HEADNOTESDallas Bar Association

HEADNOTES

7 Tips on Effectively Preparing and Presenting 30(b)(6) Witnesses

13 The LLC, Not Just Another Corporation

15 Proving Lost Profits

Inside

Focus Business LitigationSeptember 2012 Volume 37 Number 9

September Focus: Business Litigation SectionThis month’s Headnotes articles focus on the topic of Business Litigation. The

DBA’s Business Litigation Section focuses on non-personal injury litigation issues. The Section’s meetings and CLEs highlight procedural and trial skills, as well as substantive legal subjects. If you are a DBA member and would like to

join this Section for only $25, you may join online or contact kwatson@dallasbar.org for more information.

Michael K. Hurst Named Chair of Equal Access to Justice Campaign

Michael K. Hurst has been named Chair of the 2012-2013 Equal Access to Justice Campaign benefiting the Dallas Volunteer Attorney Program (DVAP). A partner with Gruber Hurst Johansen Hail Shank LLP, Michael has been a tireless advocate for the Campaign for many years serving as Chair of various divi-sions and as Co-Chair of the Cor-porate Division in 2011-12.

“Michael has dedicated a considerable amount of time and effort to the pursuit of Equal Access to Justice, and we are honored to have him lead this year’s EAJ Campaign,” said DBA President Paul K. Stafford.

Mr. Hurst has been active in the Dal-las Bar for many years. He currently serves as a Co-Chair of the Judiciary Committee and a Vice-Chair of the Trial Skills Sec-tion; he has Chaired the Finance Com-mittee, Bylaws Committee, Law Day Committee, Peer Assistance Committee, the Education Symposium and the Men-toring Committee among others. Mr. Hurst first began service on the Dallas Bar Association (DBA) Board of Direc-tors in1999 as President of the Dallas Association of Young Lawyers (DAYL). He was awarded the Jo Anna Moreland Committee Chair Award for his service to the Dallas Bar Association in 2009.

Mr. Hurst is a Fellow of the Dallas Bar Foundation, a Life Fellow of the Texas Bar Foundation and a Founding Life Fellow of the DAYL. Before serving as DAYL Pres-

ident, he served as Chair of the DAYL’s Professionalism Committee and Mentor-ing Committee for six years.

During his 22 years as an attorney, Mr. Hurst has strived to serve those less fortu-nate in one way or another, whether by giving his time or by donating to worthy causes.

“Since the day I graduated law school, I have recognized the importance of ensuring legal aid to the poor, and have been gratified as I have strived to serve the low-income community for the last 22 years,” he said. “Now, I am tasked with leading the fundraising for DVAP at this critical time, and am hop-ing to count on my friends, col-leagues and others to help me and

the Campaign achieve our goals.”“The need to donate for legal aid to

the poor has never been more heightened and timely,” said Mr. Hurst. “While more than 25 percent of the residents of Dallas County qualify for pro bono legal services due to their income, only about 20 percent of the civil legal needs of low income and poor Texans are being met. For every one person helped, at least one qualifying indi-vidual is turned away. Our legal system is the best in the world, but we need to make our system accessible to everyone.”

The Campaign will culminate at the Inaugural of 2013 DBA President Sally L. Crawford on January 19, 2013. HN

Jessica D. Smith is the Communications/Media Director of the Dallas Bar Association. She can be reached at jsmith@dallasbar.org.

by Jessica D. smith

Michael K. Hurst

Ringing in its 29th year, the Stephen Philbin Awards Luncheon will be held Mon-day, October 1, 2012 at the Belo Mansion. The Philbin Awards, started in 1983 by the Dallas Bar Association, recognizes local news journalists for their excellence in legal reporting. This year’s luncheon is co-spon-sored by the World Affairs Council of DFW.

The luncheon is a way to honor not only the local media, but also the memory of Ste-phen Philbin who lost his battle with leu-kemia in 1982. A long-time member of the Dallas Bar Association and a partner with Locke, Purnell, Boren, Laney & Neely, at the time of his death, Mr. Philbin was a leading authority on media law in Texas. He advised major publications and broadcast compa-nies on libel law, regulations and licensing of broadcast properties, and fair comment rul-ings.

In honor of his contributions to media law in the Dallas area, the Philbin and Brock

families, acting through the Dallas Bar Foun-dation, fund the annual Philbin awards, with the DBA Media Relations Committee coor-

dinating the event. This year’s entries

range from major TV news networks and affili-ates to radio stations to both print and on-line news from the area’s large metro newspapers, magazines and suburban publications.

The winners will be announced at the Stephen Philbin Awards Luncheon on Mon-day, October 1, at the Pavilion at the Belo Mansion. The luncheon is open to judges and lawyers and all members of the media.

The keynote speaker for the luncheon is Jeffrey Toobin, attorney, author and senior analyst for CNN Worldwide. Mr. Toobin will speak on his new book The Oath—a gripping insider’s account of the momentous ideological war between the John Roberts

Supreme Court and the Obama Administra-tion. The Oath will be available for purchase at the end of the luncheon. Mr. Toobin will also be available for book signings.

Mr. Toobin has written several critically acclaimed, best-selling books including, The Nine: Inside the Secret World of the Supreme Court listed on the New York Times best-seller list for more than four months. He has covered legal affairs for The New Yorker since 1993 and has written articles on subjects such as Attorney General John Ashcroft, the 2001 dispute over Florida’s votes for presi-dent, the Paula Jones sexual harassment case, Supreme Court Justice Clarence Thomas and the trial of Timothy McVeigh. His arti-cle, “An Incendiary Defense,” published in the July 25, 1994 issue of the magazine, broke the news that the O.J. Simpson defense team planned to accuse Mark Fuhrman of planting evidence and to play “the race card.”

Before joining The New Yorker, Mr. Toobin served as an Assistant United States Attorney in Brooklyn, New York. He also

served as an associate counsel in the Office of Independent Counsel Lawrence E. Walsh, an experience that provided the basis for his first book, Opening Arguments: A Young Law-yer’s First Case—United States v. Oliver North.

Mr. Toobin earned his bachelor’s degree from Harvard College and graduated magna cum laude from Harvard Law School where he was an editor of the Harvard Law Review.

DBA members can reserve their seats now for the 2012 Stephen Philbin Awards Luncheon on Monday, October 1. To receive the early bird rate of $40 per ticket or $400 per table of 10, register by Septem-ber 17. After September 17, tickets increase to $45; and tables of 10 can be purchased for $450. No walk-ins will be allowed. Don’t miss this exciting event! Purchase your ticket by logging on to www.dallas-bar.org or by contacting Judi Smalling at jsmalling@dallasbar.org. HN

Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.

by Jessica D. smith

CNN Analyst Jeffrey Toobin to be Keynote Speaker at Philbin Awards

Jeffrey Toobin

MONDAY, SEPTEMBER 3Offices closed in observance of Labor Day

TUESDAY, SEPTEMBER 4Noon Corporate Counsel Section “Current Issues Facing the Domestic

Energy Business – A Panel Discussion,” Keith Crawford, Shaila Hossain, Mark Wassem and Bryn Sappington, moderator. (MCLE 1.00)*

Tax Law Section “Tax Opinions and Other Written Advice,”

Joseph Erwin. (Ethics 1.00)*

Tort & Insurance Practice Section “Effective Techniques for Using

Depositions to Win at Trial,” D. Shane Read. (MCLE 1.00)*

Morris Harrell Professionalism Committee

6:00 p.m. DAYL Board of Directors Meeting

WEDNESDAY, SEPTEMBER 5Noon Employee Benefits & Executive

Compensation Law Section “What’s Required by Year-End?” Jared

Pope. (MCLE 1.00)*

Solo & Small Firm Section “The Affordable Care Act: What Every

Texas Attorney Should Know,” Jeffrey P. Drummond and James R. Griffin. (MCLE 1.00)*

Public Forum Committee

DAYL Judiciary Committee

5:00 p.m. Bankruptcy & Commercial Law Section “Undersecured Creditors: When Depressed

Values Depress Creditors, and the Section 1111(b) Remedy,” Judge Brenda Rhoades, Richard London and Luckey McDowell. (MCLE 1.00)*

THURSDAY, SEPTEMBER 6Noon Construction Law Section “There’s a New Delivery System in Town:

P3 in Texas,” Paul Bruno, Curt Martin and Mario Menendez.” (MCLE 1.00)*

Family Law Section Board meeting

Law in the Schools & Community Committee

DAYL Freedom Run Committee

St. Thomas More Society

FRIDAY, SEPTEMBER 7Noon Friday Clinic-Belo Topic Not Yet Available

Government Law Section “Recent Developments in Individual

and Collective Rights of Government Employees,” Darrell G. Noga. (MCLE 1.00)*

Media Relations Committee

MONDAY, SEPTEMBER 10Noon Alternative Dispute Resolution Section “25 Years of ADR: Reflections on the

Passage of the Texas ADR Statute and Looking to the Future,” Mike Amis, Suzanne Duvall, Bud Silverberg and Sid Stahl. (MCLE 1.00)*

Real Property Law Section “Landlord/Tenant Issues in Bankruptcy

Cases,” Jason Binford. (MCLE 1.00)*

Peer Assistance Committee

5:00 p.m. Judiciary Committee Happy Hour

TUESDAY, SEPTEMBER 11Noon Appellate Law/Business Litigation/Trial

Skills Sections “The Two Most Important Trials in American

History – the Treason Trial of Aaron Burr and the Impeachment Trial of Andrew Johnson,” David O. Stewart. (MCLE 1.00)*

Mergers & Acquisitions Section Topic Not Yet Available

Entertainment Committee

Dallas Bar Foundation Board Meeting

Dallas Women Lawyers Association Board Meeting

6:00 p.m. Home Project Committee

WEDNESDAY, SEPTEMBER 127:45 a.m. Dallas Area Real Estate Lawyers Discussion

Group

11:30 a.m. House Committee Walk Through

Noon Family Law Section Topic Not Yet Available.

Admissions & Membership Committee

DAYL Lunch & Learn CLE

5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.

THURSDAY, SEPTEMBER 1311:30 a.m. DAYL Lawyers Serving Children

Noon CLE Committee

Law in the Schools & Community Committee

Publications Committee

Christian Lawyers Fellowship

Dallas Asian American Bar Association

6:00 p.m. J.L. Turner Legal Association

FRIDAY, SEPTEMBER 14Noon Friday Clinic-North Dallas** “The Unemployment Claim Game,” Simon

D. Whiting. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org.

MONDAY, SEPTEMBER 17Noon Labor & Employment Law Section “The New Face of Discrimination,” Jeremy

W. Hawpe and Kim Miers. (MCLE 1.00)*

TUESDAY, SEPTEMBER 18Noon Antitrust & Trade Regulation Section “Jury Selection in Complex Litigation

Cases,” Mike Ford. (MCLE 1.00)*

International Law Section “International Harmonization of U.S. IP

Laws Under the 2011 America Invents Act: Is the U.S. Now Singing in Harmony or Still Humming its Own Tune?,” Marc Hubbard. (MCLE 1.00)*

Community Involvement Committee DAYL Animal Welfare Committee

DAYL Elder Law Committee

WEDNESDAY, SEPTEMBER 19Noon Energy Law Section Topic Not Yet Available

Health Law Section “Current Issues Regarding Healthcare

Fraud,” Sarah Wirskye. (MCLE 1.00)*

Pro Bono Activities Committee

Non-Profit Law Study Group

5:00 p.m. DVAP Family Law Nuts & Bolts. MCLE 6.00, Ethics 2.00, for both days. To register, or for more information, contact perkinsa@lanwt.org.

5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.

THURSDAY, SEPTEMBER 20Noon Minority Participation Committee

Christian Legal Society. Speaker: Mark Davis

Dallas Gay & Lesbian Bar Association

3:30 p.m. DBA Board of Directors Meeting

5:00 p.m. DVAP Family Law Nuts & Bolts. MCLE 6.00, Ethics 2.00, for both days. To register, or for more information, contact perkinsa@lanwt.org.

FRIDAY, SEPTEMBER 21Noon Friday Clinic-Belo “The Ins and Outs of Federal Jurisdiction,”

Joshua Bennett. (MCLE 1.00)*

Transition to Law Practice Committee “Civility in the Legal Profession.” (Ethics

1.00)*

MONDAY, SEPTEMBER 24Noon Computer Law Section “Presenting Complex Technologies to

Judges and Juries,” Kelly Roberts. (MCLE 1.00)*

Securities Section Topic Not Yet Available

DAYL Solo & Small Firm Committee

TUESDAY, SEPTEMBER 25Noon Intellectual Property Law Section “Patently Fair or Patent Nonsense? Prior

Art Submissions, Copyright and the Fair Use Doctrine,” Naomi Jane Gray. (MCLE 1.00)*

Probate, Trust & Estate Section “Going Paperless,” John Warren. (MCLE

1.00)*

Courthouse Committee

Law Day Committee

Senior Lawyers Committee

American Immigration Lawyers Association

DBA Community Service Fund Board Meeting

DAYL Aid to the Homeless Committee

6:00 p.m. Dallas Hispanic Bar Association

WEDNESDAY, SEPTEMBER 26Noon Sports & Entertainment Law Section “The Road to Hell: How Lawyers Find

Trouble,” Jonathan Smaby. (Ethics 1.00)*

Legal Ethics Committee

DAYL Equal Access to Justice Committee

DAYL Bankruptcy Considerations for Elderly Clients. For more information, contact cherieh@dayl.com.

DVAP New Lawyer Luncheon. For more information, contact reedbrownc@lanwt.org.

Municipal Justice Bar Association

THURSDAY, SEPTEMBER 27Noon Collaborative Law Section “Limited Scope Representation,” Matthew

Probus. (Ethics 1.00)*

Criminal Law Section “Ethics in Flat Fee Contracts for Criminal

Lawyers,” Griffin Collie. (Ethics 1.00)*

Environmental Law Section “Environmental Case Law Update,” John

Dugdale. (MCLE 1.00)*

FRIDAY, SEPTEMBER 28Noon DAYL CLE Committee

2 Headnotes l Dal las Bar Assoc ia t ion September 2012

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION.

*For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447.**For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.

Calendar September Events Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

FRIDAY CLINICSSEPTEMBER 7-BELONoon Topic Not Yet Available.

SEPTEMBER 14-NORTH DALLAS**Noon “The Unemployment Claim Game,” Simon D. Whiting. (MCLE 1.00)* At Two Lincoln Centre, 5420

Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org.

SEPTEMBER 21-BELONoon “The Ins and Outs of Federal Jurisdiction,” Joshua Bennett. (MCLE 1.00)*

September 2012 Dal las Bar Assoc ia t ion l Headnotes 3

Boardroom Courtroom

Goranson Bain, PLLC :: Dallas 214.373.7676 :: Plano 214.473.9696 :: gbfamilylaw.comFront Row :: Thomas Greenwald :: Aimee Pingenot :: Angeline Bain :: Beth Maultsby :: Lindley Bain :: Natalia Duque :: Patrick Kelly

Back Row :: Jeff Domen :: Kathryn Murphy :: Thomas Goranson :: Paula Larsen :: Curtis Harrison :: Clint Westhoff

GoransonBain has the resources and the talent to get you through your divorce, regardless of the direction it takes.

Whether at the negotiation table or in the courthouse, GoransonBain will work with you to develop the strategy that best meets your objectives, and then aggressively protect your interests. Since 1987, we’ve successfully guided our clients through virtually every issue of family law. Whether you’re on the offense or defense, GoransonBain has the resources

and talent you need to get you through every move. gbfamilylaw.com.

Excellence is built on consistency. Accordingly, consistency has great value—a value often exceeding extraordinary achievement, exceptional accomplishment, or unpredictable brilliance.

I learned about consistency from my upbringing and my envi-ronment…my allies and my adversaries…my schooling, my univer-sity and my law school…my profession.

When I graduated from law school, passed the bar and embarked upon the practice of law, I witnessed consistency in various aspects of the legal profession, particularly the judiciary.

Our criminal and our civil judiciary may reside in different court-houses, preside over different courtrooms and apply different areas of the law, but they share a common and consistent thread of promoting and preserving the ideals of justice.

Consistency requires respect.  I witnessed it as a young prosecutor, fresh out of law school, when during my first week on the job I was asked (told) to travel to a remote hamlet of a rural county to spend an afternoon prosecuting minor traffic offenses. Presumably, a rite of passage, of sorts. I was slightly offended, moderately nervous and very inexperienced. I was also keenly aware of the possibility of getting “home-towned.” To the contrary, the judge decided the cases before her in a fair and just fashion, but almost as importantly, she was respectful of me (the one-week-old, baby-prosecutor) and of each of the parties that came before her in her court. She treated all in her courtroom with respect, and her demeanor and sense of decorum made an impression upon me that resonates even to this day.

Consistency requires focus. I recalled it and would lean upon it when I was a more seasoned prosecutor, having “gradu-ated” from misdemeanor offenses, and handling felony cases involv-ing the most hardening, harrowing and heart-breaking of facts and circumstances. Amidst the chaos, confusion and contention that was my world, I trained myself to remain focused on my duty, which was to see that justice was done.

Consistency requires commitment. I relied upon it as an insur-ance defense lawyer, trying cases almost weekly, with a judge (and often a jury) attempting to sort out the facts and apply the facts to the law. I experienced it as a litigator in a large firm, where attor-neys diligently represented clients in complex cases and judges read pleadings, analyzed briefs and determined issues that pertained to salient issues in these cases. I have watched judges treat legal dis-putes involving small dollar amounts with the same respect as those involving multi-million dollar litigants. Judges treated litigants in their courtrooms in a manner befitting of the courts. 

When I became a solo and my practice later grew into a small firm, I experienced the feeling from the judiciary that my cases were just as important as those of the big-firm, tall-building lawyers.

Throughout most, if not all, of my criminal and civil jury trials, I have witnessed a judiciary with which I did not always agree, but which generally strives to uphold the Constitution, promote fairness and see that justice is done.  

The common thread is consistency…not the consistency char-

acterized by an aversion to change, but the consistency exhibited through constantly striving to fairly and impartially administer our laws while affording the courts, the parties and the judicial system the proper respect and decorum which they are due.

The proper administration of justice and a strong and respected judiciary are imperative to the preservation of our republic, and the continued evolution of our democratic society. Also imperative is a commitment to improving the profession and the community through education and service. The judiciary has consistently con-tributed to the cause of service, often through partnerships with bar associations. 

I have had the invaluable opportunity to witness the relation-ship between the judiciary and our Dallas Bar Association for most

of my professional legal career.As a former Co-Chair of the Judiciary

Committee, I have seen how the judiciary and the local bar association work together to provide continuing legal education to DBA members and to volunteer their time and talent to a variety of service projects throughout the area. 

I have seen how the judiciary, the DBA and legal services work together to ensure Equal Access to Justice to our local citi-zens through legal clinics and services. The annual Equal Access to Justice Campaign is underway, with the objective of raising funds and friends to benefit pro bono legal services in Dallas County, and our local judiciary will play a pivotal role in not only promoting awareness of the need for pro bono service, but also in volunteering their time at legal

clinics throughout Dallas County. As a former Co-Chair of the DBA’s Bench

Bar Conference, I have also witnessed the judiciary and the bar coming together at the annual Bench Bar Conference, with mem-bers of the judiciary providing helpful tips on everything from legal updates to how to practice in their respective courts. This year’s Bench Bar Conference will be held on September 27-29 at the Horseshoe Bay Resort Marriott. I encourage all of our mem-bers to attend and take advantage of this unique opportunity to network and to interact with colleagues, attorneys and judges in a relaxed setting.

Consistency also requires performance and repetition. Today, we enjoy a vibrant and consistent organization through Dallas Bar Association, as evidenced by its annual events, collaboration and high level of professionalism and service. For many years, the Dallas Bar has worked with the judiciary to promote a better profession, and the leaders of the DBA have played an integral role in the excellent relationship that the DBA shares with the judiciary. I, and many others, are the benefactors of a tradition of excellence and consis-tency through the Past Presidents of the Dallas Bar Association, and I strive to honor emulate them daily in my capacity as 2012 DBA President. In that regard, the DBA’s annual Past President’s Dinner will be held in September to honor the service of these great lead-ers of our organization, and to recognize their contributions to the organization that the DBA has become today. HN

Consistencyby Paul K. stafforD

President's Column

4 Headnotes l Dal las Bar Assoc ia t ion September 2012

HeadnotesPublished by:

DALLAS BAR ASSOCIATION

2101 Ross AvenueDallas, Texas 75201

Phone: (214) 220-7400Fax: (214) 220-7465

Website: www.dallasbar.orgEstablished 1873

The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.

OFFICERSPresident: Paul K. StaffordPresident-Elect: Sally CrawfordFirst Vice President: Scott McElhaneySecond Vice President: Brad C. WeberSecretary-Treasurer: Shonn BrownImmediate Past President: Barry Sorrels

Directors: Jerry Alexander (Chair), Kim Askew (At-Large), Chip Brooker (President, Dallas Association of Young Lawyers), Wm. Frank Carroll, Victor Corpuz (President, Dallas Asian American Bar Association), Rob Crain, Laura Benitez Geisler, Lori Hayward (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Michael K. Hurst, Michele Wong Krause, Karen McCloud, Christina McCracken (At-Large), Hon. Kenneth Molberg ( Judicial At-Large), Carlos Morales (President, Dallas His-panic Bar Association), Mary L. Scott, Diane M. Sumoski, Robert L. Tobey and Aaron Tobin (At-Large).

Advisory Directors: Angelina LaPenotiere (President-Elect, Dallas Hispanic Bar Association), Mandy Price (President-Elect, J.L. Turner Legal Association), Sarah Rogers (President-Elect, Dallas Association of Young Lawyers) and Jennifer Wang (President-Elect, Dallas Asian American Bar Association).

Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang

Directors, State Bar of Texas: Lawrence Boyd, Christina Melton Crain, Ike Vanden Eykel, Andy Payne, Frank E. Stevenson, II

HEADNOTESExecutive Director/Executive Editor: Catharine M. MaherCommunications/Media Director & Headnotes Editor: Jessica D. SmithIn the News: Judi SmallingArt Director: Thomas PhillipsDisplay Advertising: Karla Howes, Jessica SmithClassified Advertising: Judi Smalling

PUBLICATIONS COMMITTEECo-Chairs: Vincent J. Allen and Lea DearingVice-Chairs: Natalie L. Arbaugh and Dawn FowlerMembers: Timothy G. Ackermann, Kevin Afghani, Favad Bajaria, Matthew Baker, Jody Bishop, Lisa Blackburn, Jason Bloom, Kandice Bridges, William Brown, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, David Dodds, Adam Dougherty, Sabeen Faheem, Enrique Flores, Megan George, Susan Halpern, Zachary Hoard, James Holbrook, Ezra Hood, Mary Louise Hopson, Dyan House, Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Adam Kielich, Michelle Koledi, Susan Kravik, Scott McElhaney, Nick Nelson, Jenna Page, Kirk Pittard, Laura Anne Pohli, Robert Ramage, Jared Slade, Thad Spalding, Paul K. Stafford, Jeanette Stecker, John C. Stevenson, Scott Stolley, Michael Sukenik, Robert Tobey, Peter S. Vogel, Suzanne R. Westerheim and B. Joyce Yeager

DBA & DBF STAFFExecutive Director: Catharine M. MaherAccounting Assistant: Shawna BushCommunications/Media Director: Jessica D. SmithController: Sherri EvansDirector of Community Services:Alicia HernandezEvents Coordinator: Rhonda ThorntonExecutive Assistant: Mary Ellen JohnsonExecutive Director, DBF: Elizabeth PhilippLRS Program Assistant: Biridiana AvinaLRS Interviewer: Marcela MejiaLaw-Related Education & ProgramsCoordinator: Amy E. SmithMembership Coordinator: Kimberly WatsonProjects Coordinator: Kathryn ZackPublications Coordinator: Judi SmallingReceptionist/Staff Assistant: Teddi Rivas

DALLAS VOLUNTEER ATTORNEY PROGRAMDirector: Alicia HernandezManaging Attorney: Michelle AldenVolunteer Recruiter: Chris Reed-BrownParalegals: Whitney Breheny, Miriam Caporal, Lakeshia McMillan, Andrew Musquiz, Tina DouglasProgram Assistant: Patsy Quinn

Copyright Dallas Bar Association 2012. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.

Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Execu-tive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Fea-ture articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informa-tional and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association.

All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion.

Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

EQUAL ACCESS CAMPAIGN KICKS-OFF — WHY DONATE?

Your donation will help DVAP provide more legal ser-vices to the poor in Dallas during the coming year. A stag-gering 611,158 people in Dallas County qualify for free legal aid—a number which has increased two and a half times over the last decade.

Major donors will be recognized as follows:

• Your name listed in publications such as Headnotes, Texas Lawyer, Dallas Morning News, D Magazine

• Your firm highlighted in press releases• A feature article in Headnotes• Tickets to the DBA Inaugural Dinner-Dance• Invitation to Bachendorf ’s Reception Honor Major

Donors• Recognition in DBA weekly e-newsletter • Plus many more perks!

All individual donors at the $1,000 level and above and all firm and corporate donors at the $5,000 level and above will be recognized in an ad in the Dallas Morning News and in Texas Lawyer.

To donate log on to: www.dallasbar.org/dvapcampaign. For more information, contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org.

September 2012 Dal las Bar Assoc ia t ion l Headnotes 5

Trials – Arbitrations – Appeals • Securities • Financial • Commercial Fraud • Business • Energy

• 300+ jury trials

• 23 reported cases – civil / criminal

• Board Certified – Civil Trial Law

Texas Board of Legal Specialization

BRADEN W. SPARKS, P.C.214-750-3372 | brady@sparkslaw.com | sparkslaw.com

Trials – Arbitrations – Appeals • Securities • Financial • Commercial Fraud • Business • Energy

• 300+ jury trials

• 23 reported cases – civil / criminal

• Board Certified – Civil Trial Law

Texas Board of Legal Specialization

Brady Sparks 1/8 page Ad May Edition-Headnotes 5 x 3.87504.17.12

If it’s a matter of

Wrongful Termination,Discrimination or

Retaliation

We’re here to help

Matthew R. ScottBoard Cert i f ied in Labor and Employment Lawmscott@kendal l lawgroup.comAV-Rated

3232 McKinney, Suite 700 | Dallas, Texas 75204 | 214-744-3000www.kendall lawgroup.com

Representing only individuals on a contingent fee basis.

Advocating for employees from all walks of life.

We are actively seeking your referrals.

The second chapter of my recently published book, Raising the Bar (Texas-BarBooks 2012), is on “The Two Most Important Lawyers of the Last 50 Years.” For me, Leon Jaworski on the litiga-tion side, and James A. Baker, III on the transactional side, were easy choices. Why them?

Jaworski’s work in United States v. Nixon cemented the power of the Rule of Law, preserving the imperative that not even a president is above the law; and Baker’s counseling, negotiating and deal-making skills were the keys to the success of Presidents Reagan and Bush. As Secretary of State, Baker’s orches-tration of the Cold War’s end made the world a better place.

Leon Jaworski made his mark largely due to three traits. First, he was always ready to serve a higher cause. As a young lawyer in Waco (when Harper Lee was a child), he played Atticus Finch in real life by representing Jordan Scott, a black defendant charged with murder-ing a white couple. Like Atticus, Leon tried his case before an all-white jury in a prejudiced community and gave his all for the futile defense of Mr.  Scott. His capacity to take on higher causes led him to become the leading prosecutor of Nazi war criminals; to represent the Justice Department in compelling Mississippi Governor Ross Barnett to integrate Ole Miss; and to serve as Watergate Special Prosecutor.

Second, Jaworski knew his great-est talent was trying lawsuits, and he allowed nothing to prevent him from doing that. In 1947, Governor Beauford Jester invited him to serve on the Texas Supreme Court. Jaworski responded, “No thanks, Governor. I’d rather try

lawsuits.” In the mid-1960s, Lyndon Johnson offered Jaworski a spot on the U.S. Supreme Court. Again he refused: “Mr. President, take me off your list. I’m best at trying lawsuits.”

Third, he refused to be intimidated by impossible odds. In 1958, late in the game, he took on the case of Ron Cooper after (a) Cooper had been convicted of murder and sentenced to death, (b) the trial court’s judgment had been unani-mously affirmed on appeal, and (c)  in two days, time would expire on the right to file a motion for rehearing. Cooper had clear mental incapacity (so clear the Army had dismissed him); yet somehow the courts had not recognized it. First, Jaworski got an extension to file his motion for rehearing. He then filed it, lost 2-1, but with the dissent, had stand-ing to file a second motion, which was granted 2-to-1, thereby getting a new trial. Before the new trial began, the state’s psychiatrist and district attorney acknowledged their error in ignoring Cooper’s incapacity. Instead of dying in the electric chair, Ron Cooper spent the rest of his life receiving treatment in a mental institution.

Three different talents also led James Baker to his success. First, he used “prin-cipled pragmatism” to turn ideas into transactions, thereby “accepting vic-tory on terms that can be won—even if they’re something short of perfection.” Baker often quotes President Reagan: “I’d rather get 80 percent of what I want than go over the cliff with my flag flying.” Making the principled pragmatic deal usually requires building positive rapport with one’s counterpart. In negotiating to end the Cold War, Baker developed a close friendship with Soviet foreign minister Shevardnadze, and as their dia-log progressed with increasing candor,

the timetable accelerated for reaching an agreement.

Second, Baker’s career embodies the “5 P’s:” ”Proper preparation prevents poor performance.” “Proper preparation” includes painstaking attention to detail, and empowers one to understand not only what is on people’s minds today, but what is likely to arise in the future. He used this talent in November 1980 when President-elect Reagan named Baker Chief of Staff and Edwin Meese Coun-sel to the President. The delineation between the two positions was not clear, and Baker foresaw a fractious turf battle on the horizon. So on the left side of a piece of paper, he listed what he thought should be his duties, and on the right side, Meese’s duties. When he finished, he gave Meese the chance to tweak it, Baker approved the changes, and then they initialed the document, allowing roles to be clearly defined before the inauguration.

Third, after considering multiple pos-sibilities to give him the highest likeli-hood of getting positive dialog rolling right off the bat, Baker chose the best opening in negotiations. In meeting

Israeli Prime Minister Shamir the first time, Baker introduced himself as fol-lows:

“We both know the media likes to pigeonhole people with catchphrases. You’ve been described to me as a man of principle who’s incapable of being prac-tical. I’ve probably been described to you as a man totally lacking in principle who cares only about being practical. Let me tell you, like you, I’m very much a man who believes in principle, but I also think you have to be practical if you’re going to realize your principles. I also suspect you’re more practical than your reputation. I think you and I may sur-prise some people by working together.”

Baker’s introuduction was warm-hearted, self-deprecating and honest—and immediately put Shamir into a more flexible mindset.

May these practice points from Leon Jaworski’s and James Baker’s esteemed careers inspire us to “raise the bar” in our own legal practices. HN

Talmage Boston is a Shareholder at Winstead P.C. He can be reached at tboston@winstead.com. “Raising the Bar” is available online at TexasBarBooks.net.

DALLAS_1\5888193v210586-327 07/13/2012

by talmage boston

Lessons From the Careers of Leon Jaworski and James A. Baker, III

EVENING ETHICSTuesday, October 9 ~ 6:00 to 9:00 p.m. • At the Belo Mansion (Ethics 3.00)

SPEAKERS• Bob Davis • F.R. “Buck” Files • Laura Benitez Geisler • Hon. Richard Mays

• Frank E. Stevenson II • Nancy Thursby • Justice Kerry FitzGerald (moderator)

$20 for DBA members. ($90 for non-members). Price includes light buffet.

RSVP is required by October 5 to kzack@dallasbar.org.

6 Headnotes l Dal las Bar Assoc ia t ion September 2012

Join Texas Lawyer’s business department for our bi-annual technology event, Law Tech Texas, on September 20 featuring sessions on:

E-Discovery Challenges and Solutions for 2012•Technology Assisted Review: When to Use It and How to Defend It•E-Discovery in the Cloud: Cost Considerations, Ethical Considerations •and Benefits of Cloud-Based E-DiscoveryInformation Governance: Key Considerations in the Collection •ProcessE-Discovery: Got It on the Run Now•Top 5 Ethical Concerns for Lawyers in E-Discovery•

Keynote Speaker: Craig Ball, certified computer forensic examiner, law professor and electronic evidence expert

Cityplace•2711N.HaskellAve.•Dallas,TX752048a.m.to3:40p.m.

Pendingupto4.5hoursofCLEcredit.FREE lunch and admission to the CLE sessions throughAugust31,2012.A$25feewillbeassessedbeginningSeptember1.

Visit www.TexasLawyerEvents.comforinformation.

Spon

sore

d B

y

DALLAS | HOUSTON

When preparing a witness to speak on behalf of a company, many of the nor-mal deposition “rules” or best practices do not apply. Indeed, teaching a witness new information to provide under oath for the company can seem both counter-intuitive and artificial. But the Rules and the case law are clear: an organization has an obligation to provide a human being to testify on its behalf in litigation. This is true even if all employees with relevant knowledge have long since left the com-pany, the requested information is known by a number of people across the organiza-tion but not one single human being, or the deponent did not have any personal knowledge of the deposition topic before meeting with the lawyer. Set forth below are some basic tips for the next time you are preparing a witness to speak not just for himself but for the entire organization. No pressure.

1. Negotiate Topics. Sometimes depo-sition topics can be overbroad or oth-erwise inappropriate. Protective orders can limit the scope or prevent access to privileged subjects. See Murphy v. Kmart Corp., 255 F.R.D. 497 (D.S.D. 2009) (holding certain topics overbroad); JPM-organ Chase Bank v. Liberty Mut. Ins. Co., 209 F.R.D. 361 (S.D.N.Y. 2002) (holding that “facts” underlying party’s claims and defenses to be protected work product). However, even if a protective order is in place, you should try to narrowly and suc-cinctly define the scope of the testimony so that your witness “knows what he needs to know.” If your opponent is also a corpo-ration, remind your opponent that agree-ing upon focused, relevant topics is mutu-

ally beneficial and that the negotiation is a two-way street.

2. Pick the Right Representative. The person with the most personal knowledge may not be the best corporate represen-tative—indeed, because personal knowl-edge is not a requirement there is substan-tial latitude in terms of who may be desig-nated. QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 688 (S.D. Fla. 2012) (explaining latitude in corporate repre-sentative designation). Pick the person who will be the best representative for the organization and teach her the informa-tion she does not already know.

Remember, designating more than one representative multiplies the amount of time available for questioning, so it is generally best to designate a single wit-ness. Former employees may be designated as representatives, and some courts have even allowed experts to serve as corporate representatives.

3. Prepare Properly and with a Pur-pose. The corporation has a duty to pre-pare the representative to speak. Thus, “I don’t know” is generally not an acceptable response—unless, of course, no one in the corporation knows.

If the representative is also a fact wit-ness, take care to properly explain (and police) the distinction between answers based on personal versus corporate knowl-edge.

Use documents to prepare your wit-ness, but consider identifying employees with knowledge and supervising infor-mation exchanges between the witness and other corporate employees. Always remember that you need to be able to demonstrate how the witness was pre-pared at the deposition.

Keep in mind that the witness can be

asked to identify the documents reviewed in preparation for the deposition. See, e.g. Seven Seas Cruises v. V. Ships Leisure Sam, 2010 WL 5187680, at *3 (D.S. Fla. Dec. 10, 2010) (citing cases). For this rea-son, be mindful of giving your opponent a roadmap to bad facts or documents. Lastly, do not show your deponent privi-leged material.

4. Assist at the Deposition. During the deposition itself, consider keeping a “cheat sheet” of important numbers, facts and dates for the representative: nothing says that a corporate representa-tive must have a photographic memory. Also, if there are many complicated top-ics, the company can have knowledgeable employees at the ready to consult with the representative by phone during breaks.

If the representative gives inaccurate testimony, be vigilant to correct it during the deposition, if needed through cross examination. If it does go uncorrected, the weight of authority holds that the cor-porate representative’s statements are not judicial admissions and therefore may be impeached by other evidence. See March Madness Athletic Ass’n, LLC v. Netfire, Inc., 310 F.Supp.2d 786, 810-11 (N.D.

Tex. 2003) (holding 30(b)(6) statement not to be judicial admission); Lindquist v. City of Pasadena, Tex., 656 F.Supp.2d 662, 697-98 (S.D. Tex. 2009) (same). How-ever, some cases hold that a party failing to promptly correct the record may be estopped from contradicting 30(b)(6) tes-timony. See, e.g., Rainey v. Am. Forest & Paper Ass’n, Inc., 26 F.Supp.2d 82, 93-94 (D.D.C. 1998) (refusing to admit affi-davit contradicting 30(b)(6) testimony filed only days after summary judgment motion).

The opponent may attempt to ask questions outside the scope of agreed topics or those that invade the privilege. While the weight of authority holds it is improper to instruct a representative not to answer questions outside the scope, counsel should state the impropriety on the record. See Detoy v. City & County of San Francisco, 196 F.R.D. 362, 367 (N.D. Cal 2000). Instructions not to answer on privilege grounds are proper, as in any deposition. HN

David Sillers is an associate at Weil, Gotshal & Manges LLP and can be reached at David.Sillers@weil.com. Angela Zambrano is a partner at the firm and can be reached at angela.zambrano@weil.com.

Attorney Coaches Needed for Mock Trial Teams – Criminal Case

Coaches are needed to instruct teams for the 2012-2013 mock trial season (a criminal case). Firms and partners can adopt teams as well. Dates and times vary with the

schools. To sign up, please email, Amy Smith at asmith@dallasbar.org.

September 2012 Dal las Bar Assoc ia t ion l Headnotes 7

Our Family Law Attorneys:

Teresa Evans | Fred Adams | Elizabeth Hunter | Cynthia Dunn | David Ho�mann

QUILLING, SELANDER,LOWNDS, WINSLETT & MOSER2001 BRYAN STREET, SUITE 1800DALLAS, TX 75201 214-871-2100 | QSLWM.COM | QSDIVORCE.COM

We are pleased to announce the addition of Frederick S. Adams, Jr. to our Family Law practice. Fred is a fellow at the American Academy of Matrimonial Lawyers (AAML) and is board certified in Family Law by the Texas Board of Legal Specialization. He has been selected to "Texas Super Lawyers" from 2003-2012.

BANKRUPTCY | RECEIVERSHIP | FINANCIAL INSTITUTIONS DISTRESSED ASSETS | FAMILY LAW | BUSINESS LITIGATION INSURANCE | REAL ESTATE | CONSTRUCTION & SURETY

C

M

Y

CM

MY

CY

CMY

K

QSDivorce_ad_6_2012_rev.pdf 1 6/13/12 10:58 AM

by DaviD sillers anD angela Zambrano

Focus Business Litigation

Tips on Effectively Preparing and Presenting 30(b)(6) Witnesses

8 Headnotes l Dal las Bar Assoc ia t ion September 2012

It is an honor to be serving you as President of the State Bar of Texas.

In March of 2011, I was a candi-date for the office of president-elect and spent 26 days and 25 nights on the road. Six of these days were in Dal-las. As I did in every city, I went from firm to firm, meeting as many lawyers as I could and listening to their com-ments—both positive and negative—about the State Bar of Texas and the legal profession.

What concerned me most was that I heard lawyers talking about the State Bar in terms of them and they and it. I realized that—no matter how hard that we had been trying—the word was not getting out to the lawyers of Texas as to what the State Bar had been doing, was doing and intended to do.

Bill Elliott, a member of the Dallas Bar Association, gave me great advice as to what I should do as President of the State Bar. He said, “Don’t spend your time in a tuxedo or in the bar offices in Austin. Get out and visit with the law-yers of Texas.”

Over the past two months, I have done just that at State Bar functions and at local bar association meetings and have gone to the courthouses in Lub-bock, Fort Worth, Galveston and San Antonio. These courthouse visits have given me the opportunity to meet with 50 judges and to have conversations with them about the Lawyers Creed, professionalism, ethics and civility. Over the next 10 months, I will con-

tinue to travel around Texas and lis-ten to as many lawyers and judges as

I can. I understand that it is critical for the leadership of the State Bar of Texas to understand what the work-ing lawyers and judges of Texas are saying—and to respond to them.

I am aware of the won-derful work that the mem-bers of the Dallas Bar have done for our legal profes-sion and for the people of their community. Dallas

attorney Frank Stevenson is the cur-rent Chair of the Board of Directors and Beverly Godbey is the Immedi-ate Past Chair. We also have great bar directors from Dallas: Larry Boyd, Christina Melton Crain, Andy Payne, Ike Vanden Eykel and Michele Wong

Krause. Over the next 10 months, you will receive emails from them and from the State Bar keeping you abreast of what we are accomplishing and asking for your enthusiasm and participation.

As those of you who read the Texas Bar Journal already know, my goal is for us to have an esprit d’ bar. We should have pride in our great profession. We should be committed to working for the good of our profession. And, we should accept every other member of the pro-fession as our brother or our sister.

The State Bar staff has produced a DVD entitled I am the Bar. It is six minutes in length and reflects the absolute diversity of the State Bar of Texas. Watch it and you will conclude that you are 1/90,000th of the State Bar.

I invite you to work with me to strengthen our legal profession. HN

by bucK files

DBA State Bar President’s Update

Don’t handle professional negligence cases?

Taylor Dunham does.We handle professional negligence cases in the legal, accounting, and actuarial areas. Our experience, skill, determination and resources have resulted in recoveries by way of verdicts, settlements and arbitrations against some of the largest law and accounting firms in the country.

When your client has been harmed by the negligence of another professional, consider Taylor Dunham.

For more information on this area of our practice, visit us online at: www.taylordunham.com

Taylor Dunham, LLP ° 301 Congress Avenue, Suite 1050 °Austin, TX 78701° 800.557.5565

DVAP’s FinestMelinda J. Hartnett

Melinda J. Hartnett is a partner with The Hartnett Law Firm, where she has worked with her dad and four brothers for nine years. The Hartnett Law Firm focuses on probate and trust litigation, including guardianships. Melinda is a probate mentor attorney for DVAP who assists volunteer attorneys through the probate and guardianship processes. She also advises DVAP on pro-bate cases by attending staffing meetings and offering guidance. Melinda has taken on numerous DVAP pro-bate and guardianship cases involving intestate estates,

probating wills, and guardianships of the person. Melinda has also spoken at various CLE presentations for DVAP. Melinda believes it is so important for the probate bar to be involved with DVAP because “we are helping people who are truly in need and often have nowhere to turn to resolve these issues. Often the issues are simple but make such a difference for the low-income clients.” Thank you for all you do, Melinda!

Pro Bono: It’s Like Billable Hours for Your Soul.To volunteer or make a donation, call 214/748-1234, x2243.

Buck Files

Featuring a fireside chat with Moderator:

Mark Curriden, Senior Legal Affairs Writer, The Texas LawBook Panelists:

S. Jack Balagia, Jr., Vice President & General Counsel, Exxon Mobil Corporation E. Leon Carter, Founding Partner, Carter Stafford Arnett Hamada & Mockler, PLLC.

Cindy Ohlenforst, Partner and Texas Diversity Chairperson, K&L Gates

Monday, September 10, 2012 12:00 p.m. — 1:30 p.m.

Belo Mansion 2101 Ross Avenue Dallas, TX 75201

Sponsored by: Dallas Asian American Bar Association Dallas Hispanic Bar Association

J.L. Turner Legal Association Special Counsel Exxon Mobil AT&T Legal Elements

The College of the State Bar of Texas

For more information contact: mail@diversitytaskforce.com

Flash Mob on Diversity7th Annual Law Firm Survey Results

DallasDiversity

taskForce

presents

September 2012 Dal las Bar Assoc ia t ion l Headnotes 9

We’ll swim a mile (with sharks) for you.The McClure Law Group, a family law firm with offices in Dallas and Collin County, is comprised of seasoned attorneys and professionals who expertly design resolutions no matter how complex the case.

Powered by extensive trial experience, a foundation in financial and tax law, and Collaborative Law expertise, Kelly McClure and the McClure Law Group team deliver results for high-profile executives, stay-at-home parents, professional athletes, and celebrities.

Armed with more than 25 years' experience as a family law attorney, McClure is a Collaborative Law leader, with the prestigious title of Family Law Board Certified, Texas Board of Legal

Specialization. With a focus on protecting relationships, McClure Law Group compassionately navigates couples and families through divorce, pre- and post-marital agreements and custody issues. However, when Collaborative Law is not an option and litigation is necessary, the McClure Law Group legal team’s tough demeanor makes them a powerhouse in the courtroom.

Always up for a challenge, Kelly McClure recently swam 1.5 miles of shark-infested waters to complete the San Francisco Alcatraz Triathlon Relay. Visitors to the Highland Park office encounter a custom aquarium teeming with sharks and stingrays – evocative of McClure's formidable courtroom presence.

201020112012 2009 2008 2007 2006 2005 2003 20022010

K E L L Y M C C L U R EFa m i l y L a w B o a rd C e r t i f i e d

by appointment only

G R E G B E A N E ROBERT EPSTEIN ABBY GREGORY C H R I S M E U S E www.mcclure-lawgroup.com

H I G H L A N D PA R K / D A L L A S

telephone 2 1 4 . 6 9 2 . 8 2 0 0

CO L L I N C O U N T Y telephone 9 7 2 . 5 1 6 . 3 8 5 0

ABBYGREGORY KELLY

McCLURE

ROBERTEPSTEIN GREG

BEANE

CHRISMEUSE

THE MCCLURE LAW GROUP KNOWS FORTUNE AND FAMILY MATTER. THEY’LL FIGHT FOR YOURS.

Top 50 Female Texas Super Lawyers, Kelly McClure

C

M

Y

CM

MY

CY

CMY

K

KM_HN_group_080812printfinal.pdf 1 8/8/12 5:19 PM

10 Headnotes l Dal las Bar Assoc ia t ion September 2012

When representing a company in busi-ness litigation, lawyers are often faced with requests to produce internal company docu-ments, including communications between in-house counsel and other company employees. Although your first instinct is to put all documents to or from in-house coun-sel in the “Privileged” pile, safe from the eyes of opposing counsel, you need to think twice.

Communications with in-house coun-sel, like communications with any attor-ney, must be made for the purpose of secur-ing legal advice to be privileged. Although courts generally presume that communica-tions with outside counsel are for the purpose of securing legal advice, they generally do not apply the same presumption to in-house counsel.

In-house lawyers often wear multiple hats—lawyer, corporate secretary, head of human resources, etc. Whether a communi-cation is privileged depends on what hat the lawyer was wearing when sending or receiv-ing the communication. If it is not the lawyer hat, the document probably is not privileged.

Communications also must be “confi-dential” to be privileged. Privilege can be lost or waived if, for example, the commu-

nication was forwarded to employees not involved in legal decisions or if the lawyer’s advice was discussed at meetings with non-essential employees present.

To be privileged, a communication also must be between an attorney and client. Again, this can be more complicated when dealing with in-house counsel. In-house counsel may not have maintained a law license or may be on “inactive” status, which can sometimes make the assertion of privi-lege tricky. See Gucci America, Inc. v. Guess?, Inc., 2011 WL 9375 (S.D.N.Y. Jan. 3, 2011). A lawyer on “inactive” status in Texas can-not, by definition, provide legal services.

Identifying the client can also be more complicated when dealing with in-house counsel, and the definition of the corporate “client” can vary by jurisdiction. In sorting through these issues, it is important to under-stand whether your jurisdiction applies the Upjohn test, control group test, subject mat-ter test, or some hybrid.

In addition to these fairly common issues, in-house counsel can be involved in more complicated situations requiring even more scrutiny of the attorney-client privilege issues. For example, internal investigations can present complicated issues regarding the interplay between the roles of detective,

legal counsel and business advisor. In-house attorneys should take care to clearly identify when they are acting as legal counsel so that those communications can be appropriately protected as privileged. Hiring outside coun-sel to assist on the legal issues can be helpful in identifying and protecting privileged com-munications.

Special privilege issues also arise when in-house counsel has communicated with a corporate officer who later sues the company. Typically, in-house counsel presumptively represents the company and not its officers. Thus, former officers generally cannot uni-laterally waive the privilege. But many courts use the Bevill test to determine whether counsel actually represented the officer in his individual capacity, in which case the officer may be able to assert control over the privi-lege.

Similarly, corporate shareholders typi-cally cannot access the company’s privileged documents. However, when shareholders bring litigation accusing the corporation of acting against the shareholders’ interests, courts applying the Garner doctrine will con-sider whether good cause exists to pierce the company’s privilege, considering such things

as the number of shareholders, the nature of their claims, and the need for the documents.

In-house counsel also will often represent multiple entities, such as a parent and sub-sidiary. Communications between the lawyer and the joint clients are privileged as to third parties. But they may have to be produced if the parent and the subsidiary end up in a legal dispute.

Finally, if the company goes into bank-ruptcy, control of the company’s attorney-client privilege passes to the bankruptcy trustee, even with respect to pre-bankruptcy communications.. So all the communica-tions in-house counsel thought would be privileged can become discoverable.

Knowing the rules affecting privileged communications of in-house counsel is essential in making correct decisions during litigation. But knowing and educating cli-ents about these rules before litigation arises so they can take appropriate steps to pro-tect important communications can be even more valuable. HN

Kelli Hinson is a litigation partner at Carrington Coleman Sloman & Blumenthal, LLP. She is head of the firm’s Professional Liability practice group and can be reached at khinson@ccsb.com.

by Kelli hinson

Focus Business Litigation

Protecting the Secrets of In-House Counsel

Has danger struck?

Shield yourself.

512.480.9074 / 1.800.252.9332INFO@TLIE.ORG / WWW.TLIE.ORG

When nature doesn’t give you the protection you need, make sure you have the best liability insurance available.

Texas Lawyers’ Insurance Exchange offers affordable legal malpractice protection to over 5,000 Texas lawyers and judges. TLIE has been a consistent and reliable source of liability coverage for over 31 years. After you’ve been struck and a claim has been filed is not the time to wonder if you have dependable coverage. Make sure you do.

ABA Publication Discount For DBA MembersDallas Bar members can purchase ABA books at a 15% discounted rate. For a complete list of titles or to place an order, visit www.ababooks.org. Enter code “PAB7EDBA” upon

checkout and the 15% discount will be automatically applied to your order.

Discount does not apply to ABA-CLE iPod products.

For assistance, call (312) 988-6112.

September 2012 Dal las Bar Assoc ia t ion l Headnotes 11

Dedication. Expertise. Efficiency. Glast, Phillips & Murray, P.C.

is a full-service law firm dedicated to providing quality results in a cost effective manner.

Glast, Phillips & Murray, P.C. is pleased to announce the addition

of three outstanding attorneys:

John IsbellConstruction/Commercial Trial Lawyerformerly with Thompson, Coe, Cousins

& Irons, LLP

Jim WallensteinCommercial Real Estate Lawyer

formerly with Hunton & Williams, LLP

Arch McCollWhite Collar Criminal Lawyer

formerly with McColl & McCulloch, PLLC

12 Headnotes l Dal las Bar Assoc ia t ion September 2012

In the book of Genesis, Cain provides a timeless response when he is asked about the status of his brother, Abel: “Am I my brother’s keeper?” Cain’s ques-tion is not answered, however, which has left biblical commentators to ques-tion the import of this passage for 2,000 years. In the business context, Texas courts have faced a similar question: do majority shareholders in private compa-nies have a duty to protect the compa-ny’s minority shareholders?

Texas Recognizes Claims for Shareholder Oppression

Texas law offers some protection to private company minority sharehold-ers who claim they were oppressed by the majority owners, but only in limited circumstances and the legal standards may be changing. The “minority share-holder oppression” scenario exists only

in private companies because no mar-ket typically exists for private company shares. The lack of marketability of pri-vate company shares makes it possible for controlling shareholders to “squeeze out” minority owners and prevent them from realizing monetary benefits from their stock ownership.

The Texas Supreme Court has not ruled on whether minority shareholder oppression is a valid claim under Texas law, but since 1988, Texas appellate courts have upheld oppression claims by minority shareholders. Davis v. Sheerin, 754 S.W.2d 375 (Tex. App.—Houston [1st Dist.] 1988, writ denied). The Davis court held the Texas Business Organi-zations Code (Section 11.404) autho-rizes courts to grant equitable remedies to minority shareholders when those in control act in a manner that is “illegal, oppressive or fraudulent.” Whether the minority shareholder was oppressed is a question of law for the court after the jury decides what acts took place.

Davis defined minority shareholder oppression as:

(1) conduct by the majority share-holder that substantially defeats the minority’s expectations that, objectively viewed, were both reasonable under the circumstances and central to the minor-ity shareholder’s decision to join the venture; or

(2) burdensome, harsh and wrong-ful conduct; a lack of probity and fair dealing in the company’s affairs to the prejudice of some members; or a visible departure from the standards of fair deal-ing and a violation of fair play on which each shareholder is entitled to rely. Davis, 754 S.W.2d at 381-82; see also Gim-pel v. Bolstein, 477 N.Y.S.2d 1014, 1017-18 (N.Y. Sup. 1984).

Recent Developments Two recent developments are nota-

ble. First, the Houston Court of Appeals held this year that majority LLC mem-bers owe a fiduciary duty when they redeem a minority owner’s interest and increase their ownership percentage. See v. Devon Energy Holdings LLC, -- S.W. 3d --, 2012 WL 880623, at *21-22 (Tex. App.—Houston [14th Dist.] Mar. 9, 2012, pet. filed). After Allen, sole member-managers of LLCs owe minor-ity members a fiduciary duty to make full disclosure when the majority seeks to buy out the minority owner’s interest in the company.

The second development concerns a shareholder oppression case in which the Texas Supreme Court has requested mer-its briefing. Ritchie v. Rupe, 339 S.W.3d 275 (Tex. App.—Dallas 2011, pet. filed). The Texas Supreme Court initially

denied a Petition for Review in Rupe without a requesting a Response. But on March 2, 2012, the Court granted the Motion for Rehearing and, has requested briefs on the merits by August 7, 2012. In Rupe, the Dallas Court of Appeals concluded that shareholder oppression is a valid claim and upheld a buyout of the minority after finding that the majority owners acted oppressively by refusing to meet with a potential buyer of the minor-ity’s shares, thereby precluding a sale. The appellate court remanded the case, however, to require reconsideration of the buyout award amount, holding that the jury was improperly instructed to disregard discounts that generally apply to a third-party’s purchase of a minority interest in a private company.

The majority owners in Rupe peti-tioned the Supreme Court to overturn Davis, arguing that trial courts cannot grant equitable remedies to minority shareholders and requesting the Court to hold that the business-judgment rule protected them. Rupe counters that the Court should not jettison twenty-five years of appellate cases upholding shareholder oppression claims, that trial courts are empowered to remedy oppres-sive conduct, and that the business-judg-ment rule does not permit majority own-ers to unfairly exploit their power. If the Supreme Court does address the oppres-sion claim in Rupe, it will be the first time, and its opinion will be critical in address-ing the rights and duties of co-owners in private Texas companies. HN

Ladd Hirsch is a business litigation partner with the firm of Diamond McCarthy LLP.  His practice focuses on handling complex business litigation matters, including, business divorce cases. He can be reached at LHirsch@diamondmccarthy.com.

by laDD hirsch

Focus Business Litigation

The Rights and Duties of Co-Owners in Texas Private Companies

RECONCILE.

RESOLVE.

RESULTS.

From A Name You Trust! Your Newest Option in Mediation...

With more than 20 years as an attorney, Jeff Rasansky has the diverse experience required to achieve an efficient and fair resolution for all parties.

Visit www.dallasmediationlawyer.com or call

214-651-6100 to make your appointment today.

September 2012 Dal las Bar Assoc ia t ion l Headnotes 13

When it comes to pleading the citi-zenship of an LLC, Fifth Circuit law regarding diversity jurisdiction is both well settled and rarely followed.

In theory, it seems simple: for diver-sity purposes the citizenship of a LLC is determined by the citizenship of all of its members. In practice, however, many attorneys treat LLCs like corporations by alleging the entity’s state of incorpora-tion and principal place of business. This practice is not only wrong, but a survey of breach of contract/diversity cases filed in the Northern and Southern Districts of Texas shows that the error is widespread.

As stated by the Fifth Circuit in Har-vey v. Grey Wolf, an LLC’s “citizenship must be traced through however many layers of members or partners there may be.” “[F]or each member of an LLC that is itself an LLC or partnership, its mem-bers and their citizenship must be identi-fied and traced up the chain of ownership until one reaches only individuals and/or corporations.” Cavender Enterprise Leasing Family LLC v. First States Investors 4200 LLC, No. 10-1667, 2011 WL 3664563 *2

(W.D. La. July 21, 2011). This can be a difficult task because many states do not require LLCs to identify their members, and many LLCs have complex ownership structures. For example, in Mullina v. Tes-tAmerica Inc., No. 08-11224. 2009 WL 807458 *9 (5th Cir. March 30, 2009), the membership of one LLC included a general partner, 31 limited partners, 16 individuals, six corporations, three trusts, four general partnerships, a limited part-nership and a limited liability company.

A survey of 76 breach of contract/diversity cases filed in the Northern and Southern Districts of Texas during the first six months of 2012 was conducted. Of the 38 actions filed in the Northern District, 84 percent used the wrong stan-dard when alleging the diversity citizen-ship of an LLC. The error rate in the Southern District was only slightly lower at 76 percent. Just as startling as the num-ber of pleading errors, however, is the fact that only two parties recognized that the wrong standard had been used and sought either dismissal or remand for lack of sub-ject matter jurisdiction. To be fair, this last number could have been higher because there were a number of cases in which

the Court noted the error and ordered the plaintiff/removing defendant to replead or have its case dismissed or remanded.

The consequence of using the wrong diversity standard can be far more serious than simply having to replead. For exam-ple, in Bellville Catering Co. v. Champaign Market Place, L.L.C., 350 F.3d 691 (7th Cir. 2003), the error was not caught until the case was on appeal. The Seventh Circuit laid blame on the plaintiff (the case should not have been filed in fed-eral court), the defendant (the answer should have pointed out a problem) and the Magistrate Judge who presided at trial (he should have inquired whether the court had jurisdiction). Noting that “[f]ailure to perform these tasks has the

potential, realized here, to waste time (including that of the put-upon jurors) and run up legal fees,” the Court held that “[t]he best way for counsel to make the litigants whole is to perform, without additional fees, any further services that are necessary to bring this suit to a con-clusion in state court, or via settlement. That way the clients will pay just once for the litigation.”

The bottom line is that in those instances in which you cannot determine an LLC’s membership, remember the Sev-enth Circuit’s advice to “accept the inevita-ble and proceed to state court.” HN

Bob Pettey is a partner at McDole & Williams, PC and can be reached at bpettey@mcdolewilliams.com.

by bob Pettey

Focus Business Litigation

The LLC, Not Just Another Corporation

The Wallace B. Jefferson AwardInaugural Presentation, State Bar of Texas, June 2012

Employment Law| Commercial Litigation| Mediation (Bilingual)Business Transactions & E-Commerce

Family Law | Estate Planning| Probate | Nonprofit Organizations

The Distinguished Alumna AwardWomen in Law, SMU Dedman School of Law, April 2012

10 Years of Selection to Texas SuperLawyers®Listings September 2003-2012

Recipient of

1700 Pacific Avenue, Suite 3700, Dallas, TX 75201214-361-5600

www.fghlaw.net

fg h law Farrow-Gillespie & Heath LLPAttorneys and Counselors

A Women's Business Enterprise in Downtown Dallas

Farrow-Gillespie & Heath LLPCongratulates Partner

Rhonda Hunterfg h law

AV® Preeminent™

Rhonda HunterFamily Law Specialist

Certified by the Texas Board of Legal Specialization in Family Law

Exclusively protecting members of the Bar

and their families for nearly 40 years.

www.Sbotit .com

YOU

THEY WORK FOR COMMISSION WE WORK FOR

Unlike online insurance companies, we provide concierge-style

service. Speak to the same representative every time you call and

make a well-informed decision that caters to you and you alone.

LOOKING FOR A JOB? NEED TO POST A JOB OPENING? VISIT THE DBA’S ONLINE CAREER CENTER

The DBA’s Online Career Center is a great resource for attorneys and legal professionals! Jobseekers can search jobs, post their resume and set up email alerts. Employers can post job

openings as well as search resumes to find the right candidate!

Log on to www.dallasbar.org/career-center to get started.

14 Headnotes l Dal las Bar Assoc ia t ion September 2012

Special DBA member price: $139.00 $92.00Call 800.456.5484, ext. 7740 and mention your DBA membership to receive your discount.

Top 5 reasons to purchase the new 2012 Dallas County Bench Book:

Real insight of the courtroom 1.

straight from the judge

More than 30 new and updated 2.

questionnaires

Contains procedures for local, 3.

state and federal courts

Four surrounding counties in 4.

addition to Dallas County are

included

A portion of the proceeds 5.

benefits the Dallas Bar

Association

2012 Dallas County

Bench Book

www.TexasLawyerBooks.com

SMU will not discriminate on the basis of race, color, religion, national origin, sex, age, disability or veteran status.SMU’s commitment to equal opportunity includes nondiscrimination on the basis of sexual orientation.

SMU Center for Dispute Resolution & Conflict Management214.768.9032 • resolution.smu.edu

Follow us on

Add “Peacemaker” To Your Job Description.

Improve your marketability and develop the skills needed to take control of conflict. Earn a Master’s in Conflict Management or Graduate Certificates in Dispute Resolution, Team Building, Education and Executive Coaching. Our small classes, led by industry experts, teach practical skills in negotiation, mediation and team building to better manage organizational and interpersonal disputes–even at the international level. Convenient evening and weekend classes offered at SMU’s Plano campus.

THE RICHARDS GROUP

TRG JOB: SCE-12-0018CLIENT: SMU AD NAME: Dispute Resolution PrintPUB(S):HeadnotesINSERTION DATE: Sept. 2012TRIM: 5 x 7.75LIVE: -BLEED: -COLOR/LS/Dmax:B/W/85/240QUESTIONS: Jen Duncan214-891-5808

SCE120018 DR 5x7_7.indd 1 8/14/12 5:01 PM

Our mediation office in Dallas, Texas serves clientsin an atmosphere of fairness and excellence.

Mike McCullough works to resolve

your case in a fair and efficient

manner. You can trust our staff to

serve with balance and respect.

Focused on Resolution

Phone: (214) 365-9000

www.McCulloughMediation.com

9400 N. Central Expwy., Suite 1305

Dallas, TX 75231

Contact Us

September 2012 Dal las Bar Assoc ia t ion l Headnotes 15

Lost profits in a business litigation case is often the most difficult (and expensive) element of the case for the plaintiff to prove, and the one most vul-nerable to the defendant’s attack. This article will review some of the basics of the law governing proof of lost profits, and what I perceive to be an important trend in the case law, applying Daubert/Robinson standards to lost-profits evi-dence.

Lost profits are “damages for the loss of net income to a business measured by reasonable certainty.” Miga v. Jensen, 96 S.W.3d 207, 213 (Tex. 2002). Lost prof-its are available in numerous types of commercial cases in Texas. The appro-priate measure of damages for lost profits is net profit, not gross profit.

In evaluating evidence that lost prof-its were caused by a defendant’s wrongful conduct, the courts are guided by a core holding of Robinson: “An expert who is trying to find a cause of something should carefully consider the alternative causes.” E.I. du Pont de Nemours & Co., Inc. v Robinson, 923 S.W.2d 549, 559 (Tex. 1995). “Further, if there are other plausible causes of the injury or condi-tion, the plaintiff must offer evidence excluding those causes with reasonable certainty.” Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997).

While in most cases, one or both par-ties will offer expert witness testimony on lost profits, expert testimony is not always required. An owner of a business can testify regarding lost profits. This appears to be an extension of the “Prop-erty Owner Rule” that allows an owner

of real property to testify to its market value without qualifying as an expert.

The Texas Supreme Court recently elaborated on the application of the Property Owner Rule to business entities in the context of a condemnation case, holding that the rule applies to enti-ties, but is limited to officers in manage-rial positions with duties related to the property, or employees with substantially equivalent positions and duties. Reid Road M.U.D. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846 (Tex. 2011).

The Reid Road opinion also contains an extensive discussion of the distinc-tion between Rule 701 “lay opinion” witnesses and Rule 702 “expert” wit-nesses that is recommended reading. If expert testimony is offered on lost prof-its, Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) comes into play, in which the Texas Supreme Court made clear that the gate-keeping principles of Daubert and Robinson apply to all expert witness opinions. Gammill also adopted what has become the often-invoked “analytical gap” rule, requiring the exclusion of evidence “which is con-nected to existing data only by the ipse dixit of the expert.” A court may con-clude that there is simply too great an “analytical gap” between the data and the opinion proffered.

In Kerr-McGee Corp. v. Helton, 133 S.W.3d 245 (Tex. 2004), the Texas Supreme Court extended its Gammill holding to expert testimony on dam-ages in an oil and gas case, applying the “reasonable certainty” standard for lost profits to evidence of lost royalties pre-sented by a petroleum engineer. Deter-mining that the witness had violated the “analytical gap” rule, the Court held

that Helton had presented no evidence of damages.

Because Kerr-McGee had not moved to exclude the expert’s testimony prior to trial, or even objected to it until after cross-examining the expert, Helton claimed he had been “ambushed” and sought to have the case remanded for a new trial in the interest of justice under TRAP 60.3. The Court, assuming that Helton had presented the best evidence available to him, and citing the unfair-ness and expense that would be imposed on Kerr-McGee by giving Helton “another bite at the apple,” rendered a take-nothing judgment against Helton.

Many cases stand for the proposi-tion that a trial court’s decision to admit opinion testimony is reviewed for abuse of discretion. However, in City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005), the Texas Supreme Court held that irrel-evant or unreliable expert testimony cannot be legally sufficient evidence to support a verdict or a judgment. Fur-

ther, incompetent expert testimony will not support a verdict or judgment even when it has been admitted without objection. This creates serious pitfalls for lawyers and trial judges: If expert tes-timony later deemed incompetent has been admitted without objection, how can the trial court have abused its dis-cretion by admitting the evidence? How can a judge act arbitrarily or unrea-sonably, or without reference to guid-ing rules or principles, when given no opportunity to act at all?

The path to recovery of lost profits is littered with traps, and they threaten the wary and the unwary alike. Early and very serious attention to these issues can be critical to the successful prosecution or defense of a lost profits claim.

A more detailed paper discussing these issues is available for download from the Business Litigation Section page of the DBA website. HN

Martin ‘Marty’ Lowy is the Judge of the 101st Judicial District Court.

by hon. martin lowy

Focus Business Litigation

Proving Lost Profits

LIVE FAMILY LAW NUTS & BOLTS CLESEPTEMBER 19 & 20, 5:00 to 8:00 p.m. at Belo

MCLE 3.00, including 1.00 Ethics each eveningSponsored by the DBA Family Law Section and DVAP

To register, or for more information, contact perkinsa@lanwt.org.

16 Headnotes l Dal las Bar Assoc ia t ion September 2012

Over 50 years ago when my father first started his law practice the primary mode of communication was a rotary phone and case documents were filed in metal file cabinets. No copiers, no email, no cell phones and no comput-ers. While the rapid pace of technology has streamlined the mass of paper that was choking the court system, it has also proved to be a great differentiator between those who can afford the tech-nology and those who cannot.

Law firms with big budgets can invest in the advanced technology that brings a case to life in a fraction of the time and a fraction of the cost that it takes those firms without the same resources. The ability to collect, cull, review and manage massive amounts of

data and to uncover latent digital evi-dence is a significant advantage head-ing to the courthouse. Consequently, larger firms have thrived by embrac-ing technology as a key to building bigger, more profitable practices while smaller firms have been left on the outside looking in. Help, however, has appeared over the horizon in the form of a cloud.

The “cloud” is a technological advancement that can level the legal playing field for those willing to accept the challenge. Cloud computing is the delivery of computing as a service rather than as a product. It is the abil-ity to plug into infrastructure, soft-ware and stored data without the need for onsite infrastructure. Rather than being stored locally, data is located on secure, remote servers maintained by

third parties. Clouds allow end users to have

access to applications that were once available only to those who could afford the hardware needed to store and run the applications. Furthermore, the cloud allows access anywhere there is a Wi-Fi connection. It is the ability to have a high-tech law practice out-side the four walls of the office—secure access to documents, email, data repos-itories, time and case management applications while sitting in a remote location. The most visible illustration of cloud technology today is email. Gmail, Yahoo! and AT&T all provide cloud-like services. They facilitate and store email without the need to own the hardware or software.

Law libraries have long been in a cloud thus reaping significant sav-ings on library space, books, subscrip-tion costs and updates. Heading into 2012 most providers of office man-agement applications like Microsoft, Google and LexisNexis have already placed their biggest product offerings in the cloud. That means applications like Microsoft Office, QuickBooks and Google Docs can all be accessed through the cloud. Providers of review engines, data storage and time/case management tools are already well on their way to perfecting cloud solutions for their legal clients.

What does this mean to the prac-ticing attorney? It means they are no longer tethered to their software. They are empowered to go to the office even when the office is 1,000 miles away. Deposition preparation, data culling and privilege review can be conducted wherever and whenever the need arises.

Besides the logistical benefits, cloud computing can offer significant finan-cial savings. As a result, smaller firms

can enjoy access to the same tools as the big firms without the staggering up-front infrastructure costs. Further, the pay-as-you-go fee structure of the cloud enhances the value for the small firm owner. It means the firm is not paying for storage space it will never use or seat licenses it will never need, but rather, is paying only for the space and licenses it needs and can use. Thus, tightly managed costs can be passed on to the client.

The benefits also will be seen for larger firms. Pre-cloud technology required racks of servers and manpower to maintain and stay current on updates and new technology. By enabling the cloud, big practices can gradually off-load the heavy lifting. The large vol-ume of electronic evidence stored on servers can be moved to a secure, remote location. Costs related to pur-chasing hardware, server maintenance and IT manpower can be significantly slashed. Increased flexibility, easier access to advanced analytical tools, and slashed overhead means a more productive workforce, which translates into higher overall value for clients.

In short, the continued emergence of the cloud is a significant para-digm shift in how all law firms can do business. The cloud takes technol-ogy away from the constraints of the server room and drops it in the attor-ney’s lap. Tightly measured costs are in and expensive software, hardware, patches, and upgrades go the way of rotary phones and metal file cabinets. Old Guard firms and burgeoning law offices can stand toe-to-toe battling for courthouse superiority on a level play-ing field. HN

David Weber is General Counsel at Digital Discovery and a member of the DBA Computer Law and Corporate Counsel sections. He can be reached at david.weber@digitaldiscoveryesi.com.

by DaviD s. weber

How the Cloud Can Transform a Law Practice

the dall as jewish communit y foundation presents the 17th annual

M O V E B E F O R E T H E W I N D O W C L O S E SESTATE PLANNING OPPORTUNITIES:

PROFESSIONAL ADVISORS SEMINAR

FRIDAY

21S E P T2 0 1 2

T O R E G I S T E R , call 2 1 4 / 6 1 5 . 9 3 5 1 or visit W W W . D J C F . O R G / S E M I N A R

SELF PARKING, CO MPLIMENTARY VALET AVAIL ABLE, $12

F E A T U R I N G G U E S T S P E A K E R CHRISTOPHER E. ERBLICHChristopher E. Erblich has given more than 100 presentations

nationally to groups of estate planning professionals and

business owners.

Chris, partner at Husch, Blackwell LLP, Phoenix Arizona, has

a national practice with clients in more than 20 states and is

frequently sought by other professionals to develop creative

planning solutions for complex situations. He has been

recognized in The Best Lawyers in America, Trusts and Estates,

St. Louis Business Journal Most Influential Leaders and

St. Louis Business Journal “40 Under 40,” 2001.

P R I M A R Y U N D E R W R I T E R

ARMOR Wealth Management, LLC Bessemer TrustCF, Accountants and ConsultantsCole & Reed, P.C.Financial Planning AssociatesGardere Wynne Sewell LLPHill Schwartz Spilker Keller LLCJackson Walker L.L.P. Klein & Pollack, L.L.P.Philip Vogel & Co. PCPMB Helin Donovan LLPPrescott Pailet Benefits, A Marsh & McLennan Agency LLC Company

Silverman Goodwin LLPStanford M. Kaufman & AssociatesTravisWolff Independent Advisors & AccountantsU.S. Trust, Bank of America Private Wealth ManagementWeaverWells Fargo Private BankWolfish & Newman PC

M A J O R S P O N S O R S

S U P P O R T E R S

Additional sponsorship opportunities are still available! Please call 214/615.9351 or e-mail info@djcf.org for details.

WESTINGALLERIA13340 DALLAS PARKWAYD A L L A S , T E X A S 75240

7:30 AM:Breakfast

8 AM to 10:15 AM:

Seminar

$60 by september 1st

$70 after september 1st

EARN 2 CE HOURS CLE, CPE, CLU, CFP, CTFA pending

H O S T E D B Y T H Edallas jewish c o m m u n i t y f o u n d at i o n

September 2012 Dal las Bar Assoc ia t ion l Headnotes 17

In this digital age, more and more companies are harnessing the commer-cial possibilities of social media. With over 900 million users on Facebook worldwide, over 178 million unique visi-tors to Twitter in February 2012, and with 65 percent of adult Americans on at least one social networking platform, businesses have realized that there is money to be realized from being “liked” on Facebook and followed on Twitter. In fact, experts predict that 2012 will mark the first time that online advertising will surpass print advertising in total dollars spent. Yet at the same time, the ubiqui-tous nature of social media has resulted in a blurring of the boundaries between online work and personal lives, as indi-viduals increasingly access their social media accounts during the workday. If an employee and employer share in creating content, making connections and bring-ing in customers through such social media sites, who then “owns” the social media account?

The answer is far from clear, as litiga-tion over these issues continues to dot the legal landscape. For example, in Sasqua Group, Inc. v. Courtney, an executive search firm maintained that the Linke-dIn connections and Facebook relation-ships with clients cultivated by a former employee were trade secrets belonging to the firm. The court soundly rejected that view, holding that the contact informa-tion and professional details were hardly protected secrets in an age where “every-one . . . puts it out there for the world to see because people want to be connected now.”

Companies also have to be careful about their own treatment of boundar-ies between individuals and job-related social media activities. In Maremont v. Susan Fredman Design Group, the direc-tor of marketing (Maremont) for a Chi-cago-based interior design firm started and maintained the company’s Twitter and Facebook presences, generating con-tent for and promoting her employer. Maremont also had personal social media accounts. While she was on a leave of absence following a car accident, per-sonnel from the design group continued to post on all of these accounts without Maremont’s permission. She brought suit for this unauthorized use and access, among other claims, and the court denied the employer’s motion for summary judg-ment.

With the potential that an employer could be exposed to liability for unau-thorized use of an account maintained by an employee, it becomes increasingly important for businesses to delineate clearly who owns or is an authorized user of a social media account. In Ardis Health, LLC v. Nankivell, Ardis hired Ashleigh Nankivell as a “video and social media producer” to develop videos, websites, blogs and social media pages touting the company’s products. Nankivell’s contract contained typical “work for hire” pro-visions, and stipulated that she would return all confidential information to her employer upon termination. After Nan-kivell was fired, Ardis obtained injunc-tive relief requiring Nankivell to return the passwords and restore the company’s access to the accounts that she had man-aged.

With companies actively encourag-ing employees to utilize social media as a

marketing tool, litigation over ownership of social media accounts and content is likely to become more common. Assess-ing value, however, remains a mov-ing target. In PhoneDog, LLC v. Noah Kravitz, PhoneDog is seeking $340,000 in damages for a former employee’s use of the “@PhoneDog_Noah” twitter handle. PhoneDog’s damages claim is based upon a supposed “market value” of Twitter fol-lowers of $2.50 each per month. Proving damages in such a case presents certain obstacles for companies like PhoneDog. Can Twitter followers be a trade secret when a list of followers is readily dis-played on an account’s homepage, eas-ily accessible to competitors and pretty much everybody else? And does value actually lie in followers who can choose at any time not to follow, or in the con-tent of the tweets themselves?

Because of these unsettled issues and still-developing area of law, businesses would be well advised to implement social media policies that not only clarify who owns the social media accounts and content, but that also set forth who has access rights when the employment rela-tionship ends. The employment agree-ments should also address such issues, and should require an ex-employee to promptly return all social media login and password information upon termi-nation. With an ounce of prevention, companies seeking to protect their social media presence can save themselves pounds of legal bills. HN

John G. Browning is a partner at Lewis Brisbois Bisgaard & Smith LLP and Katherine B. Bandy is an associate at the firm. They can be reached at jbrowning@lbbslaw.com and kbandy@lbbslaw.com, respectively.

by John g. browning anD Katherine b. banD

Focus Business Litigation

Who Owns Your Company’s Social Media Account?

2013 XC90

Park PlaCe VOlVO | 3515 Inwood road | Dallas | 214.956.5500 | ParkPlaceVolvo.com

We’re PrOuD tO be the Only teXas DealershIP tO WIn the VOlVO PresIDent’s Club aWarD.

**Park Place cannot be held legally responsible for sudden urges to test drive and/or purchase a world-class Volvo. reader assumes full responsibility for any feelings of relaxation, satisfaction and happiness resulting from Park Place Volvo’s extensive Volvo inventory, knowledgeable sales associates, luxurious client lounge and 25-year history of award-winning excellence.

Celebrating 30 Years!DVAP’s Pro Bono Awards Celebration

Save the Date:Thursday, October 18, 5:30 p.m. • The Pavilion at the Belo Mansion

Hosted by the Dallas Volunteer Attorney Program

18 Headnotes l Dal las Bar Assoc ia t ion September 2012

Delivering of legal proceedings to a named party as notification is a simple concept. While the concept may be simple the execution requires a consis-tent plan of action that utilizes the lat-est Tools of the Trade that, if properly executed, will save your firm, and your clients, money, time, and much stress. Essential tools can be loosely grouped into two main categories—Time Sav-ers and Comfort Providers.

Time SaversDocument Scanning – choose an

entity that will provide all of your rel-evant documentation in digital form. Scanned documents are much easier to store, search and maintain than hard copies. Whether it is a scanned return of service, an affidavit supporting publication, or copy of the subpoena, having the document scanned for you saves time.

Online Access – choose an entity that utilizes an online resource where

you can check on the status of your ser-vice, review scanned documents and interact with the file. Sure, there are always times where a phone call is nec-essary but in most cases you can update your file, or your client, from an online resource if one is available to you.

Ancillary Services – a licensed pro-cess server, or a constable, is all that is needed to serve or deliver a legal paper. However, what leads up to that service, and what follows that service, is far more involved. Choose an entity that will assist you throughout the liti-gation cycle. Where possible, lever-age your vendor to assist with filings, document retrieval, locate services and asset searches.

Breadth of Services – your provider will assist you in Dallas, maybe even contiguous areas like Fort Worth, but will they assist you as your needs arise outside of your core area? Choose an entity that will cover your full possible range of needs. Qualified service pro-viders can remove this taxing and time consuming task from your staff.

Comfort ProvidersInsurance – it is far from a perfect

world, what happens if your next big case is not executed properly and you, and your client, lose out? Choose an entity that is reliable, professional and insured with the appropriate level of Errors and Omissions Professional Lia-bility Insurance.

Service Verification – whether it is photos, video recordings, voice record-ings and/or GPS certifications, should your service be contested do you have proof that the process server or con-stable was where they said they were when they said they were there? More commonly, do you have intelligence from the field that can support alter-nate service or empower you at your hearing?

Account Manager – nothing of the sort is available with the historical ser-vice providers in Texas. If you use an individual process server for all your needs make sure you have comfort in being able to reach that person, ask

questions, get support, etc. If choos-ing an entity, make sure you will be assigned an account manager that you can collaborate with for both recurring and unusual service requirements.

In summary, your process server in 2012 looks nothing like your process server from days gone by. In 1979 EZ Messenger began in the Legal Sup-port Industry as a single employee who quickly recognized the future of tech-nology and was one of the first in the industry to use new EDP possibilities to provide enhanced and relevant services to a growing list of clients. We have continued to improve on that model and always are looking for new services and tools to make life easier for our clients. In a fast moving world where geographical barriers become blurred, having a process server with a techno-logical focus and breadth of operations is as essential as having a computer for your legal staff. HN

Steve Ezell is Managing Member at EZ Messenger. He can be reached at sezell@executiveprocess.com or (214) 748-4200.

by steve eZell

Essential Tools of the Trade – Service of Process

FROM THE DAISSally C. Helppie, of Vincent Lopez Sera-fino Jenevein, P.C., presented “Copy-rights, Clearance and Ownership: What To Do Before You Shoot” at the Dallas Art Institute. She also was recognized by the State Bar for one of the best substan-tive articles on entertainment law for her feature in the DBA Headnotes.

Darin Klemchuk, of Klemchuk Kubasta LLP, presented “Secondary Liability for Trademark Infringement and the Online Space” at this year’s State Bar of Texas Annual Meeting. Kirby Drake, of the firm, presented “Ethics in Discovery” at the American Intellectual Property Law Association 2012 Spring Meeting.

KUDOSGene A. Leposki, of McCurley Orsinger McCurley Nelson & Downing, LLP, has been promoted to Partner.

Jennette E. DePonte, of McCathern | Mooty | Grinke, LLP, received a Board Certification in Civil Trial Law from the Texas Board of Legal Specialization.

Shannon Bates, of Klemchuk Kubasta LLP, has been promoted to Executive Partner.

Michelle V. Larson, of Forshey Prostok LLP, has been named Partner and has opened the Dallas office for the firm at 500 Crescent Court, Suite 240, Dallas 75201.

Deborah Coldwell, of Haynes and Boone, LLP, has been nominated as the chair of the American Bar Associa-tion’s Forum on Franchising.

Neil J. Orleans, of Goins, Underkofler, Crawford and Langdon, has been elected as a Director of the Richardson Symphony Orchestra.

Wayne Mason, of Sedgwick LLP has been appointed president of Lawyers for Civil Justice, a national association of corporations and associate member law firms supporting civil justice reform.

John G. Browning, of Lewis Brisbois Bisgaard & Smith LLP, received the 2012 Burton Award for Distinguished Achievement in Legal Writing; the Texas Bar Foundation’s 2012 “Out-standing Law Review Article of the Year” Award; the 2012 Franklin Jones, Jr. CLE Article Award for Outstand-ing Achievement in Continuing Legal Education from the College of the State Bar of Texas; and the award for “Best Series of Articles” at the Bar Leaders Recognition Luncheon at the State Bar Annual Meeting.

Edward V. Smith, III, of Smith & Stephens, received the Distinguished Lifetime Achievement Award from the Real estate, Probate and Trust Section of the State Bar at the annual meeting.

James H. “Blackie” Holmes, III, of Bur-

ford & Ryburn, L.L.P., was inducted as a Texas Legal Legend by the Litigation Council of the State Bar of Texas at the 2012 annual meeting.

Beverly B. Godbey, of Gardere Wynne Sewell LLP, has been awarded a State Bar of Texas Presidential Citation for her ser-vice as Chair of the State Bar of Texas’ Board of Directors.

Walter L. Sutton Jr., Wal-Mart Inc. Store’s Associate General Counsel, received the American Bar Association Presidential Citation during the ABA Annual Meet-ing in Chicago.

Bob Driegert has been elected President of the American Association of Attorney-Certified Public Accountants.

Richard B. Phillips, Jr., of Thompson & Knight LLP, has been named to the Board of Trustees for the Dallas Wind Symphony.

ON THE MOVECasey Ragan has joined Thompson & Knight LLP.

Robert W. Ivey III and Maggie Myers have joined Winstead PC as Associates.

Rebecca L. Lively joined The Bassett Firm as Associate.

Charles W. Blau has joined Curran Tomko Tarski LLP as Of Counsel.

Scott Hazen, Herbert Gilles, Gage Wag-goner and Tracy Graves Wolf have joined the firm of Lewis Brisbois Bisgaard & Smith LLP as Partners.

Ronald R. Cresswell has joined Johnson Jordan Cresswell Monk, PC as Share-holder/Partner.

Susan E. Hannagan and Linda G. Moore have joined Taber Estes Thorne & Carr PLLC as Associate and Partner, respec-tively .

Donald Uloth has started his own firm, Donald E. Uloth, P.C., 15150 Preston Road, Suite 300, Dallas, TX 75248. Phone (972) 763-2427.

Carolyn C. Key has joined Sessions & Schaffer, P.C. as Associate.

Samuel H. Johnson, Constance “Misty” Broome and Charles S. Cantu have formed Johnson Broome Cantu, P.C., 13155 Noel Road, Suite 900, Dallas, Texas 75240. Shaukat Karjeker and Kevin Klughart have joined Carstens & Cahoon, LLP as Of Counsel; Greg Perrone joined as Part-ner.

John V. Jansonius and Stephanie K. Osteen have joined Jackson Walker L.L.P. as Partners; Christina A. Jump joined as Senior Counsel.

Haley DeVault and John Neyland have joined Kane Russell Coleman & Logan PC as Associates.

Judge Joseph M. Cox has joined Brace-well & Giuliani LLP as Partner.

Katarzyna Brozynski has joined Looper Reed & McGraw, P.C.

Becky Niederstadt has joined Essilor of America, Inc. as Corporate Counsel.

Lawrence E. Henke has joined Brown Fox Kizzia & Johnson PLLC as Of Counsel.

J. Quitman Stephens has joined Gordon & Rees, LLP as Partner.

Eduardo Espinosa and Michael Napoli have joined Cox Smith Matthews Inc. as Shareholders.

Andrew Stubblefield has joined Coats Rose as Associate.

Emily T. Ross has joined Judd & Jacks, P.L.L.C. as Associate.

In the News September

One Stop... One Provider... Best Technology

· Service of Process· Court Filing Services· Messenger Services· Litigation Photocopy· On Demand Delivery· Investigations· Nationwide Services

1860 W. MockingBird Ln., Dallas TX 75235 (214) 748-4200 www.ezmessenger.com

Founding Member of NAPPS

PARKING OPTIONS AROUND BELOPlease plan to arrive at your noon meetings early. Parking is limited at Belo during the noon hour.

To view other parking options in the area, log on to:www.thedallasartsdistrict.org/plan-your-visit/parking/index.htm

September 2012 Dal las Bar Assoc ia t ion l Headnotes 19

OFFICE SPACEUnfurnished office space for rent with Uptown family law/business litigation firm. Great location at Cedar Springs and Maple. Two window offices plus an open workspace. Total of approximately 485 sq. ft. Rent includes underground parking, receptionist, and access to shared kitchen and conference rooms. Postage meter, copier, scanner, and fax also available if needed. Possibility of referral work. Please call (214) 520-7494 or email cfaust@sullivancook.com for details.

Founders Square spacious office; right between State and Federal courthouses – practically everything you need for solo and/or mediation practice – secretary/receptionist/bookkeeper; furnished; two conference rooms; internet/Wi-Fi; kitchen; storage space - $2,900/month. Contact tsimmons@pfloreslaw.com.

No Rent Until October. Offices in Preston Tower. Shared amenities (kitchen, confer-ence room, reception area, bathrooms). Near Preston Center, 10 minutes from courthouse. Will consider lease with option to purchase. Call (214) 369-1171 or email herbhooks @aol.com.

Downtown Dallas unfurnished large-windowed corner office, in small criminal/immigration law firm, 1700 Commerce @ Ervay; views of library and City Hall; shared reception area; telephone, copy, scan, fax, postage meter and Wi-Fi; kitchen; on-site security; covered/uncovered convenient parking; close to courthouses, DART, post office; easy access to H75-I35-ND Toll; many nearby restaurants; reception/secre-tarial negotiable. Contact: Diana Allen @ (214) 748-3230 or sgoodmanjd@gmail.com. $650.00/month.

Large furnished office space available within small real estate law firm located at

4054 McKinney Avenue. Shared conference and break room, copier, fax, DSL & phone equipment are available if needed. There is a possibility of overflow real estate work. No long-term commitment and a monthly rate of $650.00. Call (214) 520-0600.

POSITION AVAILABLEHealth Law Attorney Needed. Experience in healthcare regulatory and payment mat-ters - Medicare, Medicaid, licensing, trans-actional or criminal law services to health-care providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-moti-vated and will participate in marketing & seminar presentations. Please email resume to markskennedylaw@msn.com.

Dallas Commercial Litigation Boutique seeks associate attorney and/or contract lawyer with 2-6 years of commercial litiga-tion experience. Contract lawyer with more years of experience will be considered. Ideal candidate must be licensed in Texas, have litigation experience, along with excellent research and writing skills. To be considered for this opportunity, please send your resume to Dallas Bar Association, Box 12–8A, 2101 Ross Avenue, Dallas, Texas 75201.

Turtle Creek business, commercial, bank-ruptcy, and construction litigation firm seeks civil litigator with some portable bill-able business. Appellate and actual trial and deposition experience required. Excel-lent writing skills necessary. Firm offers first rate office environment and tenured support staff. Open to either office sharing or fee split arrangement. Respond in confidence to oaklawnfirm@aol.com.Attorney Position Available. Grow-ing Collin County (Craig Ranch) AV Preeminent™-rated litigation boutique is seeking attorney(s) who believe they are ready to “do their own thing” with like-

minded attorneys. Firm to provide beauti-fully-furnished office and everything needed for successful practice, including collegial atmosphere. Applicant will keep what s/he collects after contributing reasonable fraction to overhead. For self-motivated lawyer(s) with some portable business and looking to “make the leap” and control their own destiny, please email resume and cover letter to info@saunderswalsh.com.

Immediate Opening: Paralegal for 5-attor-ney firm in Dallas Arts District. Salary based upon experience. Full time, benefits, free parking. Email resume to Mitch Milby at mmilby@milbyfirm.com.

POSITION WANTEDSeeking full-time temporary paralegal that could lead to permanent employment with a mid-size law firm in the Farmers Branch/Irving area with 3-5 years’ experience pref-erably in family law and civil litigation. This candidate must possess the ability to multi-task in a fast paced environment, be a self-starter, have the ability to prioritize, meet time sensitive deadlines and good organiza-tional skills. Strong written & verbal com-munications a must plus fast and accurate typing/dictation/transcription (80 wpm). Qualified candidates please send resumes to legalopportunity@yahoo.com.

SERVICESEconomic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consult-ing services, expert reports and expert testimony in court, deposition and arbi-tration. His firm specializes in the calcu-lation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, valuation and divorce matters. Mr. Roney and his expe-rienced team of economic and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Con-tact Thomas Roney in Dallas/Fort Worth

(214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.”

Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corpo-rations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 222-9494. dlopez@pulmanlaw.com

Experienced Freelance Paralegals and Legal Assistants for traditional and digital transcription, document manage-ment, deposition summaries, drafting pleadings, discovery responses, typing, and more. Smart, economical solution for overflow work, staff shortages, sole prac-titioners. See www.TNTlegalresources.com for additional information or email info@TNTlegalresources.com. Phone: (972) 495-6272.

Diamond and Gold Buyer. Buying all types of Diamonds, immediate cash paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089.

Legal Document Retrieval, Inc. (800) 487-2245. Immediate access to copies of documents from active and closed files from Courts, Archives and Government Agencies. Property, Titles, Assets, Liens search. Legislative Intent Documents. Ser-vice of process in states and abroad. Con-tact: legaldocusa@aol.com.

Classifieds September

Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career

Center. www.dallasbar.org/career-center.

12th Annual Freedom Run

5K Run

Thursday, September 13, at 6:30 p.m.at Dallas City Hall Plaza

Benefitting the Assist The Officer Foundation

Paying tribute to the victims and heroes of 9/11.

NEED TO REFER A CASE?The DBA Lawyer Referral Service Can Help.

Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.

STOPHACK

ATTACKS

www. RECORD.comToll Free 866.429.2210

Cyber theft of sensitive information is on the rise, making electronic record storage a risky proposition. At Tindall Record Storage, we can store all your paper records safely and securely, without the expense of scanning. And with our free TRSDataEntry records management software, your documents are out of sight, but never out of reach.

Serving the Metroplex Since1981.

Give us a call to learn more.

Teach Dallas ISD Students Nov. 12-16

Volunteers are needed to teach in secondary classrooms this fall. Times and class sizes vary

by school. Curriculum is available.

Deadline to sign up is Nov. 1.

Please email your contact information and available volunteer date(s)/times to Amy

Smith at asmith@dallasbar.org.

20 Headnotes l Dal las Bar Assoc ia t ion September 2012