November-December 2016

The Leaders of the New San Antonio Bar Association Bobby Barrera & Larkin Chenault

November-December 2016 PRST STD US POSTAGE PAID SAN ANTONIO TEXAS PERMIT 1517

Features

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May It Please the Court By Sara Dysart

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Mentoring Associates: Preparing for the Competition By Richard C. Danysh and Amy F. Parker

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Balancing a Legal Career and Family By Harry L. Munsinger

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The Bequest By Lawrence Savell

Departments

The Leaders of the New San Antonio Bar Association

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Bobby Barrera By Sara Dysart

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Larkin Chenault By Linda A. Brandmiller

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Fourth Court Update: Fourth Court Opinions By Chief Justice Sandee Bryan Marion

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Federal Court Update By Soledad Valenciano and Melanie Fry

On the Cover: 2016-17 San Antonio Bar Association President Robert J. “Bobby” Barrera and Executive Director D. Larkin Chenault. Photo by Martha Istueta Photography. Photo contributions from: Martha Istueta Photography (p. 1, 3-5, 7), Bobby Barrera (6), Jillian Rose Photography (8), Judge Larry Noll (10), Judge Gloria Saldaña (10), Judge Mary Roman (11), Erin Boren (11 and graphics - 14, 16-18), and Prometheus Books (12). Archives of the San Antonio Lawyer are available on the San Antonio Bar Association website, www.sabar.org. San Antonio Lawyer is an official publication of the San Antonio Bar Association. Send address changes to the Bar Association address at the top of page 4. Views expressed in San Antonio Lawyer are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product or service. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to [email protected]. Copyright ©2016 San Antonio Bar Association. All rights reserved.

San Antonio Lawyer

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Contents

ON THE COVER:

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Book Review: Trials of the Century By Magda DeSalme

November-December 2016

Lawyer San Antonio

The San Antonio Bar Association 100 Dolorosa, San Antonio, Texas 78205 210.227.8822 Fax: 210.271.9614

Officers/Directors

President Bobby Barrera President-Elect Beth Watkins Vice President Santos Vargas

Secretary Thomas A. Crosley Treasurer David M. Evans Immediate Past President James M. “Marty” Truss

Directors Dawn Finlayson Derek Hilley Hon. Rebeca C. Martinez Hon. Jefferson Moore

Hon. Richard Price Christine Reinhard Mark Sessions Ty Sheehan

Mexican American Bar Association Veronica Leal Vasquez

San Antonio Bar Foundation Bobby Barrera

San Antonio Young Lawyers Association J. Barrett Shipp

State Bar of Texas Directors Hon. Rebecca Simmons Fidel Rodriguez, Jr.

Bexar County Women’s Bar Association Executive Director Katherine Noll D. Larkin Chenault San Antonio Black Lawyers Association Stephanie Boyd

Editors Editor in Chief Sara Murray Articles Editor Natalie Wilson

Departments Editor Leslie Sara Hyman

Managing Editor Erin Boren

Editor in Chief Emeritus Hon. Barbara Nellermoe

Board of Editors

San Antonio Lawyer

Sara Murray, Chair

Pat H. Autry, Vice-Chair

Juliet Yassamin Azarani Sherry M. Barnash Barry H. Beer Amy E. Bitter Merritt Clements Gayla Corley Ryan V. Cox Paul Curl Cristina Tijerina DeLeon Samatha Demory Magda DeSalme Kala Dumont Jane Rankin Dure Tanya Feinleib Jose Galvan Marie Gerard Granger Shannon Greenan Gilbert S. Gonzalez Stephen H. Gordon Per Hardy Sam Houston Leslie Sara Hyman Rob Killen

John R. Lane Rob Loree Burke C. Marold Meagan Rachele Marold Hugh McWilliams James Meyrat Harry Munsinger Curt Moy Hon. Barbara Nellermoe Steve Peirce Donald R. Philbin Edward L. Pina Jason Rammel Rob Ramsey Yanira Marie Reyes John Rightmyer James Rodriguez Alexis Adams Scott Regina Stone-Harris Etan Z. Tepperman Johnny W. Thomas David Willis Natalie Wilson

Ex Officio

Bobby Barrera

Erin Boren

Chellie Thompson

For advertising inquiries, contact:

Monarch Media & Consulting, Inc. (512) 293-9277 [email protected]

Layouts by Erin Boren Managing Editor, San Antonio Bar Association

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Robert J. “Bobby” Barrera

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2016-17 President San Antonio Bar Association By Sara Dysart

“Dad, I have been considering attending Stephen F. Austin and getting a degree in wildlife management.” “Son, get your law degree and then you can do whatever you want! Once you have your law degree, you will always be able to get a job and support your family.”

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his conversation took place between Bobby and his father, Roy Barrera, Sr., while Bobby was a senior at Antonian High School and making plans to go to college. This is only one of many conversations about being a lawyer that Bobby remembers having with his father. He especially remembers being at the dinner table and listening to his father’s stories about his jury trials. He was intrigued by his dad’s ability to challenge the evidence and the authority of the state, and his application of the law to the facts as they unfolded. Today, with over thirty years of trial experience, Bobby talks about his dad as his mentor, boss, and teacher—the man who inspired him with sage advice such as, “Son, if they are going to put you to trial, you give them a trial they will not soon forget.” As a young attorney, Bobby tried cases with his dad and learned to love the jury—the audience of the courtroom. Bobby embodies his dad’s premise that to persuade the jury you must think like the jury and present the case in a manner that allows the jury to understand what you want to accomplish. Bobby learned early in his career not to fight for the sake of fighting, but to ensure that if the prosecutor is going to convict your client, it is done by the rules. He recognizes that defense counsel is always the underdog, representing the “bad guy.” It is the defense attorney’s job

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to overcome the perception that the client sitting next to him is guilty. Bobby asserts that this is best accomplished “through effective cross examination of witnesses.” His motto in trial is “accept nothing and challenge everything.” A defense attorney has to challenge the veracity of the witnesses by attacking the minutiae in order to show that the “global conclusion of guilt” is not established by the facts beyond a reasonable doubt. A criminal case often comes down to a police report and a victim statement. There are three sides to every trial story—the victim’s side, the defendant’s side, and the courtroom’s side, which is based solely upon what can be proven by the facts and the law. It is this third side that will determine the outcome of the trial. Bobby loves trying cases to a jury, especially the unwinnable cases. The more the cards are stacked against you, the less there is to lose. This position allows Bobby to be more creative in his trial strategy. He is ever mindful that until the evidence unfolds before the jury, no one knows what the outcome will be. At this point in his career, he prefers to try cases by himself—being “a solo hunter.” He wants to be in total control of the tempo of the case, the focus of the jury, and the presentation of the witnesses. However, he tries complex cases, such as tax fraud cases, with other litigators who have subject matter expertise. While Bobby’s style in the courtroom is different


people who are factually innocent and have been sentenced to death, life imprisonment, or prison for years, with Michael Morton being the most famous example.” Bobby recalls that United States District Judge Hippo Garcia, with whom he shared weekly dinners for many years, told him once “that he had a dream one night that Jesus appeared to him and said to him that he should remember that when he sentenced those people who came before him, that he should be mindful that those people were ‘all his children.’” Bobby with his wife Karen and their two children, Olivia Bobby believes that none and Erik. of his clients is truly evil. from his father’s style, he still enjoys They are generally people who have not trying cases with his father because he made appropriate decisions because of continues to learn new strategies from the hand they were dealt in life, or they him in every case. may have made bad choices because He believes that trial advocacy and of mental health or substance abuse integrity are the two compelling factors issues. They are all entitled to the same that define him as a trial attorney. He protection and rights as everyone else, strives to present himself in and out of including the constitutional rights of due the courtroom respectfully, humbly, and process, equal protection, and effective effectively. His conduct in the courtroom assistance of counsel. is intended to communicate confidence, While Bobby is best known as a but not arrogance. The prosecutor is not criminal defense attorney, he has a the enemy and should not be treated as general law practice that includes family such. He respects the prosecutor’s view law, probate, contract, and other matters of the case—it simply differs from the that necessitate legal representation. He defense view of the case. states that he has a “street practice” and Bobby has tried cases throughout is a “street lawyer.” While he has made Texas and is willing to try cases anywhere. a good living practicing law, he feels He is most flattered when he is compared the stress that comes with having a law to his father in the courtroom. He is most practice that deals primarily with other proud when he walks into an unfamiliar people’s problems. He steps on the “law courtroom and is asked if Roy Barrera, Sr. practice treadmill” every day, goes home is his father. This question brings back his to be with his family, and then starts anew early motivations as a trial lawyer: (1) not the next day. This realization causes him to embarrass his father; and (2) to maintain to pause when asked if either of his two the integrity of the criminal defense bar children, Olivia, age twelve, and Erik, age with a professional and zealous attitude ten, aspire to be lawyers. Right now he in the courtroom. Emulating his father is would not readily encourage this career a high standard to achieve. He remains path, not only because it is stressful, but ever mindful of this goal. also because it is not tangibly constructive. When Bobby’s daughter Olivia His enjoyment of building a cabin and was six, she asked Bobby what he did acting as the general contractor for his for a living. He responded, “I represent family’s home present other possible good people who make poor decisions, career paths. and I help them with their problems.” Bobby is also concerned about the When asked how he can defend guilty changing political environment of the people, he responds, “I know there are courthouse caused by the media’s scrutiny

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of judges and prosecutors, especially in this day of instant social media. Judges and prosecutors should do what is right regardless of negative responses from the public. For example, when a case should be dismissed, it should be dismissed, without regard for whether the decision will be reported. Bobby and his wife, Karen, love the outdoors, where he puts to good use his passion for photography. Their favorite travels have been to Africa and Alaska. He serves his son’s Boy Scout troop by leading the boys and their “city-slicker” dads into the wilderness to learn survival skills. As this year’s President of the San Antonio Bar Association, Bobby’s main goals (in no order of priority) include: (1) working with the Bexar County Commissioner’s Court to provide better facilities at the criminal courthouse for private consultation opportunities with clients, using the refurbished civil courthouse as a model; (2) securing annual funding for the Community Justice Program through partnerships with national veterans programs; (3) rebranding the SABA annual installation dinner to gain corporate support for the Community Justice Program; and (4) working with specialty bar associations to be more involved with the San Antonio Bar Association, including the Criminal Defense Bar, the Women’s Bar, the Hispanic Bar, and the African-American Bar. When asked why he got involved with the San Antonio Bar Association and agreed to serve as President, Bobby once again talks about his father, who served as President of SABA in 1973. Bobby learned from his father’s example and advice that you have to have a “seat at the table” in order to effect change and promote inclusion of all the groups which deserve an equal voice and representation. Just as important, being involved with SABA and serving as its President provides him an opportunity to serve both the profession and the community that he loves so much.


Sara Dysart is a Trustee of the Texas Bar Foundation and past director of the State Bar of Texas. She is a solo practitioner and a frequent speaker at CLE presentations on real estate topics.

D. Larkin Chenault Executive Director San Antonio Bar Association By Linda A. Brandmiller

The “New Old Guy”

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hat’s how D. Larkin Chenault, the new Executive Director of the San Antonio Bar Association describes himself . . . the new old guy. Admittedly a man of extensive experience in this area (Mr. Chenault has thirty-two years serving as executive director for both state and metropolitan bar associations), he also acknowledges that he will never live long enough to break the record of SABA Director Emeritus Jimmy Allison who served as the SABA leader for fifty years. Still, that does not deter Chenault from expressing great enthusiasm for this new chapter in his life. Considering that he recently “retired” from serving as Executive Director of the Connecticut Bar Association, it must be said that Chenault does not do retirement well. He has more energy than most people half his age, and after meeting with him, I would find it difficult to imagine him sitting around in a recliner watching TV or doing crossword puzzles. Chenault is known to be a man of action and has earned a reputation for being peopleoriented, thoughtful, and considerate, but he is equally well respected for his exceptional leadership skills and his fervent dedication to hard work. The search committee could not have found a more experienced leader since Chenault has served as executive director of more state and metropolitan bar associations than any other bar executive in the country. He says with pride that this is his seventh executive directorship and his eighth bar staff position. And before you jump to the conclusion that he cut and ran from those positions, was forced out or in some other way was simply job hopping to his next executive director gig, Chenault’s reputation for improving

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every bar association that he worked at is beyond question—having increased membership and improved bar reserves by considerable percentages for each one. Originally from Kentucky and with a family legacy there dating back to the 1700’s, Chenault started this career as an Assistant Director of his home state bar, the place where he is licensed to practice law. He has served as Executive Director of the state bars of Michigan and Connecticut, three metro bars in Ohio, and as Interim Executive Director in Sacramento, California. In addition to his bar association experience, Chenault’s background includes stints as a minister, computer systems analyst, administrative hearing officer, and business administrator. Chenault is introspective with regard to the twists and turns in his past that have led him to this point in time. His childhood dream of becoming an architect morphed into what he describes as being “an architect for change.” Chenault loves a challenge, and it appears he has a unique ability to identify and address areas in need of strategic direction—which, as he describes it, is “an unlikely combination of an MBA/ accountant and a politician/diplomat.” Of course, in addition to looking forward to serving the local bar, judiciary, and community, he also admits to wanting to escape the Nor’ Easters in Connecticut. I don’t think he believed it when advised that this had been a MILD summer! Chenault describes the most critical issue facing the legal profession as “the justice crisis,” which includes a civil court system overwhelmed by drug-related cases, inadequate court funding, and inadequate delivery of legal services to vast numbers of the poor. Chenault says that “even for an increasing number of the middle class, justice is an empty— or at best delayed—promise.” Lack of racial and gender diversity in the legal profession and the public’s image of lawyers are also pressing problems, according to Chenault.

“[I]f you can’t measure it, you can’t manage it.”

In a recent talk with the judiciary and local bar, Chenault laid out his plans for the future of SABA— “a bit of a diagnosis and prognosis”—as he put it. He first reported that SABA is strong and becoming much stronger. He pointed out that the community already has the solid foundation from which great bar associations grow: great judges, great past presidents, great officers and board members, great members and great staff (adding Larkin with his wife Martha and three of their grandchildren. a special recognition to Jimmy Allison whom he identifies as a mentor, brother, and— to its essential calling. Chenault expects to address this and other identified issues hopefully soon—a fishing buddy). Chenault energetically highlights through the upcoming strategic planning exciting plans for growth, including process. In his first three months on the job, dynamic new programs, new and diversified offices and meeting places, Chenault has already overseen and closer relationships with committees and nearly completed a top-to-bottom review sections, and a stronger affiliation with of SABA finances, which he assures are both law and non-law related groups in healthy. His goal is to set benchmarks San Antonio and throughout the state. by which to measure the Association’s And in order to achieve these plans, growth. He states this was his first Chenault describes the need for a “new priority because “if you can’t measure it, vision for a unified bar,” which involves you can’t manage it.” Growth is one of Chenault’s signature a common purpose and recognition of service—not only for the lawyer, but also priorities—but he is quick to define the for the judiciary and the pubic—which he parameters—it is not simply “growth sees as the ultimate object of our service for growth’s sake.” Instead, he explains that growth is the means to achieve the mission. He explains that “unified bar” is stated goals. For example, he points out a term of art referring to what is often that SABA currently has about 3,000 called a “mandatory” bar, one to which a members. He explains that successful lawyer must belong in order to be licensed larger Metropolitan Bars generally have to practice in the jurisdiction. Two-thirds about two-thirds of the lawyers and of the state bars in the United States are judges licensed in their jurisdiction as unified or integrated, including Texas. members. There are about 6,000 lawyers This kind of unification is the result of a in San Antonio, which would imply that movement which began around the turn SABA should have at least 4,000 members. of the century, born largely from a desire He also suggests enlisting members for increased lawyer regulation. However, from contiguous counties or beyond, by here, Chenault uses the term more offering services that outside lawyers informally, as common English might want but are unable to find where they define it, to refer to the San Antonio Bar as live and practice. And that again brings the leader of a more united organization, Chenault back to the concept of service. forging closer relationships with groups If services are improved—whether that representing every area of practice, every is offering search engines, CLE, or some type of lawyer, and of course the judiciary other product—his experience is that and court administration, including membership increases. His goal is to sections and the affinity bars. He sees define the value of SABA membership. A few of the expanded services division as undermining our common purposes and the unity that can make our Chenault outlines include: (1) improved profession more effective in responding - Continued on page 26 -

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May it Please the Court By Sara Dysart

On

December 31, 2016, four Bexar County District judges will retire, representing a loss to our Bexar County judicial system of forty-two years of civil law judicial experience and twenty-four years of criminal law judicial experience. In addition, our judicial system will lose the many and varied experiences that each of these judges brought to the bench. While four newly elected judges will assume their judicial responsibilities, we can benefit from our retiring judges’ experiences and views from the bench.

Education Judges Larry Noll, John Gabriel, and Gloria Saldaña grew up in San Antonio. Judge Mary Roman grew up in Corpus Christi. All four judges went to Catholic grade schools; three went to Catholic high schools. Judge Gabriel, who went to Holmes High School, completed undergraduate and law school at the University of Texas in five years. Judge Noll attended Holy Cross High School and received his undergraduate and law degrees from St. Mary’s University. Judge Saldaña attended Providence High School. Judge Roman attended Incarnate Word Academy High School. Both Judges Saldaña and Roman married and had children before pursuing undergraduate

degrees at UTSA and law degrees at St. Mary’s School of Law.

Experience

Each retiring district judge was in private practice before running for judge. Judge Noll practiced for over twenty-six years in a partnership with Ron Bird and then with his brother, Rick Noll. He is board certified in family law and real estate law, the two primary areas of his general practice. Judge Gabriel practiced for fifteen years, initially with Charlie Gonzalez (a former District Judge and U.S. Representative) and Pete Kyle. After four years with the Bexar County Child Support Enforcement Office, Judge Saldaña started her sixteen-year practice where she handled all types of transactional and litigation matters in state, federal, and administrative courts. She served as a mediator for over 100 cases, including fulfilling her commitment to the Bexar County Dispute Resolution Center to mediate at least weekly for a year after completing the center’s forty-hour certified training course. Judge Roman started her legal career in the Bexar County District Attorney’s Office, where she was promoted to Chief of the Family Violence Unit during her six years of service. She then pursued a private family law practice for two years before taking for the bench.

Running for Judge All the judges believe that meeting people in our community was the most rewarding aspect of campaigning. Judge Saldaña looked forward to reuniting with classmates from UTSA and St. Mary’s University School of Law. Judge Roman especially liked meeting seniors and young citizens. Judge Noll gained a good perspective of the people that live in our community. Judge Gabriel enjoyed the opportunities to see people from his past and to meet people he knew of but had not yet met. According to Judge Saldaña, “The

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most challenging aspects of campaigning were the time constraints and the conflict between work schedules and campaign schedules. It is important to have a positive attitude even when you are physically and mentally drained from the daily demands of work and campaigning.” Judge Noll also described campaigning as a “grind of two or three events a night, getting home about 9:30 or 10:00 each evening, and then starting out the next day all over again.” Being away

Judge Saldaña

Judge Noll

from loved ones while campaigning was a challenge for Judge Roman, but the biggest challenge was asking for campaign money. Educating voters about you and why they should vote for you on Election Day was Judge Gabriel’s most challenging campaign issue.

Judging If you meet with Judge Gabriel in his office, you can view his “rock as art” collection. He cherishes this collection for many reasons, but one of the most important reasons is its role in child custody cases. Judge Gabriel takes joy in the fact that he can make children comfortable and willing to talk. His rock collection is often the “ice breaker,” a means by which he and the kids can find common ground that leads to an open and honest discussion. Such discussion paves the way for Judge Gabriel to rule “in the best interest of the child.” Recognizing that one party will have an unfavorable ruling is a difficult aspect of being a judge for Judge Gabriel, especially in child custody cases. While a nonfamily civil law matter will result in an unfavorable outcome for a party, the appellate remedy is more readily available. When a decision is made regarding the lives of children, it affects the children immediately, not months or years later, after the appellate process has concluded. Being a judge has given Judge Saldaña insight into the importance of the judicial branch in our democratic system of government and how the roles of the parties, the lawyers, and the courts are intertwined to protect our constitutional rights. Judge Saldaña believes that listening is an act of love and that when a judge listens, she manifests a love for truth and fairness that are integral to our legal system. She shares Judge Gabriel’s appreciation that her rulings will be unfavorable for at least one participant in litigation. Judge Roman agrees that the most challenging aspect of being a judge is listening. She is keenly aware that those who come before the bench must be given the time to explain the law or the reason some action should be taken. She tries to make sure that everyone leaves her court knowing they have been heard fully

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before ruling. Judge Noll’s favorite role as judge is problem-solver. He is most discouraged when a solution is offered in the form of a ruling and the parties are unwilling to accept it, especially in family cases.

The Changing Legal Landscape In the decades since the retiring judges were first sworn in, much has changed in the legal community. Judge Gabriel notes the change in the types of cases that come before him. When he took the bench in 1993, the civil docket was 20% family law cases and 80% non-family law cases. Today, it is the opposite—more than 80% family law cases. He attributes this change to a number of factors, including mediation becoming a common practice in non-family law cases and the use of arbitration clauses in commercial contracts. Judge Gabriel talked about “settlement week” promoted by thenJudge Charlie Gonzalez as a means to encourage mediation in the 1990s, and how this practice turned into “settlement year.” Technological advances are driving much of that change, for better or worse. Judge Gabriel thinks more lawyers should take advantage of available technology in the updated courtrooms to present cases in an orderly manner. He is always amused when witnesses are crossexamined about their Facebook pages that they think are private. He recognizes that an attorney looking at a cell phone may be looking up a case or statute. Judge Saldaña believes technology solves a lot of problems while also creating some problems. The ability to manage voluminous amounts of data and record keeping also presents challenges for controlling overhead costs, meeting personnel requirements, and addressing time management issues, and is often accompanied by increased stress not previously experienced in law office practices.

Memorable Events Judge Gabriel will always remember being in presiding court on the morning of September 11, 2001. The first plane hit the World Trade Center while he was calling the 8:30 a.m. docket. By the time he finished calling the 9:00 a.m. docket,


the second plane had hit. He went into chambers and watched the events of the tragic morning unfold on television. By noon, the courthouse was closed, and he and everyone else had gone home to be with their loved ones. On a lighter note, during Fiesta one year, the Rey Feo and his entourage visited Judge Gabriel’s courtroom during a trial. Judge Gabriel called a recess so everyone could enjoy the merriment. When the trial commenced, the testifying expert witness was visibly unhappy. Later, Judge Gabriel asked the counsel for the party who called the expert witness about the source of unhappiness. The source: the expert did not get a medal from the Rey Feo—a disappointment we can all commiserate with!

Advice Judge Gabriel reminds attorneys to always be courteous to courtroom staff, not only because it is the right thing to do, but also because they have the ear of the judge. He suggests “that attorneys should slow down; do not take on too much work, so that [they] can do well the work that [they] are doing.” Be prepared and give accurate time limits when announcing in presiding. This is critical to maintaining the presiding system in Bexar County. Do not let a case or interactions with opposing counsel become personal. This is a career that requires advocacy based upon the law and facts, not personalities. Judge Noll has some practice tips too: “Find a mentor who has a good reputation that you can go to for advice and counsel on situations that you are uncomfortable with in the practice of law or representing clients. Join the Bar Association and get involved in a section that you are interested in. Attend as much CLE as you can find for newly licensed lawyers. Don’t try to go it alone without a support network. Come to the courthouse and watch others in action if you intend to have a practice that requires you to be in the courtroom. Read the local rules. Learn The Texas Lawyer’s Creed and follow it.” Judge Roman tells newly licensed attorneys to be “forthright, conscientious, and committed.” Judge Saldaña reminds us to treat everyone with respect— building a law practice is based upon goodwill.

Considering Running for Judge? “Run for judge if you have a calling for public service,” says Judge Saldaña. “Make sure your family knows what it takes to run a campaign. Have fun. Take care of yourself physically [and] mentally, and understand that unless you have a lot of money, you can never touch as many people as you need to win,” says Judge Roman. Judge Noll offers: “Make sure you have the full appreciation of what is involved in making a living and at the same time campaigning for judge. Be honest with your constituents and the public. Learn and understand how the ethics commission affects your fundraising and expenditures and disclosures. Investigate all the responsibilities you will have as a judge. There is more to the position than you think. Presiding over trials is only a small part of what you have to do as a judge.” “Be prepared to lose,” says Judge Gabriel. One or more candidates will lose in the primary, and one candidate will lose in the general election. Anyone running for judge should have a backup plan.

Judge Roman

A Toast! All four retiring judges plan to remain active. The three civil judges will mediate cases, and all four judges will serve as visiting judges. Here’s to sixty-six years of judicial experience and public service. Bexar County has been well served by these jurists. Thank you, Judges Noll, Gabriel, Saldaña, and Roman, for your contributions to our legal community.

San Antonio Lawyer

Sara Dysart is a Trustee of the Texas Bar Foundation and past director of the State Bar of Texas. She is a solo practitioner and a frequent speaker at CLE presentations on real estate topics.

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Judge Gabriel

Trials of the Century: A Decade-By-Decade Look at Ten of America’s Most Sensational Crimes By Mark J. Phillips and Aryn Z. Phillips

Reviewed by Magda DeSalme Prometheus Books, 2016 340 pages

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his book, written by a lawyer and his daughter, a sociologist, focuses on ten of the most sensational crimes of the 20th Century, addressing them chronologically, decade by decade. The book is well-researched and reads much like a short-story collection of true crimes. There are several famous criminal cases that one would expect to see in a book of this type, and the authors do not disappoint, covering, in turn, Lindbergh, Manson, Sheppard (the “Fugitive”) and, of course, O.J. Simpson. Lesser known cases include the case of Harry Kendall Thaw, who, charged with murdering his wife’s former lover, asserted the defense of “Dementia Americana.” Much like the “Affluenza Defense” asserted in a recent case involving an “affluent” teenager who killed four people in a drunk-driving crash, the defense of “Dementia Americana,” raised almost 100 years earlier, sought to shift the accused’s responsibility for his criminal action. There was no question that Thaw committed the act; he was observed by a number of persons calmly walking up to the victim during a theatre performance and firing three shots into the victim’s head. Thaw claimed, however, that the decedent’s acts, dishonoring and “ruining” his wife, drove Thaw “insane” and that any American male in Thaw’s position would have done the same thing. Also of interest are the details provided about the attorneys involved with these sensational cases, including appearances by the well-known attorney F. Lee Bailey, who is first introduced in the Sam Sheppard case. A very recent law graduate at the time, Bailey was

San Antonio Lawyer

hired by Sheppard’s brother to prosecute the appeal of Sheppard’s conviction for second-degree murder. Bailey argued that Sheppard had not received a fair trial because of the excessive media publicity, and on appeal to the United States Supreme Court, Bailey succeeded in obtaining a retrial for Sheppard. Bailey went on to successfully defend Sheppard, who was found “not guilty” at his retrial in 1966. Bailey makes a second appearance in the book almost forty years later, in what is indisputably the quintessential “trial of the century,” both because of its extensive media coverage and its divisive verdict. As part of O.J. Simpson’s “Dream Team,” Bailey obtained Simpson’s acquittal on two counts of murder involving Simpson’s ex-wife and her friend. I had hoped that since this book was written from both a legal and sociological perspective it might address why society is fascinated with sensational crimes. Although it does not address that issue, I would, nevertheless, recommend this book both for its interesting facts and its consideration of the overwhelming impact media consumption has on obtaining justice, a timely and significant concern given today’s media obsessed culture.

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Magda DeSalme is a Judicial Law Clerk for United States Magistrate Judge John W. Primomo.


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September-October 2016

MENTORING ASSOCIATES

PREPARING FOR THE COMPETITION

By Richard C. Danysh and Amy E. Parker

MENTORING young litigation associates can be one of the most gratifying responsibilities of a seasoned trial lawyer. And with fewer opportunities to actually get to trial in today’s world, it is also one of the most important. I suspect most successful and veteran trial practitioners will readily admit that whatever success they have had was directly attributable to those who helped them along the way. Below are some thoughts on how to fill the role of mentor to an aspiring courtroom advocate. Build and Direct the Team Early and Often. Assemble your team early and particularly emphasize to the rookie that one should assume the case will go to trial. Highlight the importance of knowing the facts and the law cold from the beginning. The goal is to learn the case—all of it. Although sifting through mountains of discovery can be tedious, there’s no substitute for thoroughly learning the case from the inside out. Associates who are able to take on this role with the dedication and attention to detail it deserves ultimately become your best right hand at trial. Stay involved in directing legal research as well. A small push in the right direction can save the client thousands in fees and be invaluable in helping direct the associate to the right answer. If your associate comes up with an alternative approach, listen. Sometimes a fresh take on a critical legal issue can be your lynchpin to success.

Involve Your Associates in Every Step of the Process. As much as your client’s resources permit, encourage your associate’s participation in all efforts to prepare the case for trial, including attending client meetings, participating in any investigation, drafting pleadings, drafting jury instructions and questions, preparing a discovery plan, drafting written discovery, responding to discovery, managing document discovery, and analyzing what proof is needed to advance the cause. With increasing rates, it can be challenging to secure client approval to take your associate to client meetings, mediations, hearings, and depositions. However, there is nothing a young associate appreciates more than being able to see their hard work put into action. Early facetime with the client is also excellent training for their own future client development and retention efforts. These events can be invaluable learning opportunities, so much so that writing off a couple hours of the associate’s time may be worth considering on occasion. Your associate will never forget it, and the benefits will come back to you in spades. Share Your Past Work and Experience. Most trial lawyers have developed their own trial preparation materials over the years—for example, trial agendas, issue analyses, proof outlines, witness sheets, notes on cross, voir dire outlines, opening notes, notes on closing, exhibit lists, motions, task lists, etc. Share these materials with your associate. Assign specific tasks that require the use of these materials and ask

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for feedback on how to improve upon even your most tried and true templates. Have sessions that include “war gaming” scenarios that may come up in your trial. Analyze particular items of proof or the admissibility of evidence you know will be challenged and come up with strategies to make sure they are admitted. Lead by Example. Young associates’ perception of the trial process is unfortunately often gleaned from the media. Contentious behavior may play well to a camera, but it won’t play well to a jury. From the beginning, train your young associates to treat witnesses, opposing counsel, the Court, and its staff with respect. A handshake and a smile can go a long way in teaching your associate how invaluable a professional demeanor can be to gaining favor with the Court. Refusing to resort to the sort of gamesmanship that often plagues our profession also earns you the associate’s respect and enduring loyalty. Humanize Your Story and Your Theme. Jurors are not trial lawyers. They have not lived with the case as your trial team has. They are hearing it for the first time, but our experience, collectively, is that they want to do the right thing. Help them do that by developing and presenting a simple and compelling story that appeals to the jury’s sense of justice. Have the associate develop and test stories and themes, reminding him or her that their appeal must be cross-generational. Invite your associate’s input on how to best tell and illustrate the tale, especially


with regard to what technology should be used (or not). Explain Expectations and the Process Before Game Day. The trial process is intense. Time is precious. Tensions can be high. Preparation is critical. Walk the associate through the expected process from pre-trial motions to taking the jury verdict as a part of your own diligent preparation. Explain what may be expected of the associate and the team. Stress the “team” piece, so your associate knows that when a task needs to be done, there is no hierarchy—just get it done. Emphasize that your associate is a participant and not a spectator. At this point, it is not about educating the associate. It is about servicing a client in need. The associate is expected to be your “eyes and ears” in the courtroom and to contribute to each day’s analysis of the progress of the trial. Encourage Active Participation. There is no better substitute for learning how to be an effective trial advocate than actually sitting through an entire trial. Actually participating boosts the learning curve immensely, so let the associate participate in some way, be it arguing a motion, examining a witness, reading a deposition, or organizing exhibits. The best way to learn how to do something is to actually do it. In the end, the best advice is to treat your associates how you wish you had been treated as a budding trial lawyer. You are in a position to materially affect the course of their careers, and their first trial will be an experience they will never forget. So make it a good one.

Richard Danysh is the head of Bracewell’s San Antonio trial practice and one of the firm’s most seasoned litigators. He has tried over forty civil jury trials to verdict and has mentored many young associates along the way. Amy Parker is a senior counsel in Bracewell’s litigation practice and has been with the firm since the inception of her career. She has worked alongside Richard extensively and has been the fortunate beneficiary of his sage advice and gracious approach to mentoring.

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l a g e L a g n i c n Bala y l i m a F & r e e r Ca By Harry L. Munsinger

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any lawyers experience significant anxiety, depression, or substance abuse during their careers. Attorneys have a higher incidence of anxiety and depression than any other professional group.1 For many attorneys, anxiety and depression begins during their first year of law school, and emotional distress grows throughout their careers.2 Lawyers don’t start out being more depressed than other people, however. Students beginning law school have levels of depression and anxiety similar to the general population, but the incidence of anxiety and depression among law students increases significantly during their first year of study.3 After a year in law school, 50% of law students show signs of clinical depression.4 Law students also experience higher levels of obsessive compulsive disorder (a clinical sign of severe anxiety) compared with veterinary, medical, pharmacy, and dental students.5 An estimated 21% of attorneys report problematic levels of drinking. Attorneys’ mental health issues are not surprising given how stressful law school and the practice of law have become.6 The only positive note is that, generally, mental health improves as attorneys mature— perhaps because attorneys who are too anxious, depressed, or addicted leave the practice.

Why Are Attorneys Distressed? There are a several possible explanations for high levels of anxiety, depression, and substance abuse among attorneys. It may be that persons prone to develop these mental health problems choose to study and practice

law, but that seems unlikely since new law students are not overly anxious or depressed when they begin law school. More likely, the demands of law school and the stresses of practicing law are responsible for this trend. Also, attorneys tend to deny their mental health problems because it may harm their careers. Hiding mental health problems is counterproductive and can lead to substance abuse or attempted suicide. The stress of being a lawyer can cause health problems, poor quality of life, and low self-esteem among attorneys.7 Unfortunately, the very structure of law makes attorneys prone to emotional distress. Lawyers love logic. They face an adversarial legal system. Their job is to “fix” difficult problems. The value of an attorney is often measured in billable hours. There is nothing inherently wrong with these four pillars of the law. Reason and logic are crucial to crafting winning legal arguments. The adversarial system is an effective way to resolve disputes where both sides feel passionately about their positions and are not willing to compromise. Clients look to attorneys to fix difficult problems, and lawyers could not earn a living without recording billable hours. So what’s the problem? Why do so many lawyers feel anxious and depressed? Why do so many lawyers abuse substances? Difficulties occur when lawyers generalize “legal” habits to their home life. Trying to manage your family by reason and logic ignores other important human traits like intuition and emotion. Moreover, your family doesn’t want to be fixed; they want to be heard. And, if you deal with your family as adversaries, they will respond

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in kind and create emotional stress for everyone. Finally, the demand to bill lots of hours places enormous pressure on the young lawyer to ignore the family. Billing sufficient hours to earn a decent living is important, but your health and family are just as important. When you are constantly focused on work, you don’t have time to relax and experience life. Denying you have emotional issues is dangerous. Avoiding dealing with anxiety or depression and trying to work when you are emotionally vulnerable generally makes matters worse. Every human being is vulnerable to fear and fatigue. Denial can damage your well-being. Pay attention when you experience significant emotional distress and seek help immediately. If you truly want to lower your stress level and gain a better work-life balance, you need to think carefully about your habits and attitudes. Being mindful of who you are and why you work can help make you aware of the important people in your world. Focusing on the fullness of life rather than just work will go a long way toward creating better balance for you and lowering your stress level.

Mental Health Problems Among Attorneys The incidence of mental health problems among attorneys is shocking. Over 25% of lawyers show signs of significant mental illness. The suicide rate among attorneys is second only to health care professionals who have easy access to drugs. A recent study by the American Bar Association found that associate attorneys in large law firms feel they have the most miserable job


in America because of the unrelenting pressures for more billable hours, the stressful demands of litigation, and a lack of control over their lives. The legal profession is notorious for having poor work-life balance. Women attorneys have been aware of the problem for years and are striving to fix it. Men, on the other hand, are just beginning to recognize the health hazards of practicing law. Nearly onethird of female attorneys leave the legal profession to raise a family or find less stressful employment. Many other women attorneys stay in law but forego achieving partner level because they choose family and other life goals rather than working sixty-hour weeks. Most associate attorneys report that their day begins around 4:30 a.m. with a baby crying or an alarm clock ringing, and it may not end until midnight when they finish that legal brief their managing partner assigned and demanded “yesterday.” A major problem for many men is that they have unconsciously accepted the role of bread winner and are reluctant to risk their career to enjoy family life. The implicit assumption is that because mom is with the children, everything’s fine, but placing the entire burden of child care on modern mothers is not realistic. Most women work outside the home, and couples must share child rearing and household tasks if they are to achieve success and happiness. It is not necessary to leave the law to achieve work-life balance. Instead, there are steps you can take today to achieve a better balance between the demands of our profession and the joys of a family. Today, lawyers are more willing to leave high status firms to spend time pursuing personal goals and seeing their family. They are not, however, willing to give up the income associated with large law firms. Instead, they cut back on overhead, avoid hiring staff, and keep more of their earnings by using technology and working smart. Of course, when you are just out of law school, searching for a job or desperately trying to keep the one you have, it’s hard to think about a balanced life. The pressures of a job search, paying office bills, or meeting the demands of senior partners to produce billable work are ever present. However, even though you need to impress your senior

partners or find a job to pay the bills, it’s important to develop good habits to help you to maintain interest, energy, and mental health for the long haul. You need to understand the concept of work-life balance and its importance at every stage of your legal career. Learn to mediate the demands of your job and the lure of a family without inhibiting your career.

What is Work-Life Balance? All of us know intuitively that our personal life and work can’t share equal time. We spend well over half our waking hours working. The key to worklife balance is to work effectively and to spend leisure time efficiently. Most of us waste too much time on nonproductive tasks, work inefficiently, and spend leisure time shopping, cleaning, caring for children, washing the car, and doing laundry rather than enjoying a hobby or being with our family. How do you find time to relax, take a vacation, read a book, or spend an evening with your family? The answer is to become more efficient at work and fit personal tasks into your life every day. Emulate the high-wire walker. Before each step he makes small adjustments in his balance by leaning a little to the right, moving an arm up or down slightly, or shifting one foot a quarter inch to regain or maintain his

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balance. If you practice micro-balancing between work and life every day, you will be on your way to achieving a happy and productive life. Unfortunately, during your early years in law, there is a temptation to become engrossed in work and neglect your personal life. There is always something more to do on a case. Your supervisor will pick the worst possible time to assign you a major project that needs to be done quickly. You can’t always avoid spending extra time at the office to achieve your career goals, especially when the work is important to you, your supervisor, and your client. But to achieve work-life balance, you need to compensate for those long days at the office with time spent on personal tasks and your family. Pay attention to your own health, mental and physical. Work-life balance means occasionally leaving the office early to see your loved ones, go to a park, listen to a concert, or see your physician, just as you would stay late to finish an important assignment.

No attorney wants to be perceived as a slacker. On the other hand, if you don’t achieve a good work-life balance you will impair your mental and physical health, may become depressed or anxious, and may turn to alcohol or drugs to self-medicate. Depression, anxiety, and dependence will impair your productivity, creativity, efficiency,


income, and well-being. And these stresses can lead to serious ethical problems as well. Every high-achieving professional has perfectionistic tendencies. It begins in school when we are encouraged to earn top grades and continues throughout our lives. As your responsibilities expand, you become more demanding of yourself. As you become busier, doing everything perfectly will become too heavy a burden. Rather than working for perfection, strive for excellence and allow yourself to make a few minor mistakes along the way. Your productivity will increase enormously, and your manager will forgive the minor errors because you are able to achieve so much more. The most important factor in achieving work-life balance is having some autonomy at work. Feeling you are in control of your own time will give you a sense of ownership, a feeling of achievement, and job satisfaction. Moreover, if you are able to balance your work and life so that you have time to eat right, exercise, and maintain good mental health, you will be more productive and enjoy life more.

Achieving Balance in a Law Firm If you work for a large law firm, you may be subjected to enormous pressure to spend long hours in the office, but there are a few things you absolutely must do to avoid burn out. First, set some personal boundaries. Let your co-workers and supervisors

know the limits of your availability for extra work. If your daughter plays soccer every Saturday morning, let your manager know you can’t miss that time. Setting boundaries doesn’t mean you won’t work extra hours; it’s just that you need to maintain limits on when you are working so you have time for yourself and your family. It is also helpful to share your personal interests and activities with your co-workers and manager. You’ll be surprised how supportive they can be when you tell them you are learning to sail, ski, play a musical instrument, fly a plane, or do yoga. Communicate with your co-workers and manager about your personal interests and needs. For example, if you are attending a photography class, be honest about when the class meets and offer to work extra time to make up for that shortened work day. One way to protect your personal time is to turn off your smart phone in the evening. Start small by turning off your phone for an hour or so each evening and gradually increase the time away from your phone. In this way, you can train your co-workers and manager when they can conveniently call. The key is to maintain your boundaries consistently so others will respect them. In addition to setting boundaries and communicating your personal needs to your manager, it helps enormously if you efficiently organize your work and personal life. Each day, make certain you understand what work you need to do and what your family needs at home. Make notes on your calendar of important events and deadlines; draft a long-term and daily list of things to do. By having an organized plan, you can achieve more at work and have more time for your personal life and family. No matter what personal boundaries you decide to set, or what arrangements you make to pursue outside interests, it is of paramount importance that you complete your work by the deadlines set. For many assignments, it does not matter when (or where) the work gets done, as long as it is done. But deadlines or other requirements may sometimes intrude on your personal time. If you minimize those intrusions by working effectively and setting firm boundaries around your personal time, you can enjoy both the practice of law and life outside of it.

San Antonio Lawyer

Balancing Work and Life in Solo Practice Many lawyers decide to hang a shingle precisely because the autonomy allows them to more easily achieve the work-life balance they desire. Solo practitioners who avoid costly overhead can work fewer hours and maintain their level of income. If you want to be your own boss, choose an area of law that appeals to you, fits your life style, and solves important problems for your clients. For example, I manage a solo firm limited to Collaborative Family Law, Probate, Wills, Trusts, and settling estate-related litigation. There are many areas of law that offer opportunities for professional achievement, personal satisfaction, and flexible control of your time. The trick is to find an area of law that’s personally satisfying, offers some flexibility so you can control your time, and serves community and client needs. Select your area of practice because it’s interesting to you, not just because it pays well. Of course, if you love litigation and helping people who have been injured, then personal injury litigation might be just the thing, but be warned—it’s a high-stress legal job. In addition to finding an area of the law you like, you need to develop legal services that meet your client’s needs, and set your fees high enough to earn a comfortable living. No one wants to hire a “discount” attorney. In fact, my own personal experience is that when I raise my fees, I tend to attract more and better clients. The other key to developing a profitable law practice is controlling of your overhead. With the advent of computers and legal software, it’s not necessary for a small law firm to hire legal secretaries or assistants. Moreover, there are plenty of good answering services that serve as a virtual receptionist for your office, so you don’t need to pay a person to handle the phone. Besides, clients love to talk to their attorney directly. By answering your own phone, you will develop more business than by hiring an assistant to handle initial contacts with potential clients. Another important part of marketing your firm is to establish a credible presence on the Internet. A good website will do wonders for your visibility. In addition, you need a simple

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marketing plan that takes advantage of blogging, social media targeted toward likely clients, and a good basic sales strategy. The sales strategy that works for me is to actively listen to the client’s concerns, educate him about legal options, tell the client which option is most likely to succeed, and ask for the business. Set up systems and procedures to handle the many repetitive tasks that occur every day in a law practice. You need to be efficient, answer all client calls within twenty-four hours, and use technology to automate your office work as much as possible.

The Mind-Body Connection Exercise and stress management are essential components of work-life balance. Daily exercise is an effective way to modulate mood, dissipate stress, and relieve depression. Also, dedicate time to taking care of your inner psyche through yoga or meditation. Start with simple steps such as relaxing and breathing deeply several times a day. Try to replace alcohol or drugs with a safer way to relax. Pay attention to your surroundings. Psychologists call this state “mindfulness”—being aware of yourself in your world. Break the habit of spending time at work with people who just want to gossip. Also, avoid doing tasks that don’t accomplish anything, such as surfing the web or daydreaming. Set up rigid rules for your time at the office to keep yourself on task and productive. Trim time-wasting activities, and you will be surprised how much more you can accomplish in a day. Also, don’t spend hours every night having drinks with the gang. That’s time away from your family. Pay attention to your personal needs, and you will be a better lawyer, better spouse, better parent, and better human being. Habits are difficult to change. Take inventory of your life and ask yourself what bad habits make life difficult for you. The key is to focus on things that are important and you do well. Ignore those activities that are less important or can be done by others.

steps you can take to gain a better balance between the demands of law and the joys of family. The most important factors in achieving worklife balance are flexible control of your time, exercise, and stress management. The key to work-life balance is working effectively at the office and organizing your leisure time. Rome wasn’t built in a day, so don’t expect perfect work-life balance instantly. Don’t try to do everything at once. Changing all your habits immediately will produce failure. Instead, start small. Do a few things, experience success, and build from there. Harry L. Munsinger practices collaborative family and estate law in San Antonio. He holds a Ph.D. in Psychology from the University of Oregon and a J.D. from Duke University. He is a member of the Board of Editors of San Antonio Lawyer and is a frequent contributor. Endnotes Elisa Lewis, A Comparative Study of Mental Health and Wellbeing of Different Professional Student Populations. Royal Veterinary College, University of London. (Hereinafter, “Lewis”) Available at www. ucl.ac.uk/medicalschool/postgraduate/ events/seminarseries/1314docs/ elisalewis (last checked October 14, 2016). 2 Alan Reifman, et al. Depression and Affect Among Law Students During Law School: A Longitudinal Study, 2(1) Journal of Emotional Abuse at 93-106 (200). (Hereinafter “Reifman”). 3 Stephen B. Shanfield & Andrew H. 1

Benjamin, Psychiatric Distress in Law Students, 35 Journal of Legal Education, 65, 65-73 (1985). (Hereinafter “Shanfield”) 4 Reifman. 5 Lewis. 6 Matthew M. Dammeyer, M.M. & Narina Nunez, Anxiety and Depression Among Law Students: Current Knowledge and Future Directions, 23(1) Law and Human Behavior at 55-73 (1999). 7 Leisa L. Marshall, et al., Perceived Stress and Quality of Life Among Doctor of Pharmacy Students, 72(6) American Journal of Pharmaceutical Education at 1-8 (Dec. 2008).

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Conclusion You don’t have to leave law to achieve work-life balance. There are

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The Bequest

he boxes arrived in Nick’s office on a Friday morning. Inside the one designated “#1” on the outside was a short letter from the executor. “Dear Mr. Adams: With this letter please find four boxes which Mr. Robert Maxwell instructed in his will be sent to you. Best regards.” Nick sighed. Bob Maxwell was a friend of his father’s, from when they were undergrad roommates at the University of Texas. Bob had stayed on to attend the School of Law there, while Nick’s father moved back to New York after graduation to start working in the Adams family business. Nick had met Bob with Nick’s dad a few times over the years when Bob’s law practice required trips to New York. It was Bob, a soft-spoken and polite Texan who had never married and who took a liking to Nick, who had first encouraged the inquisitive Nick to consider a legal career. And when Nick had said he was thinking of putting law school off for a couple of years after he got his B.A., it was Bob who persuaded him not to delay but to seize the moment, as things had a habit of slipping away. Three years later, Nick became the first lawyer in the family. Nick had not seen Bob since Nick’s father passed five years before, and he was surprised and touched that Bob had remembered him in his will. Under the letter, the box, like its three traveling companions, was full of books. There were several treatises, nearly all a bit long in the tooth. Nick presumed that Bob had remembered Nick was a history major in college, and might appreciate them more than other lawyers. But they also contained two other things—a large folder of copies of filed

briefs, and various weathered volumes of the South Western Reporter. Sending the volumes of old decisions from that region was a bit strange, Nick thought, as they would be of limited use to a New York lawyer. Nick took out all the South Western Reporter volumes and arranged them sequentially. There were thirty-two in all—a small fraction of the volumes published. There were thus many gaps in the number sequence. Nick was intrigued. He poured himself a tall black coffee from the office kitchen. He returned to his chair, put his feet on his desk, and opened the lowest-numbered volume. It had been a while since Nick had opened a book of case decisions, since he was part of the generation which conducted nearly all of its case research via online databases like Lexis and Westlaw. Indeed, Nick’s firm, like many others, had in recent years donated or tossed all its case report volumes, as anachronistic relics of the pre-digital world taking up valuable office space that could be put to more profitable use. He turned through the pages, and saw the spectrum of subject matters that one would expect addressed in the reported cases: contracts, torts, matrimony, wills, etc. There was nothing out of the ordinary. He was about to put the book down when he saw something. About a third of the way into the volume, at the right margin of a page, was a pair of handwritten pencil marks. The first, at the beginning of a long paragraph, consisted of a horizontal line about a quarter of an inch long, joined at a right angle by another line of about the same length going down. At the end of the paragraph, again at the right margin, was another mark, this time with the

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By Lawrence Savell

vertical line meeting the horizontal at the bottom, like a backwards “L.” The marks surprised Nick. He would never—even in pencil—think of defacing a book owned by his firm. The case—which dealt with authorship of a courthouse cafeteria cook’s memoir, predictably titled Justice Is Served, was not one he recalled hearing about in law school. The marked paragraph contained merely a statement of the law in Texas on a particular obscure point. It was the only notation in the case. Why had someone broken the unwritten rules of law office decorum to single out that paragraph in that case? Nick continued paging through the volume, and toward the end, in a contract case, he saw another set of the handwritten brackets. This set was different in two ways: the first mark occurred midway through the paragraph, and next to it was written, “Rider 1.” Nick sat back in his chair. Riders to him were passages he wanted to quote in briefs or other documents. When, as was usually the case, he drafted directly into Word, he would just cut and paste from the online text to his document. For materials that were not available online, he would photocopy the respective printed page and circle his selection for his assistant to input. But this rider was likely created before photocopiers were available in the office—the marking lawyer probably gave his or her secretary the volume with some kind of bookmark in the page, and the secretary would type the marked passage into whatever document was being prepared. Nick smiled—Bob had indeed sent him a history lesson—on ancient law office procedure. Nick flipped through the rest of the


volume, but saw no more notations. Nick next turned to the volume with the next highest number on its spine. It too had a few marginal notations. A quick flip through the rest of the volumes indicated they all did. Why, Nick asked himself, had Bob sent him so many volumes, when just one would have illustrated the practice? Maybe it was to show how prevalent the practice was; indeed, Nick had noticed slight variations in the marking styles, and in the handwriting of notations. Each volume had inside the back cover the firm library sign-out card in a white pocket, with columns for name and date borrowed. Nick knew from his own experience that most lawyers would not bother to sign out a case report volume he or she borrowed. Nevertheless, each volume’s card had a number of conscientious entries, over the course of several decades. Nick wondered whether any of the notations were Bob’s. He looked at the card in the volume he had open, and saw that it had been signed out by “R. Maxwell” on “1/21/63.” He pulled the card from another volume, and saw another “R. Maxwell” entry. Every one of the cards in the volumes Bob had sent him had an “R. Maxwell” sign-out entry. Some had more than one. “Okay,” Nick thought, “so what?” Bob was now beyond the jurisdiction of any court seeking to prosecute him for serial publication defacement. And Nick had no idea whether any, or if any which, of the notations had been Bob’s. Nick started putting the books back in the boxes when he saw again the large folder of briefs. He removed the contents and flipped through them. They had carefully been arranged in ascending date order, spanning several years in the 1960s, which Nick realized was probably at the beginning of Bob’s legal career. Each brief had been signed by Bob. The first brief dealt with an automobile case. It contained two block quotations. Nick looked at the first citation, which was to a Minnesota case. But the second was to a Texas decision in the South Western Reporter. The volume number was one of the volumes Bob had sent him. Nick went through each brief, and located in each at least one block quotation citing to the South Western Reporter. By now, night had fallen, and Nick

was the only one left in the office. With the pile of briefs to his left, and the South Western Reporter volumes standing at the ready in a large arc further away on his hastily cleared desk, Nick started turning to the pinpointcited pages identified in Bob’s briefs. The bracketed passage in the first one bore after the first marking the handwritten notation, “Sunny day.” Those words appeared to have no relation to the case or the quoted material. The next brief, dated a couple of weeks later, had a South Western Reporter citation pointing to another bracketed passage, this time accompanied by the notation, “Windy.” Again, no connection was apparent. “So Bob was not just a lawyer, but also an amateur meteorologist,” Nick mused to himself. “Who knew?” Similar notations were made, until one that said after the opening bracket, “Chilly.” But this one was different, in that to the right of the closing bracket was the word, “Indeed,” in a different handwriting. The next several instances contained similar paired notations, basically limited to single-word weather observations and single-word affirmative responses. Finally, the forecast changed. This particular opening notation read, “Park 12.5.” Nick determined that “Park” was not the name of the case, nor of any of the parties, nor the judge, nor counsel. On a hunch, he pulled up on Google Maps the location of Bob’s firm as indicated at the end of the brief. Two blocks away was a park. But “12.5” made no sense. Unless it was a time. Twelve-thirty? Photographs of the park showed that, at least when they were taken, the park had many benches, and information indicated it was a popular place for nearby workers to eat their lunch. The ending bracket in the case reporter passage bore the notation, “Okay.” Such “Park” references reoccurred frequently, virtually every time accompanied by an affirmative response. This went on for nearly two years. But then, although the opening bracket references thereafter continued,

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the closing bracket responses did not. Not long after that, alongside the final cited passage, there was no notation accompanying the opening bracket. “Why had they stopped?” Nick wondered to himself. Nick reviewed all the materials again, but they provided no guidance. On a hunch, he confirmed online that the park remained a park through the present, and had not been paved over to put up a parking lot or for any other form of “progress.” Nick ran all kinds of searches on the web, trying to find some clue. Eventually, in response to a search including the name of Bob’s firm and the word “secretary,” among the results was one that caught his eye. It was an engagement annoucement in a local newspaper. Dated shortly after the last brief, it proudly reported that one Abigail Mills had become engaged to one Benjamin Nelson, accountant. Ms. Mills was identified as a secretary at Bob’s firm. Bob had let his chance slip away. Nick leaned back in his chair and exhaled audibly. He now understood that when Bob had advised him to seize the moment, he had been speaking from personal, and painful, experience. Bob had apparently never fully recovered from that disappointment, Nick realized. But he had wanted to make sure that Nick did not make the same mistake. Nick cleared space on his shelves for the books and the folder of briefs, so that they would always be in his view and so he would not forget their lesson. He thought about the many ways he could implement the guidance he received, in his career, in his personal life, and in his plan someday to do the writing he kept putting off for that time all lawyers envision, when life would somehow become less hectic. Before leaving, he sent a quick email to the executor, acknowledging his receipt of the boxes, thanking him for his efforts, and requesting a copy of Bob’s will. And a few days later, Nick would read in that will that, except for four boxes of legal material, Bob had left everything to one Abigail Mills Nelson. Lawrence Savell is Counsel at Herbert Smith Freehills New York LLP.


Fourth Court Update:

By Chief Justice Sandee Bryan Marion

Fourth Court Opinions

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Fourth Court Update

he Fourth Court ended its fiscal year on August 31, 2016, with only four appeals submitted during the fiscal year still awaiting opinions. Two of those opinions were submitted in August, one in July, and one in June. As a result, the court was able to begin tackling the submission docket for the new fiscal year even before the prior fiscal year ended. One of the decisions issued before the end of the fiscal year is City of San Antonio v. Tommy Harral Construction, Inc., No. 04-16-00223-CV, 2016 WL 4444401 (Tex. App.—San Antonio Aug. 24, 2016, no pet. h.). This was the second round at the Fourth Court for these parties, as the court dismissed a prior permissive appeal because the trial court’s order did not affirmatively state its substantive ruling on the specific legal issue presented to the Fourth Court. See City of San Antonio v. Tommy Harral Const., Inc., 486 S.W.3d 77, 79 (Tex. App.—San Antonio 2016, no pet.). After the prior appeal was dismissed, the trial court entered a new order addressing the specific legal issue, and the Fourth Court granted permission to appeal. See City of San Antonio, 2016 WL 4444401, at *1. The issue presented in the second appeal was whether an excavation notice provided by a general contractor excused the subcontractor from providing the notice. Section 251.151 of the Utilities Code requires a person who intends to excavate to notify a notification center not earlier than the 14th day before the date the excavation is to begin or later than the 48th hour before the time the excavation is to begin. CPS argued the word “person” in the statute should be construed narrowly to comprise only the legal entity performing the excavation, e.g., a subcontractor, and not to include a separate legal entity, e.g., a general contractor. The Fourth

Court disagreed, asserting, “Nothing in the provision’s plain language limits ‘a person who intends to excavate’ to the legal entity that will actually perform the excavation.” The court held “section 251.151’s use of ‘a person who intends to excavate’ includes a general contractor, and the general contractor’s timely notice that complies with the statutory requirements relieves the subcontractor from providing separate notice for the same excavation.” Another decision issued toward the end of the fiscal year is Laredo Merchants Association v. City of Laredo, No. 04-1500610-CV, 2016 WL 4376627 (Tex. App.— San Antonio Aug. 17, 2016, no pet. h.) (mem. op.). In this statutory construction case, the Fourth Court was required to determine whether section 361.0961 of the Solid Waste Disposal Act preempted a checkout bag ordinance enacted by the City of Laredo. The ordinance, which was designed to “reduce litter from discarded plastic bags,” made it unlawful for commercial establishments to provide checkout bags to customers. Section 361.0961, however, prohibits a local government from adopting an ordinance that prohibits or restricts, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law. Based on the plain language of the statute, the Fourth Court held any ordinance prohibiting such a sale or use cannot be in harmony with the statute and is preempted. Because the Laredo ordinance prohibited the sale or use of containers or packages and was adopted for solid waste management purposes, the ordinance was preempted by the statute and unenforceable as a matter of law. Finally, a decision issued during our last fiscal year that I believe is important for family law practitioners

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is Araujo v. Araujo, No. 04-15-00503CV, 2016 WL 3030942 (Tex. App.—San Antonio May 25, 2016, no pet.) (mem. op.). In that case, a trial court signed an order dividing retirement benefits fiftynine days after the trial court signed an agreed decree of divorce. While the appellant acknowledged that a party may ask a trial court to sign a qualified domestic relations order (“QDRO”) after its plenary power expires pursuant to section 9.102 of the Texas Family Code, the appellant asserted that a party seeking a post-judgment QDRO was required to file a petition governed by the same rules applicable to the filing of an original lawsuit, and the appellee did not comply with section 9.102 but simply filed a motion in the divorce case. The Fourth Court rejected the appellee’s argument that the trial court rendered a QDRO in the divorce decree because the language in the divorce decree only showed the trial court’s intention to render a QDRO in the future. The Fourth Court then held that the trial court lacked jurisdiction to enter a QDRO in the divorce case because the appellee failed to comply with section 9.102. Chief Justice Sandee Bryan Marion has served on the Fourth Court of Appeals since January 2002, and has served as Chief Justice since January 2014. Justice Marion served as Judge of Bexar County Probate Court No. 2 from November 1992 until her appointment to the Fourth Court of Appeals. Prior to her election to the Probate Court bench, Justice Marion spent twelve years in private practice. She is board certified in family law by the Texas Board of Legal Specialization.


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Federal Court Update By Soledad Valenciano and Melanie Fry

If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano ([email protected], 210-7874654) or Melanie Fry (mfry@dykema. com, 210-554-5500) with the style and cause number of the case, and the entry date and docket number of the order.

Federal Court Update

Default Judgment; Copyright Act; Lanham Act; Permanent Injunction Rovio Entm’t, Ltd., v. GW Trading, No. 5:13-CV-1079-XR (Rodriguez, X., Aug. 2, 2016). Rovio, a Finnish media company and owner of the Angry Birds franchise, sued thirty defendants for violation of several of Rovio’s federal trademark and copyright registrations. After entry of default by the Clerk, Rovio filed a motion for default judgment against ten defendants. Rovio settled certain claims during a magistrate-run mediation, but several defaulting defendants that were ordered to appear at the mediation did not appear. Although default judgments are a “drastic remedy” and should only be resorted to by courts in “extreme situations,” after establishing personal and federal jurisdiction as to each defaulting defendant and ownership of trademark and copyright registrations by Rovio the court granted default judgments and permanent injunctions as to several defaulting defendants. A permanent injunction is an

appropriate remedy if a plaintiff can prove: (1) actual success on the merits; (2) no adequate remedy at law; (3) the threatened injury to the plaintiff outweighs any damage to the defendant; and (4) the injunction will not disserve the public interest. In Copyright Act and Lanham Act cases, an injunction is appropriate if liability has been established and there is a substantial likelihood of further infringement. Courts in the Fifth Circuit have acknowledged that default against a defendant is tantamount to actual success on the merits. Rovio has no other adequate remedy at law because it is unlikely that monetary damages will prevent future infringing activity by the defaulting defendants, as evidenced by their continued trafficking in goods bearing Rovio’s marks. Requiring the defendants to refrain from future infringement will not cause them harm, and any potential harm caused by requiring them to comply with the law is insignificant compared to the continuing harm to Rovio’s business if the injunction is not granted. An injunction would serve the public interest by promoting compliance with intellectual property law. Calculating Costs Awarded to Prevailing Party Labaty v. UWT, Inc., No. SA-13-CV-389XR (Rodriguez, X., Aug. 22, 2016). Court awarded costs to prevailing party pursuant to Rule 54(d) and 47 U.S.C. § 605, but reduced them in part. Under the “full costs” language of section 605, courts must award a prevailing party

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the costs allowed under 28 U.S.C. § 1920. While this court allows private process service fees as costs, the court limits the amount to that charged by the Marshal, given that the statute does not specifically authorize fees for service of process but instead refers to “fees of the marshal,” which is $65.00. A $40.00 per day witness fee is authorized by 28 U.S.C. § 1821(b), and so is a travel allowance pursuant to § 1821(c) (2) equal to the mileage allowance which the Administrator of General Services has prescribed is to be paid to witnesses traveling by privately owned vehicle. Costs related to the taking of depositions are allowed under 28 U.S.C. § 1920(2) “if the materials were necessarily obtained for use in the case.” Deposition need not be introduced into evidence at trial in order to be necessarily obtained for the use in the case. The Fifth Circuit has not addressed whether a prevailing party in a case can recover both printed and videographic transcription costs, although either are recoverable under 28 U.S.C § 1920(2). Thus, the court awarded the more expensive costs of either print or video transcription for each witness, as this court generally does not award costs for both. The Fifth Circuit has consistently held that section 1920 does not specifically allow recovery of courier or messenger costs. Postage and mail costs have generally been denied on the grounds that both are considered overhead costs associated with operating a law firm.


Motion for Summary Judgment; Qualified Privilege; Defamation Authier v. Automated Logic Consulting Servs., No. 5:14-CV-993-DAE (Ezra, D., July 28, 2016). ALCS hired plaintiff as the general manager of its San Antonio branch office. Company had a code of ethics that that applied to all employees. Following an audit of the company’s inventory, the company terminated plaintiff, who sued for defamation and sought a declaration from the court that he did not commit any ethics violations or violate company policies. Court granted summary judgment, finding that ALCS was immune from a suit for defamation because of qualified privilege. Any alleged statement made in a warehouse team meeting by company leadership that plaintiff was terminated for an ethical violation was made in good faith because it was based on the independent recommendation of all three levels of the company’s discipline review committee. Texas courts recognize that an employer’s statements to a plaintiff’s coemployees are qualifiedly privileged because the employer and the coemployees have a common interest in the operation of the business. Reliance on the discipline review committee’s recommendation to terminate plaintiff for violation of company policy demonstrated a lack of reckless disregard for the truth and, therefore, there was no actual malice. Because no remaining claim existed, there was no justiciable issue before the court and, thus, the court could not grant Plaintiff’s requested declaration. DTPA; Negligent Misrepresentation; EFT Cards Hopkins v. Green Dot Corp., No. 5:16-CV365-DAE (Ezra, D., Aug. 24, 2016). Eighty-three-year-old plaintiff was defrauded by an individual pretending to be her grandson, who convinced plaintiff to buy eighteen “MoneyPak” cards, electronic funds transfer cards that allow the purchaser to deposit cash into electronic bank accounts and then use the cards like debit cards. Funds transferred with MoneyPak cards are anonymous, untraceable,

and irreversible. Plaintiff sued WalMart and other retailers, alleging DTPA violations and negligent misrepresentation, arguing that Defendants misled by using logos from well-known and trusted companies such as Visa, failed to disclose a “Cardholder Agreement,” and failed to warn about the risk of fraud associated with the cards. Court rejected plaintiff’s arguments that she had standing to sue retailers other than Wal-Mart, where she purchased the cards. Fifth Circuit has not adopted Rule 23(a)(3)’s “typicality” requirement, “juridical link” doctrine, or the “joinder scrutiny” approach available in other jurisdictions to confer standing. Plaintiff was not a “consumer” under the DTPA because, under Texas law, money and intangibles are not “goods.” Plaintiff merely paid a fee in order to use her money in a different format, and did not acquire a good or service. And while Defendants’ alleged deceptive acts certainly furnished a condition which made plaintiff’s injuries possible, they were not the producing cause of such injuries. Plaintiff’s allegation that she would not have purchased the cards if they bore adequate warnings was insufficient to plead that the acts were a producing cause. Defendants’ alleged representations that the card accounts were not bank accounts, that the cards were not gift or debit cards, and that the cards were affiliated with trusted companies featured on the packaging did not state a claim for negligent misrepresentation because Texas courts do not recognize negligent misrepresentation based on misrepresentations or omissions on a product’s packaging. Furthermore, there is no Texas case law supporting a misrepresentation claim based upon an omission. Even if plaintiff could prove that she directly relied on Defendants’ affirmative representations, her losses were the direct result of a third-party criminal and not Defendants’ misrepresentations. Court granted Defendants’ motion to dismiss.

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Expert Designations; Motion to Exclude Knighton v. Lawrence, No. SA-14-CV-718XR (Rodriguez, X., Aug. 9, 2016). Plaintiff sued Bexar County Sheriff’s officer for excessive force and assault following an incident that led to Plaintiff’s treatment at University Hospital. Officer filed a Designation of Expert Witnesses on the scheduling order deadline, and designated twenty-nine “nonretained experts/medical service providers” employed by University Health System. Officer only disclosed that “[t]he substance of the medical providers’ testimony may be found in the medical records of the Plaintiff at [Bates numbers], previously produced in this case.” Officer did not provide a summary of the facts and opinions to which the witnesses were expected to testify, as required by Rule 26(a) (2)(C). Court granted Plaintiff’s motion to exclude officer’s expert witnesses. The Fifth Circuit has not addressed the issue of sufficiency of medical records as “summary of opinions.” Court held that it did not suffice for officer to reference large bodies of records without stating a brief account of the main points from those records on which the experts relied. Had officer designated only a few witnesses or records from which opinions could easily be derived, court might find disclosure sufficient, but officer’s list of 29 experts and reference to over 2,500 pages of medical records was not. Court recognized that expert medical opinions concerning the cause and extent of Plaintiff’s injuries was important evidence for the defense, but the importance was outweighed by the potential prejudice to Plaintiff in having to comb through over 2,500 pages of records and depose 29 people, and by lack of explanation for the inadequate disclosure. Perishable Agricultural Commodities Act; Motion to Stay B & D Produce Sales, LLC v. Packman 1, Inc., No. SA-16-CV-99-XR (Rodriguez, X., Aug. 19, 2016). Produce buyer alleged watermelons

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- Continued from page 8 and expanded SABA CLE programs, including neighborhood CLE taken to the outlying areas; (2) an improved Pictorial Legal Directory, to incorporate nonmembers; (3) an advanced membership development and retention program; (4) provision of additional staffing services to Bar sections, as well as possibly to affiliate organizations; (5) expanded meeting facilities and services; and (5) a revitalized and more dynamic and effective Community Justice Program. Chenault has a fascinating history and brings a fresh perspective to his role as SABA Executive Director. The San Antonio Bar Association is dedicated to this mission: “To serve our clients and the public with the highest degree of dedication and professionalism in the continuing pursuit of equal justice for all under law.” Chenault takes this

- Continued from page 25 received from supplier were defective, and dispute arose as to payment. Both companies were subject to Perishable Agricultural Commodities Act (PACA). Supplier filed an informal complaint with the Secretary of Agriculture pursuant to PACA. Buyer then filed suit in federal district court. Supplier subsequently filed a formal complaint with the Secretary. Supplier filed motion to stay court proceedings pending administrative action. Court granted the stay. Although statute of limitations had run for buyer to assert any claims against supplier in administrative case, court held that Secretary of Agriculture had jurisdiction to hear a counterclaim beyond the statute of limitations if it involved the same transaction as the formal complaint. Furthermore,

mission to heart. He looks forward to building a better SABA future along with his Congregational Minister-wife, Rev. Martha, who will join her husband in San Antonio after her retirement this fall. Welcome to San Antonio, Mr. Chenault. We salute you, and we look forward to working with you! Linda A. Brandmiller is an immigration attorney who is starting a non-profit program in San Antonio (ASI—Asociacion de Servicios para el Inmigrante) to work primarily with victims of crime, human trafficking, domestic violence, and abused/abandoned/neglected immigrant children. Her motto—“It is amazing what you can do when you don’t know what you can’t do”—motivates her every day to think outside the box when advocating for her clients.

although administrative rules precluded some attorney’s fees and discovery procedures, buyer had already acquiesced to those rules as a PACA licensee. Court rejected buyer’s first-to-file argument, as the administrative rules required an informal complaint before a formal one. Court administratively closed the case and ordered quarterly status reports.

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Davis Settlement Partners

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Gunn, Lee & Cave

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Jeff Small

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J. Robert Davis

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Kelmar Global

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LawPay

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EDITORIAL CORRECTION

Sol Schwartz

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St. Mary’s University

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TX Lawyers Ins. Exchange

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The September-October 2016 issue of San Antonio Lawyer’s article “Persons with Disabilities Are All Around Us... and We Need Your Help” mispelled the name of Disabilitiy Rights Texas’ Executive Director, Mary Faithfull. We apologize for this error.

Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC. Melanie Fry practices commercial litigation and appellate law with Dykema Cox Smith.

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