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Recently, I had a minor disagreement with opposing counsel.  It was nothing of any significance, but I had my attention drawn to the Texas Lawyer’s Creed.  My first impression was that neither opposing counsel nor I were living up to the standards set forth in the Creed.  After doing my best to apologize for my part in our disagreement, I sat down and read through the entire Creed, which can be viewed HERE.

Before I read the Creed for the first time in many years, I would have told you that I am the type of lawyer that naturally follows the Creed.  I do not need to be told that I owe opposing counsel “courtesy, candor, cooperation and scrupulous observance of all agreements and mutual understandings.”  I do not need to be reminded that “my word is my bond.”  That all goes without saying.  However, reading through the Creed, I am reminded that the bar is set quite a bit higher, as it should be.  I must admit that I had forgotten some of the finer points, and I found a few that I think deserve mentioning.  Here are a few things we should all remember in the future:

Section I.  Our Legal System

(4) – I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.

[Now you can see why I felt it necessary to write this article.]

Section II.  Lawyer to Client

            (1)  I will advise my client of the contents of this creed when undertaking representation.

            (4)  I will advise my client that civility and courtesy are expected and are not a sign of weakness.

[I must admit to having this conversation with a few of my more enthusiastic clients over the years.  Generally, if I am having this conversation with a client, things are not going well.  The same is true of the next couple of sections.]

            (5)  I will advise my client of proper and expected behavior.

      (6)  I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.

         (7)  I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.

         (8)  I will advise my client that we will not pursue tactics which are intended primarily for delay.

Section III.  Lawyer to Lawyer

       (1)  I will be courteous, civil, and prompt in oral and written communications.

[I believe that I follow this one on a general basis, but I tend to respond poorly when other attorneys fail to be courteous, civil, and prompt.  I find it odd how rarely attorneys respond promptly, especially given the number of deadlines involved in our profession.]

            (6)  I will agree to reasonable requests for extensions of time and for waiver of procedure formalities, provided legitimate objectives of my client will not be adversely affected.

[While I am always quick to provide an extension, I only ask for an extension when it cannot be avoided.  It is so rare to have an opposing party respond to discovery by the original deadline.  I wish it would happen more often.]

            (10)  I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties, and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

[Amen.  Assuming all attorneys follow the Creed, there should never be “good cause” to attribute bad motives or unethical conduct to opposing counsel.  When I first started practicing, I saw conspiracies and gaming in every move my opponents made.  That is the path to insanity.  I now do my best to attribute reasonable and benign motives to my adversary’s actions.  Sometimes I have good cause to attribute bad motives or unethical conduct, but such instances are rare.]

            (13)  I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.

[If it is your habit to copy the court on correspondence, please disregard what I am about to write.  I absolutely loath the practice of copying the court on a correspondence involving a dispute over discovery.  Please do not be that kind of attorney.]

            (14)  I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement.

[I must take exception to this one.  While I will always make an effort to schedule a deposition by agreement, I rarely contact opposing counsel before scheduling a court appearance or hearing.  Assuming I have followed all of the other tenants of the Creed, I have made every effort to avoid involving the court in whatever dispute needs to be resolved at a hearing.  If the motion has to be filed, I am not eager to call opposing counsel back and coordinate our schedules.  I will strive to do better in the future.]

            (19)  I will not seek sanctions or disqualification unless it is necessary for protection of my client’s lawful objectives or is fully justified by the circumstances.

[The fastest way to get on my bad side is to threaten me with a motion for sanctions.  As you have read, I always assume the best in opposing counsel; we are just doing our jobs.  I also do not file lawsuits or seek discovery without first giving serious consideration to the justness of my cause, as required by the Creed.  Therefore, it really aggravates me when an attorney suggests that my actions are deserving of a sanction.  I do not mind if opposing counsel does not like what I have done, and I am okay if he/she is angry at first.  However, I find it insulting when opposing counsel suggests that I may have done something so unethical to warrant sanctions.  Please do not be that kind of attorney.]

Section III.  Lawyer and Judge

            (1)  I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.

[I must confess that I have failed to meet this standard on more than one occasion.  I find confidence in reminding myself that our elected judges are men and women who once practiced law before judges; they have once stood in my shoes.  While this is a great way to prepare for a hearing or a trial, keeping my nerves in check, such a strategy has to be tempered by the understanding that the judge represents an ideal.  I have heard more than once, “You solute the rank, not the man.”  In much the same way, I remind myself that I must be humble before the bench.]

            (4)  I will be punctual.

[In high school, my band director required us to show up for concerts at least 30 minutes early.  If we were not 45 minutes early, we were marked as tardy.  He would say, “To be early is to be on time.  To be on time is to be late.”  I have lived by that motto ever since.  Of course, there are always circumstances that may prohibit me from being on time.  In those rare situations, I am always prepared to contact the court coordinator and explain why I am running late and when I hope to be before the court.]

            I hope this brief, annotated, refresher of the finer points of the Texas Lawyer’s Creed proves beneficial to your practice, if you are a lawyer, or educational, if you are a layman.  Please add to the discussion in the comments section below.

In his recent post, my partner Brantley Saunders talked about a decision by the Fort Worth Court of Appeals in a case being handled by our firm.  The case arose out of complaints made by parents about an assistant coach’s behavior at a baseball game – in a 7 year old boy’s baseball league.  The coach took offense and sued the head coach of his own team, claiming he had been “defamed” by the head coach’s reporting of the complaint to the volunteer president of the baseball association.  He also sued the volunteer president.

The trial judge refused to dismiss the case at an early stage, and so we filed an immediate appeal.  Thankfully, the Court of Appeals ruled that the case should have been dismissed under the Texas Citizen’s Protection Act (TCPA).  The TPCA is intended to protect the right of individuals to speak freely on matters of public concern.  Here, the conduct at issue was a “matter of public concern” – the protection of young kids – and so the statute applied.

One question which arose in the case on appeal was whether the TCPA applies not only to publicly communicated statements, but also privately communicated statements.  In an earlier case, the Texarkana Court of Appeals, in a case named Lippincott v. Whisenhunt, ruled that the TCPA does not apply to privately communicated statements.  In our appeal to the Fort Worth Court of Appeals, we argued the Texarkana Court of Appeals was simply wrong and had misread the statute.  On this point, here is an excerpt from the brief we filed:

In Whisenhunt, the court held that the TCPA applies only to individuals who are exercising their right to speak freely in public, and does not apply to speech that is “only privately communicated.”  Whisenhunt, 2013 WL 5539368 at *8.  That holding was erroneous because the court of appeals failed to take into account the statute’s definition of a “communication.”  The term “communication” is defined to include “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.”  Tex. Civ. Prac. & Rem. Code § 27.001(1) (emphasis added).  The definition contains no requirement that the “communication” be “public” in order to be subject to the statute, nor is there any required minimum number of people that the “communication” must reach in order for the statute to apply.  Had the Legislature intended the TCPA be limited to “publicly communicated” speech it could have easily done so by inserting a word or two into the definition of “communication.”  It did not do so.

Last Friday the Texas Supreme Court reversed the Texarkana Court of Appeals’ decision in Whisenhunt.  The Court ruled that the TCPA applies not only to publicly communicated statements but also privately communicated statements.  In this connection the Court stated:

First, the statute defines “communication” as “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001 (1). The court of appeals concluded that because the purpose of the Act, as described in section 27.002, includes the phrase “otherwise participate in government,” the Act only protects public communication. 416 S.W.3d at 697. We disagree.

 This statute defines “communication” to include any form or medium, including oral, visual, written, audiovisual, or electronic media-regardless of whether the communication takes a public or private form. Tex. Civ. Prac. & Rem.  Code § 27.001(1). The plain language of the statute imposes no requirement that the form of the communication be public. Had the Legislature intended to limit the Act to publicly communicated speech, it could have easily added language to that effect. See In re M.N., 262 S.W.3d at 802. In the absence of such limiting language, we must presume that the Legislature broadly included both public and private communication. Tex. Civ. Prac. & Rem. Code § 27.011.

 We couldn’t have said it better ourselves.

The assistant coach in our case apparently plans to file an appeal to the Texas Supreme Court.   It is always difficult to get the Supreme Court to agree to hear your case because they have so many to consider, but as the former Yankee great Yogi Berra once said, it ain’t over till it’s over.   Stay tuned.

E-filing and the adoption of new local rules has changed how you go about obtaining a temporary restraining order (“TRO”) in the Collin County District Courts.  I will not tell you how to comply with the applicable rules and statutes clearly set forth in the Texas Rules of Civil Procedure[1] and the Texas Civil Practice & Remedies Code.[2]  This is a practical overview on how to obtain a TRO in Collin County without upsetting a judge or the court’s staff.

After preparing all of the necessary documents, contact the Collin County District Clerk to let the clerk know that you will be e-filing an Application for Temporary Restraining Order.  In all likelihood, you will be told to include in your e-filing a reference to your need for an emergency hearing.  Anything you can do to give the clerk’s office forewarning will be greatly appreciated by the clerks and will make your day a lot less stressful.

Once you have e-filed the necessary documents, proceed to the Collin County District Clerk’s office.  The Collin County District Clerk’s Office is probably one of the most efficient offices in the state.  You may actually receive confirmation of the filing and be assigned a court before you get to the courthouse, but do not proceed directly to the courtroom.  You must first go to the District Clerk’s Office and request that the filings be transferred to the assigned court.  Do not expect the court to have something that you e-filed less than an hour ago.  The District Clerk’s Office will be able to ensure that the file is with the court before you start asking for an audience.

Pursuant to Local Rule 2.4(c), an Application for Temporary Restraining Order must first be presented to the judge of the court to which the case is assigned.  In other words, you cannot roam the halls looking for a friendly judge.  If the court you have been assigned is unavailable, it is best to approach the bailiff or court coordinator and ask for permission to approach the auxiliary court.

Be aware of Local Rule 2.4(a) and (b).  Local Rule 2.4(a) requires that the applicant for a TRO notify the opposing party at least two hours before the TRO hearing.  In practice, this is a bit more difficult to do than it would seem.  I strongly suggest filing for a TRO early in the day if possible.  This will give you time to jump through these hoops.  It is hard enough trying to get a court coordinator to squeeze you into a docket, but it adds a level of difficulty when you ask for a special setting to be placed on the docket no sooner than two hours in the future.  Once you obtain your special setting, first contact your client and ensure that someone is available to testify if necessary.  Second, contact the opposing party.  You must notify the opposing party of the nature of the hearing, their right to appear, the time of the hearing, the address of the courthouse, and the courtroom number.  Make a checklist prior to initiating the call.  Once the call is completed, prepare a Certificate of Notice that restates your conversation with the opposing party.  Be prepared to present the Certificate of Notice at the TRO hearing.

Under certain circumstances you can forego the two hour notice.  Pursuant to Local Rule 2.4(b), you can avoid giving notice if you file a certificate with your Application that states one of the following:

1. That irreparable harm is likely imminent and there is insufficient time to notify the opposing party or counsel; or
2. That to notify the opposing party or counsel would impair or annul the Court’s power to grant relief because the subject matter of the application could be compromised or property removed, secreted or destroyed, if notice were given.

            Frankly, I would rather attempt to give the opposing side two hours’ notice than verify one of the above statements.

            Once you have jumped through the hoops and obtained the court’s order granting the application and ordering the issuance of the writ, return to the Clerk’s Office, tender the cash or surety bond (that’s a whole new can of worms) and request the issuance of the TRO.  Sadly, after all of the rush, you will often be forced to wait two to four hours for the issuance of the TRO.  Once issued, you must read over the TRO very carefully.  While the Collin County District Clerk’s Office is one of the best in the state, mistakes are sometimes made.  It is best to read through the TRO and make sure it complies with the court’s order.

            I am knocking on wood when I write that I have not had any serious problems with obtaining a TRO in Collin County.  If you have any good stories to share or can add to my advice, please share in the comment section below.

[1] Tex. R. Civ. P. 680 – 693a

[2] Tex. Civ. Prac. & Rem. Code 65.001 et seq.

It’s the bottom of the 9^th, two outs, and a runner on 2^nd.  The home team is down by one.    The batter steps up, swings and misses.  Count is full.   The pitcher eyes the batter, and he lets it rip… A hit, deep in the hole. The shortstop snags the ball, and throws to 3^rd.   It’s a high tag. Ouch, that had to hurt!  He’s Safe!  No he’s out!  No… well.  The third base coach is yelling; he’s a big guy, towering over the ump – It’s getting intense.  This coach is used to getting his way.    “A little over the top there, coach!”  What a spectacle. Nope, he’s still out.  The coach is irate.  A fan jumps in on the action and gives it to the ump! 

Well, that was interesting, even entertaining…if it was a Major League game.

However, when it’s 7 year old kids’ baseball at your local little league park, with teenage umps and volunteer coaches, its more embarrassing than entertaining.   So, a complaint is filed against the over-the-top coach for his bad example in front of the kids and the teenage umps. Now, the league’s volunteers “get” to deal with the situation. What a joy for them.

 I’ve been on the Boards of youth baseball and softball leagues.   A board member is a “volunteer” position. “Volunteers” (which these days seem to be headed toward the endangered species list) usually agree to these positions of responsibility for the sole purpose of helping out the community.   Dealing with complaints like this one can be one the worst part of a volunteer’s duties (well that, and scoring 6 double elimination tournament games in 100 degree temperature).

 But this is the reality of youth sports in 2015 – the best equipment; private instruction; and skills drilled 24/7. A place where adults sometimes forget what sports are about – that it’s just a game and the game has far more to teach our youth than physical skills.  Acting like Billy Martin in front of two 7 year old boys’ baseball teams is not a good lesson in sportsmanship.   Why would any adult teach children that it’s appropriate to lose control, yell, scream and intimidate?  Unfortunately, this scenario is played out across our great nation thousands of times a year.

 It’s a good thing unpleasant situations like this stay on the field and don’t get raised to the level of lawsuits. Or do they?  In  a recent case I handled, an assistant coach, who was very “successful” and had access to seemingly unlimited resources, decided to sue not only the President of the local league, but also his own head coach who  transmitted a complaint about his behavior.  He claimed they “ruined” his reputation in the community by complaining about his on field behavior.   He demanded justice, in the form of $$.   Within days of the incident he had hired his attorney and began to demand “pre-suit depositions” to “investigate”.

 This is when the case came to my attention.    “How silly,” I thought and I told the other side so.  This type of incident should NOT be handled by the courts.  Please don’t misuse the judicial system. The facts are shameful enough. Do you really want to drag 7 year old kids in as witnesses?

 My requests were ignored, and suit was filed.   This coach would NOT let it go.  We immediately contested the case in the trial court using a little known statute that protects free speech in Texas. In summary “Judge, it’s a 7 year old kids’ baseball game.  People have a right, and a duty to report to the league behavior that they feel is inappropriate.   It is about the kids. This case is just wrong and should be thrown out!”   The Judge, off the record, pulled us aside and advised something to the effect that the coach might want to reconsider his lawsuit.  Consultation was had.  The Courtroom “murmurs” ensued.    No, the coach wanted to proceed.   The Judge denied our initial motion to dismiss the case.   It was a relatively new motion in Texas, and there was not much precedent on this new procedure.

 Swift justice was denied.   Normally, to appeal a case, you have to wait for a “Final Judgment” and this was just preliminary.  A final judgment could take years.  Would we really have to go through depositions and other discovery to get a case like this thrown out?  We would need to find a way to appeal.  I knew it was time to look to a true legal “appellate artisan”.  Someone who knows the Texas appellate system like the back of his hand. Enter my partner Alex Beard, who’s handled over 100 appeals. He would know where to take this and what to do with it to find some justice.

 Now, justice moves slowly, but I have found that it does move.   Just last week, over a year and a half later, the Ft. Worth Court of Appeals ordered not only that the case be dismissed, but that it be sent back to the  trial court to determine the appropriate amount of attorney’s fees and sanctions to be paid by the Plaintiff.   This is a rare finding indeed.   For now, justice has been served – served like a full-count, bases loaded home run over left field.

 Despite the seemingly silly facts of this case, the application of the Court’s opinion could actually be far reaching.   For those details, and the legal reasoning behind the dismissal, I defer to Mr. Beard who will explain in his next entry how he slowed the 95 mph curve ball into a  harmless meat ball, with little spin, so the Court of Appeals could knock it out of the park.

  If you have an interest in the very detailed opinion, it can be found here:

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=8df42abb-f679-4131-9d89-09dc6d15a876&coa=coa02&DT=Opinion&MediaID=761f7792-bf3c-4816-bb76-f1043263ef22

Congratulations to Jacob D. Thomas, a partner at Saunders, Walsh & Beard, for being selected for inclusion in the 2015 Texas Super Lawyers Rising Stars.

The Rising Stars are the top up-and-coming Texas attorneys who are 40 or younger or have been in practice for 10 years or less. Rising Stars are selected based on nominations by members of the elite Texas Super Lawyers list. No more than 2.5 percent of Texas attorneys are chosen for this honor.

The full Rising Stars list appears on Superlawyers.com and in the April 2015 issue of Texas Super Lawyers Magazine – Rising Stars.

Jacob D. Thomas has been helping individuals and businesses with their legal needs since 2003. He has a confidence that is earned only through arduous study, preparedness, and experience. With his experience, knowledge and skill, Jacob competently guides his clients through the complex legal system. Whether the situation calls for a hard-nosed fighter or a subtle negotiator, Jacob tailors his approach to each case based upon the particular needs of the client.

Saunders, Walsh & Beard is a multi-practice firm located in McKinney, Texas.  Our AV Preeminent-Rated attorneys handle a broad range of civil litigation, business/commercial planning, real estate, insurance, personal injury and construction law cases.

For more information, please contact www.saunderswalsh.com.