Litigation Trends Survey

More U.S. companies are retaining outside counsel because of regulatory investigations, according to results of Fulbright & Jaworski‘s 9th Annual Litigation Trends Survey. Sixty percent of the U.S. in-house lawyers who responded to the survey said they hired outside counsel for a regulatory investigation during the 12-month period that ended Sept. 30, 2012. That compares to 55 percent who responded to the same question on the previous version of the survey. "The regulatory thing is here to stay," says Otway Denny Jr., chairman of the global litigation department at Houston-based Fulbright. He says regulatory work includes defending companies from investigations conducted by federal and state agencies. A total of 392 in-house lawyers, including 275 in the United States and 100 in the United Kingdom, participated in the survey, which was conducted between July and September 2012. The responses apply to the 12-month period beginning Oct. 1, 2011, says Dan McKenna, media relations director at Fulbright. The survey results were made public Feb. 26. Of the respondents, 92 percent expect litigation pending against their companies to increase or stay at the same level in 2013 as in 2012. It was 89 percent in the previous survey. Additionally, 86 percent of the in-house lawyers reported at least one new suit filed against their companies during the previous 12-month period, compared to 73 percent on the previous survey. And 60 percent of the companies filed at least one suit during the 12-month period that ended on Sept. 30, 2012, compared to only 48 percent during the previous 12-month period. Contract disputes, labor and employment matters, and personal injury suits are the most prevalent suits filed against U.S. and U.K companies, according to the survey. Among other results, the survey notes that companies are spending more on litigation, with 54 percent of the companies spending more than $1 million on litigation during the 12-month period, compared to only 51 percent during the previous 12-month period.

U of H Law Dean Resigns

University of Houston Law Center Dean Raymond T. Nimmer resigned his position on Feb. 25. Associate Dean Richard M. Alderman will serve as interim dean. Nimmer addressed faculty and staff on Feb. 25 to announce his decision, Alderman says. Nimmer said his reasons for stepping down include concerns about his health and satisfaction with reaching several goals he had set for the law school, Alderman recounts. "He’s a very good friend," Alderman says. "He has been talking with the administration for a long time about this." Nimmer did not return a telephone call seeking comment. Alderman says the university, based on past history, will appoint a search committee in the next month or two and will work with a search firm over the summer to find the school’s next dean. "He [Nimmer] has been doing this job for seven years, which is a very long time in the dean world," Alderman says. "He had a number of goals when he became dean and has accomplished them all." Alderman points to the list of goals described in the school’s announcement, which include "increased faculty, revised curricula, improved ranking, international outreach, a tripling of scholarship funds and a revitalized alumni organization." Alderman says Nimmer will begin a one-year sabbatical in September and return to teaching in 2014. "What I would hope I would be able to do is keep the school on the path that it’s been on, and get it in the best shape possible for a new dean," he says.

Scary Situation

On Feb. 26, Friedman & Feiger partner Melissa Kingston had just finished working late when she decided to make a stop in North Dallas. She was waiting at a stoplight in her convertible with the top down when a man approached her, pointed a handgun at her head and told her to move to the passenger’s seat, according to a Dallas Police Department offense report. He kept telling Kingston: "Sarah, you’re coming with me, move over," the report notes. He attempted to grab Kingston’s left arm and pull her out of the vehicle, so she took off her seat belt and acted like she was going to move over, the report continues. When he "dropped his guard" and lowered the handgun, Kingston swung open the passenger door and knocked the man to the ground, according the report. Kingston then began kicking the man in the face and stomach; he crawled away as she got back into her car and drove home, the report states. In an interview, Kingston says of the incident: "My wrist was hurt, but otherwise I’m fine. I got lucky." She declines to discuss the specifics of the incident because Dallas police have not yet made any arrests in the case. But she does have a suggestion for how to stay safe in such situations. "I guess I would suggest people take self-defense courses," Kingston says, adding she’s taken one herself. "It prepares you for situations like that," she says.

Discovery Changes Proposed

A report released on Feb. 27 recommends five significant changes to discovery practices in criminal cases in Texas. The state’s current discovery laws "may increase the likelihood of wrongful convictions," says the report, "Improving Discovery in Criminal Cases in Texas." Texas Appleseed and the Texas Defender Service, both nonprofit advocacy groups, created the report, with pro bono help from lawyers at Locke Lord. The report recommends amending the state’s criminal discovery statute to: provide criminal-defense lawyers with automatic access to discovery without a motion; require prosecutors always to disclose police reports, witness statements, expert reports and criminal histories; require some disclosures by the defense; set deadlines; and impose an "explicit continuing obligation to disclose." Locke Lord partner Charley Davidson of Houston, an editor of the report, didn’t return a telephone call or email seeking comment. Locke Lord attorneys interviewed more than 60 prosecutors and criminal-defense lawyers for the report. It also analyzes open records requests on the discovery policies in 43 Texas counties — large and small, urban and rural. The researchers compared those policies to American Bar Association best practices and standards from other sources. They studied the Texas criminal discovery statute and compared it to statutes in other states. The report finds that the Texas statute requires few disclosures by prosecutors and criminal-defense lawyers, compared to the best practices. It says some Texas counties have open-file policies meeting best practices, however, the rules vary county-to-county, "meaning access to justice can depend . . . on where the case is filed." Some Texas counties require defendants to waive some rights before opening the prosecutor’s file; others make criminal-defense lawyers copy documents by hand. Lawmakers this session will consider bills — Senate Bill 91, among others — proposing reciprocal discovery in criminal cases. [See "Bills for Lone Star State lawyers to watch at the Legislature," Tex Parte Blog, March 1, 2013.]