THE MOST UNDERUTILIZED ADVOCACY

Moderator:

PAMELA STANTON BARON, Austin Attorney at Law

HONORABLE DAVID B. GAULTNEY, Beaumont Justice 9th Court of Appeals

HONORABLE EVA GUZMAN, Justice 14th Court of Appeals

HONORABLE AMOS MAZZANT, Justice 15th Court of Appeals

HONORABLE LINDA REYNA YANEZ, Edinburg Justice 13th Court of Appeals

State Bar of Texas 21ST ANNUAL ADVANCED CIVIL APPELLATE PRACTICE COURSE September 6 – 7, 2007 Austin

CHAPTER 23

PAMELA STANTON BARON Attorney at Law [email protected]

Post Office Box 5573 Telephone: (512) 479-8480 Austin, Texas 78763 Fax: (512) 479-8070 BIOGRAPHICAL INFORMATION

EDUCATION J.D. with honors, 1978, The University of Texas School of Law, Austin, Texas. B.A. with highest distinction, 1975, Purdue University, West Lafayette, Indiana. Phi Beta Kappa. Valedictorian, 1972, Texas City High School, Texas City, Texas. Class Rank 1/500; National Merit Scholar.

PROFESSIONAL EXPERIENCE Sole Practitioner, Austin, September 1993 - present Staff Attorney, , October 1989 - August 1993 Associate, Graves, Dougherty, Hearon & Moody, Austin, September 1982 - September 1989 Associate, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., October 1978 - June 1982

APPOINTMENTS, ACTIVITIES AND MEMBERSHIPS Member, Supreme Court Rules Advisory Committee, 1993 - present Chair, Subcommittee on Tex. R. Civ. P. 1-14c Member, Subcommittees on Texas Rules of Appellate Procedure and Tex. R. Civ. P. 215 Member, Texas Supreme Court Taskforce to Expand Legal Services Delivery, 2004-2006 Board Certified, Civil Appellate Law, Texas Board of Legal Specialization Chair, Appellate Section, State Bar of Texas (2004-2005); Chair-Elect (2003-2004); Vice Chair (2002-2003); Secretary and Membership Services Committee Chair (2001-2002); Treasurer (2000-2001); Council Member (1996-1999); Appellate Rules Committee Chair (1997-2001) Member, Civil Appellate Law Exam Commission, Texas Board of Legal Specialization, 1996-2005 Chair, University of Texas School of Law, Annual Conferences on State and Federal Appeals, June 1996, 1997, 2000, 2003, 2005, and 2006 Secretary-Treasurer and Board of Directors, Friends of the State Law Library Top 50 Female Super Lawyers, TexasMonthly Magazine, November 2003 Texas Super Lawyer, TexasMonthly Magazine, November 2003, 2004, and 2005 Frequent speaker and author on Texas Supreme Court practice and other appellate law topics AV rating by Martindale-Hubbell Admitted to the Texas and Washington, D.C. bars

SELECTED PUBLICATIONS Happy Fiscal New Year! Out With The Old, In With The New, State Bar of Texas, Advanced Civil Appellate Practice Course, Sept. 2006. Texas Supreme Court Update: A Look at Trends and the Term Ahead, 2005 Judicial Section Annual Conference, Sept. 2005. Certified Questions To and From the Texas Supreme Court, 17 APPELLATE ADVOCATE 6 (Winter 2005). Supreme Court Jurisdiction, State Bar of Texas, TEXAS SUPREME COURT PRACTICE MANUAL 2005 (2005) (co-author with Prof. Alex Albright). Texas Supreme Court Update, 2004 Judicial Section Annual Conference, Sept. 2004. Texas Supreme Court Mandamus Update, State Bar of Texas, Practice Before the Supreme Court of Texas, April 2004. Chutes and Ladders: Unusual Paths In and Out of the Appellate Courts, State Bar of Texas, Advanced Civil Appellate Practice Course, Sept. 2003. Interlocutory Appeals, Mandamus, and Other Extraordinary Remedies, State Bar of Texas, Advanced Civil Trial Course, Fall 2003. Help! The Other Side Has Filed a Petition for Review — What Do I Do Now? State Bar of Texas, Practice Before the Supreme Court of Texas, April 2003. The 2002 Amendments to the Texas Rules of Appellate Procedure With Commentary, 15 APPELLATE ADVOCATE 5 (Fall 2002) (co-author with Prof. William V. Dorsaneo III and W. Wendell Hall). Appellate Sanctions, State Bar of Texas, Civil Appellate Practice Boot Camp, Sept. 2002 (co-author). Texas Supreme Court Practice, State Bar of Texas, Advanced Personal Injury Law Course, Summer 2002. Drafting Issues in the Texas Supreme Court, State Bar of Texas, Advanced Civil Appellate Practice Course, Sept. 2001. The Texas Supreme Court by the Numbers: A Statistical Survey, University of Texas School of Law, 11th Annual Conference on State and Federal Appeals, May 2001 (co-author). The Civil Amicus Brief, 13 APPELLATE ADVOCATE 4 (Fall 2000). Simplicity, Simplicity, Simplicity! Techniques for Presenting Complicated Facts and Issues Simply, State Bar of Texas, Advanced Civil Appellate Practice Course, Sept. 2000. New Process Is a Blessing and Curse; Switching to the Petition for Review Has Had Some Unintended Consequences, THE TEXAS LAWYER (Sept. 6, 1999). Petitions for Review: Frequently Asked Questions, 12 APPELLATE ADVOCATE 3 (June 1999). Mandamus Writs are Hard to Predict, THE TEXAS LAWYER (July 13, 1998). Developments in the Substantive Law: Beware the Rule Robots, THE TEXAS LAWYER (Dec. 15, 1997). Beyond Debate: Per Curiam Disposition by the Texas Supreme Court, Houston Bar Association, Appellate Practice Section, March 1997. The New Petition for Review: Larger Issues, Smaller Brief, State Bar of Texas, Advanced Civil Appellate Practice Course, September 1996.

SELECTED APPEALS — Texas Supreme Court United Services Automobile Ass’n v. Brite, 161 S.W.3d 566 (Tex. App.–San Antonio 2005, pet. granted). Lead Supreme Court counsel for USAA in employment discrimination case. Court granted petition and will hear argument in the fall. City of San Antonio v. Pollock, 155 S.W.3d 322 (Tex. App.—San Antonio 2004, pet. granted). Co- appellate counsel for City of San Antonio seeking review of $10 million judgment for personal injury damages allegedly caused by exposure to gases migrating from a landfill adjoining the plaintiffs’ property. Court granted petition and will hear argument in the fall. Atofina Petrochemicals, Inc. v. Continental Casualty Co., 49 Tex. S. Ct. J. 225 (Dec. 16, 2005) (per curiam). Lead Supreme Court counsel for Atofina in case defining prerequisites and terms of additional insured coverage for premises owner. Successfully obtained per curiam opinion reinstating trial court judgment in favor of Atofina on coverage issue. National Union Fire Ins. Co. v. Zink, 05-0770 (pending). Co-appellate counsel in the Texas Supreme Court for insurers in complex subrogation action; Court has requested full briefing. City of San Antonio v. TPLP Office Park Properties, No. 04-1130 (pending). Lead Supreme Court counsel for City of San Antonio in case involving validity of City ordinance; Court requested full briefing. City of Austin v. Travis County Landfill Co., L.L.C., 73 S.W.3d 234 (Tex. 2002). Lead appellate counsel for the City of Austin in case in which Texas Supreme Court reversed a multi-million dollar award against the City for inverse condemnation premised on overflights at new airport. E. I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Co-counsel for DuPont with primary responsibility for drafting briefs and presenting oral argument. Successfully persuaded Texas Supreme Court to apply Daubert reliability standard to experts testifying in Texas state courts. HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998). Lead appellate counsel for HECI in reversing multi-million dollar judgment on grounds that royalty owners cannot invoke the discovery rule when they fail to investigate readily-available information. AT&T Corp. v. Bryceland, 03-0948 (settled). Co-appellate counsel for AT&T in the Texas Supreme Court in multi-million dollar class action against cell phone service provider. Successfully obtained grant of petition for review on rehearing; case settled prior to oral argument. Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732 (Tex. 2001). Co-counsel for Wagner & Brown in case involving application of discovery rule to underpayment of claims by royalty owners. Court agreed with Wagner & Brown and rejected application of the discovery rule. Wagner & Brown, Ltd. v. Horwood, 53 S.W.3d 347 (Tex. 2001) (Hecht, J., dissenting to denial of rehearing). Lead Supreme Court counsel on rehearing from court order dismissing appeal in class certification case for want of jurisdiction. Court denied rehearing, but rehearing motion quoted extensively in dissent. FM Properties v. City of Austin, 22 S.W.3d 868 (Tex. 2000). Co-counsel for the City of Austin with substantial briefing responsibility. The Texas Supreme Court agreed with the City that a statute permitting private landowners to form water quality zones constituted an unconstitutional delegation of legislative power to private entities. Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1997). Co-counsel for the City of Austin with substantial briefing responsibility. The Texas Supreme Court upheld the City’s power to regulate water quality in its extraterritorial jurisdiction. Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267 (Tex. 1996) (per curiam). Lead appellate counsel for Stokes. The Texas Supreme Court, by per curiam opinion, reinstated an appeal that the court of appeals had dismissed for lack of jurisdiction.

SELECTED APPEALS — Courts of Appeals Exxon Corp. v. Makofski, 116 S.W.3d 176 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Co-counsel for ExxonMobil in case overturning multi-million dollar judgment premised on toxic exposure to benzene in a subdivision’s water supply. Principal responsibility for Daubert/Robinson issues for medical causation. Browning Oil Co. v. Luecke, 38 S.W.3d 625 (Tex. App.—Austin 2000, pet. denied). Co-counsel for Browning with primary responsibility for briefing issue of measure of damages for alleged breach of a pooling clause by drilling a horizontal well. Successfully obtained a remand based on improper measure of damages. Moyer v. Moyer, 2005 WL 2043823 (Tex. App.—Austin 2005, no pet.) (mem. op.). Lead appellate counsel for wife; court affirmed significant damages award for intentional infliction of emotional distress. Munters Corp. v. Swissco Young Indus., Inc., 100 S.W.3d 292 (Tex. App.—Houston [1st Dist.] 2002, pet. dism’d). Hired as co-appellate counsel on rehearing for out-of-state manufacturer complaining of multi- million dollar judgment under the DTPA; obtained dissent on rehearing. Case later settled. Southwest Travis County Water District v. City of Austin, No. 03-97-00736-CV, 2000 Tex. App. Lexis 70 (Tex. App.—Austin Jan. 6, 2000, pet. dism’d). Co-counsel for the City of Austin with substantial briefing responsibility and primary responsibility for briefs on summary judgment. The trial court and the court of appeals struck down as an unconstitutional local law a statute creating a water district within the City’s regulatory jurisdiction. Glover v. Union Pacific R.R. Co., No. 06-04-00100-CV, and Vial v. Gas Solution, Ltd., No. 06-04-00101-CV. Co-appellate counsel for Anadarko Petroleum Corp. and ChevronTexaco in companion cases involving adverse possession of oil and gas leases. The court of appeals held that the plaintiffs’ claims were barred by limitations and adverse possession.

SELECTED MANDAMUS CASES In re Users Systems Services, Inc., 22 S.W.3d 331 (Tex. 1999). Co-counsel for Akin, Gump, Strauss, Hauer & Feld. Supreme Court granted mandamus relief from a court of appeals’ decision disqualifying the firm. Troutman v. Ramsay, 960 S.W.2d 176 (Tex. App.—Austin 1997, orig. proceeding). Lead appellate counsel for Troutman. The court of appeals issued mandamus relief to disqualify opposing trial counsel based on prior representation. Lanier v. Stem, 931 S.W.2d 1 (Tex. App.—Waco 1996, orig. proceeding). Lead appellate counsel for Lanier. The court of appeals issued mandamus relief to resolve a jurisdictional dispute in a guardianship matter.

SELECTED AMICUS REPRESENTATION Natural Gas Pipeline Co. of America v. Pool, 124 S.W.3d 188 (Tex. 2003). Co-appellate counsel for Wagner Oil Co. in support of oil and gas lessee seeking to apply doctrine of adverse possession to oil and gas lease. Court’s opinion tracks analysis of amicus brief. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697 (Tex. 2002). Lead appellate counsel for amici Texas Land & Mineral Owners Assoc. and others in support of landowner seeking to bar cable company access to his property. Court's opinion tracks analysis urged in the brief of amici. Dow v. Bright, 89 S.W.3d 602 (Tex. 2002). Lead appellate counsel for amici Texas Chemical Council and other associations in case involving liability of premises owner for implementing safety procedures to be followed by independent contractors. Court adopted position advocated by amici. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2002). Lead appellate counsel for amicus in case involving class certification and exercise of court’s conflicts jurisdiction. After amicus brief submitted, court on rehearing withdrew its order dismissing case for want of jurisdiction and set case for argument. Court’s opinion adopted conflicts position urged in the amicus brief. American Airlines Employees Federal Credit Union v. Martin, 29 S.W.3d 86 (Tex. 2000). Lead appellate counsel for amicus CUNA Service Group, Inc., an affiliate of the nation’s leading credit union trade group, in a case involving limitations on the time for a credit union member to report errors in the member’s account. Court adopted position advocated by amicus. Pustejovsky v. Rapid American Corp., 35 S.W.3d 643 (Tex. 2000). Lead appellate counsel for amici The Okonite Company and Ericsson, Inc. in case involving suit for second injury arising from asbestos exposure. DAVID GAULTNEY Justice, Ninth District Court of Appeals 1001 Pearl St., Ste. 331 Beaumont, Texas 77701

EDUCATION

B.A. with Highest Honors, Southwest Texas State University J.D. with Honors, University of Texas School of Law Master of Laws, University of Houston College of Law

PROFESSIONAL ACTIVITIES

Attorney, Mehaffy & Weber, P.C., 1979-2000 Board Certified in Civil Appellate, Personal Injury Trial, and Civil Trial Life Fellow, Texas Bar Foundation Member, Texas Supreme Court Advisory Committee Member, Civil Appellate Law Advisory Commission, T.B.L.S.

JUSTICE EVA GUZMAN FOURTEENTH COURT OF APPEALS

Justice Eva Guzman, the newest member of the 14th Court of Appeals, was appointed to fill an unexpired term in November of 2001, by Governor . She was elected to the post the following year and was re-elected to serve a full six-year term in November 2004. Before her appointment to the appellate bench, Justice Guzman served as Judge of the 309thh District Court in Harris County, having been appointed to that bench by then-Governor George W. Bush.

As a trial court judge, Justice Guzman disposed of more than 5,000 cases. Since her elevation to the appellate bench, she has ruled on hundreds of civil and criminal appeals from the thirteen-county area her court serves. She has authored both panel and en banc appellate opinions on a variety of legal issues, many concerning questions of first impression. As a hard working judge on one of our state’s busiest courts, she has earned the esteem of the legal community and has consistently received high marks in judicial evaluation polls. In 2003, she was selected as the “Appellate Judge of the Year” by the Houston Police Officer’s Union and in 2004, she was selected as the Appellate Judge of the Year by P.O.L.I.C.E., Inc. (Police Officers Looking Into Courthouse Excellence).

Justice Guzman holds a B.B.A. from the University of Houston and a law degree from South Texas College of Law. Though born in , Illinois, Justice Guzman grew up in Houston and has been a resident for more than 35 years. She began her professional career in the mid-1980’s while working her way through law school as an Assistant Vice President in the Brokerage Division of a major downtown Houston bank. Immediately upon graduation from law school in 1989, she embarked on a successful ten-year career as a civil lawyer, with an emphasis on domestic relations law. In 1995, she founded her own firm. Her strong business background proved to be a valuable asset not only for managing her own law practice, but also for her service on boards for various educational and community organizations.

Justice Guzman has a long track record of volunteer service with organizations committed to children. She has served on the boards of Texas Court Appointed Special Advocates, The Escape Center, Wesley Community Center, and The Chinquapin School, and the Advisory Council of The Salvation Army Boys and Girls Clubs of Metropolitan Houston. An active member of the legal community, Justice Guzman holds memberships in a number of professional organizations and has served on countless national, state, and local bar committees over the course of her career. She is a frequent presenter and panelist at educational seminars and conferences. For the past several years, Justice Guzman has served on the faculty of the American Bar Association’s prestigious Family Law Trial Advocacy Institute. In addition to making regular bar-related educational speeches, Justice Guzman also speaks to non-lawyer groups on a wide assortment of topics relating to the law and our legal system.

She and her husband, Houston Police Sergeant Tony Guzman, have been married for 17 years and have a 12-year old daughter, Melanie Alexis. Justice Amos Mazzant Fifth District Court of Appeals at Dallas 600 Commerce Street, Suite 200 Dallas, TX 75202-4658

Phone: (214) 712-3409 [email protected]

Amos Mazzant currently serves as a Justice on the Fifth District Court of Appeals at Dallas. He was first appointed by the Governor and then won election in November 2004 to the unexpired term. He was reelected in 2006. Prior to his appointment, Justice Mazzant served as a briefing attorney for twelve years for Judges Paul Brown, Robert Faulkner and Don D. Bush. Justice Mazzant also worked in private practice at Wolfe Tidwell & McCoy, P.C. in Sherman, Texas. He graduated from the University of Pittsburgh with a B.A. in 1987 and from Baylor Law School in 1990. After running a statewide campaign, Justice Mazzant was elected and served as the President of the Texas Young Lawyers Association. He also served as a Director for the State Bar of Texas.

Justice Mazzant created Junior Judges: Helping Kids Make Smart Choices, an elementary school project adopted by the Dallas I.S.D. and used in over 1,300 elementary schools in Texas.

Justice Linda Reyna Yañez Place 3

Linda Reyna Yañez, appointed by Gov. Ann Richards in 1993, is the first Hispanic Woman to serve on an appeals court in the history of the state of Texas and is the first woman to serve on the 13th Court of Appeals.

Previously she taught at the Harvard Law School. She has served on and chaired numerous committees and boards, for the State Bar Associations in Texas, Illinois and Massachusetts and nationally the American Bar Association. She is licensed in Texas and Illinois and practiced extensively in both the state and federal courts. She served as consulting attorney to the Mexican Consul Generals in Brownsville, Texas and Boston, Massachusetts and on the Legal Advisory Committee of the United Nations High Commissioner for Refugees. She has worked extensively on refugee issues with United Nations NGO's and other organizations traveling to Switzerland, the former Soviet Union and Latin America. She served as Regional Counsel to the Mexican American Legal Defense Fund. She has been a guest lecturer at the Law School at the University of Valencia in Valencia, Spain.

Judge Yañez received her LLM from the University of Virginia Law School, Juris Doctorate from Texas Southern University Law School and her Bachelor of Arts from the University of Texas Pan American.

Judge Yañez has the distinction of being named "Outstanding Lawyer" and "Lawyer of the Year" by the Mexican American Bar Association of Texas and "Outstanding Alumnus" by the Houston Latino Lawyers and Law Students Association and is recipient of the "Lifetime Achievement Award" of the Hispanic Bar Association. In 2001, she received the "Reynaldo Garza Lifetime Achievement Award" by the Hispanic Issues Section of the State Bar of Texas and in 2006 the Section bestowed upon her the Pioneer Award.

Judge Yañez was elected to the American Law Institute in 2003. She has served on the Committee on International Judgements and Jurisdiction and on the Committee on Revisions to the Model Penal Code, Sentencing Project. She also has the distinction of being appointed to the faculty of the National Judicial College in 2006