The lawsuit, W&T Offshore v. Wesley Fredieu, from Harris County and Houston's 14th Court of Appeals, was one of three cases that used Zoom for the first time to argue before the Texas Supreme Court back in April. Houston attorney, Kevin Dubose of Alexander Dubose & Jefferson, spoke to Texas Lawyer about his recent victory and what it was like to try a case remotely through Zoom.

What happened in the case?

Kevin Dubose: Wesley Fredieu's arm was crushed and permanently injured in a drilling rig accident caused by the negligence of the rig owner. The question on appeal was whether Wesley was the "borrowed employee" of the rig owner, which would limit him to worker's compensation payment and foreclose any recovery in this lawsuit.

Why is this an important case?

First, it disproves the cynical perception that multimillion-dollar verdicts in favor of personal injury plaintiffs cannot be affirmed by this Supreme Court. Secondly, it is very rare for appellate courts to affirm jury verdicts that fail to find borrowed servant status in a drilling rig context. Next, it confirms findings in other contexts that a party with the burden of proof on a claim or defense must obtain the necessary findings to support the claim or defense, and the failure to do so does not warrant a remand. Lastly, it reaffirmed that the loss of earning capacity is measured by more than simply before-and-after hourly wage comparisons.

How did you feel about arguing your case through Zoom?

I was fine with arguing by Zoom. I had started using Zoom last fall for meetings of two national nonprofits boards that I serve on. So I was familiar and comfortable with the technology. I was less thrilled about receiving only one week's notice when I often allot up to three weeks to prepare for a Supreme Court argument. But it forced me to work harder and smarter in a compressed period of time, and when the argument day arrived I was ready.

What were the good points of arguing it through Zoom?

We didn't have to wait until the Court starts hearing arguments in person again. My client was injured in 2011, and his trial was in 2015. I didn't want to make him wait any longer.

What were the bad points of arguing it through Zoom?

None that I can think of. I would always prefer live argument; there is something about the intimacy of arguing a case standing a few feet away from the justices. But Zoom is a pretty reasonable facsimile.

How would you feel about trying a case through Zoom again?

I would be willing to do an appellate oral argument by Zoom; the medium is well-suited to that form of advocacy. But that is very different from trying a case through Zoom, which I cannot imagine.

How do you feel about the legal world conducting all trials through this technology?

I would be very reluctant to conduct any trial through Zoom unless extraordinary circumstances (like a pandemic) compel it. I would be very much more receptive to conducting appellate oral arguments by Zoom when necessary, though even for those I would prefer in-person arguments when permitted by the circumstances.

Do you have any final thoughts on the trial?

I appreciate the Supreme Court of Texas, and its clerk, Blake Hawthorne, being on the cutting edge of technology, and being one of the first State Supreme Courts in the country to entertain oral arguments by Zoom. And I appreciate my opposing counsel (Tom Wright) for agreeing to do this argument on Zoom, and he and others in his law firm (Wright Close & Barger) for professional demeanor and outstanding advocacy throughout this lengthy and strongly contested appeal.

Kevin Dubose, a founding partner at Alexander Dubose & Jefferson, began his career as a trial lawyer but transitioned to appellate law in 1985. He was part of the first class of Texas lawyers to become board certified in appellate law by the Texas Board of Legal Specialization when that certification was offered in 1987. When the Houston Bar Association started an appellate section in the early 1990s, Dubose was the second person elected to serve as its chair. Four years later, he was elected chair of the State Bar of Texas Appellate. He has been a frequent author and speaker on the advancement of legal ethics, professionalism and civility, and serves on the board (currently as chair-elect) of the Texas Center for Legal Ethics. In 2012, he was awarded the Chief Justice Jack Pope Professionalism Award—the third attorney in the state to receive that award.