The Next Bill by William J Chriss, LP

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1 THE NOBLE LAWYER AND THE ETHICAL CHALLENGES OF THE FUTURE: "How to Cope with the Death of Perry Mason." WILLIAM J. CHRISS William J. Chriss, P.C. Of Counsel to Gravely & Pearson, L.L.P. Austin and San Antonio State Bar of Texas BEST OF 2009 Part Two Dallas February 25-26, 2010 Houston March 4-5, 2010 Austin March 25-26, 2010 CHAPTER 10

com 512-716-8338 State Bar of Texas BEST OF 2009 Part Two Dallas February 25-26, 2010 Houston

3 WILLIAM J. CHRISS, P.C. Of counsel GRAVELY & PEARSON, L.L.P. Austin and San Antonio (512) (210) William Chriss has been board certified in Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specialization for over 20 years. He has extensive experience as lead counsel in cases involving insurance bad faith, construction defects, property damage, wrongful death, serious bodily injury, libel and slander, fraud, commercial litigation, employment disputes, breach of contract, and deceptive trade practices. He also has many years of experience in the fields of legal ethics and legal malpractice, having just recently served a two-year term as Dean of the Texas Center for Legal Ethics and Professionalism, a non-profit foundation which promotes the highest levels of integrity among lawyers and which educates the public on related issues. As a board certified civil trial lawyer, Mr. Chriss has represented businesses, government, and private individuals in a variety of matters including construction defects, business disputes, and property, health, disability, life, and auto insurance. He was one of the first Texas lawyers to try to verdict property damage claims involving plumbing leakage and slab foundation damage, and claims involving mold. He has written and lectured so extensively on property damage and insurance law that his work on these subjects has been cited by lawyers and mentioned at seminars, in court opinions, and in scholarly articles for years. As a board certified specialist in personal injury law, Mr. Chriss has also tried many personal injury cases to jury verdict, including cases involving damage to reputation, mental anguish, wrongful death, paraplegia, and other serious bodily injuries. As lead counsel, he has handled cases involving libel and slander, product liability, construction site accidents, automobile and motorcycle accidents, tire blowout, aviation, train crossings, falls, drowning, and serious burns. Recently, he published the first major law review article in several years to comprehensively analyze the Texas law of privacy and personhood. In 2005, Mr. Chriss professional and scholarly activities were recognized by the Texas Bar Foundation, which named him the recipient of the statewide Dan R. Price Award for service to the legal profession and excellence in teaching and scholarly writing. A believer in life-long learning, Mr. Chriss holds graduate degrees in law, theology, and history and politics. He was one of the youngest members of his graduating class at Harvard Law School where he received a Howe fellowship in Civil Liberties and Anglo-American Legal History and earned his law degree at the age of 23. As a constitutional and legal scholar, while practicing law Mr. Chriss also taught courses in Judicial Politics, Political Philosophy, History, and Constitutional Law within the Texas A&M University system, and in his spare time he is now earning a Ph.D. in Legal and Political History at The University of Texas where he holds an endowed doctoral fellowship under the acclaimed American historian H.W. Brands.

He has extensive experience as lead counsel in cases involving insurance bad faith, construction defects, property damage, wrongful death, serious bodily injury, libel and slander, fraud, commercial

5 TABLE OF CONTENTS THE NOBLE LAWYER... 1 THE CHARACTERISTICS OF THE NOBLE LAWYER... 2 THE NOBLE LAWYER... 2 THE 1960S AND THE 1970S: THE RESURRECTION OF TORT LAW... 3 THE REST OF THE STORY: BY THE MID-1990 S TORT LAW IS BEING ROLLED BACK AND LAWYERS ARE SUBJECTS OF DERISION... 4 THE CHANGING TOPOGRAPHY OF DISPUTE RESOLUTION... 4 THE WAVES OF THE FUTURE... 5 BOTTOM LINE: THE CIVIL TRIAL LAWYER" IS DYING... 6 THE LITIGATOR IN THE YEAR THE ALTERNATIVE UNIVERSE... 7 ETHICAL ISSUES 1: LAWYER S BRAVE NEW WORLD... 7 ETHICAL ISSUES 2: ATTICUS ALTERNATIVE UNIVERSE...8 i

.. 3 BY THE MID-1990 S TORT LAW IS BEING ROLLED BACK AND LAWYERS ARE SUBJECTS OF DERISION... 4 THE CHANGING TOPOGRAPHY OF DISPUTE RESOLUTION.

7 THE NOBLE LAWYER AND THE ETHICAL CHALLENGES OF THE FUTURE: "How to Cope with the Death of Perry Mason." William J. Chriss, P.C. Of counsel to Gravely & Pearson, L.L. P. Austin and San Antonio THE NOBLE LAWYER Popular Culture: Perry Mason and the small but successful law office that solves ordinary people s problems Real History: Clarence Darrow and the paradigm of the maverick champion of the oppressed. 1

com 512-716-8338 THE NOBLE LAWYER Popular Culture: Perry Mason and the small but successful law office that

8 THE CHARACTERISTICS OF THE NOBLE LAWYER Captain of Your Own Destiny. Respected Member of the Community Independent minded and questioning of authority. Able to make a good living selling time and advice. Helping to solve the problems of real people Sometimes in court When being in court or in the office was simple, direct, and fun. THE NOBLE LAWYER Defender of the Constitutional Order and the Rule of Law. These images arise from the 1950s to the 1970s, a period of unprecedented material prosperity and cultural optimism. 2

Able to make a good living selling time and advice.

9 The 1960s and the 1970s: The Resurrection of Tort Law PRESIDENTS: LBJ, Nixon, Ford & Carter Texas 1973: DTPA, Ins. Code Article 2212a (comparative fault) Mushrooming of product liability and new theories of recovery. These heady days are as far away from today as the original Saturday Night Live. And the year 1980 is closer to The Korean War than it is to 2008! The Rest of the Story: Minutes: Justice for Sale Law Reform, by laypeople beginning in Missouri, Texas, and California: Wedge Issue: NY Times (August 31, 1992): The President's aides have found something they think is even scarier to voters than Willie Horton: sharp lawyers in tasseled loafers who, as Mr. Bush put it in his speech to the Republican convention, are running wild, terrorizing doctors and even Little League coaches with personal-injury suits, malpractice suits and other kinds of liability cases. 3

And the year 1980 is closer to The Korean War than it is to 2008!

10 By the Mid-1990 s Tort Law is Being Rolled Back and Lawyers are Subjects of Derision In Texas, tort reform begins in 1987 with Workers Comp. The goal: get lawyers out of the system. One Political Consultant s advice circa 1996: Few classes of Americans are more reviled by the general public than attorneys It s almost impossible to go too far when it comes to demonizing lawyers. They truly are the one group in society that you can attack with near impunity. The Changing Topography of Dispute Resolution. Arbitration: trading expert witnesses for expert decision-makers. The return to jury trial prior to Edward the Confessor. Regulation: As a substitute t for litigation: Medical License claims up 39% since

One Political Consultant s advice circa 1996: Few classes of Americans are more reviled by the general public than attorneys It s almost impossible to go too far when it comes to

11 The Changing Topography of Dispute Resolution (continued). Complexification: Rule Changes Inf. Technology Changes Changes in business itself (artificial personality, etc.) Inflation: Driven by Complexification Fewer human rights enforced by civil courts The Waves of the Future Galanter's 2004 study of federal courts from 1960 to 2000: Decrease in percentage of cases actually tried from 11.5% to 18%while 1.8% case filings actually grew). The rate of summary judgments rose from 1.8% to 7.7%. John Lande s 2005 article: The "ecology of disputation" has radically changed because of ADR, globalization, and by the trend in most state courts away from traditional trials and toward summary dispositions. Contingent fees are dwindling where lawyer profitability argues against a stead diet of representation of mortal human beings, particularly in tort cases marginalized by subrogation recoveries and lower intangible damage awards. 5

actually tried from 11.5% to 18%while 1.8% case filings actually grew). The rate of summary judgments rose from 1.8% to 7.7%.

12 Bottom Line: The Civil Trial Lawyer" is Dying. The "complex litigator" is alive and well, deposing and motioning away in behalf of artificial persons, who can stomach delay and frustration much better than real humans with finite life-spans, and who have the luxury of amortizing and capitalizing expense, risk, and reward. The Litigator In the Year 2020 Trial Lawyers do Criminal Work. Litigators in Private Practice do: Arbitrations And complex, document intensive, contract and business tort courtroom cases Mostly in federal court And administrative i i hearings For corporate clients Mostly on an hourly or piecework billing basis 6

real humans with finite life-spans, and who have the luxury of amortizing and capitalizing expense, risk, and reward.

13 The Alternative Universe A world where civil trial law is only part of your living: Small Towns General Practice Business Capitalism Ethical Issues 1: Lawyer s Brave New World Mergers, Acquisitions, Confidentiality, and the Inefficacy of Chinese Walls. Firm Size, Less Client Diversity, and Motivational Bias. Captive Counsel Arrangements [cf: UPLC v. American Home (2008, reh. pending); congruence vs. conflict.]. 7

Confidentiality, and the Inefficacy of Chinese Walls.

14 Ethical Issues 2: Atticus Alternative Universe Taking Your Fee in Chickens (or other stuff) Maintaining Professional Competence Doing Business with Clients (Rule 1.08: fairness, written consent and independent counsel. ) Segregating business and practice (Rule 5.04 (b) and (d)). The Noble Lawyer and Legal Ethics William J. Chriss, P.C. Of counsel to Gravely & Pearson, L.L. P. Austin and San Antonio wjchriss@gplawfirm.com

08: fairness, written consent and independent counsel. ) Segregating business and practice (Rule 5.

Amy S. Harris Shareholder

Amy S. Harris Shareholder Shareholder Amy Harris joined Macdonald Devin in 1989 and represents clients in state and federal trial and appellate courts, primarily in insurance defense litigation and insurance coverage. She has served