Friday, October 30, 2015

Advice about Cybersecurity Blind Spots Including Cloud Access

Originally published by Peter S. Vogel.

A report from Tenable Network Security identifies that blind spots “can increase legal risk because information retention policies designed to limit legal liability are very unlikely to be applied to electronically stored information (ESI) contained on unauthorized cloud, mobile and virtual assets.” Tenable Network Security’s April 15, 2015 report entitled “Eliminating Cybersecurity Blind Spots” includes these three continuous activities:

  1. Passive Network Monitoring
  2. Active Scanning
  3. Event Log Analysis

Here are more details on Passive Network Monitoring from the Report which includes detection of access cloud connections:

Passive network monitoring continuously analyzes network traffic at the packet layer to build a model of active devices and applications on the network. Because passive detection operates 24/7, it will detect transitory assets that may only be occasionally and briefly connected to the network and can send alerts when new assets are detected.

Passive monitoring can frequently determine a device’s operating system and version using OS fingerprinting techniques that can also identify protocols and protocol versions. More importantly, passive monitoring can identify client applications used on the network, such as email clients, web browsers and chat programs. It can also detect FTP peer-to-peer file sharing, and connections to cloud services such as DropBox, YouSendIt and As described earlier, when protected/proprietary data is sent to unsanctioned cloud applications, organizations are frequently exposed to significant hidden risk. Sophisticated passive monitoring tools have the ability to examine unencrypted data sent to the cloud to determine if it contains protected/proprietary data that should not leave the premises.

Advanced passive monitoring tools can associate discovered operating systems, protocols and applications with known vulnerabilities, enabling organizations to prioritize remediation as vulnerabilities are discovered. These tools can also detect when systems are compromised based on application intrusion detection.

Advantages of passive network monitoring are: it identifies transient systems that may only be on the network a brief time; it does not perturb the network or devices on the network; it has visibility of Internet and cloud services being accessed from systems on the network; and it can identify vulnerabilities in real-time, 24/7, to eliminate gaps between active scans (described below) and accelerate threat remediation. The shortcoming of passive network monitoring is that passive detection sensors must be strategically deployed throughout the network so they can monitor all desired traffic, and if the network is reconfigured without reconfiguring or deploying additional passive sensors, devices and applications may not be detected.

All business should heed this advice about protecting the blind spots.

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

from Texas Bar Today
via Abogado Aly Website

Top Productivity Apps For Lawyer Who Use Macs

Originally published by greg.

Every attorney has their favorite software and technology tricks to increase productivity. Funding software that is both easy-to-use and hopeful can be a powerful way to leverage your time for Read More

The post Top Productivity Apps For Lawyer Who Use Macs appeared first on Baumgartner Law Firm.

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

from Texas Bar Today
via Abogado Aly Website

Cape Town, Revaluing the City: Land, Infrastructure and the Environment as a Catalyst for Change

Originally published by Stephen R. Miller.

Study Space IX: Cape Town View this email in your browser Study Space IX: Cape Town Revaluing the City: Land, Infrastructure and the Environment as a Catalyst for Change Monday, June 27-Friday, July 1 • Cape Town, South Africa Apply…

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

from Texas Bar Today
via Abogado Aly Website


Originally published by Carrington Coleman.

MacDonald Devin, PC v. Rice
Dallas Court of Appeals, No. 05-14-00938-CV (October 27, 2015)
Justices Francis (Opinion), Lang, and Evans

Attorneys’ fee awards are appropriate relief under a motion to compel, even if there has been no “offensive conduct.” Attorneys from MacDonald Devin, PC appealed the award of $4500 in attorneys’ fees entered against them arising out of a discovery dispute and motion to compel, arguing they did not engage in any sanctionable or “offensive” conduct. But the Dallas Court of Appeals clarified the award was an “award of expenses on a motion to compel under Texas Rule of Civil Procedure 215.1(d) and not a traditional discovery sanction.” Under Rule 215.1(d), if a motion to compel is granted, the court “shall” award to the prevailing party the “reasonable expenses incurred in obtaining the order,” unless the court finds the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. Appellants’ focus on whether their conduct was “offensive” rather than whether it was “substantially justified,” was therefore off base. Moreover, the Court found that, given Appellants had asserted trade secret privileges to a majority of the discovery requests and those objections were withdrawn or overruled, Appellants had not shown their opposition to discovery was substantially justified. The Court therefore affirmed the trial court award.

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

from Texas Bar Today
via Abogado Aly Website

What Access to Justice Means to Me

Originally published by Teri Rodriguez.

The Texas Bar TV interview: Former State Bar of Texas President Trey Apffel talks about access to justice and the lawyers of Texas stepping forward. “It’s the right to access to justice that we defend every day.”

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

from Texas Bar Today
via Abogado Aly Website

Pro Bono Week Spotlight Day 5: Ralph Miller and Nathan White

Originally published by Amy Starnes.

Nathan White

Ralph Miller

The State Bar of Texas, the Texas Access to Justice Commission, the American Bar Association, and others proudly support National Pro Bono Celebration Week (Oct. 25-31).

Pro Bono week is an opportunity to educate the public about the good work the legal community is doing to improve the lives of vulnerable Texans and to encourage more individuals to get involved in pro bono support of the legal system.

Today, we are featuring Ralph Miller and Nathan White of Weil, Gotshal & Manges LLP.

Miller and White are helping the Texas Civil Rights Project represent a South Texas couple, Rolando and Miriam Pérez, in Pérez v. Doctors Hospital at Renaissance. Miriam Pérez is completely deaf and communicates only in American Sign Language (ASL). Her husband, Rolando, has very limited hearing and communicates primarily in ASL, though he can sometimes communicate in English with difficulty.

In August 2011, the couple took their then-4-month-old daughter to the hospital, where she was diagnosed with a cancerous brain tumor. She began regularly receiving chemotherapy. The family claims Doctors Hospital at Renaissance (DHR) repeatedly declined to provide an American Sign Language (ASL) interpreter. The couple contends that by refusing to provide a translator, the hospital prevented the mother and father from taking part in the decision-making process for their child’s treatment.

The Texas Civil Rights Project helped the Pérezes sue DHR in March 2013, seeking an injunction requiring DHR to provide the interpreting services required under the Americans with Disabilities Act (ADA) and other federal and state disability laws. In late 2013, while the lawsuit was pending, the hospital began providing some interpreting services through a video remote interpreting (VRI) machine. However, plaintiffs claimed DHR staff were not trained to operate it and sometimes did not know what it was, leaving it unplugged in a corner.

U.S. District Judge Randy Crane of the McAllen Division granted summary judgment to DHR in 2014, finding that the ADA did not protect the couple and, because DHR started providing some remote video interpreting — regardless of whether it provided effective communication — the family did not face a present or future harm, and there was no need for an injunction.

At this point, the Weil pro bono attorneys stepped into the case. White wrote appellate briefs to the Fifth Circuit Court of Appeals (along with TCRP attorneys Efrén Olivares, Wallis Nader, and Wayne Krause Yang), and Miller argued the case in New Orleans in August. Less than a month later, the Fifth Circuit ruled in favor of the Pérez family and reversed the summary judgment, finding:

“The summary judgment evidence is sufficient to create a genuine dispute as to whether DHR intentionally discriminated against the plaintiffs. There is evidence indicating that on several occasions, an interpreter was requested but not provided. There is also evidence indicating that one of the forms of communication that DHR was utilizing, the VRI machines, was often ineffective … [T]he plaintiffs made repeated requests for auxiliary aids, yet DHR failed on several occasions to provide effective aids and in some instances refused to provide an interpreter after one had been requested.”

The Fifth Circuit sent the case back to the district court for trial, which is scheduled for early next year.

Wayne Krause Yang, legal director of TCRP, said, “The Pérez family is overjoyed that Ralph Miller and Nathan White were willing to step into this case and reverse a ruling they found to be utterly unjust. Now that these whip-smart Weil attorneys have our backs, we look forward to the upcoming trial.”

Show You Care: If your firm would like to learn how it can contribute to the pro bono community, please contact the State Bar of Texas Legal Access Division at (800) 204-2222, ext. 1855, or

Read about other pro bono volunteers making a difference in the lives of others on the Texas Bar Blog.

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

from Texas Bar Today
via Abogado Aly Website

Thursday, October 29, 2015

State, local bars holding new lawyer swearing-in ceremonies

Originally published by Lowell Brown.

Erath County Bar Association

A new oath passed by the 84th Texas Legislature designed to advance civility and integrity in the practice of law will be used to swear in Texas lawyers at the next New Lawyers Induction Ceremony at 10 a.m. November 16 at the Frank Erwin Center in Austin. The State Bar of Texas is inviting all practicing attorneys to attend the ceremony and to join inductees in reciting the new oath.

Some local bar associations are holding their own swearing-in ceremonies to welcome new lawyers. A partial list of those activities appears below.

If your organization is hosting an activity that is not listed, please let us know. Send the time, date, place, and other relevant information to


The Amarillo Area Young Lawyers Association will host its annual swearing-in ceremony at 4 p.m. November 12 at the Seventh Court of Appeals, 501 S. Fillmore, Ste. 2A. A reception will follow at the Amarillo Club, 600 S. Tyler.


The Dallas Chapter of the Federal Bar Association is co-sponsoring a swearing-in ceremony with the Dallas Bar Association and Dallas Association of Young Lawyers at 4 p.m. November 17 at the Belo Mansion & Pavilion, 2101 Ross Ave. The ceremony is open to all individuals who passed the July Texas bar exam and successfully completed all other necessary requirements. Families of newly licensed attorneys are encouraged to attend. Judge David Godbey of the U.S. District Court, Northern District of Texas, and Justice Douglas Lang of the 5th District Court of Appeals of Texas will conduct the ceremony. Parking is available for a small fee. Business attire is suggested. RSVP (required) to Cherie Harris (

El Paso

The 8th Court of Appeals will hold the swearing in of new attorneys at 10 a.m. November 10 at the Court of Appeals, 500 E. San Antonio, 12th Floor. The El Paso Bar Association will host a small reception after the ceremony.


The Houston Young Lawyers Association will host a swearing-in ceremony at 4:30 p.m. November 17 at the 1910 Courthouse, 301 Fannin St. Justice Brett Busby of the 14th Court of Appeals will preside. All newly licensed attorneys and their families are invited. RSVP to by November 16 and include the name you would like to appear on your certificate and the number of guests attending. Light refreshments will be provided.


The Katy Bar Association recited the new oath at its regular CLE luncheon on October 27 at Willow Fork Country Club.

La Grange

A swearing-in ceremony for new and previously licensed attorneys will take place during the Fayette County Bar Association meeting starting at 12:15 p.m. October 29 in the Fayette County Courthouse, 151 N. Washington.


The Lubbock County Young Lawyers Association will hold a swearing-in ceremony at 7 p.m. November 18 at Texas Tech University School of Law.


The Fort Bend County Bar Association will have a panel of judges from the 14th and 1st Courts of Appeals at its CLE luncheon at noon October 29 at Pecan Grove Country Club. Chief Justice Kem Thompson Frost will administer the new oath to lawyers in attendance. Those attending who are members of FBCBA and make a reservation pay $25, and nonmembers and members without reservations pay $30 for the luncheon. Find a payment portal and more information at

San Antonio

The Bexar County Women’s Bar Association and San Antonio Young Lawyers Association will host the second annual San Antonio Swearing-In Ceremony on November 19, open to all who pass the Texas bar exam. Chief Justice Sandee Bryan Marion of the 4th Court of Appeals will preside. Judge Henry Bemporad will speak. Representatives from local bar-related organizations will also be present to provide membership information. The event will begin at 4 p.m. at the Central Jury Room located in the Cadena-Reeves Justice Center, 300 Dolorosa. Families of newly licensed attorneys are welcome. New attorneys can RSVP for themselves and their families or friends here. Space is limited.


Members of the Erath County Bar Association commemorated the new oath by reciting it with the assistance of Senior District Judge Donald R. Jones on October 27 at The Agave restaurant.

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

from Texas Bar Today
via Abogado Aly Website

Dental insurance now required in Dallas Texas child custody orders

Originally published by Michelle O'Neil.

dental ins cartoonThe Texas Legislature passed a new law adding dental insurance to the list of required insurance provisions in child custody orders in Texas, including Dallas. This expands the requirement of medical support beyond just routine health insurance. Many parents provide dental or vision insurance, but haven’t been required to do so under the law. Parents are now required to provide dental support for their children, including paying for dental insurance and paying for dental bills of children that are not covered by insurance. The interesting part of this new law is that it goes into effect September 1, 2018. This gives parents and future divorcing parents ample time to obtain dental insurance before it is required.

The law defines the terms used as follows:

“Dental insurance” means insurance coverage that provides preventive dental care and other dental services, including usual dentist services, office visits, examinations, X-rays, and emergency services, that may be provided through a single service health maintenance organization or other private or public organization.

“Dental support” means periodic payments or a lump-sum payment made under an order to cover dental expenses, including dental insurance coverage, incurred for the benefit of a child.

See the enrolled version of the new law here.


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

from Texas Bar Today
via Abogado Aly Website

Fifth Circuit Supports Jury Verdict

Originally published by Thomas J. Crane.

Hilda Gonzalez Garza, an Assistant District Attorney in Starr County told her boss she intended to run for the local elected school board. Her boss, D.A. Victor Canales apparently opposed her candidacy. The D.A. fired the assistant with no warning a couple of days later. Ms. Garza later filed suit under Sec. 1983 alleging infringement of her First Amendment rights and under the Texas Constitution. Pleading municipal immunity, the County successfully moved for summary judgment as to claims against the county. But, the judge denied summary judgment as to D.A. Canales in his individual capacity and for equitable relief under the Texas Constitution. The matter then proceeded to trial.

In his Jury Charge, the judge included language asking the jury to assess future lost pay. Future lost pay or “front pay” is an equitable remedy. That means the judge should decide whether to grant future lost pay, not the jury. But, neither party objected and the question went to the jury. The jury found in favor of Ms. Garza. The jury awarded $68,400 in lost back pay and $1,4 million in lost future pay. The jury awarded 22 years of lost pay to the plaintiff.

My clients often ask me about lost pay in the future and always I tell them how rare it is for a judge to grant front pay. But, here a federal jury awarded 22 years worth of lost future pay. After the trial, the employer moved to reinstate Ms. Garza in lieu of lost future pay. Front pay is simply an alternative to reinstatement. Normally, front pay is awarded only after a finding that reinstatement would not be feasible. The judge granted the motion and ordered reinstatement. That order removed the award of lost future pay. He described the jury finding as advisory. The plaintiff then appealed.

On appeal, Ms. Garza argued that the judge disregarded the jury verdict when he ordered reinstatement. The Fifth Circuit agreed. It found the parties had agreed to submit the issue to the jury. Under Federal Rule 39(c), the parties are bound if they agree to submit an issue to the jury. The Fifth Circuit said the jury ruling on front pay was not simply an “advisory” opinion, since the parties did not object to the charge allowing that issue to be decided by the jury. The court then hinted that the County should have objected to the size of the award. Instead, the County relied on appealing only the fact of the award itself. Now, said the court, it is too late to raise a new issue concerning the size of the front pay.

Since the court ordered reversal of the reinstatement, it did not reach Ms. Garza’s other issue that reinstatement was not feasible. See the decision here in Garza v. Starr County, No. 14-41343, 2015 WL 6152893 (5th Cir. 10/20/2015).

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

from Texas Bar Today
via Abogado Aly Website

NTSB Issues Special Investigation Report on Tire Safety

Originally published by Bob Kraft.

Driver Dangers What Career Drivers Should Know to Stay Safe

The NTSB’s special investigation report on tire safety garnered significant media coverage, with all three major network evening newscasts reporting on the story. Much of the reporting has focused on the investigation’s finding that a majority of recalled tires remain on the road. For instance, the CBS Evening News reported that the NTSB “found as many as 80% of recalled tires do not get fixed.” NTSB Chairman Christopher Hart is shown saying, “A lot of that is something the consumers don’t have control over because they don’t know that they’re driving with a tire that’s subject to a recall.” According to NBC Nightly News, the NTSB “said there could be at least one million to two million dangerous recalled tires on the road.” Moreover, ABC World News reported that “millions of tires are under safety recall, but the vast majority of owners never find out about it.”

ABC News reports online that the NTSB called the current tire recall system “broken.” Hart is quoted as saying that the report “is the outcome of…investigations that uncovered several issues, some of which are systemic, that consumers cannot address on their own.” For instance, Hart mentioned that most motorists “don’t know they need to register their tires with the manufacturer in order to receive recall notices,” the article adds.

The NBC News website reports that during a meeting in Washington, NTSB investigators said that while “tire problems cause 33,000 accidents and kill 500-plus motorists” every year, “only one in five defective tires is being taken out of service via recalls.” Dr. Rob Molloy, acting director of the NTSB’s Office of Highway Safety, is quoted as saying, “Based on the work we did, that system is not working,” adding “it is completely broken.”

Meanwhile, the AP says that NTSB investigators were also “critical” of the NHTSA’s tire recall website, “saying consumers can easily become confused by the search process and come away believing their tires have not been recalled when in fact they were.” The NTSB “unanimously approved 11 safety recommendations,” the article says. Most of these recommendations are directed at the NHTSA, Modern Tire Dealer reports. Among the recommendations is a call for the NHTSA to “require tire dealers to register tires at the point of sale,” the article mentions. School Transportation News quotes Hart as saying that the “recommendations, if acted upon, hold the promise of saving some of the more than 500 lives lost to tire-related crashes every year.”

From the news release of the American Association for Justice.

The post NTSB Issues Special Investigation Report on Tire Safety appeared first on P.I.S.S.D. — Personal Injury, Social Security Disability. Dallas Texas Lawyers.

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

from Texas Bar Today
via Abogado Aly Website

Yes, You Can Be Required to Pay Fees and Costs for Losing a Motion to Compel

Originally published by Richard Smith.

A personal injury case led to an award of $4500 in attorney fees against the defendants’ attorneys after they lost a motion to compel. Among other things, the defendants sought to designate certain documents as “ATTORNEYS EYES ONLY” and objected to 14 of 21 document requests on the basis of trade secret privilege — in a car wreck case. The county court at law overruled the vast majority of the defendants’ objections, and awarded the $4500 to the plaintiff. On appeal, the defendants’ attorneys argued that the award was a sanction that could not be justified by any offensive conduct. The Dallas Court of Appeals disagreed, pointing to the trial court’s order stating that the award of fees and costs was granted for securing orders overruling the defendants’ objections to the plaintiff’s discovery requests. That made it an award of expenses on a motion to compel, which is required (but rarely observed) by TRCP 215.1(d). Reviewing the course of the proceedings in the trial court, the Court of Appeals could not conclude that the trial court had abused its discretion in determining that the defendants’ resistance to the discovery had not been “substantially justified.”

MacDonald Devin, PC v. Rice, No. 05-14-00938-CV

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

from Texas Bar Today
via Abogado Aly Website

Trust Agreement Places Restrictions On Robin William’s Likeness For 25 Years After His Death

Originally published by Gerry W. Beyer.

When Robin Williams tragically passed away in 2014 the actor left behind an estate that was worth $100 million. A trust agreement that was recently made public contains a clause that stipulates Robin William’s likeness will not be used to…

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

from Texas Bar Today
via Abogado Aly Website

Firing over Facebook "Likes" Could Violate the NLRA

Originally published by Alicia Voltmer.

In an unpublished order last week, a panel of the Second Circuit affirmed a decision by the National Labor Relations Board (NLRB) finding that an employer violated the National Labor Relations Act (NLRA) when it discharged two employees for responding, one with a comment and one with a “Like,” to a former employee’s negative Facebook post about the employer’s tax withholding practices.  One of the current employees referred to the employer as an “asshole” and the other posted a Facebook “Like.”  See Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board, Nos. 1403284; 14-3814(XAP), (2d Cir. Oct. 21, 2015) (unpublished).
Finding that the non-unionized employees were engaging in concerted activity, the panel rejected the employer’s argument that the postings were not protected due to the use of profanity, and noted that such a holding, in light of the nature of social media, “could lead to the undesirable result of chilling virtually all employee speech online.” Important to the Court was the fact that the comments at issue did not mention the employer’s products or services, much less disparage them.
The order is currently designated as “unpublished,” meaning that it has no precedential effect.  The NLRB has asked the Court to designate the order for publication, which would give it precedential authority.  A decision on publication will be forthcoming.
The currently-unpublished order serves as a warning to employers to exercise caution before making employment decisions related to social media postings.


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

from Texas Bar Today
via Abogado Aly Website

Texas: Arbitration agreement with employee enforceable even though she did not sign

Originally published by Gene Roberts.

In Firstlight Federal Credit Union v. Loya, the Eighth District Court of Appeals held that the trial court abused its discretion in refusing to compel arbitration. The court held that Loya, an at-will employee, was bound by the arbitration agreement as a matter of law despite her lack of signature because she continued working after receiving notice of the arbitration agreement. According to the Court of Appeals, there was evidence that Loya received a notice of the arbitration policy and acknowledged its receipt electronically through a secure web-portal. It was undisputed that Loya did not print, sign, and return the online version of the company’s Dispute Resolution Policy & Procedure.
The Court of Appeals also examined the “delegation clause” of the agreement–that portion of the agreement that determines whether the court or the arbitrator has the power to rule on gateway issues, such as the validity and enforceability of the arbitration agreement. Here, the Court of Appeals held that the agree …

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

from Texas Bar Today
via Abogado Aly Website

Should You Do a Patent Portfolio Review?

Originally published by Barry Barnett.

PortfolioFinding your patents

In 2014, the U.S. Patent and Trademark Office issued 300,678 “patents for invention”. Since 1990, a total of 4,008,329 of these utility patents have won USPTO approval. How many does your company own?

Don’t worry if you don’t know the answer. You can find it in a few minutes.

Simply go to the USPTO Full-Text and Image Database’s Quick Search feature. Type your company’s name in the “Term 1″ box, choose “Assignee Name” from the drop-down menu beside “Field 1″, and then click on the “Search” button.

The list

Et voila! The USPTO’s search engine produces a list of all the U.S. patents that your company owns legal title to, as a matter of record. The USPTO keeps track of patent assignments, which employers typically require employees to sign for any invention they come up with during their employment.

The list shows, on the left, each patent’s USPTO number and, in the right-hand column, the patent’s descriptive title. Both contain a hyperlink to an html copy of the patent. The landing page includes an “Images” link, which takes you to an analog version in which you can see the figures that the body of the patent refers to.

What next?

I get a lot of requests from people who already know they own patents. They ask me to look at representing them on a contingent-fee basis. They believe — or at least hope — that their patents deserve (and with the right handling will yield) many millions of dollars in royalty payments from infringers and licensees.

A query came in just yesterday from an Asian company. The company’s president urged in a white paper that many large media companies have infringed the patent and that the infringers can afford to pay large damages awards as recompense for their infringing activities.

But what if you don’t even know whether or not the company that you work for owns any patents? Or maybe you just did a Quick Search in the USPTO Full-Text and Image Database and saw that your company does hold title to one or more U.S. patents? What now?

Ask for a portfolio review

Well, now you need to locate a lawyer who will examine your portfolio (even if your portfolio = one patent). If you don’t know one, please don’t ask Google; seek the recommendation of a lawyer you trust and get at least a couple of names.

Many lawyers who handle patent infringement cases on a contingent-fee basis will happily scan your portfolio for gems that could both give the lawyer a chance to earn a big fee and enable your company to award you a handsome bonus.

Don’t expect too much. The lawyer won’t likely provide you with an opinion about the value of your patents (unless of course you pay her for that service). Nor may the lawyer expend a lot of his resources investigating a doubtful case. (Many of our patent-owning clients pay us to do that work on an hourly or flat-fee basis,  knowing that if we can find a way to make a strong case we will gladly take it on a contingent-fee basis.)

But you’ll get a quick read on whether your portfolio justifies a closer look. What do you have to lose?

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

from Texas Bar Today
via Abogado Aly Website

Wednesday, October 28, 2015

S&P Says Infrastructure Costs Go Well Beyond the Initial Investment

Originally published by Barney Allison.

In a number of recent conversations regarding using Public-Private Partnerships (P3s) to deliver large infrastructure projects under an availability payment structure, I’ve heard a lot of angst by public owners over the cost of private finance and that AP’s may be viewed as “debt” by the rating agencies.  It’s true the rating agencies have indicated that AP’s can be considered debt for purposes of assessing an agency’s debt capacity but that’s only one aspect of the delivery method to consider.

S&P has issued several reports/FAQs regarding P3’s in the last couple of months, including the conditions under which the rating agency would factor in the annual AP when looking at a public agency’s debt profile.  But what caught my eye is their most recent report “U.S. State Debt Levels may be More Sustainable Than the Condition of the Nation’s Infrastructure”.   States have typically used tax exempt debt when there’s the need to advance construction of a major infrastructure project.  After noting the modest and sustainable pace at which U.S. states have issued debt since the financial crisis in 2008, S&P looks at the bigger picture—the infrastructure costs relating to long-term O&M that go well beyond the initial capital investment—these costs CANNOT be funded with tax exempt debt and except for major maintenance are not eligible for federal grant funding.  To highlight the issue S&P cites an analysis by the Congressional Budget Office (CBO) suggesting that more than half (50% to 55% from 2000 through 2007) of total public spending on transportation and water infrastructure has been for O&M. These estimates may even be understated because they exclude spending on public power, equipment, or buildings. According to S&P, “relying solely on traditional forms of tax-secured debt to finance the nation’s infrastructure needs, therefore, would likely result in negative credit pressure for numerous states. Furthermore, by overlooking the O&M costs, the estimate presented above almost certainly understates the fiscal pressures that would arise from an exclusively debt-financed approach.”

In conclusion S&P opines that the states can’t solve their infrastructure gap with debt financing alone.  “We anticipate that both because of what it would do to their direct debt levels and because of the O&M implications of funding the nation’s infrastructure needs with tax-supported debt alone, states will increasingly consider alternative financing strategies. P3s are one such avenue.”

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

from Texas Bar Today
via Abogado Aly Website

Hyphens, ellipses, and word counts

Originally published by Wayne.

According to reliable style manuals (I’ve cited four at the bottom of this post), writers should use the en dash, not the hyphen, for number spans.

  • With a hyphen (wrong): 343-44
  • With an en dash (right): 343–44

I don’t know if you can see the difference, but the en dash, the correct mark, is longer than the hyphen. Although I agree with the rule, I’ve recently learned something that could affect your choice of horizontal mark.

  • With a hyphen, Microsoft Word counts this as one word: 343-44
  • With an en dash, it counts it as two: 343–44

You get a 50% savings with the hyphen. In a lengthy brief subject to a word count, you could save some words by using the hyphen.

But wait. There’s more.

Do you know the difference between the ellipsis symbol (…) and the Bluebook ellipsis (. . .), which is just three periods with spaces? For example:

  • Bluebook: The court . . . concluded
  • Ellipsis symbol: The court … concluded

In Typography for Lawyers (cited below), Matthew Butterick recommends the ellipsis symbol. You probably never gave it much thought, but check the words counts:

  • With periods and spaces, Word counts this as six words: The court . . . concluded
  • With the ellipsis symbol, it counts it as four: The court … concluded

You save two words every time you use the symbol instead of periods and spaces.

A former student alerted me to these two strange word-count anomalies and said, “On my last brief to the Seventh Circuit, these two tips cut off close to 200 words–and I ended up 119 words under the limit.”


  • Bryan A. Garner, The Redbook: A Manual on Legal Style § 8.13 (3d ed. 2013).
  • Joan Ames Magat, The Lawyer’s Editing Manual 43 (2008)
  • Chicago Manual of Style § 6.78 (16th ed. 2010)
  • Matthew Butterick, Typography for Lawyers 49, 53-54 (2010)

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

from Texas Bar Today
via Abogado Aly Website

Tuesday, October 27, 2015

Cyber Intrusion Planning Should Include Training Employees about eMail

Originally published by Peter S. Vogel.

Everyone should already know cyber intrusions are “when not if,”  so the Federal Communications Commission (FCC) prepare a tool which “is designed for businesses that lack the resources to hire dedicated staff to protect their business, information and customers from cyber threats.” The FCC’s “Small Biz Cyber Planner” was assembled with help from the Department of Homeland Security, the National Cyber Security Alliance, The Chamber of Commerce, Microsoft, Symatec, VISA, McAfee, and other organizations.

By way of example here are the Cyber Plan Action Items for eMail and in particular training employees which is critical:

1. Set up a spam email filter

2, Train your employees in responsible email usage

The last line of defense for all of your cyber risk efforts lies with the employees who use tools such as email and their responsible and appropriate use and management of the information under their control. Technology alone cannot make a business secure. Employees must be trained to identify risks associated with email use, how and when to use email appropriate to their work, and when to seek assistance of professionals. Employee awareness training is available in many forms, including printed media, videos and online training.

Consider requiring security awareness training for all new employees and refresher courses every year. Simple efforts such as monthly newsletters, urgent bulletins when new viruses are detected, and even posters in common areas to remind your employees of key security and privacy to-do’s create a work environment that is educated in protecting your business.

3. Protect sensitive information sent via email

4. Set a sensible email retention policy

5. Develop an email usage policy

The Sections of the Planner are as follows:

Privacy and Data Security

Scams and Fraud

Network Security

Website Security


Mobile Devices


Facility Security

Operational Security

Payment Cards

Incident Response and Reporting

Policy Development, Management

Cyber Security Glossary

Cyber Security Links

No question that this good advice which every company should follow.

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

from Texas Bar Today
via Abogado Aly Website

No Tricks, Just Treat – Your Children

Originally published by Eric Navarrette.

trick or treatTrick-or-treating is a Halloween tradition in many households; a tradition where lasting memories are created between parents and their children. Children look forward to dressing up as their favorite princess or superhero, their favorite ghost or ghoul, or their favorite monster or goblin; parents look forward to ever-lasting pictures and memories.

What happens when a divorce or separation gets in the middle of Halloween fun?

Nothing, unless you let it.

This year Halloween falls on the 5th weekend of the month.  Parents who have possession of their children pursuant to a Standard Possession Order will have their children on Halloween.  After this year, Halloween will not be part of the Standard Possession Order periods of possession until Thursday, October 31, 2019.  The fact of the matter is that it should not matter whose “weekend” it is.  Do not make Halloween about whose weekend it is; make it about the children’s experiences.

Halloween is about the children. Parents should not compete when it comes to purchasing the children’s costumes; it is their costume, let them pick it.  The children get to choose their costumes; they should not have to choose which parent they will spend Halloween with.   Parents should work together to set the children’s expectations as to who they will go trick-or treating with – one parent, both parents or no parent [because they are going with their friends].

While it is understandable that it may be impractical to share all Halloween activities or go trick-or-treating together, it is not impractical for each parent to enjoy the children in their costumes.

Remember, Halloween is not a “standard” holiday found in a Standard Possession Order, and unless otherwise agreed, it typically is not in any order. With Thanksgiving and Christmas on the horizon, parents can set the tone for their co-parenting relationship through the holidays during Halloween. Parents can mutually agree to Halloween plans that may be better than any child’s favorite candy.  Parents have the opportunity to set aside the “tricks” on the other parent, and “treat” their children to a full day of Halloween fun.

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

from Texas Bar Today
via Abogado Aly Website

Opinions, October 27, 2015: Extension & Dissension

Originally published by maknox.

This is interesting. In In re Bowers, No. 14-15-00021-CV, Clinton Bowers filed his pro se appellate brief challenging the division of property in his divorce, after his brief deadline had been twice extended. The Court of Appeals issued an order finding his brief did not substantially comply with TRAP 38.1 and granting him 30 days to file a corrected brief. The day before the 30 days was up, Mr. Bowers filed a motion for extension which did not state a reason for the extension or the length of time requested.

The majority of the panel, Justices Jamison and Wise, denied the motion for extension and dismissed the appeal for want of prosecution. Justice McCally filed a dissent, arguing dismissing the appeal was an unwarranted death penalty sanction, Mr. Bowers was clearly trying to prosecute his appeal, and that the better course of action would be to set a date by which Mr. Bowers’ corrected brief was due. It just goes to show that failure to comply with what may seem like small procedural details can have very negative consequences, even for pro se litigants.

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

from Texas Bar Today
via Abogado Aly Website

We’re All Contract Appellate Lawyers

Originally published by D. Todd Smith.

15650921676_b57be1fb4b_oEvery so often, I hear about someone looking for a “contract appellate lawyer” to help with a particular case. Most of these inquiries are from other attorneys, but they sometimes come directly from the person in need of legal services.

A contract is fundamental to the relationships that provide business to appellate lawyers. In that sense, we’re all engaged on a contract basis. So, I’m left to wonder, what does the phrase “contract appellate lawyer” really mean? Let’s consider some possibilities.

Appellate Lawyer as Subcontractor

A trial lawyer’s agreement with what I call the “end client” often allows the lawyer to hire additional counsel to assist with that client’s case, subject to ethics rules. This permits the trial lawyer to bring a specialist on board when needed and therefore serve the client better. Under these circumstances, appellate counsel’s role can take any number of forms: from behind-the-scenes litigation support to co-counsel in the trial court to lead counsel on appeal.

This might be the kind of relationship trial counsel seeks when looking for a “contract appellate lawyer.” At some level, though, the description implies that the trial lawyer wants someone else to handle the heavy lifting—such as reviewing a record, researching, and drafting a brief—while maintaining total control over the case and a tight reign on costs.

Appellate Lawyer as Unbundled Legal Service Provider

The end client may wish to hire an appellate lawyer directly rather than through trial counsel. This comes up most often when the attorney-client relationship has ended, whatever the circumstances. In this situation, if the client wishes to engage someone to handle an appeal, the “contract” in “contract appellate lawyer” is superfluous.

In some instances, however, the client may want appellate counsel to work with the trial team by performing discrete tasks, such as reviewing and commenting on draft briefs or by helping another lawyer prepare for oral argument. As another possibility, an appellate lawyer who practices frequently in a particular court may add value as local counsel—a role my firm fills with increasing frequency in cases pending before the Third and Thirteenth Courts of Appeals.

Appellate Lawyer as Ghost Writer

Either trial counsel or the end client might simply be looking for a ghost writer—someone to prepare legal documents, without entering an appearance as counsel of record, in exchange for a fee. Coming from a trial lawyer, this is a variation of the subcontracting relationship described above. Different issues arise when the request comes from an end client who wants to proceed pro se and thus seeks a kind of unbundled legal service.

In 2007, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 07-446, which blessed the practice of “ghostwriting” written court submissions for pro se litigants without disclosure. Texas has not yet followed suit, either by rule or ethics opinion, leaving practitioners in the dark as to whether ghostwriting is ethically permissible.

Behind-the-scenes work has its place. For example, the matter may be highly charged from a publicity perspective, or there may be reasons to avoid adding another name to the list of lawyers representing a party. But after spending years honing advocacy skills and building up a solid reputation among other lawyers and judges, most appellate lawyers wouldn’t want to remaining faceless throughout a project. Locking appellate counsel away to churn out work is not our highest and best use. Usually, the end client will benefit more when we are brought out into the open.

Image courtesy of Flickr by bruno.

The post We’re All Contract Appellate Lawyers appeared first on Texas Appellate Law.

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

from Texas Bar Today
via Abogado Aly Website

Refining Memorization Skills

Originally published by lawschool academicsupport.

Memorization comes easily to some; and is loathsome to others. Understanding your learning preferences can help you refine your memorization skills and help you retain information longer. Listening to your inner voice and sticking with what works best for you…

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

from Texas Bar Today
via Abogado Aly Website

Are Your Exempt Employees Really Exempt?

Originally published by Emily Harbison.

As if oil and gas companies didn’t already have enough to worry about, the U.S. Department of Labor’s wage and hour compliance initiative has targeted the oil and gas industry. Recently, numerous Texas-based oilfield services companies have been audited or sued, with several resulting in multi-million dollar payouts to employees misclassified as exempt under the Fair Labor Standards Act. In light of the increased enforcement efforts, we discuss several misconceptions about exemption status and overtime pay.

Who’s Actually Exempt?

Under the FLSA, employees are presumed to be non-exempt, unless a specific exemption applies. Non-exempt employees are entitled to at least the federal minimum wage of $7.25 per hour and overtime pay (one and one-half times their regular rate of pay) for any hours worked over 40 hours in a week. Certain individuals are exempt from the minimum wage and overtime requirements of the FLSA if they are employed as executive, administrative, professional, outside sales, or certain computer employees. The FLSA also exempts certain “highly-compensated” employees who are paid more than $100,000 a year and perform certain duties.

Common Misconceptions

Particularly in the energy industry, companies oftentimes have the following misconceptions about exemption status and overtime pay:

  • If employees are paid a salary, they are automatically exempt. Simply paying a salary does not automatically mean the employee is not eligible to receive overtime. The employee must also perform certain duties to be exempt.
  • An employee’s job title is relevant when determining exempt status. Exempt status depends on the salary-basis test and an employee’s job duties. A job title is not outcome determinative when it comes to determining exempt status.
  • If an employee makes over $100,000, he or she is automatically exempt. In addition to earning $100,000 per year, to qualify for the highly-compensated exemption, the employee must also perform non-manual or office work and perform certain exempt duties.
  • Our competitors classify the position as exempt. Even though competitors may classify certain positions as exempt, if your employees do not meet the salary and job basis test, they should be considered non-exempt employees.
  • Once exempt, always exempt. While a certain position may start off as exempt, the job duties may change over time. Because exemption status can change, it’s important for companies to conduct regular internal exemption audits.
  • A non-discretionary incentive bonus does not have to be included in any overtime calculation. All non-discretionary bonuses, including incentive bonuses, should be included in an employee’s regular rate of pay when calculating overtime.

What Can You Do?

When it comes to exemption status, there are many traps for the unwary. It’s important to be proactive in evaluating exemption status before the DOL conducts its own investigation into your workers or a misclassification lawsuit is filed against your company. And remember, avoid potential liability by following the law, not the practices of your competitors. Of course, don’t forget that the DOL has issued proposed overtime rules, which will likely have an impact on your exempt and non-exempt employees once they become effective.

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

from Texas Bar Today
via Abogado Aly Website

Stop the AI madness!

Originally published by Ryan McClead.

The third law of prediction from the late great Arthur C. Clarke, is that “any sufficiently advanced technology is indistinguishable from magic.”

If Sir Arthur were writing today I think he may have replaced ‘magic’ with ‘artificial intelligence’.

AI has become our modern sorcery.  It’s both our savior and our bogey-man. It will most likely show us how to be better human beings right before it destroys our worthless pathetic lives, because it’s a vindictive demon unleashed by godless computer scientists.

We define AI, like magic, as anything we don’t completely understand.

Is Google artificially intelligent? If not, why not?  You ask it questions, or just type in a few words, and it goes out and returns information from all over the world related to question you asked or the words you entered.

“Well,” you say, “it’s a just complex algorithm running on really powerful servers, that takes into account the words I searched for and their prevalence on certain web pages, and then it returns those pages in order of decreasing popularity.  That’s not really intelligent.”

Most of us do not consider Google ‘artificially intelligent’ because we understand it.  Or more accurately, because we have a general heuristic to explain how it does what it does.

Watson winning Jeopardy?  OMG, it’s AI!  Oh, well actually, the computer was fed the clues in an electronic text format while the other contestants read/listened to them. Then it searched it’s massive data banks for relevant answers and gave a response. Kind of like the “I’m Feeling Lucky” button on Google’s home page, if it provided answers in the form of a question. (What are ‘Pictures of Pamela Anderson?) Incredible, amazing, but if you’re like me somehow less impressive when you know it wasn’t listening or optically reading the questions. Why? It doesn’t really diminish the accomplishment, but it also feels somehow less “intelligent”. I think the problem is that, like the Wizard of Oz, we’re a little less impressed once we glimpse the man behind the curtain.

As an alternative to Clarke’s law, let me submit: “the more you understand how a technology works, the less likely you are to think it is magic/AI.”

So when Altman Weil asks this question about AI, it’s no wonder they get the responses they did.

  • In 2011, a MAGIC computing system called Watson defeated two former Jeopardy! game show champions, demonstrating the power of MAGIC. Since then, Watson’s performance has improved by 2.4 BA-JILLION percent and the IBM MAGIC Group is reportedly working with a number of legal organizations on a variety of MAGICAL applications for the profession. Can you envision a law-focused MAGIC ‘Watson’ replacing any of the following timekeepers in your firm in the next 5 to 10 years?


OK.  So, I may have changed a few of the words in the original question, but I guarantee that’s much closer to the way most respondents actually read the question.
Here’s the thing, the question is flawed on many levels, but primarily because none of the answers are correct.  It’s just as wrong to believe that any of these jobs will be specifically replaced by computers as it is to believe that they will never be replaced by computers.
The correct answer is: AI will enhance, change, and restructure what it means to work in a law firm.  It will change the nature of the work that lawyers and staff do.  It may reduce the workload so that fewer individuals are needed, or it may make it possible for more individuals to do that much more work, but it is quite unlikely that people working in law firms in 5 or 10 years will be doing exactly what they do now.
Is that the same as being replaced by AI?  Is there no need for car mechanics, now that cars are all computerized?  Is Memorial Sloan Kettering Cancer Center firing their doctors now that they’ve rolled out a version of Watson to do cancer diagnosis? Does IBM have plans to use their super-intelligence to phase out the engineers that built their super-intelligence?
It’s time to cut the hysteria surrounding artificial intelligence in law.  It’s not the all knowing super-intelligence that you think it is, but it is here now in many applications and platforms.  It’s not going away and it’s only going to get better over time. The only way that AI is going to replace your job is if you choose to think of it as magic that cannot possibly be understood, and consequently, you remain ignorant of it’s current capabilities and limitations.
The best way to defend your job from the machines is to learn how they work and how to use them to do your job better.  And that is true whether you’re a paralegal, first year associate, partner, secretary, or technologist.

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

from Texas Bar Today
via Abogado Aly Website

Texas: Agreement to arbitrate employment agreement enforceable

Originally published by Gene Roberts.

In Ophthalmic Consultants of Texas, P.A. v. Morales, the Thirteenth District Court of Appeals held that the agreement to arbitrate between an ophthalmology specialist and his employer was enforceable. The employee sought to have the agreement declared invalid on a number of grounds, including the defenses of it being an illusory agreement, it failed for indefiniteness, it was substantively unconscionable, and that the employer waived its right to arbitrate. The Court of Appeals held that the agreement to arbitrate was valid and enforceable.
Thanks to Ronnie Hornberger for bringing this decision to our attention.

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

from Texas Bar Today
via Abogado Aly Website

Monday, October 26, 2015

Pro Bono Week Spotlight Day 1: Casey Burton

Originally published by Amy Starnes.

Casey Burton

The State Bar of Texas, the Texas Access to Justice Commission, the American Bar Association, and others proudly support National Pro Bono Celebration Week (Oct. 25-31). Pro Bono week is an opportunity to educate the public about the good work the legal community is doing to improve the lives of vulnerable Texans and to encourage more individuals to get involved in pro bono support of the legal system.

Today, we are featuring Casey Burton, associate attorney in the Dallas office of Sidley Austin LLP.

Burton has engaged in extensive pro bono legal representation of individuals with intellectual disabilities and related conditions. In particular, he has been instrumental in co-counseling with Disability Rights Texas, a nonprofit legal advocacy agency, in a class action lawsuit against the State of Texas in Steward vs. Texas. Sidley attorneys Yvette Ostolaza and Rob Velvis also are involved with the case.

Steward vs. Texas concerns thousands of Texans with intellectual and developmental disabilities who plaintiffs argue were inappropriately placed and are now languishing in Texas nursing facilities, deprived of their right under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 to choose to live in their communities.

The plaintiffs are represented by three law firms: The Center for Public Representation, Disability Rights Texas, and Sidley Austin LLP. Burton has been instrumental in litigating the Steward vs. Texas case through his tireless work drafting and amending the petition, getting the class certified, defending motions to dismiss, and navigating extensive electronic discovery. He has been indispensable to the case and invaluable in negotiating an interim settlement agreement that freed up more than 300 slots for housing outside of the Texas nursing facilities.

“Casey’s commitment to both our clients and to ensuring persons with disabilities receive the supports and services needed to successfully live and work in the community has been quite remarkable,” said Garth Corbett, senior litigation attorney at Disability Rights Texas. “We are extremely fortunate to have someone of his caliber devoting so much of his time and expertise to our case.”

Show You Care: If your firm would like to learn how it can contribute to the pro bono community, please contact the State Bar of Texas Legal Access Division at (800) 204-2222, ext. 1855, or

Return to the Texas Bar Blog each day this week to read about another Texas pro bono volunteer making a difference in the lives of others.

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

from Texas Bar Today
via Abogado Aly Website

How to appeal amidst a settlement, and how to distinguish away old precedent

Originally published by David Coale.

Ybarra sued the Dish Network, alleging that he received seven calls from it in violation if the Telephone Consumer Protection Act.  The trial court granted partial summary judgment for Ybarra on three of the calls, after which the parties agreed to the dismissal of the remaining claims.  Dish appealed, and Ybarra objected because the final judgment did not reserve Dish’s right to appeal.  Distinguishing the much-criticized case of Amstar Corp. v. Southern Pacific, 607 F.2d 1100 (5th Cir. 1979), the Fifth Circuit concluded: “Amstar only precludes the appeal of a claim directly covered by the consent judgment. Here, claims subject the partial summary judgment are independent of the settled claims. The reservation of a right to appeal [in the settlement agreement] was effective.”  Ybarra v. Dish Network, No. 14-11316 (Oct. 20, 2015).

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

from Texas Bar Today
via Abogado Aly Website

HBA ramps up volunteer services for National Pro Bono Week

Originally published by Hannah Kiddoo.

The Houston Bar Association reports that in Houston alone, nearly half a million people qualify for legal aid based on federal poverty guidelines.

In recognition of National Pro Bono Week, which takes place October 25-31, the HBA is increasing its area volunteer efforts by holding special clinics and events—some of which will continue as permanent fixtures in the group’s ongoing pro bono initiatives.

October 28
Family Law LegalLine,
1-5 p.m., call-in only, 713-759-1133
Volunteers from the Houston Bar Association Family Law Section will answer calls from the public regarding family law legal matters and provide brief legal advice.

October 30
Veterans Legal Clinics
Michael E. DeBakey VA Medical Center, 2002 Holcombe (77030), 1-4 p.m.; walk-in basis
Regional Veterans Affairs Office, 6900 Almeda Rd. (77054), 1-4 p.m.; walk-in basis
Volunteer attorneys will meet with veterans to answer legal questions and conduct intake for continued pro bono representation in civil matters.

Self-Help Divorce Clinic
Harris County Law Library, 1019 Congress (77002), 10 a.m.-2:30 p.m.; by appointment
This event will mark the start of a new permanent clinic for those representing themselves in certain kinds of divorce cases. Attendees should first complete the questionnaire at A member of the Houston Volunteer Lawyers’ staff will call qualified applicants to schedule an appointment.

The HBA is encouraging volunteers to share pro bono moments from the week by using #houprobono and #ABAdayofservice on social media.

For more information, go to or call (713) 228-0732.

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

from Texas Bar Today
via Abogado Aly Website

Mike Maslanka @ Your Desk: Martin Luther King, Jr.

Originally published by Teri Rodriguez.

Mike Maslanka talks about Martin Luther King, Jr. a master persuader — in the latest installment of Mike Maslanka & Your Desk, a video series presented by the State Bar of Texas on its YouTube channel, Texas Bar TV.

View Mike Maslanka @ Your Desk playlist

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

from Texas Bar Today
via Abogado Aly Website

How Can You Be Sure Someone Has Stolen Your Intellectual Property?

Originally published by Vethan Law.

shutterstock_111540788Intellectual property theft is a serious crime, causing great frustration to artists, businesses, and organizations across the globe on a surprisingly regular basis. Just because an individual makes a claim that their copyrighted work has been unfairly used or copied by another does not necessarily mean it really has – the law is complex, and confusion is understandable.

A good example of an intellectual property case is that launched by S. Victor Whitmill, a tattoo artist. As the man who gave Mike Tyson his distinctive inkwork, he went on to file a claim against Warner Bros. Entertainment following the release of The Hangover Part II.


He had obtained copyright for his artwork on Tyson’s face only weeks before The Hangover Part II’s release, and claimed the recreation of it in the movie was infringement. Warner Bros. insisted it was a parody, which would allow the tattoo’s recreation under “fair use” law.

Whitman and Warner Bros. eventually settled out of court for an undisclosed sum. This, however, serves to illustrate the complicated nature of intellectual property.


Knowing your Rights and Taking Action

So, how can you be sure someone has stolen your intellectual property? This can be incredibly hard to know for sure without the assistance of a business lawyer. An experienced attorney will be able to assess the nature of the specific case and identify whether there are grounds to take action.

However, depending on how explicit the theft appears to be, you may be able to have a solid idea of your grounds to take action. For example, if you produce a painting, upload an image of it on your website, and then see another artist has pasted the picture onto their site to pass off as their own, this could be regarded as intellectual-property theft.


What Outcome May you Expect from your Case?

After contacting a lawyer to pursue action, the first step is to contact the suspected offender. A cease and desist letter will be sent, which asks those involved to stop using what is believed to be your work. Following this, depending on the type of infringement, you may be able to achieve the following outcomes:

  • Payment towards your losses
  • A share of the thief’s profits earned from using your intellectual property (if not all of the money altogether)
  • Punitive damages
  • An injunction to prevent the thief from using your creation(s) again in the future, which may also involve pulling a product from sale

If you believe someone has stolen your work for their own gain, contacting a business lawyer is the best way to discover your rights, your chances of a positive outcome, and other essential information.

The post How Can You Be Sure Someone Has Stolen Your Intellectual Property? appeared first on Vethan Law Firm.

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

from Texas Bar Today
via Abogado Aly Website

Is it possible that jurors will be misled by emotional  testimony and gruesome photos? 

Originally published by Douglas Keene.

gruesomeReviewing gruesome photographs and listening to emotional testimony about terrible injuries is something we do routinely. When we need to test their impact in our pretrial research, sometimes mock jurors (and occasionally trial jurors as well) are given the option of not looking at the photographs. They are put in an envelope, the envelope is passed around, and whoever wants to open it can do so. Gruesome photographs can be powerful. So can emotional testimony when seen as sincere and resulting from love and loss. So sometimes it’s hard to understand how research like this can lead to tenure since the answer is obviously “yes” for at least some jurors. But on this sort of work, careers are made, curriculum vitae are built, and academic research programs expand. So it goes.

These Japanese researchers wanted to see how strongly emotional testimony or gruesome photographs would affect eventual verdict decisions. So they gathered 127 participants (38 males and 89 females; aged 18 to 48 years with an average age of 20.83 years; 70 of the participants were over 20 years old and 57 were less than 20 years old) who attended a local university. Participants were asked to complete the Juror Negative Affect Scale (JUNAS) which they describe as an adjective list categorized into four subclass (fear/anxiety, anger, sadness and disgust—and for this study all the adjectives were translated into Japanese and listed in random order). The JUNAS was used to measure participant emotional states prior to the experiment and they rated each adjective on a 5 point scale from ‘not at all’ to ‘extremely’.

Then, jurors were assigned to a condition (photographs either gruesome or not gruesome and evidence either emotional or not) and listened to a trial transcript designed to be a weak case for a guilty verdict. The transcript was of a murder case where a homeless man randomly chose a young female victim and killed her so he would go to prison and have a place to live. Initially the homeless defendant confessed, but later he withdrew his confession and said he was innocent. The transcript (ranging from 20 – 23 minutes to review) contained opening statements, evidence presentations, cross-examination, eyewitness testimony and two kinds of circumstantial evidence. In those participants who were included in the emotional evidence presentation—they were read testimony by the victim’s father about the impact of his child’s death. In those participants who were in the gruesome photos condition, participants saw “six gruesome photographs taken from different angles” while they listened to the transcript being read with a description of the scene for about two minutes. At the end of the transcript, the Prosecutor asked for the death penalty while the Defense attorney asked for acquittal.

Finally, after listening to the transcript, participants again rated their emotional state using the JUNAS (with the adjectives presented in a different order than during the initial completion). They they made an individual verdict decision (guilty or not guilty) and if they chose guilty, they offered a sentencing decision and rated their confidence in their verdict decision (1=absolutely not guilty and 10=absolutely guilty). They were also asked to respond to how convincing the evidence was and how shocking the photos were to them. (Some of the participants did not complete the JUNAS completely and had to be removed from the study. The results are thus based on 112 participants.) Here is some of what the researchers found:

74 participants said the Defendant was guilty [despite the fact the transcript was designed to create uncertainty about guilt] and 38 participants said he was not guilty.

Participants who both heard testimony from the victim’s father and saw gruesome photographs were more likely (79%) to find the defendant guilty than those participants who either heard testimony from the victim’s father or saw gruesome photographs but not both (70%) and those who heard no emotional testimony from the victim’s father and also did not see gruesome photographs were even less likely to find the defendant guilty (46%). In other words, while all the participants heard the same trial transcript—the difference was whether they heard emotional evidence (e.g., the father’s testimony or the gruesome photos).

Emotional testimony was most powerful on guilty verdicts while gruesome photographs alone was a much weaker finding (although still significant) and the researchers think their professionally prepared but still fake photographs may have not been “gruesome enough”. However, when the photographs were combined with the father’s testimony, the power of the effect was startling according to the researchers.

Additionally, the participants who heard the emotional father’s testimony and saw gruesome photos also had more negative emotions on the JUNAS at the end of the experiment. The researchers think this reflects the use of “affect-as-information” whereby since the participants felt badly, they tended to punish the defendant with a guilty verdict.

From a litigation advocacy perspective, this study tells us that if there are both gruesome photographs and emotional testimony in the form of a victim impact statement, it would be good to use both of them during trial. This is likely not a newsflash for you. But the simple explanation the researchers offer may be new to you.

The reason this works is because emotional evidence elicits negative feelings in listeners/jurors and they then want to punish the defendant.

Oh wait. That isn’t news either! What this is though, is recent research that tells us what we believe to be true about the role of anger (what the researchers describe as “negative emotions”) in jurors appears to still be true. When jurors are angry, they look for someone to punish. Sometimes, that person may be your client.

Matsuo, K., & Itoh, Y. (2015). Effects of Emotional Testimony and Gruesome Photographs on Mock Jurors’ Decisions and Negative Emotions Psychiatry, Psychology and Law, 1-17 DOI: 10.1080/13218719.2015.1032954



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

from Texas Bar Today
via Abogado Aly Website

Top Ten from Texas Bar Today: A Rose, A Bicycle Thief, and Taxes

Originally published by Teri Rodriguez.

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

Top Ten Oct 2310. Netflix Being Sued Over ‘Bicycle Thief’ – Gerry W. Beyer @Gerry_Beyer, Law Professor at Texas Tech University School of Law in Lubbock

9. New Law Changes Tax Return and FBAR Due Dates and Broadens Six-Year Statute of LimitationsMary McNulty and Lee Meyercord of Thompson & Knight LLP @ThompsonKnight in Dallas

8. Multiple-Choice Exam Strategies – lawschool academicsupport of the Law School Academic Support Blog

7. Corpus Christi COA Orders Employment Discrimination Case to Arbitration – Beth Graham of Karl Bayer @karlbayer in Austin

6. Who Has The Burden of Proof?Brandon Barnett of Barnett Howard & Williams PLLC @BHWLAWFIRM in Fort Worth

5. “Lead Time” InjunctionsPatrick Keating of Keating PLLC in Dallas

4. Exhibition of a FirearmRobert Guest of Guest & Gray @Guest_and_Gray in Kaufman

3. The New Face of Compensation for Injured WorkersSteven Hollingsworth @Steve_ag99 of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend @AbrahamWatkins in Houston

2. The Right Not to KnowCraig Ball @craigball of Craig D. Ball, P.C. in Austin

1. A Rose by Any Other Name: Texas Court of Appeals Says Nuisance “Symptoms of Discomfort” Require the Same Proof of Causation as “Disease”Michael A. Golemi and Carlos J. Moreno of Liskow & Lewis @LiskowLewis of Houston

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

from Texas Bar Today
via Abogado Aly Website

“Lead Time” Injunctions

Originally published by Patrick Keating.

In some circumstances, a defendant who misappropriated a trade secret can avoid entry of a perpetual injunction prohibiting use of the trade secret.  A “lead time” injunction bars use of a trade secret for a limited period of time adequate to prevent the defendant from gaining a competitive advantage through use of the stolen trade secret.  For example, if a plaintiff’s trade secret could be reverse engineered by a competitor in one year, the plaintiff might only be entitled to an injunction of one year duration (rather than a perpetual injunction).

There is Texas case authority placing the burden of proof at trial on the Defendant to establish that an injunction of lesser duration than a perpetual injunction is adequate to protect the plaintiff’s rights.  See Halliburton Energy Svs. V. Axis Technologies, LLC, 444 S.W.3d 251, 257 (Tex. App.—Dallas 2014, no pet.);  Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958).

photo credit: ISB Meet via photopin (license)

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

from Texas Bar Today
via Abogado Aly Website

Insurance Companies Search Social Media During Property Claim Investigations, Part I

Originally published by Nicole Vinson.

Policyholders are human and social media has really become a way of life for the young and those in their golden years.

Not surprisingly, homeowners and business owners suffering a loss, post about their problems on social media. But consider this: insurance companies are using information gathered from your social media profiles to look for ways to gain information they can turn into a red flag or a reason to delay or deny your claim.
Even if you don’t post one thing about your loss, you may still be under fire by your insurance adjuster about posts placed put on the Internet before you ever even had a problem.

When insurance companies are questioning insureds in a recorded statement, during an initial claim intake or interview, or at examinations under oath, they have already done a detailed evaluation into your public profiles.

To really grasp the power and the magnitude of how posting rants and photos can affect your insurance claim, you would really need to be a fly on…


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

from Texas Bar Today
via Abogado Aly Website

Fifth Circuit Report

Originally published by Steve Sather.

The summer months have been slow at the Fifth Circuit.   August and September’s opinions include an update on a prior opinion about abstention related to a chapter 15, judicial estoppel, mootness of an appeal of a sale order, a motion to compromise, removal of a trustee, recognition of a foreign judgment and issues relating to a homestead.
Bankruptcy; Abstention; Remand

Firefighters Retirement System v. Citco Group, Limited, No. 14-30857 (5th Cir. 8/6/15)

I previously wrote about this case here.    On August 6, 2015, the Fifth Circuit withdrew its prior opinion and issued the present opinion.    The new opinion reaches the same result but clarifies the Court’s ability to review an order remanding a case.    Specifically, the Court stated:

We therefore recognize a limited exception to the nonreviewability provisions of §§ 1334(c)(1) and 1452(b), but only for cases that involve permissive abstention and are related to Chapter 15 bankruptcies.

Opinion, p. 7.

Judicial Estoppel

United States v. GSDMIDEA City, LLC, No. 14-10999 (5th Cir. 8/13/15)

This is a particularly harsh result in a judicial estoppel case.   The Debtor filed chapter 13 in 2009 and confirmed a plan which paid creditors 100% of their claims.   In 2011,while  he filed a False Claims Act case against GSD&M with regard to negotiations over a contract with the Air Force.   In 2013, he completed his plan and received a discharge.   He did not disclose the claims.   Shortly before trial, GSD&M discovered the bankruptcy and moved to dismiss based on judicial estoppel.   The District Court gave the chapter 13 trustee seven days to decide whether to pursue the claims but the trustee declined to do so.   The District Court dismissed and the Fifth Circuit affirmed.     The courts both found that the failure to disclose was not inadvertent and that even though the Debtor paid his unsecured creditors their principal, he did not pay interest on the claims.  As a result, he benefited from concealing the lawsuit.
 Bankruptcy; Mootness
 Petfinders, LLC v. Sherman (Matter of Ondova Limited Company), No. 13-10120 (5th Cir. 8/14/15)(unpublished)
Trustee sold domain name over objection of Petfinders, LLC which claimed an ownership interest.   Petfinders appealed and requested an emergency stay.   The Fifth Circuit granted and then vacated the stay.   After the stay was vacated, the Trustee closed the sale.   The District Court found that the appeal was moot and the Fifth Circuit affirmed.     This case illustrates a very real problem.   Petfinders claimed that it owned the domain name.   However, because the name was sold and the stay was vacated, the appeal was dismissed as moot.   This raises the question of whether this result allowed the bankruptcy estate to arguably sell property it did not own.
Bankruptcy; Compromise
This case involved a chapter 11 trustee’s settlement with a secured creditor.   Chase asserted that it was oversecured and thus entitled to post-petition interest or that it had an administrative claim for failure of adequate protection.   The Committee asserted that Chase was undersecured and not entitled to post-petition interest.   The chapter 11 trustee reached an agreement with Chase to give it a post-petition claim of $5 million, of which $3.6 million would be secured and $1.4 million would be administrative.    The Court approved the settlement over the Committee’s objection.  The Court also declined to rule upon a motion to determine secured claim filed by the Committee.   The trustee then proposed a plan which Chase voted to approve.   The Committee argued that Chase was not impaired and should not be allowed to vote.   The Court confirmed the Plan.        The District Court affirmed.  The Fifth Circuit found that the issue on impairment was waived.    The Court found that the settlement was within the range of reasonable outcomes because there was some probability that the trustee could lose.
Bankruptcy; Trustee Removal
This is the case of a chapter 7 trustee who was removed from all of his cases after he requested reimbursement for travel expenses which included expenses for an extended trip to New Orleans to prepare for an oral argument.    Although the Trustee’s wife was to argue the case, both the trustee, his wife and their two children accompanied him.   In total, the family spent five days in New Orleans, including two days where no work was done on the case.    When the trustee asked to be reimbursed for his firm’s expenses, he did not itemize the costs.   When he did itemize the costs, he lumped all of the travel expenses together, even though he had broken them out separately in seeking reimbursement from his firm.    The Court disallowed most of the travel costs and issued a show cause order as to why the trustee should be removed.   It was not until the hearing on the show cause order that the trustee disclosed that he had brought his children along.    The Court found that the Trustee had breached his fiduciary duty to the estate by not objecting to his firm’s expenses.   The Court found that this was intentional, based in part, upon two prior incidents in which the Trustee had placed his firm’s interests ahead of those of the estate.    The Fifth Circuit affirmed, finding that the Trustee had adequate notice and that cause had been shown.    The Court found that 11 U.S.C. Sec. 324(b), which requires that a trustee be removed from all of his cases if he is removed from one case was constitutional.
The Court concluded its opinion with the observation that:
The district courts and in turn the bankruptcy courts are the keepers of the temple. These courts rely on the bar to abide by its strict rules and norms of conduct. Bankruptcy practice presents many tasks attended and girded by strict identity of duty and diligence by its officers. The courts below were only minding their role: not to end, but to redirect a distinguished presence at the bar, and to give sustenance to necessarily demanding norms of practice. That this is expected does not diminish its importance.

Opinion, p. 23.

Recognition of Foreign Judgment

Dejoria v. Maghreb Petroleum Exploration, S.A., No. 14-51022 (5th Cir. 9/30/15).

This was not a bankruptcy decision, but it raises interesting issues about recognition of foreign judgments.    Dejoria was sued in Morocco over a failed business deal.   The Moroccan Court ruled against him and granted judgment for 122.9 million.   Dejoria sued to prevent domestic recognition of the Moroccan judgment under the Texas  Uniform Foreign Country Money Judgment Act.   The case was removed to U.S. District Court.  Dejoria argued that the Moroccan judicial system does not provide due process, that Morocco lack personal jurisdiction over him and that the Court should decline to recognize the judgment because Morocco does not recognize Texas judgments.    The District Court denied recognition of the judgment on the basis that the procedures followed by the Moroccan court were not compatible with due process.    It did not reach Dejoria’s other arguments.
Under the Texas statute, a judgment can be denied recognition if the “system does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”    The Court found that while concerns have been raised about the independence of Morocco’s courts that there was not pervasive anti-American sentiment, that American law firms do business in Morocco, that Moroccan attorneys are willing to represent unpopular figures and that the Courts do not routinely disregard constitutional provisions or the rule of law.   The Court also found that Dejoria’s personal jurisdiction and non-recognition of Texas judgment arguments were not supported by the record.

Bankruptcy; Lien Avoidance; Homestead

Moser v. Schachar (Matter of Thaw), No. 15-40321 (5th Cir. 9/30/15)(unpublished).

Trustee and debtor’s spouse claimed that judgment lien was canceled under Texas statute when debtor received discharge.    The Court found that Texas Property Code Sec. 52.042 “acts on the status of any liens against the land or assets held by the debtor after the bankruptcy process has come to a close.”    Opinion, p. 7.   As a result, Trustee could not sell property and distribute proceeds free and clear of interest of judgment lien holder.    The Court cited a recent decision from the Bankruptcy Court for the Western District of Texas, Studensky v. Buttery Company (In re Argubright), 532 B.R. 888 (Bankr. W.D. Tex. 2015) in reaching its conclusion.
Separately, the Court ruled that the property in question was not the debtor’s homestead where they still resided in their previous residence at the time of bankruptcy.   Because the debtor had not abandoned the existing homestead, the second property could not become homestead.

Final Note:

A paragraph or two is not sufficient to do justice to many of the opinions discussed here.   When the attorneys spend hundreds of hours in briefing and the court spends months reviewing and deciding, a lot of thought went into the controversy.   Unfortunately time and space do not allow me to give the opinions the attention they might deserve.   Please consider these summaries an invitation to click on the link to the case and read further.

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

from Texas Bar Today
via Abogado Aly Website