Monday, November 30, 2015

Family donates only known complete collection of original Bar Journals

Originally published by Lindsay Stafford Mader.

On a beautiful autumn day in November, Ed Pickett drove from his office in Liberty to the Texas Law Center in Austin with a car full of treasure. Accompanied by his wife, Sandra, Pickett arrived at the State Bar of Texas headquarters and then headed into the underground parking garage, backed into a spot near the elevators, and popped the trunk of their sedan to unveil something quite miraculous by today’s standards: his family’s collection of Texas Bar Journals dating back to the magazine’s very first issue in 1938.

IMG_5111

The assortment was started by Ed’s grandfather, Edward B. Pickett III, who graduated from the University of Texas School of Law around 1899 and practiced law in Liberty until his death in 1951. It was continued by Ed’s attorney father and then by Ed and his brother, attorney Carl N. Pickett, and later by Carl’s son, attorney Logan Pickett.

Being only 11 years old when E.B. Pickett III died, Ed doesn’t recall exactly why his grandfather stored the magazines year after year.

“He kept everything, so why not keep Bar Journals,” he said. “There are lots of interesting things in there. I enjoyed being able to follow what’s happening to old friends. You don’t see many of my contemporaries any more in the Journal. They’re all pretty much retired.”

The Pickett family decided to donate the magazines to the State Bar of Texas Archives Department, which—although it is the official archives of the magazine—had an incomplete supply of unbound Texas Bar Journals. Until now.

“Our collection of unbound, original Bar Journals is pretty scattered up until about five years ago,” said State Bar Archives Director Caitlin Bumford. “This is going to be essential to help us fill in the gaps and have things that we can scan as needed. And even seeing the covers—the full covers of all the Bar Journals—is going to be excellent. In addition to being information sources, they’re artifacts; the physical items are of value.”

The archives department does have two complete runs of bound magazines, which consist of black and white copies of each year’s 11 issues bound by year in a hard cover. Unbound Bar Journals, the format mailed to every member of the State Bar, are most familiar to the state’s attorneys. The Picketts stored their magazines in binders for safekeeping.

The Pickett family’s Texas Bar Journals were first kept in E.B. Pickett III’s office in the second story of a non-air-conditioned brick building with wood floors and a clothing store underneath. When the current Pickett law office was built in 1951, the collection was moved there. The firm’s law library is diverse and expansive, featuring leather-bound Southwestern Reporters dating back to the first issues as well as a range of books on topics from speech writing to politics. According to Ed’s wife, he is the “pseudo archivist” of the firm.

“He is intent on making sure things are organized where people can get to them, that he can find them, and that they’re going to be preserved in good condition,” Sandra said.

On the day they donated the magazines to the State Bar of Texas, Ed and Sandra sat in the basement of the Texas Law Center, where the archives department is housed, and told Bumford and current TBJ staff about their family history. The first Edward B. Pickett, Ed’s great-great-grandfather, came to Texas from Tennessee around 1850 after fighting in the U.S.-Mexican War. He was passing through Liberty and realized he liked the town, so he went back to Tennessee, married his wife, and returned to Texas to open a law office in one of the first brick buildings in Liberty—where the Bar Journal collection would eventually be started. Pickett went on to fight in the Civil War and serve as president of the Texas Constitutional Convention of 1875, followed by time in the Legislature.

“The only negative in his history,” Ed joked, “was that he was the first president of the board of Texas A&M; I’m a Longhorn.”

The first E.B. Pickett had a son, who was not a lawyer but was a district and county clerk. Then came Edward B. Pickett III, Ed’s attorney grandfather who started the TBJ collection, followed by Ed’s father, who also practiced law in Liberty. Ed practices real estate, business, and probate law, while Carl Pickett is an attorney, a CPA, and the mayor of Liberty. Logan, Carl’s son, practiced with the family firm for a while but then realized he preferred criminal law. He is now district attorney of Liberty County and one of the youngest DAs in Texas.

In addition to its Bar Journal donation, the Pickett family also recently donated to UT’s Tarlton Law Library their grandfather’s correspondence records, which they estimate to be the only such collection of a 20th century lawyer. Ed said the documents are on original letterheads, which in those days were more ornate, and his outgoing correspondence was on carbon paper.

“The most interesting thing,” Ed said, “is how people spoke and wrote in those days. It was much more flowery language.”

Because Ed and Sandra couldn’t fit the entire Bar Journal collection in their car, they will be delivering the remaining magazines, dating from 1990 onward, in the new year.

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



from Texas Bar Today http://ift.tt/1IkGIyG
via Abogado Aly Website

Yet Another Case of a Medical Instrument Left Inside a Patient

Originally published by Misha.

Medical-Instrument-in-Body-Wormington-and-Bollinger-Texas-LawWhen we check into a hospital or healthcare clinic for a surgery of any kind, we are putting our trust in the surgical staff and doctors. Undergoing a surgery can be an intimidating and scary experience, regardless of what type of operation is being performed. Unfortunately, we have seen an increasing number of medical malpractice cases over the years, many of which involve medical instruments being left inside the patient. The notion that a trained and capable doctor can make such a huge mistake and actually leave an item inside a patient is shocking, but not uncommon.

Just recently, a Turkish woman discovered that the doctors had left surgical scissors inside her body some five years ago after she was treated for uterine cancer. For five long years the woman lived in agony and discomfort, not understanding where the source of pain was coming from. The operation she underwent was considered routine, yet the doctors made a huge error that impacted the woman’s quality of life for the next five years. She was told the pain was part of her recovery, only to discover just this year that was not the case. She is now suing for malpractice.

How Common Are These Cases?

According to a report by Johns Hopkins University, more than 4,000 people a year have surgical instruments or equipment left behind in their body after undergoing routine surgeries. This is an eye-opening figure that highlights this growing problem. As leading McKinney medical mistakes attorneys, we understand how devastating these types of cases can be. In fact, medical malpractice is the third leading cause of death in the United States. There are many different types of medical malpractice, all of which are extremely serious and can have lasting, long-term effects on the patient and their loved ones.

Some of the most common surgical instruments that are left inside the body after an operation include the following:

  • Scissors, tweezers, and needles
  • Sponges
  • Gauze
  • Retractors
  • Clamps and forceps

While it is true that many of the patients who leave the hospital with surgical items in their bodies never have any issues, this isn’t always the case, as we saw with the case mentioned above. The consequences of patients carrying surgical sponges, scissors, or other instruments around in their bodies are enormous. Side effects can range from searing pain to digestive dysfunction, infection, puncture of internal organs, and even death.

If you or a loved one had a surgical instrument left in your body, chances are you will be able to file a medical malpractice claim. These type of incidents are considered ‘never events’ because they are always preventable. There is absolutely no reason that a surgical instrument should ever be left inside a patient’s body, yet it happens all the time. In the event a surgical instrument is left inside the body and the patient is injured as a result, both the hospital and surgeon may be held accountable. To learn more about Wormington & Bollinger’s medical malpractice services, please contact us today.

The post Yet Another Case of a Medical Instrument Left Inside a Patient appeared first on Wormington & Bollinger.

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



from Texas Bar Today http://ift.tt/1l3wFE0
via Abogado Aly Website

New CFTC Proposed Rules on Algorithmic Trading

Originally published by Robert E. Pease.

On November 24, 2015, the Commodity Futures Trading Commission (CFTC) unanimously approved its long awaited Notice of Proposed Rulemaking (NOPR) on automated trading.  The commodities markets have faced a number of unexpected volatility incidents over the past few years, most notably the May 2010 flash crash.  Beginning in 2011, the CFTC raised a number of […]

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



from Texas Bar Today http://ift.tt/1Tpanrv
via Abogado Aly Website

The Future of Per Se Antitrust Liability

Originally published by Barry Barnett.

Boycott SignLeegin as wrecking ball?

Since the Supreme Court struck down an almost century-old rule of per se antitrust liability in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007),* defense lawyers have tried to turn a single sentence from Leegin into a per-se category killer.

A per se case is simpler than the “rule of reason” approach, costs millions of dollars less to try, and has greater odds of success with a judge or jury. Unlike the rule of reason, per se:

  • does not require an economist to opine about the relevant product and geographic markets;
  • obviates the need to prove that the defendants had market (or monopoly) power or that their conduct was anticompetitive;
  • simplifies proof of damages; and
  • precludes defendants from claiming, and presenting evidence, that their agreement enhanced competition.

You would expect a kindly hearing from the Fifth Circuit — a court that, despite President Obama’s six years of judicial appointments, still counts twice as many Republican (10) as Democratic (5)  appointees in active service. But would the court drink the Kool-Aid?

No, the court answered on November 25.

A boycott of steel

The ruling came in a “group boycott” case by an upstart steel distributor against incumbent competitors and their steel-making suppliers.

In MM Steel, L.P. v. JSW Steel (USA) Inc., No. 14-20267 (5th Cir. Nov. 25, 2015), the new firm, MM Steel, alleged that steel-makers JSW, Nucor Corporation, and SSAB conspired with distributors to run MM out of business by refusing to fill its orders. MM settled with several of the defendants before trial but after six weeks of evidence won a verdict against Nucor and JSW. The jury awarded MM damages of $52 million, which the district court trebled, as section 4 of the Clayton Act provides.

On appeal, Nucor and JSW raised two main points (the distributor defendants having settled post-verdict). They argued, first, that MM failed to prove that they knowingly joined a conspiracy to boycott MM and, second, that Leegin barred treating group boycotts among horizontal competitors of the plain tiff  as a per se violation of the Sherman Act.

The Fifth Circuit held that the evidence supported the boycott claim against JSW but not Nucor. No reasonable jury could find, the court ruled, that Nucor did anything more than continue a pre-boycott policy of favoring another steel buyer, Chapel, over a newer customer like MM. MM Steel, slip op. at 11-15.

Per-se appeal

But the big moment came in the panel’s handling of the per-se versus rule-of-reason question. The dissent by Second Circuit Judge Dennis Jacobs in Apple Inc. v. United States, 791 F.3d 290, 346-47 (2d Cir. 2015),** provides an excellent set-up, as follows:

The most recent and explicit signal is given in Leegin, which explains that “the Sherman Act’s prohibition on ‘restraints of trade’ evolves to meet the dynamics of present economic conditions,” such that “the boundaries of the doctrine of per se illegality should not be immovable.” 551 U.S. at 899-900 (alterations omitted). Leegin held that a manufacturer did not commit a per se violation of § 1 when it agreed with several retailers on a minimum price that the retailers could charge–a holding that overruled a century-old principle articulated in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911). See Leegin, 551 U.S. at 881. Leegin reasoned that Dr. Miles had “treated vertical agreements a manufacturer makes with its distributors as analogous to a horizontal combination among competing distributors,” but that, “[i]n later cases, . . . the Court rejected the approach of reliance on rules governing horizontal restraints when defining rules applicable to vertical ones.” Leegin, 551 U.S. at 888. Dr. Miles was held to be inconsistent with “[o]ur recent cases[,] [which] formulate antitrust principles in accordance with the appreciated differences in economic effect between vertical and horizontal agreements, differences the Dr. Miles Court failed to consider.” Id.

Although the express holding of Leegin does not extend beyond the overruling of Dr. Miles, the Court’s analysis reinforces the doctrinal shift that subjects an ever-broader category of vertical agreements to review under the rule of reason. The Court first stated the subsisting scope of per se liability: A horizontal cartel among competing manufacturers or competing retailers that decreases output or reduces competition in order to increase price is, and ought to be, per se unlawful. Leegin, 551 U.S. at 893. The Court then rejected per se liability for hub-and-spokes agreements, in wording that prescribes rule-of-reason review of vertical dealings that facilitate per se unlawful horizontal agreements (the type of agreement that the district court found Apple had undertaken):

To the extent a vertical agreement setting minimum resale prices is entered upon to facilitate either type of cartel [among 17 manufacturers or among retailers], it, too, would need to be held unlawful under the rule of reason.

Id. (emphasis added). After Leegin, we cannot apply the per se rule to a vertical facilitator of a horizontal price-fixing conspiracy; such an actor must be held liable, if at all, “under the rule of reason.” Id.

Like Judge Jacobs’ two colleagues on the Second Circuit panel in Apple, the unanimous Fifth Circuit judges rejected the Leegin wrecking-ball hypothesis. Judge Stephen A. Higginson, writing for the panel, first reviewed several pre-Leegin rulings by the Supreme Court in group boycott cases. He then delivered the ruling as follows:

We decline to hold that the Supreme Court silently overruled this line of cases by stating that vertical agreements to regulate prices that facilitate horizontal agreements to regulate prices “too, would need to be held unlawful under the rule of reason.” Leegin, 551 U.S. at 893; see also Anderson News, LLC v. Am. Media, Inc., 680 F.3d 162, 183 (2d Cir. 2012) (recognizing, post-Leegin, that, under Klor’s [v. Broadway-Hale Stores, 359 U.S. 359 U.S. 207 (1959)], per se liability applies to group boycotts with horizontal and vertical components). But cf. Toledo Mack Sales & Serv., Inc. v. Mack Trucks, Inc., 530 F.3d 204, 225 (3d Cir. 2008) (holding that under Leegin per se liability did not apply to vertical agreements between manufacturers and distributors to refuse to deal with distributors that were not part of a horizontal price-fixing conspiracy, but not finding that the manufacturers joined a horizontal group boycott). The district court did not err when it instructed the jury that if they found that the manufacturers joined the conspiracy between the distributors, the manufacturers were per se liable for a § 1 violation.

MM Steel, slip op. at 18.

Significance

The Fifth Circuit’s rejection of the Leegin as per se category-killer hypothesis comes fast in the heels of the Second Circuit’s like ruling in the Apple e-books case and signals a low probability that other courts of appeals will embrace the argument. The Third Circuit’s early reading of Leegin in Toledo Mack Sales may stand as the high water mark for interpretation of Leegin as potentially portending further cuts in existing per-se liability categories.

The Supreme Court of course stands a little offstage, for now at least. It could take up cudgels on per-se v. rule of reason again in Apple (with thanks to our friends at SCOTUSBlog). Facing a $156 million judgment, JSW also may well take a shot at high court review.

But the Court has not shown much interest lately in remaking substantive antitrust law, preferring to tinker in antitrust cases with procedural machinery involving motions to dismiss (Twombly), appeals in multi-district proceedings (Gelboim v. Bank of Am. Corp.), and class actions (Comcast Corp. v. Behrend) and in one case rejecting an effort to limit liability for antitrust conspiracies (American Needle).***

________________

Supremes Kill Dr. Miles, Dance on His Grave.

** Per Se Melee in E-Books Case — Part 2.

*** See also The Antitrust Lawyer’s Guide to the Supreme Court’s No-Antitrust Term.

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



from Texas Bar Today http://ift.tt/1juVOpB
via Abogado Aly Website

Under a Standard Fire Policy, Intentional Conduct May Be Covered

Originally published by Brandee Bower.

In a case out of Illinois, an issue was raised regarding the exclusion for intentional conduct when a fire was started at a home.
Metropolitan Casualty Insurance Company issued a homeowners policy to the Streits for their home in Illinois. During the policy period, a fire damaged the home and it was uninhabitable. The Streit’s son admitted to starting the fire, pled guilty to criminal charges and went to prison. At the time of the fire, he lived at home with his parents. The Streits submitted a claim to the insurance company. The policy stated:

4. Under SECTION 1 – LOSSES WE DO NOT COVER:

A. item 1. Intentional Loss exclusion is delete and replaced by Intentional

Loss, meaning any loss arising out of any intentional or criminal act committed:

1. by you or at your direction; and

2. with the intent to cause a loss. This exclusion applies regardless of whether you are actually charged with or convicted of a crime. In the event of such loss, no one defined as you or your is…

.

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



from Texas Bar Today http://ift.tt/1lqp1mM
via Abogado Aly Website

Houston Legal Links 11/30/2015

Originally published by Mary Flood.

Top legal news includes: Rep. Reynolds explains GoFundMe page following barratry conviction; Texas to refugee groups: If you let in a Syrian, we might sue you; Suicides and attempts on the rise in Texas prisons; Texas AG Paxton defense: ethics panel studying donor financing; Houston Judge Massengale to Take On Sitting High Court Justice Lehrmann (Texas Lawyer); Parents of dying girl arrive from Pakistan; Fort Bend sheriff pushes back against criticism over jail suicides (Chron subsc); Texas Lawmakers Seek Abbott’s Blessing on Oil Theft Crackdown; One of these men will be the next mayor of Houston (Chron subsc); Survey: 65 Percent of Texas Managing Partners ‘Somewhat Optimistic’ About 2016 (Texas Lawyer); Schlumberger’s Suit over Alleged Trade Secret Theft Goes to Texas Supreme Court (Texas Lawyer); Cow statue returns to Children’s Museum of Houston; 12 fall ill after mysterious leak at SW Houston; Waco judges consider fines for jury summons scofflaws; El Paso man arrested after department store melee over TVs; As Detained Immigrants Hold Hunger Strikes, Results Aren’t Guaranteed; Air Liquide CEO: Oil slump spurs new fracking trend; Pemex credit cut hasn’t shaken investor faith in government backing & Warplanes hit tank trucks to disrupt Islamic State oil trade.

For the water cooler: Is Reese Witherspoon’s name entitled to trademark protection? Judge weighs claims in actress’ suit; Shoplifting suspects opt for $500 course because of company’s misleading statements, suit alleges; Different Perspectives On The Racial Unrest At Harvard Law School; Class-Action Attorneys’ Fees Under Fire; Really Bad Murder Plot Uncovered Partly by Spelling Mistake; When Cops Do Their Jobs, Black People Die; Kentucky governor restores voting rights of over 100,000 felons, but does he have power to do so? & Teenager whose prank calls sent armed SWAT teams to dozens of US homes got 16 months.

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



from Texas Bar Today http://ift.tt/1OqTFIr
via Abogado Aly Website

Enforcing Texas Non-Compete Agreements Against Employees in Other States

Originally published by Leiza Dolghih.

noncompeteFor Texas companies, enforcing non-compete agreements in other states can be tricky since each state has its own rules about what makes a non-compete enforceable, and some states do not allow them at all. Therefore, any Texas company with out-of-state employees should ask two questions about its employees’ non-compete obligations: 

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



from Texas Bar Today http://ift.tt/1OA9Ykc
via Abogado Aly Website

Supreme Court Ruling Will Impact Recoveries of Injured Victims

Originally published by William K. Berenson.

Thumbnail image for Gavel

Are ERISA Plans Entitled to Reimbursement of Already-Distributed Funds?

The U.S. Supreme Court heard a very important case that will have a substantial impact on personal injury verdict and settlement recipients. The court heard arguments earlier this month and is expected to release a decision this spring.

The case, Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, involves the question of whether an ERISA fiduciary can recover money the plan claims it overpaid to the injured party/pan participant if the funds are no longer in the participant’s possession and control.

The Case that Could Change Subrogation Rules

Robert Montanile was an ERISA plan member. When he was seriously injured in a car wreck, his ERISA plan paid him $120,000 in medical benefits. With the assistance of a personal injury trial attorney, Montanile won a $500,000 settlement. The ERISA plan then demanded repayment of the $120,000 in a subrogation claim. Montanile and the ERISA plan were unable to reach an agreement and the plan sued.

The trial court ordered Montanile to repay the money, a decision that was upheld by the circuit court. The case has now reached the Supreme Court.

Montanile argued that he could not repay money he had already spent. Instead, he claimed, he should only be responsible for paying back settlement funds that remain in the plan’s possession. The example presented during an exchange with Justice Breyer is that if Montanile’s ERISA plan account contained only $10, then the plan would only be entitled to $10. Since Montanile had already disbursed the money, the plan is not entitled to claw it back.

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



from Texas Bar Today http://ift.tt/21p62K5
via Abogado Aly Website

Wednesday, November 25, 2015

So Many Reasons to Give Thanks

Originally published by Tim O'Hare.

by Tim O’Hare

Follow The Law Offices of Tim O’Hare on Facebook, Twitter, LinkedIn & Google+.

Thanksgiving is once again upon us, and as I reflect on the past year, I am reminded just how many reasons I have to be grateful. I have been reflecting on the many blessings I have in my life, each of them, a reason to give thanks.

Here are just a few of the things for which I am grateful this year.

I am thankful for our Savior. Without CHRISTmas, we could not truly have Thanksgiving, so during this season, I find so much gratitude in the hope I have in Jesus Christ.

I am thankful for my loving wife and to have a happy home with my family where we share so much love.

I am thankful for three healthy little girls. Being a father is the most important job I will ever have, and I’m thankful the Lord entrusted these three souls to their mother and I.

I am thankful for my job and for all of our clients, past and present. I am blessed to have the opportunity to walk with clients through some of the most trying times of their lives. It is my honor to serve them and to be a small part of their journey.

I am thankful for our country and for Texas. Lest we not forget the freedoms we are afforded in this great nation, and may we always strive to protect those freedoms.

Thanksgiving is a season to reflect, but it’s important that gratitude remains a consistent attitude, all year long, not just during this season. Living a life of thanksgivings shifts my perspective from the things that may be going wrong in life to the many blessings I do have.

As Americans we are among the most blessed in the world. More important than that, however, I believe we should consistently remember the blessings bestowed on us by our Father in Heaven, the blessings of family, friends, faith and ultimately, the hope of salvation through Jesus Christ.

With that in mind, from the O’Hare family to yours, HAPPY THANKSGIVING!

The post So Many Reasons to Give Thanks appeared first on .

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



from Texas Bar Today http://ift.tt/1Skwn62
via Abogado Aly Website

The Continuing Struggle Over Class Action Waivers in Arbitration

Originally published by Robert L. Arrington.

14066870836_257d8bb468_b

The issue of mandatory arbitration of employment and consumer disputes continues to be controversial. The principal bone of contention appears to be the requirement that the employee or consumer waive the right to participate in class or collective actions, so that his or her sole recourse is the pursuit of individual claims in arbitration. No matter how employee- or consumer-friendly the arbitration provision is, if it contains a class action waiver, neither the plaintiffs’ bar nor consumer advocacy groups will like it.

But such provisions have survived judicial scrutiny in cases governed by the Federal Arbitration Act. In AT&T Mobility v. Concepcion, the Supreme Court held the California rule that a class-action waiver is per se unconscionable could not be used to avoid an agreement to arbitrate because it discriminated against arbitration and was thus contrary to the public policy in favor of arbitration enacted in the FAA. 563 U.S. 333 (2011). Thus, the opponents of employment and consumer arbitration were pushed into other avenues, legislative and regulatory, to voice their displeasure.

They have not had much success in Congress. Numerous bills to preclude pre-dispute consumer and employment arbitration agreements have been introduced in Congress but have not advanced very far. The Dodd-Frank Act, passed in 2010, however, did command both the SEC the consumer protection agency it created to study the issue of mandatory arbitration and enact appropriate regulations. The Act also moved prohibits pre-dispute arbitration provisions in mortgage agreements. 15 U.S.C.A. § 1639c(e). Possibly other regulations are forthcoming.

By Executive Order, President Obama has restricted the award of federal contracts to companies that have mandatory arbitration plans for employees. Exec. Order No. 13673, 79 FR 45309 (July 31, 2014).

Neither of these measures has so far made much of a dent in employment and consumer arbitration.

The National Labor Relations Board got into the act in 2012. In the case of D.R. Horton, Inc., 357 N.L.R.B. 184 (2012), the NLRB held that the adoption of a mandatory arbitration plan for employees containing a class and collective action waiver was unlawful because such provisions are an unfair labor practice under Section 7 of the National Labor Relations Act, which protects the right of employees to act in concert.

D.R. Horton petitioned for review of this ruling by the United States Court of Appeals for the Fifth Circuit, which overturned the Board in 2013. D.R. Horton, Incorporated v. National Labor Relations Board, 737 F.3d 344 (5th Cir. 2013). The Court held the FAA and the Supreme Court’s decisions interpreting it prevailed because the NLRA was not intended to repeal the application of the FAA by implication.

The NLRB did not accept the Fifth Circuit’s decision. It struck down a similar dispute resolution plan in Murphy Oil USA, Inc. and Sheila M. Hobson. Case

10–CA–038804 (October 28, 2014). Murphy Oil asked the Fifth Circuit to review the ruling, and the Board petitioned for hearing en banc, hoping to change the Court’s mind. But the Fifth Circuit did not budge. It granted the petition for review, denied the en banc hearing, and overturned the Board’s decision. Murphy Oil USA, Incorporated v. National Labor Relations Board, No. 14-60800 2015 WL 6457613 (2015).

But the NLRB is not going away quietly, although it does appear to have given up on the Fifth Circuit. It decided a similar case in Arizona consistently with its previous holdings in D.R. Horton and Murphy Oil. Amex Card Services Company, Case 28-CA-123865 (Nov. 10, 2015).  Doubtless the Board is hoping its reasoning will fare better with the Court of Appeals for the Ninth Circuit than it did with the Fifth.

The Ninth Circuit is one of three circuits that have cited the Fifth Circuit’s decision in D.R. Horton favorable in dicta. Richards v. Ernst & Young, 744 F.3d 1072, 1075 n. 3 (Ct. App. 9th Cir. 2013). See also, Sutherland v. Ernst & Young, LLP, 726 F.3d 290, 297 n. 8 (2d Cir. 2013) and Owen Bristol Care, Inc., 702 F.3d 1050, 1055 (8th Cir. 2013.) Still, there is the possibility of a split in the circuits, which will mean the issue will ultimately reach the Supreme Court.

In the meantime, and probably thereafter, the debate will continue.

Photo credit: flazingo_photos / Foter.com / CC BY-SA

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



from Texas Bar Today http://ift.tt/21fYCJf
via Abogado Aly Website

Car Accident? How to Find the Right Attorney

Originally published by Bob Kraft.

personal-injury-law-book-gavel

A car accident is one of the worst nightmares that anyone can ever imagine. When something like this occurs “Why me?” might ne the first question that pops in your mind. But this kind of hopelessness is not going to make you come out of this mess. You know what, rather who, can help you put this behind? A LAWYER! Now a host of questions might attack your brain! The following points will help you in finding the right lawyer who will be your guide and savior in this harrowing journey!

  • DO SOME RESEARCH

You need to select the best attorney in your city who will make you win the case. But how do you do this?

  1. Ask your friends and family: Car accidents unfortunately are not a rare occurrence. So ask them about their experiences with their respective lawyers. But do not just go by word of mouth. After you have put together a list of potential lawyers that you can hire, its time for the next step.
  1. Look up their credentials: Its true when they say that you need to be completely honest with your lawyer, even more frank than you are with a friend! But do keep this in mind that at the end of the day, your attorney is not your friend but your counselor whose part in your life is over as soon as he wins the case for you. So you need to judge them by their past track record. Make sure to ask about them from their peers, look for any legal award that they were given and also thoroughly check their certificates.
  1. Passion is necessary:  A lawyer who is passionate about his work gives out the impression to his clients that he is willing to go that extra mile for them. So it is your responsibility to hire someone who will give more priority to your case and less priority to his bank account. Someone who opens your file and finds out that there is no serious injury and also the presence of any kind of vehicle insurance quotes is also nil, but still wants to represent you is the ideal lawyer for you.
  1. Money matters to an extent: Lawsuits are expensive in nature and you need to make sure that you have adequate cash to go forward with the proceedings. Hiring an expert is costly in itself. Then you need to hire a person who can afford to stick with you throughout the legal journey. For that you need to examine his office. Scan his room, see if he has a spacious room and appropriate staff. If by any chance he works in a dingy room in an old dilapidated building, then he is not the right choice for you!
  1. Constant Communication: Please remember that you need to be in constant touch with your lawyer. Whenever it is necessary for either of you to reach out to the other, it should be an easy affair. If he doesn’t return your calls or give prompt (within 24 hours) replies to your emails, then you are in deep trouble. Exchange of important information from client to lawyer and vice versa is deeply crucial for both of you to win the case and lack of this kind of exchange will be the cause of your doom. So appoint someone who is easily available whenever you need him!

Hiring a professional when you are in this deep a mess will help you immensely. A lawyer has extensive knowledge about law which when correctly applied in the courtroom will prove to be the cause of winning your case.

Author Information: Bill Brown is now part of Marketing team of Auto Insurance group. Our group is independent webmasters who are happy to share their experience and knowledge. We are not licensed to give any insurance and financial advice. We hardly know our visitors and their background to offer them tailored advice. We would always suggest that motorists should seek independent advice from a broker or financial advisor. That is what they are for and sites like this can only offer you general guidance, help and encouragement to find the best coverage. You can check our articles at – http://ift.tt/21fYCJ4

The post Car Accident? How to Find the Right Attorney 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 http://ift.tt/1li2GaO
via Abogado Aly Website

Happy Thanksgiving

Originally published by lawschool academicsupport.

All of us with the Law School Academic Support Blog wish our readers a Happy Thanksgiving. We hope that you will be surrounded by friends and family for this holiday. Spend a few minutes listing all that you are thankful…

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



from Texas Bar Today http://ift.tt/21fGFdE
via Abogado Aly Website

Will your genetic defense for that violent crime backfire? 

Originally published by Rita Handrich.

genetic defenseThe growing body of research on genetic variations and their relation to crime may leave you uncertain about how to best defend your client charged with a violent crime. Do you encourage jurors to support an insanity defense by using a genetic defense or does that route backfire and leave jurors seeing your client as “different, dangerous, and likely to reoffend”? New research says it isn’t all straightforward and jurors may hear your defense in a way that biases them against your client.

Researchers in Canada conducted three experiments with a total of more than 600 participants to examine the effect a genetic defense for a violent crime might have on the listener. The researchers offered variations on a nature versus nurture defense in a (fictional) murder committed by a college student.

Specifically, one group read that the defendant had a genetic variation associated with aggression and violent tendencies (i.e., MAOA which is also nicknamed “the warrior gene”).

The second group read that the defendant had been beaten as a child by his single mother and grew up in a neighborhood populated with gangs. Both of the first two groups were told that either a genetic (i.e., nature) or environmental (i.e., nurture) background could result in a four-fold increase in the likelihood of violent behavior.

The third group (a control group) read about the murder but did not receive any information on the defendant.

The researchers spend some time explaining the concept of mens rea:

“a legal concept pertaining to one’s malicious intent and volition to commit a crime” is necessary for a conviction. Perceiving someone’s actions as being beyond their control likely leads to the perception that the perpetrator lacked mens rea”.

Here is what they found across three studies (with both online recruits and university students as participants):

The group of participants who saw the genetic explanations for the murder were more likely to see the Insanity defense and Diminished Capacity defenses as legitimate than were those in the environmental explanation condition.

Those who were in the genetic condition also saw the perpetrator as less in control over his actions and less likely to be truly intending to harm the victim—but the genetic explanation did not change their sense the perpetrator knew the potential outcome of his actions.

Overall, say the researchers, the participants believed that the genetic explanations “diminished the defendant’s agency”. In other words, they explain, “despite knowing that his actions could have killed the victim, he neither was able to control his behavior nor did he really intend to kill the victim”.

Only participants in the third study thought the genetic defense decreased criminal responsibility. However, the length of the sentences assigned did vary somewhat. Those who had genetic explanations rather than environmental explanations thought the defendant had less conscious behavioral control. At the same time though, genetic defenses resulted in more sense the defendant would reoffend than did environmental defenses and that predicted lengthier sentences (since the defendant would be dangerous).

The researchers see this as the double-edged sword of the genetic defense: Jurors may see your client as less criminally responsible but they are more concerned about recidivism and dangerousness so they will want to lock your client up for a longer time. This is complicated by whether the jurors feel that he is NGRI (not guilty by reason of insanity) or GBI (guilty but insane). A NGRI verdict ends the trial, foregoing a punishment phase, while the latter can result in sentencing.

From a litigation advocacy perspective, this dilemma reminds us of our writings on the psychopath. Telling jurors that your client is a psychopath can be very convincing as a “his brain made him do it” sort of defense. The problem is that people are (fairly enough) very frightened by violent psychopaths, and have the belief that they are not subject to rehabilitation. Punishment is necessarily lengthened as jurors want to remain safe rather than having “that animal” back out on the streets.

It’s a good reason to carefully think through the pros and cons of any defense that leads the listener to see your client as irrevocably damaged. In some cases, your task is to make your client appear to be potentially rehabilitatable so that jurors don’t throw in a lengthy sentence to keep themselves “safe”. In other cases, it is enough to try to achieve a verdict that reflects psychiatrically impairment, instead of a guilty result. If the cause of the ‘insanity’ is a treatable condition, it is a much safer strategy to pursue from a punishment standpoint, but it is also harder to convince a jury of the non-volitional cause.

Cheung BY, & Heine SJ (2015). The Double-Edged Sword of Genetic Accounts of Criminality: Causal Attributions From Genetic Ascriptions Affect Legal Decision Making. Personality & Social Psychology Bulletin PMID: 26498975

Image

Share

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



from Texas Bar Today http://ift.tt/1Ogltz4
via Abogado Aly Website

Happy Thanksgiving!

Originally published by William K. Berenson.

Thanksgiving

Enjoy Bowl Games and Family Dinners … and  Try to Stay Clear of Drunk Drivers 

Thanksgiving is one of my favorite holidays. I thoroughly enjoy sharing a meal with my family and enjoying my blessings.On Thursday night, I’ll hopefully see my Texas Longhorns win and there are a lot of other great games on this weekend. Go Frogs! 

I will also be very careful about when I drive this weekend. 

I have been a personal injury lawyer for 35 years. I know all too well the statistics and the trends in drinking and driving. I also have heard the stories from my clients about a once-special holiday forever tarnished with the memory of a Thanksgiving weekend DWI accident.

Thanksgiving is the deadliest holiday on our nation’s roadways. During the 2012 Thanksgiving weekend, 764 families heard the news that their loved ones had been killed in a car wreck. Almost 50,000 more people suffered injuries in auto accidents that same weekend. 

I would be thrilled if we set a new record this weekend. Instead of the deadliest time on the road, let’s strive for the safest weekend.  

Here are some ways to make that wish a reality. 

  • If you are hosting a dinner, monitor the alcoholic beverages you serve. A guest can easily reach the legal limit of .08 percent BAC after just a few glasses of wine during the course of a leisurely meal. 
  • If throwing a game-day party, have the numbers of Uber or a taxi service available. 
  • If attending a holiday event, agree who will be the designated driver or arrange for a ride ahead of time. 
  • If possible, stay off the roads during peak drunk driving hours — from 10 p.m. to 3 a.m. 

Me and my staff at Berenson Injury Law wish you a happy and safe Thanksgiving!

I am closing the office at noon to give my staff time to drive to their out of town families or just enjoy being with their families here in Fort Worth.

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



from Texas Bar Today http://ift.tt/1XfrnpK
via Abogado Aly Website

UT School Of Law Presents The 63rd Annual Taxation Conference

Originally published by Gerry W. Beyer.

The University of Texas School of Law is presenting a CLE entitled, 63rd Annual Taxation Conference, on December 3-4, at the Radisson Hotel and Suites in downtown Austin. Here are some details about the event: The 63rd Annual Taxation Conference…

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



from Texas Bar Today http://ift.tt/1lhvG2E
via Abogado Aly Website

One More Bank Obtains NPA under DOJ Swiss Bank Program (11/25/15)

Originally published by Jack Townsend.

On November 24, 2015, DOJ announced here that the following Swiss banks have entered NPAs under the DOJ program for Swiss banks, here.

IHAG Z├╝rich AG (IHAG)
$7.453 million

One interesting excerpt from the press release:

In a few instances, IHAG assisted certain recalcitrant U.S. persons in further concealing undisclosed accounts by moving the funds to another jurisdiction and returning the funds to IHAG in a different name in order to conceal the U.S. persons’ ownership of the assets and enable the recalcitrant accountholders to continue to maintain undeclared accounts at IHAG.  For example, a family of U.S. persons held assets at IHAG in the name of a Liechtenstein foundation, and another unrelated U.S. person held funds in the name of a Panama foundation.  These foundation structures were designed to conceal the true beneficial ownership of the assets.  In the case of the Panama foundation, IHAG assisted the U.S. person in creating the foundation.  The value of the assets in the two accounts together totaled approximately $63 million. 

To assist these U.S. clients in further concealing their assets and evading U.S. taxes, in order to maintain these recalcitrant individuals as IHAG clients, IHAG personnel – with the assistance of an unaffiliated fiduciary services firm in Zurich and with the knowledge and approval of bank management – moved assets from the two foundation accounts to an unaffiliated bank in Hong Kong. The funds then returned to IHAG under the name of a Singapore entity wholly owned by IHAG’s parent company, IHAG Holding, so that the accounts would bear no trace of the U.S. persons’ beneficial interest in the assets held in the accounts.  The multi-step scheme also involved an entity in Hong Kong in which IHAG Holding owned a minority interest. 

This scheme enabled the assets to be stripped of any indicia of U.S. ownership.  In effectuating this scheme, IHAG took advantage of Swiss law, which allowed IHAG in these circumstances to treat the accounts as if know-your-customer review of the accounts had occurred in Singapore.  Accordingly, IHAG did not apply Swiss know-your-customer requirements when the accounts returned to IHAG under a different name.  IHAG’s files for the accounts deliberately did not contain any documentation of the U.S. persons’ interest in the assets in the accounts.  IHAG knowingly and willfully committed tax fraud with respect to those accounts.  

In a few other instances, IHAG assisted clients in establishing foundations used to hold their assets at IHAG.  The U.S. persons who were the beneficial owners of the foundation accounts were properly identified as beneficial owners of the foundations on certain forms pursuant to Swiss know-your-customer rules.  However, the foundations were identified as the beneficial owner on IRS Forms W-8BEN, thereby masking the true beneficial ownership of the accounts by U.S. persons. 

Here are the updated statistics for the Swiss Bank Program:

US DOJ Swiss Bank Program
Number
Number Resolved
Total Costs
   U.S. / Swiss Bank Initiative Category 1 (Criminal Inv.) *
17
5
$3,470,550,000
   U.S. / Swiss Bank Initiative Category 2 **
90
58
$570,687,990
   U.S. / Swiss Bank Initiative Category 3
14
$0
   U.S. / Swiss Bank Initiative Category 4
8
$0
Swiss Bank Program Results
129
$4,041,237,990
* Includes subsidiary or related entities counted as separate entities, so the numbers may exceed the numbers the IRS and DOJ posted numbers which combine some of the entities.
** DOJ says original total was 106 but that it expects about 80 to complete the process.

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



from Texas Bar Today http://ift.tt/1SkbvMl
via Abogado Aly Website

Rainmakers and Writers: What the Great Ones Share in Common Part 2

Originally published by Cordell Parvin.

This is Part 2 of John Cunningham’s guest post on rainmakers and writers.

John Cunningham

6. Fearlessness. Developing your own identity and your own message in your own voice can be a daunting task for a writer or a rainmaker. When go outside of the safety of the herd, you can offend those who lead the herd and those who fear the unfamiliar (recall “Plato’s Allegory of the Cave.”).

The rewards for following your own compass to your own unique position in the world are great, but both writers and rainmakers must steer past dark and nattering naysayers along their paths.

7. Something to Say. I have connected with some renowned writers at conferences, and they all seem to share a deep-seated sense that they have something they need to say. It is not just that they want to communicate with the world. They have a sense that it is part of their purpose.

Really good rainmakers, in my experience, also feel they have something important to say about their work. They thrive on talking about it and their voices reveal their passion for it, as well as their passion for helping their clients.

8. Memory. Both rainmakers and writers need good memories. I have noticed that rainmakers often remember names and they can recall details about their clients and prospects because they become genuinely interested in them.

Writers also must remember everything about their characters and their narratives in order to develop stories that are believable, internally consistent, and powerfully cogent.

9. Working Well With Others. You might think that great writers need nothing but their keyboards. But they need to get along with editors and publishers, and if they want to sell their work, they need to get outside their offices and make connections. Otherwise, their work will die along with them.

Rainmakers too need to work and play well with others. This was a theme I heard often from successful rainmakers at the conference I recently attended. All of them agreed that successful long-term marketing of professional services requires cooperation with partners, referral sources and others in your network.

10. Written Content IS Marketing. Now more than ever, someone who can create thought-provoking and original written content can be a rainmaker. As service providers start to invest more in content creation and distribution, they find it is one of the most effective forms of advertising they can do.

The Internet and social media have created an abundance of publishing platforms that can make a truly distinctive message or story go viral at very low cost, offering a huge return on investment.

 

The post Rainmakers and Writers: What the Great Ones Share in Common Part 2 appeared first on Cordell Parvin Blog.

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



from Texas Bar Today http://ift.tt/1R6mOJD
via Abogado Aly Website

Houston Legal Links 11/25/2015 – Happy Thanksgiving

Originally published by Mary Flood.

Top legal news includes: Low oil prices take out a Houston based law firm Burleson (Chron subsc); Judge: Rep. Reynolds can’t practice law while appealing barratry conviction (Chron subsc); Federal judge grants trial delay in BP oil spill fraud case; Judicial Evaluations out for 2015 – from federal to J.P.; Man gets life sentence in Texas ‘stand your ground’ retrial; Couple charged after toddler found dead, burned inside home oven; Federal Government Gives St Joseph Medical Center January 15 Deadline; Deepwater Horizon Defendant Wins Big Insurance Ruling (Texas Lawyer); Texas May Call Them Childcare Centers, Critics Say They’re Prisons; Top spots for crime across Houston area; Student in “God is a myth” assignment faces Katy ISD school board again; Man arrested for practicing home dentistry without a license; As Year Ends, These Wacky Episodes Are Proof That Law is Never Dull (Texas Lawyer); Feds Counter Texas Bid to Delay Immigration Appeal; ‘Blue Santa’ Tradition Begins; Austin officers will not face charges after in-custody death; Abbott Says Guns Are Okay in Texas City Halls & Abbott Leading State Trip to Cuba Next Week & Texas GOP official wants secession on the primary ballot.

For the water cooler: Law Firm Life Is Terrible For Your Health; Lawyers who work the most appear least likely to regret their career choice, Indiana study finds; Should assumption of risk doctrine still apply to baseball? Lawyer who filed class action thinks not; Judge Throws Out Former Donkey Kong Record Holder’s Lawsuit Against Cartoon Network; Beyond Biglaw: 3 Things Lawyers Should Be Thankful For; Bar Exam Passage Rates Nationwide Keep Dropping; Car going ‘way too fast’ crashes outside entrance to federal courthouse; Claimed ‘Harvard-educated attorney’ is neither a grad nor a lawyer, authorities say; Lawsuit urges top state court to explain powers of AG Kathleen Kane, whose law license is suspended; New courthouse nativity display puts founding fathers, Lady Liberty next to Bill of Rights in manger & California’s bar pass rate is at a 29-year low; these states also saw a drop.

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



from Texas Bar Today http://ift.tt/1Lzwd5d
via Abogado Aly Website

Tuesday, November 24, 2015

Opinions, Nov. 24, 2015

Originally published by maknox.

Three memorandum opinions this morning, one from the First District COA and two from the Fourteenth.

In Mandeville v. Mandeville, No. 01-15-00119-CV, Charles Mandeville appealed the final decree of divorce on the grounds that the trial court erred by excluding a marital property agreement from evidence and ordering that his possession of the children be supervised. The COA affirmed.

Charles and Deborah Mandeville married in 2000 and had five children during the marriage. In January 2014, Deborah filed for divorce in Fort Bend County, and later amended her petition to request that Charles’ visitation be supervised. Charles filed a counter-petition and jury demand. The COA went out of its way to note that though Charles had representation when he filed his counter-petition, by the time of the pretrial hearing, he was pro se. This, it turns out, is just the prelude to a litany of bizarre, paranoid behavior by Charles both during the marriage and trial. For example, Deborah had to procure birth certificates and social security numbers to enroll their children in school without Charles’ knowledge because he did not believe in them. He  apparently inculcated delusional concerns for his and his family’s safety into his children. He left the jury trial on the second day, noting on the record, “I’m leaving under threat, duress, coercion, lack of counsel. This is absolutely not voluntary. I’m trying to save my children from sadism and evil. This is just disgusting.” After he left, his own aunt testified that his parenting was problematic and that his visitation should be supervised.

Long story short, the COA upheld the jury’s finding that his visitation with the children should be supervised. I hope Charles gets the help he needs.

With regards to the marital property agreement, the COA found Charles did not preserve the error. Prior to trial, Deborah filed a motion in limine which requested Charles be ordered to refrain from mentioning the marital property agreement in the presence of the jury because he did not fully respond to interrogatories on the issue. The trial court granted the motion in limine. However, the COA states, a ruling on a motion in limine is not a final evidentiary ruling. Because Charles never offered the marital property agreement into evidence during the trial–and thus never obtained a ruling–he failed to preserve the error and waived his issue on appeal.

The Fourteenth released its memorandum opinions this morning in Reynolds v. Reynolds, No. 14-14-00624-CV and In re Kevin Matthew Hall, No. 14-15-00895-CV.

Reynolds is another installment of the Reynolds Saga, which I blogged about on July 23, 2015. Today’s opinion concerns an enforcement suit filed by Wilma to enforce the property division.

Wilma and David divorced in 2008. In her enforcement suit, Wilma argued she had not received her 50% share of David’s 2008 estimated income from a business interest. She asked the trial court to order David to produce financial records, to liquidate her share of the business interest and to order David to pay that amount to Wilma. David filed a motion for summary judgment, arguing he had complied with the decree. The trial court agreed, granted a final judgment in David’s favor and the COA affirmed.

In her first issue, Wilma contended that the trial court erred by not ordering David to produce financial records. David established that he had produced responsive documents in previous proceedings. The COA listed seven other related appellate cases in a footnote.

In her second issue, Wilma asserted that the trial court erred by granting summary judgment in favor of David because she did not accept the check for her half of the 2008 income that David tried to mail her several times and which was placed into the registry of the court. Because Wilma produced no summary judgment evidence that the check was not for the right amount, the summary judgment was sustained. Stay tuned for the next installment.

In In re Kevin Matthew Hall, Kevin filed a petition for writ of habeas corpus, asking the COA to vacate an October contempt and commitment order from the 308th. The COA denied the request.

Kevin and Rebecca were divorced in 2012 and appointed JMCs of the child, with Rebecca as primary. Rebecca filed an enforcement suit, alleging 55 violations of the decree. On October 15, 2015, the Court held a hearing and signed the contempt order giving rise to the original proceeding. The order found Kevin in contempt for five violations involving failing to return the child to Rebecca’s residence at 6:00 pm on Sundays. He was committed to the Harris County jail, but was released on bail about two weeks later.

In his first issue, Kevin alleged the motion for enforcement and the contempt order did not adequately provide him with notice of his violations. Kevin argued that the operative language in the decree is subject to multiple interpretations and thus cannot be enforced by contempt. Here are the key provisions:

1. Weekends— On weekends that occur during the regular school term, beginning at the time the child’s school is regularly dismissed on the first, third, and fifth Friday of each month and ending at 6:00 P.M. on the following Sunday.
* * *
2. Return of the child by KEVIN MATTHEW HALL—KEVIN MATTHEW HALL is ORDERED to return the child to the residence of [Mother] at the end of each period of possession.

This is straight out of the Standard Possession Order, of course. Kevin argued it was unclear from the motion and order if the violations are to have occurred on a Thursday or on a Sunday, during the school year, a school holiday, or summer break or who was entitled to possession during the violative periods. The Court of Appeals found this argument wanting, finding the motion and order adequately notified Kevin of the time periods at issue.

Kevin also argued that the contempt order does not state the dates on which he failed to comply with the order because the order does not provide details of when he did return the child to Rebecca. The Court of Appeals dismissed this argument as well because there is no requirement the order include this information.

Kevin argued the order does not state that any of the dates alleged were dates Rebecca was entitled to possession of the child. The Court of Appeals found that the order did not need to state when Rebecca’s possession commenced because it provided for when Kevin’s ended.

Kevin also argued that the motion and order did not state the manner of his noncompliance because the language purportedly did not specify whether he violated the time or place of return provisions. The COA dispatched this argument as well, as the trial court found he did not return the child to the place at the time ordered.

Finally, Kevin alleged his due process rights were violated because he did not receive a jury trial. Because he was confined less than 6 months the charge was not “serious” and he was not entitled to a jury.

 

 

 

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



from Texas Bar Today http://ift.tt/1PXp2di
via Abogado Aly Website

Transitioning Into Retirement Rather Than A Sudden Jump Into The Deep End

Originally published by Gerry W. Beyer.

When workers gets close to retirement, they often desire to be able to go right into retirement and leave work completely. But many people find that full on retirement might not be as fulfilling as they thought and instead chose…

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



from Texas Bar Today http://ift.tt/1N60I3X
via Abogado Aly Website

How to calculate interest in very, very long-running dispute

Originally published by David Coale.

green-visor-accountantAfter 15-plus years of litigation, the remaining issues in Art Midwest Inc. v. Clapper related to the calculation of prejudgment interest.  No. 14-10973 (Nov. 9, 2015, last before the Fifth Circuit in Art Midwest Inc. v. Atl. Ltd. P’ship XII, 742 F.3d 206 (5th Cir. 2014)).  The Court reversed as to the starting date for calculating interest — even though the first judgment by the district court was reversed in part, the date of that judgment was still the proper starting point under Fed. R. App. P. 37(a) and Masinter v. Tenneco Oil Co., 929 F.2d 191 (5th Cir. 1991), aff’d in relevant part, 938 F.2d 536 (5th Cir. 1991).  The opinion also touches on waiver and law-of-the-case issues addressed in the 2014 appeal.

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



from Texas Bar Today http://ift.tt/1LxDmD6
via Abogado Aly Website

Apis Restaurant and Apiary

Originally published by Optimista.

I think this town must be conspiring to convince me that we’ve not yet reached the pinnacle of our food scene, because I just discovered what is undoubtedly one of my top ten favorite restaurants in Austin.

Okay, so technically it’s in Spicewood – which makes it an even more surprising find. Who would have imagined that you might sit down to a 23-course signature tasting menu* just down the road from Opie’s? We might not have believed it ourselves, except that our friends Mari & Greg, who have eaten at many of the finest restaurants all over the world, raved about a meal they had there back in August. So the four of us headed out to Apis Restaurant and Apiary to celebrate Mari’s birthday, and proceeded to have our socks blown off.

As much as I want to slip into my usual uber-verbose mode, I can’t possibly write about every one of the 23 courses…but I do want to share all of the splendor for you food porn fans, so I’ve included a slideshow of our feast.

Excellent cocktails, beautiful and comfortable surroundings, and affable service round out the deal and truly make Apis a dining destination. We hear that the team is looking for space downtown for a second location (and a different concept), but I was hard pressed to think of many ways that they could improve upon this version. As we were driving home, my husband remarked that he had actually enjoyed the meal we’d just had at Apis better than the one we had at The French Laundry last month (the French Laundry meal, by the way, was three times as expensive). I’m going to weasel out of making my own comparison by saying the two experiences are really too different to compare, but I think that my husband’s comment drives home the fact that the Apis experience is one not to be missed. This was indeed a spectacular meal – and an astounding value considering the quality, quantity, and the effort that went into creating it.
Another thing we truly loved about Apis is that the entire staff exhibited an apparent lack of ego, resulting in a very friendly, collaborative atmosphere. Unlike certain other highly-touted restaurants in town where the chefs insist that every dish be served their way (diner preferences be damned), Apis’ message was consistently, “What do you think? How can we make this experience better for you?” When we were in the kitchen for the cocktail course, Chef/Owner Taylor Hall repeatedly deflected compliments to the rest of his team in the kitchen, and several of our courses were served by the restaurant’s general manager, Bill Donnelly, who had a terrific sense of humor. Too much ego in a restaurant can taste a little bitter; on the flip side, the collaborative attitude at Apis made us feel like we were participating in the process, that the success of our dining experience lay partly in our hands. We were utterly charmed, and we are so looking forward to seeing what exciting surprises this creative and friendly team has in store for us down the road.
23426 TX-71
Spicewood, TX 78669
512/436-8918

*Apis also offers a regular a la carte menu for those who aren’t quite ready to commit to 23 courses!

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



from Texas Bar Today http://ift.tt/1PXdjLS
via Abogado Aly Website

Career Day at Adopted School Meaningful

Originally published by William K. Berenson.

I spent Friday morning speaking to five classes at Rufino Mendoza Sr. Elementary School, which I adopted 11 years ago. It’s always one of my favorite days there.

Mendoza.jpg

I always begin by getting the third through fifth graders to select a career from a list that sounds interesting: doctor? lawyer? teacher? artist? We talked about what each person does and why the child might want to work in that field. I stressed that any career requires good grades and many years of education but that it would be worth it.

I told the youngsters that they will have to graduate from high school and then college (and perhaps graduate school. I made them promise that they will. It’s an important pledge.

The kids always get excited to see my college diploma and I assured them that they can obtain a diploma too and that anything is possible if they work hard.

I asked them to give their worksheet to their parents and talk to them about their choices and to get advice from them. It’s never too early for them to start thinking about their futures.

In a humorous moment, one boy asked me if my career was being a runner (I sometimes mentor children in the after-school running club). I was flattered but explained how attorneys help people resolve their legal problems.

I ‘m always urging the students to study hard, be the best they can be, and to dream big. We must motivate and inspire our children. I hope that i have made a difference in at least one child’s life over the years.

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



from Texas Bar Today http://ift.tt/1ShUqCK
via Abogado Aly Website

Truthiness and Truth Edition

Originally published by Charles Sartain.

Posted by Charles Sartain

truthinessTruthiness: A quality characterizing a “truth” that a person making an argument or assertion claims to know intuitively, “from the gut” or because it “feels right” without regard to evidence, logic, intellectual examination or facts.

Today we explore truthiness in action. Let’s start with the loftiest bully pulpit in the land. The Washington Post gave President Obama four pinocchios  for his justification for cancelling the Keystone XL Pipeline.

  • The Prez: Keystone oil “will bypass the United States and its products will end up in foreign markets”.
  • The Post: Most of the products to be refined at Gulf Coast refineries will be consumed the United States.
  • The Prez: Keystone was just for Canadian oil and we should be focusing on American infrastructure, American jobs and American producers.
  • The Post: 65,000 BOD will be moved from the Bakken; U.S. energy companies control 30% of Canadian oil sands production.

Propaganda disguised as truthiness

According to Energy in Depth, anti-fracking activists use lies to scare us, such as:

  • Fracking causes widespread water contamination,
  • Fracking causes earthquakes (specifically, all injection wells induce earthquakes),
  • Fracking causes climate change and increases air pollution (Really? See the Sierra Club article below),
  • Fracking negatively impacts health (especially in babies),
  • Fracking chemicals are not disclosed,
  • Fracking is not regulated,
  • The industry does not provide safety measures for workers.

See the article for details explaining why they are wrong.

Facts  

Michael Lynch in Forbes runs through 11 of what he calls myths about the economics of petroleum and labels them either wrong, misinterpreted, or irrelevant.

An Energy In Depth report quantifies the threat of earthquakes from injection wells. To summarize:

  • Percentage of U.S. disposal wells potentially linked to seismicity – 0.55%
  • Percentage of disposal wells operating without seismicity – 99.45%
  • Percentage of Class II injection wells potentially linked to seismicity – 0.15%
  • Percentage of Class II injection wells operating without seismicity – 99.85%

The numbers are similarly low in Texas.

Could go either way?

This could be truth or truthiness. Energy In Depth reports that the Sierra Club admits but downplays the contribution of cheap natural gas to the reduction in carbon emissions in the United States. Read the article itself and all the links and decide for yourself who is more correct. This one could be a matter of your point of view.

Why this blog uses cute pictures

A study examining truthiness was carried out by Eryn Newman of Victoria University of Wellington. Experiments showed that people are more likely to believe that a claim is true regardless of evidence when a decorative photograph appears alongside.

An interlude

Today we have a movie interlude. You will want to view this if college is in the present or future for you or someone for whom you are responsible.

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



from Texas Bar Today http://ift.tt/1MzSQKE
via Abogado Aly Website

Pro Se Plaintiff Wins Motion to Dismiss

Originally published by Thomas J. Crane.

Almost always, a pro se plaintiff loses. Pro se describes a plaintiff who represents herself. Many folks are forced to represent themselves when issued a 90 day right-to-sue letter. Ninety days is very little time in which to find an employment lawyer. Most persons with a right-to-sue letter start by calling personal injury firms. It may take weeks before the potential plaintiff is referred to someone who practices employment law.

Arlice J. Randolph apparently could not find a lawyer. She filed suit herself. She succeeded where other pro se plaintiffs have failed. She survived a motion to dismiss her claims. The Eastern District of Texas rightly construed her claims liberally, because she is a pro se plaintiff. The court looked not just to the Complaint which she filed, but also her response to the motion to dismiss. See Randolph v. Pinecrest Retirement Communities, No. 15-CV-39, 2015 LEXIS 149660 (9/17/2015).  Ms. Randolph was fired when she brought a tape recorder to a meeting with HR. She placed it in the middle of the table where everyone could see it. An hour and a half into the meeting, the HR Director asked her why she was recording the meeting. Ms. Randolph, the Assistant Director of Nursing, explained she is hard of hearing and wanted to play back the recording later. She was 70 years old and was asking for an accommodation. She wanted to be sure she heard the HR guidance correctly. See decision here (account required).

But, the employer took umbrage at the recorder. After the meeting, the employer told her she could resign or be fired, because she brought the tape recorder to the meeting.

Employers are usually offended when an employee brings a tape recording device to a meeting. But, really, what is the harm? Some employees do want to be sure they hear the employer correctly. Ms. Randolph was fortunate. Almost always the pro se plaintiff loses at the motion to dismiss stage.

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



from Texas Bar Today http://ift.tt/1PXdgQh
via Abogado Aly Website