Texas Lawyer Blog

Motion for new trial granted in child support suit filed against Dallas Judge Carlos Cortez

On May 17, a Williamson County judge granted a motion for new trial in In the Interest of Henry, a Child. Earlier this year Melinda Henry had filed an "Original Petition in Suit Affecting the Parent-Child Relationship" alleging that 44th District Court Judge Carlos Cortez of Dallas is obligated to pay child support for her son. But Cortez alleged in an April 7 trial brief that he voluntarily agreed to genetic testing to determine his “paternal status” and the test results stated that “there was a zero-percent probability of a genetic relationship between the alleged father and child.” At an April 7 hearing, Judge Tim Wright of Williamson County Court-at-Law No. 2 ruled as a matter of law that Cortez was not the father of Henry’s child. Wright found that Texas Family Code §166.607 sets a time limit of four years to bring a proceeding to determine the parentage of a child who has a presumed father and that the child’s 4th birthday already had passed when Henry filed the suit seeking child support. Henry filed a motion for new trial on May 4 alleging that the court erred in its decision because §166.607 states that a proceeding to disprove a father-child relationship “may be maintained at any time” if the court determines that the presumed father, Henry’s husband, and the “mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception. . . . The Court did not allow Movant to put on evidence regarding the impossibility of the presumed father being the biological father nor did the Court allow Movant to testify. No evidence supports the Court’s ruling,” Henry alleged in her motion for new trial. Cortez did not return a telephone call seeking comment. Neither did his attorney, Laurie Nowlin, a partner in Round Rock’s Akins, Nowlin & Prewitt. In his May 17 response in opposition to the motion for new trial, Cortez argued that Henry’s motion “contains evidence that was not introduced through pleading or through testimony.” Henry’s lawyer, Round Rock solo Teresa Duffin, says the new trial hopefully will result in Cortez taking another paternity test. Henry made a sworn statement (currently filed under seal) in a defamation suit Cortez had filed against a Dallas lawyer in Judge Carlos Cortez v. Coyt Randal “Randy” Johnston, which has since been nonsuited. ALM Media, Texas Lawyer’s parent company, has retained counsel to argue that Cortez’s deposition and Henry’s statement, among other things, should not be sealed.

-- John Council

This week in Texas Lawyer

Practice makes perfect: Senior reporter John Council leads a roundtable discussion with Dallas judges (pictured left) about their motion practice preferences.

Schools, speech, religion, gifts: Senior reporter John Council heads to New Orleans for oral arguments in what's come to be known as the candy-cane case.

Approach the bench: Reporter Angela Morris talks to one of the longest serving judges in Texas.

 Guilty: Two former Jenkens & Gilchrist shareholders convicted in tax shelter case.

20-20 hindsight: Former U.S. Attorney General Alberto Gonzales "disappointed" in his conduct in hiring of DOJ attorneys.

Litigator of the week: Reporter Miriam Rozen reports on a Houston lawyer's victory in a trade secrets suit.

Appellate lawyer of the week: Senior reporter John Council addresses a double-recovery argument that was defeated at the 14th Court. 

Verdicts & Settlements: $20,000 for neck and back injuries; unlicensed teen driver to blame for crash.

Correction. Case Summaries. Discipline. Newsmakers. Inadmissible.

Just do it: How to find time to work and market.

Interesting characters: The 10 attorney types in joint defense groups.

Bill seeking judicial system administrative reforms dies in Texas House

A bill seeking Texas judicial system administrative reforms died in the Texas House when representatives failed to adopt the bill’s conference committee report before midnight on Sunday, the deadline for the regular legislative session. “Do you want to know how long I cried before I went to sleep that night?” says state Rep. Tryon Lewis, R-Odessa, who sponsored Senate Bill 1717 in the House. He adds, “It was a really good bill with a lot of work by a lot of people — so obviously I was very disappointed.” But Lewis says he and other lawmakers asked Gov. Rick Perry to put the bill on the agenda for the special session that starts today. Lewis says he expects to know by early next week if that could happen. S.B. 1717 was an omnibus bill that would have changed the operation and administration of the judicial branch. One significant provision would have made it easier for district courts to transfer cases and for district judges to preside in another courtroom if a judge were away for any reason. Another major provision would have created uniform jurisdictional limits, functions, rules and definitions for county courts-at-law. The Senate initially passed S.B. 1717 on April 26, and on May 23 the House approved the bill after adding 19 amendments. Because there were differences in the two chambers’ versions, a conference committee of senators and representatives met and negotiated a final version on Saturday. The Senate adopted the conference committee report by the legislative deadline, but the House did not. The bill’s author, state Sen. Robert Duncan, R-Lubbock, did not immediately return a telephone call seeking comment. Similar provisions in bills introduced in 2007 and 2009 also failed to pass the Texas Legislature. Carl Reynolds, administrative director of the Office of Court Administration (OCA), says he is disappointed S.B. 1717 failed during this session. “I think it was a lot of positive improvements that will have to wait another two years to even argue for,” he says. While waiting, Reynolds says he hopes to jumpstart work on one S.B. 1717 provision that required the OCA to study county courts-at-law that have jurisdictional limits higher than $200,000 to determine the feasibility of converting them into district courts. “I want to help Sen. Duncan and others to advance the cause if we can do some work on that,” Reynolds says.
-- Angela Morris

Lawmakers share thoughts before signing ceremony for loser-pays bill

Gov. Rick Perry (pictured, seated) on Monday signed into law a tort reform bill that includes loser-pays provisions that award attorney’s fees to winning litigants after judges dismiss meritless suits and award attorney’s fees in some cases after litigants reject settlement offers. In a video of a press conference before the bill signing ceremony, Perry acknowledged other tort-reform measures over the past decade and said he declared House Bill 274 an emergency item because there was “plenty of room” to further improve the civil justice system. “Thanks to these important new reforms, Texas employers will spend less time in court, more time creating jobs. They’ll invest more of their resources in expansion and growth instead of wasting them on frivolous suits. It’s a step that will make Texas that much more attractive to employers seeking to expand or relocate from countries all around the world,” Perry said. He acknowledged the work of legislators who helped pass the bill and specifically thanked Mike Gallagher, past president of the Texas Trial Lawyers Association, for his work negotiating the final version of the bill. “We don’t always agree on all the issues, but there’s not a more honorable advocate than Mike Gallagher. I want to say thank you for sitting at the table in an honest and straightforward way, representing the legal community,” Perry said. Speaking at the press conference, H.B. 274 author Rep. Brandon Creighton, R-Conroe, said it’s important in this challenging economy to protect the financial resources of business and individuals. “I’m more than pleased with the outcome and positive this bill will make litigation in Texas fair, expedient and affordable, helping to create jobs and making plaintiffs whole and protecting defendants from sometimes meritless cases,” Creighton said. Sen. Joan Huffman, R-Southside Place, who sponsored the loser-pays bill in the Senate, said at the press conference that “naysayers” who criticized H.B. 274 as “not a good bill” because it passed the Senate unanimously were wrong. Past tort reform measures targeting medical malpractice and asbestos litigation also passed unanimously or with high majorities, Huffman said. “What those have in common, if you think about it: They all passed through the Legislature with the help of strong leadership,” she said. Huffman then thanked Perry for his leadership on H.B. 274. In addition to its loser-pays provisions, H.B. 274 would allow courts to dismiss meritless suits before hearing evidence on the claims. It contains other provisions calling for new rules to expedite some suits through the justice system, expanding orders subject to interlocutory appeals, and changing law on naming and joining third-party defendants to suits after expiration of the statute of limitations.

-- Angela Morris

Previous coverage of the legislation:

"UPDATE: Senate Passes New Version of Loser Pays"

 

"Speakers Line Up on Both Sides of Loser-Pays Bill at Senate Committee Hearing" 

"Senator's Comments at Hearing Provide Clues About Likely Changes for House's Loser-Pays Bill" 

 

"Defense and Plaintiffs Attorneys Riled Up Over Tort Reform Bills"

 

"Senate public hearing Monday on loser-pays bill"

 

"Texas House Passes Loser-Pays Bill"

 

"Amendment to loser-pays bill impacts third-party practice"

 

"Civil justice reform bill proceeding to final reading in House today"

 

"Governor Declares Loser-Pays Bill an Emergency; House to Debate Saturday"

Morning docket

The AmLaw Litigation Daily interviewed Stephen Susman of Susman Godfrey about the potential impact of Texas’ new tort reform law that implements loser-pays provisions. “While Susman said the original bill would have been horrible, he believes the latest version will have little impact on the culture of Texas litigation,” the story says (subscription required).

The San Antonio Express-News reports that medical-malpractice suits against doctors at University of Texas Health Science Center have dropped dramatically since 2003, when the Legislature passed expansive tort reform measures. “Mathematically speaking, that's been a fivefold decrease in the risk of a lawsuit since tort reform, [Dr. Ronald] Stewart said, from 40 lawsuits per 100,000 before tort reform, to eight per 100,000 afterward. During that period, 98,513 surgeries were performed at University Hospital,” the story says.

Rick Casey of the The Houston Chronicle opines about several criminal justice bills the Texas Legislature passed this session that he thinks are “good new laws.” For example, he highlights laws that will reform eyewitness identification procedures in police departments, provide broader compensation for the wrongfully imprisoned and merge two juvenile justice agencies.

“A 2008 graduate of the Thomas Jefferson School of Law filed a class action in California state court on May 26, alleging that the school committed fraud by misrepresenting the employment statistics for its recent graduates,” notes The National Law Journal, a Texas Lawyer affiliate. According to a complaint, plaintiff Anna Alaburda graduated in 2008 and hasn’t been able to find full-time work as a lawyer, the story notes.

The New York Law Journal provides tips for finding a job in the legal industry. For example, prospective attorneys should build their skills with pro bono work and relevant coursework, and they must “have the patience and persistence to weather the job search,” the story says.

-- Angela Morris

Southern District Chief U.S. District Judge Ricardo Hinojosa to receive award

On May 26, the American Judicature Society announced it is awarding Chief U.S. District Judge Ricardo Hinojosa of the Southern District of Texas with the Edward J. Devitt Distinguished Service to Justice Award, which recognizes Article III judges whose careers have been exemplary, measured by their significant contributions to the administration of justice, the advancement of the rule of law and the improvement of society as a whole. In a statement announcing the award, U.S. Supreme Court Justice Sonia Sotomayor, who sat on a panel that selected the award’s recipient, noted Hinojosa’s work as chairman of the U.S. Sentencing Commission between 2003 and 2009. “He is credited with having stabilized the work of the Commission during the aftermath of the Supreme Court’s decision in United States v. Booker that declared the Sentencing Guidelines advisory. Judge Hinojosa also shepherded the Commission’s work in recommending and implementing measures to reduce the sentencing disparities between crack cocaine and cocaine powder offenses, an issue that had been under consideration by the Commission for many years,” Sotomayor said. Hinojosa says he’s honored to be selected. “When you looked at the list of people that have received it in the past, it’s really an honor to have received the award,” says Hinojosa, who sits in McAllen. Recent past recipients of the award include Anthony Scirica, a judge on the 3rd U.S. Circuit Court of Appeals; Ann Williams, a judge on the 7th U.S. Circuit Court of Appeals; and 5th U.S. Circuit Court of Appeals Judge Carolyn Dineen King.
-- John Council

Morning docket

Texas Lawyer affiliate The AmLaw Daily reports that hiring in the legal industry increased in April. “[W]e'd argue that the upward trend might continue,” the blog post says.

“Patent lawyers say this week's en banc Federal Circuit ruling tightening the standards for the inequitable conduct defense is likely to result in a rash of summary judgment motions in pending cases and to curtail defense-side misconduct claims in the long run,” reports The National Law Journal, a Texas Lawyer affiliate (subscription required).

Consulting and auditing firm Deloitte LLP released a survey last month that said the responsibilities of general counsel have evolved, and they are “increasingly focused on reducing legal risk, maintaining regulatory compliance and negotiating settlements to end dispute,” reports Law360 (subscription required).

“The NFL and Dallas Cowboys owner Jerry Jones asked a judge to dismiss a federal lawsuit over Super Bowl XLV tickets, saying reimbursement offers to displaced ticketholders were legally adequate,” reports the Fort Worth Star-Telegram.

A flier by the lawsuit-reform group the Texas Civil Justice League worked the Texas House into a ruckus yesterday when Rep. Senfronia Thompson, D-Houston, gave a speech “angrily accusing a special interest group of sexism and using exploitative images,” reports The Texas Tribune. The TCJL flier depicted a baby nursing on a woman’s breast. “E. Lee Parsley, the president and general counsel of the Texas Civil Justice League, wrote in an apology email that the flyer was a draft that was ‘never considered appropriate,’ and that the existing copies should've been destroyed.”

“Investors who lost money in Robert Allen Stanford's [alleged] $7 billion Ponzi scheme targeted BDO USA LLP, the longtime auditor of Stanford's companies, in a putative class action Thursday in Texas alleging the auditor was complicit in the fraud,” reports Law360 (subscription required).

“A judge says she will allow a lawsuit challenging Texas' foster care system to proceed as a class action,” says an Associated Press article in the San Antonio Express-News. An advocacy group, Children’s Rights, filed the suit in March on behalf of nine Texas foster children. “A spokesman for Texas Attorney General Greg Abbott says the state will determine its next course of action when the judge issues a written order,” the story says.

The Houston Chronicle reports on a rally in Washington, D.C. by doctors who told lawmakers “the Lone Star State has just the prescription for what ails a health-care industry burdened by runaway costs: limiting big-bucks lawsuits against physicians,” the story says. The doctors were rallying for a federal liability reform bill that would cap noneconomic damages, among other things.

-- Angela Morris

Senate members named to conference committee tasked with reconciling two versions of judicial system overhaul bill

The Texas Senate this afternoon voted not to concur with the House version of a judicial system overhaul bill, and it named five senators to sit on a conference committee that will resolve the differences in the bills that passed out of the two chambers. Senate Bill 1717 author Sen. Robert Duncan, R-Lubbock, will chair the conference committee. Others serving on the committee are Sen. Chris Harris, R-Arlington, Sen. Juan “Chuy” Hinojosa, D-McAllen, Sen. Joan Huffman, R-Southside Place, and Sen. Carlos Uresti, D-San Antonio. The House has yet to name representatives for the committee, but it will include Rep. Tryon Lewis, R-Odessa, who sponsored the bill in the House. S.B. 1717 is an omnibus bill, hundreds of pages long, that changes the law on the operation and administration of the judicial branch. One significant provision would make it easier for district courts to transfer cases and for district judges to preside in another courtroom if a judge were sick or recused from a case. Another major provision would create uniform jurisdictional limits, functions, rules and definitions for county courts-at-law. The Senate passed the bill on April 26, and the House passed it with amendments on May 24.

-- Angela Morris

Texas Tech University School of Law in Lubbock names new dean

Texas Tech University School of Law in Lubbock today announced that Darby Dickerson (pictured), vice president and dean of Stetson University College of Law in Tampa Bay, Fla., has been named dean of Texas Tech law school effective July 29. Dickerson began her tenure at Stetson law school as an assistant professor in 1995 and has served as the school’s dean since 2004, according to an announcement from Texas Tech University. “Dean Dickerson has an impressive track record, maintaining Stetson’s number one-ranked trial advocacy program and building a highly-ranked legal writing program,” Texas Tech University Provost Bob Smith says in the announcement. Dickerson earned her J.D. at Vanderbilt University School of Law, and before joining Stetson’s faculty she worked in commercial litigation at Locke Purnell Rain Harrell (now Locke Lord Bissell & Liddell) in Dallas, according to the announcement. Dickerson will be replacing Susan Saab Fortney, who has served as the law school’s interim dean since former dean Walter Huffman stepped down in May 2010. Dickerson will also hold the law school’s W. Frank Newton Endowed Professorship. Dickerson did not immediately return a telephone call seeking comment.
— Jeanne Graham

Morning docket

“The Federal Circuit on Wednesday adopted a more stringent standard for proving inequitable conduct in patent infringement cases,” reports Law360.

“Having secured a $63.8 million infringement verdict against Cisco Systems Inc. over a wireless networking patent, Commil USA LLC filed a new suit Monday in Texas seeking damages for Cisco's alleged infringement of the patent since the trial began,” reports Law360 (subscription required).

“In a vote split along partisan lines, the U.S. Securities and Exchange Commission today approved final rules for rewarding whistleblowers who provide the agency with tips that lead to successful prosecutions,” reports theBlog of LegalTimes, a Texas Lawyer affiliate.

Tweeting judges who use “like” on Facebook? Law Technology News, a Texas Lawyer affiliate, examines whether judges should use social networking technology. “It's a hot topic among members of the bench and bar as a new generation of lawyers don the robe and as social media becomes an increasingly essential way the world communicates,” the story says.

The Supreme Court of Texas Blog notes a recent study that shows some lawyers improperly redact court documents when using electronic filing. Toward the end of the post is a link to a tutorial about how to redact properly.

Grits for Breakfast examines the 2010 uniform crime report in Texas, which shows violent crime and property crime both decreased compared to 2009.

-- Angela Morris