Hurricane "I’m Sorry" Letter Inquiries

For all of those who have read on blogs or on emails, Jeff Murphrey’s letter of September 26, 2008 to Dale Markland about hurricane related sewage in his yard in which he slams Mr. Markland and impliedly slams the lawyers from the great city of Dallas, Texas.

I am glad I am from Dallas, I am proud of the fine group of

lawyers who practice in this great city, and I am proud of

my actions related to Mr. Murphrey’s late cancellation of

the deposition. Dallas, like Houston, has thousands of

very professional and capable attorneys, like myself, who

represent their clients in a very professional, competent

and ethical way. Mr. Murphrey’s implied slam on Dallas

attorneys and his slam on me are totally off base and

unjustified. Read on for the real story behind Jeff

Murphrey’s letter.

Dale Markland

What this section of our website relates to:

On September 26, 2008, a Houston attorney, Jeff Murphrey, sent a letter to me (Dale Markland) related to his cancellation of a deposition in an on-going lawsuit that he and I were involved in. Someone sent that letter to internet blog sites and distributed it through mass emailings such that basically the entire world has had a chance to read Mr. Murphrey’s letter, and apparently many have. Some individuals who have read that letter (and only that letter), have apparently drawn some conclusions about my actions and those of our law firm in this situation. This is my statement regarding the events and the contents of the letter. I thought my “jurors”—those on blog sites and mass emailing sites—might want to hear some of the detailed facts about the events rather than relying solely on the one and one-half page September 26 letter from Mr. Murphrey. I thought that lawyers particularly would feel it unjust that anonymous bloggers would attempt to destroy the reputation of a fellow lawyer (myself) that has been built through almost 35 years of practice and built to such a degree that I have received an AV rating from Martindale-Hubbell Legal Directory every year for well over a quarter of a century—particularly when bloggers based their attempt to destroy my reputation solely on what they read in a one and one-half page emotional letter that included some allegations, but virtually nothing in the way of relevant facts. The lessons to be learned from this situation are of extreme significance to the legal profession and indeed, to the entire society in which we live.

Synopsis of My Responsive statement:

Detailed Chronology of Events:

A few months ago, Jeff Murphrey requested on behalf of his client that my client set up the deposition of a particular witness in a case in which we were both involved. This witness was a retired engineer previously employed by my client who lived in Fort Wayne, Indiana. Of course, I agreed to do so. Our case involves eleven different parties. Getting the original date for the deposition set up entailed coordinating the schedules of all eleven counsel in the case plus the schedules of the witness and of my client’s representatives who planned to attend the deposition. In the case of the witness, myself and my client’s representatives, this process entailed finding two consecutive dates on all of our calendars—one for deposition preparation and one for presenting the witness for the deposition, plus a day for travel in my case from Dallas to Fort Wayne, Indiana where the deposition was to be taken. In the process of initially getting this deposition set up, I informed Jeff Murphrey in an email of June 19 that one possibility was to do the deposition on July 23 if I could juggle my schedule to work on that date. The witness was available, and my client’s representatives were available on that date. I reiterated by email of July 1 to Jeff Murphrey that I was still trying to get that deposition set up on July 23 and felt that I could get that worked out. By email of July 2, I confirmed that I could present the witness for deposition on July 23. I had rearranged my schedule to accommodate that. Having not heard from Jeff Murphrey to the contrary since my June 19 email, I presumed July 23 was acceptable. I then received notice, by email on July 3, that Jeff could not make himself available on the 23rd. In response, I sent Jeff an email of July 7 indicating that I felt he should have let me know at an earlier point in time in response to my earlier emails if he had not been available on July 23. In that way, I would not have had to have rescheduled other matters to make July 23 work. I requested Mr. Murphrey to provide other available dates and I stated that I would try to schedule the deposition accordingly. I went forward again with the rescheduling process with all of the attorneys, parties and witness. After a great deal of effort in this regard and significant monetary outlays by my client for the law firm expenses in getting the deposition set up, a date was agreed upon—that being August 13, 2008. Mr. Murphrey issued his deposition notice for that date. The witness, myself and my client’s representatives set aside two days for the activities. I set aside a third day for travel to Fort Wayne. In the week preceding August 13, one of the other counsel in the case had a conflict arise—he was called to trial in the time period that was set for the witness’ deposition in our case. Mr. Murphrey, at that other counsel’s request, agreed to cancel the deposition. Mr. Murphrey asked that I circulate some new dates as soon as I could. I responded that I would do so, and I again went about the process of getting the deposition set up. My firm again put in significant efforts to find a mutually convenient date for all of the parties and to find two consecutive days that myself, my client’s representatives, and the witness would be available. This again entailed significant expense to my client for law firm fees. We all settled on September 25. Jeff Murphrey issued his deposition notice for that date. From that point in time until September 23, we heard nothing from Jeff Murphrey regarding having any problems related to the hurricane or needing to re-set the witness’ deposition. I made flight arrangements to Fort Wayne, Indiana—the place of the deposition. This was a two-leg flight going first to Chicago and then catching a connecting flight from Chicago to Fort Wayne.

As is customary, I needed one day for travel to Fort Wayne, Indiana (most flights go through Chicago), one day for pre-trial preparation to discuss the issues with the witness, and a third day, September 25, was the set date for the deposition.

The hurricane occurred September 12-13 in the Galveston/Houston area. Mr. Murphrey did not call me or make any contact with me about his having had any problems with hurricane damage or about his needing to cancel the deposition between the time of the hurricane on September 12/13 and September 23—the date that I left for Fort Wayne, Indiana. I flew to Fort Wayne, Indiana through Chicago on September 23 to prepare the witness for the deposition.

Mr. Murphrey telefaxed a letter to my office on September 23—after I had already left the office for my flight to Chicago. In the telefaxed letter, he stated that he had extensive hurricane damage and needed to meet with contractors and city officials about that. He said nothing about all of specific horrors that he mentions in his September 26, 2008 letter. He stated in his telefaxed letter of September 23 that he was cancelling the deposition. This was received in our office after I had left for my trip to Chicago and Fort Wayne.

When Mr. Murphrey’s faxed letter was received by my office, my office personnel attempted to contact me, but I was already on the plane with my cell phone turned off awaiting departure. When I got to Chicago, and as I rushed from the flight from Dallas to the connecting flight to Fort Wayne, I got the voice mail message from my paralegal regarding Mr. Murphrey’s letter cancelling the deposition. My paralegal’s voice message on my cell phone stated that Mr. Murphrey had cancelled the deposition because hurricane damage required him to meet with contractors and city officials during the time frame of the deposition. Nothing was stated in this communication either about the extensive nature of the damage Mr. Murphrey suffered or about the detailed horrors which he later set forth in his September 26, 2008 letter. During the short intervening time that I had to catch the flight to Fort Wayne, I also called my client who was travelling by car from Chicago to Fort Wayne for the same meeting to inform him of the situation and to get his instructions. He did not pick up on the cell phone, so I left him a message and got on the plane to Fort Wayne to meet him there. During the short intervening time that I had to catch the flight to Fort Wayne, I also called my partner and asked that she call Mr. Murphrey and determine whether his firm or his client would pay for my travel expenses in going to Fort Wayne needlessly and for reasonable attorney’s fees for the travel time. I was concerned that my client would be stuck with the fees and expenses for a useless trip caused by the late cancellation of the deposition by Mr. Murphrey. In my experience, it is not abnormal for one party to demand attorney’s fees and expenses from the other party when the first party has had to undergo those expenses because the second party has failed to give adequate notice of cancellation of a deposition. If I had been in Mr. Murphrey’s shoes, I would have agreed to pay for the useless trip of other counsel out of my firm’s pocket. I did not instruct my partner to seek the expenses entailed by my client, who also needlessly travelled to Fort Wayne from Chicago.

When I arrived at Fort Wayne on September 23, I listened to a voice mail message from my partner in which she stated that she had attempted to call Mr. Murphrey, but he was not available and that she, by leaving him a voice mail message, had passed on to Mr. Murphrey my inquiry regarding whether he would agree to payment of the expenses and attorney’s fees.

When I arrived at Fort Wayne, I discussed the situation with my client. The determination was made that it would be appropriate to insist upon reimbursement of the expenses and attorney’s fees due to the late notification of cancellation of the deposition. We called the witness and informed him that his deposition would again have to be re-set. Knowing that when the deposition was re-set we would have to prepare him the day in advance of the deposition in any case, we offered the witness the option to go forward with the deposition preparation session the next day and again prior to the re-set deposition date, or to simply do it one time—the day before the deposition was re-set. The witness, who had already set aside a number of days for this activity, requested that we simply do the deposition preparation the day before the deposition was re-set. My client and I stayed overnight in Fort Wayne. The next morning I awoke at 4:50 a.m. Eastern time to catch a 6:30 direct flight back to Dallas from Fort Wayne. This was the only direct flight until mid-afternoon. In this way, I would save the client the cost of my time sitting around Fort Wayne while waiting for a direct flight or the time spent in traveling through Chicago to get back to Dallas. It was 3:45 a.m. my time when I awoke to go to the airport for this cost-saving action. My client drove back to Chicago that morning having wasted more than a day of his time in coming to Fort Wayne.

On the morning of September 24, my partner received a voice mail message from Kari Jones of Mr. Murphrey’s office stating that Mr. Murphrey would agree to pay “reasonable hotel and flight fees.” I confirmed with my law partner that the message she left for Mr. Murphrey included attorney’s fees as well as travel expenses, and she stated that it was her belief that it did. I responded on September 24 to Mr. Murphrey’s secretary’s voice mail by telefaxed letter to Mr. Murphrey that our proposal was to include reasonable attorney’s fees, not just airfare and hotel expenses. In response, Jeff Murphrey sent to our office an email of September 24 in which he states “according to Tara Hanley (my law partner who had left the message at Jeff Murphrey’s), you said you would agree to cancel the deposition of (the witness) if my client would agree to reimburse you for any reasonable fees (airfare and hotel) incurred while traveling to Indiana yesterday. My secretary left Ms. Hanley a voice mail message earlier this morning indicating our agreement to do so. However, since you are now stating that Navistar did not agree to the cancellation, my client will not reimburse you for anything.” I took note of Mr. Murphrey’s language in his email “any reasonable fees (air fare and hotel) incurred while traveling to Indiana yesterday.” I doubted that my law partner put any parenthesis around the words “airfare and hotel” in her phone message which she left for Mr. Murphrey as Mr. Murphrey had put around those words in his email. Following receipt of Mr. Murphrey’s email, my law partner responded to him with an email in which she stated that as she recalled, her message included attorney’s fees, airfare and hotel expenses. She also indicated to Mr. Murphrey that in her experience, attorney’s do not routinely refer to airfare and hotel as “fees,” and that she does not believe she did so in her message for Mr. Murphrey. My partner, in her response, asked Mr. Murphrey to permanently save the message which she left on his email on Tuesday afternoon and to provide us with an audiotape copy of the message. To date we have not received such a copy of the message. To date, Mr. Murphrey has not so much as attempted to call me to discuss this. He did not do so in the ten days or so intervening between the hurricane and his cancellation of the deposition, he did not do so when attempting to cancel the deposition, and he did not do so at any point in time thereafter.

Following the above chain of events, Mr. Murphrey sent his September 26, 2008 letter. In his letter of September 26, he states that my partner did not mention anything about attorney’s fees in her voice mail. As noted above, this is certainly a point of disagreement. Mr. Murphrey then makes the statement in his letter of September 26, “I am sorry that you either went back on your word, or more likely, just do not have a word.” I gave Mr. Murphrey no word on the subject. I never even talked to Mr. Murphrey. My partner left him a message regarding what my proposal was. She believes she accurately stated the proposal in her message left for Mr. Murphrey. My proposal, as discussed with my client included reasonable attorney’s fees. If Mr. Murphrey’s office had any unclarity regarding that, it was made perfectly clear to Mr. Murphrey through both my telefaxed letter of September 24 and my partner’s email that our client was seeking attorney’s fees as well as travel expenses. There was nothing unclear about these statements. Neither I nor my client had any agreement with Mr. Murphrey on this subject.

Mr. Murphrey goes on in his letter of September 26 to state that I am a lawyer that consistently goes out of my way to be unaccommodating and unprofessional with the other lawyers. As noted above, regarding this very deposition, my law firm, at my client’s expense had gone through great effort to get the deposition set and re-set to accommodate the needs of other parties and their attorneys. I consistently work with the other attorney’s in the cases in which I am involved to find mutually convenient deposition dates.

My Personal Statement Regarding this Situation:

If Mr. Murphrey had just picked up the telephone and called me or had asked me by email or regular mail for re-setting of the deposition in the 9 to 10 day post-hurricane time frame and before I flew off to Fort Wayne for my client, there would have been no problem. I would have gladly re-set the deposition and there would have been no unnecessary expenses and fees involved for my client.

It was not my fault nor my client’s that Mr. Murphrey waited so late to cancel the deposition.

The first I knew of Mr. Murphrey’s story of horrors as expressed in his September 26 letter is when I got the letter on September 26—after he had failed to come up to Fort Wayne for the deposition and after he had cancelled it.

I am very sympathetic to Mr. Murphrey’s situation relative to the hurricane, but it is not my client’s fault that he failed to cancel the deposition in a more timely fashion before I entailed the fees and expenses on my client’s behalf.

Mr. Murphrey stated in his letter of September 26 that I am “unprofessional.” My entire career presents itself as proof to the contrary. I have spent almost 35 years in the legal profession building my reputation. I am AV rated by Martindale-Hubbell and have been for over a quarter of a century. This is the highest rating offered by Martindale-Hubbell for both proficiency as an attorney and ethical conduct. In this instance, I did nothing more than attempt to look out for my client’s interest as any competent and professional lawyer would do. I have not tried to fight this September 26 letter issue through media or blogs, but rather through rational discourse among the parties. I violated no agreement with Mr. Murphrey.

After Mr. Murphrey’s September 26 letter was disseminated by some party through the internet blogs and emails to basically everyone in the world, apparently some of the readers of Mr. Murphrey’s September 26 letter failed to recognize these facts:

In return for doing my job in a proper and professional way, I got the following:

It appears from the content of these communications that the following misconceptions were drawn by many who have not heard the entire chronological facts:

Apparently because of these misconceptions on the part of those who read Mr. Murphrey’s September 26 letter on blogs and emails, (people who had not even heard the entire set of events) such individuals decided that I was a very terrible person—and they let me know it. Unfortunately, they let the entire world know it as well on blogs and circulated emails.

The Lessons to be Learned by Those Who Have Read this Site as well as Mr. Murphrey’s September 26 letter:

A Final Request:

For those who do read this website statement, I would ask that you request that all those you know who have read the Jeff Murphrey September 26 letter read this website statement as well.

Thank you for your help in this matter.

Dale Markland