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- The "exploding stay" caseIn this case, my client was at risk of having its substantial investment in leased premises lost or disrupted because its landlord had serious financial problems. So, the client cleverly hedged that risk by purchasing at a discount the first lien on the leased premises that the landlord's bank held. The landlord continued not to pay the promissory note secured by the first lien, so my client posted the property for a foreclosure sale. The landlord responded to the threat of the foreclosure sale by filing two bankruptcy cases within weeks of each other. Although both bankruptcy cases initially invoked the automatic stay under section 362 of the Bankruptcy Code that enjoins any foreclosure sale, the second bankruptcy filing also triggered the "exploding automatic stay" created under the 2005 amendments to the Bankruptcy Code. The debtor attempted to persuade the Bankruptcy Court that the exploding stay should be extended to continue enjoining the foreclosure sale indefinitely, but I prepared and filed this response that set the stage for a wild hearing in which the Bankruptcy Judge declined the debtor's request to extend the stay and allowed my client to move forward with its foreclosure sale. The client ultimately purchased the property at the foreclosure sale, which completed its very successful hedging strategy.
- A Response to a Show Cause Order Regarding Possible SanctionsA court order for a lawyer to show cause why he should not be sanctioned for mistakes made in representing a client is a terrifying experience for any lawyer. In this particular case, the lawyer had made some mistakes, but none were intentional. In defending this case, I prepared and filed this detailed response on behalf of the lawyer prior to the scheduled show cause hearing. The judge -- who is tough, but fair -- reviewed the response and had his clerk call me to let me know that the response satisfied the show cause order and that no hearing or further sanctions were necessary. My client was relieved, to say the least.
- Response to Motion to Exclude Expert WitnessGood attorneys are important to a successful presentation of a case, but effective witnesses are what actually win most trials and hearings. In the same oil and gas case described in the trial memorandum above, my clients and I faced a knotty expert witness issue. One of our best witnesses's was an expert oil and gas lawyer who would be highly useful to our side in explaining many of the obtuse oil and gas terms and concepts to the fact finder. However, our opponents realized that our expert witness was a good one and, thus, they filed a motion with the court to exclude his testimony. They argued that our expert would be testifying as to the ultimate issue of law in the case, which is the judge’s exclusive province and not an issue for the fact finder to decide. Inasmuch as that is normally a strong argument in favor of excluding an expert, I prepared and filed this pleading to distinguish how the testimony of our expert witness was admissible to assist the fact finder in deciding a key fact issue in the case. The case settled before the judge decided this issue, but he told me after the case was over that he was inclined to overrule the exclusion motion and admit our expert’s testimony.
- Trial Memorandum in an Oil and Gas CaseOil and gas cases are notorious for involving obtuse terms and concepts that are often confusing to judges and juries. This is a trial memorandum that I prepared in such a case. The main issue in the case was one that is particularly important to Texas landowners who derive substantial income from leasing (under Texas oil and gas law, "leasing" means "assigning") their mineral rights to oil and gas companies. In this particular case, I represented a family of landowners who had been underpaid a substantial amount of royalty by a wily oil and gas company. The case settled on terms favorable to my clients soon after this trial memorandum was filed with the court.
- Tom Kirkendall Letter to Judge Lake regarding resentencing of Jeff SkillingMy letter to U.S. District Judge Sim Lake requesting leniency in regard to the resentencing of former Enron CEO, Jeff Skilling. I explain why the prosecution of Mr. Skilling was contrary to proper application of criminal law to business practices, as well as the public policy of encouraging creative risk-taking in business to create wealth and jobs.
- An Example of a Pocket MemoPocket memos are a great litigation tool. In connection with important hearings and trials, I often prepare short memoranda of law on discreet legal issues involved in the case. At an appropriate time of the hearing, I hand the pocket memo to the judge to buttress my oral argument on the particular issue. Judges appreciate pocket memos because they are short and to the point—my goal for each one is for the judge to be able to read it entirely during a short break in the court hearing. This document is an example of a pocket memo that I used effectively in a colorful case involving an offshore gambling outfit and a scam artist who was doing business with them. The offshore gambling company cut a deal with an unusually pliable bankruptcy trustee in an attempt to thwart a good attorney-friend of mine’s recovery of a damages judgment in state court against one of the scam artists. During a key part of a Bankruptcy Court hearing, I handed the memo to the Judge and the other side was totally unprepared to respond to the key issue. The Bankruptcy Judge ruled in my friend’s favor and my friend recovered his damages shortly thereafter. I believe that this pocket memo helped win the case.
- Powerpoint Presentation to UT Law StudentsThis is a PowerPoint presentation that I prepared for a lecture that I gave to Randy Wilhite's Family Law class at the University of Texas Law School during the Fall, 2007 semester. The presentation introduces basic bankruptcy law principles to the law student who has not taken a bankruptcy course, and addresses the core issues that the risk of insolvency and bankruptcy raise in Texas family law cases.
- Fifth Circuit Appellate Brief in a Wild CaseA Texas state court judge willing to do a favor for a friend can cause unfortunate problems for clients on the opposite side of the friend. One such situation confronted my former partner, Marvin Isgur, and me several years ago. One of our good clients was embroiled in toxic tort litigation in state district court in Houston, represented by a fine firm that specializes in such matters. The state judge in the case appointed a Houston attorney as a guardian ad litem to represent the interests of several minor children who were plaintiffs in the case. Nothing was unusual about that. However, things started to get fishy one day when—out of the blue and without any reasonable basis for it—the state judge approved a $350,000 fee award to the guardian ad litem and, to make matters worse, ordered that the order approving the fees was instanter—i.e., subject to immediate collection from our client. Our client immediately retained us and we quickly discovered that there was more to the story than just the unusually large award—the state judge and the guardian ad litem were in the midst of a torrid affair. We proceeded to file an injunction action in federal court to enjoin enforcement of the instanter order, and we ultimately settled the mess on favorable terms for our client. However, that did not stop the guardian ad litem from breaching the settlement agreement continually over the following seven years, finally leading to her appeal to the Fifth Circuit Court of Appeals of the District Court’s enforcement of the settlement agreement. This is the Fifth Circuit brief that I prepared and filed in that colorful case, and it was a winner.