Been thinking about what constitutes greatness in any field, and this gave me as good as an excuse as any to talk about greatness on the field ... yes, to talk about baseball ... and the great Henry Aaron (who sadly left us this past month). 

I still consider Hammering Hank Aaron the true home run king, notwithstanding the exploits of Barry Bonds in the steroid era.  Aaron broke Babe Ruth's record of 714 career HRs in 1974.  Ruth's record was thought to be unattainable.  But steadlily, over a long career Aaron tracked it down.  

Hank Aaron's major league career spanned a remarkable 23 years.  The home run king never had a prodigious 50-HR season in his entire career; his highest season total was 47.  He led the league in HRs only four times ... FOUR times.  He won the league MVP award only once.  Yet, Hank Aaron was steadily on his way to immoratality.  

He was very good for a very long time.  That is greatness.  

We live in a flash-in-the-pan world, one that values fame over reputation.  But Hammering Hank's example shows us the way ... being good, yes, very good, today, tomorrow, next month, and next year.  That is how it is done. 

For us lawyers, it means doing the little things, the things we all can do. We call back clients, and we do what we say we will do. It means we prepare. It means we keep learning, adapting, and getting better.  We need not be the very best in every situation.  We only need to prepare and do our very best ... and be consistently good.  Do that for a long time, and well ... there is no Hall of Fame for lawyers (thankfully ... haha).

So, good (over time ...), yes, very good, is the road to great.  

Have a great day ...   

There is an old saying that the "Devil" is in the details.  i understand it is an adaptation of the saying "God is in the details." I like the latter better.  I will explain. 

So much of what we do in life and in law depends on the details. In law, I see this a lot, with lawyers, staff, clients, and I battle it myself. We fail to master the details. We have to know the facts of our case ... better than the other side. We must. And we must assume that our clients may not know all those facts that are critical in a legal dispute, as well.  So, we really have to know the facts -- the details upon which cases turn -- better than the other side. 

And we have to know the schedule, and deadlines, and plan accordingly. We not only have to know and calendar these, but we need to what tasks need to happen in advance of these deadlines, and when. 

And the rules ... the rules are the ultimate details.  My old civil procedure professor Michael Tigar (crazy man, great lawyer) taught us that the lawyer who knows the rules controls the game. He was right. You would be stunned ... stunned ... how often I see that other lawyers either don't know or have forgotten the rules that govern our proceedings. 

But where the angei is in the details ... is more than knowing the details -- the facts, the deadlines, the rules.  The angel in the details is knowing what these details MEAN, and then what to do about it.  That is what great legal service is comprised of ... applying the facts within this system to get the best possible result for our client. 

If we don't first master the fundamentals -- the details where the Devil is -- then we can't find the good ... the angels ... in this process.  

I attended the swearing in of a new judge in Montgomery County, Texas last week.  It was the first time I had been inside a courthouse since March. That six-month drought is the longest I can recall ... The deputies were taking temperatures, and they asked all entering to verify their good health.  Inside a fairly full courtroom, people wore masks.  People cooperated, were of good cheer, and it worked. 

And we need for it to work ... for us to get back in courtrooms and in front of juries.  

Like pretty much all trial lawyers, I have attended my fair share of remote hearings and depositions.  These have worked (mostly) though there have been some technological snafus; in fact, this is the norm rather than the exception. The simple act of presenting documents to a witness in a deposition is now an achievement, in and of itself. And in a deposition last week, we had to stop because a storm hit Austin where one lawyer was ... knocked out his internet.  There was also the witness who had a "helper" in the room (off-camera).  Regarding mediations, mediators report these are happening but that it is generally harder to close the deal.  It makes sense. 

Ours is an interpersonal business.  Our rules require presonally contronting parties and evidence and we also have juries who hear and decide cases. Juries look at the witnesses, size them up, and they handle (yes, physically handle) and review the evidence. Think about the dynamics of in-person communications as compared to all other forms.  Eighty (80) percent of communication is non-verbal. And seeing and interacting with a live human accomplishes this translation better. That is, face-to-face is the best way to get to the bottom of things, and that is what lawsuits are about. We can do remote hearings and depositions on some level, but in the end, we have to get back in front of courts and juries. And, oh, our rules of evidence and procedure require that we do.   

So, my trip back to court showed me that courts are ready and can put procedures in place to make this happen.  Let's spread juries out, sit them in the gallery, if need be.  Reconfigure the courtroom. Have people put masks on. Do what we need to do to keep our system of jusice running.  

Historically, lawyers have been statesmen and leaders in our culture. It is time to do that and be a part of getting back to normal. 

See you in court. 

We are still here, wherever "here" might be these days.  In this topsy-turvy world we are navigating through with the Coronavirus, a lot of things are being reevaluated. 

People talk about what is an "essential" service.  My own thought is that is a tough thing to define.  I mean, essential for whom? Is it essential for the proprietor to operate ... and pay his/her bills? What about for the customer who has a small window of opportunity for a particular endeavor? 

And what about us lawyers?  Well, I have my letter from the State Bar that says I am "essential," for what that is worth.  However, I think it is problematic for a government agency or professional organization to make such a call.  

My clients make that determination.  They call me if/when they need my services.  Those services are essential to these people and businesses.  

Thankfully, the calls are still coming in as our economy has been turned upside down to address the public health issue.  

And we are still here.  Just call or email ... and we will answer.  I am and have been doing as much as the courts and others will allow.  And I will keep doing so. 

Over the next couple of months, our courts are going to open back up and the signs of normalcy will begin to return. 

But in the meantime, we remain here for clients.  Service to them is essential. 

There will always be lawyers in a free society, at least.  As more and more of our lives is replaced and/or displaced by technology, perhaps you wonder about this statement. But, trust me ... we lawyers are here to stay.  Why?  

I am listening to Scott Adams' (the creator of Dilbert) book, How to Fail at Almost Everything and Still Win Big.  One of the principal takeaways is that Adams believes success comes mainly from working tried and true systems and acquiring needed skills.  And one of those needed skills is a working knowledge of psychology. To be sure, we lawyers, especially trial lawyers, are amateur psychologists.  Knowing people and dealing with them well is vital in virtually every case in myriad ways. 

In fact, just this past week I saw a lawyer blow up a site inspection due to his own impetulance and presumption.  He wasted a huge opportunity both to represent his client well and move the case toward resolution because he failed to understand what was happening in the moment and the people around him. 

And in this same week, I saw a client wrestling with a settlement proposal.  She had been confused and was negative as emails shot back and forth.  However, some personal contact, empathy, and understanding ... along with supplying accurate legal advice and information ... enabled her to understand and make a good decision.  

A computer could never do this, though our impersonal treatment of clients via technology could cost us many opportunities to serve them effectively. 
 

So, in the land of the free lawyers who understand and can relate to people shall remain ... for worse and for better too.  

This summer, we secured a defense verdict in an auto case in El Paso County; this result was imporant to our driver and his employer. The Plaintiffs' counsel was banking on a favorable venue to extract a settlement that my client was unwilling to pay. Our result became final as of November, so here are some thoughts/reminders/lessons learned from this experience: 

1) Facts and clients matter most.  Our driver presented well and made a great impression. We had good liability facts, plus a good defense on demages. Our corporate representative was prepared and testifed well (he was called by the Plaintiffs' counsel as the first witness, and we were prepared for this).  We called the police officer, who came across as sincere and extremely credible; 

2) Good experts matter. We won the battle of the experts, in my view.  Our expert conceded facts where needed, while the opposing expert was all too willing to be an advocate for the Plaintiffs. Hire the right people; 

3) Juries can be the great equalizer. I love juries.  The whole is greater than the sum of the parts, as they tend to catch pretty much everything. They evaluate the parties and the facts (see above) and their common sense is a blessing; and   

4) Assembling the right team is key.  Some cases call for additional staffing; this is based on the complexity of the issues, the amount in controversy, and the particular neeeds of the clietnt in question. Here, we brought in an additional paralegal to prepare for trial, and an appellate lawyer helped me prepare for important limine and jury charge issues.  We correctly anticipated that the trial court would be unfavorably disposed to our position on a number of issues.  The preparation paid off.  Being a small firm doesn't mean we are going to be out-gunned.  Quite the contrary.  We have the flexibiilty to bring in the resources needed on each case. 

It is always a privilege to walk with a client through a tough challenge.  And a good result is the ultimate payoff.  I am grateful we had the opportunity.   

... from the 32nd Annual Constuction Law Conference.  This is a great event.  The speakers are good, and the material is pertinent to those of us who practice Construction Law.  

The Legislative Update was interesting, per usual, and we wait and see what changes are coming down the pike.  The long-standing enigma of Texas Civil Practice and Remedies Code Section 38 ... that you can't recover attorney's fees when recovering for breach of contract against an LLC or partnership (huh?) ... could finally be fixed.  

There is also a serious, long overdue effort afoot to modernize Texas lien law and institute a web-based system instead.  

Homeowners beware:  There is another effort to shorten the Statute of Repose, specifically to bar all suits seven years after construction, regardless of when a homeowner discovered, or should have discovered the defect.  

Stay tuned and keep a sharp eye on Austin. 

These changes remind us that almost nothing is permanent in the legal world. So, prepare and seek counsel accordingly. 

In reviewing myriad home purchase agreements over the years, the question usually arises whether the particular agreement requires arbitration.  Oftentimes, the agreement to arbitrate is right in the home purchase agreement itself.  However, sometimes the builder in question will also offer a "Limited Warranty" to the homeowner and this warranty document will purportedly contain the agreement to arbitrate. 

When the agreement to arbitrate is contained within the Limited Warranty, it is usually suspect. Why? 

In short, the way that such Limited Warranties are typically presented and provided to homeowners makes it difficult to show that the homeowner had the opportunity to review and agree to such an arbitration agreement.  There are issues here both as to contract formation and, then, as to contract interpretation. 

For instance, if the agreement to arbitrate is contained in the Limited Warranty, is it signed?  If not, are there indicators that the homeowner agreed to arbitrate?  The answer to these questions is usually no.  Next, on a more practical level, such warrranties are typically provided to homeowners, if at all, during closing ... along with a blizzard of paper.  In addition, there is usually little or no evidence to establish the the homeowner was provided the warranty before the sale was consummated. 

The punchline: If your agreement to arbitrate is contained only within the Limited Warranty, the odds are you have no agreement to arbitrate.   

At this time of year, I tend to take stock on my blessings at home and at work.  It is hard to believe that we are coming up on seven years that I have been practicing here at RutLaw.  

All of this has been made possible by having the opportunity to serve clients by doing great legal work. And this starts with great clients. Years ago when I was first getting started as a civil trial lawyer, Don Wetzel said that he would walk across a bed of nails for his clients.  I remembered him saying that, and it stuck with me.  And now, I understand.  What we do is about serving clients.  Everything. 

Along the way, great staff and lawyers we have associated with on various cases have helped me to provide superior servie to our clients.  And I have settled on a great group of vendors, too, that both keep our costs low and provide us with the services we need to provide the services our clients need. 

There are a lot of folks behind the scenes that make this go.  I am grateful for them. 

Looking forward to a great 2019. 

We establised a beachhead in the new space at 2700 Research in April as buildout work has continued.  It is a beautiful space and yet very functional. The picture above shows the view from the conference room. 

With the new space, we retain our presence in Montgomery County along with the ability to continue to serve clients in the Houston area and throughout Texas.  

We are sharing space with Drucker Hopkins LLP.  This new office is ideal to enable us to serve our clients better.  

I am excited. 

Come by and see us.