Wednesday, September 30, 2015

Tips for Preventing Elder Fraud

Originally published by Rania Combs.

old holding hand

A neighbor was at home with her young children when she received a phone call from someone claiming to be in IRS agent. He told her that she owed back taxes, demanded that she pay immediately over the phone, and threatened that another agent was in route to arrest her if she did not comply.

Sensing that something was amiss, she refused to pay, hung up the phone, and called me in a panic. Does the IRS really collect payments on the phone? Would she really be arrested? What should she do?

Hanging up was the best thing she did. The person who called her was a con artist, and she thankfully did not become a victim of his scam.

Unfortunately, many people, especially senior citizens, do become victimized. Con artists target seniors because they are often sometimes isolated and lonely. Additionally, some seniors have declining cognitive ability, which makes them more vulnerable to fraud.

Often, con artists pose as government officials claiming that the victim owes money, like in my neighbor’s case.  They may also suggest that the victim has won a lottery or sweepstakes and needs to send money or share bank account information to claim the winnings. Another tactic is to pose as a family member in trouble. For example, I recently got an email from my sister’s hacked account claiming that she took an unexpected trip to Ukraine and needed a loan because her credit card would not work.

An article in Consumer Reports’ November 2015 issue reports that fraud complaints rose almost 50 percent between 2012 and 2014, and estimates that seniors and their families lose $3 billion to more than $30 billion to fraud each year.

So how do you protect yourself and those you love?

Tips for Seniors to Protect Themselves:

The article provides some great tips on how seniors can protect themselves from con artists:

  1. Opt out of robocalls and calls from telemarketers. Nomorobo blocks robocalls and calls from telemarketers. The service is free for customers with VoIP service. If you don’t have VoIP, you can also sign up for the National Do Not Call Registry to limit calls from telemarketers
  2. Opt out of mail solicitations through
  3. Before you hire any contractors to work on your home, do your research. Make sure they are licensed and bonded. Always get multiple estimates from reputable contractors before before choosing a contractor.
  4. Don’t hand over money to a financial advisor without first checking his or her credentials for regulatory actions, violations, or complaints. You can research your broker at
  5. For added security, arrange for your bank to send statements to a trusted person, like a family member, who doesn’t have access to your account. That way an extra set of eyes can check your account for suspicious activity.
  6. Talk to a lawyer about getting a durable power of attorney appointing someone you trust to handle your financial affairs if you become incapacitated.

Tips to Protect the Seniors in Your Life:

There are also things you can do to protect the seniors you love.

  1. Visit them often and at unexpected times to check for signs of cognitive decline, such as changes in hygiene or eating habits, forgetfulness, and stacks of unopened mail or unpaid bills.
  2. Check for warning signs of fraud, such as large withdrawals from bank accounts, numerous uncharacteristic smaller withdrawals, checks written to people you don’t know, changes in spending habits, or a close relationship with a much younger person who has become increasingly influential and for whom lavish gifts are purchased.
  3. Make sure your loved-one stays active and involved. Isolation and loneliness increases the chances that a senior citizen will become financially exploited.
  4. If the senior in your life exhibits signs of cognitive decline, set up a bank account for him or her with limited funds and a spending limit on the debit card. That way, if fraud occurs, the loss would be minimal.
  5. Monitor their bank and credit card statements for suspicious activity.
  6. Caution your loved-one to be wary of those who pressure them to make immediate decisions, request private information such as social security numbers, or demand cash up front. Be suspicious. Don’t share personal information over the phone, such as names of family members, bank account information, and social security numbers. If someone claims to be from a particular government agency, that information should be verified. If someone claims a family member is in trouble, other family members should be called to verify.
  7. Make sure your loved-one has a well-drafted power of attorney, which can avoid a guardianship or conservatorship if they become incapacitated. If a power of attorney does not exist, it may be necessary in extreme cases to file for a guardianship or conservatorship.

Fraud is all around us, but targets the most vulnerable among us. If you think you or someone you love has been a victim of fraud, take action immediately. To report fraud, contact the Consumer Financial Protection Bureau, the Financial Fraud Enforcement Task Force, or the Texas Attorney General’s Office.

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Taxpayer’s claim revived

Originally published by David Coale.

Susan Rothkamm sued for wrongful levy, after the IRS seized a CD in her name to satisfy a tax liability of her husband.  The Fifth Circuit reversed the dismissal of her claim, finding that she had standing as a “taxpayer” under the broad definition of 7701 of the Internal Revenue Code: “The term ‘taxpayer’ means any person subject to any internal revenue tax.”  The Court also found that limitations was tolled during the pendency of her application for a Taxpayer Assistance Order, and that the IRS did not have discretion to affect the length of that tolling period.  Rothkamm v. United States, No. 14-31164 (Sept. 21, 2015).  A dissent warned: “I dissent from the majority’s newly minted tolling rule. While this creativity is driven by a desire to achieve fairness, it suffers the vice common to such endeavors – it does the opposite by disrupting a carefully structured regime for the resolution of disputes between the IRS and property owners.”

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Tax Expatriation: The Numbers Affected Are Far Greater for Lawful Permanent Residents vs. Citizens

Originally published by impuestosypatrick.

The last post discusses a scenario where an individual can be forced into “tax expatriation” by a third-party; i.e., the government, if a criminal tax investigation were to be pursued successfully.  See,  Unplanned Expatriation: Lawful Permanent Residents’ Deportation Risks for Filing U.S. Federal False Tax ReturnsChart - USCs Who Renounce Compared to LPRs who Abandon

We can call this “forced expatriation”; when the government takes investigative action to deport a lawful permanent resident (“LPR); i.e., cause a forced tax expatriation where an individual files a false return, provides false information or otherwise submits a false document to the government.

Other posts have discussed the role of U.S. income tax treaties in accidental “expatriation” for lawful permanent residents.  See, Countries with U.S. Income Tax Treaties & Lawful Permanent Residents (“Oops – Did I Expatriate”?), posted April 29,. 2014 and The dangers of becoming a “covered expatriate” by not complying with Section 877(a)(2)(C), posted March 9, 2014.

We can call this “inadvertent expatriation”; when the individual themselves who is a LPR inadvertently causes a tax expatriation by operation of law.

There are other data points and relevant government operations of importance to LPRs.  For instance, see, Does the IRS have access to the USCIS immigration data for former lawful permanent residents (LPRs)?, posted April 11, 2015.  See,  More Information and More Information: USCIS Creates New Form for Abandonment of Lawful Permanent Residency

The point of this post is to highlight a point previously made:

While citizens are often the focus of the public press and Congress regarding “expatriation taxation”; the statute also wraps in so-called “long-term residents.”  These are individuals who had or continue to have “lawful permanent residency status.”  There are numerous technical considerations in this area, but needless to say, the number of former lawful permanent residents who have simply filed Form I-407 – Abandonment is far in excess of those U.S. citizens who have filed for and received a Certificate of Loss of Nationality (“CLN”) – Form DS-4083 (CLN).  The graph reflects the enormous difference.

See, earlier post  The Number of LPRs “Leaving” the U.S. is 16X Greater than the Number of U.S. Citizens Renouncing CitizenshipI-407 New LPR Abandonment Form P2 Complete

On a related post, the question was raised –What are the Number of LPRs who Leave U.S. Annually without filing Form I-407 – Abandonment?

This is important, since many LPR individuals will have “expatriated” without actually having filed USCIS Form I-407.  See, Oops…Did I “Expatriate” and Never Know It: Lawful Permanent Residents Beware! International Tax Journal, CCH Wolters Kluwer, Jan.-Feb. 2014, Vol. 40 Issue 1, p9

See, The Information in DHS/USCIS Database (A-Files, EMDS, CIS, PII, eCISCOR, PCQS, Midas, etc.) on Individuals is Extensive and Can be Shared with Internal Revenue Service, Posted on April 4, 2015

A prior post discussed the new USCIS Form I-407 that must be filed by a lawful permanent resident (LPR) who wishes to formally create a record of their abandonment of LPR status.  See,  More Information and More Information: USCIS Creates New Form for Abandonment of Lawful Permanent Residency

Page 1 of 2 of this form is replicated here.I-407 New LPR Abandonment Form P1 Complete

This raises many questions regarding how information maintained by the Department of Homeland Security (DHS) and the United States Customs and Immigration Service (USCIS) can be shared with
and provided to the IRS.

Former “long-term residents” have extensive U.S. tax compliance obligations, including certification requirements under Section 877(a)(2)(C) to avoid “covered expatriate” status and the various adverse tax consequences.

Importantly many LPR individuals will have “expatriated” without actually having filed USCIS Form I-407.  See, Oops…Did I “Expatriate” and Never Know It: Lawful Permanent Residents Beware! International Tax Journal, CCH Wolters Kluwer, Jan.-Feb. 2014, Vol. 40 Issue 1, p9

Some of the important records that are maintained by DHS/USCIS, include the following, much of which can be helpful in the enforcement of U.S. federal tax obligations.

System location:

Alien Files (A-Files) are maintained in electronic and paper format throughout DHS. Digitized A-Files are located in the Enterprise Document Management System (EDMS). The Central Index System (CIS) maintains an index of the key personally identifiable information (PII) in the A-File, which can be used to retrieve additional information through such applications as Enterprise Citizenship and Immigrations Services Centralized Operational Repository (eCISCOR), the Person Centric Query Service (PCQS) and the Microfilm Digitization Application System (MiDAS). The National File Tracking System (NFTS) provides a tracking system of where the A-Files are physically located, including whether the file has been digitized.

The databases maintaining the above information are located within the DHS data center in the Washington, DC metropolitan area as well as throughout the country. Computer terminals providing electronic access are located at U.S. Citizenship and Immigration Services (USCIS) sites at Headquarters and in the Field throughout the United States and at appropriate facilities under the jurisdiction of the U.S. Department of Homeland Security (DHS) and other locations at which officers of DHS component agencies may be posted or operate to facilitate DHS’s mission of homeland security.

* * *

  • Receipt file number(s);
  • Full name and any aliases used;
  • Physical and mailing addresses;
  • Phone numbers and email addresses;
  • Social Security Number (SSN);
  • Date of birth;
  • Place of birth (city, state, and country);
  • Countries of citizenship;
  • Gender;
  • Physical characteristics (height, weight, race, eye and hair color, photographs, fingerprints);
  • Government-issued identification information (i.e., passport, driver’s license):

More Information and More Information: USCIS Creates New Form for Abandonment of Lawful Permanent Residency, Posted on April 3, 2015 

The U.S. Customs and Immigration Service (USCIS) announced on 23 March 2015, that a new Form I-407 is available and is to be used, per the USCIS website announcement,

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Ignite SBOT 2015 – Trey Apffel

Originally published by Joanna Herzik.

Trey Apffel, of Apffel Law Firm in League City and immediate past president of the State Bar of Texas, discusses “Tech Tips for Lawyers” at the Ignite track from the 2015 State Bar of Texas Annual Meeting.

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Are Substitute Teachers Eligible For Overtime In Texas?

Originally published by Vethan Law.

texas teacher overtime payKnowing if you qualify for overtime can be a crucial aspect of your income. The Fair Labor Standards Act has explicitly laid out who is eligible for overtime and who is exempt from overtime. While you definitely have to do your research, you should be able to determine if you are or not eligible for overtime.

It is common for people to assume that any salaried position is exempt from overtime eligibility. For the most part, this is true, with exceptions coming in the form of the actual amount of pay you earn. Therefore, most teachers assume they are exempt. Unfortunately for you teachers out there, you are correct in your assumption. Despite the amount of hours a teacher puts in each week, they are not eligible for overtime pay.

On the other hand, substitute teachers don’t earn pay based on a salary. They typically earn pay based on a specific rate combined with how much time they work. Under most circumstances, this can constitute eligibility for overtime. There are some exceptions to this rule, but it doesn’t directly apply to teachers.

However, despite being paid on an hourly basis, substitute teachers are not eligible for overtime pay in Texas. The Department of Labor considers substitute teachers exempt from overtime if their primary duty is teaching and imparting knowledge in an elementary or secondary school. This holds true regardless of whether the teacher holds an advanced degree or not.

This is due to the FLSA exemption policy regarding job duties. There are three primary job duties exempt from overtime which include administrative, executive, and professional. Teachers fall under the subset of “professional”. This includes professional employees who perform work in the field of learning.

So despite how many hours a substitute teacher works within a workweek, they cannot earn overtime pay for any work. Unless of course they have a different job that does offer overtime pay. But that is a post for another day.

If you are in need of a Texas overtime lawyer, contact Vethan Law Firm by calling our Houston office at 713-526-2222 or our San Antonio office at 210-824-2220.

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Reflections on the Hitachi FCPA Enforcement Action

Originally published by tfoxlaw.

Earlier this week, the Securities and Exchange Commission (SEC) announced resolution of a Foreign Corrupt Practices Act (FCPA) enforcement action involving the Hitachi Ltd (Hitachi). There were several interesting aspects to this enforcement action and plenty of lessons to be learned by the compliance practitioner going forward. Procedurally the SEC filed a Compliant in the […]

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Can Emoticons Beat the Hearsay Rule?

Originally published by Jim Dedman.

The question for today: Might emoticons assist in a hearsay inquiry?

That’s right. I just wrote that.  Let’s back up a bit and I’ll explain why that’s on my mind.

Carole Gailor of Raleigh, North Carolina recently spoke at a North Carolina Bar Association conference on the rules of evidence as applied to electronically generated information.  In so doing, she remarked upon the authentication and admissibility hurdles that litigants must confront when attempting to introduce electronic or digital evidence, such as emails, computer generated reports, social media profiles, and other such information.  However, she made a stray remark which prompted the law nerd in me to take particular notice.  Ms. Gailor noted that an emoticon might, in fact, assist in the analysis of whether a digital piece of evidence is admissible.

As a preliminary matter, we could turn to Wikipedia or Urban Dictionary or the like to find a formal definition of the term “emoticon.”  But that’s not really necessary, is it? But everyone knows that they are the little smiley or frowny faces – or sometimes far more complex textual graphics – utilized by writers on the Internet to convey all sorts of present emotions.

But why bother with a lay definition? A number of courts have already tackled the term.

A Westlaw search reveals that there are 26 reported state and federal cases which reference the word “emoticon” in the singular or plural, the earliest citation coming from 2004.  A handful of them cite to United States v. Cochran, 534 F.3d 631, 632 n.1 (7th Cir. 2008), which itself cited the Merriam Webster online dictionary. The most recent is this year’s State v. Jacques, 798 N.W.2d 319 (Table), at *1 n.2 (Wis. Ct. App. 2011) (per curiam). (“An ‘emoticon’ is a ‘group of keyboard characters … that typically represents a facial expression or suggests an attitude or emotion and that is used especially in computerized communications’ such as e-mail or instant messaging.”) (citing Cochran). There are other cases, as well. State v. Nero, 1 A.3d 184, 191-92 n.9 (Conn. Ct. App. 2010) (“An emoticon, as it is called in Internet vernacular, is a little cartoon face that can be added to the text of an instant message. The faces come in numerous expressions and are used to illustrate how the speaker is feeling or the intended meaning of what he or she has written.”); State v. Prine, 13 So.3d 758, 761 (La. Ct. App. 2009) (noting that an emoticon is “an online mode of expressing emotion”); Spanierman v. Hughes, 576 F. Supp. 2d 292, 312 n.13 (D. Conn. 2008) (defining emoticons as “symbols used to convey emotional content in written or message form (e.g., ‘:)’ indicates ‘smile’ or ‘happy,’ and ‘:(‘ indicates ‘frown’ or ‘sad’).”).

Most of these definitions state pretty clearly that the emoticon, by its very nature, is designed to convey the emotional state of the author of the statement which it accompanies.

The interesting question raised by Ms. Gailor is whether emoticons, in providing the recipient with a precise state of mind of the sender, aid in the admissibility inquiry.

Let’s turn briefly to the Federal Rules of Evidence.  Where might emoticons be relevant?

What about a “Then-Existing Mental, Emotional, or Physical Condition” under Rule 803(3), defined as “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.”?

That’s certain possible, and it might be that an emoticon could provide the statement with additional context to overcome a hearsay challenge.  If you could define or interpret the specific emoticon and argue that it established “then existing state of mind” or “mental feeling,” you might convince the court that the declarant’s statement can come into evidence.

Here’s a more fun one. Might an emoticon indicate that a statement is an “excited utterance” under Rule 803(2), defined as “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused”?  Maybe.  That’s a bit trickier, because usually an excited utterance is spoken, not written. When excited, agog, or what have you, what declarant will pause to write a note? However, in the past decade, the deliberate nature of a writing has become, shall we say, far more casual in the era of text messages, Facebook, Twitter, and the like. The spontaneity of instant messages, texting, tweeting and other such forms of new communication make it more likely that a communication is truly instant.

In 1998, a Massachusetts court focused on the issue of whether a particular writing, a fax sent several hours after an assault and battery, could be a spontaneous exclamation and thus not barred by the hearsay rule.  Commonwealth v. DiMonte, 692 N.E.2d 45, 48-49 (Mass. 1998). In so doing, the court noted:

The defendant argues that the acts of drafting and transmitting a facsimile message deprive it of the spontaneity required by the hearsay exception for spontaneous exclamations. Writing, he contends, is an inherently premeditated process; manipulation of a facsimile machine, once a message is written, is an additional deliberated sequence of actions. He further argues that the recipient of a written message has no percipient experience of the sender at the moment when she writes and sends the message, and cannot testify to the sender’s demeanor, tone of voice, or degree of observed excitement or stress. The arguments are persuasive.

Those concerns – written when the communications infrastructure in place was far, far different than that of today’s are now 13 years old. Wouldn’t an emoticon provide some context in lieu of the percipient experience of the sender at the moment of the writing? Wouldn’t the instant nature of text messages or digital writings ameliorate the issues addressed by the court?

Now all we need is a text case.

(This post was originally posted on the now defunct North Carolina Law Blog on Friday, December 7, 2011).

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What do (13,000) Americans really think about  climate change?

Originally published by Rita Handrich.

Climate changeWe blogged recently on how to talk about climate change without eliciting automatic (knee jerk) negative reactions from listeners. Shortly before that post, we blogged about scientific consensus on climate change as a gateway belief to persuasion. So we were happy to see a wonderfully clear writeup on the Yale Project on Climate Change Communication’s survey on American beliefs about climate change over at the Sociological Images blog.

The Yale researchers asked 13,000 Americans whether they thought the climate was changing and what they thought was causing climate change (if it indeed existed). They found that responses clustered in six separate types. Here’s how Sociological Images described those types [as defined by the Yale group]:

• The Alarmed (18%) – believe climate change is happening, have already changed their behavior, and are ready to get out there and try to save the world

• The Concerned (33%) – believe it’s happening, but think it’s far off or isn’t going to affect them personally

• The Cautious (19%) – aren’t sure if it’s happening or not and are also unsure whether it’s human caused

• The Disengaged (12%) –  have heard the phrase “climate change,” but couldn’t tell you the first thing about it

• The Doubtful (11%) – are skeptical that it’s happening and, if it is, they don’t think it’s a problem and don’t think it’s human caused

• The Dismissive (7%) – do not believe in it, think it’s a hoax

What is truly wonderful is they offer an interactive map so you can see how beliefs about climate change vary by state and even by county. While some might say this shows how different our beliefs are about climate change—one commenter at the blog says it shows how similarly we (for the most part) feel on the issues. It is well worth your time to take a look at Sociological Images post of the highlights of the Yale study and then, if you want to know more, take a look at the Yale site itself for the complete writeup.



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Law Firms: Some Keys to Successful Client Development Coaching

Originally published by Cordell Parvin.

Is your firm contemplating setting up a client development coaching program in 2016? I hope so.

I want to help you do it more successfully. When done well, a client development coaching program will be a tremendous return on investment and will increase revenue for many years to come.

When I was busy practicing law there came a point when I was so well known in my narrow transportation construction industry niche that I did not foresee generating new clients.

At that point I went to our firm leaders and offered to start a business development coaching program for our young partners. I told our firm leaders that I believed I could help younger lawyers develop their business.

When we began the firm coaching program, the young partners set a goal of doubling the group’s volume of business that we called “development credit” within two years.

Since the numbers were very low with some members of the group having no development credit, I thought we could easily exceed the goal. After one year the group had exceeded the goal and I had so much fun working with them that I left my law firm and starting working with lawyers full time.

Diverse team

What is the Client Development Coaching Program?

It is a partnership among your firm, your lawyers who are selected to be part of the Program, and the coach. Each has a contribution to make the program successful.

Who are the best candidates for coaching?

The lawyers in your firm who you think “need” coaching the least. The lawyers who strive each day to learn and become a more valuable lawyer.

What should the coach do?

First, make sure your coach doesn’t think “one size fits all.” It doesn’t. One of the most successful lawyers I coached became successful when she figured out she didn’t have to do it the way the senior lawyer in her group did it.

Each coach approaches the task differently, but I believe most will help with:

  1. Planning and goal setting.
  2. Encouraging and pushing each member and the group to attain group and individual goals.
  3. Role playing and experiential learning.
  4. Ideas for client development.
  5. Teaching and applying client development techniques.
  6. Presentation/communication/writing articles/blog posts skills coaching.
  7. Referral to sources on career and client development.
  8. Team coaching and team accountability.
  9. Create opportunities for teambuilding.
  10. Helping build self-confidence and helping overcome obstacles.
  11. Feedback and suggestions on efforts.
  12. Help with staying focused.
  13. Connections with other lawyers both in and outside the firm.
  14. Source to share ideas and brainstorm.
  15. Make firm leadership aware if any participant is not meeting his or her commitments.

What commitments should your lawyers make?

  1. Take responsibility for their own success and hold themselves accountable.
  2. Prepare for each coaching session and provide an agenda in advance to the coach.
  3. Notify the coach if any coaching sessions must be rescheduled.
  4. Prepare a business development plan with goals – for individual and group goals.
  5. Monitor client development activities and results and communicate them monthly to __________.
  6. Provide the coach with monthly/quarterly planned client development activities.
  7. Advise all members of the coaching group of successes and best practices.
  8. Keep an open mind to try new things.
  9. Engage wholeheartedly in group and individual agreed-upon coaching action items.
  10. Make efforts to find client opportunities for other members of the group and other members of the firm.
  11. Integrate client development into everyday habits.
  12. Commit to spend at least __ hours per month on client development and the coaching program.

What commitments should your firm make?

  1. Funding for the program.
  2. Firm leaders must demonstrate interest and involvement in the program by attending programs and providing encouragement and support.
  3. Work with the coach to schedule group and individual coaching sessions.
  4. Share organizational changes with the coach to help him have a context for the program.
  5. Provide ongoing feedback to the coach and program participants.
  6. Make professional development and marketing departments available for support.
  7. Help program participants to define and implement success measures.
  8. Provide opportunities for participants to share what they have learned with other members of the firm.

Think about 15 self-motivated junior partners and senior associate lawyers in your firm. What impact would they have on the firm if they were able to double their collective volume of business over a two-year period?

I have seen it happen many times and the energy surrounding their success is contagious.

Why not give it a try in 2016?


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Is The Tontine Set For A Comeback?

Originally published by Gerry W. Beyer.

The tontine is little heard of this day and age aside from the random references in shows such as Archer but it once ubiquitous in the American insurance industry. Up until the early 20th century, tontines were popular with retiring…

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Houston Legal Links 9/30/2015

Originally published by Mary Flood.

Top legal news includes: Report: Harris County Could Save Millions by Not Jailing Drug Offenders; County wants $100 million for Volkswagen fumes; Former DA employee wants to sue to get her job back; New HPD Shooting Policy Drawing Criticism; HBJ announces 2015 Best Corporate Counsel winners; List identifies Texas’ 20 biggest child support dodgers; Dewhurst settles suit with Houston oilman over stolen campaign funds (Chron subsc); 12 Houstonians make Forbes’ list of richest Americans — but they aren’t as rich as last year; Fort Bend District Attorney Drops Lawyer’s Assault Case, Files Drug Charge (Texas Lawyer); ‘White Power,’ KKK signs cause neighborhood stir; Houston Equal Rights Ordinance gains support from major business group; Flood City, Part 2: HFD Wasn’t Prepared to Handle the Memorial Day Flood or its Victims; Women, children shown in eerie photos taken by serial killer from Texas; At Baptist Church, AG Paxton Repeats Call for Christians in Politics; Texas Gets Federal No Child Left Behind Waiver, With a Caveat; Blue police support ribbons removed in Dallas due to code violation; Law center: Rig repair firm, apology for mistreated workers; EPA’s New Smog Rules Target Industries In Houston; CSB to release report on DuPont La Porte plant disaster & Keystone XL developer drops landowner lawsuits in Nebraska.

For the water cooler: Was lawyer’s courtroom selfie photo a breach of decorum?; Judge sends sheriff to seize husband’s devices after spyware is found on wife’s phone; The Global 100: The World’s Top Law Firms Ranked By Revenue, Profit, And Headcount; Did prisoner put gun in trash container outside courthouse?; The State Of The Legal Profession In 2015; Convicted judge can’t get pension back, even after felony is reduced to a misdemeanor; Insiders are stealing data without law firms even realizing it; Bankruptcy trustee may be tossed from all of his cases due to hotel bill, 5th Circuit says; Still no verdict in Dewey case as jurors ask judge about procedure for undecided members; Dozens of VW lawsuits will almost surely be consolidated, but where?; New York Mayor Says Right to Counsel in Civil Cases is a Good Idea but Requires Federal Help; What’s The Upside When PETA Sues A Wildlife Photographer?; Which states had the greatest growth in lawyer population?; Columbia Law School’s Very Public Fail & Stop Posting That Idiotic Facebook Privacy Notice — It’s STILL Meaningless!

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Tuesday, September 29, 2015

Dancing baby ruling adds a twist to DMCA Fair Use analysis

Originally published by Saul Perloff (US).

Last week, the Ninth Circuit seemed to fire a warning shot across the bow of overzealous copyright holders: Before issuing a DMCA takedown notice, the copyright holder must stop to consider if the alleged infringement is a fair use of the copyrighted work. But, in the same opinion, the Court appeared to retreat. The majority held that even in the absence of an explicit fair use analysis, a jury could still decide that a copyright holder had a sufficient good faith belief that the infringing work was not a fair use. Stephanie Lenz v. Universal Music Corp., Universal Music Publishing Inc., Universal Music Publishing Group, Inc., Case Nos. 13-16106 & 13-16107 (D.C. No. 5:07-cv-03783) (9th Cir. Sept. 14, 2015). Read the full Lenz Opinion.

As the dissenting Judge pointed out, [i]t is undisputed that Universal did not consider fair use before sending the takedown notice. . . . Universal knew that [generally] a fair use was not infringing, knew that it had not considered fair use, and nonetheless asserted that the video was infringing.

Nevertheless, the majority came to the conclusion that

a jury must determine whether Universal’s actions were sufficient to form a subjective good faith belief about the video’s fair use or lack thereof.


In 2007, Stephanie Lenz uploaded a short video of her young toddler to YouTube, naming it “Let’s Go Crazy #1.” The 29-second clip shows the child bopping around while Prince’s song Let’s Go Crazy plays in the background. Prince’s publishing administrator, Universal Music, discovered the video in a routine YouTube search for unauthorized uses of Prince’s music. Generally, Universal instructed its employees to find unauthorized videos where “the composition was the focus.” The particular employee who found Lenz’s video determined that, due to the video’s title, the fact that the song played loudly in the background, and the fact that Lenz asks the baby if he likes the music, the Prince song was “very much the focus of the video.” At that point, the Universal employee decided to include the video, along with more than 200 others, in a DMCA takedown notice that was sent to YouTube.

The Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) was enacted in 1998 to address concerns about online infringement of copyrighted works. The DMCA created a safe harbor for online service providers (OSPs) such as YouTube to insulate them from liability for the copyright violations of their users, provided that the OSP promptly removes alleged infringing material after receiving notification (i.e., a takedown notice) from the copyright owner.

A proper takedown notice, in addition to identifying the copyright work and the alleged infringing work, must also include a statement that the copyright holder has a “good faith belief” that the infringing material “is not authorized by the copyright owner, its agent, or the law.” 17 U.S.C. § 512(c)(3)(A)(v).

After receiving a takedown notice, the OSP must notify the user of the takedown, and the user can then respond with a counter-notification that the user has a good faith belief that the content is not an infringement. After receiving a counter-notification, the OSP must restore the content unless the copyright holder chooses to file a lawsuit against the user.

The DMCA also penalizes those who abuse the takedown and put-back provisions. Both users and copyright owners can be liable for damages if either party “knowingly materially misrepresents” that the content either is an infringement or was taken down in error. 17 U.S.C. § 512(f). In this action, Lenz seeks damages from Universal, alleging that Universal knowingly misrepresented in its takedown notice that her video was an infringement.

Fair Use

Lenz argued that the copyright doctrine of fair use applies to her video, thereby authorizing her use under the law. Universal, on the other hand, argued that fair use is not “authorized by . . . the law” because it is merely an affirmative defense that excuses otherwise infringing conduct. In a seemingly big win for Lenz (and other users), the Ninth Circuit determined – in an issue of first impression in any circuit court of appeals – that the copyright statute “unambiguously contemplates fair use as a use authorized by the law.” Employing a purely textual analysis, the Ninth Circuit determined that fair use, as codified in 17 U.S.C. § 107, is indeed a right “uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses” (e.g., misuse of copyright or laches).

Good Faith Belief

Having determined that fair use is “authorized by the law,” the Ninth Circuit was left to determine whether Universal “knowingly misrepresented” in the takedown notice that it had formed a good faith belief the video did not constitute fair use. Relying on its own precedent in Rossi v. Motion Picture Association of America, Inc., the Ninth Circuit re-affirmed that “a copyright holder need only form a subjective good faith belief that a use is not authorized.” Furthermore, an unknowing mistake will not subject the copyright owner to liability, even if that mistake was unreasonable. The plaintiff must show that the copyright holder had actual knowledge of a misrepresentation.

Because the parties agreed that Universal had not considered fair use before it issued the takedown notice to YouTube, Lenz argued that Universal had absolutely no subjective belief, one way or another, that the video was a fair use. Universal argued instead that its instructions to employees, while not formally a fair use analysis, were sufficient consideration of fair use to form a subjective good faith belief.

This is the point where the majority and the dissent seem to disagree. The majority concluded that Universal’s actions were at least enough to raise a genuine issue of fact for the jury to decide regarding its own subjective good faith belief that the video was not fair use. The majority, again pointing to Rossi, emphasized that the consideration required to form a good faith belief on the issue of fair use does not need to be searching or intensive, especially in light of the volume of infringing uses presented in the digital age. The majority even suggests (without deciding) that running a computer algorithm to detect infringing content may be sufficient to meet this standard.

The dissent found the majority’s reasoning wanting. The dissent takes issue that the majority’s reading of Rossi requires a subjective belief that the fact asserted in the takedown notice is false. According to the dissent, “[a] party cannot truthfully represent that a work subject to the fair use doctrine is infringing if the party has knowingly failed to consider whether the doctrine applies.” Instead, a party who knowingly fails to consider fair use lacks a basis to assert that the work is infringing and, therefore, should be found to have some actual knowledge of misrepresentation. The dissent believes this concept of “conscious ignorance” is more in keeping with the tortious nature of misrepresentation as compared to the majority’s concept of “willful blindness” borrowed from criminal law.

Willful Blindness Doctrine

In perhaps the strongest blow to Lenz, the Ninth Circuit held that Lenz could not proceed to trial on a theory of willful blindness. In the district court below, Lenz argued that Universal’s procedures for evaluating copyright infringement were so deficient that it willfully blinded itself to the possibility that her video could be a fair use. The majority of the Ninth Circuit panel agreed that, in appropriate circumstances, this theory of willful blindness could support a claim of liability. Citing the Supreme Court’s decision in Global-Tech Appliances, Inc. v. SEB S.A, the Ninth Circuit applied a two-part test: “Lenz must demonstrate a genuine issue as to whether – before sending the takedown notification – Universal (1) subjectively believed there was a high probability that the video constituted fair use, and (2) took deliberate actions to avoid learning of this fair use.”

The Ninth Circuit determined Lenz failed to meet her burden of the first factor. Lenz did not present any evidence “from which a juror could infer that Universal was aware of a high probability the video constituted fair use.” Again, Lenz’s only evidence was that Universal failed to engage in any form of fair use determination. For this reason, the Ninth Circuit granted Universal’s cross-motion for summary judgment on the issue of willful blindness, and Lenz may not raise the issue at trial.

The Ninth Circuit’s opinion is a slight, yet significant, expansion of the willful blindness theory with regard to liability under the DMCA. The willful blindness theory was first developed by the Second Circuit in the landmark case Viacom International, Inc. v. YouTube, Inc. In that case, the Second Circuit found that Congress, through the DMCA, limited – but did not abrogate – the common law willful blindness doctrine. See Viacom, 676 F.3d at 34–35. Importantly, however, the Second Circuit’s determination rested on a textual analysis of § 512(m)(1), which applies only with regard to OSPs. In Lenz, the Ninth Circuit expanded the application of the willful blindness doctrine to copyright owners, quickly citing to Viacom without otherwise acknowledging any distinction. Unlike copyright owners, OSPs are not required to take affirmative steps to monitor for specific infringing activity. So, we are left wondering, does the DMCA (presumably through § 512(f)) abrogate the common law willful blindness doctrine as to copyright owners?

As mentioned above, the dissent makes the case that § 512(f)’s standard of “knowingly,” with its common law tort roots, is at least some evidence that Congress intended to emulate such torts as fraud, deceit and misrepresentation. Quite simply “a misrepresentation is knowing if the party knows it is ignorant of the truth or falsity of its representation.”  Accordingly, the dissent would find that Universal’s failure to form any belief regarding fair use is sufficient to satisfy § 512(f)’s standard of a “knowing” misrepresentation.


Fair use has always been a murky area, difficult to define and tricky to navigate. The Ninth Circuit may have advanced the ball by clarifying that, at least in the context of the DMCA, fair use is a right rather than a defense. Thus, copyright owners must take pause to consider some form of fair use analysis before issuing a DMCA takedown notice. But what kind of analysis will suffice? In this regard, the opinion may create more questions than it answers. One thing is for sure, though: The Ninth Circuit has not set the bar very high. Whether this is a game-changing decision that will have any practical effect on the behavior of overzealous copyright holders remains to be seen.

This article was prepared by Jeff Pettit (supervised by Saul Perloff).

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Court Imposes Penalty against ERISA Fiduciary for Failure to Provide Plan Documents

Originally published by D. Casey Flaherty.

A few months ago, we wrote about the case of McDonough v. Aetna, 783 F.3d 374 (1st Cir. 2015) wherein the First Circuit upheld a penalty award against Aetna for failing to provide plan documents to an ERISA participant. This week, in the case of Harris-Frye v. United of Omaha, (E.D. Tenn. 2015), the plaintiff sought a penalty under ERISA for the Plan Fiduciary’s failure to provide documents relating to an ERISA life insurance policy. The Court upheld a Magistrate Judge’s recommendation to impose a penalty of $12,760 for failure to provide the life insurance policy; importantly, the Court further an additional sanction of $61,380.oo for the Plan’s failure to provide the “plan document.”

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No flip-flip about the flip-flop

Originally published by David Coale.

jackup rigMyers slipped in the shower while working aboard a drilling rig in the Gulf of Mexico.  In an echo of Blanton v. Newton Associates (a recent employment cases that turned on a prompt investigation into the facts), the rig operator quickly obtained a statement from Myers that said: “When getting out of shower, my shower shoe on left foot broke causing my left foot to slip and twist and resulted in falling out of shower.”  When Myers took an inconsistent position in trial (arguing that he fell because of inadequate rails and mats), this statement was key to affirmance of a defense judgment.  The Fifth Circuit also rejected an argument about the trial court’s review of the evidence: “Myers does not allege that the court did not see the flip flops; instead, he appears to object to the court’s failure to inspect them more closely. . . . When physical evidence is introduced at a bench trial, neither caselaw nor common sense establishes a minimum distance the judge must be from that evidence before the judge’s obligation to consider the evidence is satisfied.”  Myers v. Hercules Offshore Services, No. 15-30020 (Sept. 25, 2015, unpublished).

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5 Master’s Degrees That Can Help Advance Your Career As An Attorney

Originally published by Bob Kraft.

5 Master's Degrees that can Help Advance your Career as an Attorney-1

Earning a master’s degree will allow you to pull together your experience as an attorney and expand in another area that you have a deep interest in. A master’s degree can provide greater job security and income. These five master’s degree programs can place you on the pathway to advancing your career as an attorney.

The JD/MBA is at the crossroads of law and business in the legal and corporate worlds. The JD/MBA doesn’t need to learn the language necessary to draft a large bank’s loan documents or complete a corporate acquisition. In the corporate world, the analytical skills that a lawyer possesses coupled with their business knowledge places them in very favorable positions to move into corporate hierarchy. The finest business and law schools in the country have specifically designed programs for the JD/MBA.

Patent lawyers are some of the highest paid attorneys on the planet. It’s harder to become a patent lawyer without an engineering degree. A master’s degree in engineering places the patent lawyer at the cutting edge of science and technology. They’re also permitted to heavily involve the analytical skills they developed while becoming an attorney in either obtaining or litigating patents.

Criminal Justice
An attorney with a master’s in criminal justice is an excellent candidate for becoming a top law enforcement officer, administrator, prosecutor, defense attorney or judge. Many fully accredited and highly respected universities even offer criminal justice master’s degree programs online. Upon acceptance, there are no geographical or time barriers.

For those that wish to earn their master’s degree in law by plugging in from anywhere in the world, the University of Southern California LL.M online program can be completed in a year. The LL.M degree places the graduate in a distinct and elite segment of attorneys who have studied beyond their JD degrees. The LL.M makes the attorney a highly regarded candidate for careers in academia, public policy, government service, business and the practice of law itself.

An attorney with a master’s in healthcare administration is positioned for upper echelon management positions with hospitals, government, pharmaceutical companies and insurance companies. Job growth in this area of law and administration is expected to remain quite healthy until at least 2022.

If you’re already an attorney but want to continue to enrich your life and career, a master’s degree program is available in whatever field you’re interested in.

This article is from Lizzie Weakley, a freelance writer from Columbus, Ohio. She went to college at The Ohio State University where she studied communications. She enjoys the outdoors and long walks in the park with her four-year-old husky Snowball.

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Medicaid Payment Rates

Originally published by Jerri Lynn Ward, J.D..

Medicaid Payment Rates

As you know, the CMS Medicaid hospice payment rates memo was released on September 1, 2015. The

requirements reflect the Medicare final rule which was published on August 6, 2015. The rule changes

implement several items:

? Payment methodology for routine home care (RHC) – beginning January 1, 2016 the RHC rates

will be implemented; a higher base payment for the first 60 days of care and a reduced rate for

the days thereafter.

? Service Intensity Add-on – this is payment for services provided by a registered nurse or social

worker for up to four hours during the last seven days of a recipient’s life. This payment is in

addition to the RHC. Payment is equal to the continuous home care hourly rate multiplied by the

hours of nursing or social work provided that occurred on the day of service. The service

intensity add-on will be reviewed and paid after by the fiscal intermediary.

? The hospice rates provide for an annual increase.

? The hospice cap amount for Federal Fiscal Year 2016 is $27,820.75.

? Quality reporting will continue. If the provider does not complete the quality data report the

payment rate will be decreased by two percentage points.

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Jury in Western District Finds Against Plaintiff

Originally published by Thomas J. Crane.

In one recent case, the employer did not move for summary judgment or otherwise seek to dismiss. The case was filed by Jamel Blanton, Arica-American, and alleged racial and sexual discrimination. The female restaurant manager was accused of saying such things as: “do all black guys have big penises?” “What I would do for you if you were well endowed.” She made some rather graphic comments.

Mr. Blanton said he complained to various lower level managers, but nothing was done. Later, he complained to the owner of the Pizza Hut restaurant, and the offending manager was fired. Later, Mr. Blanton had to become a cook, because it was found his driver’s license had expired. His hours as a cook were reduced and he felt he had to quit. The jury found he was subjected to racial and sex based discrimination by the female manager. But, found the jury, the employer took prompt action regarding his complaint. The jury also found that the employee did not take advantage of the complaint procedure. So, they found in favor of the employer. The trial lasted three days.

After the jury verdict, the plaintiff moved for a judgment notwithstanding the verdict (meaning that the verdict was simply wrong and not supported by the evidence), arguing that Pizza Hut failed to show its anti-discrimination policy was effective. There was no evidence of any training regarding the policy. The employer simply provided a copy of the policy at trial and no evidence regarding its effectiveness. But, the court disagreed, saying there is no authority for a requirement that there be more to a policy than the fact of its existence. The plaintiff also argued there was no evidence of training on the policy. Training would be wise, said the court, but there is no authority requiring training on anti-harassment policies. And, since the restaurant did fire the manager soon after the complaint, the jury could find that the policy was effective. And, while the plaintiff delayed reporting the harassment to persons higher than his manager, for fear of retaliation, the jury could find that his delay was not warranted. See Blanton v. Pizza Hut of San Antonio, No. 12-CV-1103, 2014 WL 888344 (W.D. Tex. 1/14/2014).

The jury did submit one note to the court, suggesting it was engaging in active deliberations. It did award the Plaintiff $1500 in compensatory (emotional suffering) damages. That award had no legal effect since the jury had already found the employer took prompt remedial action regarding Mr. Blanton’s complaint. But, it helps show the conservative tendencies of juries in federal court. Even when they award compensatory damages, the amounts are very low.

The result highlights the difficult of quitting a job when you may have a discrimination lawsuit. Title VII and the Texas Commission on Human Rights Act both provide for lost back pay if a worker is fired or suffers some adverse personnel action. Caselaw finds that voluntary quitting is not an adverse personnel action. Yes, there are times when a worker must quit or thinks s/he must quit. But, courts generally view those sorts of resignations skeptically. Here, the employer never moved for dismissal or for summary judgment. So, the court’s skepticism was not tested. But, the jury was essentially asked if Mr. Blanton had to quit and in general terms, the jury said no.

The trial also highlights the benefit of prompt remedial action. The employee delayed reporting to any significant level due to his fear of reprisal. The jury was not persuaded that his fear was well-founded. Federal juries are rather conservative. Juries in general prefer not be at the courthouse. They live busy lives. So, if you keep them in trial, you need to persuade them first that you have a very good reason.

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Wage and Hour Claims Menace Producers

Originally published by Charles Sartain.

Posted by Charles Sartain

Don't be like this fellow.

Don’t be like this fellow.

Co-author Michael Kelsheimer

It’s common knowledge: Fair Labor Standards Act audits from the U. S. Department of Labor and lawsuits from workers for overtime violations are coming faster than a blitzing safety on a third and long.

Native Oilfield Services is the latest target.  Dispatchers and truck drivers brought suit against Native alleging they were not paid for overtime hours.  The company settled with the dispatchers for an undisclosed amount, but Native elected to fight the drivers’ claims.

Neither the jury nor the federal judge accepted Native’s arguments that: (1) the drivers are exempt from overtime, and (2) time waiting for new loads should not be compensated.

With prices in the tank and layoffs prevalent, former employees are eager plaintiffs. One laid-off employee trying to feed the family can lead to a “collective action” on behalf of that employee and everyone else in that job category, past and present. Native had 104 drivers against it.

You don’t have to be worried about one settlement for a few overtime hours a week involving one job position going back two or three years. There’s more. Be concerned about every person who holds and has held that position for the last several years coming back against them.  Plus, the employees could recover statutory damages and attorneys fees.

What should I do?

  • Talk to an employment lawyer.  As good as payroll companies are for many things, do not rely on them for legal advice. Same goes for your CPA. One other reason: Your conversations with your lawyer are privileged from discovery, not so with your payroll company and your CPA.
  • Determine if the employees who are not paid overtime are actually exempt. They might be.
  • Learn if your independent contractors actually fit the legal definition.
  • Check to see if you are correctly paying travel time, wait time, and on-call time.
  • Make adjustments if necessary.
  • Settle potential claims with employees directly to avoid a lawsuit with double overtime payments and fees – for your lawyer and theirs.
  • Remember, it’s cheaper to be proactive than to stick your head in the sand over these claims.
  • If you elect to go ostrich, at least require employees to keep track of their hours. If you don’t think you owe overtime you are unlikely to keep track of employee hours. The result: The employees will estimate the number of hours they worked over 40 each week during the period in question. Do you think the estimate will be high or low?  Employers are hard-pressed to defend the number because they weren’t there to observe and have no contemporaneous records.  If you keep the records, you will have an honest assessment of what you might owe.

Feeling paranoid? You’re in good company. See what happened to Halliburton.

Here’s one for the workers.

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Client Development: Repurpose Your Articles and Presentations

Originally published by Cordell Parvin.

If you are a lawyer I have coached, you could have written this blog post. You likely remember, we talked about repurposing the content you create.

As we talk about repurposing what you create, keep these four points in mind:

  1. More often than not, clients hire lawyers rather than law firms.
  2. Client development is about relationship building.
  3. You will be considered by a new client based on recommendations or based on something you have written or presented.
  4. The recommendations more often than not will come from weak ties.

Have you handled a complex matter recently? If so, how can you reuse materials you created to educate other potential clients, referral sources and weak ties?

Take something that was created in your billable work that your client would give you the ok to share.

Create an article or blog post. From the article or blog post create a presentation or a webinar. From the handout for the presentation, create a guide.  You get the idea.

I always did that. Let me share an example.

In the early 90s, the Federal Highway Administration received permission from Congress to “experiment” with Design-Build construction of complex bridges and highways.

I knew the experiment would lead to states wanting to construct more and more projects by design-build contracts. I also knew contractors were unprepared for this change.

I decided to do workshops across the country to educate contractors. About 100 contractors attended. I had taken many hours to prepare the detailed handout materials. I wanted to get the materials in the hands 100s of other contractors .

When it became possible, I had our marketing department put the materials on my website where they could be easily downloaded. Here is a link to my Design-Build Guide.


Next, I broke out sections of the guide and created several articles that were published. The net effect was I reached a much wider audience by repackaging the materials I had worked so hard to create. In some cases I put materials in front of potential clients I had never met.

First, I was hired by a state in New England to help draft their first design-build contact.

A couple of years after that, I was hired by the contractor to help put together a proposal to install a very complex electronic toll collection system in the Northeast.

Because of my design-build articles and presentations, I was hired by several contractors to handle disputes arising from design-build contracts. All of these opportunities and engagements came as a result of creating content and reusing it.

Think about how you can repurpose materials you create.

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Forgotten Legal Status In America Could Lead To Big Implications Down The Road

Originally published by Gerry W. Beyer.

As the world grows more globalized, it is inevitable that there will be some people that have complicated national identifications and will hold citizenship in multiple countries. As a result, negative tax and other legal implications may come into play…

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Houston Legal Links 9/29/2015

Originally published by Mary Flood.

Top legal news includes: These Texas clubs received prostitution violations from TABC; WSJ: Texas Sees Boom in Lawyer Population; Report adds DEA to the list of agencies flying surveillance planes over Houston; Gilstrap Dismisses 168 Patent Cases, Considers Attorney Fees (Texas Lawyer); Legal filing accuses Fort Bend truancy court of criminal wrongdoing; Montgomery County Attorney Says Commissioners’ Actions Will Not Void Election Results; Houston Students File Brief In Texas Supreme Court School Finance Case; 2015 HBA Judicial Evaluation Questionnaire Now Open, For What It’s Worth; Houston Sex Workers Accuse Reality Show Producers of Fraud; Federal Court To Hear Case Against Texas Over Birth Certificates; Program Would Reward Police Officers For Living In The City Of Houston; Texas Police Organization Says Fundraising Company Up to No Good; Charges dropped against Syrian refugee arrested at the Texas border; Copyright case pits Tejano musician and South Texas record label (Chron subsc); Shell abandons Arctic oil quest after $7 billion bid yields ‘disappointing’ results; Sanchez Energy to sell midstream assets for $345 million & BP has big defense against hostile takeover attempt.

For the water cooler: Murder trial to resume after shock is administered to defendant for failing to stand; 7 Handy Tips For The Gaslamp And Other (Allegedly) Racist Nightclubs; Judge Rules Yelp Review Not Covered By First Amendment; We Had A Law Student Fact-Check The HTGAWM Premiere; Legal Aid threatens suit over interview-room cameras at new $230M courthouse; Pope Not Infallible On Matters of U.S. Constitution; Volkswagen facing ‘tsunami’ of legal trouble in emissions scandal; TV staffers forced to work 24-hours straight: lawsuit; Guy Steals Four Million Pounds Of Oranges; Federal judge dismisses ACLU suit over courthouse lawn nativity scene; Professor Reduced To Arguing For The Psychic Benefit Of Law School; Law prof sues university over concealed-carry ban; College student faces felony charge over what he says was a powdered-sugar prank; Small firm sanctioned nearly $282K by federal judge for pursuing frivolous case; Despite lack of law license, man represents clients in court in New York and New Jersey & Judge says he isn’t an ‘ogre’ and didn’t jail defendants for unpaid fines, despite threat.

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Tech-Savvy Lawyers and Bad Baselines

Originally published by D. Casey Flaherty.

I am more expert than most of the people in the world about The Wire, James Baldwin, Breaking Bad, David Foster Wallace, the films of Quentin Tarantino, and many, many other topics. This is not because I know much but because I know anything. The baseline used makes my claim to status meaningless. Only a minute percentage of the world’s population has any familiarity  with the aforementioned. Of course I know more than people who know nothing. Being more expert than they does not mean I am an expert (I’m not).

Often, when we judge something, including ourselves, we encounter a reference class problem. Last season, was Mike Miller of the Cleveland Cavaliers a good or bad basketball player? Of the already small percentage of the basketball playing population that makes their high school squad, only .03% make it to the NBA. So Miller is, inarguably, among the basketball playing elite. At the same time, in the 52 games his coach chose to play him, Miller only averaged 2.1 points on 32.5% shooting to rank dead last in player efficiency rating among all NBA players. Miller, a 15-year veteran nearing the end of a solid career, was so unproductive that you get 816 hits on Google for  “corpse of Mike Miller”. If you are putting together a pick-up basketball squad at your local rec center, probability suggests that Miller remains a phenomenal addition. If you are building an NBA rotation, you hope to have better options. Playground and NBA players are different reference classes.

When I became a lawyer, I was immediately ordained “tech savvy” because of the reference class. My reputation was sealed when the partner in the adjacent office (an otherwise brilliant lawyer) was screaming about the computer eating valuable documents. I superheroed in to press CTRL+Z (undo). When the files resurrected, he stared at me like I was some sort of wizard. From then on, I handled ediscovery on his cases despite the inconvenient fact that, in the beginning, I knew jack all about ediscovery (that’s changed). It required dangerously little knowledge of, and facility with, technology to be tech savvy among the reference class of lawyers.

It was, of course, one thing for technophobic partners to think I knew everything about technology because I demonstrably knew more than they did. It was yet another for me to believe I was tech savvy in any meaningful sense. Yet, I started to believe just that because, well, ego. After all, I spent my days knowing more about technology than almost everyone I encountered. And those who did know more (IT professionals, word processors, and our bad-ass librarian who switched her keyboard to Dvorak) were not lawyers. The word “lawyer” was doing most of the heavy lifting in the appellation “tech-savvy lawyer.”

I had my delusions of tech adequacy punctured by a client. He happened to be in my office and asked me to turn a document into a PDF. I obliged. I printed the document, walked to the printer, walked to the scanner, and returned to my desk where he was sitting mouth agape. For months, I had been the sole associate on a PDF-intensive arbitration. He was doing the math on how much time I must have already wasted. He was apoplectic. If I had not already proven my value as a lawyer, he would have had me thrown off the case. But I had. And he didn’t. Still, he had some words with the partner (the same partner who had designated me as a tech expert).

Let me be clear: I believed I was tech savvy despite the fact that I did not know how to convert a Word file into a PDF.

I was absolutely embarrassed. I changed my whole approach to technology based on the incident. But, at the time, how was I supposed to know? Everything is obvious once you know the answer. It obvious to me now that converting one filetype (e.g., a Word document) to another filetype (a PDF) is something that the machine should do. But, to that point, no one had ever taught me that. Without training, how was I supposed to know that which I did not know?

This is the problem of metacognition. In the book, Talent is Overrated: What Really Separates World-Class Performance from Everybody Else, Geoff Colvin explains the role metacognition plays in superior performance (h/t Farnam Street):

The best performers observe themselves closely. They are in effect able to step outside themselves, monitor what is happening in their own minds, and ask how it’s going. Researchers call this metacognition – knowledge about your own knowledge, thinking about your own thinking. Top performers do this much more systematically than others do; it’s an established part of their routine.

Metacognition is important because situations change as they play out. Apart from its role in finding opportunities for practice, it plays a valuable part in helping top performers adapt to changing conditions…[A]n excellent businessperson can pause mentally and observe his or her own mental processes as if from the outside:…Am I being hijacked by my emotions? Do I need a different strategy here? What should it be?

…Excellent performers judge themselves differently from the way other people do. They’re more specific, just as they are when they set goals and strategies. Average performers are content to tell themselves that they did great or poorly or okay. The best performers judge themselves against a standard that’s relevant for what they’re trying to achieve. 

Not only do people not know what they don’t know, but their ignorance begets confidence. Metaignorance as the source of unfounded confidence is known as the Dunning-Kruger effect. Illusory superiority means that the people most in need of assistance (e.g., training, education, help) are the least likely to recognize their need.

And with confidence comes ego. Many people who have declared themselves tech savvy (or some other positive designation) are only interested in that which confirms their self image. Faced with the choice of changing their self conception and proving there is no need to do so, most get busy on the proof. For lawyers, this urge towards ego preservation combines with a psychological profile that sees any admission of fallibility as an admission of incompetence.

Thus, in administering my tech competence assessment, I often come across ‘tech-savvy lawyers’ who, like I was, are merely tech savvy for a lawyer. They do well on the assessment. But they do not do perfectly. They then go to great lengths–one penned a 1,500 word memo–to explain why the features they struggled with should not be tested. While I think there is a worthwhile discussion to be had about who should be training on which skills (a later post), it amazes how people are able to delude themselves that they already know everything worth knowing. Any assessment that fails to completely confirm that self image is flawed.

When I then explain to them where the disputed features fit into a rational legal workflow, as well as the important concepts of fluency and fluidity (another later post), they, more often than not, begrudgingly concede that I may have a point. Maybe, just maybe, they might have some worthwhile things left to learn. But…there is always a but…but, they inquire, how can I expect the majority of lawyers or staff to score perfectly on a first attempt when they themselves–the cream of the crop within the profession–did not do so? I, of course, have no such expectation.

There are lawyers and staff who have flown through my assessment modules because there are people who are both legal professionals and tech savvy. But not many. For most people, there are areas where they could use training. That’s the point. Competence-based assessments are designed to identify who needs training. on what, and then to verify the training has been effective. An assessment that everyone, trained and untrained, can pass on the first attempt is pointless.

Our problem is not the dearth of individuals who operates above the profession’s tech baseline. Our problem is that the baseline is so low. My goal is to raise the baseline.

ADDENDUM: All that said, I often feel like an impostor. As I detail above, I had my bubble burst with respect to my own tech savvy. It was the epiphany I needed to start taking tech and tech training seriously. Converts make the greatest zealots. But I’ve never really recovered. Indeed, the more I learn, the more I recognize how little I know. Lawyers are no longer my reference class for properly using technology. People who are genuinely expert at using technology are my reference class. And they make me realize that I still have so far to go. It makes my evangelism feel a tad hypocritical.

But this particular brand of humility is also helpful. I know enough to know how much low-hanging fruit is within our immediate grasp. But my lack of confidence in my own expertise also helps me empathize with those who are unaware of their own ignorance or who struggle with their ego. I’ve been there. Just because you can get better at using tech does not mean you are stupid, lazy, or bad at your job. It just means that you can get better at using tech, which you should do. Progress, not perfection, is the objective. And getting better is evidence of a commitment to excellence, not an indictment of past performance.


Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. There is more than enough slack in the legal market for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.
The premise of the Service Delivery Review is that with people and pricing in place, rigorous collaboration on process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. One obstacle is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.

Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).


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

from Texas Bar Today
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Law student videos show off knowledge, love for the law

Originally published by Lindsay Stafford Mader.

Streaming Video IconWhen Meg Penrose was in law school more than 20 years ago, there was no social media, there was no YouTube, there was no iPhone. Penrose remembers spending many courses sitting in a circle with her classmates reading books. Now a professor at Texas A&M University School of Law, Penrose has realized that she needed to develop a creative approach to testing if she wanted to keep this new “visual generation” excited about the law and to help them deeply understand the curriculum.

So Penrose has been giving students in her Constitutional Law class the option of producing a four- to 10-minute video project in place of taking an essay-based final exam; in her First Amendment class, she requires students to go the video route.

“My thinking is that as we move forward and as society is changing, we as educators have to adapt,” Penrose said. “We have to figure out the best way to train our students so that they learn—and fall in love—with the constitution.”

The projects had to: 1) be suitable for a wide range of individuals from eighth grade to senior citizens; 2) be professional in tone, language, and presentation; and 3) reference one major establishment clause or free exercise case that was assigned, read, or discussed during the semester. Students could work alone or in groups of up to five, which Penrose said was to remind them that “as lawyers, we’re in an extremely cooperative profession and it’s quite unusual to do anything on your own.”

The final projects Penrose received impressed her: clever songs, touching poems, elaborate skits, intelligent “man-on-the-street” interviews, innovative cooking shows, and more. She said that almost all of the students demonstrated a firm grasp on the constitutional concept they chose to focus on and also that they had used critical and analytical thinking in producing their video. Importantly, she added, they had fun during the process.

“I was so impressed by their creativity—which I think we need as lawyers,” Penrose said. “We can’t lose sight of the fact that we sometimes have to think outside of the box. I had two groups of students depict the dormant commerce clause in ways that showed a level of brilliance that their exam would not have showed me. Part of what I think my path is, is to really get these students to love the law. Because it’s a very hard way to earn a living, and we have to be vested in what we’re doing.”

Penrose said that a majority of her students expressed that they studied harder and worked harder to produce their video than they normally would have for an essay exam. Going forward, she plans to assign video projects—which she described as “probably the most fulfilling assignment I’ve ever given”—but she will not completely forsake the more traditional exams.

“Increasingly we live in a world where the written word is not the only way things are resolved,” she explained. “But when I go before a judge, my writing is the most important thing that influences the case. So I don’t minimize writing. I think the lawyer’s trade boils down to communication—written, oral, any way you communicate your ideas.”


To view a selected video—a song titled “Marshall the Judge” written by student Julia Bradley and performed by Allison and Jack Balog—go to the State Bar of Texas’s YouTube channel. Another video—a skit and song titled “Everything is Commerce” by students Jack Walters, Curtis Huff, Travis Ryffel, Matt Lawhon, Griffin Scheumack, Jerek Hart, and Zack Brown—is available at

Stay tuned for the November 2015 issue of the Texas Bar Journal for more stories on how the state’s law schools are addressing changes in legal education.

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

from Texas Bar Today
via Abogado Aly Website