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Secretary Cascos reminds voters of Feb. 1 Registration Deadline

Today, Texas Secretary of State Carlos Cascos reminded Texans that February 1 is the deadline to register in time for the March 1 Primary Election.
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Top 10 from Texas Bar Today: Kerning, Structured Data, and E-Discovery

Originally published by Joanna Herzik.

To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. Writing Wednesday: Let’s Go Kerning.David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

9. Should you get a social media prenup?Laura Dale of Laura Dale & Associates, P.C. @DaleFamilyLaw in Houston

8. The One Thing Your Law Firm Website Needs But is Probably Missing: Structured DataLisa Hopkins of Stacey E. Burke P.C. @StaceyEBurke in Houston

7. Privacy in the Work PlaceThomas J. Crane @tomjcrane of Law Office of Thomas J. Crane  in San Antonio

6. Threats of Criminal Prosecution Can Constitute Duress in Texas Divorce CaseMcClure Law Group @McClureLaw in Dallas

5. Hospitals Seek Business Interruption Insurance Relief Amid PandemicJeff Raizner of Raizner Slania LLP @raiznerslania in Houston

4. E-DiscoveryJason B. Freeman of Freeman Law @FreemanLaw_PLLC in Frisco

3. Industry Custom Determines Who Pays for a Well EmergencyCharles Sartain and Rusty Tucker of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas

2. Jury Selection in Fatal Accident Case Sparks Batson Battle in Appellate CourtLyndon F. Bittle of Carrington Coleman Sloman & Blumenthal LLP @ccsblaw in Dallas

1. Working with Trial Counsel: The Dynamic Between Trial Lawyers and Appellate LawyersD. Todd Smith of Smith Law Group LLLP @dtoddsmith in Austin

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Joanna Herzik
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Should you get a social media prenup?

Originally published by On behalf of Laura Dale.

When your reputation is part of your brand or important to your business, you naturally want to protect it against harm. That means looking ahead to the future and anticipating potential problems — even if they aren’t something you particularly want to consider.

We’re talking about divorce. As much as you love your spouse (or intended spouse), relationships don’t always last. While prenuptial and postnuptial agreements have long been used to make high-asset and high-profile divorces easier, no modern agreement is complete without a social media clause.

Typically, social media clauses don’t focus their restrictions on specific websites (since the most popular platforms at any given moment can change). Instead, they focus on rules of behavior.

Whether fairly broad or highly detailed, they outline what kinds of posts are off-limits by each party. For example, your social media contract can say things like:

Neither spouse can publish any photos of the other in any state of undress Neither spouse can publish photos or posts that are likely to damage the other’s reputation Neither spouse can publish photos of the other that were taken without the other party’s consent (like when you are sleeping) Neither of you may publish photos where the other party is holding a drink, appears drunk or is holding drug paraphernalia Neither of you may post any disparaging comments about the other party’s sexual prowess or habits Neither party may publish negative statements about the other party’s parenting

Typically, infractions are handled by fines — which gives the contract some teeth. Your spouse may think twice, should you divorce, if a post that knocks your parenting and morals will cost them thousands.

Don’t let a divorce take you by surprise. Find out more about prenuptial and postnuptial agreements today.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: On behalf of Laura Dale
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Texas Law and Defamation

Originally published by Matthew Roberts.

To most, personal and business reputations are important.  Therefore, it may not surprise you to learn that the law protects such reputations through a cause of action known as defamation.  Under Texas law, written defamation, referred to as “libel,” is actionable by statute.  Conversely, oral defamation, referred to as “slander,” is actionable under common law.  This Insight provides additional background on the Texas cause of action of defamation.

Elements of Defamation.

Generally, defamation means “the invasion of a person’s interest in her reputation and good name.”  Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex. 2013).  To prove a successful defamation claim, the plaintiff must show the following:  (1) the defendant published a false statement; (2) that defamed the plaintiff; (3) with the requisite degree of fault regarding the statement’s truth; and (4) damages, unless the statement constitutes defamation per se.  Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017).

The Defendant Published a False Statement. 

Not all untrue communications are actionable.  Specifically, the law recognizes that an assertion of a subjective opinion does not necessarily represent a statement of fact and therefore will not support a defamation claim.  See California Comm. Inv. Grp., Inc. v. Harrington, 2020 WL 3820907 (Tex. App.—Dallas 2020).

Moreover, to support a claim for defamation, the plaintiff must show that the false statement was actually published to a third party.  For these purposes, a statement is published when it is communicated to a third party who is capable of understanding its defamatory meaning and moreover in such a way that the person did, in fact, understand its defamatory meaning.  Thomas-Smith v. Mackin, 238 S.W.3d 503, 507 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

The False Statement Defamed the Plaintiff.

In addition, the plaintiff must show that the false statement defamed the plaintiff.  A statement is defamatory if when considered in the appropriate context, “a person of ordinary intelligence would interpret it in a way that tends to injure the subject’s reputation and thereby expose the subject to public hatred, contempt, or ridicule, or financial injury, or to impeach the subject’s honesty, integrity, virtue, or reputation.  Neyland v. Thompson, 2015 WL 1612155 (Tex. App.—Austin 2015).  By contrast, a communication that is merely unflattering, abusive, annoying, irksome, or embarrassing,” in light of the circumstances, “or that only hurts a person’s feelings, is not actionable.”  MVS Int’l Corp. v. Int’l Advert Sols., LLC, 545 S.W.3d 180, 202 (Tex. App.—El Paso 2017, no pet.).

The Requisite Degree of Fault. 

The plaintiff must also prove a requisite degree of fault regarding publication of the statement.  Generally, the quantum of fault depends on whether the plaintiff is a public figure or a private individual.

If the plaintiff is a public figure, the plaintiff must show that the defendant acted with malice.  Belcher v. King, 2020 WL 4726593 (Tex. App.—Austin 2020).  A statement is made with malice if it is made “with knowledge that it was false or with reckless disregard of whether it was false or not.”  WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 573-74 (Tex. 1998).  Generally, actual malice focuses “on the defamation defendant’s attitude toward the truth of what it reported” whereas reckless disregard requires the plaintiff to prove that the defendant “entertained serious doubts as to the truth of his publication.”  Id.  Reckless disregard is a subjective standard that focuses on the defendant’s conduct and state of mind.  Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002).  And a showing of reckless disregard requires more than mere negligence or failure to use reasonably prudent conduct—there must be evidence that the defendant had “significant doubt about the truth of his statements at the time they are made.”  Bentley, 94 S.W.3d at 591, 596.

The standard is lower if the plaintiff is a private individual.  Specifically, in these instances, the plaintiff must show only negligence.  Id.; see also WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).  Negligence is established upon a showing that the publisher knew or should have known that the defamatory statement was false.  HDG, Ltd. v. Blaschke, 2020 WL 1809140 (Tex. App.—Houston [14th Dist.] Apr. 9, 2020).

Damages. 

Generally, with any cause of action under Texas law, a plaintiff must show damages.  However, in defamation cases, if the false and defamatory statement at issue is considered defamatory per se, the plaintiff may be awarded nominal damages without proof of actual injury.  This is because mental anguish and loss of reputation are presumed based on the statement alone.  Brady v. Klentzman, 515 S.W.3d 878, 886 (Tex. 2017).  Examples of statements that are defamatory per se include those accusing someone of a crime or those that tend to injure a person in his office, profession, or occupation.  In re Lipsky, 460 S.W.3d at 596.

If the false and defamatory statement is not considered defamatory per se (referred to in Texas as defamation per quod), then the plaintiff must show actual damages for loss of reputation, mental anguish, or economic loss.  For defamation per quod, a plaintiff must carry the burden of proof on both the existence and amount of damages.  Hancock, 400 S.W.3d at 63.  And before a plaintiff can recover general damages in an action for defamation per quod, the plaintiff must prove special damages.  See Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 626 (Tex. 2018).

Statute of Limitations. 

By statute, a one-year statute of limitations applies to actions for defamation.  See Tex. Civ. Prac. & Rem. Code § 16.002(a).  For these purposes, an action for defamation accrues when the defamatory statement is published.  See San Antonio Credit Union v. O’Connor, 115 S.W.3d 82, 96 (Tex. App.—San Antonio 2003, pet. denied).  However, the discovery rule can apply to an action for defamation when a defamatory statement is “inherently undiscoverable” or not a matter of public knowledge.  Velocity Databank, Inc. v. Shell Offshore, Inc., 456 S.W.3d 605, 609 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Newson v. Brod, 89 S.W.3d 732, 736 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

A defamatory statement is “inherently undiscoverable” where, by its nature, it is unlikely to be discovered within the prescribed limitations period despite due diligence.  S.V. v. R.V., 933 S.W.2d 1, 7 (1996).  If this rule applies, the limitations period begins to run when the plaintiff learns, or though the exercise of reasonable diligence should have learned, of the existence of the defamatory statement.  Childs v. Haussecker, 974 S.W.2d 31, 37 (Tex. 1998).

Conclusion.

In sum, defamation claims may arise from any written or oral publication (e.g., television, newspaper, internet, etc.).  Dallas law firm Freeman Law, PLLC has represented individuals and businesses who chose to pursue defamation claims.  If you have a potential defamation claim, you can call any of our attorneys at 214-984-3410 for a free consultation.  Alternatively, you can contact the author of this Insight by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

The post Texas Law and Defamation appeared first on Freeman Law.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Matthew Roberts
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The One Thing Your Law Firm Website Needs But is Probably Missing: Structured Data

Originally published by Lisa Hopkins.

No matter how advanced the technology is, at the end of the day, Google is still just an algorithm. It works diligently to understand the content of your website, but it simply doesn’t have the ability to read and comprehend words the same way a human does. Not to fear, however, as there are methods…

The post The One Thing Your Law Firm Website Needs But is Probably Missing: Structured Data appeared first on Stacey E. Burke, P.C..

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Lisa Hopkins
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Texas Temporary Injunction and Injunctive Relief

Originally published by Cris Feldman.

Going through litigation can be complex and stressful for those involved. For business owners, it can be especially taxing during the ongoing pandemic; however, understanding how this works can help make the process feel smoother. One such option is a temporary injunction. Temporary injunctions and the injunctive relief processes are standard in most Texas court proceedings. An injunction refers to a court order mandating one or more of the parties involved in a civil trial refrain from doing a specified act or acts.

According to the Federal Rules of Civil Procedure Rule 65, a federal court must provide notice to the party to which the injunction applies, except in situations where issuing a temporary restraining order is needed. In virtually all state and federal courts, the plaintiff’s attorney must demonstrate both that irreparable harm was caused and that any legal remedy would be inadequate in order for injunctive relief to be ordered. In many jurisdictions, a court may consider the plaintiff’s likelihood success, the balance of harm cause to the requester in the event the injunction is denied, and the harm that could be caused to the defendant if it’s granted, as well as whether or not the injunction would oppose public interest.

Five Types of Texas Injunctions

There are several types of injunctions that are defined by the length of time they can be enforced, including:

Preliminary or Temporary Injunctions: A preliminary or temporary injunction can be issued when a case is in its beginning stages, typically to prevent the defendant from continuing an action that might injure the plaintiff during the time the case is in process and is generally enforced until the end of the trial proceedings. Temporary Restraining Orders: A temporary restraining order (TRO) can be issued for a very short time period—typically a maximum of 10 days. A TRO may be issued without notifying the defendant in order to prevent harm to the plaintiff. Permanent Injunctions: A permanent injunction is most often issued at the end of a trial and has no set duration. Mandatory Injunctions: A mandatory injunction orders a party or requires them to take an affirmative action or mandates a specified course of conduct. Prohibitory Injunctions: A prohibitory injunction prohibits a defendant from taking delineated actions and maintains the positions of the parties until there is a hearing to determine the matter in dispute.

Injunctive Relief in Texas

Texas Rule of Civil Procedure 683 provides that an injunction order must describe the reasoning for the request. Additionally, it must also describe the acts it intends to prevent, as well as who it prevents from acting when the injunction is in effect. Lastly, the injunction must also include an order setting the cause for trial on the merits with respect to the sought after relief. This requirement means anyone seeking a temporary injunction must provide evidence showing the need for enforcement. The party must essentially have proof that the opposing party has harmed or intends to harm the element at the center of the litigation. Any injunction in Texas that fails to meet these statutory requirements is invalid under Texas law.

Houston Civil Litigation Attorneys

Going through the litigation process can be stressful for those involved. While temporary injunctions are just one aspect of court proceedings, they can have a major impact on how certain civil cases can move forward. At Feldman & Feldman, our skilled trial lawyers aggressively represent clients throughout the entire court proceedings – from intake to trial through any appeals. If you or someone you know needs assistance with a civil case, contact us today.

The post Texas Temporary Injunction and Injunctive Relief appeared first on Feldman & Feldman.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Cris Feldman
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Industry Custom Determines Who Pays for a Well Emergency

Originally published by Charles Sartain.

Co-author Rusty Tucker

Who pays for fluid containment in an oil field emergency?  It depends on your contract and, we are told in Pearl Resources, LLC v. Charger Services, LLC, oil and gas industry custom.

Working interest owner/operator Pearl Operating had a Turnkey Drilling Contract with PDS Drilling to drill the #4 Well in Pecos County, Texas. Pearl Resources was a lessee. PDS was an independent contractor and the parties disclaimed a principal-agent relationship between them or their agents and employees. Per the Turnkey Contract, PDS could not contract on or hire anyone on behalf of Pearl Operating.  PDS retained complete control of the wellsite and agreed to maintain well control equipment in good condition and use reasonable means to prevent and control fires and blowouts and to protect the hole. Bison Drilling was the rig operator hired by PDS.

A wild well incident caused freshwater to erupt from the well and an adjacent water well. Bison Drilling hired dirt contractor Charger to contain the runoff, which was an “emergency”.  Charger invoiced PDS, who promised payment from its insurers, but Charger never received payment. Charger then demanded payment from the Pearl entities, alleging PDS was Pearl Operating’s agent in procuring Charger’s services.

Charger sued Pearl (both of them) for breach of contract and quantum meruit. The trial court found no contract, but ruled that Pearl owed Charger $76,381, plus interest and costs, based on quantum meruit.

“Industry custom” says lessee pays for emergencies

The trial court’s findings of fact established, among other things, that industry custom and a generally accepted standard in the industry is that when emergency services are required on an oil and gas lease, the lease owners bear the costs to containing the emergency. Two witnesses affiliated with Charger testified to this.

Authority is required for a contract

On appeal Pearl argued that a contract was created between PDS and Charger because PDS had authority to contract with drilling contractor and Bison Drilling, the subcontractor hired by PDS, was PDS’s agent in procuring Charger’s services; thus, Charger had an implied-in-fact contract with PDS, precluding quantum meruit. But to form a contract the offeror must have authority to make the offer. Nothing in the record indicated Bison was authorized to extend an offer on behalf of PDS or anyone else.  Without a valid offer, there can be no contract.

The court, seemingly damning with faint praise, reasoned that the testimony was not so weak as to be unable to support the trial court’s finding.

To establish quantum meruit, a plaintiff must prove

valuable services were rendered or materials furnished; the services or materials were provided for the defendant; the services and materials were accepted by the defendant; and under circumstances in which the person sought to be charged was reasonably notified that the plaintiff was expecting to be paid for those services or materials.

The evidence was sufficient to support the trial court’s finding that Charger satisfied all four elements of quantum meruit.

Pearl argued that industry custom cannot alter or add to the unambiguous terms of a contract.  The trial court’s findings did not alter or add to the Turnkey Contract. Rather, it was Pearls’ obligation to Charger that was affected by the judgment. PDS’s obligations to Pearl under the Turnkey Contract did not obviate Pearl’s obligation to Charger for benefits it received from Charger’s work that remain unpaid.  The judgment of the trial court made Charger whole without taking away Pearl’s ability to sue PDS under the Turnkey Contract.

In light of current events, a musical interlude.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Charles Sartain
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Working with Trial Counsel: The Dynamic Between Trial Lawyers and Appellate Lawyers

Originally published by Podetize.

TALP 25 | Trial Counsel

 
So often, trial lawyers are expected to do it all when trying a case—prepping and examining witnesses, arguing motions, making objections, and preserving the record. This translates to early mornings, late nights, and opportunities for things to get overlooked. Having another set of eyes (and a different skill set) can not only lighten trial counsel’s load, but ensure a better outcome for the client. This is where appellate counsel can really add value. In their 25th episode, Todd Smith and Jody Sanders discuss ways that having appellate counsel involved at different stages of the litigation process can streamline the proceedings, create opportunities to determine legal issues early, and provide a more focused strategy to survive the trial and appellate process. Together, they share their own experiences in working with a trial counsel, what it is like for them individually, and how appellate lawyers bring value to trial teams. Todd and Jody also dive deep into the trial lawyer-appellate lawyer relationship when taking over a case and when it goes up on appeal. Follow this episode to learn tips that benefit trial and appellate counsel and, most importantly, the client.

Listen to the podcast here:

Working with Trial Counsel: The Dynamic Between Trial Lawyers and Appellate Lawyers

We’re doing a guest-less episode. We’ve done this a few times and it’s gone well when we’ve done it. We’ve been so blessed by an abundance of outstanding guests. As we move along, we may continue to do some of these guest-less episodes from time to time when the mood strikes and the calendar works out. The readers get me and you, Jody.

Hopefully, they won’t mind.

One thing that’s nice about the two of us talking, as we get to reflect on the fact that when this episode is released, it will be our 25th episode. Who would’ve thought?

It also means that we’ve been doing this for a while, which is also crazy to think about.

I’ve been posting on social media about our inaugural recording session at the Supreme Court courtroom and reminiscing about those days of being able to go out and see people face to face.

Although it’s worked out well because we’ve had people with a lot of time on their hands and everybody knows how to use Zoom now. We’ve been able to get some guests on here we might not have otherwise gotten, which has been fantastic.

With people having that experience with Zoom, we’re not going to have nearly as many technical issues going forward. It’s not a foreign concept. We’re going to continue to do that. We’ve talked loosely about trying to do some live episodes. I do think when we can resume having the UT and the advanced appellate seminars, it would be fun to do a live episode at those seminars. Those of you who are on the planning committee, if you happen to be reading this, keep us in mind. We will do it on our own.

We’ve got to change things up after a while, but for the foreseeable future, we’re wedded to Zoom as our recording format and that’s okay. It’s working out. Twenty-five episodes, we’ve covered the spectrum. We’ve done more or less what I thought we would. We’ve had a good mixture of judges, practitioners, some court staff. We’ll be looking to do some things in the criminal appellate law area in future episodes. Some things that for most of us, like for me, was a general civil appellate practice, I don’t see day in, day out. I’ll tell you it’s been educational to have some of these people on.

We have dipped our toes a little bit in federal court too. We’ll be doing more of that, hoping to get some fifth circuit and federal court perspectives that even though we do it in some of our practice, a lot of what we’ve done so far has been geared more towards state law practice naturally. There are so many more opportunities in state court for appeals, but we’re going to move towards some of that. We’re continuing to focus on things like technology and emerging trends in the practice. That’s something that I learned a lot from every time and enjoy getting to hear from people who think about things in ways that I haven’t even considered.

For the future, if you’re liking what you’ve read so far, we’re going to bring more of what you’ve read too. We are going to try to cover some things that we haven’t yet had the opportunity to get to. We consider this to be going and we appreciate everyone reading and we’re going to keep doing this as long as we can. We have no sign and no desire to stop.

There are plenty of great trial lawyers out there that do great jobs making appellate records, but it’s always nice to have another set of eyes.
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If you guys have ideas or things you want to know, contact us through any of the ways. Leave us a review on the Apple Podcasts app, which makes it easier for everybody to find. However, you want to reach us, we’d love to hear from you. We now have a dedicated email address. It’s This email address is being protected from spambots. You need JavaScript enabled to view it., but you can still get us on our individual email addresses too or through social media.

We’ve been active on Twitter and we’ve got a Facebook page, but now for grins, at the urging of Mark Trachtenberg, we created an Instagram page and thinking about that, there is some use for it because we’ve got some pretty cool imagery that comes out of Podetize who handles our production. It’s a nice place to share that stuff. It’s visually very appealing and it’s very shareable on social media. We’ll be continuing to add to that Instagram page as well.

It’s not going to be pictures of Todd and me on our split Zoom screen recording, I promise.

I can put up some pictures of me and my swag.

Todd has a Texas Appellate Law Podcast shirt that I’m jealous of because I don’t have one yet, but we’re trying to figure out some swag that we can have for the show for guests and anybody else who wants it.

We’re definitely looking at that. The other housekeeping thing to mention is that we’ve finally got our webpage done to where all our previous episodes have their own posts. The post, if you look at them on the webpage, you can listen to the podcast straight from the webpage and links toward the bottom of the episode. You can visit that page at TexAppLawPod.com for all the details. With that, we can transition into what we intended to talk about, which is working with trial lawyers or trial counsel. Jody, I thought it would be interesting to trial lawyers as we’re listening to them, but we, appellate lawyers, tend to get down and nerd out in our own little language sometimes. This one, in particular, I thought might be useful to trial lawyers to read because some appellate lawyers do things differently than others.

One thing that our perspective that we bring here is that we’re in different practice settings. You’re in a fairly large regional firm with about 150 lawyers and I’m practicing in a solo setting again. Because of that, we certainly see things from a little different perspective even though day in, day out of what we do is very similar. With that in mind, I thought we would talk about our own experiences in working with trial counsel, what it’s like for us individually, and starting with how appellate lawyers bring value to trial teams. The trial lawyer-appellate lawyer relationship is a lot more than the appellate lawyer taken over the case when it goes up on appeal. I teach and preach this a lot that I would like my trial lawyer clients to reach out to me far sooner rather than later when they see things that could wind up leading the case to appeal. What about you?

That’s absolutely right, because so often if you wait until, “We’ve got a bad judgment or a bad jury verdict against us,” and we come in and say, “We’re here to help you.” There are so many things that could have been done differently, which is not a knock on a trial lawyer to say that you’ve missed anything. When you bring appellate counsel in early in the case, whether it’s before a trial, during a trial at the dispositive motion stage, we see things with a different perspective. We see things in ways to preserve, make different arguments at different stages that if you’re the trial lawyer who’s worried about developing the facts of the case, you may not see it that way. You can find a lot of opportunities and especially now in Texas, in particular, there are so many opportunities for interlocutory appeal.

There’s a whole new permissive appeal statute where you may be able to take a legal issue and carve a big chunk or maybe all of your case out early on in one of those settings that you may not even be aware of. Having a set of eyes like that helps. Having people who can help you think through what dispositive points are or what they might be and how to develop those facts and discovery and how to come up with some legal issues. I remember years ago at one of the advanced appellate CLE, somebody did a presentation on the idea of basically trying your case on legal issues. Figuring out early what those were. At the same time, you’re developing your trial strategy, develop these legal issues, and keep hitting them throughout the case.

You may be able to knock pieces out of that. I’ve always thought that is a lot of what appellate counsel does in the trial stage. One of the most important jobs is to pick out the roadmap of, where do we go from here and what are the legal things that we can help you with? It takes the burden off during trial. In particular, for trial counsel, you don’t have to worry about making sure that the records preserved because you’ve got somebody sitting behind you. That’s their job. Your job is to make sure you’re talking to the jury. You’re doing voir dire. You’re getting your witnesses prepped at night. Meanwhile, we’re working on the jury charge.

TALP 25 | Trial Counsel

Trial Counsel: One of the most important jobs is to pick out the roadmap of where you go from here and the legal issues you may need help with.

 

We’re listening with a second set of ears to the rulings, making sure that we’re filing the stuff that preserves the arguments you want to make or what’s coming across on the transcript makes sense. It’s going to be something that the court of appeals is going to be able to see. We can help you make sure your exhibits are all in the way they need to be. We bring a lot of that so you don’t have to worry about it. You can go back to your hotel, bring your witnesses in, do your witness outlines, go through the exhibits, sit down with your paralegal, make sure everything’s set for the next day. You’re not then having to stay up another 2 or 3 hours and worry about the other stuff. We add value that way too.

I want to go back to what you said about trying your case through the legal issues. That’s something that I like to try and do. Whenever I get brought into a case early enough to have an influence on the theories of the case and know whether it be at the petition or the jury charge stage. In my view, it’s a completely different way of thinking. You’re thinking about things from a legal issues perspective or as the more in line with the trial lawyers. You’re thinking about things from the factual perspective. It’s exactly right that you can find a way to get the case resolved either on summary judgment, directed verdict or whatever dispositive motion. If you’re busy developing the facts of the case through depositions and written discovery and so forth, it’s going to be a lot harder to be able to see those opportunities.

It’s such a different skillset, frankly. This has been quite a while ago, but I reached the conclusion that I wasn’t cut out to be a trial lawyer. I enjoyed doing the legal issues work a lot more. It fit my skillset better. For me, the sweet spot in the law is talking to other lawyers and judges about the law and how it applies to the facts rather than developing the facts. We see so much specialization in the law now. The only generalists you see any more are the ones in smaller towns that doesn’t support having a specialist in that market. There are exceptions to that, of course, but the lawyers who generally do the best in their practices are the ones that to some degree specialize, whether they’re board certified or not.

That to me is the fit of the two roles. If you have somebody who excels at developing the facts of the case, for me as an appellate lawyer, I love that. If they value what I do as being someone who has a knack for developing the legal theories and presenting those to the judges and arguing about it to whichever tribunal you’re in front of, that’s the ideal client relationship. It’s working with someone who doesn’t want to mess around with the legal stuff, who excels at dealing with the facts or has confidence in me or someone like me that they’re going to be able to have their back as you’re suggesting on the legal stuff.

When I first started doing appeals, working with David Keltner, he talked about what an appellate lawyer does. He has always said, “It’s my job to talk to judges. I’m a lawyer that talks to judges.” That’s always been the perspective that I brought to it is if I’m in court doing something more often than not, I’m going to be directing whatever I’m talking about to the judge. Whether it’s some motion, some error preservation issue, some jury charge issue. Those are the roadmap that I’m looking at, the signposts that I’m looking at when I get brought in. Somebody else has been taking the depositions, pulling the video clips that they need to pull, arguing about that, arguing about what evidence needs to be admitted.

That sometimes varies if there’s a legal reason, but we trade off on that taking the witnesses, doing that stuff, handling all those things. We can complement each other well when you divide up the roles that way because it plays to the strengths of each. There are plenty of great trial lawyers out there that also do great jobs making records in appeals, but it’s always nice to have another set of eyes. Even if you’re a great trial lawyer, that’s perfectly comfortable doing that. It’s nice to have somebody else to give you some support so you’re not carrying the whole load on your shoulders.

We covered some of what I would list out as the ways that an appellate lawyer can get embedded in a trial team, case theory strategy, you mentioned error preservation. We talked a little about potentially dispositive motions. To me, summary judgment is one of the natural entry points of an appellate lawyer. At that point, you’ve got at least enough of the facts developed, ideally where you can beat an MSJ or the theories of the case are developed well enough where you think you can get a summary judgment as a movement. Often there are things beyond that threshold issue of whether there’s a genuine issue of material fact. If you’ve got legal issues that tie into that or if the laws in any way uncertain, then the appellate counsel isn’t the best position to argue those issues to the judge and to even identify those issues in the first place.

One of the things that we in our practice area do and do well is stay abreast of the trends in the law and know, “There’s a case out of the 13th court. We’re in the 13th court. The case out of the 13th court said this. We need to make sure that this case is brought up because it’s going to be very instructive to this judge who’s sitting in a district court within the 13th judicial district.” In my experience, what I call fact lawyers are a lot of trial lawyers don’t have the time to stay up to date on the latest and what’s going on with cases coming out of a certain appellate court. If they do, I’m impressed, but their dockets are so busy. As I like to say, this is one of the pitfalls. They’re trying to do your own appellate work as a trial lawyer. The facts don’t start coming to the extent that nobody sends faxes anymore. The discovery deadlines don’t stop. Your hearings are still going on. You have a hard time finding that quiet time that’s absolutely essential to being able to do effective appellate work. Even if it’s appellate trial work like summary judgments.

Another thing that we’ve certainly seen in the last few years, there are so many new procedural mechanisms that look like dispositive motions that weren’t. I remember speaking on the anti-SLAPP statute at the advanced appellate course. It was right when that was starting and nobody had heard of it. Now you’d be hard-pressed to find an appellate lawyer probably or a trial lawyer in Texas that hasn’t had a case where it’s at least come up once, maybe twice. I feel like that statute swallowed the whole court system. Having somebody that is conversing on those and following the trends on it made a huge difference for a lot of people.

It’s like you filed some breach of contract lawsuit and all of a sudden, you’ve got an anti-SLAPP motion going, what the heck does this have to do with two businesses suing each other? It turns out it may have a lot to do with it. It may end up tying up your case, appeals, motions, and hearings and all that for a year before you even get down to having discovery in the first place, which is wild. We’ve got the Rule 91a motions now that have appeared in Texas. In the last few years, you’ve seen all the different experts report things that have come out, both in med mal and outside of med mal. Having somebody that’s conversing on those things from a procedural standpoint makes a big difference too.

Nine times out of ten, it’s better to have the trial judge deciding the fee issue than the jury.
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We’re going to keep agreeing with each other.

Maybe we should have had a trial lawyer on with us to say we’re not thinking about it the right way.

I’m going to dig around and get one of my trial lawyer friends to come on the show and give a different perspective on this now. Legitimately, to that point, I can remember some conversations and some of these were online and we all know how that goes. Some of the things that we’ve been talking about here poo-pooed online. It’s like, “Any real lawyer can do that stuff. I can preserve my own error. I can write my own motions and responses.” There’s every appellate lawyer’s favorite. “I tried the case. I know it the best I should be the one to handle the appeal. Even if you gave over the briefing to someone, I still know what’s the best. I should be the one to argue the case.”

There are extremely talented trial lawyers and I know there are people out there that can do those things as well as I can. That’s great. If you don’t have to, it’s like the old adage that doctors make the worst patients. I feel like sometimes the person that tried the case, you get close to it, and naturally, you should because you’ve spent however many years of your life developing this. You’re tied in with the client. You’re wrapped up in all of it. Sometimes you need somebody else to come in and say like Kent Rutter said, “I understand that you feel like the court did you wrong when they let this piece of evidence in. At the end of the day, it’s not going to win on an appeal even if you’re 100% correct on it.” I feel like we’re often the Monday morning quarterback who has a cold bucket of ice water to throw on all the great arguments.

It’s like, “That’s a great argument, but I worry a little bit about the preservation,” and that’s always a hard thing to have a conversation about. I feel like it’s our job to say, “You’re right. The trial court got it wrong. The law’s totally on your side. You argued it well, articulated it well, and it still is not going to win on appeal. It is not going to get the court to turn it around.” Those are always hard conversations to have both with trial lawyers and clients. Sometimes it’s hard because the trial lawyer may be the one that brought you into the case, but you still have to do it. It’s fraught with peril, but it’s an important role that we have to come in and be the people that poo-pooed all the good ideas sometimes. At least that’s what it feels like from my perspective. That comes in after you’ve won a big trial or lost a big trial and tells you all the things that you probably don’t want to hear.

We need to get Scott on the show sometime. Those are the best lawyer clients though, the ones that recognize that it’s like going to the doctor. It’s not a lot of fun, even if it’s routine, but sometimes you never know what you’re going to catch in that doctor’s visit. Your blood pressure’s a little up or your enzymes are elevated or whatever. Sometimes you’ve got to have even if it’s preventative medicine and I can kill the analogy there. The best trial lawyer clients that I worked with are the ones that know they might not like what I have to say. They also know that and anybody in my role is looking out for their client in a way that maybe they can’t for all the reasons that we’ve talked about, the lack of experience with the issue. It almost sounds like a shortcoming.

I don’t mean it that way at all. The lack of focus on the issue. I’ve been thinking a lot about focus and how challenging that is in this world. Having somebody who can focus on this narrow sliver when it can mean the difference between, in a number of zeroes after a number that’s awarded in a judgment, it’s so significant. Of course, you get into the issue of, how does this get funded? We can probably talk about that a little bit before we’re done too. I’ve got a list of things that I tell people about as far as ways that an appellate lawyer can help. We’ve covered a lot of them already, but we haven’t talked about it Keltner and jury charges. Except for maybe the simplest car wreck cases where you’re dealing with truly PJC charges, I find that there’s always something to talk about in a jury charge. It’s never cut and dried. I happen to sit on the PJC committee for the business and insurance. It’s super interesting to hear the debates going on in that room when even the committee is getting together to talk about what the law is.

There are procedural aspects and substantive aspects to the jury charge. Frankly, even sitting here, having done this for a long time, and read every Supreme Court charge or case multiple times over the years, I still don’t know that I can articulate a clear standard for when you should object and when you should submit. I always tell people, “If you have a question about whether it’s an objection or submission, do both.” In one case, the Supreme Court says, “You barely have to do anything to preserve error.” In another case, in similar circumstances, they’ll say, “You waved there because you didn’t have a cohesive standard.” Having somebody there to say, “There’s no clear answer. You need to do all these things. It may seem ridiculous, but at the end of the day, there’s a lot of value to that.” If your charge gets screwed up, even through no fault of your own, and it’s not preserved the right way, that’s an easy way for an appellate court that doesn’t want to dig into those issues to cut it off and put you out.

You made us obsolete by telling them to object and request. The whole point of this episode went down the tubes.

How you do that also matters. I’m not going to give away all the trade secrets in this, but it is true. There’s a lot to that. It goes back to your idea of trying the case on legal issues. Figuring out early on what those are going to be and what the charge looks like. I’ve always told trial lawyers and I know a lot of people say this. When you bring your lawsuit, sit down and draft your jury charge at the same time you draft your petition and think about what it’s going to look like. Those are the things you’re going to have to prove. You’ve got that as a working guide. Of course, it’s always going to change as the case goes on. Having someone there with you during the trial, sitting, watching what’s going on, listening as the evidence is presented is also valuable. When it comes time to make the charge objections, we have a lot better idea of what those are going to be.

TALP 25 | Trial Counsel

Trial Counsel: If you’re busy developing the facts of the case through depositions and written discovery and so forth, it’s going to be a lot harder to be able to see legal issues.

 

It’s amazing how rarely that happens of someone drafting the charge upfront. It’s been said on the show before that the reason for that as clients don’t want to pay for it.

Sometimes attorneys don’t have time. There are lots of legitimate reasons.

There is, but after a while, you need to do things for the betterment of your case. If a lawyer is going to draft a charge, they should get paid for it. Unless it’s a run in the mill car wreck case, there’s no such thing as a straight-up PJC charge. That may be too extreme, but most cases aren’t. The cases that are going to trial are not. I would tell the trial lawyers reading this, follow that advice, even though it’s conventional wisdom, but nobody does it. You’re exactly right. That is a roadmap for your case and handling the fact issues of the case so that when you get to trial, I need to have evidence of the third element of this cause of action without getting the trial and realizing having that oh-crap moment. You’re thinking that you don’t have it and then asking you or asking me to try and pull it out of the fire.

Even little things. I’ve seen a number of cases, where even if the charge legally is technically correct, everybody was tired, it was 2:00 AM. The way that it got conditioned with the numbers got all wonky and that can create all kinds of problems that you don’t think about truly because somebody made a typo. You’ve conditioned your punitive damages on a theory that doesn’t support punitive damages purely by accident. The court said question four instead of question six or you’ve conditioned some other finding on another finding and you’ve put the wrong number and then you’ve got a huge problem. Unless someone is reading every line of that carefully and flipping through that right before you make your charge objections to the court, that stuff can be deadly.

A lot of what we do and another natural entry point for me is coming in at the verdict stage or even post-verdict. At that point, somebody certainly realizes maybe they’ve gotten a bigger verdict than they expected. They’re thinking, “Maybe there’s going to be an appeal.” They might not have thought that. JNOVs and new trials are not granted all that frequently, but I like to tell clients, “You need to look at all your options and you only have so many cracks at this. If you’re the receiving end of a bad verdict, it’s time to start evaluating these options.” The whole idea is still, even at this stage, they’re trying the case on the law is still valid because you still have the chance to raise legal issues.

The facts may be what the facts are and they’ve been developed and presented to the jury. There’s potentially going to be some legal issues, even at the post-verdict stage that are going to get you relief. The most obvious are things that most trial lawyers are going to know about like damages caps and things like that. It’s another prime opportunity. If you haven’t gotten an appellate lawyer involved in the case, up until that point and something happens and you have that a-ha moment, there might be an appeal. Your next thing to do probably ought to be to reach out to your trusted appellate counsel to see if you can get their help dealing with that.

It could be defending it too. It’s commonplace for appellate lawyers to show up at that stage of a case. If you’ve tried a case without the presence of any appellate lawyer, except for maybe at the charge conference, and the other side brings their appellate lawyer, you might want to think about that too because there’s a reason why they’re doing that. You wouldn’t want to get caught flat-footed if there was something as a trial lawyer that was missed in the heat of battle or that you don’t have the depth of knowledge about. That would be probably another good time to do it.

To that point, post-trial, there’s a whole new set of error preservation challenges that come up. You also have supersedeas issues that are going to start up. Judgment security, judgment suspension, judgment collection. That’s a whole set of sub-issues that come up that you’ve spent all your time and energy trying a case, getting to verdict, which may be super favorable to your client or maybe very unfavorable. Now you’ve got to switch gears completely from proving the facts and having the burden of persuasion to getting into the standards that have review and all the mechanics of, “How do I keep them from going after my client? Can we post a bond? How much does the bond have to be? What do I have to prove for net worth type stuff and take advantage of it?” That’s a whole subset of stuff that creates all kinds of issues that having someone with an appellate perspective can bring a lot of value there because the nuts and bolts of that are mind-boggling.

I know you do a fair amount of that work and I’ve been doing it too. I had a lot of experience doing that work. We had a net worth contest hearing that went on for the better part of two days. You’re talking about having a forensic accountant possibly in place and it’s almost like a mini-trial. Somebody who’s going to ask the court of appeals to review that decision and the process for that is pretty different. It’s not an ordinary appeal. It’s a motion for review. If somebody doesn’t like what happened in the court of appeals on that, then the next step is a mandamus in the Supreme Court. You can almost make a specialty if you wanted to out of doing supersedeas work because it blends all these things together. Even if you wanted to force yourself to go back and do some fact lawyering, as an appellate lawyer, that would be a good way to do it.

Maybe with exemplary damages, you’ve had net worth come up before, but even that net worth is potentially a little bit different standard than the net worth you’re talking about for a supersedeas bond. You’ve got to develop all that have potentially a completely different expert witness come in. It’s a whole lot of stuff that you think about. Not to get us too far off track, but all along the way at every stage that we’ve talked about, there’s also potential places for a mandamus. We haven’t addressed that, but that’s another place. I feel like the places that you see the most successful these days in Texas are in discovery fights, which is long before you even get to a trial. That’s a place that you may want to think about having an appellate lawyer, at least in your contacts.

At a certain point, a trial judge is rarely going to be shocked by attorney’s fees.
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Maybe it doesn’t make sense to hire someone to do the whole thing, but the process of putting together, the record, getting everything ready, prepping the brief to look like a brief that’s going to catch the court of appeals attention. The odds on a mandamus are so low. Having somebody you can turn to even be a second set of eyes is valuable in every stage where you may have a mandamus issue come up. Even after you’ve gotten a jury verdict, if the court grants a motion for a new trial based on certain sets of reasons, you also have a mandamus there. That’s almost like a mini appeal with factual sufficiency review as if the thing was up on appeal, even though you’re still in the trial court and you’re hanging out in limbo because a new trial has been granted.

The scope of review and that situation is going to be the whole record. You’ve got to have the whole record right there in front of you. It is like a little mini appeal and it’s a ton of work, but you think about what’s at stake. Are you going to have to try the case again or not? To that, I will add that one other way that trial counsel should get an appellate lawyer involved is in trying to estimate the amount of appellate fees to ask for and the judgment. If you’ve got a theory or you’re opposing a matter in which someone’s going to ask for appellate attorney’s fees, the whole area of proving up attorney’s fees is going through this transformation or the Rohrmoos case. I’ve studied that case. I was scratching my head about how it affected appellate fees and then I found out that the Supreme Court has addressed that issue and said, “It’s not a pure low star analysis in doing prospective appellate fees because you’re being asked to predict the future.” We can do a whole episode on whether our system for getting appellate fees in the state courts is good or not compared to the federal courts.

To that point though, one tendency that I see with trial lawyers is to underestimate the amount of fees that they should ask for handling an appeal. If nothing else, pick up the phone and call your friendly neighborhood appellate lawyer as you’re going to trial to tell you here’s how complex the cases, how many days of trial. You can generalize from those things a little bit on the theories to come up with some numbers and have it not be $5,000 for the first appeal and $5,000 to the Texas Supreme Court. They’re these wild numbers that I see inserted into blanks. Sometimes it’s the jury filling in those blanks. Sometimes it was the judge. When you think about what’s at stake these days, if you’ve got a theory that warrants the recovery or allows the recovery of attorney’s fees, yes, you should get the maximum that you can get on reasonably for appellate fees and you should break it down by stages. To do that properly, it would be very beneficial to have the input of someone that does it day in day out and knows what things cost.

Even as a consulting role, call somebody up and discuss it because if you’re the testifying expert, that’s fair game. I called up some appellate lawyers and talked to them and that’s formed the basis of my opinions and here’s what I’ve come to. You should do that. You’re right. I remember when I started practicing law in 2005, you would see those affidavits exactly like you’ve talked about. It’s $15,000 to the court of appeals, $5,000 for a petition for review, $5,000 for a brief on the merits. I still see those same affidavits floating around and the numbers haven’t changed in years and it’s a multiple of that, but it’s not two.

We could get me on a big soapbox about that issue. We’re going to do some episodes specifically addressing attorney’s fees and appellate fees to try and help educate our trial lawyer cohorts. I know we can move on from this topic, but the one issue there is part of the spend all this money trying the case. There’s a perception of we can’t look greedy or we need to be careful what we ask for with the jury. The fees of an appeal being an afterthought is not doing a service to the client. It’s important to think about it. In the right case, I would even say, “Yes, call up your friendly neighborhood appellate attorney.” As an expert testifying, you can rely on that information, but if it’s a big enough case and there’s enough at stake where you’re asking for six figures worth to the appellate attorney’s fees, designate an appellate lawyer to come and testify, then we can go down the road of should the judge or the jury be deciding appellate fees.

That’s a question that comes up in every trial. There’s a lot of different good and bad answers for that. That should be a consideration in every trial because when you’re asking for a small amount, asking a jury for attorney’s fees is one thing, but the bigger the numbers get, the harder question that it becomes.

You could streamline a case so well if you took attorney’s fees away from the jury and let the court decide that issue. You can do so much on submission even. You can take a lot of the expense of the trial away. If you thought about these things as a trial lawyer in the beginning, it tends to be an afterthought and it’s something that’s tacked onto the end. This is the strategic thinking that we’re talking about. Being able to help separate the wheat from the chaff and get right down to the important issues are going to make a difference. Nine times out of ten, I would say I would rather have the trial judge deciding the fee issue than the jury for several reasons. I realize that there’s room for disagreement on that. We’ll save that for a future episode.

I agree with you in principle because at a certain point a trial judge is rarely going to be shocked by attorney’s fees. I’m certain there are numbers and rates and things that will shock a trial judge, but a request for who charges $400, $500, $600, $700 an hour in a major metropolitan area and has spent thousands of hours on a case, to a lot of the trial judges in Dallas, Houston, Austin, even cities that are not big cities, that’s not going to faze them. When you’ve got a jury that’s been sitting there and you’re saying, “Here’s our damage model. It’s $1 million. By the way, our attorney’s fees are $750,000.” There’s something to that that you’re right. It at least raises something that warrants a conversation about it, even if you may decide to tip it to the jury in the end.

The greater risk in all of this is if you don’t prove them up correctly, you’re looking at possibly having to retry the issue on remand. It winds up being an efficiency issue, even though you could spend more time and money on it and getting help up front. If there’s something wrong, if there’s some reversible error, if the evidence isn’t presented appropriately or Rohrmoos isn’t met or whatever, the remedy, is you’re going to have to retry fees. What tends to happen is that people are so beaten down by that point that they don’t want to try it again. They’ll settle the fee issue.

The Texas Supreme Court, it seems to me, has clamped down progressively in the last decade on this. Rohrmoos is the standard, but who’s to say that it’s not going to be even tighter in a few years and then a different decision. Thinking about those things at the outset is important, even though you may designate yourself as an expert witness on attorney’s fees upfront. Thinking through these things before you get to trial can be super important because it can be huge, and in some cases, even the biggest portion of the judgment, depending on how it sets up.

TALP 25 | Trial Counsel

Trial Counsel: Even if you’re a great trial lawyer, it’s nice to have somebody else to give you some support, so you’re not carrying the whole load on your shoulders.

 

We spend a good amount of time talking about working with trial lawyers at the trial court level. It’s a critical phase, but I want to visit for a bit about working with trial counsel during the appeal. In my experience, there are as many approaches to this as there are different lawyers. Some trial lawyers want to be super hands-on and want to approve every draft and want to talk about issues before the brief is written. That’s great. Others are like, “No, you’re the expert. I hired you. I need you to handle.” This is the other extreme. If the trial lawyer is going to bring a case to me, part of my job is to try to work within their work style or what they prefer. One question that sometimes comes up is who is it that’s going to keep the client updated? That’s probably something that needs to be decided upfront too. There are a lot of different approaches to that.

That has usually been my practice is to determine that at the very beginning. A lot of it sometimes depends on who brings it to you. If the trial lawyer is the one that’s calling me to bring me in on the appeal and they’ve had a long-standing relationship with the client, more often than not, if comfortable continuing to do that, I’m happy to let them keep the lead. They brought me in, but it’s my client too. It is their client. They’re the ones who’ve managed this process. I’m as available as they need me to be. I’m happy to communicate as much as they want me to communicate. At the end of the day, I don’t want to get in the way of that. That’s important to respect that.

On the other hand, if it’s the client that hires me, then I feel like they’re usually the ones that want to hear from us directly for whatever reason. There are a million different ways that it can work. It depends on the case as to how that works out. At the end of the day, the important thing for an appellate lawyer to remember is the client is your client. Your duties run to them and one place that’s fraught with peril is what you do have to communicate. When you see stuff in the record that comes up and those conversations.

I know a dozen CLE presentations at advanced appellate courses over the years. When you spot something that’s gone wrong, what do you have to do? That’s one of those things that is non-negotiable where if something is bad. You have to be honest with the client and you can’t let someone soft-pedal something or refuse to bring something up that you feel like has to be raised. I don’t know that I’ve ever had that happen where I felt like someone was trying to hide the ball, but sometimes how you present it is important too.

Generally, the best lawyers will say you need to be as forthright as you need to be. We all make mistakes. No trial is perfect. It comes back again to what we’re saying about as something harmful. Even if there was an error in admitting evidence or something. For example, some exhibit wasn’t offered or something was offered and there wasn’t an objection made, did that change the outcome of the case? The client may be pretty mad that it wasn’t handled appropriately possibly, but ultimately part of our job, you don’t want to speak too much to any potential malpractice because that’s not what you’re there for. At the same time, you can fulfill your duty to the client and still also explain that may be true. We’ve talked about standards of review. Even if it had been done appropriately, we don’t know how it would have affected the outcome. It may not have affected it at all.

Preservation is always a difficult conversation to have. The thing that I always want to tell trial lawyers and clients both is I’m not going to second guess somebody’s strategy. You’re in the heat of trial and sometimes you have to make a tough decision and looking back at the end of trial, maybe you would have handled it differently, but it is what it is. I’m not going to say that you got that wrong because there are certain times would we wish you would object to something and put it in there. From a cold record perspective, it would be better. On the other hand, when the trial judge is staring at you red in the face, giving you the eye that you know that if you stand up again, you’re going to catch hell about it.

I understand why you would stay in your seat and let something fly by. That’s a decision you have to make. Do you not want to continue to be the guy that is taking the jury off when you’re interrupting every two minutes? I understand that. That stuff sometimes creates difficult conversations later with the client. “What about this? Why didn’t we do this?” The answer is because they read the room and felt like that was the right decision. I’m totally going to back you up on that and say, “I wasn’t there. It doesn’t come across in the record, but they were in the hot seat and they had to make a trade-off. That’s the way that had to go.”

The record will not show that. That’s an important point to talk to the trial lawyer about. You may not know if it’s not someone that’s in your firm and you’re not seeing them talking to them on a regular basis. That strategic decision may not be apparent to you if you’re hired as outside appellate counsel.

A lot of stuff happens off the record. The trial lawyer knows that it happened. I had this conversation. The judge and I talked about this and it turns out the reporter wasn’t sitting there taking it down because it was a conference after the jury was out. It’s like, “We did this. I get it. I appreciate it. It’s not there. We can’t do anything with it.”

There’s communication in those issues that we’ve been visiting about. I suppose there’s the idea of discussing potential issues and strategy on appeal. I suppose in a perfect world, I would say that’s one of the reasons why appellate counsel is brought in, as we’ve talked about, is to analyze the potential issues. The ones that have the greatest chances for success on appeal, is through the appellant or the responses, if you’re the appellee. Of course, appellate strategy, that’s what we bring to the table. Being able to formulate strategy in a way that most trial lawyers cannot. Some trial lawyers are going to have definite ideas on how these things ought to go. It falls back to the same thing we were saying about communications. There’s any number of approaches to this.

The important thing for an appellate lawyer to remember is the client is your client. Your duties run to them.
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Some of my best clients are the ones that trust me completely. We’ve got that relationship where they know. We will talk through issues and they’re welcomed to ask questions. We can have discussions. At the end of the day, if I make a recommendation, they’re more than likely going to defer to my judgment. At the same time, if they’re strong enough in their convictions that if they feel strongly about something, then they’re going to challenge me. They’re going to force me to explain the reasons why that point number six should be dropped. I find in my practice that strategy issues are not a major roadblock to anything. It seems like I’m able to discuss the issues well enough with trial counsel and provide them enough opportunity to give feedback that doesn’t tend to be a concern. What about you?

I think that’s right. Most of the time, even if I may have a different perspective than trial counsel, if you can both explain to the client where you’re coming from and let the client make the decision, that’s our job. To me, I don’t feel like I have to win or lose an argument on either one of those things to be successful. My job ultimately is to provide the client with the best information, make my recommendations, and then facilitate whatever their decision is. I don’t take it personally. If I recommend a course of action, somebody recommends a different course of action and the client chooses the other ones, that’s fine. You hired me for my perspective, my advice. As long as I’ve given that to you, listened to it and I feel like you’ve given everybody a fair shake, then we’re going to do what you want to do.

Sometimes there are completely non-legal reasons for making a decision. It may be a business judgment. It may be some down the line impact on an industry that I, sitting in my little appellate box, can’t see. I get that. I understand why you don’t want to raise this point because even though it may be the one that wins the appeal, it may lose something down the line. I’m going to defer to that and I’m totally okay with it because all I can do is bring in my experience and explain everything. When they’ve heard me out, let them make the choice that they need to make.

Ultimately, it probably makes you a better lawyer to have to explain your viewpoint. Probably you may feel good about your own work product without having this input from the client or the trial lawyer. If you’ve got this input, it probably solidifies the work product too. You’re advocating to some degree within the scope of what you’re being asked to do for what to raise and what not to raise. If you feel strongly about it as an appellate lawyer, you ought to be able to persuade the client and the trial lawyers to the reasons why.

For me, I’ve always found that for the majority of clients and the majority of trial lawyers almost exclusively, they always add something of value to whatever the final product is. Maybe it’s a nuance that reading the record I missed that was a big point at trial. Maybe it’s a little fact that ties together an argument that much more neatly, but I feel like every time I’ve sent out a draft to somebody to look at of a brief, it comes back with something that I think, “I’m glad that this is in there.” It’s the little cherry that goes on top of this argument that I’m making and it makes it that much better. I do appreciate having as many sets of eyes on it and as many different perspectives on it. It can only make a brief better.

How do you respond when a client sends you back markups on your draft?

The answer is it depends on what it is. If it’s minor changes that don’t affect the substance, then most of the time I’m going to defer to them. If you want to use some different words than I use, as long as they’re not something that I think can be offensive to the court, great. If it starts to walk down a line that’s going to create a procedural or substantive problem, I’m going to have a conversation about it and explain my perspective and go back and forth. Sometimes there are things that you get back and you say flat out, “I cannot and will not do this because this is like beyond the pale.” That’s a different discussion because I recognize you don’t like the person on the other side, the judge, the counsel, or the opposing party, whoever it is. I’m not going to sign my name to a brief that has this in there.

Let’s eliminate that discussion. Write out the email that you’re never going to send, put it all down on a piece of paper. I’ll be glad to read it, but we’re not going to file this with the court. That very rarely has ever happened, but occasionally you get something and say, “That’s way too personal. It crosses a line and we can’t.” That’s maybe 1% of the stuff I’ve ever done that happened. Usually, it’s the stuff that I think that’s great. It either makes it better or it’s neutral. If it makes the client happy, then that’s fine. If it’s something that is going to hurt it or cause a problem for some reason, then I’ll explain what that is and leave it to them to decide how they want to handle it.

That’s completely reasonable, but there are things that are non-negotiable. Are you willing to put your name and stick your reputation on something? They’re not even difficult conversations to have. This is black and white. We cannot and are not going to do this and here’s why.

To tie it back to the episode with Kevin Dubose and the standards of appellate conduct, that does make it easier sometimes as an appellate lawyer because you can put that in front of him and say, “Here’s what the appellate courts expect and require.” That’s the end of it. They’ve told us very clearly we can’t do that.

TALP 25 | Trial Counsel

Trial Counsel: You wouldn’t want to get caught flat-footed if there was something as a trial lawyer that was missed in the heat of battle or you didn’t have a depth of knowledge about.

 

The last thing I would talk about as far as working with trial counsel during the appeal is oral argument. We’re in a little bit different situation with me being a super small tiny law practice setting. If I’m handling an appeal, most of the people that send me cases are going to assume that I’m going to handle the oral argument. You’ve got a team of very qualified appellate lawyers there. I wonder if in your setting and settings of some of our appellate friends, where there’s a whole stable of very well-known people who have a lot of credibility with the appellate courts on how this is going. I don’t know how it might differ for you. I would suspect though that if you’re getting hired by an outside firm, it’s probably similar to my experience, which is they’re essentially turning over the case to you to handle. That includes the oral argument. I suspect that what you might be up against is if Keltner’s name is on the brief, is he going to get to do it? Are you going to do it?

David Keltner is probably the best because I have to. He is the best advocate I’ve seen. People hire him because they want them to argue the case because he is the best at it. I totally understand that. That has never bothered me because they should. He’s got more experience doing it than about anyone I know, but unless they specifically are hiring him to do the argument, sometimes it’s a discussion with the client of, “Why don’t you have Jody do it? It will be far less expensive and he’s going to do a great job.” At least that’s what I’ve heard him say. I hope that he says that in private when I’m not on the phone call with him, but it depends on the case, honestly. That’s right in a lot of cases. They hire him specifically because of who he is and what he brings to the table with his abilities.

A lot of times it is a discussion of, “What do you want?” A lot of times, even before that the discussion is, do we want to have an oral argument? I have that discussion in a lot of cases, both as the appellant and the appellee. In the age of COVID, in particular, since some courts aren’t having it, but that’s always a conversation to have with clients and trial counsel too is do we need an oral argument? Is this the case that warrants it? A lot of times if we have the appellant, yes, but there are reasons in some cases where you don’t need it. I feel like I have that conversation a lot too in cases. At the end of the day, of all the judges I’ve talked to, 99% of them will say, “It doesn’t change my mind, but it may change the way that I come to a result.” That’s an important conversation to have because an oral argument is an expensive proposition.

You’ve got to educate clients about that. “If you ask for an estimate, I can give you maybe a range of things that are going to apply it to the opening brief as the appellant and maybe the reply brief. The oral argument may or may not happen if we asked for it and that’s going to involve yet another line item here in the budget.” Good appellate lawyers will closely examine whether there is a need for oral argument in the case. If I thought that argument wouldn’t add anything to what I’m saying in the brief, I haven’t hesitated to say, “I don’t think we should ask for oral argument.” I can’t think of a time that my trial counsel has tried to overrule me on that particularly if they’re the ones paying.

If you do it the right way, you can get oral argument pretty much anytime you want it. You’re right. Discretion is the better part of valor. Knowing when not to ask for, it goes a long way with the court. I’ve talked to a lot of judges and asked this question and been at CLEs where it’s been asked. Most of the judges say, “No, it doesn’t influence my view of a case one way or the other,” whether or not they ask for oral argument. It doesn’t mean that they think their case is weak. It may be that they have a client who says, “I don’t want to pay for this. The brief is good and we’re going to go with it.” I don’t hold that against them because we’re busy too. If you don’t want to take up our time with that, that’s fine. It’s less for us to have to prepare for.

We’ve gone exceptionally long. This is an interesting discussion. You and I could sit around and talk about this stuff for the rest of the day. Hopefully, we would say something worth other people reading. We’ve managed to stick to what we thought we would talk about. The only other thing I would say is I don’t think we ever on the show have plugged ourselves. This is probably a good time to mention that if you’re a trial lawyer reading this, we will speak and advocate broadly for appellate lawyers as a practice group. Certainly, if there’s something that you feel like you need help with and you don’t know anyone to call and you should call one of us.

We are happy to talk through an issue with you, even if it doesn’t involve a representation. As you can tell, Todd and I are happy to nerd out and talk about appellate topics all day long. The other thing that sometimes gets lost in the shuffle with appellate lawyers is we both appreciate and value what litigators and trial lawyers do. It is a different skill set than what either of us has and brings to the table. Sometimes there’s some butting of heads between appellate and trial lawyers over a lot of different things. We’re talking about all the ways we can help, which is not to say that there aren’t a lot incredibly talented trial lawyers out there who can do so many great things, especially in Texas. All we’re saying is we can help you with that and complement the work that you’re already doing in a way that benefits both you and ultimately the client.

In the long run, despite the concern about the additional expense and so forth, the result generally is a better outcome for the client. You can short circuit a lot of things, you can streamline the trials we were saying, you might even get a better result because of someone having the procedural and substantive expertise that people like us bring to the table. We’ll advocate on the whole for the appellate bars being a group that people should definitely consider contacting. If nothing else, if you’re a trial lawyer, you’re handling your own appeals. Try to get somebody else’s eyes on the brief.

Even if it’s that, as a friendly gesture. It makes such a difference. Anytime I write a brief, I want to make sure at least one other person reads it in detail and gives me edits. Usually, I’d like to ask 2 or 3 people because with every set of eyes, you catch something that you’re not going to catch. By the time you’ve written a brief, read it as many times, proof-read it, gone back, double-check it, check the record sites, check the legal sites, and all that, you will have read it too many times to catch everything.

You skipped right over your typos.

Generally, the best lawyers will say you need to be as forthright as you need to be.
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You don’t notice them until it’s posted on the court’s website. Somehow it’s like they highlight them. I don’t know how they find it automatically.

I notice them when I’m getting ready for oral argument.

That’s what I mean. You print out a copy of it as you’re getting ready to do something and you’re like, “I wish I hadn’t.”

You feel like an idiot.

You find those words that spellcheck won’t pick up, even though it’s the wrong word. That’s always like a stab in the heart.

This has been good. It’s good to talk with you about all this stuff, Jody. We can have a lot more conversations like this that people will benefit from, even if we don’t have a guest on the show with us.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to This email address is being protected from spambots. You need JavaScript enabled to view it..

 Important Links:

Apple Podcasts – Texas Appellate Law Podcast This email address is being protected from spambots. You need JavaScript enabled to view it. Twitter – Texas Appellate Law Podcast Facebook – Texas Appellate Law Podcast Podetize Kevin Dubose – Previous episode David Keltner Thomson Reuters Court Surety Bond Agency @TexAppLawPod – Instagram

The post Working with Trial Counsel: The Dynamic Between Trial Lawyers and Appellate Lawyers appeared first on Smith Law Group.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Podetize
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U.S. Department of Interior Announces Formal Partnership with Norway to Promote and Share Offshore Energy Knowledge and Experience

Originally published by Kathleen Doody.

Yesterday, the United State Department of Interior (DOI) announced the execution of a Memorandum of Understanding (MOU) with the Ministry of Petroleum and Energy of the Kingdom of Norway to formalize a partnership to share best practices, knowledge, experience, policy, and regulatory initiatives in connection with the development of as oil, gas, and wind energy resources.

The press release, found at https://www.doi.gov/pressreleases/interior-and-norway-strengthen-offshore-energy-and-mineral-resource-knowledge-and, highlights, among other things, each country’s focus on the importance of developing sustainable energy resources – wind energy, in particular.  The demand for offshore wind energy has never been greater.  In the United States, offshore wind is a vast, sustainable energy resource, which can provide an efficient and reliable low-carbon alternative to the nation’s current electricity use.

As evidenced by this partnership with Norway, the United States is furthering its commitment and support of developing a robust and sustainable offshore wind energy industry in efforts to provide a clean source of electrical power for its citizens, while simultaneously diversifying its electrical supply.  In addition, studies by the U.S. Department of Energy indicate that development of this new domestic industry is a significant economic opportunity for the United States, as it will lead to the creation of thousands of jobs, revitalize ports and coastal communities, expand manufacturing and draw new investments to the United States, among other economic benefits.  Based on information provided on the Bureau of Ocean Energy Management’s website, currently, there are approximately 15 active commercial offshore wind leases in Federal waters that could support more than 21 gigawatts of generating capacity.

Power derived from offshore wind energy has become an important and growing sector of the United States power supply and economy.  Partnering with other countries in this endeavor, such as Norway, facilitates and improves the United States’ ultimate success of developing this sustainable offshore energy resource in a safe and responsible manner.

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

Privacy Policy: By subscribing to Liskow & Lewis’ E-Communications, you will receive articles and blogs with insight and analysis of legal issues that may impact your industry. Communications include firm news, insights, and events. To receive information from Liskow & Lewis, your information will be kept in a secured contact database. If at any time you would like to unsubscribe, please use the SafeUnsubscribe® link located at the bottom of every email that you receive.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Kathleen Doody
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Two non-torts

Originally published by David Coale.

Two causes of action under Texas law, frequently asserted but rarely tried, were rejected by the Fifth Circuit in BBX Operating v. Bank of America, No. 19-11050 (Aug. 11, 2020, unpublished):

Conversion. “They are conclusory allegations, which merely ‘parrot the words needed to create a claim’ without providing any factual basis for how BBX maintained an ownership interest in the funds. Perhaps recognizing this deficiency, the amended complaint characterized the funds at issue as ‘trust funds,’ and claimed that Murphy ‘held the funds . . . in trust for BBX’—the rightful owner. Yet that label is again unsupported by any factual allegations. The complaint said nothing of when or how this alleged trust was formed. And there are no allegations that Murphy entered into an agreement to create a trust.” (emphasis added) Money had and received. “BBX has not alleged facts demonstrating that the funds Bank of America swept from Murphy’s account belong to BBX. Nothing in the sales contract or any other agreement between BBX and Murphy demonstrates that funds Murphy collected and placed in a Bank of America account in Murphy’s name belong to BBX. Furthermore, BBX is no more the owner of those funds than the working interest owners and royalty owners that were supposed to receive payment after Murphy remitted a portion of the funds to
BBX. At most, the amended complaint demonstrates that BBX has an unsecured breach of contract claim against Murphy for failing to satisfy whatever amounts Murphy owed BBX under the sales contract that governed their relationship. It does not demonstrate that these particular funds belong to BBX. Thus, the district court properly dismissed BBX’s money had and received claim.” (emphasis added)

The post Two non-torts appeared first on 600 Camp.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: David Coale
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Considering Personal Guarantees Of Beneficiaries In Estate Planning

Originally published by Gerry W. Beyer.

“Managing risk and protecting your assets from erosion may be of greater concern due to the uncertainties raised by COVID-19.” When estate planning, it is important to take steps to protect your estate from personal guarantees provided by the beneficiaries…

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Gerry W. Beyer
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TYLA Director Spotlight: Tiffany Sheppard

Editor’s Note: In this blog series, we are getting to know the members of the Texas Young Lawyers Association Board of Directors. TYLA, commonly called the “public service arm” of the State Bar of Texas, works to facilitate the administration of justice, foster respect for the law, and advance the role of the legal profession in serving the public. All TYLA programs are accomplished through the volunteer efforts of its board and committee members, with the cooperation of local affiliate young lawyers associations. Learn more at tyla.org.

Name:  Tiffany Sheppard

Firm:  Massey Balentine, PC

Area of Law You Practice: Real Estate, Estate Planning and Probate, Guardianship, Title Examination, Collections, General Civil Litigation

Position Held in TYLA:  District 15 Director

How did you get involved in bar service? 

I immediately became involved in our local affiliate of TYLA and then went on to participate in the LeadershipSBOT Class of 2017. I met so many amazing young attorneys from across Texas and really became invested in the projects of TYLA. From that moment on, I was hooked!

What is your favorite TYLA project and why?

My favorite TYLA project is I Was the First. You Can Be a Lawyer Too! (See http://iwasthefirst.tyla.org/.) It’s a project about inspiring people who were the first ones in their families to become lawyers, the first from their neighborhood, and other “firsts.” I am particularly fond of this project because I am the first in my family to complete college and the first lawyer in our family. This project highlights the incredible “firsts” that inspired so many of us to pursue legal careers!

What tips can you give to other attorneys to manage stress? 

Find a balance and prioritize your wants and needs. It’s great to make a ton of money, but if you cannot enjoy your life and family, what’s the point? Find an outlet and join a gym or a group of friends that enjoy a hobby that interests you. Finally, don’t sweat the small stuff! At the end of the day, the work will still be there tomorrow and so will the stress—take a breath and unwind.

What is a piece of advice you would give new lawyers or law students?

Take every opportunity presented to strengthen your network! Often, it’s not what you know but who you know. Also, you’re always one CLE article away from an answer; it’s called the practice of law for a reason.

What do you do in your spare time? 

When we aren’t living a pandemic lifestyle, I enjoy spending time with family and friends, especially hosting friends in my home!

What is one thing most people don’t know about you? 

I decided I wanted to pursue a legal career in fifth grade and I never faltered in that pursuit. However, if I didn’t become a lawyer, I would have pursued a career as a hairstylist—I enjoy creativity and art!

 

 

 

Original author: Texas Young Lawyers Association (TYLA)
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Harris County Law Library to host Votes for Texas Women event highlighting 19th Amendment

The Harris County Law Library will offer a virtual 19th Amendment Centennial Symposium from 2 to 4 p.m. on August 18. The “Votes for Texas Women” event will focus on the history of women’s suffrage and the importance of inclusion in law and government.

Registration is open and free to all.

“We are thrilled to offer this educational opportunity to everyone on the 100th anniversary of the day the 19th Amendment was ratified,” Law Library Director Mariann Sears said in a news release. “We hope that sharing the stories from the historical and legal texts of the brave women who fought for the right to vote by protesting and reaching out to their representatives, even as the 1918 pandemic raged on, can connect more people with the rich history surrounding the amendment.”

Sears, the first woman to serve as director of the Law Library, will welcome three distinguished women from the local legal community to share their expertise. Marie Jamison, a partner at Wright Close & Barger, will share her research into the history of the 19th Amendment and the progress made in the century that followed. Professor Renee Knake Jefferson, the Joanne and Larry Doherty Chair in Legal Ethics Director at University of Houston Law Center and author of “Shortlisted: Women in the Shadows of the Supreme Court,” will discuss her research concerning the overlooked history of the nine women who were shortlisted for nomination to the U.S. Supreme Court, but not nominated between the 1930s and 1980s. Justice Frances Bourliot, of the Texas 14th Court of Appeals, will discuss the importance of inclusion on the bench and her experience as an appellate justice.

This Law Library program is made possible with the support of the Houston Bar Association, League of Women Voters of Houston, Women of Law, and the Harris County Attorney’s Office.

“The passage of the 19th Amendment, which prohibited denying a person the right to vote on the basis of sex, was an important step toward protecting voting rights in America,” Harris County Attorney Vince Ryan said. “We are pleased with the Law Library’s efforts to celebrate the legacy of women’s suffrage and the contributions of women in law and government over the last century.”

About the Harris County Law Library
The Harris County Law Library opened in 1915 and has continued to serve Harris County’s legal information needs for more than a century. After joining the Office of Vince Ryan, Harris County Attorney, in 2011, the Law Library greatly expanded its technology offerings and services to the public. Ryan’s support for the revitalization of the Law Library was recognized by the American Association of Law Libraries in 2016 when he was named the Law Library Advocate of the Year. To learn more about services and digital collections, visit the Harris County Law Library Virtual Reference Desk.

 

Original author: Justine Carreon
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Texas Access to Justice Foundation and State Bar of Texas Hispanic Issues Section host virtual fundraiser

The Texas Access to Justice Foundation and the State Bar of Texas Hispanic Issues Section will host a fundraiser on September 16 to raise funds for access to justice. The event will be a virtual Lawteria (think Loteria) featuring celebrity callers such as Texas Supreme Court Justice Eva Guzman and other other prominent Hispanic lawyers from across the state.

Lawteria winners will be able to designate the pro bono agency to receive the cash generated by the event. The buy-in for one card is $50, but all donations will be accepted.

For more information about the Texas Access to Justice Foundation, go to teajf.org. For more information about the Hispanic Issues Section, go to texashispanicissuessection.com.

Original author: Adam Faderewski
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Texas high school law clinic program receives 2020 Rather Prize

Akins Early College High School teacher and attorney Armin Salek has been awarded the 2020 Rather Prize for his Legal Eagles high school law clinic in Austin. Salek teaches career and technical education criminal justice.

The Rather Prize is a $10,000 cash prize that goes to the student, teacher, or administrator in Texas who provides the best idea to improve Texas Education. The award will help to expand the Legal Eagles program and to serve as a model to other schools in Texas and nationwide.

“My Rather Prize idea is to expand the provision of free legal services on high school campuses and I want to do that by allowing high school students to work on legal cases,” said Salek in the Rather Prize award video. “They’re ready. They’re emotionally intelligent. They’re intellectually capable, and they will give clients the services they deserve. The benefit is two-fold: We’re providing free legal services to the community, and the students are advancing well beyond their years in legal education.”

The Rather Prize initiative was developed in 2016 by Rice University student Martin Rather and his grandfather, journalist Dan Rather.

To read more about the Rather Prize, go to ratherprize.org. To read more about Salek’s Legal Eagles program, go to the Texas Bar Journal.

Original author: Adam Faderewski
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Registration open for E-TAPS 2020 virtual meeting and Paralegal Division virtual annual meeting

The E-TAPS 2020 meeting will be held virtually via webcast on September 16-18.

The event includes 10 hours of CLE with tracks in civil trial law and personal injury law; family law; and criminal, probate and estate, real estate, and oil and gas law. The Paralegal Division of the State Bar of Texas will also hold its annual meeting—worth 1 hour of ethics—on September 18.

Presenters for E-TAPS include Jason Bernhardt, of Houston; Slater Elza, of Amarillo; Michelle Putnam, of Corpus Christi; Kevin Segler, of Plano; Gerry Beyer, of Lubbock; Craig Adams, of Tyler; Judy Kostura, of Austin; former U.S. Magistrate Judge Andrew Peck, of the U.S. District Court for the Southern District of New York; and others.

Ellen Lockwood, chair of the Professional Ethics Committee, will present “The Future of Legal Ethics” for one hour of free CLE credit at the Paralegal Division Annual Meeting. The division’s annual business meeting will also be held and the 2020-2021 board of directors will be introduced at the event.

Register for E-TAPS 2020 here and for the Paralegal Division Annual Meeting here. Email This email address is being protected from spambots. You need JavaScript enabled to view it. with any questions.

Original author: Adam Faderewski
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In Memoriam – July 2020

The State Bar of Texas’ Membership Department was informed in July 2020 of the deaths of these members. We join the officers and directors of the State Bar in expressing our deepest sympathy.

• Vivian S. Ballard, 60, of Austin, died June 15, 2020. She received her law degree from George Washington University Law School and was admitted to the Texas Bar in 1989.
• Abraham Barker, 50, of Lakeway, died May 22, 2020. He received his law degree from Ohio Northern University Pettit College of Law and was admitted to the Texas Bar in 2010.
• Lester V. Baum, 85, of Dallas, died July 3, 2020. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1960.
• Thomas Blakeley Jr., 84, of Dallas, died March 31, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1959.
• Tyler Bleau, 35, of Houston, died June 22, 2020. He received his law degree from the University of Iowa College of Law and was admitted to the Texas Bar in 2012.
• David Bowman, 45, of Dallas, died May 1, 2020. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 2007.
• John F. Boyle Jr., 85, of Irving, died July 20, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1961.
• William H. Bruckner, 81, of Houston, died July 21, 2020. He received his law degree from the University of Tulsa College of Law and was admitted to the Texas Bar in 1972.
• Gregory L. Cox, 67, of Stafford, died November 19, 2019. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1977.
• Joe D. Denton, 95, of Dallas, died April 13, 2020. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1953.
• Lisa Deprato, 63, of Richardson, died September 10, 2019. She received her law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1983.
• John L. Estes, 87, of Dallas, died June 14, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1956.
• Liza Farrow-Gillespie, 67, of Dallas, died July 3, 2020. She received her law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1992.
• Robert Felsman, 86, of Austin, died June 11, 2020. He received his law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1963.
• Robert D. Fowler, 70, of Georgetown, died June 27, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1975.
• V.G. Fridrich, 96, of Houston, died March 1, 2020. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1972.
• Thomas Gandolfo, 59, of Merrick, New York, died September 23, 2019. He received his law degree from Saint John’s University School of Law and was admitted to the Texas Bar in 2013.
• Robert Hamilton, 64, of Lake Worth, Florida, died May 9, 2020. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1994.
• C. Vernon Hartline Jr., 75, of Dallas, died July 13, 2020. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1973.
• Nanneska N. Hazel, 76, of Austin, died April 30, 2020. She received her law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1991.
• Bobby Hellman, 89, of Austin, died October 15, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1958.
• James R. Henderson, 85, of Mineola, died November 20, 2019. He received his law degree from Loyola Law School and was admitted to the Texas Bar in 1991.
• Leland Hodges, 90, of Fort Worth, died June 1, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1951.
• Webb Francis Joiner Jr., 59, of Dallas, died July 6, 2020. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1988.
• Eugene B. Labay, 81, of San Antonio, died June 8, 2020. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1965.
• Kirk Ronald Lyda, 48, of Brownwood, died February 19, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1999.
• James Michael Lynch, 73, of Wood River, Illinois, died November 21, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1974.
• Robin Camille Matthews, 55, of Lubbock, died September 10, 2019. She received her law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 2001.
• Michael E. McElroy, 67, of Austin, died June 22, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1978.
• Robert Lewis Meyers III, 83, of Dallas, died July 11, 2020. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1960.
• Jessica Milner, 38, of Austin, died February 6, 2020. She received her law degree from Georgetown University Law Center and was admitted to the Texas Bar in 2010.
• Franklin Moore, 86, of Arlington, died June 7, 2020. He received his law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 1965.
• Lauren Morgan, 29, of Houston, died April 9, 2020. She received her law degree from South Texas College of Law Houston and was admitted to the Texas Bar in 2016.
• John Burns Noble, 71, of San Francisco, California, died November 18, 2017. He received his law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 1973.
• Daniel F. Perez, 61, of Arlington, died July 2, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1989.
• Thomas P. Pinansky, 61, of Cape Elizabeth, Maine, died April 8, 2020. He received his law degree from the University of Pennsylvania Law School and was admitted to the Texas Bar in 1985.
• Frank M. Pisano, 67, of Spring, died May 13, 2020. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1980.
• John Ross Powell, 85, of New Braunfels, died April 11, 2019. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1963.
• Rachael Rawlins, 55, of Austin, died June 29, 2020. She received her law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1993.
• Lucille Reymann, 60, of Charlotte, North Carolina, died May 5, 2020. She received her law degree from Vanderbilt University Law School and was admitted to the Texas Bar in 1986.
• Jennifer Chih-Chieh Reynolds, 59, of Houston, died April 9, 2020. She received her law degree from Western Michigan University Thomas M. Cooley Law School and was admitted to the Texas Bar in 1997.
• Spencer Rowley, 53, of Wichita Falls, died May 18, 2020. He received his law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 1999.
• David Bernard Schneider, 75, of Oklahoma City, Oklahoma, died February 9, 2020. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1969.
• Walter J. Scott, 83, of Powhatan, Virginia, died February 20, 2020. He received his law degree from Georgetown University Law Center and was admitted to the Texas Bar in 1980.
• William Sessions, 90, of Shavano Park, died June 12, 2020. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1959.
• Robert Edward Sloan, 84, of Houston, died January 27, 2020. He received his law degree from the University of Tulsa College of Law and was admitted to the Texas Bar in 1973.
• William R. Springfield, 83, of Dallas, died July 7, 2020. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1966.
• Charles Richard Turnbow, 96, of Coppell, died November 8, 2019. He received his law degree from the University of Illinois College of Law and was admitted to the Texas Bar in 1983.
• John K. Vaughan, 62, of Cedar Hill, died April 5, 2020. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1984.
• Jerry C. Walker, 76, of Franklin, died October 23, 2019. He received his law degree from Texas Wesleyan University School of Law and was admitted to the Texas Bar in 1995.
• Jeffry J. Wiley, 76, of Moorestown, New Jersey, died March 7, 2020. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1972.
• Lloyd Byron Wilson, 60, of Richmond, died May 4, 2020. He received his law degree from the University of Tulsa College of Law and was admitted to the Texas Bar in 1997.
• Tara Wood, 43, of Hobbs, New Mexico, died November 3, 2019. She received her law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 2006.
• Catherine Worth, 51, of Austin, died February 28, 2020. She received her law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1996.
• Michael Zpevak, 68, of Irving, died May 12, 2020. He received his law degree from Saint Louis University School of Law and was admitted to the Texas Bar in 1997.

If you would like to have a memorial for a loved one published in the Texas Bar Journal, please go to texasbar.com/memorials. If you have any questions, please don’t hesitate to contact the Texas Bar Journal at 512-427-1701 or toll-free at 800-204-2222, ext. 1701.

Original author: Adam Faderewski
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TYLA Director Spotlight: Victor A. Flores

Editor’s Note: In this blog series, we are getting to know the members of the Texas Young Lawyers Association Board of Directors. TYLA, commonly called the “public service arm” of the State Bar of Texas, works to facilitate the administration of justice, foster respect for the law, and advance the role of the legal profession in serving the public. All TYLA programs are accomplished through the volunteer efforts of its board and committee members, with the cooperation of local affiliate young lawyers associations. Learn more at tyla.org.

Name: Victor A. Flores

Firm: City of McAllen—City Attorney’s Office

Area of Law You Practice: Municipal Law

Position Held in TYLA: Immediate Past President

How did you get involved in bar service?

Five years ago, Joe Escobedo and Ernest Aliseda from McAllen nominated me to participate in the State Bar of Texas LeadershipSBOT academy.

What is your favorite TYLA project and why?

TYLA’s Attorney Wellness website is my favorite project. Its unique design provides engaging videos and written materials addressing the full spectrum of wellness topics, including diet, sleep, mindfulness, alcohol/substance use issues, and suicide prevention. It also includes perspectives from law students, healthcare professionals, young lawyers, managing partners, government lawyers, solo practitioners, and judges.

What do you do in your spare time?

Family is very important to me. In my spare time, I love attending country concerts with my wife and horsing around with my two sons, Brennan and Weston

What tips can you give to other attorneys to manage stress?

Even when I’m tired after work, I find that I’m not as stressed after I’ve played with my kids outside, worked on the yard, or done something else outdoors. It helps clear my head and reduces my overall feelings of stress at the time.

What is one thing most people don’t know about you?

I’ve always wanted to be a part of a cattle drive somewhere in Montana. I’m still looking for a horse.

Anything else that you wish to share?

This past year has been an absolute honor to serve as president alongside so many talented and hardworking directors. Still, the best is yet to come for TYLA. #BetterTogether

Original author: Texas Young Lawyers Association (TYLA)
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For 2020 Election, Threat is Bigger than Russia

As November approaches and a new general election is on the minds of most Americans, preserving the security of that election is on the minds of cyber experts at U.S. Cyber Command and the National Security Agency.
Original author: C. Todd Lopez
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DOD Innovation Speed Must Increase to Modernize

The Defense Department must be more innovative and act faster in its pursuit of putting new technology in warfighters' hands, the director of Defense Innovation Unit said.
Original author: TERRI MOON CRONK
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