Shawn Tuma is a partner at Spencer Fane LLP in Cyber Risk Management, Cyber Incident Response, and Cyber Security,...
Warren W. Harris is a partner in Bracewell in Houston, where he heads the firm’s appellate practice group. He...
Beth Johnson is an associate at Calabrese Budner LLP serving as an appellate family law attorney. Beth graduated from...
Rocky Dhir’s dual interest in innovation and the law prompted him to establish Atlas Legal Research, LP in 2000....
With 2019 rapidly coming to a close, State Bar of Texas host Rocky Dhir takes a moment to review the latest changes in the legal landscape. It may not exactly be Dickens’ A Christmas Carol, but Rocky is in fact visited by three guests explaining big cases and other developments from the past year, highlighting issues lawyers should be aware of today, and even providing a glimpse of what may be coming in the future. Helping guide Rocky through this process are special guests Shawn Tuma, providing insights on cyber law and data security; Warren Harris, sharing the latest on appellate practice; and Beth Johnson, discussing developments in family law.
Shawn Tuma is a partner at Spencer Fane LLP in Cyber Risk Management, Cyber Incident Response, and Cyber Security, Hacking and Data Breach Litigation
Warren W. Harris is a partner in Bracewell in Houston, where he heads the firm’s appellate practice group. He is a fellow of the American Academy of Appellate Lawyers.
Beth Johnson is an associate at Calabrese Budner LLP serving as an appellate family law attorney.
State Bar of Texas Podcast
The State Bar of Texas’ 2019 Year in Review Episode
Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice, with your host Rocky Dhir.
Rocky Dhir: Hi and welcome to the State Bar of Texas Podcast. It’s that time of year again, the holidays. It’s a very special time that is marked by a series of get togethers, holiday office parties, gatherings with friends and let’s not forget time with family.
As lawyers we often get asked questions, right, whether it’s how to deal with a speeding ticket or starting a new business or adopting a child, those close to us often turn to us for advice when their lives come into contact with the legal system. We here at the State Bar stand ready to help.
In this Year in Review we will give you highlights and updates on legal developments across a spectrum of practice areas, cyber law and data security, appellate practice and family law. So sit back, relax and listen up. The only thing we cannot and will not help you with is selecting the right look for that ugly sweater party, that part is entirely left to your discretion or indiscretion as the case may be.
Now, let’s get underway with the State Bar’s 2019 Holiday Podcast. Do you remember when getting hacked referred to receiving a terrible haircut? Remember when protecting your data required nothing more than a deadbolt? If the last few years have taught us anything is that data privacy and cybersecurity have taken their place at the forefront of business, law and the business of law.
No one knows this better than Shawn Tuma. I have actually known Shawn for a number of years and recall the days when Shawn would try to warn us all about cybersecurity, most of us looked at him with blank stares as we tried to count the syllables in cybersecurity. By the way, there are six syllables in the word cybersecurity. In a twist of irony, the word polysyllabic has only five syllables. Yeah, try to wrap your head around that one.
Well, Shawn’s been sitting at the vanguard of data privacy and cybersecurity law for over 20 years. He is an attorney at Spencer Fane, where he serves as Co-Chair of the firm’s Data Privacy and Cybersecurity Practice Group, and he is also active in the State Bar of Texas’ Computer Law Section.
So Shawn, 20 years, holy cow, you are an old guy.
Shawn Tuma: Man, I am an old guy Rocky. I have been doing this for a long time, and you know the interesting thing about this area of law is I still wake up every day scared to death about how much I still do not know about it, because it’s changing so quickly.
Rocky Dhir: Well, then why are we talking to you? Just kidding.
So Shawn, tell me, you have actually been sounding the alarm on cybersecurity for many years now, are you starting to feel vindicated now, do you think people are finally catching on to the importance of this topic?
Shawn Tuma: Yeah. You know, Rocky, it’s interesting you ask that, because I first got into cyber law back in 1998, 1999, with Y2K. So Y2K was going to be my rocket ship to stardom. And I started writing and speaking and really was looking forward to this great career as the Y2K lawyer of the world.
And as we all know, Y2K came and went and that was about it, there wasn’t much to it. And so I adapted and transitioned into other areas of cyber law, and then around the mid-2000s really started seizing upon this cybersecurity data breach aspect and started warning people about it, and you know what I continued to hear? I heard Shawn, we have heard this out of you before. We have heard this Chicken Little, the sky is falling bit when you were talking about Y2K and we are not buying it.
And so it really took several years from there before people — I did, I started to feel vindicated and really it wasn’t until the Target breach at the end of 2013 that the world woke up and started seeing a lot more about this.
Rocky Dhir: Well, so let’s maybe work backwards a little bit, let’s talk about the basics of cybersecurity for those that are kind of unfamiliar. Can you talk about some of the legal issues kind of in this field generally, because I mean I can tell you from my part, I know it’s important and I kind of understand it in the abstract, I don’t know that I really understand the legal issues involved in cybersecurity, so can you kind of give us that overview and then we will talk a little bit about 2019 and what’s been going on more recently.
Shawn Tuma: Sure. First and foremost, for an attorney, it all starts with our duty of confidentiality to our clients and our duty to protect confidential client information. So it starts with us, in our own practices, in our own law firms and the need to protect the information that clients entrust over to us, and that’s referenced in the ABA Model Rules, Texas Disciplinary Rules and we also see it with many more sophisticated companies now that our clients that are inquiring about and mandating that law firms use appropriate cybersecurity to protect the information they entrust to us.
So from a business standpoint and an ethical standpoint, we lawyers have a duty to protect the information that we have been given. And add to that, Texas recently enacted, or the Supreme Court approved the Duty of Technological Competence for Texas lawyers. So part of that Duty of Technological Competence is the duty to understand the tools we are using, the tools we need to use in the practice of law, and how to use those appropriately, which really comes down in a lot of cases to things like e-discovery tools, email, protecting our communications, things like that, using what’s appropriate for the situation. So that’s the lawyer-specific focused issues that we need to know as practitioners.
Now, for everyone there are two major components of cybersecurity and data privacy law. There are the laws that require you maintain certain security protocols, that you have adequate security of your network and of your computer, your data. We have roughly 25 states that have laws that say you must do X, Y and Z to protect information on your network.
In Texas, it’s as simple as saying you need to use reasonable measures to protect the security of data that you collect and store on your network. Some states go much more granular than that, and in fact we have seen California coming out with a new law called the California Consumer Privacy Act that has even very granular detail and other states are doing that as well.
The other aspect of the law, so we have the security laws, they say you must secure the data; the other ones that we hear about the most are what we call the breach notification laws or the data breach laws. Those are privacy based laws and all 50 states now have them. There are international ones like the EU’s GDPR and things like that.
And what those laws are there to do is they are there to protect the privacy of personal information that companies, including lawyers and law firms, gather, process and store. And what they say is, if you have a breach of the privacy of that data, if somehow the confidentiality of that data is compromised, such as through a hacking event, you have to give notice to the individuals whose data was impacted, so that they can then take measures to protect themselves. That’s why we see all of these breach notifications day after day after day and it’s being in compliance with those privacy laws.
So those are the legal frameworks that we have to operate in. Our role as counsel is to help clients understand and comply with their legal and regulatory obligations, and if they are in more specific areas like healthcare, HIPAA; if they are in financial services, Gramm-Leach-Bliley; if they are publicly traded, we have got the SEC issues, and so it’s to help comply with those. And then whenever you have an incident, to analyze it to see, is it a breach that will then require that public notification and other steps to be taken.
Rocky Dhir: So you actually have to know the technology as well as kind of the legal framework that surrounds it. You actually have to understand the types of servers and the types of technologies that people would use in different industries to do what you do?
Shawn Tuma: You need to have a good idea of it and you need to have a strong support network of other professionals that you can go to when you need that more granular detail. You have got to know when to say when, call in the experts.
Rocky Dhir: As long as I don’t have to do any math, I might be able to do this.
So let’s talk about 2019 for a second. How has this year been, I mean I know we have been hearing about cybersecurity issues in the news, but are there any interesting cases or developments that we lawyers should be aware of and kind of read up on?
Shawn Tuma: Absolutely. In Texas we have an amendment on September 1, it becomes effective on January 1. It’s an amendment to our Data Breach Notification Law. In Texas, the standard used to be when you had a breach as a business, you had to notify the individuals as quickly as possible and now that law has been updated to say you must notify within 60 days after determining you have had a breach.
So it adds a specific time period on there, but it also brings in that concept of determining you had a breach, which means you have that time to analyze it, bring in professional forensics examiners, what have you, to help you determine was it really a breach or was it not.
So it’s brought some more certainty to our Texas law and it’s also added the requirement for notifying the Texas Attorney General if you have over 250 Texas residents that you have to notify of a breach.
Rocky Dhir: Wow. Okay, so it’s not for necessarily really, really small maybe cottage businesses, this legislation is covering those that are affecting 250 or more Texans effectively.
Shawn Tuma: No, no, it covers everybody. It covers the solo business owner selling some multilevel marketing product off of their laptop computer that collects information, and if they have even one person impacted, they have to comply with this law. The 250 person trigger only applies to notifying the Attorney General. So if you have one person impacted, you have to notify them, usually by mail. If you have over 250 impacted in Texas, you then have to notify the Attorney General as well.
Rocky Dhir: What do you think 2020 is going to bring in this area of data privacy and cybersecurity?
Shawn Tuma: In 2019, that’s what we saw in Texas. We see a lot of states enacting these more comprehensive privacy laws, like the California Consumer Privacy Act, which is a watered-down in some ways and more stringent in others version of the EU’s General Data Protection Regulation and we are now seeing a lot of copycats in other states.
In Texas, in 2019, we had a proposed version of that that was a much more reasonable version. It did not pass. That will be coming up again in 2021 as far as legislation goes.
For 2020, what I think we are going to continue to see, we are seeing a lot of ransomware attacks on professional service providers like law firms. At the end of 2018 the ABA issued guidance treating that as a breach, obviously that’s not law, but it is persuasive in some ways.
We are seeing a lot of attention paid to ransomware. Unfortunately, there is not a lot that legislation can do to fix it, but it’s giving rise to a strong birth or more interest in cyber insurance, and cyber insurance is an evolving area and over the last couple of years we have seen a lot of misinformation in the law about the validity of cyber insurance policies and coverage over certain issues and so I think we are going to continue to see more refinement of that.
For example, we see companies trying to make claims under property policies saying they should cover cyber events and then whenever they are not successful, we hear all this fake news about, oh, cyber insurance doesn’t pay claims. Well, that’s because it wasn’t a cyber insurance policy, it was a property policy, but people get all that confused and so it’s spreading a lot of bad information about that.
I think we are going to see more refinement of that issue. We are going to see more states coming up with the patchwork of privacy regulations. It’s going to make it very difficult to own business, even more difficult, because when you have a data breach, you have to comply with the law of the state where the individual person resides.
So if you are in Texas, you have data for people in all 50 states. You have to follow the notification requirements for the people in each of those 50 states. Now we are seeing more of the security requirements, and so when they start conflicting it’s going to be really difficult for businesses to comply with that, which is giving the push for federal legislation.
Unfortunately, they have been trying for federal legislation for many years now and it doesn’t seem to be going very far, so we will continue to hear more about that federal legislation as well. I don’t think we are going to see it in 2020 or even 2021.
Rocky Dhir: Wow, it sounds like you are not only busy now, you are going to get busier as time goes on.
Well, Shawn, thank you for this update. We will definitely circle back with you at some point and see how your predictions pan out for 2020, but thank you for spending this time with us and giving us this overview of this very fascinating and very fast evolving area of the law. Thank you again.
Shawn Tuma: Well, it’s my pleasure Rocky. It’s always a joy to visit with you and have these conversations. All I can say is that don’t hold me too much to my magical crystal ball of predictions, because my record going back to Y2K hasn’t always been that great.
Rocky Dhir: Yeah, you are still kind of sore about that whole year 2000 thing, aren’t you?
Shawn Tuma: Man, it stinks, it really does.
Rocky Dhir: Well, it looks like 2020 may be the exact opposite of that. It sounds like you have got your finger on the pulse. So we will definitely circle back and talk more about this and hopefully more and more lawyers are going to start studying up on their ethical duties as well as what they need to do in terms of informing their clients and keeping them on top of things.
So again, Shawn, thank you for this update and we will definitely circle back with you soon.
Shawn Tuma: It’s my pleasure. Thank you Rocky. I have enjoyed it.
Rocky Dhir: One of the best sources for a bird’s eye view of the legal profession is your friendly neighborhood appellate lawyer. Appellate lawyers handle issues that can impact the entire legal spectrum, from criminal procedure to intellectual property law to trust and probate, you name it. So who better to help us look back at 2019 than Warren Harris, the Chair of the Appellate Practice Group at Bracewell LLP.
Warren is based in Houston, but his practice takes him everywhere. A past President of the Houston Bar Association and past Chair of the State Bar’s Appellate Section, Warren is the lawyer to help us reflect on 2019 and look ahead to 2020.
Warren W. Harris: Hi Rocky. How are you?
Rocky Dhir: Oh, doing great, doing great. Thank you for being here.
So Warren, a little birdie told me that you have co-written an article for the January 2020 edition of the Texas Bar Journal and I have read the article and you discuss updates on interlocutory appeals. Why interlocutory appeals? Why was that so important for that article?
Warren W. Harris: Every year for this article we look at an update on appellate law and usually focus more on procedural aspects of the appellate practice area. The Year in Review article covers a lot of other substantive areas. So we try to leave those to the other practitioners that write on those and focus more on appellate procedure, and this year there were several notable interlocutory appeals cases so we thought it would be nice to highlight all of those in this year’s article.
Rocky Dhir: Okay, so why don’t you give us a bird’s eye view of what’s going on in that realm? What’s important about these cases and how do they change the nature of interlocutory appeals for trial and appellate practitioners moving forward?
Warren W. Harris: Well, all of these deal with slightly different, but very specific areas of the interlocutory appeal practice. The first one is the Scripps Operating versus Carter case, and that deals with whether you can have successive appeals. The Texas Supreme Court had to address the issue of whether once an appeal was taken under 51.014, you can take another appeal under that provision. And the Supreme Court said that the Appellate Court did have jurisdiction to consider successive appeals under that statute, because there is no limitation on the statute on the number of appeals.
And that’s an important case, because often you have one issue that you want to take up and later might need to take another issue up, and so the question was can you do that, are you limited to one or can you take a second appeal. And the Supreme Court, although it said yes, you can take successive appeals, noted that each appeal has to challenge your ruling on a new and distinct motion. It can’t just be a motion to reconsider. So you can’t get two bites at the apple.
And in the Scripps case, the first motion dealt with the motion for summary judgment that the plaintiff was a public figure and that there was no malice and so that was the issue that was going up, because it was a public figure, it had to be malice and there was no malice.
The court of appeals affirmed the trial court’s ruling denying summary judgment on that point. And then the defendant in the case filed a second motion for summary judgment, but this motion was a new and distinct motion and it argued that the published articles at issue were true and there were some related arguments that went to that, but it was arguing truth as a defense in the case and therefore that was different and a new and distinct motion from the public figure argument that had been made previously, and the Supreme Court held on these facts, the successive appeal was allowed.
Rocky Dhir: So I am assuming then Scripps was some kind of defamation case?
Warren W. Harris: Exactly, dealing with the newspaper media defendant.
Rocky Dhir: Okay, all right, so they’re saying that it’s not two bites of the apple as long as you’re appealing two separate issues, but now let’s talk about — once you have a final judgment though, I’m assuming you still only get one appeal at that point once you’ve got a final judgment or can you break that up into two separate appeals?
Warren W. Harris: No, no, no — yeah, you’re exactly correct on the final judgment. There everything needs to be taken up as part of that, but this is dealing with an interlocutory appeal pre-final judgment where you have an ability by statute to take an appeal, and in this case it was under 51.014 A6 of the Civil Practice and Remedies Code. 51.014 of the Civil Practice and Remedies Code is the statute that allows interlocutory appeals and A6 is the one that allows basically media defendants is the easy pure hand wait to deal with that, but it allows them to take up certain issues before there’s a final judgment.
So that’s why they were able to take up more than one appeal because there was no final judgment, and again here, the first motion that was filed by the media defendant was because you’re a public figure plaintiff, you have to show that there was actual malice, and when the court denied that, the defendant then was able to file the second motion for summary judgment saying, well, everything we said was true therefore that is a defense to your claim.
Rocky Dhir: So, in Scripps, were we dealing with two separate motions for summary judgment or was it one motion for summary judgment raising two issues and then the defendant effectively filing two separate interlocutory appeals on the same motion?
Warren W. Harris: No, it was two motions for summary judgment, had both of these grounds been raised in one motion then all of that would it need to have been taken up at once. So, had it been one motion for summary judgment that argued ground one public figure therefore no malice, and ground two, truth, then that would have needed to have been taken up in one interlocutory appeal.
It couldn’t have been broken out, but it was only because that there was a new and distinct motion as the Supreme Court said and not a motion to reconsider or everything being brought up as one motion that a successive appeal was allowed.
Rocky Dhir: So then does in your opinion, strategically speaking, does it make sense then if you’re a defendant in such a case and you’re going to file a motion for summary judgment, is it better to file two separate partial motions for summary judgment so that you get those extra interlocutory appeals or does it still make sense to try to hit everything in one motion?
Warren W. Harris: Yeah, it’s really going to be a strategy call. Depending on the case, I think the normal rule would be to put it all in one motion because it’s going to save a lot of time and expense to take it all up at one time. I think the other side of that would be where you have a good rifle shot that you think you’ve got a real winner and it’s a narrow issue that you can take up and do that quicker and maybe more efficiently than taking up three or four or five different ground. I could see breaking them out separately and hoping that wins.
And now under the Scripps case, if you are not successful in getting the case dismissed or getting summary judgment granted on that first issue, it does allow you to go back and get a second bite at the apple as long as you have grounds to file a new and distinct motion with the trial court, you can then take those other issues up.
So, again, it’s strategy. I think the default mode would be to take it all up at once, but I mean where you have one narrow issue that can be your winner, I think you can make a good argument just strategically you might want to break it out into multiple motions, and if necessary take a successive appeal.
Rocky Dhir: Do you think there’s any concerns with — I know this isn’t the right term, but panel shopping. So you say, all right, I’m going to file one motion for summary judgment on one issue and if I don’t get the panel I want, then I know I may lose but then I can file a subsequent motion for summary judgment, file a successive interlocutory appeal down the road. Is that going to be a concern moving forward? Do you think the courts are eventually going to have to kind of deal with that or is that just — is that just the nature of the beast at this point?
Warren W. Harris: I don’t think gamesmanship regarding panel shopping is likely to come into play, depending on the Court of Appeals that you’re in you may only have a three-judge court. So there may be no ability to panel shop, but even on larger courts of appeals where you have multiple panels, I think that’s really hard to do.
I don’t see lawyers breaking these cases into multiple motions thinking as if I don’t get a good panel on one, let me take a second appeal up and see if I can get a better panel there. I think the distinctions between the panels are not enough to merit someone trying to engage in some very fairly dramatic guy, just firm shopping if you will or panel shopping here.
Rocky Dhir: Sure.
Warren W. Harris: I just don’t see that being worth all the time and effort and the expense. I mean that would be a great expense to start breaking everything down into multiple motions and therefore taking multiple appeals. I don’t see that happening.
Rocky Dhir: You said Scripps was just one of the cases, I think there’s probably one or two others that you mentioned in that article. What did the other cases do in interlocutory appeals separate and apart from Scripps?
Warren W. Harris: Right, the next case is the In re Geomet Recycling case and deals with stays of interlocutory appeals, and this is an important case. Again, going back to Section 51.014 of the Civil Practice and Remedies Code, subpart B deals with stays, and once you take an interlocutory appeal that provision may either stay first all the trial court proceedings or second, only stay the trial or three, have no effect. It depends on which provision you are appealing under, you then have to look under 51.014(B) to see what sort of stay is applicable to that type of appeal.
And In re Geomet address whether these stays are mandatory, the issue in that case was whether the Court of Appeals can lift they stay that’s imposed by 51.014 pending appeal and the Supreme Court said no. The Supreme Court’s rationale was that stays under 51.014(B) or mandatory and cannot be lifted by the Court of Appeals.
The Supreme Court said that the statute creates a clear and definite rule and contains no exceptions to that rule. So that’s an important case knowing that once you go up and you get a stay under the statute, you don’t have the ability to lift that stay, it’s a mandatory stay and can’t be lifted by the Court of Appeals.
Rocky Dhir: Now if I remember in Geomet, was there some talk about the interplay between the statute and the Texas Rules of Appellate Procedure or was I mistaken on that distinction?
Warren W. Harris: There was, that was one of the alternative arguments that was made was that the stay could be lifted under the rules or other provisions might allow it to be lifted and the Supreme Court rejected all of those and said, no, the rules of appellate procedure don’t allow it either. There’s no exception, it’s a mandatory stay under 51.014 and it cannot be lifted by the Court of Appeals.
Those are all alternative grounds that were argued in the case and the Supreme Court also rejected those.
Rocky Dhir: Got it, okay. Now there’s a third case too, do you want to tell us about that one?
Warren W. Harris: Right, and the third case is the Sabre Travel case. This deals with permissive appeals and a permissive appeal is an appeal where you get the trial court’s permission to appeal and then the Court of Appeals accepts that appeal. The question presented in the Sabre Travel case is when the trial court grants permission to appeal but the Court of Appeals doesn’t accept it can the Texas Supreme Court nevertheless review the merits of the underlying interlocutory order?
So you’ve got approval by the trial court but the Court of Appeals says nope we don’t want to accept it. Can the Supreme Court take it? The Supreme Court said yes. The court said that it may review the merits of an interlocutory appeal, even where the Court of Appeals refused to accept it and the Court there said that the reason is, is that 51.014(D) which is the provision that allows these permissive appeals only requires the trial court’s permission to appeal.
There’s nothing that states that the Supreme Court lacks jurisdiction just because the Court of Appeals didn’t accept the appeal. That’s the first time that issue has been presented to the Supreme Court so that was an issue of first impression. We don’t see as many permissive appeals in state practice as you do, in federal practice but that is an important note that once you get the trial court to grant permission to appeal even if the Court of Appeals doesn’t think it’s important and ought to take it, you still have the ability to file a petition for review and possibly get reviewing the Texas Supreme Court.
Rocky Dhir: So effectively the Supreme Court can hear almost anything it wants to hear, seems to be the lesson of that Sabre case.
Warren W. Harris: Well, the Supreme Court obviously asked jurisdictional limitations as well and that was the issue here is whenever the Court of Appeals doesn’t take it, does that limit the Supreme Court’s jurisdiction and the Court had to look at the Civil Practice and Remedies Code and see whether its jurisdiction was limited.
And the Court ultimately determined that it wasn’t that the trigger is to have the trial court give permission to appeal and once that happens, whether the Court of Appeals does or does not accept the appeal, doesn’t have any jurisdictional ramifications for the Supreme Court.
It can go on and hear the case regardless of whether the Court of Appeals did.
Rocky Dhir: So it’s dependent on the trial court not on the intermediate appellate court, that’s an interesting twist.
Warren W. Harris: Yeah, exactly, but the first starting point of a permissive appeal is you have to get permission from the trial court.
If you don’t get that permission then nothing goes anywhere and that’s really what Supreme Court focused on for the jurisdiction is. Once you get that, that’s all you need whether the Court of Appeals accepts it, depends on whether it’s heard by that court, but that doesn’t affect the Supreme Court’s jurisdiction to go on and hear the case.
Rocky Dhir: Wow, who knew interlocutory appeals could be this fascinating but that’s — Yeah, I’m telling you this is interesting stuff. Now besides interlocutory appeals were there any other notable Texas or Federal cases that you think kind of help punctuate 2019 in some way?
Warren W. Harris: Yeah, many of these cases are important to practitioners and their relevant substantive practice area but there are a lot of big cases out there for the year. I recently did an interview with Law 360 that will be coming out right after the first year talking about some of these. Some are a little more universal and have some procedural aspects, and some are a little more substantive, but some of these cases are the Rohrmoos Venture case out of the Texas Supreme Court, this is a big attorney’s fees case and really is a must-read case.
I don’t know that it really plowed much new ground in the Texas Supreme Court on Texas attorney’s fees law, but it is a great overview of the area, and I think it’s something that everybody needs to read if they’re either moving to get attorneys fees or trying to defend against attorney’s fees claim that’s something that really is the seminal case in the area that everyone needs to be aware of.
Another important case and this is in the oil and gas area and it’s probably more of interest to practitioners and that area is the Texas Outfitters case. Again from the Texas Supreme Court and that deals with the executive rights to mineral interest and whether the interest holder is engaged in self-dealing, a very important oil and gas case but probably more of interest to practitioners in that area.
And there was a big Fifth Circuit case that really was decided an area that had been closely watched and that is whether the Anti-SLAPP statute can apply in Federal Court that had been a big question as to whether that applied in State Court or Federal Court as well and the circuit in the Clock v. Watson case decided that it did not apply in Federal Court and only applies in State Court.
Rocky Dhir: Wow, now so that was 2019, what do you predict is going to be important in 2020?
Warren W. Harris: Well, there are a lot of big cases in the system. A couple to note in the Texas Supreme Court, the Energy Transfer or Partners versus Enterprise Products case is a very watch case. I think it’s probably the most watched case in Texas right now certainly for those that do commercial work. It really deals with some fundamental issues on doing business and affects what is required if you want to form or maybe more importantly don’t want to form a partnership whenever you’re looking at a business venture.
A lot of very basic contract issues at play there and that’s going to be a case that a lot of people are watching and really is a very important case to keep your eye on that will — it was argued recently in the Texas Supreme Court and we will be waiting to see what the Court does with that.
Rocky Dhir: Wow, well, big stuff. This is why I like talking to appellate practitioners, you guys see everything from everywhere. So, Warren, thank you for that look back and that look ahead. Maybe we’ll talk to you at some point next year and see how your predictions start panning out. So maybe I’m going to put some money on this.
Warren W. Harris: Thanks Rocky, it was a real pleasure. I enjoyed talking to you.
Rocky Dhir: Absolutely. Thank you again, Warren.
Rocky Dhir: Family Law is a fascinating area for anyone fortunate enough to have ever studied it. Not only do family lawyers need to know family law, they must also have a working knowledge of business law, finance, psychology and counseling, and unfortunately even criminal law in some cases. Beth Johnson is a quintessential Family Law pro. She’s an Associate at Calabrese Budner in Dallas and has built a career as a Family Law Appellate Practitioner and she’s been generous with her knowledge having written extensively in numerous publications including the Dallas Bar Headnotes and the State Bar of Texas Family Law Section’s quarterly sectioned report. She has her ear to the ground. So let’s hear what she hears.
Beth, welcome. So, 2019, it’s already the end of the years, so has it — what do you think, has it been a pretty quiet year for family lawyers?
Beth Johnson: Well, I mean there hasn’t been anything super ground-shattering, so it’s been somewhat stable but there have been a couple of interesting cases that have come out.
Rocky Dhir: Okay, tell us about them.
Beth Johnson: Well, one of the ones that caught a lot of people’s eye is the In re Marriage of Piske and Lange and it was a case involving an arbitrator and an attorney who were actually friends, and it’s like the arbitrators are friends with all the attorneys in town because there’s not that many family law arbitrators, but they did not disclose in the Arbitration Agreement that the arbitrator and the attorney have gone to dinners at the arbitrator’s house in situations like that. And so the entire property division got set aside and had to go back to a re-trial because of that non-disclosure.
So a lot of arbitrators are nervous now because they’re trying to decide what they actually need to be disclosing before they go into arbitration. And so I think the consensus has become just disclose everything you possibly think and then that way you’ve covered all the bases and then the client can say, okay, I acknowledge that everybody’s friends and we can move forward and get the case done.
Rocky Dhir: Now, is this an Appellate Court case or is this a Texas Supreme Court opinion?
Beth Johnson: This was in the Court of Appeals. It was in Houston 14th District.
Rocky Dhir: Interesting. So now how much Presidential effect do you think this is going to have amongst the other appellate districts? Do you think they’re going to follow suit or do you think that we could end up with a circuit split so to speak?
Beth Johnson: That I’m not really sure about. The 14th court tends to put out a lot of opinions and from my experience Houston 14th is usually cited quite a bit and so the other courts unless it’s something that they feel very strongly about they tend to follow.
Rocky Dhir: I put out a lot of opinions in my house but I get overturned all the time, so it does happen. Okay, so in the case of — let’s say your particular docket, has there been an interesting issue you worked on and maybe it’s something that family lawyers already are aware of but is there something you’ve worked on this year that has kind of made 2019 more memorable for you?
Beth Johnson: Well, we seem to have been seeing a lot of suits with grandparents coming in and trying to take possession of kids usually after one of the parents dies and so you’ll have like the mother passed away and so the maternal grandparents will come in and try to get custody of the children and then there’s a dispute between whether the grandparents even have standing to be in that sort of situation.
Typically the grandparents have to prove that there is some sort of significant impairment to the child’s physical health or emotional development, but there does appear to be something of a split on that issue. There was one case that came down that said that the fiancé of the mother who passed away, he had standing to seek custody, but in another case the stepmother of a father who passed away did not have standing. And so it’ll be interesting to see how that turns out because the one involving the — oh, this is so hard to keep straight. The one out of four —
Rocky Dhir: The Family Law is not easy.
Beth Johnson: No, no, and it’s hard to remember the genders and everything else what’s going on, but the one out of Fort Worth is up on a petition for review in the Supreme Court and the Supreme Court asked for further briefing on that. So that might still be a few more months before we find out what the resolution on that is.
At first glance I did notice that in the case where the outside person was granted standing, the person who passed away had custody most of the time and in the other case the person who passed away had a stay in their possession order. So that might be something that is taken into consideration. I don’t know personally whether or not that should be but we’ll find out what the Texas Supreme Court says.
Rocky Dhir: And I’ll tell you one question I’ve been asked before it comes down and this is just my own personal kind of observation. It comes down to the issue of father’s rights and that’s come up a lot. So in particular what happens, and I remember, when I was studying for the Bar exam back during the Andrew Jackson Presidency, but it was long time ago, but yeah, when I was studying for the Bar exam the rule was that whoever was listed on the birth certificate as the father was presumed to be the father but then there have been some cases lately where it turns out that the person listed on the birth certificate found out later that he was not the father of the child but was still paying child support, is it still the rule that once you’re on the birth certificate you’re the father or has that changed over time?
Beth Johnson: Well, there is a statute of limitations so that if you don’t challenge paternity within four years, you’re stuck but some time ago, it wasn’t a great long time ago and I unfortunately don’t know the date off the top of my head, but they did amend the statute to say that if there was some sort of intentional misrepresentation and then for some reason, you didn’t even question the paternity until the child was a little bit older, that Statute of Limitations actually totals until such time as you would be — such a reasonable person would be expected to start to question the paternity.
Rocky Dhir: So, I guess there’s a discovery rule in place now for situations like that?
Beth Johnson: Basically and there was a case this year where there was a presumed father and everybody questioned it and then the trial court ordered a paternity test and the Court of Appeals reversed that because they said that the trial court didn’t even have authority to order a paternity test because there was a presumed father and no one was allowed to challenge that presumption.
Rocky Dhir: So that means in that case only the presumed father could, I guess, move to compel a paternity test or how do you get a paternity test in that kind of a situation?
Beth Johnson: I think that the only option would have been for the actual father to voluntarily relinquish his parental rights in favor of the biological father but since the presumed father actually wanted to remain the father, nobody could come in and take that away from him. It is an interesting situation.
Rocky Dhir: Oh, that is interesting, okay. So presumed father wants to remain on the books as the father even though he knows he’s not the biological father.
Beth Johnson: Right, right because he had raised that child if he knew that child as his own.
Rocky Dhir: Okay, okay, so there’s interesting stuff. Now, Beth, let me ask you this, this final question in closing since you’re a Family Law attorney, we’ve got a whole bunch of newly minted lawyers who just not — only just passed the Bar exam but they’ve just taken their ceremonies in November.
Now if they want to go into Family Law, what do you think are some of the things they should know about being a Family Law practitioner? Are there certain aspects of law they should study? Should they be ready for certain things that maybe they never learned about during the Bar exam and in law school? Give us your perspective.
Beth Johnson: Well, I think one of the best things they can do is get access to the Texas Family Law Practice Manual because it’s kind of a massive collection of forms and practice notes and it will tell you pretty much everything you need to know to practice Family Law.
I know in the Dallas area, you can take cases through the DVAP (the Dallas Volunteer Attorney Program) and they have mentors on staff that will help you through, and so, it’s most helpful to have somebody to just walk you through it.
But, yeah, the Practice Law Manual is the best way to go because you can find an answer you need to know pretty much and then a good mentor is good to find.
Rocky Dhir: And where do you get your hands on this Practice Law Manual?
Beth Johnson: I believe it’s through Texas Bar CLE. I get mine online because I am not a fan of paper so I don’t think everything to be electronic.
Rocky Dhir: Sure, okay. So time to google that and figure out how to get it. So, okay, well, Beth, thank you for not only giving us a glimpse into 2019 so we can all look back but for those of us that are not Family Law lawyers, it’s always nice to know the interesting cases that come from your neck of the woods. And for those of you out there that are looking to maybe get into Family Law, you’ve got some great starting points.
Beth, thank you so much for being a part of this.
Beth Johnson: Oh, thank you for calling me.
Rocky Dhir: Well, folks, that’s just part of 2019 in a nutshell. What a year it’s been. I want to thank all of our special guests for their insight.
As we look forward to 2020, we at the State Bar of Texas and the Legal Talk Network wish you and your loved ones a safe and happy holiday season.
Join us next month as we kick off another year of great content.
If you like what you heard today, please rate us and review us in Apple podcasts, Google podcasts or your favorite podcast app. Until next time, remember, life is a journey, folks.
I’m Rocky Dhir, signing off until next year, literally.
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The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by the State Bar of Texas, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
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