Wednesday, August 31, 2016

Can One Spouse be Forced to Testify Against the Other?

Originally published by Danielle Bonanno.

Can My Spouse be Forced to Testify Against Me in a Criminal Trial in Texas? Everyone knows (or should know) of the attorney-client privilege which prohibits the calling of an attorney…

The post Can One Spouse be Forced to Testify Against the Other? appeared first on Fort Worth Criminal Defense Attorney DWI Lawyer.

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Can I Sue a Doctor for Giving Me Bad Advice?

Originally published by Aaron Herbert – Texas Injury Attorney.

Society relies on health care professionals to provide life-saving procedures, treatments, and medical advice. When patients suffer an illness or injury, they trust physicians to locate the source of the problem and recommend a solution based on years of special training and expertise. Doctors have a duty to uphold high standards of patient care, by law and under the Hippocratic oath. While an honest mistake is not grounds for a medical malpractice lawsuit, negligence resulting in injury is a reason to seek legal counsel.

Negligence and Medical Malpractice

The foundation of every medical malpractice case is a physician’s alleged negligence. When a doctor fails to exercise the proper standards of care, including giving bad advice to a patient, it isn’t necessarily malpractice. Bad advice can simply be an honest oversight. People rely on physicians for help deciding on a course of treatment based on information and symptoms the patient provides. Unfortunately, this treatment may not always be what is best, and if another physician reasonably would have given different advice in the same situation, it may be negligence.

For a case of medical negligence, you must prove four things:

  1. The doctor owed you a standard of care. A doctor-patient relationship must exist between you and your doctor at the time of the alleged bad advice. To do so, you must show that the doctor in question was in fact your doctor at the time of the incident.
  2. The doctor breached an ethical duty to uphold this standard of care. In this case, the doctor gave you bad advice. You must prove the doctor’s reason for breaching the standard of care stemmed from negligence, such as not listening to your symptoms or reading your patient chart.
  3. The doctor’s breach of duty caused your injury. It’s not enough to prove that a doctor was negligent and breached the acceptable standards of care. The breach must have caused you an injury. For instance, you must provide proof that taking the doctor’s bad advice worsened your condition.
  4. You suffered damages as a result of the negligence. If you didn’t suffer damages from the doctor’s breach of duty, there’s no point in pursuing a lawsuit.

If you can prove these four things, you likely have a case of medical negligence on your hands. Your doctor may have been distracted during your appointment, or the hospital could have mixed up your medical records. There are many types of negligence and reasons a doctor may give bad advice to a patient, but in every case the injured patient has the right to pursue recovery.

How to Establish Wrongdoing

Medical malpractice cases can be complex, with a heavy burden of proof on the victim. Establishing a doctor’s wrongdoing requires interviewing eyewitnesses, such as nurses or maintenance crewmembers, analyzing your medical records, and hiring an expert key witness to testify. The key witness can tell the jury what the defendant reasonably should have advised according to professional standards. In a case of bad advice, proving negligence is especially difficult. The doctor may have believed the actions or advice he or she provided was best based on the symptoms.

Luckily, the law recognizes the difficulties a plaintiff faces when proving medical negligence. If your injuries were the direct result of a doctor’s negligence but you can’t pinpoint exactly what the doctor did wrong, you can invoke a legal doctrine called “res ipsa loquitur,” Latin for “the thing speaks for itself.” This implies you only have to show you suffered an injury that must be the result of negligence. Consult with an expert Dallas personal injury attorney about your bad advice incident and subsequent injuries to find out if you have the elements of a medical malpractice case.

The post Can I Sue a Doctor for Giving Me Bad Advice? appeared first on Aaron Herbert – Texas Injury Attorney.

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Tuesday, August 30, 2016

Blogging and Non-Fiction: What the Best Share in Common

Originally published by Cordell Parvin.

I have spent a career reading non-fiction. I haven’t updated it recently, but here is my  Recommended Reading 2016. (Really 2013)

In 2013 I wrote There’s a Book For That with short summaries of several of my favorites.

Why do authors like Malcolm Gladwell, Seth Godin, Daniel Pink and so many others appeal to me? They entertain me, primarily with stories and in the process I learn something.


For example, have you read Malcolm Gladwell’s book The Tipping Point, or his book Outliers? Especially if you haven’t read it, here is my article: Tipping Point for Lawyers article.

Have you read Daniel Pink’s: To Sell is Human? Especially if you haven’t here is my blog: Recommended Reading: To Sell is Human.

Have you read Seth Godin’s book Linchpin? In the book I talks about our Lizard Brain to sabotages us. I wrote about it in Client Development: Self Sabotage.

The writers are writing on different subjects, but they share one thing in common. They are master storytellers and that is why we keep reading.

I’ve written about that skill many times. Here’s just one example: Client Development: One Incredibly Important Skill to Work On.

If you want readers to keep reading your blog, become a master storyteller. If you are a lawyer I coach, I’ve shared with you bloggers I like because I feel like I just met them for coffee after I read their blog post.

Do you want to dive into this subject further? Read: The Story Grid Spreadsheet for The Tipping Point and the follow on blog posts where Shawn Coyne explains why The Tipping Point works as a series of stories.

Finally, you may know I did a Webinar last week for MyCase.  Here is a link to Webinar Recap: Build Your Practice Through Blogging.

The post Blogging and Non-Fiction: What the Best Share in Common appeared first on Cordell Parvin Blog.

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Two of Three Intellectual Ventures Patents Invalidated Under Section 101

Originally published by Michael C. Smith.

Marshall courthouseLast week Judge Gilstrap ruled on another set of 101 motions, this time by defendant J. Crew Group against plaintiff Intellectual Ventures.  The Court granted the motion as to two of the three patents, finding that both were directed at patent-ineligible subject matter.  The Court found that the third was not, however.

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Sure there are a kazillion eMails, but eMails are not automatically admitted as evidence

Originally published by Peter S. Vogel.

A recent case made it clear that under Federal Rule of Evidence 803(6) there was no “absolute right to admission of emails under the business records exception.” In Roberts Technology Group, Inc. v. Curwood, Inc., No. 14-5677, 2016 U.S. Dist. LEXIS 64538 (E.D. Pa. May 17, 2016) the court found that:

…the plaintiff had failed to provide “specific evidence” demonstrating the emails qualified as business records because there was no evidence that the emails were regular business records, were received by the plaintiff as part of its normal business practices, or had been retained pursuant to an email or electronic data policy.

On August 29, 2016 the Trial Evidence Committee of the American Bar Association Litigation Section published Kirsten R. Fraser’s (associate with Porter Wright Morris & Arthur LLP in Columbus, Ohio) article entitled “Admitting Emails under Rule 803(6) Is No Slam Dunk” that discussed a number of cases and advised the importance of:

(1) critically evaluating the content of emails before raising the business records exception, and
(2) providing foundational testimony through proper testimony at trial.

This article provides excellent advice given the critical care content found in eMails in the very case.

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The Book of Strange New Things (book review)

Originally published by The Movie Court.

A book review from The Movie Snob.

The Book of Strange New Things, by Michel Faber (2014).  I don’t remember where I read about this sci-fi novel, but the premise grabbed me—in the near future, a Christian preacher is selected to journey to another planet and preach the faith to the humanoid aliens who live there.  So I eventually found it at Half-Price Books, and I have to say it was a really good read.  I won’t say anymore, but if the premise sounds appealing at all, I urge you to check it out.  Incidentally, it was only after I finished the book that I realized that Faber also wrote the novel Under the Skin, on which the indelibly creepy Scarlett Johansson movie was based.  If I had realized that fact earlier, I might have been scared off from reading The Book of Strange New Things.  Glad I wasn’t!

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Monday, August 29, 2016

Zofran Litigation Update

Originally published by Blizzard & Nabers Blog.

More than 300 families are fighting pharmaceutical giant GlaxoSmithKline (GSK) over birth defects caused by the anti-nausea medication Zofran. With federal cases consolidated into a multidistrict litigation in Massachusetts, the litigation is making progress and moving closer to its first trial date.

This past May, plaintiffs filed a Master Long Form Complaint summarizing their shared allegations against GSK. Shortly thereafter, plaintiffs individually filed short-term complaints outlining their specific circumstances.

In July, GSK proposed a sequenced discovery plan for the litigation, which detailed the order in which the discovery could take place. The company believes discovery should focus on two questions first: (1) whether Zofran causes the specific birth defects alleged by plaintiffs and (2) whether GSK withheld relevant safety information from the FDA.

The plaintiffs immediately refused to agree to this discovery plan because it failed to address the company’s liability in illegally marketing Zofran. Plaintiffs want GSK to demonstrate how a medication never approved for use in pregnant women became the most popular morning sickness treatment.

In 2012, GSK paid $3 billion to the U.S. Department of Justice to settle criminal and civil allegations of fraud and illegal marketing of several drugs, including Zofran. The DOJ alleged GSK illegally promoted Zofran to pregnant women for the treatment of morning sickness even though the medication was never tested on or approved for use in pregnant women. The company’s sequenced discovery plan attempts to circumvent charges of illegal marketing, but plaintiffs aren’t going to let that happen. The sides have yet to agree on a discovery plan.

Zofran Birth Defects

In 2013, a study found that babies exposed to Zofran in utero were between two and four times more likely to develop birth defects, including congenital heart defects, cleft lip, cleft palate, club foot, and skull deformities, among others. Zofran was approved to treat nausea and vomiting in cancer patients and patients who have undergone surgery. Pregnant women were specifically excluded from the clinical trials that led to Zofran’s approval.

Zofran Birth Defects Lawyers

If you or someone you know took Zofran during pregnancy for nausea and your child was born with birth defects you may be entitled to compensation. Taking on pharmaceutical companies is an intimidating prospect, but the attorneys of Blizzard & Nabers have experience holding drug manufacturers responsible. Contact us today for a free consultation to discuss your case.

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EPA Grades Railroad Commission on Regulation of Injection Wells

Originally published by John McFarland.

The EPA has issued a report evaluating the Texas Railroad Commission’s regulation of injection wells: EPAreviewRRC The report criticizes the RRC in three areas, discussed below.

Injection wells, permitted by the RRC, are used to dispose of oilfield waste – produced water, frac water, and other fluids. These liquid wastes are injected into underground reservoirs determined to have no useable groundwater or producible hydrocarbons. Called Class II injection wells, Texas has more than 56,000 such wells – a third of all Class II injection wells in the U.S.

Injection of waste underground is governed by the Safe Drinking Water Act passed by Congress in 1974. That act allows states to take responsibility for permitting and regulation of injection wells if the state’s program meets the requirements of the SDW Act and the EPA. Texas has been regulating injection wells under authority delegated by the EPA since 1982. As part of that delegation, the EPA evaluates Texas’ performance each year and issues an annual report with its findings.

By and large, the EPA report finds that the RRC’s regulation of injection wells meets or exceeds the requirements of the Act. But the RRC is criticized in three respects.

First, the EPA says that

RRC representatives have publicly indicated that available scientific data do not support a causal relationship between Class II waste disposal wells in North Texas and recorded earthquakes. In light of findings from several researchers, its own analysis of some cases, and the fact that earthquakes in some areas diminished following shut-in or reduced injection volume in targeted wells, EPA believes there is a significant possibility that North Texas seismic activity is associated with disposal wells.

The EPA pointed out that there has been significant seismic activity in the DFW area, in and around Azle, Cleburne and DFW Airport, and that the RRC has worked with disposal well operators to reduce injection volume, and that seismic activity in these three areas has substantially diminished. The EPA report reminds the RRC that it participated in an EPA/State UIC National Technical Workgroup on injection-induced seismic activity that resulted in a report issued in February 2015, recommending strategies for managing and minimizing induced seismic activity, and EPA commended the RRC “for its influential involvement” and for “solidifying RRC authority to take appropriate action related to injection well operations.” The report concludes:

EPA is concerned with the level of seismic activity during 2015 in the Dallas/Ft. Worth area because of the potential to impact public health and the environment, including underground sources of drinking water. EPA recommends close monitoring of injection activity through daily recording and reporting of accurate injection pressures and volumes from area disposal wells coupled with appropriate data analysis methods, in a coordinated effort to detect possible correspondence with seismic activity.

(The EPA report was issued by its Dallas Regional Office, which undoubtedly experienced the quake activity in that area.) In a letter responding to the EPA’s report, the RRC said that the report’s statement that “RRC has publicly stated that available scientific data do not support a correlation between recorded earthquakes and Class II waste disposal” should be stricken from the report “because it is taken out of context and is, therefore, false and misleading.” The RRC’s letter says that “The Commission’s actions demonstrate a clear recognition of the potential correlation between injection and seismic activity.” In its final report, the EPA modified but did not eliminate its reference to statements by Railroad Commissioners that scientific data do not support a correlation between quakes and injection wells. It appears that the RRC, like Oklahoma before it, has had to admit (despite pressure from the industry) the link between injection wells and seismic activity — although, in two recent show cause hearings, the RRC found no link between two injection wells near the town of Azle and the quakes in that area.

Second, EPA is concerned about increased pressures related to injection wells disposing of fluids into the Rodessa Formation in East Texas. It notes that the RRC has responded to the pressure build-up by increased monitoring of wells in the area and special reporting requirements for these wells, and it recommends continued monitoring of wells injecting into the Rodessa.

Third, the report comments on the RRC’s efforts in “Identification and Delineation of Aquifer Exemptions.”  Any aquifer that contains water with less than 10,000 milligrams per liter (mg/l) of total dissolved solids (TDS) is considered under federal law a potential source of drinking water. Injection wells can be permitted into such formations only by “special exemption,” if it is determined that the aquifer water is not “reasonably expected to supply a public water system” — for example, if the waters are too deep or are already polluted. When the EPA delegated to the RRC the responsibility for regulating injection wells, it required that the RRC keep up with any injection wells permitted into such aquifers.  The report says the RRC has failed to identify what injection wells are operating in aquifers that have this special exemption. The RRC has said it is working to identify those wells and aquifers, but that doing so is “very resource intensive.” The EPA “recommends continue high prioritization of this effort.”

Aquifers with “brackish” water have recently become more important as potential sources of drinking water. Groundwater is generally not used for human consumption without treatment unless it contains less than 500 mg/l of TDS. The principal “solid” in water is typically salt, NaCl. Seawater contains around 35,000 mg/l of TDS. Water between 1,000 and 10,000 mg/l of TDS is considered “brackish” water.

As Texas’ population has grown and demands for water have increased, cities have looked to underground brackish water as a potential source of drinking water. San Antonio is completing a desalination plant to treat brackish water produced from the Wilcox formation. So injection of contaminated waters into water reservoirs whose water contains less than 10,000 mg/l of dissolved solids has become more important to groundwater districts, cities and other users looking for sources of potable water.  Not surprisingly, environmental groups have jumped on EPA’s criticism of the RRC’s failure to identify injection wells in “exempt” aquifers.

For more on the issue of aquifer exemptions, see Jim Malewitz’s article in the Texas Tribune.

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The Neglect Exclusion Does Not Apply to Pre-Loss Neglect

Originally published by Edward Eshoo.

Homeowner and commercial property insurance policies typically exclude loss or damage caused by or resulting from neglect.1 Under the ISO Homeowners 3-Special Form,2 neglect means “neglect of an ‘insured’ to use all reasonable means to save and preserve property at and after the time of a loss.” Under the ISO Commercial Property Causes of Loss-Special Form,3 neglect means “neglect of an insured to use all reasonable means to save and preserve property from further damage at and after the time of loss.” As both forms clearly and unambiguously state, the exclusion does not apply to pre-loss neglect. Rather, it applies only to neglect of an insured at and after the time of loss.4
But, what if the purported neglect occurred after an incident which also resulted in a loss? That was the issue raised in Chicago Import, Inc. v. American States Insurance Company. There, a sprinkler at the insured’s warehouse sprayed water, damaging inventory. The…


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SCOTUS Cases from the Fifth Circuit

Originally published by Jason P. Steed.

circuit_map_in_agency_palette-full-sizeLast term the Supreme Court decided nine cases that arose in the Fifth Circuit. The Fifth Circuit was reversed five times and affirmed twice, and the two remaining cases (on Obama’s immigration plan and on tribal-court jurisdiction) ended in a 4-4 tie. So far, for OT2016, there are only four cases that arose in the Fifth Circuit. Here’s a quick overview of those cases:

Moore v. Texas — Moore was sentenced to death for a crime committed in 1980.

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Don’t Forget Annual Gifts to Family in Estate Planning

Originally published by Paul Romano.

Texas residents (and folks from other states, as well) harbor a number of misconceptions about wills, trusts, and estate planning. One all too common notion is that estate planning is a “once done, put it away” type of matter. That is to say that many folks meet a few times with their investment advisers, talk matters over with an attorney, sign some documents, and park the wills and trusts in a lock box, without much thought thereafter about “the plan.” In all truth, however, while appropriately drafted documents are vital to the preservation of an estate and to the distribution of property following death, the “planning” never really stops.

In fact, most persons with modest-sized and larger estates generally benefit from a specific, annual program of giving to members of the family. Here are four points to keep in mind.

Point 1: The Estate and Gift Tax Exemption May Be Less Than You Think

According to regulations released by the Internal Revenue Service late in 2015, the estate and gift tax exemption is $5.45 million per individual, up from $5.43 in 2015. That is to say, an individual can distribute $5.45 million to his or her heirs (and others) and pay no federal estate or gift tax. That sounds like a lot and in a true sense it is. On the other hand, if you own substantial real estate, or have a strong ownership interesting in a successful business, that exclusion figure may quickly be reached.

Point 2: Gifts up to $14,000 Can Be Made Without Reducing the Exemption Amount

In addition to the $5.45 million lifetime exclusion, one may give an individual up to $14,000 annually, without any gift tax liability. One can allow any investment growth related to that $14,000 asset to be taxed at the beneficiary’s income tax rate, instead of the giver’s. Even in Texas, which has no income tax, this still can save money if your children are in lower federal tax brackets than you.

Point 3: Assets That Have Already Appreciated Need Careful Attention

If you have assets that have already appreciated, you will want to be careful. While it may be advantageous from a federal income tax aspect to pass the assets along now, one should not forget the “stepped-up basis” that occurs when the appreciated property is inherited (the heir gets a basis as of the date of death, instead of the lower basis that the original owner had).

Point 4: Specialized Trust Instruments Can Be Utilized to Meet Your Needs

If your children are too young or inexperienced to manage the gifts on their own, trusts can be utilized to meet your needs of moving the property out of your estate, all the while protecting the assets for the future.

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Annual Family Giving is a Great Part of an Estate Planning

One of the additional benefits of annual giving to family members is the fact that you get to see the difference your gifts make in the lives of your loved ones; testamentary devices provide no such satisfaction. The attorneys at Romano & Sumner, LLC have more than 20 years of combined experience providing expert legal assistance to clients in all types of estate planning and administration transactions. We developed many successful estate plans, and have crafted wills and trust instruments that meet the individual needs of our clients. At Romano & Sumner, we take pride not only in our professionalism, but also our client service. We know that each situation is unique. We return phone calls within one business day. We keep clients informed. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.

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Employee or independent contractor? Label not controlling.

Originally published by David Coale.

TI_SpeakSpellDespite a contract between Texas Instruments and Volt, an employment agency, saying that Volt was an independent contractor, the Fifth Court reversed a jury verdict on the issue of whether Udell – a worker supplied by Volt – was an employee for purposes of workers compensation. Reviewing the record in detail, the Court concluded that “Udell was working on TI’s premises, in furtherance of TI’s day-to-day business, and the details of Udell’s work that gave rise to his injury were directed by TI.” Texas Instruments v. Udell, No. 05-14-01042-CV (Aug. 24, 2016) (mem. op.)

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Seeking attorneys with hobbies

Originally published by Lindsay Stafford Mader.

A mom who writes and performs spoken-word pieces to audiences around Austin. A Houston man who photographs polar bears and lions from just a dozen feet away. A Dallas cancer survivor who sailed around the world. A Woodlands grandfather who swims with great white sharks.

All of these people have been profiled as lawyers with fascinating hobbies in the Texas Bar Journal. But we know there are even more attorneys out there who relax after a long day or stressful week by creating art, banging on drums, hiking in nature, or looking for thrills.

It’s all part of finding that seemingly elusive but important work-life balance. By sharing these stories through our In Recess column, the Texas Bar Journal hopes to show that attorneys are dynamic individuals and to inspire other lawyers to unwind and express themselves. So, we’re wondering:

  • Are you a Texas attorney who has an unusual hobby?
  • Or is your hobby rather common (like golfing or running) but you spend impressive amounts of time doing it or you have been recognized with certain awards or honors?
  • Do you know any lawyers who spend their free time doing something interesting?

Give us a heads’ up by responding in the comments field below, emailing us at, or filling out a form at If you’re a good fit, one of our editors might reach out to you for an interview.

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Court Holds Preliminary Injunction Hearing in “Houston College of Law” Trademark Case

Friday, August 26, 2016

Disorgement 101

Originally published by David Coale.

disgorgement memeIn Cooper v. Campbell, the Fifth Court reviewed the key principles that govern “equitable remedies such as disgorgement and forfeiture to remedy a breach of fiduciary duty” —

  • “The central purpose of forfeiture as an equitable remedy is not to compensate the injured principal, but to protect relationships of trust by discouraging disloyalty.
  • “Disgorgement is compensatory in the same sense as attorney fees, interest, and costs, but it is not damages. . . . In fact, a claimant need not prove actual damages to succeed on a claim for forfeiture because they address different wrongs. In addition to serving as a deterrent, forfeiture can serve as restitution to a principal who did not receive the benefit of the bargain due to his agent’s breach of fiduciary duty. . . .”
  • “The amount of disgorgement is based on the circumstances and is within the trial court’s discretion.”

The Court then remanded for more fulsome consideration of factors identifed in ERI Consulting Engineers v. Swinnea, 318 S.W.3d 867 (Tex. 2010). No. 05-15-00340-CV (Aug. 24, 2016) (mem. op.) On the general subject of disgorgement, other useful references from the Fifth Court are its recent opinion in Premier Pools Management Corp. v. Premier Pools Inc., and McCullough v. Scarbrough, Medlin & Associates, 435 S.W.3d 871, 904 (Tex. App.-Dallas 2014, pet. denied).

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Grow your practice by not marketing everything you do

Originally published by Sue Lyon-Boggs, Guest Blogger.

To maintain a thriving practice, lawyers must constantly find ways to grow and expand their client base. In an effort to cast a wider net, especially when work is slow, many expand their list of practice areas.

But in today’s world, many people want to work with a specialist, and these clients expect their legal counsel to know more and more about an increasingly narrow area of law. One of the main ways to consistently bring in new business is to use a niche approach to organizing your marketing efforts and making effective use of your most valuable resource: your nonbillable time.

Search engines and social media platforms such as LinkedIn give prospective clients the ability to vet the experience of prospective firms and lawyers, so demonstrating specific legal knowledge matters more and more.

Some compelling reasons to consider forming a niche:

  • Less competition. By narrowing your focus, you’ll be chasing work in a much smaller field. The more sophisticated your niche, the fewer lawyers you will have as competitors. For example, you may handle estate law for a broad range of clients, but you can market your practice to a specific segment where you have experience, such as positioning yourself as an estate lawyer who works with high net worth individuals with large land holdings in South Texas. To do something like this, you could write a column for a trade association publication or serve as a speaker at its monthly luncheons. You could also reach out to journalists in the region who focus on ranching and agriculture and offer to serve as a source when they are covering significant trends.
  • Focused marketing efforts. Once you determine the kind of work you want to target, take a systematic look at how to reach more of those kinds of clients. Say you are an eminent domain lawyer and want more projects from large retailers. Develop a couple of summaries on specific topics—maybe water issues or economic development in Texas—and pitch them to trade publications and conferences where the industry’s players meet nationally or locally. Your goal is to be busy doing legal work while still regularly setting aside a predetermined amount of time for activities aimed at getting new business. Make sure those efforts are targeted rather than scattershot.
  • You’ll develop a reputation. Maybe you’re part of a firm that handles a broad range of tax matters—planning, due diligence on transactions, and controversies—but you worked for many years at the IRS on sensitive and high-profile cases. On a daily basis, you may do it all. But highlight your deep knowledge of the agency’s procedures and your contacts there, and you will attract clients facing high-stakes confidentiality and controversy cases. Positioning yourself as somebody knowledgeable and skilled in this space means writing regular, timely client alerts on significant changes to IRS guidelines and landing spots on panels at events that in-house tax types frequently attend. Show them you understand specifically what keeps them awake at night. And remember, when companies are faced with such critical matters, they will be willing to pay more for experience.
  • You’ll be memorable. If you are a criminal defense attorney, you probably take cases running the gamut of offenses. You’re likely to rely heavily on referrals. A niche marketing strategy can be particularly effective for your practice. If, for example, you have significant experience representing defendants in domestic violence cases, speak and write in channels that reach family lawyers who handle civil matters in your jurisdiction.

Make sure your website places an emphasis on your area of focus and has a section devoted to FAQs and your regularly updated blog. Include key words and phrases to drive traffic to your biography or firm description. When people remember you for a particular type of skill, they will send you referrals.

While your days in the office may contain a range of matters, what you market should be narrow, distinctive, and aimed at a specific audience. It will take a long-range approach and consistent effort, but carving out a reputation in a focus area will win you work.

Sue Lyon-Boggs is based in Fort Worth. She coaches individual lawyers and provides law firms with business development training to drive higher revenue. She can be reached at and on Twitter at @suelyonboggs.

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Top 10 from Texas Bar Today: Exemption, Representation, and Taxation

Originally published by Joanna Herzik.

TexasBarTodayTopTenBadgeJune2016To 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. Dallas Buyers Club sues Voltage Pictures for suing defendants using the Dallas Buyers Club, LLC name, but not sharing proceeds. – Robert Z. Cashman of Cashman Law Firm, PLLC @HoustonLawy3r in Houston

9. Does Property Passed by Transfer on Death Deed Receive a Step-Up in Basis?Rania Combs @raniacombs of Rania Combs Law in Houston

8. Texas Federal Judge Triples Patent Award Against Samsung to $21 Million – John Council @john_council of Texas Lawyer in Dallas

7. Standing, by any other name, would be standing.David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

6. Court Affirms Dismissal Of Will Contest Based On Public Policy Arguments Arising From Sexual Abuse AllegationsDavid Fowler Johnson @TXFiduciaryLit of Winstead PC in Fort Worth

5. Second Bites at the Summary-Judgment Apple (Part I)Laura P. Haley of Smith Law Group LLLP @SmithLawGroup

4. Texas Anti-SLAPP Commercial Speech Exemption does not apply to Blogger’s Statements about Wedding PhotographerClaire James of Cowles & Thompson @CowlesThompson in Dallas

3. Alone…or Perhaps…Not Quite So Alone as 1L Students?Professor Amy Jarmon, Assistant Dean for Academic Success Programs at Texas Tech University School of Law @TTU_Law in Lubbock

2. Opinions, August 25, 2016: You Can’t Represent the Husband AND the Wife in DivorceMatthew A. Knox of Laura Dale & Associates, P.C. @DaleFamilyLaw in Houston

1. Expatriate Taxation – Don’t Be a Cowboy!David Ellis of Baker & McKenzie @bakermckenzie in Houston

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Houston Legal Links 8/26/2016

Originally published by Mary Flood.

Top legal news includes: Texas law restricting craft brewers declared unconstitutional; Judge sidesteps request to stop HISD from renaming 8 schools; Are Companies Responsible If Their Employees Contract Zika On The Job?; Sigma Nu Fraternity suspends A&M chapter after death of member; TCU removes Phi Kappa Sigma fraternity for hazing, other misconduct; Texas Booze Regulators Uncork Bar-Busting App; Harris County Clerk Will Vet Voters Who Claim to Lack Photo ID; EPA to Decide if Tons of Toxic Sludge Will Remain in San Jacinto River; Metro Releases New Video Of Near-Misses On the Light Rail Lines; Timeline For Texas’ Cannabis Oil Law Leads To Medical Refugees; Mother accused of drowning kids faces death threats in jail (Chron subsc); Siphoned IRA funds went for pool cleaning, country club, regulators say (Chron subsc); Houston area real estate agents warned of ‘foot fetish’ caller; Did a Donor Persuade Mayor Turner to Refuse Uber’s Wishes?; Indicted Border Patrol Agent’s Brother Strikes Deal in Beheading Case; Not looking for love: Texas death row inmate pleads for help in pen pal posting; Java With the Judges – 8/31 Civil Judge Hinde; Ex-porn star in Houston sues Facebook chief for $1B; Veracruz government official resigns after Houston discovery; Texas couple claim dog is killed over Hillary Clinton sign; Texas GOP Officials: Controversial Travis County Chairman is Out; Key Energy joins ranks of oil-related companies filing bankruptcy & Duke University files $9.9 million claim on McClendon estate.

For the water cooler: Law firms may bill for work of unpaid interns, ethics opinion says; Rise of ramen noodles as jailhouse currency shows ‘punitive frugality’ of prisons, study author says; Does Airbnb have a legal responsibility to end bias by its hosts?; The Struggle: When Your Biglaw Firm Forces You Out Because Of Your Depression And Alcoholism; 10 Questions Live: How Kristen Clarke is fighting voter suppression; The Second Circuit Holds That Employees Can Be Fired For Not Wanting To Incriminate Themselves; Lawyer’s death is ruled a homicide; he died from fire and blunt force; Law prof loses assault suit over alleged shoulder grab by colleague; Hunton merger talks with UK law firm reportedly stall following Brexit vote; Judge tosses law firm’s suit claiming client raised a ruckus, causing lost business; The Arrogant Lawyer’s Guide To Looking Important; ‘The Brain’ and ‘The Monster’: The Many Personas of Judge Richard Posner; Law professor is among those killed in attack on American University of Afghanistan; Clinton Foundation’s Real Sin Was Helping Black And Brown Foreigners Instead Of Puppies & Standard Of Review: ‘Suits’ Upends The Status Quo, But Still Strains Credulity.

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How Not to Comply With a TRO

Originally published by David Coale.

Iwatercoolern some detail, the district court ordered Altesse Healthcare not to deplete the assets of a business, whereupon: “Altesses’s actions in failing to comply with the TRO resulted in destroying the value of the company over which the lawsuit was based. 

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Alone…or Perhaps…Not Quite So Alone as 1L Students?

Originally published by lawschool academicsupport.

Wow…For those of you as 1L students, perhaps you feel like I did when I started law school…alone. But, here’s some great news! We are not alone; rather, we are “ALL”-alone! You see, at least according to posters made by…

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How To Welcome Your New Client

Originally published by Stacey E Burke Blog.

No matter what type of practice you have or the size of your law firm, welcoming a new client in a meaningful way remains important. Kicking off someone’s first experience with your business provides an excellent opportunity to showcase your customer service and start things off on the right foot. The initial welcome can help keep client expectations reasonable and build the trust and confidence that you need to succeed.

The welcome message is critical — it is one of the single most important communications businesses can send. Customers are five times more likely to engage with you in the first 90-100 days than at any other point. So, it’s very important that you have a dialogue with them at the onset not just the end.

A law firm’s primary objectives in developing and utilizing a new client welcome packet include (1) reinforcing the good decision the client made in hiring your law firm, (2) easing your client into the often new and unfamiliar world of the legal industry, and (3) providing all of the necessary information a client will need in one place.

There are many variables that affect the attorney-client relationship. Some of the most relevant include:

  1. Some firms have their clients execute employment contracts in person and some firms send contracts in the mail or electronically to be signed remotely.
  2. Some engagements are project-based, hourly, or worked off of a retainer and some engagements involve a contingency fee and last until the case is resolved, regardless of duration.
  3. Some clients are businesses, where you work with an individual or a group of individuals authorized to act on behalf of the company. Some clients are individual people who have suffered an injury due to the negligence of a third party. Some clients are groups of people affected by a common issue.

Say Hello For Real: Welcome Packet

Providing your client with easy-to-digest information at the inception of your working relationship will do a lot to ease their concerns. You can provide this information in hard-copy format or electronically (or both). Providing instructions, timelines, expectations, and more will help set your law firm apart from others in your field and define the parameters of your working relationship with your clients.

Make sure your law firm’s new client welcome packets are welcoming, professional, useful, and make a great first impression. A sleek, professional look and feel goes a long way toward showing the client that you are a financially solvent entity that has sufficient business to warrant the expenditure of marketing dollars on such handouts.

The Core Components of a Law Firm Welcome Packet

  • Welcome letter
  • Contact information sheet: provide contact information for the employees the client will be dealing with on a regular basis
  • Policies and procedures
  • Financial information sheet about billing rates, when to expect invoices, and potential firm expenses. This can even include a sample invoice.
  • Fee agreement/contract of employment
  • Authorizations

Give Them Structure: Regularly Scheduled Meetings

Scheduling meetings in advance between you and your client, whether they are once a week, once a month, or once a quarter, avoids common lack of communication complaints. This allows you to get customer feedback on an ongoing basis during the course of your representation. Be sure to welcome and ask for constructive feedback from each client.

You can still provide your client with a variety of options for these meetings, including face-to-face, Skype, phone call, and more.

Give Them Something To Remember You By: Swag

Sometimes the little things can make all of the difference. When a law firm provides free swag, if it is really cool and useful, the recipients take notice and find it memorable. Swag refers to branded tangible items that a business gives out as a form of advertising –including elements like the entity’s colors, logo, and tagline.

Many law firms buy swag in bulk and seek to use it year-round, but an easy way to differentiate your practice is to provide seasonal items. In the summer, you can provide branded beach towels, sunhats, portable headphones, Frisbees, and grilling utensils. I live in Houston, Texas and we always need more umbrellas, especially during tropical storm and hurricane season. A few expert tips include avoiding heavy, bulky items that are not easy to transport (like a paperweight) and providing something useful (like a travel first aid kit).

You can also take your swag to the next level by taking photos of your clients, staff, and others with your branded items for use on your website, social media channels, and other digital assets.

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Texas Federal Judge Triples Patent Award Against Samsung to $21 Million

Originally published by Texas Lawyer.

Becoming one of the first in the nation to do so under recently-set U.S. Supreme Court precedent, a Texas federal judge tripled patent infringement damages against Samsung in a case brought by Imperium IP Holdings.

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Thursday, August 25, 2016

Opinions, August 25, 2016: You Can’t Represent the Husband AND the Wife in Divorce

Originally published by maknox.

Today the Fourteenth Court of Appeals released one published opinion, In re L.T.H., Cause No. 14-15-00366-CV, and one memorandum opinion in a mandamus proceeding, In re Quintanilla, Cause No. 14-16-00473-CV.

First, the memorandum opinion because it is amusing. On November 8, 2015, Relator Jose Quintanilla retained attorney Michael G. Busby Jr. of Busby & Associates, P.C. to represent him in his divorce. Three days later, Jose’s wife Silva Garcia hired Busby. Busby eventually returned Silva’s retainer and declined to represent her because he already represented Jose.

Busby filed an original petition for divorce on behalf of Jose. Silva answered and filed a motion to disqualify Busby. The associate judge granted the motion, as did the presiding judge after a de novo hearing.  Busby filed a mandamus on June 14, 2016.

Evidence was presented at the disqualification hearing that Silva had met with a legal assistant in Busby’s office, filled out an “extensive” application, and provided documents regarding the marital estate. Busby never personally met Silva. Silva paid a $2,500 retainer and the legal assistant informed her the firm would start to work on the case in 2-3 days. Silva signed an employment agreement, but no attorney in Busby’s office signed it.

A few days later the firm discovered the conflict and informed Silva her retainer would be returned to her because of the conflict. Her documents were not returned to her and she was informed that her personal information had been destroyed. Silva testified that she had no way of knowing if her personal information had actually been destroyed. Busby asserted he did not have the documents she claims created a conflict.

Busby argued at the hearing that Silva had not retained his firm because no one in the firm signed the contract. The Court of Appeals held that the trial court had sufficient evidence to support a finding of an intention to create an attorney-client relationship (Silva paid the $2,500 retainer, she was told the case would start working on her case).

Busby also argued there was no genuine threat that Busby could divulge confidential information he may have obtained in his brief representation of Silva. In support of this, Busby submitted affidavits from attorneys, paralegals, and legal assistants at his firm, all testifying that they had no access to any of Silva’s confidential information. He also argued that Silva had not given him confidential information. The Court of Appeals held that there is a “conclusive presumption” that the existence of an attorney-client relationship establishes as a matter of law that confidences were imparted to the attorney. The trial court did not abuse its discretion in settling this fact issue (whether Silva gave Busby’s firm confidential information) in Silva’s favor. Silva met her burden to disqualify Busby from the case.

Busby also argued the trial court abused its discretion in not considering alternatives to disqualification such as questioning Silva about the alleged information she provided to the firm or inspecting the firm’s files. But an attorney’s former client is not required to disclose confidential communications with former counsel to show actual prejudice to support disqualification. Because Silva met her burden, the trial court did not have to consider alternatives to disqualification.

Finally, Busby made a laches argument, contending Silva waived her complaint by not moving to disqualify his firm for five months after discovering the conflict. But Silva testified that she didn’t know the divorce had been filed until March 2016 because of service issues and she filed her motion to disqualify on April 29. As this was only a four-week difference and still in the beginning stages of the case, the Court of Appeals overruled the issue.

The petition for writ of mandamus was denied.

The published opinion released by the Fourteenth, In re L.T.H., concerns ambiguities in a mediated settlement agreement in a modification case. The Court of Appeals held those ambiguities should have been submitted to the mediator/arbitrator per the MSA.

In June 2014, the father filed a petition to modify , seeking to expand his possession. The trial court signed temporary orders which expanded his possession rights.

The trial court referred the parties to mediation. On February 6, 2015, they signed an MSA which included possession provisions. The MSA also provided that the parties would submit drafting disputes, interpretation issues, and issues regarding the parties’ intent to binding arbitration with the mediator.

On February 27, in a hearing not attended by the mother, the trial court orally granted the relief agreed to in the MSA. Less than a month later, the trial court held another hearing to address a dispute concerning the language of the proposed order on the MSA drafted by the father’s attorney. The mother argued the proposed order was contrary to their agreement but the trial court disagreed. On March 20, 2015, the trial court signed an Agreed Order based on the MSA.

In her sole issue on appeal, the mother contended the trial court abused its discretion by granting judgment on an order inconsistent with the MSA. Specifically, she argued the trial court’s final order substantially differed from the MSA because it awarded the father additional time with the child that he did not have under the temporary orders and changed the pick-up and return times, to the father’s advantage.

The Court of Appeals detailed the dispute concerning interpretations, but the bottom line is that, under the MSA, these disputes concerning interpretation and intent were to be submitted to the mediator/arbitrator, not the trial court. As such, the trial court erred in resolving the dispute at all. The Court of Appeals ordered the trial court to reverse the relevant provisions of the agreed order and remanded the case for further proceedings.


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Texas: Arbitrator did not exceed authority by awarding damages not encompassed by arbitration agreement

Originally published by Gene Roberts.

In Patel v. Moin, the Fourteenth Court of Appeals affirmed the trial court’s judgment confirming an arbitration award. The arbitrator did not exceed her authority by awarding damages that were not encompassed by the arbitration agreement.
This arbitration started with an agreement that was part of the operating agreement for a health center. After a lawsuit was underway, the parties signed a one-page “Agreement for Binding Arbitration” that included other parties.
The arbitration commenced and the arbitrator did not award damages for lost profits (because those damages were “too speculative”) but did award damages for breach of contract, including an award of attorney’s fees. The arbitrator also awarded arbitration costs and attorney’s fees to a party finding that certain claims were groundless and brought in bad faith.
The arbitration agreement encompassed all claims and counterclaims then pending before the trial court. When the arbitrator awarded breach of contract damages, the movants for va …

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Standing, by any other name, would be standing.

Originally published by David Coale.

scarfaceCotton v. Certain Underwriters at Lloyds, a dispute about payment for wind damage from Hurricane Isaac, presented an issue about who was entitled to sue. The Fifth Circuit reminded that “‘Standing’ . . . is a label used to describe different things in the law.” One use is “whether a party has a right to sue under a contract.” That use, which presents “an issue of ‘contract interpretation,’” is “entirely distinct from ‘standing’ for purposes of Article III” and its jurisdictional consequences. No. 15-31005 (Aug. 1, 2016).

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Texas: Trial court affirmed–arbitrator did not exceed scope and “violation of public policy” is not a grounds for vacatur

Originally published by Gene Roberts.

In Infinity Capital II, LLC v. Strasburger & Price, LLP, the First District Court of Appeals held that the trial court properly confirmed an arbitration award, in spite of a motion to vacate that argued the underlying settlement agreement was not valid, the arbitrator exceeded his powers, and the final award violated public policy.
The parties had agreed to a transfer of real properties to Strasburger. Strasburger alleged that the transfer did not take place and the properties were fraudulently transferred to another entity. The earlier settlement agreement contained an arbitration provision and named the arbitrator.
The Court of Appeals affirmed the arbitration award, finding that (1) an attack on the entire settlement agreement was not a sufficiently specific objection on the arbitration agreement; (2) the arbitrator did not exceed his powers as all disputes were to be resolved by him; and (3) “violation of public policy” is not an authorized ground for vacatur under the Texas Civil Practice and Remed …

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Dallas Buyers Club sues Voltage Pictures for suing defendants using the Dallas Buyers Club, LLC name, but not sharing proceeds.

Originally published by Robert Z. Cashman.

It is 12:30am and I really do not have time to go into this, but I just learned that Dallas Buyers Club, LLC is suing Voltage Pictures, LLC in Montgomery County, TX for, among other things, not paying fees to Dallas Buyers Club for the licensing fees owed to them.

[Hat tip to SJD @ FightCopyrightTrolls for breaking the story.  Her link to the lawsuit can be found here.]

It appears from the TX case filing (Cause No. 15-06-06049) that Voltage Pictures, LLC approached Dallas Buyers Club, LLC and offered to pay for the license to act as Dallas Buyer’s Club’s agent so that they can sell the film abroad and… so that they can file lawsuits against John Doe Defendants across the US. Part of this agreement appears to be that Voltage Pictures was permitted to use Dallas Buyer’s Club’s name.

Well, now we learn that Nicholas Chartier and Voltage Pictures are being sued because after making all of the sales and suing all of the John Doe defendants for copyright infringement, Voltage Pictures is accused of cheating Dallas Buyers Club out of their earned licensing fees.

I feel as if I just fell down a rabbit hole…

Thus, whenever we saw a Dallas Buyers Club, LLC lawsuit, and whenever we represented a client against Dallas Buyers Club, LLC, we were really representing them against… VOLTAGE PICTURES, LLC?!?

This brings me to the Fathers & Daughters Nevada, LLC cases.  Did Voltage Pictures, LLC make the same licensing deal with the Fathers & Daughters movie producers, and are they also not paying them the money that is due to them?  When we see a Fathers & Daughters Nevada, LLC case, are we really representing clients against the makers of the Fathers and Daughters movie? Or are we representing clients against VOLTAGE PICTURES, LLC who is parading as Fathers & Daughters Nevada, LLC and claiming that they are Fathers & Daughters Nevada, LLC, when really they are not?!?

This also makes me ask who the attorneys for the Fathers & Daughters Nevada, LLC are really representing? Are Josh Wyde and Gary Fischman suing on behalf of Fathers & Daughters Nevada, LLC? Or are they suing on behalf of Voltage Pictures, LLC pretending to be Fathers & Daughters Nevada, LLC?  I know Josh is watching this blog, so please feel free to comment.

Who is their client? Voltage or Fathers & Daughters Nevada?

Last question, and then I’m going to sleep. Will Voltage Pictures, LLC soon be sued by the real Fathers & Daughters copyright holders for failure to pay the licensing fees, proceeds, and sales from the monetization of the Fathers & Daughters movie copyright? Have the same facts that are coming out with the Dallas Buyers Club, LLC lawsuit also transpired with the Fathers & Daughters Nevada, LLC copyright holder?

One more thought — a while back, I was concerned that perhaps the shell companies that were created for various movies were not properly funded. [Well, okay, I backed away from that accusation, but that was on my mind.]  The original thought was that production companies made movies, and to limit their liability, we understood that they set up shell companies as limited liability companies so that if something went wrong or if, say, Dallas Buyers Club caused damage to someone and they were sued, fined, sanctioned, or otherwise held liable for damages from their activities, those damages would be contained to the Dallas Buyers Club, LLC limited liability entity, and they would not trickle “up” to what I thought was the Voltage Pictures, LLC production company.

However, now we see that Voltage Pictures, LLC is NOT the production company, but a LICENSEE (one who signs an agreement to acquire a license to sell or act on behalf of the copyright holder [the licensor]). Thus, this brings me back to the entity that was formed to sue John Doe Defendants in federal court. Dallas Buyers Club, LLC, and Fathers & Daughters Nevada, LLC (the two Voltage-related companies that are currently on my mind). Are they properly funded? Who owns them, and who are the real parties acting through them? Voltage Pictures or Dallas Buyers Club? Voltage Pictures or Fathers & Daughters? Who is providing the funding for them?  And did they properly notify the court of this arrangement when they filed the lawsuits against the John Doe Defendants?

Wow, when they say that there is “no honor among thieves,” they weren’t kidding.  First Keith Lipscomb is sued by Malibu Media, LLC for not paying them the royalties and/or funds received through Lipscomb’s Malibu Media, LLC v. John Doe lawsuits across the US, and now Voltage Pictures, LLC is being sued by Dallas Buyers Club, LLC for the same thing. I also want to point out that Liberty Media also sued their lawyer, Marc Randazza (although the circumstances were different, and if what Marc wrote in his defense was true (e.g., that they used his office desk to shoot adult films), both Liberty Media and Randazza are both to blame, but for different reasons). I also remember when Prenda Law Inc. stopped paying their local counsel here in Houston the fees and commissions he earned through the filing of the lawsuits.

So… in sum, is this the scenario of thieves stealing from thieves as we have seen before? Or is this an example of “copyright trolls stealing also from their own clients”?? Wow, this field of law has skeletons hidden in closets all over the place.

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Houston Legal Links

Originally published by Mary Flood.

Top legal news includes: Texas Seeks to Allow Doctors Right to Refuse Treating Transgender Patients; Why Conservative States Handpicked This Texas Judge for Transgender Bathroom Challenge (Texas Lawyer); Precinct 4 Deputy Accidentally Tossed Untold Amount of Drug Evidence; Former Houston police officer, wife sentenced for transporting undocumented relative; Counterfeit Drug that Possibly Killed Prince Found in Houston; Legal recruiting firm opens office in Houston (Chron subsc); After Chairman Resigns, Houston Housing Authority Picks TSU Prof As New Leader; Doctor arrested after DEA raids office in Museum District; Houston City Council Green Lights Study On Disparity In Public Contracts; Judge Rules Dr. Bethaniel Jefferson Should Lose Her Dentistry License; Dallas Appeals Court Affirms ‘Death Penalty’ Sanctions In Civil Case (Texas Lawyer); Dallas Woman Sues City Council Member and Atlanta Lawyer for Barratry in Fatal Dog; Mauling Case (Texas Lawyer); Former Texas school district CFO allegedly used armored cars to steal $600,000 from district; Texas Promised to Track Oilfield Waste in Aquifers. It Didn’t.; Pro-gun group approves of UT dildo-friendly protest & Railroad Commission sides with Eastman in pipeline dispute.

For the water cooler: Law Firms Keep Battling Weak Demand by Charging More; Will Millennials Make The 2,500-Hour Year The New Normal?; Black Man Calls Cops, Is Shot By Cops, While Criminal Escapes; Too Poor To Pay Million-Dollar Judgment, Former Gawker Editor Offers Up Rice Cooker, Dishes; Some Kentucky restrictions on judicial-campaign speech violate First Amendment, 6th Circuit says; Suit challenges Wisconsin’s minimum markup law; Appeals Court: Effort to Shield Air Travelers from Issue Ads Was Unconstitutional; Judge rules for artist Peter Doig, who says ‘Pete Doige’ painting once valued at $10M wasn’t his; Spurned recruiter sues BigLaw partner who used competitor; was recorded phone call a contract?; Lawyers recruited on Craigslist were unwitting ‘front men’ in phony law firms, Florida AG says; The Most Famous Law School You’ve Never Heard Of; I Want To Put A Baby In You: Worst Legislation Ever; Good Reason to Kill #63: Golfing Too Slowly & Judge declares mistrial in tobacco case, accuses BigLaw partner of ‘egregious’ comments.

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Raizner Slania Files Tarrant County Hail Damage Lawsuit

Originally published by Jeff Raizner.

Our client, a local industrial commercial property owner, was forced to file a lawsuit against Nationwide Agribusiness Insurance Company (Nationwide) after its hail damage insurance claim was wrongfully denied under Texas law.

March 2016 Hailstorm in Tarrant County

On March 17, 2016, the plaintiff’s property, a food distributorship building, was substantially damaged by a hailstorm that swept through Tarrant County. As a result, the roof, exteriors, interiors, business and personal property, and other machinery and equipment on the property sustained damage. Immediately after the storm, the plaintiff filed a hail damage commercial property insurance claim with Nationwide.

In response to the claim, Nationwide assigned representatives, adjusters, consultants, and agents to the plaintiff’s files that were inadequately and improperly trained. Specifically, Nationwide assigned the claim to a local adjuster who was not equipped to handle this type of claim.

The local adjuster performed a haphazard inspection of the property and refused to acknowledge all of the damages despite the fact that the plaintiff pointed them out. The local adjuster also refused to retain appropriate consultants to assess the claim.

Nationwide and the local adjuster performed an incomplete and unreasonable investigation of plaintiff’s claim, which is evidenced by the undervalued estimate of damages for the necessary repairs for the property. Nationwide relied solely on the local adjuster’s substandard investigation when determining what amounts, if any, to pay out on the plaintiff’s claim. As a result of the haphazard inspection, misrepresentation, and inadequate investigation, the plaintiff’s claim was grossly underpaid.

Nationwide Violated Texas Law

Our client sites numerous violations of the Texas Insurance Code, including failure to effectuate a prompt, fair, and equitable settlement of a claim, failure to adopt and implement reasonable standards for prompt investigation of claims, and failure to promptly provide a reasonable explanation for the denial of a claim. Additionally, our client also cites violations of the Texas Deceptive Trade Practices-Consumer Protection Act.

Raizner Slania: Texas Hail Damage Attorney

If your insurance carrier denied, delayed, underpaid, or disputed a Texas hail damage claim, you need an experienced team of property insurance lawyers to help you get the compensation you deserve. The bad faith insurance lawyers at Raizner Slania have helped scores of companies across Texas and around the country get the compensation they deserve under their policies. Call us today for a free consultation.

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EPA Proposes Revisions to Public Petition Process for Title V Permits

Originally published by Energy Legal Blog ®.

On August 24, 2016, the U.S. Environmental Protection Agency (EPA) published proposed revisions to the federal Title V operating permit rules, which govern pollutants at major sources under the Clean Air Act. The proposed revisions aim to streamline and clarify the processes related to the submittal and review of Title V petitions.

Environmental Strategies
Whit Swift

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Wednesday, August 24, 2016

Lawyer Must Refrain from Real-time Posts about Trials

Originally published by Thomas J. Crane.

It is an ancient principle of trials that jurors can only consider what evidence they hear or see in court. That is why every trial these days includes a warning against looking things up on the internet. And, that is why most judges and lawyers know they cannot comment on actual cases prior to the jury verdict.

But, what about a committed criminal defense lawyer whose faith is a large part of his practice? Can such a lawyer post on Facebook that his clients are the discarded, overlooked persons Jesus ministered to? Can he post on Facebook that he sees God as directing him in his fight for justice? One judge in Ellis County, near Dallas, has said no, Mark Griffith cannot make such posts, since jurors might see those posts. See San Antonio Express News report.

Mr. Griffith explains that these are the sort of prayers he often makes before and during a trial. To inhibit him will restrain his First Amendment rights of free speech. He did eventually agree to refrain from posting real-time posts on Facebook. One would hope so. A juror should not be able to access our private thoughts or expressions of good will. That could lead to a crazy race by both sides to express their “pure” inner thoughts.

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Massachusetts Legislation Spurs Offshore Wind Power Development

Originally published by William M. Friedman.

On August 8, 2016, Massachusetts Governor Charlie Baker signed into law a major energy bill aimed at putting Massachusetts at the forefront of states developing offshore wind power. The law, An Act Relative to Energy Diversity (H. 4568), requires Massachusetts electricity distribution companies to procure 1,600 megawatts (MW) of offshore wind energy by June 30, 2027. The United States currently has no offshore wind generation, but Rhode Island wind developer Deepwater Wind is nearing completion of a 30 MW offshore wind farm, which will be the first of its kind in the country. In a statement, Governor Baker’s office said the bill “spurs the development of an emerging offshore wind industry…and represent[s] the largest commitment by any state in the nation to offshore wind.”

The new law requires Massachusetts distribution companies and the Department of Energy Resources (DOER) to jointly develop a competitive bidding process for offshore wind energy generation resources by June 30, 2017. The bidding process will be subject to review by the Massachusetts Department of Public Utilities (DPU). The law permits one solicitation or multiple staggered rounds of solicitation that must result in at least 1,600 MW of aggregate nameplate capacity of offshore wind energy. If the solicitation is staggered, each round must seek proposals for at least 400 MW of capacity, and the costs in each subsequent round must decrease or the proposal will be rejected by the DPU. All proposals received during the solicitation process are subject to review by DOER.

Each distribution company will enter into a contract with the solicitation’s winning bidders for the distribution company’s apportioned market share, calculated based on the total energy demand for all distribution companies, compared to demand in an individual distribution company’s service territory. Distribution companies may use the long-term contracts to purchase renewable energy certificates, energy, or a combination. All proposed long-term contracts executed with distribution companies will be filed with the DPU and subject to DPU approval. Specifics on the solicitation, contracting, and approval processes will come when the DPU and DOER promulgate regulations carrying out the new legislative mandate for offshore wind.

The legislation represents a new chapter in offshore wind for Massachusetts. The infamous Cape Wind project—a proposed 468 MW wind farm—has been held up in the planning stages for years and its current status is uncertain. The new law is a definite step towards Massachusetts’ development of offshore wind energy generation resources. Several wind development companies already hold leases in Massachusetts waters.

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Daughter of Dallas Dog Mauling Victim Says City Council Member, Atlanta Attorney Improperly Urged Her to Sue

Originally published by Androvett Legal Media Blog.

The daughter of Antoinette Brown, the woman who was fatally mauled by dogs in a South Dallas neighborhood in early May, has sued a Dallas City Council member and a Georgia-based attorney based on claims that they improperly solicited her on the day after her mother was buried in hopes that she would file a wrongful death claim against the city.

In the lawsuit, Matisha Ward alleges that Dallas City Councilwoman Tiffinni Young repeatedly contacted her with text messages and told her during a private meeting that she had legal claims against the City. The day after Ms. Brown’s funeral, Ms. Young contacted Ms. Ward by text and arranged a phone call involving Atlanta personal injury attorney Christopher Chestnut. Ms. Ward recorded that conversation, and submitted a transcript as part of her lawsuit.

On the call, Ms. Young asks Ms. Ward if she had spoken to an attorney. When Ms. Ward says she had not, Ms. Young introduces Mr. Chestnut.

“I have one sitting right here,” Ms. Young says on the recording. “Do you want to talk with him?”

At the conclusion of the five-minute call, Mr. Chestnut indicates he will forward his contact information and that the councilwoman “will call you back.” Ms. Ward was never contacted again by Ms. Young or Mr. Chestnut, and she never initiated any contact with either.

“It is shocking and disheartening to have this level of collusion between an elected official and an attorney not even licensed to practice law in Texas,” says attorney Tom Carse of the Carse Law Firm, who has filed a barratry action on behalf of Ms. Ward. “My client was frustrated and grieving, but understood that something was wrong about that conversation.”

Under Texas law anyone can face a barratry claim for the improper solicitation of legal representation, even those who are not licensed attorneys. Other attorneys representing Ms. Ward later issued a demand letter to the City of Dallas seeking $5 million based on the negligence that led to her mother’s death.

To speak with Mr. Carse or Ms. Ward, or for more information, please contact Barry Pound at 800-559-4534 or


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Does Property Passed by Transfer on Death Deed Receive a Step-Up in Basis?

Originally published by Rania Combs.

When someone receives a gift, the recipient of the gift is not responsible for reporting the value of any gifts as income. Rather, it is the gift-giver, or donor of the property, who is required to pay gift taxes if the value of the gift exceeds the annual gift tax exclusion.

Taxes become an issue for the gift’s recipient when gifted property is sold. The gift’s recipient is deemed to have owned the property for as long as the donor owned it, and also takes the donor’s cost basis (the original value of the property). This is true for gifts made while the donor is alive.

Different rules apply to inherited property. When the transfer is deemed to have occurred at the donor’s death, the recipient of the property receives a step-up in basis to the value of the property on the date of death. This can result in a lot of tax savings when the property is sold.

For example, suppose your mother purchased a home for $50,000 fifty years ago, and the property is now worth $150,000. If she gives the property to you as a gift during her lifetime, you take her cost basis of $50,000. When you sell the property, you will have a long term capital gains of $100,000 ($150,000 minus $50,000).

However, if your mother continues to own the property during her lifetime and that property passes to you when your mother dies, your cost basis would be the value of the property on the date of her death. If you sell the property right away, you will not have have to pay any capital gains taxes.

Property that is transferred by transfer on death deed occurs at the donor’s death. Therefore, the beneficiary of such property should get a step-up in basis on the property just as if it had passed through probate. The benefit of having a transfer on death deed is that the property would pass by operation of law, bypassing the costs and time associated with a probate proceeding.

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A brief on briefs

Originally published by David Coale.

appellate-argument-briefs-consultantsWe all too easily forget that the requirements of a good appellate brief are defined by law, as recently noted in Lau v. Reeder.

As to the issues presented, “a brief must state concisely all issues for review and reveal the legal questions we are called upon to decide.

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ABA President-Elect Embraces Legal Tech and Promotes Access to Justice

Originally published by Heather Holmes.

Tech Tuesday @ the Harris County Law Library

ABA Report on the Future of Legal Services in the United States

At the annual meeting of the American Bar Association, held earlier this month in San Francisco, Hilarie Bass was selected to serve as president-elect. She will take the helm of the organization in 2017 and intends to focus on two major issues — closing the justice gap and promoting use of technology in the practice of law. She will also focus on the legal education system, working to update the existing model with more innovative approaches to learning.

Addressing the ABA House of Delegates, Ms. Bass discussed these areas of concentration in detail. She also referenced the ABA Commission on the Future of Legal Services, which was just released on August 6th. Among its many recommendations, the report advises that all members of the legal profession adapt to changes in the delivery of client services. Legal practitioners must be aware of relevant technology and know how to use it effectively, allowing for more efficient workflows and increased protection of privileged data. Innovations in technology are the key to remaining relevant in an age of rapid change, when process improvement is critical and technological proficiency is a must.

In addition to tech skills, Ms. Bass discussed the need for restored faith in the justice system, particularly among low-income citizens and those who belong to minority demographic groups. Ms. Bass feels strongly that race, gender, religion, and income should not determine one’s ability to access to the legal system, and she’s already taken steps to help mitigate the effect that our own implicit biases based on these characteristics can have on the administration of justice. As a member of the ABA Section on Litigation, Ms. Bass helped create the Implicit Bias Initiative, a resource to assist legal professionals in identifying their personal biases.  At the center of this initiative is a video produced by The Judicial Branch of California. It challenges viewers to examine the hidden factors that influence their decisions, exploring both the neuroscience and psychology behind the choices we make. (This is just one of many excellent videos in the California Courts Video Archive, a resource worth exploring.)

The legal profession is changing rapidly. New approaches to the practice of law and the delivery of legal services are desperately needed. Under the leadership of Hilarie Bass, the ABA will strengthen its focus on legal education, legal tech, and the justice gap.

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New Bill Could Help Identify Potentially Dangerous Medical Devices

Originally published by Blizzard & Nabers Blog.

Everyday millions of Americans rely on medical devices to live healthy lives, but when these devices turn out to be harmful, it can take months or years for the U.S. Food and Drug Administration (FDA) to take action. A new Bill introduced to Congress aims to shorten the time between reports of defective devices and FDA action.

Called the Medical Device Guardian’s Act, the Bill would require doctors to report adverse events to the FDA. Under current regulations, reporting is completely voluntary, and the side effects caused by dangerous devices often go unreported. The Bill is sponsored by Representative Mike Fitzpatrick and has been referred to the House Committee on Energy and Commerce.

The Dangers of Unreported Adverse Events

Fitzpatrick says he was inspired to sponsor legislation to change the reporting system after the delay in public awareness about the dangers of power morcellators. When the FDA approved power morcellators in the 1990s, there was clinical evidence suggesting the devices could inadvertently spread cancerous cells during laparoscopic hysterectomies and myomectomies.

Despite clinical evidence and real-life experience, the FDA did not receive any reports of adverse events regarding morcellators until 2013. After the first report that the device spread cancer, hundreds of additional reports flooded the FDA. Finally in 2014, more than 20 years after its approval, the power morcellator was given a black box warning.

Growing Numbers of Defective Devices

Unfortunately for consumers, power morcellators are not the first instance of dangerous devices going unreported. A similar story can be told about the Essure contraceptive device. Approved in 2002, the birth control method became a popular method of permanent contraception because it did not require surgery or hospital stays. For nearly ten years, the Essure device was continually implanted in women, and many suffered from debilitating headaches, vomiting, nausea, device migration and organ perforation, and unexpected pregnancy, among other symptoms. For many women, the only way to get relief from their symptoms was to undergo a complete hysterectomy.

The reports of dangerous side effects fell on deaf ears until 2015 when the FDA finally decided to investigate the device. In February 2016, the FDA issued a black box warning for the Essure device, but it was too late for thousands of women who had already suffered from the device.

Women’s gynecological and obstetrical devices aren’t the only defective medical devices that slip through the cracks under the current reporting system. Devices like IVC filters and hip implants were implanted into thousands of patients before the FDA released safety statements warning of the devices’ potential for failure. If passed, the Bill could help save thousands of Americans from the serious side effects caused by the use of defective medical devices.

Blizzard & Nabers: Defective Medical Device Attorneys

If you or someone you love has been injured or killed by a defective medical device, you need a legal team that is not afraid to take on giant pharmaceutical companies. The experienced defective device lawyers at Blizzard & Nabers have helped victims of dangerous devices for more than 30 years. Call us today for a free consultation to discuss your case.

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