THL Sep/Oct_2013

A Focus on Plaintiffs’ Trial Practice The Do’s and Don’ts of Medicare and Medicaid Lien Resolution and Settlement Practices Mental Anguish: The Overlooked Element of Damages Using Computer-Generated Animation in the Courtroom ‘Be Sures’ for the Minor’s Guardian Ad Litem The Myth of Lone Rangers Immigration Issues Unique to a Plaintiffs’ Practice

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Volume 51 – Number 2

September/October 2013

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contents Volume 51 Number 2

September/October 2013

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FEATURES Do’s and Don’ts of Medicare 10 The and Medicaid Lien Resolution and Settlement Practices

By Clayton W. Starnes and Scott Freeman

Anguish: The 14 Mental Overlooked Element of Damages

By Chelsie King Garza

Computer-Generated 20 Using Animation in the Courtroom

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By Benny Agosto, Jr. and Sammy Ford IV

Sures’ for the Minor’s 26 ‘Be Guardian Ad Litem

By Christine Sampson Willie

Myth of Lone Rangers: 30 The Ethical Dilemmas Faced

by Attorneys

By The Hon. Jeff Work

Issues Unique 34 Immigration to a Plaintiffs’ Practice

By Ruby Powers

The Houston Lawyer

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34

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

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

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contents Volume 51 Number 2

September/October 2013

34 36

38

departments Message 6 President’s The Ambassadors

By David A. Chaumette the Editor 8 From The Challenges of a Plaintiffs’ Practice

By Robert Painter Lawyers Who Made a Difference 36 Houston George E. B. Peddy

By The Hon. Mark Davidson Profile in Professionalism 38 ASammy Ford IV

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40

Abraham, Watkins, Nichols, Sorrels, Agosto & Friend

SPOTLIGHT 39 COMMITTEE Houston Lawyer Referral Service

Committee Celebrates 55 Years of Service

By Farrah Martinez

the Record 40 OffTracie Jackson:

Sharing a Love of Dance

By Angela L. Dixon

Trends 41 Legal U.S. Supreme Court Sets High

Standard for Proving Workplace Retaliation Claims

By Jill Yaziji

U.S. Supreme Court Limits States’ Rights of Recovery Under Medicaid Statute

By Preston D. Hutson

Big Bird Tree Services v. Gallegos: Medical Expenses by a Charitable Organization are “Actually Incurred”

By Hector G. Longoria

The Houston Lawyer

Cover: The new HBA Ambassadors will help spread the word to the legal community about the benefits of HBA membership and community service.

Read more about the HBA Ambassadors in the President’s Message on page 6. They are (seated, from left): Helene Dang, Ashish Mahendru, Anna Archer, Mickey Baden, Diana Gomez, HBA President David Chaumette, and Sammy Ford IV; (standing, from left): Yvonne Ho, Angelica Hernandez, Nicole Voyles, Alex Macias, Travis Torrence, Knox Nunnally, Danielle Maya, Clinton Yu, Tamara Stiner Toomer, Brian Albrecht, and Daniel Ramirez. Not pictured: Chevazz Brown and Genetha Turner.

Photo by Anthony Rathbun Photography.

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September/October 2013

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Reviews 43 Media American Bar Association Guide

to Wills & Estates

Reviewed by Keri D. Brown

American Bar Association’s Legal Guide for Military Families Reviewed by Tara Shockley

44 Litigation MarketPlace

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president’s message

By David A. Chaumette Chaumette, PLLC

The Ambassadors

T

give members the opportunity to choose how they want to rehe cover of this month’s magazine features one of the ceive their publications from us. We redesigned and reorganized Bar’s new programs, the Ambassadors. The Ambasour website to make it easier for our members and the public sadors represent the present and the future of our bar. to find information. We revamped our emails to members. And, They are 10 men and 10 women, young lawyers who we are increasing our outreach to law students, because we want will reach out to other bar associations in the Housthem to start their legal careers with the foundation that HBA ton area, as well to groups within the Houston Bar Asmembership can provide. sociation. Their role is to learn more about the But we need to do more to get information HBA and talk to these groups about how the asThe Ambassadors out to members. My purpose in creating the sociation can improve their lives and their pracrepresent the present Ambassadors is twofold. First, the bar needs tices. They also are Ambassadors to the HBA, to get before its members. Gone are the days bringing back to us the comments and suggesand the future of our when people will find the bar. Today, the bar tions of these groups. must work to find its members. We need to get bar. They are 10 men Last year, as the chair of the Membership out to our constituents where they are, we need Committee, I ran focus groups to learn what and 10 women, young to listen and to demonstrate to people what it people knew about the bar and what they wantlooks like to be part of the bar and to be more ed from it. The media is full of stories about lawyers who will responsive to their needs and concerns. the changing landscape of advertising, the inreach out to other bar My second reason for creating this program creased diversity in our cities, and great leaps in is to cultivate the leaders of tomorrow. When technology. My reaction to these different influassociations in the I was president of the Houston Young Lawyers ences was to wonder how the bar could remain Association, I started a group called the Leaderrelevant.

Houston area... ship Academy to teach young lawyers how to As the president, I know that the bar does a do community service. The idea was that, as a society, we don’t lot of great things, but in those focus groups we learned that our do a very good job of role-modeling. So I asked my friends to members don’t always know about those programs. Because my come in and talk to young lawyers about their leadership journey. practice is in the area of technology litigation, specifically in eWe had the district attorney, the city controller, two city council discovery, I’m fascinated with how we communicate. We all unmembers, the president of the State Bar, we had somebody who derstand that most communication is nonverbal; it’s in intonastarted a nonprofit after-school program. Basically, they said, “this tion, gesture and tone, yet we communicate more through the is how I got to where I am today.” They gave people a vision of written word, through texts or Twitter. In our focus groups I was where they can be. Similarly, the Ambassadors program can be a trying to find out how people want to hear from the bar, to see way for the bar to identify talented people so that we can get them how people communicate and to use that information to tailor involved and positioned to become the leaders of tomorrow. the message.

My hope is that our Ambassadors will be an important part of People said the bar does a lot of great things, we just didn’t outreach to the community of lawyers. I’m asking for your help know about it. And that is not limited to our community service; as well. If you lead another bar organization, please reach out to they also did not know about some of our member services. The the HBA and its Ambassadors and have them attend one of your bar puts on hours upon hours of CLE every month – much more meetings so we can discuss how the HBA can better work for you. than any of us require. The bar can help you build a practice, The results will not only be better communication and a better develop a new area of practice, or give back to your community. future for the HBA, but more importantly, a better future for our We listened carefully to these focus groups, and we have almembers as well. ready made a number of changes to meet their needs. We now

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10 Ways the HBA serves you.

• Meet your MCLE requirements through 80+ hours of FREE CLE and 120+ hours of discounted online CLE programming each year • Support your profession and community • Professional networking opportunities.

• Get to know the local judiciary • Pro Bono opportunities • Stay current on legal issues, educational programs and events through HBA publications • Learn to lead through committee participation • Gain the right tools for your practice through Section membership • Opportunities to participate in over 35 community programs • Partnership discounts at local venues and vendors

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from the editor

By Robert Painter Painter Law Firm PLLC

Associate Editors

Julie Barry Attorney at Law

Angela L. Dixon Attorney at Law

Farrah Martinez Harris County District Clerk

The Challenges of a Plaintiffs’ Practice

I

and economically-viable claims, plaintiffs’ lawyers started my legal career at a large civil defense have to be efficient, mastering how to focus their firm, where I handled mainly medical malpraccases so tremendous amounts of time and money tice cases. At the end of 2005—a few years after (which they usually have to advance, by the way) are 2003’s tort reform measures when into effect—I not wasted on unnecessary discovery, cumulative exstarted my own firm, where I focus on plaintiffs’ perts or chasing down rabbit trails. work, including medical Plaintiffs’ lawyers are an impormalpractice.

In the transition tant part of our civil justice system In the transition from defense from defense to and the HBA membership. Withto plaintiffs’ work, I quickly realout them, of course, civil litigation ized that to survive and thrive, plaintiffs’ work, would evaporate and our society’s practitioners in the plaintiffs’ bar I quickly realized overall quality of life would detemust learn to be entrepreneurriorate rapidly. I, for one, have thorial, effective and efficient. Enthat to survive and oughly enjoyed my plaintiffs’ practrepreneurship starts with findthrive, practitioners tice and am often reminded of the ing clients. Unlike civil defense Psalm’s admonition to, “Defend the attorneys, who may have longin the plaintiffs’ bar poor and fatherless: do justice to the term professional relationships afflicted and needy.” Psalm 82:3. with repeat clients, most clients must learn to be In this issue, we have several arof plaintiffs’ lawyers are only entrepreneurial, effective ticles that will be of interest to atone-time litigants. In addition to torneys who do plaintiffs’ work, as conventional methods like peer and efficient. well as litigators in general. Benny referrals, recommendation from Agosto, Jr. and Sammy Ford, IV wrote about computsatisfied clients and TV, radio or print advertising, er-generated animation in the courtroom. Christine many plaintiffs’ lawyers successfully use inexpensive Sampson Willie discussed guidelines for guardian and free advertising on internet sites like Avvo to ad litems. Clayton Starnes and Scott Freeman adreach potential clients. dressed the byzantine requirements of Medicare and In a plaintiffs’ practice, though, finding potential Medicaid for satisfying their liens out of settlements. clients is not the hardest part. Attorneys have to be Chelsie King Garza wrote on mental anguish, from effective in selecting only those cases that are merithe dual perspectives of proving up damages, as well torious and that make economic sense within the as the plaintiffs’ attorney’s role as counselor in helphurdles and recovery limitations imposed by the law. ing make sure clients get the mental health help that In my opinion, if there are plaintiffs’ attorneys who they need. Ruby Powers discusses immigration isregularly take on frivolous cases, they will not stay in sues unique to a plantiff’s practice. And the Hon. Jeff business very long because they have to eat the often Work invoked the Lone Ranger’s name while discusssignificant case expenses when they lose their cases. ing ethical issues.

Even after finding good clients with meritorious

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”

The Houston Lawyer

Don Rogers Harris County District Attorney’s Office

Jill Yaziji Yaziji Law Firm

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September/October 2013

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BOARD OF DIRECTORS President

Secretary

David A. Chaumette

Neil D. Kelly

President-Elect

Treasurer

M. Carter Crow

Laura Gibson

First Vice President

Past President

Todd M. Frankfort

Brent Benoit

Second Vice President

Benny Agosto, Jr.

DIRECTORS (2012-2014)

Alistair B. Dawson Brent C. Perry

Warren W. Harris John Spiller

Hon. David O. Fraga Bill Kroger

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

editorial staff Editor in Chief

Robert Painter Associate Editors

Julie Barry Farrah Martinez Jill Yaziji

Angela Dixon Don Rogers Editorial Board

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

Managing Editor

Tara Shockley

HBA office staff Membership and Technology Services Director

Executive Director

Kay Sim

Ron Riojas

Administrative/ Financial Assistant

Membership Assistant

Ashley G. Steininger

Ariana Ochoa

Project Coordinators

Claire Nelson Rocio Rubio Bonnie Simmons

Continuing Legal EducationAssistant

Receptionist/ Resource Secretary

Director of Education

Amelia Burt

Lucy Fisher Cain

Lucia Valdez

Communications Director

Tara Shockley

Communications/ Web Designer

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September/October 2013

9

By Clayton W. Starnes and Scott Freeman

C The Do’s

and Don’ts of Medicare and Medicaid Lien Resolution and Settlement Practices

ompliance with the Medicare and Medicaid statutes in personal injury litigation is in constant flux because of continued legislation and new court opinions. Plaintiffs are no longer the only ones bearing the burden of compliance as tortfeasors and their defense carriers have also become equally obligated to ensure that Medicare and Medicaid’s interests are adequately protected.

In addition to determining and negotiating Medicare and Medicaid’s claim for reimbursement from a settlement, judgment or award, preserving those benefits for payment of future treatment is also critical. The purpose of this article is to help attorneys navigate the tangled web of complex lien resolution and benefit preservation.

Medicare In 1965, the Medicare Trust was established to provide healthcare benefits for individuals who are 65 and older or have received Social Security Disability Insurance (SSDI) for 24 months. When it became clear that the Medicare Trust was losing money and would eventually deplete itself, Congress passed the Medicare Secondary Payer Act (MSP) in 1980. The Medicare Modernization Act, in 2003, and the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) further changed the way Medicare’s past and future interests are treated in litigation. Both plaintiffs and defense carriers now have a statutory duty to ensure that Medicare’s interests are adequately protected. In fact, failure to appropriately satisfy Medicare’s interests may adversely affect litigants on all sides and result in double damages.1 One hurdle for plaintiffs is determining and negotiating Medicare’s right of reimbursement from a personal injury settlement, judgment or award. Oftentimes, Medicare includes charges in its Conditional Payment Summary (CPS)

that are unrelated to the lawsuit. Because Medicare is only entitled to reimbursement for claims paid as a consequence of the tort at issue in the lawsuit, plaintiffs must comb through and audit Medicare’s CPS and petition that any unrelated charges be removed. Plaintiffs should start this process early in the litigation. At the settlement stage, plaintiffs notify Medicare of settlement information and request a Final Demand from Medicare. It can take up to 45 days to receive Medicare’s Final Demand report.

The Final Demand amount is calculated by reducing the conditional payment amount by Medicare’s share of the procurement costs incurred by plaintiffs to obtain the recovery.

The aforementioned requirement is pretty straightforward: Medicare is entitled to be reimbursed for injury-related payments it has made from the date of injury through settlement. But, how do we consider Medicare’s future interest in the settlement or award? And, is a Medicare Set-Aside (MSA) necessary? Based upon language in the MSP Act, Medicare considers itself to be in a secondary position to a recovery for past and future medical expenses, in terms of Medicare’s obligation to pay claims related to the recovery.2 Medicare’s position is that when payment is made toward future medical expenses, “payment has been made” for an item or service otherwise covered by Medicare. Therefore, Medicare is considered secondary, and those funds should be depleted before submitting claims to Medicare for payment of future-related treatment of the type normally covered by Medicare. More often than not, however, settlement agreements in liability cases contain a general release of claims and do not include an amount specifically allocated for future injury-related medical expenses. In those situations, how do litigants determine what is actually recovered for future medical expenses? This is a gray area in liability cases.

In worker’s’ compensation cases, regulations, rules and guidelines specifi-

cally define when an MSA determination is necessary and how it should be calculated and administered. However, there are no similar regulations in the liability arena, and Medicare has not outlined any procedures for liability cases in similar ways. Nevertheless, the Center for Medicare and Medicaid Services (CMS) routinely gives a standard response that “the Medicare Trust must be adequately considered and protected” in liability cases as well as worker’s’ compensation cases. Plaintiffs would be prudent to consider Medicare’s future interest when a recovery is obtained for future medical expenses and the plaintiff is a Medicare beneficiary or is reasonably expected to become eligible for Medicare within 30 months.

It is anticipated that Medicare will at some point issue proposed rulemaking for MSA’s in liability cases, but until then a settling plaintiff who is a Medicare beneficiary must (1) adequately consider Medicare’s future interest, and (2) carefully document such effort. An MSA is not required. In fact, the term “Medicare Set-Aside” does not exist in any statute or regulation. It is simply Medicare’s vehicle of choice in protecting the Medicare Trust.

Sadly, plaintiffs’ attorneys must also protect themselves—from their own clients. Attorneys have no control over a plaintiff’s post-settlement decision to misappropriate set-aside funds. Therefore, it is imperative that plaintiff’s counsel identify Medicare beneficiaries and educate them on Medicare’s secondary payer status prior to releasing funds.

Since the passage of Section 111 of the MMSEA in 2007, defense carriers are required to report settlement amounts, types of injuries, and corresponding injury (ICD-9) codes. With this information, Medicare can easily inquire about its secondary payer status before paying for a lawsuit-related claim. Hence, it is imperative that defense carriers report only compensable injuries and their corresponding ICD-9 codes to Medicare. In fact, plaintiff’s attorneys are well advised

to include a paragraph in the settlement agreement setting forth the compensable injuries and/or ICD-9 codes that will be reported by the defense carrier.

Many times plaintiffs allege that a defendant exacerbated a pre-existing injury. Presume that a plaintiff suffers multiple injuries in a motor vehicle accident requiring future treatment but that the defense carrier takes the position that the back injury, for example, was pre-existing. In this case, the back injury and the corresponding ICD-9 codes should not be reported to Medicare. Otherwise, Medicare may deny payment since their system will show that the plaintiff recovered money for a back injury which is primary to Medicare. Additionally, Medicare can deny payment for a clearly related treatment after a settlement if the plaintiff cannot show that Medicare’s future interest was reasonably considered and any set-aside properly exhausted.

Therefore, it is wise for plaintiff’s attorneys to make a reasonable allocation for future medical expenses and to have the client sign a client-acknowledgement letter explaining Medicare’s secondary payer status. It is equally wise to draft two checks to the client—one payable to the plaintiff for the set-aside amount, with the check memo explaining that this amount is for “Medicare Set-Aside,” and a second payable to the plaintiff for the remaining net. That way, the law firm can demonstrate that Medicare’s future interest was properly considered and accounted for through a well-documented file.

Medicaid Medicaid is a means-tested program that is jointly funded by the federal government and state agencies. Allowable procurement offsets vary drastically from state to state. Some states are not statutorily obligated to provide procurement offsets, while others provide an offset for attorney’s fees and expenses. Pursuant to the 2006 U.S. Supreme Court ruling in Arkansas Department of Health and Social Services v. Ahlborn, 547 U.S. 268

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(2006), Medicaid agencies can only be reimbursed from the portion of a settlement or judgment that represents payment for past medical expenses from the date of injury to the date of settlement.

Prior to the Ahlborn decision, state Medicaid agencies operated under differing parameters when determining their lien amounts, and asserted claims for reimbursement from a plaintiff’s entire recovery, even when recovery was limited or the recovered money was intended to compensate non-medical claims.

When there is a general release and no specific allocation for past medical expenses, the Ahlborn Court suggests comparing the settlement amount to the true value of the injuries in order to determine what was actually recovered for past medical expenses. The Court held that Medicaid’s reimbursement was limited to only one-sixth of the state’s payment for medical bills where the insured collected only one-sixth of her total damages, stating that “[t]he statute does not sanction an assignment of rights to

payment for anything other than medical expenses—not lost wages, not pain and suffering.”

After Ahlborn, a few states were successful in limiting the application of Ahlborn where a state statute caps Medicaid’s right of reimbursement. For example, a state with a statute capping Medicare’s reimbursement at one-third of a recovery construed its statute as establishing a conclusive presumption that one-third of a settlement represents compensation for past medical expenses. Earlier this year, however, the U.S. Supreme Court held in WOS v. E.M.A., 133 S.Ct. 1391 (March 20, 2013), that “[w]hat [a State] cannot do is what North Carolina did here: adopt an arbitrary, one-size-fits-all allocation for all cases.” Hence, the WOS decision is an approval of Ahlborn´s prorata loss sharing analysis.

Government Benefit Considerations Attorneys not only have to protect the lien interests that a government agency or private insurance carrier may have

in a case but also have to remember to protect the valuable government benefits that a client is currently receiving or may be eligible to receive. Often, the benefits available through Medicaid over a plaintiff’s lifetime can far outweigh the value of a settlement.

Supplemental Security Income (“SSI”) and Medicaid are needs-based programs.

In most states, disabled people who qualify for SSI automatically become eligible for Medicaid, which is the federal/ state program for medical-care coverage for the needy. Medicaid benefits can cover items like prescription medication, transportation, and home-based care.

Because these programs are asset-tested programs, the settlement or award to the plaintiff may affect these benefits. For example, a person with approximately $2,000 in total assets may not be eligible for SSI and/or Medicaid in most states, depending on the circumstances.

Plaintiffs’ lawyers have to adequately consider and attempt to protect those benefits before distributing funds. It

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would be a travesty to distribute funds to a client that would render the entire family ineligible for Medicaid, SSI, food stamps, Section 8 housing, Temporary Assistance for Needy Families, energy assistance or another form of assistance for families in need. Hence, it may sometimes be appropriate to engage an experienced elder law attorney or settlement planning firm with knowledge of government benefits for such cases. Additionally, it is recommended that the claimant sign a waiver form acknowledging that a receipt of funds could potentially disrupt valuable government benefits and public assistance programs.

Clayton W. Starnes is the principal consultant and attorney at law at The Plaintiff’s Resource, a sister company to The James Street Group.

Scott Freeman is a settlement planner with the James Street Group.

Endnotes

1. 42 U.S.C. § 1395(b)(2)(B)(iii).

2. 42 U.S.C. § 1395(b)(2)(A)(ii).

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September/October 2013

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By Chelsie King Garza

Mental L Anguish: The Overlooked Element of Damages

awyers often spend more time talking to their injured clients than do the physicians treating their injuries. This puts attorneys in a unique position to utilize their role of advisor and counselor, in addition to the advocacy role that a plaintiffs’ lawyer has to seek proper noneconomic damages for the client.

The first part of this article addresses, in broad strokes, the signs and symptoms of depression, anxiety and posttraumatic stress disorder (“PTSD”).

The second part of this article discusses the legal standards for seeking mental health damages.

Many of the signs and symptoms of depression, anxiety and PTSD can be identified by asking a few simple questions during everyday client interactions: • Are you sleeping?

• If not, what is keeping you up at night?

• Are you spending time with your friends or family as you did before the accident?

• Are you eating?

These questions can open discussions that will allow you to quickly assess your client’s mental health and how they are coping with what has happened. Clients who need help coping and getting back to some sense of normal because of their new physical reality or mental trauma should seek treatment. The more severe the mental anguish, the more it may impact all aspects of your client’s life. Your help getting them the care they need can be crucial to their mental as well as physical recovery.

Depression, anxiety, and PTSD, whether singularly or in combination, can cause functional impairment that interferes with a person’s ability to work.

These mental health disorders can persist, further impairing your client’s ability to get better, if left untreated.

A. DEPRESSION The most common mental health issue from which an injured client may suffer is depression. Depression goes beyond occasionally feeling sad or blue; it interferes with daily life and causes pain for both the affected and their families. According to the National Institute for Mental Health, depression is a common but serious illness.

Major depressive disorder, or major depression, is characterized by a combination of symptoms that interfere with a person’s ability to work, sleep, study, eat and enjoy once-pleasurable activities.1 Major depression is disabling and prevents a person from normal social and work place functioning.

1. Signs and symptoms of depression The severity, frequency, and duration of symptoms of people with depressive illnesses may vary depending on the individual and the illness. Signs and symptoms include: • Persistently sad, anxious or “empty” feelings; • Feelings of hopelessness; • Feelings of guilt, worthlessness or helplessness; • Irritability and restlessness (especially in men suffering from depression); • Loss of interest in activities once pleasurable, including sex; • Fatigue and decreased energy; • Difficulty concentrating, remembering details and making decisions; • Insomnia, or excessive sleeping; • Overeating or appetite loss; • Thoughts of suicide and/or suicide attempts; and/or • Aches or pains, headaches, cramps or digestive problems.2 The Beck Depression Inventory (“BDI”) is a test consisting of 21 multiple-choice questions designed to determine if a person is depressed and to what extent.

Because the BDI is a self-reporting test, a person with a brain injury may not accurately report symptoms. Additionally,

people who are afraid of the cultural stigma that a mental health issue carries with it may not accurately report symptoms or answer questions that are obviously geared towards assessing mental health.

2. The depression-pain cycle According to Baylor College of Medicine faculty member Francisco Perez, Ph.D., “The longer pain persists, the more tenacious and debilitating it becomes. Pain can freeze a personality in much the same way it freezes a joint. People in pain get stuck and begin to chase hopes and promises, eventually finding only disappointment, frustration, and more pain. It is the chase, the quest for pain eradication, that leads one to hopelessness and disability.”3 Perez described what he referred to as “the pain-go-round” and how people can get trapped in the cycle of pain and disappointment, which often has a deep behavioral impact. The pain-go-round is the “circular, repetitive process of pain treatment and disappointment, followed by new treatment, new hope, renewed pain, and more disappointment. It characterizes the chronic pain condition. Most chronic pain problems, if left unattended, tend to get worse, not better.”4 The “pain-go-round” cycle works like this: First, symptoms develop. The origin may be pathological, physiologic, emotional, or both [sic]. The patient seeks treatment, which is either successful or unsuccessful. If successful, chronic pain does not develop. If treatment fails, there are repeated attempts to diagnose and treat the continuing pain. These attempts usually lead to the overuse of medication and of the health-care system. If, after four to six months the pain has not been successfully treated, it is then chronic, because we have not been successful and sufficient time has elapsed for learning factors to have complicated the history and course of the pain and to have influenced the behavior of the patient and his family.5 The traditional psychiatric interven-

tions do not work well with patients like this, and often the patient is advised to go home and live with his pain. This typically produces considerable anger and rage on the part of the patient, and leads to another medical assessment. Since the patient knows that he hurts, being told that the pain is imaginary seems absurd, and the health care provider involved loses credibility.6 In addition, the thought that the pain is all in their head can exacerbate mental health issues such as depression and PTSD.7 People suffering from chronic pain caused by depression may get stuck in this cycle, especially if both are untreated: From these complex and interacting variables, chronic disability develops, including deteriorating marital and family relationships, feeling of worthlessness and helplessness and inability to perform the usual tasks and responsibilities including work. …This leads to further exacerbation of the psychological symptoms often thought to be the cause of chronic pain rather than its effects. In addition to direct and passive expression of anger, these symptoms include depression, anxiety, sleeplessness, and the excessive use of denial, as well as somatic over concern.

People with chronic pain can become absorbed by their pain, live a life regulated by subjective discomfort, and, most unfortunately, not participate in the day-to-day joys of living. …Chronic pain is real.8 B. ANXIETY DISORDERS Another common mental health issue that injured clients suffer is anxiety disorder. People with generalized anxiety disorder (“GAD”) go through their day filled with exaggerated worry and tension, even though there may be little or nothing to provoke it.9 They anticipate disaster and are overly concerned about health issues, money, family problems or difficulties at work.10 Sometimes the thought of getting

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through the day produces anxiety.

The symptoms of generalized anxiety disorder include: • Inability to get rid of concerns even though they usually realize that their anxiety is more intense than the situation warrants; • Unable to relax, startle easily and have difficulty concentrating; • Trouble falling asleep or staying asleep; • Fatigue; • Headaches; • Muscle tension, muscle aches; • Trembling, twitching; • Irritability; • Sweating;

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• Nausea; • Lightheadedness; • Feeling out of breath; and/or • Hot flashes.11 GAD affects about 6.8 million American adults,12 including twice as many women as men. The disorder develops gradually and can begin at any point in the life cycle, although the years of highest risk are between childhood and middle age.13 Other anxiety disorders, depression or substance abuse often accompany GAD, which rarely occurs alone.14 If an anxiety disorder is diagnosed, a doctor must first diagnose the type of disorder or the combination of disorders present, as well as any co-existing conditions, such as depression or substance abuse. Sometimes alcoholism, depression, or other coexisting conditions have such a strong effect on the individual that treatment of the anxiety disorder must wait until the co-existing conditions are brought under control.15 As a result, when a person has overlapping conditions it may take time to bring every condition under control.

The Beck Anxiety Inventory (“BAI”) is a test also consisting of 21 multiple choice questions that is designed to assess whether the person is suffering from an anxiety disorder and the severity of that anxiety. It is a self-reporting test.

As a result, the

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same concerns exist with the BAI as with the Beck Depression Inventory.

C. POST-TRAUMATIC STRESS DISORDER A less common but more severe mental health issue to look for in an injured client is PTSD. PTSD develops after a terrifying ordeal involving physical harm or the threat of physical harm.16 The person who develops PTSD may have been harmed or may simply have been a bystander. PTSD was first brought to public attention through the experiences of war veterans. But PTSD can result from a variety of traumatic incidents apart from war, such as mugging, rape, torture, being kidnapped or held captive, child abuse, car accidents, train wrecks, plane crashes, bombings or natural disasters.17 People with PTSD may startle easily, become emotionally numb (especially in relation to people with whom they used to be close), lose interest in things they used to enjoy, have trouble feeling affectionate, be irritable, become more aggressive, or even become violent. They avoid situations that remind them of the original incident, and anniversaries of the incident are often difficult. PTSD symptoms may be worse if the event that triggered them was deliberately initiated by another person, as in a mugging, rape or kidnapping.18 Most people with PTSD repeatedly relive the trauma in their thoughts during the day and in nightmares when they sleep. These flashbacks may consist of images, sounds, smells, or feelings, and are often triggered by ordinary occurrences, such as a door slamming or a car backfiring on the street. A person experiencing a flashback may lose touch with reality and believe that the traumatic incident is happening again.19 PTSD affects about 7.7 million American adults,20 but it can occur at any age, including during childhood.21 Women are more likely to develop PTSD than men,22 and there is some evidence that susceptibility to the disorder may run in families.23 Individuals in serious motor vehicle accidents end up with full PTSD criteria

39.2 percent of the time.24 PTSD is often accompanied by depression, substance abuse or one or more of the other anxiety disorders.25 Children suffering from PTSD are often misdiagnosed as suffering from attention deficit disorder, hyperactivity, phobias, depression or separation anxiety.

D. PTSD IN ICU PATIENTS Estimates of PTSD in critically ill patients have been reported as high as 63 percent,26 rivaling illness rates in traditionally “high-risk” populations such as those prone to cancer.27 It may be that critical illness is uniquely stressful due to the ICU experience, such as awareness during painful procedures, a sense of helplessness, loss of control and an imminent threat of death. Such experiences may be traumatic for the person.

Critical illness survivors often report that life-saving measures used in the ICU commonly result in pain and anxiety.28 In addition, the acute illnesses that threaten each person’s life create formidable stress.

These experiences may result in longterm morbidity in survivors, including depression, anxiety and other psychological disorders.29 One such morbidity, PTSD, has been identified in a significant portion of ICU survivors.30 Contemporary theories suggest that people with impaired consciousness (i.e., those in semi-conscious states) during a traumatic event also suffer from PTSD for the following reasons: (a) people can experience the traumatic event after they regain consciousness; (b) processing still occurs and encodes thoughts and images at an implicit level during periods of impaired consciousness; and (c) some people appear to reconstruct memories or experiences from photographs that then “become memories” and provide the basis for the generation of PTSD symptoms, even in the absence of any conscious awareness.31

toms. Malingering can simply be thought of as false simulation or exaggeration of illness for secondary gain (i.e., financial benefit, acquiring privileges, obtain¬ing drugs, avoidance of duty or avoidance of criminal responsibility and punishment).32 The DSM-IV requires the amount of exaggeration to reach the level of being “grossly exaggerated” before a diagnosis of malingering may be made. Many emotionally upset and/or anxious individuals are prone to mild or moderate exaggeration, but do not have an intent to deceive, and, therefore, should not be characterized as malingerers.33 Regardless, there are only two absolute ways to identify malingering: (1) the individual confesses to it, and/or (2) the individual is observed engaging in “normal” behavior that he or she claims is not possible (e.g., a bedridden patient filmed out washing a car).34 F. EVIDENTIARY THRESHOLD FOR RECOVERING MENTAL HEALTH DAMAGES In 1995, the Texas Supreme Court set

standards of proof to recover for mental anguish by holding that evidence to prove such damages must establish “a substantial disruption in the plaintiffs’ daily routine” caused by an extraordinarily high degree of suffering.35 Texas has authorized recovery of mental anguish damages in virtually all personal injury actions36 because “[w]here serious bodily injury is inflicted... we know that some degree of physical and mental suffering is the necessary result.”37 When negligent conduct causes mental shock or mental anguish that manifests itself as a bodily injury, the defendant is liable for that injury provided it was foreseeable.38 Mental anguish is also compensable absent bodily injury when it is the foreseeable result of a breach of a duty arising out a special relationship.39 Where there is no physical injury or a special relationship, a plaintiff may only recover for mental anguish in a few types of cases involving injuries “of such a shocking and disturbing nature that mental anguish is a highly foreseeable re-

E. MALINGERING OR EXAGGERATING There may be times when you encounter an allegation that your client is malingering or exaggerating his or her sympthehoustonlawyer.com

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sult.40 Nevertheless, in those cases where damages for mental anguish are clearly foreseeable, Texas no longer requires a physical manifestation of injuries.41 The plaintiff, however, must produce direct evidence of the nature, duration and severity of the mental anguish, and establish a substantial disruption of daily routine, in order to obtain mental anguish damages.42 When a plaintiff fails to present direct evidence of the nature, duration, or severity of mental anguish, traditional “no evidence” standards apply. The record must contain evidence of “a high degree of mental pain and distress” that is “more than mere worry, anxiety, vexation, embarrassment, or anger” to support an award of damages for mental anguish.43 G. SUBMITTING MENTAL ANGUISH IN THE CHARGE Depending upon the facts of the case, an attorney may wish to submit separate special issues for physical pain and mental anguish damages. The trial court has

broad discretion in constructing the jury charge as long as it is legally correct.44 The Texas Pattern Jury Charges, which propose submitting the issues of physical pain and mental anguish jointly, serve as a guide only and are not binding on trial courts.45 And courts have held that physical pain and mental anguish are in fact separate and distinct elements of damage for personal injuries.46 Chelsie King Garza is an associate with Abraham, Watkins, Nichols, Sorrels, Agosto & Friend.

Endnotes 1. Depression, National Institute of Mental Health, U.S. Department of Health and Human Services, 2009.

2. Id. 3. Perez Ph.D., Francisco I., Presentation at The Baylor College of Medicine 20th Anniversary Review Course in Physical Medicine and Rehabilitation: Managing Pain as a Behavior (April 1986).

4. Id. 5. Id. 6. Id. 7. Id. 8. Id. 9. Anxiety Disorders¸ National Institute of Mental Health, U.S. Department of Health and Human Services, 2009.

a

No judge, no jury, no apel late court Y O U determine t he value of your case.

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10. Id. 11. Id. 12. Kessler RC, Chiu WT, Demler O, Walters EE, Prevalence, severity, and comorbidity of twelve month DSM-IV disorders in the National Comorbidity Survey Replication (NCS-R), 62 ARCHIVES OF GEN. PSYCHIATRY 617627 (2005).

13. Robins LN, Regier DA, eds., Psychiatric Disorders in America: the Epidemiologic Catchment Area Study, (New York: The Free Press 1991).

14. Id.; Yehuda R, Biological factors associated with suscep¬tibility to posttraumatic stress disorder, 44 CAN. J. OF PSYCHIATRY 34-39 (1999).

15. Yehuda R, Biological factors associated with suscep¬tibility to posttraumatic stress disorder, 44 CAN. J. OF PSYCHIATRY 34-39 (1999).

16. Id. 17. Id. 18. Id. 19. Id. 20. Kessler RC, Chiu WT, Demler O, Walters EE, Prevalence, severity, and comorbidity of twelve month DSM-IV disorders in the National Comorbidity Survey Replication (NCS-R), 62 ARCHIVES OF GEN. PSYCHIATRY 617627 (2005).

21. Margolin G, Gordis EB, The effects of family and community violence on children, 51 ANNUAL REV. OF PSYCHOLOGY 445-479 (2000).

22. Davidson JR, Trauma: The impact of post-traumatic stress disorder, 14 J. OF PSYCHOPHARMACOLOGY (2 Supp 1) S5-S12 (2000).

23. Yehuda R, Biological factors associated with susceptibility to posttraumatic stress disorder, 44 CAN. J. OF PSYCHIATRY 34-39 (1999).

24. Marshall, Randall, et al., Comorbidity, Impairment, and Suicidality in Subthreshold PTSD, 158 AM. J. PSYCHIATRY 1468 (September 2001).

25. Regier DA, Rae DS, Narrow WE, et al., Prevalence of anxiety disorders and their comorbidity with mood and addictive disorders, 34 BRIT. J. OF PSYCHIATRY SUPPLEMENT 24-28 (1998).

26. Schelling G, Briegel J, Roozendaal B, Stoll C, Rothenhauster HB, Kapfhammer HP, The effect of stress doses of hydrocortisone during septic shock on posttraumatic stress disorder in survivor, 50 BIOL PSYCHIATRY 978985(2001).

27. Smith MY, Redd WH, Peyser C, Vogl D, Post-traumatic stress disorder in cancer a review, 8 PSYCHOONCOLOGY 521-537 (1999); Shemesh E, Koren-Michowitz M, Yehuda R, Milo-Cotter O, Mur-dock E, Vered Z, Shneider BL, Gorman JM, Cotter G, Symptoms of posttraumatic stress disorder in patients who have had a myocardial infarction, 47 PSYCHOSOMATICS 231-239 (2006).

28. Novaes MA, Knobel E, Bork AM, Pavao OF, NogueiraMartins LA, Ferraz MB, Stressors in ICU: perception of the patient, relatives and health care team, 25 INTENSIVE CARE MED 1421-26 (1999); Puntillo KA: Pain experiences of intensive care unit patients, 19 HEART LUNG 526-533 (1990).

29. Angus D, Musthafa AA, Clermonte G, Griffin MF, Linde-Zwirble WT, Dremsizov TT, Pinsky MR, Qualityadjusted survival in the first year after the acute respiratory distress syndrome, 163 AM J RESPIR CRIT CARE MED 1389-94 (2001).

30. Schelling G, Stoll C, Haller M, Briegel J, Manert W, Hummel T, Len-hart A, Heyduck M, Polasek J, MeierM,

Health-related quality of life and posttraumatic stress disorder in survivors of the acute respiratory distress syndrome, 26 CRIT CARE MED 651-59 (1998).

31. Brewin CR, Andrews B, Rose S, Fear, helplessness, and horror in posttraumatic stress disorder: investigating DSM-IV crite¬rion A2 in victims of violent crime, J TRAUMA STRESS 2000, 13:499-509; Bryant RA, Posttraumatic stress disorder and traumatic brain injury: can they co-exist?, 21 CLINICAL PSYCHOL REV 93148 (2001); Brewin CR, A cognitive neuroscience account of posttraumatic stress disorder and its treatment, 39 BEHAV. RES. & THERAPY 373-93 (2001); Schacter DL, Chiu CY, Ochsner KN, Implicit memory: a selective review, 16 ANN. REV. NEUROSCIENCE 159-82 (1993).

32. Resnick P., Guidelines for the evaluation of malingering in posttraumatic stress disorder. In: Simon R, editor.

Posttraumatic stress disorder in litigation: guidelines for forensic assessment, Washington, DC: APPI; 1995. p.

117-34; Brady K, Killeen T, Brewerton T, Lucerini S., Comorbidity of psychiatric disorders and posttraumatic stress disorder, 61 J. CLINICAL PSYCHIATRY (Suppl. 7) 22-32 (2000); Gorman W., Defining malingering, 27 J. FORENSIC SCI. 401-7 (1982); Wiley S., Deception and detection in psychiatric diagnosis, 21 PSYCHIATRY CLINIC NORTH AM. 869-93 (1998); Resnick P., The detection of malingered psychosis, 22 PSYCHIATRY CLINIC NORTH AM. 159-72 (1999); Nies K, Sweet J., Neuropsychological assessment and malingering: a critical review of past and present strategies, 9 ARCH CLINICAL NEUROPSYCHOL. 501-52 (1994).

33. Am. Psychiatric Ass’n. In: First M, editor. Diagnostic and statistical manual of mental disorders, 4th ed. Washington, DC: APPI; 2000. p. 463-8.

34. Id. 35. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).

36. Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex. 1995).

37. See City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex.1997) (quoting Brown v. Sullivan, 10 S.W. 288, 290 (1888)).

38. Id. at 495–96. See also Cavitt v. Jetton’s Greenway Plaza Cafeteria, 563 S.W.2d 319, 323–24 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ) (holding plaintiff suffered physical injury of severe and persistent nausea and mental anguish after finding a roach in her food).

39. Likes, 962 S.W.2d at 496. See also, e.g., Krishnan, 916 S.W.2d at 482 (physician-patient relationship); Stuart v.

W. Union Tel. Co., 66 Tex. 580, 18 S.W. 351 (1885) (failure to deliver news of a family emergency); Freeman v.

Harris County, 183 S.W.3d 885, 890 (Tex. App.—Houston [1st Dist.] 2006, pet. filed) (loss of baby’s body during statutorily-mandated autopsy); Pat H. Foley & Co. v.

Wyatt, 442 S.W.2d 904, 907 (Tex. Civ. App.—Houston [14th Dist.] 1969, writ ref’d n.r.e.) (failure to properly embalm corpse at funeral home).

40. Likes, 962 S.W.2d at 496. See also, e.g., Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex. 1988) (bystander recovery); Service Corporation International v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011) (mishandling a corpse) (“Generally, an award of mental anguish damages must be supported by direct evidence that the nature, duration, and severity of mental anguish was sufficient to cause, and caused, either a substantial dis-

ruption in the plaintiff’s daily routine or a high degree of mental pain and distress.”).

41. See Likes, 962 S.W.2d at 495.

42. See id. (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)).

43. Woodruff, 901 S.W.2d 444.

44. Five Star Int’l Holdings Inc. v. Thomson, Inc., 324 S.W.3d 160, 169 (Tex. App.—El Paso 2010, pet. denied).

45. Styers v. Schindler Elevator Corp., 115 S.W.3d 321, 32526 (Tex. App.—Texarkana 2003, pet. denied).

46. Leyendecker v. Harlow, 189 S.W.2d 706, 711 (Tex. Civ. App.—Galveston 1945, writ ref’d w.o.m.). See also Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248 (Tex. App.—Texarkana 2005, no pet.).

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By Benny Agosto, Jr. and Sammy Ford IV

Using ComputerGenerated Animation in the Courtroom INTRODUCTION The use of animation in the court room has recently received unprecedented public exposure thanks to the George Zimmerman trial.1 On July 9, 2013, the judge presiding over the murder trial wrestled with the issue of whether to allow in the defense’s 3D recreation of the altercation between Zimmerman and the shooting victim, Trayvon Martin. The prosecution objected to its use, arguing that it was inaccurate. The defense responded by

calling the animator to the stand. The evidentiary hearing, with the animator as a witness, took an entire day. After expressing frustration with the hearing’s length, on the following day the judge allowed the defense to use the animation but said that it could not be used as evidence and could only be shown during closing.

The situation is slightly different in Texas than what was seen in the Zimmerman trial. Courts here are much more receptive to the use and admissibility of computer-generated animation, which is a good thing because decisions on admissibility and use are within the discretion of the trial court. It behooves Texas trial lawyers to make sure that their animation complies with evidentiary rules because a judge who finds that they do not may likewise not be inclined to allow the use of the animation at all. In other words, rare is the court that finds an animation inadmissible but still helpful for the jury.

As new courthouses are built and old courtrooms are renovated, practitioners are using technology more and more in civil and criminal trials. It has become almost expected that a modern courtroom will be equipped with Elmos, computers, big screen televisions and LCD projectors. Multimedia presentations have also become increasingly common in nearly all trials. Many attorneys now use multimedia audiovisual presentations throughout the trial process, while many more are considering using such technology to enhance their trial presentations.

Computer-generated animation, used as demonstrative evidence to explain or illustrate a witness’s testimony, is a powerful evidentiary tool that must be used with care. Because of its dramatic power, the trial attorney must carefully scrutinize demonstrative evidence for proper foundation, relevance, accuracy and the potential for undue prejudice. This article reviews recent court decisions and prepares the trial practitioner for evidentiary issues that may arise from the decision to

include computer-generated animation in a trial presentation.

WHY DEMONSTRATIVE EVIDENCE WORKS Many studies, articles and books have attempted to explain why demonstrative evidence works. For the trial practitioner, common sense confirms without a doubt that demonstrative evidence makes a presentation more interesting and memorable.

Keeping the attention and focus of jurors during trial is always a challenge. The mind of the average juror tends to wander, especially when the trial presentation involves the reading of a long deposition or viewing a long portion of a videotaped deposition. By introducing demonstrative evidence in the form of computer-generated animation, the trial lawyer can bring to life evidence that would otherwise be boring and tiresome.

In 1963, McGraw-Hill published a wellknown and universally-accepted study regarding information retention, the WeissMcGrath report, which affirmed what most trial practitioners already knew: Seeing is believing. The Weiss-McGrath report found “a one-hundred percent increase in juror retention of visual over oral presentations and a six-hundred percent increase in juror retention of combined visual and oral presentations over oral presentations alone.”2 The study was designed to evaluate specifically how individuals retain information. The study compared retention of information presented in three different formats: (1) orally only; (2) visually only; and (3) visually and orally. After the initial presentation of information, the study measured information retention at various intervals. After 72 hours the group presented information solely by oral means retained only 10 percent of the total presentation. The group receiving information solely by visual means retained twice the information, or 20 percent of the total information presented. But those who received information both orally and visually retained 65 percent of the total presentation. The authors of the study concluded that presentations using both visual and

oral stimuli result in increased information retention over a longer period of time than presentations utilizing only visual or oral elements.

Why Use Demonstrative Evidence?

According to the Weiss-McGrath study, there is a dramatic increase in retention after SEEING AND HEARING versus just SEEING or just HEARING the same information.

Hearing After 3 hrs. 70% retention

After 72 hrs. 10% retention Seeing After 3 hrs. 72% retention

After 72 hrs. 20% retention Hearing & Seeing

After 3 hrs.

85% retention

After 72 hrs. 65% retention3

USE OF DEMONSTRATIVE EVIDENCE IN TRIAL: COMPUTER-GENERATED ANIMATIONS AND THE TEXAS CASES A trial lawyer can generally present demonstrative evidence to a jury with little difficulty. Utilizing demonstrative aids in trial requires an understanding of the basic predicates for the admissibility of demonstrative evidence, as well as a presentation that accurately reflects the admitted substantive evidence presented during trial.4 In order to be admissible, demonstrative evidence must: (1) relate to the admissible substantive evidence; (2) fairly and accurately reflect the substantive evidence; and (3) aid the trier of fact in understanding or evaluating the substantive evidence.5 A trial court has broad discretion in determining the admissibility of demonstrative evidence, and its ruling may be overturned only if there is a clear abuse of discretion.6 The Substantially Similar Standard It is well-settled that when an experiment or demonstration is conducted out of court and out of the presence of opposing counsel, the evidence offered must be substantially similar to the actual facts of the case.7 However, the conditions depicted in a video presentation do not need to be identical to the facts of the contested case.8 When dissimilarities exist but are

minor or easily explained to the jury, the admission of the experiment is within the trial court’s discretion. In that event, the trial court must determine whether the dissimilarities cause the evidence of the experiment to confuse rather than aid the jury.9 Texas Supreme Court Cases The Texas Supreme Court adopted and applied the substantial similarity test in two key opinions discussed below. Several courts of appeals have also determined whether an experiment video was substantially similar to the facts of a case.10 It must be noted that these decisions all hinged on whether the differences between the experiment video and the actual event were adequately explained to the jury.11 The trial practitioner should review some or all of the following cases when considering presenting computer-generated animation at trial.

In 1958, the Texas Supreme Court decided Pittman v. Baladez, a case where the owner of a truck brought an action against the driver of a pickup truck for damages incurred in a head on collision.12 After the lawsuit was filed, the driver of the pickup truck filed a cross-action against the truck driver for personal injuries. The jury awarded the owner of the pickup truck $35,000 in damages as a result of the personal injuries he sustained, and the truck driver appealed.

The main issue on appeal concerned whether or not testimony involving an experiment performed by an expert witness at the scene of the accident could be admitted at trial. The expert testified that after the accident, and up to two days before the date of his testimony, he had observed some 15 or 20 trucks similar to the type of truck driven by Pittman. The expert staged this experiment near the site of the accident, utilizing a stop watch to document the activity of truck drivers in the area.13 The witness testified that the speed the trucks were traveling was from 55 to 60 miles per hour. He also testified that he watched the trucks topping the hill, and

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the hill was 300 or 400 yards from where he was seated. Based on his observations of similar trucks driving at a speed between 50 and 60 miles an hour, the expert concluded that the plaintiff’s truck must have crossed over the center line and caused the accident.

After the court of civil appeals upheld the admission of the expert’s testimony, the Texas Supreme Court examined the record, concluded that the so-called experiment was not an experiment at all but merely an observation of trucks similar to the type of truck involved in the accident, and held that the expert’s testimony was inadmissible because his observations were made under circumstances that were not substantially the same as those existing at the time of the collision. It determined in that regard that the evidence failed to pass the relevancy test and that for experimental evidence to be relevant and admissible at trial there must be some logical connection, either directly or by inference, between the evidence offered and the fact to be proved.14

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Later, in Fort Worth & Denver Railway Company v. Williams, the Supreme Court reversed a judgment awarding damages for a wrongful death resulting from a railroad crossing collision and remanded the case for a new trial because the trial court erroneously admitted evidence of an experiment that was not sufficiently similar to the facts of the case.15 The court recognized that generally before evidence of an experiment made out of court and outside the presence of the opposing party will be admissible there must be a substantial similarity between conditions existing at the time of the occurrence that gives rise to the litigation and those in existence at the time the experiment is conducted.16 Nevertheless, the Court observed that it is not essential that the conditions during the experiment be identical to the exact facts of the case. When a dissimilarity exists, testimony regarding an experiment should be excluded from evidence if the results would probably confuse, rather than aid, the jury. But when the dissimilarities are minor or can be made abundantly

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clear by explanation, the determination of the admissibility of the proffered experiment testimony lies within the discretion of the trial judge.17 Texas Intermediate Appellate Court Cases In Sosa v. Koshy, Houston’s First Court of Appeals found that a trial court did not abuse its discretion when it admitted an accident reconstruction video into evidence.18 During cross-examination, the accident reconstruction expert admitted that: (1) the video showed no cars in the drive-thru even though on the day of the accident there were three or four cars in the drive- thru; (2) the video showed a white pickup truck even though Koshy was driving a car; and (3) the video was made on a sunny day, but the accident occurred on an overcast day.19 The appellate court found the evidence was admissible because the expert was vigorously cross-examined about the differences between his reconstruction video and the actual events, and the comparative differences depicted in the video went to the weight of the testimony

rather than its admissibility.20 In University of Texas at Austin v. Hinton, the Austin Court of Appeals held evidence of an out-of-court experiment was properly admitted.21 Hinton sued the University of Texas for negligence because the plastic grate from a light fixture fell about five feet and struck him on the head.22 The trial court admitted a video into evidence that showed a plywood cutout that was the size of the plastic grate falling and striking a dummy over the University’s claim of lack of substantial similarity because the heavier plywood struck the dummy with much greater force than the plastic grate that struck Hinton.23 The appellate court found that the differences between the experiment and the actual occurrence were sufficiently explained to the jury to avoid the possibility of confusion where testimony from Hinton’s expert established that (1) the videotaped experiment was not meant to be an exact duplication of the incident in which Hinton was injured, (2) a plywood grate was used in the recreation of the accident because a plastic grate similar

to the one that fell on Hinton could not be obtained, and (3) the purpose of the video was to show how the grate fell rather than how forcefully it fell.24 In City of Dallas v. Cox, the Dallas Court of Appeals held that the trial court did not abuse its discretion by admitting a video of an experiment depicting a ballistics test designed to demonstrate the effects of bullets on Cox’s body.25 The appellate court found that the test, which employed gelatin blocks rather than human tissue, was substantially similar to the occurrence at issue, and the dissimilarities were adequately explained to the jury.26 In Garza v. Cole, Houston’s Fourteenth Court of Appeals held that the trial court did not abuse its discretion by admitting video footage depicting the reconstruction of an accident in which a pedestrian was struck by an automobile.27 Testimony given by the expert who prepared the video showed that (1) the weather conditions were similar on the day of the accident, (2) the video was made while traveling in the same direction as the defendant was driv-

ing and (3) the vehicle was traveling at the same speed at which the defendant was driving. The expert also explained the other differences between the video and the facts of the actual incident.28 The appellate court held the discrepancies between the video and the incident were adequately explained, and went to the weight of the evidence rather than its admissibility.29 Likewise, in Horn v. Hefner, the Texarkana Court of Appeals agreed with the trial court that the conditions depicted in the experiment video were substantially similar to the actual events of the case, and that any discrepancies between the video and the actual events were either minor or adequately explained to the jury by the expert witnesses.30 The appellate court also found that the video served the jury to the extent that it gave it an opportunity to see the scene of the collision, and that with the explanations given the dissimilarities between the video and the actual events did not create a prejudicial effect on the jury.31 In contrast, in Lopez v. Foremost Paving,

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Inc., the San Antonio Court of Appeals found that the trial court abused its discretion by admitting a video of an experiment generally demonstrating how an accident occurred that was not substantially similar to the actual accident.32 The appellate court observed that the jury could have perceived the video as a simulated re-enactment of the incident, but the producers of the video did not inform the jury of the differences between the video and the accident, and made no attempt to portray the fog or the darkness in which the accident actually occurred.33 The court found that the impact of this dissimilar simulation of the accident on the jurors’ minds could have been considerable.34 Finally, in Lewis v. State, the Amarillo Court of Appeals held that the trial court erred by admitting in evidence a threedimensional animation of a murder that was not substantially similar to the facts shown by the evidence.35 The appellate court observed, among other things, that record showed that the audio portion of the animation included seven gunshots of

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the same decibel range whereas a witness testified that she heard “maybe five” shots and the victim sustained wounds from a .40 caliber gun and a .22 caliber gun, and the video portion showed three suspects of identical height and weight whereas the actual three suspects differed in height and weight.36 The court found that many of the details in the animation were unsupported by the record and speculative, and accordingly held that the trial court abused its discretion by admitting it in evidence.37

rooms in Texas and throughout the country. When used as a complement to expert witness testimony, computer-generated animation can be an effective tool for jury persuasion, providing a memorable image married to compelling narration.38 Benny Agosto, Jr. is a partner in Abraham, Watkins, Nichols, Sorrels, Agosto & Friend.

Sammy Ford IV is an associate at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend.

Endnotes

CONCLUSION The successful use of computer generated animation depends on careful consideration of the facts and details of the case.

A collaborative effort between the attorney, the expert witness, and the computer animation specialist will ensure accuracy, a key element for both admissibility and effectiveness at trial. While admissibility is never certain, computer-generated animations that meet guidelines, such as those articulated in the aforementioned cases, have gained general acceptance in court-

thehoustonlawyer.com

1. The authors wish to thank Sonia Lopez for her assistance in preparing this article.

2. H. Weiss and J. B. McGrath, Technically Speaking: Oral Communication for Engineers Scientists and Technical Personnel (1963).

3. 18th Annual Advanced Civil Trial Course, State Bar of Texas (1995).

4. Ford Motor Co. v. Miles, 967 S.W.2d 377, 389 (Tex. 1998).

5. Goff v. Cont’l Oil Co., 678 F.2d 593, 596 (5th Cir. 1982).

6. Id. See also Creating and Presenting Persuasive Demonstrative Evidence by Andy Payne, Advanced Personal Injury Law Course, State Bar of Texas (2002).

7. Fort Worth & Denver Ry. Co. v. Williams, 375 S.W.2d 279, 281-282 (Tex. 1964).

8. Id. 9. Id. at 282. See also Horn v. Hefner, 115 S.W.3d 255, 257 (Tex. App.—Texarkana 2003, no pet.); Sosa v. Koshy, 961 S.W.2d 420, 430 (Tex. App.—Houston [1st Dist.] 1997, pet. denied).

10. Horn, 115 S.W.3d at 257 (citing Koshy, 961 S.W.2d at 430) (holding no abuse of discretion because the expert was cross-examined after the differences between the video and the actual event); Univ. of Texas at Austin v.

Hinton, 822 S.W. 2d 197, 203 (Tex. App.—Austin 1991, no writ) (holding no abuse of discretion because differences were explained to jury); Lopez v. Foremost Paving, Inc., 796 S.W.2d 473, 481 (Tex. App.—San Antonio 1990, writ dism’d) (finding an abuse of discretion because there was no explanation between the differences and the actual event); City of Dallas v. Cox, 793 S.W.2d 701, 734 (Tex. App.—Dallas 1990, no writ) (holding no abuse of discretion because differences were explained to the jury); Garza v. Cole, 753 S.W.2d 245, 247 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (holding no abuse of discretion because there was testimony explaining the differences between the video and the actual event).

11. Horn, 115 S.W.3d at 257.

12. Pittman v. Baladez, 312 S.W.2d 210 (Tex. 1958).

13. Id. at 215.

14. Id. at 216.

15. Williams, 375 S.W.2d at 281-83.

16. Id. at 281-82.

17. Id. at 282.

18. Koshy, 961 S.W.2d at 430 (involving video of accident reconstruction).

19. Id. 20. Id. 21. Hinton, 822 S.W.2d at 202-03.

22. Id. at 199.

23. Id. at 202-03.

24. Id. at 203.

25. Cox, 793 S.W.2d at 734.

26. Id. 27. Garza, 753 S.W.2d at 247.

28. Id. 29. Id. 30. Horn, 115 S.W.3d at 256-59.

31. Id. at 259.

32. Lopez, 796 S.W.2d at 481.

33. Id. 34. Id. 35. Lewis v. State, 402 S.W.3d 852, 861-66 (Tex. App.—Amarillo 2013, pet. filed).

36. Id. at 862.

37. Id. at 865.

38. Steven P. Breaux, Generally, Is Forensic Animation Right for Your Case? Vol. 39, No. 12 TRIAL (2003).

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By Christine Sampson Willie

‘Be Sures’ for T the Minor’s Guardian Ad Litem

he guardian ad litem’s responsibility is to guide the parties through the process of the minor settlement conference and beyond. This article is a framework for ad litem counsel to follow throughout the minor settlement process, while providing an idea of what litigation counsel should expect from the guardian ad litem assigned to their case.

1. Be Sure to Appear in the Case: File and serve a notice of appearance so that all counsel are aware of your appearance in the case, and to ensure that you are noticed on all filings in the cause after your appearance.1 2. Be Sure to Know Your Role: As the guardian ad litem, you are an officer of the court appointed to assist the court in properly protecting the child’s interests.2 Your role is to thoroughly gather information from all available resources relevant to the best interests of the minor, so you can be positioned and equipped to make informed “best interest” recommendation(s) to the court for the minor. Often, the key reason for the need of a guardian ad litem is to address potential and/or actual conflict of interest issues among other parties and the minor. For example, if a “next friend” is also an individual party in the cause, the individual’s interests may not also be in the minor’s best interests. Your role is to ensure that this conflict is addressed and that any proposed settlement represents the best interest for the minor.3 You are not legal representative for the minor before the court. That role was filled before your appointment by the plaintiffs’ counsel. Instead, if a proposed settlement does not reflect the best interests of the minor, your role is to inform the court of your concerns respecting that settlement and to participate in the case to the extent necessary to protect the minor’s interest.4

3. Be Sure to Meet the Minor and the Minor’s Family: Personally meet the minor and the minor’s family. Do not send a legal assistant or a paralegal to do this. You do it. Your personal involvement and information gathering is indispensible to performing the guardian ad litem role properly.

By meeting the minor, you can best assess the minor’s living circumstances and needs, obtain information about the severity of the minor’s physical and/or mental challenges, observe parental and other family interaction with the minor and the stability of the home environment and, if possible, obtain information directly from the minor of concerns, plans and dreams. Knowing this information is critical to making “best interest” recommendations to the court.

4. Be Sure to do an Independent Evaluation of the Case.

Thoroughly review the case files and settlement proposals to determine if settlement is in the minor’s best interest. It is the guardian ad litem’s responsibility to identify and raise issues of concern that may not have been identified or raised by other parties to the litigation. Regardless of the stage in the case at which you are appointed, you should thoroughly review and evaluate the case retrospectively and prospectively to well serve the minor and the court. In evaluating the case, review medical records, liability facts, damages sustained, net proceeds the child will receive in the proposed settlement compared to other parties in the case, the relative equities and other issues of fairness, the needs of the child, the wants and goals of the child and whether the child is likely to benefit more from the settlement than by going to trial.

5. Be Sure to Prepare and File a Guardian Ad Litem’s Report with the Court.

After you have made an independent evaluation of the case and have formed recommendations that you believe are in the child’s best interest, prepare and file a report to the court setting forth those

opinions and the reasons and other support for them. Provide as much detail in the report as you believe is necessary to address clearly your best interest recommendations for the child. Your report may include: a concise summary of your review of the case; the mental, physical and other damages sustained by the child; your opinion on the physical and mental condition of the child as observed during your in-person meeting(s) with the child and family; the settlement proposal(s); your opinion of the current and future needs of the child; your opinion of whether the proposed settlement will provide sufficient financial resources to address those needs of the child (if applicable); whether you, as guardian ad litem, accept or reject the current settlement proposal and reasons for such; and your assessment of the minor’s best interest and the manner in which the settlement should best address those concerns.

6. Be Sure to Personally Attend the Minor’s Settlement Conference.

Work with all counsel, parties, and court staff to coordinate a date that all can attend the settlement conference. If possible, have the minor attend the hearing, too, to provide the judge with the opportunity to see the minor and ask questions of the child. You should file the Report of the Guardian Ad Litem before the scheduled settlement conference to allow the judge to review it prior to the court date.

At the conference, have a record made of the proceeding and retain the court reporter’s information in your file so that you may obtain a copy of the proceeding if necessary. Better yet, ask the court reporter to place a copy of the record into the court’s file, or file a motion with the court to perpetuate the record for the court’s file. Remember, the child has two years past the age of majority (up to age 20 in Texas) to sue you for matters related to the settlement.

The proposed settlement will be presented to the court and all concerned will have an opportunity to inform the judge of the particulars of the settlement. At

the settlement conference, either you or the plaintiffs’ counsel should be sure that the parents/next friends understand the terms of the proposed settlement; that they understand the contingent fee nature of the agreement with their attorney(s); that agreeing to the settlement forever closes their ability to bring another suit in the cause; that if they declined the settlement and went to trial, the judge or jury may award terms different from the settlement; and that they as natural guardians of the minor have the legal duty to provide child support, which includes the costs of medical care for the child, out of their portion of the settlement or from their own other means.

You should be sure that the court and the record are clear on your positions and recommendations for the minor as guardian ad litem concerning the minor’s best interest. At the settlement conference, it is wise to re-urge the issues addressed in the Report of the Guardian Ad Litem previously filed with the court. It is particularly good to cover your knowledge of liability and damage facts relevant to the minor. Additionally, and if applicable, you should introduce documents into the record that provide support for your best interest recommendations. For example, if the minor’s physician has released the minor from the need for future medical treatments related to the incident made the basis of the lawsuit, you should introduce that information into the court’s record.

If the court agrees with the proposed settlement, the Court will enter an order approving the settlement.

7. Be Sure to Follow Through After the Court Order.

After the Court has entered its order, the guardian should be sure to do a “postorder follow-up.” This means that you should make sure that the details of the order are carried out. For example, if the order directs that funds for the minor are to be deposited into the registry of the court, be sure that the funds were deposited into the registry of the Court,

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that you have a copy of the receipt for your file, and that the parents/legal guardian(s) of the minor have a copy as well. Another example requiring followup is when a Section 142 Trust comes into question. Usually, one of two things will occur: (1) the plaintiffs’ counsel or guardian ad litem will apply to create the trust, set the application for hearing, and the court will sign an order creating the trust (presuming that the proposed trust terms are satisfactory), or (2) the Court will order that a Section 142 Trust be created, request a draft of the proposed trust and, presuming that the draft is satisfactory, sign off on the submitted trust terms. In any event, you should be sure that once the Section 142 Trust has been created that it is actually funded with the minor’s settlement assets. Lastly, if the court orders and approves a structured settlement for the minor’s funds, you should ensure that the structure placed for the minor matches exactly the structure as ordered by the Court.

8. Be Sure to Keep Good Billing Records.

Be sure to keep good billing records of your time and expenses on the case so you can be awarded a reasonable fee for your work. Remember that you, as guardian ad litem, are an officer of the court and cannot be denied a reasonable fee.5 Courts generally look at eight factors to determine the reasonableness of an attorney’s fee: (1) the time and labor required to properly perform the service; (2) the likelihood that the work on the case precluded other work for the lawyer; (3) the usual and customary fee for the work in the location in which the work was performed; (4) the amount involved and the results obtained; (5) time limitations imposed by the circumstances or by the client in the case; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyer performing the service; and (8) whether the fee is fixed or contingent on

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results obtained or uncertainty of collection before the legal services have been rendered.6 Provide the court with an application for compensation supported by your billing statement and your affidavit respecting the work performed. This assists the judge in determining the fee to award you for the services you have performed for the court.

Christine Sampson Willie, of the Law Office of Christine M. Sampson, P.C., has provided guardian ad litem and attorney ad litem services to various Harris County civil district courts and statutory probate courts since 1998.

Endnotes 1. TEX. R. CIV. P. 8.

2. Dawson v. Garcia, 666 S.W.2d 254, 265 (Tex. App.–Dallas 1984, no writ).

3. Roark v. Mother Francis Hosp., 862 S.W.2d 643, 647 (Tex. App.–Tyler, 1993, writ denied).

4. Sosa v. Koshy, 961 S.W.2d 420, 424-25 (Tex. App.— Houston [1st Dist.] 1997, pet. denied).

5. TEX. R. CIV. P. 173.

6. Borden, Inc. v. Martinez, 19 S.W.3d 469 (Tex. App.–San Antonio 2000, no pet.).

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By The Hon. Jeff Work

The Myth M of Lone Rangers:

y wife and I recently watched Disney’s remake of The Lone Ranger. I grew up watching the black and white television series reruns and left the theater thinking that there are some things that should not be remade or changed. Much like my opinion of The Lone Ranger, as lawyers, our ethics should stay “black and white.”

Furthermore, the legal profession has no room for ethical lone rangers, those who would skirt the law or take matters into their own hands. Legal ethics apply equally to all attorneys regardless of judicial venue, geography, demographics, background or age. This article addresses some ethical considerations that affect attorneys regularly, using some familiar quotes of classic, and not-so-classic, television shows.

Ethical Dilemmas Faced by Attorneys

Ex parte Communications: “I’m so glad we had this time together, just to have a laugh or sing a song.”1 The Code of Judicial Conduct addresses ex parte communication and says that a judge should not permit any of the parties or their attorneys to talk with the judge about a matter in his or her court, or a matter that could be in the judge’s court, unless all parties or their attorneys are present.2 This prohibition also extends to court staff.

There are a few limited exceptions, such as a temporary restraining order or when the subject is simply a procedural question. A judge may also communicate with other judges, court staff or seek agreement by the parties to talk to a legal expert.

Some claim there are gray areas, like a judge talking with the judge’s spouse or with an attorney not involved in a case.

However, like members of a jury, there should not be any outside influences on a judge while a case is pending. Even minor communications pose a risk of tainting a judge’s impartiality in a case.

Barratry: “Operator, give me the number for nine-one-one.”3

Legal ethical rules and statutes prohibit barratry, which generally is when a lawyer solicits specific clients for specific cases.

Paul Newman’s performance in the 1982 movie, The Verdict, was both memorable and infamous, when he played an attorney who distributed business cards at random funerals he knew of only from reading published obituaries. In 1994, the Texas Supreme Court characterized barratry as “the solicitation of employment to prosecute or defend a claim with intent to obtain a personal benefit.”4 Based on the Texas Disciplinary Rules, barratry is “the solicitation of employment to prosecute or defend a specific claim arising from a particular occurrence or event with intent to obtain a personal benefit.”5 These restrictions apply equally to civil plaintiff and defense attorneys, as well as attorneys practicing in other areas.

Barratry restrictions on lawyers have morphed over the years. The word “barratry” means deceit and, centuries ago, it was used to address vexatious or frivolous filing of litigation. Modern day barratry statutes are crafted to prevent lay people from being harassed, misled and cajoled in hiring a specific attorney, for a specific case, at a time when the potential client might be in a vulnerable state. In 2011, the Texas legislature upped the ante: There are now civil penalties for violations of the anti-barratry statute. Seizing on this, some attorneys have developed a new “specialty” by advertising that they handle cases against other lawyers by their former clients. Ironically, these attorneys could easily violate the barratry rule by manufacturing or soliciting a client to file a civil barratry case.

All attorneys should review the applicable statutes especially because changes have been made over the past few years.6 Another challenge is that barratry restrictions are not generally understood by the public. As a recent example, a reporter wrote, “By law, lawyers or their representatives are not allowed to solicit potential clients.”7 This general statement is clearly false, as plaintiff and defense lawyers solicit potential clients every day for civil, criminal, family and other matters in all

sorts of legal and ethical ways.

The changing definition of barratry, and lack of general public awareness about what it means, puts a high burden on lawyers to know and follow the rules.

We have the responsibility to ensure that potential clients are not harassed at their time of distress or grief, a practice that undermines the confidence our fellow citizens have in the American legal system.

Gifts to the Judiciary: “I see nothing. I know nothing.”8 The simple and best rule on gifts is that a lawyer should not give gifts to judges or their staff, even on holidays or special occasions. Many years ago, it was routine for some lawyers or law firms to send gift baskets to all of the Harris County courts during the month of December. This created some embarrassing situations and court staff routinely returned the gifts.

There are some notable exceptions to the gift ban.

First, an attorney can give gifts to judges, or a judicial staff member, if the lawyer had a friendship and gave gifts to that person before the person became a judge or judicial staff member.9 Second, social parties can also be within ethical lines. It is permissible for a judge to attend a law firm holiday party as long as other members of the bar are invited.

Third, a judge may accept common gestures of hospitality (e.g., a cup of coffee or something of minimal value), but not gifts of high value, regardless of how common they may seem to some. The underlying issue is that it is important for the entire bar that judges remain neutral and give the appearance of being neutral.

Referral Fees: “I never heard of a relationship being affected by punctuation.”10 Contrary to the above quote, a lawyer should confirm every professional business relationship in writing—and use precise punctuation. In 2005, the Texas Supreme Court approved changes to the Texas Disciplinary Rule of Professional Conduct 1.04, which addresses referrals.

Some have misinterpreted the new rule

to prohibit referral fees. The rule does, though, require that the client give written approval of the written agreement on referral fees. The engagement agreement must specifically detail the arrangement between the attorneys and define the responsibilities of each attorney.

For years, some lawyers created a different type of referral agreement whereby each lawyer would agree to refer cases exclusively to each other in each lawyer’s specialty. Even where no fees are shared and neither lawyer pays any referral, such arrangements are prohibited.11 Campaign Donations: “Live long and prosper.”12 In Texas, this is the most difficult, but necessary, circumstance for both lawyers and judges to navigate. Texas is one of only a handful of states that elect their judges in partisan elections. No matter how much reassuring the leadership of the Texas State Bar attempts, some members of the public believe that a politician, and in this instance, a judge, can be bought. Both judges and lawyers have a responsibility not to give the impression of partiality.

Judges cannot do any sort of campaigning or fundraising at the courthouse or adjoining facilities. All donations they do receive should be recorded properly. Finally, a candidate, who becomes a judge, must set aside all issues of politics and bias when in the courtroom and in all other judicial capacities.

Lawyers also should convey to their clients a trust in the system and in the impartiality of the judges. In the context of discussing a client’s case, a lawyer should be careful in how they convey to their clients how much their own firm gave to a judge’s campaign or emphasize how much an opposing counsel gave to a judge’s campaign.

Conclusion Even the Lone Ranger was not totally alone; he had his horse, Silver, and his friend, Tonto (or Johnny Depp, depending on your preferred version). Every act

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31

we commit as attorneys has ripple effects on our justice system.

When it comes to legal ethics, lone rangers are a myth. Whether an independent solo practitioner or a large firm, it is not one masked man’s fight for law and order; it is all of us as attorneys striving together to help restore society’s confidence in our justice system.

The Hon. Jeff Work is a former state district court judge. He practices commercial

and personal injury litigation, and serves as a mediator and arbitrator through Work Law Firm. He also is of counsel with Karczewski|Bradshaw L.L.P., which primarily practices school law.

Endnotes 1. Carol Burnett in the closing song of The Carol Burnett Show.

2. TEX. CODE JUD. CONDUCT, Canon 3.

3. Homer Simpson in The Simpsons, Season 2, Episode 7.

4. The State Bar v. Kilpatrick, 874 S.W.2 656, 659 (Tex. 1994), cert. denied, 62 U.S.L.W. 3860 (U.S. June 27, 1994) (No. 931745).

5. TEX. DISCIPLINARY R. PROF’L CONDUCT 7.03(a) (em-

phasis added).

6. TEX. GOV’T CODE §§ 82.065 & 82.0651; TEX. PEN. CODE § 38.12; TEX. DISCIPLINARY R. PROF’L CONDUCT 7.03, 7.06 & 8.04.

7. John MacCormack, Barratry Battle Is Pitting Lawyer Against Lawyer, San Antonio Express News, April 3, 2013, available at http://www.mysanantonio.com/news/local_news/ article/Barratry-battle-is-pitting-lawyer-against-lawyer-4407531.php.

8. Sergeant Schultz in Hogan’s Heroes.

9. Texas Committee on Judicial Ethics, Advisory Opinion No. 194 (1996) (prohibiting gifts to judges unless a previous friendship existed).

10. Jerry Seinfeld in Seinfeld, Season 5, episode 4.

11. The Professional Ethics Committee for the State Bar of Texas, Opinion No. 629 (May 2013).

12. Mr. Spock in Star Trek.

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

River Oaks Country Club 1600 River Oaks Blvd.

Benefiting the Houston Bar Foundation.

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

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

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Pro Bono in Houston...

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

Equal Access Champions

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

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

Corporate Champions

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

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

Mid-Size Firm Champions

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

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

Small Firm Champions

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

Solo Champions

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

Boutique Firm Champions

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

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

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Immigration Issues Unique to a Plaintiffs’ Practice

By Ruby Powers

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n 2011, the U.S. Department of Homeland Security estimated that approximately 11.1 million immigrants were unlawfully present in the United States.1 In Texas, approximately 16.2 percent of our population is foreign born,2 but this figure does not accurately reflect lawful versus unlawful immigration status. With such a large immigrant population in the Lone Star state, client immigration status and the consequences thereof are crucial factors for plaintiffs’ lawyers to understand and evaluate.

Generally speaking, plaintiffs’ attorneys need to consider their clients’ immigration status in order to evaluate and handle three issues: (1) the damages to which a plaintiff is entitled; (2) the prejudice that immigration status can create in court; and (3) the danger of exposing a client’s immigration status as a public record.

Damages.

The Immigration Reform and Control Act (IRCA) of 1986 created sanctions for employers who knowingly hire individuals who are not authorized to work in the United States. This law can have a serious impact, in some circumstances, when a plaintiff seeks to recover “back pay” when he or she did not have work authorization in the U.S. For example, the U.S. Supreme Court has held than the IRCA precluded the National Labor Relations Board from awarding back pay to an undocumented immigrant under the National Labor Relations Act.3 On the other hand, some federal laws have been interpreted less restrictively.

For instance, recovery by undocumented workers of back pay under the Fair Labor Standards Act’s minimum wage and overtime requirements has not been limited by the Hoffman Plastic decision. Similarly, the Fifth Circuit has held that the undocumented status of an injured longshoreman did not bar recovery of benefits un-

der the Longshore and Harbor Workers’ Compensation Act.4 When it comes to Texas law, there is no requirement for a plaintiff to prove citizenship or an immigration work authorization permit in order to recover damages for lost earning capacity.5 Unfair prejudice at trial.

Most courts have found questioning about immigration status to be inadmissible during trial. In TXI Transportation Company v. Hughes, the appellant’s immigration status had been introduced at trial as a matter of negligent entrustment and hiring.6 The Texas Supreme Court concluded that basing a party’s character simply on immigration status “was harmful, not only because its prejudice far outweighed any probative value, but also because it fostered the impression that defendant’s employer should be held liable because it hired an illegal immigrant.”

Courts have found that Rule 403 of both the Texas Rules of Evidence and Federal Rules of Evidence establishes that information regarding a plaintiff’s immigration status bears the “risk of unfair prejudice against the probative value of the evidence seeking to be admitted.”

The same argument could be made for inflammatory phrases such as illegal alien, illegal immigrant or undocumented worker.

In addition to the risk of introducing prejudice into the proceeding, allowing a client’s immigration status to be revealed on the trial record would allow agencies such as the U.S. Immigration and Customs Enforcement (ICE) to take note.

With that said, from my experience as an immigration lawyer and reading recent policy memos, unless a person with unlawful status has a serious criminal record or has a prior deportation or removal order, he or she is not a priority for immigration enforcement.

Exposing immigration status through discovery.

Although courts in most jurisdictions

have found questioning immigration status inadmissible at trial, pre-trial discovery is a different story.

During initial interviews, plaintiffs’ attorneys should be sure to question clients about immigration status to determine how to protect their clients’ status from public exposure and to prepare plaintiffs for the discovery process.

As a practical matter, clients with unlawful immigration status will always be concerned about how exposure of their status could place them at risk of being detained or deported and how it could potentially harm their ability to legally work in the United States. That makes it important to prepare for immigration issues early-on in representation.

Plaintiffs’ attorneys should anticipate and prepare clients for questions from the defense that may prompt discussion of a plaintiff’s immigration status–such as questions about social security numbers, tax identification numbers, tax documents, nation of origin and work status.

Understanding a plaintiff’s immigration status will help plaintiffs’ attorneys strategically prepare for analysis of potential damages and trial, but also assess the exposure for the client and their families. In some cases, it may even be advisable to consult with an immigration lawyer.

Ruby L. Powers is the principal attorney for the Law Office of Ruby Powers, P.C., an immigration law firm in Houston. Her practice is dedicated to all areas of immigration law, including family-based, employment-based, and investment-based immigration as well as asylum, naturalization, deportation/removal and waivers.

Endnotes 1. Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2011, U.S. Dept. of Homeland Security, available at http://www.dhs.gov/ xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf.

2. State & County Quick Facts, U.S. Census Bureau, available at http://quickfacts.census.gov/qfd/states/48000.html.

3. Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002).

4. Bollinger Shipyards, Inc. v. Rodriguez, 604 F.3d 864 (5th Cir. 2010).

5. Tyson Foods, Inc. v. Guzman, 116 S.W.3d 233, 244 (Tex. App. – Tyler 2003).

6. 306 S.W.3d 230 (Tex. 2010).

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Houston Lawyers Who Made a Difference

George E. B. Peddy

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By The Hon. Mark Davidson

n the last decade, our nation has learned that a military victory is only the first step taken to win a war. The second, more difficult step is pacifying and reforming the defeated nation. George Edwin Bailey Peddy presents proof that the task can be performed in such a way that rewards the victorious armies for their valor while respecting the conquered.

Peddy was elected to the Texas Legislature in 1917, but resigned before he was sworn in to volunteer in the U. S. Army during World War I. After the war, he went to law school, graduated, moved to Houston, and eventually became a partner in the firm of Vinson, Elkins, Weems and Francis. While there, he actively fought the political advance of the Ku Klux Klan in the 1920s.

In 1942, at the age of 50, he resigned his partnership to volunteer for the Army. He was assigned to the Fifth Division and rose to the rank of Lt. Colonel.

He was active in the Normandy Campaign and led soldiers in the Ardennes during the Battle of the Bulge. During the invasion of Germany, he commanded efforts to evacuate wounded soldiers, provide supplies to advancing armies, and start the repatriation of French, Russian and Polish soldiers who were German prisoners of war. For his valor, Peddy was awarded the Bronze Star and Croix de Guerre.

After the war, Peddy was assigned his most challenging task —to serve as Military Governor of Frankfurt. He aided in the reconstruction of the badly damaged city while making sure that former Nazis lacked any position of authority. During a time when our relations with Ger-

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mans could have been tenuous, Peddy performed his duties admirably. He made sure that survivors of concentration camps received food and medical attention. He started the process of returning property that had been stolen from German and Italian Jews by the Nazis. Among items found and returned were Torahs from several synagogues that the Nazis had looted.

Many Houston lawyers have served in our armed services with honor and distinction. To all of them we owe a great deal of thanks and respect. George Peddy twice left powerful, lucrative jobs to serve our country.

We should remember him as someone who made a difference.

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

mon – fri lunch 11 a – 2 p tue – fri bar 4p–8p

A Profile

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

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Sammy Ford IV Abraham, Watkins, Nichols, Sorrels, Agosto & Friend

The Houston Lawyer

hen Thomas Edison defined genius as “one percent inspiration and ninety-nine percent perspiration,” he could have just as easily been defining professionalism. Hard work is the core of professionalism. But that hard work is not necessarily solitary; it exists in the relationships that we have with our clients, our colleagues, our “opponents,” our judges and juries, and our community.

Being a trial lawyer, many of my clients are individuals, and I am the only lawyer that they know. And certainly I am often the lawyer that they know best.

Professionalism means, first and foremost, vigorously representing their interests, but it also means being there when they have questions about the case I’m working on for them or some other matter.

Whether we work in large firms, as solo practitioners, or (as is most common) somewhere in between, we must often rely on the work of another.

Professionalism means being there when your col38

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leagues need you.

In litigation, it is easy to determine who your opponent is in a given case—it’s whoever is on the other side of the “v.” But as one matter ends and another begins that opponent sometimes becomes your ally.

Professionalism means being as responsive and courteous to lawyers who are against you as you are to those who are on your side.

Cases aren’t tried in a vacuum. They are tried in front of judges and juries. Those flesh and blood people have expectations of the lawyers appearing before them. The most fundamental expectation is being prepared. We must never let the experience of those whom we appear before be negative because of our behavior.

Finally, being a lawyer is an honor that requires hard work and dedication. With that honor comes responsibility. Whether it is helping a younger lawyer as a mentor, or helping a pro bono client, our talents, gifts, and experiences must be shared.

COMMITTEE SPOTLIGHT

Houston Lawyer Referral Service Committee

Celebrates 55 Years of Service

By Farrah Martinez

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he Houston Lawyer Referral Service, Inc. (“Lawyer Referral Service” or “HLRS”) was established as a 501(c) (6) non-profit organization to focus on providing referrals to attorneys and to serve the interests and goals of the Houston Bar Association (HBA).

The Lawyer Referral Service’s Board of Directors makes up the HBA’s Houston Lawyer Referral Service Committee, which administers and manages the services. Now, after 55 years of service, the HLRS serves individuals with legal matters across metropolitan Houston, including Harris, Montgomery, Fort Bend, Brazoria and Galveston counties. HLRS also is sponsored by eight other local bar associations, each of which appoints a member to the Houston Lawyer Referral Service Committee.

The HLRS provides referrals to over 230 private practice attorneys who have been screened and selected based upon experience in specified practice areas and provides access to competent legal representation to more than 100,000 individuals each year. Many of those seeking a referral have the resources to pay legal fees, but simply do not know where to find an attorney to meet their specific legal need. The HLRS provides an extensive selection of attorneys in 38 legal categories.

The HLRS has a proud history of quality standards and community service.

To be effective, HLRS leaders believe that the organization can best achieve its commitment to serving the public by establishing firm goals and standards and pursuing new innovations. Day to day operations at HLRS are overseen by the Executive Director, Karen R a m s e y.

Karen started with HLRS last year and has focused on increasing competent legal representation, ensuring attorney members are reporting timely and that attorney members are properly trained on the reporting system. In conjunction with her efforts, the Committee started offering a CLE to train attorney members on the reporting system, rules of membership and ethical issues encountered by members.

The referral service does not charge a fee to callers. However, if a consultation with the attorney is set, the first 30 minutes is for a reduced fee of $20, after which standard attorneys fees apply.

The HLRS staff is trained to help people

identify their legal needs and to refer them to an attorney according to specialization and location. HLRS also offers bilingual staff and attorney members. HLRS offers a reduce fee panel for income-eligible citizens and provides a 24-hour on-call attorney. Individuals can use the HLRS, at no charge, by calling 713-237-9429 or 800-2894577 from 8:30 a.m. to 4:30 p.m. Clients are provided one referral a day and up to three referrals per issue.

The HLRS does not give out ‘lists” of attorneys.

If you are interested in becoming a member attorney, you are encouraged to complete the application at www.hlrs. org or call Karen Ramsey at 713-6500470. To learn more about the HLRS, visit www.hlrs.org.

Farrah Martinez is the Director of Legislative Affairs at the Harris County District Clerk’s Office. She also is an associate editor for The Houston Lawyer editorial board and a member of the Houston Lawyer Referral Service Committee.

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OFF THE RECORD

TRACIE JACKSON:

Sharing a Love of Dance

By Angela L. Dixon

The Houston Lawyer

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manner,” Tracie said. “The rhythm is in our heritage and our fiber.” hen Tracie Jackson stepped into her friend’s She also shared that drumming dances were used to display dance studio in New Orleans in 1995, she just everyday living situations. All rhythms have meaning as people thought that she would enjoy a great workout. danced for religious purposes, rites of passages for young men and However that experience opened up a love of women, fertility purposes, farming and harvesting purposes, and dance and culture that has flourished for her celebration. ever since. Tracie, who is Employment and Labor of Counsel with “When I teach dance, I always share Frye, Oaks and Benavidez and also works what the meaning of the rhythm is,” in the Houston Municipal Court system, Tracie said. While the class is prosaid she went to the West African dance moted for exercise purposes and parclasses just for the exercise initially. ticipants can lose weight while hav“I enjoyed it so much that I continued ing fun, Tracie wants to make sure on and when I moved to Houston, I got participants learn the culture behind involved with the two dance companies the rhythms and the importance of here,” Tracie said. When the West Afriits history. Tracie said this is just the can dance company disbanded in 2007, beginning and has dreams of openTracie and her friend Mechelle Smith deing her own dance studio that will cided to keep the tradition going by startIn a performance, Tracie Jackson, center, with Dr. Keiinclude a children’s dance troupe ing Intuitive African Dance and Drum sha Davis and Roslyn Williams Butler. and other interactive classes. “I want Culture. Initially the pair did exhibits more children involved because it is and shows until a friend called her to so wonderful to watch their reaction teach a dance class at St. Mary’s Catholic to the dance,” Tracie said. “I have Church in 2008. “It was so fun and well seen toddlers crawl from their mothreceived, that we began having classes er’s arms when they hear the drums. every Friday night and have continued,” They are captivated by the sound and Tracie said. dance, and I want others to have that In addition to the weekly dance class, experience.”

Intuitive does drum and dance workTracie stressed that West African shops at schools. The children can play dance is more than a physical thing. the drums and learn about the movements that go along with the beats. The In a promotion for her dance class, Tracie Jackson is “You are mentally uplifted,” she said.

“It gives you energy, it gives you life.” drummer, Cedrick Washington, uses the joined by Krista Folade Madzimoyo and Sabali Mpozi.

Tracie welcomes everyone interested in learning about West Djembe drum, a traditional West African instrument which is cenAfrican dance and culture to join her at the class at the Forge for turies old. Tracie even has her sons, Tarami (meaning Warrior of Families at 3435 Dixie Drive, Houston, Texas 77021 on Friday eveGod) and Minkah (meaning ancestral wisdom) joining in on the nings from 7:00-8:30 p.m. The class is open to adults and children. experience. “My sons would go with me to classes, so instead of Classes cost $10 or $7.50 each if you bring a friend. You can visit them running around, they learned to drum and have been doing the facebook page at https://www.facebook.com/pages/Intuitiveit since they were three,” Tracie said. “It is very important for young African-Dance-and-Drum-Culture/124384724247720. people to be exposed to dance and culture.”

Tracie has done extensive research on West African dance and learned that all types of rhythms are linked to the dance. “PolycenAngela L. Dixon is an attorney with a civil practice, focusing on tric movement allows your body to move freely so dances like salsa, wills and probate, landlord/tenant disputes, and personal injury rumba, tap and others allow you to move rapidly in a rhythmic law. She is an associate editor for The Houston Lawyer.

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LEGAL TRENDS

U.S. Supreme Court Sets High Standard for Proving Workplace Retaliation Claims

By Jill Yaziji

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n University of Texas Southwestern Medical Center v. Nasser, 570 U.S.___ (2013), the United States Supreme Court handed down a strict, “but-for,” causation standard required for proving a retaliatory discharge claim against an employer. Once a faculty member of the University of Texas Southwestern Medical Center (UTSW) and a physician at the affiliated Parkland Hospital, Nasser had worked for many years before Dr. Levine came on board. Nasser alleged that Levine discriminated against him on the basis of his religion (Muslim) and ethnicity (Arab). He left his position at UTSW two years later, but not before complaining that religious, culture and ethnicbased discrimination by Levine led him to resign. Nasser, however, managed to continue his employment with Parkland Hospital despite an agreement by the Hospital requiring its physicians to be also affiliated with UTSW. Levine’s supervisor, who objected to Nasser’s public accusations against Levine, opposed Nasser’s continued employment with the Hospital despite the affiliation agreement and the Hospital responded by withdrawing Nasser’s ap-

pointment. Nasser filed his lawsuit alleging constructive and retaliatory discharge claims against UTSW. Nasser prevailed at trial, which resulted in over $400,000 of back pay award and over $3 million in compensatory damages.

In a 5-4 decision, the U.S. Supreme Court reversed Nasser’s retaliatory discharge award, holding that he failed to prove that he would not have been discharged but for his complaints about workplace discrimination. The Court’s majority distinguished between the causation standard required in so-called “status-based” claims (based on race, color, religion, sex, or national origin,) and the standard required for Title VII retaliation claims by employees who expose or complain about workplace discrimination. A plaintiff complaining of status-based discrimination could prevail if she shows that one of the five traits was a “motivating” or “substantial” factor, among others, in the adverse employment decision. This principle, also known as the “lessened causation standard,” announced by the Court in Price Waterhouse v. Hopkins, was codified

by Congress in the 1991 amendments.

This less stringent causation principle, however, does not apply to retaliation claims made by employees who complain/ object to workplace discrimination. Retaliation claims, the Court held, are subject to the “but-for” causation test, which is the same standard used in ADEA claims.

Informing the majority’s decision were both the textual interpretation of the retaliation provision, §2000e--3(a), (which is substantially similar to §623(a) of the ADEA that the Court interpreted in Gross v. FBL Financial Services, Inc. as requiring the “but-for” causation standard;) and Congress’s structural choice in Title VII itself, in which the “antiretaliation provision appears in a different section from Title VII’s ban on status–based discrimination.”

In addition to effecting congressional intent, scrutiny of the causation standard

in such cases is crucial in stemming the “ever increasing frequency” with which those claims are being made, argued the Court’s majority.

Writing for the dissent, Justice Ginsburg decried the majority’s decision that “drives a wedge between the twin safeguards in so-called ‘mixed-motive cases,” stating that the Court is driven by a “zeal to reduce the number of retaliation claims” without sensitivity to the realities of workplace.

In light of University of Texas Southwestern Medical Center v. Nasser, Title VII retaliation claims have become more difficult to proceed as summary judgment will await any claimant who cannot proffer evidence that the adverse employment decision would not have been taken “but for” the protected Title VII complaint.

Jill Yaziji is the principal of Yaziji Law Firm, a civil litigation firm, and an Associate Editor at The Houston Lawyer.

U.S. Supreme Court Limits States’ Rights of Recovery Under Medicaid Statute

By Preston D. Hutson

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n March 28, 2013, the U.S. Supreme Court issued its opinion in Wos v. E.M.A., __ U.S. __; 133 S.Ct. 1391 (2013) clarifying the rights of individual states to recover settlement

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The Houston Lawyer

LEGAL TRENDS

proceeds as reimbursement for medical expenses paid by the state through Medicaid. The controversy involved a North Carolina statute requiring those Medicaid beneficiaries recovering damages against a third-party to reimburse the state out of the proceeds. The statute entitled North Carolina to recover its pro-rata share of all medical costs and expenses, not to exceed one-third of the gross amount “obtained or recovered.” In effect, under the statute, North Carolina claimed a dollar for dollar reimbursement up to one-third of any recovery unless its pro-rata share of the outstanding medical bills necessitated that it take less.

Born with severe birth injuries necessitating up to 18 hours of skilled nursing care per day, E.M.A. and her parents sued her obstetrician, seeking more than $42 million in damages. The case settled for $2.8 million, and, pursuant to the North Carolina reimbursement statute, the trial court placed one-third of the settlement proceeds in escrow, pending a determination of the State’s Medicaid lien amount.

E.M.A. filed a declaratory judgment action in the Western District of North Carolina alleging that North Carolina’s reimbursement scheme conflicted with the anti-lien provisions of 42 U.S.C. § 1396p(a)(1), which prohibit the State from imposing a lien on a beneficiary’s property. E.M.A. argued that anti-lien provisions restrict North Carolina’s potential reimbursement to those amounts designated as payment for medical care while reserving to the claimant all other damages not attributable to medical care. In effect, according to E.M.A., rather than restrict its claim to those payments allocated to medical care, North Carolina claimed the first dollar up to one–third of the Claimant’s total recovery.

At the U.S. Supreme Court, North Carolina was joined by eleven states, notably Texas, which asserted that E.M.A., a private individual, had no right to seek judicial remedy even if the state violates 42

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the Medicaid statute, since such determination is between the state and the supervising federal agency. In a 6-3 decision, the U. S. Supreme Court disagreed, ruling in favor of E.M.A. and holding the North Carolina law to be an arbitrary allocation of a tort recovery to the state and thus preempted by federal law.

Accordingly, states like North Carolina must provide some process to objectively apportion the recovery attributable to medical expenses from that attributable to another element of damages. Fairness, in the eyes of the Court, dictated the use of “objective benchmarks” rather than an arbitrary one-third allocation of plaintiff’s recovery.

Preston D. Hutson is of counsel at Hays, McConn, Rice & Pickering, P.C. His practice is dedicated to personal injury and civil litigation. He is a member of The Houston Lawyer editorial board.

Big Bird Tree Services v. Gallegos:

Medical Expenses by a Charitable Organization are “Actually Incurred”

By Hector G. Longoria

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n Haygood v. De Escabedo, the Texas Supreme Court applied the collateral source rule with Section 41.0105 of the Civil Practice and Remedies Code to limit the recovery of medical expenses to those that “have been or will be paid,” and to prohibit recovery of charges that the medical service provider “bills but has no right to be paid.”1

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As a result, a jury may only consider the amount of recoverable medical expenses at trial, such as the amount paid to a medical service provider through a negotiated reduced rate with Medicare or health insurance. Alternatively, if the health provider has not been paid, a jury could consider awarding the amount that the medical provider will be paid.

In Big Bird Tree Services v. Gallegos,2 the Dallas court also analyzed Section 41.0105 in connection with the collateral source rule to address whether or not an injured party may recover medical expenses provided free of charge by a charitable program.

Gallegos was injured when he fell off a ladder while working for Big Bird Tree Service. He received treatment at Parkland Hospital and UT Southwestern. At trial, over Big Bird’s objections, Julian Gallegos introduced the reasonable and necessary medical expense affidavits of Parkland and UT Southwestern to prove past medical expenses, which were ultimately awarded by the jury after a verdict in Gallegos’ favor. In order to preserve its objection, Big Bird made an offer of proof that included the following testimony: Gallegos qualified for a charity program; Gallegos received the medical care for free; Gallegos was only required to make a small co-pay; UT Southwestern has a charity contract with Parkland and Parkland decides who qualifies; if a patient is later found not to qualify, Parkland bills for the medical service; and Parkland would require Gallegos to pay if he obtains a recovery.

Comparing the facts to Haygood, the Big Bird court found that there was no contract that prohibited Parkland from receiving payment for the full value of the services rendered. Thus, the court found that Parkland could seek the full value of the medical services if Gallegos recovered past medical expenses. Next, like in Haygood, the Big Bird court harContinued on page 45

Media Reviews

American Bar Association Guide to Wills & Estates: Everything You Need to Know About Wills, Trust, Estates, and Taxes (Fourth Edition) Random House, 2012, 416 pages Reviewed by Keri D. Brown

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ell-written for consumers and non-estate planners alike, the American Bar Association Guide to Wills and Estates is easy to understand and breaks down concepts very well, allowing the reader to understand the entire estate planning process.

The book is divided into eight parts, each a discrete part of the estate planning process. Starting with “First Steps,” the authors cover the basics of why you need an estate plan. Within each part of the book, each chapter begins with an illustration of the subject matter. And to break up the monotony of page after page of text, the authors have inserted plenty of callouts, charts, and Q&As. The best part of each chapter is at the end. Each chapter concludes with two

helpful features: “The World at Your Fingertips,” pointing the reader to a selection of websites with further information on the topic, and “You Must Remember This,” a Cliff’s Notes summary of the most important concepts discussed in each chapter.

Every topic is clearly presented, and the book does a good job of covering topics that often are overlooked in estate planning, such as long-term care, divorce, and unconventional families.

If there is one criticism of the book, it is this: Some of the information presented is outdated, such as stating that the estate tax exclusion amount for 2013 is $1,000,000. (The amount actually is $5,250,000 for 2013, and the estate tax exclusion now is indexed for inflation.)

In fairness, the authors do note that the data is subject to change, but given what we knew when the book was published (in 2012), readers would have been better served if the authors had been clearer on this topic.

Regardless, the book is solid. If you have an estate planning practice, you might wonder whether your clients should read this book. Written another way, “Will my clients read this book and decide they don’t need me?” The answer: No. While the authors do a fantastic job of making all of the concepts easy to understand, they also are careful to point out where consumers should consult a lawyer (i.e., for almost everything addressed). This is a great book to recommend to clients who are truly interested in learning about their options.

There is a nice bonus to be found in the appendix, which features a form and checklist that the consumer can com-

plete before visiting his or her attorney, a sample annotated basic will, and a health-care advance directive. The book concludes with a comprehensive index that is easy to follow.

All in all, this is a great book for the consumer and anyone who wants a primer on estate planning and all that goes along with that journey.

Keri D. Brown is a senior associate in the private clients section at Baker Botts L.L.P., where she concentrates her practice on federal estate and gift tax litigation and state court fiduciary controversies. She is a member of The Houston Lawyer Editorial Board and the immediate past editor in chief.

American Bar Association’s Legal Guide for Military Families Random House Reference, 372 pages Reviewed by Tara Shockley

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here are over 23 million veterans in the U.S. Each could benefit from a copy of the ABA’s new Legal Guide for Military Families. Although it is not written for attorneys, the book could serve as a comprehensive reference for those who want to volunteer to help veterans with legal problems, as well as those who represent them for a living. Legal Guide for Military Families is ostensibly written by a committee, but in this case it works. All of the authors are attorneys with years of experience representing members of the military

thehoustonlawyer.com

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LITIGATION MARKETPLACE

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GLEANNLOCH FARMS

HOUSTON 610 NORTH & TC JESTER Sublease large window offices with beautiful views in a fully furnished suite. Includes lobby area, reception, conference room, kitchen server room and covered parking; $575-$950. Administrative spaces available; $275+ 713-975-1128, fremiet@c3t0.com.

Pre-leasing 1,248-2,688 SF small office buildings in an office village.

Occupancy DECEMBER 2013 Golf Course area Office near your home PIN OAK OFFICE VILLAGE

GALLERIA AREA ST. JAMES PLACE Attorney-size office with secretarial work station for sublease – AV rated firm, Class A build out. Possibility for referrals. Please send inquiries to houstongallerialawfirm@ gmail.com

Office Space

Phil: 281-732-3086 MIDTOWN – 3000 SMITH Sublease with established law firm, partner office (20 X 12). Use of amenities, reception area, kitchen, conference room, free covered parking.

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Great office space at 1601 Westheimer at Mandell, minutes from downtown Houston. Rent includes shared access to two conference rooms, kitchens, internet, cable, phones with VM, all utilities, parttime receptionist. Window offices ranging from $400-$1,000 per month with no long-term commitment. Please call Mark Kidd at 713-968-4601 for information.

The Houston Lawyer

GREENWAY PLAZA AREA: Suite in five story atrium building for lease. Space perfect for one or two attorneys. Large area for storage with built in shelving and kitchenette. Furniture and equipment staying with suite is negotiable. Contact Kathleen at kagasner@msn.com.

Three large partner offices with view of downtown, two associate offices, two paralegal stations areas available for sublease October 1 in newly built out space in the Heights. Rent includes conference room, break room, internet access, high speed copier/ fax/ scanner, phone system, attached covered parking. Contact Teri at 713-529-2020.

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September/October 2013

EXECUTIVE PLAZA/GALLERIA AREA — EXECUTIVE ATTORNEY OFFICE SUITES in an existing law firm are available for SOLE PRACTIONER LAWYERS AND OTHER LAWYERS WITH LIMITED STAFF. Two furnished 242 SF exterior ninth floor offices that are available for sublease to individual tenants on an executive office suite basis for $1,800.00/mo with a one- year lease. Eight additional unfurnished exterior or ninth floor offices ranging from 193 SF to 116 SF that are available for sublease to individual tenants on a similar basis with monthly rentals ranging from $500.00/month to $1,400.00/ month with a one year lease. We offer reception service and a waiting room for your clients and visitors.

We have our own monitored security system in addition to the building 24 hr security patrol system that will protect your office. We offer scheduled use of a 447 SF conference room for depositions and meetings for 10 – 16 individuals, and a 175 small conference room for meetings with up to 8 individuals that is normally available, and also available for scheduled use with payment of thehoustonlawyer.com

a nominal reservation/use charge.

Covered parking spaces are included in the basic rental. These offices are available for one-year lease at rental rates that vary between $450.00 and $1800.00 per month.

We have two spare 126 SF paralegal workstations that are available for lease at $350.00 per month. File cabinets may be located in our central file storage room for an additional charge of $10.00 per month for each 5-drawer file cabinet located outside of your leased office space. Coffee for you and your guests that you may serve yourself from the break rooms is included.

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speed internet T2 Speed, printer, copier, fax, Lexis Nexis, ProDoc, filing and pick up for Court documents, and full kitchen. Accounting Services are available at an extra charge. Great working and collaborative environment. Call Philip: 713-208-2222.

HOUSTON–GREENWAY PLAZA AREA Large window office for sublease in fully furnished suite.

Includes lobby area, three conference rooms, kitchen, private bathroom, phone system, internet access, copier, fax, scanner and free parking. $850.00 per month. Secretarial office also available for additional cost. ConHeights/I-10 - Beautifully remod- tact Stephanie or Marlene at 713eled 2-story building just minutes 337-6449. sar@romanlawfirm.com from Downtown Houston now or marlene@romanlawfirm.com offering executive legal offices with access to conference rooms, Office Sublease Memorial Park/ a full-time receptionist, Wi-Fi/ Galleria – 1001 W Loop South phone/internet included, starting Available August 2013 – $550 per as low as $700/month with short month. 1 year lease with option term leases available. Please call to renew for 2 additional years.

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Includes shared reception area, conference room, and kitchen.

WEST LOOP - MEMORIAL PARK Mentoring with seasoned probate/ Large window office available with elder law and family/criminal law view of arboretum. Minutes from attorneys. Call 832-436-4238. downtown via Memorial Drive.

Amenities include telephone, fax, Three large partner offices with copier, internet, coffee bar, law view of downtown, two associate library, use of conference rooms offices, two paralegal stations areas and reception services. Secretarial available for sublease September services also available. Free park- 1 in newly built out space in the ing. Additional space available for Heights. Rent includes conference secretarial/paralegal use. Please call room, break room, internet access, 713-622-6223. high speed copier/ fax/ scanner, phone system, attached covered Mid-size firm in Uptown/Galleria parking, and room for your files. near Post Oak. Seven offices and Contact Teri at 713-529-2020 or four Secretarial / Paralegal statwalter@prevaillawyers.com tions available. Amenities include filing space, fax, copier, kitchen, Galleria Area conference rooms, internet, re- Available for sublease to a sole ceptionist, and covered park- practitioner, a furnished 240 sq.ft. ing. For more information, call exterior office (wall of windows).

Nikki Peoples at 713-752-8318, Includes use of a conference room, npeoples@haysmcconn.com. wifi, phone w/vm, receptionist and limited secretarial assistance.

RIVER OAKS TOWER Kirby & Call 713-993-9363 Richmond 5 - Family Law AttorFor classifieds ads : neys sharing offices has 1 office space 10’ X 11’ available for subMary Chavoustie lease. Amenities include confermary@quantumsur.com ence room, local and long distance 281.955.2449 ext.13 telephone, private voicemail, high

LEGAL TRENDS

Positions Available Experienced litigation attorney sought by firm with a focus on multi-family, landlord representation. Competitive pay. Great environment. Stable and repeat client base. Send confidential resume to greenwaylawyer@hotmail.com.

Litigation firm with a focus on landlord representation is seeking experienced litigation paralegal/ legal secretary. Competitive pay with great working environment. Send confidential resume to greenwaylawyer@hotmail.com.

Boulware & Valoir seeks an Associate Patent Attorney to work in Houston, TX for patent preparation and prosecution with emphasis in both biotechnology and chemical engineering. Minimum of a J.D. and Master’s degree in Biotechnology or Chemical Engineering and (24) months of chemical engineering and biotechnology patent work experience involving World-wide Patent Freedom-to-Operate and IP due diligence. Requires U.S. Law License & Passage of U.S. Patent Exam. Submit resume to Meg Boulware, Boulware & Valoir, Three Riverway Ste. 950, Houston, TX 77056.

ESTABLISHED HOUSTON LAW FIRM HAS AN IMMEDIATE OPENING FOR AN EXPERIENCED REAL ESTATE ATTORNEY; MINIMUM 3-5 YEARS EXPERIENCE WORKING WITH LENDERS AND LOAN DOCUMENTATION. PLEASE RESPOND WITH RESUME TO mbillings@csrslaw.com.

Entry level litigation attorney.

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Professional Services Ticket and DWI defense, traffic warrant removal, DPS license hearings, occupational driver’s licenses, and driver’s license issues. Robert W. Eutsler. www.TheTicketAttorney.com Tel. 713-464-6461.

From page 42

monized Section 41.0105 with the collateral source rule. Emphasizing the important public policy behind the collateral source rule, the court pointed out that allowing a tortfeasor to avoid paying medical expenses simply because it was provided by a charity organization would reward tortfeasors. Thus, the court found that allowing the recovery of reasonable and necessary medical expenses actually borne by the injured party with the charity organization does not conflict with Section 41.0105. Accordingly, after Big Bird an injured party may recover gratuitous medical services so long as the law or other contractual restriction does not prohibit the provider from such recovery.

Hector G. Longoria is an associate with Heard Robins. He handles personal injury and commercial litigation matters.

Endnotes 1. Haygood v. De Escabedo, 356 S.W.3d 390, 396–97 (Tex. 2011).

2. Big Bird Tree Services v. Gallegos, 365 S.W.3d 173, 175–76 (Tex. App.—Dallas 2012, pet. denied).

Media Reviews From page 43

and their families.

The book is divided into 11 chapters that cover the most important legal issues that face servicemembers and their families, both during and after their active service. Each chapter begins with a real-life problem, helps the user understand the problem and options for solving it, and concludes with additional resources. Sprinkled throughout are shaded boxes that provide checklists, sidebars such as an explanation of the different types of Powers of Attorney, and “things to think about.”

The book begins with what may be the most baffling questions for some: when do I need a lawyer and how do I work with one? It also covers how to determine if you are eligible for military legal assistance. Other chapters cover general issues such as Family Law and the Military; Debt and Finance for Military Families; Housing, Real Estate and LandlordTenant Issues; Motor Vehicle Sales, Finance and Repair; and Wills and Estate Planning.

The remaining chapters cover topics more specific to servicemembers such as Military Health Care and Insurance; Military Service and Your Employment Rights; Discharge from the Military; Disability Issues; and Veterans Benefits. Each chapter examines how legislation like the Servicemembers Civil Relief Act and the Military Lending Act factor into legal issues when military families are involved.

The Legal Guide for Military Families is practical, user-friendly and insightful. It is a companion piece to the ABA’s Homefront website (www.abahomefront.org), which offers a wealth of information and resources for military members and families.

Lawyers who would like to volunteer to assist veterans can find out more about the Houston Bar Association’s Veterans Legal Initiative (VLI) by visiting www.hba.org. The VLI holds clinics every Friday from 2-5 p.m. at the Michael E. DeBakey VA Medical Center and Saturday clinics in outlying counties, both possible through the volunteer efforts of Houston lawyers. The Legal Guide for Military Families can make you a more knowledgeable volunteer, and it can be an excellent resource for your clients who are veterans.

Tara Shockley is the communications director for the Houston Bar Association and managing editor of The Houston Lawyer. thehoustonlawyer.com

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