Texas Lawyer Blog

Madonna fan and Haynes and Boone partner volunteers to work on stage crew at Super Bowl halftime show

Haynes and Boone partner Purvi Patel (pictured) of Dallas has been a huge Madonna fan since 1984, when she was 9 years old. When Patel found out her musical idol would perform during halftime at Super Bowl XLVI on Feb. 5, Patel did what most avid fans only dream of: She volunteered to work on the stage crew for the Super Bowl halftime show. “It is crazy, and I totally process that,” Patel says of her sojourn in Indianapolis. Since Jan. 23, Patel has been in Indianapolis, except for a quick day trip back to Dallas for a work matter. Each day, Patel, chairwoman of Haynes and Boone’s trademark practice group, works as a lawyer, but each evening, she volunteers at the Lucas Oil Stadium, learning her part in the halftime show. Patel says she is very lucky her show assignment is on the 25-yard-line, and she will be “pretty close” to the stage where Madonna will sing. She says she can’t talk in detail about her role, but “what I’m doing is going to be part of the show.” In addition to the game day show, Patel expects to see Madonna at some private rehearsals. “I can’t say how excited I am. I’m going to burst,” Patel says. Patel says she’s one of about 550 stage crew volunteers who were selected from about 3,000 who applied for the unpaid positions. Patel says she’s seen Madonna in concert 10 or 11 times since 2001, but this two-week trip to Indianapolis to see Madonna sing is by far the most costly. Patel says she views Madonna as the epitome of “girl power” and feminism and considers her a talented songwriter. “She’s 53 years old. She’s still creating and doing other things. . . . She’s so self-motivated,” Patel says of Madonna. Although Patel is at the Super Bowl only for Madonna, which team is her pick for the winner of the football contest between the New York Giants and the New England Patriots? Neither, Patel says, since she’s not a football fan.
-- Brenda Sapino Jeffreys

Morning docket

Harris County District Attorney Pat Lykos: What investigator did is not an 'investigation' (KTRK Houston)

Williamson County Grand Jury Indicts Mark Norwood (The Texas Tribune)

Fresh round of litigation targets 12 law schools over jobs data (The National Law Journal)

D.C. Court says redistricting decision is a month away (San Antonio Express-News)

New Braunfels 'can ban' suit withdrawn and refiled in Travis County (Austin American-Statesman)

Area attorney killed in crash (San Antonio Express-News)

-- Angela Morris

Three days after judge orders Evan Stone to pay $22,000 in attorneys’ fees, the Denton solo asks for a 5th Circuit stay

Rather than immediately paying the $22,000 in attorneys’ fees a federal judge ordered him to pay as part of a Jan. 24 order, Denton solo Evan Stone filed an emergency motion for stay of sanctions pending appeal with the 5th U.S. Circuit Court of Appeals on Jan. 27.

The following is the background on the matter, according to U.S. District Judge David Godbey’s Jan. 24 order: The order stems from a dispute in Mick Haig Productions E.K. v. Does 1-670, a case in which Stone had represented an adult filmmaker that wanted to obtain the names of 670 Texas Internet users who allegedly copied and distributed his client’s film via the Internet. Instead of ruling on Mick Haig Productions’ discovery motion that sought to learn the Does’ identities, Godbey appointed ad litems to represent the Does’ interests. Mick Haig later dismissed its case with prejudice.

Last year, the ad litems filed a motion for sanctions against Stone, after they informed Godbey that “Stone had been issuing subpoenas to the Does’ ISPs [Internet Service Providers] even though the Court had not authorized him to do so,” Godbey wrote in his Jan 24 order. The ad litems also asked for attorneys’ fees for the cost of litigating the sanctions motion.

On Sept. 9, 2011, Godbey issued a sanctions order against Stone, ordering Stone to pay $10,000 into the court registry, pay the ad litems’ attorneys fees for bringing the motion for sanctions, and file a copy of the sanctions order in every federal or state proceeding in which Stone represented a party.

On Oct. 26, 2011, Stone filed a motion with Godbey to stay the imposition of sanctions pending appeal, arguing that filing a copy of the sanctions order in every proceeding in which he represents a party “will result in irreparable harm.”

Godbey was not sympathetic to that argument, writing in his Jan 24 order that “it is Stone’s actions, and not the resulting Sanctions Order, that do damage to his professional goodwill.” Godbey denied the stay and ordered Stone to pay $22,000 in attorneys’ fees.

In his appeal to the 5th Circuit, Stone writes that the sanctions order harms not only him but his client because “it prematurely harms Counsel’s goodwill and impinges on his clients’ respectful rights to a fair trial, but has very little to do with deterring purportedly erroneous subpoenas.”

Stone did not immediately return a call seeking comment. Paul Alan Levy, an attorney with Public Citizen’s Litigation Group who is an at litem in the case, says it regrettable that the dispute has come to this. “I just hate to pursue sanctions against lawyers,” Levy says. “But this lawyer has gone beyond the pale.”

-- John Council

Baker, Donelson picks up seven lawyers in a merger with Drucker, Rutledge & Smith

Baker, Donelson, Bearman, Caldwell & Berkowitz picked up seven lawyers for its four-month-old Houston office in a merger today with Drucker, Rutledge & Smith of The Woodlands. Baker Donelson entered the Texas market in October 2011 when it merged with Houston’s Spain Chambers. The new group will boost the Houston office to 20 lawyers. While the merger is effective today, the seven Drucker Rutledge lawyers won’t move to the Houston office from their current space in The Woodlands until early March.

Ben Adams (pictured), chairman and CEO of Baker Donelson, says the Drucker Rutledge group’s business litigation experience adds to the Spain Chambers lawyers’ tort experience. “Houston is a very large market, and, to serve the market, we need a lot more than seven or eight lawyers. The plan was always to expand the office and to get more critical mass and more areas of service,” Adams says.

The Drucker Rutledge lawyers joining Baker Donelson are shareholders Douglas Drucker, Karen Smith (pictured), Joseph Kennedy and Kirby Hopkins, and associates Rachel LeMay, Joseph Crescenzo III and Jessica Hinkie.

Smith says Drucker Rutledge partner Richard Rutledge chose to maintain a solo practice in The Woodlands. Rutledge did not immediately return a telephone message seeking comment.

Smith says she and others from her firm are excited to join Baker Donelson because the firm’s size will allow them to offer existing clients a broader range of experience and resources. Also, she notes, both firms have a client-focused philosophy. Smith says Drucker Rutledge clients include The Woodlands Land Development Co. and Woodforest National Bank, both of The Woodlands, and Cinemark Holdings Inc. of Plano. Baker Donelson has 615 lawyers and offices in seven states, Washington, D.C., and London.

-- Brenda Sapino Jeffreys

Historical marker recognizes struggle to posthumously exonerate Tim Cole

The first man in Texas to be exonerated posthumously by DNA evidence will be honored Feb. 6 when a historical marker is dedicated near his grave in the Mount Olivet Cemetery in Fort Worth. Tim Cole was convicted of rape in Lubbock in 1985 and died in prison in 1999 still proclaiming his innocence. Represented by Jeff Blackburn, chief counsel for the Innocence Project of Texas, Cole’s family launched an effort to have his name cleared. In February 2009, then-299th District Court Judge Charlie Baird exonerated Cole and ordered his record expunged after Jerry Wayne Johnson testified during a court of inquiry that he had committed the rape for which Cole was convicted. Gov. Rick Perry granted a posthumous pardon to Cole for innocence, according to a news release issued by the Office of the Governor on March 1, 2010. As noted in the governor’s press release, DNA testing after Cole’s death proved his innocence. Debbi Head, spokeswoman for the Texas Historical Commission (THC), says Cole’s family worked with the commission to get a historical marker erected for him. Head says the THC approved the historical marker for Cole on July 29, 2011. Bob Brinkman, the THC’s historical marker coordinator, says the marker for Cole was included in the commission’s Undertold Marker Program established in 2006. Two events are planned for Feb. 6 in connection with the dedication of Cole’s marker: A 90-minute program on the “Truth About Tim Cole and Texas Justice” is scheduled for noon in the Bernie Schuchmann Conference Center at Texas Wesleyan School of Law. The law school, the Innocence Project of Texas and the Wesleyan Innocence Project are sponsoring the program. Head says Cole’s family will unveil his historical marker at a ceremony scheduled for 4 p.m. in the Mount Olivet Cemetery, 2301 N. Sylvania Ave., Fort Worth. Baird, now head of the criminal law section at the Fowler Law Firm in Austin, says the marker memorializes the tragedy of Cole’s case and the fact that Cole never gave up trying to prove his innocence. “In my mind, it was the most important case I ever participated in . . . in my 20 years as a judge,” Baird says. Blackburn, a partner in Blackburn & Tisdell in Amarillo, will speak during the noon program. When asked about the significance of the Cole historical marker, Blackburn says, “It’s clear that the struggle for reform [of the criminal justice system] has taken a long time and will take a longer time still, but this is an important milestone in that struggle.”
-- Mary Alice Robbins

Morning docket

Grand jury won't indict DA's office, but issues strong rebuke (Houston Chronicle)

Judge: BP contract shielded Halliburton in spill (Associated Press)

The Lateral Report 2012 (The American Lawyer)

Judges troubled, baffled with Texas redistricting (San Antonio Express-News)

Prosecutors may review cold case similar to 2 other slayings (Austin American-Statesman)

Justice Stevens, in new memoir, rebukes Bush for 2000 recount maneuver (The Washington Post)

-- Angela Morris

Thompson & Knight elects first female managing partner

Emily Parker (pictured), the first female lawyer at Thompson & Knight and its first female partner, will become its first female managing partner on Feb. 15.

Parker, a tax partner in Dallas, will succeed Jeffrey Zlotky, who has been managing partner since July 1, 2009. Parker says her priorities are to increase the 337-lawyer firm’s presence in Houston, New York City and at its Dallas headquarters.

She notes that the firm completed a strategic planning process over the past year. “[W]e’ve reached a clear consensus for growth in response to client needs, and I think that’s where I would like to take the firm,” she says.

Parker says over the past few months, the firm’s management committee vetted a number of potential candidates for managing partner, and then the committee nominated her to become the managing partner. She says the firm’s equity partners voted on her candidacy, and that vote was completed on Jan. 20. Parker says she was elected to a one-year term, but she has committed to serve a minimum of three years.

Parker joined Thompson & Knight in 1973, after graduating from Southern Methodist University Dedman School of Law. She has been at the firm throughout her career, except for 2002 through 2004, when she was deputy chief counsel and acting chief counsel at the U.S. Internal Revenue Service.

Parker says she decided to take on the managing partner job to “make a difference here.”
Zlotky says he wanted to step down as managing partner, and is looking forward to returning to his transactional practice. He says that when he became managing partner in July 2009 because then-managing partner Pete Riley was ill, he thought it would be a temporary assignment, but Riley passed away a few weeks later.

“At that particular time, we needed someone to step in quickly who had the support of our partners, but at my age then and my age now, I’ve never wanted to give up the practice,” Zlotky says.

Parker says she will take over on Feb. 15 at the firm’s annual partners’ retreat.
-- Brenda Sapino Jeffreys

Country music singer, investor file defamation suit

Jason Cassidy, “a rapidly rising national star in the country music genre,” and investor A-Blake Records filed a defamation suit Jan. 26 in the 195th District Court in Houston. According to the petition in A-Blake Records, et al. v. Michael Sanders, et al., Spring resident Michael Sanders and unidentified Doe defendants have posted defamatory, false and harassing statements on the Internet about Cassidy. The petition claims Deer Park-based A-Blake has invested several hundred thousand dollars developing and promoting Cassidy. His lyrics make promises about getting to “Honky Tonk Heaven” with “boots on” and remind listeners that “sometimes a man just needs a breather.” The petition alleges causes of action for defamation, interference with a business relationship, and intentional infliction of emotional distress. The plaintiffs seek an unspecified amount of damages, including exemplary damages from each defendant, and temporary and permanent injunctions barring the defendants from further posting the alleged defamatory statements. Sanders has an unpublished telephone number and thus could not be reached for comment. No lawyer is listed on the court records as representing Sanders. Houston solo Jack Terry represents Cassidy and A-Blake and says he does not know if Sanders has counsel.

-- Miriam Rozen

In wake of forms fight, State Bar creates task force to study indigent pro se litigant issues

The State Bar of Texas has created a task force to study issues related to indigent pro se litigants after controversy reached a crescendo last week over a Texas Supreme Court effort to make pro se divorce forms.

State Bar of Texas President Bob Black (pictured) yesterday wrote to Texas Supreme Court Chief Justice Wallace Jefferson to inform him about the new “SOLUTIONS 2012” task force. The move comes after the Bar’s Family Law Section and the Texas Family Law Foundation objected to an effort by the high court’s Uniform Forms Task Force to create standardized forms for divorces. The Family Law Section have also raised questions about the Texas Access to Justice Commission, which helped the forms task force with its work.

“I do not know what SOLUTIONS 2012 will ultimately decide in terms of forms, but I’d like to point out forms already exist, and if forms alone would solve the problem, we would not have the problem,” says Black, managing shareholder of MehaffyWeber in Beaumont.

On Jan. 25, Jefferson wrote Black to say the high court sent the draft divorce forms to its Supreme Court Advisory Committee for review, despite a Jan. 20 resolution by the State Bar’s board of directors that asked the court to delay work on the forms. But Jefferson also wrote that the court appreciated and accepted the Bar’s “offer to assist” with the mission of providing poor citizens with access to justice.

Jefferson says about the Bar’s task force, “We need the legal profession, and particularly the State Bar’s input, on this very important issue. We’re thrilled they’re going to take a serious look at this and provide recommendations to the court and advisory committee.” 

He says he hopes some of the recommendations may include things like increasing monetary contributions from lawyers for indigent legal aid, creating new robust pro bono assistance programs, and forming county programs to assist pro se litigants.

“The profession, I think, has an obligation to help those who cannot afford a lawyer gain legal representation, and access to the courts,” says Jefferson, adding, “This sort of focus on the problem is exactly what we need.”

Black says, “I’m looking for solutions: practical, measured solutions that address identified real problems. That’s what I think is the proper role for the Bar to play in this.”

For example, Black says not all courts accept the forms that pro se litigants are using already, so education may be “a good and valuable thing.” If the task force finds pro se litigants create court backlogs, Black says the Bar could “attack those backlogs and do some pro bono work.” He says he wants to start a dialogue on how best to address the long-term needs of indigent self-represented litigants, because it’s a problem “that’s going to be present for years.”

SOLUTIONS 2012 includes two co-chairs and 15 members. Black says he chose members to represent various interests, like district clerks, access to justice proponents, legal aid providers, the Family Law Section, the Uniform Forms Task Force and more. He wants the task force to prepare a preliminary report and present findings at the April 13 State Bar board meeting and at the April 13 to 14 meeting of the Supreme Court Advisory Committee.

-- Angela Morris

Morning docket

The Strongest Law Firm Brands in the Land (The AmLaw Daily)

Report Finds Demand for BigLaw Services Declining as Headcount Grows (ABA Journal)

Michael Barrow (Life in the Harris County Criminal Justice Center)

Texas redistricting talks stall (Austin American-Statesman)

Closing arguments set in Texas redistricting trial (Associated Press)

Transocean Wins Indemnification from BP for Gulf Oil Spill — Could Halliburton Be Next? (The American Lawyer)

With trial pending, BP asks judge to cull experts (Associated Press)

Texplainer: What is a Court of Inquiry? (The Texas Tribune)

-- Angela Morris

Texas Supreme Court Advisory Committee: Expedited trials in cases with damages not exceeding $100,000 should be voluntary, not mandatory

To meet a requirement in the 2011 loser-pays law, the Texas Supreme Court must now review two sets of rules for expedited trials. The high court’s task force couldn’t agree on whether expedited trials for low-dollar cases should be mandatory or voluntary.

The Supreme Court Advisory Committee considered the question on Jan. 27, deciding 26-18 that expedited trials should be voluntary. That vote is not binding on the high court.

House Bill 274, the loser-pays law, says the rules for expedited trials are for cases with total damages not exceeding $100,000. The rules are supposed to lower discovery costs and ensure cases are expedited through the courts. The court created the Task Force for Rules in Expedited Civil Actions to draft the new rules. The task force issued its final report Jan. 25 and presented the rules to the SCAC on Jan. 27.

The Jan. 25 report says the task force agreed on many ways to expedite cases: limiting pretrial discovery, requiring parties to disclose documents that support their claims or defenses, setting time limits on oral depositions, requiring courts to follow a mandatory time frame to set cases for trial and prohibiting judges from ordering expedited cases into mandatory alternative dispute resolution. The task force also agreed the $100,000 cap must include damages, as well as costs and attorney’s fees.

But the task force couldn’t agree on the mandatory vs. voluntary question, so it created two sets of rules, one for each scenario.

At the SCAC meeting, task force members Alan Waldrop and David Chamberlain explained the viewpoints of each camp.

“Some aspect is going to have to be mandatory, or it just isn’t going to be effective,” said Waldrop, a partner in Locke Lord in Austin, who generally represents defendants and also serves as outside counsel for Texans for Lawsuit Reform. He says a plaintiff would only face an expedited trial if his pleading claimed damages of $100,000 or less — to avoid it, a plaintiff could claim more.

After an initial pleading triggered an expedited trial, Waldrop explained there would be two “escape hatches” for either a plaintiff or defendant to avoid an expedited trial: filing and winning a motion for good cause, or filing an amended pleading or a counterclaim seeking damages of more than $100,000.

But if a court denied either party’s “escape,” the defendant would get “stuck” with an expedited trial, and the plaintiff would have to accept a “trade-off,” Waldrop said.

“The plaintiff cannot recover a judgment for more than $100,000, period,” he said.

Chamberlain, a senior partner in Chamberlain McHaney in Austin who represents defendants, told the advisory committee he thinks a mandatory rule would be “fundamentally unfair” for defendants, because a plaintiff’s pleading would choose the expedited trial, but “[t]he defendant doesn’t have that option.”

He said a voluntary rule would get better results and “it’s just a matter of educating the bench and the bar about its benefits.”

Chamberlain said, “You can do a lot more with a voluntary rule” — for example, limiting the jury to six people, limiting the length of the trial to two days and limiting the types of appellate challenges. The Constitution and other statutes would prevent those restrictions under a mandatory rule, but the limits would be permissible if both parties voluntarily agreed to them.

“This is designed to be a procedure to be available to the parties that just want a quick answer. They want a ‘yes’ or a ‘no,’ and they want it in two days. Once they get their answer, they’re going to live with it,” Chamberlain said.

Justice Nathan Hecht, the Supreme Court’s liaison to the advisory committee, says the court will consider all the advisory committee’s comments about the task force’s draft mandatory and voluntary rules. The court hopes to seek public comment on the rules this summer, leaving plenty of time to get feedback and make revisions before the 2013 Legislative session.

-- Angela Morris

Highland Financial Partners LP and related companies seek $95 million from Orrick, Herrington & Sutcliffe in state court suit

Dallas’ Highland Financial Partners LP and two related companies filed suit in state court on Jan. 25,alleging “legal malpractice/negligence” against Orrick, Herrington & Sutcliffe in connection with how Orrick handled a financial transaction. In the petition filed in the 68th District Court in Dallas County, Highland Financial, Highland CDO Opportunity Master Fund LP and HFP CDO Construction Corp. — which the petition refers to collectively as plaintiffs or Highland — allege Orrick, Herrington & Sutcliffe LLP of Los Angeles and Orrick, Herrington & Sutcliffe (Europe) LLP of London — which the petition refers to collectively as defendants or Orrick — were negligent in connection with a “proposed multimillion-dollar collateralized debt obligation (‘CDO’) transaction between Highland as borrower and Royal Bank of Scotland plc (‘RBS’) as lender.” But Baker Botts partner Rod Phelan of Dallas who represents Orrick writes in a statement, “Orrick's advice was correct, thoughtful, and well within the standard of care.” Highland alleges it hired Orrick in 2007 and 2008 to review two amendments aimed at extending a deadline to close the CDO transaction. The plaintiffs allege Orrick knew Highland paid RBS more than $65 million for the “purported extensions” but Orrick “committed a critical error when it failed to advise Highland that the Amendments did not remove a provision in the original agreements that permitted RBS to terminate the CDO transaction at will.” They allege that, as a result, they paid RBS tens of millions of dollars for “meaningless extensions.” They allege in Highland CDO Opportunity Master Fund LP, et al. v. Orrick, Herrington & Sutcliffe LLP, et al. that RBS “capitalized on Orrick’s negligence” and terminated the transaction in October 2008 to take advantage of an international accounting standard that allowed RBS to report a $30 million windfall profit when it foreclosed on the underlying assets. As a result, the plaintiffs allege in the petition, Highland lost the $65 million it paid to RBS and now faces an approximately $30 million “alleged deficiency.” Highland seeks actual damages of about $95 million plus interest. Phelan’s written statement notes, “Highland's attempts to blame others for its miscalculation of the market for mortgage-backed securities — first RBS and now Orrick — will not succeed.” Phelan writes Highland was “well aware” of the provision allowing RBS to terminate the transaction. “It’s customary, and Orrick had just reminded Highland of a similar provision in another deal. Aware of this standard provision, Highland didn't ask Orrick about it on the RBS deal,” Phelan writes. He writes that Orrick answered Highland’s questions on the deal and “did not discuss the business risks Highland took when it chose to bet on a market turnaround rather than refusing to post more collateral, which would have killed the deal but stopped Highland's bleeding.” Plaintiffs’ lawyers William Reid IV and Lisa Tsai, partner in Reid Collins & Tsai in Austin, each did not immediately return a call seeking comment.
-- Brenda Sapino Jeffreys

This week in Texas Lawyer

BAM!: Alan Loewinsohn (pictured) speaks with senior reporter John Council about winning more than $21 million in fees for his clients, three big name, Big D lawyers.
 
Another bite at the apple: A Fort Worth inventor is suing his former lawyers a second time. Senior reporter Brenda Sapino Jeffreys reviews the $100 million suit.

FLSA suit: Defense attorney William Stukenberg (pictured left) and plaintiffs’ lawyer Alex Mabry (pictured right) talk with senior reporter Brenda Sapino Jeffreys about a Houston judge’s decision to conditionally certify a class in an FLSA suit against a firm.

Do-it-yourself divorce: The Texas Supreme Court won’t suspend the uniform forms task force’s work on pro se divorce forms.

Approach the bench: Judge Robert Trapp visits with reporter Angela Morris about his Coldspring adventures and venturing into his courtroom.

Red-light cameras: Houston residents can intervene in a contract case between the city and the maker of red-light cameras, the 5th U.S. Circuit Court of Appeals has ruled.

Guilty: Senior reporter John Council has the details on Dallas plaintiffs lawyer Scott Marshall’s guilty plea for murdering the ex-wife of Marshall’s former law partner.

Litigator of the week: A Houston lawyer won $1.9 million in a negligence case, with help from a carefully worded closing argument.

EDTX patent suits. Case summaries. Discipline. VerdictSearch. Newsmakers. Inadmissible.

Special FOCUS Report: Litigation and E-Discovery
A-Z on e-discovery: Sofia Adrogué and Caroline Baker write that the evolution and explosion of the Information Superhighway continues in 2012.

Seven deadly sins of document review: Dalton Young helps keep those in charge of doc review on the straight and narrow.

RIP: Nancy Frachtman speaks from experience about what to do when a client dies.

Why PIRAC? Get tips for motion practice in Travis County from Sara M. Foskitt (pictured), who used to work for a district judge there.

Insurance law: Here's a must-have, quick guide to the burdens of proof in coverage litigation from R. Brent Cooper.

Dallas IP firm Klemchuk Kubasta eliminates receptionist position, spread duties among staff

Klemchuk Kubasta, a 13-lawyer intellectual property firm in Dallas, no longer employs a receptionist to answer the phone or sign for packages. As of Jan. 1, all nonlawyer employees, from the office manager to the docketing clerks, are taking turns staffing the centrally located reception desk, says founding partner Darin Klemchuk. (Tessa Redel, the firm's director of employee services, is pictured at the front desk.) “This has been great for our culture,” Klemchuk says, noting that employees are getting to know clients and each other better. Klemchuk says that since the firm opened in 2009, the firm has hired college graduates for the receptionist position, but each would be promoted after a few months. He says the last receptionist was recently promoted to executive assistant, so Klemchuk decided to have the staff share the job instead of continuing on a path of hiring a new receptionist every few months. Klemchuk says he was a bit apprehensive, because he thought there might be a few people with “bad attitudes” about having to sit at the reception desk for a half day every two weeks. But, he says, it’s gone “really well,” despite a few dropped telephone calls. To make it work, Klemchuk says, the lawyers at the firm had to promise to respect everyone’s time on the reception desk. “You can’t go play the trump card and get somebody off the desk because you failed to do your filing on time,” he says. With the money the firm is saving without a receptionist position, Klemchuk says the firm may hire a client services director. 
--Brenda Sapino Jeffreys

Morning docket

Couple's fight with pipeline company pits Texans' love of oil vs. love of land (Victoria  Advocate)

As Email Disclaimers Proliferate, Some Lawyers Say They Are Unenforceable (ABA Journal)

Austin police use of doctored DNA report in interrogation raises legal questions (Austin American-Statesman)

Redistricting Judges Tell Lawyers to Negotiate Maps (Texas Tribune)

Cowen Group Survey Predicts Big Revenue Spike for Litigation Support (Law Technology News)

Houston attorney named ABA Problem Solver (Houston Business Journal)

NY Times Reporter Sounds off on Legal Education, Accreditation and the ‘Crazy’ Race for Rankings (ABA Journal)

-- Angela Morris

Texas Supreme Court rules in case involving takings, nuisance, separation of powers

After reading and reporting on Texas Supreme Court rulings for the better part of 12 years, I can honestly say that no decision has hit closer to home for me than Jan. 27's City of Dallas v. Heather Stewart — about seven blocks to be exact.

The decision concerns what once was a handsome brick Craftsman-style bungalow located 6017 Hudson, a mysteriously abandoned property that I used to ponder while walking my dog in my East Dallas neighborhood. Years ago, bulldozers leveled that house  (empty lot, pictured), but I never knew why. However, the Supreme Court today tells the story of Heather Stewart’s house, 6017 Hudson.

“Between 1991, when Stewart abandoned her house, and 2002, when the City demolished it, the Stewart home was a regular stop for Dallas Code Enforcement officials. Although utilities were disconnected and windows boarded up, the home suffered vandalism in 1997 and was occasionally occupied by vagrants. Stewart did little to improve the property, apart from building a fence to impede access, and she consistently ignored notices from the City. Inspectors returning to the home often found old notices left on the door,” Chief Justice Wallace Jefferson wrote in the majority opinion.

Stewart fought a demolition order in municipal board proceedings, lost and appealed the municipal decision to state district court. She eventually won $75,000 from a jury after arguing that the demolition was an improper taking by the city. The city appealed and the case ended up at the high court.

In a 5-4 decision on July, 1, 2011, the high court ruled in Stewart’s favor, upholding the award. The city filed for rehearing and numerous other Texas cities filed amici briefs, worried that “failing to accord administrative nuisance determinations preclusive effect will open the floodgates for takings claims. Because takings claims have a ten-year statute of limitations, they contend, parties will now sue to challenge demolitions that occurred any time in the past ten years,” according to Jefferson's opinion.

On Jan. 27, the high court withdrew its July 1, 2011, ruling, substituted another 5-4 decision and again ruled in Stewart’s favor. But this time the court concluded that Stewart "properly asserted her takings claim on appeal to district court" and met the proper deadlines — something that rarely happens when city demolishes a house because it becomes a "nuisance."

“The majority opinion was tweaked to make it clear that to protect your constitutional rights you need to file a direct appeal of the city board’s decision within the deadline. And it does not change the result to Ms. Stewart, because she did” meet the deadline, says Chris Bowers, an assistant Dallas city attorney who represents the city in the case. Bowers adds that the city is still deciding what to do next about the decision. “The case will have an impact on how cities deal with substandard or dilapidated properties,” Bowers says.

Julius Staev, a Dallas solo who represents Stewart, says the decision makes clear that people like his client who lose municipal demolition battles must file state court appeals immediately — as his client did. “Now it makes the decision very accurate and doesn’t leave a big issue like that open,” he says.

— John Council

Morning docket

Judge: BP contract shielded Transocean in spill (Associated Press)

Legal Aid Group Fights County for Unpaid Services (Texas Tribune)

Galveston judge fined $7,500 in malpractice lawsuit fight (Houston Chronicle)

More Bloodletting at Legal Services (The Blog of Legal Times)

State Court Funding Woes a Nationwide Problem, Panel Says (New York Law Journal)

-- Angela Morris

CCA grants habeas to prisoner who had been sentenced to 60 years in prison

“The case won’t be dismissed. I can tell you that,” says Amarillo District Attorney Randall Sims about the prosecution of Ernest Lopez II. Sims’ response follows a Jan. 25 Texas Court of Criminal Appeals decision in Ex Parte Ernest Lopez II granting Lopez’s application for writ of habeas corpus. In 2005, the 7th Court of Appeals in Amarillo upheld Lopez’s conviction in Potter County’s 181st District Court for aggravated sexual assault of a child and sentence of 60 years in prison, according to the per curiam opinion. The CCA noted that Lopez had alleged in his habeas application, among other things, that “his trial counsel provided ineffective assistance for failing to call medical expertsat the guilt or innocence stage of the trial to counter the testimony of the State’s medical experts that the physical evidence was indicative of sexual assault.” The CCA granted relief, based on the trial court’s determination “that trial counsel was deficient as alleged and that the deficient representation prejudiced Applicant” and recommendation that the CCA grant relief. The CCA ruling set aside Lopez’s conviction and sentencing and remanded him to the custody of Potter County to answer to the indictment. Asked if he expects to retry Lopez, Sims says that a decision about how to proceed will be made later and that the decision-making process is “fluid.” Heather Kirkwood, a Seattle solo who started representing Lopez after he lost his appeal to the 7th Court, welcomed the win for her client. She says the case “highlights some of the deficiencies in child abuse litigation. I think we should all recognize these are difficult cases with changing science."

-- Miriam Rozen

Morning docket

Rounding Up the 10 Biggest IP Litigation Wins of 2011 (Corporate Counsel)

U.S. Supreme Court Won't Hear Strip Club Fee Case (The Texas Tribune)

iPad Apps to Boost Productivity at Your Law Practice (Law Technology News)

May Lawyers Offer Groupon Deals? New York Ethics Opinion Allows It, with Caveats (ABA Journal)

Ex-Stanford employees testify of early suspicions (Houston Chronicle)

District attorney giving HPD $475,000 for breath-test units (Houston Chronicle)

State's witness concedes point in hearing on Texas districts (Fort Worth Star-Telegram)

The Legal Aftershocks of Fukushima (The Asian Lawyer)

Consumer Group: Supreme Court Favors Businesses (Texas Tribune)

Republic passes homestead law, sets aside land for education (Texas Day by Day)

-- Angela Morris

Copyright, trade secret suit filed over ballet reality show

Viewers may not be glued to televised tutu battles quite yet. But a complaint filed Jan. 23 in Dallas federal court alleges that two proposals have hit the market, each for a reality show about a ballet company putting together a performance. Aaron Davidson, a partner in the Dallas office of Baker Botts, represents John Harris Masterson in John Harris Masterson v. Lisa Jenkins et al. Masterson alleges in his complaint that he conceived of such a show, focusing on dancers and choreographers in the Texas Ballet Theater in Dallas, with a working title of "Starting Pointe." Masterson further alleges that the defendants — his former co-producers, Lisa Jenkins and Dallas-based Dreamfly Productions — are using his trade secrets and confidential information to try and market their own “extremely similar” proposed reality show, with the working title of "En Pointe." In his complaint, Masterson makes copyright infringement, trade secret misappropriation and breach of contract claims and seeks an injunction to stop Jenkins and Dreamfly from marketing "En Pointe." Jenkins, the president and CEO of Dreamfly, did not return a call to her office seeking comment. No answer has been filed in the case. Davidson says another Baker Botts partner introduced him to his client. “I don’t pretend to be part of the ballet world,” says Davidson, although he notes his daughters take dance lessons. Davidson says that he understands Dreamfly is working with a different ballet company than TBT.

-- Miriam Rozen