Friday, June 15, 2018

State Bar of Texas’ Jury Service Committee seeks juror feedback

Originally published by Amy Starnes.

The State Bar of Texas’ Jury Service Committee is seeking feedback from people summoned to jury duty about their experiences.

The committee has created an online survey designed to elicit a more thorough understanding of the juror experience regardless of court or county or whether or not the individual ended up serving on a jury. The committee hopes the information collected will result in recommendations to improve the jury service system where possible.

The survey can be found at

The State Bar of Texas Jury Service Committee concerns itself with improving the manner in which jurors are treated within the judicial process and developing and implementing programs to ensure broad citizen participation and support for the jury service system.

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Texas Oil and Gas Drilling Surface Use Agreements

Originally published by Environmental and Energy Law Blog.


In Texas, mineral estates are dominant over surface estates. Therefore, the owner of a mineral estate can freely use the surface estate for the exploration, development, and production of the gas and oil beneath the property. This right to use the surface estate may be exercised by a lessee who has taken a mineral lease from the mineral estate’s actual owner. And because a lessee may use the surface without restoring it or paying for non-negligent damage, surface owners often acquire what is known as a surface use agreement that restricts the use of the surface or establishes damages. Below is an overview of surface use agreements in Texas.

Texas Surface Use Agreements

Surface use agreements allow landowners and lessees to reach an agreement regarding the use of a piece of property’s surface during the drilling process. Such agreements are often necessary because of the damage that drilling for minerals can cause to a piece of property’s surface area. Such agreements serve to prevent irreparable damage to a piece of property and obligate the lessee to a particular standard of reclamation that may include:

  • Filling drill pits;
  • Reseeding to ensure the viability of future development;
  • Restoring access to wells that have been damaged;
  • Replenishment of livestock; and
  • Any other issues that may harm future royalties.

Common Provisions

There are a number of common provisions that are typically included in surface use agreements, including:

  • Rights of the lessee;
  • Responsibilities of the lessee;
  • Benefits allowed to the surface owner;
  • Plan of development;
  • Issues affecting water;
  • Issues affecting land use;
  • Reclamation;
  • Health issues;
  • Safety issues;
  • Quality of life issues;
  • Issues affecting the enforceability of the agreement;
  • How separate agreements are to be handled;
  • Whether installed pipelines on the property shall be buried or left above ground; and
  • Detailed procedures for noise abatement.

Texas Oil and Gas Attorney

Oil and gas laws are always changing. Therefore, it’s imperative that those involved in the energy industry have reliable, experienced, and knowledgeable legal representation to help guide them through the ever-changing Texas energy landscape. In the areas of oil and gas, it’s particularly important to ensure that all contracts, including surface use agreements, are properly drafted. Oil and gas contracts are sophisticated documents, and it’s important that they be drafted in a manner that ensures the rights and responsibilities of all parties involved. At the Law Office of C. William Smalling, P.C., we are highly experienced in the drafting and review of oil and gas contracts, including surface use agreements, joint operating agreements, farm-out agreements, master service agreements, drilling contracts, licensing agreements for use of seismic or technical data, and nondisclosure agreements. If you are in need of expert oil and gas legal representation, contact us today for a consultation.

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Complex Hawaii Case Raises Questions about Federal Criminal Procedure

Originally published by John Floyd.

Complex Hawaii Case Raises Questions about Federal Criminal Procedure

A former Honolulu police chief has been charged with a litany of offenses, including bank fraud, identity theft, obstruction of justice, and a conspiracy involving several other police officers.


He faces federal charges following a federal grand jury indictment which was recently amended by federal prosecutors which made no mention a mailbox heist that was part of the original indictment. Defense attorneys in the case first thought that this charge had been dismissed, but later discovered that the mailbox case was still active – prosecutors had simply divided his charges into two separate trials.


Is this legal? Will defense lawyers be able to use this strange maneuver to help their clients?


Only time will tell in this specific case, but this peculiar legal move underscores the complexity of the federal court system. Federal courts have their own way of doing things, and federal rules of criminal procedure are complex, as is federal criminal defense.


Below, we’re going to break down the process of federal criminal prosecution, and what defendants can expect at each stage.




The Federal Government has a number of agencies that investigate potential crimes, collecting and providing relevant information and evidence to U.S. attorneys. You have likely heard of many of these agencies. For example, the FBI.


The investigation may include both a search warrant and arrest of the suspects. In order to search a suspect’s home, clothing, computer, or other property, investigators must have a search warrant. Once there is probable cause to do so, the suspect will be arrested.




Once federal prosecutors have reviewed the evidence for the alleged offense and spoken to witnesses or other persons of interest, they will determine whether to bring the case to trial. If they decide to try the case, the suspect will be charged, or indicted, with the crime.


The defendant is given formal notice that he is being charged with committing a crime, known as the indictment. This contains basic information about the alleged offense and the charges being brought.




Shortly after the arrest and indictment, the defendant goes before a judge for an initial hearing, known as an arraignment. The arraignment provides more information about the charges, and the judge makes a ruling on whether the defendant will be held in jail or released until the trial.




Federal Criminal Defense Electronic Discovery

Federal prosecutors conduct an enormous amount of research prior to trial. This can include reviewing evidence, interviewing witnesses or other relevant persons of interest, assessing potential problems that could arise over the course of the trial, and developing a trial strategy.


Prosecutors must also provide the defense with a copy of the materials and evidence that will be used in the trial. This is known as discovery.


Plea Bargaining


Prior to the trial (and even throughout), the prosecution may offer the defense a plea deal to avoid the trial and perhaps lessen the charges and potential sentence faced by the defendant. This is known as plea bargaining. If the defendant enters a guilty plea, the trial does not take place, and the next step is the sentencing hearing.


Pre-Trial Motions


Before the trial begins, the prosecution and defense may file pre-trial motions to ask that the court make certain decisions prior to beginning the trial. Motions can affect how the trial proceeds, procedures in the courtroom, defendants charged, evidence presented, allowed testimony, and more.


Prior to beginning the trial, the judge will issue a ruling for any pre-trial motions filed by the defense or prosecution.




Weeks, months, or even years after the investigation was initiated, the trial will begin. This is when the facts of the alleged offense are presented to the jury, which then issues a guilty or not guilty verdict.


Federal trials include the following elements:


  • Jury selection: A panel of jurors is selected by the prosecution and defense.
  • Opening statements: The prosecution and then the defense give a brief opening argument to briefly state their respective accounts of the case.
  • Presentment of case: The prosecution and subsequently the defense present their cases. This can include presentation of evidence, witness testimony, and cross-examinations.
  • Objections: As the case is presented, both the prosecution or defense can make objections to a piece of evidence or question asked of a witness. The judge then makes a ruling on the objection.
  • Closing arguments: After the case has been presented, the prosecution and subsequently the defense make a final statement to the jurors, which is the final chance to speak to the jury.
  • Jury deliberations: After meeting with the judge, the jury moves to deliberation to decide the outcome of the case. For federal cases, the jury must decide unanimously to convict the defendant. Once a verdict has been reached, the jury informs the judge, defendant, and lawyers of the verdict in court.
  • Post-Trial Motions
  • If convicted, the defendant has the option to file post-trial motions to ask for a new trial, acquittal, or a motion to correct a sentence.
  • Sentencing
  • Several months after a guilty verdict, a sentencing hearing is typically held, in which the judge issues the sentence for the offense. The sentence is determined using federal guidelines, and after taking factors such as victim statements and the crime’s nature into consideration.
  • Appeal
  • If the defendant believes that they were wrongly convicted or that the sentence was unduly severe, they can appeal this decision to a circuit court. A circuit court judge then issues a ruling.


Houston Federal Criminal Defense Lawyer

Your Best Chance at a Positive Outcome Is to Work with a Knowledgeable Federal Crimes Lawyer


Despite some similarities, federal cases possess distinct differences that set them apart from those tried at the state level. To have the best chance at getting your charges reduced, dropped, or dismissed, you need someone on your side who understands exactly how they work.


Our firm not only knows the process, we have a track record of success in dealing with some of the toughest federal cases around. Learn how we can help you by giving our office a call today.

The post Complex Hawaii Case Raises Questions about Federal Criminal Procedure appeared first on .

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The NLRB Issues Useful Guidance Providing Additional Clarity On Work Rules

Originally published by Douglas A. Darch and Jenna Neumann.

Recent guidance issued by the NLRB General Counsel Peter Robb, the NLRB’s chief prosecutor, is a continuing testament to the NLRB’s impact on the changing legal landscape regarding workplace rules. On June 6, 2018, Peter Robb issued a 20-page Memorandum to the NLRB Regional Offices titled “Guidance on Handbook Rules Post-Boeing.”


This guidance comes in the wake of the NLRB’s December 2017 decision in Boeing to overrule Lutheran Heritage Village-Livonia, which articulated the Board’s previous standard governing whether facially neutral workplace rules, policies, and employee handbook provisions unlawfully interfered with an employee’s exercise of their NLRA Section 7 rights. Boeing provided a new standard for evaluating the legality of workplace rules.

Under Boeing, workplace rules are grouped into three categories:

  1. Rules that are generally lawful to maintain.

  2. Rules warranting individualized scrutiny.

  3. Rules that are presumed unlawful to maintain.

The General Counsel’s Memorandum offers additional clarity to NLRB Regional Offices evaluating claims of improper employment policies brought against employer workplace rules post-Lutheran Heritage. The Memo leads by example, articulating the types of work rules that would be expected to fall under each category.

Category 1 rules — generally presumed lawful because, when interpreted, they do not prohibit or interfere with an employee’s NLRA rights, or the potential adverse impact is outweighed by business justifications. Examples include:

  • Civility rules; no-photography and no-recording rules; rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; disruptive behavior rules; rules protecting confidential, proprietary, and customer information or documents; rules prohibiting defamation or misrepresentation; rules prohibiting use of employer logos or intellectual property; rules requiring authorization to speak for the company; rules banning disloyalty, nepotism, or self-enrichment.

Category 2 rules warrant individualized scrutiny because of their potential adverse impact on NLRA rights. The legality of such rules is evaluated on a case-by-case basis. Examples include:

  • Broad conflict of interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union; confidentiality rules broadly encompassing ’employer business’ or ’employee information’, as opposed to rules regarding customer or proprietary information; rules concerning disparagement or criticism of the employer, as opposed to civility rules regulating the disparagement of employees; rules regulating the use of the employer’s name, as opposed to the logo or trademark; rules generally restricting speaking to the media or third parties as opposed to speaking on the employer’s behalf; rules banning off-duty conduct that might harm the employer, as opposed to rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations; rules against making false statements, as opposed to rules against making defamatory statements.

Category 3 rules — generally presumed unlawful because their potential to interfere with the exercise of protected rights outweighs possible justifications. Examples include:

  • Confidentiality rules regarding wages, benefits, or other working conditions; rules that prohibit joining outside organizations or voting on matters concerning the employer.

Impact on Employers

Following Boeing, the NLRB’s Memo provides further guidance regarding a way forward for employers adopting generalized work rules and provisions in handbooks. This guidance provides useful clarity and specific examples, offering employers additional transparency regarding how the NLRB may approach an employer’s interpretation of a work rule. Practically, under this guidance, it will generally be less difficult for an employer to discipline or terminate an employee for having compromised an employer’s legitimate business interests. However, this guidance does not allow employers take such actions carte blanche. Employers are encouraged to consult legal counsel before terminating employees based on social media posts or workplace behavior. Employer should also review their handbooks and work rules in light of the specific examples mentioned in the memo.

Please reach out to your Baker McKenzie labor and employment lawyer for more information.

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

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Lateral Recruits: Here’s How to Start to Prepare a Business Plan

Originally published by Cordell Parvin.

If you have several million dollars in originations each year, you likely won’t need a business plan when you are seeking to change firms. (I suspect not many of those lawyers are regular readers of this blog, but…)

If you are like most other potential lateral partners, you want to able to demonstrate your potential. The first step in that effort is your business plan. You should prepare a business plan even if you are happy and content with your present firm. It will help you be more successful.

Why and how? In 2018, your time is really important, and for your own professional success and personal fulfillment, you should use your time wisely.

Preparing a business plan will help you prioritize how you spend your time, focus your attention on the important things and execute. With no plan, you will find it easy not to do anything other than the billable work that is on your desk.

If we worked together, you may recall I said that many lawyers spend more time planning a vacation than they spend planning their careers. Interestingly, the approach to planning can be similar.

What can we learn from our 30th Anniversary Trip to Ireland in 2000? (Can’t believe we are honing in on the big number 50 in two years.)

Start with Answering What and Why

Nancy, spent at least 20 hours planning this trip for us. She decided she wanted us to go to Ireland and she knew why.

Her family came to the United States from Ireland and she also knew she would enjoy the people, the scenery, the golf courses, the Irish beef cooked by French Chefs and the Irish Pubs serving Irish beer. So, she knew what and why. Then she planned where we would stay, where we would play golf and the itinerary for each day.

I like to say she did a top-down and bottom-up plan. Her top-down plan was looking at what she wanted us to do and where she wanted us to go. Her bottom-up plan looked at how many days we would spend and what we could do in that number of days. Then she had a plan for each day we were there.

When I practiced law, I prepared my business plan the same way and you should also.

I started with one major goal. My goal long ago was to become the “go to” lawyer for transportation construction contractors.

Why was that important to me?

First, I was far more comfortable knowing a lot about a little than I would have been knowing a little about a lot. I wanted to be a specialist and have a niche industry based practice.

I also wanted the recognition of being the “go to” lawyer for contractors. While I always had financial goals and wanted to earn a good living, the money really didn’t drive me. It was simply a way of keeping score.

My plan for each year had many, many action items. If did not reach my yearly financial goal, I knew I had come closer than I would have with no goal or if I had set a lower goal.

My bottom-up planning began with an estimate of how many non-billable hours I felt I could spend on client development. I usually planned to spend between 240-300 (20-25 a month). Then I outlined what would be the best use of those hours.

I have a short attention span. Knowing that caused me to break my action items down into smaller pieces. Each month I outlined the actions I wanted to accomplish that month and at the end of the month, I could track how I had done.

So, what do you want to achieve? Why is achieving it important to you? What is your plan to achieve it?

The post Lateral Recruits: Here’s How to Start to Prepare a Business Plan appeared first on Cordell Parvin Blog.

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Studying vs. Learning: A Matter of Perspective

Originally published by lawschool academicsupport.

It’s the time of the year when one group of graduates are taking their oaths of office while another group of graduates are preparing for the bar exam this summer. That brings me to an interesting conversation with a recent…

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Vick: Supreme Court approves changes to State Bar election process

Originally published by Lowell Brown.

Earlier this week, the Supreme Court of Texas amended Article IV of the State Bar Rules to implement changes to the bar’s election process designed to ensure fairness and a level playing field among all candidates.

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