Published in 2022 Texas Super Lawyers magazine
By Alison Macor on September 20, 2022
Twenty years ago, when boutique firms, flash drives and camera phones were a novelty, the first standalone Super Lawyers magazine was published, complete with a list of Texas’ top attorneys.
For this anniversary issue, we spoke with seven of the lawyers whose names have appeared on the list every single year. They told us how tort reform and the rise of mediation have changed how they practice, and why Zoom for law is here to stay. Some long for a return to more jury trials, and more kindness all around.
One thing that hasn’t changed? Change. Says Dallas attorney Frank Branson, “If you try lawsuits the way you did 20 years ago, you’re not nearly as likely to win. … Lawyers have to adapt.”
How has your practice changed in the last 20 years?
Charla Aldous, Aldous Walker, Personal Injury – General: Plaintiff, Dallas: In the late 1990s, I started my own firm and did mostly medical malpractice. But in 2003, when tort reform passed for medical malpractice, I really had to reinvent myself. I switched to doing more general personal injury work.
For a long time, I was a solo practitioner. Now we have four lawyers, one of whom I’m happy to say is my daughter, Eleanor Aldous. We’re a little more diverse in the types of cases we handle, and we also collaborate with other firms on occasion in areas of the law that are new to us.
Frank Branson, Law Offices of Frank L. Branson, Personal Injury – General: Plaintiff, Dallas: The last 20 years have been the most productive in the firm’s history. Then, 35% of our work was medical negligence. After tort reform, it’s 10 or 15% now. We’ve had seven-, eight- and nine-figure verdicts in business fraud cases, and train, plane and automobile cases.
Deborah Hankinson, Hankinson PLLC, Alternative Dispute Resolution, Dallas: When I left the Supreme Court of Texas at the end of 2002 and came back to Dallas, I was picking up a practice that I hadn’t done for a very long time. I did not set about to do dispute resolution. But then I got a phone call asking me to mediate a case. I said I didn’t know how to do that. They said, “You don’t practice law and be a judge as long as you did without knowing how to do this.”
I had a law firm with other lawyers, and they were working with me on large cases, so I really confined my ADR practice in those years to about 25% of my time. Around 2015, I realized it was time to make a shift. To me, ADR is a really important process. I found out early on that I valued the process even more than I thought. I quit taking appellate cases and let the ADR practice grow. It became 100% arbitration for me around 2018.
David Keltner, Kelly Hart & Hallman, Appellate, Fort Worth: Twenty years ago I was with Jose, Henry, Brantley & Keltner. That was a very small shop, and the rest of the lawyers did a lot of personal injury trial work. I’ve always done commercial appeals. They needed to get smaller and leaner as tort reform came in, and I needed 10 to 15 lawyers to run a robust appellate section.
It was around 2006 when I joined Kelly Hart. Doing appellate work, it’s important for me to be in a firm that has very few conflicts of interest. At Kelly Hart, we represent a number of wonderful clients, but they’re a lot of private equity people, which generally doesn’t create many conflicts. It was important for me to get someplace where I could look at the biggest cases and be involved in them, and fortunately that’s worked out.
Mark Lanier, The Lanier Law Firm, Class Action/Mass Torts: Plaintiff, Business Litigation, Houston: Twenty years ago, our firm was much smaller and we were only in Houston. Concentrated areas of our practice were asbestos, commercial litigation, and we did a lot of Jones Act offshore injury cases. Since then, we’ve added pharmaceutical litigation, extensive multi-district litigation, and we’ve expanded with offices in New York and Los Angeles.
Richard Mithoff, Mithoff Law Firm, Personal Injury – General: Plaintiff, Business Litigation, Houston: Twenty years ago, most of the referrals for new cases came from other lawyers or through some relationship—someone in their family was a lawyer, someone at their church was a lawyer, someone in their place of employment was a lawyer. Now, social media dominates so much of the process of making connections between those looking for a lawyer and the lawyer. It’s a far more impersonal relationship, and not a change for the better in my view.
John Zavitsanos, Ahmad, Zavitsanos & Mensing, Business Litigation, Houston: When we started out in 1993, I knew I wanted to be a trial lawyer in the same vein as the great trial lawyers who were in Houston in the 1970s and 1980s. This was back when you still tried [workers’] comp, and there were jury trials, and there were dockets at the big firms. I looked behind me and saw these young people coming up who had not tried any cases, and I didn’t like what I was seeing. I wanted to form a trial firm.
By the late 1990s, we were kind of known as employment lawyers. I sensed that it was the beginning of the end for plaintiff’s employment work. So Joe Ahmad and I decided to shed that label and we were going to become top-shelf commercial lawyers. We started courting, pretty aggressively, the very top students from the very top schools. At the start of our firm, my goal was to be viewed as one of the premier trial firms in the country within 20 or 25 years. And I think we’ve done that.
How has technology changed the way you work?
Keltner: In the early 2000s, we were mailing 50-page briefs into court instead of pushing a button and filing them instantaneously. The layout of briefs was completely different, too, because we didn’t have iPads and other notebook readers that appellate judges rely on now. In 2000, every lawyer had three phone numbers, maybe four. You had your office number, your mobile number, a car cellphone—you needed that because your mobile phone did not work well when moving—and your home phone. Now I think the majority of people I deal with have one phone, and it’s their mobile phone.
Zavitsanos: We used to be leery of anything computerized—I didn’t know who had access. I used to make jury notebooks with our best exhibits, and I would ask permission from the court to hand those out to each juror. In 2000 or so, we had a big commercial case, and the judge told us, “This trial is paperless.” I thought I was going to melt down. But my legal assistant walked me through a couple of weeks of training, and I fell in love with it. The biggest benefit is the ability to control exactly what piece of evidence gets shown to the jury.
Branson: We have a videographer, a medical artist and a nurse on staff. Probably about 20 years ago, we added an IT person. There’s been tremendous progress in what the medical artist can do—for example, taking 3D images of a broken head or a broken spine and creating a digital model. Twenty years ago, we would have a doctor verbally testify to assess the accuracy of the representation of a brain or spine injury. Now, we still have the doctor’s testimony, but we can also reproduce from CT scans an exact model of what occurred.
Lanier: It’s a tool, but it’s not something for show-and-tell. I had a reputation for using electronics and ELMOs [presentation device] so much, I got an email from a company in Japan about a new document camera called an IPEVO. They sent it to me and I tried it, and it blew the ELMO away. I also started a few years ago doing three-camera depositions, with cameras on me, the witness, and on the documents that I’m using. I have a TV director who goes through three independent camera feeds and cuts together the ultimate video for the jury. It captures their interest 500% more than a normal video.
Aldous: I have come to love Zoom depositions. I can spread out at my office, have my team there with me. It’s just so much more efficient. I also really enjoy Zoom mediation, but I don’t want to have anything to do with Zoom jury trials. I only want to do those in person. We do quite a few sexual abuse cases, and if I’m taking the deposition of the perpetrator, I’d rather be in the room with them, mainly so they can feel my anger.
Hankinson: Zoom as a tool for mediation works well. You can do breakout groups and you can bring people together and you can re-group people. And I find the parties themselves tend to be more active on Zoom, engaging with me directly rather than just through their attorneys. I’m not a psychologist, so I don’t know why that is, but there’s more autonomy.
Mithoff: I’ve certainly been drawn kicking and screaming into the Zoom era. It has some benefits for handling short hearings of no more than 10 minutes. But I have just avoided trying cases where I have to do so with a mask on. You can’t get a read on someone. Those who try cases know that you have to read expressions, read faces, be able to interact and, even more than that, have a feeling. Every lawyer knows the feeling when something’s going right, and when something’s falling flat. You can feel it. There’s no way to have that gut instinct on Zoom.
Let’s talk about diversity …
Aldous: Twenty-five or thirty years ago, I was at a hearing in Hunt County. That’s when they would call all the hearings at one time during the day. I looked into the room and saw a bunch of white men. There was one Black man, and that was Dallas trial lawyer E. Leon Carter; and there was one woman, and that was me. I walked over and said, “Looks like I need to hang out with you.” And we’ve been friends since.
Keltner: The best thing that has happened to the practice of law in my 45 years as an attorney has been women. The intellectual power of women is significantly better. What I see is this: We need to have the profession mirror what the makeup of the population of Texas is, and that’s increasingly diverse.
Branson: When the jury rolls changed from using property records to using driver’s licenses, that made a dramatic difference in juries. It makes a difference if the jury panel looks like your client.
Lanier: I think issues like sexual orientation have certain limits that are set down by public perception. Two of the women I represented in a recent case were both in lesbian relationships. I didn’t feel I needed to hide it from the jury. I think maybe 20 years ago that would have been a lot more difficult to do.
Zavitsanos: The courts lay down important rulings like the expansion of Title VII to include things like pregnancy, sexual orientation and so on. A few years later, the conventional thinking, particularly in law firms, goes from grudging acknowledgment of these rulings to an embrace of these rulings. I think most mainline law firms are very sensitive to those issues. So the court lays the path, and then society’s attitudes catch up.
Mithoff: I was trying a medical malpractice case many years ago, and the lawyer for one of the defendants was representing a doctor who had come to the U.S. from another country. He had a heavy accent. I came in thinking it was an advantage for me, but the lawyer representing this young doctor did a very effective job by defusing all that. He told the jury right up front, “My client does not speak English very well. He’s going to sound different than you and I. And there may be some of you who hold that against him.” By that simple exchange, he was able not only to inoculate the jury so it was never a factor, but imbue them with a sense that it was part of their obligation as jurors.
Hankinson: I had a Hispanic woman say to me—she’s one of the most positive people I know, but she said to me—“Sometimes I just get tired. It’s hard.” And this is someone who is really respected professionally and is very successful in the legal field. I can’t judge that comment, except to say she wouldn’t say it unless that was what she experienced.
Certainly the bench is more diverse, but is it diverse enough? It’s 2022 and we have the first Black woman on the Supreme Court of the United States. I think it’s a huge step forward, but it’s just one step forward.
What are your thoughts on the future of law?
Aldous: What I’m most concerned about is the move to arbitration as opposed to jury trials. The big companies have arbitration clauses in all agreements, which bind someone to arbitrate a case as opposed to having it decided by a jury of their peers. I’m also concerned about tort reform, and the state legislators are making it more difficult for people to truly have their day in court.
Zavitsanos: There’s nothing more beautiful to me than having 12 random people that you are never going to see again—who are getting paid $35 a day—that are there for one defined period of time to try and reach a decision that is just and is best, and is really based on the evidence.
Lanier: I think the international scene is going to be expansive. Before the end of 2022, the Lanier Law Firm will open a law office in Manchester, England, as a plaintiff’s firm. Defense firms have done that for decades, but I think the advent of plaintiff’s practice overseas is going to really expand.
Branson: It’s hard coming off two years of the pandemic. It’s nobody’s fault, but you just [couldn’t] get cases tried. But as a general rule, the courthouse is more open to injury victims. I’m very positive in my attitude toward the future. I think juries have become more open, and the process has become more open.
Mithoff: If you really are up front with the jury about what they’re going to see and what they’re going to hear, and ask them straight up whether or not that will pose a problem, most jurors take all that very seriously. It’s an amazing process to watch.
Hankinson: I hope that we can find our way back to more kindness. I have not lost confidence and faith in people that we can be more kind to each other.
Keltner: Lawyers are more curious and open to changes than most people. They’re not scientists who see one right answer. If the rule of law requires that all citizens be treated the same—and it does—the law is the place to get that stuff done.
Why I Like Practicing in My Hometown
Aldous: Dallas has a wonderful legal community. It’s like family to me. When I go to the courthouse, seeing the same people like the court coordinators and the bailiffs, it’s a sense of being somewhere I belong.
Branson: When I began practicing in Dallas in 1969, the city had a reputation of being just right of Attila the Hun in terms of victims being able to make a recovery. I think that’s changed. I’d just as soon try a case in Dallas as any place in the state because of the changes in the way juries are selected and a change in the judges. For the most part, we have an outstanding judiciary in Dallas, both at the trial level and at the Dallas 5th Court of Appeals.
Hankinson: I like the lawyers who practice in Dallas and those whom I worked with along the way—those who were senior to me, those who were my peers, and then those who are coming behind me. It’s a collegial community, and it has been important to me.
Keltner: In Fort Worth, we have the best of every world. The trial lawyers tend to get along fairly well. It does not have the merger and acquisition case issues that Houston does, and it doesn’t have the financial issues that Dallas does, but you know what? You don’t have to be in Dallas or Houston. In four hours, I can be almost anywhere.
Lanier: Houston’s got good judges and good juries. We are in the Central U.S., so I can practice in Houston but I can be in Florida in two hours. I can be in New York in three. I can be in D.C. I can be in L.A. And that means, if I’m trying a case from somewhere else, I can get home to Houston on the weekends.
Mithoff: I think trial lawyers in Houston are, by and large, some of the best in the country. I’ve been able to learn a lot just by association with counsel. I like small towns, but I do like practicing in Houston.
Zavitsanos: The reality is that Houston is such an ugly city, there have to be other things to make you love it. Even though Houston is the fourth-largest city in the country now, it feels like I’m in a small town. We have six or seven firms here that I consider our competitors: We go after the same law students, we chase the same cases, we have cases against each other all the time. I know everyone at those firms, and it’s like a little community. It makes me look forward to coming to work each day.
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