Thursday, April 19, 2018

10 Questions to Help You Find Your Passion

Originally published by Cordell Parvin.

As you know, I practiced law a long time. I loved most of my work and I loved most of my clients.

Over my years I discovered many lawyers who did not feel the same way. Some knew what they don’t like. Others hadn’t thought about it. Others discovered they did not want to practice law.

In his book Linchpin, Seth Godin wrote:

Transferring your passion to your job is far easier than finding a job that happens to match your passion

To find your passion you must be able to find what intrinsically motivates you. Over the years I came up with 10 questions you can ask yourself to better understand your intrinsic motivation.

  1. Your Law Firm is holding your retirement party. Picture yourself there. The speakers will include a client, a lawyer in town with another firm who has been opposite you in some matters, a young lawyer in your firm, your spouse and one of your children. What would each person say about you?
  2. Imagine you are older and your grandchild asks: “What are you most proud of in your life?” What would you say?
  3. What lawyer do you admire the most and why?
  4. What lawyer is living the life you would most want to live and why?
  5. What lawyer is doing the kind of work you would most like to do and what is that work?
  6. You want people in your firm, or clients to believe you are the “go to person” to_________________.
  7. What is the work you enjoy most as a lawyer? Why?
  8. What client(s) do you enjoy the most and why?
  9. Imagine it is five years from now. Describe your day.
  10. Over the next five years, what do you want to do? What do you want to become? What do you want to earn? What do you want to learn?


The post 10 Questions to Help You Find Your Passion appeared first on Cordell Parvin Blog.

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Writing a Character Reference Letter for Court

Originally published by The Law Office of Matthew D. Sharp.

A character reference letter for court should address the points the accused’s attorney wants to emphasize, such as the defendant’s positive work history or positive steps he or she has taken to achieve important goals. The most common reason to request that others write character reference letters is to mitigate sentencing in a criminal case.… Read more about Writing a Character Reference Letter for Court

The post Writing a Character Reference Letter for Court appeared first on The Law Office of Matthew D. Sharp.

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Can I Be Forced to Testify as a Witness?

Originally published by Law Office of Brett A Podolsky.

If you have witnessed a crime, or if you have information the court deems important in a trial, you may have questions about when and if the court may force you to testify.

In this article, we review who, what, when, and in what circumstances individuals may be forced to testify, the associated laws, when you may be able to get out of testifying, and potential penalties for failing to testify.

Are you concerned about testifying as witness to a crime?
Contact Houston defense attorney Brett Podolsky for help >>

Can I Be Forced to Testify?

If a case goes to trial, attorneys may need to call certain witnesses to testify in court. Rule 701 of the Texas Rules of Evidence says that, in that event, the court will seek to receive any admissible testimony from lay witnesses (i.e., not expert witnesses) who will offer their rationally-based perception(s) regarding the determination of facts in the case.

Attorneys in a criminal trial have the right to call witnesses during a trial in order to offer information that’s pertinent to the case.

A live witness is someone considered qualified to offer testimony regarding details that are relevant to the issues of the trial. For instance, the party who calls the witness asks questions in direct examination.

When the attorney is finished with the examination, opposing counsel conducts cross examination.

If a witness doesn’t voluntarily agree to provide testimony, he or she may be subpoenaed. The witness is therefore “under penalty” if he or she doesn’t appear to testify in court.

Is There a Way to Get Out of Providing Testimony?

The subpoenaed witness has few reasons to excuse him or her from testifying. He or she may be excused from providing witness testimony:

  • If he or she is incompetent to provide testimony, due to illness or age: His or her condition prevents his or her recall of events and from providing a truthful explanation to the court. (Note: This is a very challenging threshold. The court may allow even a very young witness to provide testimony, even if his or her testimony might not be considered “reliable.” In this scenario, the jury may consider the young person’s age to determine whether or not it should rely on the testimony offered.)
  • If the witness is the attorney to one of the parties (or his or her psychotherapist or priest), he or she may be excused from testimony because of their legally privileged special relationship.
  • If the witness’ testimony will include self-incriminating evidence, the Fifth Amendment of the U.S. Constitution provides him or her with the right to avoid giving this evidence to the court. He or she may, at any time, simply refuse to answer a question in direct examination or cross examination by claiming Fifth Amendment protection.
  • The prospective witness is a defendant in a criminal case. (This scenario is an extension of the Fifth Amendment protections. A criminal defendant can’t be forced to provide testimony.)
  • The prospective witness is the spouse of someone involved in the case. The communications between married persons is privileged so, in most instances, a spouse can’t be made to testify against his or her spouse. However, a former or separated spouse may be considered competent as a defense for the prosecution.

If a prospective witness doesn’t fall into any of the above categories, he or she will probably have to provide testimony. However, the witness may benefit from consulting with an experienced criminal defense lawyer to ensure his or her interests and rights are protected in the proceeding.

For instance, a witness might be afraid to testify in a proceeding because he or she fears retaliation. In such a scenario, the court may take additional precautions with such a witness, e.g. preventing reporters from entering the court room.

If the above excuses don’t apply to the subpoenaed witness, he or she may request a postponement of appearance in the court. Unfortunately, postponements are granted on a limited basis, usually due to severe illness or death.

If the court doesn’t grant a postponement, the witness is required to appear at the date and time provided on the subpoena.

If the court grants a postponement, he or she is obliged to appear in court at the date and time indicated.

Are There Penalties for Failing to Testify?

The short answer is yes.

If the witness was properly subpoenaed but he or she failed to comply with it, the court may—at its discretion—find him or her in contempt of court.

In that case, he or she may face a potential jail sentence and/or significant fines (Section 21.002 of the Texas Government Code).

What’s a Competent Witness?

Generally speaking, a competent person may be forced or compelled to provide evidence in a Texas criminal or civil case.

You’re deemed a competent witness if the court believes you’re capable of providing allowable (admissible) evidence to the court.

If you’re the accused in a criminal case, we discussed that you’re not required to provide evidence in your own defense. If you choose against testifying, this fact can’t be commented upon by the prosecutor in his or her comments to the jury.

If you do offer evidence in your own trial, the prosecution may cross-examine you.

You aren’t allowed to refuse to answer the prosecutor’s questions on the grounds that your response might incriminate you.

The prosecutor can’t ask any questions about your prior poor character unless:

  • Your attorney or you previously provided evidence of your good character
  • Your attorney directed questions concerning the character of its witnesses
  • You provided evidence in your own defense against another accused (co-accused party)

You can’t be compelled to provide evidence to the prosecutor in its efforts to convict you. Similarly, you can’t be compelled to offer evidence against another co-accused (when you’re being tried in the same proceeding).

What Happens If I Refuse to Testify? Will the Charges Get Dropped?

Prosecutors are often asked if charges will be dropped if a certain witness refuses to testify against him or her.

The answer depends on the particular case circumstances. A prosecutor may elect to move forward even if the witness refuses to testify, such as:

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  1. Testimony is on the record. If a witness doesn’t appear at the trial date, the prosecutor might not need his or her live testimony because it’s already on the record. For example, the witness in question might have been previously examined and cross-examined in a preliminary hearing. However, for the prosecutor to have the benefit of the witness’ prior testimony, he or she must be considered legally unavailable. In other words, he or she must be considered mentally or physically disabled, outside of the jurisdiction’s limits, or have involved a privilege that prevents the prosecution from compelling him or her to testify. In addition, the prosecution must show that it made good faith efforts to secure the witness’ testimony. If the accused is deemed the cause of the witness’ unavailability, the court may agree to admit his or her statements.
  2. Victim emergency recording. The prosecution might not need a witness’ live testimony if he or she called “911” and the recording is available to present to the court. An emergency call can elucidate the events or incidents that resulted in criminal charges, e.g. the defendant’s declaration of hitting, threatening, or causing other harms to the victim. Although an emergency call isn’t sworn testimony, it provides an explanation of facts in the case. Although out-of-court statements offered to explain the truth may be considered hearsay, several notable exceptions exist. An excited utterance is considered one of these exceptions.
  3. Another witness is available. A prosecutor may elect to move forward even if a victim fails to testify if another witness will offer testimony about what happened. A colleague, neighbor, friend, or another party who witnessed the event may testify.
  4. Other evidence is available to prove the facts. When an eyewitness isn’t available, the prosecution may offer other evidence to establish the alleged facts. For instance:
  • An assault victim went to the emergency room and the ER doctor took pictures of the abuse.
  • A passerby made a video recording of the assault with his or her mobile.
  • The determination of what is hearsay involves finding a witness to substantiate images or videos.
  1. Protection orders. Many victims don’t want to testify because they fear the defendant. The prospective witness may have previously obtained a protection order against the accused to prevent any contact with him or her.
  2. Legal assistance. People involved in a criminal assault case shouldn’t assume that the case will be thrown out because a victim declines to testify against the accused. It’s wise for the prospective defendant to contact an experienced criminal defense lawyer as soon as possible to protect his or her legal rights.

Concerned about Testifying as a Witness?

If you have concerns about being forced to testify as a witness, or if you have concerns about testifying in your own defense, contact an experienced criminal defense lawyer.

Contact the Law Office of Brett A. Podolsky in Houston at 713-227-0087 to schedule an initial case consultation now.

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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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Texas Appeals Court Upholds Family Member Exclusion in Auto and Umbrella Policies

Originally published by Steven A. Meyerowitz, Esq., Director, FC&S Legal.


An appellate court in Texas has ruled that a family member exclusion in a Texas personal auto policy and a similar provision in a personal liability umbrella policy were not void as against public policy.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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Questions Presented

Originally published by Jason P. Steed.

A good QP will give the appellate court a clear sense of the issue that needs to be decided, while also framing the question in a way that suggests a particular answer. In most cases at the intermediate court of appeals, you can frame the issues as yes-or-no questions that seem to have an obvious answer that you want the court to reach.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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The Texas Lawyer’s Creed — voluntary standards for attorney professionalism and civility

Originally published by Michelle O'Neil.

Texas Lawyer’s Creed

The Texas Lawyer’s Creed was adopted by the Supreme Court of Texas and the Court of Criminal Appeals of Texas in 1989, then reaffirmed in 2013. Amendments were passed in 2016 to update the creed. Civility is at the heart of the creed – suggesting that the conduct of a lawyer should “be characterized at all time by honesty, candor, and fairness.” It reminds lawyers that we owe, not only a duty to our clients, but also to the legal system as a whole. Designed by Justice Eugene Cook, with the assistance of James “Blackie” Holmes III and Fred Hagans, the Texas Lawyers Creed came about due to an increase in “Rambo” obstructionist tactics, numerous motions for sanctions, and generally petty behavior that concerned high level members of the Texas Bar.

In 2015, Governor Greg Abbott signed into law a civility oath to be added to the oath that every lawyer takes when being admitted to the Texas bar. The oath adds that the individual will conduct oneself with integrity and civility in dealing with the court and all parties.

Justice Anthony Kennedy described civility as, “not some bumper-sticker slogan… but the mark of an accomplished and superb professional… with deep roots in respect for the individual.” (Kennedy, Anthony, 1997 Speech, ABA Annual Meeting.)

The Creed contains four focuses of civility:

  • Our legal system – A lawyer owes to the administration of justice personal dignity, integrity, and independence.
  • Lawyer to client – A lawyer owes to a client allegiance, learning, skill, and industry.
  • Lawyer to lawyer – A lawyer owes to opposing counsel courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings.
  • Lawyer to judge – Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack.

The Creed is completely voluntary, with no means of enforcement. Involuntary enforcement operates contrary to the purpose of the creed. We as lawyers should desire to achieve the goals of the creed, without such actions being a requirement.

To read the entire Texas Lawyer’s Creed, click here.

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Sue ERCOT? Not.

Originally published by David Coale.

In a thorough review of sovereign immunity principles, the Fifth Court granted a mandamus petition and found that ERCOT was protected from claims that it misrepresented information about future demand for electric power in Texas. ERCOT v. Panda Power Generation, No. 05-17-00872-CV (April 16, 2018) (applying, inter alia,Brown & Gay v. Olivares, 461 S.W.3dd 117 (Tex. 2015)). Notably, in its discussion of mandamus standards, after noting that a trial court lacks discretion to misapply the law, the Court observed: “This principle applies even when the law is unsettled.” (citing In re: J.B. Hunt Transport, Inc., 492 S.W.3d 287, 294 (Tex 2016) (orig. proceeding).

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