Tuesday, May 31, 2016

Top 10 from Texas Bar Today: Barry White, George Jefferson, and James Earl Jones

Originally published by Joanna Herzik.

5.31.16To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. Vehicle Design Patents: Protection for “Design” of VehiclesGary Sorden of Klemchuk LLP @KK_LLP in Dallas

9. Law Firm Libraries Cannot Simply Be A Service… It Must Be A Strategic Partner – Greg Lambert @glambert of Jackson Walker L.L.P. in Houston

8. Texas Supreme Court Says You Could Kick Someone Out of Courtroom in a Trade Secrets RiffRob Radcliff @robradcliff of Weinstein Radcliff LLP in Dallas

7. Opinion: International Divorce & Texas Domiciliary RequirementsMatthew A. Knox of Laura Dale & Associates, P.C. @DaleFamilyLaw in Houston

6. Supreme Court Applies Medical Malpractice Law to Handling a CorpseJay Jackson of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend @AbrahamWatkins in Houston

5. Manifest disregard of manifest disregardDavid Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

4. Appellate Court Rules “George Jefferson” had capacity to sign his willMichael B. Cohen @dallaselderlaw of Michael B. Cohen Attorney and Counselor at Law in Dallas

3. What’s To Know About the Defend Trade Secrets Act of 2016Charles Sartain of Gray Reed & McGraw @GrayReedLaw in Dallas

2. Did My Employee Just Say That?!? Manage Risk with a Company Crisis PlanDrew York of Gray Reed & McGraw @GrayReedLaw in Dallas

1. The James Earl Jones (or Barry White) Effect now applies to women too! Douglas Keene @KeeneTrial of Keene Trial Consulting in Austin

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

from Texas Bar Today http://ift.tt/1TV5708
via Abogado Aly Website

Calorie-Free, but Not Opposition-Free: How the TTAB Decided a Major Trademark Opposition Dispute Between Coca-Cola and Dr. Pepper

Originally published by » Blog.

In a recent opinion issued by the Trademark Trial and Appeal Board to settle a trademark opposition dispute between two U.S. beverage giants, U.S. trademark […]

The post Calorie-Free, but Not Opposition-Free: How the TTAB Decided a Major Trademark Opposition Dispute Between Coca-Cola and Dr. Pepper appeared first on Klemchuk LLP.

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

from Texas Bar Today http://ift.tt/281cJ8u
via Abogado Aly Website

Free veterans legal clinic in Fort Bend County

Originally published by Jillian Beck.

Veterans in need of legal assistance can visit a free legal clinic in Fort Bend County this month.

Any veterans or spouses of deceased veterans will be able to receive individualized legal advice and counsel from a volunteer attorney in a variety of law areas including family, wills and probate, consumer, real estate, tax, and disability and veterans benefits, according to a Houston Bar Association press release.

Those who need continued legal representation and who qualify for legal aid may be assigned a pro bono attorney to handle their case. No appointment is necessary.

The clinic, scheduled for June 11, is a service of Fort Bend Lawyers Care, the Fort Bend County Bar Association, and the Houston Bar Foundation’s Veterans Legal Initiative, which is a coalition of local bar associations providing free legal services to veterans in 18 Texas counties.

The event will be from 9 a.m. to noon at the Richmond VA Outpatient Clinic at 22001 Southwest Fwy., Ste. 200, Richmond.

For more information about the clinic and other available services for veterans, contact the Veterans Legal Initiative at 713-759-1133 or visit hba.org.

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

from Texas Bar Today http://ift.tt/1WWUHk1
via Abogado Aly Website

Cyber security & cooperation improves with elimination of IT network silos!

Originally published by Peter S. Vogel.

A recent IT network report indicated that “Top-tier organizations are also much less tolerant of silos – either in their tools or in their teams”  and “are four times as likely to invest in machine-readable threat intelligence.” The 2016 Network Protection Survey from Infoblox reported the “estimate the cost of a typical unplanned network outage now tops $740,000” so security planning is essential.  Here’s what the Report had to say about banishing silos:

They are nearly nine times as likely to use integrated visibility tools, four times as likely to use integrated security tools and fully 100 percent report moderate to complete cooperation and coordination between their network, security and app teams (versus less than half of the bottom-tier).

Often, these silos are not formed consciously. A network engineer for a large technology support company in the Southern U.S. commented, “IT shops are running so lean these days, even just knowledge transfer is prohibitive. Silos often form simply because we don’t have time to share.”

The Report offers these 5 lessons:

  1. Get Rid of Silos.
  2. Pay Attention to Operational Realities.
  3. Prioritize Based on Risk Analysis.
  4. Be Realistic about Security Staffing.
  5. Automate Routine Tasks.

Good advice that more IT leaders need to pass along to management!

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

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

Sing Street

Originally published by The Movie Court.

A new review from The Movie Snob.

Sing Street  (B-).  I’m back from a 10-day holiday, plus an extra week-long sabbatical nursing a bad cold, and I’m eager to see some current releases.  This one, from John Carney (director of Begin Again and Once), was OK but a little bit of a disappointment.  The year is 1985.  A sensitive Dublin teenager named Conor (newcomer Ferdia Walsh-Peelo) falls in love with an older girl named Raphina (Lucy Boynton, Miss Potter) and tries to impress her by asking her to be in a music video for his rock band.  When she agrees, he has to come up with said band, and the rest of the movie kind of goes from there.  I liked a couple of the supporting characters, like Conor’s song-writing buddy who’s strangely fond of rabbits, and Conor’s older brother Brendan, who’s a screw-up but genuinely cares about his little brother and helps him grow his musical taste.  Boynton looks a little too old for 16, but she’s a suitably attractive muse; she looks a little like Emma Roberts (We’re the Millers) with a splash of Debbie Gibson (Mega Shark vs. Mecha Shark).  Conor’s mom (Maria Doyle Kennedy) looked very familiar, and it turns out she was in another famous Irish rock-n-roll movie, The Commitments.  On the downside, Carney makes the Catholic priest who runs his school unnecessarily mean, and implies he’s a predator to boot, and I didn’t care for the movie’s ending at all.  So it’s kind of a mixed bag.

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

from Texas Bar Today http://ift.tt/25wQVPW
via Abogado Aly Website

Flags Out on Memorial Day

Originally published by Michael C. Smith.


Spent Memorial Day mornings getting U.S. flags up on the still-under-construction Lexington (CV-2) and Essex (CV-9) models and decided to take a picture of all eight 1/700 scale carriers in the display cabinet/work bench.

It isn’t historically accurate to my December 1940 Yorktown, which is still in peacetime Navy Gray with a giant “Y” on the funnel to distinguish her from her sister ship Enterprise, but I added the giant battle flag on the foremast that Captain Buckmaster broke out during the repairs after the Japanese dive-bombing attacks the afternoon of 4 June 1942 during the Battle of Midway. Yorktown_dive_bombing

Walter Lord quoted survivors as saying that that seeing that giant flag come out while the ship was burning and dead in the water, and the crew was working furiously to control the fires and restore power was something they’d never forget.

I thought today was an appropriate day to commemorate it.


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

from Texas Bar Today http://ift.tt/1O1Ah6P
via Abogado Aly Website

I’m sorry: Six elements to make your apology optimal 

Originally published by Douglas Keene.

250px-Brenda_Lee_1977The phrase “I’m sorry” always reminds me of then 15-year-old Brenda Lee and her hit single. (That is, in psychology circles, called a tangential aside.) We haven’t written about apology here for a while now and a new study has just published that lists six elements to make your apology optimal. This post is to help you stay informed about the latest findings on how to make an apology most effective.

First a bit of background on the apology research. These researchers tell us that apologies typically arise in an effort to repair trust. They identified “six structural components of apologies” from prior research and presented them single and in combination to research participants to see which elements were more effective in restoring trust. Here’s a little of what they found:

Not all apologies were equally effective—those with more components were more effective than those with fewer components and certain components were more effective than others. (In other words, keep talking…and make sure you focus on everything you need to say. )

Apologies after competence-based trust violations were more effective than apologies following integrity-based violations. (One is an issue of disappointment with your actions and the other is an issue of your character.)

The six elements of apology culled from prior research were:

Expression of regret

Explanation of what went wrong

Acknowledgment of responsibility

Declaration of repentance

Offer of repair

Request for forgiveness

The authors say that the best apologies contain all six elements but the most important elements are acknowledging your responsibility and making an offer of repair for harm done. The next three elements are tied (expressing regret, explaining what went wrong, and a declaration of repentance). The least effective element may surprise you. A request for forgiveness is the least effective element of the apology and the researchers say you can leave out the request for forgiveness if you need to do that.

From a litigation advocacy perspective, it seems famous people are apologizing almost all the time (we’ve written about a number of them here) but the quality of those apologies varies dramatically. When your client needs to issue an apology—encourage them to include all these components (although they can skip the last one if it is too awkward or would be seen as insincere).

Lewicki, R., Polin, B., & Lount, R. (2016). An Exploration of the Structure of Effective Apologies. Negotiation and Conflict Management Research, 9 (2), 177-196 DOI: 10.1111/ncmr.12073



Related posts:

  1. Apology redux: Doing it right (and doing it wrong)
  2. A carefully crafted apology doesn’t mean we think you are sincere
  3. “There will be no apology from me!”

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

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

Friday, May 27, 2016

Houston Bar Association announces new president

Originally published by Jillian Beck.

The Houston Bar Association on Thursday announced Neil D. Kelly as its new president.

Neil KellyKelly, a partner in Andrews Kurth, succeeds outgoing President Laura Gibson of Dentons US as head of the organization, the fifth largest metropolitan bar association in the nation with 11,300 members, according to an HBA press release.

A member of the association’s board of directors since 2011, Kelly, 49, was chair of the Houston Bar Association’s Houston Volunteer Lawyers and Houston Lawyer Referral Service, in addition to holding leadership roles on several committees.

In his law practice, Kelly focuses on complex civil litigation and dispute resolution, corporate compliance, disclosure, investigations, and energy transactions.

Earning his law degree from Tulane University Law School in 1992, Kelly is now a life fellow of the Houston Bar Foundation and a sustaining life fellow of the Texas Bar Foundation.

The Houston Bar Association also announced its other new board officers

  • Alistair B. Dawson of Beck Redden, president-elect
  • Benny Agosto Jr. of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, first vice president
  • Bill Kroger of Baker Botts, second vice president
  • Todd M. Frankfort of Flowers & Frankfort, secretary
  • Warren W. Harris of Bracewell, treasurer
  • Gibson, immediate past president

The association’s new directors for 2016-2018 are:

  • Richard Burleson of Paul Hastings
  • David Harrell of Locke Lord
  • Diana Gomez of Martin, Disiere, Jefferson & Wisdom
  • Greg Ulmer of BakerHostetler

Those serving as directors for 2015-2017 are:

  • Jennifer A. Hasley of Hasley Scarano
  • Daniella D. Landers of Katten Muchin Rosenman
  • Erin Lunceford of the 61st Judicial District Court
  • Chris Popov of Vinson & Elkins

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

from Texas Bar Today http://ift.tt/1UiKw5K
via Abogado Aly Website

Share your blog on Texas Bar Today

Originally published by Teri Rodriguez.

Texas Bar Today is an online media network featuring curated news and commentary from Texas legal professionals. It is provided as a service of the State Bar of Texas. If you are a Texas legal professional/blogger and are not yet listed on the Texas Law Blogs section of Texas Bar Today, please email webmaster@texasbar.com to request inclusion on the site.

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

from Texas Bar Today http://ift.tt/1X1pc8U
via Abogado Aly Website

Houston Legal Links 5/27/2016

Originally published by Mary Flood.

Top legal news includes: Briles Fired, Starr Reassigned in Baylor Shakeup; Advocates push for easy release for inmates charged with minor offenses (Chron subsc); Federal Judge Allows Plaintiff to Sue Officers After He Was Detained for Videoing a Police Station (Texas Lawyer); Prosecutor Grant wins Montgomery County judgeship (Chron subsc); Texas AG Shopped Transgender Policy to Second School District; Texas vs. the Feds: A New Look at the Lawsuits; Analysis: An Expense to Texas Taxpayers That Carries No Explanation; Taxable Value Of Oil Wells Plummet But Houston Firm Questions If It’s Still Too High; Two arrested after squatting in doctor’s house in southeast Houston; Inspectors check out complaints against these gas stations; City makes it faster for residents to seek speed bumps; Metro Wants To Ease Rail Security Concerns After Northside Murder; Dallas law firm adds Houston partner, expands office; Criticism Continues About Why Horses Had to Swim For Their Lives When Cypress Trails Flooded Again; Tonya Couch indicted on charges of hindering apprehension, money laundering; As El Paso Sees Surge of Cuban Migrants, Calls for Policy Shift Grow Louder; Exxon Mobil shareholders set to vote on climate change resolutions & Majors vie for Qatar offshore oil field operation.

For the water cooler: More midsize firms use lateral recruiting to hire nonlawyer managers; Lawyer resigns from well-known law firm after he is charged with money laundering conspiracy; FBI introduces Iris, a Labrador retriever trained to sniff out digital devices; Misdemeanor defendant is charged with felony for allegedly spitting on judge; A law firm structure that avoids lawyer layoffs; ‘Guccifer’ takes plea in hacking case; feds said he accessed personal accounts of political figures; Lawyer-turned-entrepreneur admits he financed Hulk Hogan’s Gawker suit; Learn About Craft Beer Law And More At The West Coast Academy For Private Practice; Lawyer is charged with stealing $587K from estate of deceased ‘kung fu’ judge; Clyde & Co. to acquire 18-lawyer Miami firm, seeks to be top US insurance coverage shop; Suspended Philadelphia judge pleads guilty to lying to FBI about small-claims case; This law school sent the most grads into full-time, long-term legal jobs; Chief justice says he backs consensus, even if it means putting off issues for a later day; Law prof sees Title IX ‘collision course’ in federal directives on bathrooms and sexual violence; Man is charged in death of law prof Dan Markel; case is reportedly investigated as murder for hire & Fewer than 1% of arrestees in Chicago see a lawyer while in police custody.

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

from Texas Bar Today http://ift.tt/1X1oYPi
via Abogado Aly Website

Public Health and Law Enforcement Officials Concerned About Growing Fentanyl Trend

Originally published by Robert Kraft.


In a front-page article, the New York Times reported that public health and law enforcement officials have noticed a growing trend in overdose deaths linked to fentanyl. According to the Times, “the total number of fentanyl drug seizures reported in 2014 by forensic laboratories jumped to 4,585, from 618 in 2012.” Public health officials warned that fentanyl can be more dangerous than heroin or opioid pain medications because it is fast-acting, leaving less time to administer the potentially life-saving drug naloxone.

From the news release of the American Association for Justice.

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

from Texas Bar Today http://ift.tt/22rkBMH
via Abogado Aly Website

Is A Will Valid if the Testator signed the Will Several Days Before the Witnesses?

Originally published by Rania Combs.

WritingSection 251.051 of the Texas Estates Code provides that a last will and testament

  1. must be in writing;
  2. signed by the testator in person (or another person on behalf of the testator in his presence and under his direction); and
  3. attested by two or more credible witnesses who sign the Will in their own handwriting in the presence of the testator.

Often, the testator and the witnesses sign the Will on the same day in each other’s presence. But what if the testator signed the Will several days before the Witnesses? Can the Will be valid?


There is nothing in the statute that requires the testator to sign in the presence of the witnesses. The testator can sign the Will earlier. However, the witnesses must sign in the testator’s presence.

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

from Texas Bar Today http://ift.tt/20L1KKZ
via Abogado Aly Website

Supreme Court Applies Medical Malpractice Law to Handling a Corpse

Originally published by By Jay Jackson.

Should the extensive protections afforded to negligent doctors under Texas’ medical malpractice laws apply to a hospital’s wrongful handling of a corpse? On Friday, the Texas Supreme Court said “yes.”

In 2003, the Texas Legislature passed a law, commonly referred to as “Chapter 74,” that rewrote the law of medical malpractice. This was done due to a claim by doctor’s that they had to pay too much money for insurance. Chapter 74 provided sweeping substantive and procedural changes to protect hospitals and doctors from bearing responsibility their negligence, or to shift some or all of the costs to their patients.

On Friday, the Court handed down its opinion in Christus Health Gulf Coast v. Carswell. The widow there asserted that the hospital’s negligence cost the life of her husband, partly related to the administration of medications. The widow further alleged that, soon after the man’s death, the hospital improperly obtained a consent for an autopsy from an affiliate, rather than from the Harris County Medical Examiner. That autopsy was critically important to ascertain facts concerning the patient’s death and medications he had been given.

Without the evidence from an independent autopsy, the jury could not find negligence. But, jurors did determine that the hospital improperly handled matters related to the autopsy and awarded damages.

The Texas Supreme Court reversed the case. It ruled that the post-mortem events were closely related to medical care, and therefore the medical malpractice laws applies to them. But, to the contrary, the Court also ruled that the events were not closely related enough to medical care that the original pleadings in the case, asserting a claim for malpractice, tolled the statute of limitations. Here, the express pleadings about post-mortem activities were alleged three years after the event, though the petition was filed against the hospital within the two-year statute of limitations. Normally, amended pleadings “relate back” to the time of the filing of the original petition. But, in this case, the Court determined that the pleaded events were not closely related. Finally, the trial judge had imposed sanctions upon the hospital for discovery abuse. The Court affirmed that it should not have to pay the sanctions.

Count this case as a loss for the safety of patients and a win for health care corporations.

If you or someone you know has been a victim of medical malpractice, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.

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

from Texas Bar Today http://ift.tt/1Wq01wh
via Abogado Aly Website

Does a “Swim at Your Own Risk” Sign Actually Do Anything?

Originally published by highrank.

When it’s summertime in Texas, we tend to gravitate toward pools. On particularly hot days, kids swarm to public options, and they may even be tempted to swim in the neighbors’ pools – whether or not they’re at home. If a child is injured in a public or private pool, you may be wondering about potential liability or legal actions that you may take against the city or owner.

Responsibility & LIability

Before you get that far, you may be wondering: Is a “Swim at Your Own Risk” sign enough to eliminate all responsibility for accidents that occur on the property? The answer is no. Texas laws in this area are multifaceted, and there is plenty to consider before taking your case to an attorney. Here are a few factors that may affect your claim:

  • Our premises liability laws. In general, a public pool or one owned by a hotel or similar business (e.g., a gym) can be held accountable for any injuries that occur; a posted warning sign may not matter. There are, of course, some exceptions. For example, the injured party can’t be a trespasser, and he or she must have used the pool as intended – for example, drinking and swimming after hours will likely result in partial blame being placed on the injured party. Regardless, the owner must make conditions as safe as possible and reasonably enforce any rules posted for the pool.
  • Assumed risk. A qualified Texas attorney will thoroughly explain this factor to you before agreeing to take your case. The presence of a “Swim at Your Own Risk” sign does amplify this issue, as does the presence of a lifeguard. For instance, when a pool is clearly marked as “No Lifeguard on Duty,” swimmers assume a certain degree of risk when they jump into the pool. Though “Swim at Your Own Risk” is less specific, the same principle applies.
    However, the age and cognitive abilities of the injured party may affect this. For example, a child with a mental disability wouldn’t be expected to understand the risk these signs indicate. When this is the case, the claim will likely be settled by continuing to examine factors that may have contributed to the accident – such as neglect.
  • Negligence. This is another element that will likely affect the outcome of your claim. The pool’s owner is expected to keep the area safe and well maintained. This includes keeping all equipment in working order and ensuring the area is reasonably clear of obstacles. If a faulty or uncovered drain contributes to an accident, for example, it isn’t a known risk that the plaintiff assumed, regardless of any signage.
    The workers employed at the pool may also fall under scrutiny; if a lifeguard is on duty and he or she causes or fails to prevent damages, the enterprise may be liable for subsequent expenses. These individuals are to be fully licensed and qualified and it’s an area your attorney should explore.

Work Out the Specifics of Your Case with an Experienced Texas Attorney

Even though we’ve outlined some details here, real-life cases are far more nuanced and can only be explained through a consultation with an attorney. Product liability may be involved, which opens the claim up to an entirely new area of legal practice. You also need a lawyer committed to uncovering the minutiae of your case – from whether warning signs were posted clearly to confirming the owner’s security measures and demonstrating his or her ability to keep the pool safe.


For a personal, devoted look at your claim, get in touch with the Texas specialists at the Law Firm of Aaron Herbert.

The post Does a “Swim at Your Own Risk” Sign Actually Do Anything? appeared first on Aaron Herbert – Texas Injury Attorney.

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

from Texas Bar Today http://ift.tt/25mugpv
via Abogado Aly Website

Vehicle Design Patents: Protection for “Design” of Vehicles

Originally published by Gary Sorden.

Design patents are meant to cover the ornamental design of an item. In other words, design patents cover the shape of an item and whether […]

The post Vehicle Design Patents: Protection for “Design” of Vehicles appeared first on Klemchuk LLP.

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

from Texas Bar Today http://ift.tt/25pY3B1
via Abogado Aly Website

The How Question in Due Diligence

Originally published by tfoxlaw.

What is satisfactory due diligence under the Foreign Corrupt Practices Act (FCPA)? That question seems to be more important after the Huffington Post’s story on Unaoil and the subsequent release of the Panama Papers. However, both of these events largely focused on the “who” part of due diligence and the need to know whom you […]

The post The How Question in Due Diligence appeared first on Compliance Report.

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

from Texas Bar Today http://ift.tt/1sf2Vap
via Abogado Aly Website

U.S. Court of Appeals for the Fifth Circuit adopts rule change

Originally published by Jillian Beck.

The U.S. Court of Appeals for the Fifth Circuit adopted a change to its rules this week.

The amendment is as follows:


27.1.20 To rule on an unopposed motion by the government or a defendant in a direct criminal appeal to gain access to matters sealed in the case and for the use in prosecution of its appeal.

The amended rule, which went into effect May 25, was approved by the court following a public comment period that ended in March.

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

from Texas Bar Today http://ift.tt/1sf2xsK
via Abogado Aly Website

New Judge, Same Result – $81 Million CWA Civil Penalty Appealed

Originally published by Jaclyn E. Hickman and Robert B. McNeal.

U.S. District Court Judge Dee Drell (Western District, LA) recently denied a motion to alter or amend the Court’s judgment against CITGO Petroleum Corp.– allowing an $81 million judgment against the oil company to stand.

The judgment is the latest in a suit the EPA filed against CITGO under the Clean Water Act for a 2006 spill at the oil company’s St. Charles refinery. In the original judgment, U.S. District Court Judge Richard Haik found CITGO negligent, and, based on the factors in the Clean Water Act, imposed a $6 million civil penalty. Citing the inadequacy of the penalty, the EPA successfully appealed and the Fifth Circuit vacated the judgment on grounds that the district court failed to provide a reasonable approximation of the economic benefit to CITGO, as required under the Clean Water Act. The appellate court also specifically directed the district court to “reconsider all its findings with respect to CITGO’s conduct, giving special attention to what CITGO knew prior to the oil spill and its delays in addressing recognized deficiencies.” U.S. ex rel. Adm’r of E.P.A. v. CITGO Petroleum Corp., 723 F.3d 547, 549 (5th Cir. 2013).

On remand, based on the instructions given by the Fifth Circuit, Judge Haik found that CITGO was grossly negligent and that the company’s economic benefit had been $91.7 million dollars. As a result, Judge Haik imposed a civil penalty of $1,500 per barrel spilled – for a total of $81 million – and significantly increased the penalty of $111 per barrel in his original judgment. The EPA sought a penalty of $4,300 per barrel.

In January 2016, Judge Haik retired from the bench and the case was transferred to Judge Drell. CITGO subsequently filed a motion to alter or amend Judge Haik’s judgment, arguing that there was manifest error on several accounts.

CITGO primarily argued that Judge Haik had erroneously failed to consider several facts when calculating CITGO’s economic benefit under the Clean Water Act. Specifically, the company argued that (1) the Court erred in including the cost of equipment that would not have been necessary to prevent the spill, (2) the company should not have been charged with awareness of inadequate storage facilities until the refinery expanded and its capacity increased, and (3) the capital cost rate relied on in making the calculation did not represent the least costly method of compliance, as required by the Clean Water Act. CITGO also argued that the Court should not have allowed the EPA to introduce new expert testimony at the remand hearing and that Judge Haik should have reduced the penalty so as to give CITGO credit for the monetary injunctive relief that had been imposed earlier in the proceedings.

The Court dismissed these assignments of error outright. Without addressing each argument individually, Judge Drell noted that the issues had been, or should have been, briefed extensively and addressed in argument prior to the previous judgment. Noting that a motion for alteration or amendment of a judgment is “not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment,” the Court ultimately found that “Citgo is presently attempting to essentially re-litigate this case to a new judge based on the same facts and legal theories that were fully considered by Judge Haik, which we deem to be improper under the guise of a Rule 59(e) motion.” U.S. ex rel. Adm’r of E.P.A. v. CITGO Petroleum Corp., No. 2:08CV00893, 2016 WL 1158075, at *4 (W.D. La. Mar. 18, 2016). The Court further opined, “The record reflects that Judge Haik was very well versed on this case, having first conducted a two-week bench trial, reviewed lengthy remand briefs, and then held a remand hearing to determine the correct economic benefit calculation.” Id. As such, the Court declined to consider any of CITGO’s further argument. CITGO filed an appeal of the ruling with the Fifth Circuit on May 4, 2016.

Given that in 2015 all civil enforcement actions by the EPA yielded penalties totaling $205 million (excluding settlements), the CITGO judgment stands out as unusually large. The result is consistent, however, with the EPA’s 2014-2018 Strategic Plan of focusing on large cases, and its recent pattern of pursuing fewer enforcement actions with larger resolutions. See Environmental Enforcement Results for 2015, 2015 ABA Env’t Energy, & Resources L.: Year in Rev. 48 (2015).  The Fifth Circuit’s response to CITGO’s second appeal may provide guidance on whether these types of judgments could be a trend in future Clean Water Act enforcement actions.

For more information, contact Jackie Hickman (jhickman@liskow.com) or Rob McNeal (rbmcneal@liskow.com).

DisclaimerThis Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue.  By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site.  The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

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

from Texas Bar Today http://ift.tt/1sf0BAu
via Abogado Aly Website

Thursday, May 26, 2016

Two New Warrantless Blood Draw Opinions; Two Different Results

Originally published by Brandon Barnett.

CCA Reaches Different Conclusions in Two Separate Warrantless Blood Draw DWI Cases Just when we thought the warrantless blood draw issue was starting to reach firm footing in our appellate…

The post Two New Warrantless Blood Draw Opinions; Two Different Results appeared first on Fort Worth Criminal Defense DWI Attorney.

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

from Texas Bar Today http://ift.tt/1XVnsx0
via Abogado Aly Website

Appellate Court Rules “George Jefferson” had capacity to sign his will

Originally published by Michael Cohen.

The JeffersonsThe attorney for Sherman Hemsley (who played the character George Jefferson in the television shows “All in the Family” and “The Jeffersons”) decided to not draft a will for his client since he feared a will contest due to Hemsley’s celebrity status. However, the attorney did draft a power of attorney for Hemsley, and Hemsley had another attorney draft his will. After Hemsley died, the will was contested. One of the reasons for the contest was that Hemsley’s attorney declined to prepare Hemsley’s will. Hemsley’s attorney, the attorney who drafted the will, the two witnesses who saw him sign the will, and the nurse caring for Hemsley all testified at the court hearing that Hemsley had mental capacity at the time he signed the will. The contestants argued this was legally insufficient. The appellate court ruled Hemsley had mental capacity.

There are a couple of lessons that can be learned from this case. First, family members who are dissatisfied with a will (especially if they don’t think they are getting their fair share) are likely to contest it no matter how competent a person is at the time the will is signed. Second, the attorney who prepared the will should have advised Hemsley on several other options such as: (i) a “will contest” provision giving a suspected contestant enough money in the will so that they would think twice before contesting; (ii) creating and funding a trust (so assets would not go by will and thus no will contest); (iii) having beneficiary designations on various assets so that the same would not pass by will; and (iv) having a neurologist or forensic or geriatric psychiatrist or psychologist do a capacity evaluation and have such specialist sign an affidavit simultaneously with the execution of the estate planning documents to reduce chances of a successful contest.

// <![CDATA[


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

from Texas Bar Today http://ift.tt/1TE6kvK
via Abogado Aly Website

Law Firm Libraries Cannot Simply Be A Service… It Must Be A Strategic Partner

Originally published by Greg Lambert.

In the May 23rd American Lawyer article, “More Law Firms Outsource Their Law Libraries [pay wall],” is a wakeup call for some librarians, old news for many, a call to arms for others, and a confirmation of a shift in the profession for the rest. Outsourcing is a scary word, but one that cannot be ignored. We’ve had Deb Schwarz from LAC discuss the myths of outsourcing right here on 3 Geeks. I would be one of the first to step up and tell you that, in some cases, outsourcing the law firm library makes sense, and LibSource (LAC Subsidiary) or one of the other outsourcers (also known as “Managed Services”), would be a viable way to run the library. However, I’d also step up and say that it should not be the first or only option for struggling law libraries.

I will state this again… in some cases, outsourcing the library is a viable option for some law firms. I’m not anti-LibSource or any other Managed Services group that comes in and hires librarians, and maintains library collections and services. That being said, I also recognize that law firms, especially AmLaw 100 and 200 firms, like to copy what other firms are trying. I tend to say that most law firms do not want to be first… but, they don’t want to be last, either. With outsourcing getting more press, it’s bound to happen that law firm leaders will wonder if outsourcing is right for their firms. It’s the nature of the beast in this industry. I’d like to give my peers, and those law firm leaders that are reading this, some ideas and talking points when this discussion comes out.

Service is a Floor, Not a Ceiling

As someone that manages the law library function (as well as other departments) at my firm, I know that the most critical function of the library is not simply about providing good service. Good service, along with a good collection, a well-maintained budget, and on-demand responses to the needs of the law firm are the absolute basics of what a law library does. If that is what you provide, you’re doing the minimum. If you’re a manager of people, you know what it’s like to manage those that just do the minimum. You keep them around, but if you ever got a chance, you’d replace them in a minute. Think about how your firm’s management committees view departments that just bring in the minimum to the firm. Your services, and your people must be viewed as an integral part of the organization.

The Library is a Powerful Resource, Leverage It

I sell my department in many ways, but one that has a great effect on the leadership is when I tell them that the Library is the conduit for all external information, and understanding how these resource tie into the overall firm needs. Whether it is tracking down assets, conducting background checks on expert witness, or finding that elusive piece of information hidden in the recesses of a county courthouse, the Library and its professionals know how to find information. They find it quickly. They leverage their peers and professional associations. They do it at a cost that is appropriate (or lower.) They are experts at this. When you have these experts, usually with some subject matter expertise they have learned while at the firm, you have a powerful resource beyond traditional Westlaw and Lexis databases. My suggestion is to find ways of embedding these experts into the Practice or Industry Groups and take advantage of their expertise. Outsourced services, even if they end up hiring your own people to stay in the library, do not become a part of your culture. There will be turnover, and those brought in will service the company for which they work, and that is not your law firm.

Don’t Let Bad Librarians Bring Everyone Down With Them

This is for law firm leaders who have librarians they do not think are doing the best work for their firm. Find New Leadership! Nothing drives me more crazy than seeing someone that has lead a department into the ground. I’ve seen it in law firms, academic settings, and in Government Law Libraries. People that have kept their heads down, not asked for anything, kept under budget, and didn’t rock the boat, be a twenty-plus year director of their law library. It makes me shake my head, and I get angry when I hear these stories. In many cases, I see that the staff has kept these zombie leaders alive by doing great work despite the lack of leadership. Unfortunately, when bad leaders retire (or finally get a buy-out package when someone discovers the lack of production), they are replaced by someone that isn’t a law librarian or information professional, or the position is simply left vacant and the library becomes rudderless. That’s a shame, because there are a number of strategic thinkers out there that know what a great law library can bring to the organization. By not giving these leaders a chance, and passing the library over to Marketing, KM, or IT, it brings it back to a department that simply gives good service, but not helping in accomplishing strategic goals.

Give the Law Library a Voice in the Discussion

I knew that ALM was working on an article about outsourcing, so I wrote a piece a week ago called “If You’re Not at the Table, You’re on the Menu” where I laid out some examples of how it is important to be involved in the strategic direction your law firm is taking. It doesn’t matter how great the ideas are if no one ever hears them. The law library leadership needs a voice in the conversation. For those in other departments that think that if they allow library leaders to be involved means that your individual power is somehow diminished, then it’s time for you to grow up and realize this is not a zero-sum game you are playing. Libraries that are engaged in the discussion bring ideas to the table that other departments simply don’t even know about. It could be how to streamline Business Development processes, or improve due diligence investigations of lateral partners. It could be improving conflicts processes by exposing current conflicts staff to external resources. It could be exposing IT department to new products that it can then integrate into Practice Group and Industry portals. Clients are looking for firms that are efficient, have improved processes, and innovative. Outsourcing can get you to step one, but would have a much harder time getting to steps two and three.

Law firms typically spend millions of dollars on library resources, and if you’re not allowing the librarians and others within the department to champion those resources and spread their ideas on how to best leverage them, then you might as well be pouring that money down a drain. Remember, even if the department is outsourced, the outsourcing company uses your resources, not their own.

Lead the Conversation before You Are the Conversation

Law Librarians are often risk-adverse people in a highly risk-adverse industry. We want to do what’s right, serve our organization, and help in the overall success of our law firms. Most of us do not like conflict. Well, that’s too bad in this situation. Start strategizing your arguments on why outsourcing is not a viable option for your firm. List out the pros and cons (and be honest), and design a plan that shows the leadership that the law library can bring much more of a value proposition to the firm as a strategic partner, than it would bring as a managed service by a third party. Step up and lay out your ideas, goals, and successes. Admit your previous failures and explain how you’ve learned from that and how it has made you a better group because you know have experienced and understood what went wrong. For each point that makes sense on why the law firm should outsource your group, counter with a better plan for why it makes more sense to not only keep you within the firm, but to expand what you do in a more strategic way.

There’s A Battle Going on For Your Law Library – Step Up and Defend It

There’s a battle going on in this profession. In order to be a winner in this battle, you must create your plan, align your resources, and be willing to step out there and defend yourself and those that follow you.

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

from Texas Bar Today http://ift.tt/20GbJkK
via Abogado Aly Website

Manifest disregard of manifest disregard

Originally published by David Coale.

touched up signAfter Hall Street Associates LLC v. Mattel, Inc., 552 U.S. 576 (2008), the Fifth Circuit concluded that “manifest disregard of the law” was no longer available as a nonstatutory ground for vacatur of an arbitration award under the FAA. Since then, other circuits have considered whether “manifest disregard” can be a statutory basis for vacatur. In McKool Smith PC v. Curtis Int’l, the losing party in an attorneys fee dispute mounted such a challenge to the arbitrator’s award in favor of the firm, but the Court sidestepped the issue, finding support for the arbitrator’s rulings in the applicable Texas case law. No. 15-11140 (May 23, 2016, unpublished) (Almost simultaneously, the Texas Supreme Court rejected the “statutory basis” argument in Hoskins v. Hoskins, No. 15-0046 (May 20, 2016)).

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

from Texas Bar Today http://ift.tt/1sAFdp4
via Abogado Aly Website

Wednesday, May 25, 2016

Trial & Heirs: 5 Estate Planning Stumbling Blocks

Originally published by Cleve Clinton.

Last Will and Testament with Fountain PenLast month, Prince died at the ripe young age of 57. He had no will, as reported by his only full sibling (a sister). She filed for probate of his estate in Minnesota, where he owned a home in Paisley Park. Under Minnesota law, a probate court there will determine who gets what.

Typically, an intestate estate (one without a will) in Minnesota would first go to his children, then to his parents, and then to any siblings. As Prince was twice divorced with no children, and his parents are deceased, his sister and five surviving half brothers and sisters are banking on splitting the estate. Various pundits estimate Prince’s net worth between $150 and $300 million. While some suggest he was very attentive to his business matters, other say he didn’t trust anyone and his financial affairs are in disarray. If this is the case, who will control and manage Prince’s brand, his record label and the thousands of unreleased songs?

Assuming no will exists, Prince’s sister asked the Minnesota probate judge to appoint her as a special administrator. In the probate court, all financial details and business relationships will become public record and all asset decisions and distributions require court approval and will be shared with the public.

Probate Issues and Concerns

The Heirs: There will almost certainly be a fight, even if it’s just among his siblings. Given the amount of money involved, it would not be a surprise if one or more individuals came forward claiming to be Prince’s child. If a claim turned out to be true, they would eliminate everyone else as a potential heir.

Asset Management: The expanse of his assets–a humongous song catalogue (both released and unreleased) and vast real estate and business holdings–would be daunting to manage, even without the worries of taxes and heirship challenges.

Privacy: Unlike the privacy granted in estate planning, every asset must be filed and every minor decision about management and distribution of the assets and payment of liabilities will likely to require approval by the probate court. It’s a lengthy process, and will likely take years.


True to Ben Franklin’s adage, death and taxes are certain. Having not availed himself of the benefit of estate tax planning and legal counsel, the bite could be painful. If we assume an unplanned $350 million estate, it’s conceivable that estate taxes could be over $138 million. Even if the estate was a paltry $150 million, estate taxes could be roughly $58 million.

But wait! Who has that kind of cash lying around? For a farmer or rancher, the dilemma is called “land rich and cash poor.” To get the money to pay the estate taxes, something will need to be sold. If the assets are not readily marketable at full value, it’s possible that some will need to be sold at a fire sale discount to secure the necessary funds. Land sales are especially subject to this risk.

Tilting the Scales in Your Favor

Avoid these 5 Frequent Estate Planning Stumbling Blocks

  1. No will. Over 50% of Americans like Prince do not have a will and do not expect to die anytime soon. Whether you have a lot or a little, start with a will, particularly if you have kids or are divorced. If you don’t have a will, the laws of your state will determine who receives your assets after you die, how they are divvied up and by whom.
  2. Failure to set up a trust.  Do you want everyone to know how much money you had and who got it? Planning in advance avoids the public airing of your laundry. Consider a living trust. A living trust details who is entitled to your assets and how they’ll receive it, but it’s not part of the probate court inventory that is generally filed, and it can offer some tax benefits.
  3. Failure to Implement the Estate Plan. As a trial lawyer, I cannot count the number of times that a well-intended couple completes their estate planning process and pays the lawyer, but doesn’t supply the funding of the related trusts and business entities or change the beneficiaries on the insurance policies and retirement plans, saving it all for “later”. Only, “later” doesn’t come before death. Good plan. Good idea. But, it’s as if it never happened, because it didn’t.
  4. Neglecting to update estate plans. Life changes. Children are born and pass into majority. Divorces affect estate plans as do new spouses. The needs of older children change. Grandchildren are born. Businesses are bought and sold. All of these are reasons to update your estate planning documents.
  5. Forgetting to plan for disability. Physical and mental needs change as we get older. Power-of-attorney documents can protect you if you become incapacitated, or be subject to challenge if you wait too long to sign them. Properly drafted living wills and advance directives can give loved ones the authority to make medical and financial decisions when you can’t. Without them, your family and spouse may not have the legal right to speak or act on your behalf when you aren’t capable.

Estate Planning Expertise

Gray Reed experienced probate and estate lawyers Norm Lofgren, Greg Sampson and their protégé Jennifer Gurevitz are the experts here. I work with them to pick up the pieces when one or more of these estate planning stumbling blocks erupts into a full-fledged fight between heirs over an estate.

Related Articles

Last-Minute Wills….What Counts?

Where There’s a Will, Is There Always a Way?

The post Trial & Heirs: 5 Estate Planning Stumbling Blocks appeared first on Tilting the Scales.

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

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

Did My Employee Just Say That?!? Manage Risk with a Company Crisis Plan

Originally published by Drew York.

TV interviewJohnny Hotshot, the 11 year-old shortstop on the Dallas Rangers Little League team, suffered a horrific brain injury after a pitching machine at the Hitz-R-Us batting cage malfunctioned. Melanie Scoop, a reporter from one of the local news stations, showed up a couple of days later to cover Johnny’s injury. Melanie spoke to Scotty Van Winkle, the Hitz employee on duty when the accident happened. To Melanie’s surprise, Scotty told her that the pitching machines at Hitz have had similar malfunctions in the past. Should Hitz be concerned about its liability?

Employee’s Statements Can be Used Against You

An employee’s statements about events that occurred in the scope of the employee’s duties are admissible against the employer. That’s not a good thing for employers because employees tend to divulge too much information. For example, a father recently had to hold onto his son after the seatbelt on the roller coaster malfunctioned. After the father reported the issue to the ride operator, the ride operator allegedly told the father he knew the seat belt malfunctioned.

Have a Crisis Plan

Given the risk that an employee could make a “foot in mouth” statement after an accident, companies should develop a crisis communications plan and regularly train their employees on that plan. A crisis communications plan requires more than just “no comment” because, as we discussed in a post several years ago, that response fails to give your customers and employees confidence in your operations. Good crisis communications plans have designated spokespersons, prepared “holding statements” for when a crisis erupts, and notification and monitoring systems for internal and external communications.

Tilting the Scales in Your Favor

Reputation is everything. When a crisis happens it’s imperative that companies do all they can to maintain control over their reputation. Companies that plan ahead place themselves in the best position to do so when accidents happen.

Related Articles

The Benefit of Crisis Communication Plans

Crisis Response and Communications to the Press

The Top 3 Things Tom Brady Can Learn From Blue Bell Creameries: “Nothing is More Important To Us Than Maintaining Your Trust”

The post Did My Employee Just Say That?!? Manage Risk with a Company Crisis Plan appeared first on Tilting the Scales.

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

from Texas Bar Today http://ift.tt/1TzTMp4
via Abogado Aly Website

Practicing with Excitement

Originally published by Rebekah Brooker.

TYLA Immediate Past President, Rebekah Brooker, shared her thoughts on the practice of law in April’s ENews. Check out ENews for monthly updates on TYLA projects.

I was fortunate to have the opportunity to participate in TYLA’s 41st National Trial Competition (NTC).  I did not have to do any of the heavy lifting when it came to planning and organizing this impressive event, where more than 300 teams representing law schools from across the country gather to showcase their advocacy skills.  But, since NTC was in my backyard, I was one of the many that volunteered to help.  (Sidebar: Thanks to anyone who has ever helped or participated in NTC!)

When I arrived at the Dallas County Courthouse I was assigned to the role of “witness” for Team 6.  As I walked into the courtroom to meet my new team, memories of law school advocacy competitions came flooding back.  I chuckled about how many hours my fellow teammates and I would practice our arguments, analyze the record and fictional depositions, and get grilled by our coaches.  I remember thinking, “This is what the practice of law would be like.”  (It’s OK to laugh at my naiveté…I’m laughing too!)

I quickly discovered that the stakes are much higher when the client is real.  The knowledge that a bad day in the courtroom might hurt our career is not nearly as unsettling as the lasting effect the decisions made in the courtroom have on someone’s family or pocketbook.  The stress and pressure put on an attorney can be overwhelming.  But, as I looked at Team 6, I did not see fear.  Instead I saw excitement and hope.  Team 6 was confident and ready to show the world (or the other volunteers serving as the judges) that they were prepared and ready to go.

As lawyers sometimes the daily grind can zap our enthusiasm.  We might get tired of working on never-ending document productions, or reading case after case looking for the unicorn with our exact same fact pattern and a favorable outcome.  The practice of law doesn’t come with a lovely case packet with all facts, exhibits, and depositions wrapped up in a pretty bow.  We have to find the witnesses, draft the discovery, and take the depositions before we can spend hours upon hours analyzing the record and crafting our argument.

The time spent on each case can feel like climbing to the top of a mountain.  But, every time I look back and remember the journey, no matter how long, steep, and treacherous, I always feel a sense of purpose.  I am so thankful for my law school advocacy teams and coaches for providing the initial introduction to important legal skills that I work daily to develop and polish.  As I left Team 6 that day, I felt not only nostalgic but also reenergized about the practice of law.

Now, I know not everyone is wired like me, so I am not suggesting that participation in a mock trial will automatically inspire you to be the best lawyer you can be.  But I would encourage you to remember what it was about the practice of law that filled you with excitement and hope like I saw in the eyes of Team 6.


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

from Texas Bar Today http://ift.tt/1TzTz5k
via Abogado Aly Website

College Scholarship Judging Shows Our Future Is In Good Hands

Originally published by William K. Berenson.

IMG_8791It was fun to again be the judge at “my school” on Monday.  Eleven years ago, I adopted Rufino Mendoza, Jr. Elementary as a community service project. The experience has been a rewarding one.

I have taken a special interest in their after-school running club with my love of running. I also donate money for college scholarships and for other needs during the year.

The Competition

The seven bright students made polished presentations about their leadership skills. I am always impressed with their poise and sincerity. The Power Point slide was one’s talking point for How I Have Been A Leader. I’m pretty sure we never did anything like this when I was in the fifth grade in 1964.

The students had just been on a field trip to the University of Texas at Arlington and were excited about going to college. Several had decided they wanted to go there and become the first members of their families to pursue higher education.

The first child loves studying the earth and wants to be a geologist because “it sounds so fascinating.”  I enjoyed it when he said that he sometimes fails because he is not perfect — but that “he always learns from the experience.”


The second applicant hopes to go to Texas Christian University and be a teacher “because she loves learning.” She also said that failing is not a problem for her and that “she always gets back up feeling stronger.”

Another student wants to go into medicine — either as a doctor or veterinarian, she couldn’t decide which because she loves animals so much.  She wants to go to Harvard  because it’s an “amazing school” and knows that she will do well in life because  she “expects a lot from herself.”

The next child wants to become an immigration lawyer to help other people. He loves helping his teachers and family out.

Another student, an athlete, wants to attend the University of Texas and play in the NFL.

The next student also wants to “design buildings and things.”  He loves his family and his dog.

The last child told me that she could be anything she wants to be but that “computer science fascinates me.” She plans to attend a university in California.

All of these fine young people will receive scholarships.  Bravo children!

Career Day

Another favorite day at Mendoza is when I talk to the kids every year about the importance of grMendoza_1aduating from high school and college and even graduate school. I get them to promise that they will try.

As a prop, I bring my college diploma and let them pass it around. They get so excited. I tell them that they can get their own diploma but that they will need good grades and have to work hard.

I urge the students to start thinking about their perfect career now. I tell them to dream big and that nothing is impossible.

I believe that we must motivate our children so that they — and we — will have a better future.

I hope that I have made a difference in at least one child’s life over the years.

I will attend the school’s fifth graduation ceremony next week. It’s always an exciting morning.

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

from Texas Bar Today http://ift.tt/20CCVkp
via Abogado Aly Website

"Manifest Disregard" Dead in Texas: Texas Supreme Court Disapproves of Common-Law Grounds for Vacating Arbitration Awards

Originally published by By Brian Humphrey.

In an opinion handed down last Friday, the Texas Supreme Court held that, where an arbitration is governed by the Texas General Arbitration Act, or “TAA,” courts cannot vacate the arbitration award on the grounds that the arbitrator “manifestly disregarded the law.” Justice Debra Lerhmann, writing for a unanimous Court in Hoskins v. Hoskins, reasoned that the language of the TAA “could not be plainer” in requiring that a “trial court ‘shall confirm’ an award unless vacatur is required under one of the enumerated grounds” in the statute, “which do not include an arbitrator’s manifest disregard of the law.”

Both the TAA and its largely identical federal counterpart, the Federal Arbitration Act, or “FAA,” provide that an arbitrator’s ruling (called an “award”) is final, and the statute specifies only a few very narrow grounds on which the award can be vacated by a court, such as where a party’s rights were prejudiced by “corruption in an arbitrator” or where “the arbitrators exceeded their powers.” The grounds for vacatur of an award laid out in both the TAA and FAA do not include legal error by the arbitrator that such as those that would be grounds for appeal of a judge’s rulings.

Because this omission in the statute would appear to leave parties without recourse if the arbitrator simply ignores the law in making his rulings, both Texas and federal courts have recognized “manifest disregard of law” as an additional, common-law ground for vacating an arbitration award. Under the doctrine, courts could not review the legal decisions of arbitrators for error of law in the same way that an appellate court could review the decisions of a trial judge, but could vacate an award, as the federal Second Circuit put it, in “those exceedingly rare instances where some egregious impropriety on the part of the arbitrator is apparent.”

In Hoskins, the Texas Supreme Court has ended this practice under the TAA. Now, an arbitration award governed by the TAA can only be vacated on grounds specifically enumerated in the TAA itself. Now, no matter how badly the arbitrator misapplies or ignores the law, the arbitrator’s decision cannot be set aside unless there is proof of “evident partiality,” corruption, misconduct, or one of the other grounds set forth in the TAA.

This case resolves a split in the Texas courts of appeals that mirrored a similar circuit split in federal court regarding the FAA after the U.S. Supreme Court’s 2008 decision in Hall Street Associates v. Mattel, Inc. In Hall Street, the U.S. Supreme Court held that the grounds set forth in the FAA for vacatur of an award were “exclusive” and could not be modified, even by contract. However, as Justice Don Willett pointed out in a concurring opinion in Hoskins, commentators and federal courts alike have held differing views as to whether Hall Street precludes vacatur on common-law grounds such as “manifest disregard,” and the U.S. Supreme Court itself recognized in a footnote in 2010’s Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. that it was not deciding in that case “whether manifest disregard survives our decision in Hall Street. After Hoskins, as Justice Willett states in his concurrence, “[n]o such uncertainty exists with regard to the exclusivity of the TAA’s vacatur grounds.”

The TAA and FAA are largely identical, but this is not the first time that federal courts’ interpretation of the FAA and Texas courts’ interpretation of the TAA have diverged. In Nafta Traders, Inc. v. Quinn, the Texas Supreme Court disagreed with the U.S. Supreme Court’s reasoning in Hall Street and held that an arbitration agreement can effectively expand the scope of judicial review under the TAA. The Nafta Traders court reasoned that the TAA, like the FAA, allows for vacatur if the “arbitrators . . . exceeded their powers,” and an arbitrator’s powers are defined by the arbitration agreement itself.

Many people may not realize how important arbitration cases Hoskins can be to them. Nearly everyone has signed at least one arbitration agreement at some point in their lives-they are often found in such commonplace contracts as credit card agreements, homebuilder contracts, and even in many employment agreements. By signing these agreements, a consumer effectively gives up the right under the U.S. and Texas Constitutions to have his or her civil disputes resolved by a judge and jury, and instead agrees to have the dispute decided by a private arbitrator whose rulings generally cannot be appealed. Now, after Hoskins, the same consumer cannot even complain to a court if the arbitrator refuses to follow the law.

If you or someone you know is involved in a civil dispute, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, by calling at 713-222-7211 or toll free at 1-800-870-9584 for a confidential consultation.

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

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

Evolving Forensic Science and The Texas DNA Mixture Review Project

Originally published by Victoria Erfesoglou.

“As far as the laws of mathematics refer to reality, they are not certain, and as far as they are certain, they do not refer to reality.” – Albert Einstein We are a society proud of our technology. Much of our advancement is in forensic science. Since antiquity we’ve created methods to scientifically determine the […]

The post Evolving Forensic Science and The Texas DNA Mixture Review Project appeared first on HCCLA’s Reasonable Doubt.

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

from Texas Bar Today http://ift.tt/25kU60G
via Abogado Aly Website

Are Business Owners Legally Responsible for Dumpster Divers?

Originally published by highrank.

Many people have heard of dumpster divers–individuals who sort through refuse seeking useful or valuable items. In principle, dumpster diving is not always problematic. In these environmentally conscious times, reusing items and minimizing waste can be a good thing. For business owners, however, dumpster divers can create a slew of problems.

One of the biggest concerns for business owners is that unscrupulous dumpster divers will steal financial documents or personal identification information. They also may worry that they are liable for a dumpster divers’ illness or injury. The dumpster diver may create a distracting nuisance by blocking thoroughfares or littering while picking through trash. Business owners should be aware of their rights and responsibilities in each of these instances to protect their businesses from potential harm.

Legal Status of Dumpster Diving

If the trash receptacle is on private property, dumpster diving is illegal. Dumpster divers on private property can be charged with trespassing, and taking trash from private property may constitute theft. In many states and municipalities, however, dumpster diving is not illegal when a trash receptacle is located on public property. This is true in Houston, where dumpster diving was completely decriminalized in 2013. Based on this ruling, people can no longer receive citations for picking through publically accessible trash in Houston.

Liability Issues Arising From Dumpster Diving

Identity theft is a serious concern for many business owners. The 4th Amendment protects a person’s right to privacy, but it does not extend to anything that has been thrown away. Once documents are in publically accessible trash, anyone can look at them.

To prevent identity theft, businesses should take extra care to appropriately dispose of any sensitive materials. Employers should thoroughly shred any item that contains personal information and should not neglect receipts or other documents with payment information. Improper disposal of sensitive information could constitute negligence, and the business could be liable in the event of identity theft.

While many business owners are concerned that they can be held responsible if expired food or similar goods in their trash cause harm to a dumpster diver or if a dumpster diver is injured on their property, this is not usually the case. Unless the business has been negligent, they should not be responsible for a dumpster diver’s injuries or illness as a result of eating or using items that have been thrown away.

Nevertheless, business owners should seek legal representation if a dumpster diver becomes ill or sustains injury as a result of something in the business’ trash. An experienced attorney with expertise in personal injury law can help protect the business from false personal injury claims.

Tactics for Deterring Dumpster Divers

One of the best ways to prevent dumpster diving is to reduce accessibility to trash receptacles. If possible, keep receptacles on private property. Erect fences around the trash area, and clearly mark the area with “No Trespassing” signs. If you cannot put trash containers on private property, investing in a few strong locks will help deter dumpster divers.

Law enforcement can also be one of your biggest assets. If a dumpster diver trespasses on your property, contact police immediately. While it is legal for a person to sort through refuse on public property, police can still issue tickets for related issues. If a dumpster diver is loud or obtrusive in the process of dumpster diving, it may constitute disorderly conduct.


If you are a business owner dealing with problems caused by dumpster divers, consult a lawyer to protect your business. The attorneys at Houston’s Gordon, Elias, and Seely LLP offer free consultations. Contact us today to learn more about your rights, or call us toll-free at (800) 773-6770.

The post Are Business Owners Legally Responsible for Dumpster Divers? appeared first on Ges Injury Attorneys.

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

from Texas Bar Today http://ift.tt/1YZ5urN
via Abogado Aly Website

Texas Supreme Court Says You Could Kick Someone Out of Courtroom in a Trade Secrets Riff

Originally published by Rob Radcliff.



Some time you are right, and some time you are wrong.  A few months ago I offered the opinion that it was unlikely the Texas Supreme Court would exclude a client representative from the courtroom during a trade secrets case when trade secrets were discussed.  I was wrong.  The Texas Supreme Court has said that you can.  There are a lot of procedural issues in this one with respect to what the judge should have done and we’ll save those for another day.

Here is the short of it.  Plaintiff and Defendant are competitors in the equipment and services business for the oil and gas industry.  Both have spent a lot of money developing mesh screens that filter solid matter from drilling fluid.  This allows them to reuse fluid and keep costs down.  Defendant hired one of Plaintiff’s former employees who had a non-compete.  Plaintiff sued Defendant to enforce non-compete.  During a preliminary injunction hearing the Plaintiff intended to introduce evidence about its trade secrets but wanted the Defendant’s corporate representative removed from the courtroom.  (That left the former employee, lawyers, and the Defendant’s experts.)  The trial judge said no and the appeal (mandamus in Texas) resulted.

Here is what the Texas Supreme Court said:

  1. Excluding the representative from the Courtroom was not a violation due process;
  2. The trial judge has to weigh/balance the degree of competitive harm the Plaintiff would suffer – it did not engage in this process; and
  3. Excluding the representative does not violate Texas “open-courts” provision, the Rule of excluing witnesses; Rule 76a of the Texas Rules of Civil Procedure which permits sealing of court records; and is not an offensive use of the privilege.

The Court went on to hold that it could not engage in the balancing process required of the trial court and remanded back to the trial court for that process.  We shall see how that turns out, but the trial judge is now in a position to exclude the witness if he so chooses.  So despite what I thought a corporate represenative could be excluded.  It wasn’t as if no one from the Defendants’ side would be left int he courtroom.  The former employee and experts were still in the courtroom. I wonder what would have happened if this was not the case?  Certainly that would be factored in the balancing process.

This was the first time the Texas Uniform Trade Secrets Act was discussed by the Texas Supreme Court, though not in great detail or substantively.  Obviously, the court takes seriously the notion of protecting trade secrets at the temporary injunction level.

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

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

Tuesday, May 24, 2016

Use of Company Policies To Establish The Violation of A Fiduciary Duty

Originally published by David Fowler Johnson.

A.  Introduction

Plaintiffs often seek discovery on a financial institution’s policies and procedures with an eye towards using that evidence against the institution. If a financial institution’s representative or representatives did not live up to the policies and procedures, a plaintiff may argue that the institution did not live up to its fiduciary duty or the appropriate standard of care.

There is a very good argument against allowing this type of argument and admitting this type of evidence. Policies and procedures benefit the institution, the representative, the beneficiary or customer, and society in general. If financial institutions are reluctant to implement policies because they fear those policies being used against them, everyone will lose. Without policies to encourage representatives to do better, there may be worse service and performance.

Moreover, a fact finder should not judge an institution’s performance by its policies.  Institutions may want to not only comply with the law and industry standards but exceed them. So, an institution’s policies and legal requirements are not necessarily the same, and one does not necessarily evidence the other. See Grassie v. Roswell Hosp. Corp., 150 N.M. 283 (N.M. Ct. App. 2010) (“The Agreement is evidence of a standard the Hospital set for itself. But a failure to follow it may or may not be negligent when viewed in the context of the entire screening process actually undertaken.”).

To supplant an objective standard with a defendant’s internal rule would create “perverse incentive[s].” Briggs v. Wash. Metro. Area Transit Auth., 481 F.3d 839, 848 (D.C. Cir. 2004). Some companies, faced with potential liability for breaches of internal policies, might abandon all internal rules or edit their “operating procedures in such a manner as to impose minimal duties.” Id. Meanwhile, businesses that “strive for excellence” and adopt internal rules and bylaws “exceed[ing] the prevailing standard” would be “unfairly penalize[d].” Titchnell v. United States, 681 F.2d 165, 173 (3d Cir. 1982). The more carefully the employer “regulate[d] the conduct of his employees,” the “more subject he [would] be to liability.” Longacre v. Yonkers Ft. Co., 236 N.Y. 119, 124 (1923).

B.  Texas Courts Hold That Policies Do Not Evidence The Standard Of Care

In Texas, it is clear that a company’s policies do not evidence the standard of care. In FFE Transportation Services, Inc. v. Fulgham, the Texas Supreme Court held that internal policies and procedures do not set the standard of care:

[Defendant’s] self-imposed policy with regard to inspection of its trailers, taken alone, does not establish the standard of care that a reasonably prudent operator would follow. As a Texas court of appeals explained, a company’s internal policies “alone do not determine the governing standard of care.” Fenley v. Hospice in the Pines, 4 S.W.3d 476, 481 (Tex. App.—Beaumont 1999, pet. denied). A federal court of appeals has also held that a defendant’s internal policies do not, taken alone, establish the applicable standard of care.  In Titchnell v. United States, 681 F.2d 165, 173 (3d Cir.1982), the court stated:

[I]f a health care facility, in striving to provide optimum care, promulgates guidelines for its own operations which exceed the prevailing standard, it is possible that care rendered at that facility by an individual practitioner on a given occasion may deviate from and fall below the facility’s own standard yet exceed the recognized standard of care of the medical profession at the time. A facility’s efforts to provide the best care possible should not result in liability because the care provided a patient falls below the facility’s usual degree of care, if the care provided nonetheless exceeds the standard of care required of the medical profession at the time. Such a result would unfairly penalize health care providers who strive for excellence in the delivery of health care and benefit those who choose to set their own standard of care no higher than that found as a norm in the same or similar localities at the time.

154 S.W.3d 84, 92-93 (Tex. 2006). In Fulgham, the Court determined that evidence of a company’s policies did not constitute any evidence of the standard of care. Id.

Another example is Wal-Mart Stores, Inc. v. Wright, in which the company manual established a policy of mopping up spills within a set period of time. 774 N.E.2d 891,894-95 (Ind. 2002).  The Indiana Supreme Court held that the manual containing internal policies, practices, and rules represents the defendant company’s “subjective view of the standard of care” and therefore could not form the basis of a jury instruction on the objective duty of care mandated by law.  Id. The court explained, “[r]ules and policies in the [Wal-Mart] Manual may have been established for any number of reasons having nothing to do with safety and ordinary care, including a desire to appear more clean and neat to attract customers, or a concern that spills may contaminate merchandise.” Id. See also Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d 319,323,819 N.Y.S.2d 250, 255 (N.Y.A.D. 2006) (theater’s policy to check aisles every 15-20 minutes for obstructions or other impediments to movie-goers’ enjoyment of the film imposed a higher duty of care than is required under the law and patron who tripped over a child sitting in the aisle could not state a claim based on alleged violation of the policy).

A company’s policies are irrelevant where they contradict a legal duty and impose more strenuous standards.  Espalin v. Children’s Med. Ctr., 27 S.W.3d 675 (Tex. App.—Dallas 2000, no pet) (hospital’s policy regarding informed consent did not preclude summary judgment where doctors, and not hospitals, owed a duty to provide informed consent).

Further, in Texas, a company’s internal policies or procedures will not create a negligence duty where none otherwise exists. Cleveland Reg’l Med. Ctr., L.P. v. Celtic Props., L.C., 323 S.W.3d 322 (Tex. App.—Beaumont 2010, pet. denied); Houston Cab Co. v. Fields, 249 S.W.3d 741, 747-48 (Tex. App.—Beaumont 2008, no pet.) (violation of independent contractor hiring policy does not show negligent entrustment); Owens v. Comerica Bank, 229 S.W.3d 544, 547 (Tex. App.—Dallas 2007, no pet.) (“The Texas Supreme Court has refused to create a standard of care or duty based upon internal policies, and the failure to follow such policies does not give rise to a cause of action in favor of customers or others.”);  Entex, A Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 10 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); Rocha v. Faltys, 69 S.W.3d 315, 324 (Tex. App.—Austin 2002, no pet.) (fraternity policy did not create legal duty);  Espalin v. Children’s Med. Ctr., 27 S.W.3d 675 (Tex. App.—Dallas 2000, no pet); Fenley v. Hospice in the Pines, 4 S.W.3d 476, 481 (Tex. App.—Beaumont 1999, pet. denied); Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 291-92 (Tex. App.—Waco 1997, writ denied);  Estate of Catlin v. Gen. Motors Corp., 936 S.W.2d 447, 451 (Tex. App.—Houston [14th Dist.] 1996, no writ); Williford Energy Co. v. Submergible Cable Servs., Inc., 895 S.W.2d 379, 386-87 (Tex. App.—Amarillo 1994, no writ).

For example, in Cox v. City of Fort Worth, the plaintiff alleged that the defendant hospital breached a duty by failing to follow its own internal policies. 762 F.Supp.2d 926 (N.D. Tex. 2010). Plaintiffs specifically claimed that the defendant allegedly failed to exercise reasonable care in implementing and enforcing its policy concerning limitations on the number of visitors each emergency-room patient was allowed, and that it particularly failed to exercise reasonable care in communicating that information to plaintiffs prior to the decedent’s arrival at the hospital. The court rejected this claim, holding: “Plaintiffs’ negligence claim, grounded on Texas Health’s alleged negligent implementation of its internal policies, thus cannot pass the first hurdle: it fails to allege a legal duty. Having alleged no duty outside of the implementation of Texas Health’s own internal policies, plaintiffs’ negligence claim fails.” Id. at 941.

Importantly, internal policies adopted by financial institutions do not create a duty toward customers. In Texas Southwestern Med. Supply v. Texas Commerce Bank—Dallas, N.A., a plaintiff asserted that a bank breached a duty of care by not following its own internal procedures and allowing a representative to endorse checks. No. 05-93-00001-CV, 1994 Tex. App. LEXIS 3747 (Tex. App.—Dallas June 2, 1994, no writ) (not designated for publication).  The court held that the policies did not impact the bank’s statutory duty: “TCB’s teller procedures could not impose a legal requirement for endorsements on bearer instruments or checks payable to TCB when the code does not require it.” Id. at *10. Also, in Guerra v. Regions Bank, a party sued a bank for negligence in the bank’s opening of a joint account under his name and the name of another. 188 S.W.3d 744 (Tex. App.—Tyler 2006, no pet.). The plaintiff argued that “the risk, foreseeability, and likelihood of his injuries could have been ‘guarded against’ if Regions had followed its own banking procedures.” Id. at 747. The court of appeals disagreed, stating: “A bank’s internal policies do not determine a standard of care or duty.” Id. see also Owens v. Comerica Bank, 229 SW.3d 544 (Tex. App.—Dallas 2007, no pet.) (industry customs, like internal policies, do not create duties).

Further, in Ebenhoh v. Production Credit Ass’n of Southeast Minnesota, the plaintiffs were farmers on whom the defendant credit association foreclosed. 426 N.W.2d 490,491 (Minn. Ct. App. 1988). The farmers sued on the grounds that the association violated its own policies and standards for making sound operating loans. Id. Distinguishing the internal policies from legislatively enacted statutes and regulations, the court rejected the plaintiffs’ claim, flatly holding that internal policies create no such standard of care. Id. See also AmSouth Bank v. Tice, 923 So.2d 1060, 1067 (Ala. 2005) (Under Florida law, employee manual guidelines for tellers with respect to handling of checks were insufficient to establish any duty of care running from bank to customer separate and distinct from duty of care created under Florida’s version of Uniform Commercial Code.).

C.  Are Internal Policies Discoverable?

A fiduciary may want to fight the discovery and production of its internal policies and procedures. In Texas, discovery is permitted of any unprivileged information that is relevant to the subject of the lawsuit, including inadmissible evidence, so long as the request is reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3(a); In Re American Optical Corp., 988 S.W.2d 711, 713 (Tex 1998). Information is relevant if it tends to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the information. Tex. R. Evid. 401; R. K. v. Ramirez, 887 S.W.2d 836, 842 (Tex. 1994). As the Texas Supreme Court stated:

The ultimate purpose of discovery is to seek the truth, so disputes may be decided by what the facts reveal, not by what facts are concealed.  For this reason, discovery is not limited to information that will be admissible at trial.  To increase the likelihood that all relevant evidence will be disclosed and brought before the trier of fact, the law circumscribes a significantly larger class of discoverable evidence to include anything reasonably calculated to lead to the discovery of material evidence.

Janpole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984) (internal citation omitted), overruled on other grounds, Walker v. Packer, 827 S.W.2d 833 (Tex. 1992).

A fiduciary that is faced with a request for its internal policies and procedures may file a motion for protection and seek protection from a court from the request for information.  Conversely, the fidicuary may simply object, and wait for the requesting party to file a motion to compel.  Tex. R. Civ. P. 215.1(b), 215.2.

The main issue will be whether the policies and procedures are relevant or will lead to the discovery of admissible evidence.  Of course, the issue of admissibility is different from the issue of whether certain evidence will lead to the discovery of other evidence.  Damgaard v. Avera Health, 108 F.Supp.3d 689 (D.C. Minn. June 3, 2015). Even if a court were to allow discovery into policies and procedures, that does not mean that that evidence will necessarily be admitted at trial.  Id. (“Judge Mayeron opined only that the policies were discoverable, and discoverability and admissibility, of course, are entirely separate issues, with the former far broader than the latter.”).

In any event, many cases have held that policies are not relevant to the pleaded claims and should not be discovered. In one case, a plaintiff alleged conflict-of-interest allegations and wanted to see the defendant’s policies on ethical walls for separating its investment banking and analyst divisions. Xpedior Credit Trust v. Credit Suisse First Boston (USA), Inc., 309 F.Supp. 459, 464-65 S.D. N.Y. 2003). The court held that these policies were not relevant because they would not indicate if an actual conflict of interest actually arose and denied a motion to compel:

Xpedior has failed to articulate a basis upon which to conclude that this information is relevant to its claims. Even supposing that Xpedior’s damages theory is correct, DLJ’s Chinese Wall policy is in no way probative of actual conflicts of interest. If the policy strictly separates DLJ’s analyst and investment banking divisions, that says nothing about whether anyone adhered to the policy. Given that this lawsuit does not present allegations of analyst conflicts, that Xpedior admits that analyst reports are only “one avenue” for  valuing the issuers, … and that the Chinese Wall policies themselves are of limited use, these documents are simply not relevant. Accordingly, CSFB is not required to produce these policies.

Id. (internal citation omitted).

In a case dealing with a medical malpractice claim, a court denied a motion to compel the production of protocols and policies because they would not likely lead to the discovery of admissible evidence. Hurdle v. Oceana Urgent Care, 49 Va. Cir. 328, 1999 Va. Cir. LEXIS 333 (Va. Cir. Ct. July 15, 1999). The court stated:

The standard of care in medical malpractice actions is established by statute, not by the private rules of a particular hospital. The plaintiff claims it is premature to decide this, citing cases allowing a custom or usage of a trade as evidence of the duty owed. Assuming, without deciding, that a breach of a custom or usage of the medical profession could be evidence of negligence in a medical malpractice action, it does not follow that the policies of a single hospital are likely to prove the custom and usage of the entire profession. Trade and professional organizations are legion in this country. They would likely be better sources of such information.


In Jones v. Bank of Am., N.A., a plaintiff sued a lender for alleged improper servicing of a home mortgage loan.  No. 3:14-cv-11531, 2015 U.S. Dist. LEXIS 52214 (D.C. W.V. April 21, 2015).  The district court denied the plaintiff’s motion to compel the production of policies and procedures where they were not relevant to the claims asserted:

BANA objects to producing internal guidelines, policies, and procedures based on their lack of relevancy. Plaintiffs have requested policies, procedures, and guidelines pertaining to the Escalation Management Program, loss mitigation, provision of settlement agreements, and audits of loss mitigation. Plaintiffs argue that the requests are limited in scope and relate to topics that are central to the case. Furthermore, they will show whether BANA complied with its own policies and whether it acted in good faith, or alternatively, acted unconscionably. However, the causes of action in Plaintiffs’ complaint are well-defined and unrelated to BANA’s policies, procedures, and guidelines. Plaintiffs’ breach of contract claim will depend upon the terms of the contract, and the unconscionability claims are based upon specific contacts BANA allegedly had with Plaintiffs. Neither Plaintiffs, nor BANA, argue that BANA relies on any policy, procedure, or guideline as a defense. Therefore, the undersigned agrees with BANA that the policies, procedures, and guidelines are not relevant.


Other courts allow the discovery of policies and procedures where there is an argument that such may be admissible or may lead to admissible evidence. In Swenson v. Oxford Bank & Trust, a beneficiary sued a bank for breach of fiduciary duty and sought actual and punitive damages. No. 03-C-336, 2004 U.S. Dist. LEXIS 1126 (N.D. Ill January 27, 2004). The plaintiff sought “All Trust Investment Committee minutes or other notes (unredacted), including but not limited to those involving the review and approval of the bank’s investment policies and practices…” The court granted this request, stating: “The Trust Investment Committees’s actions and communications regarding the management of the bank’s IRA accounts are relevant. They may demonstrate whether Oxford knew or should have known that the stocks contained in Swenson’s and in other customer’s IRAs contained poor investments and whether Oxford knew or should have known the accounts managed by Carl Rudolph were under diversified.”  Id.

Confidentiality can also be a legitimate concern that can justify a court denying a motion to compel policies.  See, e.g., Huertas v. Beard, No. 1:10-cv-10-SJM-SPB, 2012 U.S. Dist. LEXIS 105631 (W.D. Penn. July 30, 2012) (district court denied motion to compel defendant’s policies where they were confidential and would not be probative of what events actually occurred). Moreover, some courts refuse a motion to compel on policies where a witness has already testified about same in a deposition.  See, e.g., Wiand v. Wells Fargo Bank, N.A., No. 8:12-CV0557-T-27EAJ, 2013 U.S. Dist. LEXIS 189999 (M.D. Fla. June 10, 2013). Even where courts may allow some discovery, the discovery must be narrow and not overly broad. See, e.g., Wiand v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS at 189999; Cahaly v. Benistar Prop. Exch. Trust Co., 885 N.E.2d 800, n. 36 (Mass. S. Ct. 2008); Wright v. Suntrust Bank, No. 1:04-CV-2258-CC, 2006 U.S. Dist. LEXIS 57111 (N.D. Ga. July 21, 2006) (only policies relevant are those in year of loan).

D.  Are Policies Admissible In Evidence?

Admissibility is determined by the reason(s) behind why the evidence is being offered.  As stated above, there is a good argument that policies should not be admissible regarding what the standard of care is or what fiduciary duties are owed. Texas courts have affirmed trial courts’ decisions to exclude evidence of defendants’ policies. For example, in G4 Trading v. Nationsbank of Texas, N.A., a plaintiff asserted that a bank wrongfully sent a wire transfer. 937 S.W.2d 137, (Tex. App.—Houston 1996, no writ). The trial court excluded evidence concerning the bank’s procedures to authorize and amend wire transfer orders that would have required a signed form before a transfer could be executed. The court of appeals affirmed the trial court’s decision because the jury instructions at issue in the case did not require a signed form. The court held: “once the jury’s inquiry was reduced to the narrow question recited in the charge, the excluded evidence of NationsBank’s policies was irrelevant. Therefore, the trial court did not err in excluding it.”  Id. Furthermore, in Gardena Mem. Hosp. v. Parashar, a trial court excluded evidence concerning a hospital’s policies, and the plaintiff challenged this ruling on appeal.  No. 14-94-01024-CV, 1996 Tex. App. LEXIS 3851 *10-13 (Tex. App.—Houston [14th Dist.] August 29, 1996, writ denied) (not designated for publication). The court of appeals affirmed, holding that the evidence concerning current policies were not necessarily relevant regarding the policies in place at the time of the incident. Id. But see Jo Ann Howard & Assocs., P.C. v. Cassity, No. 4:09CV01252, 2015 U.S. Dist. LEXIS 10035 (D.C. Mo. January 29, 2015) (Under Missouri law, the court held that “Once Plaintiffs establish the standard of care, the guidelines, policies, procedures or rules of a defendant may be introduced to support negligent conduct.”).

Texas courts have similarly also held that violations of industry standards or regulations do not create legal duties and are not admissible. B-R Dredgin Co. v. Rodriguez, 564 S.W.2d 693, 697 (Tex. 1978) (Corp of Engineers Safety Manual does not set standard of care and is inadmissible); Pate v. Texline Feed Mills, Inc., 689 S.W.2d 238, 245-46 (Tex. App.—Amarillo 1985, no writ) (National Electric Safety Code does not set standard of care and is inadmissible). See also  Rexrode v. American Laundry Press Co., 674 F.2d 826 (10th Cir. 1982); Mississippi Power & Light Co. v. Whitescarver, 68 F.2d 928 (5th Cir. 1934).

However, there may be other potentially valid reasons that a plaintiff would want to admit evidence of a policy. For example, in Seay v. Travelers Indem. Co., in a summary judgment appeal, a court of appeals reviewed a manual drafted, printed, and issued by the insurer for its authorized inspectors, which required that code violations be brought to the attention of its insured when discovered. 730 S.W.2d 774, (Tex. App.—Dallas 1987, no writ). The issue was whether an insurance company had a duty because it inspected a boiler, and  the manual’s directive was not asserted as the source of the insurer’s duty, but rather as evidence of the purpose behind the insurer’s undertaking of the inspections. Id. at 778-79.

Additionally, another court has held that even if internal policies and procedures do not create the standard of care and do not create a negligence duty, they may still be admissible and may be considered by an expert who may opine on the standard of care and causation.  See Dana Corp. v. Microtherm, Inc., No. 13-05000281-CV, 2010 Tex. App. LEXIS 408 (Tex. App.—Corpus Christi January 21, 2010, pet. granted, vacated in part by agr.).  That court held:

Dana argues that Microtherm’s causation case cannot rest on Dana’s own reports and internal evaluations and policies to substitute for the needed expert testimony. However, the cases relied upon by Dana, FFE Transportation Services, Inc. v. Fulgham and Fenely v. Hospice in the Pines, do not support this proposition. They provide only that a company’s self-imposed policies do not establish the standard of care and cannot be substituted as the industry’s standard of care in determining a breach. In this case, Trillo did not use Dana’s self-imposed policies, reports, and internal evaluations to establish the standard of care. She did not substitute Dana’s quality control reports for the industry’s standard. Trillo provided expert testimony on causation. She reviewed Dana’s own reports on quality control and its internal evaluations and used information from the reports to provide support for her opinion on causation. Neither case relied upon by Dana addresses the application of internal reports, evaluations, and policies to a determination of causation. Neither case supports a conclusion that Microtherm’s expert cannot consider Dana’s 8-D correction report or the April quality control report in arriving at an opinion on causation. Whether or not corrective actions were taken at Dana’s assembly plant pursuant to a company policy which did or did not exceed the existing standard of care, the evidence established there was contamination in the assembly of the thermistors, which according to Trillo, was a producing cause of the failure of the thermistor.

Id. at *35-36.  See also Flowers v. Torrence Memorial Hosp. Med. Ctr., (1994) 8 Cal.4th 992, 45;  Jutzi v. County of Los Angeles, (1988) 196 Cal.App.3d 637; In re Irrevocable Inter Vivos Trust, 305 N.W.2d 755 (Minn. 1981) (expert testimony about another bank’s investment policies was admitted to prove that trustee did not breach duty).

For further example, evidence of a habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Tex. R. Evid. 406. However, “proof of custom will not be admitted to contradict a fact plainly proved by positive testimony, nor is evidence of the custom of individuals engaged in business in one locality relevant on the question of usage in another locality.” Tex. Jur. Evidence § 190.  Also, “evidence of a custom is not admissible where it violates a rule of law.” Id.

It should also be noted that Texas Rule of Evidence 403 (similar to Federal Rule 403) states: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. Courts are careful to differentiate between using internal rules as evidence and using them as standards of conduct. But this distinction may not be apparent to a lay jury, and the evidence may be confusing to them and unfairly prejudicial to the defendant.

It is important to note that evidence may be competent for one purpose, but not for another. When evidence that is admissible as to one purpose but not admissible as to another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Tex. R. Evid. 105(a). Courts have routinely held that a trial court should instruct a jury on the limited purpose of policies and that such policies may not be used as evidence of the standard of care. Therrien v. Target Corp., 617 F.3d 1242, 1256 (10th Cir. 2010); Wal-Mart Stores v. Wright, 774 N.E.2d 891 (Ind. 2002) (internal rules “can be received into evidence with an express caution that they are merely evidentiary and not to serve as a legal standard”); Mayo v. Publix Super Mkts., Inc., 686 So. 2d 801, 802 (Fla. Dist. Ct. App. 1997) (“a party’s own internal rule does not itself fix the legal standard of care in a negligence action,” and the party “is entitled to appropriate jury instructions to that effect”); Clarke v. N.Y.C. Transit Auth., 174 A.D.2d 268, 276 (N.Y. App. Div. 1992) (“prejudicial error” to admit “the internal rules, without limiting instructions”). But where a party fails to object or request such an instruction, the court’s action in admitting the evidence without limitation shall not be a ground for complaint on appeal.

E.  Conclusion

Company policies may or may not be admissible in litigation depending on the jurisdiction and the issue. In any event, they should not be admissible for the purpose of establishing the legal duty or the standard of care that a defendant owed a plaintiff.

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

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