July - August 2008
A Visit with Judge Peden
Presentations at Law Day 2008
Working with Conflictive Clients
San Antonio Lawyer Article Judged Best of the Year!
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SAN ANTONIO
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San Antonio Lawyer
2
July-August 2008
6
July-August 08
Features
Departments
8
6 A Visit with Judge Peden
By Per Hardy
12
8 Presentations at the Law Day 2008:
50 Years of Celebrating the Rule of Law
By Johnny Thomas
5 President’s Page:
In Praise of Editors
By Allan K. DuBois
10 Book review:
Women Attorneys Speak Out!
By Judge Barbara Hanson Nellermoe
12 Challenging Cases,
Challenging Personalities:
Working with Conflictive Clients
By Allie de Beer
23
23 San Antonio Lawyer Article
Judged Best of the Year!
19 Fourth Court Update:
Intermediate Appellate Courts’ Statistics
By Justice Catherine Stone
20 Federal Court Update
By Hon. Nancy Stein Nowak
and Nissa M. Dunn
22 Perils of Gwendolyn, Part XXXX:
A Problem with a Prosecutor’s
Previous Patron
By Hugh L. McWilliams
On the Cover:
Photo of 285th District Court Judge Michael P. Peden
by 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
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©2008 San Antonio Bar Association. All rights reserved
San Antonio Lawyer
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July-August 2008
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Victor H. Negrón, Jr.
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Gary W. Hutton
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Diana M. Geis
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Charles E. Hardy
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By Allan K. DuBois
T
he colorful cover of last
October’s San Antonio Lawyer featured the lovely Bar
Foundation Chair Renée
McElhaney and me. Hugh
McWilliams, employing his considerable artistic creativity, brought us instant
notoriety. Thankfully, for me, only a few
insensitive wags panned this pairing as
“Beauty and the Beast.” Regretfully, my
(digitally enhanced) countenance was
my first “appearance” ever in this elite
publication. For decades, gifted authors
and editors have stocked this cornucopia, filled with interesting features to
satisfy the appetites of lawyers craving a
respite from unimaginative legal prose. I
was an avid fan, but never had the nerve
to take a shot on authoring a substantive
piece. It was evident that quality mattered to these dedicated literary professionals and I still suffer from a legal writing inferiority complex, imposed when a
law school classmate introduced me as:
“arguably, one of the smarter guys in our
class who didn’t make law review.”
Regardless of past reservations, as
SABA President, I was assigned a reserved
slot on “the inside” of the magazine (potentially adjacent to longtime hero and
contributing writer, Charlie Butts). The
month before I took office, Judge Barbara
Nellermoe, venerable SA Lawyer Editor
in Chief, sent me a very gracious, detailed
welcoming missive. It contained helpful
pointers to survive among the legal literaria already in residence, but came with a
looming deadline. Cold, crushing fear paralyzed my resolve, and I grasped for release. Miraculously forgiving, the Chief’s
memo alluded to the past custom of alternating columns with the Foundation Chair,
(or even a guest); counseling that it was often advisable because of the overlapping
duty of producing a monthly President’s
Message in the Subpoena. Renée not only
effected a timely rescue, but also lovingly
created an incredibly moving, permanent
tribute to a dear friend, by sharing “Carolyn Thurmond’s Legacy” with us all in her
inaugural effort. In subsequent alternating
issues she has bared her passion for the
mission of our San Antonio Bar Foundation, detailing steady progress in achiev-
ing its goals under her wise leadership,
while expanding the proud legacy of her
predecessors’ charitable work.
My confidence was enhanced by
good advice, attention to detail, and improved technique instilled by those dedicated “unsung heroes” whose names
appear across the way as the esteemed
Board of Editors. I was also given wide
latitude and encouragement to “write
from the heart.” In my first column, my
personal observations of daily struggles
of underserved, low income families,
may have helped plant needed seeds of
change for expanding our Community
Justice Program. If it is nourished by the
faith of our Bar, and financially supported by our county, it will thrive.
My personal dream is that the Pro
Se Self Help Program will someday grow
from an initial recognition as a “noble effort” by the Texas Access to Justice Commission, to its full potential. In the words
of former State Bar President James Sales,
ours is a program that “reflects the highest credit on the legal profession,” and
serves to “demonstrate in a most meaningful way the importance of the principle of access to justice for all Texans.”
The opportunity afforded me through
the gentle tolerance accorded in granting
column space in this magazine served to
effectively shed light upon these important issues. If it helps enhance the Community Justice Program, then my year as
a columnist will have been of value to the
legal profession and community.
It was a genuine honor to be accorded “ex officio” member status in
the “Publications Committee,” observing Judge Nellermoe and her talented
colleagues discuss serious topics, brainstorm, joke, and collaborate. I was always made to feel welcome, while pretending my seat at the august Editorial
Board table was earned.
During my tenure, the In Memoriam
issue again recognized lives well lived of
an ever increasing group of respected colleagues and friends. It is necessarily a tradition of somber recall; but also serves as
a reminder of what each of us is capable
of accomplishing with our own unique
talents. On the brighter side, it was my
San Antonio Lawyer
5
July-August 2008
distinct privilege to honor the request of
the Federal Courts Committee, and recognize 20+ years of service of Judge Nancy
Nowak, with a Presidents Award, for her
Federal Court Update column. The tribute’s language was penned by her longtime co-author, Nissa Dunn, a top-drawer
appellate specialist, who also shines
brightly for her dedicated bar service.
Recently, our multitalented Managing Editor Kim Palmer, entered us
in The Stars of Bars competition. I was
delighted that The San Antonio Bar Association “won” Best Feature Story. Actually, it was awarded for Fred Jones’
historical courthouse tale “San Antonio
Prisoners.” Eager to share the glory, several volunteers stepped forward to serve
as proud recipients with him at The Bar
Leaders Recognition Luncheon at the
State Bar Convention, including me as
the “official” delegate.
It would be unthinkably selfish to
limit my gratitude to the San Antonio
Lawyer, relating only my own public opportunities, without expressing heartfelt
thanks to my “personal handler,” gifted
editor Leslie Hyman. She has extended me
the most flexible literary license possible.
It is my “Conclusion and Prayer” to the
Board of Editors that this gracious modern
day Portia endure no personal retribution
for diminished quality due to her failure
to rein in my undisciplined wanderings.
Although word limitations constrain, fairness dictates she be left room for a clever
disclaimer, via an “Editor’s Note.”
I am greatly indebted to all these volunteer professionals for providing cherished memories, and enhancing the experience of rubbing shoulders with real
writers. I look forward to more “good
reads,” from old and new contributors,
during my “retirement” from this office,
humbled by the journey.
Allan K. DuBois is the
2007-2008 President
of the San Antonio Bar
Association. He has
maintained a civil trial
practice in San Antonio for over 30 years.
President’s Page
In Praise of Editors
A Visit with
Judge Peden
By Per Hardy
J
udge Michael P. Peden has gone
the distance, both in his career
and as a marathon runner. Although he had not planned a judicial career, Judge Peden is currently the longest-serving Civil District
Court Judge in Bexar County and was recently honored for his twenty-five years
of service to Bexar County. The Judge
has further demonstrated his determination and endurance by completing four
half-marathons since 2006.
One of Judge Peden’s goals in life
was to be a good father because his father,
Jack, was “the greatest man I ever knew.”
His father taught him family values and a
strong work ethic. Jack Peden also instilled
in his son an avid love of sports. Judge
Peden recalled that his father bought a vacant lot next to the family home so that his
children and their neighborhood friends
could play touch football after church on
Sundays. This dedication to family made
a lasting impression on the Judge.
Jack Peden’s first career as an FBI
agent involved some historical investigations, including an investigation
of the John F. Kennedy assassination.
While working for the FBI, Jack Peden
attended St. Mary’s Law School. After
spending twenty-five years as an FBI
agent, the Judge’s father retired from
the agency at age fifty and immediately began his second career practicing
law as the County Attorney in Kendall County, Texas. Judge Peden always
wanted to be a lawyer, in part because
of his great admiration for his father
and the example he set. His wife, Kathy,
suggests that his attraction to a law career arises from his affinity for arguing.
Judge Peden met his wife at a squaredancing class for singles that his sister
insisted he attend. On their second date,
he told Kathy they would be married.
That statement proved to be prophetic
because thirteen months later they were
married. They have now been married
On March 11, 2008 Commissioner’s Court presented Judge Peden with a 25-year pin,
commemmorating his 25 years of service as a Bexar County Judge.
San Antonio Lawyer
6
July-August 2008
twenty-nine years and have two children: Samantha, who is an assistant District Attorney in Houston; and Scott, who
is a math teacher and coach in Humble.
Judge Peden is proud of his children,
and he has tried to emulate his father as
a good role model for his own children.
Judge Peden’s early life prepared him
for the judicial position he holds and the
marathon races he now participates in. He
attended Jefferson High School in San Antonio with a class size of 1,000, but then transferred to Boerne High School where only 76
students were in his graduating class. This
dramatic change had its benefits because
the smaller class size allowed Judge Peden
the opportunity to participate in basketball and football and to work on the school
newspaper. After graduating from Boerne
High School, he attended Texas Tech University. In 1975, he graduated from St.
Mary’s Law School and went to work for
the Bexar County District Attorney’s office,
where he spent six years in various positions, ranging from juvenile to felony prosecutor. During this time, he gained valuable
trial experience working with other prosecutors who also later became judges, including Judges Raymond Angelini, David
Berchelmann, Joe Brown, Jr., Paul Canales,
Susan Reed, and especially Judge Sharon
MacRae, who was Judge Peden’s first chair.
His first high-profile prosecution involved
Tony Ayala, the boxer, who was certified to
stand trial as an adult in that case.
In 1980, United States District Judge
Fred Biery convinced Judge Peden to
apply to the law firm of Biery, Biery,
Myers, & Armstrong, where his uncle
Charles Biery and his dad Sam Biery
were partners. Judge Peden was hired
and went into general criminal and civil
practice with attorneys who mentored
him. Judge Peden credits the attorneys
from the firm for developing his character and integrity as a lawyer and judge.
Judge Peden was first elected to the bench as Justice of
the Peace for Precinct 3 in 1983. Since this position was parttime, he continued working with the law firm. His experience as a Justice of the Peace exposed Judge Peden to the
satisfaction of resolving disputes. Now, after many years
on the bench, he continues to encourage litigants to resolve
their disputes prior to battling in court.
In 1985, Judge Peden was approached by Lamar Smith,
then a Bexar County Commissioner, to apply for one of the
new county courts being developed to address the increasing
number of DWI cases. Judge Peden accepted the challenge,
and in his first year as Judge of County Court No. 8, he presided over fifty-two jury trials for DWI. A full-time judicial position was attractive to him because it provided regular work
hours, allowing him to spend more time with his family.
In 1989, Judge Peden was appointed to the 285th Judicial
District Court, replacing Judge Peeples, who had taken a position on the Fourth Court of Appeals. There was no time for
Judge Peden to adjust to the new position. His appointment
was announced on Friday, and when he took the bench the
following Monday, the Judge was assigned a complex medical
malpractice case that lasted three weeks. In 1990, he was elected to the 285th Judicial District Court and has been re-elected to
this bench five times. Judge Peden has never lost an election.
Judge Peden maintains a balance between keeping control of his courtroom and striving to make all participants feel
comfortable. He is famous for using his sense of humor as a
tool to ease tension in the courtroom. Mary Ann Molina, Judge
Peden’s clerk since 1989, stated that at first she was not sure
when the Judge was joking, but now she and the rest of his staff
enjoy laughing at his humorous comments. Kathy Kernoodle,
Judge Peden’s court reporter for twenty-three years, describes
his humor as “self-deprecating” and “not directed at others’
expense.” She has been tempted to keep a log of the Judge’s
witty remarks. She provided one example—during an opening
to voir dire, the Judge informed the jury panel that members
could approach the bench if they needed to discuss embarrassing issues such as “preferring the Mavericks to the Spurs.”
Judge Peden’s staff unanimously agrees that he is very
supportive of them, both on and off the job. For instance, the
Judge has motivated his bailiff, Jeffrey Grossman, to pursue
an acting career and has allowed him to take time off to appear
in roles on various television shows including “Law and Order” and “The Sopranos.” Jeffrey states that “it is an honor to
work with a judge who is patient, fair, honest, and genuine.”
He adds that Judge Peden “creates a positive atmosphere in
the courtroom” that is beneficial to staff and litigants.
According to Judge Peden, a good judge should follow
three simple rules: (1) be on time; (2) treat attorneys in the manner you would like to be treated; and (3) make a decision. He
believes the courtroom is a forum which should be respected
by those privileged to participate in the legal process. Consequently, Judge Peden expects attorneys to be honest with the
Court and respectful to each other. He advises attorneys not to
lower themselves by name-calling and finger-pointing. He is a
firm believer in the notion that the facts speak for themselves,
so there is no reason for emotional outbursts from attorneys.
As such, he enjoys presiding over cases where lawyers present
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San Antonio Lawyer
7
July-August 2008
Presentations at Law Day 2008:
50 Years of Celebrating the Rule of Law
By Johnny Thomas
O
n May 8, 2008, the San Antonio Bar Association and the
San Antonio Bar Foundation
celebrated Law Day 2008. The
affair celebrating the 50-year
anniversary of Law Day was held at the
San Fernando Cathedral AT&T Community Center and was highlighted by the
presentation of several honorees for 2008.
The prestigious Joe Frazier Brown,
Sr. Award of Excellence was presented
to James (Jim) Branton of Branton &
Hall, P.C. This award honors outstanding attorneys who have taught and influenced many attorneys, demonstrated
service to others, idealism, intelligence,
and a high degree of integrity.
Mr. Branton was nominated by many
distinguished members of the San Antonio Bar Association who were thankful for
his many years of service, spanning some
45 years, with over 20 years in leadership
positions at some level. After serving in
the United States Air Force and obtaining the rank of Captain from 1963-1965,
Mr. Branton began the practice of law as a
personal injury plaintiff’s attorney. He has
authored over 100 articles for Continuing
Legal Education (CLE) Seminars in Texas,
Mexico, and across the United States. He
was also co-author of the ten-volume Trial Lawyer Series (1981-1992) by Knowles
Publishing, Inc., and co-editor of the Federal Practice Guide, Lawyers Coop (1996).
He was board certified in Personal Injury
Law and Civil Trial Law by the Texas
Board of Legal Specialization 1990-1993.
While managing a very successful
law practice, Mr. Branton provided service
to the San Antonio professional community in positions too numerous to mention
here. Some of these include his service as
President of the San Antonio Trial Lawyers
Association from 1973-1974 and as VicePresident and President of the San Antonio Bar Association from 1982-1983. Mr.
Branton was also a member of the William
J. Sessions Inn and the American Inns of
Court as Master of the Bench 1986-1992.
At the state level, Mr. Branton served
as President of the Texas Trial Lawyers
Association from 1975-1976, and the
State Bar Board of Directors from 19841987, then served as Board of Trustees
Chairman for the Texas Bar Foundation
from 1989-1990. He was subsequently
elected as President of the State Bar of
Texas, 1994-1995, where under his leadership the State Bar implemented and
defended in Court new advertising
regulations. Perhaps his greatest victory
was in leading the amicus curiae effort
by twenty-four state bar associations in
the major United States Supreme Court
case that approved the right of the State
Bar to regulate attorney advertising.
Mr. Branton served on the State
Bar Liaison Committee with the Texas
San Antonio Lawyer
8
July-August 2008
Medical Association, 1979-1980; the
Texas Supreme Court Committee to
draft the Texas Lawyer’s Creed: A Mandate for Professionalism; and as State
Bar Trustee and Treasurer, 1990-1993.
He also served with the American Bar
Association and the National Board of
Trial Advocacy, as a founding member.
Again the above is only a highlight
and summary of the service Mr. Branton has provided to the bar and San
Antonio community. His efforts have
been tireless and selfless, for which we
are all the better and thankful.
The San Antonio Young Lawyers Association also presented three
awards at the May 9, 2008, event: the
Liberty Bell Award, the Outstanding
Young Lawyers Award, and the Outstanding Mentor Award.
The Liberty Bell Award is in recognition of an outstanding non-lawyer who has
made selfless contributions to the community to strengthen the effectiveness of the
American system of justice by instilling
better understanding and appreciation of
law. This year, the honor was bestowed
upon Jimmy Allison, Executive Director
of the San Antonio Bar Association.
Mr. Allison began working for the San
Antonio Bar Association as its sole employee in 1960, after a brief stay with the
District Clerk’s Office and the National
Shirt Shop. At that time, the San Antonio
Bar Association offices had no copy machines, no meeting rooms, and no private
offices; but there was a library with a few
hundred books, several tables, and one
telephone line manned by Mr. Allison. Rumor has it this was a good place to study
or nap. The books were hand-me-downs
from the estates of deceased lawyers, incomplete sets of Texas Jurisprudence, and
out-of-date city directories. The library
also had three (3) manual typewriters.
The Board of Directors for the San
Antonio Bar Association charged Mr.
Allison with the duty to make the San
Antonio Bar Association a viable and
respected organization to serve the legal community. Mr. Allison succeeded
big time, and today the San Antonio Bar
Association has one of the highest ratio
of members to lawyers in the nation.
The process was slow, starting with
the seminars or educational/entertainment meetings on forensic themes at places like the St. Anthony Hotel, White Plaza
Hotel, and the Four Brothers Steakhouse.
There was subsequently an agreement
with Bexar County to purchase books for
the library to be managed by the San Antonio Bar Association. Mr. Allison and the
Board then began the purchase of the copy
machine, audio-visual equipment, television, typewriters, overhead projectors, and
view box. The renovations adding meeting
rooms and private offices for bar association personnel made for major changes and
improvements, all at the urging of, and as
part of the vision set by, Jimmy Allison for
the San Antonio legal community.
The Outstanding Young Lawyer
Award is in recognition of a young lawyer
who has exhibited professional proficiency,
service to the profession, and service to the
community. The honoree for this award
was Emma Cano of Haynes & Boone,
L.L.P., Business Litigation Practice Group.
Ms. Cano assists clients in business
and commercial litigation. She handles disputes involving partnerships,
breaches of contract, and construction.
She also works on a regular basis with
clients in general tort matters, to include
industrial fatalities, premises liability,
and employee personal injury claims.
Ms. Cano is a member of the San
Antonio Bar Association, the San Antonio Young Lawyers Association, and the
Bexar County Women’s Bar Association
and Foundation. She is also a fellow of
the San Antonio Bar Foundation, and
was named a Texas Super Lawyer Rising Star in 2007 and 2008.
Ms. Cano’s service to the community is also impressive. She participated
in a volunteer program with the City of
Houston Municipal Courts where she
tried over twenty-five cases. She has
also participated in the Bexar County
Community Justice Program’s “Just
Take One” Project. In the general community, she has served on the Board of
Directors for the YWCA since 2005 and
is presently Vice-President of the Board
of Directors for the San Antonio Women’s Chamber of Commerce.
The final award from the San Antonio Young Lawyer’s Association was
the Outstanding Mentor Award, presented to Marty Truss of Cox Smith
San Antonio Lawyer
9
July-August 2008
Matthews Incorporated. The award
recognizes an attorney who serves as
a role model to young lawyers in his
or her community, fosters the development of young lawyers, and significantly contributes to the profession
and or the community. The award was
created by the Texas Young Lawyers
Association in 2007.
Marty Truss is a past President of
the San Antonio Young Lawyers Association, and he worked hard to encourage growth in the membership. He
received the President’s Award from
the Texas Young Lawyers Association for his work in the young lawyer
community, and has served as a mentor for many over the past twelve (12)
years. He has been known for offering
a patient ear for many young lawyers
who have become overwhelmed by the
day-to-day demands of practicing law.
He has offered this advice to those willing to listen: “Do your best. Don’t take
things too personally, and remember to
be true to yourself.”
Johnny W. Thomas has
been in the private practice of law since 1985,
mainly in the area of
bankruptcy but also in
general practice. He has
served as a Part-Time
Juvenile Court Referee
and on the Trustee Panel with the Office of the United States Trustee
in the United States Bankruptcy Court for
the Western District of Texas.
Book Review:
Women Attorneys Speak Out!
By Judi Craig, Ph.D., MCC
Reviewed by Judge Barbara Hanson Nellermoe
The field of law provides a potentially gratifying avenue for
women to secure socioeconomic independence in a world
that still very much caters to men. It is true that the discrimination against women over the last several decades
has become less overt, but it remains virtually unchecked
in its more latent manifestations. I appreciate that Craig’s
book addresses this, but I was incredibly impressed when
it was illustrated that many female attorneys use negative
biases toward their sex to their advantage, specifically in
the instance of being underestimated. Although my ego
tells me that I would want to be known as a shark in the
courtroom, I can see clear advantages to the tactic that so
many women have adapted to effectively compete with
their male counterparts…. I find [the book] invaluable.
Andrea Fernandez, a senior hailing from Hondo, appreciates
the advice on how to balance work and family. Finding the book
highly motivating, Fernandez wrote, “Craig relays the message
that although being a woman in the legal profession is strenuous,
it is more than prestigious and being accomplished, it is gratifying.” Fernandez also remarked that the book provided a wealth
of practical advice for women to use outside the courtroom.
DiMarco agrees that the book provided important practical advice. She noted, “Craig’s advice is practical and heartening, particularly for women who are interested in pursuing
a career in law or are at the inception of their legal careers.
It is a valuable resource, fostering both a guide for expectation, as well as a sense of profound appreciation for the many
women who have come before me in the field of law.”
Men seeking to gain greater balance in their lives could
find a tip or two in the book as well.
J
udi Craig has been advising women attorneys and
other professionals since 1996 about how to increase
their incomes, decrease their stress levels, solve employee issues, gain control of their practices, and by
extension, reclaim their lives. After a dozen years
of listening to and coaching clients, Craig has identified
ways in which the practice of law impacts women lawyers
differently than their male peers. Fifty women from around
the country, including our own Sue Hall and Karen Marvel,
share their experiences and offer tips on how to deal with
the upside and downside of the profession.
Gender bias, I fear, is still prevalent in varying degrees
in this country. How do successful women handle it? Well,
I think it would behoove one to read the book.
Since I frequently am in contact with students who
plan to study law, I asked two women at Texas Lutheran
University what they thought of the book. Briea DiMarco,
a senior from San Antonio, wrote:
San Antonio Lawyer
Judi Craig, Women Attorneys Speak Out! How Practicing Law
is Different for Women Than For Men—(and Tips on How to
Handle The Biggest Frustrations), Thomson-West 2008, 123 pp.,
order online at www.west.thomson.com.
Barbara Hanson Nellermoe is Judge of
the 45th District Court. A member of the
editorial board of the San Antonio Lawyer
since its inception in 1993, she has served
as editor in chief since 1998.
10
July-August 2008
Judicial Profile
continued from page 7
their positions in a professional manner.
His judicial objective is “to do what is
right.” In one of Judge Peden’s most memorable cases, he sanctioned the Texas Attorney General’s Office. He views this ruling
as an example of his determination to do
what is right in every case. In this case, the
Attorney General’s Office refused to withdraw a writ of withholding from a parent’s
wages where the parent produced proof
of payment of child support. Judge Peden
sanctioned the Attorney General’s Office for
this refusal, and the Attorney General’s Office appealed. The Fourth Court of Appeals
affirmed Judge Peden’s ruling, finding that
the Attorney General’s Office had acted in
bad faith. Kay Martinez, the attorney for the
parent, applauded Judge Peden’s courage
to stand up to the Attorney General’s Office
and noted that Judge Peden’s strength as a
judge is his ability to “combine compassion
with common sense.”
Judge Peden’s clerk, Mary Ann, commented that the Judge’s family values
have carried over into his handling of
family law matters. He expects parents to
make their children a priority over whatever hostile feelings they have against the
other parent. Consequently, Judge Peden
does not hesitate to find a parent in contempt and order jail time when the parent
has refused to pay child support or allow
possession by the other parent.
Consistent with his commitment
to family and dedication to community
service, Judge Peden established the
“Adopt a Soldier” program in Bexar
County. That program, which began
in late 2006, “adopted” an Army unit
serving in Iraq. Judge Peden noted that
with all the criticism about lawyers, this
program illustrates the good work that
the Bar does. Without any self-interest
motive, members of the Bar enthusiastically and generously participated in this
program, sending care packages to the
unit at least once per month. The program ended in December 2007, when
the adopted unit returned from Iraq.
Judge Peden’s love of sports has continued throughout his life. After his own
participation in sports during high school,
Judge Peden coached baseball and basket-
San Antonio Lawyer
11
July-August 2008
ball when his children were growing up.
In 2006, he became a marathoner, running
his first half-marathon in Dallas. Last year,
he ran half-marathon races in Houston,
Nashville, and San Antonio. He described
the twelve-week preparation for these
races as very demanding, in terms of both
diet and training requirements.
Throughout the interviews for this article, Judge Peden often referred to himself
as “the luckiest man alive.” The evidence
suggests, however, that he has diligently
worked to achieve all of his successes. In
short, the discipline and passion Judge
Peden applies to training for races is the
same type of dedication he devotes to his
family life and sitting on the bench.
1
In re A.C.B., 103 S.W.3d 570 (Tex. App.--San Antonio 2003, no pet.).
Per Ann Hardy maintains a general practice of civil trial and
appellate law. Ms.
Hardy is board certified in Family Law.
Challenging Cases,
Challenging Personalities:
Working with Conflictive Clients
By Allie de Beer
D
ealing with difficult clients is part of doing business.
Still, most every attorney will, at one time or another, encounter a client so difficult that almost any
excuse will suffice to avoid meeting or even speaking with the client. This is especially true in family,
employment, and criminal cases. These sorts of cases are often
highly conflictive disputes stemming from clients with highly
conflictive personalities. Their conflictive personalities further
drive conflict and, in doing so, increase the odds of having their
disputes end up in litigation. Not understanding such personalities can have significant consequences to all those involved—
not just the clients’ attorneys, but also the clients’ families and
targets of blame, society, and the judicial system. Such personalities are emotionally, financially, and sometimes physically
draining. They deplete precious resources such as time and
money within the legal system and society and cause significant
emotional distress within their families.1 These difficult clients
can shake and challenge an attorney’s beliefs and perceptions,
causing the attorney to experience anger and self-doubt. A case
which once seemed manageable, radically becomes potentially
irresolvable, and the attorney-client relationship may consequently become increasingly problematic. Moreover, because
these difficult clients engender a sense of frustration and/or
dislike by those representing them, there is an increased probability of a less-than-optimal outcome for their legal disputes.
This article will explore four personality styles of “difficult”
clients, as well as strategies for improving communication between the attorney and his/her “challenging” client.
What is Personality?
Personality is what makes an individual unique. Personality is one’s characteristic pattern of thoughts, feelings,
and behaviors that remain fairly consistent throughout life.
These patterns of behavior are expressed by how one responds to the environment, through social interactions and
thoughts, feelings, and behaviors in close relationships. The
way one relates to oneself in his or her own beliefs and perceptions is also characteristic of his or her personality.
There are several schools of thought about how personality develops, but in general, personality is both genetically and
environmentally influenced, predisposing individuals to the development of certain traits. Personality traits that become significantly fixed and unyielding to the point that the person’s daily
San Antonio Lawyer
12
July-August 2008
life and functioning become impaired, resulting in chronically maladaptive behavior, is termed a “personality disorder.”2
People with personality disorders
generally fail to recognize that they have
a problem, primarily because they adapt
so readily to the environment that they
do not feel the pain, anxiety or angst that
their rigid patterns of behavior produce
in others. Often, their behavior most affects, frustrates and discomforts those
who are in close, regular contact with
them. The more interaction between attorney and client, as the case develops
through the discovery phases, the greater
the likelihood that behaviors associated
with a personality disorder or style will
negatively impact the attorney-client relationship and case representation.
High Conflict Personalities and
Persuasive Blamers
Personality disorders, in and of themselves, do not always lead to high-conflict
personalities. It is when the person is also a
“persuasive blamer” that he/she becomes a
high-conflict personality. Persuasive blamers seek something or someone else to
blame. They convince others to see things
through their own cognitive distortions, yet
they appear genuine and sincere. Because
there is distortion in their thinking, persuasive blamers tend to project their own
unacceptable feelings onto a target—usually someone whom they have had a close
relationship with, such as a former spouse
or former employer. They divert attention
from their own unacceptable behavior by
focusing on the behavior of another. They
may over-generalize, maximize the negative, and minimize the positive aspects of
their target. With these sorts of people, major disputes often stem from minor problems
,and emotions are almost always exaggerated.3 They also attract others to join in their
cause. Information becomes distorted based
on how these sorts of people feel about a
situation, and their feelings begin to generate “facts.” Consequently, attorneys can get
bogged down, expending much of their energy trying to distinguish fact from fiction
by investigating fictional information created by the persuasive blamer and which,
at face value, appears to be true. Many persuasive blamers have developed such keen
skills of emotional persuasion, because they
are charming, that they are able to persuade
others that they are the “victims,” while in
reality they are the perpetrators.4
Clusters of Personality Disorders
Personality disorders are very
prevalent in American society to the
following degree: approximately 10%
to 13% of the population has a personality disorder; 20% to 30% of patients
who receive outpatient primary health
care; and over 50% of clients involved
in high-conflict cases—such as custody
disputes, divorce, and violence, both
domestic and societal—may be afflicted
with a personality disorder.5
According to the Diagnostic and Statistical Manual of Mental Disorders—Text
Revision (DSM-IV-TR), there are specific
criteria identifying the ten (10) personality disorders.6 These disorders are further
grouped into three clusters. “Cluster A”
personality disorders are often perceived
as “odd and eccentric.” They include paranoid, schizoid, and schizotypal personality
disorders. “Cluster B” personality disorders are viewed as “dramatic, erratic, and
emotional.” This group includes antisocial,
narcissistic, borderline, and histrionic personality disorders. Finally, “Cluster C” personality disorders are seen as “anxious and
fearful.” This group covers the avoidant,
dependent, and obsessive-compulsive personality disorders.7 This article will focus on
the most conflictive of disorders—“Cluster
B” personalities, which include the dramatic, erratic, and emotional clients.
Antisocial Personality (Previously
Known as Psychopath or Sociopath)
An individual with an antisocial
personality will have little regard for the
feelings or needs of others. Such individuals are often very self-centered, but
this may not be evident during the initial client intake because they are usually charming and adeptly manipulative.
They adapt extremely well to changes in
the social environment, making changes
in behavior and attitude seamlessly. They
are extremely confident in their portrayal of themselves and events around
them, and they work hard at keeping
their true intentions cloaked. An attorney may instinctively notice or feel that
something is not quite right, which may
cause him or her to doubt the antisocial
client, but this type of client persistently
attempts to persuade the attorney to
believe, often achieving that goal. Antisocial clients are skilled at fooling their
family, friends, mental health care pro-
San Antonio Lawyer
13
July-August 2008
“The more interaction
between attorney and
client, as the case develops
through the discovery
phases, the greater the
likelihood or style that
behaviors associated with
a personality disorder will
negatively impact the
attorney- client relationship
and case representation.”
viders, neighbors, spouses, and lawyers;
so a person with this sort of personality
style is sometimes known as the “confidence man” or “con artist.”8
In the criminal justice system, approximately 50% of male inmates are
diagnosed as antisocial. They do not
have any regret about the means they
use to achieve their end, be it for profit
or pleasure. They can and will lie, exaggerate, distort, or withhold information
without any telltale signs. They lack remorse and do not have a conscience.
Even antisocial clients who have
no criminal history can be of significant
concern in the legal and mental health
arenas, particularly because such clients
use their manipulative traits to charm
and deceive. In child custody disputes,
an antisocial’s charming deception of the
court, combined with a child’s expressed
desires, can cause the unwary decisionmaker to find in favor of the antisocial.9
According to the DSM-IV-TR,10 criteria for this personality disorder include
three or more of the following, occurring
since age 15: (1) failure to conform to social norms; (2) deceitfulness, lying, use of
aliases, conning others for personal profit or pleasure; (3) impulsivity or failure
to plan ahead; (4) irritability and aggressiveness (i.e., physical assaults); (5) reckless disregard for the safety and welfare
of others; (6) consistent irresponsibility,
such as financial and/or employment
problems; and (7) lack of remorse, indifference, or rationalization for having
hurt, mistreated, or stolen from another.
Representing clients with antisocial
personalities can be very challenging. In
dealing with uncooperative clients who
have no qualms about lying or withhold-
ing information, an attorney will likely
face some anguishing and/or embarrassing episodes. Drunk driving, spousal and child abuse, and promiscuity are
common in the lives of antisocials.
Of absolute importance in dealing
with antisocials is the setting of firm limits,
without exception.11 Maintaining healthy
skepticism and paying attention to one’s
instincts is critical in representing antisocials. These internal cues will help prevent
repeated distresses and disappointments.
The attorney should make client expectations as clear as possible. Make it clear
that the attorney will impose and enforce
consequences should there be any future
deception. Because antisocials often fail
to meet their financial obligations, the attorney should closely monitor fee payment
obligations. Furthermore, attorneys should
avoid performing favors for these clients
and avoid being swayed by their charm.
Finally, the attorney should always collect
data from collateral sources to corroborate
information provided by these clients.
Narcissistic Personality
The hallmarks of the narcissistic personality are a heightened sense of self-importance and a grandiose feeling of being
special and unique. Because they feel special, persons with a narcissistic personality expect special treatment, and early
communication with them will reveal
their startling sense of entitlement.12 Like
antisocials, narcissistic people are manipulative and may use their charm and seductiveness to try to have their own way.
They have a need for admiration and any
criticism may result in rage or indifference. They are incapable of demonstrating
empathy. Sympathy may be feigned when
it helps achieve their own selfish desires.
They tend to be interpersonally exploitive.
In other words, they have no reservations
about taking advantage of others.13
In the legal setting, narcissists have a
difficult time understanding another person’s point of view, since they lack empathy. What underlies their personality is a
poor sense of self-worth. They blame others
for their problems and cannot see how they
contribute to their own problems.14 If confronted about their behavior, they tend to
go on the offensive, verbally attacking the
person who was confrontational.
According to the DSM-IV-TR,15 criteria for this personality disorder include
five or more of the following: (1) a grandiose sense of self-importance; (2) a preoccupation with fantasies of unlimited
success, power, brilliance, and beauty; (3)
a belief of being special and unique; (4) a
requirement for excessive admiration; (5)
unreasonable expectations with a sense
of entitlement; (6) behaviors which are
interpersonally exploitive and/or take
advantage of others; (7) a lack of empathy; (8) envy of others and belief that
other are envious of him/her; and (9) arrogant and haughty behavior or attitude.
In representing a narcissist, being
critical and confrontational is the absolute
wrong way to approach the client. Instead,
an attorney should avoid any direct criticism and should involve the client in his/
her case, asking the client for his or her help
and sharing in the decision-making with the
client. The attorney should recognize the client’s true strengths and accomplishments,
showing him or her how to contribute to
bringing about a satisfactory resolution to
the case. The attorney should also set limitations and boundaries and clearly explain
the extent to which the attorney can achieve
the client’s expectations by minimizing his
or her idealistic view. The attorney should
explain to the client that there are limits on
telephone calls and special appointments
and should advise the client that he or she
may incur additional fees if he or she is late
to, or misses, appointments, thereby hindering the ability of the attorney to represent
the client with the processing of the case.
The attorney should listen to the narcissistic
client with empathy and explain the benefits of following attorney advice. Any consequences to the client’s behavior must be approached in a non-confrontational manner.
The relationship needs attention with set
limitations. The attorney should not ignore
the relationship or terminate it abruptly.
Finally, the attorney should be aware that
San Antonio Lawyer
14
July-August 2008
this type of client will be less likely to agree
to compromise or settlement of a dispute,
viewing such as further victimization.16
Borderline Personality
On the surface, persons with borderline personalities, often appear to have appealing and attractive personalities. During the first meeting with a borderline, the
attorney, in all likelihood, will be praised,
even placed on a pedestal for accepting
representation of the borderline’s case. As
the attorney-client relationship progresses,
however, the attorney will likely notice
frequent changes in the client’s mood. Suddenly, the attorney may find himself or herself devalued and the target of the client’s
anger, leaving the attorney utterly confused and emotionally spent. For borderlines, this is very typical. This idealization
and devaluation cycle is called “splitting.”
Splitting is a defense mechanism used by
borderlines to protect their shaky ego structure. Because they are internally inconsistent, relationships with borderlines become
love/hate relationships. This is often noted
in their changing interests and allegiances.
Borderlines’ interpersonal relationships are
unstable; and when they are asked to give
information, data, or facts about previous
relationships, their descriptions of major
events in past relationships shift from session to session. The attorney may note polar extremes in the client’s various depictions of his or her “significant other.”17
Borderlines are demanding, unreasonable, and relentless in terms of clamoring
for additional time from, and accessibility
to, their attorney. They may overtly demonstrate contempt for the attorney, or they
may persistently try to test or challenge the
attorney’s competence, motives, or loyalty.
Projection is another defense mechinism
often used by borderlines, as well. Projection occurs when borderlines cannot accept
or acknowledge those felings, thoughts,
impulses, or traits that they find objectionable about themselves and shift the blame
unconsciously to another person. Misinterpreting and distorting others’ communications and intentions are characteristic
of borderlines.18 They respond with intense
reactions, many times with rage and retaliation. This response is typical when they feel
the possibility of rejection or abandonment.
During moments of intense anger and
frustration, an individual with a borderline personality disorder may dissociate
or “zone out,” distorting and sometimes
forgetting the sequence of events that led
to their anger. In the borderline’s perception, his or her problems are due to someone else. In other words, the borderline
personality denies responsibility for his
or her problems and always finds blame
in others. The borderline’s behavior is
always caused by someone else and is always someone else’s fault. This blaming
of others is a chronic, enduring pattern of
behavior specific to their personality.
Setting boundaries is extremely important with borderline personality types.
There may be some temptation to bend
boundaries for the client, due to their intense reactions, but this only reinforces
negative behavior. Borderline personalities create chaos and crisis in their lives to
continue the need to enlist people in their
camp. Because borderlines’ expectations
are very high, when the cycle turns for the
worse, the attorney may not only be devalued, but he or she may also find himself or
herself being sued for malpractice.19
Criteria for this personality disorder
in the DSM-IV-TR20 include five or more
of the following: (1) frantic efforts to avoid
real or imagined abandonment; (2) a pattern of unstable and intense interpersonal
relationships characterized by extremes
of idealization or devaluation (splitting);
(3) identity disturbances; (4) impulsivity,
often with self-damaging behavior; (5) recurrent suicidal behavior such as threats,
gestures, or self-mutilating behavior; (6)
chronic feelings of emptiness; (7) unstable
mood (frequent mood swings that are intense and lasting only a few hours); (8) inappropriate intensified anger responses;
and (9) transient stress-related symptoms
of paranoia and dissociation.
In handling clients of this type, the attorney must honestly check his or her own
feelings in order to properly adapt his or her
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reaction to the chaos created by the borderline. Otherwise, the attorney runs the risk
of engaging in behavior that will sabotage
the attorney-client relationship and result
in a negative outcome for the attorney. The
attorney must be calm and direct with borderline clients.21 The attorneys should: (1)
set firm boundaries; (2) listen respectfully,
even to the client’s anger and blame; (3) reassure the client; and (4) avoid engaging in
“splitting” by attacking those persons the
client feels anger towards. Some moderate,
but delicate, confrontation is necessary to
provide and obtain facts, but the attorney
should not overreact to the client’s emotions
by becoming angry or using intense criticism. Since boundary violations are common with borderlines, the attorney should
not ignore such violations and should permit the client to face the consequences of
such behavior. Finally, if possible, the attorney should avoid terminating the attorneyclient relationship abruptly, if electing to
withdraw from further representation.22
Histrionic Personality
The histrionic personality is, similar to
the other “Cluster B” personalities, charm-
San Antonio Lawyer
15
July-August 2008
410-0125
(210)
ing and attractive at first sight. Histrionic
persons like to be the center of attention
and may sometimes come across as seductive, but drama and emotional intensity are
the characteristic features of the histrionic
personality. Despite the histrionic’s level
of intelligence, logic may take a back seat
in the histrionic’s approach to various issues in his or her life. The manner in which
the histrionic responds will most often be
based on his or her feelings and intuition.23
Discussions and interviews with the histrionic may endure for many hours, if the
attorney fails to impose limits. Moreover,
there may be very little accomplished in
terms of collecting data during the time
spent discussing matters with the histrionic. This occurs because, even though
factual statements may be made by the
histrionic client, the client’s feelings and
emotions are so intertwined with events
that significant effort must be made to
tease out logical truths and facts from feelings and emotions. Unfortunately, because
the histrionic has such highly intense and
exaggerated emotion, there is a tendency
to wrongly perceive persons with histrionic personalities as liars. They display
dramatic presentations when they discuss
how they have been wronged, having a
tendency to play victim.24 In addition, they
seek to be rescued, especially by those in
close relationships with them—including,
of course, their attorneys.
Although being dependent is not an
identified criterion for the histrionic personality disorder, there is an intense need
to seek constant assistance from others.
They revert to their theatrical style to gain
attention from those they feel can somehow “rescue” them. This approach is used
because histrionics fear that they cannot
handle their problems alone.25 Due to their
highly emotional nature, histrionics’ mistrust in their own logic and intellect drives
them to seek endless advice, unremitting
reassurance, and constant approval from
others.26 For the most part, histrionics’ most
genuine desire is to be loved and cared for,
but their dramatic emotional displays tend
to cause others to want to flee and to feel
intense anger toward the histrionic. Consequently, histrionic personality types often
find themselves feeling abandoned.27
According to the DSM-IV-TR,28 criteria
for this personality disorder include five
or more of the following: (1) discomfort in
situations where he or she is not the center
of attention; (2) interactions with others
characterized by inappropriate seductive,
sexualized, or provocative behavior; (3)
displays of rapidly shifting and shallow
emotional responses; (4) consistent use of
physical appearance to draw attention to
self; (5) speech excessively impressionistic
and lacking in detail; (6) self-dramatization, theatricality, and exaggerated expression of emotion; (7) suggestibility easily
influenced by others or circumstances; and
(8) considerations that relationships are
more intimate than they are actually.
In handling discussions with these
clients, it is essential for the attorney to
remember that all discussions should begin by setting limits, especially of the attorney’s time and the client’s expectations.
The attorney should always listen respectfully and empathize with and validate
the client’s feelings. Properly steering the
histrionic in fact-finding is critical. The attorney should instruct the histrionic client
to focus on attorney-assigned tasks. This,
however, must be coupled with reminding the client that he or she is appreciated,
valued, and not being ignored. Tendencies
to avoid responsibility can be diverted by
providing the histrionic client with steady
insistence and emphasizing the importance of gathering critical and verifiable
data. In some instances, it may behoove the
attorney to structure his or her fact-finding
searches by making very specific requests,
telling the client exactly what documents
are to be collected, how to organize them,
and why they are important.29
Finally, the attorney should avoid reacting to dramatic antics and should not
criticize the client for exhibiting intense
emotions such as anger. The attorney
should remember to encourage the client
to focus on the case facts and should follow
through on providing the client information regarding his or her case as is required.
If the client is not kept abreast of important
changes in his or her case or court hearings,
the attorney can expect an unpleasant, dramatic reaction. Especially with histrionics,
the attorney must not ignore his or her responsibilities to the client.
Conclusion
As previously described, “Cluster B”
personalities have many common traits.
Consequently, across-the-board strategies
for dealing with highly conflictive personalities can be summarized as follows:30
1. The attorney should set relationship boundaries and clearly explain his or her role as attorney and
expectations of the client.
See W.A. Eddy, It’s All Your Fault! Working With High Conflict Personalities, http://www.eddylaw.com.
See B. Sadock & V. Sadock, Synopsis of Psychiatry (9th ed. Lippincott Williams & Wilkins 2003).
3
See Eddy, supra note 1.
4
See id.
5
See id.
6
See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. American Psychiatric Association 2000).
7
See Sadock, supra note 2.
8
See Eddy, supra note 1.
9
See id.
10
See American Psychiatric Association, supra note 6.
11
See Sadock, supra note 2.
12
See id.
13
See R. Feinberg & J.T. Greene, The intractable client: guidelines for working with personality disorders in family law, 35(3) Fam. & Conciliation Cts. Rev. 351-65 (1997).
14
See id.
15
See American Psychiatric Association, supra note 6.
16
See Eddy, supra note 1; see also Feinberg, supra note 13.
17
See Feinberg, supra note 13.
18
See D. Kupper, Borderline Personality Disorder and the Attorney-Client Relationship: Managing the Difficult Legal Client to Maximize Positive Outcomes,
http://ceb.com/newsletter.
19
See id.
20
See American Psychiatric Association, supra note 6.
21
See Kupper, supra note 18; see also D. Becker, Through the Looking Glass: Women and Borderline Personality Disorder, http://www.questia.com/pm.
22
See Eddy, supra note 1; see also Feinberg, supra note 13.
23
See Feinberg, supra note 13.
24
See id.; see also Eddy, supra note 1.
25
See Eddy, supra note 1.
26
See Feinberg, supra note 13.
27
See Eddy, supra note 1.
28
See American Psychiatric Association, supra note 6.
29
See Feinberg, supra note 13.
30
See J. Shaub, Dealing with the Most Difficult of Clients, http://www.wsba.org/media/publications/barnews.
1
2
San Antonio Lawyer
16
July-August 2008
2. The attorney should communicate clearly and repeatedly via
multiple methods such as calls,
correspondence, and e-mails.
3. The attorney should not ignore
the client. Doing so could result in
negative outcomes for the attorney and staff. The attorney should
instruct his or her staff on how to
handle these clients by setting limits, keeping conversations brief, and
providing follow-up phone calls.
4. The attorney should not provide
special treatment and should not
violate his or her own boundaries
in order to keep the client calm, as
this will likely backfire.
5. The attorney should be consistent
in maintaining his or her boundaries.
6. The attorney should choose his
or her battles wisely. Unemotionally confronting lies with verifiable
facts and true information is one
of the most effective ways of handling these personalities. The at-
torney should be matter-of-fact in
his or her dealings with the client
and contain his or her emotions.
7. The attorney should not align himself with the client’s distortions and
exaggerations, and should avoid
“splitting” and being enlisted into
the client’s camp against the client’s
target(s) of blame. The attorney should
maintain healthy skepticism, being
open and empathetic about what the
client tells him or her, but coupling
trust with verification of the facts.
8. The attorney should focus on
the tasks, responsibilities, and attainment of case goals and not
waver from his or her role as the
attorney and counselor.
9. The attorney must remember at
all times (especially during conflicts) that he or she is solely the
client’s legal representative, not
the client’s therapist.
In conclusion, although a client’s behavioral and personality style can substantially
challenge an attorney’s ability to be cooperative, the aforementioned strategies may help
to restore collaboration, turning a difficult relationship into a successful one. One caveat,
however, is that the attorney’s focus only on
the clients’ behavior can lead to ignoring the
impact of the diverse set of values, personality traits, and expectations that attorneys also
bring to the interaction. Accordingly, attorneys should monitor their own feelings and
allow time for self-reflection in dealing with
these high-conflict client personalities. This
additional approach and consideration
is critical if the attorney is to increase the
probability of a smoother and more productive attorney-client relationship.
Allie de Beer, APRN, BC,
FNP, FPMHNP is a Board
Certified Nurse Practitioner in Psychiatry and
Family Practice. She has
worked extensively with
children, adolescents, and
adults in psychiatry and
has been a legal consultant
for twelve years working with various firms in the
Rio Grande Valley. Currently, she extends her services as an independent contractor in San Antonio
and may be contacted at alliedebeer@aol.com.
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San Antonio Lawyer
18
July-August 2008
By Justice Catherine Stone
R
ecently I received the program
brochure for the upcoming State
and Federal Appeals Conference, and I noticed that one of
the presentation topics is Texas
Supreme Court Statistics and Trends.
Knowing how much everyone loves to
dwell on the intricacies of statistics, I wondered why the Supremes should have all
the fun ... why not see what the “stats” are
for the fourteen intermediate appellate
courts? So, with apologies to all the lawyers who went to law school because they
hate math, here is a snapshot of activity at
the intermediate courts of appeals.
The Office of Court Administration
publishes an Annual Statistical Report for
the Texas Judiciary after the end of each
fiscal year (August 31). The report is available on-line at www.courts.state.tx.us by
using the Appellate Statistics link. The
report includes an important cautionary
statement noting, “Perhaps more caution
should be used in drawing general conclusions from court statistics than from
statistics on other subjects ... regarding
appellate courts, temporary emergencies
such as an illness of a judge or unusually
burdensome cases may distort the statistical picture.” Although this article discusses the overall statistics of the intermediate appellate courts, particular focus is
placed on the Fourth Court of Appeals.
The number of appeals added to the
intermediate appellate courts’ dockets in
2007 was 11,317 – a 0.7 percent increase from
2006, with the number of appeals equally
divided between civil and criminal cases.
Bexar County was third in highest number of appeals filed by county. Although
the intermediate appellate courts disposed
of 11,286 appeals, dispositions decreased
overall by 4.2 percent from 2006.
The average time between filing the
notice of appeal in the trial court and disposition by the intermediate appellate
courts decreased in 2007 from 8.7 months
to 8.5 months. The Fourth Court of Appeals had the lowest filing-to-disposition
time with an average of 6.7 months. The
Fourth Court of Appeals also had the lowest submission-to-disposition time with
0.8 months; however, this statistic for all
intermediate appellate courts is skewed
by dismissals, which often have the same
submission and disposition date.
During 2007, 10,921 opinions were
issued by the intermediate appellate
courts. The Fourth Court of Appeals
issued 962 opinions or an average of
137 opinions per justice. Approximately one-half of the opinions were original opinions on the merits.
The Texas Supreme Court reversed
the decisions of the intermediate appellate
courts in 73 percent of the cases in which
it granted a petition for review. Bluntly
stated, if petition for review is granted by
the Supreme Court, then the greater odds
are that the opinion of the court of appeals
will be reversed. The number of petitions
for review granted ranges among the intermediate appellate court from three to
eighteen, with seven petitions for review
being granted from the Fourth Court of
Appeals. The reversal rate for the Fourth
Court of Appeals (57 percent) was slightly lower than the statewide average (73
percent) since one decision was affirmed,
one decision was reversed for lack of ju-
risdiction, and one decision was reversed
based on a settlement.
More than one-half of the petitions
for discretionary review (PDRs) filed with
the Texas Court of Criminal Appeals were
filed from the five most populous counties,
including Bexar County. The number of
PDRs filed ranges among the intermediate
appellate courts from a low of 42 to a high
of 218, with 61 petitions filed in cases from
the Fourth Court of Appeals. The Texas
Court of Criminal Appeals granted PDRs
in 8.8 percent of the cases. The grant rate
for the Fourth Court of Appeals was slightly lower than the average at 7.9 percent.
Between January 1, 2005, and April 17,
2008, a period of 3.25 years, 190 cases from
the intermediate courts of appeals were reversed by the Texas Court of Criminal Appeals. The reversals per intermediate appellate court ranged from 0 to 41, with the
Fourth Court of Appeals being reversed in
11 cases for an average of about 3 reversals
per year. Assuming PDRs were filed only in
cases in which the Fourth Court issued an
original opinion on the merits, which average between 450 and 500 per year, it would
appear that the Fourth Court’s reversal
rate in criminal cases is less than 1%.
So what does all this statistical mumbo
jumbo mean? While caution must be used
in reviewing court statistics, it appears the
lawyers and litigants of the Fourth Court
district can be assured of the court’s efficiency in moving appeals from filing to
submission, and in disposing of appeals
once submitted. The relatively short period of time that a case remains on appeal
at the Fourth Court may well be a consideration when advising a client whether to
appeal. Similarly, once a party receives an
appellate ruling from the Fourth Court,
advice regarding the merits of any further
appeal should take into account the very
few number of Fourth Court opinions that
are reversed by the higher courts.
Justice Catherine Stone
has served on the Fourth
Court of Appeals since
March of 1994 and is
board certified in civil
appellate law.
San Antonio Lawyer
19
July-August 2008
Fourth Court Update
Intermediate Appellate Courts’ Statistics
Federal Court Update
By Hon. Nancy Stein Nowak
and Nissa M. Dunn
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 nysd.uscourts.gov/courtweb/.
Full text images of most of these orders
can also be accessed through Court Web.
If you are aware of a Western District of Texas order that you believe would be of interest
to the local bar and should be summarized
in this column, please contact Nissa Dunn
by phone at 210.581.2073 or by email at
nissadunn@dunnlawpc.com with the style
and cause number of the case, and the entry
date and docket number of the order.
ADA
Salinas v. City of New Braunfels, SA-06CA-729-XR (Rodriguez, March 14, 2008)
Plaintiff sued the City of New
Braunfels under the Americans
with Disabilities Act and the Rehabilitation Act of 1973 for alleged
unlawful discrimination during
the course of an EMS call based on
her hearing disability. Court held
that once an emergency responder
makes an effort to communicate
with and extract information from
a person who stands in a special
relationship to the one in peril,
the public entity has a duty under
the ADA to ensure that a disabled
person is afforded an opportunity
to benefits from services provided
by the public entity equal to those
who are not impaired. Court further found that the evidence raised
a genuine fact issue as to whether the communication between
plaintiff and the City’s police department was effective, whether
the City refused to acquire an interpreter, and whether the City intentionally discriminated against
plaintiff based on her disability.
Freedom of Religion/Equal Protection
Cornerstone Christian Schools v. The
University Interscholastic League, SA07-CA-139-FB (Biery, April 1, 2008)
Plaintiffs sought to enjoin defendant from enforcing a section
of the University Interscholastic
League’s constitution that generally excludes private schools
from membership, alleging that
implementation of the provision
violates plaintiffs’ freedom of religion, equal protection, and due
process. Court granted defendants’ motions to dismiss and for
summary judgment, holding that:
(1) plaintiff school lacked standing
to bring free exercise claim; (2) UIL
rule was no more than a de minimis burden on individual plaintiffs’ rights to educate their child
and their free exercise of religion;
(3) UIL rule bears rational relationship to the state’s interest in reducing unfair or unequal competition
in extracurricular activities; and
(4) defendant school did not qualify for membership in the UIL.
Removal and Remand/Preemption
Ledesma v. D.R. Horton, Inc., SA-08-CA128-OG (Garcia, April 28, 2008)
Court denied plaintiff’s motion to
remand. Plaintiff alleged that defendant stole a software program
he created. Court held that the
Copyright Act preempts plaintiff’s
state law conversion, quantum meruit, and Theft Liability Act claims.
Discovery/Depositions
Mann v. Calflex Manufacturing, Inc., et
al., SA-06-CA-338-FB (Nowak, March
31, 2008)
Court denied plaintiff’s request to
take out-of-time deposition, finding that plaintiff failed to show
good cause where plaintiff had
known about witness for over two
years and did not allege that his
testimony was only available for
trial by means of deposition.
Case or Controversy/Mootness
Aquifer Guardians in Urban Areas v.
Unites States Fish and Wildlife Service,
SA-06-CA-1121-XR and SA-07-CA0582-XR (Rodriguez, April 8, 2008)
Plaintiffs filed suit alleging that the
Fish and Wildlife Service violated
federal law by concluding that a
transmission line project was not
likely to jeopardize the continued
existence of the Golden-cheeked
warbler, an endangered species.
Although plaintiffs filed suit be-
San Antonio Lawyer
20
July-August 2008
fore the line was complete, they
did not seek a TRO or preliminary
injunction, nor did they seek dismantlement of the completed line.
Court granted defendants’ motion
for summary judgment, concluding that the relief plaintiffs sought
could not be granted because the
project was complete; therefore,
their claims were moot.
Qualified Immunity/Local Rules
City of Windcrest v. Gigante Flea Market,
L.P., SA-07-CA-975-XR (Rodriguez,
April 11, 2008)
Third-party plaintiffs sought discovery pursuant to Local Rule
CV-12 in order to respond to Rule
12(b)(6) motion to dismiss based
on qualified immunity. Court denied motion, holding that the local
rule “may violate established Supreme Court and Fifth Circuit law”
concluding that until the threshold
immunity question is resolved, discovery should not be allowed.
Venue/Convenience Transfer
Scantland v. The Yokohama Rubber Co.,
Ltd., SA-07-CA-952-XR (Rodriguez,
April 10, 2008)
Plaintiffs filed suit in the Western
District of Texas for injuries arising
from an accident in the Northern
District of Texas. Defendants sought
a convenience transfer under 28
U.S.C. § 1404(a). Court denied the
motion, holding that a balance of
the relevant interests revealed that
they did not weigh substantially in
favor of transferring the case to the
Northern District.
Removal and Remand/Fraudulent
Joinder
Clear Channel Communications, Inc. v.
Citigroup Global Markets, Inc., SA-08CA-251-OG (Garcia, April 2, 2008)
Court granted plaintiffs’ motion
to remand; defendants failed to
demonstrate that allegedly fraudulently joined plaintiff had no reasonable possibility of recovering.
FRCP 9(b)/Heightened Pleading
Standard
Internacional Realty, Inc. v. Ferrari, SA-07CA-981-XR (Rodriguez, April 11, 2008)
FRCP 9(b) requires that in alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake. Defendants moved to dismiss,
alleging that plaintiffs failed to meet
FRCP 9(b)’s requirements. Treating
the motion in the same manner as a
FRCP 12(b)(6) motion to dismiss, the
court found the plaintiffs’ pleadings
sufficient, and denied the motion.
Discovery/Section 1983
Arnold v. City of San Antonio, SA-07-CA877-XR (Rodriguez, April 8, 2008)
Court granted plaintiff’s request
for discovery, finding that evidence
submitted by plaintiff thus far and
the procedural posture of the case
supported plaintiff’s contention
that she needed more time to conduct further discovery so that she
could fully respond to defendant’s
motion to dismiss her § 1983 claim.
Equal Protection and Due Process/
Supplemental Jurisdiction
Bragg v. Edwards Aquifer Authority, SA-06CA-1129-XR (Rodriguez, March 25, 2008)
Plaintiffs sued defendants in state
court for federal and state law
claims arising from defendants’ denial of their application for water
use under the Edwards Aquifer Authority Act. Defendants removed
and filed a motion for summary
judgment on plaintiffs’ federal
claims. Court granted motion and
remanded the cause to state court,
finding that the remaining claims
raised important, complex issues
of Texas constitutional law and that
state court provided the best forum
for their adjudication.
FRCP 12(b)(6)/Defamation/Section 1983
Cunningham v. Walgreen Co., SA-07-CV0769-NN (Nowak, March 30, 2008)
Defendant’s motion to dismiss
under FRCP 12(b)(6) was granted;
plaintiff failed to allege that defamatory statements were published to
a third party, which was necessary
to support her defamation claim,
and failed to allege state action necessary to support her § 1983 claim.
Jurisdiction/Minimum Contacts
Dripping Wet Water, Inc. v. Idex Corp.,
SA-07-CA-531-XR (Rodriguez, April
24, 2008)
Court granted defendants’ motion
to dismiss for lack of personal jurisdiction, holding that plaintiffs had
failed to show that defendants had
the requisite minimum contacts
with Texas to support the court’s
exercise of jurisdiction.
First Amendment/Mootness/ Constructive Discharge
Simonelli v. Fitzgerald, SA-07-CA-360-XR
(Rodriguez, March 19, 2008)
Plaintiffs, current or former probation
officers, filed suit against Chief Probation Officer for various state and federal claims arising from defendant’s
San Antonio Lawyer
21
July-August 2008
requirement that all employees participate in retention interviews. Court
granted defendant’s motion for summary judgment, holding that: (1)
plaintiffs’ First Amendment claims
fail because any speech made was
in their capacity as employees; (2)
plaintiffs’ claims for declaratory and
injunctive relief are moot because
defendant canceled retention interviews and met with union officials;
(3) evidence conclusively established
that plaintiff suing for constructive
discharge resigned voluntarily; and
(4) plaintiffs claiming mental anguish
failed to establish anguish beyond
hurt feelings, anger, and frustration.
Jurisdiction/Diversity
McCutchen v. The Rowhger Co., SA-06-CA987-OG (Nowak, April 14, 2008)
Plaintiffs ordered to show cause
why consolidated cases should not
be dismissed where the court questioned the existence of diversity jurisdiction sua sponte.
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.
The Perils of Gwendolyn
The Perils of Gwendolyn, Part XXXX:
A Problem with a Prosecutor’s Previous Patron
A Continuing Saga Involving Ethical Considerations and Attorney Conflicts Issues
By Hugh L. McWilliams
G
wen finally calmed down and
decided to wait for a call from
Betty Ergo-Mondian. There
was nothing else she could
do until she heard from Betty.
Gwen was very concerned that Betty’s
telephone solicitation enterprise, disguised as an “advice to the lovelorn”
service, was going to create problems for
Betty, and possibly for her as well.
In the meantime, Gwen needed to
return Tidy’s frantic call. Tidy was in
the deep west town of Buttrice Falls.
She was hired by Palentine & Cutter, the famous forensic team that was
more often than not employed by the
state police. This time they were working on a case for Nigel Mortmont. Nigel
is an extraordinary defense attorney
from New York. He only handles highprofile capital crimes. He had been defending Pinney Woods, who is alleged
to have murdered a local teenage girl.
Pinney owned and operated the only
mortuary in Buttrice Falls. The young
victim was found on a mesa frequented
by rock hounds and fossil hunters. The
circumstances surrounding the murder
are not for the faint of heart. It was common knowledge in the community that
Pinney was in love with the young lady,
and that she never missed an opportunity to rebuff Pinney. She made it very clear
that he was just too strange for words.
The state police made the connection between the victim and Pinney, established
the motive, and the Buttrice Falls District
Attorney, Peter Pillotes, tried the case.
Pinney was convicted of murder.
Gwen hit the redial button on the
office phone. It rang once, and Tidy answered. “What’s up, Tidy?” asked Gwen.
“I guess you already know that
Pinney Woods was convicted of murder
yesterday at about 5:45 in the evening.”
“That’s what I understand. What
can I do for you, Tidy?”
“Well, Gwen, we have a situation.”
When Tidy called the issue at hand a “situation,” it usually meant that there was
about to be a “magnitude ten” storm.
“We are filing a motion for a new trial.
Nigel and I were going over the particulars with Pinney, and what do you think
he said sitting in the attorney room at the
jail, just as calm as he could be?”
“That he was guilty?” asked Gwen.
“No!” shouted Tidy. There was the
sound of turning pages. “This is a quote,”
said Tidy: “‘You know that Peter Pillotes
has never liked me. Even when he was
my lawyer. He could have at least acted
like it after what I paid him.’”
“Holy afterthought!” exclaimed
Gwen. “When was Pillotes his lawyer?”
“Peter Pillotes represented Pinney
for possession of marijuana ten years ago.
Pinney was convicted and got a probated
sentence. We want to file a motion to disqualify Pillotes for conflict of interest.”
Gwen said, “I take it this was before he became the prosecutor in Buttrice Falls?”
“That’s right,” said Tidy.
“Tidy, it is certainly worth a shot. I
guess, with a conviction, your team will
have to pull out all the stops anyway.”
“You sound . . . well, hesitant,”
said Tidy. Tidy was just a tad deflated
by Gwen’s reaction.
“What else have you got?” asked
Gwen.
“That’s pretty much the whole enchilada,” said Tidy.
“The District Attorney has a duty to
represent the State in murder cases except in cases where the prosecutor has
been employed adversely.” Gwen went
on as Tidy listened on a speaker phone,
no doubt in the presence of all concerned.
“Prosecutors are, of course, attorneys,
and are subject to the Disciplinary Rules
of Professional Conduct; and generally
the courts, even in Buttrice Falls, will be
guided by those rules in conflict cases.”
“Gwen, Nigel here. We don’t
San Antonio Lawyer
22
July-August 2008
want to file a grievance complaint
against him just yet. All we want to
do is disqualify the prosecutor and
get Pinney a new trial.”
“I understand,” said Gwen, “but
even though you are not seeking sanctions under the rules, the courts are still
going to be guided by them in determining whether there has been a conflict of interest. Rule 1.09 of the Disciplinary Rules of Professional Conduct
concerns conflicts of interest. It generally prohibits a lawyer from assuming
representation of a client adversely to
the interests of a former client if it is the
same or a substantially related matter.
A prosecutor should be disqualified
when the matter being prosecuted is
the same matter for which that attorney
previously represented the accused.”
Gwen explained to the group that
the question is whether the district attorney would be prosecuting the defendant on the basis of facts acquired
by him during the existence of his former professional relationship with the
defendant. Use of such confidential
knowledge would be a violation of the
attorney-client relationship and would
be clearly prejudicial to the defendant.
Nigel said, “Gwen, they are going
to use the possession conviction in the
punishment phase. Isn’t that enough
to disqualify him?”
“I don’t think so, Nigel. It’s public record and would be available to any prosecutor. I think it would be a good idea to
get a copy of the court’s file in the possession case and see what kind of defense
there was. See if there is something in the
file that suggests knowledge that could
only have been acquired through a privileged communication. Ask Pinney if Pillotes visited any shrinks or other health
care providers. There might be something there. Then you might have a better shot. As it stands now, you are not on
very solid ground. Did you raise mental
competence or sanity in your defense?”
“Yes, indeed,” said Nigel. “I am on my
way to see Pinney’s therapist as we speak.”
The phone disconnected without a
goodbye or call you later. Gwen called
Tidy on her cell.
“Hi, Gwen. Sorry about the disconnect.
Nigel thinks there may be a connection between Pillotes and Pinney’s therapist. I’ll
let you know what’s up later today.”
Missed a chapter? Read the “Perils of
Gwendolyn” series in its entirity at:
www.sabar.org/members/salawyer/gwen.html
Hugh Leighton McWilliams’
San Antonio practice has
focused on insurance litigation for the past twenty-eight
years. He is the Managing Attorney for GEICO Insurance
Company for Texas, Colorado,
New Mexico, and Oklahoma.
He served the State Bar of
Texas in the grievance process for more than twelve
years and now is a member of the Texas Supreme Court
Ethics Committee. He is a Life Fellow of the Texas State
Bar Foundation and a member of the American Board
of Trial Advocates. In addition to authoring forty episodes of “Perils of Gwendolyn,” Hugh has also photographed over thirty covers for San Antonio Lawyer.
San Antonio Lawyer Article
Judged Best of the Year!
A fascinating tale of a judge, lawyers, the district clerk, city council members, the
sheriff, and the district attorney all being captured at the courthouse, taken prisoner
and marched to prison deep into Mexico has garnered a Star of the Texas Bar. Fred
Riley Jones, a partner in the law firm of Goode Casseb Jones Riklin Choate & Watson,
P.C., researched and wrote the article “San Antonio Prisoners: The True Story of the
1842 Invasion of San Antonio and the Imprisonment of Its Citizens” which was published in the March-April 2008 issue of San Antonio Lawyer (SAL). The Texas Bar Association named it the best feature article in a Texas bar magazine and presented the
award to Jones and SABA president Allan DuBois at its annual meeting in Houston.
Brent Sykora and Sara Murray edited the article and Kim Palmer did the stunning
layout. If you missed it, you can find it at www.sabar.org/members/salawyer/.
This is the second time in SAL’s history that an article it published has attained this recognition. In 1999, Judge Sid Harle, Ray Taylor, and L. Caesar
Garcia wrote “When Your Client Really Needs Probation.” Edited by Regina
Stone-Harris and Sara Murray, it received the top publishing prize from the
Texas Bar Foundation at its annual meeting.
-Ed.
San Antonio Lawyer
23
July-August 2008
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The Association of Attorney-Mediators
San Antonio Chapter
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?
Members
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