Texas Lawyer Blog

Report recommends changes to discovery practices in criminal cases

A report released on Feb. 27, recommends five significant changes to discovery practices in criminal cases in Texas.

The state’s current discovery laws, “may increase the likelihood of wrongful convictions,” says the report, “Improving Discovery in Criminal Cases in Texas.”

Texas Appleseed and the Texas Defender Service, both non-profit advocacy groups, created the report, with pro bono help from lawyers at Locke Lord.

The report recommends amending the state’s criminal discovery statute to: provide criminal-defense lawyers with automatic access to discovery without a motion; require prosecutors always to disclose police reports, witness statements, expert reports and criminal histories; require some disclosures by the defense; set deadlines; and impose an “explicit continuing obligation to disclose.”

Locke Lord partner Charley Davidson of Houston, an editor of the report, didn’t immediately return a telephone call or email seeking comment.

Locke Lord attorneys interviewed over 60 prosecutors and criminal-defense lawyers for the report. It also analyzes open records requests on the discovery policies in 43 Texas counties — large and small, urban and rural. The researchers compared those policies to American Bar Association best practices, and standards from other sources. They also studied the Texas criminal discovery statute and compared it to statutes in other states.

The report finds that the Texas criminal discovery statute requires few disclosures by prosecutors and criminal-defense lawyers, compared to the best practices. It says some Texas counties have open-file policies meeting best practices, however, the rules vary county-to-county, “meaning access to justice can depend…on where the case is filed.”

Some Texas counties require defendants to waive some rights before opening the prosecutor’s file; others make criminal-defense lawyers copy documents by hand.

Lawmakers this session will consider bills—Senate Bill 91, among others—proposing reciprocal discovery in criminal cases. [See, “Possible new legislation that would impact lawyers and judges,” Tex Parte Blog, Jan. 2, 2013]

―Angela Morris

Friedman & Feiger partner fends off armed, would-be carjacker

On Tuesday night, Friedman & Feiger partner Melissa Kingston had just finished working late when she decided to make a stop in North Dallas. She was waiting at a stoplight in her convertible with the top down when a man approached her, pointed a handgun at her head and told her to move to the passenger’s seat, according to a Dallas Police Department offense report. He kept telling Kingston: “Sarah, you’re coming with me, move over,” the report notes.

He attempted to grab Kingston’s left arm and pull her out of the vehicle, so she took off her seat belt and acted like she was going to move over, the report continues. When he “dropped his guard” and lowered the handgun, Kingston swung open the passenger door and knocked him the man to the ground, according the report. Kingston then began kicking the man in the face and stomach; he crawled away as she got back into her car and drove home, the report states.

In an interview, Kingston says of the incident: “My wrist was hurt, but otherwise I’m fine. I got lucky.”

She declines to discuss the specifics of the incident because Dallas police have not yet made any arrests in the case. But she does have a suggestion for how to stay safe in such situations.

“I guess I would suggest people take self-defense courses,” Kingston says, adding she’s taken one herself. “It prepares you for situations like that,” she says.

--- John Council

Reed Smith’s Houston office nabs a dozen partners from Texas firms including Fulbright, Baker Botts, Sutherland, Jackson Walker, and Haynes and Boone

Reed Smith has opened an office in Houston with 17 lawyers, including 12 partners who came from seven firms in Texas.

The lawyers joined Reed Smith in Houston, beginning on Jan. 15, but the Pittsburgh-based firm announced the initial roster of lawyers today. The Houston office is the firm’s 25th.

The partners who joined Reed Smith’s energy and natural resources group are E. Lee Haag and Chris Watt, both from Fulbright & Jaworski; Paul Turner, formerly of Sutherland Asbill & Brennan; Craig Enochs and Daniel Nossa, both from Jackson Walker; and Charles “Stan” Perry from Haynes and Boone.

Partners in the U.S. commercial litigation practice are Kenneth Broughton (pictured) and Francisco Rivero, both from Haynes and Boone. Also, Stephen Scheve, formerly of Baker Botts, joined Reed Smith’s life sciences health industry group; Wanda Holloway joined the labor and employment practice from Seyfarth Shaw; Carol Burke joined the financial industry group from Pillsbury Winthrop Shaw Pittman, and Robert Riddle, also formerly of Baker Botts, joined Reed Smith’s intellectual property practice.

Others who joined Reed Smith are: counsel Paul Bishop, from Sutherland Asbill, who is in the corporate and securities practice; counsel Rhonda Caviedes in the energy and natural resources group from Andrews Myers; associate Kevin Page in the energy and natural resources group from Jackson Walker; and counsel Fazila Issa in the labor and employment group from Littler Mendelson.

Also, David Thompson, an energy and real estate partner, moved to Houston from Reed Smith’s San Francisco office, which he formerly managed.

Michael Pollack (pictured), a partner who is the 1,795-lawyer firm’s global head of strategy, says Reed Smith has been targeting Houston for about six or seven years but started looking seriously in January 2012 to find a group of lawyers in Texas to open the office.

In January 2011, Reed Smith and Thompson & Knight of Dallas announced they had ended merger talks.

Pollack says he spent much of the last year in Houston recruiting lawyers for the office, and he will continue to do so during 2013. He expects the Houston office to grow to 40 lawyers by the end of the year.

He says Reed Smith has a number of clients with operations in Houston, and the firm expects to get work from that client base. He says the goal is to build a full-service office in Houston. He declines to identify the clients, except to say the firm represents a number of major oil companies and large financial institutions.

Broughton, who spent 31 years at Haynes and Boone and joined Reed Smith on Feb. 13, says he is excited for the opportunity to help build an office. He says he brought clients include St. Luke’s Episcopal Health System of Houston and GTech Corp., which operates the Texas Lottery.

Holloway (pictured), who joined Reed Smith on Jan. 23, says the firm’s international network of offices and its roster of international clients was a big attraction for her, because she does a lot of global strategic employment projects. She declines to identify her clients, but says, “hopefully all of my clients will find opportunities to work with us here.”

“This was one of those opportunities that felt once-in-a-lifetime,” she says.

Reed Smith offices outside Texas are in New York City; Chicago; Washington, D.C.; Los Angeles, San Francisco; Philadelphia; Pittsburgh; Princeton, N. J..; Falls Church, Va.,; Wilmington; Palo Alto; Century City, Calif.; Richmond, London; Paris; Munich; Piraeus, Greece; Abu Dhabi; Dubai; Hong Kong, Beijing; Shanghai, Singapore and Kazakhstan.

— Brenda Sapino Jeffreys

University of Houston Law Center Dean Raymond T. Nimmer resigns

University of Houston Law Center Dean Raymond T. Nimmer (pictured, left) resigned his position on Monday, the law school announced today. Associate Dean Richard M. Alderman (pictured, right) will serve as interim dean.

Nimmer addressed faculty and staff on Monday to announce his decision, Alderman says. Nimmer said his reasons for stepping down include concerns about his health and satisfaction with reaching several goals he had set for the law school, Alderman recounts.

“He’s a very good friend,” Alderman says. “He has been talking with the administration for a long time about this.”

Nimmer did not immediately return a telephone call seeking comment.

Alderman says the university, based on past history, will appoint a search committee in the next month or two and will work with a search firm over the summer to find the school’s next dean.

“He [Nimmer] has been doing this job for seven years, which is a very long time in the dean world,” Alderman says. “He had a number of goals when he became dean and has accomplished them all.”

Alderman points to the list of goals described in the school’s announcement, which include “increased faculty, revised curricula, improved ranking, international outreach, a tripling of scholarship funds and a revitalized alumni organization.”

Alderman says Nimmer will begin a one-year sabbatical in September and return to teaching in 2014.

“What I would hope I would be to be able to do is keep the school on the path that it’s been on, and get it in the best shape possible for a new dean,” he says.

— Jeanne Graham

Winter storm: Snow affects Amarillo and Lubbock attorneys

Inclement weather and snow-clogged streets have had an impact on attorneys in Amarillo and Lubbock. Brian Heinrich (pictured), a partner in Amarillo’s Templeton Smithee Hayes Heinrich & Russell, says he missed a pretrial hearing in a civil case that was set for today in the U.S. District Court for the Northern District of Texas in Amarillo and is unsure whether the trial will begin as scheduled on Wednesday. “My guess is it will be put off,” Heinrich says. He says the jury pool for federal court draws from 26 counties, most of which have been hit by the bad weather. Heinrich says he spent all day Monday in his law office working on the case but that he was the only one in the firm’s offices. “We told our entire staff not to come in,” he says.

 J.D. Schmidt, a partner in Caudle & Schmidt in Amarillo, says he has been unable to get to his office because he lives in a section of Amarillo where there was no snow plow service on most streets. “I missed a paying client coming in, so it was an expensive snow day,” says Schmidt, whose practice focuses on criminal defense and family law. Schmidt says he hopes to reschedule the client’s visit to his office for later in the week.

Heinrich and Schmidt say the Potter County Courthouse and the federal courthouse in Amarillo closed Monday. Recorded messages on the phones for the Potter County District Clerk’s Office and the U.S. District Clerk’s Office indicated that those offices remain closed today. Clinton Thetford, emergency management coordinator for Lubbock County, says the county courthouse was closed Monday but was scheduled to reopen at 10 a.m. today. “We actually had a blizzard on Monday,” Thetford says. “It was unsafe for people to be on the road.”

Criminal defense attorney Chuck Lanehart (pictured), a shareholder in Lubbock’s Chappell Lanehart & Stangl, says, “If the courthouse is not open, in my practice we’re not open.” Lanehart says he missed a big hearing that had been scheduled Monday and also missed hearings that were scheduled today. Belia Gonzales, a deputy clerk at the U.S. District Court for the Northern District of Texas in Lubbock, says the federal courthouse was closed Monday but reopened today.

  -- Mary Alice Robbins

Robbins is an Austin-based freelance writer and a former Texas Lawyer senior reporter.

Fulbright & Jaworski releases litigation trends survey

More U.S. companies are retaining outside counsel because of regulatory investigations, according to results of Fulbright & Jaworski’s 9th Annual Litigation Trends Survey.

Sixty percent of the U.S. in-house lawyers who responded to the survey said they hired outside counsel for a regulatory investigation during the 12-month period that ended Sept. 30, 2012. That compares to 55 percent who responded to the same question on the previous version of the survey.

“The regulatory thing is here to stay,” says Otway Denny Jr., chairman of the global litigation department at Houston-based Fulbright. He says regulatory work includes defending companies from investigations conducted by federal and state agencies.

A total of 392 in-house lawyers, including 275 in the United States and 100 in the United Kingdom, participated in the survey, which was conducted between July and September 2012. The responses apply to the 12-month period beginning Oct. 1, 2012, says Dan McKenna, media relations director at Fulbright. The survey results were made public today.

Of the respondents, 92 percent expect litigation pending against their companies to increase or stay at the same level in 2013 as in 2012. It was 89 percent in the previous survey. 

Additionally, 86 percent of the in-house lawyers reported at least one new suit filed against their companies during the previous 12-month period, compared to 73 percent on the previous survey.

And 60 percent of the companies filed at least one suit during the 12-month period that ended on Sept. 30, 2012, compared to only 48 percent during the previous 12-month period.

Contract disputes, labor and employment matters, and personal injury suits are the most prevalent suits filed against U.S. and U.K companies, according to the survey.

Among other results, the survey notes that companies are spending more on litigation, with 54 percent of the companies spending more than $1 million on litigation during the 12-month period, compared to only 51 percent during the previous 12-month period.

—  Brenda Sapino Jeffreys

Litigation-only firm Hawkins Parnell Thackston & Young celebrates 10 years in Dallas

What a difference a decade makes. For the Dallas office of Hawkins Parnell Thackston & Young, which celebrated its 10th anniversary this month, the ten years since its opening in 2003 has meant growing from five to 18 lawyers and proving that a litigation-only concept works.

Robert Thackston opened the Dallas office of Hawkins Parnell, an Atlanta, Georgia-based firm. Thackston now divides his time between Los Angeles and Dallas. The Dallas office has stayed true to the original litigation focus he set for it, Thackston says.

“I did product liability work and I wanted to be in firm that specialized in that,” says Thackston, who previously was a partner at the now-defunct Jenkens & Gilchrist.

What will happen five years from now? Thackston says the Dallas office may grow by as many as five lawyer but not much bigger.

“The size we are now works for us,” he says.

--Miriam Rozen

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SMU property law professor battling leukemia teaches from hospital bed

Sarah Tran was determined to continue teaching property law in the fall of 2012, despite a 28-day hospital stay for the treatment of leukemia.

“I was diagnosed with acute leukemia on Oct. 13,” says Tran, an assistant law professor at Southern Methodist University Dedman School of Law in Dallas. “Actually it was my second time getting it,” she says.

She had undergone a bone marrow transplant from a brother four years earlier, but she learned during the fall semester that the disease had returned.

“I felt like the students had been planning to take my exam and should be able to rely on a certain style of teaching,” Tran says. “I felt like I couldn’t abandon them.”

So on Wednesdays and Fridays, from 1 to 2:20 p.m., a sign on her hospital room door at Baylor University Medical Center at Dallas asked those entering to be quiet while she conducted class for 80 first-year students via Skype.

“Sometimes, a machine I was hooked up to would start beeping, but they [medical staff] knew not to talk to me while they fixed it,” she says.

Her husband brought her a suit jacket that she would wear over hospital clothes.

“I pretended like I was wearing a suit,” she says.

As she began to lose hair, a typical side effect of chemotherapy treatment, Tran says she kept changing her look.

“One week I had long hair, then short hair, then a blonde wig, then a brown wig,” she says. “Four weeks in a row they saw me each week with a completely different look.”

First-year law student Evan Lange was a student in the class.

“We were still expected to be prepared for class and we got called on like normal,” Lange says. “It was not really that much different, except she just wasn’t physically present. We could see her and she could see us. Our generation, we’re always plugged into something.”

He recalls the day Tran was receiving a blood transfusion during a lecture and was making jokes about being a vampire.

“Myself and my classmates learned a lot about professionalism from professor Tran, which we will probably remember most of our lives,” he says.

Tran says that continuing to teach while in the hospital was also good for her. She says she had a fever for several days that reached 105 degrees the day before one of her scheduled lectures.

“And I thought, ‘Oh my god, how can I teach when my temperature is 105?’ ” But by the next morning the fever had vanished.

“It was gone and just didn’t come back,” Tran says (pictured, left, with her daughter FarrahSophia Tran and a poster given to her by her students). “It was almost as if I wanted to teach so badly it made me feel better. And to feel like I was part of something and contributing to something — it was great to take a break from all the cancer craziness.”

By November Tran was out of the hospital and back in the classroom. She expects to teach property law again in the fall of 2013. She had a second bone marrow transplant from a sister in December and hopes to run a half marathon in June with her siblings in Anchorage, Alaska.

“I’m actually waiting on some results, but things seem to be progressing well,” she says. “With a transplant, it takes a while.”

— Jeanne Graham

Former Wilson Elser partners open Houston office of Winget, Spadafora & Schwartzberg

New York City firm Winget, Spadafora & Schwartzberg, which does securities work, professional liability defense and insurance defense, opened an office in Houston on Feb. 12 staffed by partners Martin Schexnayder and Lee Staley.

Schexnayder and Staley left their roles as partners in the Houston office of Wilson Elser to join Winget Spadafora.

Luigi Spadafora (pictured), managing partner of Winget Spadafora, says clients asked the firm to open an office in Texas. He declines to identify those clients.

“What it boiled down to is we saw opportunity to expand in the state of Texas,” he says. “We’ve connected with some good lawyers in the state of Texas, and we are looking at great things down there.”

Schexnayder, who will manage the Houston office, says he is excited about the opportunity to start the Houston office for Winget Spadafora and to build it “from the ground floor.” He expects the firm to add more lawyers in Houston this year.

Schexnayder says he brought clients with him to Winget Spadafora, including National Planning Holdings and First Allied Securities Inc., and a number of “major insurance carriers.”

Sharla Frost, regional managing partner in Houston for Wilson Elser, could not immediately be reached for comment.

The 65-lawyer Winget Spadafora’s other offices are in Jersey City, N.J.; Stamford, Conn.; Miama and Los Angeles.

―Brenda Sapino Jeffreys