Objecting to Summary Judgment Evidence in State Court: Recent Clarifications and Remaining Complications Preparation and Preservation: Tackling the Jury Charge Developments in ‘Paid and Incurred’ Law for Medical Bills To Tell the Truth? Assessment of Malingering of Emotional Injuries Mediation Ruminations
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Volume 56 – Number 2
September/October 2018
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contents September/October 2018
Volume 56 Number 2
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FEATURES to Summary 10 Objecting Judgment Evidence in State
Court: Recent Clarifications and Remaining Complications By Lynne Liberato and Natasha Breaux
and Preservation: 14 Preparation Tackling the Jury Charge By Jessica Barger and Natasha Taylor
in ‘Paid and 18 Developments Incurred’ Law for Medical Bills
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22
By Robert W. Painter
Tell the Truth? 22 ToAssessment of Malingering of Emotional Injuries
By Katherine A. Fox and John P. Vincent
The Houston Lawyer
Ruminations 28 Mediation By Bob Black
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2017. All rights reserved.
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Volume 56 Number 2
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departments Message 6 President’s Resilience Keeps Justice Flowing
in Harris County
By Warren W. Harris the Editor 8 From A Jack of All Trades
By Polly Graham Fohn
THE RECORD 32 OFF World’s Greatest Astros Fan:
Mary Flood
By The Hon. Jeff Work
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36
A Profile in professionalism
33 Mark E. Lowes
Senior Vice President, Litigation, KBR Inc.
Spotlight 34 Committee Bench Bar Conference Committee:
Celebrating 25 Years
By The Hon. Erin Lunceford SPOTLIGHT 35 SECTION HBA Litigation Section: Educating
the Smart Advocate By D.J. Seidel
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Legal Trends
36 First Court of Appeals Clarifies the
Standard for Conditions Precedent By David V. Wilson II
Supreme Court Upholds Texas Venue for Wrongful Death Claim that Arose in Mississippi By Marcel de Chermont
ReviewS 38 Media Lincoln’s Last Trial: The Murder Case
That Propelled Him to the Presidency Reviewed by Steve Wisch
Mastering the Art of Depositions Reviewed by Farrah Martinez The Houston Lawyer
40 Litigation MarketPlace
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September/October 2018
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president’s message By Warren W. Harris
Resilience Keeps Justice Flowing in Harris County Bracewell LLP
W
e recently marked the one-year anniverthat our courts are functioning in spite of challenges. This sary of Hurricane Harvey, and we should is especially helpful because the Criminal Justice Center is recognize the impact the storm had on our not expected to reopen until 2019. justice system. Our courts and courthouse Harvey also had a severe impact on our jury system, with complex are crucial to supflood waters flowing over the watertight port the rule of law. Hurricane Harvey doors and flooding the Jury Plaza. Harris Hurricane Harvey threatened to seriously disrupt our ability County District Clerk Chris Daniel and his threatened to to conduct trials and other court proceedstaff did a great job and were able to quickly ings, but thanks to the efforts of many pubmove jury service to the old cafeteria in the seriously disrupt lic servants, our courts continued to operHarris County administration building. He ate. had jury service up and running a month our ability to conduct We owe special thanks to our administraafter the storm, despite the destruction of trials and other tive judges who quickly worked out a courtthe jury assembly facility. The Jury Plaza is room sharing program that allowed trials not expected to reopen until 2020. court proceedings, to continue. Judge Robert Schaffer (HarWe owe a special thanks to all of the but thanks to the ris County District Courts Administrative judges, court staff, attorneys, jurors, and Judge), Judge Sylvia Matthews (former Adlitigants who went through disruptions in efforts of many ministrative Judge, Civil District Courts), their courtrooms, their schedules, their Judge David Farr (former Administrative commutes, and their lives in general to republic servants, Judge, Family District Courts), Judge Susume the flow of justice. And many of them our courts continued san Brown (Administrative Judge, Eleventh were also dealing with their own personal Administrative Judicial Region and former flooding issues. to operate. Administrative Judge, Criminal District Houston survived Harvey because our Courts), and Judge Paula Goodhart (Administrative Judge, community always bands together in times of need. The County Criminal Courts at Law) all worked very hard to get resilience of our local justice system mirrors the resilience judges back into courtrooms so trials and the business of of our city after a crisis. the courts could resume. They also worked closely with the The HBA will continue to update our members and the HBA to keep our bar informed about closures, changes, and bar about the courts, as well as other issues that affect your assignments. These judges, and the current administrative ability to practice law, serve your clients, and be part of our judges, have continued to keep us updated on the recovery legal community. Please let me know how we can better process a year after Harvey, and have continued to ensure help Houston-area lawyers.
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The Houston Lawyer
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from the editor By Polly Graham Fohn Haynes and Boone LLP
Associate Editors
Anietie Akpan Sinoski & Associates PLLC
Anna M. Archer U.S. District Court
Preston Hutson MehaffyWeber PC
A Jack of All Trades
L
itigators are jacks of all trades—fighters, peacemakers, scholars, storytellers and sometimes even scientists. This issue of The Houston Lawyer is devoted to helping litigators excel in each of these very different facets of their profession.
how to navigate this minefield.
Peacemaker “As a peacemaker the lawyer has a superior opportunity of being a good man.” —Abraham Lincoln awyers facilitate far more settleThis issue ments than jury verdicts. Yet, as of The Houston litigators, it is often difficult to set aside our adversarial roles and help Lawyer is clients reach a compromise. Former devoted to State Bar President, Bob Black, offers insight rooted in years of experience helping as a mediator to help lawyers and their clients get the most out of alterlitigators native dispute resolution.
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Scholar “A lawyer without books would be like a workman without tools.” —Thomas Jefferson itigators must be more than great storytellers and persuasive advocates, they must also be scholars of the law and masters of procedure. Two former editors-in-chief excel in each of The Houston Lawyer bring us upScientist dates on pivotal new Texas Supreme of these very “Scientific conclusions are subject to Court jurisprudence. Haynes and different facets perpetual revision. Law, on the other Boone, LLP appellate partner and hand, must resolve disputes finally summary judgment expert, Lynne of their and quickly.” Liberato, and associate Natasha —Justice Blackmun, Daubert v. Breaux explore the Texas Supreme profession. Merrell Dow Pharmaceuticals Court’s latest guidance on summary judgment objections. Robert Painter discusses reitigators must often possess not only a J.D., but cent developments in “paid and incurred” law for also an honorary Ph.D. John P. Vincent, promedical bills. fessor of Forensic Psychology at the University of Houston, and professor, and doctoral student, KathAdvocate erine Fox, help us understand how forensic mental “Successful trial lawyers are like heat-seeking mishealth evaluations can be used to uncover or minisiles carrying payloads of information prejudicial mize malingering when assessing psychological to their opponent’s case, constantly looking for the damages. Malingering includes the deliberate fabchance to unload their cargo, right up until the final rication or exaggeration of symptoms for financial moments of trial.” gain. —David Berg, The Trial Lawyer: What It Takes to Win A special thanks to guest editors Preston Hutson lthough less than 2% of lawsuits are tried, of Mehaffy Weber and Taunya Painter of Painter the role of litigator as a courtroom advocate is Law Firm, who led the editorial board’s effort to iconic. And while you will not find it dramatized by put together this outstanding lineup of articles and Hollywood, one of the biggest fights at trial is over authors. And, as always, thank you for reading The the jury charge. Jessica Barger and Natasha Taylor, Houston Lawyer. partners at Wright Close & Barger, LLP, teach us
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Taunya Painter Painter Law Firm PLLC
The Houston Lawyer
A Hon. Jeff Work Manning, Gosda & Arredondo, L.L.P.
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BOARD OF DIRECTORS President
Secretary
President-Elect
Treasurer
First Vice President
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David Harrell
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Bill Kroger
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Collin Cox Hon. Erin Lunceford
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editorial staff Editor in Chief
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By Lynne Liberato and Natasha Breaux
Objecting to Summary Judgment Evidence in State Court:
Recent Clarifications and Remaining Complications
F
or something as seemingly simple as objecting to evidence, attempts to do so in a summary judgment proceeding are fraught with complica-
tions.1 Here are key questions concerning objections to summary judgment evidence: 1. Does the granting of a summary judgment implicitly sustain objections by the winning party (and overrule objections by the loser)? 2. When can evidentiary defects be raised for the first time on appeal?
3. Must rulings on objections be written? 4. What actions should be taken if the trial judge refuses to rule on objections? To add to the complication, some of these questions have sub-questions that must be answered before reaching the best decision on how to proceed. This year, the Texas Supreme Court in Seim v. Allstate Texas Lloyds2 answered many of these questions. Others linger in the intermediate appellate courts. The answers are detailed below. Preserving error matters if a summary judgment is appealed. Rules for error preservation that apply in trial also apply in summary judgment proceedings. To preserve a complaint for appellate review that evidence is inadmissible, (1) a party must complain to the trial court in a timely request, objection, or motion, and (2) the trial court must rule or refuse to rule.3 But, application of these rules is easier said than done. Explicit ruling generally required. Unless the record shows a clearly implied ruling by the trial court, trial courts must expressly rule on evidentiary objections in writing. The supreme court has approved the following practices: • The party asserting the objections should obtain a written ruling at, before, or very near the time the trial court rules on the motion for summary judgment (or risk waiver); • Practitioners should incorporate all of their objections to summary judgment evidence in proposed orders granting or denying summary judgment; and • The trial court should disclose, in writing, its rulings on all objections to summary judgment evidence at or before the time it enters the order granting or denying the summary judgment.4
stance. The wisest practice is to present In limited circumstances, a ruling all objections in writing and obtain a rulmay be implicit. ing on them by the trial court. The supreme court has not closed the door to implicit rulings on objections There are additional requirements to summary judgment evidence if the to assert objections and secure a implication of the trial court’s decision written ruling. was “clear.” But nothing in the record The objection to summary judgment eviin Seim clearly implied a ruling on the dence must be specific.9 For example, a movant’s objections. The court noted: court of appeals held that “Indeed, even without the an objection to a paraobjections, the trial court Unless the graph in an affidavit as could have granted sumrecord shows a legal conclusion was mary judgment against itself impermissibly conthe [non-movants] if it a clearly clusory, because it failed found that their evidence implied ruling to identify which statedid not generate a genuine 5 ments in the paragraph issue of material fact.” by the trial were objectionable or ofWhether a defect is one court, trial courts fer any explanation concerning the precise bases of form or substance must expressly for objection.10 Concerndetermines whether it ing the requirement for a can be waived. rule on written ruling, a docket Failure to object to the evidentiary sheet entry does not form of summary judgmeet this requirement.11 ment evidence waives objections In light of the language any defects concerning by the supreme court in form. Objections to the in writing. Seim consistently refersubstance of summary ring to a “written” ruling,12 presumably judgment evidence may be raised for the 6 an oral ruling contained in a reporters first time on appeal. record would not be sufficient—although Although providing a limited discusarguably the reporters record itself is sion, the court in Seim addressed this “written” and therefore could meet the distinction between substantive and for“written” requirement. Absent a proper mal defects. Specifically, it reaffirmed order sustaining an objection, all of the that failure of an affidavit to include a summary judgment evidence, including jurat was a defect in form that could not any evidence objected to by a party, is be first complained of on appeal.7 While proper evidence that will be considered Seim settled the issue in regard to an on appeal.13 affidavit without a jurat, there remain inconsistencies among the courts of apObtain a ruling at, before, or very peals concerning characterizations of near the time the trial court rules on other defects as defects of form or of sub8 the motion for summary judgment. stance. Nonetheless, the implication in In Seim, the supreme court recognizes the Seim case is clear from the supreme that it may not be possible to get a rulcourt’s determination that such an obing at or before the time of the ruling. It vious defect as the omission of a jurat emphasized in italics the following quote (or to otherwise show that an affidavit from the Houston Fourteenth Court of was sworn to) is a defect in form that is Appeals in Dolcefino v. Randolph: “In any waived without a ruling on the related context, however, it is incumbent upon objection. The implication is that the suthe party asserting objections to obtain a preme court will look with disfavor on written ruling at, before, or very near the determinations that defects concern sub-
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time the trial court rules on the motion for summary judgment or risk waiver.”14 The standard of “very near the time the trial court rules” implies the need to move quickly to obtain a ruling on evidentiary objections if the trial court has not ruled at or before ruling on the summary judgment motion. In addressing the role of the trial court, the supreme court directs that “the better practice is for the trial court to disclose, in writing, its rulings on all objections to summary judgment evidence at or before the time it enters the order granting or denying summary judgment.”15 Opinions from courts of appeals issued before Seim indicate that as long as the ruling is made before the plenary power of the court expires, there should be no waiver if the court rules on objections after its summary judgment ruling.16 If the trial court refuses to rule on an objection, file a written objection to its failure to rule. The appellate rules direct that if the trial court refuses to rule on a timely objection, “the complaining party [must] object[ ] to the refusal” to rule.17 Therefore, if a party properly objects to the summary judgment evidence and the trial court fails to or refuses to rule in writing, that party should object in writing to the trial court’s refusal. Simply re-urging the original evidentiary objection is not sufficient.18 In a case issued before Seim, the nonmovant for summary judgment complained in his motion for new trial of the trial court’s refusal to rule, and, in doing so, the court of appeals held that he preserved his complaint for review.19 Nonetheless, in light of Seim, which endorses the timing standard that a ruling must be obtained “very near the time the trial court rules on the motion for summary judgment,” careful practice would be to object earlier than the time for filing the motion for new trial. Indeed, based on this timing standard, the Houston First Court of Appeals held that a party waived his complaint about
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the trial court’s failure to rule on his objections to summary judgment evidence by not objecting to the failure until almost one year after the court’s initial ruling on the partial summary judgment and six months after its amended ruling, even though he objected before final judgment issued and again in a motion for new trial.20 When dealing with objections to evidence, as is true for so many summary judgment practices, the biggest difficulty may not be showing that the movant is entitled to summary judgment relief. Rather, it may be complying with the technical procedures necessary to keep (or reverse) a summary judgment.21 Lynne Liberato, an appellate partner with Haynes and Boone, is a former editorin-chief of The Houston Lawyer. Natasha Breaux, an appellate associate with Haynes and Boone, is a member of The Houston Lawyer editorial board and former law clerk to Fifth Circuit Judge
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Fortunato P. Benavides and Southern District Judge David Hittner. Endnotes
1. See generally Judge David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal Practice, scheduled for publication in S. Tex. L. Rev. (Feb. 2019), previously 52 Hous. L. Rev. 773 (2015). 2. __ S.W.3d __, No. 17-0488, 2018 WL 3189568 (Tex. 2018) (per curiam). 3. Id. at *2 (citing Tex. R. App. P. 33.1(a)). 4. Id. at *4. 5. Id. at *4-5 (citing In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003)). In re Z.L.T. involved a request by an inmate for the court to issue a bench warrant, not a summary judgment. In evaluating whether the ruling was sufficient to present an issue for appellate review, the supreme court explained that by proceeding to trial without a bench warrant, it was clear that the trial court implicitly denied the inmate’s request. 124 S.W.3d at 165. Even in the courts of appeals, there are limited examples of holdings that a ruling on summary judgment evidence was implicit. In one such case, the court of appeals held that the trial court implicitly overruled the appellant’s objection to an affidavit by granting leave to file a supplemental affidavit. Atkins v. Tinning, No. 13-99-821-CV, 2001 WL 997389, at *3 (Tex. App.—Corpus Christi May 3, 2001, pet. denied). 6. Seim, 2018 WL 3189568 at *2, *4. An example of a substantive defect is an objection that evidence is conclusory. E.g., McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241-42 (Tex. App.—Waco 2003, no pet.). 7. Seim, 2018 WL 3189568 at *5. 8. For example, there is a split of authority as to whether an affiant’s lack of personal knowledge is a defect in form
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or substance. Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 731-36 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (en banc) (gathering authorities). 9. Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.). 10. Womco, Inc. v. Navistar Int’l Corp., 84 S.W.3d 272, 281 n.6 (Tex. App.—Tyler 2002, no pet.). 11. Utils. Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719, 723 (Tex. App.—Dallas 1988, no writ). 12. Seim, 2018 WL 3189568 at *2, *4. 13. Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 663 (Tex. App.— Waco 2002, no pet.). 14. Seim, 2018 WL 3189568 at *4 (quoting Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)). 15. Id. (quoting Dolcefino, 19 S.W.3d at 926). 16. Wolfe v. Devon Energy Prod. Co., 382 S.W.3d 434, 447-48 (Tex. App.—Waco 2012, pet denied) (gathering authorities and holding that objections to summary judgment evidence were not waived despite a month elapsing between the signing of the judgment and the signing of the order sustaining the evidentiary objections). 17. Tex. R. App. P. 33.1(a)(2)(B). 18. Ermisch v. HSBC Bank USA, No. 03-16-00080-CV, 2016 WL 6575232, at *2 n.3 (Tex. App.—Austin Nov. 4, 2016, pet. denied) (mem. op.). 19. Alejandro v. Bell, 84 S.W.3d 383, 388 (Tex. App.—Corpus Christi 2002, no pet.). 20. Vecchio v. Jones, No. 01-12-00442-CV, 2013 WL 3467195, at *13 (Tex. App.—Houston [1st Dist.] July 9, 2013, no pet.). 21. Lynne Liberato & Kent Rutter, Reasons for Reversal in the Texas Courts of Appeals, 48 Hous. L. Rev. 993, 1038 app. B, fig. 13 (2012) (showing that there is a relatively high number of reversals (18%) for procedural defects where the summary judgment may have been fundamentally sound but was reversed because of failure to follow proper procedures).
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By Jessica Barger and Natasha Taylor
Preparation and Preservation:
Tackling the Jury Charge
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ssembling the jury charge and preserving charge error are not easy tasks, even for the most seasoned lawyer. The jury charge is the roadmap for the jury to follow to determine the outcome of your entire case—no pressure, right? The timing of when the charge is finalized often compounds the heartburn that accompanies the drafting and preservation process. The Texas Supreme Court has even acknowledged this daunting practice: Today, it is fair to say that the process of telling the jury the applicable law and inquiring of them their verdict is a risky gambit in which counsel has less reason to know that he or she has protected a client’s rights than at any
other time in the trial. The preparation of the jury charge, coming as it ordinarily does at that very difficult point of the trial between the close of the evidence and summation, ought to be simpler. To complicate this process with complex, intricate, sometimes contradictory, unpredictable rules, just when counsel is contemplating the last words he or she will say to the jury, hardly subserves the fair and just presentation of the case. Yet that is our procedure.1 The procedure can be very manageable, however, if in advance of the charge conference, you draft a wellthought-out charge and prepare the potential objections and submissions you envision making at the time of the formal charge conference. This article will discuss techniques to use and rules to follow when navigating the jury charge process. It is certainly not all encompassing of every charge error issue. But it unmasks some of the mystery that can shroud the jury charge. 1. Pleading and Submitting the Correct Legal Theory Before trial begins, give significant thought to the theories that are plead and what should be submitted to the jury. One method of thought is to begin drafting the charge well in advance of the trial. Not only will this assist in obtaining the discovery needed to support the elements of your claims and future dispositive motions, but it forces you to study the facts of your case and the accompanying law. The Texas Supreme Court has provided guidance on what could happen from submitting the wrong theory. In Torrington Co. v. Stutzman, the plaintiff submitted a broad-form negligence question on which the jury found the defendant liable.2 Despite the jury’s finding, the Court held that the jury’s answer to a broad-form negligence question was inadequate to support recovery on a theory of negligent undertaking because it omitted the elements necessary
to establish such a claim.3 The Court then remanded the case for a trial on the plaintiff’s negligent undertaking claim.4 The Texas Supreme Court, in United Scaffolding v. Levine, found the jury charge deficient, but did not give the plaintiff another chance to try his case.5 In Levine, the plaintiff submitted a broad-form negligence question rather than a premise liability question to the jury.6 The Texas Supreme Court explained that “[n]egligence and premises liability claims... are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.”7 Because Levine’s injury and pleadings sounded in premises liability and Levine had not specifically requested a premise liability question or obtained findings on the elements, Levine waived his premise liability claim.8 The Court then rendered a take-nothing verdict in United Scaffolding’s favor.9 Notably, the Court also concluded: “A defendant has no obligation to complain about a plaintiff’s omission of an independent theory of recovery; rather, the burden to secure proper findings to support that theory of recovery is on the plaintiff, and a plaintiff who fails to satisfy that burden waives that claim.”10 The defendant’s post-verdict motions preserved the error. It is important to think these issues through well in advance of the trial. A good starting point in drafting your charge is obviously the Texas Pattern Jury Charges. Even if your claim does not have a Pattern Jury Charge question, the Pattern Jury Charge may provide helpful definitions or predicates you can use to craft your own question. Finally, the Pattern Jury Charge is just a guide, so remember to search prevailing authorities to see if the appellate courts have upheld questions or instructions
related to your theories. 2. Preserving Charge Error A trial court is required to submit to the jury all questions, instructions, and definitions raised by the pleadings and evidence.11 The rules of procedure governing preparation of and complaints about the jury charge are set forth in Rules 271–279 of the Texas Rules of Civil Procedure. In particular, Rules 274, 278, and 279 discuss two types of charge error: (1) defective questions, instructions, and definitions that are actually submitted to the jury; and (2) questions, instructions, and definitions that are omitted from the charge entirely.12 The following chart explains when to object or submit a written request or sometimes both to preserve error:
These objections and requests are generally made during the formal charge conference. By the time discussions related to the charge transpire, judges are understandably hurrying to get the charge to the jury. They may want to rush you, and they will likely have an informal charge conference before all testimony is given. But in spite of this, you are entitled to two things: (1) a reasonable time to inspect the charge and present objections; and (2) time to make formal objections to the charge at the close of all evidence.13 Objections and submissions are critical to preserve charge error. Ensure that the trial court understands the objection or submission when ruling and that the formal charge conference is on the record.
A. Making an objection to preserve error The Texas Rules of Civil Procedure provide, in pertinent part, that charge objections “shall in every instance be presented to the court [, in the presence of opposing counsel]... before the charge is read to the jury... [and a]ll objections not so presented shall be considered as waived.”14 The objections can be made in writing or dictated on the record.15 Further, the objecting party “must point out distinctly the objectionable matter and the grounds of the objection.”16 A party cannot adopt by reference objections made in other parts of the charge.17 On appeal, courts will review whether there was (1) a timely objection “stating the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context,” and (2) a ruling on the objection.18 Note that a ruling is imperative to preserving error. The objection made at trial must also match the complaint raised on appeal.19 Here is a list of common objectionable issues: • Submits the charge in an “overbroad” broad-form.20 • Uses an inaccurate statement of law.21 • Omits a controlling issue that was raised by the pleadings and evidence or submits an issue not raised by the pleadings and evidence.22 • Informs the jury of the legal effect of its answers.23 • Inquires into questions of law or undisputed issues of fact.24 • Incorrectly conditions one question on another.25 • Submits inferential rebuttal issues.26
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• Assumes the truth of a controverted fact.27 • Fails to submit a proper measure of damage.28 • Fails to properly place the burden of proof.29 • Fails to track applicable statutory language.30 B. Making a request or tender to preserve error All requests must be tendered to the court in writing.31 These requests must be tendered to the court in substantially correct wording.32 Keeping in line with Rule 33.1 of the Texas Rules of Appellate Procedure, to preserve error, a judge should endorse requests as “Refused” or “Modified as follows” and sign the same officially.33 Endorsement is the preferred, but perhaps not the only, means of preserving error for refusing a request if the court affirmatively notes on the record that it was refusing the request.34 C. Making your objection or request separate and apart from each other Rule 273 specifically provides that a “request by either party for any questions, definitions, or instructions shall be made separate and apart from such party’s objections to the court’s charge.”35 One way to keep these separate is to make all of your objections first and then tender your written requests to the court. Another way is to make your objection related to a specific question, get a ruling on that objection, and then explicitly state on the record, “separate and apart from my objections to X question, I tender Y.” Then hand the court the written request for its ruling. Repeat this process with every question. 3. Tips to Remember Below are some tips from many accomplished appellate lawyers: • Know that predicate instructions (e.g., “If you have answered Question 1 ‘yes’ then answer the following question.”) can trip up jurors as they work through charge questions. 16
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Read them and make sure they make sense. • Make all of your objections and tenders when the court requests them. If the trial court sets a deadline for the submission of objections and tenders for the charge, and you think of something to add the next morning, you may not have preserved the issue. • Be mindful that proposed tenders are required on any issue on which you have the burden of proof, including affirmative defenses, counterclaims, and inferential rebuttal instructions. Mere objections are not enough to preserve error. • There is no one way of making objections and submitting items that need to be submitted. Do it whatever way makes the most sense to you. • Stand your ground and do not let either the judge or the other side rush you when making your objections and tenders. The record must be clear to preserve error, and often when you are in a hurry, you can miss something. • If the court agrees to revise or change the charge during the formal conference, ask the court on the record for permission not to restate all your arguments and objections (and get assent from opposing counsel). Rule 272 provides that parties must present their objections to “the charge” given to the jury. If the court changes it, it is a new charge and may technically require you to restate your objections, unless the court and opposing counsel agree that it is unnecessary. • Ask that each juror be given a copy of the charge to read along with the court before closing argument. Most courts do this, but some do not. The jury cannot follow along without it, and your arguments will be more impactful if they each have a copy to follow when you argue the charge to them in closing. • If you have a big case or one with
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numerous moving parts, get help for the charge conference from someone who knows what your specific goals are. Often as the trial lawyer you may be juggling evidentiary issues, closing arguments, jury issues, etc. Bring in another lawyer who can spot issues and focus on preserving them. Practical considerations, client input, and matters of strategy may dictate the requested form of submission. But always be conscious to preserve error during the process so your client’s interests can be maintained on appeal. Jessica Barger is a named partner with Wright Close & Barger, LLP, who is board certified in Civil Appellate Law. She focuses her practice on assisting trial counsel navigate through a trial with an appellate eye and briefing and arguing before the Fifth Circuit, Texas Supreme Court, and all courts of appeals. Natasha Taylor is a partner with Wright Close & Barger, LLP. She works with trial counsel to preserve error, practices before various state and federal appellate courts, and handles coverage-specific litigation and appeals. Endnotes
1. State Dep’t. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 240 (Tex. 1992). 2. 46 S.W.3d 829, 836 (Tex. 2000). 3. Id. at 839. 4. Id. at 841. 5. 537 S.W.3d 463, 481 (Tex. 2017). 6. Id. at 468–69. 7. Id. at 471. 8. Id. at 480–81. 9. Id. at 483; see also W&T Offshore Inc. v. Meyers, 14-16-00378-CV, 2018 WL 3235438, at *7 (Tex. App.—Houston [14th Dist.] July 3, 2018, no pet. h.) (concluding the plaintiff incorrectly submitted a general negligence theory when he should have submitted premise liability). 10. Levine, 537 S.W.3d at 481. 11. TEX. R. CIV. P. 278; Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663–64 (Tex. 1999); E.I. DuPont de Nemours & Co. Roye, 447 S.W.3d 48, 56 (Tex. App.— [14th Dist.] 2014, pet. dis’d). 12. See TEX. R. CIV. P. 274, 278, 279; Texas PJC 314.1. 13. See King Fisher Marine Serv., L.P. v. Tamez, 443 S.W3d 838, 843 (Tex. 2014). 14. Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 919 (Tex. 2015) (quoting TEX. R. CIV. P. 272). 15. TEX. R. CIV. P. 272. 16. Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014) (quoting TEX. R. CIV. P. 274). 17. See TEX. R. CIV. P. 274. 18. Burbage, 447 S.W.3d at 256 (quoting TEX. R. APP. P.
33.1) (internal quotations omitted). 19. See, Delaney v. Scheer, No. 03-02-00273-CV, 2003 WL 247110, at *3 (Tex. App.—Austin 2003, no pet.). 20. Diamond Offshore Mgmt. Co. v. Guidry, 171 S.W.3d 840, 844 (Tex. 2005) (per curiam); see Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000). 21. Romero v. KPH Consol., Inc., 166 S.W.3d 212, 230 (Tex. 2005). 22. TEX. R. CIV. P. 278. 23. TEX. R. CIV. P. 277. 24. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d
218, 223 (Tex. 1992). 25. See Varme v. Gordon, 881 S.W.2d 877, 881 (Tex. App.— [14th Dist.] 1994, writ denied). 26. TEX. R. CIV. P. 277; Bed, Bath and Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006). 27. Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 617 (Tex. App.—Dallas 2010, no pet.). 28. See Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex. 1987). 29. Maxus Energy Corp. v. Occidental Chem. Corp., 244 S.W.3d 875, 884 (Tex. App.—Dallas 2008, pet denied). 30. Felton v. Lovett, 388 S.W.3d 656, 661 n.18 (Tex. 2012).
31. TEX. R. CIV. P. 278; see Woods v. Crane Carrier Co., 693 S.W.2d 377, 379–80 (Tex. 1985). 32. TEX. R. CIV. P. 278; Placencio v. Allied Indus. Int’l, Inc., 724 S.W.2d 20, 21 (Tex. 1987) (“[Substantially correct] means one that in substance and in the main is correct, and that is not affirmatively incorrect.”). 33. TEX. R. CIV. P. 276. 34. Dallas Mkt. Ctr. Dev. Co. v. Liedeker, 958 S.W.2d 382, 386–87 (Tex. 1997), overruled in part on other grounds, Torrington Co., 46 S.W.3d at 840 n.9. 35. TEX. R. CIV. P. 273.
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T Developments By Robert W. Painter
in ‘Paid and Incurred’ Law for Medical Bills
he last two decades have seen major changes to the personal injury law landscape in Texas. In 2003, many medical malpractice cases became economically unfeasible overnight when new tort reform became effective. Most significantly, the cap on past medical bills broadly impacted all types of personal injury cases. The new statute, Texas Civil Practice & Remedies Code Section 41.0105, mandated that “[i]n addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.”1
Haygood v. De Escabedo When the interpretation of Section 41.0105 was taken up on appeal, the Texas Supreme Court entered its opinion in Haygood v. De Escabedo, which upended decades of everyday trial practice for personal injury attorneys.2 The plaintiff in Haygood had been billed $110,069.12 by his health care providers. Because he was a Medicare Part B beneficiary, the providers adjusted their bills to $27,739.43. Of that revised sum, at the time of trial, $13,257.41 had been paid, and $14,482.02 was legally owed. The appellate issue was the trial court’s denial of the defendant’s Section 41.0105 motion to exclude evidence of any past medical expenses other than those paid and owed. Based on the evidence admitted by the trial judge, the jury found in favor of the plaintiff, awarding past medical damages in the total billed amount of $110,069.12. The Texas Supreme Court explained that the evidence presented in Haygood was “entirely typical” of what was then standard practice: Providers commonly bill insured patients at list rates, with reductions to reimbursement rates shown separately as adjustments or credits. Portions of bills showing only list charges are admitted in evidence, with proof of reasonableness coming from testi-
mony by the provider, or more often, by affidavit of the provider or the provider’s records custodian as permitted by section 18.001 of the Texas Civil Practice and Remedies Code.3 A major argument in Haygood centered around application of the collateral source rule. This common law doctrine is intended to prevent a defendant from receiving a windfall from a benefit intended for the plaintiff. The Supreme Court determined that “[t]he benefit of insurance to the insured is the payment of charges owed to the health care provider. An adjustment in the amount of those charges to arrive at the amount owed is a benefit to the insurer... not for the insured.”4 The court then held that “only evidence of recoverable medical expenses is admissible at trial.”5 The Haygood opinion landed like a lead balloon in certain circles. In the six years that have passed since its release, some insurance carriers and defense attorneys have grumbled that the resilient plaintiffs’ bar has developed a workaround by increasingly utilizing letters of protection. Letters of protection work like this: a plaintiff’s attorney sends a client for treatment with health care providers who will accept a letter of protection in lieu of billing private insurance, Medicare, or Medicaid, or demanding direct payment. A letter of protection is essentially an agreement under which a health care provider will treat a personal injury patient in exchange for a promise by the plaintiff’s attorney to protect payment of the provider’s charges out of any recovery. In common practice, many attorneys and health care providers use a “one-third, one-third, one-third” split of any recovery that is divided among the plaintiff, plaintiff’s attorney, and pro rata to all health care providers. At trial, plaintiffs are still able to present evidence of the undiscounted full charges of health care provided under a letter of protection. Such evidence is normally admitted with billing records
affidavits from medical records custodians attesting to the reasonableness of charges and the necessity of services.6 Gunn v. McKoy The Texas Supreme Court’s February 2018 opinion in Gunn v. McKoy is worthy of several articles for its far-reaching impact on the litigation of medical malpractice cases. One of its holdings, though, has broader implications on the use of Section 18.001 affidavits.7 The jury reached a verdict of
$10,626,639 against a Houston physician and her practice group, including over $7 million for future medical expenses and over $700,000 in past medical expenses. One of the myriad issues on appeal of this significant judgment was whether the plaintiff presented legally-sufficient evidence in support of the claim for past medical expenses. Section 18.001 provides a form “Affidavit Concerning Cost and Necessity of Services” that can be made by “(A) the
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person who provided the service; or (B) the person in charge of records showing the service provided and the charge made.” Attorneys typically use the statutory affidavit to obtain billing records from a health care provider’s custodian of records. That is exactly what the plaintiff in Gunn initially did. After the Supreme Court’s Haygood opinion was released though, the plaintiff withdrew those affidavits and substituted them with new affidavits from subrogation agents for the health insurance carriers who had paid the plaintiff’s medical bills, reflecting the amounts that had actually been paid. Interpreting the plain statutory language of Section 18.001, the Supreme Court held that the subrogation affidavits were proper and constituted legally sufficient evidence that the plaintiff’s past medical fees were both reasonable and necessary. In re North Cypress Medical Center Operating Co., Ltd. The April 2018 Texas Supreme Court opinion in the case styled In re North Cypress Medical Center Operating Co., Ltd. has once again targeted past medical bills, this time honing in on pretrial discovery.8 Interestingly, Justice Debra Lehrmann, who dissented in Haygood, wrote the Court’s opinion. Appellate outcomes sometimes epitomize the old saying, “Be careful what you ask for, because you might get it.” Many plaintiff’s attorneys must feel that way after this new opinion, which is the result of a plaintiff’s petition for writ of mandamus over a hospital lien dispute amounting to, at most, $8,278.31. The case began as a plain vanilla car wreck matter. An ambulance took the patient from the scene of the incident to North Cypress Medical Center, where she was treated for around three hours. Because she was uninsured, the hospital billed her at the full, undiscounted “chargemaster” rate totaling $11,037.35. Physician-owned North Cypress Medical Center timely filed a statutory hospital 20
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compared to what it customarily and lien.9 The insurance carrier for the party reasonably received from other patients responsible for the car wreck offered to for the same services. settle for $17,380, attributing $9,404 of Given that this case deals with the enthat amount to past medical bills. forceability of a statutory hospital lien, The plaintiff’s attorney negotiated the Supreme Court referenced its precewith North Cypress Medical Center dent that a hospital’s right to recover the over its bill, but the hospital would not full lien amount is “‘subbudge below $8,278.31. ject only to the right to At 48 percent of the total Appellate question the reasonableproposed settlement, the outcomes ness of the charges comhospital’s demand left prising the lien.’”10 roughly the same amount sometimes Therefore, the Court for the plaintiff and her epitomize the concluded, the question attorney to split. old saying, ‘Be is not one of the plaintiff The plaintiff’s attorShauna Johntrying to take advantage ney filed a declaratory careful what of health insurance that judgment action seeking you ask she did not have. Rather, to invalidate the hospibecause a hospital lien tal’s lien to the extent its for, because is unenforceable if it excharges were unreasonyou might ceeds a reasonable and able and more than the regular rate, “the central regular rate for the serget it.’ issue in a case challengvices that were provided. ing such a lien is what a reasonable and The case was assigned to the 234th Disregular rate would be.”11 trict Court, in Harris County, with the According to the Supreme Court’s Honorable Wesley Ward presiding. analysis, considering that reimburseA discovery dispute quickly ensued afments from private and public insurter the plaintiff served written discovery ance accounts for most hospital income, on the hospital seeking: (1) contracts for “[it] defies logic to conclude that those negotiated or reduced rates for all hospipayments have nothing to do with the tal services provided to the plaintiff, inreasonableness of charges to the small cluding certain named health insurers; number of patients who pay directly.”12 (2) its annual Medicare cost report; and The Court upheld the trial court’s de(3) Medicare and Medicaid reimbursecision to allow the plaintiff’s discovery ment rates for certain services. of what amounts the hospital was willAfter losing at the trial court and ing to accept for payments of services by Houston’s Fourteenth Court of Appeals, insured patients because it is relevant to North Cypress Medical Center continthe reasonableness of hospital charges ued its fight with a petition for mandato uninsured patients. Yet, the opinion mus to the Texas Supreme Court. expressly stated that it did not conclude The hospital argued that because the that “reimbursement rates standing plaintiff lacked private or public insuralone are dispositive of the question of ance, its reimbursement rates for private what constitutes a reasonable and reguand public payors were irrelevant to her lar rate for a hospital’s services.”13 case. Citing Haygood, the hospital contended that such reductions from the Where do we go from here? full chargemaster rate belonged to the This year’s opinions from Texas’s high insurer, not the insured. court have been a mixed bag for both The plaintiff responded that the resides of the bar. quested discovery was relevant to Plaintiffs have a freshly-blessed option whether North Cypress Medical Center’s for billing affidavits. It may streamline charges to the plaintiff were excessive,
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the process, making it easier for their attorneys to capture all past medical expenses, rather than having to coordinate with multiple health care providers. One plaintiff achieved a Pyrrhic victory against North Cypress Medical Center. Now personal injury lawyers on the plaintiffs’ side should expect a barrage of new discovery techniques from the defense bar aimed at reducing what will surely be claimed as excessive medical bills. Even with these game-changing opinions already on the way to the publisher this year, the enduring chess match of Texas law concerning evidence of medical bills persists. For instance, many are watching to see how the Texas Supreme Court handles a pending petition for review in Glenn v. Leal.14 Glenn is a shoulder dystocia case where the jury found that a physician’s negligence led to the baby having a brachial plexus injury. The jury verdict included an award of $1,200,000 in future medical expenses based on testimony
from the plaintiff’s life care planner. The defense moved for directed verdict and judgment notwithstanding the verdict, contending that the plaintiff had legallyinsufficient evidence to support the future medical expenses claim. The trial court denied both motions. On appeal, the defendant used familiar language, arguing that there was no evidence that the future medical expenses awarded to the plaintiff would “actually be paid or incurred.”15 The defendant further argued that the plaintiff’s expert failed to address the impact of the Patient Protection and Affordable Care Act on the future medical expenses contained in the life care plan.16 Houston’s First Court of Appeals rejected the defense arguments, noting that federal law does not require individuals to purchase health insurance. Even if the plaintiff did obtain insurance coverage in the future, the court found it speculative to conclude that it would cover the items recommended in the life
care plan. Stay tuned. More change is likely coming. Robert W. Painter is a medical malpractice attorney at Painter Law Firm PLLC. He is a former editor-in-chief of The Houston Lawyer and serves on the Houston Bar Association board of directors. Endnotes 1. 2. 3. 4. 5. 6. 7. 8.
TEX. CIV. PRAC. & REM. CODE § 41.0105. Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2012). Id. at 394. Id. at 395. Id. at 399. TEX. CIV. PRAC. & REM. CODE § 18.001. Id. In re North Cypress Medical Center Operating Co., Ltd., No. 14-16-01414-CV (Tex. 2018), ___ S.W.3d ___. 9. TEX. PROP. CODE § 55.002(a). 10. In re Cypress (citing Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307, 309 (Tex. 1985)). 11. In re Cypress. 12. Id. (citation omitted). 13. See id. 14. Glenn v. Leal, No. 01-17-0001-CV (Tex. App.— Houston [1st Dist.], pet. filed), ___ S.W.3d ___. 15. Id. (citing TEX. CIV. PRAC. & REM. CODE § 41.0105). 16. Id.; see also 42 U.S.C. §§ 18001-18122 (West Supp. 2017) (Patient Protection and Affordable Care Act).
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By Katherine A. Fox and John P. Vincent
To Tell the Truth? Assessment of Malingering of Emotional Injuries
T
here are many considerations and steps to protect and advance the full interests of a client that has suffered, or is being sued for, psychological damages. Damages can cover pain and suffering, mental anguish, and associated healthcare expenses, including psychological services deemed necessary to remediate symptoms of psychological injury. In this article we will discuss the current standards of practice for the assessment of emotional or psychological injuries. We focus on one critical challenge to the reliability and validity of mental health assessments –
their susceptibility to malingering, symptom exaggeration, and other response biases.1 Forensic Mental Health Evaluation Practice Standards Forensic mental health evaluations differ from those of general clinical practice in several ways. Unlike mental health evaluations conducted for treatment purposes, forensic mental health evaluations take a multimethod, multisource approach that is far more comprehensive and rigorous.2 In general clinical practice, mental health professionals typically gather information solely from the individual seeking treatment, but rarely conduct comprehensive psychological testing, collateral interviews, and record reviews. In forensic practice, evaluations typically involve reviewing pleadings, interrogatories, depositions, medical records, and third-party interviews. Often, this review also includes educational records, employment history, military service, past legal proceedings, driving history, emails, texts, and phone calls, diaries, and social media postings. Forensic evaluations also differ from general practice in terms of the weight and credibility placed on the perspective of the individual being evaluated. In both forensic and treatment settings, the assessment of specific psychological concerns such as depression, anxiety, posttraumatic stress disorder (PTSD), neurocognitive impairment, or personality dysfunction is often accomplished via self-report measures.3 In treatment, mental health professionals often do not need to worry about whether a client’s report of symptoms is true. However, given the potential incentives to exaggerate or outright fabricate mental illness in forensic settings (e.g., financial gain in civil litigation), assessing the veracity of self-reported psychological symptoms is critical. Practitioners assessing for emotional injury must be aware of response biases that can influence evaluation results and the methods available to detect them. Response Bias Response bias refers to the manner by which an examinee responds to particular assessment tasks (e.g., a psychological test, set of interview questions, or questionnaire) in order
to present himself in an unrealistically positive or negative light. In employment testing, a positive bias is common where the examinee tries to put his or her best foot forward by highlighting positive attributes and minimizing negative ones, including psychological problems. Likewise, in a child custody context, parents will often portray themselves as a paragon of mental health for fear of losing access to their children. In civil cases involving emotional injuries, mental health evaluators should be attuned to forms of negative response bias where symptom reports are exaggerated or completely fabricated. Feigning describes the fabrication or exaggeration of psychological or physical symptoms, but acknowledges that the specific reasons for the exaggeration are unknown or unintentional. Conversely, malingering is the deliberate fabrication or exaggeration of symptoms in order to achieve an external goal, such as financial compensation.4 In practice, however, revelation of a specific motive or intent rarely occurs and there is no direct test of either. As such, mental health professionals can rarely definitively conclude an individual is malingering and often refrain from use of this term.5 Rather, practitioners will speak to the relative likelihood or probability that an individual is exaggerating or faking symptoms, based on collected data, noting the degree to which evidence is consistent with some form of negative response bias. For the purposes of this article, however, we will use the term malingering, as it is the most extreme form of negative response bias.
comprise a PTSD diagnosis.6 Second, psychological illness often co-occurs with other disorders, both mental and physical, in a phenomenon known as comorbidity. For example, a majority of individuals with PTSD also meet diagnostic criteria for at least one other psychiatric condition (e.g., anxiety disorders, depression, substance abuse disorders).7 Additionally, as is particularly relevant in personal injury cases, psychiatric conditions may co-occur with physical injuries sustained during the tortious act, such as brain injury following a car accident. The co-existence of conditions makes it difficult to parse out those symptoms directly attributable to one specific event and to disentangle feigned symptoms from genuine ones. Third, unlike most medical conditions, many symptoms that make up a mental health diagnosis are largely subjective and cannot be corroborated by direct observation or testing. Researchers have been investigating potential external or biological markers of psychiatric illness; however, until those have been reliably identified and validated, mental health professionals must rely on self-
reports of emotional symptoms in order to make a diagnosis. In addition to these three features of mental illness that make the process difficult, psychological conditions often do not have clear causes, onsets, or trajectories. This means it is often difficult to pinpoint when a symptom or condition appeared, when it began to cause significant impairment, and whether its development or exacerbation was related to the event that led to the lawsuit. This places a particular burden on mental health professionals to comprehensively assess psychological injury and the context in which the injury was sustained, including the consideration of pre-existing factors (e.g., childhood trauma history) that may have contributed to the subsequent development of a disorder. Psychologists must also consider pre-incident or pre-morbid functioning, also known as the “baseline.� For example, when evaluating cognitive deficits following a car accident, the individual’s pre-accident abilities must be estimated in order to speak to the degree of change. This information can be particularly
Malingering Assessment Challenges Identifying people who are malingering is one of the most challenging tasks for mental health professionals, independent of legal context. Several features of mental illness make this process difficult including heterogeneity, comorbidity, and the lack of external markers of disease. Heterogeneity refers to the variation with which a disorder presents. For example, in PTSD, genuine sufferers may endorse very different symptoms and still qualify for a PTSD diagnosis. In fact, there are as many as 636,120 combinations of symptoms that can thehoustonlawyer.com
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elusive, as few individuals undergo regular psychological and neuropsychological evaluations to establish a pre-incident baseline against which to compare post-incident functioning. Despite these challenges, psychologists can estimate pre-morbid functioning through the review of records and input from collateral sources, which are ideally at arms-length from the plaintiff and have no vested interest in the outcome of litigation. When establishing a baseline, mental health practitioners must be attuned to efforts to embellish pre-incident abilities or “fake good” (positive response bias) and efforts to exaggerate post-incident dysfunction or “fake bad” (negative response bias) in order to receive more substantial compensation. Malingering Prevalence Estimates Some estimates suggest that malingering occurs in up to 40% of civil litigation cases, while other studies have found that 20-30% of results from psychological testing on personal injury plaintiffs suggest that malingering had taken place.8 Difficulty in estimating the prevalence of malingering is likely impacted by the shifting nature of malingering itself. Often incorrectly deemed a stable and enduring propensity, people who malinger may be inconsistent in their false responding across tests, time, or types of symptoms (e.g., emotional, physical, or cognitive). One cannot assume known feigners will always falsify responses or individuals who feign one type of symptom will also feign others. Also, the falsification or exaggeration of some symptoms does not rule out the possibility that a plaintiff has genuine symptoms of another sort. For example, an individual may fabricate the degree of PTSD symptoms following an industrial accident but experience valid symptoms of depression. Responses to mental health assessments may also be influenced by fatigue, cognitive capabilities, and distractions. Each can contribute to a suboptimal or invalid performance but does not necessarily reflect a willful fabrication of symptoms. Malingering Assessment Tools Despite extensive research, no standard method or procedure for detecting malinger24
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ing has been developed and there is substantial variability in the ways that mental health professionals approach this problem. In a survey of 80 emotional injury evaluators who had conducted a career sum of 10,500 evaluations, no two evaluators used the exact same set of psychological tests.9 There are several reasons for this. First, all psychological measures, including tests of malingering, have individual strengths and weaknesses and mental health professionals must weigh these test qualities when selecting and combining tests to use. For example, one must consider minimum reading level, difficulty of administration, cost, time efficacy, and comprehensiveness. Second, mental health professionals are better able to assess response bias by evaluating inconsistencies and inaccuracies across subjective reports, testing data, and historical records. Third, while it is not surprising for an honestly-responding individual to fail a single malingering measure, it is unusual for an individual to fail more than one measure and even more rare for someone to fail more than two. Thus, administering more than one measure reduces the likelihood of a false positive error. Finally, the administration of measures that address the various forms of malingering within different domains more completely captures the non-stable nature of malingering. In general terms, there are three types of malingering measures: symptom validity tests, performance validity tests, and interviews. Symptom Validity Tests Symptom validity tests (SVTs) are used to detect the exaggeration or fabrication of psychiatric symptoms based on self-reports, by utilizing detection methods that capitalize on the relative infrequency, odd combination or unusual severity of psychological symptoms. SVTs exist in two main forms: large, multi-scale inventories and brief, domain-specific measures. Larger, multi-scale inventories typically use validity scales embedded within selfreport questionnaires of personality and psychopathology, like the Minnesota Multipha-
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sic Personality Inventory—2 (MMPI-2)10 and the Personality Assessment Inventory (PAI).11 In these assessments, examinees respond to a series of questions that assess particular response styles, including symptom exaggeration and minimization, in addition to questions that tap clinical symptoms. Other measures, such as the Trauma Symptom Inventory-2, have a narrower focus on symptoms and experiences common to trauma survivors, while also including embedded validity scales.12 Domain-specific, “stand alone” SVTs attempt to detect malingering or symptom exaggeration more briefly and directly. A key difference between these and larger, multiscale inventories is that these measures were designed specifically to detect feigning, as opposed to estimating general test validity. Some common examples include: the Structured Interview of Reported Symptoms (commonly referred to as the SIRS)13; the Miller Forensic Assessment of Symptoms Test (MFAST)14; and the Structured Inventory of Malingered Symptomatology (SIMS).15 Similar to multi-scale inventories, these measures are objective and based on self-report. Unlike the MMPI-2 and PAI, many of these measures are structured interviews instead of paper-andpencil tests, operating under the assumption that malingerers may find it more difficult to succeed at lying face-to-face. Performance Validity Tests Performance validity tests (PVTs) are designed to corroborate symptoms by examining the examinee’s performance on neurocognitive tasks. PVTs may also be used to gauge effort, capturing whether an examinee was sufficiently engaged or putting in sub-optimal effort in the task. Similar to SVTs, PVTs use many detection methods, including identifying rare or unlikely performances when compared to genuinely impaired groups. One prominent method uses the floor effect, which is based on the principle that malingerers will fail or perform poorly on tests that truly impaired individuals are able to pass. The Test of Memory Malingering is a common PVT that uses this strategy.16 Another promising PVT is the Morel Emotional Numbing Test, which is specifically designed to assess feign-
ing of posttraumatic stress disorder.17 Interview-based Methods Many mental health professionals believe they can accurately detect malingering based on an in-person interview and professional experience. Since conclusions from interviews are derived from self-reported information mixed with the clinical judgement of the mental health professional, the risk of biased interpretation is high. Consequently, interview-based judgements of malingering are often fraught with error and generally are not recommended for use in a forensic evaluation. In fact, some research has indicated that interview-based judgements of malingering by mental health professionals is no better than chance.18 As a takeaway, mental health professionals who evaluate a plaintiff for psychological injury should: 1. Be cognizant of the possibility of disingenuous response styles, such as faking bad or faking good; 2. Utilize a multimethod, multisource approach;
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3. Consider and include methods to approximate pre-morbid or baseline functioning; 4. When malingering or feigning is suspected, use multiple, varied measures of malingering, including PVTs and SVTs, and use clinical judgement cautiously. Katherine A. Fox , M.A. is a Doctoral Student in Clinical Psychology and Assistant Director of Forensic Psychology Services at the University of Houston. John P. Vincent is Professor and Director of Forensic Psychology Services at the University of Houston. He can be reached at 713-743-8503 or jvincent@uh.edullate courts, and handles coveragespecific litigation and appeals. Endnotes 1. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579; 113 S.Ct. 2786 (1993); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). 2. John P. Vincent, et al., Evaluating Claims for Emotional Damages in Civil Litigation: Not all Mental Health Experts are Created Equal, HOUSTON LAWYER Mar./Apr. 2008, at 10. 3. John P. Vincent, et al., Mental health evaluations and treatment in the civil courts: Current standards of practice, In THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE 1031 (Peter M. Koelling ed., 8th ed. 2016). 4. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 2013). 5. Gerald Young, PTSD in Court III: Malingering, assessment, and the law, 52 INT’L J. LAW & PSYCHIATRY 81. 6. Issac R. Galatzer and Richard A. Bryant, 636,120 Ways to Have Post-Traumatic Stress Disorder, 8 PERSPECTIVES ON PSYCHOLOGICAL SCIENCE 651. 7. Ronald C. Kessler, et al., Posttraumatic Stress Disorder in the National Co-morbidity Study, 52 ARCH GEN. PSYCHIATRY 1048.
8. Steven Taylor, et al., Detection and management of malingering in people presenting for treatment of posttraumatic stress disorder: Methods, obstacles, and recommendations, 21 J. ANXIETY DISORDERS 22. 9. M.T. Boccaccini & Stanley Brodsky, Diagnostic Test Usage by Forensic Psychologists in Emotional Injury Cases, 30 PROF’L PSYCHOLOGY RESEARCH & PRACTICE 253. 10. JAMES N. BUTCHER, ET AL., THE MINNESOTA MULTIPHASIC PERSONALITY INVENTORY-2 (MM PI-2) MANUAL FOR ADMINISTRATION AND SCORING (1989). 11. LESLIE C. MOREY, PERSONALITY ASSESSMENT INVENTORY (PAI): PROFESSIONAL MANUAL. (2nd ed. 2007). 12. JOHN BRIERE, TRAUMA SYMPTOM INVENTORY 2: PROFESSIONAL MANUAL, (2nd ed. 2011). 13. MICHELLE R. WIDOWS & GLEN P. SMITH, SIMS: STRUCTURED INVENTORY OF MALINGERED SYMPTOMATOLOGY, (2005). 14. HOLLY A. MILLER, M-FAST: MILLER FORENSIC ASSESSMENT OF SYMPTOMS TEST PROFESSIONAL MANUAL, (2001). 15. Glen P. Smith, G., & Gary K. Burger, Detection of Malingering: Validation of the Structured Inventory of Malingered Symptomatology (SIMS), 25 J. AM. ACAD. PSYCHIATRY AND THE LAW 183. 16. TOM N. TOMBAUGH, TOMM: TEST OF MEMORY MALINGERING, (1996). 17. KENNETH R. MOREL, MANUAL FOR THE MOREL EMOTIONAL NUMBING TEST FOR POSTTRAUMATIC STRESS DISORDER, (1998). 18. Brechje Dandachi-FitzGerald, et al., Neuropsychologists’ ability to predict distorted symptom presentation, 39 J. CLINICAL AND EXPERIMENTAL NEUROPSYCHOLOGY 257.
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think? Is the choice the “right” person in your judgment?
By Bob Black
Mediation Ruminations
I
n today’s litigation culture, almost all cases go through some form of mediation. Mediation needs many crucial elements to achieve maximum efficiency. Your client will be most grateful to avoid further litigation fees and expenses if you attend mediation at the proper time.
Before You Mediate Timing of the mediation matters. Some cases benefit from an early mediation. Other cases are better mediated later, perhaps even shortly before trial. One problem with early mediations can be the lack of information. This is particularly true when liability or medical causation is disputed. The benefits are the mutual cost savings, generally involving experts, and the prospect of resolving a dispute early. Another problem with early mediation is that the parties may not be in a mindset to settle. Recently, I mediated a case where liability was certain, but it involved a death that had occurred only three months before the mediation. The loss was too recent and painful for such a mediation to succeed. Conversely, mediations immediately before trial rarely produce large cost savings. Instead, late stage mediations resolve based on risk assessment. Often, risk will have evolved based on late developments in the case. “Risk” is the perception of a party as to likely result and generally includes an assessment of “best” and “worst” case outcome. 28
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While docket control orders impact the timing of mediation, advocates should choose the most advantageous time. Recently, the parties in a traumatic brain injury case I mediated chose to mediate after expert designations and reports but before taking eight expert depositions. The parties had sufficient information, though not complete, to evaluate the case. It settled and both sides achieved significant cost savings. Choice of Mediators Myth: A good mediator can successfully mediate any case. Nonsense. There are highly specialized areas of the law where the mediation needs highly specialized expertise. Family law is a good example but there are other areas of the law where specific knowledge, and sometimes even scientific knowledge, is needed. These areas include intellectual property, tax, some commercial disputes, and some oil and gas matters. In choosing a mediator, consider whether the person you are choosing is right for your specific case. In most personal injury cases, the choice of mediator revolves around the person’s skill set. Sometimes, it is based on cost—and should be. The “right” choice of mediator for a case with low damages is not going to be the most expensive mediator. Beyond cost, there are other considerations as well. Is this a partial day mediation or full day? Is your choice of mediator available? What does your opponent
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Pre-Mediation Suggestions Make sure you have what you need for mediation. One example is the determination of whether a translator is needed. Imagine being a non-English speaker in a mediation where everyone uses only English. I want the parties to know and understand the process. In fact, all messages, contentions, offers, and demands are translated. This includes the settlement agreement which contains a sentence, “This agreement has been translated to Plaintiff.” It is also good practice for the parties to confer ahead of time to reduce the likelihood of a surprise. The mediation heads south when the plaintiff produces significant new medical billing the day of the mediation. All documents related to settlement value, especially medical billing records and liens, should be produced well in advance. Finally, send the mediator a position statement. If there is a complication the mediator should know about, put it into the statement or call the mediator. The Day Has Arrived Be on time. Ensure your team and clients are on time as well. Arrive early enough to get your computer logged on and, if you use one, the PowerPoint set up. If you need special equipment from the mediator, let the mediator know in advance. Little irritates the other side more than waiting 30 minutes for late arrivals. I had a mediation recently where a decision maker arrived an hour late and then announced he had an early afternoon flight. It did not settle. Opening Statements Openings are less frequent than years ago. When they do occur, they are briefer. Many parties contend openings do not achieve positive results. While there is some truth in this, I remain a believer in openings that at least introduce the parties and carefully articulate particular “concerns.”
This brings us to the issue of PowerPoints. They were the technological advance of the 21st century – until parties used them so often and at such length, that people began to despise them. They are useful if they are well-paced and make the desired points. I recently endured one where a deposition was played for more than 40 minutes. One could sense rebellion in the room. A decision-maker left for an extended bathroom break. The goal of a PowerPoint is to educate and persuade, not to inflame and irritate. There are occasions when an extended PowerPoint is important. Consider sending those PowerPoints early. In a recent case, an extended video of deposition testimony from various witnesses was sent to numerous individuals three weeks before mediation. I watched it in its entirety and it was clear during the mediation that almost everyone had watched it. We also sometimes ignore the effect on others of what we say and how we say it. No matter the provocation, do not lose your temper. While it might feel good briefly, it is not constructive. Clients are mature adults who expect their counsel to remain composed. Also, watch stray comments in the private sessions. A funny aside about the other party or its counsel can influence a client and increase the chance the mediation fails.
is most frequently used. Within limits, there is nothing wrong with reactive bargaining. It occurs where a party gives a number that is solely a reaction to the other side’s number. The problem with the technique is that it does not provide a signal as to where the party might be willing to settle. During the negotiations, the mediator will ask questions and will endeavor to understand your position. Some questions may be rather pointed: Is this evidence admissible? Does your expert get you to where you need to be on causation? In general, a mediator uses questions to bring concerns to your attention. In a case several years ago, a party based its evaluation on evidence that was inadmissible unless the plaintiff opened the door to the evidence or the judge permitted the party to “bootstrap” it into evidence through an expert. That is a risky evaluation. It is Not Working We have all been there. We have spent
hours trying to negotiate, but it is not working. While leaving is an option in most circumstances, it is time to try something else. The most frequent technique to avoid impasse is the use of brackets. Some people love them; some people hate them. If the mediator starts discussing the possibility of a bracket, you need to ask yourself why. It could be someone has a flight to catch, causing time constraints. It could be that the mediation is about to end, and the mediator thinks settlement is still possible. Next, ask the mediator whether he or she has a standard approach to brackets, specifically whether a bracket by a party is a commitment to some specific number. Do not agree or give a bracket without understanding what the commitment is. Mediators vary on brackets. If a mediator believes that the parties would benefit by a meeting, the mediator will suggest one. A mediator should be very careful about having a meeting. Not everyone gets along. Some individuals get
Negotiations We all have our own styles. I prefer engaged bargaining. By this, I mean a series of moves that provide information to the other side about how you evaluate the case. If all parties are engaged, the parties can assess the information being provided and re-evaluate. The success rate of mediations where all parties are engaged is high. Of course, parties cannot resist trying to improve their outcome by using other techniques. These less constructive techniques include (a) reactive bargaining, (b) starting at extreme positions, (c) ignoring the facts and the law, and other manipulations of the process by the parties. Of these techniques, reactive bargaining thehoustonlawyer.com
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frustrated by extended negotiations. Even so, a meeting can be helpful. When I have a meeting, it is because I trust those lawyers to be constructive, or at least not destructive. I urge them to talk with “relative candor,” in other words honesty but not brutal honesty. In a recent meeting, one party shared extensive data from focus groups. The data indicated that two assumptions the other party was making were wrong. The full disclosure of the data worked for that party. If the meeting leads nowhere, I will focus on what needs to be done for the case to have a chance at settling. For example, does the plaintiff need an expert report on medical causation? Does the defendant need more time to analyze the medical records produced that morning? If so, how much time? Multi-Party Mediations Given how challenging a two-party mediation can be, the degree of difficulty of multi-party mediations is much higher. Choice of mediator matters a great deal in multi-party mediations. Can the mediator see a path to resolution? Can the mediator move the process forward? Can the mediator understand and grasp the intricacies of indemnity, additional insured provisions, and complex business relationships among parties? Multi-party mediations are more challenging by magnitudes of difficulty than two-party mediations. It is also vitally important to prepare the mediator before the mediation for some of the challenges the mediator will face. When there are complex indemnity and additional insured issues, the mediator might well need to engage those concerned ahead of time on the issues. A Settlement! You do not have a settlement until you have reduced it to writing. I characterize my settlement agreements as a Mediated Settlement Agreement/Rule 11 Agreement. I do so because I believe this is the most likely form to be enforced by a court, if necessary. See, Chapter 154 CPRC §154.071 and, in a family law framework, In re Lee, 411 S.W.3d 445 (Tex. 2013). 30
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In personal injury settlements, every agreement should state the amount of the settlement, when it will be paid, and by whom to whom. The agreement should cover court costs, release terms, and the method by which the case will be concluded. If the agreement is conditional, the condition must be stated specifically. There are other terms that must be addressed. Any liens must be addressed in terms of who pays, whether there is indemnity, and the type of documentation to be provided concerning the resolution of those liens. Be sure to inquire whether the Texas Attorney General’s office has a child custody lien on file. If there are subrogation interests or unpaid medical bills, these must also be addressed. As an adjunct to the lien issue, some cases require a Medicare Set-Aside (MSA) analysis. This is a complex subject on which volumes have been written and opinions vary. However, the prudent practitioner will understand that an MSA may be required. Some will even have addressed the issue ahead of time. Another important condition is confidentiality. There are many variations of confidentiality language. Specify the nature and scope of confidentiality. Articulate the exceptions to it, (i.e. where disclosure is required by law, a court, to negotiate liens, in relation to a subrogation interest or unpaid mediation bills, or for tax and financial planning reasons). Some parties seek liquidated damages for breach of confidentiality provisions. I have found this hard to achieve in mediation. For inquiries covering confidentiality of the mediation process, see Chapter 154 of the CPRC, §154.073. Some settlements permit a party to structure a portion of the settlement so that it is paid out as an annuity rather than a lump sum. It is important for the agreement to state that the plaintiff may structure. The provision should also specify the terms of the structure opportunity and who the broker is. In summary, if the parties have a settlement or a conditional settlement, reduce it to writing with all pertinent
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terms. Period. The Mediation Failed What happens next? In some instances, there is an articulated path to further discussions or settlement. For example, a party understands that X amount more will settle the case and pledges to get back with the mediator in two weeks. Sometimes, the mediator makes a Mediator Proposal. The proposal should contain all essential elements of the settlement agreement. Responses are confidential unless all parties accept. Mediators vary widely on use of Mediator Proposals. I do not make a Proposal unless the parties are willing to entertain one. This means only that the parties will consider the Proposal. It does not require pre-agreement on the terms of the Proposal. Alternatively, mediators will follow up on negotiations that did not succeed. Some mediators charge for follow up time, some do not. Mediators care about their success rate and about your view of them. Mediators realize that follow-up is a key to high success rates. In some cases, further mediations are necessary. Follow up mediations increase expense for the parties and frustrate everyone who believes the case should have settled the first time. However, circumstances change. For example, a party is confident at the first mediation that a dispositive motion will be granted in their favor. It is denied. Perhaps another mediation is necessary. More frequently, the next mediation is an outgrowth of the first where the parties had divergent evaluations. As discovery occurs one or more of the parties reevaluates based on what has occurred since the first mediation. Mediator Confidentiality The mediation is protected territory. Mediators respect the confidentiality of the process. If a mediator concludes some confidential fact or contention needs to be disclosed, the mediator will ask permission. Whether you give permission is your decision. Many times, you should let
the mediator help you because the evidence you are holding for trial may be helpful in getting the case resolved more favorably to you. Online Dispute Resolution Online Dispute Resolution (ODR) is being seriously considered by the Supreme Court. ODR has been around, particularly in Houston, for many years. It may be of real utility in small claims because
of the low cost of ODR. The issue is how effective is it. I doubt ODR will be of much benefit in complex litigation, but most cases do not fall in that category. If the topic is of interest to you, the Office of Court Administration (OCA) is involved and examining its usage. Travis County recently contracted with a purveyor of Online Dispute Resolution software. At this stage, the process is mostly at the Justice of the Peace court
level. Other counties will follow. Conclusion Mediations are an important part of modern case management, requiring thought, planning and preparation. Bob Black is a mediator and arbitrator as a shareholder with MehaffyWeber. He has been with the firm since 1980 and was president of the State Bar of Texas in 2011-12.
Equal Access Champions
The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers.
Large Firm Champions
Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP
Corporate Champions
Baker Hughes Incorporated CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company
Mid-Size Firm Champions Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Foley Gardere LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP
Porter Hedges LLP ReedSmith LLP Strasburger & Price, L.L.P. Winstead PC Winston & Strawn LLP
Boutique Firm Champions
Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. LeClairRyan McDowell & Hetherington LLP Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP
Small Firm Champions
Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP
Sidley Austin LLP Shortt & Nguyen, P.C. Trahan Kornegay Payne, LLP
Individual Champions
Law Office of Peter J. Bennett Law Office of J. Thomas Black, P.C. Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Law Office of Robert E. Price The Reece Law Firm, PLLC Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Law Office of Cindi L. Wiggins, J.D. Trey Yates Law
OFF THE RECORD
World’s Greatest Astros Fan:
N
Mary Flood
The Houston Lawyer
By The Hon. Jeff Work
aysayers are certain to abound: as certain as tropiage, and she is fortunate to sit in an area with many Astros cal storms are in every Houston summer’s forecast, players’ families. Mary is known to schedule vacation days readers of this column will object to the accuracy around Astros games. Her baseball-season Facebook posts are of the assertion of this column’s title. At the very legendary. During the World Series parade last year, Houston least, there is not any fan who is a greater enthusiPublic Radio asked her to serve on a panel commentating durast for her team. ing the parade. Mary was at Minute Maid when the Astros lost Many readers will recognize Mary’s name as a long-time Game 3 of the 2005 World Series and she was there for the big journalist, working for the Game 5 Win in 2018. Wall Street Journal, Houston During the season, if she is not at the game, she is usuPost and Houston Chronicle. ally watching the Houston team on television. For the past eight years, she has worked as the Legal MeAUTHOR’S note dia Consultant for Androvett This column is meant to serve another purpose. Over the years, the Legal Media & Marketing. author and Mary Flood do not always see “eye to eye” on different She is a 1993 graduate of Hartopics including politics. However, in “City-Slickers” style, we can vard Law School. Immediately always talk about baseball, in after law school, Mary pracgeneral, and specifically, the Asticed law for three-and-a-half tros. Despite a few differences, years at firms in D.C. and Housthe author and Mary consider ton. each other as friends. In today’s Mary, like many others, did not American culture and political follow the traditional route in beclimate, we need more friendcoming an Astros fan. Mary spent ships; we need more civility. We her childhood in Syracuse, NY. as lawyers should take the lead Her father, a WWII veteran, was in this “American Experiment” passionate about football. Mary of a civil democratic society and paid no attention to baseball at not be deterrents as we so often all, even though her mother and are. We also hope that when brother were avid fans of the Yanthis Houston Lawyer issue hits kees (brother Mark owns a dog the desks of lawyers in midnamed “Jeter”). In 1980, when October, the Astros will still be her career moved her to Houston, Mary celebrating with Orbit, 2017. [Top, inset] Mary’s mom with her playing for their second World Mary was challenged/tricked into favorite Yankee, Yogi Berra, at 1986 Astros Spring Training. Series title. So, here’s to the following Astros baseball by another writer. She initially only Astros; here’s to apple pie; here’s to America; and, here’s to friendship. tolerated the continual Astros trivia and stats questions from her colleague, but eventually the love of the game infected her Hon. Jeff Work is of counsel with the law firm of Manning, heart. Gosda & Arredondo, LLP. He is in his 30th year of practice in Since then, for almost 40 years, Mary has lived and died with litigation, mediation and arbitration, but agrees this column was the Astros. She routinely purchases a mini-season ticket packone of his most enjoyable to write.
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A Profile
in pro f e s s i o n ali s m
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Mark E. Lowes Senior Vice President, Litigation, KBR Inc.
n 1980, I started work at Bracewell & Patterson. As the first in my family to graduate from college, much less go to law school, I had no real practical idea of what it meant to practice law. Fortunately for me, I worked with several lawyers, including William Key Wilde and later the Hon. Eugene Cook, who gave me a close-up view of how to practice law successfully and with respect for others. The lesson was simple. Professionalism didn’t start or end at the office or the courthouse door. Professionalism was a broader concept. Professionalism was reflected in how you treated others, in and out of the office. Professionalism was shown in your support and engagement in our greater community and, of course, professionalism was demonstrated in how you dealt with opposing counsel, the courts, and your clients. Professionalism was not something you turned on and off. The recent passing of Senator John McCain reminded me that professionalism is not limited to lawyers, and reminded me of the guidance I received more than once as a young lawyer. Whenever dealing with a hard issue or a difficult opposing counsel, I was told more than once that “there is never a wrong time to do the right thing.” There are many good examples of how to conduct ourselves with professionalism and to “do the right thing.” We just need to help each other embrace those examples.
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committee spotlight
Bench Bar Conference Committee:
Celebrating 25 Years
W
The Houston Lawyer
By The Hon. Erin Lunceford
here can you hang out with Harris County speaker/panel. Civil and Appellate Judges and get all day CLE Some of the topics covered at the Civil/Appellate Bench Bar credit for a fraction of the cost of other CLE? At Conference in the past include: Jury Instructions and Voir Dire, the Bench Bar Conference of course! Rule 91a and Anti-Slapp Pre-Trial Motions, Post-Trial Motions, The Bench Bar Conference Committee is Avoiding Sanctions, Grievances and Malpractice in Litigation, charged with the task of putting on the Bench Bar Conference, Interlocutory and Permissive Appeals, Attorney Fees, Premwhich alternates every other ises Claims, Unconscious year between the Criminal/ Bias in the Courtroom, 60 Appellate Bench Bar ConferApps in 60 Minutes, Provence and the Civil/Appellate ing/Attacking Mental AnBench Bar Conference. On guish Damages, and A View April 11, 2019, the HBA will from the Bench. Most of the hold its 25th Annual Bench main sessions are presented Bar Conference at the hisby panels of both practicing toric 1910 Courthouse. This attorneys and judges, and if year it is the Civil/Appellate time allows, questions are Conference. The Committee taken at the end of each prehad its first meeting on Sepsentation. tember 20th in the courtBecause we are celebratroom of the 133rd District ing the Conference’s 25th Court. This year’s co-chairs Anniversary, we intend to are Justice Brett Busby, Judge incorporate some special Mike Engelhart, and former awards and commemorative Judge Erin Lunceford. items that should make the The Bench Bar Conference 2019 event extra-special. If started in 1993, and origi- Criminal defense attorney Rusty Hardin, Judge Margaret Harris, and other attend- you are interested in being nally was a two-day confer- ees at the 2018 Criminal/Appellate Bench Bar Conference at the 1910 Courthouse. involved in the planning of ence held at a resort hotel, first at Del Lago on Lake Conroe, the Conference, be sure to sign up for the committee, which and then at The San Luis in Galveston. When the county budget is comprised of both lawyers and judges. If you would like to tightened in 2011 to eliminate hotel reimbursement for judges, attend, be sure to be on the lookout for the registration anthe decision was made to convert the event to a one-day local nouncement, because the conference always sells out and we CLE. By doing this, we have been able to consistently have a do not make a waitlist. In 2017, we sold out in just 17 days. majority of the Harris County judiciary participate, which is The HBA does video-tape the conference, and it is available to one of the best aspects of this event. The Conference features members on the website. both general sessions, which address issues common to all who practice in those specific courts, and small group breakout sesHon. Erin Lunceford is counsel at Norton Rose Fulbright, where sions, which focus on specific legal topics of interest to both she focuses her practice on mediation/arbitration and personal the bench and bar. We also include networking opportunities injury matters for health care clients. She was formerly the Judge through social activities and shared meals, including a happy of the 61st District Court and was co-chair of the HBA Bench Bar hour at the conclusion of the day. As an incentive, we award Committee in 2011 and currently. She has been on the committee door prize baskets when folks fill out the evaluations after each for the Civil/Appellate Conference every year since 2005. 34
September/October 2018
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SECTION spotlight
HBA Litigation Section:
F
By D.J. Seidel
Educating the Smart Advocate
irst, if you’re reading this article, the assumption is a given that you’re already a member of the Houston Bar Association, and (hopefully) already a member of the Litigation Section. Possibly you are between trials, taking a recess from drafting discovery, on break at a deposition, or, if you are a glutton for punishment, reading this article while on vacation. Regardless, you’ve learned to work smart, not just hard. And the Litigation Section is the ultimate resource for the smart advocate. Why? Combined lunch and CLE opportunities are scheduled twice a month—downtown at the Coronado Club and in the West Loop area at McCormick and Schmick’s Uptown. As a member, with a timely RSVP, you can enjoy a fabulous lunch, a timely and informative topic, and an hour of CLE credit, all for only $20.00. Last year featured speakers spoke on imminent domain, temporary injunctions, stress and substance abuse (and treatment opportunities), the grievance procedure, practice in federal court and many others. Some members attended for specialty presentations such as judgment collection, and others attended for an opportunity to ask a speaker a question one on one, usually as it pertains to a certain ongoing file. And some came for the always relevant face time with a judge. Whatever the reason, the Litigation Section wants and needs you, the advocate, to support your Bar and your peers. The Litigation Section is about you, the member, and the sharing
of information and education; it’s also about camaraderie and bonhomie. The Litigation Section also gives back, both to the Bar and to the public. Most members are unaware that the section sponsored the anniversary celebration for the 1st and 14th Courts of Appeals, or that your section annually contributes to the Houston Bar Foundation, which funds critical legal services for disadvantaged Houstonians. Members also volunteer their time for LegalLine, providing a necessary resource to our lay community. Did you also know that last year your section began providing its members with the opportunity to try cases through its Pro Se Trial Counsel program? I’ve covered what the section can do for you and what the section does for our community. The only topic left is what YOU can do for the section. You can attend luncheons or suggest topics. You can suggest a speaker for consideration, or even be a guest speaker. You can serve on the section board. The important thing is…YOU CAN! If you’re not already a member of the Litigation Section, please consider joining. If you are a member, take advantage of your membership. Enjoy a good lunch, earn some CLE credit, meet a new friend, or reacquaint with an old rival. D.J. Seidel is the past chair of the HBA Litigation Section, as well as a past chair of the HBA Law Practice Management Section. He is currently a solo practitioner primarily handling cases involving commercial litigation. thehoustonlawyer.com
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LEGAL TRENDS
First Court of Appeals Clarifies the Standard for Conditions Precedent
I
The Houston Lawyer
By David V. Wilson II
n Tabe v. Texas Inpatient Consultants, LLC, No. 01-16-00971-CV (Tex. App.— Houston [1st Dist.] July 26, 2018), the First Court of Appeals addressed when a party can successfully assert the defense of a failure of conditions precedent. In that case, a physician agreed to work for a hospitalist partnership, but before the partnership obtained his necessary credentials, the physician terminated the contract. When the partnership sued the physician for breach of contract, it sought summary judgment based upon the liquidated damages clause of the contract. The trial court granted summary judgment to the partnership on liability and awarded the liquidated damages. A subsequent jury trial resulted in an additional attorney’s fees award to the partnership of $ 58,775.00. On appeal, the physician challenged the summary judgment on liability, contending that fact issues existed as to whether there was a failure of a condition precedent to his obligation to perform under the contract. In reviewing the trial court’s final judgment, the court of appeals analyzed the “Employment Agreement” between
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September/October 2018
the physician and the hospitalist partnership. The contract did not contain a starting date for the physician’s employment, but provided that the partnership “will commence payment of salary/benefits only after the credentialing at all the facilities and orientation is completed and the supervising MDs believe that the employee is ready for commencement of duties” (emphasis added). Likewise, the physician’s start date would commence “only after” credentialing, a process which would take 90 to 100 days. After signing the contract, the physician decided he could not work for the partnership due to changes in his family circumstances, notifying the hospitalist/ partnership’s manager that he was withdrawing his position. The appellate court analyzed the physician’s contention that the credentialing requirement was a condition precedent to his duty to perform under the contract. The physician argued that the hospitalist partnership was required to prove that all conditions precedent to the agreement’s employment obligations had been met. The partnership argued that the physician failed to raise a fact issue to rebut its assertion that all conditions precedent had been met. In resolving the issue, the court of appeals looked at the language in the agreement, particularly the steps taking place “only after” credentialing had taken place. Texas law has long stated that a condition precedent is an event that must happen or be performed before a right accrues to enforce an obligation. Solar Applications Engineering, Inc., v. T.A. Operating Corp., 327 S.W.3d 104, 108 (Tex. 2010). Because the employment was not to commence until after the credentialing process was complete, the credentialing process itself was a condition precedent under the plain language of the contract, according to the court of appeals. Importantly, other courts of appeals have treated conditional phrases such as “pro-
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vided that” or “if” as successfully creating conditions precedent. The phrase in the employment agreement, “only after,” was no different. Accordingly, the court of appeals reversed the final judgment, and remanded the case to the trial court for further proceedings. David V. Wilson II is a shareholder with the Houston office of MehaffyWeber, who practices in both Texas and Nevada. He is a former editor-in-chief of The Houston Lawyer.
Supreme Court Upholds Texas Venue for Wrongful Death Claim that Arose in Mississippi
O
By Marcel de Chermont
n June 8, 2018, Texas Supreme Court issued its opinion in In re Mahindra, USA, Inc., 549 S.W.3d 541 (Tex. 2018) (orig. proceeding). The Court faced the question of whether the trial court had abused
LEGAL TRENDS
its discretion in denying Mahindra’s motion to dismiss for forum non conveniens when it held that the Texas statutory residency exception applied to at least one of the plaintiffs’ claims. The Supreme Court found that since the Texas statutory exception was applicable to some part of the claim, dismissal would almost inevitably lead to duplicate litigation in both forums. Thus, according to the Court, the case was more properly heard in Texas and the trial court did not abuse its discretion. Venice Cooper, a Mississippi resident, was killed while working on his Mahindra tractor at his home in Webster County, Mississippi. Mr. Cooper’s son, a Texas resident, brought product-liability and negligence actions in Harris County, Texas, in his capacities as an individual, as administrator of his father’s estate, and as next-friend of his minor daughter who had witnessed the accident. His brother, also a Texas resident, joined the suit in his individual capacity. Mahindra filed a motion to dismiss, contesting that Mississippi was the more appropriate forum. Mahindra argued that the decedent bought the tractor in Mississippi, lived and died there, and his estate administration was being handled there, therefore the appropriate forum was Mississippi. The plaintiffs argued that the Texas statutory exception to forum non conveniens applied to their claims and the trial court agreed. The trial court denied Mahindra’s motion and Mahindra sought mandamus relief in the court of appeals, which was also denied.
Mahindra asserted on appeal that the Texas statutory exception to forum non conveniens did not apply because only a “plaintiff” may invoke that exception and the sons were not “plaintiffs” under any applicable definition. Additionally, the estate’s claims were derivative of the deceased father and, as such, they could not invoke the exception because the father was not a Texas resident. The sons maintained that they were “plaintiffs” under the terms of the statute and that the trial court did not abuse its discretion in denying the motion because the Texas-residency exception applied to the individual claims, at least, resulting in jurisdiction being proper in Texas. Under the doctrine of forum non conveniens, certain factors dictate the dismissal of a claim in favor of another forum. Under the Texas-resident exception, when the plaintiff is a Texas resident or derivative claimant of a Texas resident, the doctrine does not apply. In this case, the statutory exception applied because the plaintiffs were Texas residents and their individual claims for the wrongful death of their father were personal, not derivative, and therefore anchored their claims to Texas. While dismissal of the claims of the estate and the next-friend might have been appropriate, the trial court did not abuse its discretion in denying the motion because other claims in the same action fell under the court’s jurisdiction. Marcel de Chermont is a senior associate at The Volkov Law Group.
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Media Reviews
Lincoln’s Last Trial: The Murder Case That Propelled Him to the Presidency By Dan Abrams and David Fisher Hanover Square Press (2018)
L The Houston Lawyer
Reviewed by Steve Wisch
ibraries are filled with thousands of books about Abraham Lincoln. Yet, relatively few have been written about his criminal practice, and few have focused on a single murder case. Now, Dan Abrams, a well-known TV legal analyst, and writer David Fisher have rendered a vibrant account of Lincoln’s last murder case in Lincoln’s Last Trial: The Murder Case That Propelled Him To The Presidency. Lincoln tried thousands of cases in his career. His last major jury trial occurred in the summer of 1859. As the nation grappled with an increased likelihood of civil war, Lincoln grap-
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September/October 2018
pled with his last major trial. Plainspoken before juries, seldom objecting unless a point was crucial, Lincoln’s innate sense of fairness resonated with judges, fellow lawyers, clients, and juries. In the sweltering heat of August 1859, he successfully represented Quinn “Peachy” Harrison, charged with the murder of Greek Crafton, a young man who had clerked in Lincoln’s law office. The feud between the men emanated from a family quarrel. Harrison’s sister was married to one of Crafton’s brothers. Convinced that his sister was being abused by her husband, Peachy condemned him. Crafton demanded satisfaction and promised Peachy a “whipping.” Peachy announced he wanted no fight, but being slight and sickly, borrowed a knife. When Greek Crafton and his brother John fought Peachy in the local drugstore, in mid-July, Peachy resisted, and again said he wanted no fight. Armed with a knife, he slashed Greek Crafton’s ribs, delivering a mortal wound. Over the next three days, Crafton lingered, but not before seeking salvation from the Reverend Peter Cartwright, admitting his fault, and forgiving Peachy. The minister was Peachy’s grandfather. The authors provide a detailed description of Lincoln’s legal skills and style – his plainspoken manner in jury selection and his use of humor. He seldom objected, endearing himself to judges —only objecting if a point was crucial. As Abraham Lincoln defended
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Peachy Harrison, his legal skills were at their height. He grappled with serious limitations of Illinois law. An accused was barred from testifying on his own behalf—such evidence was viewed as inherently unreliable. Crafton’s dying declaration was hearsay, and the trial judge initially refused to admit it. Lincoln unleashed his full powers of persuasion, and the judge reversed his ruling. The author’s description of Lincoln’s summation is worth the price of the book and more. A master of jury argument, Lincoln employed logic, analysis, passion, and emotion, and he quoted Shakespeare. So effective was his argument, that the prosecutor, a friend, ridiculed Lincoln as “an actor,” stating he believed none of what Lincoln said. Lincoln rose and challenged the prosecutor, a friend, stating that what he said was untrue. Moments passed, and an apology was offered. Lincoln’s honesty was paramount. Peachy Harrison was acquitted. Every law student, lawyer, and judge may find meaning in this fine rendition of Lincoln’s legal skills—his fairness, honesty, passion for justice, iron will, and love of learning—a worthy example for all. Steve Wisch is a Houston solo practitioner, whose practice is substantially limited to health, life, and disability cases. Wisch is a former reporter. He has practiced law in Houston since 1983 and has previously served on The Houston Lawyer editorial board.
Media Reviews
Mastering the Art of Depositions By Sawnie A. McEntire ABA Book Publishing (2016)
D
Reviewed by Farrah Martinez
epositions are often the proving grounds “where the factual bases and equities of a party’s position” are often revealed, tested, and either fail or prove significant legal theories of a party’s case. A well-planned and thoroughly executed deposition is used to explore the strengths and weakness of the parties, theories of the case, witnesses and even opposing counsel. Sawnie A. McEntire’s Mastering the Art of Depositions covers all the basics to help both new and seasoned lawyers navigate through the deposition process, including how to request depositions, as well as how to prepare deposition outlines unique to different case types and witness. The author also discusses the necessity of specific questions to either prove or disprove theories, the challenges of defending a corporate representative during the deponent’s examination, and the use of demonstrative evidence. One common point emphasized in
Mastering was the importance of preparation: prepare your client, prepare your witness, prepare thirdparty lay witnesses, and adequately develop your topics of inquiry. For those preparing to depose a witness, Mastering overviews strategies for dealing with minor child witnesses, ensuring your client is ready for video recording by advising on proper deposition attire, unconscious witnesses ticks and body language, traps to avoid, and advice for lawyers on conducting mock examinations. This book also addresses the contentious task of requesting to depose your opponent’s corporate representative, tips for succinctly identifying topics of inquiry and useful suggestions to help prove up theories of the case. For those defending corporate depositions, the author provides a how-to guide for preparing a corporate r e p r e s e nt at i ve , guidance for answering questions and asserting fundamental objections. Mastering the Art of Depositions is a worthwhile read for new lawyers looking to hone their depositions skill or for seasoned lawyers looking to fine tune the same. Farrah Martinez is the owner of Farrah Martinez, PLLC, where she focuses her practice on personal injury and insurance law. She is a board member of The Houston Lawyer and past editor-in-chief.
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