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INTERVIEWING AND COUNSELING

Spring 2012

Class Hours: Tuesday and Thursday, 4:00-4:50 p.m. Room 202 I. COURSE OBJECTIVES

Professor Fernando M. Bustos Telephone 780-3976 fbustos@bustoslawfirm.com

This course teaches the basic skills involved in interviewing and counseling clients. Several ABA reports indicate that while law schools do a good job of teaching legal analysis skills, they do not prepare students as well to perform many of the skills involved in the practice of law. Skills such as interviewing and counseling are part of the day-to-day activities of virtually every practicing lawyer, yet many law schools do not teach these skills, instead leaving it to lawyers to learn-by-doing this important art. While learning-by-doing is an accepted and indispensable method of teaching some legal skills, this method is not preferable, because clients money, security, freedom, and lives are at stake. Fortunately, there are established theories about interviewing and counseling that have been translated into skills and techniques that can be taught in law school. These skills and techniques, properly taught to students, will enhance their effectiveness as lawyers. The first objective of the course is to enable you to understand interviewing and counseling theories and techniques. To accomplish this objective, you will have reading assignments and class discussions about those theories. The second goal of the course is to enable you to develop and refine the practical skills of interviewing and counseling clients. To do this, you will participate in simulations based on certain fact patterns. These simulations will be evaluated by you, your classmates, and myself. After completing the course, you will be able to: A. B. Understand the basic theories for conducting interviewing and counseling. Understand the advantages and disadvantages of the various theoretical approaches to interviewing and counseling. Understand that one size does not fit all when it comes to interviewing and counseling clients. Develop a theoretical approach that works best for you in the interviewing and counseling setting. Apply the technical skills underlying the collaborative approach to interviewing and counseling.

C.

D.

E.

F. G.

Practice and refine these technical skills. Better appreciate the human dynamics of interviewing and counseling.

II.

COURSE FORMAT

This is a practice course. While it involves some reading in order to teach the principles of interviewing and counseling, it mainly involves practice exercises and simulations aimed at teaching basic skills. To that end, the typical class will consist of student discussion, participation in assigned portions of practice exercises or simulations, and occasional lecture by the instructor. YOU ARE EXPECTED TO READ ALL ASSIGNED READINGS AND TO HAVE PREPARED, CAREFULLY AND ON TIME, EVERY ASSIGNED CLASSROOM EXERCISE.

III.

ATTENDANCE

Attendance is required. A student can take up to five absences for any purpose, including illness and interviews. Pursuant to the policies set forth in the Law Student Handbook, I reserve the right to raise or lower your final grade as much as one step depending on class preparation, participation and attendance. Five absences will lower your final grade by one step (i.e., if your grade is a B, I will lower it to a C+). If you miss six classes, you must withdraw from the course. Habitual tardiness can also result in lowering your grade one step.

IV.

GRADING AND ASSIGNMENT INFORMATION

Sixty percent (60%) of your grade will be based on two simulations: an interviewing simulation and a counseling simulation, which will occur at approximately the midpoint and end of the course, respectively. The other forty percent (40%) of your grade will be based on class participation, which includes class discussions and several learning simulations and exercises.

V.

REQUIRED READING The Counselor-at-Law: A Collaborative Approach to Client Interviewing and Counseling, Cochran, DiPippa & Peters (Lexis Nexis 2006, 2d ed). Supplemental Readings (included with this syllabus at pages 1-37).

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VI.

GENERAL INFORMATION

As an adjunct professor, I do not maintain regular office hours. However, you are invited to call me or email questions to me at fbustos@bustoslawfirm.com. I am happy to meet afterhours to discuss class matters. When participating in the midterm Interview Simulation and the final Counseling Simulation, you are expected to wear a business suit (or equivalent attire) to class. Please also observe the rules that apply to attorneys in a real life office situation. Also, as far as personal demeanor is concerned, the fact situations that make up the practical exercises are not intended for humor. Please be serious when conducting interviews and counseling clients. When another class member is doing so, do not try to find amusement either in his or her efforts or in the clients responses. Never be demeaning or insulting to the client during any exercise. Practical exercise assignments will be made on a week-by-week basis. Occasionally, this will include designation of pairs of students to work together. ANY STUDENT WHO, BECAUSE OF A DISABILITY, MAY REQUIRE ANY SPECIAL ARRANGEMENTS IN ORDER TO MEET COURSE REQUIREMENTS SHOULD CONTACT THE INSTRUCTOR AS SOON AS POSSIBLE TO MAKE NECESSARY ACCOMMODATIONS. Texas House Bill 256 requires institutions of higher education to excuse a student from attending classes or other required activities, including examinations, for the observance of a religious holy day. The student shall also be excused for time necessary to travel. An institution may not penalize the student for the absence and must allow the student to take an exam or complete an assignment from which the student is excused. No prior notification of the instructor is required.

VII.

READING SCHEDULE AND PROJECT ASSIGNMENTS Thursday, January 19: Introduction & Overview of Course. Introduction to Collaborative Interviewing & Counseling Read Chapter 1 - Three Models of Legal Counseling, pgs. 1-9 Read Chapter 2 - The Games Lawyers Play: How Lawyers Control Clients, pgs. 11-27 Continue review of Chapter 2 - The Games Lawyers Play: How Lawyers Control Clients, pgs. 11-27

Tuesday, January 24:

Thursday, January 26:

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Tuesday, January 31: Thursday, February 2:

Read Chapter 3 - Communication Skills, pgs. 29-54 Continue review of Chapter 3 - Communication Skills, pgs. 29-54 Read Chapter 4 - Beginning The Legal Interview, pgs. 5572 Continue review of Chapter 4 - Beginning The Legal Interview, pgs. 55-72 Read Chapter 5 - Hearing the Clients Story, pgs. 73-92 Continue review of Chapter 5 - Hearing the Clients Story, pgs. 73-92 Read Chapter 6 - Developing The Clients Story, pgs. 93-106 Continue review of Chapter 6 - Developing The Clients Story, pgs. 93-106 Interview Simulations Interview Simulations Read Chapter 7 - Decision-Making, pgs. 107-134 Continue review of Chapter 7 - Decision-Making, pgs. 107-134

Tuesday, February 7:

Thursday, February 9:

Tuesday, February 14: Thursday, February 16:

Tuesday, February 21:

Thursday, February 23:

Tuesday, February 28: Thursday, March 1: Tuesday, March 6: Thursday, March 8:

SPRING BREAK WEEK OF MARCH 12 Tuesday, March 20: Thursday, March 22: Read Chapter 8 - Client Counseling, pgs. 135-168 Continue review of Chapter 8 - Client Counseling, pgs. 135-168 Read Chapter 9 - Moral Choices In The Law Office: Who Gets Hurt? And Who Decides? pgs. 169-189 Continue review of Chapter 9 - Moral Choices In The Law Office: Who Gets Hurt? And Who Decides? pgs. 169-189

Tuesday, March 27:

Thursday, March 29:

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Tuesday, April 3:

Read Chapter 10 - To Sue Or Settle?: Counseling About Dispute Resolution, pgs. 191-204 Continue review of Chapter 10 - To Sue Or Settle?: Counseling About Dispute Resolution, pgs. 191-204 Read Chapter 11 - Dealing With Client-Lawyer Difference, pgs. 205-223 Continue review of Chapter 11 - Dealing With ClientLawyer Difference, pgs. 205-223 Read Chapter 12 - Lawyers, Clients, and Psychological Type Theory, pgs. 225-247 Continue review of Chapter 12 - Lawyers, Clients, and Psychological Type Theory, pgs. 225-247 Guest Speaker - Lawyers, Clients, and Psychological Type Theory Supplemental Readings, pgs. 1-37 Counseling Simulations Counseling Simulations

Thursday, April 5:

Tuesday, April 10:

Thursday, April 12:

Tuesday, April 17:

Thursday, April 19:

Tuesday, April 24:

Thursday, April 26: Tuesday, May 1: Thursday, May 3:

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Abraham Lincolns Notes from a Law Lecture


I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, ordinary collection cases, foreclosures, partitions, and the like, make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not. Extemporaneous speaking should be practised and cultivated. It is the lawyers avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance. Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it. The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note at least not before the consideration service is performed. It leads to negligence and dishonesty negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

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There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

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LAW OFFICES OF FERNANDO M. BUSTOS, P.C.


LUBBOCK NATIONAL BANK BUILDING 1001 MAIN STREET, SUITE 501 - 79401 P.O. BOX 1980 - 79408-1980 LUBBOCK, TEXAS TELEPHONE (806) 780-3976 FACSIMILE (806) 780-3800
Website: www.bustoslawfirm.com

FERNANDO M. BUSTOS AARON M. PIER DUSTIN N. SLADE*


*Also licensed in the State of New Mexico

ALEX M. BUSTOS
Of Counsel
E-Mail Address: fbustos@bustoslawfirm.com

November 3, 2011

Mr. John Doe 123 ABC Street Lubbock, TX 79499 Re: Legal Engagement of Law Offices of Fernando M. Bustos, P.C.

Dear Mr. Doe: This will confirm our engagement to act as your attorneys with regard to your claim against Transport Workers Union NO. 789 and Unfriendly Airlines. I will be the lawyer who will work on this matter on your behalf, together with one or more associates and one or more paralegals. As we discussed, I will handle this case for the lesser of my hourly rate which is $300.00 for my services, my associates hourly rate of $200.00, and paralegals time at $100.00 per hour, or on a contingent fee basis. The contingency attorneys' fee will be thirty-three percent (33%) of the amount recovered and collected at any stage of the case before suit is filed. If a lawsuit is filed, the attorneys fee will be forty percent (40%) of any amount recovered and collected, either by settlement or final judgment. In addition to said fee, attorneys shall be reimbursed in the amount of any and all necessary and reasonable expenses including, but not limited to, deposition expenses, expert witness fees, and long distance phone calls incurred in the handling of the case. I will submit statements to you on a monthly basis, detailing the work done and the expenses incurred. Past due amounts will be shown on the invoice and balances which are delinquent over thirty (30) days will accrue one and one-half month interest per month. These statements will be due and payable upon receipt, and if you have any questions as to any statement, please contact me immediately so that any questions or problems can be resolved without delay.

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By engaging this firm as legal counsel, you agree to cooperate in locating witnesses, securing testimony, and assisting in any other matter desired, and you expressly agree that you will in no way induce any witness to color his or her testimony, to testify falsely or unfairly, or in any other manner interfere with the securing of a fair and impartial trial. It is expressly further agreed that this law firm may withdraw from this engagement on your behalf if you: (a) Insist upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith arguments of an extension or modification or reversal of existing laws; Insist that your attorneys pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules of the State of Texas; Insist that your attorneys engage in conduct that is contrary to their judgment and advise, even if such conduct is not contrary to the Disciplinary Rules of the State of Texas; or Deliberately disregard the agreement to pay the costs and expenses as set forth herein.

(b)

(c)

(d)

By engaging this firm as legal counsel, you also acknowledge that your attorneys have made no guarantee or warranty regarding the successful resolution of negotiations or litigation, and any expressions relative thereto are matters of your attorneys opinion only and shall not be considered as express or implied warranties of the outcome of this litigation. Further, no representation has been made as to the length of time involved in order to resolve this matter. In the event it becomes necessary for your attorneys to withdraw as counsel, you agree to promptly approve any motion or motions required to accomplish this. If the withdrawal is for good cause [good cause shall be for any of the reasons listed above under subparagraphs (a) through (d)], the attorneys shall be entitled to all of the compensation set forth in this agreement. This agreement will take effect and our engagement will commence immediately when this letter has been approved by you. This agreement and its performance are governed by Texas law. If you agree to the terms of our engagement set forth above, please sign your name in the space provided below and return a signed copy of this letter to me in the enclosed self-addressed stamped envelope. I thank you for selecting me as your legal counsel on this matter, and look forward to assisting you and establishing a satisfactory attorney-client relationship with you, now and in the future.

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Sincerely, Law Offices of Fernando M. Bustos, P.C.

Fernando M. Bustos FMB/db

AGREED TO ON THIS

DAY OF ___________________, 2011

John Doe

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LAW OFFICES OF FERNANDO M. BUSTOS, P.C.


LUBBOCK NATIONAL BANK BUILDING 1001 MAIN STREET, SUITE 501 - 79401 P.O. BOX 1980 - 79408-1980 LUBBOCK, TEXAS TELEPHONE (806) 780-3976 FACSIMILE (806) 780-3800
Website: www.bustoslawfirm.com

FERNANDO M. BUSTOS AARON M. PIER DUSTIN N. SLADE*


*Also licensed in the State of New Mexico

ALEX M. BUSTOS
Of Counsel
E-Mail Address: fbustos@bustoslawfirm.com

October 24, 2011

Ms. Jane Doe 123 XYZ St. Lubbock, TX 79499 Re: Doe v. Good Samaritan Medical Center, Civil Action No. 5:11CV123; In the United States District Court for the Northern District of Texas, Lubbock Division Litigation Overview

Dear Ms. Doe: Attached with this letter please find a copy of the Complaint we filed on your behalf in the abovereferenced lawsuit. I take this opportunity to advise you that you should not discuss this matter or allow any of the witnesses under your control to discuss this matter with any adverse party or any representative of an adverse party or to give any information about the case. Since we have been hired to represent you in all likelihood the only appropriate contact you will have about this case in the future will be with me or someone with my office. Anyone with my office will specifically tell you they work for this law firm when they contact you. Effective Representation At this time, I would ask that you do several things to assist me in handling the case on your behalf: 1. Please notify me immediately if you change your address or phone number or leave town for any reason for any significant length of time.

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2.

If I correspond with you or try to contact you by telephone or email, please try to respond as soon as possible, as many times I have very short time schedules imposed on me by the Court. If you have facts or information that you feel affects your case in any way, or, if you have questions about the status of your case, please call me collect at 806-780-3976.

3.

General Information If you have never been involved in litigation, the following information is meant to give you a general overview of the process. Once a lawsuit has been filed, it must either be dismissed, settled, or a trial must take place. Although the lawsuit can be dismissed at any time by the person who brings the suit (the Plaintiff), occasionally a lawsuit can be dismissed by the judge, without the Plaintiff's permission. Dismissals are fairly infrequent. Most suits are settled prior to trial. We cannot count on a settlement, however, and therefore the case must be prepared as though it is going to be tried. There are several stages in the development of a lawsuit as it moves from the filing of the suit to a final disposition, either by dismissal, settlement or trial. Some of these will directly involve you and some will not. I will try to keep you informed of the progress of the case as it develops. The first stage is called the discovery stage. This involves several different matters, such as interrogatories, depositions, obtaining medical records and other records that may play some part in the claims or defenses of the parties, and the amendment of pleadings. Interrogatories and Requests for Disclosure Interrogatories and requests for disclosure are written questions exchanged by and between the parties. These call for answers by the opposing side. The answers must be made under oath. I will ordinarily send some Interrogatories to the opposite party. I anticipate that they may well forward us a set, as well. If so, I will call upon you to assist me in answering these questions. Depositions Depositions are informal proceedings where sworn testimony is taken. Ordinarily, I will take the deposition of the opposing party, and they will ask to take your deposition. Many times depositions will be taken from other persons, such as doctors and other experts, as well as the parties to the lawsuit.

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If depositions are requested, I will contact you and schedule the same. I will meet with you prior to the deposition to go over the procedures, the questions that will probably be asked, and hopefully answer any questions you may have and put you more at east in regard to what will be occurring. Trial Settings Ordinarily, you may expect many months to elapse between the filing of the lawsuit and the final disposition. Many times the disposition of lawsuits takes several years. I will need to keep in touch with you and be able to contact you at all times. I will advise you when the Judge sets the case for trial, find out if you have any insurmountable scheduling problems for the trial date, or obtain further information from you. Many times the Judge has to set the case for trial several times before we are finally able to dispose of it. This is because there are other cases on the docket ahead of this case and the Judges will always set several cases at one time. Many times other witnesses, attorneys, or the Judge will have scheduling problems and we will be unable to dispose of the case until the second or third time it is set for trial. Trial Preparation Before the case is tried, I will meet with you again, review procedures for the trial with you, review the facts of the case with you and answer any questions you may have. Conclusion I look forward to working with you toward a favorable resolution of this matter and I again extend an invitation for you to contact me at your convenience should you have any questions about the handling of this lawsuit or other matters. Sincerely, LAW OFFICES OF FERNANDO M. BUSTOS, P.C.

Fernando M. Bustos FMB/dt

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LAW OFFICES OF FERNANDO M. BUSTOS, P.C.


LUBBOCK NATIONAL BANK BUILDING 1001 MAIN STREET, SUITE 501 - 79401 P.O. BOX 1980 - 79408-1980 LUBBOCK, TEXAS TELEPHONE (806) 780-3976 FACSIMILE (806) 780-3800
Website: www.bustoslawfirm.com

FERNANDO M. BUSTOS AARON M. PIER DUSTIN N. SLADE*


*Also licensed in the State of New Mexico

ALEX M. BUSTOS
Of Counsel
E-Mail Address: fbustos@bustoslawfirm.com

October 1, 2011

Mr. John Doe 123 ABC St. Lubbock, TX 79499 Re: Non-Engagement

Dear Mr. Doe: After talking with you, I have concluded that I will be unable to assist you in your claim against XYZ Corp. I urge you to contact another attorney as soon as possible if you wish to pursue the matter further. The law imposes strict time limitations on persons asserting legal claims against others, and the length of those deadlines varies according to the nature of the case. It is therefore important that you act immediately to insure that your case is not barred by the passage of time. I wish you the best of success in this legal matter.

Sincerely, LAW OFFICES OF FERNANDO M. BUSTOS, P.C.

Fernando M. Bustos FMB/dt Page 9

GUIDELINES FOR GIVING YOUR DEPOSITION TESTIMONY INTRODUCTION A deposition is a legal proceeding at which a witness is placed under oath and asked questions. Customarily, the questions are asked by an attorney, and the witness (or the deponent) is represented by an attorney. A court reporter transcribes what is said, although there are times that discussions are had off the record. The other side has decided to take your deposition for a number of reasons. First, it is a means to obtain discovery; that is, a means to obtain information about the claims, contentions and defenses of the parties in this case. Second, it is a way to perpetuate your testimony. Third, it is a vehicle to have you authenticate documents. Fourth, it is a method for obtaining admissions from you. Finally, it is a way to pin down your story. If you testify differently at trial than you did during your deposition -- even on an unimportant point -- the other side will try to impeach you by using your deposition testimony. Following are some tips, entitled The Ten Commandments of Being a Good Deponent, on how to conduct yourself during your deposition. We will be discussing these commandments with you, but you should keep them as a reminder and read over them. In addition, we have provided an example of how not to behave as a witness. These materials and our discussions with you are privileged and confidential and should not be disclosed to or discussed with anyone else.

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THE TEN COMMANDMENTS OF BEING A GOOD DEPONENT 1. LISTEN TO EACH QUESTION CAREFULLY It is extremely important to listen to each question so that you are certain that you understand precisely what the questioner is asking you. 2. PAUSE AND THINK BEFORE ANSWERING EACH QUESTION You should wait until each question is asked and think before answering every question. As no jury is present at a deposition, you can afford to take time to think through the question and give a well thought-out answer. You should also take the time to be sure that you understand the question. If you do not, you can ask that it be rephrased or that the court reporter read the question back. In addition, by pausing and thinking, you can protect against the rapid-fire questioning technique used by some lawyers, which is designated to lead your testimony and to prevent sufficient time to measure your answers. You will also be better able to spot trick questions and not fall into the trap of adopting or accepting the characterizations and adjectives of the lawyers examining you. Finally, pausing and thinking will give your lawyer additional time to object. 3. LISTEN TO YOUR LAWYER CAREFULLY From time to time, your lawyer may object to questions. Listen to your lawyer. In the course of stating his objection or the basis for it, he may, quite legitimately, be able to indicate the flaw in the question to help you think through the answer you will give. Never be so anxious to answer a question that you ignore your attorneys objection and continue to answer. By ignoring your attorney, you may waive the attorney-client privilege, answer an improper question, or volunteer information.

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4.

LIMIT YOUR ANSWERS It is critical to answer only the question asked. Do not volunteer information or reveal

your inner thoughts and opinions. The attorney questioning you may have you so relaxed that you start spilling when you should not. Be wary of this. Likewise, you may experience an urge to display your knowledge, to help others who appear not to understand matters or, especially, to explain the reasons for your conduct. Resist these urges. You can catch yourself violating this rule when you hear yourself saying, I thought, I believed, I hoped, I figured, I wanted, or I needed. It is not to your advantage to be helpful to the person examining you. It is perfectly proper to answer questions with a simple yes or no if such an answer is appropriate. The examiner may give you a long, stern stare, but that is his problem; do not make it yours or become uncomfortable. The examiner can ask you another question. Finally, do not agree to provide or produce documents. Let your attorney handle requests for them. 5. TELL THE TRUTH An entire case can be lost, no matter how strong it is, if you are caught lying. Moreover, exaggeration, distortion and over-generalizations can be just as damaging as lying, because a skillful examiner can destroy your credibility. Things you have done in the past which might impeach your character or credibility may be asked about during your deposition. Deal with these inquiries directly and do not try to hide or lie about these matters. You must testify credibly, irrespective of whether there is something which can be used against you.

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6.

DO NOT GUESS Overconfidence, fear of embarrassment, or nervousness may cause you to answer

a question without actually knowing the correct answer. You may think that, as a practical or logical matter, your answer is likely to be accurate. This kind of thinking is very dangerous and can come back to haunt you. It is important to know the distinction between those matters of which you have direct knowledge and those which you have learned about from secondary sources. If you do not have a direct, personal knowledge of an event or fact, or if your recollection is fuzzy on a point, it is far preferable to testify that you do not know or do not recall. If you answer as if you know something, when you, in fact, do not, you may be impeached and other testimony you give may be discredited. In addition, do not attempt to guess where the examiner is heading and then phrase your answers to preclude that line of questions. If you focus on answering each question, rather than trying to second guess the examiner, your testimony will sound, and be, more credible. 7. STAY IN CONTROL A. Be Cool Do not allow yourself to become angry or to lose your composure. If you do, you may say something damaging or inappropriate. In addition, the examiner may feel that he is controlling you. If there is a heated debate between your attorney and the attorney examining you, do not become involved in the argument. Remain calm and just observe what is happening. B. Deal With Interruptions Some examiners employ a tactic of interrupting or trying to cut off an unfavorable response by asking a different question. If this happens, be prepared to Page 13

complete your answer to the question. C. Do Not Let Yourself Get Fenced In The examiner may attempt to commit you to a particular point of view and cut off any ability to modify your testimony at a later date. For example, he may ask you about a conversation and, at the end, ask whether anything else at all was said. If you answer No, you may destroy your ability to testify at trial about matters you forgot or did not consider. During the trial, the opposing attorney will try to make you look like a liar. There is a way to prevent this from happening. If you are asked whether anything else was said or if anything else happened, respond by saying something like right now, I cannot recall anything further, but there may have been (or I am sure there were) other discussions. If the attorney tries to probe you on those other discussions, you can say something to the effect that you do not recall them now, but that the conversation was involved, and that other things must have been said. You can also say that you have already testified about the major points of the conversation or event, thus leaving the door open should you recall something later. When the opposing lawyer tries to paint you into a corner, remember three powerful words: May I explain? You see this happen on television all of the time. A plaintiffs lawyer paints a witness into a corner, the witness keeps blurting out, its not that simple, and tries to explain his answer. But in doing so, he looks argumentative and evasive, not like a truth-teller. Heres a powerful escape technique from this type of tactic. When the opposing attorney is trying to box you in to a position, and a short answer would be incomplete and misleading, simply say, May I explain? At that point, you are in a no-lose position. If the opposing attorney says yes, then you can elaborate on your answer; if the opposing attorney says no, then that lawyer looks like he is the one trying to hide the ball. Page 14

Also be on the alert for loaded questions. Opposing attorneys can make headway in cases by asking a loaded question with a slanted word imbedded in it. Here is an example. A manager is in charge of a department for three months and is then transferred to a different one. The manager voluntarily left the first assignment. But, the opposing attorney wants to make the transfer sound ominous, so he asks: So after three months, you were relieved [slant word embedded here] of your responsibilities in the first department, isnt that correct? A bad answer would be: Yes. A good answer would be: I dont agree with the word relieved. I voluntarily changed jobs. When listening to a question by the opposing attorney, get yourself to the point where you automatically ask yourself before you answer do I agree or disagree with the characterization or slant of the question? If I agree, I answer one way; if not, I answer another way. 8. DEAL WITH CORRECTIONS AND SUDDEN RECOLLECTIONS PROPERLY If you realize that you have made a mistake during your testimony, you should say so on the record and try to correct the mistake. If the examining attorney will not permit you to do so, do not worry. Your attorney can make the correction during cross-examination, or it can be left alone. It will be very difficult for the examining attorney to try to impeach you when you have tried to correct an error. On the other hand, if you suddenly remember something that you have not discussed with your attorney before the deposition, be sure to discuss it with him privately before saying anything on the record. If it is urgent, you can ask for a recess. It is very dangerous to testify about a matter of which your attorney does not have any knowledge. 9. ASK FOR AND USE EXHIBITS Part of the examination may involve the nature of a document or exhibit. For example, you may be asked about a contract you signed. You should not guess at what it Page 15

says or try to rely on your memory if you are asked a question about it. Ask for the contract, read it, and then answer the question. 10. WATCH YOUR LANGUAGE This commandment has several aspects, most of which are common sense. A. There are some phrases or expressions which we use which do not

really mean what we want to say. For example, some people have a tendency to use the Royal We, when no one else was involved at all. Be careful of your choice of words so that you avoid this pitfall. B. There is no need to commit yourself to a broader position than

necessary. As a general rule, it is a good idea not to use the words never and always or superlatives such as absolutely or definitely. You may unnecessarily expose yourself to a position you did not mean to take or which may be inaccurate. C. Avoid colloquialism and hackneyed expressions. Expressions such as

well, to tell you the truth, can clutter up a record and ring very hollow. In addition, some of your answers will read as if you are very certain when you use these expressions, whereas others may look wishy-washy. There is no need to build these distinctions into your testimony. D. Avoid humor. Humor can make someone look more human in court;

however, in cold print, the attempt at humor may fall flat. E. Remember that a court reporter will be transcribing your deposition.

You must give audible and clear answers so that he or she can transcribe them. F. Be discreet during breaks and while in elevators, bathrooms and other

common areas. You never know who is listening.

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EXAMPLE Following is an example of a witness, who is a defendant in a personal injury case, who failed to follow the Ten Commandments of being a good deponent. The portions of the testimony which the witness should not have given appear in bold. Q. A. What did you do after you brought the car to a halt? I got out of the car, because I wanted to see if the person my car hit was O.K. Q. A. Q. Was he O.K.? Yes, although to me he looked a little shaken up. What is the name of the person you hit? [Note: The shift from the person my car hit to the person you hit.] A. Q. A. Q. A. Q. A. Jim Thomas. I think he lives in Chicago. Um-hmm. I guess hes about 55; fairly tall; and humongous. Did you see him before you hit him? No, but I should have; he was wearing a bright orange jacket. Did you have any conversations about the accident with anyone? Yes, my wife, the policeman, and of course, my lawyer. In fact, I told my lawyer that I Witness Lawyer: Just a minute. You have answered the question. In addition, I object to the extent that you are getting into attorney-client -A. . . . couldnt believe that I had hit this guy because if wasnt going that much over the -Witness Lawyer: I said, just a minute. Page 17

Q. A.

What time was it when you hit Mr. Thomas? (The witness does not recall, but he knows it was after work because it was dark). 6:00 (At 6:00, the witness was in a bar with a friend of his having a drink.) CONCLUSION

While the deposition may at first seem a strange proceeding to you, if you follow the guidelines set forth above, you will find that it will proceed much more smoothly and favorably than it otherwise would.

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LAW OFFICES OF FERNANDO M. BUSTOS, P.C.


LUBBOCK NATIONAL BANK BUILDING 1001 MAIN STREET, SUITE 501 - 79401 P.O. BOX 1980 - 79408-1980 LUBBOCK, TEXAS TELEPHONE (806) 780-3976 FACSIMILE (806) 780-3800
Website: www.bustoslawfirm.com

FERNANDO M. BUSTOS AARON M. PIER DUSTIN N. SLADE*


*Also licensed in the State of New Mexico

ALEX M. BUSTOS
Of Counsel
E-Mail Address: fbustos@bustoslawfirm.com

October 1, 2010 Mr. Sam Spade Mr. George of the Jungle XYZ Law Firm, P.C. 123 Ave. Z Lubbock TX 79499 Re: VIA FIRST CLASS MAIL AND EMAIL

Analysis of Claims and Defenses between XYZ Law Firm, P.C. and Former Employee

Dear Sam & George: Thank you again for allowing us to serve you in this matter. This letter will offer opinions on the probable claims that your former employee could assert against you in a lawsuit, and the possible claims which we recommend asserting against him/her, together with defenses to his/her claims. I. Claims by XYZ Law Firm, P.C.

XYZ Law Firm, P.C. may assert: (1) a declaratory action; (2) a claim under the Computer Fraud and Abuse Act; (3) an action for conversion; (4) a claim under the Texas Theft Liability Act; (5) defamation; (6) breach of fiduciary duty; and (7) trade secret misappropriation. The elements, conditions precedent, and limitations thereof are discussed below. A. Declaratory Action

1. Elements: In federal court, a declaratory-judgment action is proper when the judgment will (1) serve a useful purpose in clarifying and settling legal relations at issue; and (2) provide relief from uncertainty, insecurity, and controversy giving rise to the proceeding. Aetna Cas. & Sur. Co. v. Sunshine Corp., 74 F.3d 685, 687 (6th Cir. 1996). The courts decision to exercise Page 19

jurisdiction over a declaratory-judgment suit is discretionary. Cardinal Chem. Co. v. Morton Intl, 508 U.S. 83, 95 n.17 (1993). In deciding whether to accept or decline jurisdiction, the court should evaluate the following three considerations: (1) the proper allocation of decision-making between the state and federal courts; (2) fairness; and (3) efficiency. Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 390-91 (5th Cir. 2003). B. Computer Fraud and Abuse Act

18 U.S.C. 1030(g) grants a civil right of action to those suffering damage or loss by reason of a violation of 1030. 1. Elements: To assert a cause of action under 18 U.S.C. 1030(a)(2), a plaintiff must show that defendant: (1) intentionally; (2) exceeded authorized access to a computer; (3) thereby obtaining information; (4) from any protected computer. 18 U.S.C. 1030(a)(2). To assert a cause of action under 18 U.S.C. 1030(a)(5)(A), a plaintiff must show that the defendant: (1) knowingly; (2) caused; (3) the transmission of a command; (4) and thereby intentionally; (5) caused damage; (6) without authorization; (7) to a protected computer. 18 USC 1030(a)(5)(A). Under both (a)(2) and (a)(5) in the present case, plaintiff must also show that defendants conduct involved loss to 1 or more persons during any 1-year period aggregating at least $ 5,000 in value. Compare 18 U.S.C. 1030(g) with 18 U.S.C. 1030(c)(4)(A)(i)(I) through (IV). Under both (a)(2) and (a)(5), plaintiff must also show damages. See 18 U.S.C. 1030(g). [T]he term "protected computer" means a computerwhich is used in or affecting interstate or foreign commerce or communication... 18 U.S.C. 1030(e)(2)(B). [T]he term "exceeds authorized access" means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter. 18 U.S.C. 1030(e)(6). [T]he term "damage" means any impairment to the integrity or availability of data, a program, a system, or information. 18 U.S.C. 1030(e)(8). [T]he term "loss" means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service. 18 U.S.C. 1030(e)(11).

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2. Limitations: No action may be brought under this subsection unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage. 18 U.S.C. 1030(g). C. Conversion

1. Elements: To successfully assert a claim for conversion, a plaintiff must show: (1) the plaintiff owned, possessed, or had the right to immediate possession of property; (2) the property was personal property; (3) the defendant wrongfully exercised dominion or control over the property; (4) the plaintiff suffered injury. Though there is a corpus of case law in Texas auguring against the proposition that intangible things can be converted, confidential information such as customer lists and trade secrets can be converted. Deaton v. United Mobile Networks, L.P., 926 S.W.2d 756, 763 (Tex. App.Texarkana 1996), revd in part on other grounds, 939 S.W.2d 146 (Tex. 1997); Chandler v. Mastercraft Dental Corp., 739 S.W.2d 460, 469 (Tex. App.Fort Worth 1987, writ denied.) 2. Limitations: The limitations period for conversion is two years. TEX. CIV. PRAC. & REM. CODE 16.003(a); Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.Houston [1st Dist.] 2006, no pet.). D. Texas Theft Liability Act

1. Elements: To successfully assert a claim for theft under TLA, a plaintiff must show: (1) the plaintiff had a possessory right to property or was the provider of services; (2) the defendant unlawfully appropriated, secured, or stole the plaintiffs property or services; (3) the unlawful taking was made with the intent to deprive the plaintiff of the property; and (4) the plaintiff sustained damages as a result of the theft. The key issue in this claim is whether electronic computer files can be asserted as personal property. Texas Civil Practice & Remedies Code 134.002(2) and Texas Penal Code 31.03 would likely be the loci classici for such a determination. 2. Limitations: A TLA claim for theft of personal is likely governed by a two-year statute of limitations. See TEX. CIV. PRAC. & REM. CODE 16.003(a). E. Defamation

1. Elements: In order to successfully bring a cause of action for defamation, a plaintiff must show: (1) the defendant published a statement of fact; (2) the statement referred to the plaintiff; (3) the statement was defamatory; (4) the statement was false; and (5) with regard to the truth of the statement, the defendant was negligent; (At least one Texas court has imposed strict liability where private plaintiffs bring suit against non-media defendants for speech involving private issues. See, e.g., Thomas-Smith v. Mackin, 238 S.W.3d 503, 509 (Tex. App.Houston [14th Dist.] 2007, no pet.). Page 21

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). As an additional element, a plaintiff may need to prove pecuniary injury. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986). At least one Texas court, however has held that where a private issue is involved, the plaintiff is private, the defendant is non-media, and there is strict liability, then the injury is presumed. Peshak v. Greer, 13 S.W.3d 421, 426-27 (Tex. App.Corpus Christi 2000, no pet.); see also Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1334 (5th Cir. 1993) (applying Texas law). 2. Limitations: Defamation is governed by a one-year statute of limitations. TEX. CIV. PRAC. & REM. CODE 16.002(a); San Antonio Credit Un. v. OConnor, 115 S.W.3d 82, 96 (Tex. App.San Antonio 2003, pet. denied). F. Breach of Fiduciary Duty

1. Elements: In order to successfully assert a claim for breach of fiduciary duty, a plaintiff must show (1) the existence of a fiduciary duty; and (2) the breach of that duty. See Priddy v. Rawson, 282 S.W.3d 588, 599 (Tex. App.Houston [14th Dist.] 2009, pet. denied). Though employees may not owe their employers an absolute duty of loyalty, the duty of loyalty an employee owes their employer includes the duty not to carry away certain information and the duty not to appropriate the employers trade secrets. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 201 (Tex. 2002). 2. Limitations: The limitations period for an action for breach of fiduciary duty is four years. Tex. Civ. Prac. & Rem. Code 16.004(a)(5); Willis v. Donnelly, 199 S.W.3d 262, 278 n.33 (Tex. 2006). G. Trade Secret Misappropriation

1. Elements: In order to successfully assert a claim for trade secret misappropriation, a plaintiff must show: (1) the plaintiff owned a trade secret; (2) the defendant used or disclosed the trade secret; (3) such disclosure was: (a) in violation of a confidential or contractual relationship with the plaintiff; (b) made after acquiring the trade secret by improper means; or (c) made after acquiring the trade secret with notice that the disclosure was improper; and (4) the plaintiff suffered injury. Calce v. Dorado Expl., Inc., 309 S.W.3d 719, 737-38 (Tex. App.Dallas 2010, no pet.); Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 463 (Tex. App.Austin 2004, pet. denied). 2. Limitations: The limitations period for a claim for trade secret misappropriation is three years. TEX. CIV. PRAC. & REM. CODE 16.010(a).

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H. Other Causes of Action to Keep in Mind: Tortious Interference with Existing Contract; Tortious Interference with Prospective Relations. While other causes of action could potentially be added to this list, this is a very exhaustive list of claims which can yield punitive damages, special statutory damages, an attorneys fees. II. Claims by Former Employee

Your former employee may assert the following claims: (1) Hostile Work Environment; (2) Quid Pro Quo Sexual Harassment; (3) Sex-based Discrimination; (4) Race-based Hostile Work Environment; (5) Race-based Discrimination; (6) Constructive Discharge; (7) Constructive Discharge in Quid Pro Quo Sexual Harassment; (8) Promissory Estoppel: (9) Oral Breach of Contract; (10) Interference with ERISA rights; and (11) Intentional Infliction of Emotional Distress. The elements, limitations, conditions precedent and defenses thereof are discussed below. A. Hostile Work Environment Sexual Harassment Under Title VII1

1.Elements: A prima facie case of sexual harassment based on a hostile work environment theory requires proof of the following elements: (1) The employee belonged to a protected group (i.e., gender); (2) The employee was subjected to unwelcome sexual harassment; (3) The harassment complained of was based on gender; (4)The harassment was sufficiently severe or pervasive to affect a term, condition or privilege of employment; and (5) The employer knew or should have known of the harassment and failed to take remedial action. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 70-71 (1986); Mackey v. U.P. Enterprises, Inc., 935 S.W.2d 446, 455-56 (Tex. App.Tyler 1996, no writ); Nardini v. Continental Airlines, Inc., 60 S.W.3d 197, 201 (Tex. App.Houston [14th Dist.] 2001, pet. denied). Furthermore, the sexually objectionable conduct must be both objectively and subjectively offensive: (1) The conduct must be such that a reasonable person would find it hostile or abusive; (2) the plaintiff must have perceived it to be so. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). Note on based on gender requirement: Courts have held that offensive conduct is not based on sex or gender if it creates an equally hostile and abusive work environment for both men and women. Reine v. Honeywell International, Inc., 362 Fed. Appx. 395 (5th Cir. 2010) (holding that in a case where there was hostile treatment of both females and males, in order to prevail on a Title VII claim, the female claimant must show that the complained of behavior towards female employees was more severe than the treatment of males in the same position). Reine cites Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed.). 2. Conditions Precedent: Before filing a lawsuit under Title VII, a plaintiff must timely
1

A redundantly similar cause of action can be asserted under the Texas Commission on Human Rights Act.

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file a charge with the EEOC and cooperate with the EEOCs subsequent investigation. 3. Statute of Limitations: Because Texas and New Mexico are deferral states, a plaintiff must file a charge with the EEOC before the lapse of 300 days. The 300-day period begins to run on the day when the discrimination allegedly occurred or when the employee became aware of the discriminatory act. In a continuing violation case, a plaintiff need not establish that the entire violation occurred within the applicable limitations period, as long as there exists a series of related acts, one or more of which falls within the limitations period. Webb v. Cardiothoracic Surgery Associates, 139 F.3d 532, 537 (5th Cir. 1998). The Fifth Circuit has articulated three factors to consider in determining whether a continuing violation has occurred : (1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; (2) whether the alleged acts recur with frequency (thus indicating a continuing violation) or whether the acts are in the nature of an isolated work assignment or employment decision; and (3) whether the act has a degree of permanence that should make the employee aware of the need to assert civil rights. Berry v. Board of Supervisors of Louisiana State University, 715 F.2d 971, 981 (5th Cir. 1983). 4. Affirmative Defenses: The employer's affirmative defense has two elements: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. See Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). This affirmative defense is unavailable if the harassment is by a supervisor and is coupled with a tangible employment action. Faragher, 524 U.S. 807-08. B. Quid-Pro-Quo Sexual Harassment Under Title VII2

1. Elements: Quid-pro-quo harassment involves: (1) a fulfilled threat; (2) by a supervisor; (3) to condition a job-related benefit or continued employment on an employees accession to sexual demands. Burlington Indus. v. Ellerth, 524 U.S. 742, 753-754 (1998). To establish the fulfilled threat element of a quid pro quo claim, a plaintiff must show that acceptance or rejection of supervisors unwelcome sexual advances resulted in a tangible employment action that constitutes a significant change in benefits. Alaniz v. Zamora-Quezada, 591 F.3d 761, 772 (5th Cir. 2009). 2. Conditions Precedent: Before filing a lawsuit under Title VII, a plaintiff must timely file a charge with the EEOC and cooperate with the EEOCs subsequent investigation.

A redundantly similar cause of action can be asserted under the Texas Commission on Human Rights Act.

Page 24

3. Statute of Limitations: Because Texas and New Mexico are deferral states, a plaintiff must file a charge with the EEOC before the lapse of 300 days. The 300-day period begins to run on the day when the discrimination allegedly occurred or when the employee became aware of the discriminatory act. In a continuing violation case, a plaintiff need not establish that the entire violation occurred within the applicable limitations period, as long as there exists a series of related acts, one or more of which falls within the limitations period. Webb v. Cardiothoracic Surgery Associates, 139 F.3d 532, 537 (5th Cir. 1998). The Fifth Circuit has articulated three factors to consider in determining whether a continuing violation has occurred: (1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; (2) whether the alleged acts recur with frequency (thus indicating a continuing violation) or whether the acts are in the nature of an isolated work assignment or employment decision; and (3) whether the act has a degree of permanence that should make the employee aware of the need to assert civil rights. Berry v. Board of Supervisors of Louisiana State University, 715 F.2d 971, 981 (5th Cir. 1983). 4. Affirmative Defenses: The employer's affirmative defense has two elements: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. See Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998); Burlingon Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). If a supervisor's harassment culminates in a tangible employment action, the affirmative defense is not available. Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). C. Sex-based Discrimination Under Title VII (Disparate Treatment)3 1. Elements: In order to prove intentional discrimination by an employer using circumstantial evidence, a plaintiff must establish a prima facie case of discrimination. The following are elements of a prima facie case of discrimination: (1) (2) (3) the plaintiff is a member of a protected class; the plaintiff was qualified for the job; the plaintiff suffered an adverse employment action; and

A redundantly similar cause of action can be asserted under the Texas Commission on Human Rights Act.

Page 25

(4) the defendant replaced the plaintiff with someone that is outside of the protected class, or that the plaintiff was subject to treatment that was less favorable than similarly situated persons outside the protected class. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 412 (5th Cir. 2007); Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004); Williams v. Trader Publg Co., 218, F.3d 481, 484-485 (5th Cir. 2000). For example, the Lilly Ledbetter Fair Pay Act of 2009 provides that an unlawful employment practice occurs under Title VII if amount of pay is based on gender. 2. Conditions Precedent: Before filing a lawsuit under Title VII, a plaintiff must timely file a charge with the EEOC and cooperate with the EEOCs subsequent investigation. 3. Statute of Limitations: Because Texas and New Mexico are deferral states, a plaintiff must file a charge with the EEOC before the lapse of 300 days. The 300-day period begins to run on the day when the discrimination allegedly occurred or when the employee became aware of the discriminatory act. In a continuing violation case, a plaintiff need not establish that the entire violation occurred within the applicable limitations period, as long as there exists a series of related acts, one or more of which falls within the limitations period. Webb v. Cardiothoracic Surgery Associates, 139 F.3d 532, 537 (5th Cir. 1998). The Fifth Circuit has articulated three factors to consider in determining whether a continuing violation has occurred: (1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; (2) whether the alleged acts recur with frequency (thus indicating a continuing violation) or whether the acts are in the nature of an isolated work assignment or employment decision; and (3) whether the act has a degree of permanence that should make the employee aware of the need to assert civil rights. Berry v. Board of Supervisors of Louisiana State University, 715 F.2d 971, 981 (5th Cir. 1983). Under the Lilly Ledbetter Fair Pay Act, an employees filing is timely when he or she files the complaint within 300 days of his or her most recent paycheck that is alleged to be discriminatory. D. Race-based Hostile Work Environment Under Title VII4

The principles developed in cases involving hostile-work-environment claims based on sex are applied to hostile-work-environment claims based on other characteristics, such as race. See, e.g., Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).

A redundantly similar cause of action can be asserted under the Texas Commission on Human Rights Act.

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E.

Race-based Discrimination Under Title VII (Disparate Treatment)*

1. Elements: Under Title VII, employers are prohibited from discriminating on the basis of an employee's national origin [42 U.S.C. 2000e-2(a)]. To establish a prima facie case of discrimination based on national origin, the plaintiff must prove that he or she (1) was part of a protected class, (2) was qualified for the position held, (3) suffered an adverse employment action, and (4) was treated differently from others similarly situated [ Pita Santos v. Evergreen Alliance Golf Ltd., LP, 650 F. Supp. 2d 604, 609 (S.D. Tex. 2009)] . A plaintiff does not satisfy the "qualified for position held" element if the defendant can show that the plaintiff was not performing his or her job at a level that met the defendant's legitimate expectations at the time of the plaintiff's discharge [ Pita Santos v. Evergreen Alliance Golf Ltd., LP, 650 F. Supp. 2d 604, 609-610 (S.D. Tex. 2009)]. For example, the Lilly Ledbetter Fair Pay Act of 2009 provides that an unlawful employment practice occurs under Title VII if amount of pay is based on race. 2. Conditions Precedent: Before filing a lawsuit under Title VII, a plaintiff must timely file a charge with the EEOC and cooperate with the EEOCs subsequent investigation. 3. Statute of Limitations: Because Texas and New Mexico are deferral states, a plaintiff must file a charge with the EEOC before the lapse of 300 days. The 300-day period begins to run on the day when the discrimination allegedly occurred or when the employee became aware of the discriminatory act. In a continuing violation case, a plaintiff need not establish that the entire violation occurred within the applicable limitations period, as long as there exists a series of related acts, one or more of which falls within the limitations period. Webb v. Cardiothoracic Surgery Associates, 139 F.3d 532, 537 (5th Cir. 1998). The Fifth Circuit has articulated three factors to consider in determining whether a continuing violation has occurred: (1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; (2) whether the alleged acts recur with frequency (thus indicating a continuing violation) or whether the acts are in the nature of an isolated work assignment or employment decision; and (3) whether the act has a degree of permanence that should make the employee aware of the need to assert civil rights. Berry v. Board of Supervisors of Louisiana State University, 715 F.2d 971, 981 (5th Cir. 1983). Under the Lilly Ledbetter Fair Pay Act, an employees filing is timely when he or she files the complaint within 300 days of his or her most recent paycheck that is alleged to be discriminatory.

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F.

Constructive Discharge5

Constructive discharge is a theory that plaintiffs use to argue that an adverse employment action was taken against them, to attempt to make a prima facie case of discrimination, when they resigned instead of being overtly fired. Proving constrictive discharge is not easy. 1. Elements: Courts ask: (1) whether working conditions were objectively intolerable; and (2) whether the employees resignation was an objectively reasonable response to his or her working conditions. Pa. State Police v. Suders, 542 U.S. 129, 147 (2004). In order to prove objectively intolerable working conditions sufficient to support a constructive discharge claim, the plaintiff must prove both an unlawful predicate act and aggravating circumstances. Brown v. Kinney Shoe Corp., 237 F.3d 556 (5th Cir. 2001). The Fifth Circuit applies the following factors: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to a younger or less experienced supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage resignation; or (7) offers of early retirement or continued less favorable employment. Keelan v. Majesco Software, Inc., 407 F.3d 332, 342-3 (5th Cir. 2005). G. Constructive Discharge in Quid-Pro-Quo Sexual Harassment* (A voluntary resignation can be a tangible employment action in a quid pro quo case if certain elements are met). 1. Elements: (1) The employee must have been constructively discharged, (see D. above); (2) the discharge is precipitated by a supervisors official act on behalf of the enterprise. See Pa. State Police v. Suders, 542 U.S. 129, 140-41 (2004). 2. Conditions Precedent: Before filing a lawsuit under Title VII, a plaintiff must timely file a charge with the EEOC and cooperate with the EEOCs subsequent investigation. 3. Statute of Limitations: Because Texas and New Mexico are deferral states, a plaintiff must file a charge with the EEOC before the lapse of 300 days. The 300-day period begins to run on the day when the discrimination allegedly occurred or when the employee became aware of the discriminatory act. Under the Lilly Ledbetter Fair Pay Act, an employees filing is timely when he or she files the complaint within 180 days of his or her most recent paycheck that is alleged to be discriminatory.

A redundantly similar cause of action can be asserted under the Texas Commission on Human Rights Act.

Page 28

4. Affirmative Defenses: A constructive discharge can be considered a tangible employment action that precludes an employer from asserting an Ellerth/Faragher affirmative defense. Pennsylvania State Police v. Suders, 542 U.S. 129, 140-41 (2004). H. Promissory Estoppel

1. Elements: In order to succeed on a claim of promissory estoppel, the plaintiff must show: (1) the defendant made a promise to the plaintiff; (2) the plaintiff reasonably and substantially relied on the promise to its detriment; (3) the plaintiffs reliance was foreseeable by the defendant; and (4) injustice can be avoided only by enforcing the defendants promise. Henry Schein, Inc. v. Stormboe, 102 S.W.3d 675, 686 n.25 (Tex. 2002); Stanley v. Citi-Financial Morg. Co., 121 S.W.3d 811, 820 (Tex. App.Beaumont 2003, pet. denied). 2. Limitations: The limitations period for an action for promissory estoppel is four years. Ambulatory Infusion Therapy Specialist, Inc. v. North Am Admrs, Inc., 262 S.W.3d 107, 119 (Tex. App.Houston [1st Dist.] 2008, no pet.); see TEX. CIV. PRAC. & REM. CODE 16.004(a)(4). An action for promissory estoppel accrues when the promise is breached. See Wheeler v. White, 398 S.W.2d 93, 96 (Tex. 1965). I. Breach of (Oral) Contract

1. Elements: To successfully assert breach of contract, a plaintiff must show: (1) there is a valid, enforceable contract; (2) the plaintiff is a proper party to sue for breach of the contract; (3) the plaintiff performed, tendered performance of, or was excused from performing its contractual obligations; (4) the defendant breached the contract; (5) the defendants breach caused the plaintiff injury. B&W Sup. V. Beckman, 305 S.W.3d 10, 16 (Tex. App.Houston [1st Dist.] 2009, pet. denied; Zuniga v. Wooster Ladder Co., 119 S.W.3d 856, 862 (Tex. App.San Antonio 2003, no pet.). 2. Limitations: The limitations period for an action for breach of contract is four years. TEX. CIV. PRAC. & REM. CODE 16.051; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). Note on Vacation: If an employment contract provides for paid vacation, on termination of employment an employee is entitled to receive payment for unused vacation time. Hamby Co. v. Palmer, 631 S.W.2d 589, 591 (Tex. App.--Amarillo 1982, no writ). Under the Texas Payday Law, wages include vacation pay, holiday pay, and sick pay owed under a written agreement with an employee, or pursuant to a written policy. TEX. LAB. CODE 61.001(7). Note on Bonuses: If an employer and an employee have a contract or understanding regarding the payment of a bonus, the bonus is not a gratuity, but is a legally enforceable obligation. See RePipe, Inc. v. Turpin, 275 S.W.3d 39, 48-50 (Tex. App.--Houston [14th Dist.] 2008, no pet.); but see Shaw v. Palmer, 197 S.W.3d 854, 855-56 (Tex. App.--Dallas 2006, pet. dism'd) (attorney and former employee did not have enforceable oral contract for payment of bonus to employee, when amount of bonus was indefinite at time of contract and was open for future negotiation or discretion). Page 29

If there is an agreement for payment of a bonus, even if employment is terminable at will, an employee who is discharged without good cause before the time specified for payment of a bonus is entitled to recover a pro rata part of the bonus for the period actually worked. Miller v. Riata Cadillac Company, 517 S.W.2d 773, 775 (Tex. 1974). Absent an express agreement to the contrary, if a bonus is an integral part of an employee's compensation, a discharged employee is entitled to receive a bonus for the period of actual employment, despite an agreement that the bonus would be payable only if the employee is actively employed at the time for payment. Handy Andy, Inc. v. Rademacher, 666 S.W.2d 300, 304 (Tex. App.--San Antonio 1984, no writ). 3. Affirmative Defenses: A contract that lacks consideration is unenforceable. Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 409 (Tex. 1997). Lack of consideration occurs when the contract, at its inception, does not impose obligations on both parties. Burges v. Mosley, 304 S.W.3d 623, 628 (Tex. App.Tyler 2010, no pet.). Because, in the present situation, the granting of bonuses was purely discretionary, the firm may argue that there was lack of consideration and therefore any claimed contract is unenforceable. J. Interference with ERISA Rights

1. Elements: Under ERISA, an employer may not (1) discharge, fine, suspend, expel, or discriminate against; (2) a participant or beneficiary; (3) for the purpose of interfering with the attainment of any right to which an employee may be entitled under an employee benefit plan. 29 U.S.C. 1140. An employee against whom such action has been taken may bring a civil action under 29 U.S.C. 1132. 29 U.S.C. 1140. 29 USCS 1140 reaches a broad range of employer conduct, including claims premised on discriminatory modification of pension or retirement plan that intentionally benefits or injures certain identified employees. Vartanian v Monsanto Co., 880 F. Supp. 63 (D.C. Mass. 1995). Constructive discharge (see G. above) may be asserted to prove the elements of a 1140 case. See, e.g., Fischer v. Andersen Corp., 483 F.3d 553 (8th Cir. 2007). 2. Conditions Precedent: The administrative scheme of ERISA requires the participant to exhaust his/her administrative remedies prior to commencing suit in federal court. Weiner v Klais & Co., 108 F.3d 86 (6th Cir.1997). Although ERISA does not expressly require claimants to exhaust administrative remedies before bringing suit in federal court, courts have read into ERISA an exhaustion requirement based on 29 USCS 1133, which provides that every benefit plan must establish an administrative review procedure for any participant whose claim for benefits has been denied. Morales Cotte v Cooperative De Ahorro y Credito Yabucoena, 73 F.Supp.2d 153, (1999, DC Puerto Rico). Exhaustion of remedies is required in ERISA action only when plan in question requires exhaustion. Burris v IASD Health Servs. Corp., 19 EBC 2680 (SD Iowa 1995) 19 EBC 2680.

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3. Limitations: Because ERISA provides no statute of limitations, the limitations period depends on the plan documents and state law. See Johnson v State Mut. Life Assurance Co., 942 F.2d 1260 (8th Cir. 1991). In Texas, the statute of limitations for breach of contract is four years. TEX. CIV. PRAC. & REM. CODE 16.051; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). 4. Defenses: Failure to exhaust administrative remedies is an affirmative defense under 29 U.S.C. 1140. See McCoy v. Bd. of Trs. of the Laborers' Int'l Union, Local No. 222, 60 Fed. Appx. 396 (3d Cir. 2003); Potter v. ICI Ams., Inc., 103 F.Supp.2d 1062 (S.D. Ind. 1999). State law claims related to ERISA may be pre-empted by ERISA. See, e.g., Estes v Fed. Express Corp., 417 F.3d 870 (8th Cir. 2005). K. Intentional Infliction of Emotional Distress

1. Elements: To successfully assert intentional infliction of emotional distress, a plaintiff must show: (1) the plaintiff is a person; (2) the defendant acted intentionally or recklessly; (3) the emotional distress suffered by the plaintiff was severe; (4) the defendants conduct was extreme and outrageous; (5) the defendants conduct proximately caused the plaintiffs emotional distress; (6) no alternative cause of action would provide a remedy for the severe emotional distress caused by the defendants conduct. Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006); Martinez v. English, 267 S.W.3d 521, 529-30 (Tex. App.Austin 2008, pet. denied (elements 2-6); Haygood v. Chandler, no. 12-02-00239-CV (Tex. App.Tyler 2003, pet. denied) (memo op.; 10-3103). 2. Limitations: The limitations period for an IIED action is two years. TEX. CIV. PRAC. & REM. CODE 16.003(a); Jackson v. Creditwatch, Inc., 84 S.W.3d 397, 403-04 (Tex. App.Fort Worth 2002), revd on other grounds, 157 S.W.3d 814 (Tex. 2005). 3. Affirmative Defenses: The defendant can assert that the plaintiffs claim is barred because the plaintiff has the right to recover emotional damages under an alternative tort or statute. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005). For example, a claim for intentional infliction of emotional distress is barred when the facts alleged support a statutory claim for sexual harassment. Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 441 (Tex. 2004). This is a very difficult claim to prove. The tone of our Petition and its accompanying demand letter were calculated to get your former employee to quickly fold his/her cards, sign the Release Agreement, and go away quietly. However, there is the possibility that she might fight back and allege any of the above-described causes of action, in addition to other potential claims, regardless of whether they are time barred. If this happens, we will be happy to aggressively and rapidly pursue this case to a successful conclusion. After you have you have had a chance to digest all of the materials we have sent to you, please contact me so that we can discuss any questions or concerns you may have. We have the summonses prepared and we are ready to commence work as soon as you give authorization. Thank you again Page 31

for allowing our firm to assist you in this matter. Sincerely, LAW OFFICES OF FERNANDO M. BUSTOS, P.C.

Fernando M. Bustos FMB/dt

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LAW OFFICES OF FERNANDO M. BUSTOS, P.C.


LUBBOCK NATIONAL BANK BUILDING 1001 MAIN STREET, SUITE 501 - 79401 P.O. BOX 1980 - 79408-1980 LUBBOCK, TEXAS TELEPHONE (806) 780-3976 FACSIMILE (806) 780-3800
Website: www.bustoslawfirm.com

FERNANDO M. BUSTOS AARON M. PIER DUSTIN N. SLADE ZANE J. VAUGHN*


*Also licensed in the State of New Mexico

ALEX M. BUSTOS
Of Counsel
E-Mail Address: apier@bustoslawfirm.com

September 9, 2011

Mr. John Doe 123 ABC St. Fort Worth, TX 79420 Re:

Hand Delivery

Civil Action No. 3-10-CV-100-C; John Doe v. XYZ Corp, Inc.; In the United States District Court for the Northern District of Texas, Lubbock Division

Dear Mr. Doe: The purpose of this letter is to memorialize our agreement pursuant to our telephone conference today. We have agreed to convert the hourly fee agreement as set out in your engagement letter with this firm dated October 1, 2010, to a contingent fee agreement whereby you will receive sixty percent (60%) of the settlement proceeds paid by XYZ Corp, Inc. in settlement of the referenced case, less expenses advanced by this law firm, and the Law Offices of Fernando M. Bustos, P.C. will receive forty percent (40%) of the settlement proceeds in payment of our attorneys fees. Our records show that the attorneys fees and expenses, plus finance charges, total $96,205.89 as of today. However, as reflected in the enclosed Settlement Statement, we have reduced the fees to $42,800.00, and after giving credit for the fees previously paid by you in the amount of $2,500.00, and expenses previously paid by you in the amount of $476.10, you will receive a check today in the amount of $66,097.60. If this letter correctly sets out your understanding of our agreement, please indicate by signing below. We appreciate the opportunity to represent you in this matter, and are glad we were able to get it settled without further expense. We hope that should you need assistance in the future, that you will contact us.

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Sincerely LAW OFFICES OF FERNANDO M. BUSTOS, P.C.

Aaron M. Pier AMP/jb Enclosure

AGREED TO ON THIS

DAY OF

, 2011.

____________________________________ JOHN DOE

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LAW OFFICES OF FERNANDO M. BUSTOS, P.C.


LUBBOCK NATIONAL BANK BUILDING 1001 MAIN STREET, SUITE 501 - 79401 P.O. BOX 1980 - 79408-1980 LUBBOCK, TEXAS TELEPHONE (806) 780-3976 FACSIMILE (806) 780-3800
Website: www.bustoslawfirm.com

FERNANDO M. BUSTOS AARON M. PIER DUSTIN N. SLADE ZANE J. VAUGHN*


*Also licensed in the State of New Mexico

ALEX M. BUSTOS
Of Counsel
E-Mail Address: apier@bustoslawfirm.com

April 1, 2011 Mr. Loser Liar P.O. Box 1234 Lubbock, TX 79499 Re: VIA HAND-DELIVERY

Liar v. XYZ Corp. ; No. 5-01-CV-000; In the United States District Court for the Northern District of Texas, Ft. Worth Division

Dear Mr. Liar: The purpose of this letter is to inform you of the withdrawal of this law firm and its constituent attorneys as counsel in the above-referenced case, and in all other pending matters for which you are a client. Attached with this letter as Exhibit A, please find a true and correct copy of the engagement letter you signed which formalized the attorney-client relationship in this lawsuit. At page 2, subparagraph (c), you expressly agreed by signing this engagement letter that this firm may withdraw from this engagement on your behalf if you insist that your attorneys engage in conduct that is contrary to their judgment and advice, even if such conduct is not contrary to the Disciplinary Rules of the State of Texas. You also assumed a duty not to testify falsely or unfairly, or in any other manner interfere with the securing of a fair and impartial trial. Also attached with this letter as Exhibit B, is a true and correct copy of an email string between myself and Dr. Honest Physician. During the last couple of months you advised me and made representations to me that you had a current and serious heart condition which was under the current treatment of your physicians, including Dr. Physician. You indicated that this heart condition was grounds for an extension of time to respond to Defendants discovery requests, and allowed such Page 35

representations to be submitted in a joint motion to the court. As you can see from the email exchange between myself and Dr. Physician, it appears your statements about your health and Dr. Physicians treatment of a heart condition are not completely true and correct. Relying upon your representations about the current state of your health, I gave you advice on whether or not you wanted to place your health at issue as an element of damages in your case. I also gave you the option of not seeking such damages and refusing to respond to discovery requests from Defendant which sought information about your healthcare providers. Knowing all of this, you still opted to allow Defendant to discover your health information by signing a medical records authorization. As you can see from Dr. Physicians email, it is clear that he has not treated you within the last year or so for any heart condition, and he did not want to sign any letter which would have given you a travel restriction based upon your heart condition. This recent development, coupled with the other problems I have encountered in material facts of your case changing over the course of time, such as whether both of your accounts had been paid in full when they were not, and whether you were the victim of identity theft or stolen and forged checks, which now apparently does not seem to be the case, has caused me to believe that I can no longer represent you with the zeal required under Texas law. At page 2 of Exhibit A, in the engagement letter you also agreed that [i]n the event it becomes necessary for your attorneys to withdraw as counsel, you agreed to promptly approve any motion or motions required to accomplish this. If the withdrawal is for good cause [good cause] shall be for any of the reasons listed above under subparagraphs (a) through (d), the attorney shall be entitled to all of the compensation set forth in this agreement. As I have told you in the past, in my estimation this case is worth little to no money for you. Accordingly, this law firm is not making any demands whatsoever for compensation from you on this case. Because our withdrawal from this engagement is for good cause, you have approved this motion in advance by signing this engagement letter. Today I will file a motion for withdrawal of counsel, which I expect to be granted immediately. Attached to this letter as Exhibit C is a draft of this motion. As mentioned previously in this letter, this law firm is withdrawing from all other cases in which it represents you as well, in addition to the above-referenced cause number. I am also providing with this letter a copy of both case files for your use in self-representation at this point, or which you can provide to any new lawyer you work with. This law firm has undertaken considerable expense and effort to represent you in this case. We have filed pleadings for you, have propounded discovery upon Defendant, have answered discovery on your behalf, and have secured an extension of time for you to conduct discovery and filed pretrial motions, and have fought on your behalf in order to have Defendants deposition taken in Lubbock, Texas. The judge has also ordered mediation in this case, something that he rarely does in any of his cases, and he has selected who I believe to be the best mediator in town to mediate your case. In short, our withdrawal from your case at this time will in no way prejudice you, and you will be in a good position to mediate this case and should have sufficient arguments to compel Defendant to Page 36

appear in Lubbock for a deposition if you choose to take Defendants deposition. I am sorry that we are having to terminate our attorney-client relationship under these circumstances. However, I wish you the best of success in this matter, and hope it can be resolved in an expeditious and advantageous manner for you. Sincerely, LAW OFFICES OF FERNANDO M. BUSTOS, P.C.

Fernando M. Bustos FMB/dt Enclosures

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