IN THIS ISSUE: Expedited Actions in Texas: Ready, Set, GO! Page 12 2013 Legislative Wrap-Up Page 20 West Texas Seminar Registration Page 30 When You Need to Know

An Association of Personal Injury Defense, Civil Trial & Commercial Litigation Attorneys - Est. 1960

SUMMER 2013

IN THIS ISSUE: Expedited Actions in Texas: Ready, Set, GO! Page 12 2013 Legislative Wrap-up Page 20 West Texas Seminar Registration Page 30 When you need to know . . .

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TADC Calendar of Events ...... 2 President’s Message ...... 3 2013 TADC Awards Nominations ...... 7 2013 Spring Meeting ...... 9 Expedited Civil Actions in Texas ...... 12 2013 Legislative Wrap-Up ...... 20 TADC PAC Report ...... 25 2013 TADC Trial Academy ...... 26 Amicus Curiae Committee News ...... 28 2013 West Texas Seminar ...... 30 2013 Winter Seminar ...... 32 Welcome New Members ...... 34 Papers Available ...... 36 TADC Expert Witness Library ...... 37 Substantive Law Newsletters ...... 40

Summer 2013 Texas Association of Defense Counsel, Inc. 1

RESIDENT S ESSAGE P ’ M “YOUR INVESTMENT IS WORTHWHILE” By: Dan K. Worthington Atlas, Hall & Rodriguez, LLP - McAllen

In Suits at common law, where the discuss the issue and soundboard our thoughts TADC CALENDAR OF EVENTS value“ in controversy shall exceed twenty on the Court’s proposal and provided the dollars, the right of trial by jury shall be results of these efforts to the Court as well. preserved, and no fact tried by a jury, shall be Regretfully, the Court did not revisit the otherwise re-examined in any Court of the compulsory nature of the rule it drafted. August 2-3, 2013 TADC Budget/Nominating Committee United States, than according to the rules of Nevertheless, we were successful in having Austin, Texas the common law.” Your investment in the some parts of the rule changed so that the TADC through your time, effort and dues are adverse impact of the limitations it imposed on what enable us to support this constitutional a litigant’s access to due process was August 9-10, 2013 West Texas Seminar th Inn of the Mountain Gods – Ruidoso, NM promise contained in the 7 Amendment. lessened.

September 18-22, 2013 TADC Annual Meeting In sitting down to draft the mid-year Subsequently, we once again took our W Hotel – Boston, Massachusetts report, it seemed appropriate to me to convey “show on the road” and travelled throughout what we’ve done and what we are doing in the the State in an effort to educate our members Mitch Smith & John Weber, Co-Chairs th context of your investment and our 7 on the strategic use of the new rules and those Amendment right to trial by jury. areas which we believe presented risks to November 8-9, 2013 TADC Board of Directors Meeting San Antonio, Texas practitioners. As part of our ongoing efforts, The New Rules. we are continuing to review the rules and help provide our membership with additional January 24-25, 2014 TADC Board of Directors Meeting Austin, Texas Beginning in June 2011, the TADC information to be considered and tools to be joined with others interested in an used in ensuring all of our clients receive fair February 5-9, 2014 implementation of the HB 274 mandate, treatment within the civil justice system. TADC Winter Seminar consistent with the legislative guidance and Elevation Resort & Spa – Crested Butte, Colorado th protection (and enhancement) of the 7 The Legislative Session. Amendment. We spent long hours studying April 9-13, 2014 TADC Spring Meeting the extensive work conducted in other States Thankfully, the 83rd Legislative Session The Fairfax Embassy Row – Washington, D.C. on this issue and focused on how the rules will end without any successful efforts at could be better crafted in a manner which took limiting the fair and appropriate access to a jury July 16-20, 2014 TADC Summer Seminar into account the specific needs of Texas. We trial. Though not particularly exciting, we spent Coeur dʼAlene Resort – Coeur dʼAlene, Idaho provided the results of this work to the a lot of time reviewing “nuts and bolts” Supreme Court, the Court’s Advisory proposals which will ultimately impact many of September 24-28, 2014 TADC Annual Meeting Committee and the Court’s task force for their our day to day practices. The most obvious Hyatt Hill Country Resort – San Antonio, Texas respective consideration. example of this is SB 679. In this bill, Sen. Duncan addressed the conflict between “paid

In the late fall of 2012, when the Court or incurred” and the application of section finally issued its proposed compulsory rules for 18.001/.002 in the medical billing records comment, we studied the proposal and in context. We helped to ensure that the revised response, submitted a detailed and thorough rules would accomplish the intent of review. We travelled the state from Beaumont harmonizing the two conflicting statutes, to Amarillo and met with at least a dozen local without jeopardizing the Haygood opinion. We Bar Associations and many other groups to were active participants in the final formulation

2 Texas Association of Defense Counsel, Inc. Summer 2013

RESIDENT S ESSAGE P ’ M “YOUR INVESTMENT IS WORTHWHILE” By: Dan K. Worthington Atlas, Hall & Rodriguez, LLP - McAllen

Summer 2013 Texas Association of Defense Counsel, Inc. 3 of HB 1869 which restored the ability of a Shipman with Fletcher, Farley, Shipman & the halls of the Capitol, distributing literature Weber and Mitch Smith have arranged for recovering claimant to share the burden of an Salinas, LLP in Dallas put together an and visiting with legislators with regard to meaningful CLE and have lined up speakers inadequate recovery with a contractual lien outstanding program. The young lawyers who TADC’s positions on the issues. This is an from the TADC, the DRI, the National Center subrogor. We served on a working group to attended the course were provided a two-day extremely important function and paves the for State Courts as well as practitioners from assist in the development of a compromise to program that was loaded with outstanding way for your leadership when testifying before Massachusetts. HB 1325 which was targeted toward judges and volunteers, including Judge Carlos House and Senate Committees. addressing the problems originating from the Cortez, Judge Tonya Parker, Judge Martin Like years past, this Annual Meeting will inactive asbestos docket. The final bill, which Hoffman, Andy Payne, Doug Fletcher, Lewis The bi-annual TADC Young Lawyers not only give us the chance for meaningful passed and awaits signature by the Governor, Sifford, Andy Sommerman and Jim Cowles. Committee-sponsored breakfast honoring the continuing education, but will afford us the provides a mechanism for a defendant to get That we were blessed with such outstanding Texas Supreme Court commenced Thursday’s opportunity for fellowship and networking as perpetual liability claims off its books while also “plaintiff’s attorneys”, judges and members like activities, and drew most of the sitting Court as well. affording a plaintiff with a meritorious claim to Jim Cowles, Lewis Sifford and Doug Fletcher well as several former Court members. get back into Court and have his or her claim made it a special event. Program Chairs Ross Pringle, Robert Sonnier, Linkedin, Twitter, Website, et al. fairly litigated. What we were able to do this and TADC Young Lawyers’ Chair Charlie session, I am proud to say, was to continue the The importance of the Trial Academy Downing did a tremendous job in planning and We continue to improve our web-based good work of all those TADC Boards in years goes beyond the opportunity to teach our hosting what proved to be, as always, a presence by focusing on our social media past in protecting the 7th Amendment and young lawyers trial advocacy skills. It provides successful event. involvement and our website. These efforts bringing a defense perspective to legislative us with the opportunity to impress upon each complement our traditional methods of considerations. new class the importance of the 7th The Summer Meeting. communicating with one another and we Amendment and our fight to preserve access believe will enhance our ability to improve each We could not have been successful this to a civil jury trial. This year, the program was Looking ahead, the TADC Summer of our practices through education and session without the hard (and often thankless) an outstanding success and I believe we Seminar is just around the corner in Whistler, networking as well as our support of the civil work of many members of the Board of helped contribute to another class of British Columbia on July 17th-21st. Like our jury trial through a better coordinated defense. Directors as well as numerous other members. outstanding young trial attorneys. Winter meeting, we invited a sister defense bar Of particular note, I want to thank Pam Madere and will be joined for one of the two days by This year has seen us continue the and Clayton Devin who were always willing The Winter Meeting. the Washington Defense Trial Lawyers betterment of our communication with our and able to handle any task assigned to them. Association. members, while reinforcing our ability to In addition, David Chamberlain, Michele Smith Our first meeting of 2013 was held in complete our mission of bringing the defense and Mike Hendryx were always willing and able Steamboat Springs, Colorado in early Beyond the outstanding continuing perspective to the promotion of the 7th to help. Mike was instrumental in bringing our February. Program Chairs Greg Curry and education program are the opportunities for Amendment. Your investment in us and our voice to HB 1325. Randy Walters delivered an outstanding networking with the Washington defense bar. investment in you is worthwhile and together program. In addition to the top-flight Texas As an aside, there cannot be a more we are making a difference. Notwithstanding the current TADC speakers, they put together a program which outstanding location for this meeting. Whistler board’s work this session, our continuing included participants from the Illinois offers something for everyone to enjoy and success rests largely on the shoulders of David Association of Defense Trial Counsel. In provides the perfect place for a family vacation. Chamberlain’s, Keith O’Connell’s and Jay Old’s addition to the substantive topics, an emphasis However, if you have not yet registered, rooms service, just to name a few. Their credibility on the right to trial by jury was woven are in short supply and the TADC rate is and reputation for candor made it easier for us throughout the program as well. unbeatable. to be invited participants and sounding boards. Finally, the continuity brought to the table by Other than a dislocated little finger as a The Annual Meeting. Bobby Walden and George Scott Christian result of an unfortunate snow tubing incident, cannot be over-appreciated. the skiing was great and as always, the Our year ends with the 2013 Annual hospitality suite was extremely hospitable. Meeting in Boston from September 18th – The Trial Academy. September 22nd. A top rate program has been The Spring/Legislative Meeting. set and Boston (and the Sox) offers a wide The 31st Annual TADC Trial Academy selection of social activities for attendees, was held in Dallas on the last weekend in April. The TADC Spring Meeting and guests and families. Program Chairs John Academy Chairs Clayton Devin with Legislative Day were held in early April. As Macdonald Devin, P.C. in Dallas and Mike always, dozens of members took time to walk

4 Texas Association of Defense Counsel, Inc. Summer 2013 of HB 1869 which restored the ability of a Shipman with Fletcher, Farley, Shipman & the halls of the Capitol, distributing literature Weber and Mitch Smith have arranged for recovering claimant to share the burden of an Salinas, LLP in Dallas put together an and visiting with legislators with regard to meaningful CLE and have lined up speakers inadequate recovery with a contractual lien outstanding program. The young lawyers who TADC’s positions on the issues. This is an from the TADC, the DRI, the National Center subrogor. We served on a working group to attended the course were provided a two-day extremely important function and paves the for State Courts as well as practitioners from assist in the development of a compromise to program that was loaded with outstanding way for your leadership when testifying before Massachusetts. HB 1325 which was targeted toward judges and volunteers, including Judge Carlos House and Senate Committees. addressing the problems originating from the Cortez, Judge Tonya Parker, Judge Martin Like years past, this Annual Meeting will inactive asbestos docket. The final bill, which Hoffman, Andy Payne, Doug Fletcher, Lewis The bi-annual TADC Young Lawyers not only give us the chance for meaningful passed and awaits signature by the Governor, Sifford, Andy Sommerman and Jim Cowles. Committee-sponsored breakfast honoring the continuing education, but will afford us the provides a mechanism for a defendant to get That we were blessed with such outstanding Texas Supreme Court commenced Thursday’s opportunity for fellowship and networking as perpetual liability claims off its books while also “plaintiff’s attorneys”, judges and members like activities, and drew most of the sitting Court as well. affording a plaintiff with a meritorious claim to Jim Cowles, Lewis Sifford and Doug Fletcher well as several former Court members. get back into Court and have his or her claim made it a special event. Program Chairs Ross Pringle, Robert Sonnier, Linkedin, Twitter, Website, et al. fairly litigated. What we were able to do this and TADC Young Lawyers’ Chair Charlie session, I am proud to say, was to continue the The importance of the Trial Academy Downing did a tremendous job in planning and We continue to improve our web-based good work of all those TADC Boards in years goes beyond the opportunity to teach our hosting what proved to be, as always, a presence by focusing on our social media past in protecting the 7th Amendment and young lawyers trial advocacy skills. It provides successful event. involvement and our website. These efforts bringing a defense perspective to legislative us with the opportunity to impress upon each complement our traditional methods of considerations. new class the importance of the 7th The Summer Meeting. communicating with one another and we Amendment and our fight to preserve access believe will enhance our ability to improve each We could not have been successful this to a civil jury trial. This year, the program was Looking ahead, the TADC Summer of our practices through education and session without the hard (and often thankless) an outstanding success and I believe we Seminar is just around the corner in Whistler, networking as well as our support of the civil work of many members of the Board of helped contribute to another class of British Columbia on July 17th-21st. Like our jury trial through a better coordinated defense. Directors as well as numerous other members. outstanding young trial attorneys. Winter meeting, we invited a sister defense bar Of particular note, I want to thank Pam Madere and will be joined for one of the two days by This year has seen us continue the and Clayton Devin who were always willing The Winter Meeting. the Washington Defense Trial Lawyers betterment of our communication with our and able to handle any task assigned to them. Association. members, while reinforcing our ability to In addition, David Chamberlain, Michele Smith Our first meeting of 2013 was held in complete our mission of bringing the defense and Mike Hendryx were always willing and able Steamboat Springs, Colorado in early Beyond the outstanding continuing perspective to the promotion of the 7th to help. Mike was instrumental in bringing our February. Program Chairs Greg Curry and education program are the opportunities for Amendment. Your investment in us and our voice to HB 1325. Randy Walters delivered an outstanding networking with the Washington defense bar. investment in you is worthwhile and together program. In addition to the top-flight Texas As an aside, there cannot be a more we are making a difference. Notwithstanding the current TADC speakers, they put together a program which outstanding location for this meeting. Whistler board’s work this session, our continuing included participants from the Illinois offers something for everyone to enjoy and success rests largely on the shoulders of David Association of Defense Trial Counsel. In provides the perfect place for a family vacation. Chamberlain’s, Keith O’Connell’s and Jay Old’s addition to the substantive topics, an emphasis However, if you have not yet registered, rooms service, just to name a few. Their credibility on the right to trial by jury was woven are in short supply and the TADC rate is and reputation for candor made it easier for us throughout the program as well. unbeatable. to be invited participants and sounding boards. Finally, the continuity brought to the table by Other than a dislocated little finger as a The Annual Meeting. Bobby Walden and George Scott Christian result of an unfortunate snow tubing incident, cannot be over-appreciated. the skiing was great and as always, the Our year ends with the 2013 Annual hospitality suite was extremely hospitable. Meeting in Boston from September 18th – The Trial Academy. September 22nd. A top rate program has been The Spring/Legislative Meeting. set and Boston (and the Sox) offers a wide The 31st Annual TADC Trial Academy selection of social activities for attendees, was held in Dallas on the last weekend in April. The TADC Spring Meeting and guests and families. Program Chairs John Academy Chairs Clayton Devin with Legislative Day were held in early April. As Macdonald Devin, P.C. in Dallas and Mike always, dozens of members took time to walk

Summer 2013 Texas Association of Defense Counsel, Inc. 5 TADC An Association of Personal Injury Defense, Civil Trial & Commercial Litigation Attorneys ~ Est. 1960

400 West 15th Street, Suite 420, Austin, Texas 78701 512/476-5225 Fax 512/476-5384 2013 TADC

Website: www.tadc.org Email: [email protected] President June 15, 2013 Dan K. Worthington, McAllen President-Elect WARDS OMINATIONS V. Elizabeth Ledbetter, Austin A N Executive Vice President TO: Members of TADC Michele Y. Smith, Beaumont

Treasurer FROM: Dan K. Worthington, President Mike Hendryx, Houston PRESIDENT'S AWARD While it is unnecessary to make this an Secretary Thomas E. Ganucheau, Nominating Committee Chair Christy Amuny, Beaumont annual award, it should be mentioned that Administrative Vice Presidents A special recognition by the President for probably no more than one should be presented Programs RE: Nominations of Officers & Directors for 2013-2014 meritorious service by a member whose annually. The Founders Award would, in Jerry T. Fazio, Dallas essence, be for service, leadership and Pat Long Weaver, Midland Nominating Committee Meeting - August 3, 2013 leadership and continuing dedication during the dedication "above and beyond the call of duty." Legislative year has resulted in raising standards and Pamela Madere, Austin Clayton E. Devin, Dallas OFFICES TO BE FILLED: achieving goals representing the ideals and Publications Recommendations for such award may be Milton Carey Colia, El Paso *Executive Vice President objectives of TADC. made by any member and should be in writing to Mark C. Walker, El Paso *Four (4) Administrative Vice Presidents the President. The President and Executive Membership & Administration *Eight (8) Regional Vice Presidents District 3 Possibly two, but no more than three such Committee will make the decision annually if such Arlene C. Matthews, Lubbock *District Directors from even numbered districts special awards, to be called the President's an award should be made. The type and kind of District 4 (#2, #4, #6, #8 ,#10, #12, #14, #16, #18, #20) Award, will be announced annually during the fall award to be presented will be determined by the Rusty Beard, Abilene *Directors At Large - Expired Terms President, with the advice and consent of the District 5 meeting by the outgoing President. Executive Committee. If made, the award would Michael J. Shipman, Dallas District 6 be presented by the outgoing President during Gregory D. Binns, Dallas Recommendations for the President's the fall meeting of the Association. District 7 Award can be made by any member and should Mitchell Moss, El Paso Please contact Tom Ganucheau with the names of those TADC members District 8 be in writing to the President, who will review who you would like to have considered for leadership through Board Members of the Executive Committee are Slater Elza, Amarillo such recommendations and, with the advice and not eligible for this award. District 9 participation. Robert Booth, Galveston consent of the Executive Committee, determine District 10 Thomas E. Ganucheau the recipient. The type and kind of award to be In connection with the Founders Award, G. Robert Sonnier, Austin consideration should be given to such things as: District 11 Beck Redden LLP presented will be determined by the President,

Michael D. Morrison, Waco 1221 McKinney, Ste. 4500 with the advice and consent of the Executive District 12 H Length of time as a member and active George C. Haratsis, Fort Worth Houston, Texas 77010 Committee. participation in TADC activities; District 13 Monika Cooper, Fort Worth PH: 713/951-3700 FX: 713/951-3720 District 14 Email: [email protected] Following the award, the outgoing H Participation in TADC efforts and programs and Rebecca Kieschnick, Corpus Christi President will address a letter to the Managing also involvement with other local, state and District 15 NOTE: Joseph A. Rodriguez, Brownsville Partner of the recipient's law firm, advising of the national bar associations and/or law school District 16 ARTICLE VIII, SECTION I - Four Vice Presidents shall be elected from the award, with the request that the letter be CLE programs; W. Stacy Trotter, Odessa membership at large and shall be designated as Administrative Vice Presidents. District 17 distributed to members of the firm. H Gayla Corley, San Antonio One of these elected Administrative Vice Presidents shall be specifically Active organizational work with TADC and District 18 designated as Legislative Vice President. A Fifth Administrative Vice President participation in and with local and state bar Darin L. Brooks, Houston may be elected and specifically designated as an additional Legislative Vice Notice of the award will appear in the committees and civic organizations. District 19 TADC Membership Newsletter, along with a short Kenneth Tekell, Jr., Houston President. One of these elected Administrative Vice Presidents shall be District 20 specifically designated as Programs Vice President. A Sixth Administrative description of the recipient's contributions upon William J. Sharp, Houston which the award was based. Directors at Large Vice President may be elected and specifically designated as an additional NOMINATIONS FOR BOTH AWARDS Heidi A. Coughlin, Austin Program Vice President. One of these elected Administrative Vice Presidents SHOULD BE SENT TO: Daniel J. Schuch, Houston shall be specifically designated as Membership Vice President. A Seventh Members of the Executive Committee are Kenneth C. Riney, Dallas Ron T. Capehart, Houston Administrative Vice President may be elected and specifically designated as an not eligible to receive this award. Tim Griesenbeck, Jr., San Antonio additional Membership Vice President. One of these elected Administrative Dan K. Worthington Barry D. Peterson, Amarillo Vice Presidents shall be specifically designated as Publications Vice President. Casey P. Marcin, The Woodlands FOUNDERS AWARD Atlas, Hall & Rodriguez, L.L.P. Victor V. Vicinaiz, McAllen An Eighth Administrative Vice President may be elected and specifically P.O. Box 3725 PH: 956/632-8293 Jason Rother, Houston designated as an additional Publications Vice President. Eight Vice Presidents The Founders Award will be a special McAllen, TX 78502 FX: 956/686-6109 James H. Hunter Jr., Brownsville shall be elected from the following specifically designated areas Immediate Past President award to a member whose work with and for the [email protected] Thomas E. Ganucheau, Houston 1.) Districts 14 & 15 2.) Districts 1 & 2 DRI State Representative 3.) District 17 4.) Districts 3, 7, 8 & 16 Association has earned favorable attention for the Greg W. Curry, Dallas organization and effected positive changes and Young Lawyer Committee Chair 5.) Districts 10 & 11 6.) Districts 9, 18, 19 & 20 Charlie Downing, McAllen 7.) Districts 5 & 6 8.) Districts 4, 12 & 13 results in the work of the Association. TADC Executive Director Bobby L. Walden, Austin 6 Texas Association of Defense Counsel, Inc. Summer 2013 2013 TADC

June 15, 2013 AWARDS NOMINATIONS TO: Members of TADC

FROM: Dan K. Worthington, President PRESIDENT'S AWARD While it is unnecessary to make this an Thomas E. Ganucheau, Nominating Committee Chair annual award, it should be mentioned that A special recognition by the President for probably no more than one should be presented RE: Nominations of Officers & Directors for 2013-2014 meritorious service by a member whose annually. The Founders Award would, in Nominating Committee Meeting - August 3, 2013 leadership and continuing dedication during the essence, be for service, leadership and dedication "above and beyond the call of duty." year has resulted in raising standards and OFFICES TO BE FILLED: achieving goals representing the ideals and Recommendations for such award may be *Executive Vice President objectives of TADC. made by any member and should be in writing to *Four (4) Administrative Vice Presidents the President. The President and Executive *Eight (8) Regional Vice Presidents Possibly two, but no more than three such Committee will make the decision annually if such *District Directors from even numbered districts special awards, to be called the President's an award should be made. The type and kind of (#2, #4, #6, #8 ,#10, #12, #14, #16, #18, #20) Award, will be announced annually during the fall award to be presented will be determined by the *Directors At Large - Expired Terms meeting by the outgoing President. President, with the advice and consent of the Executive Committee. If made, the award would be presented by the outgoing President during Recommendations for the President's the fall meeting of the Association. Award can be made by any member and should Please contact Tom Ganucheau with the names of those TADC members be in writing to the President, who will review who you would like to have considered for leadership through Board Members of the Executive Committee are participation. such recommendations and, with the advice and not eligible for this award. consent of the Executive Committee, determine Thomas E. Ganucheau the recipient. The type and kind of award to be In connection with the Founders Award, Beck Redden LLP presented will be determined by the President, consideration should be given to such things as:

1221 McKinney, Ste. 4500 with the advice and consent of the Executive H Length of time as a member and active Houston, Texas 77010 Committee. participation in TADC activities; PH: 713/951-3700 FX: 713/951-3720 Email: [email protected] Following the award, the outgoing H Participation in TADC efforts and programs and President will address a letter to the Managing also involvement with other local, state and NOTE: Partner of the recipient's law firm, advising of the national bar associations and/or law school ARTICLE VIII, SECTION I - Four Vice Presidents shall be elected from the award, with the request that the letter be CLE programs; membership at large and shall be designated as Administrative Vice Presidents. distributed to members of the firm. H Active organizational work with TADC and One of these elected Administrative Vice Presidents shall be specifically designated as Legislative Vice President. A Fifth Administrative Vice President participation in and with local and state bar may be elected and specifically designated as an additional Legislative Vice Notice of the award will appear in the committees and civic organizations. President. One of these elected Administrative Vice Presidents shall be TADC Membership Newsletter, along with a short specifically designated as Programs Vice President. A Sixth Administrative description of the recipient's contributions upon Vice President may be elected and specifically designated as an additional which the award was based. NOMINATIONS FOR BOTH AWARDS Program Vice President. One of these elected Administrative Vice Presidents SHOULD BE SENT TO: shall be specifically designated as Membership Vice President. A Seventh Members of the Executive Committee are Administrative Vice President may be elected and specifically designated as an not eligible to receive this award. additional Membership Vice President. One of these elected Administrative Dan K. Worthington Vice Presidents shall be specifically designated as Publications Vice President. FOUNDERS AWARD Atlas, Hall & Rodriguez, L.L.P. An Eighth Administrative Vice President may be elected and specifically P.O. Box 3725 PH: 956/632-8293 designated as an additional Publications Vice President. Eight Vice Presidents The Founders Award will be a special McAllen, TX 78502 FX: 956/686-6109 shall be elected from the following specifically designated areas award to a member whose work with and for the [email protected] 1.) Districts 14 & 15 2.) Districts 1 & 2 3.) District 17 4.) Districts 3, 7, 8 & 16 Association has earned favorable attention for the 5.) Districts 10 & 11 6.) Districts 9, 18, 19 & 20 organization and effected positive changes and results in the work of the Association. 7.) Districts 5 & 6 8.) Districts 4, 12 & 13

Summer 2013 Texas Association of Defense Counsel, Inc. 7 2013 SPRING MEETING

Doubletree Suites – April 3-5, 2013 – Austin, Texas

The TADC held its 2013 Spring Meeting in Austin, Texas April 3-5, 2013. The Spring Meeting LUBBOCK coincides with the Texas Legislative Session and activities for meeting registrants were centered around this event. Opening day events began with TADC’s Legislative Day. Members walked the halls of the Capitol, meeting with their local elected officials and sharing with them the Association’s viewpoint and DALLAS/FT. WORTH philosophy. Wednesday evening’s opening reception honoring the Texas Legislature was a great EL PASO success. AUSTIN HOUSTON As has become a tradition, the TADC Young Lawyers Committee hosted the opening breakfast in honor SAN ANTONIO of the Texas Supreme Court. All current and former members of the Court were invited. Seven of the nine sitting Justices were in attendance as well as several former justices.

CORPUS G. Robert Sonnier, with the Austin law firm of Germer, Gertz, Beaman & Brown and Ross Pringle with CHRISTI the Austin law firm of Wright & Greenhill, P.C. did a masterful job as Program Co-Chairs of the meeting. The program included representatives of the judiciary from all levels including Supreme Court Justice Jeff Boyd, Federal District Judge Lee Yeakel and District Court Judge Orlinda Naranjo. Topics ranged from Social Networking and the Law to Expedited Jury Trials and Trial Tactics..

COURT-ADMISSIBLECOURT-ADMISSIBLE EVIDENCEEVIDENCE

www.texasinvestigators.com

(713) 807-8811 BILL PELLERIN TEXAS STATE LICENSE #A-7516 President NATIONAL & INTERNATIONAL CAPABILITIES [email protected]

8 Texas Association of Defense Counsel, Inc. Summer 2013 2013 SPRING MEETING

Doubletree Suites – April 3-5, 2013 – Austin, Texas

COURT-ADMISSIBLECOURT-ADMISSIBLE EVIDENCEEVIDENCE Mike Shipman, Heidi Coughlin & Mackenzie Wallace

M.C. Carrington, Hayes Fuller, Ross Pringle & Pat Weaver www.texasinvestigators.com

(713) 807-8811 BILL PELLERIN TEXAS STATE LICENSE #A-7516 President NATIONAL & INTERNATIONAL CAPABILITIES [email protected]

Summer 2013 Texas Association of Defense Counsel, Inc. 9 2013 SPRING MEETING 2013 SPRING MEETING

TADC President Dan Worthington, TTLA President Brad Parker and Past TADC Milton Colia, Sofia Ramon with eith & KaRynn O’Connell Presidents Greg Curry & David Chamberlain

Elliott Taliaferro, Gayla Corley, Jason McLaurin Monika Cooper, Michele Smith, & Mike Hendryx Russell Smith & Ken Tekell

Mitch Moss, Victor & Ileana Vicinaiz, Charlie Downing with Monica & Greg Wilkins 10 Texas Association of Defense Counsel, Inc. Summer 2013 2013 SPRING MEETING 2013 SPRING MEETING

John Stavinoha, Mark Stradley & Tom Ganucheau

Denice & Bryan Pope with Doug Rees

Pat Weaver, Justice Jeff Boyd & TADC Executive Director Bobby Walden

Justice Harriet O’Neill, Justice Paul Green & Christy Amuny

Summer 2013 Texas Association of Defense Counsel, Inc. 11 Notwithstanding the mixed results of the early The expedited actions process that is adopters, more jurisdictions are likely to mandatory3 for any suit where all claimants, EXPEDITED CIVIL ACTIONS continue to look for ways to reduce the cost of other than counter-claimants, affirmatively and investment of time in civil trial actions. The plead for only monetary relief aggregating recent focus on short, summary, and expedited $100,000 or less, including damages of any IN TEXAS trials is likely to continue. kind, penalties, costs, expenses, pre-judgment interest, and attorney fees. Only post judgment By Professor Michael D. Morrison Texas’ Expedited Actions Rules interest is excluded. TRCP 169(b). Baylor University School of Law; Waco The Texas Supreme Court adopted rule A claimant who prosecutes a suit under the rule The Expedited Civil Action1 intended to encourage (or, in a minority of changes to address House Bill 274 (HB 274) cannot recover a judgment in excess of cases, force) litigants to pursue shortened and passed in the 2011 legislative session in order $100,000, period. Even were a claimant to to promote the prompt, efficient, and cost- receive a jury verdict in excess of $100,000, the Effective March 1, 2013, Texas inaugurated a expedited trials. The goal has been to create 4 new civil action. The supreme court tracks that provide streamlined and less effective resolution of certain civil actions. HB judgment may not pierce the $100,000 ceiling. promulgated a new set of rules for expedited expensive pretrial and trial procedures. 274 mandated that the supreme court actions making mandatory a shortened, promulgate and adopt rules to lower the cost of The limitations on recovery do not apply to a summary, and expedited (SSE) process for The evidence is that these programs, at least discovery and to expedite certain trials through counter-claimant. TRCP 169(a)(1). Therefore, most purely monetary claims where the total during the time studied, have not been the civil justice system. Specifically, it required while claimants desiring to try the suit under the recovery sought, excluding only post judgment overwhelming successes in every jurisdiction the supreme court to adopt rules governing expedited action rules may not seek non- interest, does not exceed $100,000. The new where they have been tried. Nevada saw only permissive appeals, offers of judgment, monetary relief or damages exceeding rules govern and alter the trial process from two voluntary uses of the process. In Arizona, dismissals, and expedited civil actions. The $100,000 there is no restriction against a rules governing permissive appeals and counter-claimant from doing so. However, a pleading, through discovery, trial setting, all but two of the SSE trials involved “fender presentation of witnesses and evidence, and benders.” Further, in Arizona, with the dismissals were completed in 2012, while the counter-claim for non-monetary relief or an the maximum judgment that may be entered retirement of the sole judge who championed it, remaining two subject areas were addressed by amount in excess of $100,000 does not remove following a verdict. the program lost “its institutional stature and the supreme court‟s order of February 12, 2013. the case from the expedited action rules absent became „just another‟ optional ADR track.” In Misc. Docket No. 13-9022 a showing of good cause. Consequently, a This article will focus on the substance of the Oregon, only eight cases (rather than the fifty defendant with a counterclaim of significant newly adopted expedited actions process in an that were anticipated) were tried under the HB 274 specified that these rules would apply monetary or nonmonetary value (for example, attempt to provide some initial guidance to expedited process in the first eighteen months to “civil actions in district courts, county courts defamation in a professional malpractice or those dealing with it during its growing pains of the program. at law, and statutory probate courts where the investor fraud suit) may be forced to try the phase. Observations concerning the value or total amount in controversy, inclusive of case without the benefits of full discovery and a fairness of its enactment as a mandatory The NCSC study sought to identify the types of damages, penalties, attorney‟s fees, expenses, plenary trial on the merits. process, which a plaintiff often may initiate or disputes best suited to an expedited process. It costs, interest, or any other type of damage of avoid through artful pleading but which a concluded that the process works best for any kind, does not exceed $100,000.” Pleading Into or out of the Expedited Action: defendant can escape only through a showing disputes that seek lower-value damage awards TRCP 47, Claims for Relief of good cause, are left to another venue. and are factually and legally straightforward. The supreme court, responding to the The benefit of a low ad damnum is self-evident. legislative mandate, enacted an expedited Until the recent amendments, TRCP 47 Background Simple facts impact discovery as well as the actions process. This process is set out in required claimants, cross claimants, counter need for live expert testimony to explain Texas Rules of Civil Procedure (TRCP) 169 claimants, and third-party claimants to plead (1) Texas is not the first jurisdiction to adopt a nuances of the evidence. According to the (creates the process), amendments to TRCP 47 (requires pleading into or out of the process), process providing for shortened, summary, or NCSC report, these characteristics, taken 3 2 TRCP 78(a) (revises the civil case information Except in a suit governed by the Family Code, the expedited civil trials. In a recent report, the together, may make possible “an earlier trial Property Code, the Tax Code, or Chapter 74 of the Civil National Center for State Courts (NCSC) date, a truncated pretrial process, simplified trial sheet), and TRCP 190 (limits discovery). These rule changes only apply to cases filed on Practice & Remedies Code, a suit in which the original published a study of six jurisdictions, which procedures, or some combination thereof.” petition contains the statement in paragraph (c)(1) is or after March 1, 2013. Texas Rule of Evidence have implemented alternative processes governed by the expedited actions process. Comment to An additional characteristic of all but one of the 902(10)(c) (self-authentication) was also TRCP 47.

processes studied is that access is voluntary. amended and these changes apply to all 1 4 This article is the product of the joint contributions of The one exception is Nevada‟s requirement that pending cases, whenever filed. The rule in Greenhalgh v. Service Lloyds Ins. Co., 787 TADC members Dan Worthington, Milton Colia, Mitch a party requesting a trial de novo following S.W.2d 938 (Tex. 1990), expressly does not apply. Smith, Ken Tekell, and Mike Morrison. mandatory arbitration must use its short trial Greenhalgh held that absent a showing of surprise or prejudice by an opposing party, a trial court must grant 2 National Center for State Courts, Short, Summary & program. leave to a party to amend his or her pleadings to conform Expedited: The Evolution of Civil Jury Trials (2012), the amount of damages requested to that awarded by the available at http://www.ncsc.org/SJT/. jury. Comment 4, TRCP 169(b)

12 Texas Association of Defense Counsel, Inc. Summer 2013 Notwithstanding the mixed results of the early The expedited actions process that is adopters, more jurisdictions are likely to mandatory3 for any suit where all claimants, EXPEDITED CIVIL ACTIONS continue to look for ways to reduce the cost of other than counter-claimants, affirmatively and investment of time in civil trial actions. The plead for only monetary relief aggregating recent focus on short, summary, and expedited $100,000 or less, including damages of any IN TEXAS trials is likely to continue. kind, penalties, costs, expenses, pre-judgment interest, and attorney fees. Only post judgment By Professor Michael D. Morrison Texas’ Expedited Actions Rules interest is excluded. TRCP 169(b). Baylor University School of Law; Waco The Texas Supreme Court adopted rule A claimant who prosecutes a suit under the rule The Expedited Civil Action1 intended to encourage (or, in a minority of changes to address House Bill 274 (HB 274) cannot recover a judgment in excess of cases, force) litigants to pursue shortened and passed in the 2011 legislative session in order $100,000, period. Even were a claimant to to promote the prompt, efficient, and cost- receive a jury verdict in excess of $100,000, the Effective March 1, 2013, Texas inaugurated a expedited trials. The goal has been to create 4 new civil action. The supreme court tracks that provide streamlined and less effective resolution of certain civil actions. HB judgment may not pierce the $100,000 ceiling. promulgated a new set of rules for expedited expensive pretrial and trial procedures. 274 mandated that the supreme court actions making mandatory a shortened, promulgate and adopt rules to lower the cost of The limitations on recovery do not apply to a summary, and expedited (SSE) process for The evidence is that these programs, at least discovery and to expedite certain trials through counter-claimant. TRCP 169(a)(1). Therefore, most purely monetary claims where the total during the time studied, have not been the civil justice system. Specifically, it required while claimants desiring to try the suit under the recovery sought, excluding only post judgment overwhelming successes in every jurisdiction the supreme court to adopt rules governing expedited action rules may not seek non- interest, does not exceed $100,000. The new where they have been tried. Nevada saw only permissive appeals, offers of judgment, monetary relief or damages exceeding rules govern and alter the trial process from two voluntary uses of the process. In Arizona, dismissals, and expedited civil actions. The $100,000 there is no restriction against a rules governing permissive appeals and counter-claimant from doing so. However, a pleading, through discovery, trial setting, all but two of the SSE trials involved “fender presentation of witnesses and evidence, and benders.” Further, in Arizona, with the dismissals were completed in 2012, while the counter-claim for non-monetary relief or an the maximum judgment that may be entered retirement of the sole judge who championed it, remaining two subject areas were addressed by amount in excess of $100,000 does not remove following a verdict. the program lost “its institutional stature and the supreme court‟s order of February 12, 2013. the case from the expedited action rules absent became „just another‟ optional ADR track.” In Misc. Docket No. 13-9022 a showing of good cause. Consequently, a This article will focus on the substance of the Oregon, only eight cases (rather than the fifty defendant with a counterclaim of significant newly adopted expedited actions process in an that were anticipated) were tried under the HB 274 specified that these rules would apply monetary or nonmonetary value (for example, attempt to provide some initial guidance to expedited process in the first eighteen months to “civil actions in district courts, county courts defamation in a professional malpractice or those dealing with it during its growing pains of the program. at law, and statutory probate courts where the investor fraud suit) may be forced to try the phase. Observations concerning the value or total amount in controversy, inclusive of case without the benefits of full discovery and a fairness of its enactment as a mandatory The NCSC study sought to identify the types of damages, penalties, attorney‟s fees, expenses, plenary trial on the merits. process, which a plaintiff often may initiate or disputes best suited to an expedited process. It costs, interest, or any other type of damage of avoid through artful pleading but which a concluded that the process works best for any kind, does not exceed $100,000.” Pleading Into or out of the Expedited Action: defendant can escape only through a showing disputes that seek lower-value damage awards TRCP 47, Claims for Relief of good cause, are left to another venue. and are factually and legally straightforward. The supreme court, responding to the The benefit of a low ad damnum is self-evident. legislative mandate, enacted an expedited Until the recent amendments, TRCP 47 Background Simple facts impact discovery as well as the actions process. This process is set out in required claimants, cross claimants, counter need for live expert testimony to explain Texas Rules of Civil Procedure (TRCP) 169 claimants, and third-party claimants to plead (1) Texas is not the first jurisdiction to adopt a nuances of the evidence. According to the (creates the process), amendments to TRCP 47 (requires pleading into or out of the process), process providing for shortened, summary, or NCSC report, these characteristics, taken 3 2 TRCP 78(a) (revises the civil case information Except in a suit governed by the Family Code, the expedited civil trials. In a recent report, the together, may make possible “an earlier trial Property Code, the Tax Code, or Chapter 74 of the Civil National Center for State Courts (NCSC) date, a truncated pretrial process, simplified trial sheet), and TRCP 190 (limits discovery). These rule changes only apply to cases filed on Practice & Remedies Code, a suit in which the original published a study of six jurisdictions, which procedures, or some combination thereof.” petition contains the statement in paragraph (c)(1) is or after March 1, 2013. Texas Rule of Evidence have implemented alternative processes governed by the expedited actions process. Comment to An additional characteristic of all but one of the 902(10)(c) (self-authentication) was also TRCP 47. processes studied is that access is voluntary. amended and these changes apply to all 1 4 This article is the product of the joint contributions of The one exception is Nevada‟s requirement that pending cases, whenever filed. The rule in Greenhalgh v. Service Lloyds Ins. Co., 787 TADC members Dan Worthington, Milton Colia, Mitch a party requesting a trial de novo following S.W.2d 938 (Tex. 1990), expressly does not apply. Smith, Ken Tekell, and Mike Morrison. mandatory arbitration must use its short trial Greenhalgh held that absent a showing of surprise or prejudice by an opposing party, a trial court must grant 2 National Center for State Courts, Short, Summary & program. leave to a party to amend his or her pleadings to conform Expedited: The Evolution of Civil Jury Trials (2012), the amount of damages requested to that awarded by the available at http://www.ncsc.org/SJT/. jury. Comment 4, TRCP 169(b)

Summer 2013 Texas Association of Defense Counsel, Inc. 13 a short statement of the claim to give sufficient interest, and attorney fees (bringing them within A defendant who receives a discovery request makes an appearance, the discovery period and fair notice; (2) that the damages sought the expedited actions process), and (2) those from a noncomplying claimant should not could be less than 180 days and it could be were within the jurisdiction of the court, if the that seek non-monetary relief as well ignore the request and risk waiving available even shorter for a later served co-defendant or claim was for unliquidated damages only; and (disqualifying them from the expedited actions objections nor should he ignore TRCP 47 by third-party defendant. (3) a demand for other relief sought. Parties process). While the process is always replying substantively. Rather, the defendant desiring more specific information obtained it mandatory for the defendant, many plaintiffs will should respond with an objection reciting the In addition to the 180-day limitation, each party through a special exception. experience it as voluntary by adjusting the claimant‟s failure to comply with the may have not more than six hours in total to damages claim up or down or including or requirements of TRCP 47 and seek a ruling examine and cross-examine all witnesses in The amended TRCP 475 continues the first and excluding a claim for nonmonetary relief. and order from the trial court. oral depositions. In a departure from the initial third requirements of the prior version but now version of the rules the rules as adopted allow requires parties also to plead into or out of the Finally, as amended, TRCP 47 provides that if A comment to TRCP 47 states: “The further the parties to agree to “expand this limit up to newly enacted expedited actions process the original pleading does not state the specificity in paragraphs 47(c)(2)-(5) is to ten hours in total, but not more except by court governed by TRCP 169. As amended, it makes amount and types of damages being sought, provide information regarding the nature of order.” The court may modify the time allocated two changes to the prior practice. First, all the plaintiff must amend if the defendant seeks cases filed and does not affect a party‟s to depositions to prevent any party from gaining claims, not just those for unliquidated damages, this information via special exception. substantive rights.” The Greenhalgh rule an unfair advantage. TRCP 190.2 (b) (2) must state that the damages sought are within Importantly, no discovery may take place until should still be available to non-complying the jurisdictional limits of the court. Second, the pleading has been amended.6 Unless claimants since the case has not been “pleaded Additional limitations preclude any party from except in suits governed by the Family Code, the trial judge chooses sua sponte to bar into” the expedited actions rule. It seems that serving on any other party more than fifteen the amount of monetary relief sought must be discovery until a conforming pleading is filed, it counterclaimants can continue to rely on the written interrogatories, excluding those asking a identified as falling within one of four dollar- is left to the defendant to seek enforcement of Greenhalgh rule for a verdict that exceeds the party only to identify or authenticate specific amount tiers, (1) for monetary relief of: this limitation. damages claimed even if the case is filed and documents; fifteen written requests for $100,000 or less, (2) over $100,000 but not tried as an expedited action. production; and fifteen written requests for more than $500,000, (3) over $500,000 but not A defendant who desires that the plaintiff plead admissions. Each discrete subpart of an more than $1,000,000, and (4) over into or out of the expedited process should file a Discovery interrogatory or a request for production or $1,000,000. special exception, the format of which will be admission is considered a separate request for similar to that used to confirm that a dispute House Bill 274 specifically mandated that the purposes of the limitations. TRCP 190.2 (b) (3- Additionally, claims for $100,000 or less must meets the minimal jurisdictional limits of the supreme court adopt rules to “address the need 5) be divided between (1) claims that seek only court. For example: for lowering discovery costs in these actions monetary relief including damages of any kind, and the procedure for ensuring that these “In addition to the content subject to disclosure penalties, costs, expenses, pre-judgment Defendant specially excepts to the actions will be expedited in the civil justice under TRCP 194.2, a party may request (original petition, counterclaim, system.” The court addressed this mandate by disclosure of all documents, electronic

5 cross-claim, or third party claim) in that imposing specific limitations on discovery. information, and tangible items that the An original pleading which sets forth a claim for this pleading fails to comply with Discovery is governed by and limited to “Level disclosing party has in its possession, custody, relief, whether an original petition, counterclaim, TRCP 47 which requires that the party 1” under the provisions of TRCP 190.2, as or control and may use to support its claims or cross-claim, or third party claim, shall contain identify the amount and type of amended. defenses. A request for disclosure made (a) a short statement of the cause of action sufficient to give fair notice of the claim damages being sought. This party pursuant to this paragraph” does not count involved; requests that ______Under the limitations imposed by the expedited against the fifteen requests for production (b) a statement that the damages sought are comply with TRCP 47(c) and amend actions process, the discovery period, like the limitation. TRCP 190.2 (b) (6) within the jurisdictional limits of the court; this pleading to identify the amount and prior version of a Level 1 Discovery Control (c) except in suits governed by the Family Code, types of damages being sought. Plan, “begins when the suit is filed.” However, Interestingly, the time limitations of TRCP 190 a statement that the party seeks: Defendant requests that this special under the expedited process the discovery are imposed on a per-party basis, while those (1) only monetary relief of $100,000 or less, exception be set for hearing and that period now “continues until 180 days after the under TRCP 169 are imposed on a per-side including damages of any kind, penalties, said special exception be granted, date the first request for discovery of any kind is basis. Litigants should consider this distinction costs, expenses, pre-judgment interest, and and further requests that served on a party.” 190.2(b)(1). Ostensibly, the when moving to adjust discovery or to modify attorney fees; or ______not conduct any 180-day discovery period could begin running trial time. (2) monetary relief of $100,000 or less and non-monetary relief; or discovery until ______pleading is upon service of citation if the attached petition (3) monetary relief over $100,000 but not amended to comply. includes a request for disclosure or any type of If a suit is removed from the expedited actions more than $200,000; or discovery. This is not limited to written process of TRCP 169, the court must reopen (4) monetary relief over $200,000 but not 6 Relief in the alternative or of several different types may discovery requests. “Written discovery” as discovery under TRCP 190.2(c), which more than $1,000,000; or be demanded; provided, further, that upon special defined in TRCP 192.7 excludes deposition specifies discovery will be conducted under (5) monetary relief over $1,000,000; and exception the court shall require the pleader to amend so notices, but TRCP 190.2(b)(1) is not limited to TRCP 190.3 (Level 2) or TRCP 190.4 (Level 3), (d) a demand for judgment for all the other relief as to specify the maximum amount claimed. A party that “written discovery” and could encompass a whichever is applicable. Any person previously to which the party deems himself entitled. fails to comply with (c) may not conduct discovery until deposition notice. By the time a defendant deposed may be redeposed. On motion of any the party’s pleading is amended to comply.

14 Texas Association of Defense Counsel, Inc. Summer 2013 a short statement of the claim to give sufficient interest, and attorney fees (bringing them within A defendant who receives a discovery request makes an appearance, the discovery period and fair notice; (2) that the damages sought the expedited actions process), and (2) those from a noncomplying claimant should not could be less than 180 days and it could be were within the jurisdiction of the court, if the that seek non-monetary relief as well ignore the request and risk waiving available even shorter for a later served co-defendant or claim was for unliquidated damages only; and (disqualifying them from the expedited actions objections nor should he ignore TRCP 47 by third-party defendant. (3) a demand for other relief sought. Parties process). While the process is always replying substantively. Rather, the defendant desiring more specific information obtained it mandatory for the defendant, many plaintiffs will should respond with an objection reciting the In addition to the 180-day limitation, each party through a special exception. experience it as voluntary by adjusting the claimant‟s failure to comply with the may have not more than six hours in total to damages claim up or down or including or requirements of TRCP 47 and seek a ruling examine and cross-examine all witnesses in The amended TRCP 475 continues the first and excluding a claim for nonmonetary relief. and order from the trial court. oral depositions. In a departure from the initial third requirements of the prior version but now version of the rules the rules as adopted allow requires parties also to plead into or out of the Finally, as amended, TRCP 47 provides that if A comment to TRCP 47 states: “The further the parties to agree to “expand this limit up to newly enacted expedited actions process the original pleading does not state the specificity in paragraphs 47(c)(2)-(5) is to ten hours in total, but not more except by court governed by TRCP 169. As amended, it makes amount and types of damages being sought, provide information regarding the nature of order.” The court may modify the time allocated two changes to the prior practice. First, all the plaintiff must amend if the defendant seeks cases filed and does not affect a party‟s to depositions to prevent any party from gaining claims, not just those for unliquidated damages, this information via special exception. substantive rights.” The Greenhalgh rule an unfair advantage. TRCP 190.2 (b) (2) must state that the damages sought are within Importantly, no discovery may take place until should still be available to non-complying the jurisdictional limits of the court. Second, the pleading has been amended.6 Unless claimants since the case has not been “pleaded Additional limitations preclude any party from except in suits governed by the Family Code, the trial judge chooses sua sponte to bar into” the expedited actions rule. It seems that serving on any other party more than fifteen the amount of monetary relief sought must be discovery until a conforming pleading is filed, it counterclaimants can continue to rely on the written interrogatories, excluding those asking a identified as falling within one of four dollar- is left to the defendant to seek enforcement of Greenhalgh rule for a verdict that exceeds the party only to identify or authenticate specific amount tiers, (1) for monetary relief of: this limitation. damages claimed even if the case is filed and documents; fifteen written requests for $100,000 or less, (2) over $100,000 but not tried as an expedited action. production; and fifteen written requests for more than $500,000, (3) over $500,000 but not A defendant who desires that the plaintiff plead admissions. Each discrete subpart of an more than $1,000,000, and (4) over into or out of the expedited process should file a Discovery interrogatory or a request for production or $1,000,000. special exception, the format of which will be admission is considered a separate request for similar to that used to confirm that a dispute House Bill 274 specifically mandated that the purposes of the limitations. TRCP 190.2 (b) (3- Additionally, claims for $100,000 or less must meets the minimal jurisdictional limits of the supreme court adopt rules to “address the need 5) be divided between (1) claims that seek only court. For example: for lowering discovery costs in these actions monetary relief including damages of any kind, and the procedure for ensuring that these “In addition to the content subject to disclosure penalties, costs, expenses, pre-judgment Defendant specially excepts to the actions will be expedited in the civil justice under TRCP 194.2, a party may request (original petition, counterclaim, system.” The court addressed this mandate by disclosure of all documents, electronic

Summer 2013 Texas Association of Defense Counsel, Inc. 15

party, the court should but is not required to Upon request by any party, the court must set agree to engage in any type of ADR. This This motion is implicated for both the discovery continue the trial date if necessary to permit the case for a trial date within the ninety-day seeming would allow a lengthier, more costly and trial limitations. The defendant should file a completion of discovery. TRCP 169(c)(3) period following the conclusion of the 180-day ADR process not bound by the one time or motion to remove as soon after filing the discovery period. Conceivably, the request sixty-day restrictions. answer as an affidavit detailing the basis for Although expedited actions are not subject to could come from the plaintiff immediately upon good cause can be executed and presented in mandatory additional discovery under amended filing the lawsuit, and the court could set the Time Limits for Trial good faith. Regardless of whether a motion TRCP 190.5, the court may still allow additional case for trial on the first day following the was filed prior to the conclusion of the discovery discovery if the conditions of TRCP 190(a) [sic conclusion of the discovery period, which Each side is allowed not more than eight hours period, a motion should be urged once 190.2(a)?] are met. Comment to 2013 change means that the case could go to trial in fewer to complete jury selection, opening statements, discovery is completed detailing the good cause than 180 days from a defendant‟s answer if the presentation of evidence, examination and for discharge as it relates to the trial limitations. Finally, the limitations on discovery imposed by discovery is triggered by a written discovery cross examination of witnesses, and closing The factors to be considered by the court TRCP 190 do not impact discovery conducted request included in the original petition served arguments. Only time spent on objections, include whether there are multiple claimants under TRCP 202 (Depositions Before Suit or to upon defendant. However, the court still must bench conferences, bills of exception, and whose claims aggregate over $100,000, Investigate Claims), or TRCP 621(a) (Discovery comply with TRCP 245 and 246 which prohibit challenges for cause to a juror under TRCP 228 whether a defendant has filed a compulsory and Enforcement of Judgment). But TRCP 202 a first trial setting with fewer than forty-five days is not included in the mandatory time limit. On counterclaim in good faith that seeks relief other cannot be used to circumvent the limitations of notice from the court clerk (presuming the clerk motion and a showing of good cause by any than that allowed in TRCP 169(a)(1), the TRCP 190. TRCP 190.6 received a request for notice by mail with a party, the court may extend the time limit to not number of parties and witnesses, the SASE.) A court may continue a case but not more than twelve hours per side. TRCP complexity of the legal and factual issues, and Discovery and Trial Calendar more than two times and not beyond an 169(d)(3) whether an interpreter is necessary. Comment aggregate time limitation of sixty days. TRCP 3, TRCP 169. 169(d) (2) Motion to Extend Trial Presentation Time Upon removal from the expedited action Timeline: This motion seeks to enlarge the “per-side” process, the court must reopen discovery Discovery period begins 190.2(b)(1) Plaintiff files suit maximum trial presentation time limits from under TRCP 190.2(c). Additionally, the court 180-day countdown begins 190.2(b)(1) Upon service of any written discovery eight to twelve hours. The movant must should continue the case to permit the Upon response to RFD or 90 days before end establish “good cause” and the motion should completion of discovery. The defendant should Plaintiff designates experts of discovery period (this could be less than 90 be urged prior to the commencement of trial. consider filing a motion for continuance 195.2 days after defendant files an answer) The factors that support a finding of “good immediately following removal setting forth the Defendant designates experts 195.2 Upon response to RFD or 60 days before end cause” are the same as those for removing the time required to complete discovery along with of discovery period case from the expedited process. Since the as detailed a list as is possible of the discovery Discovery period ends 190.2(b)(1) 180 days after first written discovery served rules do not vest the court with discretion to needed to be completed. At a minimum, a Trial 169(d)(2) Anytime within 90 days of conclusion of allow more than twelve hours per side, if the defendant should consider redeposing any discovery period issues supporting good cause cannot be witness previously deposed. resolved within the twelve-hour limit, the case Expert Testimony category of an “objection” and thus not count must be removed from the expedited process. A defendant should give some thought when against the party‟s eight-hour trial allotment, it is Therefore, it might be good practice to submit a arguing that good cause exists against being A challenge to the admissibility of expert not clearly stated in the rule. Motions to strike motion to adjust or extend time and a motion to forced into the expedited process to the testimony can only be made as an objection to for late designation are not subject to these remove, in the alternative. possibility that later, after significant summary judgment evidence under TRCP 166a restrictions. preparation has been undertaken, the or during trial on the merits, unless the Motion to Remove, TRCP 169(c) defendant may wish to oppose a claimant‟s challenge is requested by the parties Alternative Dispute Resolution motion to remove. sponsoring the expert. Daubert/Havner A court must remove a suit from the expedited motions are not an option unless made in the The court may order ADR one time, unless the actions process upon a motion and a showing One who anticipates being sued on a claim form of an objection to summary judgment parties have agreed otherwise. However, a of good cause by any party or if any claimant, unlikely to exceed $100,000 under evidence. As a practical matter the potentially court-ordered procedure is limited to a single other than a counter-claimant, files a pleading circumstances where he would have a short timelines for discovery, expert ADR process of not more than a half-day in or an amended or supplemental pleading that significant counterclaim faces a dilemma. In designation, and a trial setting may preclude duration and at a cost not more than twice the seeks any relief other than the monetary relief order to litigate his claim with the benefits of squeezing in a TRCP 166a motion for summary amount of applicable civil filing fees. Court- allowed by TRCP 169(a)(1). Such an amended complete discovery and a full trial he must judgment. The remaining avenue by which a ordered ADR must be completed no later than pleading must demonstrate good cause if filed avoid the expedited actions process. He must party can challenge the admissibility of expert 60 days before the initial trial setting. Finally, more than thirty days after the discovery period determine whether it‟s best to win the race to testimony is during the trial on the merits. the rule requires the court to consider ends or within thirty days of the date the matter the courthouse or to rely on establishing to the However, though it seems that a challenge to objections to an ADR referral unless prohibited is set for trial, whichever is earlier. TRCP trial court‟s satisfaction the good faith of the an opposing party‟s expert would fall into the by statute. The parties, on the other hand, may 169(c)(2)

16 Texas Association of Defense Counsel, Inc. Summer 2013 party, the court should but is not required to Upon request by any party, the court must set agree to engage in any type of ADR. This This motion is implicated for both the discovery continue the trial date if necessary to permit the case for a trial date within the ninety-day seeming would allow a lengthier, more costly and trial limitations. The defendant should file a completion of discovery. TRCP 169(c)(3) period following the conclusion of the 180-day ADR process not bound by the one time or motion to remove as soon after filing the discovery period. Conceivably, the request sixty-day restrictions. answer as an affidavit detailing the basis for Although expedited actions are not subject to could come from the plaintiff immediately upon good cause can be executed and presented in mandatory additional discovery under amended filing the lawsuit, and the court could set the Time Limits for Trial good faith. Regardless of whether a motion TRCP 190.5, the court may still allow additional case for trial on the first day following the was filed prior to the conclusion of the discovery discovery if the conditions of TRCP 190(a) [sic conclusion of the discovery period, which Each side is allowed not more than eight hours period, a motion should be urged once 190.2(a)?] are met. Comment to 2013 change means that the case could go to trial in fewer to complete jury selection, opening statements, discovery is completed detailing the good cause than 180 days from a defendant‟s answer if the presentation of evidence, examination and for discharge as it relates to the trial limitations. Finally, the limitations on discovery imposed by discovery is triggered by a written discovery cross examination of witnesses, and closing The factors to be considered by the court TRCP 190 do not impact discovery conducted request included in the original petition served arguments. Only time spent on objections, include whether there are multiple claimants under TRCP 202 (Depositions Before Suit or to upon defendant. However, the court still must bench conferences, bills of exception, and whose claims aggregate over $100,000, Investigate Claims), or TRCP 621(a) (Discovery comply with TRCP 245 and 246 which prohibit challenges for cause to a juror under TRCP 228 whether a defendant has filed a compulsory and Enforcement of Judgment). But TRCP 202 a first trial setting with fewer than forty-five days is not included in the mandatory time limit. On counterclaim in good faith that seeks relief other cannot be used to circumvent the limitations of notice from the court clerk (presuming the clerk motion and a showing of good cause by any than that allowed in TRCP 169(a)(1), the TRCP 190. TRCP 190.6 received a request for notice by mail with a party, the court may extend the time limit to not number of parties and witnesses, the SASE.) A court may continue a case but not more than twelve hours per side. TRCP complexity of the legal and factual issues, and Discovery and Trial Calendar more than two times and not beyond an 169(d)(3) whether an interpreter is necessary. Comment aggregate time limitation of sixty days. TRCP 3, TRCP 169. 169(d) (2) Motion to Extend Trial Presentation Time Upon removal from the expedited action Timeline: This motion seeks to enlarge the “per-side” process, the court must reopen discovery Discovery period begins 190.2(b)(1) Plaintiff files suit maximum trial presentation time limits from under TRCP 190.2(c). Additionally, the court 180-day countdown begins 190.2(b)(1) Upon service of any written discovery eight to twelve hours. The movant must should continue the case to permit the Upon response to RFD or 90 days before end establish “good cause” and the motion should completion of discovery. The defendant should Plaintiff designates experts of discovery period (this could be less than 90 be urged prior to the commencement of trial. consider filing a motion for continuance 195.2 days after defendant files an answer) The factors that support a finding of “good immediately following removal setting forth the Defendant designates experts 195.2 Upon response to RFD or 60 days before end cause” are the same as those for removing the time required to complete discovery along with of discovery period case from the expedited process. Since the as detailed a list as is possible of the discovery Discovery period ends 190.2(b)(1) 180 days after first written discovery served rules do not vest the court with discretion to needed to be completed. At a minimum, a Trial 169(d)(2) Anytime within 90 days of conclusion of allow more than twelve hours per side, if the defendant should consider redeposing any discovery period issues supporting good cause cannot be witness previously deposed. resolved within the twelve-hour limit, the case Expert Testimony category of an “objection” and thus not count must be removed from the expedited process. A defendant should give some thought when against the party‟s eight-hour trial allotment, it is Therefore, it might be good practice to submit a arguing that good cause exists against being A challenge to the admissibility of expert not clearly stated in the rule. Motions to strike motion to adjust or extend time and a motion to forced into the expedited process to the testimony can only be made as an objection to for late designation are not subject to these remove, in the alternative. possibility that later, after significant summary judgment evidence under TRCP 166a restrictions. preparation has been undertaken, the or during trial on the merits, unless the Motion to Remove, TRCP 169(c) defendant may wish to oppose a claimant‟s challenge is requested by the parties Alternative Dispute Resolution motion to remove. sponsoring the expert. Daubert/Havner A court must remove a suit from the expedited motions are not an option unless made in the The court may order ADR one time, unless the actions process upon a motion and a showing One who anticipates being sued on a claim form of an objection to summary judgment parties have agreed otherwise. However, a of good cause by any party or if any claimant, unlikely to exceed $100,000 under evidence. As a practical matter the potentially court-ordered procedure is limited to a single other than a counter-claimant, files a pleading circumstances where he would have a short timelines for discovery, expert ADR process of not more than a half-day in or an amended or supplemental pleading that significant counterclaim faces a dilemma. In designation, and a trial setting may preclude duration and at a cost not more than twice the seeks any relief other than the monetary relief order to litigate his claim with the benefits of squeezing in a TRCP 166a motion for summary amount of applicable civil filing fees. Court- allowed by TRCP 169(a)(1). Such an amended complete discovery and a full trial he must judgment. The remaining avenue by which a ordered ADR must be completed no later than pleading must demonstrate good cause if filed avoid the expedited actions process. He must party can challenge the admissibility of expert 60 days before the initial trial setting. Finally, more than thirty days after the discovery period determine whether it‟s best to win the race to testimony is during the trial on the merits. the rule requires the court to consider ends or within thirty days of the date the matter the courthouse or to rely on establishing to the However, though it seems that a challenge to objections to an ADR referral unless prohibited is set for trial, whichever is earlier. TRCP trial court‟s satisfaction the good faith of the an opposing party‟s expert would fall into the by statute. The parties, on the other hand, may 169(c)(2)

Summer 2013 Texas Association of Defense Counsel, Inc. 17 counterclaim or some other basis sufficient to Investments, Inc., 893 S.W.2d 38 (Tex. App.— motion to extend versus one to remove seems the elimination of an unfair advantage” require remove the suit from the expedited process. Of Corpus Christi 1994, no pet.). likely to differ more in degree than kind. awarding any side more than twelve hours, then course, if the case was filed in a county court- good cause exists to remove the case from the at-law with a jurisdictional limit of $200,000, the The time at which the trial judge must Black‟s Law Dictionary generally defines “good expedited process. defendant is free to file a separate claim for determine how time will be allocated to the cause” as the burden placed upon a litigant to more than the court‟s jurisdictional limit in “sides” in an expedited trial is not set out in show why a request should be granted or an Only time will tell what will prove to be a another court with sufficient jurisdiction. TRCP 169. Under TRCP 233 the trial judge action excused. BLACK‟S LAW DICTIONARY 213 satisfactory showing of good cause in an Jurisdiction for a large counterclaim is not rules on the number of peremptory challenges (7th ed. 1999). However, the term “good cause” expedited action setting. History being any derivative of the jurisdiction over the plaintiff‟s following voir dire and prior to strikes since the lacks a standardized meaning and can mean guide, litigants can be expected to craft creative case but is established separately. rule addresses peremptory challenges. different things in different contexts. arguments for and against “good cause,” which However, since voir dire counts against the time Montgomery County Hosp. Dist. v. Brown, 965 will be interpreted inconsistently until the high Motion to Adjust or Equalize Time restrictions addressed in a motion to adjust or S.W.2d 501, 504 (Tex. 1998) (J. Gonzalez, court has the opportunity to expand upon its equalize, the motion should be made and ruled concurring); see also In the Interest of M.C.F., commentary to the rules. This motion seeks to adjust or to equalize the on prior to voir dire based on the pleadings and 121 S.W.3d 891, 896 (Tex. App.—Fort Worth “per-side” time permitted for presentation discovery responses. Then, if necessary, the 2003, orig. proceeding) (recognizing the Conclusion between the plaintiff(s) and defendant(s). motion should be made again following voir dire different definitions of good cause depending TRCP 169 gives the trial court discretion to if additional information developed during voir on the circumstances). A court‟s interpretation It remains to be seen whether claimants, given adjust the time per “side” based on its review of dire representations and disclosures bears of the term “good cause” changes depending an opportunity, will tend to opt into or out of this the pleadings, discovery, and any information or upon the request. The motion might properly on the situation. Carpenter v. Cimarron new process. While it is “mandatory,” it leaves disclosures made during voir dire, but it does be made again even if the initial motion was Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. ample room for artful pleading in all but the not specify that the “sides” be allocated the granted since a further adjustment of time may 2002). most straightforward monetary damage claims. same amount of time. Where there are multiple be appropriate as a result of the information Boutique firms or departments within firms defendants or claimants, the court must gained through voir dire. What does a motion to modify or terminate the might well specialize in prosecuting expedited determine how to apply the maximum time process require? Initially, the proposed rules civil actions. Larger firms in particular might limits “per side.” The language of TRCP 233, if modified to apply provided no guidance on the meaning of “good see the expedited action as an ideal training to trial time, might reasonably be read to cause” as applied to a motion to remove a case ground for inexperienced trial lawyers. In fact, TRCP 169 (d)(3)(A) declares that “the term provide: from the expedited process. As adopted, the slow (or, not so slow—depending on one‟s „side‟ has the same definition set out in TRCP however, the rules now give some guidance. point of view) erosion of the civil jury trial is one 233.” TRCP 233 addresses peremptory “In multiple party cases, upon motion of justification offered for the development of the challenges, and within it the term “side” “means any litigant made prior to the exercise of In Comment 3 to TRCP 169, the supreme court expedited action. The other justification, in fact one or more litigants who have common peremptory challenges or following voir offers the following: “In determining whether the main justification, is to provide a cost- interests on the matters with which the jury is dire, it shall be the duty of the trial judge there is good cause to remove the case from effective avenue to the courtroom for litigants. concerned.” It “is not synonymous with „party,‟ to equalize the number of peremptory the process or extend the time limit for trial, the Only time will tell to what extent the expedited „litigant,‟ or „person.‟ ” In multiple party cases, challenges adjust trial time so that no court should consider factors such as whether actions process will be pleaded into and how TRCP 233 requires that the trial judge litigant or side is given unfair advantage the damages sought by multiple claimants well it will fulfill the legislature‟s expectations. determine whether any of the litigants aligned as a result of the alignment of the against the same defendant exceed in the The ultimate question begged by Texas‟ on the same side of the docket are antagonistic litigants and the award of peremptory aggregate the relief allowed under 169(a)(1), mandatory approach is whether in a given case, with respect to any issue to be submitted to the challenges allocation of trial time to whether a defendant has filed a compulsory it advances or retards fairness and justice: a jury. each litigant or side. In determining how counterclaim in good faith that seeks relief other question likely to be viewed and answered the challenges time should be allocated than that allowed under 169(a)(1), the number differently, depending on whose ox is being The defendant can bring to the attention of the the court shall consider any matter of parties and witnesses, the complexity of the gored. trial judge any matter concerning the ends of brought to the attention of the trial judge legal and factual issues, and whether an justice and elimination of an unfair advantage. concerning the ends of justice and the interpreter is necessary.” In its determination of antagonism, the court elimination of an unfair advantage.” must consider the parties‟ pleadings, Good cause to “adjust or equalize time” exists information disclosed by pretrial discovery, Good Cause where justice demands that a party be allowed information and representations made during additional time to compensate for an imbalance voir dire of the jury panel, as well as any Good cause must be shown (1) under TRCP created by the existence of a greater number of information brought to the court‟s attention by 169(3) to extend trial time, (2) under TRCP parties being allocated trial time on the other means. Moore v. Altra Energy Techs., 169(c)(1)(A) to remove a case from the opposing “side.” Good cause would be based th 321 S.W.3d 727, 741 (Tex. App.—Houston [14 expedited process, and (3) under TRCP 169 on the unfairness of holding each “side” to the Dist.] 2010, pet. denied); Cecil v. T.M.E. (c)(2) when the motion to remove is filed same time limits. As noted above, if the trial untimely. The proof required to support a court determines that “the ends of justice and

18 Texas Association of Defense Counsel, Inc. Summer 2013 counterclaim or some other basis sufficient to Investments, Inc., 893 S.W.2d 38 (Tex. App.— motion to extend versus one to remove seems the elimination of an unfair advantage” require remove the suit from the expedited process. Of Corpus Christi 1994, no pet.). likely to differ more in degree than kind. awarding any side more than twelve hours, then course, if the case was filed in a county court- good cause exists to remove the case from the at-law with a jurisdictional limit of $200,000, the The time at which the trial judge must Black‟s Law Dictionary generally defines “good expedited process. defendant is free to file a separate claim for determine how time will be allocated to the cause” as the burden placed upon a litigant to more than the court‟s jurisdictional limit in “sides” in an expedited trial is not set out in show why a request should be granted or an Only time will tell what will prove to be a another court with sufficient jurisdiction. TRCP 169. Under TRCP 233 the trial judge action excused. BLACK‟S LAW DICTIONARY 213 satisfactory showing of good cause in an Jurisdiction for a large counterclaim is not rules on the number of peremptory challenges (7th ed. 1999). However, the term “good cause” expedited action setting. History being any derivative of the jurisdiction over the plaintiff‟s following voir dire and prior to strikes since the lacks a standardized meaning and can mean guide, litigants can be expected to craft creative case but is established separately. rule addresses peremptory challenges. different things in different contexts. arguments for and against “good cause,” which However, since voir dire counts against the time Montgomery County Hosp. Dist. v. Brown, 965 will be interpreted inconsistently until the high Motion to Adjust or Equalize Time restrictions addressed in a motion to adjust or S.W.2d 501, 504 (Tex. 1998) (J. Gonzalez, court has the opportunity to expand upon its equalize, the motion should be made and ruled concurring); see also In the Interest of M.C.F., commentary to the rules. This motion seeks to adjust or to equalize the on prior to voir dire based on the pleadings and 121 S.W.3d 891, 896 (Tex. App.—Fort Worth “per-side” time permitted for presentation discovery responses. Then, if necessary, the 2003, orig. proceeding) (recognizing the Conclusion between the plaintiff(s) and defendant(s). motion should be made again following voir dire different definitions of good cause depending TRCP 169 gives the trial court discretion to if additional information developed during voir on the circumstances). A court‟s interpretation It remains to be seen whether claimants, given adjust the time per “side” based on its review of dire representations and disclosures bears of the term “good cause” changes depending an opportunity, will tend to opt into or out of this the pleadings, discovery, and any information or upon the request. The motion might properly on the situation. Carpenter v. Cimarron new process. While it is “mandatory,” it leaves disclosures made during voir dire, but it does be made again even if the initial motion was Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. ample room for artful pleading in all but the not specify that the “sides” be allocated the granted since a further adjustment of time may 2002). most straightforward monetary damage claims. same amount of time. Where there are multiple be appropriate as a result of the information Boutique firms or departments within firms defendants or claimants, the court must gained through voir dire. What does a motion to modify or terminate the might well specialize in prosecuting expedited determine how to apply the maximum time process require? Initially, the proposed rules civil actions. Larger firms in particular might limits “per side.” The language of TRCP 233, if modified to apply provided no guidance on the meaning of “good see the expedited action as an ideal training to trial time, might reasonably be read to cause” as applied to a motion to remove a case ground for inexperienced trial lawyers. In fact, TRCP 169 (d)(3)(A) declares that “the term provide: from the expedited process. As adopted, the slow (or, not so slow—depending on one‟s „side‟ has the same definition set out in TRCP however, the rules now give some guidance. point of view) erosion of the civil jury trial is one 233.” TRCP 233 addresses peremptory “In multiple party cases, upon motion of justification offered for the development of the challenges, and within it the term “side” “means any litigant made prior to the exercise of In Comment 3 to TRCP 169, the supreme court expedited action. The other justification, in fact one or more litigants who have common peremptory challenges or following voir offers the following: “In determining whether the main justification, is to provide a cost- interests on the matters with which the jury is dire, it shall be the duty of the trial judge there is good cause to remove the case from effective avenue to the courtroom for litigants. concerned.” It “is not synonymous with „party,‟ to equalize the number of peremptory the process or extend the time limit for trial, the Only time will tell to what extent the expedited „litigant,‟ or „person.‟ ” In multiple party cases, challenges adjust trial time so that no court should consider factors such as whether actions process will be pleaded into and how TRCP 233 requires that the trial judge litigant or side is given unfair advantage the damages sought by multiple claimants well it will fulfill the legislature‟s expectations. determine whether any of the litigants aligned as a result of the alignment of the against the same defendant exceed in the The ultimate question begged by Texas‟ on the same side of the docket are antagonistic litigants and the award of peremptory aggregate the relief allowed under 169(a)(1), mandatory approach is whether in a given case, with respect to any issue to be submitted to the challenges allocation of trial time to whether a defendant has filed a compulsory it advances or retards fairness and justice: a jury. each litigant or side. In determining how counterclaim in good faith that seeks relief other question likely to be viewed and answered the challenges time should be allocated than that allowed under 169(a)(1), the number differently, depending on whose ox is being The defendant can bring to the attention of the the court shall consider any matter of parties and witnesses, the complexity of the gored. trial judge any matter concerning the ends of brought to the attention of the trial judge legal and factual issues, and whether an justice and elimination of an unfair advantage. concerning the ends of justice and the interpreter is necessary.” In its determination of antagonism, the court elimination of an unfair advantage.” must consider the parties‟ pleadings, Good cause to “adjust or equalize time” exists information disclosed by pretrial discovery, Good Cause where justice demands that a party be allowed information and representations made during additional time to compensate for an imbalance voir dire of the jury panel, as well as any Good cause must be shown (1) under TRCP created by the existence of a greater number of information brought to the court‟s attention by 169(3) to extend trial time, (2) under TRCP parties being allocated trial time on the other means. Moore v. Altra Energy Techs., 169(c)(1)(A) to remove a case from the opposing “side.” Good cause would be based th 321 S.W.3d 727, 741 (Tex. App.—Houston [14 expedited process, and (3) under TRCP 169 on the unfairness of holding each “side” to the Dist.] 2010, pet. denied); Cecil v. T.M.E. (c)(2) when the motion to remove is filed same time limits. As noted above, if the trial untimely. The proof required to support a court determines that “the ends of justice and

Summer 2013 Texas Association of Defense Counsel, Inc. 19 of issues directly impinging on the civil trial restores the doctrine as it relates to contractual practice and involving mandatory binding liens in health insurance contracts. The bill 2013 LEGISLATIVE arbitration. The following discussion briefly establishes a "quasi-proportionate" recovery summarizes the bills that passed, as well as process designed to allow the plaintiff an those that didn’t. adequate recovery before the insurer’s WRAP-UP subrogation lien attaches, which should ease Filing of Medical Bills/Paid or Incurred: the existing law disincentive to settle claims. By George S. Christian The Governor has signed HB 1869, which TADC Legislative Consultant, Austin TADC supported SB 679 by Sen. Robert takes effect January 1, 2014. TADC strongly Duncan (R-Lubbock), which relieves the supported passage of this bill. TADC Closes Books on a Successful Legislative Session obligation to file medical records with clerk until time of trial, as long as the records are timely Medicare Subrogation: served on each party. The bill amends he 83rd Texas Legislature ended repair roads in counties with soaring energy §§18.001 and 18.002 to permit "paid" or HB 658 by Rep. Kenneth Sheets (R-Dallas) its regular session on May 27. production, and made up a $4 billion shortfall "actually incurred" amounts to be added to the tolls postjudgment interest on an unpaid Governor Rick Perry immediately in Medicaid. The state judiciary received a 12% affidavit. As originally filed, the bill might have balance of an award of damages subject to a T inadvertently limited or overruled the Escabedo CMS lien, provided that the defendant pays in called a special session on the subject of pay increase (with a corresponding boost in st redistricting and has expanded the special legislative pensions), while other state decision. TADC raised this concern, and after response to a demand letter before the 31 session call to include transportation funding, employees will see a 1% increase in 2014 and several conversations with Sen. Duncan’s day after receipt of the demand. TADC office and TTLA, language was added to the supported this bill, which has been sent to the abortion restrictions, and sentencing 17-year- another 2% in 2015. Responding to the old convicted felons to life with parole. Governor’s call for tax relief, the Legislature bill clarifying that that only amounts actually Governor for his signature. also reduced the state franchise tax rate for the paid or incurred could be admitted at trial. Financing the state’s future water next two years, enacted a research and Related legislation, HB 1465 by Rep. Bryan Litigation Financing: needs topped the policy agenda this session. development tax credit (or alternative sales tax Hughes (R-Mineola) and HB 3457 by Rep. At the beginning of the session, Governor exemption), and passed rebates to electric Craig Eiland (D-Galveston) contained similar The regulation of third party litigation financing Perry, Lt. Governor Dewhurst, and Speaker ratepayers of money paid to the universal provisions and were superseded by SB 679. pitted the U.S. Chamber of Commerce against Straus all called for the creation of a service benefit fund. All in all, about $1.6 billion As of the date of this update, SB 679 was the lawsuit financing industry. The U.S. permanent state water implementation fund will be returned to taxpayers, although most awaiting gubernatorial action. Chamber-backed bill, HB 1595 by Rep. Doug with $2 billion of seed money from the Rainy will probably see very little difference in their Miller (R-New Braunfels), would have required Day Fund. Despite the unity of the leadership, tax liability. Health Care Claims: disclosure of agreements in which a plaintiff however, many conservative members of the borrows money using his or her lawsuit as the House opposed using the Rainy Day Fund for The Governor has already vetoed one TADC likewise supported HB 2843 by Rep. asset securing the loan, placed litigation loans this purpose, while a number of Democrats bill: SB 346 by Sen. Kel Seliger (R-Amarillo) Kenneth Sheets (R-Dallas), which requires a under the interest rate cap applicable to feared that funding water would take priority and Rep. Charlie Geren (R-Fort Worth). This claimant to file the expert report on each consumer loans generally, and subjected over restoring last session’s $4 billion bill addressed the so-called “dark money” defendant not later than 120 days of that lawsuit lenders to regulation by the Office of reduction in spending for public education. problem in which certain tax-exempt political defendant’s answer (rather than the date of the the Consumer Credit Commissioner. HB 1595 Conservative groups likewise opposed paying organizations not required to report political original petition) and allows a defendant to was heard in House Judiciary & Civil for water projects with the Rainy Day Fund expenditures nevertheless engage in activities object to the report not later than 21 days of Jurisprudence Committee. A substitute version because, they argued, such expenditures designed to favor or defeat candidates for the defendant’s answer or service of the report, of the bill was reported from committee, but did would “bust” the state’s constitutional spending public office. SB 346 would have required such whichever is later. Although HB 2843 died on not make it to the House calendar. A related cap. The issue was finally resolved in the organizations to report contributions and the House Calendar, the bill was later bill, HB 1855 by Rep. Doug Miller (R-New closing days of the session by proposing a expenditures (including dues payments) in the amended into HB 658 (see below) in the Braunfels), dealt with disclosure of litigation constitutional amendment (SJR 1) establishing same manner as political committees. In his Senate and has gone to the Governor for his financing agreements to parties in litigation. a constitutionally dedicated state water veto message, the Governor cited First signature. The bill was not heard in committee. implementation fund. If the voters approve the Amendment concerns with the required amendment in November, $2 billion will be reporting. Made Whole Doctrine: The lawsuit financing industry supported HB appropriated from the Rainy Day Fund without 1254 by Rep. Senfronia Thompson (D- it counting against the spending cap. Compared to the 2011 session, in One of the most significant civil justice bills of Houston) and SB 1283 by Sen. Kevin Eltife (R- which “loser pays” and expedited jury trials the session addresses the “made whole Tyler). This bill would have sanctioned litigation With respect to the remainder of the became major issues, 2013 was relatively doctrine,” which the Supreme Court abrogated financing, codified industry best practices, and budget, the Legislature restored most of the quiet on the civil justice front. While it in the Fortis case. HB 1869 by Rep. Four Price required lenders to be registered with the funding taken from public education in 2011, monitored several hundred bills, TADC (R-Amarillo) and Senator Duncan partially Texas Department of Licensing and set aside $450 million in general revenue to focused its attention on a fairly limited number

20 Texas Association of Defense Counsel, Inc. Summer 2013 of issues directly impinging on the civil trial restores the doctrine as it relates to contractual practice and involving mandatory binding liens in health insurance contracts. The bill 2013 LEGISLATIVE arbitration. The following discussion briefly establishes a "quasi-proportionate" recovery summarizes the bills that passed, as well as process designed to allow the plaintiff an those that didn’t. adequate recovery before the insurer’s WRAP-UP subrogation lien attaches, which should ease Filing of Medical Bills/Paid or Incurred: the existing law disincentive to settle claims. By George S. Christian The Governor has signed HB 1869, which TADC Legislative Consultant, Austin TADC supported SB 679 by Sen. Robert takes effect January 1, 2014. TADC strongly Duncan (R-Lubbock), which relieves the supported passage of this bill. TADC Closes Books on a Successful Legislative Session obligation to file medical records with clerk until time of trial, as long as the records are timely Medicare Subrogation: served on each party. The bill amends he 83rd Texas Legislature ended repair roads in counties with soaring energy §§18.001 and 18.002 to permit "paid" or HB 658 by Rep. Kenneth Sheets (R-Dallas) its regular session on May 27. production, and made up a $4 billion shortfall "actually incurred" amounts to be added to the tolls postjudgment interest on an unpaid Governor Rick Perry immediately in Medicaid. The state judiciary received a 12% affidavit. As originally filed, the bill might have balance of an award of damages subject to a T inadvertently limited or overruled the Escabedo CMS lien, provided that the defendant pays in called a special session on the subject of pay increase (with a corresponding boost in st redistricting and has expanded the special legislative pensions), while other state decision. TADC raised this concern, and after response to a demand letter before the 31 session call to include transportation funding, employees will see a 1% increase in 2014 and several conversations with Sen. Duncan’s day after receipt of the demand. TADC office and TTLA, language was added to the supported this bill, which has been sent to the abortion restrictions, and sentencing 17-year- another 2% in 2015. Responding to the old convicted felons to life with parole. Governor’s call for tax relief, the Legislature bill clarifying that that only amounts actually Governor for his signature. also reduced the state franchise tax rate for the paid or incurred could be admitted at trial. Financing the state’s future water next two years, enacted a research and Related legislation, HB 1465 by Rep. Bryan Litigation Financing: needs topped the policy agenda this session. development tax credit (or alternative sales tax Hughes (R-Mineola) and HB 3457 by Rep. At the beginning of the session, Governor exemption), and passed rebates to electric Craig Eiland (D-Galveston) contained similar The regulation of third party litigation financing Perry, Lt. Governor Dewhurst, and Speaker ratepayers of money paid to the universal provisions and were superseded by SB 679. pitted the U.S. Chamber of Commerce against Straus all called for the creation of a service benefit fund. All in all, about $1.6 billion As of the date of this update, SB 679 was the lawsuit financing industry. The U.S. permanent state water implementation fund will be returned to taxpayers, although most awaiting gubernatorial action. Chamber-backed bill, HB 1595 by Rep. Doug with $2 billion of seed money from the Rainy will probably see very little difference in their Miller (R-New Braunfels), would have required Day Fund. Despite the unity of the leadership, tax liability. Health Care Claims: disclosure of agreements in which a plaintiff however, many conservative members of the borrows money using his or her lawsuit as the House opposed using the Rainy Day Fund for The Governor has already vetoed one TADC likewise supported HB 2843 by Rep. asset securing the loan, placed litigation loans this purpose, while a number of Democrats bill: SB 346 by Sen. Kel Seliger (R-Amarillo) Kenneth Sheets (R-Dallas), which requires a under the interest rate cap applicable to feared that funding water would take priority and Rep. Charlie Geren (R-Fort Worth). This claimant to file the expert report on each consumer loans generally, and subjected over restoring last session’s $4 billion bill addressed the so-called “dark money” defendant not later than 120 days of that lawsuit lenders to regulation by the Office of reduction in spending for public education. problem in which certain tax-exempt political defendant’s answer (rather than the date of the the Consumer Credit Commissioner. HB 1595 Conservative groups likewise opposed paying organizations not required to report political original petition) and allows a defendant to was heard in House Judiciary & Civil for water projects with the Rainy Day Fund expenditures nevertheless engage in activities object to the report not later than 21 days of Jurisprudence Committee. A substitute version because, they argued, such expenditures designed to favor or defeat candidates for the defendant’s answer or service of the report, of the bill was reported from committee, but did would “bust” the state’s constitutional spending public office. SB 346 would have required such whichever is later. Although HB 2843 died on not make it to the House calendar. A related cap. The issue was finally resolved in the organizations to report contributions and the House Calendar, the bill was later bill, HB 1855 by Rep. Doug Miller (R-New closing days of the session by proposing a expenditures (including dues payments) in the amended into HB 658 (see below) in the Braunfels), dealt with disclosure of litigation constitutional amendment (SJR 1) establishing same manner as political committees. In his Senate and has gone to the Governor for his financing agreements to parties in litigation. a constitutionally dedicated state water veto message, the Governor cited First signature. The bill was not heard in committee. implementation fund. If the voters approve the Amendment concerns with the required amendment in November, $2 billion will be reporting. Made Whole Doctrine: The lawsuit financing industry supported HB appropriated from the Rainy Day Fund without 1254 by Rep. Senfronia Thompson (D- it counting against the spending cap. Compared to the 2011 session, in One of the most significant civil justice bills of Houston) and SB 1283 by Sen. Kevin Eltife (R- which “loser pays” and expedited jury trials the session addresses the “made whole Tyler). This bill would have sanctioned litigation With respect to the remainder of the became major issues, 2013 was relatively doctrine,” which the Supreme Court abrogated financing, codified industry best practices, and budget, the Legislature restored most of the quiet on the civil justice front. While it in the Fortis case. HB 1869 by Rep. Four Price required lenders to be registered with the funding taken from public education in 2011, monitored several hundred bills, TADC (R-Amarillo) and Senator Duncan partially Texas Department of Licensing and set aside $450 million in general revenue to focused its attention on a fairly limited number

Summer 2013 Texas Association of Defense Counsel, Inc. 21 Regulation. HB 1254 was likewise heard in 1468 by Rep. Kenneth Sheets (R-Dallas) and Statute of Limitations--Insurance: UM/UIM action. HB 1774, also by Rep. Ed House Judiciary & Civil Jurisprudence SB 926 by Sen. Joan Huffman (R-Houston) Thompson, would have barred an uninsured Committee, but was not reported from would have reversed In re XL Specialty Ins. HB 1651 by Rep. Smithee and SB 851 by Sen. claimant from recovering non-economic or committee. It is likely that this issue will be the Co., 373 S.W.3d 46 (Tex. 2012) by Larry Taylor (R-Friendswood) would have punitive damages in an action arising from an subject of interim study and reappear next establishing that communications between an allowed an insurer in a homeowner or automobile accident. These bills were never session in proposed legislation. attorney representing a worker's compensation residential property insurance contract to limit heard in committee. carrier and the employer (insured) in the the statute of limitations on first party claims to Employment Law: administrative proceedings are protected by two years from the date of denial or three Barratry: the attorney-client privilege. TADC supported years from the date of loss. SB 851 was heard Legislation to conform Texas law to the federal the legislation in concept, but TTLA and in Senate Business & Commerce but did not HB 1711 by Rep. Allen Fletcher (R-Tomball)-- Ledbetter Act squeaked through the organized labor opposed the bill as overbroad. advance. HB 1651 was not heard in House permits recovery of statutory barratry damages Legislature in the face of opposition from some HB 1468 passed the House and Senate committee, nor was HB 2086 by Rep. Ruth even if the attorney voluntarily voids the (though not all) business groups. HB 950 by committee, but was not considered on the Jones McClendon (D-San Antonio), which contract and adds a recoverable $10,000 Rep. Senfronia Thompson (D-Houston) and floor. established a 4-year statute of limitations for penalty. As amended in the Senate, the bill Sen. Wendy Davis (D-Fort Worth) clarifies that claims brought under Chapter 542 of the Texas excludes an action to recover actual damages the statute of limitations for a wage SB 1049 by Sen. Leticia Van de Putte (D-San Insurance Code. TADC opposed legislation and a penalty for barratry from the expedited discrimination claim runs from the date the Antonio) sought to reverse Tex. Mut. Ins. Co. truncating the statute of limitations on first trial rule. HB 1711 is awaiting the Governor’s discriminatory employment practice begins, not v. Ruttiger, 381 S.W.3d 430 (Tex. 2012), which party claims. signature. the date of the compensation agreement abolished the common law cause of action for between the employer and employee. Current bad faith against a workers’ compensation Asbestos/Silica Inactive Docket: Technology Funding: Texas law provides that an employee must file carrier. The bill received a hearing in Senate an unlawful employment practice complaint State Affairs, but never came out of committee. Asbestos practitioners with inactive cases HB 2302 by Rep. Todd Hunter (R-Corpus with the Texas Workforce Commission civil should review HB 1325 by Rep. Doug Miller Christi) and Sen. Royce West (D-Dallas) rights division within 180 days after the alleged Limits on Claims Against Insurers: (R-New Braunfels) and Sen. Duncan, which establishes a statewide electronic filing system unlawful practice occurs. If the employee permits dismissal of cases pending in the MDL fund financed by an increase in certain fees proves up the claim, he or she may recover up Several bills dealing with mandatory arbitration asbestos/silica dockets in which the claimant and court costs. Reported favorably from to two years of back pay. Appeal of the in an insurance setting were filed this session. has not served a complying report unless good Senate Jurisprudence on April 3. TADC administrative review is to state district court. HB 1407 by Rep. John Smithee (R-Amarillo) cause is demonstrated for retention. The bill supports this bill, which has been sent to the The net effect of HB 950 is to allow an would have mandated that automobile also extends limitations for re-filing when report Governor for his signature. Because the bill employee who exhausts administrative insurance policies permit an insured to invoke can be obtained and provides for retroactive increases fees, it is likely to be closely remedies under current law to seek review in arbitration. HB 1408 Rep. Smithee proposed to application of law in effect at the time the case scrutinized in the Governor’s office. state court. A 2012 Texas Supreme Court create an administrative dispute resolution was initially filed. The plaintiff’s and defense decision had ruled that federal protections for process for claims brought under a policy asbestos bars negotiated the final version of Judicial Selection: wage discrimination did not extend to state issued by the Fair Plan. HB 2956, also by Rep. the bill, which the Governor has signed into law, forcing Texans to file legitimate claims in Smithee, would have prohibited insurers from law. HB 1325 goes into effect on September 1, HB 2772 by Rep. Justin Rodriguez (D-San federal court (Prairie View A&M v. Chatha). using a form that requires pre-dispute 2013. Antonio) and Sen. Robert Duncan (R-Lubbock) The bill’s fate in the Governor’s office remains arbitration arising from most insurance calls for a joint Senate-House interim study of to be seen. contracts (excludes TWIA). None of these bills Uninsured/Underinsured Motorist Actions: the judicial selection system in Texas. The were heard in committee. study will cover the statutory, trial, and Substituted Service/Social Media: A number of bills affecting UM/UIM actions appellate courts. The interim study committee HB 2125 by Rep. Van Taylor (R-Plano) were proposed this session, but none passed. will report findings and recommendations to HB 1989 by Rep. Jeff Leach (R-Plano) would provided claims under insurance policies HB 1773 by Rep. Ed Thompson (R-Pearland) the 2015 Legislature. HB 2772 has been sent have established a procedure to permit governing property damage (excluding TWIA, would have barred an insurer from delivering, to the Governor. SB 577 by Sen. Duncan, substitute service through service on social Fair Plan, and Tex. Automobile Plan issuing for delivery, or renewing a named which established a non-partisan elect-appoint- media. TADC opposed this legislation, which Association) must undergo an appraisal driver policy. The bill allowed an insurer to retain system for judicial selection, and SB 103 never received a hearing in House Judiciary & process (the cost of which as divided between exclude individually named drivers, but not a by Sen. Dan Patrick (R-Houston), which Civil Jurisprudence. the insurer and insured) as a condition to filing class of drivers. HB 1773 passed the House eliminated straight-ticket voting in judicial suit. The bill was reported out of House but died in the Senate. HB 1558 by Rep. races, both received a hearing in Senate State Worker's Compensation: Insurance Committee late in the session and Stephanie Klick (R-Fort Worth) would have Affairs but did not get out of committee. died in Calendars. TADC opposed this permitted an insured to recover attorney’s fees TADC closely monitored two bills of significant legislation. against an insurer if the insured prevails in a interest in the workers’ compensation area. HB

22 Texas Association of Defense Counsel, Inc. Summer 2013 Regulation. HB 1254 was likewise heard in 1468 by Rep. Kenneth Sheets (R-Dallas) and Statute of Limitations--Insurance: UM/UIM action. HB 1774, also by Rep. Ed House Judiciary & Civil Jurisprudence SB 926 by Sen. Joan Huffman (R-Houston) Thompson, would have barred an uninsured Committee, but was not reported from would have reversed In re XL Specialty Ins. HB 1651 by Rep. Smithee and SB 851 by Sen. claimant from recovering non-economic or committee. It is likely that this issue will be the Co., 373 S.W.3d 46 (Tex. 2012) by Larry Taylor (R-Friendswood) would have punitive damages in an action arising from an subject of interim study and reappear next establishing that communications between an allowed an insurer in a homeowner or automobile accident. These bills were never session in proposed legislation. attorney representing a worker's compensation residential property insurance contract to limit heard in committee. carrier and the employer (insured) in the the statute of limitations on first party claims to Employment Law: administrative proceedings are protected by two years from the date of denial or three Barratry: the attorney-client privilege. TADC supported years from the date of loss. SB 851 was heard Legislation to conform Texas law to the federal the legislation in concept, but TTLA and in Senate Business & Commerce but did not HB 1711 by Rep. Allen Fletcher (R-Tomball)-- Ledbetter Act squeaked through the organized labor opposed the bill as overbroad. advance. HB 1651 was not heard in House permits recovery of statutory barratry damages Legislature in the face of opposition from some HB 1468 passed the House and Senate committee, nor was HB 2086 by Rep. Ruth even if the attorney voluntarily voids the (though not all) business groups. HB 950 by committee, but was not considered on the Jones McClendon (D-San Antonio), which contract and adds a recoverable $10,000 Rep. Senfronia Thompson (D-Houston) and floor. established a 4-year statute of limitations for penalty. As amended in the Senate, the bill Sen. Wendy Davis (D-Fort Worth) clarifies that claims brought under Chapter 542 of the Texas excludes an action to recover actual damages the statute of limitations for a wage SB 1049 by Sen. Leticia Van de Putte (D-San Insurance Code. TADC opposed legislation and a penalty for barratry from the expedited discrimination claim runs from the date the Antonio) sought to reverse Tex. Mut. Ins. Co. truncating the statute of limitations on first trial rule. HB 1711 is awaiting the Governor’s discriminatory employment practice begins, not v. Ruttiger, 381 S.W.3d 430 (Tex. 2012), which party claims. signature. the date of the compensation agreement abolished the common law cause of action for between the employer and employee. Current bad faith against a workers’ compensation Asbestos/Silica Inactive Docket: Technology Funding: Texas law provides that an employee must file carrier. The bill received a hearing in Senate an unlawful employment practice complaint State Affairs, but never came out of committee. Asbestos practitioners with inactive cases HB 2302 by Rep. Todd Hunter (R-Corpus with the Texas Workforce Commission civil should review HB 1325 by Rep. Doug Miller Christi) and Sen. Royce West (D-Dallas) rights division within 180 days after the alleged Limits on Claims Against Insurers: (R-New Braunfels) and Sen. Duncan, which establishes a statewide electronic filing system unlawful practice occurs. If the employee permits dismissal of cases pending in the MDL fund financed by an increase in certain fees proves up the claim, he or she may recover up Several bills dealing with mandatory arbitration asbestos/silica dockets in which the claimant and court costs. Reported favorably from to two years of back pay. Appeal of the in an insurance setting were filed this session. has not served a complying report unless good Senate Jurisprudence on April 3. TADC administrative review is to state district court. HB 1407 by Rep. John Smithee (R-Amarillo) cause is demonstrated for retention. The bill supports this bill, which has been sent to the The net effect of HB 950 is to allow an would have mandated that automobile also extends limitations for re-filing when report Governor for his signature. Because the bill employee who exhausts administrative insurance policies permit an insured to invoke can be obtained and provides for retroactive increases fees, it is likely to be closely remedies under current law to seek review in arbitration. HB 1408 Rep. Smithee proposed to application of law in effect at the time the case scrutinized in the Governor’s office. state court. A 2012 Texas Supreme Court create an administrative dispute resolution was initially filed. The plaintiff’s and defense decision had ruled that federal protections for process for claims brought under a policy asbestos bars negotiated the final version of Judicial Selection: wage discrimination did not extend to state issued by the Fair Plan. HB 2956, also by Rep. the bill, which the Governor has signed into law, forcing Texans to file legitimate claims in Smithee, would have prohibited insurers from law. HB 1325 goes into effect on September 1, HB 2772 by Rep. Justin Rodriguez (D-San federal court (Prairie View A&M v. Chatha). using a form that requires pre-dispute 2013. Antonio) and Sen. Robert Duncan (R-Lubbock) The bill’s fate in the Governor’s office remains arbitration arising from most insurance calls for a joint Senate-House interim study of to be seen. contracts (excludes TWIA). None of these bills Uninsured/Underinsured Motorist Actions: the judicial selection system in Texas. The were heard in committee. study will cover the statutory, trial, and Substituted Service/Social Media: A number of bills affecting UM/UIM actions appellate courts. The interim study committee HB 2125 by Rep. Van Taylor (R-Plano) were proposed this session, but none passed. will report findings and recommendations to HB 1989 by Rep. Jeff Leach (R-Plano) would provided claims under insurance policies HB 1773 by Rep. Ed Thompson (R-Pearland) the 2015 Legislature. HB 2772 has been sent have established a procedure to permit governing property damage (excluding TWIA, would have barred an insurer from delivering, to the Governor. SB 577 by Sen. Duncan, substitute service through service on social Fair Plan, and Tex. Automobile Plan issuing for delivery, or renewing a named which established a non-partisan elect-appoint- media. TADC opposed this legislation, which Association) must undergo an appraisal driver policy. The bill allowed an insurer to retain system for judicial selection, and SB 103 never received a hearing in House Judiciary & process (the cost of which as divided between exclude individually named drivers, but not a by Sen. Dan Patrick (R-Houston), which Civil Jurisprudence. the insurer and insured) as a condition to filing class of drivers. HB 1773 passed the House eliminated straight-ticket voting in judicial suit. The bill was reported out of House but died in the Senate. HB 1558 by Rep. races, both received a hearing in Senate State Worker's Compensation: Insurance Committee late in the session and Stephanie Klick (R-Fort Worth) would have Affairs but did not get out of committee. died in Calendars. TADC opposed this permitted an insured to recover attorney’s fees TADC closely monitored two bills of significant legislation. against an insurer if the insured prevails in a interest in the workers’ compensation area. HB

Summer 2013 Texas Association of Defense Counsel, Inc. 23

Defamation Mitigation Act: Judicial Compensation:

The House has concurred with Senate SB 1, the General Appropriations Act, gives a amendments to HB 1759 by Rep. Todd Hunter much-needed pay increase of about 12% to (R-Corpus Christi) and Sen. Rodney Ellis (D- state judges and justices. TADC, TTLA, the Houston). The bill provides that a person State Bar, and other organizations interested in alleging injury to reputation may only maintain the judiciary strongly support the increase. an action against the publisher of the THE TADC WORKED TIRELESSLY DURING THE LEGISLATIVE defamatory information if the person requests Exemplary Damages: SESSION PROTECTING THE CIVIL JUSTICE SYSTEM! a retraction or correction, or if the publisher actually publishes a retraction or correction. A HB 3098 by Rep. Tryon Lewis (R-Odessa) Show Your Support for the TADC PAC claimant must request the retraction or sought to prohibit both the discovery and correction within the applicable limitations admissibility of a party’s net worth as a Your contribution allows the TADC PAC to support Qualified candidates for the Texas period, but if the request is not made within 90 component of exemplary damages. The bill Supreme Court, Texas Legislature & other key positions days of receiving knowledge of the publication, was not heard in committee. the claimant cannot recover exemplary damages. A publisher has the right to request Appeals: CAN YOU AFFORD NOT TO CONTRIBUTE? from the claimant further information relating to the alleged falsity of the information, and if the HB 3032 by Rep. Ana Hernandez Luna (D- • Over 95% of Candidates & Incumbents Supported by the TADC PAC are elected to office information is not provided, the claimant Houston) required the Texas Supreme Court to • The TADC PAC supports candidates based on record & qualifications, NOT political affiliation cannot recover exemplary damages unless the adopt rules mandating the final disposition of publication was made with actual malice. HB appeals not later than one year after perfection • The TADC PAC supports candidates who favor a strong and independent judiciary, oppose infringement on 1759 further defines the circumstances under and expedited resolution of interlocutory the right to jury trials and agree with the need to preserve the civil justice system. which a published retraction or correction is appeals within three months. The bill was not timely and sufficient. Publication of a timely heard in committee. • The TADC PAC opposes Statutory Employer, Collaborative Law and Loser Pays Legislation and sufficient retraction or correction • The TADC PAC supports efforts to end the capricious enforcement of arbitration clauses and to limit their immunizes the publisher from exemplary Recusal: applicability to matters where the parties to the agreement have equal bargaining power damages, unless the publication was made with actual malice. A request for retraction or HB 3380 by Rep. Todd Hunter (R-Corpus • Your PAC Trustees represent Your interests to candidates and office holders correction is not admissible at trial, unless the Christi) repealed §74.053(c)-(f), which govern publisher introduces the retraction or correction objections to the assignment of a trial judge, • Other Associations ARE giving; if you don’t , that WILL put you at a distinct disadvantage in mitigation of damages. Finally, HB 1759 and provides that a trial judge may only be requires a defamation action to be abated until recused or disqualified if timely motion is made As a thank-you for your support, contributions of $250 or more will receive a gift, a high-quality light weight windbreaker with the TADC Brand a claimant files a sufficient request for and granted under Rule 18(a) or 18(b), TRCP. retraction or correction. HB 1759 has been The bill was heard in House Judiciary & Civil sent to the Governor. Jurisprudence but did not advance.

Interlocutory Appeals: Franchise Tax: ACK THE HB 2935 by Rep. Hunter and Sen. Ellis Part of the Governor’s tax relief initiative this I B TADC PAC clarifies that an interlocutory appeal may be session was an across-the-board reduction in Enclosed is my TADC PAC Contribution in the amount of: taken from the denial of a motion to dismiss the franchise tax. HB 500 by Rep. Harvey $150.00_____ $200.00_____ $250.00______Other $______under §27.003, CPRC, which provides certain Hilderbran (R-Kerrville) and Sen. Glenn Hegar expedited hearing rules for motions to dismiss temporarily reduces the rate of the franchise ______Yes, My contribution is for $250.00 or more, please send me the windbreaker with the TADC Brand a claim based on the exercise of a tax 2.5 percent in 2014 and, revenue SIZE (mens & womens sizes ): S M L XL XXL Payment Enclosed: constitutional right. The bill addresses a split permitting, 5 percent in 2015. The bill also please check your size carefully, as there are no refunds or exchanges among the courts of appeals on the issue. HB allows taxpayers a new minimum deduction of $______2935 has been sent to the Governor. $1 million (an effective expansion of the small amount enclosed Make checks payable to the TADC PAC, return order form and payment to the business exemption). TADC, 400 West 15th Street, Suite 420, Austin, Texas 78701 FAX: 512/476-5384 I am paying by: (circle one) Check Visa Mastercard Amex

Name

Firm Cardnumber Exp. Date

Address

City/State/Zip Signature as it appears on card 24 Texas Association of Defense Counsel, Inc. Summer 2013

Defamation Mitigation Act: Judicial Compensation: Texas Association of Defense Counsel PAC

The House has concurred with Senate SB 1, the General Appropriations Act, gives a amendments to HB 1759 by Rep. Todd Hunter much-needed pay increase of about 12% to The Political Action Committee of the Texas Association of Defense Counsel TADC-PAC (R-Corpus Christi) and Sen. Rodney Ellis (D- state judges and justices. TADC, TTLA, the Houston). The bill provides that a person State Bar, and other organizations interested in alleging injury to reputation may only maintain the judiciary strongly support the increase. an action against the publisher of the THE TADC WORKED TIRELESSLY DURING THE LEGISLATIVE defamatory information if the person requests Exemplary Damages: SESSION PROTECTING THE CIVIL JUSTICE SYSTEM! a retraction or correction, or if the publisher actually publishes a retraction or correction. A HB 3098 by Rep. Tryon Lewis (R-Odessa) Show Your Support for the TADC PAC claimant must request the retraction or sought to prohibit both the discovery and correction within the applicable limitations admissibility of a party’s net worth as a Your contribution allows the TADC PAC to support Qualified candidates for the Texas period, but if the request is not made within 90 component of exemplary damages. The bill Supreme Court, Texas Legislature & other key positions days of receiving knowledge of the publication, was not heard in committee. the claimant cannot recover exemplary damages. A publisher has the right to request Appeals: CAN YOU AFFORD NOT TO CONTRIBUTE? from the claimant further information relating to the alleged falsity of the information, and if the HB 3032 by Rep. Ana Hernandez Luna (D- • Over 95% of Candidates & Incumbents Supported by the TADC PAC are elected to office information is not provided, the claimant Houston) required the Texas Supreme Court to • The TADC PAC supports candidates based on record & qualifications, NOT political affiliation cannot recover exemplary damages unless the adopt rules mandating the final disposition of publication was made with actual malice. HB appeals not later than one year after perfection • The TADC PAC supports candidates who favor a strong and independent judiciary, oppose infringement on 1759 further defines the circumstances under and expedited resolution of interlocutory the right to jury trials and agree with the need to preserve the civil justice system. which a published retraction or correction is appeals within three months. The bill was not timely and sufficient. Publication of a timely heard in committee. • The TADC PAC opposes Statutory Employer, Collaborative Law and Loser Pays Legislation and sufficient retraction or correction • The TADC PAC supports efforts to end the capricious enforcement of arbitration clauses and to limit their immunizes the publisher from exemplary Recusal: applicability to matters where the parties to the agreement have equal bargaining power damages, unless the publication was made with actual malice. A request for retraction or HB 3380 by Rep. Todd Hunter (R-Corpus • Your PAC Trustees represent Your interests to candidates and office holders correction is not admissible at trial, unless the Christi) repealed §74.053(c)-(f), which govern publisher introduces the retraction or correction objections to the assignment of a trial judge, • Other Associations ARE giving; if you don’t , that WILL put you at a distinct disadvantage in mitigation of damages. Finally, HB 1759 and provides that a trial judge may only be requires a defamation action to be abated until recused or disqualified if timely motion is made As a thank-you for your support, contributions of $250 or more will receive a gift, a high-quality light weight windbreaker with the TADC Brand a claimant files a sufficient request for and granted under Rule 18(a) or 18(b), TRCP. retraction or correction. HB 1759 has been The bill was heard in House Judiciary & Civil sent to the Governor. Jurisprudence but did not advance.

Name

Firm Cardnumber Exp. Date

Address

City/State/Zip Signature as it appears on card Summer 2013 Texas Association of Defense Counsel, Inc. 25

Graduates 2013 TADC TRIAL ACADEMY

Mike Shipman, with Fletcher, Farley, Shipman & Salinas, LLP in Dallas and Clayton Devin with Macdonald Nicole Anchondo, Ray, Valdez, McChristian Michael Shane O'Dell, Naman, Howell, Smith & Devin, P.C. in Dallas, served as Co-Chairs of TADC=s 31st Trial Academy which was held in Dallas on April & Jeans, P.C. Lee, PLLC 26th & 27th, 2013 at the Sheraton by the Galleria. Donnie Apodaca, The Berry Firm, PLLC Robin F. O'Neil, Beck | Redden LLP The problem used this year was a commercial litigation claim created by the National Institute for Trial Advocacy. Faculty members presented demonstrations of the problem including direct and cross examination Joseph A. Baker, Cotton, Bledsoe, Tighe & Reed Randel, Thompson & Knight LLP and opening and closing statements. Presentations were made from both the plaintiff and defense Dawson, P.C perspective. Attendees were able to practice their courtroom skills in morning and afternoon breakout Cody B. Rees, Orgain, Bell & Tucker, L.L.P. sessions which followed each main session demonstration. Keith L. Cook, Cooksey & Marcin, PLLC Eric Rich, Shafer, Davis, O'Leary & Stoker, Inc At lunch each day, attendees and faculty were treated to ethics presentations by the Honorable Tonya Parker, Brie Franco, Ray, Valdez, McChristian of the 116th Judicial District (Dallas County) and the The Honorable Martin Hoffmann, 68th Judicial District & Jeans, P.C. Marcos Rosales, Beck | Redden LLP (Dallas County). Douglas Salisbury, Thompson & Knight LLP Mike and Clayton successfully enlisted an outstanding faculty, each of whom was dedicated to the progress Sina E. Griffith, The Berry Firm, PLLC and improvement of the attendees. The collective wisdom, experience, and enthusiasm of these seasoned trial attorneys elicited rave reviews from the attendees and was central to the success of the 2013 TADC Trial Christopher Jaquez, Ray, Valdez, McChristian & John Sigety, Macdonald Devin, P.C. Academy. Jeans, P.C. Matthew Sikes, Thompson & Knight LLP Gus Knebel, Mills Shirley, L.L.P. Tracy Smith, Thompson & Knight LLP

Stephanie D. Lee, Cotton, Bledsoe, Tighe & Faculty Dawson, P.C. Rick Zuniga, Atlas, Hall & Rodriguez, L.L.P.

Mike Shipman, Fletcher, Farley, Alan Harrel, Atchley, Russell, Waldrop Jason McLaurin, Strong Pipkin Bissell & Ledyard, L.L.P. Shipman & Salinas, LLP & Hlavinka, L.L.P.

Clayton Devin, Macdonald Devin, P.C Karl Koen, Gaunt, Earl, Binney & Koen, L.L.P. *****************************************

Andy Payne, PayneMitchell Law Group Vernon Krueger, Krueger, Bell & Bailey, LLP

Andy Sommerman, Sommerman Paige Lueking, Cooper & Scully, P.C. & Quesada, L.L.P. Patrick Madden, Macdonald Devin, P.C. Dean Gresham, PayneMitchell Law Group Randy Nelson, Thompson, Coe, Cousins & Irons, Doug Fletcher, Fletcher, Farley, L.L.P. Shipman & Salinas, LLP Doug Rees, Cooper & Scully Lewis Sifford, Sifford Anderson & Co., P.C Philipa Remington, Stinnett Thiebaud & Jim Cowles, Cowles & Thompson, P.C. Remington

W. Edward Carlton, Quilling, Selander, Lownds, Rick Rickman, Hallett & Perrin, P.C Winslett and Moser, P.C Mark Stradley, The Stradley Law Firm John M. Cox, John M. Cox & Associates, P.C. William Toles, Fee, Smith, Sharp & Vitullo, L.L.P. Elizabeth Fraley, Fraley & Fraley, L.L.P

26 Texas Association of Defense Counsel, Inc. Summer 2013

Graduates 2013 TADC TRIAL ACADEMY

Stephanie D. Lee, Cotton, Bledsoe, Tighe & Faculty Dawson, P.C. Rick Zuniga, Atlas, Hall & Rodriguez, L.L.P.

Mike Shipman, Fletcher, Farley, Alan Harrel, Atchley, Russell, Waldrop Jason McLaurin, Strong Pipkin Bissell & Ledyard, L.L.P. Shipman & Salinas, LLP & Hlavinka, L.L.P.

Clayton Devin, Macdonald Devin, P.C Karl Koen, Gaunt, Earl, Binney & Koen, L.L.P. *****************************************

Andy Payne, PayneMitchell Law Group Vernon Krueger, Krueger, Bell & Bailey, LLP

Andy Sommerman, Sommerman Paige Lueking, Cooper & Scully, P.C. & Quesada, L.L.P. Patrick Madden, Macdonald Devin, P.C. Philipa Remington Dean Gresham, PayneMitchell Law Group & Judge Tonya Parker Randy Nelson, Thompson, Coe, Cousins & Irons, Doug Fletcher, Fletcher, Farley, L.L.P. Shipman & Salinas, LLP Doug Rees, Cooper & Scully Lewis Sifford, Sifford Anderson & Co., P.C Philipa Remington, Stinnett Thiebaud & Jim Cowles, Cowles & Thompson, P.C. Remington

Summer 2013 Texas Association of Defense Counsel, Inc. 27 the courts of appeal, (b) can the merits of admissibility of the plaintiff’s failure to wear the ruling be reviewed by mandamus, and seat belts. In both cases, a collision AMICUS CURIAE (c) how does the ‘abuse of discretion’ ejected the claimant. In one the evidence standard apply to judge the trial court’s was admitted; in the other it was excluded. ruling? Merits brief has been requested. The El Paso Court concluded such COMMITTEE NEWS evidence was inadmissible.

Roger Hughes (Adams & Graham, The year has gotten off to a running case is set for oral argument on Sept. 9, L.L.P.) filed an amicus brief to support the An amicus brief has been authorized start and there have been several 2013. petition for review for Genie Ind., Inc. v. to support of the petition for mandamus In significant amicus submissions. Matak, 2012 WL 6061779 (Tex. App.-- re Champion Indust. Sales, __ SW3d __, Brent Cooper (Cooper and Scully, Corpus Christi Dec. 6, 2012, pet. 2012 WL 5362204 (Tex. App.--Corpus Ruth Malinas (Plunkett & Gibson, P.C.) filed an amicus brief in support of filed)(memo. opin.). This is a product Christi, Oct. 29, 2012, orig. proc.), now Inc.) and Roger Hughes (Adams & Graham, Petitioner in Brookshire Bros., Ltd. v. liability design defect death case in which Case No. 12-0952 in the Texas Supreme L.L.P.) filed an amicus brief in support of Aldridge, Case No. 10-0846. This is a the court of appeals affirmed a $1.3 million Court. This is an important case the petition for mandamus in In re Toyota spoliation issue in a premises liability case. verdict for plaintiff. The basic issues are (a) concerning transfers to the MDL court Motor Sales USA, Inc. Case No. 10-0933. The trial court gave a spoliation instruction is a proposed alternative safer design designated to handle silica products liability This mandamus raises the question of because the storeowner preserved only legally adequate if it violates industry and claims. Plaintiff filed a wrongful death claim review by mandamus of the sufficiency of eight minutes of security video that covered OSHA standards, and (b) is the alleging her husband died from exposure to the grounds for granting a new trial. The the fall; plaintiff argued that Brookshire product defective if the accident can toxic substances including silica. Her trial court vacated a defense verdict and should have preserved the entire day so as happen only if the product is intentionally expert did not find silicosis, but found that granted a new trial in a product liability to show how long the spill had been there. misused and the warnings against that 26% of the toxic substances his lungs was case, ostensibly because the defense The trial court found Brookshire did not misuse are adequate? silica. After the deadline to challenge the improperly offered evidence of that failure destroy the rest of the tape in “bad faith,” transfer passed, Plaintiff amended to to use seatbelts. Toyota argues that but gave the instruction anyway. TADC Ruth Malinas (Plunkett Gibson, Inc.) dismiss any claim based on silica. The plaintiff admitted the evidence without argues for a “bad faith” standard. Review has been authorized to file amicus briefs in MDL court ruled this deprived it of subject objection and the ground is a pretext. The was granted, and argument was on Sept. support of the petitions for review in Loera matter jurisdiction and “dismissed” the Texas Supreme Court heard oral argument 12, 2012. v. Fuentes, __ S.W.3d __, 2013 WL 351140 transfer for lack of jurisdiction. This case on Jan. 13, 2013. (Tex. App.-- El Paso Jan. 30, 2013, pet. raises important questions for MDL courts. Roger Hughes (Adams & Graham, filed), and Nabors Wells Services Ltd. v. By phrasing this as a jurisdictional issue Michael Eady (Thompson, Coe, L.L.P.) filed an amicus brief to support the Romero, __ S.W.3d __, 2013 WL 350992 claimants can raise it at any time and also Cousins & Irons, L.L.P.) filed an amicus petition for mandamus in In re Discount (Tex. App.--El Paso Jan. 30, 2013, pet. avoid an interlocutory appeal for orders brief in support of Kia Motors Corp. v. Ruiz, Tire, Case No. 13-0118. This mandamus filed). These are companion cases on the remanding the case. 348 S.W.3d 465, 474 (Tex. App.—Dallas challenges whether the trial court properly 2001, rev. granted). This is a fascinating granted plaintiffs a new trial based on a TADC Amicus Curiae Committee statutory interpretation case. Tex. Civ. factual sufficiency challenge to the verdict. Prac. & Rem. Code. §82.008 creates a This was a wrongful death suit arising from Roger W. Hughes, Chair, Adams & Graham, L.L.P.; Harlingen rebuttable presumption of no liability if a an accident caused by tire failure. Plaintiffs Ruth Malinas, Plunkett & Gibson, Inc..; San Antonio product complies with mandatory settled with the manufacturer and pursued R. Brent Cooper, Cooper & Scully, P.C.; Dallas government safety standards applicable to Discount Tire for negligence in using a Scott P. Stolley, Thompson & Knight LLP; Dallas the product and to that specific risk. The spare tire that was too old. The trial judge , Zeleskey Law Firm, PLLC.; Lufkin question is whether §82.002 applies to decided there was insufficient evidence that Bob Cain ‘performance standards,’ i.e., a government a manufacturing defect in the spare tire also Mitch Smith, Germer Gertz, L.L.P.; Beaumont mandated standard that the product pass a was a producing cause of the failure; the Jeff Alley, Windle Hood Alley Norton Brittain & Jay LLP; El Paso test rather than follow a specifically judge also decided that the jury’s award of Mike Eady, Thompson, Coe, Cousins & Irons, L.L.P.; Austin mandated design. The Dallas Court $0 for the parents’ loss of companionship Tim Poteet, Chamberlain F McHaney, Austin concluded §82.008 did not apply to and society was against the great weight of William C. Little, Mehaffy Weber PC; Beaumont ‘performance standards,’ which is directly the evidence. This mandamus raises the Richard B. Phillips, Jr., Thompson & Knight LLP; Dallas contrary to a U.S. Fifth Circuit decision. issues of (a) does the trial judge apply the George Vie III, Mills Shirley, L.L.P.; Houston The Supreme Court granted review and the same factual sufficiency review standard as

28 Texas Association of Defense Counsel, Inc. Summer 2013 the courts of appeal, (b) can the merits of admissibility of the plaintiff’s failure to wear the ruling be reviewed by mandamus, and seat belts. In both cases, a collision AMICUS CURIAE (c) how does the ‘abuse of discretion’ ejected the claimant. In one the evidence standard apply to judge the trial court’s was admitted; in the other it was excluded. ruling? Merits brief has been requested. The El Paso Court concluded such COMMITTEE NEWS evidence was inadmissible.

Summer 2013 Texas Association of Defense Counsel, Inc. 29 Registration on Reverse

2013 TADC West Texas Seminar

2013 West Texas Seminar August 9-10, 2013 Hotel Reservation Information Inn of the Mountain Gods ~ Ruidoso, NM For hotel reservations, CONTACT THE INN OF THE MOUNTAIN GODS A Joint Seminar with the Texas Association of Defense 287 Carrizo Canyon Road ~ Mescalero, NM, 88340 DIRECTLY AT 800/545-9011 and reference the TADC West Texas Ph: 800/545-9011 Seminar. The TADC has secured a block of rooms at a FANTASTIC rate. Counsel, Inc. It is IMPORTANT that you make your reservations as soon as possible as the 400 W. 15th Street, Suite 420 Pricing & Registration Options room block is limited. Any room requests after the deadline date, or after the New Mexico Defense room block is filled, will be on a space available basis. Austin, Texas 78701 Registration fees include Friday & Saturday group activities, including the Friday Evening welcome reception, Saturday breakfast, CLE Program and related DEADLINE FOR HOTEL RESERVATIONS IS expenses. If you would like New Mexico CLE credit, please notify the TADC JULY 20, 2013 512-476-5225 – FX 512-476-5384 office and you will be provided with a certificate of attendance for the New Lawyers Association [email protected] Mexico Bar. TADC Refund Policy Information

Registration for Member Only (one person) $125.00 Registration Fees will be refunded ONLY if a written cancellation notice is Registration for Member & Spouse/Guest (2 people) $145.00 received at least SEVEN (7) Business days prior (AUGUST 1, 2013) to the meeting date. A $25.00 Administrative Fee will be deducted from any refund. Any cancellation made after August 1, 2013 IS NON-REFUNDABLE. August 9-10, 2013 ~ Inn of the Mountain Gods ~ Ruidoso, NM

PROGRAM AND REGISTRATION 2013 TADC WEST TEXAS SEMINAR Approved for 4.5 Hours CLE, including 1.0 hours ethics August 9-10, 2013 For Hotel Reservations, contact the Inn of the Mountain Gods DIRECTLY at 800/545-9011 Friday, August 9, 2013 (All times Mountain Time)

CHECK APPLICABLE BOX TO CALCULATE YOUR REGISTRATION FEE: 6:00-8:00pm Opening Reception □ $125.00 Member ONLY (One Person) Saturday, August 10, 2013 □ $145.00 Member & Spouse/Guest (2 people)

7:30am Welcome & Introductions Leonard R. (Bud) Grossman, Craig, Terrill, Hale & Grantham, L.L.P., Lubbock TOTAL Registration Fee Enclosed $______Bryan Evans, Atwood, Malone, Turner & Sabin, P.A., Roswell

7:45-8:15am EXPEDITED JURY TRIALS IN TEXAS NAME: FOR NAME TAG

Chantel Crews, Ainsa Hutson, LLP, El Paso FIRM: OFFICE PHONE:

8:15-8:45am WHAT THE CIVIL LITIGATOR NEEDS TO KNOW ABOUT CRIMINAL LAW ADDRESS : CITY ZIP Slater Elza, The Underwood Law Firm, P.C., Amarillo SPOUSE/GUEST (IF ATTENDING) FOR NAME TAG: 8:45-9:15am FROM THE RIG TO THE COURTROOM: OIL AND GAS LAWS UPDATE □ Check if your spouse/guest is a TADC member

Pat Long Weaver, Burleson, LLP, Midland EMAIL ADDRESS:

9:15-9:45am COURTROOM DECORUM AND CIVILITY IN TEXAS In order to ensure that we have adequate materials available for all registrants, it is suggested that meeting registrations be The Honorable Stacy Trotter, Shafer, Davis, O’Leary & Stoker, Inc., Odessa submitted to TADC by July 20, 2013. This deadline coincides with the deadline set by the hotel for hotel accommodations.

9:45-10:00am B R E A K PAYMENT METHOD:

A CHECK in the amount of $______is enclosed with this form. 10:00-10:30am MANAGING THE TRIPARTITE RELATIONSHIP IN NEW MEXICO Bill Anderson, Orraj, Anderson, Obrey-Espinoza, Las Cruces MAKE PAYABLE & MAIL THIS FORM TO: TADC , 400 West 15th Street, Suite 420, Austin, Texas 78701

10:30-11:00am VOIR DIRE IN NEW MEXICO: SPOTTING ADVOCATES & AVOIDING ADVERSARIES CHARGE TO: (circle one) Visa Mastercard American Express

Bryan Garcia, The Narvaez Law Firm, Albuquerque ______Card Number Expiration Date 11:00-11:30am COURTROOM DECORUM AND CIVILITY IN NEW MEXICO The Honorable Freddie Romero, 5th Judicial District of New Mexico, Division II Signature:______TADC as it appears on card 400 W. 15th Street, Ste 420, Austin, TX 78701 11:30-Noon RECENT DEVELOPMENTS IN ARBITRATION PH: 512/476-5225 FX: 512/476-5384 Jerry T. Fazio, Owen & Fazio, P.C., Dallas

12:00-1:00pm LUNCH PANEL DISCUSSION: TEXAS & NEW MEXICO (For TADC Office Use Only)

1:00pm ADJOURN TO ENJOY RUIDOSO! (limited tee times at the links) Date Received______Payment-Check#______(F or I) Amount______ID#______Date Received______Payment-Check#______(F or I) Amount______ID#______30 Texas Association of Defense Counsel, Inc. Summer 2013 Registration on Reverse Registration on Reverse 2013 TADC West Texas Seminar

2013 TADC West Texas Seminar August 9-10, 2013 Hotel Reservation Information 2013 West Texas Seminar Inn of the MountainAugust 9-10, Gods 2013 ~ Ruidoso, NM Hotel Reservation Information Inn of the Mountain Gods ~ Ruidoso, NM For hotel reservations, CONTACT THE INN OF THE MOUNTAIN GODS 287 Carrizo Canyon Road ~ Mescalero, NM, 88340 For hotel reservations, CONTACT THE INN OF THE MOUNTAIN GODS A Joint Seminar with the Texas Association of Defense 287 Carrizo Canyon Road ~ Mescalero, NM, 88340 DIRECTLY AT 800DIRECTLY/545-9011 and ATreference 800 /545the -TADC9011 Westand Texasreference the TADC West Texas Ph:Ph: 800 800/545/545-9011-9011 Seminar. The TADCSeminar has secured. aThe block TADC of rooms has at asecured FANTASTIC a block rate. of rooms at a FANTASTIC rate. Counsel, Inc. It is IMPORTANT that you make your reservations as soon as possible as the th It is IMPORTANT that you make your reservations as soon as possible as the 400 W. 15 Street, Suite 420 Pricing & Registration Options room block is limitedroom. Any block room requestsis limited after. the Any deadline room date, requestsor after the after the deadline date, or after the New Mexico Defense Pricing & Registration Options room block is filled, will be on a space available basis. Austin, Texas 78701 Registration fees include Friday & Saturday group activities, including the Friday room block is filled, will be on a space available basis. RegistrationEvening feeswelcome include reception, Friday Saturday & Saturday breakfast group, CLE activities,Program and including related the Friday DEADLINE FOR HOTEL RESERVATIONS IS expenses. If you would like New Mexico CLE credit, please notify the TADC JULY 20DEADLINE, 2013 FOR HOTEL RESERVATIONS IS 512-476-5225 – FX 512-476-5384 Eveningoffice welcome and you will reception, be provided Saturday with a certificate breakfast of attendance, CLE forProgram the New and related Lawyers Association [email protected] expenses.Mexico IfBar. you would like New Mexico CLE credit, please notify the TADCTADC Refund Policy Information JULY 20, 2013 office and you will be provided with a certificate of attendance for the New Registration for Member Only (one person) $125.00 Registration Fees willTADC be refunded Refund ONLY Policy if a writtenInformation cancellation notice is MexicoRegistration Bar. for Member & Spouse/Guest (2 people) $145.00 received at least SEVEN (7) Business days prior (AUGUST 1, 2013) to the meeting date. A $25 .00 Administrative Fee will be deducted from any refund. August 9-10, 2013 ~ Inn of the Mountain Gods ~ Ruidoso, NM Registration for Member Only (one person) $125.00 Any cancellation madeRegistration after August 1 , Fees2013 IS will NON -beREFUND refundedABLE. ONLY if a written cancellation notice is Registration for Member & Spouse/Guest (2 people) $145.00 received at least SEVEN (7) Business days prior (AUGUST 1, 2013) to the meeting date. A $25.00 Administrative Fee will be deducted from any refund.

Any cancellation made after August 1, 2013 IS NON-REFUNDABLE. PROGRAM AND REGISTRATION 2013 TADC WEST TEXAS SEMINAR Approved for 4.5 Hours CLE, including 1.0 hours ethics August 9-10, 2013 For Hotel Reservations, contact the Inn of the Mountain Gods DIRECTLY at 800/545-9011 Friday, August 9, 2013 (All times Mountain Time) 2013 TADC WEST TEXAS SEMINAR CHECK APPLICABLE BOX TO CALCULATE YOUR REGISTRATION FEE: 6:00-8:00pm Opening Reception August 9-10, 2013 □ $125.00 MemberFor Hotel ONLY Reservations, (One Person) contact the Inn of the Mountain Gods DIRECTLY at 800/545-9011 Saturday, August 10, 2013 □ $145.00 Member & Spouse/Guest (2 people)

7:30am Welcome & Introductions Leonard R. (Bud) Grossman, Craig, Terrill, Hale & Grantham, L.L.P., Lubbock CHECKTOTAL APPLICABLE Registration Fee Enclosed BOX TO $______CALCULATE YOUR REGISTRATION FEE: Bryan Evans, Atwood, Malone, Turner & Sabin, P.A., Roswell □ $ 125.00 Member ONLY (One Person) 7:45-8:15am EXPEDITED JURY TRIALS IN TEXAS NAME: FOR NAME TAG □ $ 145.00 Member & Spouse/Guest (2 people) Chantel Crews, Ainsa Hutson, LLP, El Paso FIRM: OFFICE PHONE:

8:15-8:45am WHAT THE CIVIL LITIGATOR NEEDS TO KNOW ABOUT CRIMINAL LAW ADDRESS : CITY ZIP Slater Elza, The Underwood Law Firm, P.C., Amarillo TOTAL Registration Fee Enclosed $______SPOUSE/GUEST (IF ATTENDING) FOR NAME TAG: □ Check if your spouse/guest is a TADC member 8:45-9:15am FROM THE RIG TO THE COURTROOM: OIL AND GAS LAWS UPDATE Pat Long Weaver, Burleson, LLP, Midland NAME:EMAIL ADDRESS: FOR NAME TAG

9:15-9:45am COURTROOM DECORUM AND CIVILITY IN TEXAS In order to ensure that we have adequate materials available for all registrants, it is suggested that meeting registrations be The Honorable Stacy Trotter, Shafer, Davis, O’Leary & Stoker, Inc., Odessa FIRM:submitted to TADC by July 20, 2013. This deadline coincides with the deadlineOFFICE set byPHONE: the hotel for hotel accommodations.

9:45-10:00am B R E A K PAYMENT METHOD: ADDRESS : CITY ZIP A CHECK in the amount of $______is enclosed with this form. 10:00-10:30am MANAGING THE TRIPARTITE RELATIONSHIP IN NEW MEXICO SPOUSE/GUEST (IF ATTENDING) FOR NAMEth TAG: Bill Anderson, Orraj, Anderson, Obrey-Espinoza, Las Cruces MAKE PAYABLE & MAIL THIS FORM TO: TADC , 400 West 15 Street, Suite 420, Austin, Texas 78701 □ Check if your spouse/guest is a TADC member 10:30-11:00am VOIR DIRE IN NEW MEXICO: SPOTTING ADVOCATES & AVOIDING ADVERSARIES CHARGE TO: (circle one) Visa Mastercard American Express EMAIL ADDRESS: Bryan Garcia, The Narvaez Law Firm, Albuquerque ______Card Number Expiration Date 11:00-11:30am COURTROOM DECORUM AND CIVILITY IN NEW MEXICO In order to ensure that we have adequate materials available for all registrants, it is suggested that meeting registrations be The Honorable Freddie Romero, 5th Judicial District of New Mexico, Division II submitted to TADC by July 20, 2013. This deadline coincides with the deadline set by the hotel for hotel accommodations. Signature:______TADC as it appears on card 400 W. 15th Street, Ste 420, Austin, TX 78701 11:30-Noon RECENT DEVELOPMENTS IN ARBITRATION PAYME NT METHOD: PH: 512/476-5225 FX: 512/476-5384 Jerry T. Fazio, Owen & Fazio, P.C., Dallas

A CHECK in the amount of $______is enclosed with this form. 12:00-1:00pm LUNCH PANEL DISCUSSION: TEXAS & NEW MEXICO (For TADC Office Use Only)

MAKE PAYABLE & MAIL THIS FORM TO: TADC , 400 West 15th Street, Suite 420, Austin, Texas 78701 1:00pm ADJOURN TO ENJOY RUIDOSO! (limited tee times at the links) Date Received______Payment-Check#______(F or I) Amount______ID#______Date Received______Payment-Check#______(F or I) Amount______ID#______CHARGESummer TO: 2013 (circle one) VisaTexas Association of DefenseMastercard Counsel, Inc. American Express 31

______Card Number Expiration Date

Signature:______TADC as it appears on card 400 W. 15th Street, Ste 420, Austin, TX 78701 PH: 512/476-5225 FX: 512/476-5384

(For TADC Office Use Only)

Date Received______Payment-Check#______(F or I) Amount______ID#______Date Received______Payment-Check#______(F or I) Amount______ID#______2013 WINTER SEMINAR

Sheraton Steamboat – February 6-10, 2013 – Steamboat Springs, CO

The 2013 TADC Winter Seminar was held at the magnificent Sheraton Steamboat Resort in Steamboat Springs, Colorado, February 6-10, 2013. The Illinois Defense Counsel joined with the TADC in the first joint meeting between the two associations. Randy Walters with the Dallas law firm of Walters, Balido & Crain, L.L.P. and Greg Curry with the Dallas firm of Thompson & Knight LLP, served as Program Co-Chairs. The program featured practical topics, with presentations on Social Media and the Preservation of the Jury Trial as well as Making your Case to the Jury and the Supreme Court Update. Members enjoyed 8.5 hours of CLE and fresh powder every day!

Brenda Hight & Max Wright IDC President Howard Jump & TADC President Dan Worthington

Jimmy, Rachel & David Brenner with Randy Walters, Karen Brenner & Sal Davila

32 Texas Association of Defense Counsel, Inc. Summer 2013 2013 WINTER SEMINAR

Sheraton Steamboat – February 6-10, 2013 – Steamboat Springs, CO

The 2013 TADC Winter Seminar was held at the magnificent Sheraton Steamboat Resort in Steamboat Forensic Springs, Colorado, February 6-10, 2013. The Illinois Defense Counsel joined with the TADC in the first Engineering EXPERT joint meeting between the two associations. Randy Walters with the Dallas law firm of Walters, Balido & Crain, L.L.P. and Greg Curry with the Dallas firm of Thompson & Knight LLP, served as Program FORENSICS Co-Chairs. The program featured practical topics, with presentations on Social Media and the Preservation of the Jury Trial as well as Making your Case to the Jury and the Supreme Court Update. Forensic Members enjoyed 8.5 hours of CLE and fresh powder every day! Architecture EXPERT SOLUTIONS Product Liability Investigation NELSON is a & Analysis globally-recognized forensics and consulting Construction, firm specializing in Design & Materials Forensic Engineering Defects Forensics and Architecture

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Summer 2013 Texas Association of Defense Counsel, Inc. 33 TEXAS ASSOCIATION OF DEFENSE COUNSEL, INC. An Association of Personal Injury Defense, Civil Trial & Commercial Litigation Attorneys ~ Est. 1960

WELCOME NEW MEMBERS! 400 West 15th Street, Suite 420, Austin, Texas 78701 512/476/5225 Fax 512/476-5384 Email: [email protected]

Donnie Apodaca, The Berry Firm, PLLC; Dallas Jason D. Bath, Bush & Ramirez, L.L.C.; Houston Mr. Anna Brandl, Hinkle, Hensley, Shanor & Martin, L.L.P.; Midland Mrs. , The Peavier Group; Dallas I Ms. ______hereby apply for membership in the Association and certify that I am Kyle Briscoe (circle one) Please print , Atlas, Hall & Rodriguez, L.L.P.; McAllen Adriana H. Cardenas a member in good standing of the State Bar of Texas, engaged in private practice; that I devote a substantial amount of my professional , Kemp Smith LLP; El Paso Rachel Carver time to the practice of Civil Trial Law, Personal Injury Defense and Commercial Litigation. I am not now a member of any plaintiff or Wayne Clawater, Shepherd, Scott, Clawater & Houston, L.L.P.; Houston claimant oriented association, group, or firm. I further agree to support the Texas Association of Defense Counsel's aim to promote Keith Cook, Cooksey & Marcin, PLLC; The Woodlands improvements in the administration of justice, to increase the quality of service and contribution which the legal profession renders to the Harrel L. Davis, Gordon Davis Johnson & Shane P.C.; El Paso community, state and nation, and to maintain the TADC's commitment to the goal of racial and ethnic diversity in its membership. Shan Marie Egliskis, Henslee Schwartz, LLP; San Antonio Jeffrey R. Elkin, Porter Hedges LLP; Houston Jason W. Fatheree, Crouch & Ramey, L.L.P.; Dallas Preferred Name (if Different from above): Don Ferrill, Brown Pruitt Wambsganss Ferrill & Dean, P.C.; Fort Worth Jimmy Feuille, Scott Hulse, P.C.; El Paso Firm: Lauren Freeland, Naman, Howell, Smith & Lee, PLLC; Austin John G. George Jr., Beirne, Maynard & Parsons, L.L.P.; San Antonio Office Address: City: Zip: Henry B. Gonzalez III, Gonzalez, Chiscano, Angulo & Kasson P.C.; San Antonio Andres Gonzalez, Henslee Schwartz, LLP; San Antonio Main Office Phone: / Direct Dial: / Office Fax: / Lawrence B. Greer, Greer & Shropshire, LLP; Houston Elizabeth G. Hill, Craig, Terrill, Hale & Grantham, L.L.P.; Lubbock Email Address: Cell Phone: / Ronald E. Hood, Hays, McConn, Rice & Pickering, P.C.; Houston J. Nathaniel James, Harris, Finley & Bogle, P.C.; Fort Worth Home Address: City: Zip: C. Brantley Jones, Sprouse Shrader Smith P.C.; Amarillo Sarah Clinton Jones, Bingham, Mann & House; Houston Spouse Name: Home Phone: / Evan N. Kramer, Funderburk Funderburk Courtois, LLP; Houston Stephanie M. Krueger, Ray, Valdez, McChristian & Jeans, PC; Fort Worth Bar Card No.: Year Licensed: Birth Date:  DRI Member? Sophia L. Lauricella, Strong Pipkin Bissell & Ledyard, L.L.P.; Beaumont Hugo Madrid, Pierce & Little, P.C.; El Paso Kristen Welsh McDanald, Beirne, Maynard & Parsons, L.L.P.; Houston Dues Categories: , Shepherd, Scott, Clawater & Houston, L.L.P.; Houston *If joining November – July: $185.00 Licensed less than five years (from date of license) $295.00 Licensed five years or more David McTaggart If joining August: $ 50.00 Licensed less than five years (from date of license) $100.00 Licensed five years or more Meghan Nylin, Thompson & Knight LLP; Dallas If joining September: $ 35.00 Licensed less than five years (from date of license) $ 50.00 Licensed five years or more Shane O'Dell, Naman, Howell, Smith & Lee, PLLC; Fort Worth If joining October: $ 25.00 Licensed less than five years (from date of license) $ 35.00 Licensed five years or more Robin O'Neil, Beck | Redden LLP; Houston *If joining in November or December, your Membership Dues will be considered paid for the following year. However, New Members joining after Nicholas Ostrow, Funderburk Funderburk Courtois, LLP; Houston October 1 will not have their names printed in the following year’s roster because of printing deadlines. Donna Peavier, The Peavier Group; Dallas Taylor L. Pope, Harris, Finley & Bogle, P.C.; Fort Worth Applicant’s signature: Date: Matthew Prewett, Shepherd, Scott, Clawater & Houston, L.L.P.; Houston Maya Quevedo, Pierce & Little, P.C.; El Paso Signature of Applicant’s Sponsor: Reed C. Randel, Thompson & Knight LLP; Dallas

Krishna Reddy, Paul Garcia & Associates; San Antonio

Cody B. Rees, Orgain, Bell & Tucker, L.L.P.; Beaumont , Vidaurri, Lyde, Rodriguez & Haynes, L.L.P.; San Antonio ______Pablo E. Rivera (TADC member) Please print name under signature Marcos Rosales, Beck | Redden LLP; Houston Christopher A. Ruhman, Hays, McConn, Rice & Pickering, P.C.; Houston I agree to abide by the Bylaws of the Association and attach hereto my check for $______-OR- Doug R. Salisbury, Thompson & Knight LLP; Dallas Joe Savoie, Tekell Book Allen & Morris, L.L.P.; Houston Please charge $______to my  Visa  MasterCard  American Express Stuart R. Schwartz, Scott Hulse, P.C.; El Paso John Scott, Shepherd, Scott, Clawater & Houston, L.L.P.; Houston Card #: Exp. Date: / Kenneth F. Sheets, Payne & Blanchard, L.L.P.; Dallas John Shelton, Hinkle, Hensley, Shanor & Martin, L.L.P.; Midland Chris Slayton, Jones, Flygare, Brown & Wharton, P.C.; Lubbock Please return this application with payment to: For Office Use Casey Stevenson, Scott Hulse, P.C.; El Paso Texas Association of Defense Counsel, Inc. Joshua Ryan Walker, Looper, Reed & McGraw; Houston 400 West 15th Street, Suite 420 Date: ______Mackenzie S. Wallace, Thompson & Knight LLP; Dallas Austin, Texas 78701 Marc Waters, Bingham, Mann & House; Houston Check # and type: ______Alex Yarbrough, Sprouse Shrader Smith P.C.; Amarillo Referring TADC Member: ______Nicholas Zito, Ramey, Chandler, McKinley & Zito, P.C.; Houston (print name) Approved: ______Rick Zuniga, Atlas, Hall & Rodriguez, L.L.P.; McAllen 34 Texas Association of Defense Counsel, Inc. Summer 2013 TEXAS ASSOCIATION OF DEFENSE COUNSEL, INC. An Association of Personal Injury Defense, Civil Trial & Commercial Litigation Attorneys ~ Est. 1960

WELCOME NEW MEMBERS! 400 West 15th Street, Suite 420, Austin, Texas 78701 512/476/5225 Fax 512/476-5384 Email: [email protected]

Krishna Reddy, Paul Garcia & Associates; San Antonio

Cody B. Rees, Orgain, Bell & Tucker, L.L.P.; Beaumont , Vidaurri, Lyde, Rodriguez & Haynes, L.L.P.; San Antonio ______Pablo E. Rivera (TADC member) Please print name under signature Marcos Rosales, Beck | Redden LLP; Houston Christopher A. Ruhman, Hays, McConn, Rice & Pickering, P.C.; Houston I agree to abide by the Bylaws of the Association and attach hereto my check for $______-OR- Doug R. Salisbury, Thompson & Knight LLP; Dallas Joe Savoie, Tekell Book Allen & Morris, L.L.P.; Houston Please charge $______to my  Visa  MasterCard  American Express Stuart R. Schwartz, Scott Hulse, P.C.; El Paso John Scott, Shepherd, Scott, Clawater & Houston, L.L.P.; Houston Card #: Exp. Date: / Kenneth F. Sheets, Payne & Blanchard, L.L.P.; Dallas John Shelton, Hinkle, Hensley, Shanor & Martin, L.L.P.; Midland Chris Slayton, Jones, Flygare, Brown & Wharton, P.C.; Lubbock Please return this application with payment to: For Office Use Casey Stevenson, Scott Hulse, P.C.; El Paso Texas Association of Defense Counsel, Inc. Joshua Ryan Walker, Looper, Reed & McGraw; Houston 400 West 15th Street, Suite 420 Date: ______Mackenzie S. Wallace, Thompson & Knight LLP; Dallas Austin, Texas 78701 Marc Waters, Bingham, Mann & House; Houston Check # and type: ______Alex Yarbrough, Sprouse Shrader Smith P.C.; Amarillo Referring TADC Member: ______Nicholas Zito, Ramey, Chandler, McKinley & Zito, P.C.; Houston (print name) Approved: ______Rick Zuniga, Atlas, Hall & Rodriguez, L.L.P.; McAllen Summer 2013 Texas Association of Defense Counsel, Inc. 35 TADC EXPERT WITNESS LIBRARY PAPERS AVAILABLE THANK YOU FOR YOUR CONTRIBUTION TO THE EXPERT WITNESS DATABANK:

Brett T. Reynolds, Blakely & Jo Ben Whittenburg, Orgain, Bell & 2013 TADC Winter Seminar – Steamboat Springs, CO – February 6-10, 2013 Reynolds, P.C. (San Antonio) Tucker, LLP (Beaumont) Jurisdiction and Venue After the Federal Courts Jurisdiction and Venue Clarification Act of 2011 – Peter R. Jennetten – 70 pgs. (2 parts) Stephen R. Patterson, Patterson & John Cahill, Hays, McConn, Rice & Connolly, LLP (Longview) Pickering, P.C. (Houston) Texas Supreme Court Update – Gregory D. Binns – 14 pgs.

What the $&*@ Is an ECM and How Do You Download It? Answering This and Other Burning S. Brad Brown, Jackson Walker, Brantley Ross Pringle, Jr, Wright & Questions from Your First Commercial Truck Collision Case – Ron T. Capehart – 27 pgs. LLP (Dallas) Greenhill, PC (Austin)

2013 Spring Meeting – Austin, Texas – April 3-5, 2013 Fred R. Jones, Goode Casseb Jones Thomas C. Riney, Riney & Mayfield Riklin Choate & Watson LLP (Amarillo) Jurors Asking Questions of Witnesses / Procedure and Jury Instructions Regarding Allowing (San Antonio) Jurors to Ask Questions of Witnesses / Taking Notes Instructions to the Jury – The Honorable Richard E. Harrison, Harrison & Orlinda Naranjo – 3 pgs. D’Lyn Davison, Davison Rugeley, Hull, LLP (McKinney) Civil Trial Jury Charge Update – Greg C. Wilkins – 7 pgs. LLP (Wichita Falls)

The Ethical Trial Lawyer – Ross Pringle – 11 pgs. and a Special Thank You to all the Members who completed and returned the Rule 169 Expedited Actions – A Summary and Strategic Considerations from the Defense Expert Witness Follow-up Forms Perspective /Final Approval of Rules for Dismissal and Expedited Actions – Keith B. O’Connell – 10 pgs. EXPERT WITNESS DATABASE

Secondary Payer Issues – Ranelle M. Meroney – 13 pgs. The Texas Association of Defense Counsel, Inc. maintains an Expert Witness Index Supreme Court of Texas Update/March 1, 2012 – February 28, 2013 – Justice Jeffrey S. Boyd – 99 which is open only to TADC members or member firms. This index includes thousands of pgs. experts by name and topic or areas of specialty ranging from Aabdomen@ to Azoology.@ Please visit the TADC website (www.tadc.org) or call the office at 512/476-5225 or FAX Why the Preservation of the Jury Trial is Critical – Mackenzie S. Wallace – 27 pgs. 512/476-5384 for additional information. To contribute material to the Expert Witness Library, mail to TADC Expert Witness Service, 400 West 15th St, Suite 420 Austin, TX 78701 COST OF PAPERS or email [email protected]. 41-65 pages...... $40.00 10 pages or less ...... $10.00 66-80 pages...... $50.00 There is a minimum charge of $15.00, with the average billing being approximately 11-25 pages...... $20.00 81 pages or more ...... $60.00 $25.00, depending upon research time. You can specify geographical locations, in or out of 26-40 pages...... $30.00 state. Note that out-of-state attorneys may only access the Expert Witness Index upon referral from a TADC member.

HOW TO ORDER DEPOSITION & TRIAL TRANSCRIPT LIBRARY

YOU MAY ORDER THESE PAPERS BY FAX, E-MAIL, OR U.S. MAIL. The TADC office has added a Deposition/Trial Transcript Library to the Expert Please indicate the title of the paper, the author & meeting where the paper was Witness service. TADC members using the Expert Witness Index may also obtain presented when ordering. TADC will invoice you when the papers are sent. Papers will deposition and trial transcripts of experts when available. There is a nominal charge for this be sent to you via email unless otherwise requested. service. Depositions are available in both printed and computer disk form and can be sent overnight for an additional charge. A searchable database of papers is available on the TADC website: www.tadc.org 36 Texas Association of Defense Counsel, Inc. Summer 2013 TADC EXPERT WITNESS LIBRARY PAPERS AVAILABLE THANK YOU FOR YOUR CONTRIBUTION TO THE EXPERT WITNESS DATABANK:

HOW TO ORDER DEPOSITION & TRIAL TRANSCRIPT LIBRARY

YOU MAY ORDER THESE PAPERS BY FAX, E-MAIL, OR U.S. MAIL. The TADC office has added a Deposition/Trial Transcript Library to the Expert Please indicate the title of the paper, the author & meeting where the paper was Witness service. TADC members using the Expert Witness Index may also obtain presented when ordering. TADC will invoice you when the papers are sent. Papers will deposition and trial transcripts of experts when available. There is a nominal charge for this be sent to you via email unless otherwise requested. service. Depositions are available in both printed and computer disk form and can be sent overnight for an additional charge. A searchable database of papers is available on the TADC website: www.tadc.org Summer 2013 Texas Association of Defense Counsel, Inc. 37 TEXAS ASSOCIATION OF DEFENSE COUNSEL, INC. 400 West 15th Street, Suite 420 * Austin, Texas 78701 * 512/476-5225 Expert Witness Research Service Expert Witness Search Request Form Overall Process Please FAX this completed form to: 512/476-5384 • Complete the TADC Expert Witness Research Service Request Form. Multiple name/specialty requests can be put on one form. Date: ______NORMAL RUSH (Surcharge applies)

• If the request is for a given named expert, please include as much information as possible (there are 15 James Jones in the database). Attorney: ______TADC Member Non-Member (Surcharge applies) • If the request is for a defense expert within a given speciality, please include as much information as possible. For example, accident reconstruction can include experts with a speciality of seat belts, Requestor Name (if different from Attorney): ______brakes, highway design, guardrail damage, vehicle dynamics, physics, human factors, warning signs, Firm: ______City: ______etc. If a given geographical region is preferred, please note it on the form. Phone: ______FAX: ______• Send the form via facsimile to 512/476-5384 or email to [email protected] Client Matter Number (for billing): ______• Queries will be run against the Expert Witness Research Database. All available information will be sent via return facsimile transmission. The TADC Contact information includes the attorney who Case Name: ______consulted/confronted the witness, the attorney’s firm, address, phone, date of contact, reference or Cause #: ______Court: ______file number, case and comments. To further assist in satisfying this request, an Internet search will also be performed (unless specifically requested NOT to be done). Any CV’s depositions, and/or Case Description: ______trial transcripts that reside in the Expert Witness Research Service Library will be noted.

• Approximately three months after the request, an Expert Witness Research Service Follow-up Form  Search by NAME(S): (Attach additional sheets, if required.) will be sent. Please complete it so that we can keep the Expert Witness Database up-to-date, and Designated as:  Plaintiff  Defense  Unknown better serve all members.

Name: ______Honorific: ______Expert Witness Service Fee Schedule Company: ______Address: ______Single Name Request City: ______State: ______Zip: ______Phone: ______Expert Not Found In Database $15.00 Areas of expertise: ______**Expert Found In Database, Information Returned To Requestor $25.00 ______A RUSH Request Add An Additional $ 10.00  SPECIALTY Search: (Provide a list of experts within a given specialty.) A $50.00 surcharge will be added to all non-member requests $50.00  Describe type of expert, qualifications, and geographical area, if required (i.e., DFW metro, South TX, etc). Give as ** Multiple names on a single request form and/or request for experts with a given specialty (i.e., many key words as possible; for example, ‘oil/gas rig expert’ could include economics (present value), construction, MD specializing in Fybromyalgia) are billed at $80.00 per hour. engineering, offshore drilling, OSHA, etc. A detailed description of the case will help match requirements.

Generally, four to five names can be researched, extracted, formatted, and transmitted in an hour. ______

The amount of time to perform a specialty search depends upon the difficulty of the requested ______specialty, but usually requires an hour to extract, format, and transmit. If the information returned exceeds four pages, there is a facsimile transmission fee. ______

The TADC Expert Witness Service Deposition Library can provide copies of depositions. The ______TADC Expert Witness Library can provide copies of depositions, CVs, trial transcripts, etc. The fee for locating and copying or printing material is $40.00 for an electronic (diskette) copy; hard-copy ______is $40.00, plus a $0.05 per page  INTERNET:  INCLUDE Internet Material  DO NOT Include Internet Material ======A research fee will be charged. For a fee schedule, please call 512 / 476-5225 or visit the TADC website www.tadc.org

38 Texas Association of Defense Counsel, Inc. Summer 2013 Texas Association of Defense Counsel, Inc. Facsimile: 512 / 476-5384 TEXAS ASSOCIATION OF DEFENSE COUNSEL, INC. 400 West 15th Street, Suite 420 * Austin, Texas 78701 * 512/476-5225 Expert Witness Research Service Expert Witness Search Request Form Overall Process Please FAX this completed form to: 512/476-5384 • Complete the TADC Expert Witness Research Service Request Form. Multiple name/specialty requests can be put on one form. Date: ______NORMAL RUSH (Surcharge applies)

Generally, four to five names can be researched, extracted, formatted, and transmitted in an hour. ______

Summer 2013Texas Association of DefenseTexas Association Counsel, of Defense Inc. Counsel, Inc. Facsimile : 512 / 476-5384 39 SUBSTANTIVE LAW NEWSLETTERS INCLUDED ON THIS CD ARE THE FOLLOWING NEWSLETTERS:

• Appellate Law • Health Care Law Editors: Scott P. Stolley & Doug Salisbury, Editor: Casey P. Marcin, Cooksey & Thompson & Knight, L.L.P.; Dallas Marcin, P.L.L.C., The Woodlands

• Commercial Litigation • Insurance Editors: John J. Bridger & Jason McLaurin, Co-Editors: David A. Clark, Robert L. Horn, Strong, Pipkin, Bissell & Ledyard, L.L.P.; Brian T. Bagley, Benjamin T. Zinnecker, Kurt Houston L. Harkness & Scott R. Davis, Beirne, Maynard & Parsons, L.L.P., Houston • Construction Law Editor: David V. Wilson, Hays, McConn, • Product Liability Rice & Pickering, P.C.; Houston Editors: Joseph S. Pevsner & Janelle L. Davis, Thompson & Knight, L.L.P., Dallas • Defamation Contributing Editor: Meghan Nylin, Editor: Michael D. Morrison, Baylor Law Thompson & Knight, L.L.P., Dallas School, Waco • Professional Liability • Energy Law Editors: Melinda R. Burke and Nathan A. Co-Editors: Greg W. Curry, Gregory D. Winkler, Shannon, Gracey, Ratliff & Binns & Reed C. Randel, Thompson & Miller, L.L.P. Knight, L.L.P., Dallas

40 Texas Association of Defense Counsel, Inc. Summer 2013 When you need to know . . .

• Accident Reconstruction • Fires & Explosions • Biomechanics & Injury Assessment • Food Science and Chemicals • Civil & Structural Engineering • Health • Construction Delay • Materials Evaluation • Data Analysis • Mechanical Design Assessment • Electrical/Electronics • Occupational Injuries • Environmental/Toxic Tort • VisualCommunications/Demonstrative Evidence • Ergonomics • Warnings & Labeling/Human Factors

18 US and 3 International offices including Houston 281.983.4000 • [email protected] • www.exponent.com 10899 Kinghurst Drive, Suite 245 • Houston • TX • 77099 Presorted Standard US Postage PAID Craftsman Printers, Inc.

400 W. 15th Street Suite 420 Austin, Texas 78701

Ruidoso Mark Your

Boston August 9-10, 2013 TADC West Texas Seminar Inn of the Mountain Gods - Ruidoso, NM

Crested Butte

September 18-22, 2013 TADC Annual Meeting W Hotel - Boston, MA

February 5-9, 2014 TADC Winter Seminar Elevation Resort & Spa - Crested Butte, CO