MEDIATION
-A Discussion With Experienced Mediators -Practice Tips for Settlement Conferences -Mediated Settlements–Tips, Tricks, and Traps Early Dispute Resolution
-No Jury, No Trial, No Problem arbitration
-Dispositive Motions in Arbitration -Top 5 Ways to Lose Arbitration Business
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THE HOUSTON
inside...
Volume 58 – Number 4
January/February 2021
Alternative Dispute Resolution
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contents January/February 2021
Mediation
Volume 58 Number 4
10
FEATURES
Early Dispute Resolution 17
10
MEDIATION Reaching Across the Table: A Discussion With Experienced Mediators Compiled by Tim McInturf
Tips for Settlement 12 Practice Conferences Before U.S. Magistrate Judges
By Hon. Nancy K. Johnson
Settlements– Tips, 14 Mediated Tricks, and Traps By Jacquelyn McAnelly
Arbitration
21
32
Singapore Convention on 15 The Mediation: A Welcome International Undertaking By Anuj Shah and Anna Archer
17
Early Dispute Resolution No Jury, No Trial, No Problem: A New Form of Dynamic Mediation Is Helping to Unclog Harris County’s Civil Dockets By Michael A. Hawash and Judge Jim F. Kovach
21
ARBITRATION Dispositive Motions in Arbitration: Cracking Open the Black Box By Denise Peterson
Late to Arbitrate? Not 24 Too Necessarily Under Texas’s Statutes of Limitations By Avi Moshenberg
5 Ways to Lose Arbitration 27 Top Business By Daniel Goldberg
Resolution Center 32 Dispute Turns 40
The Houston Lawyer
By David E. Harrell, Jr.
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2019. All rights reserved.
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contents January/February 2021
Volume 58 Number 4
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departments Message 6 President’s Building a Strong Democracy By Bill Kroger
the Editor 8 From Dispute Resolution During a
Pandemic: Somehow the World Keeps Turning By Anna M. Archer
Milestones 34 HBA Liberato Made History as First
Woman HBA President By Carly Milner
37
38
Spotlight 36 Section International Law Section
Programming Reflects Law Practice in Global City By Seepan Parseghian
Profile in professionalism 37 AHarry M. Reasoner
Senior Partner, Vinson & Elkins LLP Chair, Texas Access to Justice Commission
THE RECORD 38 OFF Tara Taheri: Under the Spotlight By Nikki Morris
Spotlight 39 Committee LegalLine: Just A Phone Call Away
39
42
By Liz Furlow
trends 40 legal Electronic Service of Process
Via Em@il and Soci@l Medi@: Amendments to Texas Rule of Civil Procedure 106 By Brooksie Bonvillain Boutet
Acing the Virtual Oral Argument By Anuj Shah
Seventh Circuit of the U.S. Court of Appeals Finds That Extreme Obesity Is An Actionable Disability Under the ADA Only If It Is The Result of An Underlying Physiological Disorder or Condition By Kylie Loya
The Houston Lawyer
reviews 42 Media Bring Yourself: How to Harness
the Power of Connection to Negotiate Fearlessly Reviewed By Braden Riley
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44 Litigation MarketPlace
president’s message By Bill Kroger Baker Botts L.L.P.
Building a Strong Democracy
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ment in the Houston Bar Association. More than any time in hen I was nine years old, my German grandour recent past, we should appreciate the important programs father taught me about coin collecting. He had of the HBA, some of which are more than 100 years old. Conbeen collecting coins since he was a young man sider our 26 Law Sections, covering bankruptcy, environmenin the 1920s. Some of his first coins were made tal law, family law, health law, international law, oil and gas, of iron, issued by individual German cities as a and taxation, among other practice areas. Each of these Secresponse to the hyper-inflation after the Great War. My grandtions comprise large numbers of Houston lawyers who work father passed away many years ago, and today I am the curator together to promote legal scholarship and education on imof a family collection that has been ongoing for 100 years. portant issues. If you believe we are a nation of laws, then you While at a local coin dealer this weekend, I stared at an should join one of our Sections. unusual Prussian silver commemorative coin from 1913, the Consider these HBA programs that support same year my grandfather immigrated to the and reinforce our commitment to justice and United States. The coin commemorates the 100th the rule of law. anniversary of the defeat of Napoleon by the King• Our pro bono programs, ranging from repdom of Prussia. The obverse of the coin shows a For Houston resentation of our neighbors on eviction cases German eagle killing a French snake, a most provocative and ominous image. lawyers, a good through Houston Volunteer Lawyers, to answering questions and providing resources The next year, Germany attacked France during place to start is through LegalLine. These services provide dithe outbreak of the Great War. Over the course of rect help to people who need access to justice, the next three decades, tens of millions of people with involvement in but could not otherwise afford it. would die as a result of German aggression, much of it fueled by propaganda, bullying, lies, mob the Houston Bar • Our Dispute Resolution Center where every month dozens of disputes between neighbors, violence, racism, civilian indifference, nationalAssociation.” parties to a commercial transaction, or family ism, and histrionic oration that exploited the new members are resolved peaceably, at no cost to technologies of radio and film. the disputants. Where were the German lawyers and judges who knew • Our work helping newly-elected judges with their invesbetter and could have spoken out about these behaviors and titure ceremonies. What more important work is there if events? you care about the celebration of the orderly transfer of I have close friends who lost many family members from power? the two World Wars and the Holocaust. Our own family losses • Our partnerships with many other organizations, includdon’t compare to theirs. Still, those wars divided my family ing Communities in Schools, Houston Food Bank, and forever. I don’t know any of my German relatives. My father Habitat for Humanity, among others, to support the imsaw his German grandmother only once during a short visit portant services that they provide. If you care about the to the U.S. in the 1930s. She lost everything in the war, as the war on poverty, these programs need you. apartment complex she owned was destroyed. She died a few • The implicit bias training program we are developing and years later. Two members of my grandmother’s family, who our commitment to reducing bigotry and hate in our comlived in the bloodlands between Germany and Russia, were munity and promoting diversity, equity and inclusion in killed in the violence after the war ended. No one ever found the legal profession. their bodies. I could go on, but these services are the foundation of a well I think about our own roles as lawyers in our community in ordered, highly-functional democratic society. If you are a light of the events of the past year. We might describe or view lawyer and want to strengthen the country and its democratic them differently, but regardless of political party, we are all values, there is no better time than now to re-engage with the unsettled. What responsibility do we have to help our country Houston Bar Association. become a stronger, democratic republic, the leader of the free world? What can we do? Contact us. We need your help. There is much work to For Houston lawyers, a good place to start is with involvedo.
The Houston Lawyer
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January/February 2021
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from the editor By Anna M. Archer U.S. District Court
Associate Editors
Anietie Akpan METRO
Brooksie Bonvillain Boutet Shipley Snell Montgomery
Kimberly Chojnacki Baker Donelson
Elizabeth Furlow Baker Botts
The Houston Lawyer
Andrew Pearce BoyarMiller
Koby Wilbanks Murrah & Killough
Dispute Resolution During a Pandemic:
Somehow the World Keeps Turning
A
s lawyers, our careers are centered around either preventing or resolving disputes. During the pandemic, we literally have been dealing with life-or-death issues in our personal lives and adjusting to different and often challenging environments and circumstances in our professional lives. It sometimes seems like everything has changed. But somehow there continue to be legal disputes that need our attention. The world keeps turning, and people still need our help to make sure they don’t run into legal issues or to help solve the issues when they do. We hear a lot about the disappearing jury trial, but before COVID-19 brought everything to a standstill almost a year ago, there were an average of 186 jury trials a week in state court in Texas. From mid-March through June 2020, there were zero. From June to September, there were a total of 20.1 This dramatic decrease in the number of trials that courts have been able to safely hold equates to a lot of unresolved disputes. While both the state and federal court systems have been working diligently to safely resume normal jury trial operations, there is a backlog of cases that will undoubtedly take significant time for the courts to address. Part of the impetus for the theme of this issue—alternative dispute resolution—was that various different means of alternative dispute resolution may help alleviate this problem, at least for civil cases. The other inspiration was the 40th anniversary of the Harris County Dispute Resolution Center (DRC), which happened to coincide with the pandemic. Thank you to the authors for this issue, some of whom generously wrote their articles while they also were dealing with significant COVID-19-related struggles. The authors donated their time and
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talent to educate and inform our readers about mediation, arbitration, early dispute resolution, and the DRC. Their articles will be helpful to lawyers in almost every practice area. I would also like to thank Shannon Quadros and the members of the HBA’s ADR Section for their contributions to this issue. Additionally, Guest Editors Elizabeth Bruman and Avi Moshenberg, Articles Editor Anietie Akpan, and all of the members of the Editorial Board who worked on this issue did an outstanding job. And finally, thank you to the HBA staff who make this publication possible, the associate editors who work diligently to provide informative and thoughtprovoking articles for the regular columns, and Brooksie Boutet and the podcast subcommittee for working to provide an episode of Behind the Lines that perfectly complements each issue of The Houston Lawyer. While perhaps an issue about ADR does not sound as exciting as some of our other issue themes this year, this issue is full of practical guidance to help Houston lawyers find their paths through the new world this pandemic has placed in front of us. Yes, almost everything has changed, and even though some days the fact that the world keeps turning in the midst of this chaos seems like a burden, it is good to know that Houston lawyers—like the authors who volunteered to write for this issue—are always willing to help out, offer their expertise, or, sometimes, a shoulder to lean on. Thank you to each of you who have been that lawyer we know we can count on during this extraordinary time. Endnotes
1. DAVID SLAYTON, ADMIN. DIR., OFF. CT. ADMIN., JURY TRIALS DURING THE COVID-19 PANDEMIC: OBSERVATIONS AND RECOMMENDATIONS (Aug. 28, 2020).
BOARD OF DIRECTORS President
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Past President
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Jennifer A. Hasley
Chris Popov
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Collin Cox Pamela Medina
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Mediation Reaching Across the Table:
A Discussion With Experienced Mediators
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Compiled by Tim McInturf he Houston Lawyer spoke with a number of busy mediators who together must have conducted well over 10,000 mediations. We picked their brains about mediation and being a mediator. Their answers, which were provided separately, reflect some commonalities and some interesting nuances. Clearly, serving as a mediator can be very satisfying. Equally clearly, it is real work. Being a mediator is not easy. We thank Paul Clote, Carla Cotropia, Jerry Hoover, Susan Perin, and Michael Wilk for letting us peek inside the heads of successful, experienced mediators..
Paul D. Clote is a partner with McGinnis Lockridge. He started mediating in 1991.
Carla Cotropia is a partner with Mills Shirley. She started mediating in 1999.
W. Jerry Hoover has a solo mediation and arbitration practice. He started mediating in 1994.
What do you enjoy about being a mediator? Paul Clote: Providing a valuable service as a neutral, objective facilitator. Carla Cotropia: Meeting and working with all types of people from every income level and every background. The psychology of it all. Michael Wilk: Helping people and eliminating the stress and strain of a dispute. What skills or traits contribute to making someone a good mediator? Susan Perin: Be a good listener, be empathetic, stay optimistic, and earn the trust of the attorneys and parties. Attorneys often want subject matter expertise. More important, I believe, is to find someone who can relate to people on a personal level. Paul Clote: Substantial actual trial and/or appellate experience. The ability to accurately, objectively, understand and assess legal claims, defenses, and damage models quickly. Temperament and demeanor. The ability to listen very, very carefully to all parties. Michael Wilk: Patience, persistence, ability to spot the problem 10 January/February 2021
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Susan G. Perin has a solo mediation and arbitration practice. She started mediating in 1991.
Michael Wilk has a solo mediation and arbitration practice. He started mediating in 1991.
and understand what is important to each of the parties and being a good communicator without ego. Carla Cotropia: Respect for the parties and their emotions, commitment, and optimism. Trial experience. Understand[ing] the area of law. Just respecting their situation and pointing out the benefits of letting go of anger, resentment, or the fight. What are the not-so-fun parts of being a mediator? Michael Wilk: Having to deal with unpleasant people who do not respect the process or the mediator. Carla Cotropia: It is tiring. After a mediation, I have no personality left. Paul Clote: Listening to lawyers argue that a meritless claim or defense is really a strong point (especially when the lawyer damn well knows better). Jerry Hoover: Blaming the mediator for not getting to a resolution. Remember, the mediator does not have a “dog in the fight.” Don’t shoot the messenger! What do advocates do in mediation that makes your job easier? Carla Cotropia: There is such a difference here it is hard to
generalize. I do appreciate talking with them before so they can let me know how I can help them. I want to be the “bad guy” so to speak when I point out the benefit of settling. The advocate is the client’s warrior and that is the way it should be. I don’t want to brag, but one of my strong suits is the ability to say tough things in a way that doesn’t offend. Really, it is all in your voice tone. Paul Clote: Educate the client prior to the mediation about a realistic outcome; arrive at the mediation prepared to engage in principled negotiations and accept a fair and sensible deal; and keep their sense of humor. Jerry Hoover: Come prepared with a credible damage model broken down with specificity (and in most cases share it with opposing counsel prior to the mediation). Don’t expect the mediator to create your damage model. Michael Wilk: [T]ell their clients the truth about the risks and costs, in time and money, of continued litigation. What do advocates do in mediation that makes your job harder? How do you handle those challenges? Paul Clote: Lack of preparation, failure to diligently prepare the case and/or the client for mediation. If the mediator asks the right questions, at the right time and in the right way, that may compensate for less than fully prepared attorneys. [But] you never, ever want to put the attorney in an awkward position or get between the attorney and his/her client. That is a prescription for disaster. Carla Cotropia: Anger at the other side is never helpful, but I respect the fact that sometimes everyone just needs to vent. At what point do you realize that a particular mediation is going to be challenging because of the advocates (as opposed to the clients) involved? Michael Wilk: [G]enerally, no later than the [third] caucus. Carla Cotropia: Very early on. I bet every mediator will tell you they figure out early who is the problem child. Paul Clote: I like to confer with attorneys prior to the mediation session. Generally, I will know the lay of the land prior to the mediation convening. What was the most valuable advice you received about building a mediation practice? Who gave it to you? Paul Clote: Ross Stoddard, Courtenay Bass, Mike Amis – all original Association of Attorney Mediator educators out of Dallas— emphasized that it is never about you, the mediator. It is always about the parties, their case and the mediation process. Whatever else you do, protect the integrity of the mediation process. Michael Wilk: Have the best training available and continue to train. Work hard, prepare, speak and write at CLEs and participate in Bar association activities. Carla Cotropia: You build your practice by word of mouth and doing a good job.
What would you advise someone who is just starting out as a mediator? Carla Cotropia: They need to know they may starve in the beginning before their practice takes off. It is a very competitive field. Michael Wilk: Practice law and build a reputation for doing excellent legal work, get the best training available, [and] do mediations through the dispute resolution organizations. Paul Clote: Investigate EDR (Early Dispute Resolution). My guess is that you will see a great deal more of that in the near future. Jerry Hoover: Network, network, network! There’s a lot of competition in the ADR world. Out of sight is out of mind. Keep your name and skill set in front of your targeted audience. Emails, a blog, phone calls, and follow up. What do you think about online mediations? Jerry Hoover: I love online mediations and may never go back to in-person until we get a successful vaccine for COVID 1. I’m finding that the settlement hit rate is about the same as inperson. Michael Wilk: I have not had an in-person session since March and do not plan on doing any until who knows when. I think [video conferencing] is here to stay. There is a savings on travel cost. As more people try video conferencing, they will prefer it to in-person. Carla Cotropia: Believe it or not, they work. The most important thing is I have everyone on video. I’ve always enjoyed mediation. But it seems to me that the mediator has the best job in the room. Why or why not? Paul Clote: The mediator does have the best job in the room. It is a joy to listen to the contrasting viewpoints, channel the respective parties’ substantive views, receive and communicate offers and counter-offers, and watch the process unfold. Each case is different. What helps spur a settlement in one case may not work in another. Discovering hidden keys—like that a spouse who has been quiet all day is the real decision-maker—can be fascinating. Helping parties move the pieces of the puzzle around until they fit can be very satisfying. Carla Cotropia: It is a great job and I love it. But if anyone thinks it is easy, they are very wrong. Michael Wilk: Best job in the room. The mediator is not burdened with winning or losing, but rather takes satisfaction by doing a good job for the parties. Tim McInturf is a generalist--farmer, retailer, trial lawyer, general counsel, chief executive, counselor, mediator, public servant, radio personality, leader, venture capital investor, but most importantly, husband, father, and friend. www.linkedin.com/in/timmcinturf. Endnote
1. The interview was conducted prior to the approval for distribution of the COVID vaccines..
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Mediation
Practice Tips for Settlement Conferences Before U.S. Magistrate Judges
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By Hon. Nancy K. Johnson .S. Magistrate Judges have been utilized more frequently in recent years for alternative dispute resolution in the federal court system. This article discusses the history of the referral process, how and why cases are assigned to U.S. Magistrate Judges in the Houston and Galveston Divisions of the Southern District of Texas for settlement conferences, and what to expect if you are ordered to participate in a settlement conference. In 1990, prompted by significant delays and costs associated with civil discovery, Congress enacted the Civil Justice Reform Act, which makes recommendations to address those problems by implementing case management principles and encouraging early judicial involvement in the discovery process.1 Among the recommendations was the use of court referrals of appropriate cases to mediation.2 In the years following, federal judges increasingly imposed mediation deadlines in their scheduling orders or, if the scheduling orders were silent on alternative dispute resolution, entertained motions compelling the parties to mediate. It was only a matter of time before U.S. Magistrate Judges were viewed as case management resources, especially in cases the U.S. District Judge believed should be mediated but where a party, typically a pro se litigant, could not afford to hire a mediator. Referrals to magistrate judges have expanded beyond cases with indigent parties and now encompass the full range of federal cases. However, limitations apply. U.S. Magistrate Judges, as case management resources, are not free mediators for the asking. An attorney cannot simply call a magistrate judge’s case manager to schedule a settlement conference because by statute, a U.S. District Judge must refer the case to the magistrate judge for a settlement conference.3 Magistrate judges in the Houston and Galveston Divisions are paired with two or three district judges who delegate matters to the assigned magistrate judge. Each district judge has his or her own philosophy about the use of the assigned magistrate judge in the pretrial management of a case. Some judges refer entire cases to the magistrate judge for full pretrial management, including dispositive motions; other judges only refer discovery matters or individual motions.4 This difference in philosophies extends to referrals of cases to magistrate judges for settlement conferences. For example, some district judges are reluctant to use court resources—the magistrate judge’s time—to provide free mediations to represented parties. Those judges rarely, if ever, refer a 12 January/February 2021
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case to a magistrate judge for a settlement conference, even if requested by the parties. Other district judges may use information learned at the Rule 16 pretrial scheduling and management conference to identify whether the case should be referred for a settlement conference. In cases involving limited damage claims, an early settlement conference before a magistrate judge provides the parties an opportunity to resolve the case in a cost-efficient manner. The district judge may order that the parties exchange written discovery but limit the number of depositions that the parties may take prior to the settlement conference. This strategy is particularly effective in fee-shifting cases such as employment or consumer cases, where the attorneys’ fees can quickly outstrip the actual damages and prevent a settlement at a later date. Sometimes a case may be referred for a settlement conference after the close of discovery, either before dispositive motions have been decided or after. In the former scenario, the district judge may hope that the case can be resolved without the necessity of his or her ruling on a complicated or time-consuming motion for summary judgment that may not fully dispose of the case. The district judge might refer the case for a settlement conference after all dispositive motions are resolved if the district judge believes that one or both of the parties need a reality check on the likelihood of a plaintiff’s success, on a defendant’s avoidance of liability, or on the amount of damages that may be awarded by the court or the jury. If a magistrate judge can resolve a case in less than eight hours, the district judge may consider that to be an efficient use of a judicial officer’s time if the memorandum opinion on the pending motion was anticipated to take a week or more to complete or if a trial could be avoided. Of course, there are only time savings if the case settles. Because magistrate judges preside over their own consent cases in addition to handling cases, motions, and disputes referred by the district judge, they will expect the parties to be respectful of their time and negotiate quickly. Litigants should not expect a magistrate judge to allocate an entire day to a settlement conference. A magistrate judge is not likely to be tolerant of a plaintiff whose opening demand is grossly unrealistic or of a defendant who wants to increase counteroffers by $500 a round. A private mediator expects to take several hours listening to the parties in order to understand the dispute and to establish trust that facilitates a negotiated compromise. Importantly, the private mediator is compensated for this time. A magistrate judge, on the other hand, due to pressing judicial duties, does not have the luxury of
spending hours establishing trust with the parties or conducting pre-conference telephone calls to get a feel for the backstory of the dispute. The bottom line here is that a settlement conference with a magistrate judge is more like the afternoon of a typical mediation; everyone needs to get to the point and do it quickly. If the parties are not making sufficient progress toward a resolution, the judge will end the conference. Another difference between a private mediation and a settlement conference before a magistrate judge is that settlement conferences tend to be more evaluative than private mediations. The parties should be prepared to discuss what evidence and law supports their respective positions and how damages will be calculated or defeated. It is important to underline that the magistrate judge is imparting his or her evaluation of the case and no more. Despite what some lawyers may believe, U.S. Magistrate Judges do not discuss with U.S. District Judges the cases referred for settlement conferences, and a magistrate judge therefore has no knowledge about how the district judge may rule on any particular motion. However, magistrate judges can call on their own knowledge of the case law and jury verdicts to give the parties points to consider when evaluating their respective positions visà-vis settlement. If a case does not settle, the magistrate judge communicates only that fact to the district judge’s case manager. If the case settles, the district judge’s case manager will be told when the parties will submit their closing documents or how many days the court should incorporate into its conditional or-
der of dismissal. At the settlement conference, the magistrate judge will assist in obtaining an agreement on material terms but will not draft a settlement agreement or provide proposed settlement documents to the parties. Remember, confidentiality applies to all settlement conferences before a U.S. Magistrate Judge, so the settlement conference may not be used as a conduit to the district judge concerning complaints by one party that the other party has been uncooperative or has otherwise misbehaved in discovery. The district judge will not be informed of offers and demands made in the settlement conference or why the case did not settle. Preparation for a settlement conference should include a preconference discussion with the client about the strengths and weaknesses of the case. The settlement conference is not a good time for your client to learn that his or her expectation of a large damage award is unlikely, that a certain witness’s testimony was unfavorable, or that you have not designated a damages expert or taken a key deposition and all deadlines have expired. You may be asked to explain the factual basis for your damages calculation. If you are seeking attorney’s fees, be prepared to produce your billing records. Having to admit at the conference that you have not kept time records certainly will not help your bargaining position in obtaining your fees as part of the settlement. Parties referred for a settlement conference should remember that it is a court proceeding. The parties can explain their respective cases to a judge, which sometimes can serve as a needed
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catharsis that helps pave the way for a settlement. However, the court expects all parties and counsel to conduct themselves professionally and with courtesy to the opposing party and to the court. A continued failure to behave appropriately could end the mediation and impair that attorney’s ability to receive future referrals for settlement conferences. If a party or an attorney fails to appear for a scheduled settlement conference, the magistrate judge may assess costs against the non-appearing party or counsel. In sum, a referral to a magistrate judge for a settlement conference is a valuable court resource not to be taken lightly. Remember that although a settlement conference before a magistrate judge offers the same cloak of confidentiality as private mediation, you and your client are appearing before a judicial officer pursuant to a court order. Be courteous and respectful of the court’s time. Be prepared to discuss the merits of your case and move quickly in your negotiations. Magistrate judges have suc-
cessfully resolved both big and small cases through settlement conferences, but success depends on the parties’ preparation and willingness to compromise. Make sure both you and your client are ready to discuss settlement terms and to take advantage of the evaluative nature of a settlement conference before a U.S. Magistrate Judge. The Hon. Nancy K. Johnson (Ret.), who served as a United States Magistrate Judge in the Southern District of Texas for 30 years, is presently a full-time mediator and arbitrator with JAMS Mediation, Arbitration, ADR Services in Houston. Endnotes 1. 2. 3. 4.
Janet Civil Justice Reform Act of 1990, 28 U.S.C. §§ 471–82. Id. § 473. Federal Magistrates Acts, 28 U.S.C. § 636. If a case has been assigned to a magistrate judge for full pretrial management, that magistrate judge cannot conduct a settlement conference or refer the case to another magistrate judge for a settlement conference.
Mediation
Mediated Settlements– Tips, Tricks, and Traps
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By Jacquelyn McAnelly ediation can be grueling at times, but there is great satisfaction in resolving what may be a very complex (or even simple) case in a short period of time. Even though the parties may not be entirely happy, they have agreed to the resolution. The question, however, after everything that matters to your client has been worked out and the parties have finally agreed on a number, is—now what? Is it time to go riding off into the sunset on your proverbial horse and live happily ever after? Not so fast. Making sure that the settlement is properly formalized and adequately documented can make or break whether the agreement lasts, or whether you will be haunted by cases past. Pre-mediation preparation can assist in making the final chapters of your case run smoothly. First, determine your client’s tolerance for risk and how complex the ranges of possible settlement may be. This analysis will aid in the determination of whether it is best to have a complex or simple settlement agreement. If you have a risk-averse client, or suspect you may have a complex resolution, then anticipate that the likely scenario will be an agreement in principle with the responsibility of drafting a formal agreement falling on one party. With a client who is risk averse, a complex agreement that has terms that 14 January/February 2021
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may not be part of the settlement negotiations such as confidentiality and applicable state law or venue for enforcement may be provided for in a later drafted agreement. These terms may be non-negotiable for some clients, such as banks or companies with trade secrets, but of little consequence to the other party. Thus, the non-dickered terms are normally dealt with in a more formal agreement drafted after the mediation day. If, on the other hand, the case is simple or you have a client who is more interested in finality, there may be options to formalize the parties’ agreement prior to leaving the mediation. Herein may lie the danger for an unstudied practitioner. Most, if not all, mediators have a “fill in the blank” agreement for the parties to use. These agreements often include some sort of release or non-suit. When presented with one of these form releases, be sure that it becomes effective after the parties have completed obligations related to the agreement or at least accepted the obligations. Also, be sure that the release is appropriately tailored to the case at hand. If your client approves a general release, be sure there are no other obligations between the parties. For example, if your client is a bank, be sure that there are no other banking relationships between the bank and the other party before agreeing to a broad form release. If there are, or there may be, the release should be narrowly tailored to the account, event, or instance upon which the immediate dispute was based. Finally, and most importantly, be sure that the agreement you have when you are walking out of the mediation is enforceable and resolves the litigation effectively. In Texas, a court cannot sign a judgment unless the parties agree to the judgment at the
time that it is submitted to the court.1 Therefore, if you have an agreement but you have not submitted an agreed judgment to the court before a party withdraws consent, the agreement must be enforced by a breach of contract claim or lawsuit based entirely on the settlement agreement, whether simple or complex. So, before walking out of mediation and getting on your horse to ride into the sunset, be sure that you have an enforceable promise for the obligations agreed to in the mediation.
Jacquelyn McAnelly is the managing shareholder of Cersonsky, McAnelly & Garcia, P.C. representing clients in commercial litigation and collections matters throughout the State of Texas. Endnotes 1. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). “Consent judgments” are permitted in some jurisdictions, but Texas is not one of those jurisdictions. Id.
Mediation The Singapore Convention on Mediation:
A Welcome International Undertaking
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By Anuj Shah and Anna Archer s crucial a role as mediation has played in dispute resolution in recent years, the international arena has lacked a uniform and effective framework for the enforcement of settlement agreements arising out of mediation. Enter the United Nations Convention on International Settlement Agreements Resulting from Mediation, known as the Singapore Convention on Mediation (the “Convention”), which was developed and adopted by the United Nations in 2018 to remedy this void.1 On August 7, 2019, 46 countries, including world economic powerhouses such as the United States, China, India, and South Korea, as well as most countries in the Middle East, signed the Convention. This was among the highest number of first-day signatories for any United Nations trade convention.2 The Convention entered into force on September 12, 2020.3 With this milestone, organizations worldwide will not only benefit from mediation as an additional dispute resolution option, but will enjoy greater assurance of their ability to rely on mediation to resolve commercial disputes across borders. In one stroke, both international commerce and the employment of mediation globally will expand. While currently only six states have ratified the Convention, there are 53 signatories.4 The Convention’s impact will only broaden as these signatories also move forward with ratification. In the countries that have ratified the Convention, courts are obligated to handle applications “[t]o enforce a settlement agreement in accordance with its rules of procedure and under the conditions laid down in the Convention,” and “[t]o allow a party
to invoke the settlement agreement in accordance with its rules of procedure and under the conditions laid down in the Convention, in order to prove that the matter was already resolved by the settlement agreement.”5 The courts of a party to the Convention may refuse to grant relief on the grounds set forth in the Convention, such as incapacity of a party to the settlement agreement, impossibility, a breach of standards in the mediation process, or if granting relief would contravene public policy.6 Mediated settlement agreements can be enforced in the countries that have ratified the Convention even if one of more parties to the agreement are from countries that have not signed the Convention.7 The Convention, of course, has its parameters. For instance, while the Convention applies to international commercial settlement agreements resulting from mediation, it will not apply to either “settlement agreements that are enforceable as a judgment or as an arbitral award,” or “settlement agreements concluded for personal, family or household purposes by one of the parties (a consumer), as well as settlement agreements relating to family, inheritance or employment law.”8 When the Convention came into force, the signatories were dealing with the Covid-19 global crisis, and the pandemic took some wind out of the Convention’s sails. The attention of world leaders understandably was diverted elsewhere. Additionally, adding enforcement of mediated settlement agreements to the dockets of courts that already have substantial backlogs due to the pandemic is a new potential hurdle to ratification.9 However, providing a mechanism for parties to resolve disputes outside of court systems without the fear that they may not be able to enforce the agreements if one party backs out would eventually help reduce court workloads10 and further the overarching mission of court systems worldwide—resolving disputes. The President of the United States may ratify the Convention after receiving “the advice and consent of the [U.S.] Senate,” which requires a two-third approval.11 There is no indication that any progress has been made towards ratification in the United States; however, perhaps after the immediate threat of the pandemic subsides, the President and Senate will move to ratithehoustonlawyer.com
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fy the Convention. The United States’ ratification would serve as an example to other countries, and may help boost international business transactions. Even without U.S. ratification, the Singapore Convention has alleviated concern about employing mediation in international commercial disputes and will only serve to increase the use of this important dispute resolution mechanism. Anuj Shah is the managing partner of Anuj A. Shah, P.C., and is Board Certified in Immigration & Nationality Law by the Texas Board of Legal Specialization. He is a member of The Houston Lawyer editorial board. Anna Archer is a career law clerk at the U.S. District Court for the Southern District of Texas. She is also currently the editor in chief of The Houston Lawyer. Endnotes
1. The Convention was developed by a working group of the United Nations Commission on International Trade Law, which finalized the Convention in June of 2018. Erin Gleason Alvarez, International Commercial Mediation Update: UNCITRAL Finalizes Convention and Model Law Drafts on International Settlement Agreements Resulting from Mediation, CPR SPEAKS (July 3, 2018), https://blog.cpradr.org/2018/07/03/ international-commercial-mediation-update-uncitral-finalizes-convention-andmodel-law-drafts-on-international-settlement-agreements-resulting-from-mediation/. The United Nations General Assembly adopted the Convention on December 20, 2018. See G.A. Res. 73/198, Annex, United Nations Convention on International Settlement Agreements Resulting from Mediation (Dec. 20, 2018). 2. Media Release, Singapore Convention on Mediation, Singapore Convention on Mediation Enters into Force ¶ 6 (Sept. 12, 2020), https://www.singaporeconvention.org/ media/media-release/2020-09-12-singapore-convention-on-mediation-enters-intoforce. The number of countries that signed the Singapore Convention initially (46)
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contrasts sharply with the number that initially signed the New York Convention on Arbitration (10), demonstrating an increase in acceptance of Alternative Dispute Resolution in the intervening sixty years. Hew Zhan Tze, The Singapore Convention: An International Mediation Treaty Opens for Signing and Ratification, 37 ALTS. HIGH COST LITIG. 122 (2019). 3. The six countries that have ratified or approved the Convention as of December 2020 are Singapore, Fiji, Qatar, Saudi Arabia, Belarus, and Ecuador. See United Nations Convention on International Settlement Agreements Resulting from Mediation, UNITED NATIONS TREATY COLLECTION, https://treaties.un.org/pages/View Details.aspx?src=TREATY&mtdsg_no=XXII-4&chapter=22&clang=_en#EndDec (last visited Jan. 7, 2021). 4. Id. There are some notable states or groups of states missing as signatories, including the United Kingdom and the European Union. See Simon Everington & Johnny Shearman, The Singapore Convention on Mediation—Lift Off!, LAWYER MONTHLY (Nov. 18, 2020), https://www.lawyer-monthly.com/2020/11/the-singaporeconvention-on-mediation-lift-off/. Most of the EU states already participate in a directive that provides many of the benefits of the Convention, though it has reportedly been considering its options regarding signing on to the Convention. See id. 5. What Is the Singapore Convention on Mediation?, SINGAPORE CONVENTION ON MEDIATION, https://www.singaporeconvention.org/convention/the-conventiontext/ (last visited Jan. 7, 2021) [hereinafter “The Singapore Convention Site”]; see also Everington & Shearman, supra note 4. 6. The Singapore Convention Site, supra note 5. 7. See Paul Mason, The Singapore Convention: A New Avenue for Corporate Counsel, LAW. COM (July 28, 2020, 3:50 pm), https://www.law.com/corpcounsel/2020/07/28/thesingapore-convention-a-new-avenue-for-corporate-counsel/. 8. The Singapore Convention Site, supra note 5. 9. See Mason, supra note 7. 10. In fact, in a survey conducted by the International Mediation Institute, 84% of the business respondents were more likely to “use or increase ...use of mediation in cross border dispute[s] with another party or multiple parties of different jurisdictions if a uniform global mechanism was in place ...to enforce a settlement agreement reached in the mediation process.” David S. Weiss & Michael R. Griffith, Report on International Mediation Enforcement Mechanisms: Issued by the Institute for Dispute Resolution (IDR) NJCU School of Business to the International Mediation Institute for the Benefit of Delegates Attending the UNCITRAL Working Group II (Dispute Settlement) 67th Session (2017), https://imimediation.org/research/surveys/survey-enforceabilitymediated-settlement/. 11. U.S. CONST. art. II, § 2.
Early Dispute Resolution No Jury, No Trial, No Problem:
A New Form of Dynamic Mediation Is Helping to Unclog Harris County’s Civil Dockets
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By Michael A. Hawash and Judge Jim F. Kovach ith the backlog of cases growing over COVID-19, Judge Jim Kovach worked with mediator Michael Hawash to pilot a new dispute resolution process, known as Early Dispute Resolution (“EDR”), to resolve cases that may otherwise be languishing on a stalled, pandemic trial docket. The success of the program indicates other courts in Harris County and elsewhere may wish to do the same. The Growing Backlog of Cases Traditional litigation has ground to a halt with the COVID-19 pandemic. In-person discovery has all but disappeared. According to the Texas Office of Court Administration, the number of juries that were seated between April and October 2020 has declined almost 80%.1 The right to jury trial is fundamental to our justice system and guaranteed by the Sixth and Seventh Amendments to the U.S. Constitution. Consequently, throughout the pandemic, Harris County courts have continuously been looking for means to safely resume jury trials. On September 14, 2020, the District Courts announced that tireless efforts by the Harris County Courts, District Clerk, and Commissioners Court to find a solution had paid off: in-person jury selection could safely resume by holding voir dire at NRG Arena.2 Although county officials deserve considerable credit for implementing this novel and creative solution, the practical reality is only a limited number of jury panels can be safely accommodated at any one time. Further, due process and other concerns mean priority must be given to criminal, family, and juvenile cases. Although it appears that vaccines for COVID-19 are effective, the logistics of mass immunization make it likely that the pandemic will be with us well into 2021. Meanwhile, despite the best efforts of the county, the backlog of civil cases continues to mount
as virus-related risks to jurors, lawyers, judges, and court personnel leads to unavoidable delays getting cases to trial. With obtaining discovery difficult and the chance of jury trial fleeting, resolving cases out of court is proving to be equally daunting, with continuances making it almost impossible to set a firm trial date. As every litigator knows, it can be very challenging to “settle on the courthouse steps” without the specter of trial on the horizon. Looking to address the growing backlog of cases, Judge Kovach and Michael Hawash started an early dispute resolution pilot program in June 2020. While EDR has been around in different forms for some time, it is particularly well-suited to use during the pandemic because EDR was specifically designed to avoid lengthy discovery and trials and can be accomplished remotely.3 The Drawbacks to Traditional Mediation The new Harris County form docket control order that went live on April 20, 2020, assumes mediation will be a prerequisite to trial in all cases.4 Traditional mediation, however, has many drawbacks. The mediator is typically not chosen nor a mediation date set until many months into the litigation process and, quite often, not until the eve of trial. Many cases do settle through mediation, but at a real cost to the litigants, as the parties have already incurred substantial expense in discovery and preparing for a trial that is statistically unlikely to occur. As every trial lawyer knows, even without mediation, nearly all cases ultimately settle before trial.5 One way to avoid these massive costs would be to mediate right at the beginning of a case rather than just before a trial setting. However, mediating early in a case poses its own challenges. It’s not unusual that what led to a lawsuit being filed is that the parties’ pre-suit negotiations broke down. At that point, they may then be locked into contrasting views of the dispute and in no mood to rehash settlement talks. Or, even if one or both parties want to restart discussions, they don’t want to appear too eager thehoustonlawyer.com
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to compromise out of a fear of projecting weakness or a lack of confidence in their case. Another early roadblock is that once a suit is filed, both sides may feel they need significant discovery to be able to determine what a fair settlement would be. And while we’d likely prefer not to believe this is the case, some lawyers may want to continue billing for discovery, motions, and trial rather than settling early, unable to forego the revenue they obtain from the traditional timing of settlement discussions. The fundamental question all lawyers need to ask themselves is this: “What serves my clients’ interests best?” Much of the time, what serves clients best is an early, economical and fair resolution of the dispute. EDR provides a structured process to do just that.6
stone unturned or for requests that seek “any and all” documents. Instead, the requests for information should be specifically targeted to only that information needed to form an educated position on the value of the case. The neutral will then work with both sides to trim down the requests to only the “sufficient information” needed and to reduce the risk that any side’s requests could become unduly burdensome. This step should take no longer than five business days.
Step Two: Information Exchange The next step is to exchange the information gathered during the initial dispute assessment. This requires an ethical commitment from each side that they’ll produce the information the other side reasonably requests. If necessary, this step may involve some interviews or short depositions, most likely “off the record.” If a client doesn’t want to produce the information, the attorney must end the process. If trust is an issue, parties may ask the other EDR offers a party and its counsel to declare in writing that procedure to fairly they have made a “Compliant Response” to Information Exchange requests. A Compliant Response and ethically move means: (i) the client has made a reasonably dilicases towards gent, good-faith search for information and docuresolution without ments, and produced the reasonably responsive information and documents; (ii) the client has not the need to narrowly construed requests for information or incur health risks documents to withhold material information or documents; and (iii) party witnesses, or witnesses associated with under the party’s control, have made reasonably in-person discovery responsive and accurate answers to questions.11 This step should take no longer than seven busior live jury trials.” ness days.
The Basics of Early Dispute Resolution (EDR) A basic outline of EDR, based on the Early Dispute Resolution Practice Protocols promulgated by the EDR Institute (a non-profit corporation organized to promote the fair, effective, and ethical use of early dispute resolution principles)7 is as follows: Once an answer is filed, the parties engage a specially-trained EDR neutral/mediator.8 The neutral’s goal is to help parties resolve even contentious disputes economically, fairly, and within 30 days of starting the EDR process.9 The neutral’s training covers the techniques used, the ethical issues that can arise, how to overcome the roadblocks to early resolution, and, depending on the issues and amounts at stake, whether to apply the process flexibly or rigorously. The rigorous approach usually involves the parties contractually committing to an EDR Agreement with terms requiring that they participate in good faith, comply with the higher ethical standards required for the process to work, and undertake confidentiality obligations consistent with other forms of alternative dispute resolution. If either party doesn’t want to participate in the process in good faith, commit to the higher ethical standards, or agree to confidentiality, that party should simply decline to participate in the process. For parties who do want to attempt to find a fair and economical resolution to the dispute in good faith, the process involves four steps.10
Step One: Initial Dispute Assessment The first step of EDR is for the lawyers to obtain a thorough understanding of their clients’ case, generally by reviewing relevant documents and interviewing witnesses. The lawyers will then be able to give the neutral their overview of the case and identify the limited information they need from the other side to make an informed decision as to the fair value of a case. This should be only what the parties need—what in EDR is called “Sufficient Knowledge”—to make that judgment. This is not the time for traditional discovery that leaves no 18 January/February 2021
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‘‘
Step Three: Objective Dispute Valuation Once the parties have Sufficient Knowledge to assess their respective cases, the next step is to undertake an analysis to establish an objective value for the dispute based on defined variables that each party should use, which in turn should set the basis to start meaningful negotiations. Attorneys unfamiliar with EDR often find this to be the most difficult step in the EDR process as they are not used to being forced to think about the true value of a case, let alone disclose their opinions to the other side. However, it is essential to the integrity of the EDR process that disputes are valued using objective criteria, and once completed, the objective values are shared with all sides. Although different causes of action and complex cases may require some tinkering with the specific questions that need to be answered to conduct this step effectively, there are four basic questions that are common to most disputes: 1. How much does each side expect to spend in attorneys’ fees and expenses to take the case through trial?
2. What would be the best and worst outcome for each side at trial?12 3. Recognizing that the worst and best outcomes simply set outer limits, what is the most likely range of damages (high, middle, low) on the core claims/counterclaims in the dispute? 4. What is the percentage likelihood of a win or loss at each level of damages identified above? Once each party answers these questions, their responses should be given to the neutral and the other side. This allows each party to know clearly where the other stands and for the neutral to know each party’s view of the case. This evaluation will serve as the basis for the upcoming negotiations to resolve the case. This process should take no longer than four days.
attempt to fully and finally resolve the case. EDR enables the parties to quickly discover the theories and motives of the opposing side. The neutral-driven process also helps identify miscommunications and misunderstandings between the parties. Often, engaging in EDR creates options for resolution that were simply not considered pre-suit. Even if the case does not settle, the parties will return to the courthouse much more knowledgeable about the case, making eventual settlement that much more likely. EDR in the Post-Pandemic World The pandemic is not going to last forever. There are already in-
Step Four: Final Resolution The final step is to try to resolve the dispute. At this stage, with all the information the parties have learned, they may be able to promptly negotiate a settlement. The neutral can aid in this negotiation or, if informal talks aren’t successful, conduct a formal mediation. If a formal mediation is necessary, it should be a much shorter process where real negotiation and bargaining occur much sooner than what is typical in traditional mediation. This step should take no longer than six days. What if the Parties Fail to Settle? Even if the parties cannot reach a resolution through EDR, all is not lost. By engaging in EDR, the parties most likely will have narrowed the issues to such an extent that further negotiations may prove fruitful once the factual or legal issues that are causing an impasse can be more fully investigated or resolved. For example, if the parties’ disagreement on the resolution of a dispositive legal issue is preventing settlement (e.g., the application of the statute of limitations on a claim), then it may benefit the parties to file a motion for summary judgment on a discreet legal issue or even to engage an arbitrator in a limited role to resolve a factual or legal dispute. With the issue out of the way, the parties can then re-engage the neutral to thehoustonlawyer.com
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dications that vaccinations from multiple sources may herald a return to some semblance of normalcy by the second or third quarter of 2021.13 In the meantime, the backlog of cases awaiting jury trials in Harris County courts continues to grow. Instead of waiting for in-person discovery and jury trials to return to pre-pandemic levels, EDR offers a procedure to fairly and ethically move cases towards resolution without the need to incur the health risks associated with in-person discovery or live jury
trials. EDR can also bring much needed certainty to parties that cannot wait for a delayed resolution to their dispute. But importantly, the benefits of EDR go beyond the pandemic. Once lawyers, courts, and clients are exposed to the possibility of resolving almost any dispute in 30–60 days without the need for extensive litigation, EDR should remain a viable alternative to “litigation as usual” once the pandemic is relegated to history. Michael A. Hawash is the founder of Hawash Houston Mediation, where he routinely serves as a mediator, arbitrator, and EDR neutral. Michael serves on the Early Dispute Resolution Committee of the American Bar Association and is a board member of the EDR Institute, a non-profit corporation organized to educate lawyers, judges, neutrals, businesses, and the general public about EDR principles and benefits. For more information on EDR, go to www.TexasEDR.com. Judge Jim F. Kovach is the presiding judge in Harris County Civil Court No. 2 and served two terms as the Administrative Judge for the Harris County Civil Courts at Law. In June 2020, Judge Kovach instituted an EDR pilot program in his court that gave litigants the option to voluntarily engage in an Early Dispute Resolution process in lieu of traditional mediation. Endnotes
1. The Texas Office of Court Administration reports that 97 juries were selected in Harris County civil courts between January and March 2020, compared to 20 between April and October 2020 (data on file with author). 2. Harris County Resumes In-Person Jury Duty, ABC13 HOUSTON (Sept. 20, 2020), https://abc13.com/in-person-jury-duty-harris-county-district-clerk-marilynburgess-court-covid-19/6453903/. 3. EDR principles have been described in a number of similar approaches under the names: Planned Early Dispute Resolution, Planned Early Negotiation, Guided Choice, Early Active Intervention, and Early Intervention Mediation. 4. According to the Harris County Civil District Courts, this new form should be used “in almost all Civil District Courts whenever a new DCO is issued in a case.” Civil District Courts New Form Scheduling and Docket Control Order, DIST. COURTS OF HARRIS CNTY., https://www.justex.net/Article. aspx?ArticleID=1271 (last visited Jan. 7, 2021). Nevertheless, individual judges enjoy great leeway to order or not order mediation or some other form of alternative dispute resolution. 5. According to recent statistics, 95% of all cases settle before trial. What Percentage of Lawsuits Settle Before Trial? What Are Some Statistics on Personal Injury Settlements?, LAW DICTIONARY, https://thelawdictionary.org/article/ what-percentage-of-lawsuits-settle-before-trial-what-are-some-statistics-onpersonal-injury-settlements/ (last visited Jan. 7, 2021). 6. There is no generally-accepted procedure for EDR. The EDR Institute has drafted and continually updates its own “Early Dispute Resolution Practice Protocols.” It is the opinion of the authors that these EDR Practice Protocols should be the standard for EDR practitioners. The latest version of the EDR Practice Protocols can be found at https://edrinstitute.org/latest-protocols/. 7. Early Dispute Resolution, EDR INST., www.EDRinstitute.org (last visited Jan. 7, 2021). 8. For purposes of this article, “EDR neutral” and “EDR mediator” are synonymous. 9. Sixty days may be required to resolve more complex disputes. 10. See, e.g., TEX. CIV. PRAC. & REM. CODE § 154.073 (providing for confidentiality in alternative dispute resolution procedures). 11. EDR INST., EARLY DISPUTE RESOLUTION PRACTICE PROTOCOLS 6.4 (July 20, 2020), https://edrinstitute.org/latest-protocols/#_Toc21941138. 12. See ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (2d ed. 2011), for a description of best alternative to a negotiated agreement (“BANTA”) and worst alternative to a negotiated agreement (“WANTA”). 13. Carlie Porterfield, Here’s when Experts Say Things Could Get Back to Normal After Coronavirus, FORBES (Nov. 15, 2020), https://www.forbes.com/sites/ carlieporterfield/2020/11/15/heres-when-experts-say-things-could-get-backto-back-to-normal-after-coronavirus/?sh=df016bc36ed8.
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Arbitration Dispositive Motions in Arbitration:
A
Cracking Open the Black Box
By Denise Peterson rbitration has the feeling of a black box because of its inherent confidentiality. Motions, pleadings, and arguments go in one side and rulings and orders out the other. What occurs in the middle often feels much like a mystery, especially where dispositive motions are concerned. I would like to crack open that black box to shed some light on the mysteries of dispositive motions and their hidden value to the legal practitioner. The ongoing COVID-19 pandemic has clogged arbitration dockets and further delayed case resolutions that arbitration was designed to forestall. While not historically a strategy with a high success rate, arbitrators’ personal opinions concerning entertaining and granting dispositive motions may bend to the practicalities and limits of time and the parties’ pressing needs for finality. In court-based litigation (as opposed to arbitration), dispositive motions are a standard step in most civil suits. Once a petition is filed and answered, the natural next step is for the defendant to file a motion to dismiss, in whole or in part, if grounds can be found. After the fact gathering process comes motions for summary judgment by either side, sometimes simultaneously, based on either lack of evidence or overwhelming dispositive evidence. The arbitral model does not work well with these motions because it is an expedited process that also ensures the parties a full hearing before a finder of fact, which dispositive motions short-circuit. Nonetheless, not every claim or defense is factually or legally sufficient to reach a hearing on the merits. Arbitration should be inherently faster and more cost-effective, so arbitrators must be open to appropriate motions that allow for disposition. However, because of arbitration’s conclusory nature, which prohibits appeals except in exceptional circumstances, arbitrators are mindful that parties obtain appropriately full and fair hearings with an opportunity to be heard. That opportunity to present their case to a third party may be an important, and perhaps overlooked, psychological need for some clients. Discussing dispositive motions in domestic arbitrations feels
like peeling an onion—there’s always another layer, and sometimes you feel like crying. Even worse, peel too far, and you might be left with nothing. So let’s start with the basics. Authority for Use of Dispositive Motions in Arbitration Both the Texas Arbitration Act (TAA) and the Federal Arbitration Act (FAA) are silent on the use of dispositive motions. This does not mean these motions cannot be used; courts have overwhelmingly held that arbitrators have the implicit power to grant these motions even without an explicit grant of authority. The American Arbitratrion Association (AAA) and JAMS both provide in their rulesets for dispositive motions. The AAA adopted Rule 33 in its commercial rules in 2013, and courts have consistently ruled in favor of the use of dispositive motions in arbitration ever since. AAA’s Rule 33 states: The arbitrator may allow the filing of and make rulings upon a dispositive motion only if the arbitrator determines that the moving party has shown that the motion is likely to succeed and dispose of or narrow the issues in the case.1 JAMS’s Rule 18, which is part of the comprehensive arbitration rules and procedures effective July 1, 2014, states: The arbitrator may permit any Party to file a Motion for Summary Disposition of a particular claim or issue, either by agreement of all interested Parties or at the request of one Party, provided other interested Parties have reasonable notice to respond to the request.2 As a practical note here and a practice hint, while the “may” can feel like an impossible obstacle, the carrot for the arbitrator is that even if the arbitrator cannot dispose of the case, a dispositive motion may provide an opportunity to eliminate unsupportable claims which will streamline not just the particular case but the overall docket as well. Convincing the Arbirator(s) to Allow the Motion Note that both the AAA and JAMS rules on dispositive mothehoustonlawyer.com
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tions are permissive. It is up to the arbitrator(s) to decide if the arbitrator(s) should entertain such a motion. Generally, appending a cover letter to the appropriate motion explaining why such a motion fits the Rule’s requirements or sending it in ahead of time is appropriate. I tend to prefer the motion and letter submitted together. The mechanics and timeline of such submissions should be discussed during the pre-hearing conference. The explanation of “why” a motion is appropriate must encompass, explicitly in the AAA rule and implicitly in the JAMS rule, that the motion is “likely to succeed.” “Likely to succeed” isn’t just an issue about the merits of a case for an arbitrator but also requires the arbitrator to avoid violating one of the fundamental principles that underpin an arbitration: ensuring the rights of the parties are preserved. In a scheme where appeals are prohibited except in exceptional circumstances, arbitrators are naturally leery of curtailing parties from presenting their full cases. While the avenues for appeal are “grudgingly narrow” for vacating an arbitral award,3 they are never far from the mind of an arbitrator when dispositive motions are in play. “An arbitrator typically retains broad discretion over procedural matters and does not have to hear every piece of evidence that the parties wish to present.”4 To win on appeal, “vacatur is appropriate only when the exclusion of relevant evidence ‘so affects the rights of a party that it may be said that he was deprived of a fair hearing.’”5 In presenting a dispositive motion, the movant must show that a ruling in its favor will not abuse this standard. Disputed issues, questions of law, or issues that require clarification are unlikely to be successful in a dispositive motion. When drafting a letter requesting leave from the arbitrator(s) to file a dispositive motion, the lawyer should be clear that none of these are in play, or if they are, provide the reasons why their existence is overcome. Presenting the Motion If a party is allowed to file a dispositive motion, there will be strict limits placed upon the scope of the motion by the arbitrators, from page length to the length of time to present arguments. Parties should not expect extensions of time to draft and present such arguments. Additionally, parties should ensure that dispositive motions are handled in the scheduling conference, so there are no surprises. Litigation bombshells and arbitrations do not make good bedfellows. Chance of Success What is the likelihood of a dispositive motion being granted? Truthfully, historically very low. Edna Sussman, a New Yorkbased arbitrator, conducted a survey in 2015 which revealed two things: one out of five arbitrators had never granted a dispositive motion, and of those who did, they had done so only a handful of times.6 22 January/February 2021
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The Financial Industry Regulatory Authority (FINRA) publishes statistics every year on how its securities dispute resolution forum’s cases are resolved. For 2019, the statistics broke down as follows: 527 (13%) after a regular hearing, 513 (13%) after mediation, 343 (9%) were withdrawn, 2,269 (57%) by direct settlement by parties, and 12 cases (0%) by special proceeding hearing, which is where dispositive motions fall (these percentages do not add up to 100% because paper submission and other unhelpful categories are excluded). So for FINRA cases, apparently only 12 resolved through dispositive motions in 2019. 7 Further to these disheartening stats, most arbitration schemes are a loser-pays scenario; this begets the question of why, then, should such a motion be filed? To do so means driving up legal costs for your client with an exceedingly low chance of success. Risking considerable expense with little to no chance of achieving the end goals is a difficult sell to make to any client except in the most fitting cases. I cannot speak for other arbitrators, but I personally appreciate dispositive motions even in scenarios where I know I am unlikely to grant them. This is especially true in cases with complicated backgrounds, unique facts, anticipated complex discovery issues, or that present an arcane and new area for consideration, such as how COVID-19 and force majeure clauses are going to clash. It is an opportunity to educate the arbitrators about your case and lay out a roadmap of what lies ahead should the motion not be granted. A Note to Arbitrators: Issue a Written Decision Speaking to my fellow arbitrators, when granting or denying a dispositive motion, it is critical here to issue a written decision setting forth the reasoning and noting in painstaking detail why excluded evidence and prevention of discovery was immaterial or absolutely material and required to prevail. Especially on the granting of a motion, the arbitrator ought to detail how, for example, the statute of limitations’ expiry precluded the hearing of any evidence of the underlying cause of action. As COVID-based litigation and arbitrations kick in, expect a fair amount of cases that may be disposed of or narrowed based on the underlying contracts’ restrictions as to what is covered or even standing issues. Ultimately, requesting these motions will be like water wearing away a stubborn wall. Eventually, the wall will wear enough to let some through, and then the dam will weaken and break. Useful educational tools, potentially able to streamline claims and timelines, dispositive motions are here to stay and perhaps even modify the process permanently. Denise Peterson is a full-time professional neutral, focusing her practice exclusively on alternative dispute resolution services. She mediates both civil and probate cases and is on multiple arbitration panels. Now in her tenth year of practice as
an attorney, she is licensed in both the states of Texas and New York, and she is a solicitor to the Senior Courts of England and Wales. Endnotes
1. Commercial Arbitration and Mediation Procedures R. 33, AM. ARBITRATION ASS’N (Oct. 1, 2013), https://adr.org/commercial (emphasis added). 2. Comprehensive Arbitration Rules & Procedures R. 18, JAMS (July 1, 2014), https:// www.jamsadr.com/rules-comprehensive-arbitration/ (emphasis added).
3. Eljer Mfg. Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1253 (7th Cir. 1994). 4. Int’l Union, United Mine Workers of Am. v. Marrowbone Dev. Co., 232 F.3d 383, 389 (4th Cir. 2000) (citing Hoteles Condado Beach v. Union de Tronquistas, 763 F.2d 34, 38 (1st Cir. 1985)). 5. Hoteles Condado Beach, 763 F.2d at 40 (quoting Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 594, 599 (3d Cir. 1968)). 6. See Edna Sussman, The Arbitrator Survey—Practices, Preferences, and Changes on the Horizon, 26 AM. REV. INT’L ARB. 517, 523 (2015). 7. 2019 Dispute Resolution Statistics, FINRA, https://www.finra.org/arbitrationmediation/dispute-resolution-statistics/2019 (last visited Dec. 13, 2019).
Arbitration
Too Late to Arbitrate? Not Necessarily Under Texas’s Statutes of Limitations
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By Avi Moshenberg claimant initiates arbitration against your client, alleging your client breached the contract ten years ago. No one disputes the alleged breach happened then. No grounds for equitable tolling exist. And everyone agrees Texas law applies under the contract’s arbitration clause. Perfect. You’ve got your client’s defense all figured out. The claim is obviously time-barred by Texas’s four-year statute of limitations, right? Well, not necessarily. It turns out that whether any of Texas’s statutes of limitations apply to arbitration is an unresolved question. Based on reviewing the caselaw, in fact, that question has gone unaddressed altogether. To be sure, just because no court has expressly held that these statutes apply in arbitration doesn’t mean they don’t. But the plain language of these statutes might. That’s because Texas’s statutes of limitations all set the limitations period in terms of when a person must “bring suit.”1 The question that naturally follows is whether arbitration qualifies as a “suit” within the meaning of these statutes. Without any guidance from the courts, the answer appears to be up to the advocate. There are good arguments on both sides. Arguments That Statutes of Limitations Apply in Arbitrations Those who claim statutes of limitations apply in arbitration can peddle the statutes’ purpose. After all, the Supreme Court of Texas has recognized that “statutes of limitations are designed 24 January/February 2021
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to compel the assertion of claims within a reasonable period while evidence is fresh in the minds of the parties and witnesses and to prevent litigation of stale or fraudulent claims.”2 Barring the use of these statutes in arbitration would of course undermine this policy goal. Indeed, if statutes of limitations didn’t apply to arbitrations, claimants could assert claims decades after their causes of action accrued. This concern rests against the backdrop of Texas’s Code Construction Act (CCA), which provides guidance as to how words and phrases within statutory provisions should be construed (such as the construction of words and phrases in the statutes of limitations codified in the Civil Practices and Remedies Code).3 Under the CCA, it is presumed that the legislature intended a “just and reasonable result” when enacting the statutes of limitations.4 Moreover the statutes’ objective and the consequences of a particular construction must be considered.5 Given the CCA’s instruction, one would be hard-pressed to adopt a position that permits a claimant to first assert claims in arbitration decades after the evidence and witnesses’ memories have corroded. Making this argument would be especially difficult if nothing in the arbitration clause indicates these statutes don’t It turns out that apply. Additionally, many arbitration whether any of clauses state that all Texas laws Texas’s statutes of apply—including all substantive and procedural laws. And if unlimitations apply to der Texas’s substantive and proarbitration is an cedural laws the claims would be time-barred, then the outcome unresolved shouldn’t change simply because question.” the claims are being asserted in a conference room before a panel of lawyers instead of a courtroom before a judge. As one colleague expressed to me: How is arbitration an alternative forum for resolving disputes, if no dispute would exist had the dispute been raised in a Texas court? Finally, it’s worth mentioning that a handful of courts have
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confirmed arbitration awards where arbitration panels applied statutes of limitations.6 In SSP Holdings Ltd. v. Lopez, for example¸ the court upheld an appellate arbitration-panel ruling that granted summary judgment on statute-of-limitations grounds.7 Similarly, in Saiz v. Susser Holdings Corp., the court upheld a final award by an arbitrator “granting the motion for summary judgment and concluding Saiz’s claims were barred by limitations.”8 The problem is that whether arbitration is a “suit” under the statutes of limitations was not expressly before these courts. These cases, therefore, have limited precedential value. Arguments That Statutes of Limitations Do Not Apply to Arbitrations On the other hand, advocates who claim statutes of limitations do not apply in arbitration can focus on the plain meaning of “suit,” which is understood to be a legal proceeding in a court. And they would have authorities to lean on for support, including Black’s Law Dictionary. While there are no cases considering whether an arbitration is a “suit” under the statutes of limitations, courts in other contexts have defined “suit” to be a type of proceeding in a court. The Supreme Court of Texas (“SCOTX”), for instance, explored the historical roots of the term “suit” and its companion “action,” and determined that “[h]istorically, ‘action’ referred to a judicial proceeding in a court of law, while ‘suit’ referred to a proceeding in a court of equity.”9 A year later in a different context, the SCOTX defined “suit” as a demand of one’s rights in court.10 A month later in yet another context, the SCOTX reiterated “that ‘suit’ commonly refers to a proceeding in court.”11 The high court even clarified that “[a]lthough the word is sometimes defined more generally as ‘the attempt to gain an end by legal process,’ the more specific connotation is an attempt through process in court.”12 Given how the SCOTX has defined “suit,” and the absence of any legislative history to illuminate what this term means, one
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could easily agree that the use of “suit” in the statutes of limitations refers to court proceedings, not arbitration proceedings. How Other States Have Handled This Problem Reviewing other authorities outside Texas caselaw only highlights how unsettled the issue in Texas is. After all, the red flag as to whether similar statutes of limitations apply in arbitration has been raised, adjudicated, and written about for years.13 Statutes of limitations in jurisdictions across the country have set time limits to bring “actions,” “civil actions,” or “proceedings.”14 In most cases, the statutes do not expressly encompass or exclude arbitration, and courts have therefore been forced to interpret these statutes, resulting in opinions that span the spectrum. Some have accepted the application of these statutes to arbitrations. Some have rejected the application of these statutes to arbitrations. Others have chosen to punt the question to the arbitrators to answer.15 More specifically, at least three state supreme courts declined to apply state statutes of limitations to arbitration given the language of the statutes—including the statutes’ use of terms like “actions”—and the general purpose of arbitrations to resolve disputes informally.16 Other intermediate and trial courts around the country reached the same conclusion.17 Meanwhile, one state supreme court determined that a statute of limitations requiring a person to bring an “action” within the specified time applied to arbitrations also.18 And the Third Circuit Court of Appeals allowed a Delaware statute of limitations to apply in arbitration—to prevent causes of action from being arbitrated in perpetuity.19 So, for those keeping score, a small majority of courts have declined to extend statutes of limitations to arbitrations absent express statutory language stating that limitations apply in these forums as well. For those wondering whether some state legislatures have provided such express language in their statutes, the answer is yes. In fact, following one state supreme court’s holding that limitations did not apply to arbitrations, the legislature amended the state’s arbitration law to clarify that an arbitrated claim is subject to the same limitations periods as if the claim had been asserted in a court.20 At least two other states have also specified in their statutes that limitations periods apply to claims in arbitrations.21 Texas Solutions To be sure, how other states have handled their statutes of limitations doesn’t answer whether Texas’s statutes of limitations apply to arbitrations. But their experiences do help crystalize the way to answer that question in the long and short terms. In the long term, it seems that this issue will need to be resolved by the SCOTX or by the Texas Legislature. The arguments on both sides are simply too compelling to expect anything less than a split of authorities on the matter. Our high 26 January/February 2021
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court or legislature will need to tackle that split, which of course may take years to transpire. And for you Texans who refuse to wait for the government to solve your problems, take comfort in one short-term fix—the arbitration clause. Let’s not forget that arbitration is a creature of contract. The parties to the arbitration agreement are welcome to tweak the clause’s language to expressly carve in or carve out limitations periods. In fact, they can even set their own limitations periods (within reason). While this solution doesn’t solve the problem at the state-policy level, it can solve problems for your clients. Therefore, be sure to educate your clients about this issue and counsel them on how to craft an arbitration clause that fits their needs and expectations. And in the meantime, I’ll keep you posted on how this issue develops. Avi Moshenberg is a senior commercial and employment litigator with McDowell Hetherington and a member of The Houston Lawyer editorial board. Endnotes
1. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 16.002–04. 2. See Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 199 (Tex. 2003) (internal citations omitted); see also Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex. 1977). 3. TEX. GOV’T CODE ANN. § 311.001–.02; TEX. CIV. PRAC. & REM. CODE ANN. §§ 1.002, 16.003. 4. TEX. GOV’T CODE ANN. § 311.021. 5. Id. § 311.023. 6. See, e.g., In re Chevron U.S.A., Inc., 419 S.W.3d 341, 345 (Tex. App.—El Paso 2010, no pet.). 7. See SSP Holdings Ltd. P’ship v. Lopez, 432 S.W.3d 487, 497–501 (Tex. App.—San Antonio 2014, pet. denied). 8. Saiz v. Susser Holdings Corp., No. 04-14-00487-CV, 2015 WL 1089605, at *1–2 (Tex. App.—San Antonio 2015, no pet.). 9. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563–64 (Tex. 2014) (citing BLACK’S LAW DICTIONARY 29 (7th ed.1999)). 10. In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 704 (Tex. 2015) (citing Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex.1995)). 11. McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., 477 S.W.3d 786, 791, 791 n.27 (Tex. 2015) (citing BLACK’S LAW DICTIONARY 1603 (rev. 4th ed. 1968)). 12. Id. at 791 n.28 (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 2286 (1961)). 13. See, e.g., Gary B. Born & Adam Raviv, Arbitration and the Rule of Law: Lessons from Limitations Periods, 27 AM. REV. INT’L ARB. 373, 422 (2016); Lara K. Richards & Jason W. Burge, Analyzing the Applicability of Statutes of Limitations in Arbitration, 49 GONZ. L. REV. 213 (2014); David A. Weintraub, When Do Statutes of Limitations Apply in Arbitration?, 81 FLA. BAR J. 25 (Oct. 2007); Craig P. Miller & Laura Danysh, The Enforceability and Applicability of a Statute of Limitations in Arbitration, 32 FRANCHISE L.J. 26 (Summer 2012); Charles F. Forer, Does the Statute of Limitations Apply in Arbitration?, LEGAL INTELLIGENCER (Sept. 10, 2013). 14. Born & Raviv, supra note 13, at 375 (citing CONN. GEN. STAT. ANN. § 52-576 (West 2014); ME. REV. STAT. tit. 14, § 752 (2014); FLA. STAT. § 95.011 (2005)). 15. Id. 16. Id. at 375–77 (discussing In re Estate of Hume, 176 P. 681 (Cal. 1918); Har-Mar, Inc. v. Thorsen & Thorshov, Inc., 300 Minn. 149 (1974); Lewiston Firefighters Association v. City of Lewiston, 354 A.2d 154 (Maine 1976)). 17. Id. at 377–79 (discussing Cameron v. Griffith, 370 S.E.2d 704 (N.C. 1988); Skidmore, Owings & Merrill v. Conn. Gen. Life Ins. Co., 197 A.2d 83 (Conn. 1963); Broom v. Morgan Stanley DW Inc., 236 P.3d 182, 188 (Wash. 2010) (en banc); Son Shipping Co. v. De Fosse & Tanghe, 199 F.2d 687 (2d Cir. 1952)). 18. Id. at 380 (discussing Raymond James Financial Services, Inc. v. Phillips, 126 So.3d 186 (Fla. 2013)). 19. See Nat’l Iranian Oil Co. v. Mapco Int’l, Inc., 983 F.2d 485, 487 (3rd Cir. 1992). 20. Born & Raviv, supra note 13, at 381 (citing WASH. REV. CODE § 7.04A.090(3)). 21. Id. at 381–82 (discussing GA. CODE ANN. § 9-9-5(a); Southern Telecom, Inc. v. Level 3 Commc’ns, LLC, 671 S.E.2d 283, 286 (Ga. Ct. App. 2008); N.Y. CPLR § 7502(b)).
Arbitration
Top 5 Ways to Lose Arbitration Business
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By Daniel Goldberg
1. Having a Poor Temperament “Oh, so and so is a good arbitrator.” What does that mean? Answer: temperament. You know, a certain je ne sais quoi. Some helpful qualities? Good arbitrators listen; prepare; care to make the right decision; and (critically) are decisive. Hint: good mediators often find the way to split the baby, or threaten it. Not so with arbitrators.
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ou should be proud of yourself. You are smart, ex2. Forgetting to Stick to YOUR Rules perienced, connected and have a rewardOn the first conference call with the lawyers, ing legal career behind you to boast of. decide upon the procedure to use. TRCP? Even more exciting, you made the big deFRCP? Customize something? Go by an Ascision to become an arbitrator. Who else in our ...the following five sociation’s guidelines? Sure. All are fine. Just profession can begin a new career this late in life that still builds on all the accumulated wealth tips will help you stay consistent to the decision. Truthfully, some of your “customers” will complain if of knowledge and networks of colleagues – and learn how to avoid you go this way (“So much discovery? This is might earn more for doing less? By this point, you’ve likely done your research losing the business arbitration? How could you?”), or that (“This is a lawsuit to pursue justice? How can I do on how to pick up arbitration work. This article you get.” my job without any depositions and only 10 will not help you there. However, the following RFPs?”). But 100% of all litigators will despise five tips will help you learn how to avoid losing the arbitrator who flip flops. the business you get—that is, how to make your litigants into repeat customers.
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3. Being Too Rigid at all Costs, Especially as to Timing We all got the sales pitch: Arbitration is cheaper! Faster! Now in technicolor! Thanks. But arbitration is also intended to be more flexible than the courts. Consider the continuance, even if it punctures your tight calendar, or busts a form contract’s unrealistic timeline. 4. All Your Implicit Biases All humans are biased about something. And arbitrators with repeat business overcome those biases to ensure fairness (i.e. due process). Call me naïve, but I truly believe that most arbitrators would never allow race, ethnicity, gender or sexuality to influence them. You know what would though? • Big Firm v. Little Firm; • Alma Mater v. Alma Mater; and • This lawyer v. that lawyer. But the little firm lawyer might be really involved in lawyer networks. And that hot shot graduate of FancyPants School of Law might have a terrible case; worse, he might never return, as your alma mater might be beneath his standards (even if y’all graduated from the same program).
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Finally, even the crumply shirted shlub lawyer and the crumbling briefcase might represent the good guy. Give up on aspirations of sainthood. Just remember: biased decisions lose business.
5. Forgetting Your Bedside Manners? No, these customers most certainly are not always right. But they are still your customers. Just as you may avoid badgering a party, consider avoiding the following (especially in front of the lawyers’ Finally, even the clients): belittling them; pointing out their perceived screw ups; and reciprocating well crumply shirted wishes with grunts. Godspeed with this career choice. Here’s to shlub lawyer and the it being a long and fruitful one for you. crumbling briefcase
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might represent the good guy. Give up on aspirations of sainthood. Just remember: biased decisions lose business.”
Daniel Goldberg is a 14-year civil trial lawyer; 2006 South Texas College of Law graduate; co-partner of Goldberg Law with his far more impressive immigration-attorney/municipal court judge wife, Sara Goldberg; father of more children than he knows what to do with; chicken-raiser; failed vegetable farmer; multiaward winning chili cookoff captain; and proud HBA member.
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Dispute T Resolution Center Turns 40 By David E. Harrell, Jr.
he Dispute Resolution Center of Harris County (the “Center”)—one of the Houston Bar Association’s ancillary organizations—turned 40 in 2020. Originally known as the Neighborhood Justice Center, the HBA formed the Center as a way to provide low-cost dispute resolution services for issues that were better addressed through a dispute resolution procedure rather than in the court system. Announcing the formation of the new Center, the HBA observed: The importance of providing citizens with a means to resolve their minor disputes is seen in the Houston newspapers every day. Many crimes result from arguments between persons who have known one another in the past. It is with the “prior ongoing interpersonal relationship” that a neighborhood justice center is most effective because of the elements of cooperation, compromise, and understanding involved in the mediation process.
Mediation is the facilitation of compromise through the efforts of a trained mediator. It allows the parties to constructively vent their frustrations and hostilities, express their wants and needs openly, and, ultimately, to reach an agreement Justice Frank Evans and James B. Sales were instrumental in founding the Dispute Resolution Center, known as the Neighborhood Justice Center until 1991. Pictured here, from left, 1988-89 HBA President Hon. that they can and Ewing Werlein, Jr., Justice Evans, Sales, and Kim Kovach, former DRC executive director. want to live with. Statistics from other centers show that when two people participate in the solution of their own problem, they are more likely to abide by the
terms of the solution. The theory behind this method of dispute resolution is that minor disputes often become serious crimes, but by resolving a dispute during its early stages, further difficulties may be avoided.1 To provide that community service, the Center originally operated out of the County Criminal Courthouse and provided resolution services for disputes referred by the district attorney’s office and the attorney general’s office, with the goal of resolving disputes before they reached litigation. In 1991, the Neighborhood Justice Center officially became what is now known as the Dispute Resolution Center (DRC), governed by the HBA’s Alternative Dispute Resolution Committee. Only a few years after it opened, the DRC began to participate in a national pilot project called the Multi-Door Courthouse, co-sponsored by the American Bar Association’s Special Committee on Dispute Resolution. The program
focused on providing a coordinated system for referring citizens to the most appropriate dispute resolution process for their particular problem. The process involved interrelated networks linking small claims courts; justices of the peace; volunteer lawyers; legal aid offices; lawyer referral services; district, county, and city attorney offices; and other governmental and private service agencies.2 Harris County’s DRC was one of three national locations selected for imple-
menting the Multi-Door Courthouse program. Since those early foundations, the DRC has grown to become “a one-stop dispute resolution resource for our community,” says Executive Director Nick Hall. Cases referred to the DRC now cover a broad spectrum of dispute resolution matters: small claims, family court disputes, probate issues, county and civil district court cases, Child Protective Services cases, and juvenile cases. “The DRC continual-
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ly strives to provide superior alternative The DRC has historically focused on dispute resolution services for residents the needs of all Harris County residents, of Harris County,” Hall says. and it will continue to Any person in Harris Coundo so while also addressty may use the services the ing the needs created by DRC offers, without charge. the COVID-19 pandemic Since those and the stress on justice The DRC has a board made up of 15 lawyers and early foundations, courts dealing with evicone nonlawyer—all voluntions. DRC services may the DRC has teers. The board has a rotatbe provided at any point grown to become in a dispute, both before ing two-year commitment, with half of the board mema ‘one-stop and during litigation, as bers changing each year. In well as post litigation. dispute resolution addition to the board, there All services are provided are 11 staff members, as resource for free of charge, with an well as approximately 250 emphasis placed on asour community,’ mediators who volunteer sisting parties who might covering a broad not otherwise have acthroughout the year. Before participating as mediators, spectrum of cess to such services. Pro the volunteers receive 40–64 se parties are always welissues.” hours of training through come at the DRC. the DRC. Last year, the DRC Through the DRC, atprovided dispute resolution services in torneys are giving their time and their over 4,800 matters and accounted for skills to the community, and everyone more than 8,000 volunteer hours; 70% of benefits. those hours came from HBA attorneys. Attorneys exclusively handle family law For more information on the DRC, and probate cases, as well as matters revisit drc.harriscountytx.gov or ferred to the DRC by district courts, such call (713) 274-7100. as contract, personal injury, or homeowner association cases. David E. Harrell, Jr. is a partner at While the COVID-19 pandemic has Locke Lord LLP and chair of the Harris limited the ability to provide traditional County Dispute Resolution Center. He in-person services for several months, serves as First Vice President of the Housthe DRC’s volunteers have embraced ton Bar Association. and adapted proficiently to providing virtual mediations. The DRC’s volunEndnotes 1. Janet Bax, Neighborhood Justice Comes to Houston, teers also continue their work during the HOUS. LAW., Oct. 1980, at 43. pandemic by assisting with eviction dis2. Melinda Ostermeyer, Dispute Resolution Centers: A Comprehensive Approach to Resolving Citizen Disputes, putes, including working with Houston HOUS. LAW., Sept./Oct. 1986, at 13. Volunteer Lawyers to create a program entitled “Facilitating Disputes Between classifieds ads: Landlords and Tenants.” The DRC additionally continues to work closely with the three Houston law schools, provide continuing education programs for area mediators, and streamline and simplify its intake process for the public and atmary@quantumsur.com torneys. Despite the pandemic, on averor call age the DRC continues to advance cases to mediation within one week of case ext. 3 intake.
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Mary Chavoustie 281.955.2449
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Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. Large Firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Kirkland & Ellis LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP
Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company
Mid-Size Firm Champions Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley & Lardner LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP
Porter Hedges LLP ReedSmith LLP Winstead PC Winston & Strawn LLP
Shortt & Nguyen, P.C. Squire Patton Boggs (US) LLP Trahan Kornegay Payne, LLP
Individual Champions Boutique Firm Champions Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP
Small Firm Champions Coane & Associates Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP Rapp & Krock, PC
Law Office of Peter J. Bennett Law Office of Travis A. Bryan I, PLLC Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices McGarvey PLLC Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Pilgrim Law Office Law Office of Robert E. Price The Reece Law Firm, PLLC Law Office of Cindi L. Rickman, J.D. Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Trey Yates Law
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HBA Milestones Liberato Made History as First Woman HBA President
take the value of diversity for granted, I learned how important it was to have diverse leadership of any organization and how it was critical to effective decision-making.” Liberato’s term as president of the HBA also helped her go on to serve as president of the State Bar of Texas.1 Liberato’s election as president of the HBA, and also as president of the State Bar, served as inspiration for other women lawyers in Houston. Paula Hinton, partner at Winston & Strawn, said these events “were very significant for the advancement and power of women litigators/attorneys in Houston.” Hinton By Carly Milner noted that Liberato used her achievements to “open doors for hen President-Elect Jennifer A. Hasley bemany more behind her,” making sure that “other women ascomes president of the sumed positions of power in our local Houston Bar Associabar.” Hinton attributed the start of her tion next year, she will own activities in the HBA, State Bar, be only the fifth woman and American Bar Association to Libto hold that position in the HBA’s 150erato’s leadership and support. Hinton year history. The first woman elected to said, “She is the best in all ways... a the HBA presidency, Haynes & Boone great lawyer, leader and friend.” partner Lynne Liberato, won the posiLiberato’s dedication to diversity, eqtion in 1993, less than 20 years ago. At uity and inclusion has not waned. She the time, her candidacy faced strident has served the community in many opposition. But she felt that “by 1993 leadership roles since she led the HBA. it was time” for a woman to hold this Recently, in response to current presiposition. dent Bill Kroger’s letter to members Prior to running for HBA president, after the death of George Floyd, LibLiberato had served as chair of the erato’s firm, Haynes and Boone LLP, HBA Campaign for the Homeless, edicontributed $10,000 for meaningful tor of The Houston Lawyer, and chair of criminal justice reform. These funds the HBA Continuing Legal Education are being used to support the HBA’s Committee, in addition to participatcreation of an implicit bias education ing in State Bar of Texas committees. and training program for attorneys and cover of The Houston Lawyer when Lynne Liberato This demonstrated commitment to the The became the first woman president of the HBA in 1993. legal staff that is now in development. HBA led to Liberato’s election as presiThree other lawyers, Amy Dunn Taydent, despite opposition. “I believe that I lor, Denise Scofield, and Laura Gibson folbroke the barrier of all-male presidents lowed Liberato as the only other women because lawyers knew that I worked hard to hold the position of HBA president. in the trenches doing bar work and that I Next year, Jennifer A. Hasley will join this loved working with so many of them for list.2 In the HBA’s next 150 years, no doubt the good of the profession,” Liberato said. many more women will serve in this role, “Courage and encouragement caused me to thanks to Lynne Liberato’s courage. enter the race. Without the encouragement of men, especially Judge David Hittner and Carly Milner is a partner at Fogler, Brar, Joel Androphy, I would never have had the O’Neil & Gray, LLP, practicing commercial courage to run for Bar president in the face litigation. of withering criticism.” Readers who have served on HBA comEndnotes 1. Kelley Jones King, The 120th President of the State Bar mittees or in board positions will recogof Texas: Lynne Liberato, 63 TEX. B.J. 550 (June 2000). 2. On April 13, 2021, the HBA’s Gender Fairness Comnize the value Liberato places on her expe- Lynne Liberato at Haynes and Boone. mittee will host an online event featuring a discussion with rience as HBA president. “Being Houston president was pivotal these amazing women. HBA members who are interested in attending this CLE should contact Tara Shockley at taras@hba,org. in my career and to my world view,” she said. “While now we
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Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Ajamie LLP Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Carter Morris, LLP Cozen O’Connor Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Galligan & Manning Germer PLLC Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC Kean | Miller LLP
Kelly, Sutter & Kendrick, P.C. Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Lorance Thompson, P.C. MacIntyre McCulloch & Stanfield, L.L.P. McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs PC Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Echols, Slay & Nelson Archer, P.C. Schiffer Hicks Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Sponsel Miller Greenberg PLLC Sprott Newsom Quattlebaum & Messenger
Strong Pipkin Bissell & Ledyard LLP Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart Boundas Easterby LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Andrews Myers, P.C. Beck Redden LLP BoyarMiller Coats | Rose Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Kane Russell Coleman & Logan PC Liskow & Lewis Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom McDowell & Hetherington LLP Ogletree Deakins Nash Smoak & Stewart, P.C. Yetter Coleman LLP
Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy, Inc. EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals
Firms of 50-100 Attorneys BakerHostetler LLP Brown Sims, P.C.
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SECTION spotlight
International Law Section
Programming Reflects Law Practice in Global City
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The Houston Lawyer
By Seepan Parseghian
s the 2020-2021 Chair of the Houston Bar Association startup, to explore current applications of artificial intelligence in International Law Section (“ILS”), I am proud of our efinternational dispute resolution and the future of the practice of forts this term to highlight Houston’s growth as a global law in a world driven by AI. city. While often overshadowed by other cities like New We are also looking forward to our forthcoming events, which York and Los Angeles on the international stage, Housinclude: a survey of key issues in international law impacted by ton is a global city in its own right. Some accolades on Houston’s rethe incoming Biden Administration with Harold Koh, the former sume are well known: fourth-largChief Legal Adviser to the U.S. State est (soon to be third-largest) city Department and former Dean of Yale in America, energy capital of the Law School; a roundtable on doing world, and site of NASA Johnson business in Mexico; a panel on antiSpace Center. But Houston offers trust investigations in international much more to the global economy. jurisdictions; and much more. It is home to the largest concenIn addition to expanding the thetration of healthcare and medical matic content of our programming, research institutions in the world. the ILS prioritized diversifying its The Port of Houston is the number own leadership to reflect the cosmoone port in the United States in politan makeup of Houston itself. terms of total waterborne tonnage Thus, the 2020-2021 Executive Counand foreign waterborne tonnage, cil has grown to 14 members, who while the Houston Ship Channel International Law Section Chair Seepan Parseghian presides at a bring diverse and essential repreis the busiest waterway in the na- CLE luncheon on doing business with China. sentation to the Section along racial, tion. Houston is also the most ethnically and racially diverse city in ethnic, and gender lines. We will also continue our annual “DiverAmerica, with nearly one in four Houstonians being foreign born. sity and Inclusion in International Practice” event started last year, With a mission to promote education and advocacy of internawhich featured an all-female panel discussing their experiences tional law, the ILS is uniquely positioned to examine Houston’s and challenges navigating a career in international law. And as a varied contributions to the global economy. As a result, we have infirst-generation Armenian-American and son of immigrants from tentionally diversified our programming this term to explore topics Iraq, I am especially honored to serve as Chair of the ILS. like international trade, immigration, international human rights, Finally, as with most everything else, the COVID-19 pandemic and cross-border enforcement of intellectual property. In doing so, has forced the ILS to adjust and think creatively to continue providwe have featured Houston-based lawyers, scholars, policymakers, ing value to the Houston legal community during the pandemic. As and businesspersons who are leading Houston’s transformation. a result, we broke the mold of our monthly luncheons to organize For example, we recently hosted an event titled “Houston as a Globvirtual panels, fireside chats, and tutorials to keep our membership al City: Challenges and Opportunities for International Trade” with engaged and reach a wider audience. Nevertheless, we look forward Christopher Olson, who is the Director of Trade and International to seeing our members in person again, hopefully soon! Affairs for the City of Houston, in which we discussed a wide range of issues from the U.S.-China trade wars to the USMCA. The SecSeepan Parseghian is an associate at Beck Redden LLP, where he tion also held an event titled “The Rise of AI in International Arbifocuses his practice in commercial litigation and intellectual proptration” with Alan Crain, the former Chief Legal and Governance erty disputes. He is the 2020-2021 chair of the HBA International Officer of Baker Hughes and Chairman of the Board of a “legal tech” Law Section.
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A Profile
in pro f e s s i o n a l i s m
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Harry M. Reasoner Senior Partner, Vinson & Elkins LLP Chair, Texas Access to Justice Commission
love many things about practicing law. The camaraderie of working with and against and socializing with great lawyers; the intellectual experience of learning new areas of law and business, from uranium mining and the construction of nuclear power plants to the world tequila market; and the ability to help in giving access to justice in the face of racial discrimination or for people who cannot afford lawyers. Ultimately, I believe what makes the practice of law meaningful and rewarding is adherence to the standards and aspirations of our profession. They are well summarized in The Texas Lawyer’s Creed. For example, your word being your bond will make you a more effective lawyer in any area of the law. Doing pro bono work is both gratifying and gives the opportunity to enhance one’s skills. Trying criminal cases and a class action over the First Amendment rights of the inmates of the Texas Prison System were some of the hardest and most educational cases I have tried. My work at the Texas Access to Justice Commission, with the idealistic goal of seeing that all citizens have access to justice, is one of the most edifying projects I have worked on. In sum, striving to meet professional standards and aspirations is what has made the practice a worthy and admirable enterprise.
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OFF THE RECORD
Tara Taheri:
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The Houston Lawyer
By Nikki Morris
Under the Spotlight
effective choreography for the performers at some of the Houstonhile some attorneys may feel that the practice of law area Chuck E. Cheese restaurants. is akin to putting on a full-on stage production— Tara’s interests are not limited to pop music, and in fact, for sevwith witnesses as cast members, lawyers as proeral years, she was a member of Patriotically Paranoid Insomniac, ducers, and the judge and jury as the audience— a punk metal band that performed all around Houston. Tara not Tara Taheri enjoys spending her free time in the only sang backup and someactual spotlight. When not practicing as a data privacy times lead vocals in the band, and security attorney, Tara can be found writing music, but she also played keyboard choreographing dances, singing, and performing in loand wrote melodies and harcal theater productions. monies for some of the band’s As assistant choreographer, original songs. The band had Tara had her work showcased the opportunity to put out an in Night Court—Houston’s EP, which Tara said was a lot all-lawyer charity show. Night of fun to record. Court is an annual musical Singing and dancing are production put on by lawyers “really cathartic for me,” she explained. Music has been and judges that raises money a particularly important outlet for Tara during the panfor local charities that provide demic, and she has taken up learning bass guitar while free legal services to people in continuing to write music. She has also been singing need in the Greater Houston with the church band at The Story area. Audience members can Houston for more than a year and earn continuing legal education plans to get another band togethcredits—including the elusive er soon. ethics credits. Creativity is also what drew Tara first learned about Night Court while Tara to law. She enjoys the creattending law school and joined the producative aspect of the practice and tion in 2014. She has been involved in each how it allows her to help others. production since. She was an assistant choAlthough her current focus is on reographer in 2015 and then moved into a data privacy and security, Tara’s media relations role. Tara has worked with passion is sports and entertainTV, radio, news, and other media outlets to ment law—an area in which she generate press for the show. She has even had wants to get more involved. In the the opportunity to participate in live intermeantime, Tara can be found perviews and sing and dance on live TV. forming at The Story or in local A Houston native, Tara is no stranger to Shakespeare in the Shade producthe spotlight. She has been dancing and singTara in her media relations role, playing the keyboard and acting. tions, and pandemic-permitting, ing since she was a child. She was active in Tara will take on her new role as Executive Producer for the 30th choir and drill team throughout middle school and high school and anniversary production of Night Court, which is set to premiere in even won an award for “most talented” as a high school senior. In August 2021. college, she continued to develop her love of the arts, earning a degree in music from the University of Houston. While at UH, she sang in the choir and was selected for small ensemble performancNikki Morris is an associate at Baker Hostetler LLP where she praces. She also choreographed dances for the pop choir at Lone Star tices commercial litigation. She also serves on the editorial board for College. She even had a unique opportunity to prepare simple but The Houston Lawyer.
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Committee spotlight
LegalLine:
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Just A Phone Call Away
By Liz Furlow
egalLine is a community service legal outreach protheir personal phone numbers anonymous. The remote Legalgram founded by the Houston Bar Association in Line program also provides lawyers with additional flexibility, 1985. Throughout its 35-year history, the program as lawyers can designate whether they are available for calls has helped service-minded members of the legal comat their lunch hours, instead of the usual 5–8 p.m. slots. The munity open the legal system to the public. changes ensure that volunteer attorneys can provide the same The first and third Wednesimportant services as they days of every month, Houston did in the past from their own lawyers volunteer three hours homes or offices. of their time to answer phone HBA President Bill Kroger calls from Harris County has also guided LegalLine’s residents. Each call lasts apchanging role over the past proximately twenty minutes, few months. He has spearbut lawyers with call lists headed HBA’s efforts to promay dedicate more of their vide additional legal resourctime to a caller as time allows. es on LegalLine’s website. In The volunteer lawyers offer recent months, Legal Line simple legal advice, answer has added extensive online legal questions, and provide resources—from answers to referrals and helpful resourcfrequently asked questions, es over the phone, at no cost Covid-19 resources, links to the caller. Though volunto referral services and help teer attorneys specialize in a hotlines, and even guides variety of fields, the majority teens in need of legal assisof callers seek advice regardtance. These resources help ing family law issues. This the community navigate their year those services are needed legal issues, even before they more than ever, and the Legalregister to make a call. Line committee has risen to the challenge. The program has been so successful that, despite the changBefore Covid-19, HBA hosted a LegalLine hotline in the es, even more lawyers than usual have signed up each month HBA offices. When stay-at-home orders made into serve the community and volunteer for Leperson sessions unfeasible, LegalLine didn’t skip a galLine. From April through June 2020 alone, beat. This year’s co-chairs, Joyce Banks, Ellyn Joover 280 volunteer lawyers answered 1,142 sef, Mitch Reid, Sarah Roark, John Stavinoha, and calls. With the new remote program, it is easier From April through than ever to participate in LegalLine and help Andrew Yeh, successfully transitioned the program from in-person call sessions at the HBA’s offices June 2020 alone, Houstonians in need of advice. If you are interto remote sessions. In many ways, the transition ested in volunteering with LegalLine, visit their over 280 volunteer website at www.hba.org/LegalLine, where you has made LegalLine volunteering more effective. Callers register in advance for their sessions and lawyers answered can sign up for a date and time to serve your provide short descriptions of their legal issues. community. 1,142 calls.” Volunteers have the opportunity to research those issues or consult with others in advance of their Liz Furlow is a litigation associate at Baker calls. And, to ensure the privacy of attorneys, LegalLine proBotts L.L.P. She is the Off the Record editor for The Houston vides attorneys with instructions that will allow them to keep Lawyer.
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LEGAL TRENDS
Electronic Service of Process Via Em@il and Soci@l Medi@: Amendments to Texas Rule of Civil Procedure 106
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The Houston Lawyer
By Brooksie Bonvillain Boutet
his holiday season, Texas attorneys received the gift of alternative service of process via electronic means, effective December 31, 2020. The change was well underway before so many aspects of litigation transitioned from in-person to electronic proceedings due to the coronavirus pandemic,1 yet incredibly timely considering the drastic shifts seen in 2020. The new rules, for example, allow attorneys to electronically serve individuals who are not living at their usual places of abode during the work-from-home era that offers unprecedented location flexibility. However, a court order is still required to take advantage of the new service rules. The attorney requesting electronic service must file a motion supported by “a statement—sworn to before a notary or made under penalty of perjury—listing any location where the defendant can probably be found,”2 with facts showing that service has been unsuccessfully attempted by in-person delivery or mail.3 Then, the court may authorize service “electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.”4 The question, then, is how to show electronic service “will be reasonably effective” notice? The comment provides two factors that courts should consider: 40 January/February 2021
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(1) “whether the technology actually belongs to the defendant”; and (2) “whether the defendant regularly uses or recently used the technology.”5 Email will likely be the simplest option, given many people share email addresses in online business profiles. But unless the attorney seeking service or the client regularly corresponds with the defendant via email, showing the target’s usage may prove difficult. Would sending an email to the defendant and receiving a read receipt be sufficient evidence in support of a motion for substituted service? In the case of social media, if the defendant has a unique name like the author’s, it should be fairly simple to confirm the identity of the account holder and regular use of the account through public postings. Matters will of course be complicated if the defendant has a more common name or privacy settings that shield the user’s posts from the public. In some cases, this may become a fact-intensive inquiry requiring supporting exhibits in the form of screenshots of the target’s social media account. The court smartly included “other technology” to allow for new forms of electronic service as technology progresses. This language also invites practitioners to be creative in seeking alternative methods of service and will surely yield some interesting requests. It will be instructive to see how courts treat motions for substituted service via electronic means. While there will surely be a period of uncertainty under the new rules, the ability to effect service of process electronically should ultimately make service easier and more cost effective. Brooksie Bonvillain Boutet is a trial attorney at Shipley Snell Montgomery LLP and a member of The Houston Lawyer editorial board, where she also serves as host of Behind the Lines: The Houston Lawyer Podcast.
Endnotes
1. This In 2019, the Texas Legislature expanded the Texas Civil Practice and Remedies Code to add § 17.033, Substituted Service Through Social Media Presence, which instructed the Supreme Court of Texas to “adopt rules to provide for the substituted service of citation by an electronic communication sent to a defendant through a social media presence.” Tex. Civ. Prac. & Rem. § 17.033(b); see Act of May 27, 2019, 86 Leg., R.S., ch. 606 (S.B. 891), § 10.04(a), eff. June 1, 2020. The Supreme Court of Texas approved amendments to Tex. R. Civ. P. 106, allowing substituted service through electronic means including social media, on August 21, 2020. See In the Supreme Court of Texas, Misc. Docket No. 20-9103, Order Amending Texas Rules of Civil Procedure 106 and 108a, accessible at https://www.txcourts.gov/media/1449613/209103.pdf. 2. Note, an affidavit is no longer required in support of a motion for substituted service. Cf. Tex. R. Civ. P. 106, eff. Sept. 1, 1990, with Tex. R. Civ. P. 106, eff. Dec. 31, 2020. 3. Tex. R. Civ. P. 106(b). 4. Id. 5. Tex. R. Civ. P. 106, Comment to 2020 Change.
Acing the Virtual Oral Argument
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By Anuj Shah
ivot. That’s certainly one way to describe what practitioners have done since the start of the COVID-19 pandemic. Appellate attorneys presenting oral arguments before the courts of appeals are no exception, as these arguments are now largely being conducted remotely. Here, then, are some pointers—hopefully appropriate for all levels—from both my own and my colleagues’ oral argument experiences. Get ready to work that Hollywood Mojo! 1. Technology, Technology, Technology! We will publish a separate piece for the true techno-geeks out there, but the fundamentals bear mention: A fast and stable internet connection, an up-to-date computer, a quality camera, and a crisp headphone set can make the difference between a muddled and stilted presentation and a trim and effective argument. Fiddling with technological glitches moments before, or worse, during oral argu-
LEGAL TRENDS
ment is the last thing you need in those crucial moments. 2. Choose the Proper Venue Underestimate your environment at your own peril. Outside the confines of the courtroom, how you appear to the judges governs how well the judges can focus on you and your argument instead of on your less-than-minimalist milieu. Find a space with few visual distractions and one in which you feel comfortable. The combination of your ease with your surroundings and the judges’ focus exclusively on your presentation will enable you to perform optimally. 3. Heed Your Sartorial Splendor Dress as if you were walking into the court in order to feel and live the part. This includes bottom-half apparel, shoes and all, which can also prevent an embarrassing “all rise” moment! 4. The Devil…can be…in the Details The minutest of details matter. Take a smattering of examples. First, the coffee mug. The court clerk at the last second suggested I exchange my colorful and substantial receptacle with a small, clear container. What about make-up (so my female colleagues have heeded)? Make sure to have just the right amount. Don’t overlook lighting and camera angles— bring out your hidden cinematographer. And opt for a solid background rather than the mini motion picture a window may present. Lastly, organize your notes, your computer, and your reference materials strategically so that you can reach them easily, unobtrusively, and dare I say, elegantly! 5. Preparation and Practice Make… Close to Perfect! Finally, nothing beats strong preparation and practice: Go through at least one full dress rehearsal. You’ll be pleasantly surprised at the tweaks you can make, and
you’ll strut into your oral argument ready to knock them alive with your brilliant oral advocacy. Anuj Shah is the managing principal of Anju Shah, P.C. He is board certified in immigration and nationality law by the Texas Board of Legal Specialization, and he is a member of The Houston Lawyer editorial board.
Seventh Circuit of the U.S. Court of Appeals Finds That Extreme Obesity Is An Actionable Disability Under the ADA Only If It Is The Result of An Underlying Physiological Disorder or Condition
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By Kylie Loya
he Americans with Disabilities Act (“ADA”) of 1990, as amended by the ADA Amendments Act (hereinafter referred to as “ADAAA”) is the primary federal law prohibiting discrimination based on disability. In addition to affording qualified individuals with protections because of their disability status, the ADAAA also requires certain employers to provide reasonable accommodations to such individuals and imposes accessibility requirements on public accommodations.1
The Seventh Circuit of the United States Court of Appeals recently examined the issue of whether extreme obesity is a physical impairment and thus an actionable disability under the ADAAA in Richardson v. Chicago Transit Authority.2 The Appellant in this case, Mark Richardson, a former bus operator for Appellee Chicago Transit Authority (“CTA”), alleged CTA took adverse action against him because of his extreme obesity in violation of the ADAAA. Richardson’s weight was documented by doctors as being anywhere from 350 pounds to 566 pounds. Richardson was placed on temporary medical disability leave by CTA’s Disability Review Committee following his absence from work due to the flu and was later found medically unfit to perform the essential functions of his job classification. He was eventually permitted to return to work pending the outcome of a special assessment. The special assessment, which required Richardson to operate a bus under the observation of two CTA bus instructors, revealed safety concerns including Richardson’s inability to make hand-over-hand turns, inability to see the floor of the bus from his seat, Richardson’s foot on the gas and brake at the same time, Richardson’s leg resting closely to the door handle, and part of Richardson’s body hanging off the driver’s seat. Based on the results of the special assessment and representation that Richardson’s weight exceeded the manufacturer’s maximum allowable weight of 400 pounds, CTA concluded Richardson could not safely operate CTA buses. While Richardson was placed back on temporary medical leave, he was given an opportunity to lose weight so he could return to his job position. After two years of inactive status, Richardson was terminated pursuant to CTA policy.3 The ADA defines disability as: “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record
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Media Reviews
LEGAL TRENDS
of such an impairment; or (C) being rehis support, stating that while Congress garded as having such an impairment.”4 disagreed with the Supreme Court’s understanding of “substantially limits a Richardson’s claim was that he was submajor life activity,” it did not question ject to a prohibited employment action judicial interpretation of impairment.8 because CTA “regarded him” as being too obese to work as a bus operator. CTA Alternatively, Richardson contended moved for summary judgment which the that CTA took adverse action against district court granted after concluding him because it perceived his obesity to that Richardson presented no evidence be a physical impairment. Richardson showing that his severe obereferred to the special sity was a protected physiassessment that was cal impairment caused by conducted highlighting an underlying physiologiAfter two years safety concerns directly cal disorder or condition as related to his excessive of inactive status, weight. The Court also required by the language of the ADA and Equal Employrejected this argument Richardson was ment Opportunity Commisand found that there 5 terminated pursuant was no evidence CTA sion (“EEOC”) regulation. Richardson then brought to CTA policy.” believed Richardson’s excessive weight was this appeal. To succeed, caused by a physiological Richardson had to establish disorder or condition. The Court found he was subject to a prohibited employthat to the contrary, the evidence sugment action because of an actual or pergests CTA perceived Richardson’s weight ceived physical or mental impairment as a physical characteristic that made it whether or not the impairment limits or unsafe for him to drive.9 is perceived to limit a major life activity. Richardson must demonstrate that eiWhile the Court did not find that exther: 1) his extreme obesity is an actual treme obesity in and of itself is a physical impairment, or 2) CTA perceived his eximpairment that would be an actionable treme obesity to be an impairment.6 disability under the ADAAA, it did not preclude extreme obesity in connection To argue the first point, Richardson to an underlying physiological disorder urged the court to interpret the meaning or condition from being construed as of “physical impairment” broadly to ensuch. compass extreme obesity, even without evidence of an underlying physiological condition. As support, he pointed to Kylie Loya is an attorney who practices changes made to the ADA by Congress transportation law with the Metropolitan to broaden the scope of “being regarded Transit Authority of Harris County. She as having an impairment.” Individuals is a member of The Houston Lawyer’s can be regarded as having an impairEditorial Board. ment, “whether or not the impairment limits or is perceived to limit a major Endnotes 1. PRAC. LAW LAB. & EMP., RES. ID 9-503-9007, DISlife activity.”7 The Court of Appeals ABILITY ACCOMMODATION UNDER THE ADA, Westlaw (maintained). disagreed, concluding that without evi2. Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019). dence that Richardson’s extreme obesity 3. Id. at 881, 884–85. was caused by a physiological disorder 4. 2 U.S.C. § 12102(1). 5. Richardson, 926 F.3d at 886. or condition, his obesity is not a physical 6. Id. at 887. 7. Id. at 888–89. impairment under the plain language of 8. Id. at 889. 9. Id. at 892. the EEOC regulation. The Court rejected
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Bring Yourself: How to Harness the Power of Connection to Negotiate Fearlessly By Mori Taheripour Penguin Random House LLC, 2020 Reviewed by Braden Riley
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initially had mixed feelings about Mori Taheripour’s Bring Yourself: How to Harness the Power of Connection to Negotiate Fearlessly. At times, Taheripour seemed to strike at the very heart of persuasive negotiation tactics with incisive anecdotes about the negotiation exercises she teaches to her classes through the Goldman Sachs’ 10,000 Small Businesses Programs. At others, I thought, Bring Yourself crept into the increasingly overtrodden field of pop psychology, such as when the author calls for the reader to stop people pleasing, and to live with emotional scars incurred from prior life experiences. So I thought. And yet, over the course of the next couple of days I found myself subconsciously applying her deeper p s ycholog ical concepts and, to my surprise, obtaining better results in my personal and professional negotiations. Bring Yourself snuck itself into my subconscious while negotiating with the barista at my favorite coffee shop to make one last cup of coffee just before close. It snuck into my subconscious when dealing with opposing counsel, who, at times,
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can take a hard-headed approach towards settlement negotiations. Heck, it even snuck into my subconscious when my dog and I disagreed about his apparent need to sniff every fire hydrant on a long walk home. Taheripour’s main thesis is that negotiation should involve an effort to understand both yourself and your adversary. The author advocates for believing in your position while simultaneously leaving behind the “winner-take-all” mindset of yesteryear. Old news, one would think. Expand the pie, don’t divide it. But Taheripour dares to go a step further. The author deftly maneuvers through lessons such as: believing in the value of your own narrative before looking for reasons the other side is right; being aware of the words you use in conveying your side of the negotiation and how they will be understood from the opposing point of view, and; understanding why the other side sometimes says no, yet continuing to pursue the why behind the “no” to get a better understanding of the common ground to be had. Other concepts explored in Bring Yourself are simple and true, yet eloquently tied in. Practicing effectively deploying a strategic use of silence is one technique, briefly mentioned by the author, that I found particularly useful. Being aware of what information you share and when, and the impact it will have on the other side’s valuation of the issues to be negotiated, is also a welcome suggestion. Advising readers that a deal can’t be rushed, and that humans are, after all, humans, who want to build relationships before doing business, is a lesson we can all be reminded of from time to time, particularly in the often all too busy world of litigation. To the latter concept, Taheripour has a unique way of tying these insights on relationships into meaningful commentaries on diversity in negotiations. For example, in one anecdote the author men-
tions how a student of hers, who ran a read subtle cues expressed by the other construction services company in Detroit, side’s behaviors and emotional reactions, lost a contract to another construction which can be dulled once we take negocompany. Realizing the industry is domitiations away from the bargaining table nated by mostly white males, the student, and on to the computer screen. Taherian African-American woman, reasoned pour similarly urges the reader to look at that she could have easily explained the their own behavioral patterns and subtle loss of the contract as racist and sexist. emotional and psychological signals they Instead, the author relates, the student exhibit, and think about how they are berealized that she lost the contract due to ing perceived by the other side. the other firm having a better relationship In the prologue of Bring Yourself, the with the client, and this relationship was author warns the reader that they should simply borne out of the fact that the clinot expect much in the way of theory or ent had spent more time with the other prescriptive advice, but rather, simply a firm. The student goes on to series of scenarios that explain that in a white male show her concepts in acdominated industry, the clition. But Taheripour does ent had likely not had many more than just that. The Taheripour teaches opportunities to foster relaauthor empathizes with tionships with many people us that negotia- the reader in much the who shared the student’s tion is much more same way as she advobackground. cates in negotiations and about the how and The student’s solution was brings together the right why than the typical scenarios with meaningsimple. She started networking more within the industry, negotiation class ful commentary that aland as her clients became would have us low the reader to find the more familiar with her and concepts for themselves believe.” understood more about her, when they are most relshe strengthened her relaevant to the individual tionships with them. reader’s experience. Perhaps that is the Realizing that the other side may have power of the book itself. Perhaps, by causa totally different life experience, one in ing her ideas to lurk in my subconscious which attributes of yourself may not be and affect my everyday negotiations, the something the other side is familiar with, author negotiated with my initial relucis an invaluable lesson in building negotitance, and in the end, gave more helpful ating relationships. advice than she lets on. Or perhaps, I just Taheripour teaches us that negotiation needed a way to convince my dog that is much more about the how and why there would be more fire hydrants tomorthan the typical negotiation class would row. have us believe. She teaches us that we are all human, and that, at the end of the Braden Riley is an associate attorney at day, it is this commonality that drives us Cozen O’Connor, practicing in the areas of to find agreement where we initially had insurance coverage and defense in Texas differences. The author advocates for oband Louisiana. He is a member of The taining a better understanding of what Houston Lawyer editorial board. When he motivates the other side and developing is not working, he spends most of his time empathy towards their decision-making with his 11-year-old lab mix, Oatis, who process. Relevant to our times, she emexpressed his firm disagreement with this phasizes the importance of being able to review.
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