Texas Legislature Codifies the Attractive Nuisance Doctrine

Transcription

Dallas Bar Association
HEADNOTES
Focus Tort & Insurance Law
October 2011 Volume 36 Number 10
Vision, Leadership & Commitment to Access to Justice
by Alicia Hernandez
Most attorneys believe in the concept
that the justice system should be open to
all people. No one should be barred from
seeking redress from the courts. Everyone’s
voice should have the opportunity to be
heard. Impartial jurists and juries of peers
should make thoughtful decisions based on
fairness and the rule of law. This is, after
all, America.
But the road to the courthouse is perilous. It is oftentimes a slow and unsteady
journey. Deadlines and details run rampant. Obstacles are thrown in the path.
Laws and procedures are not clear. Courthouses are intimidating and seemingly
impervious structures of brick and mortar,
Andy Payne and Jim Mitchell
Focus
flesh and blood to be respected, entrusted,
and feared.
Attorneys are professionals, but they
have families to support, bills to pay, and
have not gone unscathed by the tough
economic times. And even the most reasonable legal fees
are insurmountable
to significant numbers of people.
For those who
cannot afford the
journey
through
the legal process,
they simply do not
go. Their rights
are not protected.
They never have an
opportunity to have Hon. Deborah Hankinson
wrongs remedied.
Those who have preyed on them proceed
unchecked and unhindered on to the next
victim.
And, then, we have the leaders. These
are the people with vision, generous hearts,
and compassion. Their strong beliefs in the
justice system lead them to make the road
to the courthouse a reality for those who
otherwise would only see it as a dream.
Andy Payne and Jim Mitchell, of
Payne Mitchell Law Group LLP, are two
of those leaders. Plaintiff’s attorneys in
their private practices, they understand real world
problems of ordinary people. They
have stood up to
the challenge by
making a $25,000
kickoff donation
to the 2012 Equal
Access to Justice
Campaign
benefitting the Dallas
Volunteer Attorney
Program.
Andy Payne and
Jim Mitchell have
donated $101,750
to the campaign
since 2007.
Because of their
generosity,
the
troubles of DVAP’s
clients, ordinary
people simply trying to raise families, work for a living, and contribute to society as best they
can, are able to open the courthouse doors
and be given the equal access promised to
Continued on page 15
Torts & Insurance Law
What Is A QSF And When Should It Be Used?
Birth of the QSF
by Tab Keener
A Qualified Settlement Fund (QSF)
allows taxpayers involved in litigation to
receive settlement funds and potentially
avoid tax ramifications until the funds
are otherwise paid to the taxpayer. Oftentimes a QSF is used in mass tort or other
types of class action litigation. A defendant or its insurer may pay money into
the QSF, often through a structured settlement, and receive a release of claims
by court order while multiple claimants
decide upon an allocation among themselves.
Insurance companies and large selfinsured businesses typically resist the
use of a QSF. Their concern is magnified when a suit involves a single injury
and derivative claimants (as in wrongful
death and survival actions). The uncertainty is the belief that claimants may
have essentially received the economic
benefit of the money immediately upon
payment into the QSF. The worry is that
taxpayers, if taxed, would be motivated
to sue the entity funding the settlement
to offset the unexpected tax liability.
Structured settlements became popular in
the late 1970’s and 1980’s. Insurance companies funding structured settlements became
concerned that payments made to an entity,
rather than the claimant, would not be tax
deductible—as they clearly would be if paid
to an individual. Defendants and their insurance carriers wanted to make sure that they
could deduct payments in the year in which
they were paid rather than when the money
was distributed. Congress enacted Section
468B of the Internal Revenue Code in 1986
to address such concerns.
When Section 468B was first enacted
it only addressed a “Designated Settlement
Fund.” Section 468B was later amended to
add an additional section giving the Secretary of the Treasury additional authority
to draft regulations further addressing the
potential tax ramifications of such a fund.
Through a series of regulations, the QSF
was created.
To be a QSF, a fund must first be “established pursuant to an order of, or approved
by, the United States, any state (including the District of Columbia)… and is
subject to the continuing jurisdiction of
that governmental authority.” Second, the
fund must be “established to resolve or satisfy one or more contested or uncontested
claim asserting liability…” The third and
final requirement is that the fund must be a
“trust under applicable state law, or its assets
are otherwise segregated from the assets of
the transferor (and related persons).”
Using a QSF When Only a
Single Injury Is Involved
Defendants and their insurers often
have concern about the potential future
tax liability associated with a QSF, which
is afforded different tax treatment than a
typical settlement annuity. A settlement
annuity grows tax free to the benefit of the
claimant while earnings in a QSF are taxable to the fund itself. A taxpayer could
face serious tax ramifications because of the
doctrines of constructive receipt and economic benefit.
This is especially true in the case of a
young minor child who would have many
years of earnings growth. After reaching
Inside
3 Timothy Mountz Selected for Professionalism Award
9 Losers, Winners & Stowers
11Texas Legislature Codifies The Attractive Nuisance Doctrine
13Who Pays And How Much When Multiple Policies Apply?
the age of majority, the child could bring
suit contending that she was not adequately protected through the creation and
use of the QSF and should now be entitled
to recover the amount of lost earnings due
to unfavorable tax treatment. The risk is
whether the tax benefits of a structured settlement are lost when a QSF is created and
periodic payments begin that only benefit a
single claimant or derivative claimants.
To alleviate these problems, claimants
and their attorneys may suggest providing additional indemnification and promises to execute a Compromise Settlement
Agreement. Such indemnification can add
to uncertainty if unfavorable tax treatment
were to occur. However, no revenue ruling
or regulation clearly describes how a QSF
is used when dealing with a single claimant
or single injury involving derivative claimants and a structured settlement funds the
QSF. Until additional regulations are promulgated, at least be aware that unfavorable tax treatment is a possibility that could
HN
undo a hard-fought settlement.
Tab H. Keener is a Shareholder with Downs Stanford, P.C. He can be
reached at [email protected].
DBA MEMBER REMINDER:
Your 2012 DBA DUES STATEMENT
will be mailed to your office or home on
October 13, 2011.
2012 DBA DUES must be paid by December 31, 2011 to continue receiving ALL your member benefits.
Thank you for your support of the Dallas Bar Association!
2 He a d n o t e s l D a l l a s B a r A s s o ciation Calendar
October Events
OCTOBER 7-BELO
Noon
October 2011
FRIDAY CLINICS
“Medicare Set Asides, Medicare Liens and Reporting Under the Medicare Secondary Payer Act,” Sally
Stalcup. (MCLE 1.00)*
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
MONDAY, OCTOBER 17
Noon OCTOBER 14-NORTH DALLAS**
Noon
“Collaborative Law: A Legislative Update and Creative Uses of the Process for Lawyers,” Aimee Pingenot
and Chris Farish. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Dallas, TX 75240.
Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre.
There are several delis within the building. Food is allowed inside the Conference Center. Thank you to
our sponsor Griffith Nixon Davison P.C. RSVP to [email protected].
MONDAY, OCTOBER 3
Noon
Tax Law Section
“Nuts & Bolts of Partnership Tax Drafting,” John
A. Eliason. (MCLE 1.00)*
Legislative Forum
Speakers Rep. Rafael Anchia and Sen. John
Carona. Sponsored by the Public Forum Committee.
Peer Assistance Committee
TUESDAY, OCTOBER 4
Noon
Corporate Counsel Section
“A New World for Whistleblowers - The Anatomy
of a Dodd-Frank Bounty Hunter Claim and the
Ethical Implications for In-House Counsel,” Roger
W. Bivans. (MCLE 1.00, Ethics 0.50)*
Government Law Section
“Hi, We’re Here to Help You! Selected Ethics
Issues for Local & State Government Lawyers
Arising in Federal Criminal Investigations and
Prosecutions,” Pete Haskel. (Ethics 1.00)*
Tort & Insurance Practice Law Section
“Recent Legislative Changes and the Escabedo
Case,” Mary Margaret Black, Brian Lauten, Kirk
Pittard, Tex Quesada, Dick Sayles, Paula Sweeney
and William Toles. (Ethics 1.00)*
Morris Harrell Professionalism Committee
6:30 p.m. Annual Evening Ethics Program
“Annual Evening Ethics Program,” John Browning,
Bob Davis, Laura Benitez Geisler, Frank E.
Stevenson II, Mark Shank, Nancy Thursby and
Justice Kerry FitzGerald, moderator. Free for DBA
members, $90 for non-members. RSVP required,
contact [email protected]. (Ethics 3.00)*
DAYL Board of Director’s Meeting
WEDNESDAY, OCTOBER 5
Noon
FRIDAY, OCTOBER 7
Noon Friday Clinic – Belo
“Medicare Set Asides, Medicare Liens and
Reporting Under the Medicare Secondary Payer
Act,” Sally Stalcup. (MCLE 1.00)*
Transition to Law Practice Committee
“Legal Writing for the Beginning Lawyer,” Chad
Baruch. All are welcome. (MCLE 1.00)*
MONDAY, OCTOBER 10
Noon Alternative Dispute Section
“Mediating Consumer Debt Cases-Credit Cards
and Foreclosure, Attorney’s Perspective,” Maureen
Kersey, Esq. (MCLE 1.00)*
Real Property Law Section
“Oil and Gas Law for Real Estate Lawyers,” Eric C.
Camp. (MCLE 1.00)*
DAYL Foundation Board Meeting
TUESDAY, OCTOBER 11
Noon
Business Litigation Section
Topic Not Yet Available
Mergers & Acquisitions Section
“Joint Venture Issues and Structuring,” Rodney
Moore. (MCLE 1.00)*
DAYL Equal Access to Justice Committee
5:30 p.m. Dallas Women Lawyers Association
Louise Raggio DWLA Judicial Reception at the
Mansion at Turtle Creek.
6:00 p.m. Home Project Committee
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Noon
Family Law Section
“What Family Law Attorneys Need To Know About
Subpoenaing Health Records,” Hon. Dennise
Garcia and Brandon Kulwicki. (MCLE 1.00)*
Employee Benefits & Executive
Compensation Section
“Compliance Update: What’s Required by YearEnd?” Jared Pope. (MCLE 1.00)*
House Committee Walk Through
Public Forum Committee
DAYL Judiciary Committee
DAYL Lunch & Learn. For more information
contact [email protected].
5:15 LegalLine—Volunteers welcome. Second floor Belo.
5:00 p.m. Bankruptcy & Commercial Law Section
“Bankruptcy Trustee Panel Presentation,” Erin
Lovall, Jeffrey H. Mims, Daniel J. “Corky”
Sherman and Robert Yaquinto, Jr. (MCLE 1.00)*
5:30 p.m. 20th Annual Employment Law Evening Seminar
“Recent Case Law and Statutory Developments,”
Hal K. Gillespie and Mark A. Shank. Registration
$20. RSVP to [email protected]. (MCLE 1.50)*
6:00 p.m. DAYL Annual Meeting
THURSDAY, OCTOBER 6
8:00 a.m. From Yellow Pages to Facebook Pages
An exciting FREE legal media training program
brought to you by Androvett Legal Media &
Marketing and the DBA Media Relations Committee.
Speakers: Mike Androvett, Verdell Christophersen,
Gene Major, Pat Rafferty and Scott Parks. (MCLE
3.50, including Ethics 1.00)* Free for members.
Non-members: $35. RSVP to [email protected].
Noon
Construction Law Section
“Learning to Color With the Black and White
Crayons - Not the Gray Ones. Ethical Issues That
Arise in Representing Construction Companies,”
Jeffrey Brannen. (MCLE 1.00)*
Judiciary Committee
“A Conversation with Judge Jane Boyle and
Judge Reed O’Connor.” (MCLE 1.00)*
Family Law Section Board Meeting
E-Mentoring Committee
DAYL CLE Committee
St. Thomas More Society
THURSDAY, OCTOBER 13
11:30 a.m. DAYL Barristers for Babies
Noon
28th Annual Stephen Philbin Awards
Luncheon
Recognizing Excellence in Legal Reporting.
Keynote speaker Thomas A. Mesereau, Jr. (MCLE
1.00, Ethics 0.50)* Tickets $40. Tables $400.
Register online at www.dallasbar.org/philbins.
Labor & Employment Law Section
“Arbitration of Employment Cases From the
Arbitrator’s Perspective,” Alyson Brown, Keith Clouse,
Cecilia Morgan and Karen Willcutts. (MCLE 1.00)*
TUESDAY, OCTOBER 18
Noon Franchise & Distribution Section
“Trade Dress Protection and Enforcement in
Franchising,” Paul Russell. (MCLE 1.00)*
International Law Section
Law in the Schools Committee
DAYL Elder Law Committee
DAYL Animal Welfare Committee
DVAP New Lawyer Luncheon. For more
information, contact [email protected].
E-Mentoring Committee
6:00 p.m. J.L. Turner Legal Association
FRIDAY, OCTOBER 14
8:00 a.m. Annual Conference of the Professions
“Professional Ethics and Social Networking: Like?”
Carrie James, Ph.D. at Prothro Hall, SMU School
of Law. (Ethics 3.00)* For more information or to
register, log on to www.smu.edu/Provost/Ethics/
NewsRoom/Events/COP.aspx.
Noon
Friday Clinic – North Dallas**
“Collaborative Law: A Legislative Update and
Creative Uses of the Process for Lawyers,” Aimee
Pingenot and Chris Farish. (MCLE 1.00)* At Two
Lincoln Centre, 5420 Lyndon B. Johnson Frwy.,
Dallas, TX 75240. Parking is available in the Visitor’s
Lot located in front of the entrance to Two and Three
Lincoln Centre. There are several delis within the
building. Food is allowed inside the Conference
Center. Thank you to our sponsor Griffith Nixon
Davison P.C. RSVP to [email protected].
Trial Skills Section
“Selecting a Jury in the 21st Century,” David
Beck. (MCLE 1.00)*
Celebrate Pro Bono Week—“Texas C-Bar
Presentation,” co-sponsored by the Dallas Volunteer
Attorney Program and Texas C-Bar. (MCLE 1.00)*
American Immigration Lawyers Association
5:00 p.m. DVAP Belo Legal Clinic. For more information,
6:00 p.m. Dallas Hispanic Bar Association
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Noon
Legal Ethics Committee
Celebrate Pro Bono Week—“Human Trafficking
101: Recognizing and Addressing Modern Day
Slavery in Your Family, Employment, and Criminal
Law Cases,” co-sponsored by the Dallas Volunteer
Attorney Program and Mosaic Family Services.
(MCLE 1.00)*
Noon
Energy Law Section
“Wind Energy,” Becky Diffen. (MCLE 1.00)*
Noon
Environmental Law Section
“Gas Drilling Issues for the City of Dallas,” Kris
Sweckard. (MCLE 1.00)*
Health Law Section
“An Overview and Update on Litigation and Issues
Involving Privacy of Health Records,” Katie DolanGalaviz. (MCLE 1.00)*
Noon
Criminal Law Section
“Prosecution of Child Pornography Cases,” Asst.
US Attorney Camille Sparks. (MCLE 10.00)*
Law Day Committee
Mentoring Committee
Library Committee
Senior Lawyers Committee
Pro Bono Activities Committee
DAYL Young In-House Lawyers CLE
Celebrate Pro Bono Week—“How to Do a Pro
Bono Texas Divorce,” co-sponsored by the Dallas
Volunteer Attorney Program and DAYL Equal
Access to Justice Committee. (MCLE 1.00)*
Municipal Justice Bar Association
5:15 LegalLine—Volunteers welcome. Second floor Belo.
Non-Profit Law Study Group
Noon
Minority Participation Committee
Christian Legal Society
Dallas Gay & Lesbian Bar Association
3:30 p.m. DBA Board of Directors
FRIDAY, OCTOBER 21
Probate, Trusts & Estates Section
“Probate Litigation: Top Ten Mistakes of Estate
Planners,” Jim Hartnett Jr. (MCLE 1.00)*
5:30 p.m. Pro Bono Awards
This star-studded event is hosted by the Dallas Volunteer Attorney Program. RSVP to [email protected].
CLE Committee
Christian Lawyers Fellowship
Noon
11:30 a.m. Financial Literacy Townhall Meeting
“Free financial forum,” Rosa Rios, Alfreda
Norman, Ilyce Glink, Pamela Yip and Todd
Mark. Open to the public. Sponsored by DBA
Public Forum Committee ad CCCS of Greater
Dallas.
5:30 p.m. Sarah T. Hughes Reception. Sponsored by the
Dallas Bar Foundation. For more information,
TUESDAY, OCTOBER 25
Solo & Small Firm Section
“Practical Tips for the Tech-Savvy Small Law
Office (pt. 2),” Christine Krupa Downs and John H.
Phillips. (MCLE 1.00)*
Publications Committee
Celebrate Pro Bono Week—“A Family Law Primer for NonFamily Law (Pro Bono) Attorneys,” co-sponsored
by the Dallas Volunteer Attorney Program and City
Square Legal Action Works. (MCLE 1.00)*
8:30 a.m. Criminal Justice Forum
Featured Speakers: Barry Sorrels, Hon. Cathy
Cochran and Craig Watkins. (MCLE 6.50, Ethics
1.00)* Register online at www.dallasbar.org. Cosponsored by the CLE Committee.
MONDAY, OCTOBER 24
Noon
Computer Law Section
Securities Section
“PwC Securities Litigation Study Update,” Doug
Branch and Lawrence F. Ranallo. (MCLE 1.00)*
6:00 p.m. An Evening With David Brooks
Benefiting the Sarah T. Hughes Diversity
Scholarships. Dinner presented by Comerica
Bank and Reception presented by Ernst & Young.
Hosted by the Dallas Bar Foundation. Tickets
$300. To purchase, call (214) 220-7487.
FRIDAY, OCTOBER 28
9:00 a.m. Celebrate Pro Bono Week—Will Intake Clinic,
co-sponsored by the Dallas Volunteer Attorney
Program and The Senior Source. (MCLE 1.00)*
Noon
Intellectual Property Law Section
“Copyright Law & The Music Business:
Terminations, Renewals and Contract Disputes,”
Tamara Bennett. (MCLE 1.00)*
Celebrate Pro Bono Week—“Assisting
Clients With Disabilities in Medicaid Hearings,”
co-sponsored by the Dallas Volunteer Attorney
Program and Disability Rights of Texas.
(MCLE 1.00)*
1:00 p.m. Sports & Entertainment Section
“Sports Law Bootcamp,”at Hully & Mo’s in the
Quadrangle. (MCLE 4.00)*
MONDAY, OCTOBER 31
9:00 a.m. DBA Blood Drive. Save a life—donate today! For
more information, contact [email protected].
Noon
DAYL Solo & Small Firm Committee
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar.
All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION.
*For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447.
**For information on the location of this month’s North Dallas Friday Clinic, contact [email protected].
October 2011 D al l as Bar A ssoci ati on l Headnotes 3
Tim Mountz Selected for Professionalism Award
by Timothy G. Ackermann
Tim Mountz was not the first President
of the Dallas Bar Association to give away
the keys to a Habitat for Humanity home
built by members of our bar, nor the last. He
wasn’t the first to get his hands dirty (I have
pictures), nor the last. But he was our President the year that I co-chaired the Home
Project Committee and had the honor of
standing next to him.
We were proud of our profession that
day. We presented a four-bedroom house
built and paid for by our members and other
members of the legal community to a family
who had worked and sweated alongside Tim
and other members of the bar. And as the
bar’s President, he was proud of what we had
accomplished. We now recognize Timothy
W. Mountz for his own considerable talents,
accomplishments and character.
A former Dallas Bar Association President, Mountz is the 2011 recipient of the
Morris Harrell Professionalism Award. The
Dallas Bar Association and the Texas Center
for Legal Ethics and Professionalism present
this award annually to the “attorney who best
exemplifies, by conduct and character, truly
professional traits who others seek to emulate and who all in the bar admire.” Mountz
will receive the award at the DBA’s Annual
Meeting on Friday afternoon, November 4,
2011, at the Belo Mansion.
Mountz first practiced law, after graduating law school in 1979, with Morris Harrell, the namesake and first recipient of this
award. For 18 years, at Rain Harrell Emory
Young & Doke, and at the firm’s successor,
Locke Purnell Rain Harrell, P.C., Mountz
was proud to represent clients and practice
law with Harrell. Doing so, Mountz has said,
“left an indelible stamp on me, and made
me feel good about the practice of law at the
end of every day.”
Colleagues of Mountz and Harrell certainly appreciate the symbolism in Mountz
winning an award named for his mentor.
Brad C. Weber, the Chair of Board of Directors of the Dallas Bar Association, noted
that Mountz “learned how to be a true professional from practicing law with Mr. Harrell.” Weber added:
“This award will mean
so much to Tim, in part
because it’s named after
Tim’s great mentor,
Morris Harrell.” “Morris
Harrell certainly would
agree that Tim is deserving of this award,” said
Timothy W. Mountz former Dallas Bar Association President Harriet Miers. “He would be thrilled that Tim is
receiving it, as am I.” Ambassador Robert W.
Jordan remarked that “Tim displays the same
devotion to professionalism that we admired
so much in Morris, in both his advocacy for
clients and in his bar leadership. I know Morris would be tremendously proud of Tim for
receiving this honor bearing his name.”
Mountz was born in Louisville, Kentucky
and graduated from high school there in
1973 where he was elected president of his
senior class and voted “Most Likely to Succeed.” He came to Dallas to attend Southern
Methodist University and received a B.A.,
with high honors. At Duke Law School, he
enjoyed the trial advocacy and moot court
programs, and worked for two years on the
Duke Law Journal’s Editorial Board.
While in law school, Mountz formed what
he has called “his first equity partnership”—
marrying Janet Lee Taylor. They have two
daughters, Christina and Taylor Anne.
Although Mountz was the first lawyer in his
immediate family, Mountz had the benefit of
sound counsel of another lawyer, his fatherin-law, Robert C. Taylor, who suggested he
consider Harrell’s firm when Mountz was
interviewing.
And when it comes to service, Mountz
recognizes the example set by his own father.
Wade Mountz is the former CEO of a large
hospital system who served as president of
the American Hospital Association, and was
recently inducted into the Health Care Hall
of Fame. Mountz’s own record of service and
bar leadership, moreover, is extensive.
He is a former President of the Dallas
Association of Young Lawyers and was also
Chair of the Board of the Texas Young Lawyers Association, serving on that board for
five years. Mountz joined Baker Botts L.L.P.
in 1997, where his practice focuses on professional liability litigation, securities litigation, SEC investigations and enforcement
proceedings and complex business litigation. While practicing there, he has been
recognized many times as a “Texas Super
Lawyer,” and been included many times in
The Best Lawyers in America.
After joining Baker Botts, Mountz continued his service to the bar. In 1997, he
began over 10 years of service on the Dallas
Bar Association’s Board of Directors, and
served as its Chair in 2001. He also recently
served for five years on the Board of Directors of the State Bar of Texas, receiving a
Presidential Citation for his service.
He was also, of course, the 2005 President of the Dallas Bar Association. Mountz
focused his presidency on the core values
of professionalism and service. To promote
those values, the Dallas Bar Association
sponsored two key programs.
The first program, described by Weber
“one of Tim’s greatest accomplishments as
DBA President,” focused on new lawyers
and included discussion groups in which
law students were presented with legal situations involving professionalism issues. The
second program, for the Dallas legal community generally, included judicial panels
and an interactive ethics program sponsored by the Texas Center for Legal Ethics
& Professionalism.
“I can’t think of a person more deserving than Tim Mountz to receive the Morris Harrell Professionalism Award,” said
Weber. We congratulate him on this well HN
deserved award.
Tim Ackermann practices patent, trademark and copyright law at
The Ackermann Law Firm. He is Co-Chair of the Publications Committee of the Dallas Bar Association. He can be contacted at tim@
ackermannlaw.com.
4 He a d n o t e s l D a l l a s B a r A s s o ciation October 2011
Headnotes
President's Column
Honoring the Profession
by BARRY SORRELS
The 36th Annual Hispanic National Bar Association Convention was held recently in Dallas and we were pleased to have
been a part of it.
Hispanic National Bar Association Convention
With the help of the Dallas Hispanic Bar Association (DHBA),
we welcomed lawyers, legal scholars, politicians, and celebrities
from across the nation into our city and into our legal community. The CLE programming at this convention was top-notch.
I was fortunate to be a part of a program in which Kacy Miller,
President of Courtroom Logic Consulting, interviewed Jose Baez,
the criminal defense attorney who tried the Casey Anthony trial.
He spoke about jury selection in the trial, while Fox News regular,
Geraldo Rivera provided insights about the media coverage of the trial. It was very interesting to see these two
men juxtaposed: one who tries the case in the court of
law and the other who discusses the case in the court of
public opinion. Truly, this panel was only one of many
excellent presentations put on by the HNBA.
The convention was a mighty success thanks to
the hard work of Judge Teresa Guerra-Snelson, president of the DHBA, and Christie Villarreal, counsel for
AT&T Services in Austin, who co-chaired the Host
Committee. I congratulate them on their efforts in organizing the
events of the convention and getting the DBA involved. With
their help, we were able to host the convention’s opening reception with HNBA Board of Governors and members of the DHBA
at the Belo Mansion. This event was well-attended by the HNBA
Board and DHBA members; importantly, also present were the
DBA Board of Directors including officers who preside over our
sister bar associations. I am grateful for the attendance of our DBA
board members; it is critical we take advantage of these opportunities to actively support the inclusion of minority bar associations
and promote diversity within the legal community of our city.
October is a big month this year at the Dallas Bar Association.
We have three signature events which I am really looking forward
to: the Androvett Legal Media and Marketing Seminar, the Stephen Philbin Awards, and the Criminal Justice Forum.
Androvett Legal Media & Marketing
On October 6, at the Belo Mansion, we are hosting the second
half of the training seminar put on by Androvett Legal Media &
Marketing. The first half was a media training seminar to help lawyers capitalize on opportunities to speak with members of the media.
This half-day session will focus on how to market your firm in the
information age. What I really like about this program is that it is
one of those CLE’s you would have to pay a lot of money to attend if
you weren’t a member of the Dallas Bar Association. I hope that you
will take advantage of this great opportunity to learn skills that will
help you grow your practice. I will be there, and I hope to see many
of you there, too. To register, contact [email protected].
Stephen Philbin Awards
Each year, the DBA honors members of the media and presents
awards for their achievements in reporting legal stories and issues.
Media coverage of the law includes everything from proposed legislation to courtroom drama and jury verdicts. The media informs
the general public of what’s happening in the legal world and how
it might affect them. Good legal reporting educates the public
and checks the power of government. Journalists and reporters, in
their exercise of the First Amendment of the U.S. Constitution,
keep our society strong and free; I am looking forward to celebrating their contributions at the Philbin Awards on October 17.
This year, the keynote speaker is Tom Mesereau, the California criminal defense attorney who represented Michael Jackson
to multiple acquittals in a highly publicized trial. He is nationally famous for that trial work in particular, but he also
spends a great deal of his time and resources providing free legal services and counseling to the poor. As
a criminal defense attorney, I am as impressed by his
skills in the courtroom as his commitment to seeing
that the poor and disenfranchised receive competent
legal representation. His efforts in the courtroom and
outside the courtroom help protect and strengthen
our Sixth Amendment right to assistance of counsel
in criminal prosecutions. As a sentinel for the Sixth
Amendment who has faced intense media exposure throughout
his legal career, I am excited to hear what he will say about the
journalists who guard our First Amendment. Purchase your tickets at www.dallasbar.org/philbins.
Criminal Justice Forum
Later that week, on October 21, the Dallas Bar Association is
hosting a Criminal Justice Forum. Judges, prosecutors, and defense
attorneys who practice at Frank Crowley Courthouse are coming together in a summit-style CLE to collaborate on implementing new methods and procedures to improve the criminal justice
system in Dallas County. I am pleased to announce participation
from Dallas County District Attorney Craig Watkins, Texas Court
of Criminal Appeals Judge Cathy Cochran, District Clerk Gary
Fitzsimmons, and County Clerk John Warren. At least 10 sitting
Dallas County judges will be participating in presentations and
panels. We are lucky to practice law in a county in which the district attorney, criminal district court judges, county criminal court
judges, and defense attorneys are willing to engage in a dialogue
about working together on the system. Thanks to all of you who
have agreed to participate, and thanks to Bruce Anton, of Sorrels
Udashen & Anton; Hon. Roberto Canas, Jr., County Criminal
Court No. 10; Hon. Elizabeth Crowder, Criminal District Court
No. 7; Hon. Carter Thompson, Criminal District Court No. 5;
and Dallas County Public Defender Lynn Pride Richardson; for
their work as co-chairs of the Criminal Justice Forum. I expect we
will have a good turnout. Please register at www.dallasbar.org to
HN
attend this free event.
SAVE THE DATE
to join us for the
Dallas Bar Association’s
Fall Fiesta
honoring our
Newest DBA members
& Newly Licensed Attorneys!
Tuesday, November 15, 2011
5:30pm to 8:00pm
The Belo Mansion
For more information or to become a Sponsor,
please contact Kim Watson
[email protected] or (214) 220-7414
Published by:
DALLAS BAR ASSOCIATION
2101 Ross Avenue
Dallas, Texas 75201
Phone: (214) 220-7400
Fax: (214) 220-7465
Website: www.dallasbar.org
Established 1873
The DBA’s purpose is to serve and support the legal
profession in Dallas and to promote good relations among
lawyers, the judiciary, and the community.
OFFICERS
President: Barry Sorrels
President-Elect: Paul K. Stafford
First Vice President: Sally Crawford
Second Vice President: Scott McElhaney
Secretary-Treasurer: Sean Hamada
Immediate Past President: Ike Vanden Eykel
Directors: Brad C. Weber (Chair), Jerry C. Alexander (Vice
Chair), Kim Askew (At-Large), Penny Brobst Blackwell
(President, Dallas Association of Young Lawyers), Eric
Blue (President, J.L. Turner Legal Association), Hon. Rob
Canas ( Judicial At-Large), Wm. Frank Carroll, Rob Crain,
Laura Benitez Geisler, Hon. Martin Hoffman, Michael K.
Hurst, Monica Latin (At-Large), Karen McCloud, Eunice
Kim Nakamura (President, Dallas Asian American Bar
Association), Mary Scott, Hon. Teresa Guerra Snelson
(President, Dallas Hispanic Bar Association), Diane M.
Sumoski; and Michele Wong Krause.
Advisory Directors: Chip Brooker (President-Elect,
Dallas Association of Young Lawyers, Victor N. Corpuz
(President-Elect, Dallas Asian American Bar Association),
Lori Hayward (President-Elect, J.L. Turner Legal
Association) and Carlos Morales (President-Elect, Dallas
Hispanic Bar Association).
Delegates, American Bar Association:
Rhonda Hunter, Hon. Douglas S. Lang
Directors, State Bar of Texas: Andy Payne, Christina
Melton Crain, Beverly Bell Godbey, Frank E. Stevenson,
II, Ike Vanden Eykel
HEADNOTES
Executive Director/Executive Editor:
Catharine M. Maher
Communications / Media Director
& Headnotes Editor: Jessica D. Smith
In the News: Judi Smalling
Art Director: Thomas Phillips
Advertising: Karla Howes
PUBLICATIONS COMMITTEE
Co-Chairs: Vincent J. Allen and Timothy G. Ackermann
Vice-Chairs: Lea N. Clinton and Natalie L. Arbaugh
Members: H. Joseph Acosta, Kevin Afghani, Nelson
Akinrinade, Vance L. Beagles, Jason Bloom, Barbara Boudreaux,
Jeremy Camp, Noel Chakkalakal, Y.W. Peter Chen, Ryan
Cosgrove, Sally Crawford, Weston Davis, Pat Driscoll, David
Drummer, Dawn E. Fowler, Jennifer Gajak, Constance Hall,
James Holbrook, Dyan House, Victor Johnson, Harold Jones,
Adam Kielich, Michelle Koledi, Cherika Latham, Jamie McKey,
Patrick McLain, Thomas L. Mighell, Clay Miller, Jennifer
Mitchell, Heather Bailey New, Emmanuel Obi, Jenna Page,
Kirk L. Pittard, Elizabeth Pletan, Irina B. Plumlee, Laura Anne
Pohli, Robert Ramage, Juan Renteria, Bryon Romine, John
Roper, Gregory W. Sampson, Mary Scott, Barry Sorrels, Thad
Spalding, Paul K. Stafford, John C. Stevenson, Amy E. Stewart,
Scott Stolley, Roxana Sullivan, Sherry Talton, Peter S. Vogel,
Suzanne R. Westerheim, Elisabeth Wilson, Sarah Q. Wirskye,
Sarah Woodell, Angela Zambrano and Viktoria Ziebarth
DBA & DBF STAFF
Executive Director: Catharine M. Maher
Accounting Assistant: Shawna Bush
Communications / Media Director:
Jessica D. Smith
Controller: Sherri Evans
Director of Community Services:
Alicia Hernandez
Events Coordinator: Rhonda Thornton
Executive Assistant: Michelle Dilda
Executive Director, DBF: Elizabeth Philipp
LRS Program Assistant: Biridiana Avina
LRS Interviewer: Marcela Mejia
Law-Related Education & Programs
Coordinator: Amy E. Smith
Membership Coordinator:
Kimberly Watson
Projects Coordinator:
Kathryn Zack
Publications Coordinator: Judi Smalling
Receptionist/Staff Assistant: Teddi Rivas
DALLAS VOLUNTEER ATTORNEY PROGRAM
Director: Alicia Hernandez
Managing Attorney: Michelle Alden
Volunteer Recruiter: Chris Reed-Brown
Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew
Musquiz, Jigna Gosal, Tina Douglas
Data Entry/Office Support: Patsy Quinn
Copyright Dallas Bar Association 2011. All rights reserved. No reproduction of any
portion of this publication is allowed without written permission from publisher.
Headnotes serves the membership of the DBA and, as such, editorial
submissions from members are welcome. The Executive Editor, Editor,
and Publications Committee reserve the right to select editorial content
to be published. Please submit article text via e-mail to jsmith@dallasbar.
org (Communications Director) at least 45 days in advance of publication.
Feature articles should be no longer than 750 words. DISCLAIMER: All
legal content appearing in Headnotes is for informational and educational
purposes and is not intended as legal advice. Opinions expressed in
articles are not necessarily those of the Dallas Bar Association.
All advertising shall be placed in Dallas Bar Association Headnotes at the
Dallas Bar Associationís sole discretion.
Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar
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POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave.,
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October 2011 Focus
D al l as Bar A ssoci ati on l Headnotes 5
Tort & Insurance Law
What the Insurance Code Giveth, the Courts Cannot Taketh Away
by Robert M. Hoffman
and Jaclyn M. O’Sullivan
Several appellate decisions indicate
that policy proceeds alone cannot be
trebled under the Texas Insurance Code
(TIC). This article explains where these
decisions went wrong.
The insurance code provides a private cause of action for unfair or deceptive insurance practices, whereby insureds
can recover actual damages and attorney’s fees (as well as other relief the court
deems proper). TIC § 541.060. Insureds
can also recover an additional two times
the amount of actual damages for knowing violations. TIC § 541.152(b).
In Great American v. AFS/IBEX Financial
Services, 612 F.3d 800, 808 (5th Cir. 2010),
the district court found coverage under
the policy but dismissed the Section 541
claims because the insured “failed to plead
and prove injuries separate from those that
flowed from” the insurer’s breach of contract
(i.e., no injury beyond policy proceeds).
On appeal, the insured argued that it
did not need to prove a separate injury
to maintain its extra-contractual claims
and that the insurer’s denial of insurance
proceeds, standing alone, entitled it to
recover on its extra-contractual claims.
The Fifth Circuit disagreed.
The only support cited was Parkans
International LLC v. Zurich Insurance Co.,
299 F.3d 514, 519 (5th Cir. 2002), a case
where the Fifth Circuit found no policy coverage and, understandably, held that the
insured must prove damages independent of
policy proceeds to recover on its extra-contractual claims. Such is the law in Texas—if
there is no policy coverage then TIC claims
fail without an independent injury. But in
Great American, coverage did in fact exist.
EVENING ETHICS
Tuesday, October 4
6:30 to 9:30 p.m.
At the Belo Mansion
(Ethics 3.00)
SPEAKERS
• John Browning • Bob Davis • Laura Benitez Geisler •
• Frank E. Stevenson II • Mark Shank •
• Nancy Thursby • Justice Kerry FitzGerald (moderator)
No charge for DBA members.
($90 for non-members).
$10 light buffet available.
RSVP is required.
Contact [email protected].
BELO LEGAL CLINIC II
Tuesday, October 25
From 5 to 9 p.m.
At the Belo Mansion
VOLUNTEERS NEEDED!
Bilingual attorneys and support (Spanish Language) are
needed. Lawyers report at 6:15 p.m. to provide legal
advice to those who cannot afford an attorney. Paralegal
and law student volunteers report at 5:00 p.m. to
perform intake/financial screening and assist with clinic
coordination. Mentor-attorneys will be available to assist.
Sponsored by the Dallas Volunteer Attorney Program, a
joint project of the Dallas Bar Association and
Legal Aid of NorthWest Texas.
To volunteer, contact Chris Reed-Brown, DVAP recruiter,
at (214) 243-2243 or [email protected].
Other courts also confused this issue
by extrapolating Provident American Insurance Co. v. Castañeda, 988 S.W.2d 189
(Tex. 1998) beyond its holding. There, the
insured sued under the TIC, but the court
found that the insurer had a reasonable
basis to deny the claim. The court addressed
whether the insured was entitled to recover
damages equivalent to policy benefits if the
insurer failed to acknowledge communications about the claim or to adopt reasonable
standards for investigating claims (both prohibited under the TIC). The court observed
that, where the insurer did not wrongfully
deny coverage, such conduct must be a producing cause of damages separate from those
otherwise resulting from a wrongful denial.
Thus, Castañeda stands for the unremarkable proposition that when a coverage denial is not actionable under the
TIC, then an insured must prove damages
independent of policy proceeds.
The leading Texas Supreme Court decision addressing multiplied damages based
on a finding of a knowing violation is Vail v.
Texas Farm Bureau Mutual Insurance Co., 754
S.W.2d 129 (Tex. 1988). In Vail, the policyholders sued for breach of contract and violations of the TIC. The jury awarded unpaid
policy benefits as actual damages; then, upon
a knowing finding, trebled that amount.
The insurer argued that the policyholders could not recover under the TIC because
“the amount due under the policy solely represents damages for breach of contract and
does not constitute actual damages in relation to a claim of unfair claims settlement
practice.” The court disagreed, holding that
“an insurer’s unfair refusal to pay the insured’s
claim causes damages as a matter of law in at
least the amount of the policy benefits wrongfully withheld.” The court reasoned that
“[i]t would be incongruous to bar an insured—
who has paid premiums and is entitled to protection under the policy—from recovering
damages when the insurer wrongfully refuses
to pay a valid claim. Such a result would be
in contravention of the remedial purposes of
the DTPA and the Insurance Code.”
In Twin City Fire Insurance Co. v.
Davis, 904 S.W.2d 663, 666 (Tex. 1995),
the court held that the insured’s breach
of contract damages would not support a
claim for breach of the duty of good faith
and fair dealing (and related punitive
damages). The insured argued that this
contradicted Vail, but the court disagreed.
“Vail was only concerned with the insurer’s
argument that policy benefits improperly
withheld were not ‘actual damages in relation to a claim of unfair claims settlement
practices.’ In rejecting the insurer’s argument, we held that policy benefits wrongfully withheld were indeed actual damages
under the DTPA and Insurance Code.”
Vail remains good law today. When
carriers wrongfully deny coverage, policy
proceeds are “actual damages” and can be
trebled in the advent of knowing viola HN
tions.
Rob Hoffman is a partner at Gardere Wynne Sewell LLP and Jaclyn
O’Sullivan is a third year student at SMU’s Dedman School of Law. They
can be reached at [email protected] and [email protected],
respectively.
6 H e a d n o t e s l D a l l a s B a r A s s o ciation October 2011
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Oct o b e r 2 0 1 1 D al l as Bar A ssoci ati on l Headnotes 7
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8 He a d n o t e s l D a l l a s B a r A s s o ciation October 2011
The Art of Insurance
by Jamie K. Baker
Art collectors and exhibitors face
insurance issues when newly-discovered
artworks by famous artists are found to
be fakes. Likewise, insurance is a significant issue when ownership of Nazi-era
stolen art is questioned or an art heist
occurs. The FBI estimates that art crime
is responsible for $6 billion in losses
annually worldwide. D. Steinberg, The
$25 Billion Art Move, (Wall Street Journal, June 24, 2011).
These stories make the headlines,
yet title disputes, art destroyed in transit
and commercial entrustment issues are
more often at the core of art insurance
claims.
Individual collectors, galleries, museums, universities, corporations and auction houses all have different insurance
needs. For the private collector with artworks valued above $200,000, fine art
insurance offers greater protection than
a standard homeowner’s policy, including worldwide coverage and coverage
for breakage.
For all categories of insureds, one
issue that arises particularly with a theft
or loss claim is the proper valuation of
the artwork. Appraisal is integral in
obtaining proper coverage. It is advisable to insure an art collection based not
on a fixed figure, but instead at market
value which can increase over time. In
the event of theft or loss, insurance benefits will be calculated on the amount
for which the artwork could have been
sold on the date of loss, rather than the
historical (likely lower) purchase price.
Insurers and collectors may alternatively agree to submit the issue of valuation to an appraiser at the time of
loss. It should be noted that third party
expert opinions on art valuation, and
even authorship, are not foolproof. For
example, in Hahn v. Duveen, 234 N.Y.S.
185 (N.Y. Sup. Ct. 1929), the experts
disagreed whether Leonardo DaVinci
painted the defendant’s painting.
In fact, experts seem to uniformly
agree that for insurance purposes, art
valuation can be a significant challenge.
Industry consensus on value may change
with time and trends. The insured should
give special attention to a policy’s valuation clause to avoid uncertainty when
a loss occurs.
Different insureds may also have different needs resulting from the different
risks implicated. For galleries and museums, art insurance needs may involve a
ABA Coming to Dallas in 2013!
combination of property, general liability and title insurance protections. For
these institutions, art losses can implicate very different and unusual risks,
particularly regarding works on loan or
in transit. For auction and consignment
houses, special issues of entrustment
may also arise if a loss occurs to artwork
onsite, which typically belongs to sellers.
Another consideration regarding art
insurance is the important difference
between provenance and legal title of
an artwork. Insurance issues may arise
where a party has full legal title to a
piece of art, but asserts a claim based
on misrepresentation as to the artwork’s
provenance. According to ARIS, a New
York title insurer which first introduced
fine art title insurance to art collectors,
“provenance relates to the location and
prior possessors of an artwork from its
creation to the present, whereas legal
title relates more broadly to the past and
present full right, interest and ownership of the work, which may or may not
overlap with physical possession of the
art.”
The Dallas Morning News recently
reported that the Kimbell Art Museum
in Fort Worth had discovered one of its
Renaissance era sculptures was associated with a repository for artwork purchased or stolen by Nazis. The Kimbell’s
director explained their policy of returning works of art if it is learned they were
improperly sold or looted in continental Europe during the Nazi era. Luckily,
this particular sculpture did not need to
be returned because the museum’s documentation showed it had good ownership.
Authenticity, authorship and attribution are generally not covered by title
insurance. Nonetheless, some experts
advocate in favor of making title insurance mandatory for all art sold in auction houses and displayed in museums
that might be Holocaust-looted. T.M.
Cooley, 9 Journal of Practical and Clinical
Law 223 (2007).
Today, there are only a handful of
lawyers in the United States practicing
in this niche market. Texas lawyers interested in this fascinating area of insurance
HN
law will find it an open field.
Jamie K. Baker, Of Counsel at Thompson Coe, is an art collector and practices insurance law. She is a Dallas Bar Association member and an advisory board member of Texas
Accountants and Lawyers for the Arts. She may be reached at
[email protected].
PUBLIC FORUM
“LEGISLATION SESSION SUMMARY”
SPEAKERS: REP. RAFAEL ANCHIA and SEN. JOHN CARONA
Monday, October 3, Noon, at Belo
RSVP to [email protected]
Sponsored by the DBA Public Forum Committee.
The ABA will hold its mid-year meeting in Dallas in early 2013. President-Elect Laurel Bellows (center), of the Bellows Law Group, P.C., visited Belo in September. She is pictured with
Kim Askew and DBA President Barry Sorrels.
DVAP’s Finest
John O’Connor
John O’Connor is a commercial litigation associate in the Dallas office of Weil, Gotshal & Manges, where he also serves as a
member of the firm’s Pro Bono Committee. John has volunteered
at DVAP intake clinics since 2007, conducting client interviews
throughout the Dallas area. John is currently working full-time at
DVAP through Weil’s Lend-a-Lawyer program, where, for three
months, he is dedicating his time solely to working on DVAP cases
and staffing DVAP clinics while the firm pays his salary and benefits. John is currently working on a wide range of DVAP cases,
including several in the areas of family law, probate, landlord/tenant disputes, and consumer law, both at the trial and appellate level. Thank you for all you do, John!
Pro Bono: It’s Like Billable Hours for Your Soul.
To volunteer or make a donation, call 214/748-1234, x2243.
Oct o b e r 2 0 1 1 Focus
D al l as Bar A ssoci ati on l Headnotes 9
Losers, Winners & Stowers
by Paul K. Stafford
In the law, as in the game of life,
there are winners and losers…but there
is also Stowers.
In Stowers, the court articulated the
duty of an indemnity company to its
insured, stating that “[t]he indemnity
company is held to that degree of care
and diligence which a man of ordinary care and prudence would exercise
in the management of his own business.” The court held that the insurer
breached its duty, and awarded damages of $14,103.15 to a furniture company, thus establishing the Stowers
doctrine. Under that doctrine, upon
an excess verdict on a covered claim,
a policyholder has a cause of action
against its liability insurer for negligently refusing a reasonable settlement
offer within policy limits. G. A. Stowers Furniture Co. v. American Indemnity Co., 15 S.W.2d 544 (Tex Comm’n
App. 1929).
The Stowers doctrine is triggered
through a Stowers demand, which
requires a written demand to settle a
case within policy limits in exchange
for a full and final release of the claim.
In accordance with Stowers and its
progeny, an insurer that rejects a reasonable settlement offer could be liable
to its insured.
In Texas, there is also “lawsuit
reform.” In May, 2011, Governor Perry
signed into law House Bill 274, a/k/a
“Loser Pays,” which became effective
on September 1, 2011. H.B. 274 provides, among other things, that plaintiffs in civil cases who file a lawsuit and
“lose” that lawsuit will be required to
pay the court costs and attorneys’ fees
of those defendants whom they sued.
In addition, and as in other jurisdictions and the Federal Rules, H.B. 274
addresses frivolous lawsuits by providing for the “dismissal of causes of action
that have no basis in law or fact on
motion and without evidence.” Trial
courts must also grant or deny motions
to dismiss within 45 days of filing, and
award attorneys’ fees and costs to the
prevailing party.
H.B. 274 effectively penalizes a litigant for rejecting a settlement offer
that is ultimately greater than what
the judge or jury awards at trial. In fact,
under H.B. 274, sometimes even the
“winner” pays. H.B. 274 awards attorneys’ fees to defendants if they make a
settlement offer, the offer is rejected,
and if the jury finds for the plaintiff
and makes an award that is less than
80 percent of the settlement offer. H.B.
274 also eliminates the distinction
between economic and non-economic
damages found in previous “loser pays”
laws and expands the amount of recoverable attorneys’ fees and costs to the
total amount of the damages awarded.
Therefore, a plaintiff could “win” damages at trial, but subsequently “lose” all
of the recovery to the “loser,” although
they could not lose more than the total
amount of the recovery.
How will the Stowers doctrine fare
in light of H.B. 274? More aptly, what
new or nuanced interpretation, if any,
will be given to the terms “ordinary
care,” “prudence” and “reasonable?” The
answer to these questions are yet to be
determined; however, litigators, the
business community, and other interested persons are best served through
awareness of the changes resulting
from H.B. 274, as well as its potential
impact on the litigation strategy and
settlement decisions of an indemnity
company.
Litigators should advise their clients
that, in light of H.B. 274, an indemnity company may be more likely to
increase the number of liability claims
that are denied, or to decrease the dollar amounts of settlement offers with
the intention of prevailing at trial and
recovering attorneys’ fees and costs.
Such decisions by an insurer may be
more easily justified through H.B. 274
as “reasonable” or “that degree of care
and diligence which a man of ordinary
care and prudence would exercise in
the management of his own business.”
H.B. 274 also addresses the designation of responsible third parties by
providing that limitations may bar a
defendant from joining a responsible
third party if the defendant “failed to
comply with its obligations, if any, to
timely disclose that the person may be
designated as a responsible third party
under the Texas Rules of Civil Procedure.”
Accordingly, litigators must diligently investigate all potential parties
and responsible third parties as soon as
practicable in a claim or pending case,
and should promptly disclose the person or entity as a potential party or
responsible third party.
In sum, the Stowers doctrine creates
tension between policyholder and insurer
to settle a case. Expect that tension to
HN
increase under H.B. 274.
Paul K. Stafford is President-Elect of the DBA and is principal attorney at The Stafford Law Firm, focusing on insurance, commercial, and business litigation. He can be
reached at [email protected].
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Use Technology to Get Paid
The Law Firm Merchant
by Bob Black
Technology and trends are changing
faster than most non-superheroes can keep
up with, much less an attorney attempting to
run both a law practice and a business. How
do you defend yourself against the onslaught
of new technology with options changing on
a weekly basis?
One of the most critical areas where this
holds true is how attorneys accept payments,
especially in regards to credit card processing. Historically, law firms have not considered themselves as “traditional businesses”
but as professionals practicing law. While it
is true attorneys have an ethical and sometimes higher calling to uphold justice, in
reality, they have to run a successful business
first, which involves getting compensated for
their work.
Money Talks…
With technology, attorneys now have the
ability to control cash flow through the use
of credit cards and electronic payments. By
doing so, you gain control of your accounts
receivables and ultimately your overall practice. Traditionally, law firms do not perform
credit checks or report delinquent clients
to credit agencies. By allowing your firm to
accept credit card payments, you can effectively shift your receivables to the card-issuing banks. Visa and MasterCard banks have
already established the creditworthiness and
financial capability of your clients.
In the world of merchant accounts, law
firms are unique business entities. Unlike a
restaurant or retail store, law firms have special considerations when dealing with credit
cards and client funds. Whether you are considering accepting credit cards or already offer
an electronic payment option, using stateof-the-art technology will ensure you are
paid quickly and securely. Some other tips to
ensure a successful transition to the modern
ways of getting paid as a Law Firm Merchant:
Protect your trust and IOLTA accounts.
Do not allow your merchant provider access
to your trust account. Most merchant agreements will require you to give access to this
account in the event of a chargeback or
fraud. There are merchant services specific to
law firms that correctly protect and safeguard
your trust accounts.
Communicate to your Clients. Let clients know what your payment expectations
are on the front end by including due dates,
late fees and payment options as part of your
fee agreement. It is much easier to establish
these guidelines while your client is new and
eager to get started. More importantly, continue to communicate to your clients what
payment options you provide by including
credit card logos or adding ‘Major Credit
Cards Accepted’ to your invoices and website.
Use the Technology You Have. Once
you make the decision to accept credit cards,
be sure to use the payment option that best
suit your needs. Depending on your area of
practice, and more importantly where you
interact with your client there are different
choices to accept payment. For example,
there are many options to accept credit cards
with smart phones, including iPads and laptops.
Let Your Clients do the Work. By taking time to establish payment options on
your website, clients can run their own credit
cards. Not only does this provide a convenience to clients, but frees up the time you
would normally spend processing credit card
payments.
It is not necessary to be a website developer or have a degree in computer science to
embrace credit card payments, just a smart
attorney that knows how to get paid. By
using technology as a payment tool, you give
clients flexible payment options while allow S
A A
ing yourself to get paid quickly and securely.
So, with technology moving at a rate that
is “faster than a speeding bullet,” throw on
your Super-Lawyer cape and take back control of your receivables and ultimately your
practice.
About AffiniPay/LawPay
The LawPay Merchant Account, is a
custom payment solution designed by AffiniPay for attorneys. The LawPay Merchant
Account complies with ABA and state
requirements for managing client funds.
As a member benefit of DBA, law firms
save up to 20–25 percent off standard credit
card fees. If you are currently accepting credit
cards, we encourage you to compare your
current processor with the LawPay Merchant Account. Contact LawPay at (866)
HN
376-0950 or www.LawPay.com.
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What’s Happening In Dallas And What Does It Mean To You?
Tuesday, November 1, 5:30 to 7:30 p.m. at The Belo Mansion
Open to the public.
Sponsored by the DBA Public Forum Committee
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Dal l as Bar A ssoci ati on l Headnotes 11
Texas Legislature Codifies The Attractive Nuisance Doctrine
by Michael C. Smith
This summer the Texas Legislature
enacted Section 75.007 of the Texas Civil
Practices & Remedies Code in response to
a new Restatement of Torts that adopts a
broad duty owed to entrants upon another’s property. Section 51 of the Restatement (Third) of Torts proposes a unitary
standard of reasonable care for all entrants
on land except the undefined “flagrant
trespasser.”
The Restatement’s new standard differs significantly from Texas common law,
which has long imposed varying duties
on property owners depending on the
entrant’s status as an invitee, licensee or
trespasser. Two Restatement contributors advocate the new standard despite
characterizing it as “a major departure
from the first and second restatements.”
Other ALI advisors warn the new standard is “fundamentally unsound” because
there is no public policy need to change
the Restatement’s approach, and it will
create confusion as to what is a “flagrant
trespasser.”
In Section 75.007, the Texas Legislature codified the common law duty that
Texas property owners owe to trespassers and the attractive nuisance doctrine.
A “trespasser” is defined as “a person
who enters the land of another without
any legal right, express or implied.” The
new statute goes on to provide that an
“owner, lessee, or occupant of land does
not owe a duty of care to a trespasser on
the land and is not liable for any injury
to a trespasser on the land, except that
an owner, lessee, or occupant owes a
duty to refrain from injuring a trespasser
willfully, wantonly, or through gross
negligence.” This is the duty expressed
over 55 years ago by the Texas Supreme
Court in Burton Constr. & Shipbuilding
Co. v. Broussard, 273 S.W.2d 598, 603
(Tex. 1954).
Section 75.007 does differ slightly
from the former common law attractive
nuisance doctrine. Over 60 years ago, the
Texas Supreme Court adopted that doctrine from Section 339 of the Restatement
of Torts. Banker v. McLaughlin, 208 S.W.2d
843, 847 (Tex. 1948). And in 1997, the
Texas Supreme Court observed that the
Restatement (Second) of Torts “still correctly states the doctrine.” Tex. Utils. Elec.
Co. v. Timmons, 947 S.W.2d 191, 193-94
(Tex. 1997).
Under the common law attractive
nuisance doctrine in Texas, property
owners owe a duty to exercise ordinary
care to make reasonably safe or warn
of the condition that has allured “children of tender years” to the property.
In effect, property owners owe trespassing children the same duty owed invitees. Historically, Texas courts only
applied the doctrine when the plaintiff
was, at most, 12 years old. The Timmons
court declined to set an age limit, holding instead that the doctrine applies
depending on whether “the child is still
too young to appreciate the danger.”
Section 75.007’s sponsors sought to
restrict the attractive nuisance exception
by limiting it to children younger than 16
and creating a rebuttable presumption that
children 14 and older appreciate the risk
of highly dangerous artificial conditions.
These limits failed to make the final bill.
As a result, Section 75.007(c) provides
that an owner, lessee or occupant of land
may be liable for injury to a child caused
by a highly dangerous artificial condition
on the land if:
The owner knew or reasonably should
have known that children were likely to
trespass in the place where the artificial
condition exists;
The owner knew or reasonably should
have known the artificial condition
existed, and realized or should have realized the condition involved an unreasonable risk of death or serious bodily harm to
such children;
The injured child was too young to discover the condition or realize its harm;
The owner’s utility in maintaining the
condition and burden to remove the danger were slight compared to the risk to the
child; and
The owner failed to exercise reasonable care to eliminate the danger or otherwise protect the child.
The statute follows, almost verbatim,
the Texas Supreme Court’s adoption of the
Restatement (Second) of Torts. The difference is that Section 75.007(c) requires
injury by a “highly dangerous” artificial
condition for liability to exist; Timmons
and the Restatement (Second) of Torts
refer only to an artificial condition.
Section 75.007(d) also creates civil
immunity for the owner, lessee or occupant
of land who defends persons or their property
from a trespasser using justifiable force as rec HN
ognized under the Penal Code. Michael C. Smith, a member of Cobb Martinez Woodward PLLC, is
a member of the Tort & Insurance Practice Section of the DBA. He
can be reached at [email protected].
All members are invited to
“Legal Writing for the Beginning Lawyer”
October 7, Noon, at Belo
Speaker: Chad Baruch of The Law Office of Chad Baruch
RSVP to [email protected].
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Would You Recognize Human Trafficking If You Saw It?
by Laura G. Burstein, Esq.
What comes to your mind when
someone mentions human trafficking?
Imagine the following scenario. One
day your spouse casually mentions that
she has befriended a sad young woman
at the local park who nannies for a family in the neighborhood. The nanny
speaks French to the children, and
because she also speaks French, your
spouse struck up a conversation with
her. The parents of the young children
brought the nanny to the U.S. from
their home in Africa. After several
conversations, the nanny began to talk
about problems in the home where she
works. She tells your spouse she works
15 hours each day caring for the children and then must cook and clean for
the family; she is not allowed to leave
the home except to take the children to
the park; and lately she has been feeling poorly but her employers will not
take her to a doctor. The girl is worried whether her parents are receiving
the money for her work as her employers agreed when she took the job. She
says that her employers are unkind
and treat her rudely, but that she cannot leave because they have her travel
and identity documents and she has no
access to money to return home.
This story is a clear example of
human trafficking. If that surprises you,
it may be due to the fact that there are
numerous misconceptions about what
human trafficking actually is. The biggest myth about human trafficking is
that it is obvious. It is not. It is a hidden crime that is occurring wherever
there is money to be made and as such,
it is an issue you may come across in
either your personal or professional
life. The key is learning how to recognize it. “Human trafficking” is simply
a euphemism for modern day slavery
and refers to the activity of one person
holding another person in a situation
of compelled service through the use of
force, fraud or coercion.
The U.S. government defines
human trafficking in the Trafficking
Victims Protection Act (TVPA) of
2000 and the Reauthorization Acts
(TVPRA) of 2003, 2005 and 2008, in
two separate contexts—sex trafficking
and labor trafficking. Sex trafficking is
defined as a situation in which commercial sex is induced by force, fraud
or coercion, or in which the person
induced to perform such act has not
Civil Attorney Advisors Needed
for Mock Trial Teams
Advisors are needed to instruct teams for the
2011-2012 mock trial season (a civil case).
Firms and partners can adopt teams as well. Dates and
times vary. To sign up, please email the coordinator,
Amy Smith at [email protected].
attained 18 years of age. Labor trafficking is the recruitment, harboring, transportation, provision or obtaining of a
person for labor or services, through
the use of force, fraud or coercion for
the purpose of subjection to involuntary servitude, peonage, debt bondage
or slavery. (8 CFR §214.11(a)). The
key to identifying human trafficking
is determining whether the labor or
services were performed as a result of
force, fraud or coercion.
People are trafficked for numerous
reasons and victims can be foreignborn (with or without legal status),
U.S. citizens, men, women, children,
and of all ages. Traffickers can be anyone: friends, neighbors, family members, business owners, organized crime,
diplomats, governments, pimps, managers, gangs and overseas employment
agencies. It is present world-wide and
in all trade sectors, not just the sex
trade.
Labor trafficking in the U.S. is more
common than most realize, comprising
the predominance of cases of human
trafficking uncovered. While there are
a multitude of different fact scenarios
encountered, two recent cases located
in Texas and neighboring states share
remarkable similarities.
Both involved over 600 victims
employed by two different manufacturing companies. Workers were recruited
from Asia to keep labor costs low, and
the employees were provided onsite
housing and meals. The company housing was located adjacent to the worksite and severely restricted the workers’ movement and freedom. The facilities were fenced in and continuously
monitored by guards. Workers were not
allowed to exit the camp except during
specified times and only if accompanied
by a company guard. Travel outside the
camp was limited to either the local
superstore or a nearby church. The living arrangements were substandard,
with 10 to 20 men sharing a room and
single bathroom and sleeping in bunk
beds. Although the workers were being
paid, both the hourly rate and number
of hours of work per week were substantially less than promised and the
workers earned a fraction of what was
promised. The workers feared leaving
the job because each took out substantial loans exceeding $10,000 to cover
the “visa processing fees” charged by
the overseas recruiting company, which
they believed would likely endanger
their families should they fail to pay.
The million dollar question is what
you, as counsel for one of these companies, should do upon learning these
facts. You obviously have an obligation
to advise your client as to the multitude of liabilities involved, however,
further action clearly presents a significant ethical dilemma. What if one of
the workers came into your office seeking help—would you know what relief
is available and appropriate? Human
trafficking is happening all around us.
Recognizing the signs and knowing the
elements of the crime can help you
better advise your clients, or refer and
assist victims.
For further information, or if you
believe a person is being trafficked,
please contact Laura G. Burstein at
Mosaic Family Services, Inc. or attend
the Pro Bono Week CLE on this topic on
Wednesday, October 26, noon, at Belo.
Mosaic Family Services is a local community-based nonprofit serving immigrant victims of crime, including vic HN
tims of human trafficking. Laura G. Burstein, Esq. is the Legal Program Director for Mosaic Family Services. She can be reached at
[email protected].
BUSINESS LEADERSHIP
SYMPOSIUM
Presented by Texas Wesleyan Law Review
November 4, 2011
Texas Wesleyan School of Law
Fort Worth, Texas
The Texas Wesleyan Law Review is pleased to host a Business
Leadership Symposium this fall on the general legal issues that
today's corporate attorneys must face as both legal professionals
and business leaders.
Parties interested in attending the symposium, please contact:
Kate Echols
Texas Wesleyan Law Review, Symposia Editor
[email protected]
Please visit our website for additional information or
to register for the symposium:
http://www.law.txwes.edu/LawReview/UpcomingSymposia/tabid/1504/Default.aspx
Approval for CLE credits will be sought for this event.
BUSINESS LEADERSHIP SYMPOSIUM
November 4, 2011 • Texas Wesleyan School of Law
Oct o b e r 2 0 1 1 Focus
Who Pays And How Much When Multiple Policies Apply?
by Micah Skidmore
“Less is more.”—Architect Ludwig
Mies van der Rohe
While sometimes less may indeed be
more, more should never be less. But,
when multiple policies apply to a single
claim, policyholders can sometimes feel
as though they would be better off with
only one policy.
If, for example, a long-tail environmental claim or latent construction defect
claim triggers coverage under a series of
liability or property policies, each subject to a deductible or self-insured retention (SIR), those carriers responding to
the claim may each insist on satisfaction of a separate deductible/SIR before
the insured may recover. Will an insured
with the foresight to purchase continuous
insurance coverage have to satisfy multiple deductibles/SIRs before accessing the
benefits of any policy?
As a general rule, when multiple policies are triggered by a single “occurrence,”
the insured has the right, under Texas law,
to choose which policy will respond to the
claim, including whichever policy has the
lowest deductible. Nonetheless, in the
event that the insurer, chosen to respond
to a given claim, exercises its right of subrogation to pursue coverage from so-called
“other insurance,” the question remains
whether the insured is required to satisfy
one or more deductibles or SIRs, to which
that “other insurance” may be subject.
Fortunately, however, there are other
means to protect the insured against
attempts by insurers to “stack” deductibles or SIRs. Many policies do not specify
the means by which a deductible or SIR
must be satisfied. Absent an express limitation, the insured may be able to satisfy
the requirement of a retention or deductible under one policy using the proceeds
of another policy.
There are, for example, a number of
decisions from courts in California and
Florida concluding that unless a policy
unambiguously requires exhaustion of
a deductible or SIR by the insured, the
insured may satisfy such SIR or deductible with so-called “other insurance” also
implicated by the same occurrence or
loss. At least one Texas court has similarly concluded that an insured “may satisfy the self-insured retention by making
its payment in whatever form it wants.”
ANNUAL CONFERENCE OF THE PROFESSIONS
“Professional Ethics and Social Networking: Like?”
Pak-Mor Mfg. Co. v. Royal Surplus Lines
Ins. Co., 2005 U.S. Dist. LEXIS 34683, at
*29–30 (W.D. Tex. Nov. 3, 2005).
Alternatively, when coverage is
afforded by two policies with differing
deductible/SIR obligations, the deductible under one policy may be allocated
between those policies providing coverage. Those authorities permitting allocation of a deductible or SIR reason that an
insurer whose coverage obligations are
prorated is not entitled to demand the
payment of a full deductible or SIR.
Still other authorities require that
the insurer with the smaller of the two
deductibles/SIRs pay the amount of the
larger deductible, with any excess loss
apportioned between both carriers. In
this instance, the insured is required to
pay only the cost of the smaller deductible or SIR.
However, because the deductible or
SIR obligation under many liability and
property policies is triggered by an “occurrence” or “accident,” avoiding the “stack-
ing” of SIRs or deductibles depends on
the existence of a single “occurrence.”
Whether a loss arises from one or more
“occurrences” depends, in part, on the
subject policy’s definition of “occurrence.”
Some policies specify that continuous or
repeated exposure to substantially the
same general conditions shall be deemed
to be one “occurrence.” Otherwise, Texas
courts apply a “cause” analysis to determine whether a set of facts involves one
or more “occurrences” by determining the
number of events that “cause” the underlying loss or liability.
Provided that a given loss or claim
involves only a single “occurrence,” an
insured should never be required to pay
more than one deductible or self-insured
retention. To conclude otherwise would
deny the insured the benefit of the insurance purchased and violate principle that
HN
more should never be less. Micah E. Skidmore is an associate at Haynes and Boone, LLP. He
can be reached at [email protected].
NEED BILLABLE HOURS?
Join the DBA Lawyer Referral Service
Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
Speaker: Carrie James, Ph.D., Harvard Graduate School of Education
Ethics 3.00
Friday, October 14, 8:00 to 11:45 a.m. at Prothro Hall at SMU School of Law.
For more information or to register, log on to
www.smu.edu/Provost/Ethics/NewsRoom/Events/COP.aspx.
Sponsored by the DBA, the Dallas County Medical Society, U.T. Southwestern Medical
Center, and the SMU Maguire Center for Ethics and Public Responsibility.
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Judicial Profile: Hon. Jeanine Howard
by Philip Ray
Judge Jeanine Howard is grateful for
her job, loves what she does and is hopeful that she does it well, but her path to
the bench is far from traditional.
Judge Howard attended St. Thomas
Aquinas Catholic School for eight years
before transferring to Hillcrest High
School. After graduation she moved
to Denton to study sociology at North
Texas State University (now called
UNT). She worked at Sears, then at
First Denton National Bank before moving back home to Dallas.
After nine months of training at
Executive Secretarial School, she
worked as a legal secretary before getting a spot as a secretary at General
Dynamics/Lockheed Martin. The aeronautical giant allowed for tuition reimbursement, funding her attendance at
TCU night school where she was quite
proud of her straight A’s and cum laude
status as she earned a degree in Business
Management.
She then went on to SMU Law
School, where she was Order of the Coif.
During her third year, she met her husband Steve. They married in October of
’87 and had their first child, Holly, the
following year.
Judge Howard initially practiced
civil law for more than two years focus- sometimes borrowing a good friend’s
ing on deposition preparation and conference room if necessary. A large
research. When she found out the Dis- portion of her work involved appeals
trict Attorney’s office was hiring in the with the client staying as a guest of the
spring of 1990, she longed for the oppor- State. By running a virtual office, she
tunity to get into the courtroom. When could spend time with her family on her
none other than John Vance called own schedule.
With both girls near graduation in
her at 8:00 p.m. one night to offer her
2005, Judge Howard began
the job, she thought it was
exploring the possibility of
some kind of practical joke.
becoming a judge. Having
She accepted the job and
experience in private pracwhile she was in the Distice, experience in the District Attorney’s office her
trict Attorney’s office, and
second daughter, Theresa,
an understanding of appelwas born.
late law and trial work,
As her daughters grew,
she felt uniquely situated
she longed to spend more
to serve the people of Daltime at home and found
las County. In her time on
a way to strike a balance
the bench, she believes she
between motherhood and
has.
the practice of law. She
She’s most proud of her
had seen and experienced
First Friday program. At any
some of the pitfalls of
given time, between 10 and
office dynamics early on in Judge Jeanine Howard
15 young offenders, (ages
her career and wanted to
streamline her professional life to make 17 to 22) who lack structure or parental
more room for her personal life. She guidance, meet directly with the judge
had typed her way through law school; once a month while on supervision in
so preparing her own documents came addition to their other obligations. Revnaturally, eliminating the need for staff erend Ronald Wright assists her in reachassistance. Rather than opening an ing these wayward young people to help
office, she met clients at their conve- align their intentions and keep them
nience—sometimes at a Starbucks and succeeding while on probation. Her goal
IOLTA Prime Partners
for them, and for all those on probation,
is to correct whatever behavioral patterns that led to putting the defendant
squarely in the lights of law enforcement. While meeting financial obligations is important, she will often reduce
recommended fines and supervision fees
(for cause) to keep the focus on reporting and participating in probation. She
would never want poverty to interfere
with a person successfully turning their
life around. She always tells the people
in her court, “Don’t ever let money be a
reason you don’t report.”
In her courtroom, Judge Howard prefers all pleas on the record, lawyers and
clients dressed for court in a respectful
way, and please, no cell phones.
She enjoys the camaraderie of the
legal community and enjoys having lawyers that appear in her court stop by to
get to know her better. If you do, you may
find she shares your interests in authors
James Patterson or Mary Higgins Clark.
Ask her about her treasured willow tree
and you will find yourself engaged in a
conversation with an avid gardener who
enjoys taking the time to hand water her
plants as a way to unwind after a long
day at the Crowley courts building.
Philip Ray is a criminal law attorney with Law Office of Philip
D. Ray. He can be reached at [email protected].
You are Invited!
“Banking on Justice”
Dallas Women Lawyers Association Judicial Reception
The Supreme Court of Texas requires attorneys to place IOLTA accounts at eligible banks—those that pay
interest rates comparable to other similarly situated accounts.
October 11, 5:30 to 7:30 p.m. at
The Mansion on Turtle Creek, 2821 Turtle Creek Blvd., Dallas
To see a list of committed banks or for more information on Prime Partners,
contact the Texas Access to Justice Foundation at www.teajf.org or 512-3209-0099.
2011 Louise B. Raggio Award to be presented.
THE CATHOLIC FOUNDATION
Presents
T HE A DVISORS S ERIES
For Estate and Wealth Management Professionals
“Wealth Transfer Developments with Practical Significance
to Everyday Estate Planning”
Program will be modified to fully reflect any legislative developments affecting the estate
and gift taxes and income taxes affecting wealth transfer planning
Jeffrey N. Pennell
Richard H. Clark Professor of Law, Emory University, Atlanta, Georgia

December 7, 2011
The Belo Mansion, 2101 Ross Avenue, Dallas
7:30 a.m. Breakfast
$75 per person
8:00 a.m. Program
2 Hours of Continuing Education Credit Available
Presenting Sponsors:
Carter Financial Management
Gardere Wynne Sewell LLP
For more information and to register, visit www.catholicfoundation.com
Oct o b e r 2 0 1 1 Dal l as Bar A ssoci ati on l Headnotes 15
Vision, Leadership & Commitment to Access to Justice
continued from page 1
them. In their cases, child support is established, access and visitation to children is
respected, unscrupulous landlords are punished, and homes are saved from wrongful
foreclosure. This is all done through their
support of the hard work of volunteer attorneys who use their time and talents doing
only what lawyers can do—keep the justice system alive and accessible to others.
Justice Deborah Hankinson, of Hankinson Levinger LLP, is another one of
these leaders. As a former Justice on the
Texas Supreme Court, she worked tirelessly on a statewide and national level
to champion the cause of legal aid to the
poor. Justice Hankinson is, again, leading
by example by making a kickoff donation
to the Equal Access to Justice Campaign of
$25,000. A donor since 2003, Justice Hankinson has donated $191,000 to the campaign over the years.
Because of her deep commitment to the
issue of equal access to justice, Justice Hankinson was one of the driving forces behind
the creation of the Texas Access to Justice
Commission, which works to ensure that
low-income Texans have access to justice
in civil legal matters. She has been instrumental in obtaining millions of dollars in
funding for legal aid to crime victims. And,
she has been a constant and true friend of
the Equal Access to Justice Campaign.
AT&T has also stepped forward
to support the 2012 Campaign with a
$15,000 donation to the Campaign.
The AT&T Legal Department, under
the leadership of Wayne Watts, has also
developed its pro bono contribution.
AT&T in-house attorneys staff legal
clinics and represent pro bono clients.
They are setting the bar for all in-house
lawyers in Dallas.
The law firm of KoonsFuller, led by
CEO and Managing Partner Ike Vanden Eykel, has also made a kickoff donation to the 2012 Campaign of $10,000.
KoonsFuller is one of the original donors
to the campaign in 1994, and the firm has
donated $252,500 since then. The attorneys of KoonsFuller, a family law firm, have
also played an important role in mentoring
and training volunteer attorneys as well
as representing pro bono clients. Through
their contributions, DVAP has been able
Celebrating 29 Years!
DVAP’s Pro Bono Awards Celebration
Presented by the Dallas Volunteer Attorney Program
Wednesday, October 26, 5:30 to 7:30 p.m.
The Pavilion at the Belo Mansion
Complimentary hors d’oeuvres, beer & wine
Please RSVP by October 21 to [email protected].
to provide many pro bono clients with the
same caliber of service that KoonsFuller
clients would receive.
Mike McKool, of McKool Smith,
also kicked off this year’s campaign with
a $10,000 gift. Mr. McKool, Founder and
Chairman of McKool Smith, has donated
to the campaign since it started in 1994.
His total contribution to the Equal Access
to Justice Campaign is $192,800.
The generous and thoughtful donations
of our Campaign kickoff leaders will make
an important contribution to DVAP’s ability to provide access to justice to the poor
in Dallas during the coming year. DVAP
has a tough order to fill. Twenty-five percent of the Dallas County population or
611,168 people qualify for free legal aid
from DVAP. This number has grown two
and a half times over the last decade. There
are an additional 423,276 people in Dallas
County who fall within DVAP’s eligibility
guidelines and could potentially qualify for
legal help after a review of expenses such
as rent or mortgage payments and child
care. To qualify for legal help, an individual must not have income of more than
$13,612 per year, and a family of four must
not have income of more than $27,938 per
year.
The Dallas Volunteer Attorney Program is about helping ordinary people with
real world problems and making the dream
of access to justice a reality. Andy Payne,
Jim Mitchell, Justice Deborah Hankinson,
the AT&T Legal Department, KoonsFuller and Mike McKool are leading our
charge of helping poor Americans seek
justice under law.
For more information on the Campaign
or the Dallas Volunteer Attorney Program,
please contact Alicia Hernandez at (214)
220-7499 or [email protected].
Recognition levels and donor benefits are
available. In addition, all individual donors
at the $1000 level and above and all firm
and corporate donors at the $5,000 level
and above will be recognized in an ad in
the Dallas Morning News during the week
of December 19, 2011, and in Texas Lawyer
HN
in January or February 2012. Alicia Hernandez is the director of the Dallas Volunteer Attorney
Program and the DBA director of community services. She can
be reached at [email protected].
Save the Date!
PRO BONO WEEK 2011
Monday, October 24 to Friday, October 28
A free CLE will be held at lunch each day at Belo.
DVAP Pro Bono Awards—Wednesday, October 26—Belo—5:30-7:30 p.m.
For more information, contact Jigna vyas Gosal at (214) 243-2247 or [email protected].
Sponsored by the DBA Pro Bono Activities Committee and the Dallas Volunteer Attorney Program in conjunction
with the ABA National Pro-Bono Celebration.
After Hours Mark Shank
Finding His Balance
By Caleb D. Trotter
Every attorney knows that finding
a healthy balance between work and
the rest of our lives can be a difficult
undertaking. Albert Einstein once said
that “[l]ife is like a bicycle. To keep your
balance you must keep moving.” If one
truly must keep “moving” to find a balance in life, Gruber Hurst Johansen Hail
& Shank LLP partner and renowned
Dallas litigator Mark Shank has found
a perfect way to keep his—literally and
figuratively.
A commercial litigator for over 30
years, Mark is no stranger to the pressures that come along with a career in
law. He is Board Certified in Civil Trial
Law, as well as Labor and Employment
Law, by the Texas Board of Legal Specialization. Mark also has a lengthy
record of leadership, most notably serving as the president of both the Dallas Young Lawyers Association and the
Dallas Bar Association. Mark has been
selected to the American College of
Labor Lawyers and the American Board
of Trial Advocates, and has been named
as one of the Best Lawyers in America
for 17 straight years. With such a profound involvement in the community,
on top of a demanding legal practice
and being a husband and father, it is
a wonder that Mark finds the time to
indulge his other life passion: barefoot
water-skiing.
When he was 12 years old, Mark
moved with his parents to a small community in central Missouri called Lake
of the Ozarks. It just so happened that
his parents’ business was right next to
the local water ski show. Mark learned
how to ski barefoot at the age of 13, and
progressed so quickly that soon he was
the featured barefoot skier in that local
ski show.
After graduating from the University
of Missouri-Columbia School of Law,
Mark moved from Missouri to Texas to
begin his legal career. Like many others,
Mark soon lost touch with his beloved
pastime, and nearly 12 years went by
before he picked it up again. Over the
years Mark’s self-professed “need for
speed” has taken him from St. Louis, Missouri, to Lake Travis and Lake Texoma,
all the way to a private lake in Sun Valley, Idaho, and even skiing with World
Freestyle Champion Andrew DeVillars.
Mark explained the total release and
focus that is needed to barefoot ski: “We
spend a lot of time bouncing from issue
to issue. There is a lot of stress associated with our lives, and barefoot ski-
ing is so difficult … if you change your
balance point just a tiny bit, down you
go. You can’t be thinking about the law
when you’re barefoot skiing.”
Mark keeps his balance not only
on the water, but also in life—a strong
HN
example for all of us.
Caleb Trotter is an associate at Munsch Hardt Kopf & Harr,
P.C. He can be reached at [email protected].
CIC School Supply Drive
Benefit for Jobseekers
The Dallas Bar Association now
offers an online Career Center open to
attorneys who are new to the profession
or looking to make a career transition,
as well as job opportunities for other
positions (paralegal, law firm administrator, legal secretary) available in the
Dallas area legal community. The DBA
Career Center, powered by Job Target,
is now available at www.dallasbar.org/
career-center.
Employers now have a way to reach
Dallas area attorneys—and the more
than 10,000 members of the DBA.
Mark Shank
With our online Career Center you can
post job openings, review resumes and
create “employer accounts” to manage
online recruiting efforts.
This outstanding resource allows
attorneys and legal professionals seeking jobs to post resumes and create a
“jobseeker” account that manages all
their activities. Users will also be able
to conduct comprehensive job searches
and receive email alerts about openings
in specific areas of interest.
Log on to www.dallasbar.org/careercenter to begin your job search.
From Yellow Pages
to Facebook Pages
The Community Involvement Committee hosted a school supply drive to collect supplies for
W.W. Samuel High School in Dallas. The result was a success! Christina McCracken, of Gordon & Rees, LLP, is the Committee Co-Chair and Paul Herring, Attorney at Law, was Chair of
this project. A big thanks to all who participated.
Marketing Has Changed…
And You Should Too
Join the Dallas Bar Association and Androvett Legal Media & Marketing
for a free information-packed seminar on building your practice with proven
marketing strategies and tactics.
Thursday,
October 6
8am-12pm
Belo Mansion
3.5 hours Texas CLE credit provided
(including 1 hour of ethics CLE)
Marketing’s Shifting Paradigm - You’ll get a sense of both the
technology drivers and the ways you can put them to use in
building your law practice.
Branding for Law Firms - Learn how law firms are using simple
marketing principles to set themselves apart from the competition.
Online Presence - From websites to social media, you’ll gain a
better understanding of how these important digital resources can
drive a practice.
The Right Tool for the Job - See how your message and your target
can drive where you spend your money and devote your time.
The Ad Rules - A Panel Discussion with Gene Major, Director of
Advertising Review for the State Bar of Texas; Pat Rafferty, State Bar
Ad Rules Committee member; a law firm marketing director and
law firm principal. Moderated by former Ad Rules Committee
Chairman Mike Androvett.
Is Pleased to Announce
Presented by the award-winning team of media professionals at Androvett Legal Media & Marketing
MEL WOLOVITS
Mike Androvett
Verdell Christophersen
Scott Parks
Pat Rafferty
Zack McKamie
Founder, Androvett Legal
Media & Marketing
Creative Director
Vice President of Marketing
and Client Service
Director of Advertising
/ Marketing
Marketing Project
Manager
Free to DBA Members. Non-members $35.
To RSVP or for more information, contact
DALLAS | HOUSTON
Jessica D. Smith
(214) 220-7477
[email protected]
Dallas 214.559.4630 | Houston 713.383.0090 | androvett.com
Has Joined our Firm As
Mediator
4514 Cole Avenue - Suite 1450 - Dallas TX 75205-4181
(214)528-1411 - Fax (214)528-2070 - Vitae at MediateNegotiate.com
[email protected] | [email protected]
October 2011 Focus
Is Deposition Perjury Subject to the Court’s Contempt Power?
by Robert Gilbreath and Richard Smith
This May, the Texas Supreme Court
issued its opinion in the case of In re Coy
Reece, 341 S.W.3d 360 (Tex. 2011). As
counsel for the opposing parties in the
mandamus, we disagree with one another
on the court’s resolution of the case. Nevertheless, we agree it is an opinion that
litigators will be citing for years to come
on the issues of a trial court’s authority to
hold a party in contempt and the appellate court’s authority to review trial court
decisions by mandamus.
In Reece, the Supreme Court considered whether perjury occurring outside the court’s presence is punishable as
contempt. Reece was held in contempt
for lying during his deposition and sentenced to jail time. Reece argued that
perjury is not punishable as contempt
unless it obstructs the court’s operations
and that his perjury did not do so.
Previously, no Texas court had held
that perjury had to obstruct or impede
the court. But Texas courts had imposed
that requirement for constructive contempt, i.e., contempt occurring outside
the court’s presence. Thus, the Supreme
Court concluded that Reece’s deposition perjury was not contempt unless it
obstructed the trial court in the performance of its duties.
Federal courts have long required
proof of obstruction before perjury may
be punished as contempt. The U.S.
Supreme Court explained, in In Re
Michael:
“All perjured relevant testimony is
at war with justice, since it may produce
a judgment not resting on truth. Therefore, it cannot be denied that it tends
to defeat the sole ultimate objective of
a trial. It need not necessarily, however,
obstruct or halt the judicial process. For
the function of trial is to sift the truth
from a mass of contradictory evidence,
and to do so the fact finding tribunal must
hear both truthful and false witnesses.”
The Texas Supreme Court agreed, noting that it was “loath to contemplate a
system where litigants and their attorney
Ken Burns at Belo
scour transcripts searching for any misstatement for the sole purpose of accruing the opponent of contempt and ultimately securing the opponent’s confinement.”
The court stressed, however, that
while a trial court cannot imprison a
litigant for perjury unless the false testimony obstructs the court in the performance of its duties, trial courts retain a
wide array of sanctions to deter and punish such discovery abuse. Finding that
Reece’s perjury did not impede the trial
court in the performance of its duties,
the Supreme Court ruled that holding
him in contempt and confining him to
jail was improper.
But even if the trial court had erred
by holding Reece in contempt, did the
Texas Supreme Court have jurisdiction to address it? In cases where a litigant has been jailed for contempt, Texas
courts have held that the way to seek
relief is through a writ of habeas corpus. But while the Supreme Court has
some habeas jurisdiction in civil cases, it
is limited to cases where the party has
been jailed for “violation of an order,
judgment, or decree previously made,
rendered, or ordered by the court or
judge in a civil case.” Tex. Gov’t. Code
§ 22.002(e).
Although Reece admitted his perjury,
he had not violated any previous order by
the trial court. Thus, the only court with
jurisdiction to issue habeas corpus was
the Court of Criminal Appeals. Unfortunately for Reece, that court declined
to exercise its jurisdiction because the
underlying lawsuit was a civil case.
The Supreme Court recognized that
it did not have authority to free Reece
through habeas corpus. Nevertheless, the
Court agreed that mandamus was proper
because Reece had been unable to obtain
habeas corpus review from the Court of
Criminal Appeals. Thus, the Legislature’s limitation on the Supreme Court’s
habeas jurisdiction did not impede the
court’s ability to achieve the same result
by issuing a writ of mandamus instead.
The decision in Reece is a clear indication of the Supreme Court’s expanded
willingness to exercise its mandamus
jurisdiction in recent years. A writ that
was once formalistic and constrained has
become more “practical and prudential.”
See In re Prudential Ins. Co., 148 S.W.3d
124, 136 (Tex. 2004). For litigators, clients, and even trial judges, the lesson is
that almost any ruling is open to mandamus review if the issue is sufficiently
HN
interesting or compelling.
Robert Gilbreath is a partner with Hawkins, Parnell, Thackston & Young and is board certified in civil appeals by the
Texas Board of Legal Specialization. He can be reached
at [email protected]. Richard Smith is a partner at Lynn Tillotson Pinker & Cox. He can be reached at
[email protected].
CONTRARY TO
POPULAR BELIEF
LAWYERS
HAVE HEARTS
TOO
The Dallas Bar Association, DBA Business Litigation Section and the World Affairs Council of
Dallas Ft. Worth hosted documentary film maker Ken Burns at the Belo Mansion on August
17. More than 650 people attended to hear about his new film Prohibition. After a short
preview of the film, Talmage Boston, of Winstead P.C., interviewed Burns about the project.
0,000.
t of a heart attack is $76
The average lifetime cos
needs.
r
you
fit
t
bes
disability solutions that
Get protected. Health and
www. Sbotit .com
bers of the Bar
Exclusively protecting mem
40 years.
rly
nea
for
ilies
fam
ir
and the
Ted M. Akin
Voted # 1 Best Individual Mediator/Arbitrator in Dallas - Texas’ Best Survey
H
H
H
H
H
H
H
H
3023 Hester Avenue
Dallas, Texas
H
75205-3525
(214) 821-6370 H
www.judgeakin.com
4,000+ Cases Mediated
Full-Time Mediator for 21 Years
90%+ Settlement Rate
35 Years of Judicial Experience
Justice Retired, 5th Court of Appeals
of Texas
Member - National Academy of
Distinguished Neutrals
Member - The Association of Attorney
Mediators
Distinguished Mediator - Texas Mediator
Credentialing Association
Panel - FINRA Dispute Resolution
Panel - CPR: International Institute for
Conflict Prevention & Resolution
Mediator H Arbitrator H Special Judge
18 H e a d n o t e s l D a l l a s B a r A s s o ciation In the News
October 2011
October
FROM THE DAIS
Sally Helppie, of Vincent Lopez
Serafino Jenevein, P.C., was the key
presenter for the El Paso Lawyers for
the Arts program held during the Plaza
Classic Film Festival.
KUDOS
Seema Tendolkar, of Wick Phillips Gould
& Martin, LLP, has been appointed to
Board of Captain Hope’s Kids, a charitable organization to support homeless children in Dallas.
Kathryn Murphy, of Goranson, Bain,
Larsen, Greenwald, Maultsby & Murphy, PLLC, spoke at the annual Family
Law on the Front Lines course in Austin.
Leslie R. Chaggaris and Timothy L.
Evans, of Thompson & Knight LLP, have
been named Fellows of the Dallas Association of Young Lawyers (DAYL) Foundation.
Pat Cowlishaw, of Jackson Walker
L.L.P., moderated a panel discussion
at the North Dallas Chamber of Commerce’s Energy Series. John Holden,
of the firm, spoke at the State Bar of
Texas’ 37th annual Advanced Family
Law Course in San Antonio.
Marshall J. Doke Jr., of Gardere Wynne
Sewell LLP, has been appointed Chair of
the Standing Committee on Audit following his re-election by the American
Bar Association Board of Governors to a
three-year term.
Chad Baruch, of The Law Office of
Chad Baruch, moderated a panel on
Legal Writing, with panelists Magistrate Judge Irma Ramirez and Judge
Albert Diaz of the U.S. Fourth Circuit Court of Appeals, at the Hispanic
National Bar Association Annual Convention in Dallas.
Leo J. Jordan, of Lewisville, Texas, was
the recipient of the American Bar Association Tort Trial & Insurance Practice Section’s inaugural James K. Carroll Leadership Award, for outstanding leadership
qualities and service to the section.
Julie E. Blend has become a Shareholder
at Dealey, Zimmermann, Clark, Malouf
Criminal Justice Forum
Free for All!
Speakers: Barry Sorrels, Hon. Craig Watkins, Hon. Cathy Cochran
And more!
MCLE 6.00, including Ethics 1.25
Friday, October 21, 8:30 a.m. to 3:00 p.m. at Belo.
For more information or to register, log on to www2.dallasbar.org/events/register/crimjust_signup.asp
For questions, contact [email protected].
& Blend, P.C.
Thorne & Carr PLLC as Senior Counsel.
Joseph P. Griffith, of Greenberg Traurig,
LLP, has been elected president of the
Dallas Chapter of the Federal Bar Association.
Angela M. Lopez has joined Badmus Law
Firm, PLLC.
John M. Jackson, of Jackson Walker
L.L.P., was reappointed to the Cedar Hill
City Council’s Community Development
Corporation Board for a two-year term.
Grover Hartt, III, a Senior Litigation
Counsel with the Department of Justice
Tax Division based in Dallas, has received
a Presidential Rank Award from President
Obama. These awards are the highest that
can be given to senior government executives and professionals and recognize
achievements on a national level. The
award was conferred upon Hartt not only
for his successes in court, but also his frequent speaking and writing activities.
ON THE MOVE
Courtney Barksdale Perez has joined
The Stafford Law Firm as Of Counsel.”
Greta A. Matzen has joined Taber Estes
John F. Guild has joined Gruber Hurst
Johansen Hail Shank LLP as Associate.
Cathy Wi Richardson has joined the firm
Scheef & Stone, L.L.P.
P. Caleb Patterson has joined Constangy,
Brooks & Smith, LLP.
Chais L. Sweat has joined Dykema Gossett PLLC as Associate.
Stephanie N. Clouston has joined Alston
& Bird LLP as Partner.
Roger J. Allen has joined Holmes, Diggs
& Eames P.L.L.C.
Mel Wolovits has joined BURDIN Mediations as Mediator.
News items regarding current members of the Dallas Bar Association are included in Headnotes as
space permits. Please send your announcements to
Judi Smalling at [email protected].
BLOOD DRIVE!
Monday, October 31 | 9:00 a.m. to 4:00 p.m.
The Belo Mansion
Please have a good meal, drink plenty of fluids before
your donation, and bring your photo ID.
Reserve the best time for you and your firm today.
Visit www.dallasbar.org/blooddrive.
Questions call Michelle Dilda at (214) 220-7474
October 2011 Classifieds
October
OFFICE SPACE
Dallas Centre Suites. Executive
and virtual suites with breathtaking
views of Dallas on the SW corner of
Greenville Ave. Services include full
time receptionists with call screening
and client greeting with 24/7 onsite
building security. Administrative, Notary,
Paralegal, and Secretarial Support/
Services provided as needed. Beautifully
furnished Conference Rooms, Day Suites
and Training Room, which allow you to
set up and operate your business in an
elegant and professional environment.
For leasing information contact Tanya
Rodriguez at (972) 479-8800 or at
[email protected].
Second month free with a 12 month
contract!
Time is Money! Centrally located 3
miles from County Courthouse & 2 miles
from downtown! Quality office space
starting at $933/mo. for 622 SF., including
electricity and free garage parking. 9 miles
to Love Field Airport. Minutes to DART
rail, Baylor University Medical Center,
Dallas Arts District, SMU, Oak Lawn,
West Village. Uptown Tower. 4144 N.
Central Expressway. (972) 490-7348.
Campbell Center I: AV rated law firm has a
window office (15x15) for sublease in Class
A Bldg. Space is new with exceptional finish
out and elevator exposure. All amenities
included. Call Joy (214) 361-1262.
North Dallas. Law firm located at Lincoln
Centre has two partner size offices, one
associate size office and cubicles available.
Easy access to Tollway and LBJ, two
conference rooms, break room/kitchen,
phones, copiers, postage machine, and
fax. Email: [email protected] for
more information.
Office space available within small real
estate law firm located at 4054 McKinney
Avenue. Shared conference and break
room, copier, DSL & phone equipment
are available if needed. No long term
commitment and a total monthly rate
of $650.00. For inquiry, please call (214)
520-0600.
Tired of sterile office buildings and
elevators? One large office ($1,200)
with fire place and one small office
($600) available (together or separately)
in historic home in Uptown. These
unique offices have great client appeal.
Receptionist service and conference
room available. Picture of home at
www.texascrimlaw.com. Call Mick
(214-720-9552).
Free Rent-SMU, Yale/Central. Partner
office and secretarial space. Beautiful
12th floor view of SMU/Bush Library/
Park Cities. Professionally decorated,
beautifully furnished. Overflow business.
Receptionist, elegant conference room,
kitchen, DSL, door signage, restaurant,
bank, parking, DART. Office $1,095.00/
mo., secretarial space $300.00/mo. (214)
369-9888.
Office Space: Downtown Dallas Minutes from Courthouses. Two office
spaces available. Perfect for attorney and
legal assistant/secretary. One large two
window office and one inside office space
with phone system, conference room,
reception area, kitchen, Internet, copier,
fax, 24-hour access and parking. Contact
(214) 651-8144.
North Dallas Tollway office spaces.
Hardwood floors and mahogany paneled
walls in common areas. Two available,
one with adjacent mahogany secretarial
carrel. Amenities: three conference
Teach Dallas ISD Students –Nov. 14-18
Volunteers are needed to teach in secondary
classrooms this fall. Times and class sizes vary.
Curriculum is available. Deadline to sign up is Nov. 1,
please email [email protected].
rooms, copier, postage meter and two
kitchens. Receptionist services available.
Please call Kristi at (972) 934-4100.
POSITION AVAILABLE
Dallas boutique business, commercial,
bankruptcy, and construction litigation
firm seeks experienced litigator. Candidate
must have first chair trial experience and
have taken expert deposition. Stable
work record necessary. Compensation
negotiable. Some portable hourly
clientele and involvement in one or more
associations a plus. Firm offers first-rate
office environment. This is an excellent
opportunity for the right attorney.
Respond to: [email protected].
Advancement
Officer
Specialist
(Director Of Planned Giving) - Job ID#
900034 – Southern Methodist University
- (Salary commensurate with experience
and qualifications). The Director of
Planned Giving, in the Office of Planned
and Endowment Giving, supports the
University’s fundraising efforts by serving
all the schools and units, regional offices,
and corporate & foundation relations
in directing the University’s efforts
to build a planned giving program,
including both current and deferred
gifts of non-cash assets by managing a
portfolio of planned giving prospects,
overseeing Planned Giving program
development and management, training
and advising colleagues, managing
stewardship of SMU’s Dallas Hall
Society and the SMU Planned Giving
Council. Bachelor’s degree is required.
An Advanced degree is preferred.
A minimum of five years of professional
work experience is required. Some work
experience that includes developing and
maintaining relationships is also required,
preferably in evaluating, analyzing and/
or recommending charitable giving
options and/or in service to constituents
who are potential charitable giving
prospects. The ideal candidate will have
experience in a complex institutional
environment
where
coordination,
teamwork, and communication are of
paramount importance. Experience that
includes an established track record of
closing on a broad range of planned gifts
or as an estate and gift planning or trust
advisor, is preferred. Work experience
that includes working in development
in higher education or for a nonprofit is
desirable. Program or project management
that includes budget development and
oversight and/or supervisory experience of
staff is preferred. Experience that includes
volunteer committee management is a
plus. Some travel is required. Candidates
must submit a cover letter for full
consideration. For a full job description,
and to apply, visit www.smu.jobs. SMU
is AA/EO employer committed to
excellence through diversity.
Palmer & Manuel, LLP, a 13-attorney
firm in Campbell Centre, seeks one
experienced business litigation and
one experienced family law attorney.
Applicants should have substantial
portable business. The firm’s compensation
formula allows attorneys to keep a
substantial portion of their fees. See the
firm’s website at www.pamlaw.com. Please
reply to [email protected].
SERVICES
Mexican Law Expert - Attorney, former
law professor testifying since 1997 in
U.S. lawsuits involving Mexican law
issues: FNC motions, Mexican claims/
defenses, personal injury, moral damages,
contract law, corporations. Co-author,
leading treatise in field. J.D., Harvard
Law. David Lopez, (210) 222-9494.
[email protected].
Diamond And Gold Buyer. Buying all
types of Diamonds, Immediate Cash Paid.
Consignment terms available @ 10-20%
over CASH. For consultation and offers
please call (214) 739-0089
Place Your Ad Here! For affordable
classified advertising rates call Judi
Smalling at (214) 220-7452.
FREE FINANCIAL LITERACY TOWNHALL MEETING
FEATURED SPEAKERS INCLUDE:
• Rosa Rios, U.S. Treasurer
• Ilyce Glink, author
Wednesday, October 19, 11:30 a.m. to 1:30 p.m., at Belo
Open to the public.
Co-Sponsored by the DBA Public Forum Committee and CCCS of Greater Dallas.
DBA Annual Meeting
The Annual Meeting is Friday, November 4 in the Pavilion.
A reception begins at 3:30 p.m. and the meeting begins at 4:00 p.m.
If you wish to run for a position, you must contact Cathy Maher [email protected]
(214) 220-7401, no later than Thursday, November 3 at 5:00 p.m. to receive information about
service on the Board. You are required to complete a biographical form prior to the meeting.
Following the meeting all DBA resident members with an e-mail address on file will receive an
online ballot. If you wish to vote online, please make sure the DBA has your e-mail address by
visiting the DBA website at www.dallasbar.org, or call Kim Watson at (214) 220-7414 before
5 p.m. on Thursday, November 3, 2011.
Please update your spam software to allow the e-mail ballot to enter
your inbox from [email protected].
If you receive an online ballot but wish to vote by hard copy, please contact Cathy Maher at
(214) 220-7401 to request that a paper ballot be mailed to you. Only those resident members without an e-mail address on file with the DBA will be mailed a hardy copy of the ballot.
PARKING OPTIONS AROUND BELO
Please plan to arrive at your noon meetings early.
Parking is limited at Belo during the noon hour.
To view other parking options in the area, log on to:
www.thedallasartsdistrict.org/plan-your-visit/parking/index.htm
YOUR CAUSE
In 1983, Judge Merrill Hartman led a group of Dallas visionaries
to create the first volunteer attorney program in North Texas.
Today, the project is known as DVAP, the Dallas Volunteer
Attorney Program.
DVAP attorneys help families living at or below the Federal
poverty guidelines who cannot afford an attorney in civil cases.
In honoring her friend, Lisa Blue said of Judge Hartman, “For
Merrill, ‘Justice for All’ was not a slogan, it meant access to the
Courts started with access to a lawyer.”
This year, funding for DVAP faces uprecedented challenges due
to state budget cuts, lower interest rates on IOLTA accounts, and
reductions in institutional giving.
Among the many remarkable projects organized by you, the
members of the Dallas Bar Association, this may be the most
important collective effort we endeavor.
As we embark on the 2011-2012 Equal Access to Justice
campaign, please consider helping our cause. For those of you in
leadership positions, please educate your firm members about this
important effort and consider a coordinated giving campaign. To
the many champions of DVAP who have given so generously in the
past, thank you for setting our example. You have taught us that
DVAP is what we do, that DVAP is our cause.
For more details and to donate: www.dvapcampaign.org
Or contact Alicia Hernandez - (214) 220.7499
Email: [email protected]
Rob Crain
EAJ Co-Chair
Chris Lewis
214.522.9404
www.CrainLewis.com

Texas Legislature Codifies the Attractive Nuisance Doctrine

Transcription

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