Recovering Attorney’s Fees in Texas

Many potential litigants believe the prevailing party to a lawsuit is always entitled to recover attorney’s fees from the other side. Contrary to this popular belief, the general rule in our American legal system is that each party must pay its own legal fees, unless a specific rule provides otherwise. Even when the law does provide the right to recover attorney’s fees, specific rules govern the total fees that may be recovered. On April 26, 2019, the Supreme Court of Texas handed down its decision in Venture v. UTSW DVA Healthcare, LLP, which clarifies that there is only one acceptable way to recover attorneys’ fees in Texas courts. The framework for measuring the reasonableness and necessity of attorney’s fees established by Venture is the lodestar method.

The lodestar method requires a fact-finding judge or jury to determine whether the requested amount of attorney’s fees is reasonable and necessary before shifting that cost to the losing party. To be awarded fees, the prevailing party’s attorney must present evidence showing how many hours were spent working on the case and why the rates charged for those hours is reasonable. Venture established the following minimum requirements for attorney fee evidence:

  1. The particular services performed,
  2. The person who performed those services,
  3. The approximate date when the services were performed,
  4. The reasonable amount of time required to perform the services, and
  5. The reasonable hourly rate for each person performing such services.

To satisfy the loadstar requirements, attorneys should maintain contemporaneous billing records on a consistent basis. This practice ensures accurate records of the tasks performed and enhances the likelihood of a successful fee application. Ultimately, keeping well-documented fee records assists clients both in understanding the legal work that is being performed for them and in recovering as much of their legal fees as is possible.


Savannah Judkins | FGHW 2019 Intern

Savannah Judkins participated in Farrow-Gillespie Heath Witter’s 2019 Summer Internship Program. She is a law student at Baylor Law School with an interest in Probate Litigation.

Attorney-Client Privilege in #MeToo Era Investigations

In September 2018, Dallas Basketball Limited, which operates the Dallas Mavericks, released a 43-page report of an internal investigation of alleged sexual misconduct in its business office.  The investigation was conducted by outside counsel and found numerous instances of sexual harassment and other improper workplace misconduct spanning almost twenty years.

The Mavericks are not the first organization to release the results of an internal investigation of sexual harassment and assault claims.  A number of universities and private schools have done so in recent years, and in January 2018, NPR posted on its website an investigation report of sexual harassment in its newsroom.

Against this backdrop of increasing disclosure, organizations conducting internal investigations in the #MeToo era may face pressure to disclose the resulting findings.  But disclosing an investigation report may waive the organization’s attorney-client privilege and work product protection, requiring it to turn over some or all of the underlying investigation materials to adversaries in lawsuits.

In Doe v. Baylor University, No. 16-CV-173-RP (W.D. Tex. Aug. 11, 2017), the court found that Baylor waived the attorney-client privilege as to “the entire scope of the investigation” into Baylor’s handling of sexual assault allegations against Baylor’s athletes. The waiver was based on Baylor issuing a 13-page summary of the investigation and a 10-page list of recommendations to improve its Title IX compliance and support for assault victims. Because the court found that Baylor conducted the investigation in large part over concern for Title IX lawsuits, it held that the interview memoranda, notes, emails, presentations and other documents prepared by the lawyers during the investigation were protected as attorney work product.  However, the large collection of documents amassed by the investigators was discoverable, as were the names of the individuals interviewed.

In another case decided last year, Banneker Ventures, LLC v. Graham, 253 F. Supp. 3d 64 (D.D.C. 2017), the court found that the Washington Metropolitan Area Transit Authority waived its attorney-client privilege by publishing an investigation report of a failed development project.  Because the report made detailed reference to the interviews conducted by counsel, the court found the waiver extended to the interview memos, as well.  The court also found there was no work product protection for the underlying memos because WMATA did not reasonably anticipate litigation at the time of the investigation.

These recent cases illustrate the risk that public release of an investigation report, even a summary report, may require disclosure of the remaining investigation materials in later lawsuits. To reduce this risk, organizations should take steps from the beginning of an investigation to document and protect their privileges, including: (1) documenting in an engagement letter or memorandum that counsel will conduct the investigation for the purpose of providing legal advice, (2) documenting any existing or anticipated litigation arising from the circumstances that triggered the investigation; and (3) taking steps to limit any waiver of privilege during and after the investigation. For specifics on how to preserve privilege, please consult an experienced investigations attorney.


Mary L. O'Connor | Farrow-Gillespie & Heath LLP | Dallas, TXMary L. O’Connor’s practice focuses on representing companies and their officers and directors in commercial litigation and arbitration, securities litigation, internal investigations, and regulatory investigations and enforcement proceedings.

During the course of her career, Mary has been named to the list of Best Lawyers in Dallas by D Magazine, and to the list of Texas Super Lawyers (a Thomson Reuters service) by Texas Monthly Magazine.

 

 

Puttering on About Drones

Subsequent to the posting of this article, the U.S. Court of Appeals for the District of Columbia, in a case styled John A. Taylor v. Michael P. Huerta and the Federal Aviation Administration vacated the requirement that drones flown for recreational purposes must be registered with the FAA. Therefore, the new requirements referenced in the article requiring recreational users to register, to pay fees, to provide information, and to display identification are no longer of any force and effect.  Requirements as to commercial drone operators remain in place.  At the present, it is unknown if the FAA will pursue an appeal or if congress will move to modify the current legislation. But as of right now, if you are a recreational user, as Emily Litella would say: “Never mind.”

Spring showers are slowly evaporating, breezes are still slightly cool, and so in Texas many people find this the ideal time to engage in family outdoor activities. One traditional such activity during this time of year was the flying of kites in the still temperate winds.

But this is the 21st century.  Mary Poppins and outdoor flying activity find the kite an anachronism replaced by the sci-fi allure of scores of drones whizzing all around like deranged mutant mosquitoes.

Unlike kites, they are untethered, can move in infinitely more directions, and most importantly have a number of federal and state regulations that must be complied with before takeoff. Charlie Brown certainly did not need a legal consult as his greatest aeronautical adversary was a kite-eating tree, but the perils to an uninformed drone operator can be significantly worse. For example, if that drone were to hit someone then there could be a lawsuit. The person who was hit could go to a law firm, such as the Nehora Law Firm and sue that person for causing an injury.

This brief article seeks to acquaint the recreational user with some of the legal requirements of drone operation.

Federal Aviation Agency

First and foremost, the Federal Aviation Administration (FAA) considers even recreational drones (described in government-speak as Unmanned Aircraft Systems and usually referred to by the acronym UAS) to be aircraft falling within their jurisdiction.

Therefore, the first FAA requirement is encountered upon the initial purchase of a UAS. Most recreational users are most likely to purchase a UAS weighing between 0.55 and 55 pounds. UAS within this weight category must be registered. This may be done online at registermyuas.faa.gov. You will need to provide your name, address, email address, the make, model, and serial number of your new UAS and pay a fee of five dollars. In exchange, you will receive an FAA registration certificate and number. Your UAS, even though it may weigh only a couple of pounds, and to most people would be considered a toy, must nevertheless be registered and carry the registration number just as if it were the family Cessena, Beechcraft, or Southwest Airlines Boeing 737. Furthermore, the registered operator must be the one flying the UAS, and must carry the certificate of aircraft registration at all times while flying. Any federal, state, or local law enforcement officer is entitled to see the registration upon request.

Hobby and Recreational Use

Now you are ready for your first flight. There are specialized rules even for hobby or recreational use. The first rule, obviously, is that recreational use does not encompass any kind of remuneration for performance of any aspect of the flight and be solely for relaxation, refreshment, or diversion.

All flights must be in accordance with a set of community-based safety guidelines, such as those promulgated by the major model aircraft flight associations.

The operator must know and obey any restrictions to airspace contained in any Notice to Airman (NOTAM), whether or not temporary or permanent. To assist in learning of these restrictions, the FAA has established a mobile app called B4UFLY, which will assist in determining where flight restrictions are; however, certain areas such as within five miles of any airport are always restricted unless prior notification to the airport is provided.

Other regulations require all flights to be within visual line of sight, and should not be flown in a reckless manner. The minimum age for operating a drone is thirteen years of age, and if the owner is less than thirteen, someone thirteen or older must register the UAS.

Reckless Operations

The FAA may take the position that the following may be evidence of reckless UAS operations, and severe criminal penalties may result:

  • Flying higher than four hundred feet
  • Flying your UAS out of sight
  • Flying near other aircraft
  • Flying over groups of people, sports events, or scenes of disaster

In addition, Texas has certain state laws concerning protection of an individual’s privacy that prohibits surveillance of individuals without their permission for the purposes of photographing that individual.

Insurance

Additionally, operators should take into account that accidents may occur. Homeowners should check with their insurance agent or attorney to review their liability policies to determine if coverage is afforded for damages caused by the use of a UAS. In certain situations, accidents caused by a UAS can even qualify as intentional torts. Consult with Dallas personal injury lawyers specializing in intentional torts if a drone injured you or your family.

Conclusion

This article is only meant to highlight some of the basic issues involved in the operation of a UAS and is not intended to be, nor is it, legal advice. Nor does it cover all legal requirements and circumstances of UAS operation.

Now where did I put that ball of twine? It’s a bit breezy outside.


Henry Wehrmann | Farrow-Gillespie & Heath LLP Henry S. Wehrmann practices in the primary areas of employment litigation defense, trade secrets and other intellectual property litigation, personal injury litigation defense, and products liability litigation defense. He is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and is a former chair of the Sports & Entertainment Law section of the Dallas Bar Association.