Texas Lawyer Blog

Weil, Gotshal to close Austin office

Weil, Gotshal & Manges today announced plans to close its Austin office by Dec. 1. Kevin Kudlac, a patent litigator and the sole partner in the Austin office will move to the firm’s Houston office, according to a statement from the New York City-based firm. Weil Gotshal says that all 16 lawyers and 11 support staff have been offered opportunities to transfer to the firm’s other offices including its two other Texas offices, Dallas and Houston. Those employees who decide not to relocate will receive transition benefits. As of Jan. 1, Weil Gotshal had 128 lawyers in Texas and 1,365 firmwide, according to Texas Lawyer’s “The Texas 100” poster published April 27. Glenn West, managing partner of the firm’s Dallas office, was not immediately available for comment. 

-- Jeanne Graham

Rice University, NCAA settle with family of athlete who died after workout

The family of Dale Lloyd II, a 19-year-old Rice University football player who died after a team workout in 2006, announced on June 29 that it has settled a suit against the school and the National Collegiate Athletic Association (NCAA). The suit against Rice, the NCAA and others was filed Sept. 23, 2008, in Harris County District Court, Lloyd's death, according to a joint release issued by Rice and the family announcing the settlement, was caused by a complication related to the sickle cell trait, a genetic blood condition. The statement does not disclose the terms of the settlement between the Lloyd family and Rice. The NCAA, represented by Andrews Kurth partner J. Wiley George of Houston, said in a statement that as a result of the settlement, it will recommend to member colleges and universities that they test student athletes to determine if they carry the sickle cell trait. The NCAA also will donate $50,000 to the Sickle Cell Disease Association of America in Lloyd's name and contribute $10,000 to a scholarship fund named after him, among other things. The family was represented by Lanier Law Firm associate Eugene Egdorf of Houston; Rice was represented by Rusty Hardin of Houston’s Rusty Hardin & Associates. The school and the family note in their statement that Rice, which already had agreed to do sickle cell trait testing on its athletes, will lead the way in working with the Lloyd family to help the NCAA make sickle cell trait testing mandatory for college athletes nationwide. Egdorf says that since Lloyd’s death, two other college athletes who were not tested for the sickle cell trait died related to complications from the condition. Egdorf and his clients hope the settlement will prevent future tragedies. The Lloyd family, Rice and the NCAA began a mediation on May 26 and announced the settlement nearly a month later. Egdorf commends the role that former Harris County District Judge Caroline Baker played as mediator. Hardin did not return a telephone call seeking comment.

-- Miriam Rozen

$1.67 billion verdict in Eastern District patent infringement suit

A patent infringement suit involving arthritis medications ended June 29 when a jury in the U.S. District Court for the Eastern District of Texas in Marshall returned a $1.67 billion verdict for Centocor Ortho Biotech Inc. against Abbott Laboratories. As the saying goes, everything is bigger in Texas, and that has proven to be true in patent litigation as well. According to Bloomberg.com, the verdict in Centocor OrthoBiotech Inc., et al. v. Abbott Laboratories is the largest patent verdict in U.S. history. Centocor, a wholly owned subsidiary of Johnson & Johnson, and New York University, co-owner of the patent for the prescription medication Remicade, filed suit against Abbott Laboratories and two of its subsidiaries in 2007. In their original complaint, Centocor and NYU alleged that Abbott Laboratories infringed on Patent No. 7,070,775 with Abbott’s Humira.  The jury agreed with the plaintiffs, finding that Abbott willfully infringed on the patent. Kim Taylor, Centocor’s president, writes in a statement, “We are particularly gratified that the jury recognized our valuable intellectual property, finding our patent both valid and infringed.” It’s not over yet, however. Abbott spokesman Scott Stoffel writes in an e-mail, “We are disappointed in this verdict, and we are confident in the merits of our case and that we will prevail on appeal.” Dallas attorney Leon Carter, who handles intellectual property and commercial litigation but was not involved in Centocor, was present for closing argument in the case. Carter, a partner in Munck Carter, says the jury’s verdict is not unrealistic given that the arguments revealed Johnson & Johnson has had $11 billion in sales from Humira over the past four or five years. Centocor and NYU had asked for a $2.2 billion verdict, Carter says.
-- Mary Alice Robbins

Altman Weil CLO survey: corporate law departments to decrease use of outside counsel

During the next 12 months, corporate law departments will decrease their use of outside counsel, according to an annual survey of chief legal officers conducted by legal consulting firm Altman Weil Inc. Forty percent of the corporate lawyers responding to the survey say they will send less work to outside counsel, while 27 percent say they have reduced the size of their own staffs. Altman Weil reports that 183 legal departments responded to the 2009 Chief Legal Officer Survey, or 15 percent of the 1,222 corporate legal departments invited to participate. Most of the respondents, 42 percent, are with corporations with $2 billion to $10 billion in annual revenue, 20 percent are with corporations with revenue exceeding $10 billion and 38 percent work for corporations with revenue of less than $2 billion. Altman Weil, which has conducted the annual survey since 2000, says the 2009 survey results indicate that the move toward alternative or nonhourly billing fees is accelerating. During 2009, 43 percent of the chief legal officers responding to the survey say they will pay more than 10 percent of outside legal fees in nonhourly based fees. In the 2008 survey, 27 percent of the corporate lawyers planned to pay more than 10 percent of outside legal fees in nonhourly based arrangements. The survey, as well as a summary of the survey results, can be found here.

-- Jeanne Graham

Judge accidentally shot in eye with blank during mock takeover of courtroom

For several years, 296th District Judge John L. Roach of Collin County had planned to engage in a mock hostile takeover of his courtroom with county sheriff’s deputies so he would be prepared for such an emergency if it ever occurred, says Roach's court coordinator Laura Thompson. But during a June 27 mock event in his courtroom, Roach, the son of Collin County District Attorney John R. Roach, got a little more realism than he expected. The judge was shot in the eye with a blank that still had gunpowder on it, Thompson says. Roach went to the hospital, had surgery to remove debris from his eye and now is recovering at home -- in some pain but expecting to regain his full eyesight, Thompson says. Roach did not return a telephone call seeking comment. Before the accident Roach had scheduled a week of vacation, Thompson says, so he hasn’t had to cancel hearings. Who shot the judge? Thompson says Judge Roach asked her not to tell reporters that information. “The person already feels bad enough,” she says. But Lt. John Norton in the Collin County Sheriff's Office identifies Bill Jouette as the accidental shooter. Jouette is the son of McKinney solo Barbara Lindsay Jouette. Bill Jouette as well as officers from the McKinney Police Department and members of the Collin County Citizens Academy, a volunteer organization trained by the Collin County Sheriff's Office, all participated in last Saturday's mock hostile takeover, Norton says. Barbara Lindsay Jouette says her son has been advised not to talk to the press; he did not return a telephone call seeking comment.

-- Miriam Rozen

Texas Supreme Court to State Bar board: try again

This sounds like déjà vu all over again. In June 2008, the State Bar of Texas board of directors decided not to make a recommendation to the state Supreme Court on whether the state should have a rule requiring lawyers to disclose whether they carry legal-malpractice insurance. The board took no action after a State Bar task force voted 6-5 against a disclosure rule. The issue did not go away, however. In a June 1 report to the Supreme Court, the Grievance Oversight Committee -- which is appointed by the high court -- recommended that the court adopt a rule that would require lawyers who do not have legal-malpractice coverage to notify clients in writing of that fact. Now, the Supreme Court wants the Bar board to take another look. Chief Justice Wallace Jefferson makes that request in a June 23 letter to Harper Estes, the State Bar’s immediate past president, and Roland Johnson, Bar president. In his letter, Jefferson asks the Bar board to review the Bar task force’s report and make a recommendation before February 2010. Johnson, a shareholder in Harris, Finley & Bogle in Fort Worth, says the Bar board welcomes the Supreme Court’s request and believes the court has given the board a fair time to consider the issue. Johnson says he anticipates the board will vote on the issue at its January 2010 meeting.
-- Mary Alice Robbins

South Texas law grad sues over $1 million challenge

David George, a partner in Houston’s Connelly Baker Wotring, says Dustin Kolodziej’s breach of contract suit against Florida criminal-defense lawyer J. Cheney Mason and Mason’s firm is serious. “It’s not a lark,” George says in an interview this morning. On June 17, Kolodziej, a recent graduate of South Texas College of Law, filed Kolodziej v. Mason, et al. in the U.S. District Court for the Southern District of Texas in Houston. In his original complaint, Kolodziej presents the following factual background on the case: Mason appeared on NBC’s “Dateline” in December 2006 to discuss the case of his client, Nelson Serrano, who was convicted and sentenced to death in 2006 for the 1997 murders of three people in Central Florida. Serrano’s defense was it would have been impossible for him to have committed the murders and been at the Atlanta La Quinta hotel by the time surveillance video showed him there. Mason argued on the “Dateline” program that Serrano would have had to get off a jet, exit the Atlanta airport and arrive at his hotel five miles away in less then 30 minutes to appear on the video at the time he did. Saying that no one could arrive at the hotel that fast, Mason then issued the following challenge: “I challenge anybody to show me, I’ll pay them a million dollars if they can do it.” As alleged in his complaint, Kolodziej traveled to Georgia in December 2007 to accept the challenge, retraced Serrano’s alleged route and traveled from the plane to the hotel in Atlanta within 28 minutes. Kolodziej alleges he made a video of his trip and sent the video along with a demand letter to Mason. But, as alleged in Kolodziej’s complaint, Mason responded in January 2008 that the challenge was just a joke. Kolodziej further alleges in the complaint that when he wrote to Mason again to demand payment, Mason responded in February 2008 with a threat to pursue criminal prosecution if Kolodziej wrote again. So Kolodziej filed the suit. George says Mason made the challenge and reiterated the challenge on the “Dateline” program. “It’s not a joke,” George says of Mason’s challenge, noting that Mason’s client is on death row. The person who answered the telephone today at Mason’s Orlando, Fla., firm says, after checking with Mason, “There will be no response from this office.”  
-- Mary Alice Robbins

Houston lawyer representing doctor with Michael Jackson when he died

On June 26, Houston criminal-defense attorney Edward Chernoff of Stradley, Chernoff & Alford began representing Dr. Conrad Murray, now the subject of international media attention since the doctor accompanied Michael Jackson to a Los Angeles hospital, where the pop star died on June 25. According to Chernoff spokeswoman Miranda Sevcik, Murray retained Chernoff -- based on a referral from another lawyer -- after the Los Angeles Police Department made a request to question Murray a second time regarding details of Jackson's medical condition. A statement released by Sevcik before that second interview says: "Investigators have made it clear to Mr. Chernoff that Dr. Murray is considered to be a witness to the events surrounding Michael Jackson’s death and he is not a suspect. Dr. Murray hired legal counsel to help guide him through the police investigation process. The law firm was hired to make sure the police investigation is conducted properly. Dr. Murray rode with Michael Jackson to the hospital and made frantic attempts to revive him along the way. Dr. Murray considered himself to be a friend of Michael Jackson and he is very distraught over his death. He will continue to cooperate in every respect." After the police interviewed Murray a second time on June 26, Sevcik wrote in a another statement that the doctor and his lawyer "have met with the LAPD for the 2nd time and have answered every and all questions asked by LAPD in an attempt to help piece together the mysteries surrounding the death of Michael Jackson. The meeting in Los Angeles today with police investigators lasted three hours. During the meeting Dr. Murray helped identify the circumstances around the death of the pop icon and clarified some inconsistencies. Dr. Murray has been in Los Angeles since the death of Mr. Jackson. He rode in the ambulance to the hospital and stayed at the hospital for hours comforting and consoling the Jackson family. Investigators say the doctor is in no way a suspect and remains a witness to this tragedy. Dr. Murray will continue to cooperate fully with the authorities and asks that all keep the Jackson family in their prayers. Dr. Murray was hired by Michael Jackson to accompany him on his concert tour in May of 2009. Dr. Murray has offices in Las Vegas and Houston, Texas. Dr. Murray will remain in Los Angeles until investigators no longer need his assistance with the investigation." The Web site for his firm says Chernoff graduated from the University of Houston Law Center in 1987 and he is a former Harris County assistant district attorney.

-- Miriam Rozen

This Week in Texas Lawyer

Pay plateau: Bad economy = flat salaries and billing rates. But research editor Jeanne Graham finds that firms aren't hesitating to mix it up when it comes to alternative billing arrangements.

Double whammy: Senior reporter Mary Alice Robbins looks into the one-two punch that hit Clark Thomas & Winters.

Inadmissible: Lawyer convicted. Paddle power.

Approach the bench: Not bilingual or even trilingual -- this judge speaks five languages. Senior reporter John Council gets some answers from 179th District Court Judge Randy Roll.

TRFRA-ic: Pastor, 1; city zoning, 0. Senior reporter Mary Alice Robbins looks at the high court's read on religious freedom.

$1.73 billion settlement: A case with high stakes settles. Senior reporter Brenda Sapino Jeffreys hears from the parties.

Newsmakers and Verdicts.

Night of the living dead: The assistant-at-law looks at how micromanagement turns staff into zombies.

I like being a lawyer: A. Clay Graham on why it's awesome to be an attorney.

Conjunctions, contractions and controversy

I’m a little fretful writing this blog. Should I have used a contraction in my last sentence? This question and other finicky details of writing were the focus of a talk by U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner at the State Bar of Texas’ annual meeting. The pair discussed how to persuade judges with the written word and in oral argument. Garner, a Texas lawyer and president of a consulting firm teaching advocacy, is co-author with Scalia of “Making Your Case: The Art of Persuading Judges,” available for purchase at the end of their talk for $29.95. Scalia, in his saucy and sarcastic manner, served up quite a few tips. For writing briefs, Scalia endorsed the use of conjunctions at the beginning of a sentence, even starting a sentence with “but.” He regards as “hackneyed” the expressions “fatally flawed” and “Roe v. Wade and its progeny.” As far as the use of contractions, Scalia and Garner have agreed to disagree, but the justice favors leaving them out of briefs. Scalia dubbed them "Jacobin" and argued they “pull everything down to the street level.” He asked rhetorically, “Is any judge going to get mad because you don’t use contractions?” In addition, he said that legal writing with lots of italics tends to read “like a high school girl’s diary.” Perhaps his sternest warning was about citations. Characterize cited precedents accurately: “When a judge sees that you are playing fast and loose with a citation, he is not going to believe the rest of your brief.” Another hot topic: footnotes. Scalia, despite his co-author’s strongly held alternative view, endorsed the use of footnotes -- even to advance arguments -- but he wants citations placed in the text. As for oral argument, Scalia told the lawyers to welcome questions from the bench, to be likable, to enunciate correctly and carefully (particularly justices’ names and any Latin words), and not to glance at the clock when a justice interrupts with a question. He counseled lawyers to look judges in the eye; when faced with a hypothetical panel of nine justices, advocates should not gaze solely at the ninth justice, who may be the swing vote in a 5-4 decision. “He will be embarrassed, and the other justices will be mad,” Scalia explained. His pet peeve: when lawyers respond to a hypothetical example by saying it is “not this case.” Going through his mind at that point, Scalia said, is the thought, “I know it’s not this case, you idiot.” But appellate judges must make decisions that govern many cases, not just the one before them, he explained.
-- Miriam Rozen