Mistakes to Avoid in Jury Selection

Last week I had my first post-Covid jury trial. This included getting to do one of the funnest things a litigator does: jury selection, also known as voir dire.

It’s funny. In real life I really don’t care much about other people’s opinions on controversial issues. This may sound harsh, but the cold reality is that most people’s opinions are ill-informed and based on bias and prejudice.

On the other hand, I love standing in front of a panel of potential jurors and talking with them about their attitudes about controversial issues. And sometimes they surprise me with how savvy and educated they are.

The case I tried last week is still pending, so I’m not going to comment on any case-specific issues, but it did get me thinking about some common mistakes that lawyers make in jury selection, which I will now share, because that’s what we do at Five Minute Law.

1. Focusing too much on the people you want

When lawyers start planning for jury selection, it’s natural to start by thinking about the kind of people they want on the jury. That’s fine, but it’s more useful to think about the people you don’t want. There are a couple reasons for this.

First, the way jury selection works. The lawyers don’t get to pick the panel members they want on the jury. We only get to decide on the people we don’t want.

We can try to get rid of these people either through a challenge for cause (e.g. a person who knows one of the parties or says he could never award punitive damages), or a peremptory strike (which can be used for almost any reason). There is no procedure for keeping the people you want.

That brings up the second, related point: the opposing lawyers are likely to strike anybody who is really good for you. This is obvious, but still a point some lawyers with less trial experience may not fully appreciate.

Here’s the thing. If you spend your time bringing out the views of a potential juror who has views favorable to your case, you may just be helping your adversary identify someone they need to strike.

I’ll give you an example. Because I’m a glutton for punishment, I once represented a homeowners association in a jury trial in Texas. There was a guy on the panel we called “the Colonel.” He was great for us: older white man, retired military, had even served on his own HOA board.

Guess what? The lawyer for the guy we were suing struck him. Like I said, don’t focus too much on who you want. Your main job is to figure out who is going to be bad for your case and to get rid of those people.

2. Focusing too much on argument

Voir dire is hard because you’re not allowed to argue the facts of the case, which goes against all your instincts as a trial lawyer. Judges vary on how much they will let you talk about the facts, but very few, if any, are going to let you treat jury selection like a preview of your closing argument. If you take that approach, you will probably get shut down.

But that’s ok. Your main assignment in jury selection is to get the best jury you can for your case. You’ll get to argue later.

On the other hand . . . it’s never too early to start laying the groundwork for the themes you plan to develop in the trial. If you focus exclusively on identifying the jurors you don’t want, you will miss an opportunity to frame the issues in the case. And in many cases, the way you frame the issue is everything.

That means the best trial lawyers will use voir dire to accomplish both tasks. This is hard to do, but it can be done.

Here’s an example from a case I tried to a jury involving non-compete and trade secrets claims, the focus of my practice. I asked the jury if they agreed with the following statement: “if you sign a non-compete agreement, you should follow it even if the law says you don’t have to.”

My goal with this question was twofold. First, I was representing the defendants, so I wanted to identify the people who felt strongly that you should comply with anything you sign, even if it’s legally unenforceable. Second, I wanted to introduce the idea that my clients may have had a good reason for breaching their non-competes.

As you might expect, there were a lot of people who strongly agreed that you should follow an agreement you signed, regardless. “Your word is your bond” and all that.

Once I identified those people, I turned to the people who disagreed. One was a lawyer. (You can usually expect to get at least one or two lawyers on a panel, depending on the venue). The other was a history professor.

I asked them why they disagreed. This turned them into advocates for one of my key themes: there are some kinds of agreements that people shouldn’t have to follow because they are legally unenforceable. As they explained why, you could just feel the energy in the room change as people started to change their minds just a little.

In the process, I introduced what I’ll call a meta-theme: the more general idea that there are always two sides to a story or argument. Coming from the defense side, I wanted to get the people on the panel thinking about how you shouldn’t jump to a conclusion without hearing the whole story.

3. Wasting time on “can you be fair?”

Still, you are always going to get some people who just won’t budge on their preconceived notions. What do you say to those people?

Here’s a typical exchange:

“Mr. Green, you said you would hold it against someone who broke an agreement they signed, is that right?”

“Yes, sir, I feel strongly about that.”

“If the evidence shows that my clients broke an agreement, do you think you can still be fair?”

“Well, I won’t like it, but I can still be fair.”

“Can you listen to the evidence and not make up your mind until you’ve heard all the evidence.”

“Yes.”

What did the lawyer accomplish here? Not much. The problem is that when you ask someone “can you be fair?” the answer will almost always be yes (unless they are just blatantly trying to get struck from the jury). It’s almost like asking someone “do you have racist attitudes that will prejudice you against my client?” What do you think they’re going to say?

So don’t waste too much time on “can you be fair.” Instead, ask the people why they feel that way, and get them talking (more about that later).

Still, the “can you be fair” kind of questioning is appropriate for another purpose: rehabilitation. For example, let’s say the plaintiff’s lawyer asks “does anybody have a problem with punitive damages” and Juror 23 says “I don’t like the idea of punitive damages, it really bothers me.”

In that case, if you’re on the defense side and you don’t want that juror struck for cause, you may need to do some rehabilitation. Something like, “Ms. Brown, even though you don’t like punitive damages, could you listen to the evidence and at least consider them, if they’re supported by the evidence?” If she says yes, you may avoid a strike for cause.

4. Neglecting the third and fourth rows

Here’s a scenario I’m sure you’ve experienced if you’re a trial lawyer. You huddle with your team after voir dire, furiously going over the things you remember people saying. “We’ve got to get rid of number 13, she said she hates insurance companies!” “Ok, but what about number 17, did you see the way she was smiling at opposing counsel?” Etc.

Then a funny thing will happen. After both sides make their strikes, the judge will announce who is on the jury. And in most cases there will be 3-5 people on the jury who barely said a word.

The silent killers. The bane of trial lawyers everywhere.

These are the people who never spoke up. And in many cases, they will be people who were not sitting in the first couple rows.

Depending on the size of your jury panel, you probably don’t need to spend a lot of time talking to the back row. Let’s say you’ve got 48 people on your panel, six peremptory strikes per side, and you expect 2-4 strikes for cause. That means it’s very unlikely anybody on the very back row will make it on to the jury.

But people on that third row definitely have a shot, so don’t forget to make sure you try to ask each one of them something, so at least you get them talking.

And that brings us to the top thing lawyers do wrong in jury selection.

5. Doing most of the talking

The cardinal sin of voir dire is doing too much of the talking. Yet this is something a lot of lawyers do, even when they’re highly experienced. In fact, lawyers who know a lot about their practice area may be even more guilty of this.

It’s not effective. For one thing, if you do too much talking, you’re not going to get the people on the panel talking. Short, clipped answers—“yes, I can be fair”—are not going to tell you much about how a potential juror feels about the key issues in your case.

A less obvious reason to get the people talking is to start building goodwill with the jury. So, ask them open-ended questions, and then follow up and ask them to explain their answers.

You want to show them that you care about what they have to say. And the best way to do that is to actually care about what they have to say.

Bonus

That brings up my bonus mistake: not being real.

I once attended a church service where a guest pastor began his sermon by saying something like, “can I just be real with y’all, or do I have to stick with church talk?” I think about that a lot when I think about jury selection.

I think the best way to come across as genuine and honest about what you’re doing as a lawyer is to be genuine and honest.

This can be difficult. We come into the process with so much baggage, so much “conventional wisdom” about how a lawyer is supposed to talk and act.

I say throw all that out and focus on being real. I think this is even more important today, when people on the jury are savvier about how litigation works than past generations. Depending on age, they’ve watched the OJ trial. They’ve seen Court TV. They’ve watched a lot of Law and Order. They’ve seen tons of cheesy commercials and billboards for personal injury lawyers.

The result is that they come into the courtroom fairly skeptical about what the lawyers are up to. They’re just not going to go for some of the old clichés that worked for trial lawyers of yesteryear.

I will concede this can vary considerably depending on the venue and the education level of the jury, but overall, I think juries today are more conditioned to expect that the lawyers are “putting on a show.”

That makes it more important than ever to be yourself. Even if that means using a word that doesn’t exist, like “funnest.”

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Zach Wolfe (zach@zachwolfelaw.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm. Thomson Reuters named him a Texas “Super Lawyer”® for Business Litigation in 2020 and 2021.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

“Easy Like Monday Morning”: Five Minute Law Interviews Rachel Vindman

This is an edited transcript of my interview with Rachel Vindman, co-host of the podcast The Suburban Women Problem, wife of the author of the New York Times bestseller Here Right Matters, and Lionel Richie enthusiast.

Zach Wolfe: I am super excited to be joined today by Rachel Vindman. Welcome, Rachel.

Rachel Vindman: Thank you for having me. It’s my pleasure, Zach.

ZW: I just listened to your fourth podcast. Tell people what the podcast is called.

RV: The podcast is called The Suburban Women Problem. And it’s a bit of a play on Lindsey Graham saying that the GOP has a real suburban women problem, which I agree with him. I don’t agree with him on a lot, but I agree with him on that. We try to talk to regular people, and maybe a little people who are better known, but we try to talk about issues affecting women, and not just women in the suburbs, urban women as well, but just women everywhere.

I like to say women know what problems we have. We actually have some pretty good ideas about solving them. We don’t need people to talk at us, but we just need policymakers to recognize those problems and to work with us, to figure out how to solve them. But women are natural problem solvers. So I think this is not much of a stretch.

And I have to say the fourth episode when I got to talk to Connie Schultz was a true delight and honor, and one of my favorite ones so far.

ZW: Yeah, I enjoyed it. It was probably also my favorite so far. I definitely recommend the podcast to people, and really, whatever your political views are, I think you would get something out of it. Now my blog and my YouTube channel, where I like to share these interviews, I don’t get very political. It’s a little more law related, but when I had the chance to possibly get Rachel Vindman on my show, I could not pass it up. So thank you for agreeing to talk with me. Let me ask you this: Why does the world need another podcast?

RV: That’s a really good question. I’m not sure that I have an answer. I am a big consumer of podcasts, so I’m a big fan.

I started listening to podcasts, I guess, more like NPR programs, some podcasts where I live overseas, and the convenience of it is huge because you can just listen to any show that you miss at any other time. So I am always listening to a podcast, if I’m cooking and if I got my earbuds in and I’m just doing work around the house, I listen to a tremendous number of podcasts.

I think that ours, The Suburban Woman Problem, really is special because it’s for women and by women. We try to talk about issues that you might discuss with your friends. We try to talk about things that are going on, but the listener might not have a direct connection to.

RV: So we’ve talked to the mom of a trans child. We talked to a woman who lost her sister to Q Anon. And those are things that we hear about, but we might not necessarily know someone in our neighborhood or our social groups.

I think it’s important to hear these stories firsthand, to have some empathy, to realize we’re getting a lot of information from different sources on the subjects, but to talk to someone firsthand is a lot different. Particularly on the trans issue, because it’s something with which I have no experience. And I don’t know anything about this subject. It’s confusing to me, as a lot of unknown things are, but a lot of things exist in spaces that I know nothing about, but I can relate because I’m a mom and I have a child.

RV: So I might not know the answers, but I do know that we need to treat people with dignity and respect. We don’t need to discriminate. We need to just hear a regular mom, in her words, describe her child. And that really humanizes something.

You can agree or disagree with a lot of things, but if we’re going to move forward and we’re going to heal as a nation, we really need to come together and listen to others. And I hope that’s something that our podcast does, to teach people to listen and be respectful, even if your view is different.

ZW: I like how, when you listened to the podcast, you kind of feel like it’s just three moms who know each other talking, it just happens to be three moms who are super smart and in kind of high-profile positions. It’s great. Now, let me ask you this. We hear the word “suburban” in politics all the time, and I’ve started to wonder what does suburban even mean today? What does suburban mean to you?

RV: For me, for where I live in Northern Virginia, suburban is the area where I can drive around. It’s less on foot, and it’s more people driving around. Where we live, the Metro doesn’t come out this far. So this is not any kind of definition that you will find in any sort of book or anything. I learned this reading Michelle Obama’s book, that I was woefully uneducated on how the suburbs got started. And I grew up in a suburb of Oklahoma City. I didn’t realize it was basically people leaving urban areas.

Where we are, I think the suburban DC area is a huge sprawl and it encompasses more area than even the urban areas of DC. Some of those places like Alexandria and closer are places where it’s impossible, if your child had an after-school activity, you would be better taking the Metro than trying to drive and finding a place to park, even in what is classified as the suburban area. Where we live, we chose our house sight unseen when we lived in Moscow. The schools were good, it was drivable, and the price was good.

But in terms of demographics, I think we have sort of a generational difference in defining the suburbs. I think President Trump viewed the suburbs in a very 1950s view that just really doesn’t exist anymore. Certainly not where I am. My county is majority minority. It’s not where I grew up, in Edmond, Oklahoma. There’s a lot of factors that come into play, but it’s definitely not a homogenous, whites only, the moms stay home and wear dresses and pearls, and the dad’s going to work with a briefcase and a white shirt and tie. So that’s not what it is, but what it is now is ever evolving and changing.

ZW: My daughter just finished her first year of college at the University of Central Oklahoma, so I was just in Edmond recently. Tell us a little bit about growing up in Edmond, Oklahoma. What was that like?

RV: It was pretty idyllic, I think in a lot of ways. My father’s family came in the land run of 1889 from Iowa, and their family settled just north of Oklahoma City, what’s currently Edmond. My mother’s family, part of them came actually in the Trail of Tears, from the east, the Georgia area, Chickasaw nation. So those are the two sides, my mom and my dad, and of course there’s nuances within both of them. Although I grew up in the suburbs, I had rural roots on each side, just one generation away. All four of my grandparents grew up in the Depression. One grew up in a town, but the other three, grew up on farms, quite poor. But they managed to go to college, at least two of them, and my grandfathers were involved in World War II and the army. And through that, were able to get government jobs or good jobs and really be part of that greatest generation and what was spurred on by that war.

So when I grew up in Edmond, I was the third generation to attend high school at that time. I graduated from high school in Edmond, and I have a brother who still lives there, and his children live there. It was a small town where my family name meant something. It still does. That gave me a huge sense of responsibility and everything that carries. I think a lot of people who grew up in smaller towns can relate to that. It’s a big thing for me now in our new newfound life and fame.

But even before, just when I was Alex’s wife. And I know some people don’t like that I’m introduced or known as Alex’s wife, but frankly, I’m very proud of that, and I always have been, even before any of this, when I was married to Captain Vindman and Major Vindman, before he was a Lieutenant Colonel, that was my identity. And I’m proud of that.

But I think growing up, with my family name, it gave me that sense of importance. I went to college in Oklahoma and I studied education. I ended up leaving when I was 24, but it’s also given me a great perspective from where I am now in this national moment that’s happening, because I understand Oklahoma, I understand the small town, I understand the struggles.

I also understand that the way of life that they might yearn for was not good and equal for everyone. That’s something I’m still learning at 47, but we still need to listen to each other. We still need to listen to each other’s stories and understand that not everyone felt equal, not everyone was equal. And that’s just fact. It’s hard to face that and learn it and understand it, but I appreciate my background and the understanding that it’s been able to give me to where we are today and how I can best use the voice that I have now to reach people.

ZW: Well, you already answered one of my questions that I had planned, but maybe you can elaborate on it. Let me preface this by saying, just to give an example, when I told my wife who I was interviewing today, I said, it’s Rachel Vindman, you remember Alex Vindman who testified to Congress? Like I had to explain that, and then she’s like, okay, I know who that is. And I was wondering, does that ever bother you, that you’re known as so-and-so’s spouse, even though you’ve got your own accomplishments and views and experiences, and as you said, you’re proud, but did it ever bother you to kind of be sort of compartmentalized that way?

RV: It really doesn’t. It bothers other people for me, and I completely appreciate that. I think you can follow wherever you are on the spectrum and still be right, because it’s a personal decision and a personal choice. But again, it does really bother other people. In the podcast with Connie Schultz, she talked about this, and I can totally identify with what she said, and I absolutely got it. It’s just that I was kind of going down one path and I met Alex and right after we got married, we moved to Germany and I really couldn’t work. And we literally moved every year. So even if I got a job on a base, it was, it wouldn’t have been something that I could have gone to another place.

RV: And for military spouses, it takes a time to get a job at a new place. If we were in Germany, we were in very small bases, so just not a lot of employment opportunity. In addition to that, I’ve shared a little bit, we were really facing infertility and struggles with starting a family. So there’s a lot of time and energy devoted to that as well. So it just didn’t happen. I think if I had more professional identity, this would be more of an issue to me. I just haven’t. Maybe I’m creating one now. Life comes at you fast sometimes, and you just gotta take it wherever it leads you. But I think being Alex’s wife, it’s obviously the most important relationship in my life, and it is a huge part of my identity. So I don’t mind being known as that. I hope my accomplishments and what I do speak for themselves, but no, it doesn’t really bother me.

ZW: I see. Well, in a few years, maybe when Alex meets somebody, they’ll be like, oh, are you that podcaster’s husband?

RV: It’s funny. He just was joking about that this morning, and I think his description on Twitter actually says like, Rachel or @natsechobbyist, that’s my name on Twitter. He was like, that he’s my husband.

ZW: That’s great. Well, also I noticed on your bio, it says something about foreign policy chops.

RV: I have none.

ZW: What does that mean?

RV: I don’t think I have any foreign policy chops, so I have to go back and look at my bio, but I need to be clear that I have no foreign policy chops. In Russia I worked at a Russian kindergarten, and I learned a lot about, I wouldn’t say everyday Russians, because most of the parents were very wealthy Russians or aspiring middle class who wanted their children to learn English. But I learned a lot about the Russian psyche and culture, and I don’t mean that in a bad way. It was just a fascinating insight.

I’ve lived in countries as a diplomat, and I’ve lived as just a regular ex-pat not connected to an embassy or consulate. It’s much more sanitized when you are a diplomat, because your activities, you have less to deal with the local nationals. But I love to travel and meet other people and learn about other cultures. So it was definitely a way for me to do that and was really fascinating.

Everything I know is just sort of self-taught. But to that end, I must say Zach, that I think everyone, even if they don’t study foreign policy or national security at a really high academic level, that you can teach yourself, you can engage and learn and you don’t have to attend an elite academic institution to be able to weigh in and discuss these issues intelligently.

ZW: Right. I mean if you had to choose between living in Russia for a year versus reading about Russia for a year in an American university, I mean, that’s a pretty easy choice. So from your time living in Russia, what would you say the average American doesn’t really get about what Russian life is like?

RV: The holdover from communism. They’re not a communist country. Vladimir Putin is not a communist, despite what people may have heard. Senator Ted Cruz recently said that Vladimir Putin was a communist. He is not.

They’re not sure what they are, but we take for granted democracy, we take for granted the freedoms we have, particularly free speech. Even today. Russians will self-censor themselves. There’s still the mentality that people are listening and watching. And I say that even for generations that are much younger than me.

RV: We had a young Russian nanny, and I think she was born in the early 90s during a very turbulent time, actually in Russian history. And she never expressed this to me, but it’s something they were taught. They were taught from a young age. When I see people idolize Russia, when I see them talk about Russian society and oddly enough, sort of celebrate Vladimir Putin, which is very bizarre to me, I think that’s the part that they missed. They just simply do not understand what it’s like to live in an authoritarian country. And, and I don’t understand it either because I’ve never lived without that passport that says diplomat, which gets you out of any number of issues. So I don’t know what that’s like either, but the number one thing is our First Amendment rights, and I think a lot of Americans just have no idea the freedom that that gives us.

ZW: You also spent some time living in Israel, I understand. What was that like?

RV: I lived there for three years. I was with the Southern Baptist Convention. I grew up evangelical and I worked with them. I did work with helping teach English classes to women. There were a number of summer camps, and I worked at a camp conference center and helped facilitate those events.

Living in Israel was a wonderful, positive experience. What it taught me more than anything else was that people are more alike than different. I had Israeli friends, I had Palestinian friends, and they all wanted the same thing. I was there before and during the second Intifada.

I also realized because it’s such a small country, and the Palestinian national authority is also very small in numbers, so a lot of recurring characters, and you could really see on such a small level, how often politics is perverted from maybe people truly wanting to make a difference to then understanding and appreciating their power and it becomes something, and maybe they’re lying to themselves, but it becomes very self-serving. What might start out as very pure for a lot of people can quickly turn into something else, and I’m going to give them the benefit of the doubt and say, they don’t even realize it’s happening. They delude themselves into thinking that them being there is a bulwark, that it’s a stop-gap and no one else could do what they do, but it happens everywhere. Seeing it there on that level, I think was an eye-opening experience.

But on the regular everyday people, I saw them as victims of the extremists on each side that would keep them from really having meaningful conversations and making meaningful, lasting peace. Because again, I think in so many ways, the politicians and the extremists had all the motivation in the world to prevent that from happening. And I see that in our country as well. People on both sides have created a market for what they’re selling, and they have convinced people that they have to fight this fight that they have to continue the struggle that they alone have created, and it’s really disappointing, but it’s easy to do.

ZW: Considering what you experienced when you lived in Israel, and this is a tough question, obviously, but do you think there’s a solution to the Israeli-Palestinian conflict?

RV: I don’t know what it would be. I think there is, but there is so much hurt and distrust. I’m going to sound like Jared Kushner. I’ve read a lot of books on the subject. I like to read people’s memoirs, and even though I know that memoirs are biased by any stretch of the imagination, but it’s interesting just to get people’s perspective, even if it is their bias. I particularly recommend Ehud Barak’s biography because he’s more of a centrist and had a fascinating life, by any account, but really tried.

I just don’t know. A two-state solution, I get it, but what’s confusing to me is Palestinians don’t even have their own currency, so there’s just a lot of steps that need to be made to make it happen.

I don’t want to misstep and misspeak on the subject because I’m just not an expert, but I will say that in order for there to be lasting peace in Israel and Palestine, what really needs to happen is to recognize that both sides are made up of human beings. And again, it goes back to the dignity and respect. And I saw that in individuals. It’s a misconception to think all Israelis are far right people who live on settlements, and all Palestinians are members of Hamas, because reality is so, so different.

RV: Even our own politicians are trying to feed both narratives. Common sense tells us that’s not true. Many U.S. presidents have tried to work on this, but I don’t know what the answer is. I do think there probably is an answer, but it’s going to take great concessions on each part. And there’s so much hurt and anger and years of turmoil, it’s really hard to get around it. But I remain hopeful because I think youth oftentimes are that catalyst, that they can just see things in a different way. And maybe you look beyond the hurt and the years, and just say, we need to look forward and not to the past. So the biggest hope I would say is in the future, and then the youth to try to make something lasting.

ZW: Well, I threw an almost impossible question at you, and you actually gave a really good answer, I think, but let me give you an easier one. You mentioned books, and I know you love to read. Do you have any book recommendations for us, something you’ve been reading lately?

RV: I said recently on Twitter, the book that if anyone asks me for a recommendation lately, I suggest Jesus and John Wayne, a book that I read early this year. I think it came out in 2020. It is just absolutely fascinating. If you grew up in an evangelical culture, or even if you weren’t part of that, if you were just surrounded by evangelical culture, I think for those people, they’ll definitely relate to the book. I think people who did not grow up in that environment can understand something, a segment of our population, our culture that has a huge impact on today’s Republican Party. So I think it’s a way to understand it better, but it’s just a fascinating well-researched book that explains a lot, it articulates a lot of thoughts and feelings, it’s a very well done and well researched book.

And I recently read How the South Really Won the Civil War by Heather Cox Richardson, who was another person that I spoke to on the podcast. That is a fascinating book as well. I do read fiction, but what sticks with me most is non-fiction. I’m trying to learn about things.

Another great book is Robert Lee and Me by Ty Seidule, who was head of History at West Point. He describes his very complicated relationship with Robert E. Lee and what he was taught. It caused me to have a conversation with my husband, and when he was like, how could anyone believe that? I said, well, you grew up in New York City. You were probably never taught as I was. I distinctly remember a teacher saying this to me. “Well, slave owners didn’t treat their slaves poorly. They treated them very well.” That was literally something that was said to me, and my husband, I don’t even know if he believes me. He still thinks it’s just ridiculous, but I promise it happened, and these are the themes, I think in so many parts of our country, people just don’t realize, and it happened. I never would’ve thought about that had I not read this book. It was something that happened to me so many years ago. I wouldn’t even remember it, but you hear it and it’s in your brain forever. Whether you dismiss it or accept it, it’s there, and you have to at some point reconcile with it and face it.

The Daughters of Erietown by Connie Schultz was also a fabulous book. I try to read one to two books a, a week, and it’s kind of my saving grace, that and podcasts. You’re probably thinking that I ignore my family, but we spent a lot of time together in the past year.

ZW: No, I wasn’t thinking that at all. Those were some good recommendations. You mentioned Twitter, and I think that’s actually how I connected with you.

RV: Yeah.

ZW: So what made you decide to get on Twitter and to be active, especially considering that you must have known you were going to get attacked, right? So what was your thought process there?

RV: I was always on Twitter, and then the first day Alex testified, I shut down my Twitter. It was not with my real name, but I got pretty freaked out and I think I closed that account. And then I got back on Twitter anonymously.

Last summer Benjamin Wittes said something. I didn’t necessarily try to. At some point I stopped hiding who I was, but I didn’t announce it. Some people figured it out, but not many people. It was mostly to read what other people were saying. I think the benefit of having a curated feed on Twitter is the algorithm figures out what you want to see and what you don’t want to see, so it made for a more enjoyable experience by having an account and following people. But then Benjamin Wittes outed me, which was fine. And I gained quite a few followers then, and I still stayed relatively anonymous. I spoke out as I could.

RV: I did not have a verified account with my name until I did the CNN interview with Brianna Keeler, which was after we did the Lincoln Project ad in October. And the reason for doing that ad was that after the “suckers and losers” comment article came out by Jeffrey Goldberg and The Atlantic, Alex had a conversation with him, and I remember he came in and told me, his family has gotten death threats, he’s had to relocate them temporarily. It really hit me, because we had been there not too long before. And I was like, I’m done. You’re out of the military now, we can speak out about this.

I understand why journalists like Jeffrey Goldberg don’t want to become part of the story. But as I’ve said many times, when you have a group of people who are playing by one set of rules, an established set of rules, and then you have a group that’s like, “nothing is off limits, everything is on the table, the gloves are off,” it’s really hard. So, it’s not a fair fight, and people should hear what this has done to families, and that it’s going to continue. We were normal people. I know my husband worked at the White House and people might not see that as normal, but it felt normal to us. It’s what he had worked for his whole career, was to do that and to be in service.

And then things just got really crazy, and Jeffrey Goldberg is reporting a story. Did he go and seek the story out? I suspect it was a comment that was made to him, and he wrote the story. I don’t think he went and asked people, “did the president ever call people suckers and losers”? That’s not how he does journalism. So all that’s to say, once I did that, we came out, we had a tremendous amount of support. Of course, we have a lot of people who hate us, and it’s a free country, you can, but I enjoy engaging with supporters because they’re just really kind, and I want people to know how much it has meant to us. It truly has sustained us. It truly has buoyed us. And so it’s important to me for that.

And then it’s a fun community. It can go to a really dark place. I think you have to know your limits on social media. I think it’s taught me a lot about social media and children. You said you have a daughter who just finished her first year at UCO. So you’re probably intimately aware of social media, teens and adolescents, and the effects of that. My daughter’s only ten, so it is not an issue that we have faced yet, but it’s taught me a lot about setting limits and how I view social media and just internet usage for her or in general. But with the proper limits, it can be fine. I think it can be encouraging to people, especially people who may live in a place where they are different politically and have different views than a lot of the people around them. They can connect with others and not feel so alone. So I think social media is good for that purpose. We can also be bad, and everyone needs to be careful with them.

ZW: I enjoy reading your tweets and also reading what people tweet to you. Here’s one, “are you the Ukraine whistleblower traitor’s wife?” You should tell her, “hey, I’m not just his wife. I have a podcast.”

RV: Yeah, I know, people gave me some really good things that I could have said, after the fact. And I was like, oh, I really missed an opportunity there.

ZW: My question is, and you and Connie Schultz talked about this a little bit, but what is your strategy for dealing with the trolls on Twitter?

RV: Well, Connie is much better, and as you can see, I did not take the high road on that, on my response to that tweet, which I probably should have. Sometimes the urge to be snarky is very strong, but as Connie said, they want access, they want a reaction. So it is better if you can block them and not give them that. And I have been exercising that a lot more. I just spoke with Connie last week, but even prior to that, I learned that they can get a rise out of me. I like to think that my comment to that was not getting defensive or upset. I hope it was a witty retort, but even that is not the best sometimes, and you can elevate people.

I learned that quickly with Twitter. Right after Alex’s closed-door testimony, there was a retired Lieutenant Colonel who had supposedly served with Alex. This is kind of in debunked, not served with him, but was at a place where he was when Alex was traveling with the Russian military who was doing a joint exercise in Germany. And he gained prominence by this sort of tall tale about serving with Alex and whatever, and it got a lot of traction, and Don Jr was re-tweeting it. A lot of people, even the President alluded to it at one point, which was—I’m pretty open about that—it was one of the scariest days. And this is where I think we have to really careful with our kids, but what was scary is someone was saying something and we couldn’t speak back because Alex was active-duty military, and you gotta be careful.

You don’t want to get like a counter-narrative because then you’re chasing, so you don’t want to do that anyway. It’s not a very good calm strategy, but it was really hard. I think that is one thing for children, for teens and adults, the lessons that they really get lost in was social media. Something can just catch fire, and it’s not true, but they have no way or no voice to counter it. And if you’re reacting, then you’re playing catch up and you’re probably losing anyway, because someone else has gotten ahead of you. So it’s better most of the time just to let it be. Sometimes I just like to come back with a snarky comment, but I also think a well-timed highlighting of some of those comments does a couple of things strategically of like showing people, this is still happening, not just for us, it’s happening for almost everyone.

I mean, look at Olivia Troye’s Twitter feed and the way they attack her, and Lisa Page. They are still attacked with stuff that’s been debunked a long time ago, but this is what they go with. I think also just a gentle pushback of “we’re not going to let you control this narrative” and you might say it, but you have to be pretty careful there. Disengage and don’t react either way. But I do think it’s important for people to realize Trump and Trumpism is still attacking people. And if he were to come back to power—I don’t think he’s going to be reinstated in August, despite what people might be saying or what he perhaps believes—but this is what you would be signing up for: full-on authoritarianism. And this is what they think is okay.

ZW: Speaking of this August, there is a big event coming.

RV: There is.

ZW: Tell us what that is.

RV: My husband’s memoir: Here Right Matters. It’s going to publish on August 3rd. We’re very excited. We rearranged our entire summer to accommodate the new publication date. I’m very excited for him. It was tough. Everyone talks about, what were we doing a year ago at this time? And we were spending a lot of days sitting in our office trying to have discussions and not worry our daughter. But it was like you think your career’s over, it’s not going anywhere, but what are we going to do? How are we going to live? Once people talk about separating from the military, they plan on this for several years in advance, and that was definitely not, we were going to do.

There were people who wanted him to write a book about Trump, and that’s not the book he wanted to write. Also, he never met him in person. And there was a push to get it out before the election, which logistically never would have happened because as someone who held security clearance, his book had to go through a pre-publication review, and they would have never allowed it to see the light of day. So, it was challenging.

But as challenging as it was for us, I know it was even more challenging for a lot of other people. I know there’s been a lot of criticism for people who stayed working in government, who maybe didn’t leave or didn’t leave sooner, but you have to understand, everyone has to live, has a place to live and eat and support their families, and this is a very expensive area of the country to live.

I think we need to really look at our public servants and our people who served in government, even in the Trump administration, non-partisan people and good people who stayed, and be forgiving to them, not forgiving, but understanding. People could not just walk out because they didn’t like what was happening with the Trump administration. That’s not how it is. These are public servants who work their whole lives and they have a tremendous amount of institutional knowledge that is very important.

When they talk about the Deep State and they talk about unelected, radical bureaucrats, those people are actually the glue that keeps the government together as the administrations change, as the political appointees change. They are the ones that have the knowledge of how the organizations work. Whether or not that’s a good thing or a bad thing, it requires so much institutional knowledge. I’m not here to make that debate. I just know that the way the system is currently, you cannot burn it down and build it up every four or eight years, it’s not possible. And we need to appreciate what they do and how they work for us for, Republicans and Democrats alike, they work and they give us their all, and they serve a very important purpose.

ZW: You mentioned pre-publication review. Did the book have to pass Rachel Vindman’s pre-publication review?

RV: It did. I didn’t read the parts that might have sensitive issues. But we went back and forth, and I guess everyone’s gonna read the book and think that I begged my husband to ask me to marry him. I really don’t remember it that way, so I will let the readers decide. But I guess when you write a book, it’s your memoir, it’s your version of the truth, no matter who you are, so this is Alex’s moment to remember it the way he wants.

He talked about our personal struggles with infertility. We had a daughter who was born at 24 weeks. She passed away. How we handled that, how the grief brought us together and how, going through things as a couple, going through things in life, it prepares you to deal with other things. It’s all part of a stepping stone.

And that’s really what the memoir is about. It’s about his immigrant story and his family, what he learned from that, how it prepares you for all the moments big and small that, that you have a foundation there. I’m biased, of course, but I read a lot of memoirs, because people fascinate me, and I’m very proud of it. I think he is as well. And I hope that people will find encouraging inspiration in it and the message that it has, even during this time, as we continue to kind of figure out what the path is forward for our country and where we want to land.

ZW: I did not know about the experience with losing a daughter, so I’m very sorry for that.

RV: Thank you.

ZW: But on a happier note, do you want to share with us—to set the record straight—how did you meet Alex and what did you think of him when you met him?

RV: I was a flight attendant. When I moved back from Israel, I had this idea that I wanted to work for the FAA because they have a very large facility in Oklahoma City. So I wanted to work there, and I was told the path to this would be being a flight attendant, then working in flight attendant management, just a couple of years here and there, and then you could get a job with the FAA. So I was working on the flight attendant part, and I had a friend that was like, you need to meet this guy. And I thought, okay, I know I can fly free, but I’m not just gonna fly somewhere for a date, that’s just a little a bridge too far.

But Alex had just completed ranger school, and he was in New York City. I was based in New York City at the time, but I didn’t live there. I was just staying there the night before I started a trip. He had finished ranger school and was picking up his parents in New York City, and then they were going to drive cross country. So we realized that our schedules were matched and we were going to be in the same city at the same time. So I was staying at the Holiday Inn at JFK airport, and he came to my hotel room to pick me up, and I opened the door, and I think this is actually in the book, but I was like, “oh my God, he’s so skinny,” because he just finished ranger school and probably lost weight, and didn’t have a lot to lose. So by the way, when people comment about Alex’s weight and he has all his weight in his face, but you can thank me for that because that’s just my excellent culinary skills.

But anyway, I saw him, we drove into the city into the West Village. We walked around and talked, and it was a great day. We got lost on the way home. I think it took us two and a half hours to get from Manhattan back to JFK. And if anyone is ever in a taxi and that happens, it’s not supposed to work that way, it definitely should not take that long, so you should call someone if you were in that situation. I did not, and it turned out okay, but I would not recommend that for everyone.

And then he then did not call me for several days. He was driving cross country and I guess he forgot about me. I don’t really know, but he got to Tacoma, to Fort Lewis, Washington, and a few weeks later, I flew there for our second date, and the rest is history.

ZW: You and my wife should talk. I’ll just say that.

RV: Okay. All right. Well, now I want to hear your story.

ZW: I think she could relate, but that’s great. Well, it’s been awesome talking with you. I know you probably have a lot of people who want to talk to you. And so for you to join my little show here has been just great. So I really appreciate that. Now, I want to go back to Edmond, Oklahoma just for a minute. You and I both grew up in the 80s. I grew up in south Austin, Texas. You were a little farther north up in Oklahoma, but I’m curious. Number one, what was the first big concert that you attended as a teenager in Oklahoma?

RV: Don’t laugh. It was Lionel Richie.

ZW: Oh that’s awesome.

RV: I’m a Lionel Richie fan. It’s funny because one of my oldest best friends, she went to the same concert. I didn’t even know. I think like her parents surprised her, but yeah, I went with my parents to see Lionel Richie, as one does. I think that was the first concert.

ZW: Did he do “Dancing on the Ceiling”?

RV : Of course. I mean, it wouldn’t be a concert without that.

ZW: Did he do “Easy Like Sunday Morning”?

RV: Yes. And I have my own version. I tell Alex that he’s easy like Monday morning. I love him, but Alex is not easy like Sunday morning, which is to say generally not easy at all.

ZW: Got it. Now related to that question, I’m curious, what was the first record that you bought for yourself, if you remember?

RV: I think Footloose, the soundtrack to Footloose.

ZW: On cassette, I’m guessing.

RV: Yeah, on cassette. Album? I remember playing the Fame album, but I don’t think I bought it for myself. The record cover I remember most of all from my childhood, and this was my childhood song when I was much younger, was Rhinestone Cowboy by Glen Campbell. And the album cover was raised, it wasn’t just flat. It was this horse and there was a very cowboy scene, with cacti and mountains. But I remember that album cover, and of course, I just loved that song, I still love that song. I still listen to it all the time, but when I was little, I would apparently just listen to it on repeat.

ZW: Oh yeah, he was great. All right. One more question relating to Edmond. Next time I’m up there, where do I need to go to eat? You know, like where the where’s the local place that I might not know about.

RV: For sandwiches, I really like City Bites. That’s an old family friend, they’re the owners of it, just great hoagies or whatever you call them. And Johnny’s Charcoal Broiler was another local favorite. It’s one of my favorite places, really good hamburgers and onion rings. They have the best onion rings ever, I think. When I go, I go for cheap Tex-Mex, which is the best Tex-Mex. So that is something that I always have. And Hideaway Pizza, which started in Stillwater.

ZW: I’ve been there!

RV: Those are my top picks for every time I go home to Oklahoma.

ZW: Awesome. Okay. Now I have some new places to try. Anytime I go to a new place, I want to know, like, where are the hidden gems?

RV: I know, absolutely. When we’re traveling or figuring out the book tour schedule, it’s kind of coming together, and I’m like, okay, well, when we go to these places, where are we going to eat? So, yes, totally same.

ZW: Great. Well before we wrap this up, I’ll leave the floor open to you. Anything you would like to add that you would like the readers or viewers to know about Rachel Vindman?

RV: I don’t think so.

ZW: This is where you plug the next podcast.

RV: I do think The Suburban Women Problem, it’s something that I’m very proud of. I was asked to be a part of it. It’s come together very quickly, but I think it is an important place to have discussions. I always liken back to one of the favorite parts of my day during the school year is the bus stop with my fellow bus stop moms, as we call ourselves. We come from different backgrounds. We live in the same neighborhood, in the same community, but very different backgrounds and different political beliefs, but we can come together and be with our children, get them on the bus, experience a moment of relief in that, and also respect each other’s opinions, but talk about the things that are important to all of us and maybe learn something too.

RV: So I hope that the podcast has that feel of a space where we can talk about it, and you can agree or not agree, but I hope you know that I still care about you and appreciate you. There’s still room for disagreement, but also for great respect and love. And that’s what I hope we continue to create with our podcast.

Other than that, thank you for having me. It was a super fun conversation. And I always like to talk about Edmond, Oklahoma. It definitely made me who I am, and I think I’m better for it. It was not a lot of diversity, but that’s okay. I think that I’ve learned a lot from that as well. Someone actually sent me a quote today of “our background is just our launching point.”It can’t be our excuse to always stay in that place, but you’d never have to look at it as bad either.

So your life is just, it’s where you go and where you take it, but never be ashamed of where you came from and your history. I think you can just always use it to go forward. And if you think there’s places for change, make that change and be that change, and whatever voice you have, use it. That’s what I’m trying to do. Not to make a name for myself. I’m not even getting anything out of this personally, but I think that it is kind of a responsibility, Alex and I both look at it like this because he’s out of government and the military. We have a voice now to speak, and we very much want our country to move forward, and if we have the opportunity to educate people and be part of the discussion in a meaningful way, we will definitely lend our voices to that.

ZW: Great. All right, one more question. Who is your dream guest? Like the person you think, oh, I would never get this person on the podcast, but who you would just love to interview?

RV: Michelle Obama. And I say that because I, well I always liked Michelle Obama, but was I a fan of president Obama’s policies? No, not all of them. And I’m very centrist in my politics, so that’s probably why. But when I read her book, it was just such a phenomenal growth experience for me. And in many ways, I had always had a great appreciation of her, but I could relate on so many different levels. As a woman, as a mom, just her growing up experience with her family and how close she was to her family. Even though we had very different experiences, I could certainly relate to that, and I have a tremendous amount of admiration for her drive for pursuing her education and career. And it was difficult for her.

She also faced infertility struggles and really strove to raise her daughters in a way that I think is comparable to how I wanted to raise my daughter. And part of that is especially now like your dad’s, yes, he’s known for doing a good thing, but that’s your dad. That’s not you, if you want to do a good thing. So you have to go out there and do it too. And this kind of goes back to you have the name, but you have to make the name mean something. Growing up in Edmond, my name was associated with the people who did good things before me of our good family name, but that’s very easy to ruin and not easy to establish.

So I know that she tries to give her daughters that space and I just, I appreciated so much of her experience and just her honesty. And it’s really hard when you’re in the public eye, to be honest about things, but I appreciated how she really threaded that needle and educated people on and a lot of history that even occurred in her lifetime. But for me as a white woman who grew up in the suburbs, I was really unaware of.

ZW: Let’s work on that. I’m going to use my political influence, which is zero, but we’ll make that happen. All right, Rachel Vindman, thank you so much for joining me for this interview. It’s been a pleasure.

RV: Thank you. Next time you’re in Oklahoma, let me know.

ZW: I will.

____________________________________

Zach Wolfe (zach@zachwolfelaw.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

Why Clients Come Second at My New Law Firm

Law Firm “Culture”

Law firms talk a lot about “firm culture.” It’s like every year the Dallas Cowboys talk a lot about getting to the “Super Bowl.” (Oh, the truth hurts for this long-suffering Cowboys fan.)

I’ve been thinking about law firm culture and values because I just started my own law firm. It’s called Zach Wolfe Law Firm. That choice of firm name was serendipitous, because my name also happens to be Zach Wolfe.

Sadly, if I ever want to start an alt-Americana-rock band (hey, it could happen), I probably can’t name it after myself because Zach Wolfe & the Coyotes would claim a likelihood of confusion.

That means if I ever get around to recording one of my country-rock compositions, like “Otherwise Blameless Life,” I’ll have to do it with Hot Dog Randall. That’s the name of the band I plan to have with my 12YO son when he gets a little better at the drums. His name is not Randall, though. It’s just an inside joke.

Sorry, I got off track. What was I talking about?

Oh, right. Law firm culture.

I’ve been thinking about the kind of culture I want at my firm. I could have circulated a memo about it right before walking out of my old firm, Jerry Maguire-style. But I kept procrastinating, resulting in a totally amicable but boring exit. Which is probably fine, because I don’t think Mrs zachwolfelaw would appreciate me bringing Renée Zellweger to the new firm.

Anyway, now that I’ve had some time to mull it over, here are the five pillars of the Zach Wolfe Law Firm culture.

1. Clients Come Second

Don’t get me wrong, I’m going to put clients before almost everything else, including profits. But clients will not come first at Zach Wolfe Law Firm. That’s because my family comes first.

Of course, this will probably come as a surprise to my wife and two kids. They can all remember me pacing back and forth on my cell phone, trying to finalize a settlement, while they were literally trying to get in line for the “It’s a Small World” ride at Disney World.

So let’s just say the family first thing is kind of like the Texas Lawyer’s Creed. It’s “aspirational.”

Still, in my defense, on Day 1 of Zach Wolfe Law Firm I am not working, but moving my daughter into her college dorm.

And you’re humming the song now, aren’t you? I’m sorry.

2. The Bully Pulpit

My firm will be equipped to handle a wide variety of business litigation matters, plus drafting contracts and other relatively simple transactions, but my practice will continue to focus on disputes involving non-competes, trade secrets, and other “departing employee” issues.

After handling over 80 departing employee matters in the past five or six years, I’ve noticed something. There is a lot of attempted bullying in these matters, and I don’t like it.

I’m not saying litigation should be tiddly-winks. It’s more like tackle football, or girls’ middle school basketball. You’re going to get beat up a little.

What irks me is when people try to use the cost of litigation as a club to hold over my client’s head. For example, if a company doesn’t want its former employee to work for a competitor, they may file a lawsuit with little chance of success just to apply pressure to the employee in the form of attorney’s fees.

Of course, it can also work the other way: a defendant can obstruct and delay a meritorious claim just to drive up the cost for the plaintiff.

Whether I’m representing the plaintiff or the defendant, employer or employees, my goal is to do whatever it takes to avoid letting the opposing party use the cost of litigation to bully my client.

That may require some flexibility in fee arrangements, but here’s the good news. I happen to be sleeping with the head of the firm’s Billing Committee.

3. Diversity

When I eventually get around to hiring for my firm, I will do my best to have a law firm that looks like the city around it. And I’m not just giving lip service to diversity because it’s what all the cool firms are doing.

Do you remember when law firms started caring about diversity?

I can tell you precisely when that happened. It was about five minutes after law firm partners figured out there was money in it.

But hey, if greed means the partner lounge won’t look like one of those black and white photos of the local bar association from 1953, I’m all for it. It’s an example of the American doctrine of “self-interest properly understood,” first described in Alexis de Tocqueville’s Democracy in America.

You down with ADT? (Yeah, you know me.)

4. WFH

Zach Wolfe Law Firm does have a physical office, thanks to some friends who are graciously sharing their fancy office space with me. But I will probably continue to do most of my work from home. If there’s one silver lining to the pandemic, it’s that we all figured out it’s not that hard to work remotely. Maybe you don’t need to make 50 patent lawyers come to your docket call to stand up and say “ready” (*cough* E.D. Tex. *cough*).

There are, of course, benefits to collaborating with your team in the same physical space. There’s a reason WKRP had all the DJ’s “offices” in the same room. All else being equal, working in the same office with other members of a law firm is better than spending your day saying “who just joined?” or “Bob, you’re on mute!”

But, of course, as with so many things in life, all else is not equal.

You know the thing I discovered that is most definitely not equal? Driving.

Now, don’t get me wrong, I like driving. I even like long road trips. I actually look forward to driving up to my daughter’s school in Oklahoma.

But you know the thing I don’t like? Traffic.

I know a lot about traffic because they did this famous traffic experiment in the Houston area. They built the Katy Freeway, one of the widest freeways in the world, 26 lanes in some spots!

The result? Thousands of people moved to Katy, enough to clog every one of those 26 lanes at rush hour.

Spending hours sitting in Houston traffic may be great for catching up with Bob and Clint on the I’m Ok You’re Ok I’m Not Ok You’re Not Ok podcast, or nerding out on jazz and music theory with Adam and Peter on the You’ll Hear It podcast. But that’s not an efficient use of time for Zach Wolfe Law Firm. So we won’t be doing a lot of that.

5. Dress for Success

Right before I left the BigLaw firm I worked for out of law school, they circulated a memo produced by the Dress Code Committee. I remember thinking, Dress Code Committee, seriously? The thought of the buttoned-down senior partners talking about “spaghetti straps” and “crop tops” around a big conference room table cracked me up.

Now, this was a blue-chip firm with top-notch lawyers, but my reaction to the idea of a dress code committee was a sign that maybe I was more of a “hang out a shingle” kind of guy. But I wasn’t brave like Aiden Durham, so it took me 21 more years to do it.

Now that I run the zoo, I guess I’m in charge of the dress code. I’ve never really had a strong opinion on burning issues like casual Fridays. If anything, I tend to like the lawyers who go to sartorial extremes. Pick a side: either dress like the cast of Suits or the cast of Dazed and Confused. Or adopt your own unique style, like the personal injury lawyer who came to my first deposition in Fort Worth in a black cowboy hat and Holstein-patterned shirt. I respected that.

But the Zach Wolfe Law Firm dress code will be more practical. I’ve always thought dressing for the season makes more sense than dressing for the day of the week. So, for the summer—meaning about nine months out of the year in Houston—the dress code will be Baywatch tank top and Lululemon shorts. I’ll save the Banana Republic look for the winter.

Of course, I will still wear a suit and tie when I go to court. You know, to stop the bullies.

_______________________

Slow Your Roll: Texas Judges Need Guidance on Ordering Direct Access in TROs

If you watch the news or even Law and Order, you’ve seen images of the police or FBI raiding a target’s home or office and seizing laptops or smartphones for forensic examination. I only handle civil litigation, where we don’t really get to do that.

Clients sometimes wonder about this when they get sued. Is somebody going to confiscate my phone? Can they search my Gmail without me even knowing it?

The short answer is no, that’s not how it usually works in civil litigation. Unlike criminal cases, the civil litigation system generally relies on the parties themselves to produce documents. You send a “request for production” to the other side, they make a bunch of objections, you argue about the objections, and then the other side produces documents.

Generally, you don’t get to go to the other party’s office or home and rummage through their file cabinets looking for relevant documents.

It didn’t necessarily have to be like that. The lack of “direct access” in civil discovery is a policy choice. There’s an obvious downside: depending on a litigant to produce documents that will hurt that litigant’s case creates a danger that relevant documents will be withheld. (Lawyers sometimes joke about the “bad document” exception to discovery.) But in civil litigation, we’ve chosen to balance that risk against the disruption and invasion of privacy that direct access would cause.

The same principle applies to documents in electronic form. So, generally we don’t allow civil litigants to demand “direct access” to the other party’s computer, smartphone, or other electronic device.

I say “generally,” because of course there are exceptions. You can get direct access in civil discovery under some circumstances.

There is plenty of guidance from the Texas Supreme Court on this, including In re Weekley Homes, 295 S.W.3d 309 (Tex. 2009), and In re Shipman, 540 S.W.3d 562 (Tex. 2018). I covered this in “Direct Access” to Computers in Departing Employee Litigation.

In the simplest terms, the guidance from SCOTX is this: to get direct access through discovery, you have to show that the other party has somehow defaulted on its discovery obligations, and that lesser means of curing the default would be inadequate.

**An End Run Around Weekley Homes?**

That’s a tough standard to meet. But there’s a potential way to get around this: ask for direct access through a temporary restraining order (TRO) or temporary injunction.

(For non-lawyers, a TRO is an emergency order that typically lasts only a couple weeks, until the court can hold a temporary injunction hearing, which is like a mini-trial. A temporary injunction lasts until the case goes to trial. In federal court it is called a preliminary injunction.)

You see, the Weekley Homes standard technically does not apply to a TRO or temporary injunction. At least that’s what one Texas Court of Appeals recently said.

That means we’re going to see a lot of requests for direct access through TROs or temporary injunctions, especially in departing employee lawsuits, the focus of my law practice.

The problem is that some lawyers and judges seem to think that direct access orders should be routinely granted in any case where a company claims its former employee took confidential information or violated a non-compete. That’s wrong. A TRO is supposed to be an “extraordinary” remedy, and the risk of getting direct access wrong in a TRO is high.

But what is the standard for granting direct access through a TRO or temporary injunction?

The current standard is essentially “it’s within the trial court’s discretion.”

This is a problem. Texas judges need more specific guidance on when to grant a TRO or temporary injunction allowing direct access, especially in departing employee litigation.

The Wolfe Standard for Direct Access Orders

Never fear, your friendly neighborhood thought leader is here. I propose the following general rules for direct access orders in departing employee lawsuits:

1. A direct access order should almost never be granted in an ex parte TRO hearing (a hearing where only the party seeking the TRO is present).

2. Even in a TRO hearing where the defendant’s lawyer is present, a direct access order should very rarely be granted.

3. The standard in a TRO hearing should be this: is there evidence of some imminent emergency that will cause actual irreparable harm if the judge postpones a decision on direct access to a temporary injunction hearing, which can be held as soon as a few days later.

4. At the temporary injunction hearing, the standard for granting direct access should be this:

a. Has the plaintiff presented evidence to make at least a prima facie case that specific confidential information on the device meets the legal definition of a trade secret?

b. Is there evidence the defendant has already spoliated evidence by altering or deleting potentially relevant documents?

c. Is there evidence the defendant has already used confidential information on the device to compete with the plaintiff? (Mere evidence that the defendant has competed with the plaintiff is not evidence of such use.)

d. Is there evidence the defendant has already disclosed confidential information on the device to a competitor? (Mere evidence the defendant has gone to work for a competitor is not evidence of such disclosure.)

e. If the answer to one or more of (a) through (d) is yes, then the judge should consider whether some lesser means of preservation would be sufficient. Lesser means would include:

(i) ordering the defendant not to spoliate evidence,

(ii) ordering the defendant not to use or disclose confidential information, and/or

(iii) ordering the defendant to have a qualified service provider make a forensic image of the device for evidence preservation, subject to further orders of the court.

f. The judge should only grant the plaintiff direct access if the plaintiff shows that such lesser means would be inadequate under the circumstances.

g. If the judge orders direct access, the order must contain sufficient provisions to protect from disclosure:

(i) private personal, medical, or financial information not relevant to the issues in the lawsuit,

(ii) communications protected by the attorney-client privilege or other privileges, and

(iii) information the defendant or a third party claims is confidential and proprietary.

I hereby grant Texas judges an irrevocable, non-exclusive license to copy this standard into their orders and opinions. You can download it here:

wolfe-standard-for-direct-access-tros-and-temporary-injunctions Download

I’m sure people will quibble with the specifics, but in general, the standard I’ve outlined seems pretty basic and non-controversial to me.

It’s certainly better than the current standard. In a TRO hearing, the current standard is “anything goes.” There is no appeal from a TRO, so the trial court judge can do anything she wants. That means the law on direct access in a TRO is effectively whatever the judge says it is.

(I will leave it to philosophy of law students to debate whether this means the law is what the judge says it is, or if this just means the law is effectively what the judge says it is as a practical matter.)

An Actual Direct Access Order Sighted in the Wild

Anecdotal evidence suggests this can be a problem. In a recent TRO hearing, the plaintiff sought a TRO against a former employee who left and joined a company that the plaintiff viewed as a competitor. The judge allowed the lawyers to argue for almost 30 minutes, which is more time than you usually get.

The lawyers debated whether the products sold by the defendant’s new employer actually competed with the products sold by the former employer. They argued about the proper scope of the defendant’s non-compete under Texas law. They argued about a lot of things. The judge tried to get the parties to agree on an order, but when the defense counsel respectfully declined, the judge said, “well in that case, I’m signing the TRO.”

And wouldn’t you know it, tucked within the paragraphs of the TRO drafted by the plaintiff’s lawyer was an order for the defendant to turn over his personal devices to the plaintiff for forensic examination. This issue was never even mentioned in the hearing. (I thought about disclosing for non-litigators that in many cases the judge simply signs the form of TRO that the plaintiff’s lawyer prepared, but I don’t know if y’all are ready for that.)

That should give you some sense of the current standard for a direct access TRO, as a practical matter.

Here’s another example that is less anecdotal.

**The Crossmark Case**

In Retail Services WIS Corp. v. Crossmark, Inc., No. 05-20-00937-CV, 2021 WL 1747033, at *15 (Tex. App.—Dallas May 4, 2021, pet. filed), the court held that the requirements for direct access stated in Weekley Homes do not apply to a temporary injunction and upheld the part of a temporary injunction ordering direct access.

Crossmark was in some ways a typical departing employee case. Crossmark and Product Connections were competitors in the business of providing large retailers with “in-store consumer experience” services, such as in-store demonstrations by brand spokespersons. Id. at *1. I’m picturing something with Teflon pans and a stove, but who knows.

One of those large retailers was apparently so secret that the court sealed portions of the record and called the retailer “Client X.” Id. at *2. I’m guessing JC Penney.

Anyway, Crossmark claimed it had a confidential playbook on best practices, operating procedures, and manuals that took decades to develop. Id. at *1. A group of employees left Crosssmark and joined Product Connections. Some of them had non-competes. Id.

So far, that is pretty plain vanilla stuff for a departing employee lawsuit. But there was some additional forensic flavor.

Crossmark’s forensic expert from KPMG testified that one of the employees did some sneaky stuff shortly before leaving, including:

emptying her recycling bin of more than 1,800 files
copying 13 files from her Crossmark laptop to a thumb drive
plugging the thumb drive into a personal Mac computer and accessing the files
doing a Google search for “how to delete Google Chrome cache”
deleting 57,000 Chrome cache entries

Id. at *2. Now, I’ve been doing this long enough to know there’s likely another side of the story, but facts like this certainly don’t look good for the departing employee.

Plus, there was also evidence suggesting that the employees who went to Crossmark used knowledge they had gained at Product Connections. Crossmark’s Executive VP testified that less than a week after Crossmark launched a digital demo product, he saw on social media that Product Connections was launching a product that “mirrored almost identically” what Crossmark had done in its Client X digital demo. Id. at *3.

Again, I wouldn’t necessarily take the company VP’s word for it, but this kind of testimony will at least get you in the door of the Temporary Injunction House.

Was the evidence sufficient to justify a mandatory injunction granting direct access? (A “mandatory” injunction is one that orders a party to do something, rather than not to do something.)

The trial court judge thought so.

The trial court included a “Device Turnover Order” in the temporary injunction. Based on “efforts of deception and concealment and actual misappropriation of CROSSMARK Confidential Information by at least one Former Employee,” the court ordered the Defendants to produce to opposing counsel for forensic inspection “any company or personal laptops, hard drives, thumb drives . . . or other digital storage devices.” Id. at *6.

Thus, the order in Crossmark implied a certain standard for direct access injunctions: direct access is warranted if there is evidence of “deception and concealment” and/or “actual misappropriation” of confidential information by at least one Defendant.

That’s a lower bar than the Weekley Homes standard. It doesn’t require showing that the Defendants defaulted on their discovery obligations. It doesn’t require considering whether lesser means would be adequate to preserve or obtain relevant evidence. And it doesn’t require any mechanism to protect private personal documents or privileged documents.

So did the Court of Appeals reverse the direct access order for failing to meet the Weekley Homes standard?

Nope. Weekley Homes involved discovery under Rule 196.4 of the Texas Rules of Civil Procedure, the Court of Appeals reasoned, not a temporary injunction. Plus, Weekley Homes was not a trade secrets case. So, the Court of Appeals concluded that if the requirements for an injunction are met, Texas law does not preclude “mandatory injunctions requiring production of digital storage devices.” Id. at *15.

**The Problem with the Crossmark Approach**

This seems too clever by half. In a narrow, technical sense, I think the Crossmark court was right. Weekley Homes was a discovery case, not an injunction case, so sure, you can say it doesn’t apply to an injunction, strictly speaking.

But the broader question is whether the principles of Weekley Homes should apply.

Those principles include:

(1) allowing direct access to electronic devices is akin to allowing a party to search an opposing party’s file cabinets,

(2) direct access should only be ordered when the ordinary discovery process would somehow be inadequate,

(3) the court should consider lesser means to obtain the discovery before ordering the drastic measure of direct access, and

(4) the direct access order should contain means to protect private personal information and privileged information.

By focusing entirely on whether Weekley Homes “applies” to a temporary injunction, the Crossmark court effectively ignored these concerns. I think that was a mistake.

I’m not saying the Crossmark court was entirely wrong. I think the court was right to say that the ordinary discovery process is not the only way to get a direct access order. The reason we have TROs and temporary injunctions is to address extraordinary situations where the ordinary processes would be inadequate.

But the situation should be truly extraordinary. The standard I outlined earlier would ensure that judges only grant direct access TROs or temporary injunctions when warranted by truly unusual circumstances. Direct access orders should not be routine.

Otherwise, I fear the exception opened up by Crossmark could become the general rule. And then I may have to tell my civil litigation clients, yes, it is like Law and Order.

Dun-DUN!

_______________________

Zach Wolfe (zach@zachwolfelaw.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm. Thomson Reuters named him Texas “Super Lawyer”® for Business Litigation in 2020 and 2021.

Biden Executive Order Raises Key Question: Should Texas Abolish its Hiring Tax?

No, contrary to what you may have heard, President Biden did not issue an executive order banning non-competes nationwide. More about that later.

His Executive Order on Promoting Competition in the American Economy did get me thinking, though. Should Texas follow the Biden administration’s lead and abolish the Texas hiring tax?

You didn’t know Texas had a hiring tax? Let me explain.

Comparative Non-Compete Law

Texas law is relatively pro non-compete. I say “pro” because Texas law allows non-compete agreements with at-will employees, provided the scope of the non-compete is reasonable, and if the employer messes up and makes the non-compete too broad, the employer is entitled to have a judge “reform,” or rewrite, the non-compete to make it reasonable in scope.

I say “relatively” because Texas law does have some advantages for employees who challenge non-competes. See my overview in Wolfe’s First Law of Texas Non-Compete Litigation. In short, there’s plenty of Texas case law interpreting “reasonable” in an employee-friendly direction, and the Texas non-compete statute gives employees some significant advantages.

Still, overall Texas law is pretty friendly to non-competes for at-will employees, especially compared to some other states.

California, for example, is well known for its hostility to employee non-competes. They are generally not allowed in the Golden State. See Cal. Bus. & Prof. Code § 16600.

And it’s not just deep blue states. Hostility to non-competes cuts across the political spectrum. Consider deep-red Oklahoma. It also frowns on employee non-competes. See 15 OK Stat § 15-219A.

Plus, the national trend is in the direction of non-compete “reform,” meaning making it more difficult to enforce non-competes with at-will employees. Consider a few examples:

In 2016, Alabama passed a new statute governing non-compete and non-solicitation agreements, including presumptive time limits for restrictive covenants and limitations on restrictions on soliciting employees. See Alabama’s New Non-Compete Statute Places New Restrictions on Employers.
In 2018, Massachusetts passed a new non-compete law that prohibits enforcing non-competes against employees terminated without cause and includes requirements for paid “garden leave” for employees. See New Massachusetts Non-Compete Law Goes Into Effect.
In 2021 Illinois enacted “sweeping” reforms to its non-compete statute, including a ban on non-competes for employees earning less than $75,000 a year. See Illinois Enacts Sweeping Reforms to Non-Compete and Non-Solicit Agreements.

This trend has not made it to the Lone Star State. If anything, the Texas legislature has gone in the other direction.

You may have heard Texas has an “anti-SLAPP” statute, called the TCPA, which allows defendants to move to dismiss unfounded lawsuits before any expensive discovery takes place. That potentially included non-compete lawsuits, until recently. In 2019, the legislature exempted most non-compete lawsuits from the early dismissal procedure provided by the TCPA. See Turn Out the Lights, the Party’s Over: Texas Legislature Takes All the Fun Out of the TCPA.

And in 2021? Governor Abbott called a special session to address numerous issues, including bail overhaul, elections, border security, social media “censorship,” and, of course, Critical Race Theory. But he did not include non-compete reform on the agenda.

The Texas Hiring Tax

Ok, but what does this have to do with a hiring tax?

Well, by continuing to enforce non-competes with at-will employees, Texas effectively imposes a tax on employers who hire employees away from competitors.

The thing you have to understand is that enforcing non-competes with at-will employees does not really prevent competitors from hiring those employees. It just makes it more expensive to do so.

Here’s how it usually goes down. Suppose Dawn Davis is the top sales person at Paula Payne Windows. An upstart competitor, Real Cheap Windows, has its eye on Dawn. Trouble is, Dawn signed a two-year non-compete when she Paula Payne Windows hired her years ago.

Will that stop Real Cheap from recruiting Dawn? Probably not. If Real Cheap really wants to hire Dawn, it’s going to do it, regardless of any non-compete.

This will, of course, provoke a nasty-gram from Paula Payne’s lawyer, demanding that Real Cheap cease and desist from employing Dawn and “stealing” or “poaching” Paula Payne’s customers (as if the customers were property, or wild game). Real Cheap will then hire some smart-aleck lawyer to write a response arguing that the non-compete is unenforceable.

Then, if the loss of Dawn’s customers is a big enough deal to Paula Payne Windows, it’s going to file a lawsuit to try to stop Dawn. The lawsuit will probably include both a request for a temporary injunction ordering Dawn to stop and a demand for damages for the loss of Dawn’s customers to Real Cheap.

I would bet that more than half the time, the lawsuit will get settled before the judge holds a hearing on the requested temporary injunction hearing. And nine times out of ten, the lawsuit will get settled before going to trial.

The end result, typically, is a settlement where Real Cheap Windows agrees to pay some amount of money to Paula Payne Windows and maybe also agrees to some restrictions on Dawn Davis, like maybe she can’t sell to her top three customers for a year. So, the competitor who hired the employee pays its own attorney’s fees plus some amount to settle the litigation with the company the employee left.

That’s the Texas hiring tax.

Is Enforcement of Non-Competes “Pro-Business”?

Isn’t it ironic? I thought Texas was supposed to be anti-tax and “pro-business.” But when businesses have to pay a hiring tax—in effect—to hire the best people, is that really pro-business?

Wouldn’t it be better for Texas to get rid of this hiring tax and abolish non-competes for at-will employees? (It would still make sense to allow non-competes in the sale of a business, for reasons I explain here.)

But wait, defenders of non-competes will say, we need non-competes to protect goodwill and confidential information.

I don’t find either rationale persuasive.

As to confidential information, what if I told you there was already an entire body of law—both state and federal—designed to prevent employees from taking valuable confidential business information to a competitor?

Yes, of course, it’s called “trade secrets” law. Like most states, Texas has a version of the Uniform Trade Trade Secrets Act (TUTSA). You can even make a federal case of it, thanks to the relatively recent federal trade secrets statute, the Defend Trade Secrets Act (DTSA).

But what about protecting goodwill with customers?

Yeah, about that. Here’s the problem. In most cases, where the goodwill resides in the individual employee’s relationships with certain customers she regularly services, the goodwill walks out the door when the employee clocks out for the last time.

Like I mentioned earlier, customers aren’t property. They have minds (and hearts) of their own. If the person they like to do business with leaves the company, they usually want to follow that person to a new company.

And while a judge can order the employee not to do business with the customers she serviced at her previous employer, a judge can’t make those customers continue to do business with the previous employer. It’s like when Genie explains to Aladdin that he gets three wishes, but he can’t wish for someone to fall in love with him.

So in most cases (not all), an injunction enforcing the non-compete doesn’t really preserve any customer goodwill, it just punishes the departing employee and the customers, third parties who never signed any non-compete.

For these reasons, I think Texas businesses would do just fine if Texas outlawed non-competes with at-will employees. In fact, I think they would do better.

You may be shocked that a lawyer who handles non-compete litigation would make such a statement against interest. Wouldn’t my business dry up if Texas outlawed non-competes?

President Biden’s Executive Order on Non-Competes

My worried mom asked the same thing about Biden’s Executive Order. I told her not to worry.

When the White House announced the President would be issuing an Executive Order addressing non-competes, I made this prediction on Twitter:

In short, I predicted two things. First, the order would be limited in scope. Second, even a national ban on non-competes would not end departing employee litigation, because employers would just shift their legal theory to trade secrets.

How did I do? On the first part, I was spot on. Here’s what Section 5(g) of the Executive Order actually said:

For all the hoopla on the Biden side and the hand-wringing among business lawyers, this was pretty restrained. For one thing, the Executive Order doesn’t change the law at all. It only directs the FTC to consider changes to the law.

As for my second prediction, that the scope of action on non-competes would be limited, the order doesn’t instruct the FTC to outlaw non-competes, it only suggests that the Commission “curtail” the “unfair use” of non-competes.

Only time will tell what that means. I still think any limits the FTC orders are likely to focus on reigning in the use of non-competes in agreements with lower-income workers. That’s the kind of thing that caused a political outcry. Plus, there are sure to be court challenges to any new rules.

Whatever the FTC decides to do, I don’t expect it’s going to materially restrict non-competes for executives and more highly compensated sales people.

And like I said, even if the FTC does something more sweeping than I expect, I will still have plenty of work. Employers will just shift to using trade secrets law to try to impose de facto non-competes on employees who jump ship and go to a competitor.

How do I know this? That’s what they are already doing now when a key employee doesn’t have a non-compete, or has a non-compete the employer realizes is probably not enforceable.

_______________________

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

Are Lawyer Dads Paying Enough Attention to Upward Mobility?

Editor’s note: On June 29, 2021, the ABA Journal published Are women lawyers paying enough attention to upward mobility? by lawyer and author Susan Smith Blakely. The following column addresses the same issue from the lawyer dad perspective. The column reflects the opinions of the author, and not the views of Five Minute Law – or the American Law Blogger Association. Five Minute Law is committed to covering all issues of importance to serious people in the law, and we acknowledge the many concerns expressed to us by those offended by this piece.

The number of men graduating from law schools and joining the profession of law remains high today, and that is very good news. In the past, many of these men were denied access to blue-chip law firms that demanded “good grades” and “writing samples,” and the ranks of BigLaw lost out on a lot of beer pong talent.

Male lawyers today are highly motivated, remarkably organized, and detail oriented, at least when it comes to managing their fantasy football teams. These traits, together with detailed knowledge of their college’s five-star high school football recruits, are cause for celebration from the generations of male lawyers who came before them.

But more male lawyers know that getting the job and demonstrating potential is only the beginning. While climbing the promotion ladder and buying a Porsche 911 is the goal for many male lawyers, they must be strategic.

The pitfalls

There are pitfalls. What works for male lawyers in the early years of practice may not work as well for them throughout their careers. And that is particularly true for men who choose to have children. There is nothing that can derail a career faster than the responsibilities of fatherhood—ask any successful male lawyer. Trying to remember the names of his kid’s pediatrician and dentist can cause a very busy male lawyer to lose focus.

I applaud lawyer dads for their best efforts in keeping all the balls in the air. But I also know that they can get sidetracked. Living in the moment may be fine when your child takes his first steps, but it is a bad idea when it comes to planning the wine list for the partner retreat in Napa.

Career vs. job

A career is more than a job. A successful career includes a country club membership. In private practice, the trajectory is junior associate to senior associate to getting appointed court of appeals justice by the governor you did keg stands with in college. But some governors also require you raise money for them, and that can make the runway even longer.

And a career is not just about cronyism. More and more law firms are prioritizing profits, and all members of the team have to pay for their vacation homes in Cabo. Team members have to know that help is around the corner, and that 47.5 hours of document review will need to be billed to the Baker matter before the end of the month. And those requirements are equally true for male lawyers—whether they have children or not.

Fatherhood is demanding. Too often, lawyer dads are so stretched and overscheduled that they cannot easily find time in their days to check the leaderboard at the U.S. Open. They focus on their own March Madness brackets and maximize their time between arrival at lunch at Twin Peaks and leaving happy hour at Top Golf. Many of them take two hours at lunch to play basketball at the Skyline Club, and they lose interest in Shephardizing the cases they just plugged into your brief, reading the “new” discovery rules adopted in 1997, and attending mandatory diversity training. They are exhausted.

Many lawyer dads may have trophy wives who hire a nanny to help ease their burden at home, but children typically look to Daddy for permission to do stuff Mommy said no to, rides in the front of the BMW with no booster seat, and when they’re older, some cash for the mall. That is especially true when Mommy is a busy professional, too.

The burden on lawyer dads was increased during COVID-19, when working from home often included taking additional time to yell at the children “dammit, just play some more games on the iPad!” But things will get back to some degree of normalcy soon. Partners will demand more face time at 9:30 pm, and the responsibilities for squeezing more billable hours out of routine cases will increase. The lawyer dads will be expected to meet the challenge just like everyone else.

Finding the time for all that lawyer dads have to do is challenging, but they are often their own worst enemies. They are typically perfectionists, especially about their lazy son’s backhand, which is going to need a lot more work if he’s going to get in good with the tennis coach at Princeton.

It is better to do a half-assed job of parenting than to obsess over doing the job to perfection, whether it is loading the dishwasher efficiently or braiding a daughter’s hair. There just does not seem to be any other way to meet all the commitments of being a lawyer dad, and chances are that a half-hearted effort will be enough to make your wife say “jeez, that’s enough, just let me do it!”

Taking credit as the path to promotion

Two of the attributes examined during the decision-making process for promotion from one level of practice to another are success at taking credit and effective blame-shifting to paralegals and associates. Both are strong indicators of leadership potential, and without quality leadership, law firm profits suffer. So promotion committees take these things very seriously.

When I counsel young lawyers, many of them complain about the low quality of energy drinks in the office break room. The young lawyers are concerned about the impact on their own alertness from this perceived lack of liquid stimulants, and the managers they most often complain about are the lawyer dads.

But it is not only the young associates who notice. Promotion committees understand that a manager who shows little interest in increasing the waking hours of his or her reports impacts the “billing mindset” considered essential to the upward mobility of young lawyers and higher billable hours for the firm.

The “billing mindset” versus “client service mindset” debate is fairly new, but it embodies old concepts. It is now recognized that a billing mindset is the belief that timesheets are malleable, and that people can increase their reported hours over time with creativity and determination. By contrast, a client service mindset is the belief that lawyers should prioritize client service over profits.

It stands to reason that the management and leadership of most law firms would embrace a billing mindset because it allows for private school tuition and that ski lodge in Utah. And if that is true, those same law firms should want to help junior lawyers get around the insurance company’s “billing guidelines” with the assistance of more seasoned practitioners.

Effective mentoring and leadership are essential to successful business models, and as challenging as it can be for lawyer dads, they must be willing to be team players and invest time in picking out the right mahogany paneling for the office reception area.

Risky business

To do anything less is very risky. As lawyer dads strategize about their career paths, they must be aware of the pitfalls. They must understand that getting home in time to read Dr. Seuss to their small children, no matter how praiseworthy, can impact their professional upward mobility. They must make time for martinis and cigars with Les Davis, the corrugated box magnate who is pissed at his current firm for telling him he can’t write off the apartment he rents for his mistress.

A wise man, the ancient Chinese philosopher Lao Tzu, is credited with saying that a 12(b)(6) motion with no chance of success is still worth at least 12.7 billable hours. And I would add this nuance—to maximize the number of hours billed to a corporate client, you must be a frat brother of the assistant general counsel.

Middle-level lawyer dads are key components to achieving this goal. They should keep their eyes on the secretary who will be their third wife, embrace opportunities to exclude younger lawyers from the signature block of the brief, and continue the climb the ladder of success that was interrupted by the pandemic. They should be the narcissists and future executive committee members we know they can be.

_______________________

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

These are his opinions (well, not really), not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Is a Non-Recruitment Agreement a Non-Compete?

When you say “recruitment,” it brings up painful memories of law school. But hey, at least we had free pizza (sometimes).

Speaking of recruiting, the Wall Street Journal recently reported that employee mobility is at a two-decade high. That means a lot of employees are quitting their jobs and going to work for competitors. Anecdotal evidence from my own law practice suggests the same. There are a lot of departing employee disputes and lawsuits in Texas right now, and I suspect the same is true in other states.

In many cases, when those employees leave their employers, they will have employment agreements that restrict them from soliciting the customers or employees of their former employer. People often want to know if that’s a non-compete.

The short answer is yes. Generally, a restriction on soliciting a former employer’s customers or clients is a form of non-compete. I covered this in my popular post Is a Non-Solicitation Agreement a Non-Compete? The answer matters because a non-compete has to be reasonable in scope. See Tex. Bus. & Com. Code § 15.50(a).

Restrictions on soliciting employees get relatively less attention. Lawyers and non-lawyers alike tend to assume such restrictions are enforceable.

In Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2011), the Texas Supreme Court said that restrictions on soliciting a former employer’s “customers and employees” are restraints of trade governed by the non-compete statute. But Marsh was not about solicitation of employees, so the part about soliciting employees could be viewed as dicta.

There is conflicting Texas case law on whether a restriction on soliciting a former employer’s employees is a non-compete subject to the requirements of the non-compete statute.

Some Texas courts have held that a restriction on employee non-solicitation is not a restriction on competition. See, e.g., Totino v. Alexander & Associates, Inc., No. 01-97-01204-CV, 1998 WL 552818, at *8-9 (Tex. App.—Houston [1st Dist.] Aug. 20, 1998) (not designated for publication), dismissed pursuant to settlement, 1999 WL 182518 (March 30, 1999); Nova Consulting Group, Inc. v. Eng’g Consulting Servs., Inc., No. Civ. SA-03-CA-305-FB, 2005 WL 2708811, at *18 (W.D. Tex. June 3, 2005) (citing Totino).

(After I published the original version of this post, a little birdie told me that Totino was later dismissed pursuant to a settlement, and sure enough, Westlaw confirmed that.)

Other cases have held that a non-recruitment clause is a non-compete. See, e.g., Smith v. Nerium International, LLC, No. 05-18-00617-CV, 2019 WL 3543583, at *4 (Tex. App.—Dallas Aug. 5, 2019, no pet.) (mem. op.) (citing Marsh).

The better view is that a restriction on soliciting employees is a form of non-compete. (As always, this is just my opinion, not the opinion of my firm or clients.)

Think about it. Imagine that two competitors enter into an agreement not to solicit each other’s employees. Are you telling me such an agreement would not raise any antitrust concerns? No, of course it would.

Both the motive and effect of a restriction on soliciting employees are to prevent competitors from “poaching” employees. The company’s motive is to protect itself from competition. And the effect—if the restriction accomplishes its intended purpose—is to inhibit competition. So, a restriction on soliciting employees raises the same kind of anti-competitive concerns as a restriction on soliciting customers and should be treated as a non-compete.

Plus, If you say that a restriction on soliciting employees is not a non-compete, be careful what you wish for. Let’s assume for the sake of argument it’s not a “covenant not to compete.” In that case, it could still be a contract in restraint of trade or commerce, and that would make it illegal. See Tex. Bus. & Com. Code § 15.05. Or at the least, it would be subject to some reasonableness limitation.

I suppose you could argue that a restriction on soliciting employees is neither a restraint of trade and commerce nor a non-compete. But in that case, there would be no reasonableness limitation, and that seems like an untenable result. Are you saying that a restriction on soliciting employees could have a ten-year term, or no time limit at all? It makes more sense to treat a restriction on soliciting employees as a form of non-compete—as the Texas Supreme Court did in Marsh—which means it has a reasonableness limitation.

But what about those Texas decisions that said a restriction on soliciting employees is not a restriction on competition?

Some of those cases were decided before Marsh. So you could argue they were implicitly overruled by the contrary statement in Marsh.

Even aside from that, I don’t find the reasoning of those cases persuasive.

In the Totino case, the court considered whether a non-recruitment covenant was a prohibited contract “in restraint of trade or commerce.” The court held it was not, reasoning that a non-recruitment agreement is more like a nondisclosure covenant, which is not a non-compete. Totino, 1998 WL 552818, at *8-9.

Non-recruitment agreements, the court said, “do not necessarily restrict a former employee’s ability to compete with his or her former employer and, like nondisclosure covenants, should not significantly restrain trade.” The court added that an agreement not to solicit employees does not restrict those employees from leaving but only bars the former employee from soliciting them. Id. at *9.

The reasoning is flawed. First, the premise that a nondisclosure agreement is not a restraint of trade or commerce is too broad. A confidentiality agreement can be so broad that it functions as a non-compete. See Thoroughbred Ventures, LLC v. Disman, No. 4:18-CV-00318, 2018 WL 3752852, at *4 (E.D. Tex. Aug. 8, 2018) (nondisclosure agreement that has the practical effect of preventing the former employee from using general knowledge, skill, and experience should be treated as a non-compete).

Second, even if we assume nondisclosure agreements are not non-competes, comparing a non-recruitment restriction to a nondisclosure clause is inapt. The primary purpose of a confidentiality agreement is to protect confidential information; the effect on competition is incidental. But as noted earlier, with an agreement not to solicit employees, the primary purpose is to protect the employer from competition.

That leads me to the third flaw in the Totino reasoning. The argument that the non-solicitation agreement is not an absolute bar to employees leaving goes to the reasonableness of the restriction, not whether it restrains competition. A contract term does not have to absolutely prohibit competition to implicate the reasonableness concerns of the non-compete statute. Restraining competition—to some degree—should be enough.

I’m not saying that a restriction on soliciting employees is prohibited. I’m just saying that it should be treated as a non-compete subject to the limitations of the non-compete statute, particularly the reasonableness requirement.

Ultimately, I think that was the real rationale of Totino—that the restriction was reasonable. It would have been better for the court to say, “yes, a restriction on soliciting employees is a restraint on competition, but we find this one to be reasonable.”

That was essentially what the judge did in Everett Financial, Inc. v. Primary Residential Mortgage, Inc., No. 3:14-CV-1028-D, 2016 WL 7378937 (N.D. Tex. Dec. 20, 2016). The reasonableness requirement of Section 15.50(a) applies to employee non-solicitation agreements, the court said, citing Marsh. Id. at *8. But the court held that the restriction on solicitation at issue was reasonable in scope, despite the lack of a geographic limitation, and did not have to be limited to soliciting employees with whom the former employee had “personal contact.” Id. at *8-9.

Bottom line: Totino does not provide a solid basis for holding that a restriction on soliciting employees is not a non-compete, especially in the face of the contrary statement in Marsh. The better view is that a restriction on soliciting employees is a form of non-compete, and therefore it must meet the reasonableness requirement of the Texas non-compete statute. (Plus, Totino was an unpublished opinion in an appeal that was later dismissed, if you care about that sort of thing.)

Totino does make a fine cheap frozen pizza though. Law school students take note.

(Thanks to Dallas lawyer Sean Lemoine for pointing out Totino and its progeny, even if he incorrectly thinks Totino was right, and to Houston lawyer Leigh Freeman for pointing out the Thoroughbred Ventures case.)

_______________________

“Likelihood of Confusion” in Trademark Litigation

Man, I miss Dijonnaise.

It was revolutionary. Dijon mustard. Mayonnaise. Mixed together. In one bottle!

And the best part was the theme song, to the tune of Duke of Earl. Dij, dij, dij, dij-o-naise, naise, naise . . . Bet you can’t get that out of your head now.

Sadly, Dijonnaise was a flash in the pan. Maybe too many people asked, why not just put Dijon mustard and mayo separately, then put them together on the same sandwich?[1]

My response would be similar to that of Nigel Tufnel, lead guitarist for Spinal Tap. After showing off his amp with knobs that go up to 11, he was asked why don’t you just make 10 louder, and have 10 be the top number and make that a little louder?

“. . . These go to 11.”

Anyway, blended condiments are on my mind because I recently read Perry v. H.J. Heinz Company Brands, LLC, 994 F.3d 466 (5th Cir. 2021), also known as the “Metchup” case.

The court in that case held that Heinz’s fleeting use of “Metchup” as part of a promotional campaign for “Mayochup” and other branded condiment blends did not infringe on the plaintiff’s rights in the METCHUP trademark. (Trademark lawyers like to put the trademark in all caps, but I’m just gonna do it once.)

Besides containing some of the best deadpan judicial humor I have read in a long time, the Metchup opinion is also a good case study for understanding how courts decide “likelihood of confusion,” the key issue in most trademark lawsuits.

Even aside from trademark law, the Metchup opinion is a tutorial on how to write a humorous judicial opinion. Not a cringe-inducing attempt like what you usually see from a judge who should have just played it straight, but something actually funny.

The key is not to try too hard. Check out this understated introduction by Judge Graves:

Mr. Dennis Perry makes Metchup, which depending on the batch is a blend of either Walmart-brand mayonnaise and ketchup or Walmart-brand mustard and ketchup. Mr. Perry sells Metchup exclusively from the lobby of a nine-room motel adjacent to his used-car dealership in Lacombe, Louisiana. He has registered Metchup as an incontestable trademark. Though he had big plans for Metchup, sales have been slow. Since 2010, Mr. Perry has produced only 50 to 60 bottles of Metchup, which resulted in sales of around $170 and profits of around $50. He owns http://www.metchup.com but has never sold Metchup online. For better or worse, the market is not covered in Metchup.

Perry, 994 F.3d at 468.

This is how you do it. It paints a picture. It subtly indicates where this is going. And it doesn’t make light of a serious situation too much. I mean, sure, it pokes fun at Mr. Perry, but lightly, and no more so than he deserves.

This intro also sets up our first non-obvious trademark law lesson for non-trademark lawyers.

Lesson 1: Registration of a trademark isn’t that big a deal

Perhaps the most important and non-obvious thing to understand about trademark law is that trademark rights arise largely from use of a trademark, not registration of a trademark. Trademark lawyers probably say this to people at least ten times a week.

So in the Metchup case, Mr. Perry started to build his trademark rights the moment he started using Metchup as a mark to sell bottles of his special blend. When he later registered the trademark with the U.S. Patent and Trademark Office, affectionately known as the PTO, he acquired certain additional rights.

Bottom line: the mere fact that Mr. Perry owned a registration of the Metchup mark did not necessarily give him priority, and it did not necessarily mean that someone else’s use of “Metchup” would create a likelihood of confusion.

Like many trademark owners, Mr. Perry was probably very proud of his registration certificate for “Metchup,” but it’s only a piece of paper. His biggest problem was that his use of the trademark was miniscule. He produced only 50-60 bottles of Metchup and had only 34 documented sales. He never sold Metchup online. Id. at 468.

Enter Heinz, the global condiment behemoth. To promote Mayochup, its own mayonnaise-ketchup blend, Heinz held an online naming contest, and one fateful fan proposed “Metchup.” Heinz then posted mock-up bottles bearing various proposed names, including Metchup, but Heinz never sold a product labeled Metchup. Id. at 468-69.

This was Mr. Perry’s moment. He made a federal case of it, suing Heinz for trademark infringement in the Eastern District of Louisiana.

Lesson 2: You can get summary judgment on likelihood of confusion—sometimes

But it was not to be. The district court granted summary judgment for Heinz on the ground that Heinz’s use of “Metchup” and “Mayochup” did not create any likelihood of confusion with Mr. Perry’s Metchup.

A little background for non-lawyers and non-litigators: there are essentially three ways a key issue like likelihood of confusion can be decided in a lawsuit. First, on a motion to dismiss, where the judge decides the issue based purely on whether the plaintiff has pleaded a plausible claim. Second, on a motion for summary judgment, where the judge decides whether the evidence submitted by both sides presents any fact issue for a jury decide. Third, in a trial, where the jury decides (or the judge decides, if it’s a bench trial).

It’s possible to win a motion to dismiss a trademark infringement suit, if the court can see from the plaintiff’s own pleading that there is no likelihood of confusion. But it’s rare. In most trademark infringement lawsuits, the key procedural question will be whether likelihood of confusion will be decided through summary judgment or in a trial.

It is possible to get summary judgment on infringement, either for the plaintiff or for the defendant. It is also possible for the plaintiff to get summary judgment on likelihood of confusion. See, e.g., Epic Tech, LLC v. Fusion Skill, Inc., No. 4:19-CV-2400, 2021 WL 1599378, at *3-4 (S.D. Tex. April 23, 2021) (granting summary judgment on infringement to plaintiff based on the similarity of the marks coupled with the absence of any evidence in defendants’ favor on any other digits of confusion).

In the Metchup case, the Court of Appeals affirmed summary judgment for Heinz, the defendant. The court held that “no reasonable jury could conclude that Heinz’s use of Metchup in advertising or the sale of its own product, Mayochup, created a likelihood of confusion.” Therefore, Heinz was entitled to summary judgment dismissing the claim. Id. at 473.

But how did the court get there? Enter the digits.

Lesson 3: Some digits are more equal than others

To decide whether the defendant’s use of a trademark creates a likelihood of confusion with the plaintiff’s trademark, courts look at eight non-exhaustive factors. In the Fifth Circuit, we call the factors digits.

I don’t know why we don’t just call them factors. Someone should write a blog post on that.

Anyway, the digits of confusion are:

(1) the type of trademark (some types are stronger than others)

(2) the similarity of the marks

(3) the similarity of the products or services

(4) outlet and purchaser identity

(5) advertising media identity

(6) the defendant’s intent (this one can be tricky)

(7) care exercised by potential purchasers

(8) evidence of actual consumer confusion

Id. at 471.

The digits usually do not have equal weight. The last one—instances of actual confusion—can be an ace in the hole for the plaintiff. For example, if Mr. Perry had testimony from his good neighbors in Lacombe, Louisiana that they confused Heinz’s “Metchup” with Mr. Perry’s Metchup, that would be pure gold. That would make it almost impossible for Heinz to get summary judgment, meaning a jury would decide.

On the other hand, the absence of evidence of actual confusion doesn’t necessarily kill the plaintiff’s infringement claim. Many cases will not have any evidence of actual confusion. In most cases, the two key digits are the similarity of the trademarks and the similarity—or “relatedness”—of the products or services.

It’s easy to see why. There could be a likelihood of confusion where the trademarks have significant differences but the products are identical. Imagine a trademark that looks just like the Apple computer logo, except it’s an orange, used for computers. Apple’s lawyers would be all over that.

Conversely, you could have similar or even identical trademarks, but very different products, and have no likelihood of confusion. For example, people are unlikely to confuse APPLE as a trademark for computers with APPLE as a trademark for used car sales.

Similarity of the marks and similarity of the products. Those are the key digits.

Most of the time. In the Metchup case, not so much. The Metchup case was unusual, in that both the trademark—“Metchup”—and the product—a blended condiment—were identical, yet the court found no likelihood of confusion. Why?

First, the court noted that although both trademarks used the same word, the labels and bottles looked “nothing alike”:

Id. at 471-72. “The products’ distinguishable packaging mitigates against Heinz’s use of the word Metchup because the packaging differences make confusion less likely.” Id. at 472.

In addition to the differences in packaging, the huge differences in sales outlets and advertising were crucial. “Mr. Perry markets his products to the guests at his nine-room motel,” the court said, “Heinz to the shoppers at most every grocery and to online customers through an extensive web store.” “Sensibly speaking,” the court said, “Mr. Perry has no presence in Heinz’s market and Heinz no presence in his.” There was also the stark difference in advertising. “Mr. Perry does not buy print ads, issue coupons, enter his sauce in contests, or advertise Metchup on signage.” Id. at 472.

Plus, there was the lack of evidence of actual confusion. There was no evidence that “any consumer actually got confused by Heinz’s use of Metchup on a mock-up bottle or confused Heinz’s Mayochup with Mr. Perry’s Metchup.” Id. at 473.

I think this was really the key in the Metchup case. Remember, Heinz only used “Metchup” on a mock-up as part of a contest. If Heinz had actually named its product Metchup and put Metchup on the shelves of grocery stores across America—including Lacombe, Louisiana—the case might have come out differently. But Heinz’s fleeting use of “Metchup” as an example of a contest entry just wasn’t enough to create any likelihood of confusion.

Was there anything Mr. Perry’s lawyers could have done to avoid this conclusion? Suppose they hired an expert to do a consumer survey in Louisiana, showing random consumers a photo of Heinz’s “Metchup” mockup and asking, “who do you think makes this product?” And suppose a significant percentage of surveyed consumers said “oh, that’s the stuff Dennis Perry sells at that motel in Lacombe!”

In that case, it’s unlikely Heinz would get summary judgment. So why didn’t Mr. Perry do a survey?

Lesson 4: to survey or not to survey

Whether to hire an expert to do a consumer survey on likelihood of confusion is one of the key decisions in a trademark lawsuit. The benefit of survey is obvious. If an expert testifies that a significant percentage of surveyed consumers were confused, that suggests there’s a likelihood of confusion.

But there are two obvious reasons not to do a survey. First, it’s expensive. Second, the results probably won’t be good.

Think about it. The owner of a trademark always thinks his trademark is hot stuff. Ordinary consumers? Not so much. Based on the facts recited in the Metchup opinion, we can all guess how a survey would have come out. Hardly anybody was going to see Heinz’s Metchup bottle and think of Mr. Perry’s Metchup.

Mr. Perry did have an expert, though. Dr. Lucy L. Henke, a marketing professor with a doctorate in communication studies, testified that “the typical consumer would confuse Mayochup and Metchup due to visual and auditory similarities between the two names.” Id. at 473.

The court wasn’t buying it, especially when the expert “neither presented consumer survey data no provided an analysis of such data.” “Her testimony amounts to her personal opinion on the topic of actual confusion and does not address evidence where potential consumers were asked to offer their opinions or tested to see if they actually got, or were, confused by either Heinz’s use of the name Metchup in advertising or by it selling Mayochup.” Thus, the court said, her testimony “provides no evidence of actual confusion.” Id.

Ouch. The lesson for trademark litigators? If you’re going to have an expert testify on likelihood of confusion, that expert best come armed with a survey.

Otherwise, you’ll be playing ketchup.

_______________________

[1] My crack research team informs me that you can buy “Maille Dijonnaise Sauce” on Amazon for $12.63 a bottle.

How do you prove your employee electronically signed that agreement?

Remember Dawn Davis, the paralegal? She left her job at a Dallas law firm and moved to the Austin suburbs with her two kids, hoping she would eventually make more money as a sales person for Paula Payne Windows.

I wrote about this typical scenario in The Problem With Non-Competes. But I need to update it.

My original fact pattern had Dawn’s boss giving her a stack of documents to sign on her first day. But that’s so, like, GenX. You can’t expect Gen Y to sign documents on paper. And Gen Z? You might as well expect them to answer their phones when you call.

No, today Paula Payne Windows has an automated onboarding procedure. They worked with a software developer to build an online-only hiring application. The app automatically sends a welcome email to the email address Dawn provided when she was recruited and interviewed.

The email provides a unique hyperlink that leads to an online account-registration page where Dawn creates a unique user ID and password and selects security questions. Dawn has to enter her ID, password, and security-question answer every time she logs in.

Once the account is set up, the program presents Dawn with several agreements, starting with an Electronic Disclosure Agreement in which Dawn consents to be bound by her electronic signatures on the agreements, as if signed in writing. She has to agree to this before going any further.

Once Dawn agrees that her electronic signature is binding, the app presents her with three additional agreements, including an Employee Confidentiality, Non-Solicitation, and Non-Competition Agreement. The program allows her to sign the agreements in any order, but all of the agreements have to be signed before the app allows her to complete the electronic onboarding process.

This onboarding app keeps an electronic record of each document the candidate electronically signs, assigning a unique identifier and timestamp to each signed document. Once the app records that information, there is no way to change it (absent some extraordinary measures).

Dawn, of course, is not about to say “sorry, I can’t agree to this non-compete.” She already quit her old job, her kids are registered at new schools, and she paid a security deposit at a new apartment. So she doesn’t say anything about it.

For the next few years, Dawn doesn’t even think about the non-compete. Turns out she has a knack for the window game, and she becomes Paula Payne’s top sales performer. She’s so good that a competitor, Real Cheap Windows, offers her more money to take over its sales department. Dawn accepts.

You know the rest. The lawyer for Paula Payne Windows sends Dawn a nasty gram, files a lawsuit, and asks the judge for an injunction enforcing the non-compete.

“This is unfair,” Dawn tells her lawyer, “I never agreed to any non-compete when I accepted the job.”

“Ok,” her lawyer says, “but did you sign it?”

No way, Dawn says. “I never signed that non-compete agreement with Paula Payne Windows, electronically or otherwise.” And she signs an affidavit swearing to that.

But the HR manager at Paula Payne Windows signs an affidavit detailing how the electronic onboarding app works. “There’s no way Dawn could have completed the onboarding process without signing the non-compete agreement,” she says. “Plus, the electronic records show she signed it.” “Someone very sophisticated would have to hack into the system to change a record,” the HR manager says, “and there is no indication that has ever happened.”

Suppose you’re the judge in Paula Payne Windows v. Dawn Davis. Paula Payne Windows files a motion for partial summary judgment, asking you to rule as a matter of law that Dawn signed the non-compete. Dawn’s lawyer argues that her affidavit creates a fact issue for the jury to decide, precluding summary judgment.

What’s your ruling?

If you would grant summary judgment for Paula Payne Windows, then you’ll like the Texas Supreme Court’s decision in Aerotek, Inc. v. Boyd, No. 20-0290, 2021 WL 2172538 (Tex. May 28, 2021). (Justice Boyd wrote a dissenting opinion.)

Aerotek was an employment discrimination case, not a non-compete case, and the agreement at issue was an arbitration agreement called an MAA. But the facts concerning the computerized onboarding process were essentially the same as what I outlined in my hypothetical.

If you know something about summary judgment procedure, you might be thinking “wait, this is all wrong, how does the employee’s testimony not create a fact issue?”

But there’s one thing I’ve left out: The Texas Uniform Electronic Transactions Act (TUETA), found in Chapter 322 of the Texas Business and Commerce Code.

Under the TUETA-lage of SCOTX

The purpose of TUETA is “to facilitate electronic transactions” consistent with “reasonable practices concerning electronic transactions and with the continued expansion of those practices.” Tex. Bus. & Com. Code § 322.006.

With some exceptions, like signing a will, the statute applies to most transactions, including business and employment transactions. See Tex. Bus. & Com. Code § 322.003.

Duke Ellington released “East St. Louis Toodle-O” in 1927. 80 years later Texas enacted TUETA. Coincidence?

Assuming TUETA applies, it has two major policies. First, if a law requires an agreement to be in writing, an “electronic record” satisfies the law. Second, if a law requires a signature, an “electronic signature” satisfies the law. Tex. Bus. & Com. Code § 322.007.

This makes sense in today’s digital world, but it doesn’t really answer our question. Dawn isn’t arguing that an electronic signature on the agreement is invalid, she’s arguing that she never signed the agreement. The question isn’t whether an electronic signature is valid, but how you prove someone electronically signed.

But TUETA touches this topic too. And that’s really what Aerotek was about. As the court said:

Once parties to a transaction have “agreed to conduct [it] by electronic means”, the Act provides a standard for attributing electronic signatures to them. Section 322.009(a) provides that an “electronic signature is attributable to a person if it was the act of the person.” That “may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.”

Aerotek, 2021 WL 2172538, at *5.

TUETA defines “security procedure” to include . . . well, you get the idea. Bottom line: “A record that cannot be created or changed without unique, secret credentials can be attributed to the one person who holds those credentials.” Id.

Aerotek offered detailed evidence that, if believed, was sufficient to satisfy this standard. But the trial court wasn’t having it. The trial court judge in Aerotek denied the motion to compel arbitration, impliedly finding that the employees did not sign the MAA. Id. at *3.

A little background on procedure: On a motion to compel arbitration, the trial court judge is the finder of fact. If there is conflicting evidence about whether the employee signed the agreement, the trial court judge decides. The trial court is free to disregard evidence it does not find credible. And the trial court’s decision will be upheld on appeal, unless the evidence “conclusively” establishes that the trial court judge was wrong.

The Texas Supreme Court does not make factual determinations (in theory), so Aerotek had the heavy burden of showing that the evidence before the trial court conclusively established that the employees signed the MAA.

The employees argued that the trial court judge was free to disregard the testimony of Aerotek’s witnesses and to credit the testimony of the employees, but the Texas Supreme Court disagreed, for several reasons.

First, the employees conceded that they completed the computerized hiring application and electronically signed the documents included, except for the MAA. Id. It might have been different if the employees claimed they didn’t use the electronic onboarding system at all.

Second, Aerotek offered specific, detailed evidence showing that the employees must have electronically signed the MAA:

To enter the application, a candidate was required to create for himself a unique identifier, a user ID, a password, and security questions, all unknown to Aerotek.
The candidate was required to enter personal information and sign documents by clicking on them.
The application recorded and timestamped the candidate’s every action.
The application’s business rules made it so that the application could not be submitted until all steps were completed and all required signatures provided, including on the MAA.
Once a candidate submitted his application, Aerotek could not modify its contents.
Aerotek provided the signed MAAs marked with timestamps identical to those in its database records showing each Employee’s progress through the application.

Id. In short, the testimony from Aerotek’s program manager, Marsh, showed that “it was impossible to complete the hiring application without signing the MAA.” Id. at *6.

Third—and this is probably the key—Marsh’s testimony was uncontroverted.

Yes, the employees testified they did not sign the MAA, but that’s all they said. They did not offer any evidence disputing the points made by the program manager.

For example, “the Employees could have requested forensic tests of the hiring application to show that it did not operate as March described, but they did not.” Id. The employees were “free to seek discovery to discredit Aerotek’s evidence,” the court said, but “[t]hey chose not to.” Id.

TUETA-loo to signing employment documents on paper?

We can draw several practice tips from Aerotek.

First, if you represent employers who have employees sign agreements when they start—and who doesn’t, these days—you should recommend an electronic onboarding process. (I’m assuming software for this is readily available and doesn’t have to be custom-made.)

Aerotek shows us that not only is an electronic onboarding process adequate, it is in some ways superior to getting wet signatures on paper.

Think about it. Suppose Dawn Davis signs the non-compete agreement, you scan it in to the system, and the hard copy gets shuffled away to who knows where. Years later, the company offers a signed copy of the agreement as evidence. “Yes, that looks like my signature,” Dawn testifies, “but I’m quite sure I never signed that document.” Someone must have faked it, she says.

How is the employer going to refute that testimony? Maybe if they’re lucky, Paula Payne Windows has a witness who will testify, “I have a clear recollection of watching Dawn sign the agreement that day.” But even then, Dawn’s contrary testimony is still going to create a fact issue. See Ward v. Weaver, 34 S.W.2d 1093, 1094 (Tex. Comm’n App. 1931, judgm’t affirmed) (discussed in Aerotek).

An electronic process like the one in Aerotek avoids that problem.

Second, if you represent the employer in a lawsuit and the employee denies signing the agreement, offer specific testimony as close to the evidence in Aerotek as possible. You can use the bullet-pointed facts above as a checklist.

Third, if you represent an employee who swears up and down she never electronically signed that agreement, just offering the employee’s denial is not going to cut it (assuming the employer offers evidence like the testimony in Aerotek). You’re going to have to offer something more to discredit the employer’s evidence.

This may require some judgment calls. Do you really want to embark on an expensive forensic inquiry into the employer’s onboarding system just because your client says “I’m pretty sure I didn’t sign that”?

On the other hand, if the client is 100% certain she didn’t sign the agreement at issue, and if the issue is important enough—often it will be—then you may have no choice but to roll up your sleeves and get your hands dirty (electronically speaking).

Maybe Dawn should consider forensic investigations for her next job.

_______________________

Motions to Seal in Texas Trade Secrets Litigation

If you’re a Texas litigator, like me, then you probably already know that filing documents in state court under seal can be kind of a pain. There’s this pesky Rule 76a of the Texas Rules of Civil Procedure.

Rule 76a reads like it was written by some real do-gooder types:

Court records are “presumed to be open to the general public.”
Sealing court records requires showing a “specific, serious and substantial interest” that outweighs both the “presumption of openness” and “any probable adverse effect that sealing will have upon the general public health or safety.”
You have to file a motion to seal that is “open to public inspection” and “post a public notice” at the courthouse.
The public notice must contain “a brief but specific description of both the nature of the case and the records which are sought to be sealed.”
The court must hold a public hearing on the motion to seal.
The sealing order must state the “specific reasons” for finding the required showing has been made.
A non-party—oh, I don’t know, like maybe, the press?—can intervene to oppose a motion to seal.
Anyone who participated in the hearing can appeal the ruling.

This is great, right? We can’t have a Ford Pinto situation where Big Corp seals the court records that show its product explodes on impact and kills unsuspecting consumers. Openness! Transparency! Sunlight is the best disinfectant! The public has a right to know!

That all sounds great, but for most practicing litigators, this just sounds like stuff from the movies.

In a typical lawsuit I handle, my client cares a lot about the case, as does the opposing party, but nobody else cares. So, when I file a sealing motion under Rule 76a and post a notice on the courthouse door, I know that no one is going to read that notice or show up at the hearing to contest the motion. Ronan Farrow just isn’t going to care about the confidential profit margins inside Jim Bob’s Valve Supply Shop.

So for me, Rule 76a is just a hoop to jump through, with no public benefit, and it’s kind of annoying. It’s not that big a deal, but it is one more thing my client has to pay for.

This is especially likely to be an issue in my focus area, departing employee litigation, because that kind of case usually includes claims between competitors regarding confidential information and trade secrets. If the point of the lawsuit is to try to protect my client’s trade secrets, the last thing I want to do is reveal the trade secrets in documents publicly filed with the court.

Enter TUTSA, the Texas Uniform Trade Secrets Act. While Rule 76a establishes a presumption of openness designed to protect the public’s right to know, TUTSA has a whole section designed to do the opposite.

Specifically, Section 134A.006(a) of the Texas Civil Practice and Remedies Code commands that “a court shall preserve the secrecy of an alleged trade secret by reasonable means.” Then it goes on to say that “[t]here is a presumption in favor of granting protective orders to preserve the secrecy of trade secrets.” And the options available to the judge include “sealing the records of the action.”

But how do we square this more permissive sealing rule for trade secrets cases with the more restrictive Rule 76a?

Well, TUTSA itself tells us how. “To the extent that this chapter conflicts with the Texas Rules of Civil Procedure, this chapter controls.” Tex. Civ. Prac. & Rem. Code § 134A.007(c).

And just in case that wasn’t clear enough: “the supreme court may not amend or adopt rules in conflict with this chapter.” Id.

Well, that settles it. If a case involves alleged trade secrets, then a motion to seal is governed by the more flexible provisions of TUTSA, and the hoop-jumping exercises of Rule 76a don’t apply, right?

Not so fast. TUTSA only displaces Rule 76a where the two are in conflict. In HouseCanary, Inc. v. Title Source, Inc., No. 19-0673, 2021 WL 1711123 (Tex. April 30, 2021), the Texas Supreme Court held that TUTSA only displaces some of Rule 76a.

(If the name of the case sounds familiar, maybe it’s because I wrote about the substantive issues in HouseCanary in The Jury Charge in Texas Trade Secrets Litigation.)

Writing for the majority, Justice Busby explained that TUTSA partially displaces the substantive sealing standards of Rule 76a, but “does not provide a separate, self-contained pathway—independent of Rule 76a—for seeking and ordering the sealing of court records.” In other words, “Rule 76a provides procedures and standards for sealing court records that include trade secrets, while TUTSA provides standards for protecting secrets by means including sealing.”

So what does TUTSA displace and not displace?

Specifically, HouseCanary held that TUTSA replaces the Rule 76a presumption that court records are open with a presumption “in favor of granting protective orders to preserve alleged trade secrets, including those in court records.”

But HouseCanary rejected the argument that “TUTSA supplants all of Rule 76a and provides an entirely separate path to sealing.” “Showing a conflict between TUTSA and one part of Rule 76a does not displace the whole rule,” Justice Busby reasoned. “Those procedures include public notice, the prohibition against motions for reconsideration absent changed circumstances, and the right of appeal.”

But how do you give public notice without spilling the beans? Easy. “[H]olders of a trade secret can notify the public of the type of information they seek to seal without disclosing that information,” the court said.

This is perhaps the most important practical result for practicing litigators: even in a trade secrets case, if you want a sealing order you still have to post the public notice required by Rule 76a.

And you still have to show that less restrictive means than sealing entire records—such as redaction—would be effective to preserve the trade secrets. That’s because TUTSA “lists a sealing order as only one of several means of preserving a trade secret.”

Thus, TUTSA is not necessarily a free ticket to seal any document filed with the court that a party claims contains alleged trade secrets.

So, the upshot of HouseCanary is that if you want to file a document in Texas state court under seal, on the ground that it contains alleged trade secrets, then you should:

File a motion to seal under Rule 76a.
Cite the presumption of protection of trade secrets from TUTSA, Tex. Civ. Prac. & Rem. Code § 134A.006(a).
Point out the presumption of openness in Rule 76a(1) does not apply (citing HouseCanary).
Explain why less restrictive means, such as redaction, would not be adequate to protect the secrecy of the information. Tex. R. Civ. P. 76a(1)(b).
Post the required public notice, including a “brief but specific description of . . . the nature of the case,” Tex. R. Civ. P. 76a(3), and a description of the “type of information” you seek to seal “without disclosing that information.” HouseCanary.
Present your proposed sealing order at the hearing.
Make sure your proposed order recites all the things required by Rule 76a(6) (except you probably don’t have to include “the specific reasons for finding and concluding whether the showing required by paragraph 1 has been made,” because under HouseCanary, that requirement is displaced by TUTSA).

Yes, this is kind of a pain, but no, you don’t have to reinvent the wheel every time you do it. I’m sure some helpful blogger will publish a form Motion to Seal soon.

And assuming nobody shows up at the hearing to oppose the motion, your motion will usually be granted.

But there’s still one problem. This procedure is all well and good for pretrial filings with the Court, but what about evidence at trial? In a trade secrets trial, there will be both testimony and exhibits that reveal the alleged trade secrets. Trials are generally open to the public.

So if you offer evidence of your client’s trade secrets, or fail to object when the other side does so, have you waived trade secrets protection?

This was also an issue in HouseCanary. Title Source argued that HouseCanary waived trade secret protection by offering exhibits containing the trade secrets and discussing them in open court.

But the Texas Supreme Court said these facts alone did not conclusively establish a waiver. The court reasoned that information does not have to be kept “absolutely secret” to maintain trade secret status. Only “reasonable measures” are required. Tex. Civ. Prac. & Rem. Code § 134A.002(6)(A). Whether secrecy has been lost is a “fact-intensive determination,” and publicly filing a document containing the trade secrets is just one factor to consider.

“Other relevant considerations include whether and when subsequent measures were taken to preserve the document’s secrecy, whether a competitor could readily ascertain the information, and whether the document was further published or disseminated outside court records.”

Thus, Title Source did not conclusively show that the exhibits lost their trade secrets status just because they were offered in a trial open to the public.

Dealing with trial exhibits containing alleged trade secrets is still a practical problem. But HouseCanary at least establishes that trade secrets status is not automatically lost just because an exhibit is admitted in the trial without a sealing order.

_______________________

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

"Why do you write like you're running out of time?"

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