PAID PE - San Antonio Bar Association

March-April 2010
Charles L. Smith
What Small Businesses Need
to Know about Insurance Law
Judge Mary D. Román
Supreme Court Justice Tom C. Clark
T E X A S
SAN ANTONIO
PERMIT 324
PAID
US POSTAGE
PRST STD
March-April 10
6
Departments
Features
6
10
Charles L. Smith
By Thomas H. Crofts, Jr.
14
16
Judge Mary D. Román
By Amanda Reimherr Buckert
19
Three Reasons to Write for
the ABA
By Wendy Gerwick Couture
10
What Small Businesses Need
to Know about Insurance Law
By Thomas H. Veitch
Supreme Court Justice
Tom C. Clark: A Life of Service
By Vincent R. Johnson
5
9
20
President’s Page
Have Things Changed?
By Carl Robin Teague
eFiling in Texas Courts
By Justice Rebecca Simmons
Federal Court Update
By Hon. Nancy Stein Nowak
and Nissa M. Dunn
14
16
On the Cover:
Charles L. “Charlie” Smith, former
president of both the State Bar of Texas
and the San Antonio Bar Association.
Pictured with his infamous blue chair.
Photo courtesy of Hugh Leighton
McWilliams Photography.
San Antonio Lawyer is an official publication of the San Antonio Bar Association. Send address changes to the Bar Association address above. Views expressed in San Antonio Lawyer
are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product or
service. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to kimp@sabar.org. Copyright
©2010 San Antonio Bar Association. All rights reserved
San Antonio Lawyer
3
March-April 2010
Lawyer 47th annual
criminal law institute
San Antonio
The San Antonio Bar Association
100 Dolorosa, San Antonio, Texas 78205
210.227.8822
Fax: 210.271.9614
Officers/Directors
President
Carl Robin Teague
President-Elect
Justice Phylis J. Speedlin
Vice President
Gary W. Hutton
Secretary
Andrew L. Kerr
Treasurer
Justice Rebecca Simmons
Immediate Past President
Victor H. Negrón, Jr.
Directors
Priscilla D. Camacho
Kristal Cordova Thomson
C. Lee Cusenbary
Annalyn G. Smith
Beth Squires
David Stephenson
George A. Taylor
James M. “Marty” Truss
Mexican American
Bar Association
Dayla Sarai Pepi
San Antonio Bar
Foundation
Jennifer Gibbins Durbin
San Antonio Young
Lawyers Association
Murray H. Van Eman
State Bar
of Texas Directors
Lamont A. Jefferson
Allan K. DuBois
Bexar County Women’s
Bar Association
Christine E. Reinhard
March 26-27, 2010
DoubleTree Hotel
San Antonio, Texas
Executive Director
Jimmy Allison
San Antonio Black
Lawyers Association
Sonja D. Sims
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Stephen H. Gordon
Brian C. Hamilton
Per Hardy
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San Antonio Lawyer
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March-April 2010
By Carl Robin Teague
H
erb is at the copier. He has
been copying for awhile. I
am standing next to him. He
makes another 25 copies of
a page from the brief and
hands them to me. I take them to the
long office hallway. There, waiting
for me, are Colleen and some others.
They take the copies and start walking
the hallway, dropping a page on top
of each of the 25 piles of paper there.
(This procedure is repeated over and
over.) Our copier is not equipped with
a collator/sorter or automatic feeder,
so we have to copy pages one at a time.
Collators and automatic feeders haven’t
been invented yet. This is 1973.
I return to Herb and the copier.
We’re assembling a brief in Southwest
Airlines v. Braniff. Herb Kelleher is
General Counsel for Southwest.
Colleen Barrett
his secretary
(who
11/26/07
7:00 PM is Page
1
later became president of Southwest).
Herb asks, “How’d you like to
buy some Southwest stock?” I reply,
“I’d like to but I don’t have any
money.” (My baby lawyer salary is
$13,200!) Unfazed, Herb says, “I’ll
loan you $5,000 to buy the stock. It’s
selling for $2 a share.” He doesn’t
change my mind: “I don’t think this is
the time for me to go into debt. Thank
you, though.” (I owe a student loan,
and have a wife and young child.) He
returns to his copying. I don’t realize I
just left millions on the table.
Lunch for partners was often at the
St. Anthony Club. Jesse, Stanley, Herb
Law Office of
Appeals Briefed/Argued
Error Preservation
Dispositive Motions
Original Proceedings
Jury Charges
Research
and Seagal were fixtures there during
lunchtime. Stanley insisted on a table
near a phone jack so someone could
bring him a phone if he received a call
from a client. I miss the St. Anthony.
The office of Oppenheimer,
Rosenberg, Kelleher & Wheatley
operated about 24/7/365. At night,
Herb and Colleen often would take
young lawyers still at the office to the
St. Anthony, arriving as late as 9. A
three piece jazz band would be playing.
After dinner, they would all return to
the office to continue working.
We did not have computers or high
speed printers. Most of the secretaries
had IBM Selectric II typewriters. If they
were fortunate, the typewriter had
self correcting tape; otherwise, they
practically drowned in liquid paper.
Eventually, we added MTSTs and IBM
Mag Card machines. The MTSTs required
a tower with shelves for storing data
tape cassettes about the size of an 8-track
tape. Mag Cards used a flat magnetic
card instead of a tape to store data.
To prepare documents, Reese
Harrison used a device with two
rollers, around which a magnetic tape
belt rotated. His dictation was stored
on the belt. Jesse preferred dictating
directly to his secretary, who would
transcribe from handwritten short
hand. I hand wrote all documents.
That is the way Herb did it and his
way was good enough for me. Years
later, after wearing out my writing
hand, I forced myself to use dictation
Jeff Small
Civil Appeals
Litigation Support
Appellate Mediation
210.496.0611
Flexible Arrangements
(Hourly, Contingency, Flat Fee)
Not certified by the Texas Board of Legal Specialization
jdslaw@satx.rr.com
f: 210.579.1399
San Antonio Lawyer
5
March-April 2010
equipment. I still have not used voice
recognition software that automatically
transcribes from the dictation.
If copies were needed, we used
carbon paper. The invention of
multiple-page carbon sets, which did
not require assembly, was a big deal.
Some lawyers still used onion skin.
The probate courts required “blue
backs” for each document filed.
My last day at ORK&W was April
Fool’s Day 1985. I leased space from Bob
Price and Cheryl Wilson, on S. Presa
Street. Soon after I arrived, Bob and I
went shopping for word-processing
equipment. We each bought AT&T
6300 computers and thought we were
avant garde. Years later, when I bought
an IBM 286, I asked the salesman to
compare the 6300 to the 286. His reply?
The 6300 was so slow it would not even
appear on a comparison chart.
On trips, I used an AT&T “calling
card.” It made me feel like a big shot,
compared to others who were calling
collect and carrying change for the
pay telephone. I got my first cell
phone about four years ago, only after
friends and colleagues complained
about difficulty finding me. Now I
can’t do without it.
After much resistance, I have
finally learned how to send and receive
emails. Whoever taught me created a
monster. I am now on my third lap top,
first server, and a netbook for travel.
And I’m still trying to catch up. I don’t
even have a Blackberry. I won’t get
one. Do I seem old to you? Careful.
Carl Robin Teague is engaged in the solo practice
of law, at his office in San
Antonio, from which he
focuses on products liability, personal injury
and business litigation
in Central, South, West,
and East Texas. He
graduated from UT Austin in 1970, and from St.
Mary’s University School of Law in 1973. He is
in his 36th year of practicing law, and is the president of the San Antonio Bar Association, and its
representative to the ABA House of Delegates.
President’s Page
ff Ad
Have Things Changed?
Charles L.
Smith
By Thomas H. Crofts, Jr.
After Thomas Jefferson High School, Charlie Smith applied his
aforesaid baseball prowess as a Texas A & M corpsman (and teammate
of a future Dodger great, Wally Moon) in the early fifties, graduating
in 1953. This was problematic for him in one sense. Over the next halfcentury plus (and counting), he has not quite been able to kick the habit
of wagering that Aggie teams would vanquish his sporting colleagues’
alma maters. Fortunately, Charlie’s fortune has not been tied too tightly
to the illusory prospects of an Aggie odds-maker.
Charlie’s 1953 return to San Antonio for law school commenced
not only a remarkable legal career that shows no sign of slowing down,
but also the matrimonial union with his likewise-accomplished and
much lovelier helpmate Ann Smith (nee Ann McRoberts, who rumor
says he had his eye on since crashing a high school party at her house).
Taking well to the legal curriculum, Charlie graduated from St. Mary’s
University School of Law magna cum laude in 1955. But with his license
in hand, Charlie had to put his law practice on hold for two years,
while he was on assignment in Korea with the United States Army.
How many former presidents of both the State Bar of Texas and the San Antonio Bar
Association can you name who could expertly demonstrate from experience how a pitcher
grips a screwball differently from a slider or a curveball? You may not be able to name one,
but if you have practiced law in San Antonio during the past fifty-two years, chances are
you know one — Charles L. Smith. Friends and acquaintances call him “Charlie.” To some of
the youngsters at Groce, Locke & Hebdon in the late 70s and 80s, he was also known as “the
Cheese” (as in “The Big Cheese”) — with good reason. But that’s getting ahead of the story.
When he mustered out as a Captain in 1957, Charlie landed a job in
San Antonio as an apprentice to one of the most brilliant lawyers in town
— Carlos C. Cadena (later to become Chief Justice of the Fourth Court
of Appeals). From 1954 to 1961, Judge Cadena was San Antonio’s City
Attorney, and, by that time, he had already demonstrated the stature that
would ultimately make him an icon in the San Antonio legal community.1
Charlie served as an Assistant City Attorney for two-and-one-half years.
With trial experience under his belt, Charlie joined the firm of Groce
and Hebdon in 1960, which later became Groce, Hebdon, Fahey and Smith.
Only four years later, he was named the Outstanding Young Man of the Year
by the San Antonio Junior Chamber of Commerce. Besides the invaluable
mentoring of Josh H. Groce (a noted stalwart of the Texas trial bar), Charlie
gained the close friendship of Jack Hebdon, with whom he shared the rewards
and tribulations of a long-term law partnership and the management reins of
what grew (after the 1973 merger with Kelso, Locke, and Lepick) into one of
the largest San Antonio law firms — Groce, Locke & Hebdon.2
In the salad days of the 1970s and 80s, Charlie’s insurance defense
work made him a fixture at docket call, where between announcements he
masterfully worked the crowd. Affable by nature, he befriended opposing
counsel, jurors, bailiffs and court clerks — not to mention judges. Charlie
could get away with teasing Judges Charles Barrow and Robert Murray
about poor showings on the links and with feigning innocence when
Judge Cadena accused him (tongue-in-cheek, I’m sure) of leading trial
judges into error. You couldn’t accompany Charlie to lunch at Luby’s
without enduring numerous stops along the way for him to visit with
someone he knew. It says something about Charlie that he can be found
regularly lunching at Schilo’s with good friend Jack Pasqual, who back in
the day was a major nemesis on the opposite side of the courtroom.
Behind Charlie’s charm lies the mind of a skilled strategist. It is this
characteristic that won with juries, that garnered the respect of judges,
San Antonio Lawyer
6
March-April 2010
and that endeared him to clients. He was
probably the first candidate for State Bar
President who utilized diagrammed wallmaps of Texas geography and color-coded
pins to leave no vote unasked-for in his
successful 1984 campaign for PresidentElect. During the next year, President
Smith led the Bar through one of the
most profound changes in its history
— the adoption of mandatory Minimum
Continuing Legal Education. Charlie’s
belief in the merit of this then-controversial
idea did produce some dissident sarcasm
(like “thanks a lot, Charlie”), but twentyfive years later, there can be no doubt that
his work for the passage of MCLE was
right on target. Thanks a lot, Charlie.3
In-house in the 1970s and early 80s,
gentleman Jack Hebdon was the man in
charge, but Charlie Smith was the handson boss. He carried out this authority with
a low-key but determined exactitude.
It cannot be said that Charlie’s partners
agreed with each of his management
decisions. But who could quarrel with
innovations like two-gender/multi-ethnic
hiring and enlisting professional legal
assistants? In assigning work, Charlie
strived to promote efficient organization of
litigation files among specialized practice
groups. For example, it was his idea that
inaugurated the first law firm appellate
practice section in San Antonio.4
Charlie’s supervision of the associate
ranks at Groce, Locke & Hebdon is the
stuff of legend. The storied details of the
relationship are beyond the scope of this
report, but one memory stands out as
illustrative of his position. In the mid 70s,
we down-trodden associates were invited
periodically to attend the opening segment
of the partners’ weekly meetings. Seizing
the opportunity, we customarily gathered
on the meeting-eve in a small dining
room above the Esquire Bar (“the
Upper Room”) to formulate a bill of
grievances for presentation the next
morning when Charlie asked, “Does
any associate have something to
say?” Thanks to a waiter’s repeated
trips up from the bar, eloquent
responses were inevitably articulated
the night before. But in the sober
light of Charlie’s penetrating gaze,
they usually were voiced in a few
awkward stammers and meek “no
sirs.” His ritual conclusion was to
ask if we had enough work (I don’t
recall his ever asking if we had too
much) before dismissing us from
the conference room.
As things boomed in the 1980s,
Charlie had his hands full with the
addition of many bright new litigation
hires. With them, somebody had to
be the “big cheese,” and he was it.
Charlie in his A&M baseball days at Kyle Field
Most who began under Charlie’s
wing would say that his guidance had
an unforgettable impact. Charlie was a about them and to greet them warmly.
Is it any wonder, then, that Charlie
good teacher (certain questions should
always be asked of a deponent and has been honored widely and repeatedly?
certain things should not be disclosed in The recognitions he has acquired would
negotiations). He praised fine work and take a separate edition to enumerate.
helped constructively with mistakes. Best Here are just a few:
of all, he became a friend who inspired
• Lola Wright Foundation Award
by caring deeply for his law firm and
from the Texas Bar Foundation for
the well-being of its lawyers and staff.
Outstanding Public Service in the
Charlie enthusiastically rallied the troops
Enhancement of Legal Ethics;
as coach of the firm’s winning softball
teams. He and Ann hosted delightful
• Lifetime Achievement Award by
retreats at the Smith family’s McQueeney
St. Mary’s University School of Law;
lake house.5 He still has an absolutely
uncanny knack for remembering the
• Distinguished Law Alumnus
names, faces, and situations of spouses,
by the Law Alumni Association of
children, and significant others, and he
St. Mary’s University;
always goes out of his way to inquire
Judge Cadena taught at St. Mary’s University School of Law for several years before becoming City Attorney. During that time, he argued and
won a landmark case in the United States Supreme Court, which established that people could not be excluded from jury service because of
national origin. More details can be found in successor Chief Justice Phil Hardberger’s memorial tribute to Judge Cadena published in Volume
62 of the Southwestern Reporter Third Series.
2
In the summer of 1973, this writer applied for a job with the newly formed firm and happily accepted Charlie’s offer to become Groce, Locke
& Hebdon’s first associate hire and twentieth attorney (after he deftly negotiated me down from my stated salary requirement). The firm’s size
steadily grew to more than one hundred lawyers in 1990.
3
Charles L. Smith’s major State Bar contributions also include two periods of service on the Board of Directors, including the chairmanship in
1980-81. He was on the Board when another landmark event occurred in 1984 -- the adoption of IOLTA. He has also chaired the Commission
on Judicial Conduct, as well as the Commission for Lawyer Discipline, and has served on the Board of Disciplinary Appeals.
4
As a result, this writer was converted in the mid-70’s from the latest stint of questionable service in each of the other sections to become the
original head of the appellate section (and, for a while, the foot as well).
5
Speaking of family, Charlie and Ann’s own offspring should be recognized. Both Jimmy and Larry were drafted into the law firm’s courier cadre at
various times in their teenage and young adult years. Jimmy (Dr. James Smith), who now practices medicine in New Orleans, and wife Monica are
the parents of Austin and George. Larry (Lawrence D. Smith) followed the footsteps to law school (SMU), and, having begun his employment-law
practice as an associate at Groce, Locke & Hebdon, is now a San Antonio partner in Ogletree Deakins Nash Smoak & Stewart. Larry and wife Kim are
the parents of Timothy, Zander, and David. Holly Smith, Charlie and Ann’s daughter, has a career in education for children with special needs.
1
San Antonio Lawyer
7
March-April 2010
• Joe Frazier Brown Award by the San Antonio Bar Association
for Outstanding Leadership and Service to Legal Profession and
Citizens of Texas;
• Carol Lomax Memorial Award by San Antonio Chapter
of American Board of Trial Advocates for Exemplary Integrity,
Civility and Professionalism;
• Outstanding 50-Year Lawyer Award by the Texas Bar
Foundation; and
•
Attorney of the Year by the Texas Aggie Bar Association.
Meanwhile, Charlie has litigated more than three hundred jury
trials and has handled thousands of all kind of cases.
Most things change, of course. Groce, Locke & Hebdon merged with
Jenkens & Gilchrist in 1996. Jenkens & Gilchrist ceased to exist in 2007. Now,
Charlie is Senior Counsel at
Jackson Walker, L.L.P. But
otherwise, he does not seem
Thomas H. Crofts, Jr. left
to have changed all that
Groce, Locke & Hebdon
in 1991, along with two
much. Look on page 8 of your
colleagues, to form Crofts,
September 2009 Subpoena
Callaway & Jefferson as
(Vol. LXXXV Number 2).
a civil appellate practice
There you will see a dapper
firm. The firm continues
Charles L. Smith holding
as Crofts & Callaway
his new Community Justice
under the leadership of
Program file and facing
Sharon E. Callaway, with Tom Crofts as “Of
the camera with a broad
Counsel.” Wallace B. Jefferson was appointed to
smile alongside his current
the Supreme Court of Texas in 2000 and is now
the State’s elected Chief Justice.
young protégés.
San Antonio Lawyer
8
Above: Charlie with wife Ann at the American Embassy
in Paris, during his term as Texas State Bar President.
Below: The entire family in Hawaii for Charlie and Ann’s
50th wedding anniversary.
March-April 2010
By Justice Rebecca Simmons
T
exas courts have long struggled
with processing the enormous
quantities of paper filed every
day by attorneys. Even in
light of steps taken to limit
the discovery filed with the trial court,
the court clerks are overwhelmed
with the state’s judicial paper trail.
The Texas Supreme Court Judicial
Committee on Information Technology
(JCIT)1 is working on a strategic plan
to make electronic filing for both trial
courts and appellate courts available
statewide within the next decade.
Electronic filing, or eFiling, has
now been available in some counties
for over five years. Currently, 300 courts
in thirty-nine counties have eFiling
available, and the implementation of
eFiling is growing. Courts accept the
eFiling of original petitions, as well as
pleadings and motions in civil, family,
and probate cases. eFiling offers a
means to stem the paper tide and save
attorneys and the state time and money.
This article is designed to answer
some questions and, hopefully,
alleviate any concerns about the
growing adoption of eFiling.
How are documents electronically filed?
In December 2001, JCIT approved
an electronic filing strategy that
employs TexasOnline, the official
Texas electronic government portal
(ww.texas.gov). TexasOnline serves as
the hub for the state’s Electronic Filing
Manager (EFM), interfacing with each
participating county and city and
with each participating Electronic
Filing Service Provider (EFSP) in the
open market. Requirements for an
attorney to eFile a document include
a computer, a word processor, and
Adobe Reader software (which can be
downloaded for no fee).
Are there charges associated with
eFiling?
TexasOnline charges a transaction
fee (approximately $4.50) to process
each filing, and the Texas Department
of Information Resources Board of
Directors approved a $2 convenience
fee collected by the counties for each
filing. This latter fee provides a means
for local governments to recover any
management system or supply costs
they may incur in using TexasOnline.
Additionally, the EFSPs may also
charge a filing fee ranging from $1 to
$10 per filing. Therefore, the total cost
for filing a document electronically
may range from $7 to $16.50 dollars
for each filing accepted electronically.
What are some of the benefits of
eFiling?
Attorneys may file twentyfour hours a day, 365 days per year.
Moreover, eFiling assists all attorneys,
regardless of their location, to
effectively file documents. An out-oftown attorney can file pleadings for
the same cost as the attorney located
in the county seat. Thus, eFiling assists
in putting all attorneys on a level
playing field in addressing time and
distance challenges. Even documents
that require a physical signature can
be filed electronically by submitting
the documents as scanned images.
In short, the ease of use and
the twenty-four hour court access
should increase productivity while
decreasing direct staff costs, paper,
toner, packaging, and mailing costs.
In addition to the obvious savings
of paper, electronic files take up less
storage space and save trees. Without
question, however, the most important
advantage is the amount of time saved
moving documents and pleadings
through the judicial system and its
ability to improve client service.
How are eFiling documents time
stamped for deadline purposes?
The time stamp applied to the
document is the time the document
was electronically submitted, even
if the courthouse is closed and the
clerk does not accept the filing until
a later date. The time-stamped copy
is returned to the party filing the
document just as it is in the traditional
paper filing process. The filer and
the attorney of record receive emails
San Antonio Lawyer
9
March-April 2010
confirming that the document has
been filed with the court.
What format is required for a
document to be eFiled?
EFiling is almost as simple as
sending e-mail, but is more secure
and reliable. Documents filed in word
processor format are converted to Adobe
portable document format (pdf). EFiling
also feature multiple levels of firewalls
and full-time intrusion detection
monitoring to provide a secure system
for the attorneys and the courts alike.
Moreover, the pdf does not show, or
allow anyone to view, previous changes
or edits to an MS Word document.
Information on eFiling and the
progress of the JCIT in implementing
eFiling is readily available at www.
courts.state.tx.us/jcit, www.texasonline.
com, www.texasbarcle.com, and www.
nicusa.com/html/nic/portals/tx.html.
Also, the State Bar of Texas has sponsored
several presentations on eFiling including
an informative one hour webcast
entitled “eFiling in Texas Courts: How
to Save Time and Money,” http://www.
texasbarcle.com/CLE/COSearchResults.
asp, and a free Ten Minute Mentor
entitled “TexasOnline eFiling Overview,”
http://www.texasbarcle.com/CLE/tyla/
MentorResults.asp?sSearch=K, presented
by Dallas attorney Peter S. Vogel.
1
The Texas Legislature established
the Supreme Court’s fifteen-member
Judicial Committee on Information
Technology (JCIT) to assist in developing
an electronic filing solution for the State
(for further information visit the website
at www.courts.state.tx.us\jcit).
Justice Rebecca Simmons
has served on the Fourth
Court of Appeals since
May 2005. Prior to
that, Justice Simmons
served for two years as
a Bexar County district
judge and practiced trial
and appellate law for 20
years. She has served as an adjunct professor at
St. Mary’s School of Law for over 10 years.
Fourth Court Update
eFiling in Texas Courts
What Small
Businesses
Need to
Know about
Insurance Law
By Thomas H. Veitch
Overview
The insurance world is a world unto itself with insurance companies,
agents, brokers, intermediaries, underwriters, re-insurers, independent
adjusting firms, surplus lines carriers, risk managers, and all that
goes with them. Simultaneously, the insurance world integrates with
businesses, large and small, to provide the structure and financial support
that moves the wheels of commerce. Without insurance protection,
businesses would not be able to function effectively. The insurance world
is vast and fraught with legal complexities. The purpose of this article
is to provide a general understanding of some insurance law issues that
impact businesses in their daily endeavors. Savvy businesses need to
be aware of the legal ramifications and concerns in acquiring proper
insurance and how to deal with insurance claims when they occur.
Dealing with Insurance Agents
In General
Insurance agents and brokers are the portal to knowledge and
guidance in the insurance world. The assistance that insurance
agents provide in obtaining proper coverage or dealing with claims
is invaluable. Most insurance agents and brokers are extremely
professional and knowledgeable; some, however, are not. Business
leaders need to be very careful in selecting a competent agent.
The purchase of business insurance is not a simple process nor one
to be considered lightly. Many large corporations engage risk managers
to deal with insurance issues and claims, whereas most smaller
business owners do not have this luxury and must prepare themselves
on insurance concerns. The failure to obtain proper coverage is a recipe
for disaster when a claim occurs. The following are examples:
1. Failure of agent to provide the coverage requested in the
application;
2. Gaps in coverage;
3. Inadequate limits; and
4. Endorsements, exclusions, and other coverage limitations.
What are the Agent’s Responsibilities?
1. Bad Faith Insurance Law. The so-called “bad faith insurance
doctrine” applies to the conduct of insurance carriers in insurance
claims litigation arising out of the insurance policy. Because the agent
is not a party to the insurance policy contract, this legal doctrine does
not apply to agents. However, the Texas Insurance Code and other
statutes do still govern an agent’s conduct.
2. Fiduciary Duty. A fiduciary duty imposes a high standard
of conduct requiring the fiduciaries (lawyers, for example) to place
the clients’ interests above their own. In the absence of some type of
“special relationship,” Texas courts do not impose this standard on
insurance “agents.” The agent is simply required to meet that standard
of care expected of a reasonable and prudent insurance agent under
the same or similar circumstances. This is a negligence standard. For
example, the agent’s failure to procure coverage that was requested or
promised, when properly proven, will constitute negligence.
3. Failure to Procure. An agent has the duty to obtain the
coverage requested or inform the policyholder of his inability to do
so, allowing the insured to look elsewhere for coverage.
Note: Texas case law does not mandate that an agent recommend
coverage that an insured has not requested.
4. Explanations of Policy Terms and Conditions. Under Texas law,
an agent does not have a legal duty to explain the coverages. But, to the
extent they endeavor to do so, the explanations and advice provided
must be correct. In the absence of written documentation by the agent or
policyholder, this often becomes a “swearing match” in insurance claims
disputes and litigation. The key point here is “always document.”
San Antonio Lawyer
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March-April 2010
5. Misrepresentation. Agents may be
held liable for negligent misrepresentations
or violations of the Texas Insurance
Code regarding misrepresentations.
However, the policyholder must be able
to document and prove such alleged
misrepresentations.
6. Placement of Coverage with
Insolvent Insurers. Agents have a general
duty to do business with insurance
carriers that are financially solvent at
the time the insurance is placed.
Note: Texas courts presume that
policyholders should read and
understand their insurance policies. The
responsibility of the agent for an insured’s
uncovered claim will vary, contingent on
the facts and circumstances of each case.
How to Analyze Insurance Policies
Insurance policies are contracts, albeit
generally much more complex than most
contracts. If you do not understand how
an insurance policy fits together, you will
never be able to understand the coverage.
Most insurance policies contain a number
of interrelated sections and provisions
which must be read in their entirety to attain
a proper understanding. You cannot read
isolated portions of the policy and reach
proper conclusions. Therefore, because
most insurance policies are lengthy and
tedious to read, knowing what to look for
and where to look will save lots of time. A
majority of property and casualty forms
are fairly standardized, which makes
the job a lot easier once you get the basic
format. However, nonstandard forms
must be thoroughly studied on a caseby-case basis.
Dissecting the Policy by Sections
All standard-form property and
casualty policies and most nonstandard
forms consist of a few definite policy
sections. Therefore, a good approach
to property and casualty insurance
policy analysis is to identify, locate,
and understand the purpose of each
of the applicable policy sections. The
following is a discussion of each of
these policy sections:
1. Policy Declarations Page. The
declarations are statements as to the
parties insured, property covered, policy
period, perils covered, and premium
cost of the contract. This information is
contained in the first page of the policy,
which insurance personnel commonly
refer to as the “declarations page” or
“daily.” Start with the declarations page
to determine who is insured, what is
insured, and how much insurance exists.
2. Coverage Provided. This is the
heart of the insurance contract and
contains the insurer’s fundamental
promises. In liability forms, this
information will be found in the insuring
agreements. In property policies, the
information is provided in the “causes
of loss” section of the policy. The extent
of coverage will depend on whether the
basic, broad, or special causes of loss
form is attached to the policy.
3. Exclusions from Coverage. In
property insurance policies, the policy
exclusions may take the form of specific
loss exclusions or may exclude certain
property from coverage. The typical
policy will have a section entitled
“exclusions,” and another section
entitled “property not covered.” In
effect, both of these sections constitute
exclusions from coverage. Loss to
excluded property is not covered, even
if the loss is caused by a covered peril.
Most liability policies, including
auto insurance policies, contain a rather
extensive list of standard exclusions for
each part of the policy.
4. Conditions. These further explain
the contract terms regarding specific
items such as suspension of coverage,
voidance of the policy, loss provisions,
and cancellations. The typical property
insurance policy contains a form entitled
“Commercial Property Conditions.” It
will also contain a form called “Common
Policy Conditions.”
5. Endorsements. The purpose of
endorsements is to amend or modify
the coverage provided in the basic
contract forms. These attachments
may limit, expand, or clarify coverage,
which provides flexibility to fit
varying situations. Therefore, it is very
important to pay particular attention
to policy endorsements in conducting
any policy review. Endorsements are
commonly referred to as “riders” in life
and health insurance policies.
6. Terms and Definitions. Most
property insurance policies contain
a very limited section on definitions.
Conversely, however, virtually all
liability policies contain extensive
sections on definitions. Although most
life insurance policies do not have such
a section, major medical and other
health insurance policies generally do.
San Antonio Lawyer
11
March-April 2010
7. Special Clauses. Some policies,
especially life and health insurance
policies, do contain some rather
standard clauses affecting coverage in
special circumstances. For example,
suicide clauses, incontestable clauses,
and other such provisions are included
in virtually all life insurance policies.
Rules of Construction for
Insurance Policies
The preceding section pertained to
determining what an insurance policy
says. Claims disputes and lawsuits,
however, focus on what the language in
the policy means (Is the loss covered?). To
make this determination, Texas courts have
crafted a myriad of rules of construction.
The following are examples:
1. The ordinary principles of
contract construction are used to
interpret policies of insurance.
2. Insurance policy language is
given its plain meaning unless an
ambiguity exists, which is a question of
law for the court.
3. Generally, if a policy is capable of
two or more reasonable interpretations,
it will be deemed ambiguous. In cases of
ambiguity, the courts are compelled to
construe the policy in favor of the insured.
4. Under Texas law, the insurer has
the burden to prove the applicability of
policy exclusions.
Factors to Consider When Buying
Insurance
Application
Most commercial insurance policies
require the submission of a signed
application. It is important to review the
application for accuracy before signing
it. Misrepresentations in an application
are often the basis for actions to rescind
or void a policy when claims occur.
Quotes and Binders
When quotes and binders are
received, be sure to review the written
documentation. Often, quotes fail to
include the same coverage requested in
the application. The principle requiring
insureds to read their policies applies
to these documents as well.
Surplus Lines Insurance
Surplus lines insurers are nonadmitted carriers. They are authorized,
but not licensed, to do business in Texas.
Generally, surplus lines carriers are used
when standard carriers are unwilling to
provide the requested coverage. Surplus
lines carriers are unregulated as to their
rates and forms. Their policies are not
standardized and can vary immensely
as to coverage provided, which presents
increased exposure to claims problems
or denials. Surplus lines policies should
always be carefully scrutinized by both
the agent and the policyholder.
Certificates of Insurance
Certificates of Insurance are a
frequent source of claims disputes.
Certificates are generally issued by
insurance agents, although occasionally
they may be prepared directly by a surplus
lines carrier. Certificates of Insurance are
frequently used and frequently abused.
People with whom you do business may
require a Certificate of Insurance as proof
of insurance or vice versa. Certificates
of Insurance occasionally misrepresent
coverage. The terms and conditions of
the insurance policy control coverage
and claims determinations in spite of the
Certificate of Insurance representations of
coverage. When in doubt, the best practice
is to obtain a copy of the applicable
policy. Agents are often sued for issuing
incorrect Certificates of Insurance.
Additional Insureds
Businesses are often requested to
name another company with whom they
do business as an additional insured
under their policy. There are many types
of additional insured endorsements. The
mere fact that a company has been added
as an additional insured is no assurance
that the proper form or coverage has
been obtained. When additional insured
coverage is required, it is imperative
to discuss thoroughly the coverage
with your agent and carefully examine
the language in conjunction with the
contractual requirements for adding this
coverage. Document all communications.
There are a large number of Texas
cases pertaining to additional insured
coverage, with varying results.
Duties After Loss
Duties of Insurer
1. Duty to Defend. Most liability
policies impute a duty to defend the insured
against claims by third parties. When there
are coverage issues, the insurer’s duty to
defend becomes problematic. There is
no duty to defend if there is no coverage
under the policy. The defense coverage is
a valuable right under the policy because
it provides the cost of defense as well as
the carrier’s experience and expertise in
supervising the defense of the lawsuit.
Under Texas law, the carrier’s duty to
defend is determined by applying the
allegations in the lawsuit with the terms
and conditions of the insurance policy
(often referred to as the “Eight Corners
Doctrine”). As a consequence, if the
allegations contained in the four corners of
the pleading are potentially covered within
the four corners of the policy, the carrier is
obligated to provide a defense even if the
alleged facts are known to be false.
2. Duty to Indemnify. The insurer
is obligated to pay covered claims up
to the policy limits. The duty to pay is
based on the underlying facts in the
case and in litigated matters may be
disputed until a judgment is obtained.
3. Reservation of Rights. The purpose
of asserting a Reservation of Rights is to
apprise the policyholder of the potential
of no coverage for the payment of claims.
When coverage issues arise, the insurer
may still have a duty to defend the
insured under the Eight Corners rule even
though it ultimately may not be required
to pay the claim. This poses a potential
conflict relative to the insurer’s duty to
defend and duty to indemnify, which is
resolved by a Reservation of Rights letter
from the insurer advising the insured
that coverage issues may exist.
4. Prompt Payment. Most standard
Texas insurance policies contain
language requiring prompt payment of
claims. This requirement generally tracks
language in the Texas Insurance Code to
the same effect. The application of these
requirements is contingent upon the facts
and circumstances of each case and is
not as simple or cut-and-dried as some
claimants’ lawyers would have it appear.
Duties of Insureds
1. Notice of Loss. Most insurance
policies require an insured to give prompt
or immediate notice of loss. Failure to do
so can impair coverage and is almost
always raised as a defense in insurance
litigation. Even if there is doubt about
coverage, all claims should be promptly
reported to avoid this problem. The Texas
Supreme Court has ruled on several cases
pertaining to delayed notice of loss.
2. Suit Papers. Insureds are also
expected to remit promptly to the insurance
San Antonio Lawyer
12
March-April 2010
carrier, either directly or through the
agent, all summonses, citations, notices,
and other litigation documents. Again,
failure to do so may impair coverage.
3. Cooperation of Insured. Most
insurance policies contain provisions
requiring the insured to cooperate with
the insurance company in establishing and
adjusting claims. Cooperation by the insured
is generally a strict condition precedent to
coverage. Thus, failure to comply can result
in voidance of coverage and may be raised
as a defense by the insurer.
4. Declaratory Judgment Actions.
These lawsuits are often filed by either
insurers or insureds asking the court to
make a determination of the insurer’s
obligations under the applicable insurance
policy. As with any litigation, such actions
can be very costly and time-consuming.
5. Other Policy Requirements. There
are, of course, many other conditions in
insurance policies requiring actions by
an insured in the event of loss. There are
also many policy provisions that simply
impact coverage or the evaluation of loss.
So, at the time of loss, it is again time to
read and study your insurance policy to
determine the nature of your claim and
issues involved so that you can comply
with the policy requirements.
Summary
Obviously, there are many pitfalls that
can arise in both acquiring and maintaining
insurance coverage or in processing
insurance claims. A knowledgeable and
professional insurance agent will play a
key role in these matters. Occasionally,
however, it will be advisable to involve
an insurance law attorney to assist with
claims or other insurance law issues.
Thomas H. Veitch is a
shareholder with the law
firm of Langley & Banack,
Inc. in San Antonio. He
has been associated with the
insurance business for over
45 years, serving in claims
adjusting, underwriting,
sales agent, and branch
manager positions prior to commencing the practice
of law in 1973. Mr. Veitch has earned the professional
insurance designations of CPCU, CIC and CLU in
addition to being selected to Who’s Who in American
Insurance and Who’s Who in American Law, Best
Lawyers in America (Insurance Coverage), and
Texas Super Lawyer (Insurance Coverage). He is
also board-certified in Estate Planning and Probate
Law by the Texas Board of Legal Specialization.
Judge
Mary D. Román
By Amanda Reimherr Buckert
“I am a very ordinary person
who has an extraordinary job —
a wonderful, wonderful job.”
W
hen Judge Mary D. Román
was a little girl, she didn’t
think it would be possible
to get to where she is today.
“When I was growing up,
we were very poor, and I thought I would
be a nurse, a secretary, or a teacher,” she
said with a slight grin. “It never even
occurred to me that I could be a lawyer.”
Now, she is the judge of the 175th District
Court and holds the special honor of being
the first elected Hispanic female judge.
Román was elected in 1992 and took
the bench January 1, 1993. On a recent
sunny afternoon, she looked out of her
office window at the Cadena-Reeves
Justice Center and fondly reminisced
about the road that led her to the bench.
“I am so grateful to be where I am today
and giving back to the community,” she
said. “I hope that female judges can be
an inspiration for young girls to dream
big about their future careers.”
Román was born in Victoria and
moved to Corpus Christi at the age of five.
Until that move, she spoke only Spanish,
but she quickly picked up English and was
fluent by the first grade. She was an only
child up until this age as well, but then
embraced her role as the oldest sibling to
her four brothers and one sister. While
the legal community of Bexar County
knows her as Judge Mary Roman, she is
Dolores to her family. “Yes, it’s true, my
entire family calls me Dolores. It is my
middle name, but it is Mary at work,”
she said with a slight laugh.
Román married at the age of eighteen
and lived in California for a few years.
By twenty-eight, she was working in a
hospital and had four children. She began
to attend a junior college at night. “It
took four years to do two years of junior
college, but I got it done,” she said.
The jurist came to San Antonio in
1979 and continued her education at the
University of Texas at San Antonio. She
is one of the only judges in Bexar County
to have received her undergraduate
degree from UTSA, graduating in
1980. “When I finished at UTSA, I was
a single mother, and I wanted to go to
law school. I knew it would be difficult,
but I knew that I could,” she said. “I
applied to St. Mary’s and decided that
if they did not accept me, then I would
not go because I did not want to have to
move my children.”
Román said that it wasn’t always
easy to get through school as a working
single mother, but she prioritized and
made it happen. “I was very focused. I
went to school, went to work, and took
care of my children. I just stayed focused
on my goal and doing what needed to be
done at home and for school,” she said.
San Antonio Lawyer
14
March-April 2010
After completing law school in 1984
at the age of forty-two, Román spent eight
years in the District Attorney’s office,
where she found her work with family
violence cases most fulfilling. “It was such
a great opportunity for me to do the work
that I wanted to do and fulfill my goal of
working with women’s issues,” she said.
In 1986, Román married Ricardo
“Rick” Román, an attorney focusing
on housing issues at Texas Rio Grande
Legal Aid. They met at the apartment
complex where they both lived when
he was a 3L and she was a 1L. “He was
such a support for me in law school and
has been ever since. He has truly always
supported me in every way. When I told
him that I wanted to run for the bench,
he didn’t even blink an eye. He just said,
‘Well, what can I do to help?’ I could
not have done it without him,” she said
with a great fondness in her voice.
The Románs enjoy snow skiing,
reading, and going out to movies
and restaurants. She has four grown
children from a former marriage,
five grandchildren, and four greatgrandchildren — all under the age of
six. “I am very busy at home with my
grandchildren and great-grandchildren.
They take up a lot of my free time, but I
absolutely love having them around and
at our home,” she said. “I particularly
love cooking the large holiday meals
and having the entire family with me.”
Román said she felt a real desire
to go into law based on her own
experiences in court and the impact it
had on her family. “I was trying to get
child support for myself, and I went
to court with my attorney, who was a
male. My ex-husband also had a male
attorney, and these three men sat in
a corner, discussed what to do, and
completely left me out. I knew it just
shouldn’t work that way, and it said
to me that there was a great need for
women in law and for the law to focus on
women,” she said with firm conviction.
“Legal issues that affect children are
near and dear to my heart.”
She said that another encouragement
to go to law school came from her time
morning while sipping her morning coffee,
she read in the newspaper that Nicholas
was no longer going to run; so with thirty
days to go, she got her signatures, paid the
fee, and was on the ballot. She said Judge
Rose Spector, and others, encouraged her
and told her not to be afraid.
Román says her true legal love is
criminal law because of the impact it
can have on our society. “To me, public
service was engrained in me in my
upbringing. It is important that you
do something meaningful with your
life that helps others in some way,” she
added. In 2002, Román began working
on implementing the felony drug court
program — something that she is very
proud of starting. “It can be a great vehicle
to give someone who wants to change an
opportunity to do so,” she explained.
Although Román finds her job on
the bench extremely rewarding, there are
also difficulties. “I find it hard that I can
be pulled in so many different directions.
There are some that want us to empty the
jails, but we have to be concerned with
the safety of our community,” she said.
“I think I am very compassionate, but I
am also here to do a job that involves the
fact that for people who commit crimes,
there is a consequence.”
Román said she looks forward to
remaining on the bench until she retires,
and has garnered the respect of her peers
and fellow judges. The late Judge Andy
Mireles described Román as one of the
hardest working judges that he knew
and said she never wasted any time. “We
came to the judiciary about the same
time, and I have known her for a long
The jurist said she has a deep
gratitude and immense admiration for
probation officers and believes in the good
that probation can do. “Yes, people in the
system have made mistakes, but some just
need a chance to go a different direction
— especially the younger ones who may
have just fallen in with a bad crowd as
teenagers. I am so grateful,” she continued,
“for all the work and dedication of the
probation department, and I have seen it
do tremendous things in people’s lives.”
Maria Cazares is the court clerk for
Román and said it is a joy to work in
her court. “She is a very fair judge and,
in my opinion, is very good asset to the
community. She is fair across the board,
but she also personally has a big heart
and is very giving,” Cazares said.
time,” he said in a November interview.
“She has been consistently fair and
hard-working throughout her career. I
find it amazing to be as dedicated and
consistent as she is in her career.”
Melissa Barlow Fischer, the
General Administrative Counsel for
the Criminal District Courts, said she
has worked for Román for ten years.
“She is the epitome of professional and
respectful. I respect her immensely,
and I think she works hard for the
citizens of Bexar County,” Barlow
Fischer added. “She will be the head of
the criminal district judges next year,
and I am looking forward to working
with her on that since she is such an
Right:
Judge Román (center)
with her children
Far right:
Judge Román
with husband Rick
working in a law office. “I realized that
I was just as bright as the attorney I
worked for, and if he could be a lawyer,
then so could I,” she said with a laugh.
“I never expected to work for a big
firm; I did not feel a great need to make
a lot of money. Rather, I felt a great
need to accomplish something for the
good of my community. I always knew
I wanted to devote my legal career to
helping with issues that affect women,
children, and the elderly.”
It took a lot of soul searching and
praying before deciding to run for
the bench, she said. “Judge Chavarria
announced he would retire, and I wanted
to run, but I did not feel comfortable
running against Anthony Nicholas in
the Democratic primary.” However, one
San Antonio Lawyer
15
March-April 2010
- continued on page 22 -
Supreme
Court Justice
Tom C. Clark:
A Life of Service
By Mimi Clark Gronlund
University of Texas Press, Austin, TX,
2009, 328 pages, 21 b&w photos, tables, $45.00
Reviewed by Vincent R. Johnson
The Mists of History
Notable figures sometimes inexplicably fade from public memory. However,
if they are lucky, they are rescued
from the mists of history. This was
certainly true of John Adams, who
until recently was one of the least
clearly remembered of the Founding
Fathers. Then David McCullough’s
biography (2001) and the related HBO
miniseries (2008) breathed such color
and vitality back into Adams that he
is once again at the front ranks of the
nation’s beginning.
The story may turn out to be similar
for Tom C. Clark (1899-1977). For nearly
a quarter century, Clark served at the
highest levels of the American legal
profession. Truman appointed him
twice, first to be attorney general (194549) and then to be associate justice of
the United States Supreme Court
(1949-67). In those capacities, Clark
played a key role in the biggest issues
of his time: resistance to Communism,
advancement of civil rights, school
desegregation, separation of church
and state, enforcement of voting rights,
protection of the criminally accused,
and maintenance of law and order.
The “Most Underrated Justice”
Perhaps because Clark served with
titans on the Supreme Court (Earl Warren,
William J. Brennan, Jr., Hugo Black, Felix
Frankfurter, William O. Douglas, and
Robert Jackson), he has slipped into the
shadows. Clark is the only member of the
Warren Court not previously the subject
of a full-length biography. But that is
certainly not for lack of good material.
The new biography of Clark by his
daughter, Mimi Clark Gronlund, is a
superb step toward reviving the memory
of Clark as a significant historical figure.
Gronlund’s book, written over three
decades, is a loving portrait, but it is
also balanced and scholarly. The author
has gathered together into an engaging
narrative a rich mix of social history, family
memories, political events, and legal
analysis. Gronlund makes a compelling
case for why some scholars and historians
have concluded that Clark was the “most
underrated justice” of his time.
Man of Character
Clark, like Truman, was a man
of character. He was not afraid to do
what he believed was right, even if
that disappointed or angered persons
San Antonio Lawyer
16
who thought they could count on him
to do differently. Truman, for one, was
greatly aggrieved by Clark’s vote in
the Steel Seizure Case (1952),1 which
limited the powers of the president. It
is refreshing to read Clark’s story at a
time when too many government and
corporate lawyers are willing to say
“yes” to presidents and clients when
they should say “no” and recommend
different courses of action.
Clark was one of the first boys
to earn the rank of Eagle Scout in the
United States. He seems to have been
true to that form for the rest of his life
— an honest, able high-achiever, who
showed a remarkable capacity for
growth. When one considers Clark’s
Boy Scout training and the ideal of
“duty to . . . country,” it is not at all
surprising that he later championed
the interests of the United States by
prosecuting the American companies
who committed fraud relating to WWII
military contracts. Those efforts proved
to be a pivotal step in Clark’s career
because they allowed him to work
closely with then-Senator Truman,
whose committee was investigating
the same kinds of wrongdoing.
March-April 2010
“It is hard to characterize
Clark’s judicial record as
liberal or conservative. He
stood by precedent when it
was sound, and overruled
it when it was not .... This
is what makes Clark
such an intriguing figure
today, at a time when
judicial independence is
frequently attacked by
partisan interests.”
Almost Did Not Graduate
The biography is peppered with
delightful facts. For example, Clark,
the only Texan to serve on the Supreme
Court during its first 220 years, was
called into the law dean’s office at
the University of Texas and was told
that he might not graduate because of
absenteeism. Fortunately, Clark escaped
that sanction due to his superior
performance on the exams. However,
he then found himself in the same fix
that confronts many law students today.
There was no plum job awaiting Clark,
so he returned to Dallas to work with
his father and older brother for several
years in an arrangement he described
as a “hand-to-mouth [law] practice that
was neither lucrative nor satisfying.”
Occasional payments in kind for
legal services meant that the Clark
household acquired miscellaneous pieces
of furniture, including a few rugs that
became family treasures. On one
occasion, a client paid a bill for legal
services by doing the Clark family
laundry for several months.
The contrasts between Clark and
his father, “Judge” William H. Clark,
are eye-opening and show “how far the
apple can fall from the tree.” Judge Clark,
once the youngest president of the Texas
Bar Association, delivered a courthouse
dedication address in 1925, in which he
praised segregation and condemned
miscegenation. Later, his son Tom
voted to abolish segregated elementary
schools in the landmark case of Brown
v. Board of Education (1954). And, in a
decision issued on his last day on the
bench, Clark joined an opinion holding
miscegenation laws unconstitutional in
Loving v. Virginia (1967).
for the United States in a civil rights
case. It was a courageous action long
remembered by civil rights pioneer
Thurgood Marshall, the man who
succeeded Clark on the Supreme Court.
A memo that Clark wrote in 1950
to his Supreme Court colleagues shows
that while he would not approve
“in any manner” the “separate but
equal” doctrine of Plessy v. Ferguson
(1896), he was struggling with how to
attack it in cases beyond the graduate
school context. When Brown v. Board
of Education was pending before the
Court, Clark indicated that he was
willing to overturn Plessy, but argued
that it “must be done carefully or it
will do more harm than good.” Clark
objected to the Brown Court’s use of
the phrase “all deliberate speed,” and
later said that the language delayed
integration for at least fifteen years.
A Liberal or Progressive on Race
From the beginning, Clark appeared
to have the makings of a liberal, or at
least a progressive, on race issues. He
gave a speech in high school about
“Modern Slavery,” though the topic
could hardly have pleased the Dallas
crowd; had a Jewish roommate at the
University of Texas, which resulted in
his being blackballed by fraternities
for a year; and refused to join the Klan,
even though that would definitely have
boosted his career as a young lawyer.
Years later, as attorney general,
Clark filed the first amicus curiae brief
Landmark Opinions
Gronlund’s book is meticulously
researched. The attention given to the
milestones in Clark’s career is balanced,
professional, and thoughtful. The
historical references have the right touch
— detailed enough to adequately set the
stage politically and culturally, but not
so detailed as to force the biographical
story off course. Gronlund walks the
reader though momentous events, like
his visit to the Nuremberg Trials and his
Justice Department campaign against
juvenile delinquency.
Clark was a loyal defender of the
San Antonio Lawyer
17
March-April 2010
Warren Court, and he wrote landmark
opinions for it. Clark’s most famous
opinion was Mapp v. Ohio (1961). In a
ruling that still generates controversy
today, Mapp held that the exclusionary
rule prohibits states from using illegally
obtained evidence in court. Abington
School District v. Schempp (1963)
ruled that constitutionally mandated
neutrality on religion prohibited Bible
reading at the start of every school day.
Clark’s Greatest Mistake
Clark’s missteps are neither
trivialized nor camouflaged by the
author. A chapter is devoted to his
involvement with the Japanese
internment during WWII as Coordinator
of the Alien Enemy Control Program,
which Gronlund calls her father’s
“greatest mistake.” Gronlund describes
her father’s role as that of “implementer
rather than decision-maker,” which
seems accurate. She notes that, as
attorney general, Clark later supported
the Japanese-Americans who lobbied
Congress for restitution of property
they had lost during the internment.
Ultimately, Clark recognized and
publicly acknowledged that the
internment was “entirely unnecessary.”
The book also explores Clark’s
role in compiling a list of subversive
organizations as part of Truman’s loyalty
program in the late 1940s. During the
era of anti-communist fear-mongering,
it was difficult to serve in government.
Clark was shocked to discover, while
still attorney general, that the FBI had
compiled a file on him.
Clark’s nomination to the Supreme
Court in 1949 was controversial. Some
claimed that Clark had definite communist
tendencies. Others charged that he was a
Truman crony. However, there were no
credible objections. Clark was confirmed
by a Senate vote of 73 to 8.
Family Vignettes
The best parts of the book are the
vignettes that could be recounted only
by a family member who probably had
enjoyed hearing the stories more than
once. Many law students will empathize
with the tale about how Clark, as a
student, was saved from embarrassment
when he was unprepared in class.
Though Clark had been called upon,
his only female classmate fortuitously
insisted to the professor that it was
her turn to recite. On another occasion,
Clark and an enterprising classmate set
up an official-looking table at the end
of the school registration line to gather
contact information from students. They
compiled the information into booklets,
which they sold to local businesses to
earn money to make ends meet.
When Clark was a lowly special
assistant in the Justice Department, he
effectively impeached a veteran claiming
disability benefits based on back injuries
by cross-examining the veteran about the
veteran’s recent defense of a strenuous
bowling-on-the-green championship,
which Clark had witnessed firsthand.
Changing Times
Some of the stories illustrate how
much government and its role have
changed. When he became attorney
general in 1945, Clark instructed his
assistant attorneys general to answer all
letters, if possible, within twenty-four
hours; and if that was not feasible, to
send an immediate acknowledgment
followed by a final reply within five days.
It is hard to picture such governmental
promptness today. Clark also promoted
government efficiency and ethical
conduct by prohibiting federal attorneys
from maintaining private law practices,
something now taken for granted.
During his time on the Supreme
Court, Clark became roving ambassador
to the legal profession and legal
education. He spoke to groups far and
wide at a time when that was not the
norm for justices on the high court.
Clark had come a long way from when,
as a youth, he became so nervous before
giving a speech that he fainted.
Ramsey’s Appointment
The foreword to the book by
Gronlund’s famous brother Ramsey Clark
offers a fascinating account of how Ramsey
came to be appointed attorney general by
Lyndon Johnson at the same time that
his father, Tom C. Clark, retired from the
Supreme Court. It is telling to read what
Ramsey knew and did not know about the
dual appointment and resignation. The
fact that Ramsey was not fully informed
seems to have been attributable to the
fact that the father on the Supreme Court
and son in the Justice Department had
managed to avoid conflicts of interest
by not discussing with one another
important aspects of their work.
Ramsey’s appointment forced
Clark into an early retirement, though
“retirement” is not an accurate description.
During that decade of super-activity
(1967-77), Clark sat as an appellate
judge on every federal circuit and even
tried cases as a federal trial judge. More
importantly, he devoted his abundant
energies to his long-standing interest in
improving the mechanisms that
undergird the administration of
justice. Clark served as the first
Director of the Federal Judicial
Center, the “think tank” and
training center for improving the
federal courts. He also headed the
implementation of the American
Bar Association (ABA) Standards
for Criminal Justice, chaired the
newly created Judicial Fellows
Program (now the Supreme Court
Fellows Program), and assisted
the National Judicial College,
which he co-founded.
Legacy in Legal Ethics
One of Clark’s post-Court
activities involved chairing anABA
committee on lawyer discipline,
The Clark Committee Report,
which decried the “scandalous”
deficiencies in enforcement of
attorney standards and called for
San Antonio Lawyer
18
March-April 2010
immediate action, catalyzed the next four
decades of reform in the field of attorney
professional responsibility. Even today,
virtually every law professor who teaches
in the field mentions the Clark Report as
a pivotal moment in the history of the
American legal profession.
Judicial Independence
It is hard to characterize Clark’s
judicial record as liberal or conservative.
He stood by precedent when it was
sound, and overruled it when it was
not. He affirmed the powers of the
government when that was appropriate,
and limited those powers when there
was a serious risk of abuse. The unifying
thread in Clark’s judicial decisions was
not ideology, but the honest exercise of
independent professional judgment.
This is what makes Clark such an
intriguing figure today, at a time when
judicial independence is frequently
attacked by partisan interests.
The story of Tom Clark is a great
story — interesting, edifying, and worth
studying. If Gronlund’s book were the
only volume to be written about Clark, it
would be a fine legacy, for it is accessible,
colorful, and engaging. However, it
seems likely that the book will open the
door for scholars and historians. There is
an extensive collection of Clark’s papers
at the University of Texas in Austin
and there are additional resources at
the Truman Library in Independence,
Missouri. Gronlund’s book provides a
detailed framework that covers all of the
high points of Clark’s story. That will
make it easier for others to confidently
examine Clark’s role in particular actions
and decisions, and the lessons that they
hold for lawyers today.
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 72 S. Ct. 863, 96 L. Ed.
1153 (1952).
1
Vincent R. Johnson is professor of law at St. Mary’s
University School of Law
in San Antonio, Texas.
The author of several books
on tort law and legal malpractice law, he served as a
Fulbright Scholar in China
and Romania. He crosses
paths with Mimi Gronlund at the Supreme Court
Fellows Program dinner each winter at the United
States Supreme Court, where he was once a Fellow.
Three Reasons to
Write for the ABA
By Wendy Gerwick Couture
A
s an editor of, and contributor to, various American Bar
Association publications, I
would like to encourage attorneys to consider writing
for the ABA. I certainly do not speak
for the ABA, and indeed, the ABA has
compiled myriad reasons for lawyers
to become involved in the organization. I would like, however, as a new
member of the San Antonio Bar Association, to share my list of three reasons
to write for the ABA. Then, once I’ve
convinced you, I’ll give you a few tips
on how to get started.
Establish Relationships With Lawyers Across the Country
As a new lawyer, the prospect of
“networking” filled me with dread. I
would have preferred to stay up all
night researching an esoteric point of
law (yes, I am now a law professor)
rather than glad-hand my way through
a cocktail party full of lawyers. The
ABA gave me the opportunity to network in a different way — by writing.
Not surprisingly, considering how
busy lawyers are, ABA publications are
always looking for willing workers. As
a young lawyer, I became an editor of
the newsletter published by the Expert
Witnesses Committee of the Section of
Litigation. In addition to editing the
newsletter, I contributed several articles for publication. After a few years,
based in part on my work on the newsletter, I was chosen to edit a forthcoming ABA book about expert witnesses.
In the process of this ABA work,
I have established relationships with
many lawyers. In fact, my authorship
of this column is, at least in part, attributable to an ABA connection. As newsletter editor, I published several articles
submitted by Robin Teague, a well-respected trial attorney here in San Antonio. When I began soliciting authors
for the expert witness book project, I
immediately contacted Robin, who graciously agreed to contribute a chapter.
Then, as coincidence would have it,
Robin was elected President of the San
Antonio Bar Association the same year
that I was appointed to the faculty of St.
Mary’s University School of Law, and
Robin asked me to write this article.
Notably, most of the lawyers that I
have met through the ABA live outside
of Texas. Perhaps more than other bar
activities, publications can easily be coordinated among lawyers in disparate
locations. For example, the ABA book
that I’m editing has authors from more
than 20 states. For purposes of referrals, being the only lawyer in San Antonio known by an out-of-state lawyer
can be extremely fruitful.
Interestingly enough, now that I
have established relationships with
other lawyers, both near and far, the
prospect of the cocktail party does
not seem so intimidating. In fact, it
sounds kind of fun.
Express Your Point of View
With about 400,000 members, the
ABA proclaims itself to be “the national voice of the profession.” The
ABA’s stated mission when speaking
is to “serve equally our members, our
profession and the public by defending liberty and delivering justice as
the national representative of the legal
profession.” The ABA makes its voice
heard through ethics opinions, policy
statements, amicus curaie briefs, model
rules, and registered lobbyists.
And indeed, Congress and the
courts are listening to that voice. A
few recent examples will demonstrate
the breadth of the ABA’s influence. On
September 15, 2009, the Judicial Conference of the United States approved
an ABA-originated recommendation
to amend Federal Rule of Civil Procedure 26 to extend work-product protection to draft expert reports and many
San Antonio Lawyer
19
March-April 2010
attorney-expert communications. In
2008, the Supreme Court held that a
criminal defendant’s initial appearance before a judicial officer triggers
attachment of the right to counsel—
noting that this holding is consistent
with “the ABA’s position for the past
40 years.” During the 110th Congress,
24 bills were introduced that made
explicit reference to the ABA in contexts as diverse as a national domestic
violence attorney network, the use of
presidential signing statements, and a
code of ethics for arbitrators.
Of course, your opinion about how
best to “defend liberty” and “deliver
justice” might not coincide with the
ABA’s position. The best way to influence the ABA’s policies is to be an
active member of the ABA, including
by writing articles read by other ABA
members. And the ABA welcomes
your voice. One of the association’s
stated objectives is to “promote full and
equal participation in the association,
our profession, and the justice system
by all persons.” That includes you.
Serve the Bar
The law is changing and expanding
rapidly. In 2009 alone, Congress enacted at least 125 public laws, and courts
issued tens of thousands of opinions.
Indeed, since January 1 of this year,
Westlaw has published at least 10,000
new federal court rulings and 1,083
new Texas state court rulings.
It can be extremely difficult to
stay up to date. But, if we all band
together to educate each other about
changes in the law, we can better the
profession. By writing about new developments in your area of practice,
you will hone your own understanding, as well as serve your fellow lawyers. Especially in this environment,
in which the public’s opinion of law-
- continued on page 22 -
Federal Court Update
By the Honorable Nancy
Stein Nowak and
Nissa M. Dunn
and included that document in a
public pleading, court held that
defendant violated the protective
order and awarded sanctions
in the amount measured by the
expenses in drafting the motion to
seal the improperly filed exhibit
and the motion to enforce the
protective order.
legal conclusions and assigned
culpability without providing
any basis for that conclusion, but
denied insofar as expert allowed
to testify on the condition of
the location of the accident, the
degree to which the conditions
contributed to the accident, and
whether the location presented a
dangerous condition.
documents included on privilege
deadline for amending pleadings
Where motion to reconsider was
premised on evidence that had
been previously available but not
previously presented to the court,
normally the court would have
denied the motion. Here, because
no prejudice resulted from
consideration of the evidence,
the court exercised discretion to
consider the motion to reconsider
and granted the same.
of inconsistent factual findings and
where cases were at very different
states of trial preparation.
Judge Nowak’s summaries of
significant decisions rendered by San
Antonio federal judges from 1998 to
the present are available for keyword
searching at Court Web found at Discovery
http://courtweb.pamd.uscourts. Stoffels v. SBC Comm., SA-05-CV-233 Amendments
Kinnison v. City of San Antonio, SA-08-CVgov/courtweb/. Full text images XR (Primomo, November 12, 2009)
Class action brought by retirees 421 XR (Rodriguez, November 23, 2009)
of most of these orders can also be
under ERISA. Court granted
Court denied motion for leave
accessed through Court Web.
motion to compel production of
to amend that was filed after the
log in part after in camera
where movant failed to show good
If you are aware of a Western District
inspection and consideration
cause by explaining the late timing,
of Texas order that you believe
of
attorney-client
privilege
and
show why the proposed amendment
would be of interest to the local bar
work product protection.
was important, or explain the lack
and should be summarized in this
of prejudice to defendant.
column, please contact Nissa Dunn Motion to Reconsider
by phone at 581-2073 or by email Vladimir v. Pacific Parts, SA-08-CV-819 Consolidation
Harris v. Bexar County, SA-08-CV-728
at nissadunn@dunnlawpc.com XR (Rodriguez, November 20, 2009)
Court acknowledged that it XR (Rodriguez, November 23, 2008)
with the style and cause number
had authority to reconsider its
Court denied motion to consolidate
of the case, and the entry date and
interlocutory order on defendant’s
civil rights cases involving same
docket number of the order.
motion for summary judgment.
parties where there was no danger
Expert Report
Kinnison v. City of San Antonio, SA-08-CV421 XR (Rodriguez, November 5, 2009)
Motion to disqualify expert denied
after court reviewed expert’s
qualifications and found that there
were sufficient facts to support his
conclusions. However, court held
that without supplementation, the
expert’s opinions regarding the
value of the subject property was
incomplete and ordered expert to
supplement report prior to trial.
Seal
American Registry of Radiologic Tech. v.
Bennett, SA-09-CV-767 XR (Rodriguez,
November 23, 2009)
Court denied request to file motion
under seal when movant provided
no justification for setting aside
public’s common law right of
access to court records.
Protective Orders
Bead Filters Int. v. Mills, SA-09-CV-105
XR (Rodriguez, November 12, 2009)
Where
defendants’
counsel
presented a document marked “for
attorney’s eyes only” to his client
Motion to Reconsider
J & J Sports Productions v. Tawil, SA-09-CV327 XR (Rodriguez, November 30, 2009)
Court denied motion to reconsider
premised on court’s inadvertent
failure to consider untimely
response to motion to dismiss
where facts failed to support
movant’s malicious prosecution or
business disparagement claims.
Expert Reports
Alfieri v. U.S., SA-08-CV-277 XR
(Rodriguez, November 20, 2009)
Plaintiff sued for injuries from
golf cart accident at Fort Sam
Houston. Defendant’s motion
to exclude expert report granted
insofar as expert report included
San Antonio Lawyer
20
March-April 2010
Arbitration
MPJ v. Aero Sky, SA-09-CV-693 XR
(Rodriguez, November 30, 2009)
Court accepted recommendation
of the Magistrate Judge, rejected
request to modify or vacate an
arbitration award pursuant to
the Federal Arbitration Act, and
confirmed award.
Time to appeal
Gallegos v. Texas Dept. of Transportation,
SA-08-CV-435
XR
(Rodriguez,
December 2, 2009)
Extension of time to file notice
of appeal pending resolution of
contested bill of costs denied where
court held that assessment of costs
did not involve reconsideration of
any decision on the merits.
Amendments
Public Health Equipment v. Clarke
Mosquito Control Products, SA-08-CV895 OG (Garcia, December 3, 2009,
adopting recommendation of Nowak,
November 6, 2009)
Late filed amendment disallowed
where movant presented an
inadequate explanation for the
lateness of the filing, the proposed
amendment did not remedy
deficiencies in the complaint, and
where allowing the amendment
would prejudice defendant, which had
already filed its motion to dismiss.
Diversity
City of San Antonio v. Time Warner
Cable, SA-09-CV-869 XR (Rodriguez,
December 11, 2009)
Motion to remand granted where
plaintiff filed petition for writ of
mandamus to compel production
of business records in state court
and defendant removed based on
diversity. Court held that the amount
in controversy did not exceed the
jurisdictional minimums where the
object of the litigation was the ability of
the City to exercise its right to conduct
an audit and not the value that it could
receive following an audit.
Constitutional Claims
Walding v. U.S., SA-08-CV-124 XR
(Rodriguez, December 15, 2009)
Court held that alleged violations
of remedial consent decree did not
confer actionable constitutional rights,
and that claims premised on alleged
violations of consent decree should
be presented in an action to enforce
that consent agreement rather than in
an action for money damages.
Attorneys’ Fees
Lear Siegler Serv’s v. Ensil Int. Corp, SA-05CV-679 XR (Rodriguez, December 18, 2009)
Court awarded attorneys’ fees
to party in contract dispute that
prevailed on some but not all of its
claims, and found that movant had
appropriately segregated the hours
on the prevailing claims from the
hours on those dismissed on motion.
here refused to find that the Rule
11 sanction imposed upon this
Chapter 7 debtor was premised
on conduct that was sufficiently
willful or malicious so as to render
the sanction a non-dischargeable
debt under 11 USC Sec. 523(a)(6).
Conflict of Laws
Northern Natural Gas Co. v. Sheerin, SA09-CV-709 XR (Rodriguez, December
14, 2009)
Defendants moved to dismiss
plaintiff’s claims premised on
fraudulent transfer statute arguing
that Rhode Island, not Texas, law
applied. Court held that movant
had not shown that there was a
discernable difference between
Texas and Rhode Island law so as to
trigger choice of law analysis. Court
also held that even though the debt
upon which plaintiff’s claim rested
remained the subject of pending
state court litigation, the debt could
support a fraudulent transfer claim.
Employment
Trevino-Garcia v. U.T.H.S.C., SA-09-CA572 XR (Rodriguez, December 21, 2009)
In employment discrimination
case, court denied motion to
dismiss Rehabilitation Act claim
where plaintiff alleged defendant
accepted federal funds and
enjoyed federal contractor status
and granted motion to dismiss
claim premised on violation of
Executive Order 11246 holding that
the Executive Order did not create
a private right of action.
Bankruptcy; Dischargeability
Mann Bracken v. Powers, SA -9-50513
LMC (Clark, December 18, 2009)
Although the court observed
that a Rule 11 sanction imposed
in another court with sufficient
supporting findings of fact could
serve to collaterally estop a party
from litigating the dischargeability
of that Rule 11 sanction, the court
San Antonio Lawyer
Nancy Stein Nowak is a
United States Magistrate
Judge for the Western District of Texas. Since 1986,
Judge Nowak has summarized significant decisions
of the local judiciary for
the Subpoena and the San
Antonio Lawyer.
Nissa Dunn, of the Law
Offices of Nissa M. Dunn,
P.C., specializes and is
board certified in the area
of civil appellate law.
21
March-April 2010
Judge Mary D. Román Profile
Published by
NationWide Publishing SA
1922 Great Ridge • San Antonio, TX 78248
Publisher - Ron L. Hogue
rlhogue1222@satx.rr.com
For information on advertising in
the San Antonio Lawyer magazine
Call 210.381.7664
The San Antonio Lawyer is published bimonthly by Nationwide
Publishing SA, on behalf of the
San Antonio Bar Association. Reproduction in any manner of any
material, in whole or in part, is
prohibited without the express
written consent of the Editor in
Chief. Material contained herein
does not necessarily reflect the
opinion of the Publisher or its
staff. San Antonio Lawyer, the San
Antonio Bar Assocation and the
Publisher reserve the right to
edit all materials and assume no
responsibility for accuracy, errors
or omissions. San Antonio Lawyer
and the Publisher do not knowingly accept false or misleading
advertisements, false or misleading editorials and do not assume
any responsibility should such
editorials or advertising appear.
Advertisers’ Index
Assn. of Atty. Mediators
Jeff Small
KelMar & Assoc.
Lindemann Productions
Tower Life Building
Weston Centre
23
5
21
4
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24
- continued from page 15 excellent public servant.”
During her downtime, Román
enjoys her quiet time in the morning. “I
am a very early riser. I tend to wake up
at about 5 a.m. even without an alarm,”
she said smiling. “I like to drink my
coffee and read the paper. It is an
important part of my day to just be calm
and reflect.” This early morning ritual
is consistent with the fact that Román is
a very private person who doesn’t care
much for a lot of attention, but she said
she understands it sometimes comes
with the job. “I am a very ordinary
person who has an extraordinary job —
a wonderful, wonderful job,” she said
before she excused herself to return to
the bench. “There is always more work
to do, and I am blessed to be doing it.”
Amanda Reimherr Buckert, a former journalist
with the San Antonio Express-News, is the Coordinator of SABA’s Community Justice Program.
Three Reasons to Write for the ABA
- continued from page 19 -
yers is very low, it is essential that we
work together to improve the quality
of representation across the board.
Get Started
Now that you want to write for the
ABA, I recommend the following five
steps to get started:
Step One: Join the ABA, if you’re not
already a member. In addition to the
opportunity to write for ABA publications, you will receive numerous other
benefits–such as discounted CLE, networking events, electronic and paper
publications, and service opportunities.
Step Two: Identify the sections, divisions, or forums that relate to your practice. There are currently 22 sections (including Business Law, Criminal Justice,
Family Law, Law Practice Management,
and Litigation), six divisions (including the General Practice, Solo and Small
Firm Division and the Young Lawyers
Division), and six forums (including the
Forum on the Construction Industry).
Step Three: Within each section, division, or forum, identify several committees that correspond with your
practice areas and interests. For example, within the Section of Litigation,
there are 40 committees, including the
San Antonio Lawyer
22
March-April 2010
aforementioned expert witnesses committee. (Yes, that was a blatant plug!)
Join the committees that interest you.
Step Four: Go to the website of each
section, division, forum, and committee that you have joined. Identify the
leaders, publication editors, and website editors, and volunteer your services. Briefly outline your prior writing and/or editing experience, if any.
If you have a topic idea, propose it. If
not, ask if they can suggest a topic.
Step Five: Accept whatever task is assigned to you, whether it’s a cite-check
or a blurb for the website. Complete
the task well and on time.
Before you know it, you’ll be part
of the whirlwind of ABA publications.
I look forward to meeting you at a future cocktail party, where — if we have
nothing else in common — we can at
least chat about writing for the ABA!
Wendy Gerwick Couture
is an Assistant Professor
of Law at St. Mary’s
University. She previously
practiced at Carrington,
Coleman, Sloman &
Blumenthal, LLP in
Dallas in the areas of
securities litigation and
white collar crime.
�������������������������������������
�������������������
Committed to the mediation process, each of our member lawyers is devoted to the ethical practice of
law. Recommended by judges and their fellow attorneys, AAM mediators have conducted over 25,000
mediations since 1989. A model of responsible dispute resolution, as a group we have over 850 years
experience in the practice of law. With this much talent and experience, why consider any other
mediation source?
�������
Dick Alcala
Emerson Banack, Jr.
Judith Reed Blakeway
Leslie Selig Byrd
Hope Camp
Ben R. Chappell
Robert C. Cowan
Michael Curry, Jr.
John H. Davis
Mary Belan Doggett
Gerald T. Drought
Allan K. DuBois
Stephen R. Fogle
John J. Franco, Jr.
Otto S. Good
Sue M. Hall
B. Thomas Hallstead
Reese L. Harrison
A. Chris Heinrichs
James N. Higdon
Ronald Hornberger
Richard H. Ihfe
David L. Jackson
Gary W. Javore
Tom Joseph
Douglas D. Ketterman
Jerry D. King
Joel H. Klein
Daniel Y. Kruger
Daniel O. Kustoff
William H. Lemons
Dan A. Naranjo
B.F. “Biff” Pennypacker, III
Gale R. Peterson
Hon. Robert T. Pfeuffer
Donald R. Philbin, Jr.
Vick Putman
Phillip M. Renfro
Charles R. Roberts
Mark Anthony Sanchez
Wade B. Shelton
Bernard L. Shub
Charles L. Smith
Thomas J. Smith
Frank R. Southers
John J. Specia
David S. Stephenson
Randolph P. Tower
William R. Towns
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Personal Injury
Construction
Securities
International
Employment & Labor
Insurance
Entertainment
Farm & Ranch
Appellate Law
Intellectual Property
Condemnation
Wills, Trusts & Estates
Real Estate
Professional Liability
Oil & Gas
Family Law
Title Insurance
Taxation
Bankruptcy
Consumer Law
Business/Commercial
Health Care
Civil Rights
Medical
�������������������� contact the San Antonio Local Chapter:
Ron Hornberger
70 NE Loop 410, Suite 1100
San Antonio, Texas 78216
210-734-7092
hornbergerr@plunkett-gibson.com
�����������
Downtown’s Best Address
“Weston Centre captures the best of San
Antonio in its design, its style, its location
and its amenities. Cox Smith looks
forward to continuing to be a lead tenant
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James B. Smith Jr.
Managing Director
Cox Smith Matthews Incorporated
“We were initially attracted to the Weston
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the building and its location in the heart of
the business community along the beautiful
San Antonio Riverwalk. We have remained
tenants because of the consistently high level
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members.”
Patrick Tobin, Managing Partner
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