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1 July-August 2014 I Could Have Danced All Night Profile of Hon. Craig A. Gargotta Divorce Appeals and the Acceptance-of-Benefits Doctrine Lisa Tatum Out in Front Managing Complex Commercial Litigation: An Associate in the Trenches PRST STD US POSTAGE PAID SAN ANTONIO TEXAS PERMIT 1001


3 July-August 14 Features 5 10 Departments 5 10 I Could Have Danced All Night: Arguing Before the United States Supreme Court By Warren Wolf The Honorable Craig A. Gargotta A Steady Hand on the Tiller By Patrick Autry Feedback Not Another Suicide By Bree Buchanan Fourth Court Update: The Art of Judging By Justice Rebeca C. Martinez 12 Divorce Appeals and the Acceptance-of-Benefits Doctrine By Robinson C. Ramsey 20 San Antonio Lawyer Takes Home Four SBOT Awards! 15 Lisa Tatum Out in Front By Don Philbin 21 Federal Court Update By Soledad Valenciano and Melanie Fry 18 Managing Complex Commercial Litigation: An Associate in the Trenches By Ashley Senary Dahlberg 15 On the Cover: Warren Wolf - Cover photo courtesy of Hugh Leighton McWilliams Photography Archives of the San Antonio Lawyer are available on the San Antonio Bar Association wesite, San Antonio Lawyer is an official publication of the San Antonio Bar Association. Send address changes to the Bar Association address at the top of page 4. Views expressed in San Antonio Lawyer are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product or service. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to Copyright 2014 San Antonio Bar Association. All rights reserved. San Antonio Lawyer 3 July-August 2014

4 Lawyer San Antonio Feedback The San Antonio Bar Association 100 Dolorosa, San Antonio, Texas Fax: Officers/Directors President Rebecca Simmons President-Elect Tom g. Keyser Vice President James M. Marty Truss Directors Rosa Cabezas-Gil Thomas A. Crosley David Evans Stephen R. Fogle Mexican American Bar Association Jaime Vasquez San Antonio Young Lawyers Association Patricia Rouse Vargas Bexar County Women s Bar Association Tiffanie Clausewitz San Antonio Black Lawyers Association Stephanie Boyd Editors Editor in Chief Hon. Barbara Nellermoe Articles Editor Sara Murray Board of Editors Hon. Barbara Hanson Nellermoe, Chair Pat H. Autry, Vice-Chair Sherry M. Barnash Barry H. Beer Charles Butts Merritt Clements Gayla Corley Ryan V. Cox Andrea Crouch Paul Curl Cristina Tijerina DeLeon Jane Rankin Dure Tanya Feinleib Jose Galvan Shannon Greenan Gilbert S. Gonzalez Stephen H. Gordon Per Hardy Sam Houston Leslie Sara Hyman Rob Killen Ex Officio Rebecca Simmons Kim Palmer Secretary Bobby Barrera Treasurer Beth Watkins Immediate Past President Andrew L. Kerr Danielle L. Hargrove Ernest E. Karam Hon. Laura L. Parker Santos Vargas San Antonio Bar Foundation Rebecca Simmons State Bar of Texas Directors Sara E. Dysart Andrew L. Kerr Executive Director Jimmy Allison Managing Editor Kim Palmer Departments Editor Leslie Sara Hyman Rob Loree Burke C. Marold Hugh McWilliams Harry Munsinger Sara Murray Curt Moy Steve Peirce Donald R. Philbin Rob Ramsey Yanira Marie Reyes James Rodriguez Alexis Adams Scott Ronald D. Smith Regina Stone-Harris Johnny W. Thomas David Willis Natalie Wilson Kevin Yeary Liz Castillo Ron Hogue Nationwide Publishing SA 2300 Chalet Trail, #K4, Kerrville, TX (210) Publisher - Ron L. Hogue Re: Steve Peirce, The Message of Gustavo Garcia, May-June 2014 Frank Southers writes: Congrats on your superb capture of the magic of Gus Garcia in your SA Lawyer article! When I toiled for Rudy Rice as a baby lawyer in 1960, I had the pleasure of meeting the man at Mario s on the near West Side with Charles Lieck, Sr, my boss, Bob Murray, and Matt Garcia. He still had his squash at that time, or at least, I thought so, judging from roundthe-table conversation. Gus Garcia performed a lot of magic for all Hispanics, not just in San Antonio, but throughout the Southwest. Thanks for bringing to life a truly dedicated lawyer, who along with Carlos Cadena, deserves our admiration in helping the poor and disadvantaged. Sonia M. Rodriguez writes: I want to thank you for writing the piece about Gus Garcia in the San Antonio Lawyer. Of course, I saw the PBS documentary about Garcia. And I ve heard the folklore. As a Mexican-American lawyer, he is a personal hero despite his tragic end-of-life. Your article in San Antonio Lawyer is outstanding because it summarizes all of the great sources and adds a personal San Antonio lawyer s touch. Thank you for doing that. Will you be so kind as to send me a PDF or electronic copy of your article? I want to share your article with students I speak to in the community and with my own kiddos. Barry Snell writes: Marvelous piece! I m ashamed that despite 42+ years here as a trial lawyer, I did not know Gus story. Thanks so much for taking the time to share this gem of San Antonio history with all of us. And shame on the Cortez family for not including him in Mi Tierra s famous mural. Judge Karen Pozza writes: Congratulations on your fantastic article about Gustavo Garcia very moving. Thank you for taking the time to author such a thoughtful and compelling story about the important, fascinating and inspiring life of Mr. Garcia. Judge Nellermoe, thank you for publishing the story and congratulations on your continued success as Editor in Chief. Ricardo Cedillo writes: I thoroughly enjoyed your article on Gus Garcia. It is excellent writing. In the Spring of 1979, as a 3L, Harvard Law School gave me some money to put on a one day seminar on Hispanics in the Law. We used it to invite Carlos Cadena (and his wife Gloria) to Cambridge to be our featured speaker. We put them up in my apartment and drove them around in my 1969 Volkswagen Beetle. Justice Cadena told the story of Hernandez v. Texas to a packed audience in Langdell Hall. The front row was filled with faculty, including Larry Tribe and Archibald Cox, as well as Commonwealth and Federal Court judges. It was a remarkable experience of reliving history with someone who had lived it. A full, candid, colorful description of Gus Garcia was included. The reception that followed, with Justice Cadena holding court, had students taking notes as if they were in a Constitutional Law lecture. Your article brought all these memories to the forefront, and I thank you for that. Layout by Kim Palmer Managing Editor, San Antonio Bar Association San Antonio Lawyer 4 July-August 2014

5 I n reflecting on my experience before the United States Supreme Court, two books come to mind: The Once and Future King by T. H. White and Pygmalion by George Bernard Shaw. Both books came to life on the Broadway stage in the musicals Camelot and My Fair Lady. The story of young King Arthur as he pulled the sword out of the stone can be compared to getting a petition for writ of certiorari granted. I later found out that approximately 80 writs out of the requested 8,000 are granted annually. MAGICAL! As far as getting ready for oral argument, I was learning every aspect of Supreme Court advocacy, just as Eliza Doolittle had to prepare to go to the ball. I found out that certiorari was granted on October 29, 2011, the day Hurricane Sandy crippled the East Coast. Washington had shut down, but the nine Justices of the Supreme Court weathered the storm and went to work that morning. They granted only four writs and turned away several hundred others. I was standing at the bench in the 436 th District Court, a juvenile court. My cell phone vibrated. I looked at it and the caller was Dick Burr. Dick is a death penalty and habeas resource attorney who had been helping me with the Carlos case ever since I was appointed in As soon as the hearing was over, I called Dick, who told me that certiorari had been granted. I felt as if I had pulled the sword out of the stone. You Don t Do This Alone I Could Have Danced All Night Arguing Before the United States Supreme Court By Warren Wolf Many people helped along the way to oral argument before the Supreme Court. Bud Ritenour has been my co-counsel for the past six years, replacing Alan Futrell. Bud was chiefly responsible for writing the certiorari petition. Alan recruited others to write the original successor writ. After we were denied assistance from the court, I became a mitigation investigator. I cast a wide net seeking guidance and help from everyone I knew in the habeas community. I really wanted to do the oral argument, but much preparation was needed to get ready. Where others getting ready for oral argument might endure two or three moots (practice oral arguments), I wound up doing ELEVEN! I was determined to San Antonio Lawyer 5 July-August 2014

6 make this work. Professor David Dow at the University of Houston Law School hosted the first and the eighth moots. I did two moots at Texas Tech Law School in Lubbock thanks to Professor Pat Metze. One was held in Austin before the death penalty clinical professors at the University of Texas. They combined with Professor Dow to write an amicus brief (friend of the court) in this case. Two were done in San Antonio: one at St Mary s Law School, my alma mater, and the other before members of the Federal Public Defenders office in San Antonio s Western District, which boasts of two successful first-time oral advocates before the Supreme Court: Carolyn Fuentes and Jack Carter. An added bonus was a guest appearance by Professor Robert Bartels of Arizona State University in Tucson, Arizona, who was the attorney who argued Martinez before the Supreme Court. To provide a non-texas point of view, Professor Andrea Lyon at DePaul University in Chicago agreed to host a moot as well. Bud accompanied me to every moot except the one in Chicago. We videotaped the moots so that I could go over each one. At the suggestion of Jack Carter, I turned off the sound to watch the video to see if I had any annoying idiosyncratic gestures that I needed to control. A little extra luck never hurts! Touching John Marshall s toe for good luck Warren stands outside the Supreme Court after presenting his argument. Many offers started to pour in from Supreme Court specialists, including some former briefing attorneys. All offers came from big firms with partners who argue before the Supreme Court on a regular basis. I resisted their entry into the case. A huge addition to the team came through Dick Burr s acquaintance with Seth Waxman. Seth, a partner with the Washington, D.C.-based firm Wilmer Hale had been the United States Solicitor General during the Clinton administration. He agreed to help Bud and me write the brief and reply and put together the joint appendix. Everything in the Supreme Court is dictated by special rules the forms of the brief (booklet form), the number of words, the size of the font, and on and on. The number of people and hours Seth contributed to this effort was staggering. Professor Tony Amsterdam at NYU Law School provided insight into the Justices idiosyncrasies, which was invaluable in shaping the brief and the oral argument. Another extremely important person in this effort was Buck Files, President San Antonio Lawyer 6 July-August 2014 of the State Bar of Texas at that time. It s beyond current memory since a criminal defense attorney had last been State Bar President. We agreed that it would be helpful for the State Bar to reassert its desire to improve the quality of capital defense, as set out in the Texas Guide for Capital Defense. Buck arranged for the State Bar to file an amicus brief in the United States Supreme Court within the short time frame allowed. Justices Kennedy and Breyer favorably referred to the State Bar s brief as least four times during oral argument. The Pressure from Without and the Strength from Within I really wanted to do this oral argument, but many people from around the country said I should defer to Seth for all of the obvious reasons. In the final analysis, I have a lot to thank Seth for. I told him how I felt about doing the argument, and he replied, Everybody has to have his first.... We never looked back. I was the Eagle Scout who had to learn how to swim to become a first class. In the 60s there were no options like there are now, and every Eagle Scout had to have swimming and lifesaving merit badges. I gave up a trip cross country with my Uncle Norm (the first attorney in the family, my mother s younger brother whom I looked up to as role model in many ways). I earned

7 San Antonio Lawyer 7 January-February 2014

8 my Eagle Scout badge overcoming many obstacles, and I attribute that to perseverance, which is a lesson I have drawn upon many times thereafter. Norm had attended the prestigious Bronx High School of Science, a public high school that requires an entrance examination. I wanted to attend that school, too, but most of the entering class came from better neighborhoods than mine. It was like my competition came from Alamo Heights, and I came from a less affluent part of town. To prepare for the exam, I studied the Increase Your Word Power feature at the back of the Reader s Digests my mother had accumulated. It paid off, and I was one of three from my junior high school to join the entering class of approximately three hundred. Perseverance has played a big role in my avocations as well. I started bike riding in Soon I had built up my endurance to do century (100-mile bike rides for charities such as MS, the Lung Association, the Heart Association, and the Lance Touring the Supreme Court Armstrong Foundation). The difference between a metric century (100 kilometers/62.5 miles) and a full century ride (100 miles) is mental toughness, which I would have to draw upon in this upcoming challenge. Total Commitment When I decided to make this effort, I realized that it would take a lot of sacrifice. I sent a vacation letter to all of the courts, suspending my availability to take any new court appointments. Financially, it was not going to be easy. Bud and I have still not been paid for our work in the 5 th Circuit to get the case to this point. As Benjamin s (Dustin Hoffman) dad s friend advised in the movie The Graduate, PLASTICS! I am lucky to have good credit. But I knew that the experience would be priceless. As the time grew closer, the pressures to give up the oral argument became stronger, but my determination to make this happen became more enhanced. The people who knew me best, local lawyers including Gerry Goldstein, Stan Schneider, Mark Stevens, and Mike Gross among countless others all advised me to keep the case. I was not going to give it up. The circle of people helping on the case at one time literally numbering into the hundreds now became a very tight-knit group. Bud Ritenour, cocounsel, advisor, deputy, and trusted friend never wavered in his support. My wife Teresa (who had sacrificed enormously in many respects during this ordeal) and my daughter Robin (who grew up watching her dad defend numerous clients) stood fast and were an unfaltering source of support. Most importantly, I maintained that determination that got me into Bronx Science, finished many 100-mile bike rides, and helped me pass my lifesaving merit badge to become an Eagle Scout. Becoming Familiar with the Court How do you prepare for your first oral argument before the Supreme Court? Not living in the D.C. area, not going to law school in the D.C. area, and not clerking for a Supreme Court Justice as my opponent had, I needed to be creative in my preparation. Eleven moots before former briefing attorneys, some of whom had appeared before the Court and others of whom were students of the Supreme Court aided my preparation. In addition, I listened to over 100 hours of oral arguments, especially the Martinez v. Ryan case to which ours was so inextricably linked. (Oyez.com, now Scotus.com, is a wonderful website.) I listened to Justice Abe Fortas, who argued Gideon v. Wainwright and watched the Henry Fonda movie version just to see the courtroom scene over and over again. I watched a CNN documentary DVD I had bought on a visit to the Court the previous August, when I had attended a habeas seminar in D.C. Not only did the DVD show the courtroom, but it also explained the history of the Court and contained interviews with many of the Justices, including Justice Clarence Thomas, whose voice no one would hear, as always, during the oral argument. The DVD discussed not only the oral argument but also the process of how certiorari is granted and how cases are decided. It actually showed the room where only the nine Justices sit to decide the cases. NO ONE else is permitted entry. One interesting note was that when discussing the cases, the Justices speak in order of seniority, and no one is allowed to speak a second time until all nine Justices have had an opportunity to voice their opinions. I read biographies about all of the Justices, where they went to school, where they grew up, in what part of the country they were raised, even which ones were also Eagle Scouts. I read books by the Justices, including Justice Scalia, as well as books by Professors Dow and Lyon. I researched the profile of my opponents; that changed at the last minute. I read about Supreme Court procedure, the history of oral argument, and techniques to better present oral argument. A great mental and moral boost San Antonio Lawyer 8 July-August 2014

9 came the previous August when one of the Supreme Court clerks, Mrs. Tyce, gave us a special tour after my wife and I took the public tour. She took us into the courtroom, not just the area where the general public sits but inside the bar. She said, This is where you will be sitting. She grabbed me by the arm, placed me at the lectern, and said, This is where you will be standing. Look how close you are to the Chief Justice. How prophetic. Mind you all of this occurred before certiorari was granted. When we returned in February for the oral argument, Mrs. Tyce met us again and this time gave Bud and me (for a second time) an opportunity to stand at the lectern (it s not a podium). The Day Before (February 24, 2013) Seth Waxman were Bud and Catherine Carroll, one of Seth s attorneys, who were so instrumental in getting the case and me ready. Chief Justice Roberts called the case and my name. I opened in the obligatory fashion, Mr. Chief Justice, and may it please the Court. In an hour it was over; thirty minutes per side. Conclusion Practicing now for thirty-seven years, I have been a trial lawyer, argued cases before the 4 th Judicial District Court of Appeals in San Antonio, the Texas Court of Criminal Appeals in Austin, the 5th Circuit Court of Appeals in New Orleans, and now before the United States Supreme Court. It was a dream come true. I have returned to my practice in San Antonio, but for one brief shining moment I was in Camelot. I could have danced all night. Link to Trevino v. Thaler, org/cases/ /2012/2012_11_10189 Warren Wolf practices criminal law and estate and probate law in San Antonio. Versions of this article were previously published in The Defender, the publication of the San Antonio Criminal Defense Lawyers Association, and in The Voice, the publication of the Texas Criminal Defense Lawyers Association. After a moot at the Supreme Court Institute at Georgetown University on Friday and two more at the office of Wilmer Hale on Saturday, Bud and I agreed that I needed to just relax. I thought about basketball players such as Kobe Bryant and Tim Duncan before a big basketball game. They always had ear buds inserted, listening to music. Teresa and Robin vacated the hotel room and went to visit Arlington. I opted to remain in the room. I went to my Pandora app and listened to show tunes, which included My Fair Lady and Camelot. Teresa and Robin brought me something light to eat, and I went to bed around 9 p.m. February 25, 2013 We got up early and went downstairs for breakfast. We were scheduled to be the second argument of the day beginning at 11:00 a.m. (I did not want to run out of steam before I began). At 9:00 a.m. all of the lawyers met with the Chief Clerk General Suter. He put us at ease and reminded us about some basic Supreme Court protocol. We then proceeded into the courtroom. At 10:00 a.m., I got a chance to witness in person my first Supreme Court argument. At 11 a.m., we moved up to counsel table. Placed on the table was a white quill pen, a symbol that you have argued a case before the United States Supreme Court. This tradition dates back to the earliest sessions of the Court. Sitting at the right hand of Not Another Suicide That s a phrase that I have found myself uttering too often. I ve experienced the anguish and profound sense of loss on two separate occasions following the suicides of friends, both of whom were highly respected and accomplished lawyers. Since beginning work at the Texas Lawyers Assistance Program, I ve learned all too well that those suicides were not anomalies. Rarely a month goes by that we don t hear of a lawyer somewhere in our state who has taken his or her own life. Nationally, suicide ranks as the third-leading cause of death among lawyers. Reasons for this distressing statistic include a number of unique characteristics and circumstances experienced by lawyers: a persistent high level of stress, a pessimistic outlook developed through law school and practice, long hours and isolation of daily work, perfectionism and low tolerance for failure or losing face, the high stakes nature of our work, and a reluctance to ask for help. Taken together, these traits result in a heightened susceptibility to mental health disorders, substance abuse, and suicide. To address this problem, we ve added a suicide prevention link to our website: bit.ly/sbotsuicideprevent. Our Mental Health Initiative Subcommittee produced Life Alert: Save a Lawyer, which can be viewed and downloaded. This resource lists some of the warning signs of suicide and has a protocol for having the difficult conversation with a lawyer whom you suspect may be considering suicide. If you re concerned that someone you know is suicidal, please call 911 or contact the National Suicide Prevention Hotline. If you would like more information about this issue, call us at We are a free service of the Bar, available 24/7, and completely confidential. Bree Buchanan, J.D. Texas Lawyers Assistance Program San Antonio Lawyer 9 July-August 2014

10 The Honorable Craig A. Gargotta A Steady Hand on the Tiller By Patrick Autry The Fifth Circuit Court of Appeals appointed Craig A. Gargotta to the Bankruptcy Court in Following a seventeenyear career in San Antonio as an Assistant United States Attorney in the Western District of Texas, Judge Gargotta filled the vacancy on the Austin bankruptcy bench left by the retirement of Larry Kelly. In the spring of 2013, he accepted an opportunity to return to San Antonio. If you are looking for deep insight into a sitting federal judge, a shocking back story, or high drama, look elsewhere. This is a simple story. Craig Gargotta is all about how intellectual discipline, hard work, and good fortune will lead you to a good place. Craig Gargotta was born in Pittsburgh, Pennsylvania. His father worked for U.S. Steel in the metal coatings division. Mom worked in the home. Via Chicago, the family ultimately arrived in Houston. Upon graduation from high school, Gargotta gravitated toward College Station rather than Austin. He matriculated at Texas A & M, from which he earned both undergraduate (1981) and master s degrees (1984) in history. His thesis topic concerned the diplomatic discussions between the English and the French (principally concerning the Germans one imagines) in the years preceding the World War I [ Anglo French Military Conversations ]. That he can now in 2014 both cogently and enthusiastically discuss this topic evidences the intellectual discipline referenced earlier. And though his degrees were not in economics, Judge Gargotta early displayed a thorough understanding of the dismal science. Armed with an M.A. in history and facing a career decision, he determined that a career in law as a paralegal with Baker Botts would likely put more food on the table that than the $19,000 per year he likely would earn as an associate professor at a state university. That, briefly stated, is how likely Ph.D. candidate Gargotta began his legal career. Enter serendipity. In those days, the paralegal field was open to anyone with a four-year degree (or better). No specialized training was required. He applied to Baker Botts in Houston for a position as a paralegal. When asked his preference of legal fields, he said environmental. He was promptly hired to work, not in environmental law, but rather as a bankruptcy paralegal in the firm s small (but exceptionally talented) bankruptcy section. The section, at the time, included Alan Gover, who had migrated from antitrust litigation into the bankruptcy arena. And as Gover recently recalled, This was the mid-1980s. Few in Houston had any meaningful bankruptcy experience. We were all learning it as we went. Later, Gover was instrumental in opening a Houston office for Weil Gotshal & Manges, which Gargotta joined despite Gover s active discouragement that such a specialized practice was too risky. I can still see him standing in the door of my office ready to work. On a scale of one to ten, I give him a fifteen for enthusiasm San Antonio Lawyer 10 July-August 2014 and ability.... recalls Gover. While working at Weil Gotshal, Gargotta met and married Houston native Susan Harbaugh. Again exhibiting a firm understanding of economics, the couple decided that a law degree would provide additional financial stability to the young and soon-to-grow family. In the contest between St. Mary s and the University of Texas, St. Mary s prevailed. Gargotta received his law degree from the St. Mary s in Following graduation, Gargotta clerked for Bankruptcy Judge Ronald B. King in San Antonio who, at that point, had himself only been on the bench for one year. Following his clerkship, Gargotta became an Assistant United States Attorney in the San Antonio division of the Western District. He handled a variety of matters during his seventeenyear career with the Office, including a prominent civil case against the Mexican-American Unity Council for the claw-back of federal grant money. He regularly appeared on behalf of the United States and its various agencies and departments on the multitude of federal claims and disputes that the Bankruptcy Court heard in the 1990s and early 2000s. He earned a reputation as a strong advocate for the government who was nonetheless willing to recommend an agreed resolution in the appropriate case. Judge Gargotta s appointment to the Bench generated mixed emotions among the San Antonio Bankruptcy Judge Gargotta as he is sworn in by Bankrupcy Judge Ronald B. King

11 Judges Craig Gargotta, Ronald King, H. Christopher Mott and Tony Davis Bar. Though happy for Judge Gargotta as a respected and talented advocate, losing him as the Government s chief advocate in bankruptcy matters and, moreover, losing him to Austin were bitter pills. His return to San Antonio in 2013 was welcomed. Judge Gargotta neither overestimates nor underestimates his role as a Bankruptcy Judge. The Bankruptcy Court is the place where much of the general public will have their major contact with the federal judicial system, he notes. Accordingly, Judge Gargotta s judicial philosophy has three basic components. First, try to apply the law as Congress has written it. Second, endeavor to be consistent. Third, always display the proper temperament. Of the job, Judge Gargotta says, It s an honor and privilege to be a Judge. I liked trial work as an attorney, and I enjoy presiding over trials as a judge. I enjoy writing opinions, and I like being challenged intellectually by the attorneys. And being a judge also gives me the opportunity to mentor my clerks, as I was once mentored by Judge King. That having been said, he is not particularly interested in being remembered as a Bankruptcy Judge. What is obvious, though, is that Judge Gargotta is trying to give back to the profession as much as he has received from it. He remains an active member of the Federal Bar Association, serving on the Council of the Association s Bankruptcy Section. Prior to his appointment to the Bench, Judge Gargotta had been the Editor in Chief of the FBA s magazine, The Federal Lawyer. He serves on the Council of the Bankruptcy Section of the Texas Bar and is either the chair or co-chair of various planning committees for several state CLE conferences. And, were these not enough, he is also teaching Legal Writing at St. Mary s. Craig Gargotta, the husband and father, has ushered one son to his Eagle Scout honor and is working with the second. He runs recreationally, although not as much as he used to. He is a big Spurs fan. And, despite his Pittsburgh roots, Judge Gargotta pulls for the Cowboys rather than the Steelers. The three priorities in his life are his family, his faith, and in third place the bench. Judge Gargotta s perspectives on life and work have well served him, his family, and the community. Patrick Autry is a shareholder with Branscomb PC and is board certified in Business Bankruptcy Law by the Texas Board of Legal Specialization. San Antonio Lawyer 11 July-August 2014

12 Divorce Appeals and the Acceptance-of-Benefits Doctrine By Robinson C. Ramsey The Doctrine. The acceptance-ofbenefits doctrine precludes a party from challenging on appeal a judgment whose benefits that party has accepted. 1 The rationale for this rule is that [a] litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom. 2 This issue commonly arises in divorce cases in which a former spouse accepts certain assets awarded in the judgment and seeks to appeal the remainder of the judgment. 3 Burden of Proof. The appellee bears the burden to prove that the appellant has accepted the benefits of a judgment. 4 Proof may take the form of affidavits and other satisfactory evidence. 5 If the appellee meets this burden, then the burden shifts to the appellant to show that one of the exceptions to the doctrine applies. 6 Economic Necessity. One of the most common exceptions to this appeal-blocking doctrine is economic necessity, which applies when the acceptance of benefits is not voluntary because of financial duress or other economic circumstances. 7 Garza is an example of the successful invocation of the economic-necessity exception: the appellant s uncontroverted testimony established that her expenses far exceed[ed] her income; she ha[d] no other assets she [could] use to pay for necessities; and she therefore used the three payments for her equity in the marital homestead to pay for her basic living expenses. 8 Under these circumstances, the court determined that the appellee had not met his burden to prove that the appellant s acceptance of the benefits was voluntary. 9 In similar fashion, the appellant in Cooper admitted that she had accepted the monetary benefits of the decree, but only to pay for the necessities for the family. 10 She explained that she [was] the single parent of two children, ha[d] difficulties making ends meet each month, and filed for bankruptcy to avoid foreclosure on her home prior to accepting the benefits. 11 Based on her affidavit, the court of appeals 1 Carle v. Carle, 234 S.W.2d 1002, 1004 (Tex. 1950). 2 ; see also Richards v. Richards, 371 S.W.3d 412, 414 (Tex. App. Houston [1st Dist.] 2012, no pet.) ( If a party accepts the benefits of a judgment, he is estopped from challenging that judgment on appeal. ). 3 F.M.G.W. v. D.S.W., 402 S.W.3d 329, 332 (Tex. App. El Paso 2013, no pet.); see also Richards, 371 S.W.3d at 414 (observing that the acceptanceof-benefits doctrine arises most often in divorce cases ). 4 Tomsu v. Tomsu, 381 S.W.3d 715, (Tex. App. Beaumont 2012, no pet.); see also Waite v. Waite, 150 S.W.3d 797, 803 (Tex. App. Houston [14 th Dist.] 2004, pet. denied) ( The burden is on the appellee to prove that the appellant is estopped by the acceptance of benefits doctrine. ). 5 Richards, 371 S.W.3d at Sprague v. Sprague, 363 S.W.3d 788, 793 (Tex. App. Houston [14 th Dist.] 2012, pet. denied). 7 Waite, 150 S.W.3d at 803; see also Garza v. Garza, 155 S.W.3d 471, 475 (Tex. App. San Antonio 2004, no pet.) (holding that the acceptanceof-benefits doctrine does not apply to a party who accepts benefits awarded in a divorce decree to provide for necessities ); Cooper v. Bushong, 10 S.W.3d 20, 23 (Tex. App. Austin 1999, pet. denied)) ( Acceptance of benefits due to financial duress or other economic circumstances does not constitute voluntary acceptance. ) S.W.3d at S.W.3d at at San Antonio Lawyer 12 July-August 2014

13 determined that the appellee did not meet his burden of proving as a matter of law that [the appellant] voluntarily accepted the benefits of the child support judgment and accordingly denied his motion to dismiss. 12 Economic necessity also arose in McAlister v. McAlister, where the appellant s attorney sent the appellee s attorney a letter stating that the appellant was accepting payments under the decree in protest because she needed the money to support herself and their children. 13 She also established that purchases of a home and car were possible only because her family members loaned her money for such down payments, and that her loans were obtained while she held the status of a married person. 14 Therefore, the appellee was not able to establish that the appellant had voluntarily accepted the benefits of the decree. 15 The evidence in In re M.A.H. showed that the appellant had no job and no valuable possessions aside from the benefits of the divorce, namely, the two cars, the boat, and one half of appellee s retirement benefits. 16 She testified that she had no choice but to use the assets that came to [her] under the divorce decree to support [herself] and that she sold the cars and boat and bought a mobile home and a smaller car with the proceeds. 17 She further explained that she bought the mobile home instead of renting a home because she did not have a monthly income to pay rent, and she was worried she would run out of money and not have a home for herself and for her periods of possession of the children. 18 Considering this testimony as well as the appellee s failure to present any contrary evidence of appellant s economic circumstances, the court of appeals held that these facts demonstrated that appellant s acceptance of the benefits of the judgment was due to economic necessity. 19 Therefore, the court concluded that the appellee failed to establish that appellant is estopped from bringing this appeal. 20 On the other hand, F.M.G.W. rejected the economic-necessity defense of an appellant who filed a separate suit against the appellee for monetary damages for not complying with the terms of the decree. 21 The court reasoned that any possible legal obligation Appellee owed to Appellant... arose only from the divorce judgment. 22 Therefore, the appellant accepted the benefit of the judgment when she filed suit seeking damages, and she failed to meet her burden in establishing that the narrow financial duress or economic circumstances exception to the acceptanceof-benefits doctrine applie[d]. 23 The appellant in Richards was also unsuccessful in asserting the economicnecessity exception because, instead of a detailed explanation of his economic circumstances, he made a mostly conclusory assertion that he [was] near bankruptcy and that his expenses were greater than his income. 24 Although he presented some information, it was not enough to determine, with any degree of certainty, what his monthly income and obligations [were]. 25 Therefore, the court held that he failed to establish that he fell within the narrow exception of economic necessity. 26 Waite involved a similarly insufficient explanation of why the economic-necessity exception should apply. The appellant s affidavit stated that he needed the entire award of over $800,000 to pay his daily living expenses and to complete repairs on the family home awarded to him. 27 Although he argued that his affidavit unequivocally establishe[d] the economic circumstances rendering his acceptance of the benefits of the judgment involuntary, the court of appeals disagreed, finding instead that the affidavit was largely conclusory and contained almost no factual support. 28 His claim of financial hardship was further undercut by the complete absence of any statement in his affidavit that he was unemployed or had no other sources of income. 29 No Prejudice. Another exception arises when there is no danger that 12 at S.W.3d 481, 484 (Tex. App. San Antonio 2002, pet. denied) S.W.3d 814, 818 (Tex. App. Dallas 2012, no pet.) S.W.3d at at S.W.3d at S.W.3d at at San Antonio Lawyer 13 July-August 2014

14 the appellant s acceptance of benefits would prejudice the other party. 30 In Haggard, the court of appeals held that there was no danger that Mr. Haggard s interest in the $400 received by Mrs. Haggard would be prejudiced by the appeal because the trial court could take the $400 paid to Mrs. Haggard into consideration in the event of a redivision, and if the judge did not award Mrs. Haggard sufficient cash to repay it, the court could order assets awarded her sold. 31 Because the evidence clearly show[ed] that, in the event of redivision, she [would] necessarily be awarded property worth more than $400, the court of appeals concluded that a division that did not award her this amount of property would clearly be an abuse of discretion and Mr. Haggard s rights would not be prejudiced, therefore, by this appeal. 32 In a similar vein, a party who accepts benefits that are undeniably his so much that the opposing party would concede upon another trial that the benefits are his does not waive the right to appeal. 33 This exception, however, is a narrow one, which is applied stingily. 34 If an appellant s right to receive the property could be affected by a new trial, the exception does not apply. 35 In other words, the exception does not tolerate change or uncertainty. The appellant s right to the property must be unquestionable. 36 Supersedeas. Posting a supersedeas bond is another way to avoid the application of the acceptance-of-benefits doctrine. For example, in Sprague the wife argued that the husband had accepted the benefits of the judgment by liquidating a large portion of a savings account and keeping proceeds, but the court of appeals disagreed, pointing out that the husband had superseded the judgment. 37 Severable Issues. It is also possible to salvage part of an appeal if an appellant has accepted only a severable portion of the judgment. 38 In Tomsu, [a]ll but two of [the appellant] s issues concern[ed] the trial court s division of the community estate, while those remaining two addressed the trial court s failure to award spousal maintenance and the trial court s award of appellate fees. 39 Because these two issues did not affect the division of the community property, the court of appeals concluded that they could be considered regardless of whether the appellant had accepted the benefits of the property division. 40 Temporary Orders. Post-trial temporary orders may also prevent the application of the acceptance-of-benefits doctrine. 41 In McAlister, one of the bases for the husband s motion to dismiss the wife s appeal was that she had accepted certain funds awarded to her. 42 But the court of appeals held that the doctrine does not apply in this case because the trial court entered post-judgment temporary orders stating, The funds received by [the wife] from [the husband] under the terms of the Final Divorce Decree shall continue to be received as temporary child and spousal support during the pendency of appeal and that such orders are authorized by section of the Texas Family Code. 43 Although the husband argued that this provision does not afford the court authority to make such orders retroactive to the date of the decree, the court of appeals found no such limitation in the Code. 44 Furthermore, it concluded that such an interpretation could hamstring both the court and the appellant during the time of post-decree hearings and the appeal thereby abrogating the legislature s intent to maintain the status quo and provide for spousal and - continued on page See Haggard v. Haggard, 550 S.W.2d 374, 377 (Tex. Civ. App. Dallas 1977, no writ) (holding that use of cash awarded one spouse should not preclude an appeal where the rights of the other spouse would not be prejudiced ); see also Trevino v. Trevino, 555 S.W.2d 792, (Tex. Civ. App. Corpus Christi 1977, no writ) (overruling a motion to dismiss where the acceptance was a cash award only and on final distribution of the property there would be sufficient assets to cover the award ) S.W.2d at Waite, 150 S.W.3d at 807; see also Carle, 234 S.W.2d at 1004 ( Where an appellant accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery. ). 34 Waite, 150 S.W.2d at Bloom v. Bloom, 935 S.W.2d 942, (Tex. App. San Antonio 1996, no writ). 36 Waite, 150 S.W.3d at S.W.3d at 793; see also Raymond v. Raymond, 190 S.W.3d 77, 80 (Tex. App. Houston [1st Dist.] 2005, no pet.) (holding that an appellant who posts a supersedeas bond to suspend the judgment cannot be said to have accepted its benefits ). 38 Roa v. Roa, 970 S.W.2d 163, 166 (Tex. App. Fort Worth 1998, no pet.) S.W.3d at ; see also Roa, 970 S.W.2d at 166 (holding that the acceptance of a property-division benefit did not preclude the appellant from pursuing a severable part of the judgment, such as custody or child support). 41 Sprague, 363 S.W.3d at 794; see also McAlister, 75 S.W.3d at 484 (in which the trial court indicated on the record that he was entering temporary orders based on [the appellant] s economic need to receive such support. ) S.W.3d at McAlister, 75 S.W.3d at 483. San Antonio Lawyer 14 July-August 2014

15 When the votes were counted on April 30, 2014, Lisa Tatum became the first African-American, fourth youngest, and fifth female president of the more than 94,000 member State Bar of Texas. To those who know her, that trifecta wasn t much of a surprise. After graduating from Santa Clara University School of Law as national member of the Order of Barristers, Lisa became a Bexar County Criminal Assistant District Attorney. While working in the private sector at Escamilla & Poneck, Inc., and then West & Associates L.L.P., where she managed the local office, Lisa decided to build a firm of her own. LM Tatum, PLLC focuses primarily on corporate, employment and public finance law. The firm serves as Underwriter s Counsel and Co-Bond Counsel providing legal services related to financial transactions and is listed in The Bond Buyer s Municipal Marketplace (The Red Book). LM Tatum, PLLC also serves as outside and general counsel to corporate clients, public and private of various sizes, as well as private counsel to individuals. Additionally, the firm provides legal services in the area of simple estate/ contingency planning affording her corporate and private clients an opportunity to meet personal needs. Lisa has always been service minded. I got to know her well during our time together in Leadership San Antonio over a decade ago. Lisa is a natural leader with an exceptionally calm and warm demeanor. Recently elected State Bar President-Elect Allan DuBois still remembers her deep spirituality when he sat on the committee interviewing potential candidates for the Bar presidency in 2012: Lisa was interviewing to be one of the candidates as a sole practitioner. My question was how she would be President and still practice law, represent her clients, and support herself effectively if elected. In her direct response, I was struck by her confidence and strong faith in God; her belief that He had a plan for her life, and so long as she continued to live honorably, work hard, be of service, and always try to do what was right, that she would be in His good hands, and those practical Lisa Tatum Out in Front concerns would also work out. It was not a coincidence three years later when she was on the other side of the table for my own interview, and when questioned, I recalled her inspirational answer. Lisa s successful implementation of her plan is now a hallmark of her extraordinary record of leadership as President. It s not unusual for Bar presidents to have served the membership for years before election, but Lisa went above and beyond here too. Tatum served on the Bar Board of Directors from 2004 to 2010, the Commission for Lawyer Discipline from as well as serving on the national and local levels as a leader. She is a member and past president of the San Antonio Black Lawyers Association and a member of the Bexar County Women s Bar Association, the San Antonio Bar Association, the Federal Bar Association San Antonio Chapter, the William S. Sessions Inn of Court, the Rotary Club of San Antonio and more. Former SABA President and State Bar leader Lamont Jefferson commented on Lisa s Bar service: Lisa had a long history of service to the Bar before she was nominated to serve as president. She frequently resolved overheated discussions with a calm and thoughtful voice, and always with a humble and gracious smile. She carried those traits with her to the presidency. She gives San Antonio lawyers every reason to be proud. Michelle Hunter, Executive Director of the Bar, has worked with Lisa for years. She quickly adds that: Lisa is fair and compassionate. She is able to look at any situation and immediately understand the most important part of the issue. She then makes sure that all San Antonio Lawyer 15 July-August 2014

16 Lisa was sworn in as President of the Texas State Bar in June voices are heard before helping bring the issue to a satisfactory resolution. This is the key to her extreme effectiveness. So how does Lisa feel about her historic presidency? Characteristically, she viewed it as more of a responsibility than a privilege: There is a feeling of great responsibility to execute all duties well. As the first African American President, the fifth Woman President and the fourth Youngest President, I feel a great weight on my shoulders to blaze a trial that others can follow. And, that means not just avoiding missteps. It means performing at such a level as to ensure someone who looks like you does not encounter hurdles coming behind you because of a less desirable performance. This is true I believe for everyone but more so for those with more readily discernable identifiers such as age, gender and race. Lisa even became an animated character to promote her Presidential Initiative I was the first. Vote for me! You can watch her introduce the project as an avatar at iwasthefirst/lisatatum_video.html. Her work on I was the first. Vote for Me! motivated Women That Soar to bestow its 2014 Civic Award on Lisa. Our own Bar Director Sara Dysart underlined the importance of Lisa s Photo courtesy of the State Bar of Texas initiative and willingness to be animated as part of promoting it: President Tatum s historical positioning with the State Bar of Texas is captured in one particular public initiative. I was the first Vote for Me! is a website that brings to life the important firsts in United States and Texas history. Charged with selecting a name for a fictional elementary school, students are called upon to explore 21 animated historical figures and are empowered with the right to vote for their selection of the most worthy FIRST for their school s name. This program is being used in elementary schools throughout Texas for lessons in civics education, citizenship, reading, voting and math. Especially significant is that Lisa Tatum agreed to be animated as the important first African American President of the State Bar of Texas along with other inventors, political leaders and pioneers. I am sure it was not an easy choice to appear as an animated first. This role and other initiatives such as free CLE for solo practitioners and programs focused on career alternatives demonstrate that Lisa Tatum never shies away from difficult choices. The State Bar of Texas and the public whom we serve have benefitted greatly under President Lisa Tatum s leadership. San Antonio Lawyer 16 July-August 2014 Her other presidential initiative is the Care Campaign, which focuses on removing barriers to legal services and supporting attorneys in meeting the growing demand for civil legal aid. Lisa has also focused on the unemployed and underemployed attorneys through the Alternative Careers seminar and on diversity and inclusion with outreach to GP and Small Firms through seminars catering more specifically to their needs. Her service demonstrates that she has not hesitated to grapple with complex issues that are often politically charged. Her work as president has been geared toward meeting the needs of lawyers and of the community. Inclusiveness and a warm, welcoming style stand out to everyone who has worked with her. Bar Director and President of the Houston Bar Association David Chaumette observes that: Lisa represents the best of the bar. While her presidency has been historic, her calm, welcoming style has made the bar better for and more responsive to all Texas practitioners. I asked Lisa what advice this trailblazer would have for her successors. Her response typifies her character and her service: Engage. Do something. Actively work each day to make your and our practice better. We are better attorneys for it in my experience. Thank you Lisa for your dedicated service. Don Philbin was named the 2014 Lawyer of the Year for Mediation in San Antonio by Best Lawyers, was recognized as the 2011 Outstanding Lawyer in Mediation by the San Antonio Business Journal, is one of seven Texas mediators listed in The International Who s Who of Commercial Mediation, and is listed in Texas Super Lawyers. He is an elected fellow of the International Academy of Mediators, the American Academy of Civil Trial Mediators, and the Texas Academy of Distinguished Neutrals.

17 The Art of Judging By Justice Rebeca C. Martinez Judging. It is a task I ve been charged with as Justice for the Fourth Court of Appeals for eighteen months now. It has been described as the art or science of making discrete choices among competing courses of action, and I believe it is an honorable mandate that burdens a trial judge in a significantly distinct and special way. Certainly, as a new lawyer, I perceived the conduct and behavior of a trial judge from the opposite side of the bench, much like Dorothy in anticipation of her audience with the Great and Powerful Oz the arbiter of conflict, merciful and wise. Often times, I walked away bewildered, disappointed or even sore, but with a constant sense of deferential respect. When sharing my new (and hopefully renewed) judicial experience with a few colleagues who now sit on the trial bench every day, I ve often been asked to offer a bit of insight into the appellate process less about the court s secluded environment and its all-female membership, and more as an additive to their judicial decision-making from the bench to dodge perceived pitfalls on appeal or mandamus. Questions often come with a sense of curiosity about the appellate court s procedures leading to our decisions, like How s it decided who s going to write the opinion? On occasion, there s the peeping inquiry, How do you decide whether to grant or deny a mandamus? or the predictable Do y all always get along? Remarkably, there seems a shared sense of wonderment in the inquiries most trial judges have about appellate justices. This presumably stems from a perception that we must be gluttons for punishment, to first prevail in a strenuous 32-county campaign, only to secure a small windowless room within the confines of an Ivory Tower, often viewed as an intellectual asylum where I am left only to read and write all day without sunlight or human contact. There is always a sense of deference to the court s scrutiny. As Judge Ray Olivarri reveals, she grades my papers. To a large degree, it s all true, but I want to recognize trial judges from my newfound perspective as I sit among them in the judiciary. Whereas I review their rulings within the confines of my turret and wrestle between strict statutory interpretation and legislative intent analysis, the trial judge must react directly to the ever-changing composition of the community, from the definition of the American family to the rights and responsibilities of individuals and interests in an increasingly diverse and dynamic area such as Texas. They are closer to the human element of the litigants and, as such, are the umpires protecting the legitimacy of the judicial process. Trial judges can make a hundred decisions before noon each day, which also makes them better than I at deciding where to have lunch. I ve been asked to offer tips to trial judges from the appellate perspective, and plan to speak on the topic, Top 10 Things Appellate Judges Want Trial Judges to Know at the Civil Litigation Conference sponsored by the Texas Center for the Judiciary. I look forward to offering more substantive views to aid in the art of judging. I was also delighted to share insight into the appellate process with the San Antonio Trial Lawyers Association at their May luncheon. Most of you readers are likely among the mass of attorneys who don t really know How a Bill Becomes a Law er, An Appeal to an Opinion. I m not surprised most of you probably can t name all six Justices on the Fourth Court. For those of you paying attention, that was a trick question. Justice Rebeca C. Martinez has served on the Fourth Court of Appeals since January Justice Martinez previously served for U.S. Magistrate Judge Eduardo E. de Ases for the Western District of Texas, for Justice Federico G. Hinojosa on the Thirteenth Court of Appeals, and practiced trial law for over 20 years. Fourth Court Update 1 See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 141 (1921). San Antonio Lawyer 17 July-August 2014

18 Managing Complex Commercial Litigation: An Associate in the Trenches Litigation associates are often some of the brightest crayons in the box: quick thinkers, practiced orators, and diligent students of the law. While these skills continue to be essential in complex litigation cases, additional knowledge and experience are required when litigation is considered complex. A successful complex litigation associate is often shouldered with much of the data-crunching and logistical heavylifting. Accordingly, smart, targeted organization and foresight are critical. What makes litigation complex? (Isn t all litigation complex?) While complex litigation comes in many shades, common denominators include: Ashley Senary Dahlberg Sheer Magnitude: The number of documents preserved and produced; the number of parties (and with them, opposing counsel); and the number of potential witnesses and deponents are often radically multiplied in complex cases. The universe of data to be analyzed can often only be stored electronically using sophisticated document management systems and software. Interrelationship of Issues: With multiple parties come multiple issues. These issues manifest themselves not only as multiple claims of numerous parties, but as interconnected factual allegations with a rotating cast of characters. Often, certain parties are aligned, and pointing their collective fingers (and resources) at your client. Many cases are ripe for attempts at class certification. Specialized or Technical Subject Matters: The examination of witnesses in complex cases often involves highly complex or technical subjects. With these complexities come expert witnesses in subjects many lawyers actively avoided during their educations. There is also the added hurdle of explaining such subjects to a jury, often through media and technology. When a complex case comes across your desk, please handle simply doesn t apply, particularly for associates in the document-soaked trenches. Here are some tips to aid you in the management of complex cases, and get out from under the paper pile: Play as a Team. Many complex commercial litigators work in teams. The captain of your complex litigation ship will likely be a partner with a small team of associates who complete wide-ranging day-to-day tasks. Be mindful of what each of your team members is doing (or has done), and what they are best suited for. Succinctly share essential information among yourselves. While six lawyers can t bill to review every filing, read them anyway to position yourself to contribute to substantive briefing tasks. Start the Exhibit List Early. Have you ever tried to collect admissions from hundreds of pleadings? Does your head hurt just thinking about it? When you read or summarize documents, do not do so just for your edification. Keep a running list of key admissions and potential exhibits. If you do not log the document on an exhibit list as you go, with a notation concerning why it is important, you will never be able to recreate those thoughts. The weeks before trial should be spent organizing exhibits, not gathering them. San Antonio Lawyer 18 July-August 2014

19 A Good Chart is a Great Start. Keep track of key variables (parties, claims, live pleadings, settlements, discovery status, or key facts and documents) in an easily digestible format. Employ these charts as quickreference tools whenever possible. Divide Early Work, in Anticipation of Future Tasks. Since there are a lot of cooks in a complex kitchen, take special care to avoid duplication of effort. One way to do so is future-minded divisions of labor. If you expect certain parties to be separated for the purposes of a Motion for Summary Judgment, that is a great guideline. While one associate handles all aspects of, say, investorrelated claims (including depositions and exhibits), another associate is responsible for all third-party claimants. When significant drafting tasks arise, you have built-in expertise. Associates can also draft motions simultaneously, drastically cutting the linear time needed to complete tasks. Partner, Can You Hear Me? Help to identify major concerns and complications early. When reviewing anything, think through the steps of your litigation, and alert your partner to any key facts. He or she has a lot on his or her plate. Succinctly explain your recent find, and send him or her a highlighted copy of the item at issue. Anticipate Class Action Claims. Aggressively manage potential class claims. Work to understand and catalog evidence on key issues, such as typicality and commonality, early. Use what you have to develop a sophisticated understanding of the case and potential class claimants before you receive a class action petition. Avoid Repetitive Tasks. If you find yourself using (or being asked to find) the same documents, develop a straightforward system to electronically tag or catalog key pieces of evidence. Share this system with others and encourage them to use it. Put your team in the habit of scanning all documents and pleadings using optical character recognition ( OCR ) programs so that they are searchable. Efficiently and Effectively Analyze Electronic Data. The discovery process is often the most exasperating aspect of this work. The gathering and production of documents can present critical (and costly) challenges. Do not just find and maintain a user-friendly document management system; learn how to use it to reduce the time and effort spent searching for the correct document. Everyone on your team should be knowledgeable about this system so as to avoid situations where team members work stalls due to an inability to access critical data. If you cannot teach yourself these systems, find a consultant or technical support team that can. Draw Upon Prior Work Product. If your law firm maintains an internal electronic document management system, learn how to search it effectively and efficiently. Leverage prior research to your client s advantage. Prior work product can sometimes be updated at a lesser cost compared to a research project that starts from scratch. This will also let you know who, if anyone, within your firm has encountered issues similar to yours. Be sure to investigate the accuracy of any research you unearth, and bring it up-to-date (no matter the author). Your complex case is hardly ever cookie-cutter, nor is the law stagnant. Even Jane Q. Super Lawyer has a bad day once every few years. Break Down Complex or Technical Issues. Become intimately familiar with your client s business, product, or industry. Your position is not an excuse to be uninformed. Integrate industry publications or textbooks into your reading routine. Figure out how your clients do what they do, and how to explain that to a jury. (But I m a junior associate! I won t speak to the jury!) It is pretty difficult to review your client s data if you do not understand it. It is even harder to speak with your client. If you need to buy the Liberal Arts Major s Non-Technical Guide to Petroleum Geology, so be it. Think of it as more than information; give yourself a sense of ownership regarding what it is that your clients do, and how you can help them do it. The resources dedicated to complex commercial cases, both inside and outside of your client s legal department, can be significant. Those who specialize in complex litigation are often betterequipped to handle such matters due to their familiarity with the particularized features of complex litigation, and the distinct tactical and substantive approaches needed to efficiently and effectively manage these cases. With practice, you can develop the skills and experience necessary to manage even the largest of matters. Ashley Senary Dahlberg practices complex commercial litigation in the San Antonio office of Norton Rose Fulbright. She and her team have successfully litigated numerous complex matters in a variety of industries (including petroleum geology). She also makes a mean color-coded chart. San Antonio Lawyer 19 July-August 2014

20 San Antonio Lawyer Magazine Takes Home Four SBOT Awards! Continuing our 5-year winning streak, the San Antonio Lawyer magazine has received FOUR Stars of Texas Bars Awards for Best Feature Story, Best Human Interest Story, Best News Article and Best Series of Articles (Substantive Law). The award winning authors and their articles are: Best Series of Articles - Substantive Law was won by the following authors: Fred Jones won Best Feature Story for his article The San Antonio Council House Fight A Day of Horrors Fruitful of Blood (March-April 2014 San Antonio Lawyer) Prof. Vincent Johnson for his article Moving Between Law Firms: Conflicts of Interest and Confidentiality (November-December 2013 San Antonio Lawyer) Steve Peirce won Best Human Interest Story for his article Park Street, Perry Mason, & The Case of the Endless Earworm (January- February 2014 San Antonio Lawyer) Mark Unger for his articles Technology & Law: MoneyBall Law for the ipad Litigator (September- October 2013 and January-February 2014 San Antonio Lawyer) Stephen Gordon won Best News Article for his article What to Do When Your Briefcase is Missing (September-October 2013 San Antonio Lawyer) Stephen Gordon (once again) for his article What to do When Your Briefcase is Missing (September- October 2013 San Antonio Lawyer) The awards were presented at the State Bar of Texas Annual Meeting Bar Leaders Luncheon at the Austin Convention Center on June 26, This is a tremendous honor to the SABA Publications Committee and editorial staff. CONGRAT- ULATIONS to the authors, editors, photographers and all the wonderful volunteers who contribute to our publications! San Antonio Lawyer 20 July-August 2014

21 By Soledad Valenciano and Melanie Fry Forum Selection Clause; 28 USC 1404(a) Mendoza v. Microsoft, Inc., SA-13-CV- 378-DAE (Ezra, D., March 5, 2014). Users of Xbox Live entered into a subscription agreement with Microsoft that contained a choice of law and venue provision requiring any lawsuit between the parties to be tried in King County, Washington. The forum selection clause was valid and enforceable because it was not the product of fraud or overreaching, it would not deprive the defendants of their day in court, and the chosen law was not fundamentally unfair. After considering the public interest factors of 28 USC 1404(a), court held that plaintiffs did not meet their heavy burden of showing transfer is unwarranted due to extraordinary circumstances. Improper Joinder Minella v. Bank of Amer., N.A., SA-14- CV-174-XR (Rodriguez, X., April 1, 2014). Following the foreclosure of their property secured by a note and deed of trust, borrowers sued assignee BANA and the substitute trustee who conducted the foreclosure sale. BANA removed on the basis of diversity, arguing that court may ignore substitute trustee s Texas citizenship for purposes of diversity analysis due to improper joinder. BANA had burden to show no reasonable basis for the court to predict that the plaintiffs might be able to recover against the substitute trustee. There was no reasonable probability of recovery against substitute trustee for failure to investigate because neither the deed of trust nor the Texas Property Code imposes an affirmative duty on substitute trustees to investigate in the manner suggested by plaintiffs. Although the deed of trust requires the notice of intent to accelerate be sent by the lender, the Texas Property Code does not impose a duty on the substitute trustee to send notice of intent to accelerate, and the Texas Supreme Court holds that the duty to send the notice of intent to accelerate originates under the common law and applies to lenders, the court nevertheless erred on the side of the plaintiff and remanded given the removal statute is to be construed narrowly. Filing of verified denial by substitute trustee, absent hearing and dismissal under (d) of the Texas Property Code, could not factor into the court s analysis. Foreclosure by Junior Lienholder Kingman Holdings, LLC v. Everbank, SA- 13-CV-1127-DAE (Ezra, D., April 14, 2014). Homeowners association (HOA) foreclosed on property due to member s failure to pay HOA assessments. Land Trust purchased the property, and subsequently failed to pay amounts due by member to Everbank. When Everbank attempted to foreclose, Land Trust obtained a TRO. Everbank then removed the action and filed a motion to dismiss. Land Trust argued that because the senior lienholder, MERS, assigned its interest to Everbank after Land Trust became a junior lienholder, facts stated a claim for quiet title. Court disagreed as such argument was against well-settled law. Because plaintiff had twice failed to attach proposed amended complaint to its request for leave to amend pleadings under Rule 15(a), court granted Everbank s motion to dismiss. Duty to Indemnify Evanston Ins. Co. v. Lampasitos Land, Ltd., SA-13-CV-1036-XR (Rodriguez, X., April 3, 2014). Insurer requested a declaration that it does not owe a duty to indemnify insured in a certain action in litigation in Maverick County. Five defendants, including the insured, filed motions to dismiss, claiming that the issue of duty to indemnify was not ripe. Court denied insured s motion to dismiss as a justiciable controversy existed insofar as insurer claimed that the policy did not cover the type of accident that was the subject of the Maverick County action. Court denied non-insured s motion to dismiss because a potential third-party claimant can be a proper party to a declaratory judgment action between the insurer and the insured. Court ordered insurer to show cause why certain other parties were named in the federal action when they were not parties to the Maverick County action. FMLA Certification; Summary Judgment Crane v. Gore Design Completion, 5:12-CV- 925-OLG (Garcia, O., March 24, 2014). Employee sued employer and her manager after she was demoted and then fired during time that she was attempting to obtain FMLA Certification from her treating physician. Employer and manager moved for summary judgment. Employee s defense of equitable tolling may apply because, based on the totality of the evidence, a jury could reasonably conclude that the employee diligently and in good faith pursued certification before the 15-day deadline expired. A fact issue existed regarding whether it was not practicable for the employee to provide certification within the 15 days. Employer s argument that the employee s leave was not FMLA leave because employee never turned in the certification also failed. Department of Labor regulations do not require employee to submit the certification if the employee is fired before the deadline to submit the certification expires. If the deadline is extended by equitable tolling, termination within the expanded deadline could also be an FMLA violation. Therefore, because a reasonable jury could conclude that employee was fired during the time period she had to submit FMLA Certification, denial of employer s motion for summary judgment was warranted. Employer s motion for summary judgment on employee s retaliation claim was also denied. Employer offered no other reason for terminating employee. Manager was not an FMLA employer because she did not have almost exclusive and unfettered control over the terms and conditions of employee s employment or ability to take FMLA leave. Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC. Melanie Fry practices commercial litigation with Cox Smith Matthews. Federal Court Update San Antonio Lawyer 21 July-August 2014

22 Published by NationWide Publishing SA 2300 Chalet Trail, #K4 Kerrville, TX Publisher - Ron L. Hogue For information on advertising in the San Antonio Lawyer magazine Call The San Antonio Lawyer is published bimonthly by Nationwide Publishing SA, on behalf of the San Antonio Bar Association. Reproduction in any manner of any material, in whole or in part, is prohibited without the express written consent of the Editor in Chief. Material contained herein does not necessarily reflect the opinion of the Publisher or its staff. San Antonio Lawyer, the San Antonio Bar Assocation and the Publisher reserve the right to edit all materials and assume no responsibility for accuracy, errors or omissions. San Antonio Lawyer and the Publisher do not knowingly accept false or misleading advertisements, false or misleading editorials and do not assume any responsibility should such editorials or advertising appear. Advertisers Index AffiniPay 2 Broadway Bank 24 Gunn, Lee & Cave 7 KelMar & Associates 11 Sol Schwartz 23 Jeff Small 19 Divorce Appeals child support, as necessary, during the appeal. 45 Therefore, it held that the trial court had the authority under to issue post-judgment temporary orders retroactive to the decree, and that where such orders are in place, the acceptance of the benefits doctrine does not apply. 46 Dismissal. If the [acceptance-ofbenefits] doctrine applies, the appeal in rendered moot, and the proper disposition is dismissal. 47 That is because [w]hen a case becomes moot, standing to maintain claims is lost and [courts] are deprived of subject matter jurisdiction. 48 A dismissal would make it unnecessary to reach the merits of an appeal; however, appellate courts often will carry the motion with the McAlister, 75 S.W.3d at at continued from page 14 - case and postpone ruling on the request until after submission of briefs (and, if applicable, oral arguments). An early ruling could save the effort and expense of full briefing on the merits, but regardless of the timing, a prevailing party will probably accept the benefit of that judgment without complaint. Robinson C. Ramsey is a shareholder with Langley & Banack, Inc. He is a graduate of the University of Texas School of Law and is board-certified in civil appellate and family law by the Texas Board of Legal Specialization. 47 Kahn v. Seely, 980 S.W.2d 794, 798 (Tex. App. San Antonio 1998, pet. denied) (quoting Bloom, 935 S.W.2d at 945). 48 F.M.G.W., 402 S.W.3d at 334; see also Labrado v. County of El Paso, 132 S.W.3d 581, 589 (Tex. App. El Paso 2004, no pet.) ( Like standing, mootness is a component of subject matter jurisdiction. ). San Antonio Lawyer 22 July-August 2014


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