Texas Lawyer Blog

Texas Supreme Court rules in case involving takings, nuisance, separation of powers

Colleen McGushin — Fri, 27 Jan 2012 15:06:26 -0600

After reading and reporting on Texas Supreme Court rulings for the better part of 12 years, I can honestly say that no decision has hit closer to home for me than Jan. 25's City of Dallas v. Heather Stewart — about seven blocks to be exact.

The decision concerns what once was a handsome brick Craftsman-style bungalow located 6017 Hudson, a mysteriously abandoned property that I used to ponder while walking my dog in my East Dallas neighborhood. Years ago, bulldozers leveled that house, but I never knew why. However, the Supreme Court today tells the story of Heather Stewart’s house, 6017 Hudson.

“Between 1991, when Stewart abandoned her house, and 2002, when the City demolished it, the Stewart home was a regular stop for Dallas Code Enforcement officials. Although utilities were disconnected and windows boarded up, the home suffered vandalism in 1997 and was occasionally occupied by vagrants. Stewart did little to improve the property, apart from building a fence to impede access, and she consistently ignored notices from the City. Inspectors returning to the home often found old notices left on the door,” Chief Justice Wallace Jefferson wrote in the majority opinion.

Stewart fought a demolition order in municipal board proceedings, lost and appealed the municipal decision to state district court. She eventually won $75,000 from a jury after arguing that the demolition was an improper taking by the city. The city appealed and the case ended up at the high court.

In a 5-4 decision on July, 1, 2011, the high court ruled in Stewart’s favor, upholding the award. The city filed for rehearing and numerous other Texas cities filed amici briefs, worried that “failing to accord administrative nuisance determinations preclusive effect will open the floodgates for takings claims. Because takings claims have a ten-year statute of limitations, they contend, parties will now sue to challenge demolitions that occurred any time in the past ten years,” according to Jefferson's opinion.

On Jan. 27, the high court withdrew its July 1, 2011, ruling, substituted another 5-4 decision and again ruled in Stewart’s favor. But this time the court concluded that Stewart "properly asserted her takings claim on appeal to district court" and met the proper deadlines — something that rarely happens when city demolishes a house because it becomes a "nuisance."

“The majority opinion was tweaked to make it clear that to protect your constitutional rights you need to file a direct appeal of the city board’s decision within the deadline. And it does not change the result to Ms. Stewart, because she did” meet the deadline, says Chris Bowers, an assistant Dallas city attorney who represents the city in the case. Bowers adds that the city is still deciding what to do next about the decision. “The case will have an impact on how cities deal with substandard or dilapidated properties,” Bowers says.

Julius Staev, a Dallas solo who represents Stewart, says the decision makes clear that people like his client who lose municipal demolition battles must file state court appeals immediately — as his client did. “Now it makes the decision very accurate and doesn’t leave a big issue like that open,” he says.

— John Council

Morning docket

Colleen McGushin — Fri, 27 Jan 2012 09:46:11 -0600

Judge: BP contract shielded Transocean in spill (Associated Press)

Legal Aid Group Fights County for Unpaid Services (Texas Tribune)

Galveston judge fined $7,500 in malpractice lawsuit fight (Houston Chronicle)

More Bloodletting at Legal Services (The Blog of Legal Times)

State Court Funding Woes a Nationwide Problem, Panel Says (New York Law Journal)

-- Angela Morris

CCA grants habeas to prisoner who had been sentenced to 60 years in prison

Colleen McGushin — Thu, 26 Jan 2012 12:24:03 -0600

“The case won’t be dismissed. I can tell you that,” says Amarillo District Attorney Randall Sims about the prosecution of Ernest Lopez II. Sims’ response follows a Jan. 25 Texas Court of Criminal Appeals decision in Ex Parte Ernest Lopez II granting Lopez’s application for writ of habeas corpus. In 2005, the 7th Court of Appeals in Amarillo upheld Lopez’s conviction in Potter County’s 181st District Court for aggravated sexual assault of a child and sentence of 60 years in prison, according to the per curiam opinion. The CCA noted that Lopez had alleged in his habeas application, among other things, that “his trial counsel provided ineffective assistance for failing to call medical expertsat the guilt or innocence stage of the trial to counter the testimony of the State’s medical experts that the physical evidence was indicative of sexual assault.” The CCA granted relief, based on the trial court’s determination “that trial counsel was deficient as alleged and that the deficient representation prejudiced Applicant” and recommendation that the CCA grant relief. The CCA ruling set aside Lopez’s conviction and sentencing and remanded him to the custody of Potter County to answer to the indictment. Asked if he expects to retry Lopez, Sims says that a decision about how to proceed will be made later and that the decision-making process is “fluid.” Heather Kirkwood, a Seattle solo who started representing Lopez after he lost his appeal to the 7th Court, welcomed the win for her client. She says the case “highlights some of the deficiencies in child abuse litigation. I think we should all recognize these are difficult cases with changing science."

-- Miriam Rozen

Morning docket

Colleen McGushin — Thu, 26 Jan 2012 09:45:15 -0600

Rounding Up the 10 Biggest IP Litigation Wins of 2011 (Corporate Counsel)

U.S. Supreme Court Won't Hear Strip Club Fee Case (The Texas Tribune)

iPad Apps to Boost Productivity at Your Law Practice (Law Technology News)

May Lawyers Offer Groupon Deals? New York Ethics Opinion Allows It, with Caveats (ABA Journal)

Ex-Stanford employees testify of early suspicions (Houston Chronicle)

District attorney giving HPD $475,000 for breath-test units (Houston Chronicle)

State's witness concedes point in hearing on Texas districts (Fort Worth Star-Telegram)

The Legal Aftershocks of Fukushima (The Asian Lawyer)

Consumer Group: Supreme Court Favors Businesses (Texas Tribune)

Republic passes homestead law, sets aside land for education (Texas Day by Day)

-- Angela Morris

Copyright, trade secret suit filed over ballet reality show

Colleen McGushin — Wed, 25 Jan 2012 16:17:21 -0600

Viewers may not be glued to televised tutu battles quite yet. But a complaint filed Jan. 23 in Dallas federal court alleges that two proposals have hit the market, each for a reality show about a ballet company putting together a performance. Aaron Davidson, a partner in the Dallas office of Baker Botts, represents John Harris Masterson in John Harris Masterson v. Lisa Jenkins et al. Masterson alleges in his complaint that he conceived of such a show, focusing on dancers and choreographers in the Texas Ballet Theater in Dallas, with a working title of "Starting Pointe." Masterson further alleges that the defendants — his former co-producers, Lisa Jenkins and Dallas-based Dreamfly Productions — are using his trade secrets and confidential information to try and market their own “extremely similar” proposed reality show, with the working title of "En Pointe." In his complaint, Masterson makes copyright infringement, trade secret misappropriation and breach of contract claims and seeks an injunction to stop Jenkins and Dreamfly from marketing "En Pointe." Jenkins, the president and CEO of Dreamfly, did not return a call to her office seeking comment. No answer has been filed in the case. Davidson says another Baker Botts partner introduced him to his client. “I don’t pretend to be part of the ballet world,” says Davidson, although he notes his daughters take dance lessons. Davidson says that he understands Dreamfly is working with a different ballet company than TBT.

-- Miriam Rozen

Morning docket

Colleen McGushin — Wed, 25 Jan 2012 11:14:37 -0600

Decision on pet's value is appealed (Fort Worth Star-Telegram)

Family court judge arrested, faces DWI charge (Fort Worth Star-Telegram)

Harris County to sue over mortgage fees (Houston Chronicle)

21 firms offer ideas for planned civil courthouse downtown (Austin American-Statesman)

Juror arrested for trying to enter Fort Worth courthouse with loaded gun (Fort Worth Star-Telegram)

HPD to introduce new technology to replace BAT vans (abc13.com)

February hearing set in Morton case (Austin American-Statesman's Austin Legal blog)

Redistricting trial continues with more experts (Associated Press)

Supreme Court, Legal Issues Stay Out of the Spotlight at State of the Union (The Blog of LegalTimes)

-- Angela Morris

In opening statement, federal prosecutor claims R. Allen Stanford treated investors' money like “his own personal piggybank”

Colleen McGushin — Tue, 24 Jan 2012 20:41:21 -0600

Federal prosecutor Gregg Costa told jurors in R. Allen Stanford’s criminal trial that the evidence the government will present at trial will focus on three things – “lying, stealing and bribery.”

In a 41-minute opening statement this afternoon, Costa, an assistant U.S. attorney in the Southern District of Texas, told the panel of 15 jurors the government will show Stanford told “lie after lie after lie” to investors who purchased certificates of deposit from Stanford International Bank Ltd. (SIB) and treated their money like “his own personal piggybank.”

Stanford, former chairman of Houston’s Stanford Financial Group (SFG), faces 14 criminal charges in connection with an alleged conspiracy to defraud investors who bought about $7 billion in certificates of deposit sold through SIB. He has pleaded not guilty to the charges. Senior U.S. District Judge David Hittner seated the jury of 15, including three alternates, this afternoon.

Costa told the jury Stanford lied when he told investors the CDs were liquid, their money was invested globally and, in a strategy to minimize risk, the money was not loaned to borrowers who might default. Costa said billions of the $7 billion people invested in the CDs is “simply gone” and Stanford used more than $2 billion of it to “fund his own pet businesses.” Costa said anyone with knowledge of “basic elementary school math” will be able to understand that Stanford “simply made up” an $8 billion valuation of his company.

Defense attorney Robert Scardino gave jurors a very different view of the case during his 35-minute opening statement. Scardino told jurors that Costa wove a persuasive tale, but it wasn’t based on facts.

Scardino, a partner in Scardino & Fazel of Houston, told jurors that Stanford was a “very clever and resourceful businessman . . . who became a billionaire.” Stanford “did pay every penny owed to the depositors for 22 years,” Scardino said, and it wasn’t until the U.S. Securities and Exchange Commission put Stanford’s companies into receivership in 2009 that investors couldn’t get their money back.

Scardino told jurors that James Davis, the former chief financial officer at SFG who will testify at Stanford’s trial, is a self-admitted “liar” yet prosecutors will rely on his testimony. After pleading guilty in August 2009 to three criminal charges in connection with the collapse of SIB, Davis admitted he did wrong while working for Stanford.

Scardino told the jury that Davis was the key financial officer at SFG and Stanford, in contrast, was “kind of an absentee CEO -- a visionary” who relied on advice from accountants.

Stanford's trial is expected to last about six weeks.

-- Brenda Sapino Jeffreys

Federal judge conditionally certifies class of former paralegals who allege FLSA overtime-pay violations

Colleen McGushin — Tue, 24 Jan 2012 13:07:04 -0600

In a Jan. 19 order, U.S. District Judge Keith Ellison of Houston has conditionally certified a class in Sherri L. Davis, et al. v. Mostyn Law Firm PC. The order comes in connection with a complaint filed by a former paralegal at the Mostyn Law Firm in Houston over allegedly unpaid overtime pay.

The class includes “all of Defendant’s current and former salaried paralegal employees who worked more than forty (40) hours in a workweek but were not paid one and one-half times their regular rate of pay at any time starting August 3, 2008 to present,” Ellison wrote in the order.

As Texas Lawyer reported last year, Sherri L. Davis, a former paralegal at the Mostyn Law Firm in Houston, filed a complaint in federal court in August 2011, alleging the firm failed to pay her and others at an overtime rate when the firm “required and/or permitted” her and others to work more than 40 hours a week. She alleges that was in violation of the Fair Labor Standards Act (FLSA).

After Davis filed the complaint in the Southern District of Texas, Carlos Alvarado, another former paralegal at the firm, filed a notice of consent to become a party plaintiff. Ellison also found in his Memorandum and Order that “Plaintiffs have shown a reasonable basis” that others will join the suit.

Plaintiffs’ lawyer Alex Mabry, of the Mabry Law Firm in Houston, says Ellison made the right decision. “It’s a major hurdle in an FLSA collective action,” Mabry says.

Defense attorney William Stukenberg, an associate with Houston’s Meyer White, says the Mostyn Law Firm disagrees with the court’s decision and will vigorously defend the suit. “That conditional certification is just that; it simply allows the case to move forward with discovery,” Stukenberg says.

In the first amended complaint in Davis, filed in October 2011, the plaintiffs seek to recover their overtime pay, an equal amount in the form of liquidated damages and attorney’s fees.

-- Brenda Sapino Jeffreys

Morning docket

Colleen McGushin — Tue, 24 Jan 2012 10:00:28 -0600

Judges Make a Rush Request for Redistricting Maps (The Texas Tribune)

Greg Abbott Sues Feds to Get Voter ID Implemented (The Texas Tribune)

Police violated 4th Amendment with GPS tracking, Court rules (The National Law Journal)

Personal Injury Firm's Referral Network Gives New Life to Old Business Model (The Recorder)

-- Angela Morris

State Bar of Texas seeks to strike intervenor from Bar’s suit against Texas attorney general over public-records decision

Colleen McGushin — Mon, 23 Jan 2012 16:59:33 -0600

The State Bar of Texas wants a court to strike an intervenor from the Bar’s suit against Texas Attorney General Greg Abbott over his office’s decision that the Bar must release some records under the Texas Public Information Act (TPIA).

The Bar claims, among other things, that the plea in intervention asks the court for a declaratory judgment and “an advisory opinion on issues outside of the initial lawsuit,” and the TPIA doesn’t authorize the court to take those actions.

Julie Oliver, executive director of the Texas Coalition on Lawyer Accountability, requested the records in May 2011. The AG’s office decided on Aug. 12, 2011, that the Bar must release some of the records, but the Bar filed State Bar v. Abbott on Aug. 29, 2011, claiming the AG’s office “failed to apply the proper legal standard” in the open-records decision. Abbott denied all the allegations in the suit on Oct. 7, 2011.

Then Oliver filed a plea in intervention on Nov. 22, 2011, asking the court to uphold the AG’s opinion. She also alleged the State Bar had adopted a policy of not retaining or producing “email and text messages that concern official Bar business but that are sent using private email or text message accounts.” She asked the court to determine if the Bar was withholding such alleged messages, and, if it was, to issue a declaratory judgment that the Bar had to release them.

But the Bar claims in its Jan. 12 Plea to the Jurisdiction and Motion to Strike Plea in Interventionthat Oliver lacks standing to intervene in the suit because the Texas Coalition on Lawyer Accountability made the TPIA request, but Oliver filed the plea in intervention under her own name.

The Bar also argues it is “part of the judiciary” and it is “not subject to suit for declaratory judgment by a complainant under the TPIA.”

The Bar argues that Oliver states “a new policy has been adopted” but that “there is no such alleged policy.” Her “new request for information is an improper attempt to expand the scope of this TPIA lawsuit. This court lacks jurisdiction to render answers to questions that have not been asked prior to this appeal,” the Bar argues, continuing, “[T]he issues in Oliver’s intervention are not ripe and seek a purely advisory opinion from this Court.”

The Bar’s lawyer in the suit, Jennifer Riggs, president of and shareholder in Riggs Aleshire & Ray in Austin, and Oliver and her lawyer, Joe Crews, partner in Crews Law Firm in Austin, each didn’t return a telephone message seeking comment before deadline.

-- Angela Morris

5th Court of Appeals to the rescue

Colleen McGushin — Mon, 23 Jan 2012 16:19:24 -0600

Paul Tyrelle Gatlin owes Dallas’ 5th Court of Appeals a big debt of gratitude. If someone at the court hadn’t had looked closely, his cocaine-possession conviction likely would remained unchallenged. According to the 5th Court’s Jan 19 decision in Gatlin v. Texas, “On appeal, appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California . . . [and] presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. . . . Counsel delivered a copy of the brief to appellant.” The 5th Court advised Gatlin of his right to file a pro se response, which Gatlin didn’t do. “After reviewing the record, we conclude there is at least one arguable issue,” wrote Justice Jim Moseley in a nunc pro tunc opinion joined by Justices Kerry FitzGerald and Martin Richter: “[A]n arguable issue exists as to the seven-year gap between the time the capias was issued and appellant’s arrest, and the expiration of the community service period between the seven-year gap.” The upshot of the decision for Gatlin? The 5th Court “grant[s] appellate counsel's motion to withdraw” and orders “the trial court to appoint new appellate counsel to represent appellant, investigate the record, and file a brief on the merits.”
--- John Council

Voir dire under way in R. Allen Stanford criminal trial

Colleen McGushin — Mon, 23 Jan 2012 14:05:04 -0600

Jury selection began this morning in Houston in R. Allen Stanford’s criminal trial.

Stanford, former chairman of Houston’s Stanford Financial Group, faces 14 criminal charges in connection with an alleged conspiracy to defraud investors who bought about $7 billion in certificates of deposit sold through Stanford International Bank Ltd.

Stanford, who wore a gray suit, a blue shirt and no tie today, watched from a seat at the defense table as Senior U.S. District Judge David Hittner began voir dire of prospective jurors.

“You’ll find this a very, very challenging morning and a very challenging trial,” Hittner told the 80-member panel. “It’s about as interesting a case as you will find anywhere in the country,” he added before questioning potential jurors individually.

After warning prospective jurors the trial would last “plus or minus six weeks,” Hittner waved around a chess timer to show the panel that he would ensure the lawyers would be accountable for their time.

Hittner introduced lawyers for the government and for Stanford’s defense team, then introduced Stanford to the prospective jurors. The judge said he hoped to have a jury picked by the end of the day.

Stanford then said to the panel, "Thank you for coming, thank you."

A June 2011 superseding indictment in United States v. Robert Allen Stanford lists 14 counts against Stanford: one count of conspiracy to commit wire fraud and mail fraud; five counts of wire fraud; five counts of mail fraud; one count of conspiracy to obstruct an SEC investigation; one count of obstruction of an SEC investigation; and one count of conspiracy to commit money laundering.

At a pretrial hearing on Jan. 18, Stanford pleaded not guilty to the charges.

-- Brenda Sapino Jeffreys

UPDATED: Sixth Court of Appeals, Koons Fuller Vanden Eykel & Robertson boast candidates for Texas Young Lawyers Association president-elect

Colleen McGushin — Mon, 23 Jan 2012 12:29:17 -0600

The two president-elect candidates for the Texas Young Lawyers Association are organizing their campaigns, after TYLA’s board of directors made their candidacies official on Jan. 14. Jennifer Evans Morris, chairwoman of TYLA’s Nominations Committee, says the 2012 candidates are Kristy Sims Piazza, TYLA’s current vice president, and Shivali Sharma, a current TYLA board member. “The committee was just very impressed with what they had to offer,” says Morris. The candidates will campaign in March, and TYLA members vote in April. “I’m extremely excited; I have an agenda of projects I can’t wait to get started on,” says Sharma, staff attorney at the 6th Court of Appeals in Texarkana. She says she’d like to talk about the projects but she’s unsure if TYLA’s election rules allow her to discuss it now. Piazza, an associate with Koons Fuller Vanden Eykel & Robertson in Plano, didn’t immediately return a telephone message seeking comment.

-- Angela Morris

UPDATE: “I’m very honored to have been nominated and excited to get to meet young lawyers across the state,” says Piazza, adding that she wants to discuss her project ideas and learn about issues young lawyers face with their practices. She declines comment about her project ideas.

Morning docket

Colleen McGushin — Mon, 23 Jan 2012 09:59:37 -0600

Supreme Court Sends Redistricting Case Back to Texas (The Blog of Legal Times)

S.A.-area woman joins Wal-Mart suit (San Antonio Express-News)

Reversal of sonogram law not likely in Sparks' court, he says (Austin American-Statesman)

Judge dismisses suit challenging Texas' concealed carry law (Austin American-Statesman)

Hurd changes lawyers, will plead not guilty (San Antonio Express-News)

"Occupy the Courts" Protests Hit Supreme Court and Federal Courthouses Nationwide (The Blog of LegalTimes)

State supreme court rules new school funding system unconstitutional (Texas Day by Day)

-- Angela Morris

Andrews & Kurth intellectual property partner and her husband to buy historic fishing lodge in Alaska

Colleen McGushin — Mon, 23 Jan 2012 09:00:00 -0600

When Andrews & Kurth intellectual property partner Wei Wei Jeang (pictured) and her husband started looking for a vacation house to buy, they were thinking maybe something in Texas or Colorado. Instead, Jeang and her husband, Keith Mantey, are buying Gwin’s Lodge, a historic fishing lodge in the Kenai Peninsula in Alaska, which she calls a “mecca” for salmon fishing. “It’s just a beautiful place. How could you say no? It’s amazing to see the salmon on the river. You can reach down and pick them up,” Jeang says. Jeang says she will continue to practice law full time, and her husband will spend the May-to-September tourist season in Alaska, running the business. “I will travel out there as much as I can, especially when we are over 100 degrees,” Jeang says, adding that the couple’s two teenage children will spend much of the summer in Alaska and probably work at the lodge. Jeang says she and Mantey will close on the purchase next week. Jeang says she and her husband discovered they really like Alaska, because it seems like Texas. “We don’t have mountains down here, but the kind of feeling, the frontier, the kind of people, is very Texas to me,” she says. Jeang says neither she nor her engineer husband has experience in the hospitality industry. However, she notes, her husband is an avid fisherman. “He grew up fishing, and this is just a perfect thing for him. He would love to be in that kind of surrounding, talking fishing with everyone,” she says. Gwin’s Lodge, which was built in 1952, according to its website, has a store, a restaurant, 12 cabins and two houses. Jeang declines to reveal the purchase price, but says, “[W]e think it is a good value.” Jeang says the lodge is apparently well-known among the fishing set, and in fact, she and Mantey ran into people in Texas last week who had stayed there before. “It’s like one of the very few lodges available in that location, that central Kenai Peninsula location,” she says.
-- Brenda Sapino Jeffreys

This week in Texas Lawyer

Colleen McGushin — Mon, 23 Jan 2012 02:00:00 -0600

Who's responsible?: While lawyer Scott Marshall has pleaded guilty to a murder charge, his victim's mother has filed an unusual wrongful-death suit against not only him but his parents and his 92-year-old grandmother. Senior reporter John Council hears from attorneys about the unusual suit.

Election litigation: What does Citizens United mean in a fight over an El Paso recall election? One lawyer says the decision isn't relevant, but another disagrees. Senior reporter John Council talks with both.

File fight: Two separate suits have been filed in Dallas district courts by plaintiffs seeking the return of client files. Jennifer Spencer (pictured) represents the plaintiffs in one suit. Reporter Miriam Rozen eyes the tug of war.

Work woes: A former law firm employee has filed two suits against her ex-employers. Reporter Angela Morris looks at the suit alleging civil barratry and the suit alleging failure to pay overtime — allegations the defendants deny.

Approach the bench: Those who thought law school was hard should imagine going through it with three kids. Reporter Angela Morris talks with 186th District Judge Maria Teresa "Tessa" Herr (pictured).

Inadmissible. Newsmakers. Case summaries. Discipline. VerdictSearch.

Dealmaker of the week: A big year in the shale plays kept this lawyer busy right up to the end of 2011.

Special FOCUS Report: Toxic Torts

Clock's ticking: John Eldridge and Jason Huebinger explore limitations considerations.

Doctor, doctor: Mark Courtois and Mary Ann Dougharty walk lawyers through the complex issues that arise when settlements involve Medicare.

Litigating causation: David A. Oliver considers a toxic-tort causation question at the Supreme Court.

Start off right: Vianei Lopez Robinson has six workplace fixes the savvy in-house lawyer can make for 2012.

Maternity matters: Elizabeth Poole (pictured) looks at why employers should work to retain working moms.

The write stuff: Kendall Gray red pencils editing techniques lawyers can use to improve their briefs.

Dallas attorney pleads guilty to murdering his former law partner's ex-wife

Colleen McGushin — Fri, 20 Jan 2012 16:09:26 -0600

Handcuffed and sitting beside his defense attorney, Dallas plaintiffs lawyer Scott Marshall today pleaded guilty to murdering Staci Michelle Montgomery, the ex-wife of Marshall's former law partner Bady Sassin. Marshall received a 40-year sentence.

On Dec. 20, 2009, Marshall shot and killed Montgomery at his Addison home.

At today’s emotional plea hearing before Judge Don Adams in Dallas County Criminal District Court No. 2, Marshall kept his head down and did not speak as Montgomery’s mother, Donna Cowey, gave her victim impact statement.

“You did this because you were mad at other people. You were mad at her,” Cowey said. “But you hurt other people. . . . She was supposed to be home making cookies that day,” Cowey said, explaining that she had a tradition of making Christmas cookies with her daughters.

“I don’t sleep nights anymore . . .,” Cowey said. “My youngest daughter, she’ll never be the same. She’s 21.”

Sassin, a Dallas solo, also gave an impact statement. “I think you need to get down on your knees and beg for forgiveness” from Montgomery’s family members, Sassin said.

He also said Marshall needs to beg for forgiveness from his own parents, who sat in the courtroom at the Jan. 20 hearing. “They had dreams and aspirations when they were young. And they got you,” Sassin said. “And look at what you’ve done.”

Before finishing, Sassin added, “If you did this to get back at me . . . you win.”

At the time of Montgomery’s murder, Marshall was involved in litigation with Sassin, who had sued Marshall over the break-up of their former firm Marshall Sassin. That case settled in June 2010, according to a motion for nonsuit filed in Dallas County's 101st District Court.

At the hearing today, Marshall also pleaded guilty to drug charges connected to the murder. “The lesson is the evil of drugs,” Marshall’s attorney Gary Unell said after the hearing. “They destroy lives, even attorneys’ lives.”

Marshall “has been wanting to plead the case for some time” and did not want to put the families through a trial, Unell said. After Unell and the state could not pick a jury last December, Unell said Marshall offered to plead guilty. Many of the venire members were struck for cause during voir dire, he noted. “Some of the jurors said they couldn’t be fair to an attorney-defendant,” Unell said. “It was a complicated case.”

Dallas County assistant district attorney Rachael Jones, who prosecuted Marshall’s case, could not be reached for comment after the hearing. Marshall’s parents --- John Webster Marshall and Beverly Harrison Marshall --- declined comment.

Last month, Cowey filed a wrongful-death suit against Marshall, his parents and his 92-year-old grandmother, Kay Wiser. In answers filed this week, Marshall and his parents deny the allegations in the civil suit; Wiser has not yet filed an answer.

-- John Council and Anne K. McMillan

State Bar of Texas board of directors votes to ask Texas Supreme Court to suspend work of Uniform Forms Task Force

Colleen McGushin — Fri, 20 Jan 2012 16:01:46 -0600

Without objection today, the State Bar of Texas board of directors voted to request that the Texas Supreme Court suspend the work of the court’s Uniform Forms Task Force and ask the Bar to study the issue of indigent self-represented litigants. The board’s action ratified a resolution its executive committee passed Jan. 5 in the wake of controversy over standardized forms the task force has recommended for the use of pro se litigants in uncomplicated, uncontested divorce cases. The task force submitted its first set of forms to the court on Jan. 11. The State Bar’s Family Law Section and the Family Law Foundation have been voicing concerns about the proposed forms. Tom Ausley, the section’s chairman, told the Bar board today that it is not possible to adopt forms to address all issues that could come up in a divorce. “The last thing a pro se indigent litigant needs is poor forms,” Ausley, a partner in Austin’s Ausley, Algert, Robertson & Flores, said during the public comment period of the board meeting. But Harry Reasoner, a partner in Houston’s Vinson & Elkins and chairman of the Texas Access to Justice Commission, told the board that many states have used uniform forms. “No state has had the problems that the Family Law Section fear,” Reasoner said. Tim Belton of Houston, a public member of the Bar board, made the motion to ratify the executive committee’s resolution. Belton said, “I fear that some well-intentioned folks have equated equal access to the courtroom with access to justice and affordable legal services to the poor. Access to justice begins and ends with access to expert legal counsel.” After the vote, Ausley applauded the board’s action, saying that the Family Law Section is in favor of looking for the best way to continue to help the poor in this state. “To do this we must be sure we’re considering all the ramifications and not just handing them some blank forms,” Ausley says. Reasoner says in an interview that he does not think the court should scrap consideration of the proposal. The Bar could have input while the Supreme Court Advisory Committee reviews the forms, Reasoner says. Justice Phil Johnson, the Supreme Court’s liaison to the Bar, says the court will look at the board’s request and “consider it very seriously.” Johnson says it is his guess that the court will follow a procedure it used when adopting protective-order forms, which involves submitting the divorce forms to its Advisory Committee. “The Advisory Committee also welcomes input,” Johnson says.

-- Mary Alice Robbins

State Bar poised for historic election

Colleen McGushin — Fri, 20 Jan 2012 15:53:25 -0600

For the first time in the State Bar of Texas’ history, the two candidates for president-elect are both African-American. The Bar board of directors today approved the nominations of Steve Bolden, a shareholder in Mahomes Bolden in Dallas, and Lisa Tatum, owner and manager of L.M. Tatum in San Antonio. Kim Davey, a State Bar spokeswoman, says the Bar never has had an African-American president. Ballots for the president-elect election will be distributed April 2, and voting will end May 1.

-- Mary Alice Robbins

Settlement reached late last night in Risperdal whistle-blower litigation

Colleen McGushin — Thu, 19 Jan 2012 18:58:30 -0600

Janssen Pharmaceuticals Inc., a subsidiary of Johnson & Johnson, will pay $158 million to settle litigation filed by the state of Texas and a whistle-blower over allegedly false marketing of the antipsychotic drug Risperdal for Medicaid patients. The settlement announced today by Janssen ends a trial that began on Jan. 9 with jury selection in 250th District Judge John Dietz's court in Travis County. Janssen announced it will pay $158 million in “full resolution” of all claims in Texas. “This settlement represents a resolution to claims brought by the State in 2004 for alleged Medicaid overpayment during the years 1994-2008,” Janssen wrote in a press release, which it provided in response to a telephone call seeking comment from Johnson & Johnson. State of Texas, et al. v. Janssen LP, et al. stemmed from a whistle-blower suit that plaintiff Allen Jones filed under seal in 2004, the Texas Attorney General’s Office wrote in a press release. In the Plaintiffs’ Fifth Amended Petition, the state and Jones alleged the defendants, a group of related Johnson & Johnson companies, worked together to market Risperdal. The plaintiffs alleged the defendants falsely marketed Risperdal and violated the Texas Medicaid Fraud Prevention Act. In the written statement, Janssen wrote that it is “committed to ethical business practices.” The settlement money will go to Jones and his attorneys, the state of Texas and the federal government, which provided Medicaid reimbursements to the state, Janssen wrote in the press release. Tom Melsheimer (pictured), a shareholder in Fish & Richardson in Dallas who represents Jones, says, “We’re thrilled with the settlement. This settlement is the largest Medicaid fraud settlement in Texas by almost a factor of two.” Melsheimer says settlement negotiations had been ongoing during the trial, but talks “sped up” at the conclusion of court proceedings yesterday. He says they reached a deal late last night and informed the judge of the settlement this morning. Melsheimer says his client, a former employee of the Office of the Inspector General in Pennsylvania, could receive up to 25 percent of the settlement, after paying attorneys’ fees and expenses, but the split of the money hasn’t been decided. In a statement today, Texas Attorney General Greg Abbott writes that the settlement “sends a strong message.” Abbott was not immediately available for comment. Defense attorney Stephen McConnico, a partner in Scott, Douglass & McConnico in Austin who gave the opening statement at the trial, did not immediately return a telephone message seeking comment. The defendants — all represented by McConnico — include Janssen, Johnson & Johnson, and five other related Johnson & Johnson companies.
-- Brenda Sapino Jeffreys