas College of Law Houston Taylor, Book, Allen & Morris, L.L.P. Tindall England, P.C. Vorys, Sater, Seymour and Pease LLP Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP Winstead PC $2,000 The Buck Family Fund Oil, Gas & Mineral Law Section $1,600 Mergers & Acquisitions Section $1,500 Appellate Practice Section Cisselon Nichols Hurd & Jim Hurd Nick Oweyssi $1,000 Wafa Abdin Bankruptcy Section Susan Bickley & Robert Scott BoyarMiller Lauren & Blake Brogdon Keri D. Brown Hon. Brett Busby & Erin Busby Dawn & Charles A. “Chip” Casey Commercial & Consumer Law Section
Construction Law Section Corporate Counsel Section Jacquelyn & Collin Cox Criminal Law & Procedure Section Wendy & Alistair Dawson Robert H. Etnyre, Jr. Kyle Ferachi Lynn & Stewart Gagnon Tammie & David Harrell Lauren & Warren Harris Susan & Jim S. Hart Jennifer A. & Greg Hasley Hillary H. Holmes & Matthew Archer The Law Office of Daniel D. Horowitz, III, PC Houston Bar Association Auxiliary Charitable Fund, Inc. Laura & Jeff Kaplan Dana & Neil D. Kelly Kelly, Durham & Pittard, L.L.P. Elizabeth & Bill Kroger Christine & Craig LaFollette Daniella Landers Hon. Erin Lunceford & Mike Lunceford MacIntyre McCulloch & Stanfield, L.L.P. Ginnie & Tim McConn Jamila & Kwabena Mensah Audrey Momanaee & Jeff Levett Jennifer & Greg Moore Nathan Sommers Jacobs Lan T. Nguyen & Bruce N. Shortt Taunya & Robert Painter Annsley & Chris Popov Susan & Barrett Reasoner Georgia & John F. Rhem Anne & Alex Roberts Debbie & Jason Ryan Hon. Frank B. Rynd Sandy & Travis Sales Marsha & Lonnie Schooler Denise & John Scofield Travis Torrence Sandy Brown Ulmer & Greg Ulmer Wright Close & Barger, LLP Ytterberg Deery Knull LLP $999 and below Cecily & Rick Burleson Bonnie & Otway B. Denny, Jr. Health Law Section Animal Law Section
R AS S BA O C IATION
USTO HO N
$5,000 Alternative Dispute Resolution Section Blank Rome LLP Chamberlain, Hrdlicka, White, Williams & Aughtry Dentons US LLP Family Law Section Gibbs & Bruns LLP Greenberg Traurig LLP Halliburton Haynes and Boone, LLP Holmes Diggs & Sadler Innovative Legal Solutions, Inc. Jones Day Kellogg, Brown & Root Kirkland & Ellis LLP KoonsFuller, P.C. McKool Smith Orrick, Herrington & Sutcliffe LLP Quinn Emanuel Urquhart & Sullivan, LLP
Real Estate Law Section Shook, Hardy & Bacon L.L.P. Susman Godfrey LLP Thompson & Knight Foundation Weil, Gotshal & Manges LLP Willkie Farr & Gallagher LLP Yetter Coleman LLP
18 7 0
For more information, visit www.hba.org.
contents November/December 2018
Volume 56 Number 3
10
20
FEATURES Sections: 10 HBA Learning, Leading, and Liaising Since 1976
By Anna Archer
Appellate Practice Section 20 HBA State’s Largest Local Appellate Bar
By Mark Trachtenberg
Corporate Counsel Section Nobody Knew that Corporate Law Could be So Complicated By Eric L. Muñoz
30
Health Law Section Assisting Lawyers in One of Houston’s Top Industries By Chris DeMeo
Federal Practice Section Drawing on Judicial Wisdom
By Nelson S. Ebaugh, Raffi Melkonian and Natasha Breaux
Labor and Employment Section Strengthening Professionalism By Sidd Rao
Law Practice Management Section How to Balance Firm Resources with Pro Bono and Low Bono Work By Ruby L. Powers
Oil, Gas and Mineral Law Section As Diverse as Houston By Rachel Reese
Probate, Trusts & Estates Section Adoption of the Uniform Partition of Heirs’ Property Act By Sara Madole
Social Security Section Section Covers More than Retirement Program By James Passamano
Harvest Celebration Raises 30 69th Nearly $780,000 for Pro Bono The Houston Lawyer
Legal Services
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, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2017. All rights reserved.
2
November/December 2018
thehoustonlawyer.com
contents November/December 2018
Volume 56 Number 3
32
33
departments Message 6 President’s The Section Advantage By Warren W. Harris
the Editor 8 From The HBA Sections:
Strengthening Our Community By Polly Graham Fohn
THE RECORD 32 OFF Wise Cracking About Texas By Justice Jeff Brown
34
38
in professionalism 33 ATheProfile Hon. J. Brett Busby
Justice, Fourteenth Court of Appeals
Spotlight 34 Committee Promoting Literacy
One Book at a Time
By Tara L. Grundemeier Trends 36 Legal 85th Texas Legislature Makes it More
Difficult to Seal Juvenile Records
By Katya Dow and Christina Beeler
The Supreme Court Upholds the Viability of Waiver of Workers Compensation Subrogation Rights By The Hon. Scott Link
14th Court of Appeals Finds Scheduling Contractor to Have Caused Explosion By Trey Holm
ReviewS 38 Media A Lawyer’s Guide to Estate Planning:
Fundamentals for the Legal Practitioner, Fourth Edition Reviewed by David T. Lopez
Advising the Small Business: Forms and Advice for the Legal Practitioner Reviewed by Marcel de Chermont
From the Trenches II: Mastering the Art of Preparing Witnesses
The Houston Lawyer
Reviewed by Avi Moshenberg
40 Litigation MarketPlace 4
November/December 2018
thehoustonlawyer.com
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
Holm | Bambace LLP
Shellist | Lazarz | Slobin LLP
Firms of 50-100 Attorneys
Abraham, Watkins, Nichols, Sorrels,
Horne Rota Moos LLP
Shipley Snell Montgomery LLP
Akin Gump Strauss Hauer & Feld LLP
Agosto and Aziz
Husch Blackwell LLP
Short Carter Morris, LLP
BakerHostetler LLP
Adair Myers Graves Stevenson PLLC
Irelan McDaniel, PLLC
Smith Murdaugh Little & Bonham LLP
Greenberg Traurig, LLP
Ajamie LLP
Jackson Lewis P.C.
Sponsel Miller Greenberg PLLC
Haynes and Boone, LLP
Arnold & Itkin LLP
Jenkins & Kamin PC
Sprott Newsom Quattlebaum Messenger
Jackson Walker L.L.P.
Baker, Donelson, Bearman, Caldwell
Johnson DeLuca Kurisky & Gould, P.C.
Strong Pipkin Bissell & Ledyard LLP
Morgan, Lewis & Bockius LLP
& Berkowitz, PC
Johnson Trent & Taylor LLP
Stuart PC
Susman Godfrey LLP
Baker Williams Matthiesen LLP
Jordan, Lynch & Cancienne PLLC
Taunton Snyder & Parish
Thompson & Knight LLP
Baker Wotring LLP
Kean | Miller LLP
Taylor, Book, Allen and Morris, LLP
Winstead PC
The Bale Law Firm, PLLC
Kelly, Sutter & Kendrick, P.C.
Thompson & Horton LLP
Barrett Daffin Frappier Turner & Engel, LLP
Kilpatrick Townsend & Stockton LLP
Tindall England PC
Firms of 100+ Attorneys
Berg & Androphy
KoonsFuller, PC
Tracey & Fox Law Firm
Baker Botts L.L.P.
Bradley Arant Boult Cummings LLP
Kroger | Burrus
Ware, Jackson, Lee, O’Neill, Smith
Bracewell LLP
Buck Keenan LLP
Law Feehan Adams LLP
& Barrow, LLP
Hunton Andrews Kurth LLP
Bush & Ramirez, PLLC
LeClairRyan
Watt Thompson Frank & Carver LLP
Locke Lord LLP
Cage Hill & Niehaus LLP
Linebarger Goggan Blair & Sampson, LLP
West Mermis, PLLC
Norton Rose Fulbright US LLP
Campbell & Riggs, P.C.
Lorance & Thompson PC
Weycer Kaplan Pulaski & Zuber PC
Porter Hedges LLP
Christian Smith & Jewell LLP
MacIntyre, McCulloch & Stanfield, LLP
Williams Kherkher Hart Boundas, LLP
Vinson & Elkins LLP
Cozen O’Connor
McGinnis Lochridge
Wilson Cribbs & Goren PC
Crady, Jewett, McCulley & Houren, LLP
McGuireWoods LLP
Wilson, Elser, Moskowitz, Edelman
Corporate Legal Departments
Crinion Davis & Richardson LLP
McKool Smith
& Dicker LLP
Anadarko Petroleum Corporation
De Lange Hudspeth McConnell
MehaffyWeber PC
Wright Abshire, Attorneys, PC
CenterPoint Energy
& Tibbets LLP
Morris Lendais Hollrah & Snowden
Wright Close & Barger, LLP
EOG Resources, Inc.
Dentons US LLP
Nathan Sommers Jacobs PC
Ytterberg Deery Knull LLP
MAXXAM, Inc.
Dobrowski, Larkin & Johnson LLP
Pagel Davis & Hill PC
Zimmerman Axelrad Meyer Stern Wise
Plains All American Pipeline, L.P.
Dow Golub Remels & Gilbreath PLLC
Peckar & Abramson, P.C.
Zukowski, Bresenhan & Piazza L.L.P.
Rice University
Doyle Restrepo Harvin & Robbins LLP
Perdue & Kidd
Ewing & Jones, PLLC
Phelps Dunbar LLP
Firms of 25-49 Attorneys
Fisher & Phillips LLP
Pipkin Ferguson PLLC
Adams and Reese LLP
Law School Faculty
Fizer Beck Webster Bentley & Scroggins
The Potts Law Firm
Ahmad, Zavitsanos, Anaipakos, Alavi
South Texas College of Law Houston
Fogler, Brar, Ford, O’Neil & Gray LLP
Ramey, Chandler, Quinn & Zito, P.C.
& Mensing P.C.
Thurgood Marshall School of Law
Ford + Bergner LLP
Reynolds Frizzell LLP
Andrews Myers, P.C.
University of Houston Law Center
Fowler Rodriguez
Roach & Newton, L.L.P.
Beck Redden LLP
Frank, Elmore, Lievens, Chesney & Turet, L.L.P.
Ross Banks May Cron & Cavin PC
Blank Rome LLP
Government Agencies
Fulkerson Lotz LLP
Royston, Rayzor, Vickery
BoyarMiller
Harris County Attorney’s Office
Fullenweider Wilhite PC
& Williams, L.L.P.
Cokinos | Young
Harris County District Attorney’s Office
Funderburk Funderburk Courtois, LLP
Rusty Hardin & Associates, P.C.
Gibbs & Bruns LLP
Harris County Domestic Relations Office
Galligan & Manning
Rymer, Echols, Slay, Wilkerson
Hogan Lovells US LLP
Metropolitan Transit Authority of
Germer PLLC
& Nelson-Archer PC
Kane Russell Coleman & Logan PC
Harris County Texas
Gibson, Dunn & Crutcher LLP
Schiffer Hicks & Johnson PLLC
Martin Disiere Jefferson & Wisdom
Port of Houston Authority of
Givens & Johnston PLLC
Schirrmeister Diaz-Arrastia Brem LLP
McDowell & Hetherington LLP
Harris County, Texas
Gordon Rees Scully & Mansukhani
Schwartz Page & Harding LLP
Liskow & Lewis
1st Court of Appeals
Hagans Montgomery & Rustay PC
Scott, Clawater & Houston, L.L.P.
Littler Mendelson PC
14th Court of Appeals
Hall Maines Lugrin, P.C.
Shannon Martin Finkelstein Alvarado
Ogletree Deakins Nash Smoak
Henke, Williams & Boll, LLP
& Dunne, P.C.
& Stewart, P.C.
Hirsch & Westheimer PC
Shearman & Sterling LLP
Yetter Coleman LLP
S & B Engineers and Constructors, Ltd.
president’s message By Warren W. Harris
The Section Advantage
Bracewell LLP
W
hen I took office as 2018-2019 HBA presi• Encouraged sections to let our CLE department record dent, one of my goals was to focus on servand post online at least one section seminar during the ing our 26 sections. They are a vital, intebar year, allowing all HBA members to watch it and gral part of our association, with over 8,600 earn free CLE. members. In many ways, We are devoting this special issue of The Sections are like bar associations within Houston Lawyer to our sections, so that all In many ways, our larger association, but focused on a parmembers can learn more about the histoSections are like ticular practice area. HBA members pay adry of HBA sections and how they help our ditional dues, ranging from $20-$45 annumembers develop their practices, network bar associations ally, to be members of sections. The sections with attorneys in their practice areas, and within our larger elect their own officers and council, plan enhance professionalism. I am pleased that their own meetings and CLE events, and the editorial board adopted my suggestion association, participate in charitable giving approved that a Section Spotlight would be a great but focused on by the section. The HBA staff provides adcompanion piece to the longtime Commitministrative support to all the sections by tee Spotlight in each issue, and they have a particular collecting and processing dues, paying inmade that a new feature. voices, providing financial reports, answerI also plan to include the sections in the practice area. ing questions, and assisting in promoting year-end President’s Awards, so we can acactivities, as well as maintaining a web page for each section knowledge those that have done outstanding work throughas part of the HBA website. out the bar year. Strong sections build a strong association, I sought the sections’ input on how the HBA could better and we will continue to support them as an important part serve them and help them accomplish their goals. While of our Bar. we need to continue to enhance our service to sections, I Maybe I am such a big fan of our sections because I have believe we are making good progress. Here are some of the long been active in the sections and am a former chair of the things we have done: Appellate Practice Section, seeing firsthand all of the good • Instituted auto-pay for section dues, as well as HBA work being done. I have benefited greatly from the profesdues, to make it more convenient for those who choose sional training and networking provided by our sections. If to use this renewal option; you are not currently an active section member, I hope you • Enhanced the sections’ web pages to include photos, will join and become active in at least one of our sections. CLE papers and materials, social media feeds, a calenI encourage you to read this issue, peruse the section web dar function, and other information to make the page a pages (www.hba.org/sections) and even place a call or send go-to destination for section members; an email to a section chair or officer to find out how that • Developed an updated calendar of section events that section can help you accomplish you own professional and appears each month in the new digital Houston Bar personal goals. And finally, I’d like to thank our section Bulletin; leaders for their hard work and dedication to our profes• Assisted sections in updating their bylaws, if needed; sion. You are helping us become better lawyers, which in and turn makes us better able to serve our clients.
“
The Houston Lawyer
”
6
November/December 2018
thehoustonlawyer.com
thehoustonlawyer.com
November/December 2018
7
from the editor By Polly Graham Fohn Haynes and Boone LLP
Associate Editors
Anietie Akpan Sinoski & Associates PLLC
Anna M. Archer U.S. District Court
Preston Hutson MehaffyWeber PC
The Houston Lawyer
Taunya Painter Painter Law Firm PLLC
Hon. Jeff Work Manning, Gosda & Arredondo, L.L.P.
8
The HBA Sections:
Strengthening Our Community
T
he American workforce is increasingly isoAppellate Practice; Corporate Counsel; Federal Praclated. More individuals are self-employed tice; Health Law; Labor & Employment Law; Law or working remotely, and they are doing so Practice Management; Oil, Gas & Mineral Law; Profor longer periods of time. Lawyers are not bate, Trusts & Estates; and Social Security. In these exempt from the trend. Even for those who columns, you will find testimonials on the personal work together at firms, the practice and professional benefits of section of law is more likely to be conducted membership, updates on recent develAmong the through email than a phone call or opments in the law, tips on efficient many services face-to-face conversation. This loss law practice management, guidance of community has consequences, from federal judges, proposals for inoffered by the including declining professionalism novative student outreach programs, and job dissatisfaction. ambitious goals to partner with inHouston Bar But there is a remedy. Among the dustry professionals, and much more. Association is many services offered by the HousThe articles are as varied as the subton Bar Association is the chance stantive law sections themselves. the chance for for members to connect through the We hope that these materials will HBA’s 26 substantive law sections. inspire you to participate fully in all members to This issue of The Houston Lawyer is sections that impact your practice. devoted to highlighting the unique Discover for yourself the power that connect through offerings of each section. a regular handshake has to slowly the HBA’ s To kick off the issue, Anna Archer, transform an acquaintance into a colcareer law clerk to the Honorable league, mentor, client or friend. By 26 substantive Gray H. Miller in the U.S. District connecting personally with each othCourt for the Southern District of er in an age where technology makes law sections. Texas, brings us the story of how the it easy to disengage, we can all elevate sections were first formed over 40 years ago. Thenour profession and strengthen the Houston legal HBA President, Tom Arnold, touted the development community. For more information on the sections or of the sections as possibly the most significant reorto join a section online, please visit the HBA website ganization project in the HBA’s history. Archer also at www.hba.org/sections. gives a brief description of the scope of all 26 subA special thanks to guest editors Anna Archer and stantive law sections. Koby Wilbanks for taking the lead in putting togethNext come a series of columns that take an iner this outstanding issue. And, as always, thank you depth look at the work of nine individual sections: for reading The Houston Lawyer.
November/December 2018
“
”
thehoustonlawyer.com
BOARD OF DIRECTORS President
Secretary
President-Elect
Treasurer
First Vice President
Past President
Warren W. Harris
David Harrell
Benny Agosto, Jr.
Bill Kroger
Jennifer A. Hasley
Alistair B. Dawson
Second Vice President
Chris Popov
DIRECTORS (2017-2019)
Collin Cox Hon. Erin Lunceford
Diana Perez Gomez Robert Painter
Daniella Landers Lionel M. Schooler
DIRECTORS (2018-2020) Greg Moore Greg Ulmer
editorial staff Editor in Chief
Polly Fohn Associate Editors
Anna Archer Jeff Oldham Hon. Jeff Work
Preston Hutson Taunya Painter
Anietie Akpan Natasha Breaux Marcel de Chermont Al Harrison Trey Holm Stacey Lafitte Michael A. Lee David Lopez Tim McInturf George Murr Taunya Painter Sara Taheri Tara Taheri
Editorial Board
Brooksie Bonvillain Boutet Kimberly A. Chojnacki Anna DeMaggio Matthew Heberlein Jonathan Jabcuga Kristen Lee Scott Reiter Link Farrah Martinez Avi Moshenberg Marni Otjen Raymond Panneton Joseph Verret Koby Wilbanks
Managing Editor
Tara Shockley
HBA office staff Executive Director
Kay Sim Ashley G. Steininger Education Assistant Christina Treviño Director of Projects Bonnie Simmons Project Assistant Alana Polk Director of Communications Tara Shockley Director of Education
Communications Assistant /Web Manager
Carly Wood
Director of Membership and Technology Services Ron Riojas Membership Assistant Database Assistant Director of Development Receptionist/Resource Assistant Administrative Assistant
Danielle Keith Leo Skelly Diane Cervenka Lucia Valdez Valerie Ramirez
Advertising sales Design & production QUANTUM/SUR
12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher
Leonel E. Mejía
Production Manager
Marta M. Mejía
Advertising
Mary Chavoustie
thehoustonlawyer.com
November/December 2018
9
By Anna Archer
HBA Sections:
Learning, Leading, and Liaising Since 1976 Tom Arnold, left, and John L. McConn were the HBA presidents who supported the creation of HBA Sections and laid the groundwork for them in 1976-1977
10
November/December 2018
thehoustonlawyer.com
The Creation of HBA Sections Over 40 years ago, on October 14, 1976, an update in the Houston Bar Bulletin advised Houston Bar Association (HBA) members that the HBA Board of Directors was considering forming sections. The update asked members to respond via mail whether they favored “this approach to bar organization.” The potential sections were: International Law; Corporate Counsel; Antitrust & Trade Regulation; Corporations, Banking & Business Law; Criminal Law; Family Law; Litigation; Patent Law; Real Estate; Probate & Trust Law; Taxation; Tort & Compensation; General Practice; and Insurance.1 The board discussed the results of the poll at its next meeting, and the board members decided to publish two articles about creating sections in The Houston Lawyer—one in favor of creation and the other opposed.2 However, these articles were never published. Instead, in December 1976, HBA President John L. McConn announced in his “Message from Your President” in The Houston Lawyer that the Section on International Law had been formed and was functioning and that “the members of the new section [were] to be congratulated for their initiative and enthusiasm as they take on new programs and educational responsibilities for their area of the Law.” He noted that a section on Corporate Counsel had been authorized by the board and was in the process of formation and that other “sections w[ould] be formed in the near future... because we believe they will ultimately aid our CLE program and strengthen our organization.”3 In April 1977, the HBA Board determined that sections “shall continue in existence until combined or discontinued by the Board of Directors.” Each section was to adopt bylaws, which had to be submitted to the board for approval. In June 1977, the president of the HBA declared the bylaws of the Family Law Section approved. In July 1977, the bylaws of the following four sections were
approved: Consumer Law, Corporate Counsel, Probate, Trust & Estates, and Tort & Compensation Law. By August 1977, the Board received reports from chairpersons of the Consumer Law Section, Criminal Law Section, Corporate Counsel Section, and International Law Section, all of which had had their first meetings. ADR – Lou Dillard and Marty Wickliff speak on arbitration in workplace disputes at an Alternative In September 1977, Tom Arnold, Dispute Resolution Luncheon. who had since taken over as HBA president, informed members in a “Message from Your President” in The Houston Lawyer that “the present project to get a dozen or so Houston Bar Association sections on various areas of specialized interest... organized and functioning” was “[p]ossibly the most major re-organizational project of the Association’s history.” He noted that Animal Law – The Animal Law Section sponsored “[t]here exist luncheon clubs of family “Lawyers to the Rescue 6,” addressing legal issues lawyers, a local association of criminal facing non-profit animal rescue groups and volunteers. lawyers, a Houston Patent Law Association, etc. These groups prove an interest in, and the need to have, special groups of lawyers with their own organizational vehicle—and it ought to be within and sponsored by the Houston Bar Association.” 4
It meets on the second Tuesday of the month at the South Texas College of Law Houston at 7:30 a.m., and participants in these meetings receive CLE credit. The section also provides a $1,000 scholarship each year to a student from each of the three local law schools. The ADR Section currently has 241 members.
Animal Law Section, Established 2007 The Animal Law Section is the HBA’s youngest section. Its mission is to “raise awareness and educate the legal community regarding legal issues affecting animals and their welfare through CLE presentations, networking opportunities, publication and a distribution of materials.”7 It currently has 42 members, and they meet about once a month. According to the current chair of the Animal Law section, Belinda Smith, “The HBA Animal Law Section is unique because we are the only city in Texas [that] has a Section devoted to Animal Law. Additionally, we focus on community outreach and sponsor two programs to that end. We have a Fall Seminar with topics beneficial to animal rescue groups, animal control officers, veterinarians and law enforcement officers. In the Spring, we host an Awards Dinner and this year we will honor the members of the Harris County Animal Cruelty Task Force.”
HBA Sections Today Appellate Practice – A recent Appellate Practice Mr. McConn and Mr. Arnold created Section Luncheon on “Briefing Outside the Rules.” a lasting legacy when they took on the major reorganizational project of creating HBA sections. Sections have become part of the fabric of the HBA. Today, the HBA has 26 sections encompassing almost every practice area.5 Antitrust & Trade Regulation Section, Each section has its own bylaws and Established 1977 is governed by its own elected officers The Antitrust and Trade Regulation and council. The sections determine Section is one of the HBA’s oldest sectheir own dues, which range from $20 Commercial & Consumer Law – Commercial & tions. It currently has 59 members. The to $45 a year. The dues are collected Consumer Law Section members hear a presentation section provides regular CLE presentaon “Attorney Debt Collectors: A Case Study.” and monitored by the HBA. tions on antitrust litigation and regulaBelow is a brief discussion of each curAttorneys who join sections are able to tion topics, including criminal enforcerent section and its mission.6 attend CLEs that are directly relevant to ment, merger review, and state-law trade their practices or interests, and the meetregulation. Alternative Dispute Resolution (“ADR”) ings provide a unique opportunity to Section, Established 1994 network with similarly minded lawyers. Appellate Practice Section, The ADR Section educates and informs Additionally, section leadership opporEstablished 1991 its members about mediation, arbitratunities are available for attorneys who The Appellate Practice Section has 401 tion, and other alternatives to litigation. desire to shape their section’s direction. members and is the largest local apthehoustonlawyer.com
November/December 2018
11
December. There are 166 pellate bar in Texas. members in this section. Its current chair, Mark Trachtenberg, eloquently Construction Law Section, described the benefits of Established 1988 membership as follows: The Construction Law “Membership in the HBA Section seeks “to promote Appellate Section has enthe objective and stanhanced my practice by dards of professionalism giving me access to high Construction – Construction Law Section members attend a luncheon of the Houston Bar Asquality monthly CLE proCLE on “Residential Construction in Light of Hurricane Harvey.” sociation within the field grams presented by wellof construction law.”10 Each year the respected practitioners and judges. Through these monthly lunches, I have section provides two sponsorships to befriended many other appellate lawstudents to attend the State Bar Conyers and judges. The friendships that struction Law Conference. There are are established and deepened at our currently 378 members of the Conmonthly programs contribute to a colstruction Law Section. legial bar and a respectful and positive relationship between the bar and the Corporate Counsel Section, judiciary.” Established 1977 Environmental – Sections keep members up to In addition to the CLE and networkThe Corporate Counsel Section has date on practice areas, with presentations like the Environmental Law Section’s enforcement update. ing opportunities discussed by Mr. 614 members and aims to “promote Trachtenberg, the section hosts a judithe objectives and standards of profescial reception, participates in various sionalism of the Houston Bar Associacharitable activities including a pro tion within the field of corporate law.”11 bono program, and awards one $500 Both in-house counsel and law-firm scholarship per local law school for the practitioners are members. The secstudents who win the Best Brief Contion’s lunch programs are usually held test. The section just established a Twiton the third Tuesday of the month from ter account, and the feed is featured on Family Law – A recent Family Law Section luncheon September through May. It provides the section’s page on the HBA website. one $1,000 scholarship per law school presentation on preserving the record for appeal. to students interested in corporate law. Bankruptcy Section, Established 1998 Criminal Law & Procedure Section, The Bankruptcy Section currently has Established 1977 202 members. The section “seeks to The Criminal Law & Procedure Secrepresent both consumer and comtion started as a committee in 1975 unmercial bankruptcy attorneys in eduder HBA President George Pletcher.12 cational, philanthropic and local bar That committee was led by George Lurelated activities for lawyers, both quette, who later became the section’s bankruptcy and related practices, in Federal Practice – The Federal Practice Section first chair. The section, however, had updates members on practice before the U.S. the Houston community.”8 It does this no meetings until 1981, when Luquette Supreme Court. inspired a revitalization of the section through monthly CLE programs that Commercial & Consumer Law Section, by writing in The Houston Lawyer about provide updates on cases as well as a Established 1977 how the section “has a vital role to play speaker on a substantive bankruptcy The Commercial and Consumer Law in the administration of criminal justopic or a judicial panel. The section also Section “is dedicated to all aspects retice,” and how the members had “an obhosts a “Brown Bag Lunch with the Judglated to the practice of commercial and ligation and an opportunity to contribute es” program where bankruptcy judges 9 consumer law.” Its meetings are on the leadership and direction in the vital arspeak informally on various topics. The second Wednesday of the month, and eas of Criminal Law.” section awards one $1,000 scholarship the meetings are every month with the The members of this section are crimiper law school to students who are interexception of the summer months and nal law practitioners. The purpose of ested in bankruptcy law. 12
November/December 2018
thehoustonlawyer.com
the section is to “promote the objectives and standards of professionalism of the Houston Bar Association within the field of criminal law.”13 This section currently has 137 members. Entertainment and Sports Law Section, Established 2001 The Entertainment and Sports Law Section is one of the smaller sections with 52 members. Its members generally practice entertainment, arts, media, or sports law, and their clients include entertainment companies, performers, artists, authors, athletes, and entertainment or sports organizations. The purpose of the section is to “promote and enhance the practice of law by all lawyers who specialize or have interest in entertainment, arts, media and sports law.”14 Environmental Law Section, Established 1991 The Environmental Law Section currently has 164 members. It typically holds lunch meetings on the third Wednesday of the month. These lunches include “CLE presentations on subjects relevant to environmental regulation, conservation, and enforcement, both at the national and local level. Speakers include, among others, elected officials, regulators, industry executives, and environmental entrepreneurs.”15 The section sponsors various educational events, including the Houston Ship Channel Boat Patrol. Family Law Section, Established 1977 The Family Law Section, which currently has 477 members, “consistently strives to equip its membership with all the tools necessary to better serve those Houston and Harris County families in need of quality family law legal services.” Its members “serve to mentor and encourage one another in addressing the many complex issues that can arise in family law cases. At the monthly meetings, members have access to quality CLE programming as well as an opportunity to network among other family lawyers and the family law judiciary.”16
The section also engages in substantial community service, including volunteering at HBA legal clinics, providing family lawyers for LegalLine, and collecting for and contributing to “Dress for Success.” The Family Law Section has its own website featuring materials from its CLE luncheons, caselaw updates, and links to family law-related websites.17 Federal Practice Section, Established 1988 The Federal Practice Section currently
has 247 members. Its focus is on “providing programming of interest to those in the Bar who practice in federal court or desire to learn more about federal court practice.”18 The section co-sponsors the HBA’s annual holiday party for the judiciary and engages in other social or service-oriented projects. The section also has a Twitter account, and the feed is featured on the section’s page on the HBA website. Nelson Ebaugh, the current chair of the HBA Federal Practice Section, re-
Your Values. Your Influence. Your Legacy. Our Advice.
From left: Tom Williams, Donnie Roberts, Maureen Phillips, Leah Bennett, Shelitha Smodic, Allen Lewis, Susan Wedelich
Westwood Wealth Management | Houston 10000 Memorial Drive, Suite 650, Houston, Texas 77024 T 713.683.7070 westwoodgroup.com
thehoustonlawyer.com
November/December 2018
13
sponded as follows when asked how section membership has benefitted him, personally: “As a member of the HBA Federal Practice Section for the past several years, I have picked up valuable tips on how to better represent my clients in federal court. Plus, I have made several new friends through participation in the section. They have been helpful resources whenever I find International – International Law Section members attend a recent luncheon CLE. myself in uncharted waters.”
rounding areas with cutting edge and topical seminars for CLE credit through monthly lunch meetings.”22 The meetings are held at the Magnolia Hotel on the second Monday of the month. The section also hosts a Holiday Happy Hour and a Spring Social for its members. It provides a $1,000 scholarship each year to a student who is currently enrolled in an employment law class, writes an essay, and gives a five-minute speech at a section meeting.
Health Law Section, Established 1999 Given the fact that Houston is home to Law Practice Management, the renowned Texas Medical Center, it Established 1992 is no surprise that the HBA has a very The Law Practice Management Section active Health Law Section. Chris Decurrently has 73 members. The section Meo, the chair of the section, notes that provides its members with “informathe section “seek[s] to provide mean- Labor & Employment – Section CLE programs tion and resources... about building ingful opportunities for networking often draw a large attendance, like this recent Labor and managing law practices more effec& Employment Law Section luncheon and legal education. Lawyers attending tively and successfully while maintainour section lunches have made connecing the highest standards of the legal tions leading to new jobs and learned profession.” Its CLEs “focus on both about new legal defenses that have fundamental [principles] and emerging helped them win cases. Houston is trends related to building and enhancknown around the world for its health ing client relationships; office managecare industry and we welcome any lawment and supervisory issues; effective yer interested in health care to attend use of legal technology; billing and acone of our lunches.” The Health Law counting practices; and professionalSection currently has 168 members. ism.”23 Law Practice Management – “The Law and When asked why she felt section Unwritten Rules of Attorney Compensation and Benefits” was the topic at the November Law International Law Section, membership was beneficial, Ruby PowPractice Management luncheon. Established 1976 ers, the current chair of the section, The International Law Section started section of the bar that addresses itself to said, “Because I came to Houston in my meeting in 1976 and is thus the oldest the juvenile law area, which was neither last year of law school, I have found my HBA Section. It currently has 191 mema part of the Family Law Section or the involvement in HBA to be invaluable in bers. Its membership is comprised of inCriminal Law Section.”21 meeting lawyers in various practice areas ternational law practitioners, and its goal The section sponsors an annual twoin the city. I have gained the most from is to “promote the objective and standay Juvenile Law Conference that prothe Law Practice Management Section... dards of professionalism of the Houston vides a comprehensive overview and in learning how to improve my own law Bar Association within the field of Interupdates on juvenile law, offering over practice from the CLEs but also from its national Law.”19 Law students may attend 12 hours of MCLE credit. The section membership.” provides links to the materials for the section meetings for free if they are in Juvenile Law Conference on its HBA Litigation Section, Established 1984 groups of fewer than ten. webpage. While the HBA Board discussed a litigation section in 1977, the section was not Juvenile Law Section, Established 1982 Labor & Employment Law Section, officially established until 1984.24 It is The Juvenile Law Section has 43 memEstablished 1995 bers, and its objective is to “promote the currently the largest HBA section with The Labor & Employment Law Section objective and standards of professional1,405 members. Its main objective is to currently has 518 members. The section ism of the Houston Bar Association with“promote the objective and standards of 20 “strives to provide labor and employin the field of juvenile law.” The purprofessionalism of the Houston Bar Asment law attorneys in Houston and sursociation within the field of litigation.”25 pose of formation “was to have a viable 14
November/December 2018
thehoustonlawyer.com
It also jointly administers a program with the Houston Trial Lawyers Association to provide pro se litigants who are on the eve of trial with lawyers. Mergers & Acquisitions Section, Established 2005 The Mergers & Acquisitions Section is one of the HBA’s newest sections. Its 324 members benefit from bi-monthly programs focusing on practical mergers and acquisition related topics and networking. The section “focuses on the role played by lawyers in negotiating and documenting business acquisitions, divestitures, mergers and related transactions.” It “strives to be a primary resource for cutting-edge M&A education for the Houston business lawyer and welcomes accountants, investors, bankers and other professionals involved in transactions.”26 To that end, it provides presentation materials from its CLEs on its HBA webpage. Oil, Gas & Mineral Law Section, Established 1987 The Oil, Gas & Mineral Law Section is one of the HBA’s largest sections with 771 members. It sponsors nine monthly CLEs per year, which are usually held on the fourth Thursday of the month at the Petroleum Club. The materials from these programs from 2014 through 2018 are available on the section’s HBA webpage, as are links to the section’s Facebook page and LinkedIn account. The section also provides networking opportunities for members through a fall reception with a noted speaker, a holiday luncheon, and a summer reception. Additionally, the section awards a $1,000 scholarship for the student from each of the three local law schools who has the highest grade in the oil and gas law class. Nicole Singer, chair of the Oil, Gas & Mineral Law Section, enjoys the networking benefits associated with membership in her section: “The benefit of being a member of the Oil, Gas and Mineral Law Section is the networking that naturally happens as a bonus to obtaining thehoustonlawyer.com
November/December 2018
15
continuing legal education credits on current relevant topics at our monthly luncheons held in the historic Petroleum Club of Houston. We like to think that our membership comes for the talk each month and not for the famous chocolate covered walnut ice cream ball dessert.” Of course, the members likely find the dessert to be an extra enticement to fulfilling their CLE requirements with relevant information and meeting other lawyers in their practice area.
tember through November and January through May. The lunch speakers generally have a broad appeal, as they address topics of interest to the securities bar, including class action developments, fiduciary duty claims, and SEC or other securities regulatory actions.
Social Security Section, Established 1993 The Social Security Section is the HBA’s smallest section with 23 members. Its purpose is “to provide liaison and opportunity for professional development for members of the bench and bar who Probate, Trusts & Estates Section, are engaged in Social Security practice, Established 1977 to promote improvement and clarificaThe Probate, Trusts & Estates Section of the Rules of Social Security praction is a relatively large section with tice, and to provide continuing legal 529 current members. Its mission is to Oil & Gas – The Oil, Gas & Mineral Section members “promote the objectives and standards at the September luncheon on “Production Sharing education in this field.”29 of professionalism of the Houston Bar Agreements & Allocation Wells in Texas.” Association within the field of probate, Taxation Section, Established 1977 27 trusts & estates.” Each year the secThe Taxation Section currently has 233 members, and its mission is to “promote tion awards one $1,000 scholarship per the objective and standards of profeslocal law school to a student who demsionalism of the Houston Bar Assoonstrates excellence in probate law. ciation within the field of tax law.”30 It Bridget O’Toole, the current chair of the Probate, Trusts & Estates Section, awards one $500 scholarship per local stresses how beneficial the CLE prolaw school to a student nominated by a vided by the section is to its memberprofessor who is interested in tax law. Securities Litigation & Arbitration – Section ship: “The Probate, Trusts and Estates members at a recent Securities Arbitration & Section endeavors to provide high qual- Litigation Section presentation on “Data Analytics in Looking for Something Different? Litigation and Regulatory Issues. ity continuing legal education for our While it is difficult to imagine that these members in the areas of probate, trusts, 26 active sections do not fulfill the proislative updates and other relevant real esestate planning, and guardianships. Our fessional learning, leading, and liaising tate issues.”28 Many of the materials from program also includes an annual judicial needs of all HBA members, there is a past CLEs are available on the section’s panel where the sitting probate judges apdefined procedure for establishing new HBA webpage. The section also contribpear to discuss court business and answer sections to ensure that the HBA is acutes to Habitat for Humanity, Texas Cquestions from practitioners. Our section commodating its members’ professional Bar, and Historic Records Preservation. also provides an annual lifetime achieveinterests. An individual who would like And, it provides more scholarships than ment award to an attorney or judge who the HBA to form a new section must any other section—a total of $9,000 in has devoted significant time and energy to submit the following items to the HBA scholarships to students attending Housour section or to our area of practice over board: (1) a business plan describing ton law schools with a demonstrated inthe years.” the organization that includes the initial terest in real estate law. council members, area of law, and reaReal Estate Law Section, sons the area requires its own section; Securities, Litigation & Arbitration Established 1977 (2) a proposed set of by-laws in the apSection, Established 2003 The Real Estate Law Section currently proved format; and (3) a petition signed The Securities, Litigation & Arbitration has 573 members. It offers monthly CLEs by at least 35 current HBA members who Section is one of the HBA’s younger secin September through May on “topics are interested in and support the formations. It currently has 88 members. The ranging from leasing, development, loan tion of the new section.31 The board will section has lunch meetings on the sectransactions, landlord/tenant issues, legthen consider the proposal and likely ond Tuesday of the month, from Sep16
November/December 2018
Litigation – The Litigation Section presented U.S. District Judge Vanessa Gilmore speaking on “Unconscious Bias and the Courts” in November.
thehoustonlawyer.com
thehoustonlawyer.com
November/December 2018
17
invite the interested person to discuss the proposal. The Board will ultimately make the decision as to whether formation of the new section is in the best interest of the HBA. In sum, HBA members have found tremendous support for their professional goals for the past 32 years thanks to Mr. McConn’s belief that establishing sections would strengthen the organization and Mr. Arnold’s resolve that these groups “ought to be within and sponsored by” the HBA. If you have not participated in an HBA section, consider joining one— or starting a new one—today. Anna Archer is a career law clerk to the Honorable Gray H. Miller in the U.S. District Court for the Southern District of Texas. She is on the Editorial Board of The Houston Lawyer and is a member of the Federal Practice Section. Endnotes
1. HBA Board Considering Bar Sections, HOUS. BAR BULL. (Oct. 14, 1976).
2. The references to HBA Board minutes in this article are derived from a document entitled “History of Development of HBA Sections,” which was provided to the author by the HBA. 3. A Message from Your President, HOUS. LAW. 5 (Dec. 1976). 4. A Message from Your President, HOUS. LAW. 5 (Sept./ Oct. 1977). 5. The HBA has had three sections that have been disbanded or become inactive. The Tort & Compensation Law Section existed from 1977 through 1983. The Cyberlaw Section existed from 1998 through 2010. And the Collaborative Law Section existed from 2005 through 2018. Under the HBA Constitution, the HBA Board has the authority to “terminate the formal existence of a Section” if it determines continuance “is not in the best interests of the Association.” HBA Const., art. V, § 2. 6. Most of the information about the sections in this portion of the article is drawn from the sections page of the HBA website, https://www.hba.org/sections/. Readers are encouraged to peruse the pages of each section, as many of these pages provide valuable resources such as copies of PowerPoint presentations from CLE luncheons. Additionally, the pages contain contact information so that readers can request more specific information about the sections’ meetings and CLE presentations. 7. https://www.hba.org/sections/animal-law/. 8. https://www.hba.org/sections/bankruptcy/. 9. https://www.hba.org/sections/commercial-consumer/. 10. https://www.hba.org/sections/construction-law/. 11. https://www.hba.org/sections/corporate-counsel/. 12. Geroge F. Luquette, HBA Section Reports: Criminal Law Section, HOUS. LAW. 14 (Aug. 1981). 13. https://www.hba.org/sections/criminal-law-procedure/.
14. https://www.hba.org/sections/entertainment-sports -law/. 15. https://www.hba.org/sections/environmental-law/. 16. https://www.hba.org/sections/family-law/. 17. See www.hbafamilylaw.org. 18. https://www.hba.org/sections/federal-practice/. Members and other interested practitioners can follow the Federal Practice Section on Twitter @ HBAFed. 19. https://www.hba.org/sections/international-law/. 20. https://www.hba.org/sections/juvenile-law/. 21. Jo Nelson, HBA Section Reports: Juvenile Law Section, HOUS. LAW. (Aug. 1982). 22. https://www.hba.org/sections/labor-employmentlaw/. 23. https://www.hba.org/sections/law-practice-management/. 24. Trial lawyers were often members of the Tort and Compensation Section during the early years of HBA Sections. See William J. Stradley, HBA Section Reports: Tort and Compensation Section, HOUS. LAW. 21 (Aug. 1981). This section provided the “unique opportunity for all segments of the trial bar and related areas of practice to meet together on a regular, continuing basis and discuss mutual concerns and recent developments in these rapidly changing areas of the law.” Id. 25. https://www.hba.org/sections/litigation/. 26. https://www.hba.org/sections/mergers-and-acquisitions/. 27. https://w w w.hba.org /sections/probate-trustsestate/. 28. https://www.hba.org/sections/real-estate/. 29. By-laws of the Social Security Practice Section. 30. https://www.hba.org/sections/taxation/. 31. The detailed procedures are contained in a document entitled “Policies Relative to Sections,” which can be obtained by contacting Tara Shockley, taras@ hba.org.
❑ Legal
Malpractice Insurance ❑ Business Owner’s Insurance ❑ Probate Bonds ❑ Cyber Coverage OVER 38 YEARS SUPPORTING TEXAS LAWYERS
TLIE.org / info@tlie.org / (512) 480-9074 18
November/December 2018
thehoustonlawyer.com
Time to redesign your website? contact
leo@quantumsur.com • 281.955.2449 ext.1
thehoustonlawyer.com
November/December 2018
19
HBA Appellate Practice Section
State’s Largest Local Appellate Bar
T
By Mark Trachtenberg
er appellate experience in the Houston Courts of Appeals, which have indicated that they will give special consideration to hearing oral argument in cases accepted through the program. Mark Trachtenberg is an appellate partner at Haynes and Boone, LLP. He is chair of the HBA Appellate Practice Section.
Corporate Counsel Section
he Houston Bar Association’s Appellate Practice Section—the largest local appellate bar in Texas—is an indispensable resource for appellate lawyers practicing in and around Houston. The section holds monthly lunches where high-quality CLE programs are presented by leading practitioners and well-respected judges. In just the last few months, top appellate lawyer David Gunn gave a presentation on the Casteel line of jury charge cases, and Mike Hatchell, an appellate pioneer, shared his thoughts on Texas Supreme Court decision making. By Eric L. Muñoz These well-attended lunches give kay, so maybe some people practitioners an opportunity to netknew that the job of “corpowork with justices from the Houston rate counsel” could be comCourts of Appeals and other members plicated—after all, corpoof the appellate bar. The relationships rate law spans a wide range of issues, established and deepened at these from regulatory compliance to data lunches contribute to a collegial bar security and risk management to genand a respectful and positive relationeral commercial issues. When you add ship between the bar and the appellate into the mix ever-changing legal landjudiciary. Appellate – Natasha Breaux, Polly Fohn and scapes, shrinking legal budgets and Appellate Practice Section Chair Mark Trachtenberg The section hosts several social at the section’s November meeting. compressed time frames, it gets really events that also contribute to this sense complicated, really quickly. The HBA’s of collegiality, including an annual Corporate Counsel Section (CCS) is judicial reception to honor the justices here to help practitioners stay abreast from the Houston Courts of Appeals of recent developments in this area. and other local members of the judiciaEvery couple of years, one or two ry, as well as an annual holiday party particular issues seem to dominate the that raises funds for the Houston Food conversation. The last couple of years Bank. saw data security and privacy issues Corporate Counsel – Corporate Counsel The section also publishes a regular Section luncheon seminar on “Enterprise Risk forefront on the minds of legal departnewsletter for its members entitled, The Management Under the General Counsel.” ments and regulatory agencies. While Appellate Lawyer (www.hbaappellate regulatory agencies responded with numerous data collection, lawyer.org), which features practical advice from prominent appelmaintenance, and security requirements, corporations and other late lawyers and judges, and regular case updates from the Housmembers of the business community, recognizing the tremendous ton Courts of Appeals. damage data breaches can inflict not only on their bottom lines Finally, the section engages in a variety of charitable and serbut on their reputations, have come to realize the importance of vice activities. It provides scholarships to students from each of cybersecurity. Corporate legal departments (and their outside the three Houston-area law schools who prevail in a brief-writing counsel) are thus forced to deal with not only numerous legal recontest judged by members of the section. It provides CLE scholquirements across local, national, and international jurisdictions arships for staff attorneys at the Houston appellate courts. And it but also to keep abreast of emerging threats and developments in helps to administer a program designed to provide pro bono countechnology to deal with those threats, all while ensuring that corsel to indigent litigants with qualifying cases in the Houston appelporate officers and directors satisfy their fiduciary duties and the late courts. Through this program, volunteer lawyers obtain great-
Nobody Knew that Corporate Law Could be So Complicated
O
20
November/December 2018
thehoustonlawyer.com
legal requirements imposed on them and their enterprises. Currently, corporate legal discussions seem to be tending toward the political landscape, including the changes in tax, regulatory, immigration, and trade policies. In addition to a more favorable tax system that allows U.S. corporations to be more competitive, regulatory changes are also reducing costs imposed on domestic businesses across a number of different industries. Identifying those changes and adapting operations to take advantage of those lower costs are top priorities across legal departments. Meanwhile, changes in immigration and trade policy, including escalating tariffs, are forcing legal departments of affected businesses to consider options to minimize additional costs, or the risk of additional costs, resulting from those changes. While no one can definitively say which way the political winds are blowing (not only domestically but across the globe), it is becoming less likely that business as usual will remain business as usual. To deal with these, and the many other, complicated issues facing corporations and businesses every day, corporate legal departments and their outside counsel have to not only understand the corporate legal regime, but have to adapt to changes in technology across industries and in the economy as a whole. The primary objective of CCS is to provide a resource that corporate law practitioners can use to keep current on corporate legal issues by offering (almost) monthly CLE presentations focused on timely and relevant issues selected by the CCS board. In addition to CLE credit, the CCS meetings provide a forum for CCS’s members to
socialize and discuss issues they may be facing with their peers. And we usually have pretty good cookies, too. Eric L. Muñoz is a corporate finance partner in the Houston office of Akin Gump Strauss Hauer & Feld LLP. He advises clients, primarily in the energy industry, on issuing and maintaining debt and capitalization and transaction structuring. He is chair of the HBA Corporate Counsel Section.
Health Law Section
Assisting Lawyers in One of Houston’s Top Industries
T
By Chris DeMeo
he HBA Health Law Section is a networking and educational resource for Houston attorneys serving the health care industry. Health care providers, institutions, and companies that service them face a large variety of legal issues, and that legal diversity is reflected in the Section’s mem-
t he
HBA serves you Enhance your practice Try the HBA advantage.
www.hba.org thehoustonlawyer.com
November/December 2018
21
Federal Practice Section
bership. Our members include U.S. Attorneys, Harris County Attorneys, commercial and professional liability litigators, transactional and regulatory compliance attorneys, information privacy attorneys and administrative and licensing attorneys. Our members are current and former in-house counsel (from startups to Fortune 500 companies), solo practitioners, and lawyers from boutiques to Am Law 100 firms. This broad spectrum of diversity and organization size creBy Nelson S. Ebaugh, Raffi Melkonian and Natasha Breaux ates an excellent opportunity for lawyers across Houston to he Houston Bar Association Federal Practice Section build their professional network. It also allows the Section brings together civil and criminal law attorneys who to present a diverse slate of legal education. We have recently practice in federal court. Through presentations by fedsponsored lunches on topics ranging from cybersecurity to the eral judges and established practitioners, the section legal and ethical issues governing consent to health care. Our keeps its members abreast of practical tips and legal trends that September program covered disaster preparedness, a timely are particular to federal practice. topic given Hurricane Florence. In the aftermath of Hurricane The section has been fortunate to Harvey, the ssection hosted an inhave one or more federal appellate house counsel panel session discusscourt judges address the section each ing the preparation and response to year. For instance, Judge Gregg Costhe storm. ta of the U.S. Court of Appeals for the The section is governed by an Fifth Circuit gave a fascinating preexecutive council consisting of 12 sentation entitled “Federal Courts in members, including five officers, a Houston: Then and Now.” He enterCLE coordinator, and six at-large tained us with colorful stories about members. The section sponsors semithe crucial role of the federal judiLabor and Employment Law – Labor and monthly CLE lunches and two happy Employment Law Section members discuss a ciary in Texas after the Civil War, hours; one in the fall, which is a colluncheon presentation on “Investigations in Today’s the creation of the Southern District laboration with local law schools, for #WOKE Workplace.” of Texas, and the drama behind the attorneys and law students interested split of the Fifth Circuit that led to in health law, and one in the spring the creation of the Eleventh Circuit. for members only. The Section has also been lucky Moving forward, the section looks to have several engaging federal to collaborate with non-lawyer district court judges speak. During players in the Houston health care the last bar year, U.S. District Court market. The section has already Judge Keith Ellison gave a talk ensponsored a program with the newtitled “Practice and Protocol in Fedly-formed University of Texas Health Federal Practice – Federal Practice Section Chair eral Court.” Among other points, Science Center Medical Legal PartNelson Ebaugh and section members listen to a luncheon he shared his thoughts about how nership to promote and solicit volunpresentation on the census and redistricting. litigants often fail to recognize any teers for the program, which places other position but their own. He suggested that lawyers could lawyers in medical clinics to address health-harming legal better serve their clients by helping them recognize that the needs of patients. The section also will sponsor a luncheon opposing parties might have some legitimate arguments. Also, with TMC-X, a program developed by the TMC Innovation InU.S. District Court Judge David Hittner gave a presentation stitute for startup health care ventures. The section is also inon “The Trial of High-Profile Jury Cases,” in which he shared terested in continuing to partner with other HBA sections that his experiences from debriefing the jury after every trial for have issues which may overlap in the health care space, such as decades. His presentation included explaining, among other the antitrust, labor and employment, litigation, and corporate things, that the Fifth Circuit is the leading circuit for allowcounsel sections. ing timing orders to limit the length of a trial, that jurors pick up on everything, and that a federal-court judge can comment Chris DeMeo is a partner at Seyfarth Shaw LLP, where he counon the weight of the evidence (unlike a state-court judge). He sels and represents hospitals, physician groups, pharmacies, and gave all this advice in a humorous fashion that had us highly others in the health care industry. He is the chair of the HBA entertained. Health Law Section.
Drawing on Judicial Wisdom
T
22
November/December 2018
thehoustonlawyer.com
Last spring, the section hosted a panel discussion with the newest federal magistrate judges—U.S. Magistrate Judges Christina Bryan of Houston, Andrew Edison of Galveston, and Richard Farrar of San Antonio—which U.S. Magistrate Judge Stephen Smith moderated. This discussion provided invaluable insight into the personalities and preferences of the new judges. Perhaps the most interesting observation from these new judges is the importance of clearly and concisely presenting issues when seeking relief from the court. At some of their first hearings as a judge, each remarked how surprised they were that litigants often appeared to veer off subject in one way or another from the issues presented in the motions and responses. Indeed, each of the new judges emphasized the importance of succinctly setting forth the issues and staying on point. The section also offers programs that go beyond the nutsand-bolts of federal practice. For example, Professor Hopwood joined us last year to tell us about his extraordinary journey from serving a ten-year prison sentence for bank robbery to becoming a Georgetown University Law Center professor. He started by telling us about how he developed into a jailhouse lawyer, using the prison library and reading thousands of cases. This culminated in his getting two separate petitions for writ of certiorari granted by the United States Supreme Court—something even some lawyers can only dream of.
Professor Hopwood also went into the challenges prisoners face when they come out of jail. He gave us the example of Tarra Simmons, who served 30 months in prison, but afterward attended law school. Nonetheless, she was denied the right to take the bar exam. Professor Hopwood represented her before the Washington Supreme Court, which issued an order the same day as oral argument permitting her to take the exam. Finally, Professor Hopwood left us with some inspiring words: If you were persuaded by his story to believe that prisoners need our help, you should volunteer in prisons, teach classes, or help with whatever you can find. As he put it, these efforts “might help them. But it will certainly help you!” For more practical and inspiring presentations, please join your fellow federal-court practitioners at the next HBA Federal Practice Section meeting. In 2019, we expect to offer several additional programs presented by federal judges and experienced practitioners. Nelson S. Ebaugh is an attorney at Nelson S. Ebaugh, PC and chair of the HBA Federal Practice Section. Raffi Melkonian is a partner at Wright Close & Barger and treasurer of the HBA Federal Practice Section. Natasha Breaux is an appellate associate at Haynes and Boone, LLP and a member of The Houston Lawyer editorial board.
Do you have a true financial partner, or just another bank? As a true financial partner, Trustmark knows the importance of planning for the future for you and your family. Our experienced and well-credentialed wealth management team is here to help you plan for tomorrow. Call or visit us today. People you trust. Advice that works. 945 Bunker Hill, Suite 200 | Houston, TX | 713.827.3741
trustmark.com
Trustmark - Houston Lawyer 7.5 x 4.875
thehoustonlawyer.com
November/December 2018
23
Labor and Employment Section
Strengthening Professionalism
T
By Sidd Rao
he number of people filing for unemployment benefits has declined to the lowest level in more than four decades. Private employers have added jobs for nearly eight years and there are more people working fulltime, instead of part-time.1 Today’s growing workforce generates a greater need for employment lawyers in all areas of industry and covering all topics. The L&E Section strives to provide labor and employment law attorneys with cutting edge and topical seminars for CLE credit through monthly lunch meetings held on the second Monday of every month at the Magnolia Hotel. Topics range from recent case rulings, to best practices, to the latest hot topics like sexual harassment, class actions, and wage and hour matters, to the ethics of representing both employees and management. In addition to our monthly lunch meetings, the L&E Section offers several social functions for its members, including an annual Holiday Happy Hour, as well as other networking and educational opportunities. We also provide scholarship opportunities to several Houston law schools for students who display an interest and aptitude in entering the practice of labor and employment law. Another major reason to join the L&E Section is to network with other labor and employment lawyers. Importantly, our network is not limited to one side of the bar, as would be the case in many legal organizations. The L&E Section has membership that includes plaintiff and defense labor and employment law attorneys, in-house counsel, public sector and government attorneys, and mediators and arbitrators with experience in labor and employment law. We strongly value the diversity and “neutral ground” that the L&E Section represents, where both sides of the bar can come together as professionals and as friends, learn together, laugh together, and challenge each other to raise our standards of practice. Aside from the inherent value of professionalism, the benefits of mutual collaboration and respect flow to our members’ clients as well. The L&E Section members have a reputation for working well with each other, which can be helpful when we become opposing counsel in cases. Members may more easily reach amicable resolutions with each other in cases when they are able to draw on shared professional experiences and relationships. Indeed, we often use the monthly CLE meetings to schedule conferences, meetings, and mediations. In short, we believe our Section to be a living example of the principles 24
November/December 2018
thehoustonlawyer.com
embodied in the Texas Lawyer’s Creed. Other members have shared stories with me about how our section facilitates cordiality during litigation. I was told by one member, in essence: If I know I am going to see opposing counsel every month, or that I will be shaking his or her hand as I hand in my registration check every month, I tend to make every effort to be reasonable in a discovery dispute. Another member reaffirmed that the attorneys who are difficult to get along with and who threaten sanctions at every turn, do not regularly attend the lunches and are not involved in the Section. A third member brought the point home: The group generally works well together since we see each other over and over again on the opposite sides of cases. Employment issues are everywhere. What we do touches all lives. We are honored and privileged to have all who wish to attend. We hope to see you at the next meeting! Sidd Rao is a Board Certified Labor and Employment Lawyer with the law firm of Shellist Lazarz Slobin in Houston. He is the chair-elect of the Houston Bar Association Labor and Employment Section. Endnotes
1. https://www.bloomberg.com/quicktake/monthly-us-jobs-report.
Law Practice Management Section
How to Balance Firm Resources with Pro Bono and Low Bono Work
T
By Ruby L. Powers
he Houston Bar Association’s Law Practice Management Section provides resources and advice to members seeking to build and manage their practices more effectively. A pertinent issue I see many lawyers struggling with today is balancing pro bono, low bono and fully-funded casework. (Pro bono services are without charge while low bono cases are cases where your firm may charge the client a small portion of the full attorney fees to help offset costs). In times of need, it can be difficult to say “no” to a case where the client does not have the means to pay for services. As attorneys, we have a duty to provide pro bono and low bono work, so it is important to incorporate this into your practice. However,
inclined to support some of your costs by championing a client we must also zealously represent all of our clients and manage or family in need. our pro bono and low bono work responsibly. A second key resource is time trackers; using these accountAlthough my firm is able to help several individuals at little to ing tools while taking on pro bono and low bono cases will help no cost, we monitor the number of pro bono and low bono cases you balance the amount of money and time you are investing in on a regular basis so that we do not overwhelm our caseload. these cases. It is essential when taking The first important piece of advice is on low and pro bono cases that you that you must maintain a balance beare realistic both with your schedule tween pro bono, low bono, and fullyand with your clients. Recognize that funded cases. This will allow you to you cannot afford to help everyone dedicate adequate time to volunteer you might want to and manage your causes. You can also maintain this clients’ expectations by being honest balance by limiting the scope of a pro about what you can offer them. While bono or low bono client’s case, rather taking these cases can be beneficial, than covering the entire case. especially if done efficiently, overThere are also several key resources Law Practice Management – Cindy Diggs extending your time will only deplete that will pave the way for smooth propresents “The Law and “Unwritten Rules of your ability to assist your remaining bono/low-bono balancing. Nonprofit Attorney Compensation and Benefits” at a Law clients, be they pro bono, low bono, organizations are a great resource to Practice Management Section Luncheon. or fully-funded. begin with. Oftentimes, legal nonFinally, report your hours and services to applicable legal profits are overrun with cases that may require expertise beyond and community groups for possible recognition, which is not their capabilities or their bandwidth at the time. By partnering only good public relations but, more importantly, helps inspire with nonprofit centers for referrals, attorneys are able to ensure other attorneys to provide pro bono and low bono services. You that they are taking on cases that have already been vetted, and could even consider seeking out media attention for a case that that they are taking on clients who would not have been able to your firm has championed; this could help build good will in receive help otherwise. You may also use nonprofits and/or comthe community and highlight your firm’s devotion to low bono munity groups as resources for funding. These groups can be
For classifieds ads:
Mary Chavoustie mary@quantumsur.com or call her at: 281.955.2449 ext. 3 thehoustonlawyer.com
November/December 2018
25
and pro bono service. The experience is rewarding and you will make changes in people’s lives that will be immeasurable and a part of their life story for years to come. Ruby L. Powers is managing attorney of Powers Law Group, P.C., a full-service immigration law firm. She is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. She is the chair of the HBA Law Practice Management Section.
Oil, Gas and Mineral Law Section
As Diverse as Houston
The OGML’s luncheons are generally held the fourth Thursday of every month from 11:30 a.m. to 1:00 p.m. at the Petroleum Club of Houston, 1201 Louisiana St., 35th floor, Houston, Texas 77002. The section will be continuing its tradition of hosting a holiday brunch at Brennan’s Restaurant on December 9, 2018. The section is also pleased to announce that it will be partnering with the Houston Association of Professional Landmen, the West Houston Association of Professional Landmen, and the North Houston Association of Professional Landmen for its Spring Networking Reception in early 2019. For more information about these events or the HBA Oil, Gas and Mineral Law Section, please visit our website at www.hba.org/ sections/oil-gas-mineral-law/. To become a member, please contact Danielle Keith at daniellek@hba.org.
H
Rachel Reese is the managing attorney at R. Reese and Associates LLC and is secretary of the Oil, Gas and Mineral Law Section of the Houston Bar Association.
By Rachel Reese
ouston is known for a lot of things. Houston is the Oil, Gas & Mineral Law – Oil, Gas & Mineral fourth largest city in the Law Section council officers, from left, Jasper United States by populaMason, chair-elect; Rachel Reese, secretary; Nicole tion. Houston is the home of the 2017 Singer, chair; and Liz Klingensmith, treasurer. World Series Champion Houston Astros, the Johnson Space Center and NASA, Mission Control. But what Houston is really known for is the oil and gas industry. Therefore, it should come as no surprise that the Oil, Gas and Mineral Law (OGML) Section is among the largest and most profitable sections of the Houston Bar Association. But the current 2018-2019 Section Chair, Nicole Singer, is not planning to rest on the Section’s laurels. “In this HOUSTON STRONG, post-Harvey year, we are excited to reinvigorate the Section activities by co-sponsoring networking events with other Houston-based energy industry groups. We are exceptionally excited to return to the Houston Museum of Natural By Sara Madole Science for the fall social event in the brand-new Weiss Energy he Houston Bar Association’s Probate, Trusts & EsHall,” says Nicole. As an organization, the OGML Section aims tates Section strives to keep its members abreast of the to reflect the current make-up of the energy industry, which latest developments in this legal field. One such develhas become a diverse group of professionals. opment is Texas’s adoption of the Uniform Partition of This year, with the help of organizations like the Houston Heirs’ Property Act (UPHPA). Association of Professional Landmen, the Houston Young LawThe UPHPA, effective as of September 1, 2017, is a relatively yers Association, the Institute for Energy Law, and the Harry new statute that applies to partition suits brought under ChapL. Reed Oil & Gas Law Institute, the section plans to reach a ter 23 of the Texas Property Code. Codified as Chapter 23A of larger, more diverse group than ever before. The section has the Texas Property Code, the UPHPA is intended to protect also expanded its monthly luncheon topics to capture a wider owners of inherited property from forced partition by an outrange of interests within the oil and gas sphere. This year’s topside investor. Specifically, the law is aimed at investors who ics include: Allocation Wells, Internal Investigations, Private purchase a small share of a larger inherited parcel in order to Equity, Surface Use, State Law Relating to the Permian Basin, file a partition action and force a sale. Using this tactic, invesand Ethics Jeopardy. tors can then purchase the entire parcel for a price well below
Probate, Trusts & Estates Section
Adoption of the Uniform Partition of Heirs’ Property Act
T
26
November/December 2018
thehoustonlawyer.com
fair market value and in doing so, deplete a family’s base of inherited wealth. The UPHPA applies if the property meets the definition of “heirs’ property,” which is defined as property held in tenancy in common that satisfies the following requirements: (1) the property is not subject to an existing partition agreement; (2) one or more of the cotenants of the property acquired title from a relative, whether living or deceased; and (3) any of the following applies: (i) 20% or more of the interests are held by cotenants who are relatives; (ii) 20% or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or (iii) 20% or more of the cotenants are relatives.1 The UPHPA contains several provisions that are intended to protect cotenants from forced sales and to ensure they receive a fair price for their interest in the partitioned property. Notable examples of these protections include the following: 1. Cotenants who are not participating in the sale must be given an opportunity to buy out the petitioning cotenant at a fair price.2 2. If a buyout does not resolve the issue, the court can decide whether to order partition in kind or partition by sale. In determining the type of partition, the court shall consider the sentimental or ancestral value of the property, evidence of the collective duration of family ownership, the aggregate economic effect on all partitioned parcels, harm to cotenants currently using the property, and “any other relevant factor.” Essentially, the court will conduct a holistic evaluation of multiple factors, rather than an economics-only test.3 3. If the court determines that partition by sale is the appropriate course of action, the sale will be conducted by a disinterested real estate broker, the property must be listed for at least the value determined by the court, and the sale must be an open-market sale unless a determination is made that it would be economically advantageous to sell at auction or by sealed bids.4 To learn more about these, and other developments in the field, consider joining HBA’s Probate, Trusts & Estates Section. It is a place to learn, network and develop friendships. Sara Madole is a graduate of the University of Houston Law Center. Sara’s practice focuses exclusively on trusts and estates, including will contests and breach of fiduciary duty claims. Endnotes
1. Tex. Prop. Code Ann. § 23A.002(5) (West Supp. 2017). 2. Id. § 23A.007. 3. Id. § 23A.009. 4. Id. § 23A.010.
28
November/December 2018
thehoustonlawyer.com
Social Security Section
Section Covers More than Retirement Program
S
By James Passamano
ocial Security is much more than the familiar retirement benefit program. For more than 50 years, the Social Security Disability Insurance (SSDI) benefit program has protected workers and families who are unable to work because of a disabling illness or injury. Similarly, the Social Security Administration’s Supplemental Security Income (SSI) benefit program has protected indigent children and adults with severe disabilities. Members of the Houston Bar Association’s Social Security Section work in this highly focused administrative litigation practice, which involves marshaling medical evidence, presenting evidence before administrative law judges and appealing to both the Administration’s Office of Hearing & Appeals and Article III federal courts. This bar-year the section has four goals. First, the section hopes to increase its membership. Second, the section plans to continue its monthly lunchtime meetings, which include both formal continuing legal education programs and convivial discussions among members about ongoing cases and successes. Third, the section hopes to develop a regular working relationship with the local Social Security Administration Field and Regional Offices to improve the quality of representation of claimants and the administration of Social Security claims. Finally, the section plans to begin an outreach program to law school clinical programs to educate students about Social Security practice. The section also plans to reach out to other Houston lawyers to improve their understanding of the relationship between Social Security benefits and other areas of practice—such as employee benefits, personal injury settlements, guardianship, and estate planning.
James Passamano has practiced Social Security law and health law at Sufian & Passamano, L.L.P. for 20 years, and he is a former senior trial attorney for the United States EEOC. He received degrees in law from the University of Cambridge and South Texas College of Law – Houston.
69th Harvest Celebration Raises Nearly $780,000 for Pro Bono Legal Services
T
he 69th Harvest Celebration raised nearly $780,000 to support pro bono legal services for low income Houstonians. The largest annual fundraising event of the Houston legal community is sponsored by the Houston Bar Association, Houston Bar Foundation and Houston Bar Association Auxiliary. More than 900 HBA members and guests filled River Oaks Country Club for the evening. Greeting guests were HBA President Warren Harris of Bracewell LLP and his wife, Lauren Beck Harris of Porter Hedges LLP; Houston Bar Foundation Chair Barrett Reasoner of Gibbs & Bruns LLP, and his wife, Susan Reasoner; HBA Auxiliary President Greg Griffin of Ford + Bergner LLP; and HBAA Charitable Fund Chair Dominique Varner of Hughes Watters Askanase LLP. The Harvest Celebration supports the Houston Volunteer Lawyers, a project of the HBA that provides pro bono legal Greeting guests were Barrett Reasoner, chair of the Houston Bar Foundation; Susan Reasoner; Lauren Beck services for low-income fami- Harris; Warren Harris, president of the Houston Bar Association; Dominique Varner, chair of the HBA Auxiliary lies including veterans, the el- Charitable Fund; and Greg Griffin, president of the HBA Auxiliary. derly, people with disabilities, and other low-income Houstonians with family law, consumer law, probate and other legal problems. Although the Harvest Celebration has been the social event of the year for the legal community since 1949, it was designated a fundraiser 18 years ago and has raised almost $8 million for pro bono legal HBF Chair Barrett Reasoner and HBA Treasurer Bill Randy Sorrels, president-elect of the State Bar of Kroger, pictured here with Susan Reasoner and Texas; Laura Gibson, chair of the State Bar of Texas services in Harris County.
Photos by Temple Webber
30
November/December 2018
Elizabeth Mata Kroger, served as co-chairs for the Board of Directors; and Trey Apffel, executive Director Harvest Celebration. of the State Bar of Texas.
thehoustonlawyer.com
John Eddie Williams and Sheridan Williams
Cheryl Elliott Thornton and Peter Thornton
Daniel D. Horowitz III and Knox Nunnally
Collin Cox and Jacquelyn Cox
Cory Jacobs and Susan Bickley
Stewart Gagnon and Lynn Gagnon
Bruce Shortt and Lan Nguyen
315th District Court Judge Michael Schneider Jr., Mary Schneider, and former Texas Supreme Court Justice Michael Schneider.
Ashish Mahendru and Sameera Mahendru
Benny Agosto, Jr. and Nikki Agosto
Gerald Hughes and Ivett Hughes
Ben Womack and Keri Brown
Morgan Lewis attorneys Jeff Dinerstein, John Petrelli, Catherine Eschbach, Ajani Brown and James Nortey. thehoustonlawyer.com
November/December 2018
31
OFF THE RECORD
O
Wise Cracking About Texas
The Houston Lawyer
By Justice Jeff Brown
ready accessibility has turned its creator into a go-to authority. n Saturday, November 3, 2018, inside the spanking Since starting the podcast, Justice Wise has been invited to give new museum at San Felipe de Austin State Historic the keynote address at such illustrious gatherings as the WashSite, there was a birthday party. The “birthday boy” ington-on-the-Brazos official Texas Independence Day celebrawas the Father of Texas, Stephen F. Austin, who’d tion and the annual dinner at the San Jacinto been born on that day 225 years Museum of History. He’s also been published ago. And serving as honorary cake cutter was three times in the Journal of the Texas Supreme Justice Ken Wise of Houston’s Fourteenth Court Historical Society. Justice Wise says he’s Court of Appeals. He was there not in his judinow giving about 30 speeches a year on Texas cial capacity, but in his newfound role as a Texhistory. as history celebrity. As the creator and voice of One of Wise About Texas’ thousands of reguthe Wise About Texas podcast, Justice Wise is lar listeners is a member of the Texas House of possibly Texas’ most renowned electronic hisRepresentatives, lawyer Mike Schofield of Katy. torian. Representative Schofield says Justice Wise “has Wise About Texas debuted in 2015. “I started a unique way of bringing the events and people the podcast as an outlet for my Texas history of Texas history to life.” In fact, Schofield adds, scholarship,” Justice Wise notes. “I wanted to Justice Wise’s storytelling “makes you wonder bring Texas history to people in a more modif he were fudging the facts to make the story ern way.” He’s now recorded 61 regular epibetter.” But Schofield knows that the “spicy desodes and several “bonus” episodes. The podJustice Ken Wise preserves the stories cast has been downloaded more than 275,000 of Texas through his podcast. To listen, tails” are just the product of Justice Wise’s extensive research. “I wait for every episode with times by listeners in 99 countries around the visit www.wiseabouttexas.com the same anticipation that I imagine Texas children used to wait world. “Texas is a special place,” Justice Wise says. “And its hisby their mailbox for magazines with stories of faraway places.” tory is why. I want to keep it that way. I want to preserve and But if you haven’t been a regular listener, you don’t have to wait promote Texas history and inspire people to do their part to keep for the next episode. “Don’t feel compelled to listen in order or Texas the best and most unique place to live.” start at the beginning,” advises Houston lawyer and Wise About A Texas history buff for as long as he can remember, Justice Texas fan Mike Brem. “The episodes are stand-alone.” Mr. Brem Wise’s own Texas roots are very deep. He’s a member of the Sons adds that as he knows his Texas history pretty well, “I like the ‘offof the Republic of Texas—whose membership is open only to the-beaten-path’ stories best. Episode 33, called ‘Beer, Love, and those who can prove they have at least one ancestor who lived in Murder: A Tale of Three Emmas,’ might be my favorite.” Texas during the days of the Republic. Justice Wise’s qualifying For those who haven’t yet discovered the podcast, a treasure ancestor is Dr. James Price, a physician and friend of Sam Houstrove of Texas history awaits. So, pick up that smart phone, strap ton, who emigrated from Tennessee to Houston in 1836. on those headphones, and go get “Wise About Texas.” But with the podcast, Justice Wise carried his love for Texas history from just a hobby to a scholarly pursuit. “I really focus on the scholarship. I try to turn journal-quality scholarship into Justice Jeff Brown was sworn in as a member of the Supreme an entertaining and interesting story for the listeners. I view Wise Court of Texas, then re-elected in November 2018. He previously About Texas as a way for them to sit on the porch and hear some served as a Houston appellate judge as well as on the trial bench. seriously researched Texas history.” After clerking for two justices on the Texas Supreme Court, JusWise About Texas’ rare combination of deep scholarship and tice Brown started his career at the Houston office of Baker Botts.
32
November/December 2018
thehoustonlawyer.com
A Profile
in pro f e s s i o n a l i s m
A
The Hon. J. Brett Busby Justice, Fourteenth Court of Appeals
s a judge, I have had the privilege of swearing in many new lawyers and welcoming them to our profession. When I served as the judicial liaison for the Houston Young Lawyers Association, we began holding a swearing-in ceremony at the Harris County 1910 Courthouse so that new lawyers could celebrate this milestone in Houston with the family, friends, and supporters who helped them achieve their dream. In these ceremonies, I share with the new lawyers that they will be serving in a helping profession. We are here to help our clients: we owe them duties of loyalty, care, and confidentiality, and we are their advocates in an adversary system. We must do our best work for them within their constraints of speed and cost. But it is worth remembering that we can sometimes help our clients best by saying no: by refusing to advance non-meritorious arguments, delay proceedings, abuse the discovery process, or reject reasonable requests by opposing counsel. These strategies are counterproductive because law is a profession, not just a business. We have obligations of honesty, integrity, and civility in dealing with the court and counsel. We are also called upon to cooperate with opposing counsel—our “learned friends” in English legal parlance—when possible consistent with client objectives. Inserting an undisclosed change into a draft, serving documents in a manner unlikely to provide notice, or attacking the court or counsel rather than their arguments is not only unlikely to help a client, it can destroy a professional reputation that takes years to build. As members of this profession, we are privileged to have the opportunity to serve people in need and causes important to us. Providing pro bono representation on a regular basis is a win-win: just as it allows us to gain experience and make a difference, it helps assure that more people have access to competent counsel regardless of their circumstances. Through my own pro bono cases in private practice and my work with the Texas Access to Justice Commission, I am grateful for the opportunity to join my fellow lawyers in acts of service that help make the promise of the law real. thehoustonlawyer.com
November/December 2018
33
committee spotlight
Promoting Literacy
One Book at a Time
B
The Houston Lawyer
By Tara L. Grundemeier
eing an avid reader and bibliophile, I was naturally communities here in Houston and in places far beyond. Books drawn to serving on the Houston Bar Association’s Between Kids builds home libraries for children who live in Lawyers for Literacy Committee. Like many, I find homes where books are a rare luxury, and Good Steward Global great enjoyment in reading and could not imagine Initiative establishes libraries in Uganda, Kenya, and Malawi. an inability to escape into a book. I wanted those In honor of the Committee’s 25th year of conducting the who could not read to book drive, the Commitexperience what I expetee set a goal of collecting rience. But after working 25,000 books and chose on the committee, and as its theme “25 for 25.” co-chairing it this year, I The 2018 book drive was realized my previous view a resounding success of literacy – the ability to with the number of books read or write – was exdonated surpassing the tremely limited. When we 25,000 goal and bringhear the term “literacy,” ing the overall number we immediately think of of books collected since someone not being able to 1994 to over 400,000. read a street sign or write In addition to the book a sentence. However, the drive, committee memterm has evolved to reflect Lawyers for Literacy Co-chairs Maria Lowry and Tara Grundemeier. bers also participate in societal and technological changes that have occurred both at Constitution Day and Law Day activities by reading books to home and around the world. For instance, Literacy Advance elementary school-aged children on topics such as the Constiof Houston defines literacy as “the ability to read, write, speak tution, the Presidency, the court system, and other law-related and listen, and use numeracy and technology, at a level that ensubjects. The Constitution Day readings occurred this year at ables people to express and understand ideas and opinions, to 100 schools across 21 school districts, reaching 8,392 students. make decisions and solve problems, to achieve their goals, and The students are always excited to have lawyers come to their to participate fully in their community and in wider society. school to read stories, and the lawyers are rewarded with rapt Achieving literacy is a lifelong process.”1 attention and eager questions. Realizing the need to play a part in this expanded definition The committee thanks all the law firms, legal departments of literacy, the Committee was established during the 1987and individuals for their donations of books and their valuable 1988 bar year to support literacy initiatives in and around the donations of time. greater Houston area. In 1994, the Committee started conducting an annual fall book drive in order to collect new and genEndnotes tly used books for different charities in Houston. The donated 1. www.literacyadvance.org. books are sorted by committee members and then distributed to over 30 different Houston-area charities and organizations. Tara L. Grundemeier is a partner in the bankruptcy section of Two such charities, Books Between Kids and Good Steward Linebarger Goggan Blair & Sampson, LLP. She is the 2018-2019 Global Initiative, demonstrate how the books they receive from co-chair of the Houston Bar Association’s Lawyers for Literacy the Houston Bar Association contribute to improved literacy in Committee.
34
November/December 2018
thehoustonlawyer.com
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 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 LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP
Morgan, Lewis & Bockius LLP Porter Hedges LLP ReedSmith LLP Winstead PC Winston & Strawn LLP
Boutique Firm Champions
KoonsFuller, P.C. MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP Shortt & Nguyen, P.C. Trahan Kornegay Payne, LLP
Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. LeClairRyan 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
Individual Champions
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 Law Office of Robert E. Price The Reece Law Firm, PLLC Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law
thehoustonlawyer.com
November/December 2018
35
LEGAL TRENDS
85th Texas Legislature Makes it More Difficult to Seal Juvenile Records
O
The Houston Lawyer
By Katya Dow and Christina Beeler
n September 1, 2017, the Texas Legislature’s new sealing law, Senate Bill 1304, went into effect. In spite of a growing national recognition that a person’s past criminal record, especially a juvenile record, should not hamper that person’s ability to move forward and become a productive member of society, the new law makes it more difficult for juvenile records in Texas to become sealed. Like the Houston Bar Association’s sealing program, the Juvenile and Capital Advocacy Project (JCAP), a non-profit legal clinic based at the University of Houston Law Center, provides record sealing services free of charge to eligible individuals. Sealing is the only effective way someone can ensure that he or she will not be hindered by a juvenile record. A person whose records have not been sealed is required to disclose any such an offense in any proceeding or application that inquires about criminal offenses. If a person’s records have been sealed, the information in the records, the fact that the records once existed, or the person’s denial of the existence of the records may not be used against the person in any manner, with the exception of military disclosure requirements and other sensitive federal government positions. In spite of popular misconceptions, juvenile records are not automatically sealed.
36
November/December 2018
Further, a record can exist and have negative effects even if the juvenile was never convicted. Thus, even when a juvenile has his or her case dismissed, or is placed on deferred adjudication, or receives deferred prosecution, a record is created and continues to exist in the absence of sealing. In one particularly egregious case at our practice, a young man was arrested in 2004 because he matched the description of a robbery suspect that happened several blocks from where he was walking with a friend. It was quickly confirmed that he had nothing to do with this offense and the charges were dismissed. In 2016, that same young man graduated from college and applied to become a police officer with the Houston Police Department. He was denied entrance because of his juvenile record, even though the record was only for an arrest for which there was no substantive evidence in the first place. He may have assumed that, given these facts, no record was ever created; or like many, he may have assumed his record was automatically sealed. Both those assumptions would have been mistaken. Now it is harder than ever to seal a juvenile record in Texas. Before SB 1304, individuals with misdemeanors were immediately able to attempt to seal their records via application as soon as the last action in the case was completed, so long as there was no pending delinquent conduct or pending adult charges or convictions. SB 1304 altered this requirement so that either two years must have elapsed since the final discharge in the case, or the individual seeking a sealing must be eighteen years or older. In practice, this leaves many graduating seniors with very few options regarding their juvenile records, which deters them at a pivotal moment in their lives from applying to college, the military, jobs, and technical schools. There are many attorneys in Harris County who are trained and willing to assist these clients with record sealings, including those who, like the attorneys in our program, are willing to do this work pro bono, but their hands are now tied by SB
thehoustonlawyer.com
1304’s counter-productive time limitations. The Texas Legislature might defend the recent record sealing changes by arguing that it simultaneously created a mechanism by which juvenile records can be sealed without an application or any action on the part of the involved individual when that individual turns nineteen years old. However, the mechanism by which those records could be sealed is unfunded and thus, the sealings are not happening, at least in Harris County,1 so that argument is unpersuasive. Additionally, this legislation purports to have benefitted individuals with records by restricting the number of agencies who have access to these records, but no fewer than six agencies continue to have access, and anyone “with a legitimate interest” in these records can access them. Finally, the fact that individuals with juvenile records are required to disclose them when asked about criminal offenses continues to create a significant barrier for young people attempting to move past these youthful errors and become productive citizens. SB 1304 will continue to have vital consequences for youth in Texas. During the next legislative session, this discrepancy should be reexamined, and attorneys who actually work with juveniles who can point out these issues should be a part of that conversation. Katya Dow is a professor of Legal Practice at the University of Houston Law Center and the Legal Programs Director for the Juvenile and Capital Advocacy Project. Christina Beeler is an Equal Justice Works Fellow sponsored by Latham & Watkins LLP and staff attorney at the Juvenile and Capital Advocacy Project. Endnotes 1. Notably, Harris County Juvenile Probation Department recently began working on automatic sealing for child in need of supervision cases (“CINS” cases). These cases involve conduct that is generally not “criminal” (i.e., would not cause an adult to go to jail or prison, but would result in a fine if the offender were not a minor), but indicates instead that the child needs supervision, such as running away from home and truancy.
LEGAL TRENDS
The Supreme Court Upholds the Viability of Waiver of Workers Compensation Subrogation Rights
W
By The Hon. Scott Link
estern Refining entered into a contract with Cactus that provided trucking services to Western. Therein, Western mandated that Cactus provide worker’s compensation coverage to its drivers. Western also required that the worker’s compensation policy “contain a waiver of subrogation rights” against Western. That is, the policy must include a waiver of the underwriter’s right to seek subrogation directly from Western for benefits the underwriter paid under Cactus’ worker’s compensation policy. Cactus purchased a worker’s compensation policy from Wausau Underwriters Insurance Company and paid a higher premium for a waiver of Wausau’s subrogation rights against Western.1 Cactus’s truck driver, Wedel, was injured while loading asphalt at one of Western’s terminals. Wedel filed a worker’s compensation claim with Wausau which paid benefits under the worker’s compensation policy. Wedel subsequently sued Western —alleging that Western contributed to his accident. Wausau, after non-suiting its intervention, maintained its entitlement to subrogation rights from any settlement paid to Wedel. Wedel joined Wausau as a third-party defendant and filed his summary judgment averring Wausau waived its subrogation rights
by reason of the waiver language. The trial Court granted the summary judgment for Wedel. The Court of Appeals Court affirmed. The Texas Supreme Court provided a historical analysis of the worker’s compensation carrier’s right to subrogation from a third party, and concluded, “the upshot of these provisions is that ‘until the carrier is paid in full[,] the employee or his representatives have no rights to any funds.’”2 In seeking to avoid the waiver, Wausau acknowledged a carrier could waive its lien, but argued that the policy also gave Wausau the right to recover payments from anyone not listed on the policy Schedule. In contrast, Wedel argued that Wausau is contractually prohibited from receiving money directly from Western directly and that it should not be allowed to achieve indirectly what it is contractually prevented from doing directly. Wedel further noted that to allow Wausau to collect from Wedel necessarily defeats the purpose of the waiver, a waiver for which Wedel’s employer paid a higher premium. The Court agreed with Wedel, affirming the trial Court’s summary judgment. In support, the Court noted the seeming unanimity of agreement supporting the viability and enforcement of waivers of subrogation, which are ubiquitous in the insurance industry. The waiver’s language is so universally accepted that the Texas Department of Insurance had not substantially varied its language in over 20 years. The Court further categorized Wausau’s attempt to recover the proceeds from the injured person as a blatant end run against its contractual bargain. The Hon. Scott Link is a former District Court Judge for Harris County. He practices primarily in litigation and is a member of the editorial board of The Houston Lawyer. Endnotes
1. The waiver of subrogation in the Wausau policy was a standard “subrogation waiver” promulgated by the Texas Department of Insurance. 2. Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 33 & n.1 (Tex. 2004) (quoting Argonaut Ins. Co. v. Baker, 87S.W.3d 526, 539 (Tex. 2002).
14th Court of Appeals finds Scheduling Contractor to have Caused Explosion
O
By Trey Holm
n May 8, 2018, a divided panel of the 14th District Texas Court of Appeals affirmed trial court judgment as modified in Critical Path Resources, Inc. v. Cuevas.1 Cuevas arose from a March 2012 explosion and fire at a Valero refinery in Memphis, Tennessee that killed one and severely burned five others. Litigation commenced against Valero and several other parties, including Critical Path—a subcontractor charged with providing an integrated schedule of all tasks undertaken for Valero’s ongoing turnaround project. At trial, the jury found Critical Path six percent responsible for the explosion and resulting injuries. Critical Path appealed, raising four issues, including challenging the jury’s findings on duty of care, proximate cause and damages, as well as the refusal to include a new and independent cause instruction by the trial court. Valero employed Mike Rivers, d/b/a Critical Path, as the master scheduler at a contract rate of $97.50 per hour. In this capacity, Rivers worked as Valero’s turnaround manager and lead planner to produce a detailed schedule governing the entire project. As envisaged, the schedule would identify each job, the logic supporting the job, and the applicable Valero policies and procedures governing each task. Prior to the incident, Valero instructed Rivers to schedule work on the refinery’s
thehoustonlawyer.com
Continued on page 40 November/December 2018
37
Media Reviews
A Lawyer’s Guide to Estate Planning: Fundamentals for the Legal Practitioner, Fourth Edition By Lara Rae Hunt and Leon Rushing Hunt III ABA Book Publishing, 2018
C
The Houston Lawyer
Reviewed by David T. Lopez
ircumstances that affect the provisions in an estate plan can vary significantly among different individuals. Such circumstances are discussed in great detail in the fourth edition of A Lawyer’s Guide to Estate Planning: Fundamentals for the Legal Practitioner, an excellent introduction to estate planning for general practitioners, as well as those interested in developing an estate planning practice. This book is co-authored by Mr. Leon Rushing Hunt, III—a Kentucky trust and estate lawyer with three decades of experience—and his daughter, Ms. Lara Rae Hunt, a former writer of the Kentucky Law Journal, who practices in her father’s firm. The book meticulously discusses the preparation of an estate plan: from the initial client conference and how to draft an engagement letter, to simple wills and trust drafting and how to select executors and trustees 38
November/December 2018
for the same, as well as how to establish more complex estate plans as demonstrated in life insurance planning, gift tax planning, retirement, and asset valuation. The authors also provide checklists and other resourceful tools in the book to guide lawyers interested in preparing their own estate plan, and how to work with financial advisers and estate planners regarding the same. This most recent edition of the book has been updated to include changes to estate and gift tax laws, including but not limited to the Tax Cuts and Jobs Act of 2017, which doubled the amount exempt from gift and estate taxes. These exemptions are expected by the authors to revert to the previous $5,000,000 in 2025, when the law is set to expire. The book also includes several forms and templates for estate drafting. Although the authors practice in a commonlaw state similar to Texas, the reader should still use due care and attention when utilizing the provided forms, as the same may need to be modified to ensure compliance with Texas law. The preparation of federal forms required by the Internal Revenue Service are also included in the book, as well as sample forms for minors’ or educational trusts, special needs trusts for handicapped children, charitable remainder trusts, living trusts, standby trusts and income-only trusts, with comprehensive discussion of their use. Moreover, the authors discuss circumstances that might lead to litigation and how the provisions of an estate plan might affect the decision to litigate or attempt a settlement. In sum, A Lawyer’s Guide to Estate Planning: Fundamentals for the Legal Practitioner would be a useful addition to any lawyer’s library as a reference and for person-
thehoustonlawyer.com
al guidance. Current owners of the third edition of this book, published in 2004, should consider obtaining the fourth edition for its many useful additions and comments on changes to the law in the interim. David T. Lopez is the managing attorney of David T. Lopez & Associates, where he practices employment and labor law, education law, and alternative dispute resolution. He is a member of the editorial board of The Houston Lawyer.
Advising the Small Business: Forms and Advice for the Legal Practitioner By Jean L. Batman ABA Book Publishing, 2017
T
Reviewed by Marcel de Chermont
here are plenty of books offering help and advice to the business community, but few directly offer advice to legal practitioners engaged in advising small businesses in the practical matters they face every day. Jean L. Batman’s Advising the Small Business offers pragmatic advice to lawyers on issues frequently encountered by their clients as they navigate the corporate world. Batman’s practical guide is specifically aimed at the new lawyer or small general practice legal practitioner, and covers a wide range of common business practice
Media Reviews
areas including capital raising, contracts and contractual clauses, legal drafting issues presented by business plans, forming corporations and protecting intellectual property. Each chapter commences with an introductory examination of the selected topic and progresses to a discussion of common touch points and pit falls. Batman offers insightful advice and practical realities surrounding each particular topic and presents realistic answers and guidance on common troubleshooting issues likely to be faced by business practitioners. Each chapter additionally provides a range of model form documents pertinent to the topic that reflect best practices and, where applicable, various options and alternatives are provided from which the lawyer can select, as appropriate. Key to the success of this book, however, are the checklists and additional resources Batman has included to alert the reader to possible hurdles that commonly need to be addressed and how to eliminate them as efficiently as possible. Refreshingly, Batman’s book deliberately avoids encroaching on the same territory covered by the numerous business texts aimed at entrepreneurs and the trite legal academic publications filling bookshelves of lawyers everywhere. By doing so, it provides the small firm practitioner and solo lawyer with a tremendous resource for functional knowledge and useful information. Accordingly, Batman’s Advising the Small Business establishes itself as a thoroughly valuable tool and should be placed front and center on every lawyer’s desk regardless of the size of the practice. Marcel de Chermont is a partner at Caledonia Consulting, LLC. His practice includes advising corporate clients on commercial terms, mergers & acquisitions, financing matters and other issues affecting small businesses. He is a member of the editorial board of The Houston Lawyer.
From the Trenches II: Mastering the Art of Preparing Witnesses Edited by James M. Miller ABA Book Publishing, 2017
M
Reviewed by Avi Moshenberg
ost litigators believe that witness testimony ultimately shapes a case’s outcome, whether in settlement or at trial. Yet many lawyers often downplay their own role in cultivating effective witness testimony for a variety of reasons: Some lawyers, for example, believe that witnesses must simply testify about what they know; therefore, the lawyer’s role is limited to asking proper questions regarding issues subject to the witness’ knowledge (rather than “coaching” the witness which certainly crosses an ethical line). Moreover, some lawyers may “downsize” the methods in which they elicit testimony as a means to keep attorney’s fees down, to accommodate a witness’ work schedule or for other administrative constraints related to the lawyer’s practice. Regardless of the reasons, according to James M. Miller and the team of authors that collaborated to write Mastering the Art of Preparing Witnesses, lawyers must do a better job of preparing their witnesses for trial. In this second
installment of the American Bar Association’s From the Trenches series, Mastering the Art of Preparing Witnesses offers useful tips and strategies to prepare the witness —the “star of any trial” 1 —to testify effectively and powerfully. In the opening pages of the book, the authors highlight the importance of the attorney acknowledging the difficult and uncomfortable experience of a testifying witness: “For all but the experienced expert witness, testifying is an alien experience and the courtroom is a strange and forbidding place. The witness needs help, and it’s the lawyer’s job to provide it.”2 Recognizing how the experience of witnesses plays an integral role in effective trial preparation strategy is just one of countless tools offered by this book. Mastering the Art of Preparing Witnesses is divided into four parts, each containing chapters and subchapters with descriptive headings. The book starts by shunning the notion that lawyers must simply unleash their witnesses without direction, understanding, and perspective. On the contrary, the authors assert that “[z]ealous advocacy requires the advocate to do everything within her power and resources to prepare the witness to testify truthfully in a way that benefits her client.”3 Furthermore, the book addresses typical hurdles that lawyers must clear to effectively prepare their witnesses, such as how to introduce witnesses to the testifying experience, how to handle fearful or arrogant witnesses, and even how to prepare company witnesses to testify at deposition. The authors also include useful tips for preparing witnesses to testify before a grand jury, an administrative judge, and even a Congressional committee. Mastering the Art of Preparing Witnesses
thehoustonlawyer.com
Continued on page 41 November/December 2018
39
LITIGATION MARKETPLACE
Office Space HOUSTON—ONE GREENWAY PLAZA, SUITE 100 Class A space available for sublease. 1st floor, vaulted ceilings, garage parking, phones, internet, cable, two conference rooms, receptionist, kitchen area. Available: 1 furnished interior office; 1 furnished secretarial space; and two virtual offices. Please contact Lawrence at 713-650-1222 or email: legal@texas.net Large furnished office in former art gallery (now law office) plus secretary’s cubicle. Near Richmond at Kirby. Phones, internet, kitchen, copier, postage all available. 713-840-9600.
Your Values. Your Influence. Your Legacy. Your Values. Your Influence.
Our Your Advice. Legacy. Our Advice. 10000 Memorial Drive Suite 650, TX 77024 713.683.7070 westwoodgroup.com
Sylvia Mayer smayer@smayerlaw.com
Professional Services Law Office of Jack Garland Probate Court Appearances $250 Flat Fee jack@jgarlandlaw.com All things driving and sealing/expunging criminal histories. We defend traffic and ordinance violations, remove arrest warrants, solve DPS license issues, obtain occupational licenses, and handle DWI, racing, reckless driving, evading, and hit and run cases. 41/2 YELP stars. Robert W. Eutsler 713-4646461 TheTicketAttorney.com
Cotropia Mediations The Houston Lawyer
Carla Cotropia Mills Shirley LLP 3 Riverway, Suite 670
713.225.0547 ccotropia@millsshirley.com cotropiaworkshops.com 40
November/December 2018
gary
lane
13710 treeban k lane houston , texas 77070 tel: 281 .894.8 608 cell: 713 .202.2 994 gsl007@ sbcglo bal.ne t
ma rke
tin g com mu
nic ati
on s
Braren
.440.3665 Arthur Tel. 281 .440.4936 m 90575 Fax 281 glass.co P.O. Box ston efifiber Hou defi@d 90 com Texas 772 glass. efifiber www.d
1,000
full color business cards for only
84.95
$
281-955-2448 ext.11 leo@quantumsur.com thehoustonlawyer.com
LEGAL TRENDS From page 37
south flare line. While Rivers dutifully scheduled the work, he did From left: Tom Williams, Donnie Roberts, Maureen Phillips, Bennett, not include within the Leah Schedule the preliminary task of isolatShelitha Smodic, Allen Lewis, Susan Wedelich ing and decontaminating the south flair. Despite Rivers’ failure to add these preliminary tasks to the schedule, however, both Valero and other contractors knew the south flair line needed to be isolated and decontaminated before they began work. In fact, a Valero employee “developed a written plan that he hoped would get the south flair isolated| Houston and cleaned.”2 Unfortunately, Valero’s work Westwood Wealthline Management 10000 Memorial Drive, Suite 650, at isolating and decontaminating was unsuccessful, a fact Valero Houston, Texas 77024 T 713.683.7070 apparently knew before continuing the work.3 Knowing the line westwoodgroup.com still contained hydrocarbons; Valero nevertheless changed its construction plans and began construction work on the flair line. The explosion ensued. At issue, then, was whether Critical Path’s failure to schedule a necessary predecessor task of isolating and decontaminating the refinery’s south flare line in preparation for the work thereon was a proximate cause of the explosion is the central issue in the opinion. Critical Path argued the failure to enter the cleaning into schedule was not a substantial factor giving rise to the March 2012 explosion and, in addition, Valero’s actions subsequent to the calendar entry should be considered new and independent causes breaking any causal connection between Rivers’ alleged failure to enter the preliminary tasks into the master schedule and the explosion. The majority disagreed. In so doing, the majority focused primarily on Critical Path’s global responsibility to not only add tasks to the master schedule, but to learn and understand all aspects of the turnaround project, such that each required task was placed in the right order with sufficient time to complete. Valero’s intervening conduct was among many root cause failures and contributing factors identified in the post-incident investigation report. But, “Because Critical Path had the obligation—as well as the necessary knowledge and access to information—to arrange for removal of the danger at the time when it could easily have done so, it makes sense to hold it at least partially responsible as a legal matter for injuries caused by that danger.” The dissent, on the other hand, argued the two intervening events did break the causal connection as superseding causes. Valero knew the isolation and decontamination tasks were necessary and were not completed when the work on the flare line began, and yet work proceeded. Trey Holm is the supervising attorney for the Harvey Legal Relief Project of Houston Volunteer Lawyers. His team coordinates free legal services to low-income families affected by Hurricane Harvey with volunteer attorneys. He is a member of The Houston Lawyer Editorial Board. Endnotes 1. NO. 14-16-00036-CV, 2018 W.L. 1532343 (Tex. App.—Houston [14th Dist.], May 8, 2018). 2. Id at *4. 3. Id at *5.
Media Reviews From page 39
is an invaluable tool for any attorney, whether you’re a “first-time, second-chair associate or a veteran first-chair partner preparing for your 100th jury trial[.]”4 For all the above-described reasons, Mastering the Art of Preparing Witnesses gets a rating of no objections.
The Houston Lawyer 0 4 3 9 6 6 0 X Bi-montly 6
Avi Moshenberg is a commercial litigator at McDowell Hetherington LLP. He is a member of the editorial board of The Houston Lawyer.
There is not staff editor for this publication
Endnotes 1. MICHAEL L. O’DONNELL ET AL., FROM THE TRENCHES II: MASTERING THE ART OF PREPARING WITNESSES ix (James M. Miller ed., ABA Book Publishing 2017). 2. Id. 3. Id. at 19 (emphasis added). 4. Id. at ix.
For classifieds ads:
09-30-2018 $ 12.00 Tara Shockley 713-759-1133
Houston Bar Association, 1111 Bagby St., FLB 200, Houston, TX 77002-2592 Houston Bar Association, 1111 Bagby St., FLB 200, Houston, TX 77002-2592 Houston Bar Association, 1111 Bagby St., FLB 200, Houston, TX 77002-2592
Tara Shockley, Houston Bar Association, 1111 Bagby St., FLB 200, Houston, TX 77002-2592
Houston Bar Association
1111 Bagby St., FLB 200, Houston, TX 77002-2592
x
x The Houston Lawyer July-August, 2018 Bi-monthly magazine for legal association
Mary Chavoustie mary@quantumsur.com or call her at: 281.955.2449 ext. 3
9,500
9,500
631
637
8,469
8,487
0
0
0 9,100 37
0 9,124 54
24
44
0
0
0 0 61 98 9,161 9,222 339 278 9,500 9,500 99.33% 98.93% 0 0 9,100 9,124 9,161 9,222 99.33% 98.93% X X
November-December
, Magazine Editor
thehoustonlawyer.com
09-30-2018
November/December 2018
41
Lawyer Ad - Aug-17.indd 1
9/7/2017 11:31:34 AM