Texas Lawyer Blog

Morning docket

Law360 interviewed lawyers at firms offering alternative billing, who offer tips for successfully using new fee structures. According to the story: “Firms tend to run into trouble when they rush in and offer a contingency fee or success-based bonus on a complex case without first stopping to map out, in detail, how they expect the litigation to go, what resources they will need to employ and exactly what success will look like, attorneys said.”

The Fort Worth Star-Telegramreports a judge in Tarrant County this week extended a temporary restraining order preventing a gas-drilling company from drilling in Southlake. XTO Energy already had announced it would withdraw its plans to drill, because the city refused to allow two more drilling locations. A neighborhood group had sued XTO Energy but says it will drop the suit once the company leaves, according to the article.

In court filings in federal court in Dallas, the Golf Channel says “$5.9 million received from companies run by indicted financier R. Allen Stanford was for media services and not proceeds from an alleged Ponzi scheme as the receiver for Stanford’s businesses claims,” reports Bloomberg news.

Grits for Breakfast criticizes a bill that passed the Senate yesterday that takes money from dedicated fees meant to pay juries and to fund indigent defense and diverts the cash to balance the state’s budget. Grits lists several other dedicated fees being diverted from the purposes they were set up to fund.

National Football League players are back to work today after a federal judge earlier this week lifted the league’s player lockout in an antitrust class action, according to Law360. An NFL statement “said that as of 8 a.m. Friday, players can use team facilities for physical examinations, rehabilitation and medical treatment, teams can hand out playbooks, coaches can meet with players and voluntary off-season workout programs can begin,” the story says.

-- Angela Morris

"Captain America" star Chris Evans headlines movie penned by Houston lawyer Paul Danziger and featuring Mark Lanier cameo

Like most skilled trial lawyers, Houston’s Mark Lanier knows how to put on a show in the courtroom. Now he has done it for real — or as real as it gets on the silver screen — playing a lawyer named Mark Lanier in a feature film loosely based on one of his cases. Lanier has a three-scene role in “Puncture,” which had its premiere April 21 at the Tribeca Film Festival in New York City. "Puncture" is the story of antitrust litigation filed over hospital purchasing of syringes designed to protect health-care workers from getting pricked by needles. The movie, filmed in Houston in 2010 at locations including Lanier’s house, is based on a script written in 2005 and 2006 by Houston lawyer Paul Danziger (pictured, left). In the movie, Lanier plays a lawyer named Mark Lanier who is brought in to help the lawyers handling the suit. In reality, “The movie has got some strong dissimilarities with the real case,” Lanier says. “It was certainly hyped up for Hollywood.” Lanier says the acting was fun. “I was asked to be a trial lawyer. It’s not really acting if you are playing yourself. I wasn’t asked to be some country singer from the 1930s,” he says. He says he appears in two scenes filmed on the steps of the Harris County Civil Courthouse and one in a conference room meant to be a settlement conference. He wore his own “1990s trial suit and tie” for the filming. Danziger says he wrote “Puncture” in part to bring attention to the dangers health-care workers face from accidental needle pricks and also to tell the story of his former partner, Michael Weiss. In the movie, Weiss, played by actor Chris Evans (who will star as Captain America this summer in the feature film "Captain America: The First Avenger"), is the lead plaintiff’s attorney on the litigation. (Evans is pictured in the photo on the right, above, flanked by Mark and Becky Lanier.) Weiss is deceased, and Danziger is now a partner in Danziger & De Llano in Houston. Lanier and Danziger, who both attended the film festival premier, say they enjoyed the movie. Danziger says the film makes Houston look good and it’s a “very gripping movie, a very interesting movie.” So have Danziger and Lanier found new careers as a scriptwriter and actor, respectively? Not hardly, they say. Movie producers and directors Adam and Mark Kassen are seeking a distribution contract, says Dani Weinstein, a press contact at ID-PR in New York City.
-- Brenda Sapino Jeffreys

Morning docket

Redistricting hasn’t passed the Texas Legislature yet, but The Texas Tribune reports that some are preparing already for “future court fights.” According to the article: “Much of the debate was dull — designed more for future court fights over redistricting than for rhetorical effect. Those fights are a near certainty, given redistricting history in Texas and the size of the differences between members over the plans.”

“Dismissing the testimony of the prosecution's main witness as unreliable, state District Judge Karen Sage on Wednesday found Jimmie Dale White not guilty in the 1986 killing of his roommate, Michael DesJardines,” reports the Austin American-Statesman.

Houston lawyer Joe Jamail gave $1 million to the San Marcos Academy to build a new special events center in memory of his wife, who died in 2007, reports the Austin American-Statesman. Lee Hage Jamail graduated from the school in 1944, and the couple had “long been supporters of the academy,” the story says.

Texas-based company Hill Country Farms must pay $1.76 million to some mentally disabled workers in Iowa, after a federal judge found the company’s subsidiary “violated the Fair Labor Standards Act by failing to properly pay 31 workers,” according to an Associated Press story in the San Antonio Express-News.

Discussing the U.S. Supreme Court’s decision yesterday in AT&T Mobility LLC v. Concepcion et ux., The New York Times quotes Vanderbilt University law professor Brian T. Fitzpatrick as saying, “This is a game-changer for businesses. It’s one of the most important and favorable cases for businesses in a very long time.” The article says the decision suggests that businesses can avoid class actions by using “standard-form contracts that require two things: that disputes be raised only through the informal mechanism of arbitration and that claims be brought one by one.”

The New York Law Journal reports that the 2nd U.S. Circuit Court of Appeals ordered an attorney and his client to explain why they shouldn’t be subjected to a $15,000 sanction after filing a suit accusing top U.S. government officials “of orchestrating the Sept. 11, 2001, terror attacks.” The 2nd Circuit affirmed the district court’s dismissal of the case, notes the story.

-- Angela Morris

Sarah Weddington discusses post-layoff plans

Sarah Weddington (pictured), the lawyer who argued Roe v. Wade in her mid-20s and went on to serve in various public service roles, recently learned that her contract would not be renewed for her faculty job at the University of Texas at Austin. She says she is “flabbergasted” about UT’s decision to terminate her contract, despite her experience, love of teaching, and success in mentoring students who say she helped them go on to impressive careers. “I thought if I was really good and I worked well with students, tenure was not significant. I found I was wrong,” she says. Weddington will leave at the end of May, after more than 20 years with UT-Austin. She is an adjunct professor in the Center for Women’s and Gender Studies within the College of Liberal Arts. She taught a class that gave undergraduate students a taste of law school, using a law-school textbook and the Socratic method, and a popular class about leadership in America. After Roe, Weddington served in the Texas House of Representatives, the U.S. House of Representatives, as general counsel of the U.S. Department of Agriculture and as adviser to U.S. President Jimmy Carter. “I would have thought that having that expertise available to students here would be appreciated, especially to have a lawyer who really likes being a lawyer available to work with people who want to be law students,” she says. Michelle Bryant, spokeswoman for the college, says she was unable to locate officials to comment before deadline. Weddington says she already has plans for when her contract ends in May. In 1992 she wrote a book about herself and Roe called “A Question of Choice.” She now will find time for another autobiographical book project, which chronicles what has happened since then. She also has a collection of records from her career, such as the original U.S. Supreme Court opinion in Roesigned by all nine justices, that she wants to get in order. “Some people say, ‘Maybe this is a good thing for you to have some time,’ because I’ve always been so busy,” Weddington says.

-- Angela Morris

Morning docket

A Law360article says a recent survey shows one-third of firms that use alternative billing report making higher profits than they did with the billable hour. The survey is the 2011 Facts About Alternative Fees report by The BTI Consulting Group. “Firm leaders who report making more money with alt-fees say they have changed the way they work with clients and the way they work internally, approaching matters in more creative ways to get the same result faster and with fewer resources, BTI President Michael Rynowecer said,” according to the article.

John Galligan, lead attorney for Fort Hood shooting suspect Maj. Nidal Hasan, says he will ask the post’s commanding general not to seek the death penalty against his client. According to an Associated Press story in the San Antonio Express-News, Galligan says, “death-penalty cases are more costly, time-consuming and restrictive. If Campbell decides that Hasan will be court-martialed and face the death penalty, Hasan will no longer have the option of pleading guilty and must have a jury trial rather than opt for a judge to decide the case, which could pose problems if an impartial jury cannot be found at Fort Hood, Galligan said.”

Aug. 10 will be the sentencing date for El Paso lawyer Luther Jones and former El Paso District Clerk Gilbert Sanchez, reports the El Paso Times. “Jones and Sanchez were convicted of conspiring from October 2003 to July 2004 to secure a multimillion-dollar digitization contract from the county for a company that Jones represented,” the story says.

“Two federal lawsuits filed against Williamson County this month both allege abuse by sheriff's deputies [—] one by a woman who says a deputy broke her hip in the county jail, another by a man who claims deputies broke his collarbone,” reports the Austin American-Statesman.

U.S. District Judge David Hittner on Tuesday reversed an earlier decision and ordered that Harris County Commissioner Jerry Eversole and real estate developer Michael Surface will face trial together for bribery charges. The judge agreed with the prosecution that trying the two men separately, especially after Eversole’s mistrial in March, would take too many court resources, reports the Houston Chronicle.

-- Angela Morris

Fulbright & Jaworski opens office No. 17 in Marcellus Shale

With shale work booming in the energy sector, Fulbright & Jaworski has opened an office in the Pittsburgh area, staffed by a group of six energy and environmental lawyers from K&L Gates’ Pittsburgh office. The new office is actually in Canonsburg, located southwest of Pittsburgh in an active area in the Marcellus Shale. Partner Ken Komoroski leads the group, which also includes partners Amy Barrette and Jeremy Mercer, associates Megan Smith Miller and Emily Beach Thomas, and counsel Matthew Sepp. The Pittsburgh office is the seventeenth for Houston-based Fulbright. The office opened on April 19, but the firm didn’t announce it until today. Komoroski says he and his group joined Fulbright because it’s the “best energy and environmental law firm in the country” and the firm’s energy expertise in Houston will help them with their work. Steven Pfeiffer, a Fulbright partner in Washington, D.C., who is chairman of the firm’s executive committee, says the firm has been doing a lot of work in the Marcellus Shale and can expand that with the new lawyers. “The Marcellus Shale is just an enormously important area,” Pfeiffer says. “We had people working there, and they needed the capability that Ken and his team bring.” He says the new lawyers and Fulbright had mutual energy industry clients, but he declines to identify them. K&L Gates has no comment, says Mike Rick, associate director of public relations, who returned a message left for Peter Kalis, K&L Gates’ chairman and global managing partner.
-- Brenda Sapino Jeffreys

Teacher, nonprofit seeks Rule 202 deposition of Texas Comptroller Susan Combs

Two Austin attorneys on Tuesday filed a petition seeking the depositionof Susan Combs, the Texas comptroller of public accounts, after her office recently announced it had stored the private information of 3.5 million Texans on a publicly accessible computer server. The petitioners are the Texas Civil Rights Project, an Austin nonprofit, and Sarah Canright, a teacher and member of the Teacher Retirement System of Texas whose personal information was on the publicly accessible server. Chuck Herring (pictured, right), a partner in Herring & Irwin in Austin, represents Canright. Jim Harrington (pictured, left) is counsel at and director of the Texas Civil Rights Project. “People’s privacy is very important to us. This has always been important to our work,” Harrington says. The petitioners seek videotaped depositions of Combs and another representative of her office to investigate potential claims for violations of Texas law. The petition, filed under Texas Rule of Civil Procedure 202, claims the release violated privacy protections in Texas Government Code §821.010, the Texas Public Information Act, common law and the Texas Constitution. Specifically, the petitioners want information about how and why the release occurred, the people responsible, the specific procedures the comptroller’s office allegedly violated, why it took so long to discover the error and more. “In short, Texans are entitled to know what the Comptroller did and what she failed to do, what she knew and when she knew it, what damages she caused and who is going to pay for it, and how to prevent her from ever doing this again,” according to the petition. Herring says he will schedule a hearing on the petition as soon as possible after a 15-day waiting period. R.J. DeSilva, a spokesperson for the comptroller’s office, e-mailed a statement from Combs about the petition: “I am deeply sorry for what has happened and my office is taking aggressive measures to help ensure that personal identification information is safeguarded. We cannot comment on any pending litigation. We will work with the Office of the Attorney General and provide them the information they need in responding to any legal action,” the statement says.

-- Angela Morris

Willie Nelson to serenade lawyer

If offered the chance to be serenaded by any Texan, many people would choose the great Willie Nelson. Yet, not everyone does the kind of work that merits a song from the Lone Star State music legend. Tonight, Nelson will sing to Jones Day partner Roy Atwood (pictured) of Dallas at a benefit concert at the city’s Meyerson Symphony Center. Atwood is a board member of LaunchAbility and has volunteered countless hours since 2000 helping the organization, which supports children and adults who have developmental disabilities. He will be honored at the concert with LaunchAbility's Milton P. Levy Outstanding Volunteer Award. “I’ve volunteered with LaunchAbility since a year after my son was born. I have a son with Down Syndrome. And I saw the difference the early interventionist made in our lives, and I knew I had to give back somehow. And I joined the board and have worked with the board ever since. It’s been very rewarding,” Atwood says. He says it’s special to him to be recognized with the award. But he won’t be saying much about it tonight on stage. “No long speeches tonight,” Atwood says. “I’m sure people are more interested in hearing from Willie than hearing from me tonight.”

-- John Council

Morning docket

The U.S. Justice Department, the Texas Office of the Attorney General and other agencies are investigating Community Health Services Inc., according to an article in HealthLeaders Media. That news comes after rival for-profit hospital company Tenet Healthcare Corp. alleged in a suit that CHS routinely overbills Medicare. CHS revealed the joint investigations in a filing Monday with the Securities and Exchange Commission, the article says.

A former transit driver who sued the Capital Area Rural Transportation System after it allegedly fired him “for refusing to take two women to a Planned Parenthood clinic last year” has settled with the agency for $21,000, reports the Austin American-Statesman. “System board members said they agreed to settle after determining that the cost of defending the suit could exceed the settlement amount,” the story says.

U.S. District Judge Susan Richard Nelson granted a preliminary injunction to end the National Football League’s lockout of players in the wake of a proposed antitrust class action. According to a Law360 article: “The irreparable harm to the players from the lockout would outweigh any harm that the injunction might cause the NFL, the judge said. In addition, the ramifications of a lockout would be felt throughout the industry, from TV networks to stadium concessions sales, according to Judge Nelson.”

-- Angela Morris

Duo creates app for parents-to-be

Allison W. Edwards (pictured, left) and Allison L. McDade (pictured, right) are lawyers, moms and entrepreneurs. They have created an application (app) for the iPhone and iPod Touch to help busy moms- and dads-to-be prepare for a new baby. “Your BFF During Pregnancy” sends a weekly message to users about decisions that should be made or items that should be purchased prior to the baby’s arrival, says McDade, a trademark and copyright senior associate with Austin’s PirkeyBarber. who works part-time from a home office in Dallas. “The genius, we think, of our iPhone app is with the calendar,” says McDade. “Every week on the calendar is what you need to do this week,” she says. “Such as: Get this type of furniture, because it takes four weeks to be delivered. It is what you need to be doing, short and sweet, and then links with resources.” Parents-to-be have many decisions to make about issues such as life insurance and child care in addition to furnishing a nursery, says Edwards, director of business development for Sumpter & Gonzalez in Austin. Edwards says she works part time at the firm and is “not doing client work at the current moment.” Between them, the two women have five children. Edwards says customers can download the app from iTunes for $4.99 and then enter a due date or anticipated adoption date. Customers also choose what day of the week and time they want to receive the weekly e-mail message. She says a message automatically pops up and reminds the customer, for instance, to install a car seat, because “they won’t let you leave the hospital without one.” That day’s message includes a link to a video that demonstrates how to install a car seat, Edwards says. The app also includes messages about diaper choices, laundry detergents and government recall lists, she says. The two lawyers met in 2000 when they were associates with Fulbright & Jaworski in Austin. The two remained friends while McDade went in-house with Dell Inc. in Round Rock before joining PirkeyBarber and Edwards joined Sumpter & Gonzalez. In 2009, someone McDade knew was pregnant and understood the medical aspects of pregnancy because she was in health care but was “clueless about practical things,” McDade says. So McDade and Edwards decided it would be fun to create a humorous video about practical matters, such as putting together a portable crib. From that idea, the two decided that apps were the wave of the future and spent 18 months, at night and on weekends, selecting topics, identifying resources, and meeting with logo and website designers, McDade says. “We’re both Type A; we’re lawyers,” she says. “We kept checking things off the list. It gained momentum that way.” The app is the first product of their company, Parent Prep School. The duo is currently working on an e-book version of the app for release this summer. Future products might include an app for parents during the baby’s first year, an app for parents during the toddler years and then an app for parents with teenagers – all providing “classical advice, presented in a humorous way,” McDade says.

-- Jeanne Graham