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Top business litigation lawyers share trial strategies, statute updates at CLE panel discussion

Speakers at The Art of Business Litigation CLE included, Hon. Caroline Baker, left, David Gerger, Dawn Estes, David Beck, Sofia Adrogué, Chip Babcock and John Zavistanos, right.

Speakers at The Art of Business Litigation CLE included, Hon. Caroline Baker, left, David Gerger, Dawn Estes, David Beck, Sofia Adrogué, Chip Babcock and John Zavistanos, right.

Nov. 27, 2019 - How has cheating on the SAT become a federal crime? Can lawyers delve into a juror’s Facebook page? If the government subpoenas your company, do you have to turn over your cell phone?

Prominent Texas attorneys discussed these and other questions as well as new developments and ethical considerations during a continuing legal education program on Nov. 19 at the River Oaks Country Club.

The program, called, “The Art of Business Litigation: A Conversation (Business & Ethics) and CLE,” was sponsored by the University of Houston Law Center, Texas Lawyer, Diamond McCarthy, LLP, and the Houston Bar Association.

It featured six local lawyers: Chip Babcock, David Beck, Dawn Estes, David Gerger, R. Paul Yetter and John Zavitsanos. Attorney Sofia Adrogué, editor of reference book “Texas Business Litigation,” and senior retired District Judge Caroline Baker, co-editor, moderated.

Sofia Adrogué '91, editor of Texas Business Litigation and partner at Diamond McCarthy LLP, was a key organizer of The Art of Business Litigation continuing legal education session.

The panel considered the well-known college admission scandal in which celebrities and other wealthy parents paid coaches to offer fraudulent scholarships and proctors to correct SATs to get their children into elite universities. To prosecute the case, the government is relying on mail fraud, a federal crime, which includes using bribery and kickbacks to stop the delivery of “honest services.”

They “deprived the colleges of their right to honest services,” David Gerger said. “It’s the paying of the money to the coach that makes it a federal crime.”

He also described a hot topic in criminal law in which the government can sue a company and force employees to hand over cell phones.

“In the old days, they would send a subpoena to the Boeing Corporation, and they wouldn’t get employees’ cell phones,” he said. “You’re starting to see now subpoenas to the company and a subpoena to every employee they want saying ‘give us your phone.’”

Gerger, who practices criminal law, questions what rights employees have to keep their cell phones away from the government.

“Did you pay for the phone or did the company pay for the phone? Can you claim a Fifth Amendment right not to turn your phone over to the government? What if you’ve got email on your phone from your former employer, so you’re sort of a custodian of documents from a former company?”

Panelists also discussed whether lawyers should use social media to dig up background information on existing or potential jurors. Caroline Baker, co-moderator, described it as a “dicey area” that some courts may view as “tampering with the jury.”

She suggested asking the judge and reviewing case law to determine if it is appropriate.

Attorney Dawn Estes, who specializes in the discovery of electronic evidence or e-discovery, said she has had judges instruct that “you cannot (check the Facebook pages of jurors) as a lawyer.”

Trial attorney John Zavitsanos, however, uses Facebook and other social media sites frequently, to “fashion the case around the people deciding the case,” he said.

Lawyers cannot contact the jurors by, for example, sending a friend request or asking to follow someone on Snapchat, he said. But he added, “you are doing an incredible disservice to your client if you are not turning over every social media page of every one of those panelists.”

Zavitsanos attributed the outcome of two verdicts to social media research of a juror. “We got every penny we asked for,” he said. “This ended up being the absolute ideal juror for us.”

The panel also discussed developments in:

  • Attorneys’ fees.  A recent Texas Supreme Court case, Rohrmoos Venture, includes discussion of attorneys’ fees that are determined by the Load Star Method, said David Beck, a trial lawyer. The Load Star is the product of a reasonable number of hours multiplied by a reasonable rate. In the case, the court encourages the introduction of records including timesheets and invoices, “so there’s adequate data to support the fact that the jury comes in with attorneys’ fees.”
  • E-discovery. The Texas Supreme Court recently added a comment in the disciplinary rules of professional conduct that attorneys should become competent in “the benefits and risks associated with relevant technology,” said Dawn Estes. Attorneys “now have an obligation to understand technology to serve our clients.” She recommends that lawyers read the white papers from the Sedona Conference, a nonprofit legal education and research group, and review Texas Supreme Court cases Weekley Homes and State Farm Lloyds.
  • Antitrust. Attorney Paul Yetter, who specializes in antitrust cases, says his is one of the firms representing Google in congressional investigations of high-tech companies. Texas Attorney General Ken Paxton is leading an antitrust investigation of Google launched by the nations’ state attorneys general. Yetter predicts, “we’ll see a suit next summer with the Texas attorney general against Google in the midst of the presidential race.”

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