Texas Lawyer Blog

Filings up, opinions down at 5th Circuit

A report released this month by the 5th U.S. Circuit Court of Appeals confirms what many lawyers already know: More than half of the cases the court considers are criminal in nature, and the vast majority of appeals are generated by the Lone Star State, which shares the court with Louisiana and Mississippi.

But there are a few surprises in the Clerk’s Annual Report: July 2011 - June 2012, which covers July 2011 through June 2012.

For example, the number of new appeals filed during that time period was up 1.2 percent, rising by 89 cases for a total of 7,626, compared to 7,537 for the period from July 2010 through June 2011.

However, the court issued 3,024 opinions during the 2011-2012 time period, down by 168 opinions from 3,192 for the period July 2010 through June 2011.

There’s a reason why filings can go up at the court, while opinion totals can go down at the same time, says 5th Circuit Judge Carolyn Dineen King. “I think there’s some lag time between when the incoming cases show up and when that begins to manifest itself in more opinions,” says King, noting that it can take well over a year for the court to issue an opinion in some appeals.

The statistics show that 66.6 percent of the new filings at the court came from Texas — 5,077 out of 7626 filings total.

The Western District of Texas showed the biggest jump in filings over the period from July 2010 through June 2011. The Western District sent 1,344 appeals to the 5th Circuit, 76 more cases than 1,268 the previous time period, according to the report.

“We don’t have any choice over the cases. We don’t grant cert in this court,” King notes. “We take the cases that come our way, and they have a very heavy criminal docket in the Western District.”

5th Circuit Judge Edith Jones says the court’s criminal docket has a big impact on the yearly statistics. And the criminal filings could explain why the court could see a spike in new appeals filed during a year in which the court issued a lower number of opinions overall.

“I would have to speculate that it has to do with the number of criminal cases. Some of those are disposed of in ways that do not necessarily show up as opinions,” Jones notes.

And sometimes a decision from a previous year ends up opening up a new theory for appeal the following year, she says.

“Every year the court is coming out with new decisions that affect sentencing and give the defense bar new avenues of challenging convictions,” Jones says. “It’s an evolving area.”

--- John Council

Assistant U.S. attorney discusses role as election officer for the Southern District of Texas

Assistant U.S. Attorney Ruben Perez (pictured) of the Southern District of Texas will spend Nov. 6 at his desk in Houston, fielding calls from individuals complaining of alleged voting rights violations. On Aug. 29, U.S. Attorney Kenneth Magidson announced Perez’s appointment as district election officer.

Perez says he’s involved because candidates seeking federal office are on ballots in the Southern District. He notes that election fraud is a civil rights violation, and he’s chief of the civil rights unit at the U.S. attorney’s office.

Perez, who has served as the election officer twice before, says calls can include complaints from individuals who claim they are registered and are being denied a ballot, complaints about voter intimidation, and complaints of suspected “vote buying.”

Perez says he can’t recall prosecuting anyone as a result of an Election Day complaint, but he notes that the Texas Secretary of State’s office has the primary responsibility to oversee the election process.

“Depending on the circumstances, we can get involved, but the primary responsibility is that of the state,” Perez says.

Perez says he expects calls to come in sporadically on Nov. 6, but the volume will pick up the day after the election. It’s usually representatives of losing candidates who make post-election calls, he says.

— Brenda Sapino Jeffreys

In-house lawyer's novel features vampire, romance

For a little bit of Halloween-inspired reading today, Texas lawyers may want to put down the Texas Rules of Civil Procedure (which inspires a different kind of nightmare) and pick up “42nd and Lex,” a novel released a few months ago about a family lawyer who falls in love with a vampire.

Set in lower Manhattan, the book tells the tale of Abri Cole, whose life changes when she meets a good looking, wealthy man with an apartment to die for who happens to have a secret (you know where this is going).

The author, Bria Hofland (pictured, left), works as in-house counsel at Dallas-based Loya Insurance Group. She says she’s always been a fan of vampire-themed literature and has been writing since she was a child.

She obviously used her imagination to come up with the vampire and the setting (she’s been to New York City but has never lived there she says) but not the professional aspect of the book: She worked for years as a family lawyer in her late father’s firm, Jeff Smith PC, before moving on to in-house work.

“When I first started the book, that was when I was working as a divorce lawyer. It took me three and half years to write and edit it,” Hofland says of her first published work. “I was working with my dad. And I wrote some at work on my spare time. He never knew that, though.”

Her book was released on Aug. 30, and Hofland has been marketing it through word of mouth and on Facebook. Lawyers, she says, will relate to her protagonist.

“I think they can relate to the character; she’s pretty scrappy,” Hofland says. “As a female lawyer, we have to be a bit scrappy. And there’s a fair amount of romance in there, too.”

--- John Council

Patent suits filed Oct. 30, 2012, in the U.S. District Court for the Eastern District of Texas

NobelBiz Inc. v. Intelligent Contacts Inc.
Civil Action No: 6:12-cv-00831-LED
Cause of Action: Filed for the alleged infringement of U.S. Patent No. 8,135,122, entitled “System and Method for Modifying Communication Information (MCI).”
Plaintiff’s Attorneys: S. Calvin Capshaw, Elizabeth L. DeRieux and D. Jeffrey Rambin, Capshaw DeRieux, Gladewater; Ralph A. Dengler, Charles H. Chevalier and William A. Hector, Gibbons PC, Newark, N.J., of counsel

Former State Bar President Bob Black will give $250,000 to University of Texas at El Paso Law School Preparation Institute

Bob Black (pictured), former president of the State Bar of Texas, plans to give $25,000 annually over the next 10 years to an El Paso college program that sends 59 percent of its students to tier-one law schools.

Bill Weaver, co-founder and director of the University of Texas at El Paso (UTEP) Law School Preparation Institute, says he’s “utterly happy” and all the money “will go to support the students.” Weaver says, because 80 percent of graduates are Mexican-American, the program helps correct an underrepresentation of Hispanics in the legal field.

Black, who earned a history degree from UTEP in 1977, says, “This is an important issue for Hispanics but also, in my opinion, for our country, because we need to be producing good, qualified Hispanic lawyers, and LSPI is one of the most successful programs in the country on providing students into that pipeline.”

The institute offers college students a summer program that teaches critical thinking, research and writing skills; prepares them for the Law School Admissions Test; helps them apply to law schools; provides legal mentors; and connects them with internships and clerkships.

“It’s a very intensive course, and I don’t think there’s anything like it in the United States. A lot of how we get the results we get is just through intensive hard work over a relatively long period of time,” says Weaver.

Brent McCune, the assistant director of the institute, says 34 percent of the graduates from 1998 to 2010 attended top-15 law schools, and another 25 percent went to top-50 law schools.

“I always benefitted by scholarships and good counsel and guidance from others both in college and law school, and I wanted in some small way to give back to people like me who needed that helping hand up. The LSPI -- the students there are remarkable young people: They’re future lawyers, future judges, future legislators,” says Black, managing shareholder of MehaffyWeber in Beaumont.

-- Angela Morris

Morning docket

Judge in Ken Anderson Inquiry: Testimony Will Be Public (The Texas Tribune)

Accused lawyer won't get court-appointed attorney (San Antonio Express-News)

PAC shakes up usually quiet 3rd Court races (Austin American-Statesman)

Judicial temperament at issue in criminal court races (San Antonio Express-News)

Video chatting to be available to Travis County jail inmates (Austin American-Statesman)

Law firms, courts and schools struggle to cope in Sandy's wake (The National Law Journal)

Monsters R Us (The Careerist)

Military commander removes Texas Supreme Court justice (Day by Day | Texas State Historical Association)

-- Angela Morris 

Newsmakers: Sommerman & Quesada’s Al Ellis honored

Al Ellis (pictured), of counsel at Sommerman & Quesada in Dallas, has been selected for induction into the University of Texas at Arlington Military Science Department Hall of Honor.

Ellis says the Hall of Honor honors people who went through ROTC and graduated from UT Arlington.

“A lot of the people who were honored had a career in the military,” he says. “The other portion are those who are ROTC graduates and stayed a shorter period of time [in the military].” Ellis says people in the latter group were recognized for their post-military achievements.

A former classmate at UT Arlington who is also a member of the Hall of Honor nominated him for induction into the hall of honor, Ellis says.

 “It’s a great honor to be included with other folks, especially guys who spent their career in the military and gave their entire lives to public service,” Ellis says.

He says he joined the military after graduating from UT Arlington, where he majored in history and was the ROTC cadet core commander and drill team commander.

“My original intent was to be a career Army guy,” he says.

Ellis says he was an Airborne Infantry officer stationed in the Dominican Republic and then at Fort Bragg in North Carolina. Then, he went to Vietnam.

After four years of service, Ellis says he was honorably discharged as a captain, and he received the Bronze Star and other commendation medals.

Following his discharge, Ellis says he decided to go to law school. “I loved Perry Mason, so I went to law school,” he says.

Ellis says he earned his JD from Southern Methodist University in 1971 and, his entire 40-year practice has been spent focusing on plaintiffs’ personal injury law.

Ellis says his favorite part of practicing law is the people. “Over the years I’ve had a tremendous amount of really great clients that I fell in love with and enjoyed representing their interests and trying to find a successful result for them,” he says. “I like lawyers, and I like the profession. I considered it a calling, and I like what we do.”

— Christine Lesicko

Great cities for young attorneys? Look to Texas, magazine says

Houston and Dallas are among the top 10 best cities for young attorneys, based on the lawyers’ buying power, the legal community’s size and the cities’ social scenes, according to a survey by The National Jurist, a legal-education magazine.

The presidents of each city’s young lawyers association say they’re not surprised their cities made the list — Dallas was fifth, and Houston was 10th — but they think their cities should have ranked higher.

“I’m not sure who was ranked above us, but I think we compete in any legal market,” says Chip Brooker (pictured, left), president of the Dallas Association of Young Lawyers.

An article in The National Jurist’s October issue ranked 70 metro areas.

It calculated buying power using the National Association of Law Placement’s Class of 2010 buying power index metric, which uses New York City lawyers’ buying power as a baseline.

It calculated the size of the legal community by looking at numbers of people in legal occupations per the 2010 U.S. Census and numbers of law firms.

It calculated the city’s social scenes by examining the census count of 24- to 34-year-olds and each city’s arts and culture ranking by Sterling’s Places, an online research company.

Although Dallas ranked fifth, the magazine found it has the highest standard of living: Median salaries are $150,000, giving Dallas attorneys a buying power index of 2.21, compared to New York lawyers’ buying power index of 1. Meanwhile, 2 percent of the population works in legal occupations, and there are 3,075 law firms. The U.S. Census shows 25- to 34-year-olds make up 18.4 percent of Dallas’s population, and the city received a rank of eight for culture, says the survey.

Brooker, an associate with Haynes and Boone in Dallas, says he thinks young lawyers who come to Dallas do high-end legal work in a centrally located city where they can enjoy a better cost of living and lifestyle compared to other similar legal markets.

“This is a place you can not only have a house but a yard,” he says. “The arts community in Dallas is thriving. The restaurant community is great.”

Houston came in 10th on the list. Its median salary is $135,000 for young lawyers, giving it a 1.982 buying power index. Houston has 4,741 firms, and 1.6 percent of the population works in legal occupations. The 25- to 34-year-old population is 17.8 percent, and Houston ranked 8.5 for culture, according to the survey.

David A. Walton (pictured, right), president of the Houston Young Lawyers Association, says salaries for young lawyers are high because many large national and international firms keep Houston offices, and the city is “home base” to numerous Fortune 500 companies, which provide opportunities for attorneys.

When asked about his personal observations on the factors the magazine considered for its list — buying power, the size of the legal community and the social scene — Walton, partner in Beirne, Maynard & Parsons in Houston, jokes, “I don’t have much of a social life anymore.”

But he concedes that HYLA puts on a lively meet-and-greet each month for young lawyers and law students, and adds, “Houston has a great list of restaurants and bars to choose from. Absolutely, I think the social scene is strong here.”

-- Angela Morris

BAM! 5th Circuit dismisses appeal of $21 million attorney fee award

Late last year, U.S. District Judge Reed O’Connor awarded more than $21 million in attorney fees to Lisa Blue and Baron and Blue; Charla G. Aldous and the Aldous Law Firm; and Stephen F. Malouf and the Law Offices of Stephen F. Malouf — collectively known as “BAM” in O'Connor's opinion. BAM had represented Albert G. Hill III in a complicated trust dispute. Hill later challenged both the validity of the contingent fee agreement he had with BAM and the amount he owed, according to the order O'Connor issued in the case. Hill appealed the decision to the 5th U.S. Circuit Court of Appeals. On Oct 26, the 5th Circuit dismissed Hill's appeal of the attorney fee awarded to BAM in Albert G. Hill III v. William Schilling et al.

In its per curiam opinion, the 5th Circuit noted that Hill “entered into an agreement to submit the BAM fee dispute for resolution by the District Court” and “[a]s a part of that agreement [,] [he] waived . . . his right of appeal to this court.”

The 5th Circuit panel concluded that Hill’s appeal of the attorney fee issue was “barred by the appeal waiver agreement.”

Alan Loewinsohn (pictured), a partner in Dallas' Loewinsohn, Flegle & Deary who represents BAM, says he’s pleased with the decision.

“We’re appreciative of the prompt ruling of the court of appeals and that they confirmed our original position that the judgment should stand and should not have been appealed,” says Loewinsohn, noting that the court issued its decision less than a month after it heard oral argument on Oct. 1.

William J. Skepnek, of The Skepnek Firm in Lawrence, Kan., represents Hill on appeal. He says he’s disappointed in the decision.

“Right now, we’re considering what to do. We have not made any final decisions,” Skepnek says.

--- John Council

Patent suits filed Oct. 29, 2012, in the U.S. District Court for the Eastern District of Texas

Telinit Technologies LLC v. Rebtel Networks AB and Rebtel Mobile Inc.
Civil Action No: 2:12-cv-00696-JRG-RSP
Cause of Action: Filed for the alleged infringement of U.S. Patent No. 6,192,123, entitled “Method and apparatus for initiating telephone calls using a data network.”
Plaintiff’s Attorneys: William E. Davis III, The Davis Firm, Longview; Eugenio J. Torres-Oyola, Ferraiuoli LLC, San Juan, Puerto Rico, of counsel

Telinit Technologies LLC v. RingCentral Inc.
Civil Action No: 2:12-cv-00697-JRG-RSP
Cause of Action: Filed for the alleged infringement of U.S. Patent No. 6,192,123, entitled “Method and apparatus for initiating telephone calls using a data network.”
Plaintiff’s Attorneys: William E. Davis III, The Davis Firm, Longview; Eugenio J. Torres-Oyola, Ferraiuoli LLC, San Juan, Puerto Rico, of counsel

IP CO LLC d/b/a Intus IQ v. Crestron Electronics Inc.
Civil Action No: 6:12-cv-00821-LED
Cause of Action: Filed for the alleged infringement of U.S. Patent No. 6,044,062, entitled “Wireless Network System And Method For Providing Same.”
Plaintiff’s Attorneys: T. John Ward Jr. and Jack Wesley Hill, Ward & Smith Law Firm, Longview; John C. Herman, Ryan K. Walsh, Peter M. Jones and Jessica M. Kattula, Robbins Geller Rudman & Dowd, Atlanta, Ga

Meadows Financial Systems LLC v. Cici Enterprises LP
Civil Action No: 6:12-cv-00822-LED
Cause of Action: Filed for the alleged infringement of U.S. Patent No. 8,064,434, entitled “Method for Providing Internet Services to a Telephone User.”
Plaintiff’s Attorneys: Andrew W. Spangler, Spangler & Fussell, Longview; James A. Fussell III, Spangler & Fussell, Alexandria, Va

Meadows Financial Systems LLC v. Little Caesar Enterprise Inc.
Civil Action No: 6:12-cv-00823-LED
Cause of Action: Filed for the alleged infringement of U.S. Patent No. 8,064,434, entitled “Method for Providing Internet Services to a Telephone User.”
Plaintiff’s Attorneys: Andrew W. Spangler, Spangler & Fussell, Longview; James A. Fussell III, Spangler & Fussell, Alexandria, Va

Meadows Financial Systems LLC v. Papa Murphy’s International LLC
Civil Action No: 6:12-cv-00824-LED
Cause of Action: Filed for the alleged infringement of U.S. Patent No. 8,064,434, entitled “Method for Providing Internet Services to a Telephone User.”
Plaintiff’s Attorneys: Andrew W. Spangler, Spangler & Fussell, Longview; James A. Fussell III, Spangler & Fussell, Alexandria, Va

Meadows Financial Systems LLC v. Hungry Howie’s Pizza & Subs Inc.
Civil Action No: 6:12-cv-00825-LED
Cause of Action: Filed for the alleged infringement of U.S. Patent No. 8,064,434, entitled “Method for Providing Internet Services to a Telephone User.”
Plaintiff’s Attorneys: Andrew W. Spangler, Spangler & Fussell, Longview; James A. Fussell III, Spangler & Fussell, Alexandria, Va