Friday, July 20, 2018

Top Ten from Texas Bar Today: Big Brother, Wonder Woman, and Instagram

Originally published by Teri Rodriguez.

To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. Texas Court Limits Width of Old General Transmission Line Easement – Tiffany Dowell Lashmet @TiffDowell, Assistant Professor and Extension Specialist in Agricultural Law with Texas A&M Agrilife Extension in College Station

9. Whataburger Versus Wonder Woman – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

8. Dance Lessons Learned in the O.R. – Texas Personal Injury News of Chandler, Mathis & Zivley in Houston

7. Oracle v. Google – Redefining The Applicability and Scope of The Fair Use Defense for SoftwareWinnie Wong of Haynes and Boone LLP @haynesboone

6. Employers Are Responsible for Stopping Sexual Harassment by Non-Employees – Leiza Dolghih @TexasNonCompete of Lewis Brisbois Bisgaard & Smith LLP in Dallas

5. SEO Myths Busted – Emma Hanes of Stacey E. Burke P.C. @StaceyEBurke in Houston

4. The Appellate Road Warrior: Apps for Practicing From the RoadD. Todd Smith of Smith Haley Nobles @dtoddsmith in Austin

3. Golden Rules of Data Privacy Law – Bradley Gold of Grable Martin Fulton PLLC in Austin

2. Big Brother, Bar Exam Edition – Professor Amy Jarmon, Assistant Dean for Academic Success Programs at Texas Tech University School of Law @TTU_Law ‏ in Lubbock

1. Instagram in Court – Herrman & Herrman, P.L.L.C. @herrmanlawfirm in Corpus Christi

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Best vacation ever with your Member Benefits Program

Originally published by Staff Report.

Thanks to your Member Benefit Program, your family can have the best vacation ever. The platform has savings on resorts, hotels, suitcases and more. Check out the Travel and Retail pages for more info.

  • TripBeat — TripBeat makes it easy and affordable to book the perfect resort vacation. We have more than 2,400 properties around the world where you can save up to 40% on the room rate.
  • Red Roof Inn When you’re on the road, Red Roof Inn has a room for you. State Bar of Texas members receive 15% off the room rate at any of the more than 380 Inns nationwide.
  • Cruise & Vacation Perks With the Cruise & Vacation Perks program, you always receive the lowest available fare, plus a 4% cash-back award, for all cruise vacations. Cruise lines include Crystal Cruises, Princess Cruises, Royal Caribbean and more!
  • Luggagedesigners — State Bar of Texas members save an additional 10% on over 10,000 travel-related items. Products include luggage, suitcases, anti-theft travel bags, RFID-blocking wallets, backpacks, duffels, handbags, leather goods and many more.
  • Briggs & Riley — Briggs & Riley offers a bag for every traveler and a collection for every lifestyle. You can save 20% on luggage and business-case collections.
  • eBags eBags is devoted to helping customers find the perfect gear for their journey through life. You can enjoy free shipping for purchases over $49 and 25% off sitewide.
  • Zipcar As a Zipcar member, you can book sedans, hybrids, SUVs and even luxury vehicles whenever you need them. When you sign up for Zipcar for a low annual fee of $70, you’ll get $30 in free driving.

Current offers provided by Beneplace.

For more information on other discounts you’re eligible for as a member of the State Bar of Texas, visit texasbar.com/benefits.

Texas Bar Private Insurance Exchange
The Texas Bar Private Insurance Exchange is a multi-carrier private exchange designed for State Bar of Texas members and their staff and dependents. Available to both individuals and employer groups, the exchange offers a wide range of health insurance choices and more.

State Bar of Texas – Benefits & Services

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5 Golden Rules of Data Privacy Law

Originally published by Bradley Gold.

Bradley Gold As news stories roll out on a daily basis regarding the changing landscape of data privacy and the world of law governing it, there is much confusion. Businesses push their interests to make money, individual people protest violations of various rights, and politicians straddle the middle, impossibly trying to please everyone. […]

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Final "Flight Plan" Bar Exam Preparations for The Weekend Before the Big Event!

Originally published by lawschool academicsupport.

Attention Bar Takers: Here’s a couple of short winning tips for your final weekend flight plan checks as you prepare for success on your bar exam next week! I. Focus on a Winning Attitude: First, remind yourself right now why…

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Post-Divorce Division of Year-End Bonus & Fees for Non-Attorney Staff: Opinions

Originally published by mkhtx.

The Fourteenth Court of Appeals released a published opinion in Land v. Land, No. 14-17-00013-CV, this morning on post-divorce division of assets, specifically the division of a year-end bonus. Additionally, practitioners may want to pay special attention to the COA’s reversal of an entire fee award (subject to recalculation on remand) because there was insufficient evidence in support of the non-attorney staff fees.

Husband and wife divorced in March 2014. The decree incorporated the parties’ Agreement Incident to Divorce (the “AID”) which was also signed in March 2014. The AID includes a detailed division of the marital estate based on an informal settlement agreement (the “ISA”) signed by the parties at an earlier settlement conference.  The ISA provides that “[a]ll assets” are to be divided 53/47 in favor of wife, including specifically husband’s 2013 year-end bonus: “[Wife] shall receive [a] 53% portion of the 2013 year[-]bonus paid to [husband] in February  2014, if and when paid.” The AID says husband is entitled to receive “[a] 47% interest in the net amount of the 2013 year[-]end bonus from Occidental Petroleum undistributed as of the date of divorce” and the wife is entitled to receive “[a] 53% interest in the net amount after taxes and deductions of the 2013 year[-]end bonus from Occidental Petroleum undistributed as of the date of the divorce.”

Husband’s 2013 year-end bonus was $460,000, gross. The paystub reflected two pre-tax deductions: $75,000 for a deferred annual bonus and $6,000 for personal savings account contribution, leaving $379,000.00. After taxes ($108,711.10), the net amount paid to husband was $270,288.90, of which husband paid wife 53% ($143,253.12).

At issue is whether or not the $81,000 in pre-tax deductions was an undivided asset.  Wife sought an order directing husband to pay 53% of the $81,000 to her. After much procedural wrangling, the trial court granted the relief and awarded wife $30,480.10 in attorney’s fees and costs. Husband filed an MNT and when that was overruled by operation of law, he appealed.

Regarding the division of the bonus, husband argued that the $81,000 was not an undivided asset because the trial court’s judgment impermissibly modified the unambiguous distribution in the AID. That is, he argues the ISA and AID only required him to pay 53% of the “net amount” of the bonus and the AID clearly excepted deductions from the amount to be awarded to wife. The COA found that the $81,000 was excepted but it was not divided by the decree. The trial court was affirmed.

There was also an issue of a ring. Wife asserted a breach of contract claim against husband for holding or converting the ring. The trial court sided with wife and husband challenged the sufficiency of the evidence. The COA reviewed the evidence in support of the trial court’s judgment and affirmed.

But it wasn’t a clean sweep for wife by any means. Husband challenged the award of attorney’s fees awarded to wife because wife “offered no evidence on the qualifications or supervision of the non-attorneys for whom fees were awarded.” Wife’s attorney testified as follows:

“My hourly rate is $350.00 an hour. That is an amount that is customary for a lawyer with my skill and my experience.”

“[M]y associate …. who has been licensed for five years, has charged $250.00 an hour. Additionally, [paralegal] has been a paralegal at $100.00 an hour. Those are both customary rates for [a] paralegal and associate attorney with their skill and experience.”

“My total firm’s attorney’s fees in this matter, with the billable expenses that we’ve had to incur, are $36,080.10.”

The COA sustained husband’s challenge and found that there was “[n]o evidence presented to show the non-attorney staff members’ qualifications to perform the substantive legal work for which they billed” or that the non-attorney staff member performed the substantive legal work under the direction and supervision of an attorney.

Because the COA could not determine how much of the attorney’s fees award was based on work performed by non-attorney staff, they reversed the entire award of $30,480.10 and remanded to trial court with instructions to delete from the award “any amount based on the work of a person who is not an attorney and to make a new award… not based on the work of any such person because the proof regarding this work is legally insufficient.”

Accordingly, the trial court was affirmed on the division of the bonus and the breach of contract finding, but was reversed and remanded based on the attorney fee award.

 

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State Bar of Texas Members Being Surveyed on Bar’s Efforts at Transparency

Originally published by Mary Alice Salmon.

 

A survey emailed July 18 to State Bar of Texas members asks them to weigh in on the bar’s transparency efforts after a task force appointed last year to study the issue was allowed to expire in June.
      

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Instagram in Court

Originally published by Herrman & Herrman, P.L.L.C..

Instagram is a popular social media platform that allows users to upload pictures, post comments, and even promote their business. While it has not quite reached the ranks of Facebook in the social media world, it has made plenty of progress over the years, becoming the second most popular platform in the United States. With its rising popularity, it should come as no surprise that Instagram posts have been admitted as evidence in various court cases throughout the country.

Because many Instagram posts are public, they can be easily admitted as evidence in a court of law. However, the authenticity of the posts must be verified, and it must be proven that the party involved is the owner of the account. In situations where this information is not verifiable, there is likely to be pushback from the other side.

How can Instagram be used in court?

Most posts on Instagram involve photographs. Personal accounts will often show pictures of the user or the places that they have been. It is common for people to update their Instagram profiles with pictures from vacations, special events, and photos of themselves. Depending on the nature of the case, these photos can be used to help prove innocence or guilt.

One common example is that of a person that may be making a personal injury claim, whether against an employer or another individual. They may be seeking money to recoup medical bills or attempting to show an inability to work in order to receive disability. Either way, Instagram photographs can discredit their claims if they show something to the contrary. Recently uploaded photos of the individual participating in sports or other physical activities may be used as evidence against them, causing them to lose the case unless they can prove that the photos were from a time before the injury that they are claiming.

Photos with timestamps can also be used to corroborate or refute a person’s alibi. If a defendant is being accused of a particular crime, their posts may indicate that they were in a different place at the time of the crime. Location services such as geotagging can give even more validity to the use of these posts as evidence.

Instagram Cyber-Bullying Lawsuit

In 2014, Houston parents Reymundo and Shellie Esquivel brought a lawsuit against 7 students after finding that the teens had been harassing their daughter over Instagram. Multiple posts show the group of teenagers maliciously bullying their 16-year-old daughter over the course of several months. The teens were sued for libel and the Esquivels also went after the parents of the students for negligence.

Instagram posts show pictures of the victim alongside other sexually explicit pictures and with language littered with vulgarities and sexually inappropriate comments. The page gained a following of over 900 people before it was shut down. The parents allege that their daughter was left with emotional trauma after the incident.

In this case, Instagram data provided significant proof against the offenders. It is likely to set a precedent for upcoming cases as social media, especially platforms like Instagram, become more commonly used as evidence in courts across the nation.

 

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