Wednesday, October 18, 2017

State Law on After-born Children Leads to Revocation of a Will

Originally published by Gerry W. Beyer.

A number of states have enacted statutes that serve to revoke a decedent’s will, in whole or in part, if the decedent’s life-circumstances later change in specific ways. Hobbs v. Winfield, a recent case out of Georgia, highlights such a…

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The Law: A Profession in Trouble?

Originally published by Guest Blogger Mark W. Gifford.

I started law school at Stanford in September 1978. Dressed in blue jeans, a flannel shirt, and hiking boots, I stood out like a sore thumb among my classmates, a sea of Ivy Leaguers in khaki pants, Izod shirts, and Top-Siders (sans socks). One of the fast friends I made was Warren Malone, a kid from Long Island who was enrolled in the joint JD/MBA degree program. Warren was easy to be around—funny, engaging, unpretentious, and scary bright. I introduced him to the Dirt Band, cowboy boots, and jackalopes. He introduced me to Bruce Springsteen, the Talking Heads, and the Yankees.

After graduation, we went different directions: Warren went to a Wall Street firm and I went back to Wyoming. We kept in touch, visiting each other often over the years. Warren’s career path took him from Cravath, Swaine & Moore to Bear Stearns. After spending a few years as a senior financial executive with Progressive Corporation, Warren teamed up with two other Bear Stearns alums to form the Daystar Special Situations Fund, an investment fund that catered to the endowments of Ivy League schools, among others. Warren achieved spectacular financial success—a home on Manhattan’s Upper East Side, a wife and two beautiful children, involvement in his children’s exclusive private schools, and all the other trappings. He maintained his passion for running and could often be found putting in 10 miles around Central Park Reservoir.

As the years passed, Warren and I kept in touch but with less frequency as we started families and our lives got busier. We still managed to get together every few years. Whenever I made it to New York, we would take in a Yankees game. That had been our tradition going back to the early 1980s.

Several weeks ago, I called Warren and told him I was coming to New York for a conference in early August. The Red Sox were going to be in town; I told him I would get tickets. He was upbeat—recently divorced, his children graduated from Ivy League schools—and was looking forward to seeing me. I went on StubHub and purchased tickets for the August 12 afternoon game.

***

Saturday, August 12. I attended the final session of my conference, a panel devoted to a groundbreaking report that would be released by the American Bar Association the following Monday. “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change” offers a sobering glimpse of a profession in trouble:

To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. [Two recent studies] reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance use. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence. This research suggests that the current state of lawyers’ health cannot support a profession dedicated to client service and dependent on the public trust.

The Saturday morning session moderator—one of the members of the task force that created the new report—asked for a show of hands from those in the room who had lost close colleagues to suicide. A couple dozen hands went up. Thankfully, mine was not one of them.

My conference adjourned at noon. I walked several blocks to the hotel of a friend who would be attending the game with Warren and me. I had texted Warren two days before: “Hey buddy. Looking forward to seeing you. Give me a call when you can.” I had left a voicemail for him the previous day but had not heard from him. With the first pitch just hours away, I was concerned. “This isn’t like Warren,” I told my friend. “I hope he’s OK.”

At a loss, I Googled, “Warren J. Malone obituary.” Up popped a two-sentence death notice in the New York Times: “Warren J. Malone, 62, tragically died August 2, 2017. Service at All Souls Church, August 10, 2017, 10:30 a.m.” I immediately called a mutual friend from law school who told me Warren had killed himself. His funeral service had been held two days earlier at a church just two blocks from the hotel where my conference was taking place. I didn’t even get to say goodbye.

***

“The Path to Lawyer Well-Being: Practical Recommendations for Positive Change” is a must read for all lawyers. Quoting from the introductory letter by the National Task Force on Lawyer Well-Being:

The legal profession is already struggling. Our profession confronts a dwindling market share as the public turns to more accessible, affordable alternative legal service providers. We are at a crossroads. To maintain public confidence in the profession, to meet the need for innovation in how we deliver legal services, to increase access to justice, and to reduce the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues, we have to act now. Change will require a wide-eyed and candid assessment of our members’ state of being, accompanied by courageous commitment to re-envisioning what it means to live the life of a lawyer.

The report offers concrete suggestions to each “stakeholder” with a vested interest in lawyer well-being, including specific recommendations to judges, lawyer regulators, law firms, law schools, state bar associations, professional liability carriers, and lawyer assistance programs. The recommendations for regulators include modifying Rule 1.1 of the ABA Model Rules of Professional Conduct to endorse lawyer well-being as part of a lawyer’s duty of competence.

The report’s introduction contains recommendations to all stakeholders. I am happy to note that the Wyoming State Bar has already embraced several of them, including launching the Wyoming Lawyer Assistance Program in 2014, an emphasis on providing high-quality CLE programs and materials about lawyer well-being, publishing the Planning Ahead handbook (a helpful guide for succession planning for older lawyers) as a free download on the bar’s website, and de-emphasizing the use of alcohol at social events. But much remains to be done.

The new report opens with an audacious challenge to the legal profession:

Every sector of the legal profession must support lawyer well-being. Each of us can take a leadership role within our own spheres to change the profession’s mindset from passive denial of problems to proactive support for change. We have the capacity to make a difference.

Let’s all get to work.

This article, which was originally published in the October 2017 issue of the Wyoming Lawyer, has been edited and reprinted with permission.

Mark W. Gifford is bar counsel to the Wyoming State Bar.

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Tuesday, October 17, 2017

Is it Legal to Photograph the Eiffel Tower at Night?

Originally published by Peggy Keene.

While many readers of this blog generally understand the federal copyright laws of the United States, some of the European Union’s copyright laws may come […]

The post Is it Legal to Photograph the Eiffel Tower at Night? appeared first on Klemchuk LLP.

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Rebranding 4.0: Why authenticity matters to socially-aware consumers, and how to convey it

Originally published by Georgina Hey (AU).

Increasingly affordable renewables, coupled with consumers’ sensitivity to environmental, social and governance (ESG) issues, are driving a profound shift in energy markets worldwide. Nowhere is this more apparent than in brand equity, and the trust levels displayed by the public towards traditional energy businesses versus green, dynamic start-ups.

Rebranding is a powerful tool to close this gap, as long as it relies on increasing authenticity in communications, and bringing new, green corporate values to the forefront of corporate communications. As consumers grow more receptive to corporations which promote renewable energies and modern ethical policies, the corporate desire to adopt branding which will convey a more modern sense of green, ethical ambitions continues to grow.

How do you rebrand successfully, and convey an authentic message to audiences in the age of post-truth? Well, it takes time and preparation from brand creation, through clearance for use across multiple platforms, to protection and maintenance of the new brand and any legacy goodwill. The first step is to design and/or select your new branding. There are a number of factors which feed into which brand is right for your company.

Here are five key considerations to bear in mind when creating your refreshed branding.

1. Start with your company’s chosen direction and corporate vision

Your new brand must reflect your vision and philosophy so it is important that you have settled the company’s approach before beginning the re-branding process. Consider the company’s direction, goals and vision. How does the business want the brand to be perceived and how does the business want the brand to develop and grow? Only once you have settled the business philosophy can you move on to consider what branding will suitably reflect your company.

2. What connections and associations do you want your consumers to make with the company?

Consumers are more aware and receptive than ever. A growing number of consumers take account of a company’s attitude to social responsibility, the environment, community and ethics when making purchasing decisions. Consider what it is that you want consumers to associate with your company and your products and services. For instance, do you want your brand to convey the company’s dedication to its social responsibility, or is the priority to relay that your products and services are forward thinking, innovative or environmentally sustainable? You should also continue to keep the same thoughts in mind when considering brand ambassadors and business partners.

3. Is your brand sustainable?

You may be taking steps to ensure your products or services are sustainable from an environment and ethical point of view, but is your brand sustainable? In this fast-paced consumer driven market your new brand should be suitable for use across numerous platforms and materials and adaptable in the event of the emergence of any new platforms.

4. Regulatory requirements

Many countries have regulations about the use of words such as “green” and “sustainable”, which aim to protect consumers from the misuse of such words by companies and in advertising. You should ensure that you are familiar with such regulatory requirements when contemplating your new brand options.

5. Makings of a successful brand?

Eventually, the business should get to a stage where it has a few options to choose from. The final consideration in narrowing down to the short list is whether each of the options has the makings of a successful brand? You should consider whether the re-brand options are distinctive, original and memorable. Our earlier article on picking the right brand name is available here.

Once you have chosen a brand or a short list of options, the heavy lifting begins. Rebranding can be a delicate exercise involving a number of challenges which, if not carefully managed, can cause irreversible damage to both the new and incumbent brands. For our thoughts on these challenges and how to properly address them, please refer to our previous post in the ‘Rebranding in the energy market’ series, available here.

Conclusion

Rebranding is no longer an exceptional instance; it has become a natural step in the development of an organisation, and a key contributor to its long-term growth. The amount of research and preparation to support a successful rebrand should not be underestimated. But hard work often reaps reward – if done correctly, a rebrand can enhance and clarify your corporate strategy, refresh your company identity and create unity across your organisation.

If you are considering or are already involved in a corporate rebranding, speak to a member of our IP Team to discuss  our Corporate Rebranding Checklist which is designed to help companies navigate the myriad of issues and timelines that will arise, from brand creation and clearance for use across multiple platforms, to protection and maintenance, and how these can be managed, in the context of your own timeframe to launch.

The post Rebranding 4.0: Why authenticity matters to socially-aware consumers, and how to convey it appeared first on The Brand Protection Blog.

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Unsent Text Message OK As Valid Will

Originally published by Gerry W. Beyer.

A 55-year-old Australian man drafted a text for his brother just before taking his life. The text message included a terse disposition of real property, but it was never sent. The Supreme Court in Brisbane held the draft to be…

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Stories of Recovery: ‘Half the man I used to be and twice the man I ever was’

Originally published by Guest Blogger.

I am supposed to be dead! I weighed over 350 pounds, had high blood pressure, borderline high cholesterol, borderline high blood sugar, atrial fibrillation, and was taking a daily blood thinner.

For God’s sake, I was a 53-year-old lawyer with over 25 years’ experience negotiating multimillion-dollar transactions, supervising major litigation. I should be able to figure out how to lose weight! Research? I needed to do more research! Surely there was an answer!

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Monday, October 16, 2017

Why Divorce Litigation is Sometimes Inevitable

Originally published by Family and Criminal Law Blog.

What circumstances will generally give rise to divorce litigation?

Most divorce cases will end up settling out of court.  Settling your divorce case can save money and time, but in some cases litigation is simply the only option.  Our Midland Texas divorce lawyers at Navarrete and Schwartz, P.C., review some common divorce scenarios in which litigation is often inevitable.

  1.  Domestic violence: If domestic violence occurred during the marriage, it can render negotiations impossible.  When one spouse fears the other or has taken out a restraining order against the abusive spouse, they may physically be unable to be present in the same room in order to discuss divorce issues.
  2. Hotly contested divorce issues:  At times, spouses will attempt to reach an agreement on central divorce issues like child custody, division of assets, maintenance, and more, but find themselves at an impasse.  When an agreement cannot be reached on a key divorce issue, then the only alternative is to let the courts decide.
  3. One spouse does not want the divorce:  Often, divorce is unilateral in nature. If one spouse wants the divorce and the other does not, it can create an emotionally charged atmosphere that is simply not conducive to out of court negotiations.
  4. Substance abuse:  If one spouse has a substance abuse problem, whether it be alcohol, illegal drugs, or prescription medication, they will not be of sound mind to negotiate a divorce.  Court involvement may be the only option to reach a fair divorce decree.
  5. Child abuse: Where child abuse or parental alienation occurred during the marriage, the court will need to step in.  Child abuse is a serious allegation that must be dealt with carefully.  Court involvement will ensure the allegations are investigated and handled in the appropriate manner.
  6. Power imbalance:  When one spouse controls the majority of the finances, the other spouse may be at too much of a disadvantage to reasonably negotiate for a fair divorce settlement.  Court involvement can ensure the power imbalance is corrected so that a fair divorce is reached.

Anyone considering filing for divorce in Texas should contact a divorce attorney as soon as possible.  Your lawyer will help you to determine based on the facts surrounding your marriage and impending divorce whether litigation is your best option.

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New Medicaid Transfer Penalty Divisor Announced

Originally published by Michael Cohen.

Effective September 1, 2017, the “transfer of assets divisor” in Texas increased to $172.65 per day from $162.41. The increased figure applies to long-term care Medicaid applications in Texas submitted on or after September 1, 2017. 

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Houstonians Still Struggling With Hurricane Harvey Claims

Originally published by Blizzard & Nabers Blog.

It’s been a month and a half since Hurricane Harvey made landfall on the Texas coast, but many home and business owners are still grappling with the storm’s destruction. Recovery has been slow or impossible for some victims.

Homeowners and business owners are filing insurance claims for the damages caused by the storm, and discovering many insurance companies are less than fair when adjusting claims. Because Hurricane Harvey caused such widespread damage, many insurance companies are looking at millions of dollars in claims. Unfortunately, many insurers are using bad faith tactics to avoid paying out.

Homeowners in Houston and all along the Texas coast are dealing with insurance companies misrepresenting policies in an attempt to get out of paying claims. For example, many insurance companies will wrongfully claim certain damage is not covered, when in fact it is.

Unfortunately, not only are homeowners struggling with their insurance companies, but many properties flooded in the aftermath of Hurricane Harvey were also exposed to toxic chemicals. There are 13 Superfund toxic waste sites in Houston that were flooded by the storm. Floodwaters have carried the toxins from these locations for miles, contaminating property and affecting the health of residents.

For thousands of residents whose homes were flooded by the Addicks and Barker reservoir releases, the process of cleaning up only started a few weeks ago. Moving forward is very difficult because the flood damage has made the homes uninhabitable and unsalvageable.

Residents of Crosby have yet to receive answers from Arkema after its chemical plant flooded, lost electricity, and suffered massive explosions. Residents likely won’t have any answers soon as Arkema has hired a legal team to fight lawsuits filed against the company in the aftermath of the explosions.

A Long Road To Recovery

For Texans who were not affected by Hurricane Harvey, the storm has long since left their minds. But for homeowners and business owners with severe property damage, it is a daily struggle to put their lives together again. The law firm of Blizzard & Nabers understands that for Harvey victims, the road to recovery is a long one. It will take months or even years to completely rebuild. Our lawyers are dedicated to helping victims long after the storm has passed. If you are facing difficulties rebuilding after Harvey, contact us for a free consultation. We can analyze your situation and help you understand your legal rights.

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Texas Supreme Court Reviews Emission Credit Suit v TCEQ

Originally published by Environmental and Energy Law Blog.

Texas Supreme Court justices on Wednesday October 11 reviewed interior and exterior coating manufacturer AC Interests, which argues that a lower appellate and trial court wrongly dismissed its lawsuit against the Texas Commission on Environmental Quality after it missed the 30-day deadline to notify the agency of the suit.

In its April 2016 petition for review, AC Interests argued it was an abuse of discretion to dismiss the suit against the state environmental agency, because the 30-day deadline isn’t mandatory, but “directory.” The suit — brought regarding AC’s right to certain emissions credits from the TCEQ — shouldn’t have been dismissed because the agency wasn’t “prejudiced by the delay,” and in fact was hand-delivered notice of the suit two days after it was filed in December 2014.

AC Interests told the court that the Texas Rule of Civil Procedure 91a motion to dismiss — which allows dismissal of claims that have no basis in law or fact — should not have been granted because it “included no basis in AC Interests’ pleadings.”

The petition stated “In other words, the trial court and Court of Appeals [are] applying the 30-day service of citation rule to AC Interests, while allowing the TCEQ to escape the requirements of proving up the Rule 91a motion, which the TCEQ elected to file.”

“A conclusion that the service deadline is directory is especially compelling when we consider the alternate consequences. Under the alternate interpretation, any delay in service of citation for any reason results in the dismissal of the case,” the petition reads. “This result is particularly harsh given the relatively short deadline for service and the fact that service may be delayed by circumstances outside the control of the plaintiff. We do not believe that the service deadline was ‘intended to create a procedural trap allowing the [commission] to obtain dismissal’ when service has been diligently pursued and the commission has not been prejudiced by the delay.”

AC Interests filed its lawsuit after the TCEQ denied its application for certification of the emission credits. AC argued it deserved the credits because it had complied with TCEQ standards, earning the credits by “emitting fewer toxins into the water and air.”

Lower courts had dismissed the lawsuit filed by AC Interests LP because the company, which makes interior and exterior coatings, failed to get formal service of process against the TCEQ within a 30-day deadline. But AC Interests argues that was an abuse of discretion because it hand-delivered notice of the suit to the agency just a few days after the suit was filed and served the agency with a formal citation of the lawsuit 58 days after it was filed.

In oral argument, the justices asked whether there should be a consequence less serious than dismissal of the case because the TCEQ did have some notice of the lawsuit, even though the agency wasn’t served in the 30-day deadline set forth in the Texas Clean Air Act.

“The statute does not prescribe the consequences,” Justice John Devine said. “So why should we elect the harshest consequence first?”

Justice Debra Lehrmann said even if compliance with the 30-day deadline is mandatory, that doesn’t mean the court should impose the most extreme consequence on a party that fails to meet it. And Justice Eva Guzman asked whether the TCEQ was prejudiced in any way by the company’s delay in serving the agency with a copy of its lawsuit.

Arguing for AC Interests, Bill Smalling of The Law Office of C. William Smalling PC asked that the case be remanded to the trial court for consideration of the merits of its emissions credits claim. He argued dismissal is not required when a plaintiff can show the substantial purpose of the statute has been met and the TCEQ was not prejudiced by the delay.

Justice Lehrmann asked Smalling what a lesser consequence than dismissal could be. If the court finds that because the CAA is silent on consequences and the court determines it should impose the least-punitive remedy, what would that remedy look like, she asked. And Justice Guzman asked whether a lesser consequence, like abatement of the lawsuit until the TCEQ had been served, would be appropriate.

Smalling said the only thing he can think of is that the case revert back to the trial court for consideration on the merits of AC Interests’ emissions credit application.

Smalling also argued the court can look to the Texas Water Code — which gives litigants one year to secure service of process on the agency — instead of the Clean Air Act. Smalling argued that because AC Interests filed its suit under the Water Code, it should have a year to serve the agency, a deadline it easily met.

The TCEQ is represented by Heather Gebelin Hacker, Priscilla M. Hubenak, Anthony C. Grigsby, James E. Davis, Brantley D. Starr, Cynthia Woelk, Jeffrey C. Mateer and Ken Paxton of the Texas Attorney General’s Office.

AC Interests is represented by Bill Smalling of The Law Office of C. William Smalling PC.

The case is AC Interests LP v. Texas Commission on Environmental Quality, case number 16-0260, in the Texas Supreme Court.

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Not counsel? Not mandamus.

Originally published by David Coale.

In re Guess provides a basic reminder about the limits of pro se representation and legal services from non-lawyers: “Before the Court is relator’s October 5, 2017 petition for writ of mandamus. Bruce Bryant filed this petition for writ of mandamus as relator’s “authorized representative.” Mr Bryant is not an attorney, is not a party to the litigation and, therefore, cannot file a petition on behalf of relator.” Nos. 05-17-01163-CV et seq. (Oct. 11, 2017) (mem. op.)

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Busting Myths and Rumors About Child Support in Texas

Originally published by Timothy Hutton.

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The area of family law that a lot of people are concerned about is the part that deals with child support. In a divorce, it’s unavoidable for both parents to worry about finances. It is common for the parent who needs to provide child support and the one on the receiving end of it to worry about it equally at the same time. As a parent, you will also worry about your rights and how and to what extent you should exercise it. You might hear a lot of rumors and myths from family members and friends who have been through it before or have heard about child support issues from others. They might want the best for you, but it does not necessarily mean that they can give you sound advice that you can really count on. You might voluntarily ask them for advice, but you can never know how accurate the advice you’d be getting unless they’re from legal experts skilled where family law is concerned.

The thing with family law is that it changes quickly. What might have been true at that time your cousin had a divorce and had issues with child support may no longer be true for those who are going through the same issues now. Aside from these, having one somewhat positive experience with child support and family law does not render one an expert in the field. There’s also a possibility that your friend or family member who is actively giving you advice does not have a truly deep understanding of family law and the complexities that come with it.
There are several myths about child support in Texas that you might encounter. Let’s try to deal with these myths one by one so that you can be knowledgeable if you ever come across similar child support issues.

 

Myth 1

 
The amount of child support that needs to be paid is decided through the Texas Family Code. This is not exactly true. While the amount of the child support can be determined using the guidelines based on the Texas Family Code, it is not the only reference that can be used for the judge to decide the amount of the child support. True, the Texas Family code guidelines also support the best interests of the child but it is also possible for additional factors to influence the judge’s decision. The judge may consider the possible needs of the child in the in the future and the income of the spouse who will receive the child support before deciding on the appropriate level of support for the child.
You can also decide with your spouse the child support amount if you agree to settle your case outside of the court.

 

Myth 2

 
Equal Conservatorship Basically Translates to No Child Support. There are many people who insist on this because they believe that this is a fair deal but this is not really true, legally. This kind of setup does make sense since the child will spend the same amount of time with each parent so it looks like there won’t be any need for compensation. A judge might decide that this kind of setup is acceptable but it’s not the default setup for 50-50 custody splits. The judge will still consider all the other factors before making the appropriate decision. A lot of fathers request for this type of visitation setup and they don’t want to pay compensation to their ex-spouse for the times the child is not with them.
In this case, a compromise is also possible. The difference between the bigger and lower amount of support can be paid by each parent. The State Disbursement Unit will handle the money and will pay to the parent where child support is supposed to be given.
In case your child receives government assistance, a portion of that support money will be sent to the government. If you are the parent who is chosen to receive child support, do not expect to get 100% of the numbers you can see in your Final Divorce Decree.

 

Myth 3

 
The amount of child support you are set to give or receive that is indicated in your final divorce decree is fixed until your child turns 18. This is also another myth that is not exactly true. There are instances where the child support amount can increase or decrease. There are many circumstances and factors that can lead to this. One of the factors that can cause a change in the child support amount is when the income of the parent giving child support changes dramatically. Any of the parents can then request the court to discuss the changes in child support amount regarding the income issue.
Another reason that can cause the child support amount to change is when there is a huge change in the needs of the child. This can happen when a permanent health issue or a disability is experienced by the child after the divorce has been finalized. Requests for modifications in the child support plans can be made.
In some instances, the child support can be modified for it to be continuously paid after the child turns 18. If you think that child support is still necessary for your child after he or she has graduated from high school, then you will have to request a child support modification in court as soon as possible.

 

Myth 4

 
If you can’t see your child then you don’t have to pay child support. In some divorce cases, the other parent loses his or her right to see their child. In fact, some lose their rights to their child completely. When this happens, the denied parent often assumes that they won’t need to pay support for their child either.
If you are a parent having child custody issues, you need to understand that the law will not allow your child to be kept away from you by the other parent unless it has been decided by the court. When the court decides that you have lost your right to see your child, you will still need to pay child support and you might even have to pay a higher amount because of the increased time the child will have to spend with one parent.
If you are the parent who receives support for your child, you also need to understand that you can’t deny the other parent time with the child just because he or she failed to pay support for your child. Failing to pay or deciding not to pay child support as well as withholding visitation rights are all subject to legal consequences.
If you have any issues with child custody and child support, it is always best to consult a family law expert so that you can be advised and represented properly. You can fight for your child’s best interest when you know your rights and you make sure that your rights as a parent and your child’s rights are well-protected.

The post Busting Myths and Rumors About Child Support in Texas appeared first on Texas Divorce and Family Law Blog.

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New Study Suggests Divorce Could Have Genetic Link

Originally published by Austin TX Family Law Blog.

Why are the children of divorced parents more likely to divorce themselves?

Researchers across the nation have long sought to uncover a reason why so many married couples get divorced. It is estimated that between 40 and 50 percent of all marriages today end in divorce. Psychologists have long theorized that the children of divorced parents are more likely to divorce themselves later in life due to witnessing and experiencing divorce. Now, however, a new study suggests that it may not be growing up with divorced parents that leads many to divorce; rather, the likelihood of divorce could actually be genetically linked.

Examining Divorce Histories in Sweden

Researchers from Lund University in Sweden and Virginia Commonwealth University teamed up to examine whether the divorce histories of adopted children more closely resembled their adoptive parents or biological parents. Researchers combed through Swedish population registries to gather data. By comparing adopted children to their adoptive and biological parents, researchers could uncover whether divorce rates are more environmentally influenced or stem from genetics.

The results of the study were somewhat surprising. The data analyzed suggested that genetic factors were the primary reason as to why divorce runs in families. Uncovering that genetics are significant in influencing divorce could have major implications for psychologists. Whereas therapists once considered patients’ histories with divorce when analyzing their motivation for divorce or attempting to repair a broken marriage, therapists might now change their counseling approach to appreciate the genetic component of divorce.

Causes of Divorce

Divorce rates have fallen since a high in the 1980’s, but remain high across the nation. Divorce can occur for a wide variety of reasons, with some of the most common causes of divorceincluding:

  • Infidelity
  • Money
  • Arguing
  • Lack of communication
  • Unrealistic expectations
  • Lack of equality
  • Lack of intimacy

Anyone in Texas who is considering divorce should contact a divorce attorney for assistance. Divorce is a complex process that can turn litigious quickly. In a divorce, you and your spouse will need to deal with tough issues like the division of your marital property, child custody, and child support. Your divorce lawyer will serve as your strongest advocate in guiding you through the divorce towards an amicable settlement or a victory in court.

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Preparing Difficult Witnesses for Trial — Part 1

Originally published by Barry Barnett.

For your client to win at trial, the trial lawyer in you must tell a human story, one that moves jurors to decide in your client’s favor. Flesh-and-blood witnesses fill essential roles in the drama. So-so ones will turn the story to mush, and bad ones will allow your friend on the other side to beat you and your client about the head and neck with it. Difficult witnesses – DWs – therefore pose a risk you must use all your talents and powers to manage.

How can you prepare DWs for their potentially pivotal turn on the courtroom stage? In this series of posts, I offer thoughts from 33 years of trying cases.

Prologue

Let’s start with some basics. I’ll begin by briefly sketching the identifying traits of the groups that essentially all witnesses – including DWs – fall into and some of the more significant ethical considerations that govern your dealings with each category. Then we’ll take a short and non-exhaustive look at the protective scope of the two major privileges that trial lawyers deal with: the lawyer-client privilege and the lawyer work-product doctrine.

Witness types and some ethical rules.

A civil case generally involves four categories of witnesses:

  • your client,
  • the clients of other lawyers,
  • non-parties who don’t have legal counsel, and
  • experts

Note the emphasis on who has a lawyer and who doesn’t. It matters for several reasons

First, the lawyer-client privilege normally protects your interactions with witnesses who are clients – whether individual clients or the representatives of an organizational client such as a corporation.[1]

Second, your dealings with non-client witnesses, including experts, generally do not fall within the protection of the lawyer-client privilege, although the work-product doctrine may still apply.

Third, although communications with your client’s employees may fall within the protection of a privilege, you don’t necessarily represent them as individuals and need to make clear to them any limitations on your role. Many times, that will mean advising them that your client is their employer, not them; that your first loyalty runs to their employer, not them; and that in the event of a conflict between them (assuming they have become individual clients) and the organizational client, you and your firm will withdraw from representing them, the employee, but will continue representing the employer to the extent the ethical rules allow.

Fourth, you generally can’t communicate with people who you don’t represent but who have counsel. You must normally ask for the other lawyer’s consent first. Most times you won’t get it.

Finally, witnesses who don’t have any counsel at all have some important protections. You generally mustn’t imply to them that you are disinterested, should accurately describe your role in the matter, and should avoid offering legal advice (other than the advice to secure counsel) if the witness’s interests may conflict with your client’s. See, e.g., Tex. Disc. R. Prof. Conduct 4.3; ABA Mod. R. Prof. Conduct 4.3.

Privilege.

“An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way.” Ibarra v. Baker, 338 Fed. Appx. 457, 465 (5th Cir. 2009). “Experienced trial counsel are expected to do no less than to provide support, direction and assistance to witnesses, provided only that a direction of what may be said is not suggested or required.” Haworth v. State, 840 P.2d 912, 914 n.3 (Wyo. 1992). Stating the point even more obviously, lawyers may not coach a witness “to modify or completely change his testimony in material ways.” Anderson v. Nat’l Union Fire Ins. Co., 88 Mass. App. Ct. 1117 (2015), vacated on other grounds, 67 N.E.3d 1232 (Mass. 2017).

“The attorney-client privilege protects most of the preparation activities directly involving the client; the work-product privilege protects the lawyer’s own efforts, including research, investigation, and contacts with other witnesses.” John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277, 292 (1989). But the “protection afforded opinion or core work product may be breached when there is a charge of falsified testimony.” In re Cendant Corp. Securities Litig., 343 F.3d 658, 666 n.8 (3d Cir. 2003).

In general, work product “protection also extends to non-attorneys who assist in preparation of litigation”, and “the litigation consultant’s advice to a witness is an ‘opinion’ that is protected under the work-product doctrine.” Hynix Semiconductor Inc. v. Rambus Inc., No. CV-00-20905, 2008 WL 397350, at *2 (N.D. Cal. Feb. 10, 2008) (citing Cendant, 343 F.3d at 665-66).

“Litigation consultants retained to aid in witness preparation may qualify as non-attorneys who are protected by the work product doctrine.” Cendant, 343 F.3d at 665 (holding that work product doctrine protected communications among trial consultant Dr. Phil McGraw, a witness, and the witness’s counsel).

“The work-product protection continues to adhere where the non-client shares a financial or legal interest, for example, as parties to a joint defense agreement.” Hynix, 2008 WL 397350, at *2.

Questions that a court might allow include “whether [the witness] met with a jury consultant, the purpose of any such meeting, who was present, the duration of the meeting and whether the witness practiced or rehearsed his or her testimony.” Hynix, 2008 WL 397350, at *4.

*  *  *  *

In the next post, we’ll start getting into particulars of preparing the DW to testify at trial.

____________________
[1] In New York and Texas, an organizational client typically includes not only higher-ups but also employees whose communications with you take place within the scope of their employment. See N.Y. CPLR 4503(a); Tex. R. Evid. 503(a); Stock v. Schnader Harrison Segal & Lewis LLP, 142 A.D.3d 210, 216 35 N.Y.S.3d 31, 35 (1st Dept. 2017); In re Texas Health Resources, 472 S.W.3d 895, 901-02 (Tex. App. – Dallas 2015, orig. proceeding) (discussing definition of “client’s representative” in Tex. R. Evid. 503(a)(2)).

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High-Tech Car Recalls: An Emerging Trend

Originally published by Terry Bryant.

As vehicles further embrace technology, software and operating system flaws are already having a profound impact on driver safety, as well as auto industry responses to these dangers. Two recent recalls illustrate this transformation.

In June 2017 – only a few weeks after issuing a recall, and only a couple of months after learning of the problem – Fiat Chrysler Automobiles began making fixes to 1.25 million Dodge Ram pickups to correct a software error that may have caused one crash death and two injuries in another. The “glitch” could temporarily disable the vehicles’ side air bag and seat belt pretensioners, which snugly secure passengers in a crash. The company is reprogramming the software error.

In September 2016, General Motors recalled more than 400,000 vehicles (primarily Buick and Chevrolet) which experienced similar system problems. Reports of GM vehicles’ sensing and diagnostic modules’ failure to inflate airbags in a crash and the possibility of their seat belts not working during accidents began reaching the automaker in May 2014. But GM was much slower in warning the public about these problems that killed at least one person and reportedly injured scores more.

When it comes to defective product lawsuits, two issues that profoundly impact them are: (1)  what did the manufacturer know and when did they know it, and (2) why they did little or nothing to address the issue after knowing it caused serious injury or death. In many cases, they believe it’s cheaper to pay  insurance claims than to fix the problem. But automakers are beginning to behave differently. Record fines against them by the National Highway Safety Administration (NHTSA), and the accumulation of more lawsuits by injured consumers, are helping to lead a change in their behavior.

A New Landscape: High-Tech Vehicles Create Greater Opportunities for Hackers

Cars and trucks are morphing into “driving systems” that insulate drivers from their long-held responsibilities by making elemental decisions for them with greater frequency, such as braking, staying in lanes, and parallel parking, to name a few. But the downside to these features is that, as vehicle networking proliferates, they become “targets of opportunity” for sophisticated hackers. In March 2016, the FBI issued a warning to automakers and consumers to “maintain awareness of potential issues and cybersecurity threats related to connected vehicle technologies in modern vehicles.”  And in conjunction, the NHTSA and the U.S. Department of Transportation (DOT) released uniform guidelines to govern automakers’ design of cars that can be safely controlled even after a successful cyberattack.

According to experts, one of the more popular ways for hackers and ransomware thieves to compromise a vehicle’s automated operation and safety systems is via apps in their infotainment system that connect to the internet.  Another – and often easier – route is through unsecure smartphone apps that connect to your car through your phone. These experts also note that many of these hacks are exploited through Android’s operating systems, though Apple’s iOS also presents a smaller number of risky vulnerabilities.

Either way, consumers are tricked into downloading apps or updates that look real but are really malware, just like clicking on a phishing link in an email. When they begin to use the phony app, or the install the update, the malware initializes, infecting targeted systems which can then be controlled by an invading hacker.

Many automakers which were historically slow to respond to recalls in the past are modifying those practices today. If they continue to do so, a generation of safer cars, with much fewer injuries and wrongful deaths, are likely to result.

To schedule a free consultation with Terry Bryant Accident & Injury Law, contact us today by filling out our online contact form or giving us a call at 1 (800) 444-5000 or locally in the Houston area at (713) 973-8888.

The post High-Tech Car Recalls: An Emerging Trend appeared first on Terry Bryant Accident & Injury Law Board Certified Former Judge.

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Friday, October 13, 2017

Top 10 from Texas Bar Today: Move Over, Stand Out, and Be Moot (Or Not)

Originally published by Joanna Herzik.

10. Why You Should Consider an Industry Based PracticeCordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

9. Can an employer require employees to repay training costs in Texas?Leiza Dolghih @TexasNonCompete of Lewis Brisbois Bisgaard & Smith LLP in Dallas

8. Google’s Legal Troubles over Google X Continue – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

7. SCOTUS Denies Cert. in Texas Ponzi Scheme CaseBeth Graham of Karl Bayer @karlbayer in Austin

6. Lessons from a Liftboat ContractCharles Sartain and Chance K. Decker of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas

5. Being a lawyer and sharing on social media – Lihsa of 3 Geeks and a Law Blog

4. Move Over Laws: Something You Probably Didn’t Know ExistedHerrman & Herrman @herrmanlawfirm in Corpus Christi

3. Making Law Firm Wins Stand Out Among the CrowdBruce Vincent of Muse Communications, LLC @MuseCommLLC in Dallas

2. MPRE FRENZY – Goldie Pritchard of the Law School Academic Support Blog

1. To be moot, or not to be moot, that is the question.David Coale of Lynn Pinker Cox & Hurst, LLP @600camp in Dallas

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Being a lawyer and sharing on social media

Originally published by Lihsa.

Sharing, clothes and looking the part of a lawyer by @Lihsa

I love social media. It’s a fascinating look into the minds of 2 billion people.

Admittedly, it can, at times, get pretty ugly in there. But then there are places of transcendence and valor; beauty and joy.

Social media is like wearing clothes: you can choose to wear a dirty t-shirt bearing a foul logo. Or you can choose to wear a Chanel evening gown. Your choice.

Being a lawyer and sharing on social media

Social media is the perfect democracy. Love it or hate it, it takes a lot of very, very bad behavior before you get banned.I wouldn’t want to ever be in the position of @jack or @kevin and have to make a decision as to who gets kicked off of a social media site. What an ethical dilemma: do I have the right to shut somebody up on a forum that was built around the concept of free speech? Criminey; it’s all too darned close to playing god.

But I digress.

What not to post on social media

First, let’s talk about what not to post. I follow 3 rules:

  1. Is it kind?
  2. Is it necessary?
  3. Is it true?

Every time I talk about social media to lawyers, I remind them that as a lawyer, you are an officer of the court. Whether you like it or not, you are held to a higher standard. Even when you are off the clock. Where ever you go—to a party, to the grocery store, to the barbershop—you represent your client, your firm and the reputation of all lawyers. It can be a bit of a burden.

Of course, you have to bear in mind ethical rules. I would recommend reading the ABA (@ABAesq) article, 10 Tips for Avoiding Ethical Lapses when Using Social Media. Basically, don’t post anything that:

  1. breaches client (or would-be client) confidentiality
  2. breaks or creates attorney-client privilege
  3. is false or misleading

So we’ve all learned to think before we share. Generally, I’d also advise that you stay away from any online controversy. It is too fraught with misinterpretation, misfires and can quickly turn ugly. Political statements are never going to add to any online conversation and run the risk of alienating friends and colleagues. I, personally, have never heard anyone say, “Yep, that incendiary post really got me to thinking. I’m going to change my entire position on the issue.” Never happens. So what’s the point?

I am not saying that you aren’t entitled to have an opinion and to speak your mind. But why put it on social media where it can come back to haunt you? It just isn’t worth it. I’ve found that sharing my opinions—especially online—isn’t that important. Opinions are like clothing; everybody wearing them.

What to post on social media

So what’s left? Rainbows and butterflies? Well, some days its seems that way. I remember there was a week where all I could post were pictures of Fiona the Hippo and the Gilmore Girls. Social media was not being very kind, necessary or true that week.

But that’s when I realized that it is my moral imperative to stand still in the social media storm and share. I never felt this more strongly than during Hurricane Harvey. I felt compelled to post and share on legal aid (@thehba), mayoral press conferences (@SylvesterTurner) and the flood district communique (@ReadyHarris). I certainly won’t sit here and say that I saved anyone’s life. But I do believe that I could do my part to quell the raucous rumors, distribute good information and push down the negativity.

Sometimes that’s all we can do: drown out the noise. And sometimes that takes the form of a cat post.

Sure, it is silly and may seem a bit goody-two-shoes. But that post did its job: it shoved someone else’s nasty comment down.

So pick a few things that you like: horses, cars, boat racing, history, art. And talk it up. Sprinkle in a few posts about a colleague’s speaking engagement. Talk about an organization’s good work. Genuinely fan-girl (or fan-boy) on one of your heroes. And every once in a while, talk about your own events and articles.

You may think sharing is too personal and that it can exposes you to criticism or make you look less professional. Meh. We are all living in this world. All of us have run into neighbors and colleagues at the grocery store. They’ve seen us with the pizza and ice cream in our carts.

All we can do is own it and be sure that we’re wearing a clean shirt.


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SCOTUS Denies Cert. in Texas Ponzi Scheme Case

Originally published by Beth Graham.


On Tuesday, the Supreme Court of the United States denied a petition for certiorari that was filed by a group of former Ponzi scheme financial advisers.  In Janvey v. Alguire, et al., No. 17-230, the former Stanford Group employees filed an unsuccessful motion to compel arbitration with a Receiver who was appointed by the Northern District of Texas to unwind the Ponzi scheme.  On appeal, a Fifth Circuit panel affirmed the lower court’s order denying the financial advisers’ request.  The former employees then sought review by the nation’s high court.

In their petition for certiorari, the former financial advisers argued the Fifth Circuit’s holding created a circuit split with the Sixth, Tenth, and Eleventh Circuits that should be resolved by the Supreme Court.  In addition, the former Ponzi scheme employees also claimed their request for arbitration with the Receiver should have been granted based on their written employment contracts with the Stanford Group and the Financial Industry Regulatory Authority’s arbitration rules.  The high court ultimately denied the former financial advisers’ petition without comment.

More information regarding this case is available in an earlier Disputing blog post.

Photo credit: ota_photos via Foter.com / CC BY-SA

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White House Proposes Changes to the National Flood Insurance Program

Originally published by Jennifer Van Voorhis.

Currently, policies of insurance for flood, even if purchased through your insurance agent or normal insurance company, are Federal Flood Insurance Policies issued through the National Flood Insurance Program, if your community is participating in the NFIP. Because the program is federally subsidized, homeowners on floodplains are able to purchase the polices at rates much…… Continue Reading

.

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Texas Bar Private Insurance Exchange hosts free open enrollment luncheon

Originally published by Adam Faderewski.

The Texas Bar Private Insurance Exchange will provide information about open enrollment for health care at a free luncheon starting at noon, October 17, at the Texas Law Center in Austin.

Topics at the luncheon will include a 2018 insurance market update, specific major medical insurance options in your area, how the Texas Bar Private Insurance Exchange can help, new group options, and business owners policy.

Space for the event is limited. The first 120 respondents will receive a confirmation email. The deadline to register is October 13. To RSVP, use the following links: Austin, Dallas, Houston, and San Antonio.

The national open enrollment period for individual health care coverage starts November 1 and ends December 15. Questions may be sent to memberbenefits@texasbar.com.

The Texas Bar Private Insurance Exchange is a multicarrier exchange launched by the State Bar of Texas as a clearinghouse for health insurance choices and other benefits for bar members, their staff, and dependents.

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What to Know about Texas’s New Sex Crimes Against Children Unit

Originally published by John Floyd.

What to Know about Texas's New Sex Crimes Against Children Unit

Crimes against children, especially sex offenses, receive more significant law enforcement attention that other criminal offenses. Texas is on the precipice of establishing a special unit specifically designed to handle child sex and human trafficking cases.

 

Last month Texas Governor Greg Abbott tweeted, “Texas is helping establish the ‘Crimes Against Children Unit’ to streamline prosecution of human trafficking cases” along with a link to an official press release about the unit.

 

The Office of the Governor’s Criminal Justice Division is awarding a grant of more than $260,000 to the Dallas County District Attorney’s Office in order to help create the new Crimes Against Children Unit by providing funding for prosecutors “to specifically handle cases involving juvenile victims of human trafficking and sex crimes.”

 

Goals of the Crimes against Children Unit

 

With its grant money, the Crimes Against Children Unit not only aims to “streamline the prosecution of human trafficking cases of both traffickers and those who purchase sex from children,” but also hopes to “provide early and consistent communication and support for victims already dealing with traumatic life-altering events.”

 

The prosecutors hired to lead the new unit will have a number of responsibilities, including:

 

  • Working with local law enforcement, schools, and other agencies to provide an organized approach in the fight against sexual exploitation and human trafficking.
  • Giving legal advice and assistance on human trafficking cases, which could involve assisting with pre-trial investigations; acting as lead or associate counsel; and preparing briefs or other legal documents to be used during hearings, trials, or appeals.
  • Interacting with human trafficking victims.
  • Handling specialized sexual assault cases.
  • Representing the state in plea negotiations, trials, or other hearings.
  • Participating as a partner in the Human Trafficking Community Response Multi-Disciplinary Team.

 

“Protecting innocent victims from the horrors of human and sex trafficking is one of my top priorities as Governor,” Abbott said. “This grant will directly fund efforts to find and arrest those who perpetrate these heinous crimes against our children. I will continue to do all I can to work with our local and federal partners to put an end to these horrific crimes.”

 

Child Human Trafficking Laws in Texas

 

There are a number of laws in our state that discuss human trafficking or trafficking of persons. Within these laws, certain ones specifically detail human trafficking when it relates to children and sexual acts.

 

A person commits an offense if he or she knowingly trafficks a child and by any means causes the trafficked child to engage in, or become the victim of, one of these sex crimes:

 

  • Continuous Sexual Abuse of Young Child or Children
  • Indecency with a Child
  • Sexual Assault
  • Aggravated Sexual Assault
  • Prostitution
  • Promotion of Prostitution
  • Aggravated Promotion of Prostitution
  • Compelling Prostitution
  • Sexual Performance by a Child
  • Possession or Promotion of Child Pornography

 

A person can also commit an offense if they receive a benefit from participating in a venture that involves an activity described above or engages in sexual conduct with a child trafficked in the manner described above.

 

Houston Sex Crimes Lawyer

If someone commits any of these crimes, they will be charged with a felony of the first degree, which is punishable by life or for any term of not more than 99 years or less than five years.

 

Bottom line?

 

The Crimes Against Children Unit is the beginning of our state cracking down on child human trafficking and sexual exploitation. If you have been charged with human trafficking or a sex crime against a child, you need to contact an experienced Texas sex crimes attorney today to fight for your rights and your future.

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CANLAW Clinic helps cancer patients with estate planning

Originally published by Eric Quitugua.

Two Austin attorneys discovered there was a void within the cancer community and decided to do something about it. In April 2017, they founded the CANLAW Clinic to provide estate planning legal services to cancer patients.

“The most rewarding aspect is knowing that our clients are equipped with the documents they need to deal with treatment and that the families will not be completely overwhelmed if their loved one does pass,” said co-founder Caitlin Haney Johnston. “Dealing with cancer is difficult in any situation, but not having the proper power of attorneys in place can make it even more overwhelming.”

 

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Thursday, October 12, 2017

Is it beneficial for your child to speak to the judge about where he or she wants to live primarily?

Originally published by Evan Hochschild.

One of the most common requests that I will field from a new client with the
Law Office of Bryan Fagan is to have their child be able to be
interviewed by the judge in the event that determining where their child will live
primarily is an issue of their case. The thought beyond the request is
usually that our client has confidence that their child is going to voice
their opinion that he or she would like to live with our client primarily.
Once this is done, the judge will announce that the case has concluded
and then we can all go home. A neat and tidy end to a
child custody or
divorce case, right?

Not so fast. Although the above scenario is theoretically neat and tidy
the actual manner in which a judge interviews a child about their preference
in living with mom or dad does not go quite like the above example. Whether
you have heard from friends or family members about the possibility of
your child speaking to the judge or have been introduced to the subject
by reading the opening paragraph to this blog post, the fact remains that
this is an area of the law in Texas
family law that has a great deal of nuance to discuss. I would like to take the opportunity
to discuss the factors that lead to a child being able to speak to a judge
about their preference on with which parent he or she would like to live
with primarily as well as the ultimate effect of their doing so.

What is the basis for a judge interviewing a child?

The
Texas Family Code addresses this situation by allowing for the interview of a child in the
judge’s chambers (office) to determine the preference of the child
as to which parent he or she would like to reside primarily with. The
law doesn’t state that only this question can be addressed, but
others such as
possession,
access and
visitation can be discussed at the judge’s discretion.

At the request of you or the opposing party, if your child is over the
age of twelve the judge must conduct an interview in his or her chambers.
If your child is under the age of twelve then it is up to the judge as
to whether or not the interview will take place. Finally, if a request
is not made of the judge to interview the child, in the form of a
Motion to Confer, it is almost certain that no court would interview the child under any
circumstances.

Can anyone besides my spouse and I request that the judge interview my child?

On occasion an
amicus attorney is appointed to a divorce or child custody case. The amicus attorney acts
as the eyes and ears of the court when court is not in session. He or
she will conduct interviews of yourself and your spouse (or ex spouse)
and will report back to the judge regarding the home life each parent
offers as well as any other factors deemed important for your case in
particular.

Who can be in the room during the interview?

The judge has free reign to allow any attorney involved with the case in
their chambers during the interview. By the same token, the judge may
decide not to allow anyone in the room during the interview and instead
choose to conduct the interview in private.

How much weight will a judge give to the child’s preference as to
where he or she lives primarily?

Ultimately the judge has the final say in any matter relating to where
the child lives or any other decision regarding the child. What needs
to be considered by the judge is what is in the child’s
best interests. There are many factors outside of what your child wants to do that the
judge needs to consider. Obviously, your child is just that- a child,
and their opinion on what he or she wants to do should be listened to
but should not be given the most weight above and beyond the totality
of your case and its circumstances.

The judge will look at the age of your child as well as their perception
as to how mature the child is. A younger child who exhibits maturity in
their answers and persona may be just as likely to impress the judge as
an older child who isn’t as composed or mature. If your intent is
to have the court interview your child my suggestion would not be to coach
the child in any respect. You can almost bet on the fact that your judge
will ask your child if either parent spoke to him or her prior to the
interview to discuss answers or anything having to do with the case.

Is the judge interviewing your child a good idea or bad idea?

Obviously a great deal depends on the specific circumstances of your case.
However, if you think that having your child speak to the judge directly
about where he or she wants to live primarily will wrap your case up with
a nice bow I can almost assure you that will not be the case. First of
all, a judge is not a therapist and most likely will not enjoy interviewing
your child. The judge has a tough job in making a decision about custody,
possession, access,
child support, etc. and interviewing the child has never seemed to help make that job
easier. Your attorney will be able to help guide you in this subject but
from my experience getting your child involved in the divorce or child
custody case may not have the end result that you anticipated at the beginning
of your case.

Contact the Law Office of Bryan Fagan for a free family law consultation

If you have any questions about your child potentially speaking to a judge
or any other subject in family law please do not hesitate to
contact the
Law Office of Bryan Fagan. A
consultation with a licensed family law attorney is only a phone call away and meetings
are available six days a week.

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US Cigarette Companies Agree to Run “Corrective Statements” Beginning in November

Originally published by Robert Kraft.

The Richmond (VA) Times-Dispatch reports Altria, Reynolds American, and other U.S. cigarette companies reached an agreement with the U.S. Department of Justice on Monday to run “corrective statements” on TV and in newspapers beginning in late November. Among the statements is: “Smoking kills, on average, 1,200 Americans every day.” Murray Garnick, Altria’s executive vice president and general counsel, said in a statement that “this industry has changed dramatically over the last 20 years, including becoming regulated by the FDA, which we supported. We’re focused on the future and, with FDA in place, working to develop less risky tobacco products.” The companies are still discussing requirements to make corrective statements on their websites and packaging as mandated in a 2006 ruling by U.S. District Judge Gladys Kessler.

Tobacco companies to air “corrective statement” ads as part of DOJ settlement.

In continuing coverage, the Wall Street Journal reports that Altria Group Inc. and British American Tobacco PLC will run advertisements as part of a settlement with the Department of Justice over misleading statements made about cigarettes. The ads will begin as early as next month and air in prime time, five days a week, for one year.

The AP reports that the “court-ordered ‘corrective statements’” will include statements such as, “Smoking kills, on average, 1,200 Americans every day,” and, “Smoking is highly addictive.”

Additional coverage is provided by the Winston-Salem (NC) Journal.

From the news release of the American Association for Justice.

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Move Over Laws: Something You Probably Didn’t Know Existed

Originally published by Herrman & Herrman, P.L.L.C..

If you haven’t yet heard about something called the Move Over law in your area, you’re probably not alone. Hawaii became the last state in the nation to pass such a law, and yet a surprisingly large number of Americans still seem to be unaware of its existence. Given the fact that some variation of the law has now passed in every state since the movement first began, you might reasonably assume that almost everyone would have heard of it by now. However, this is not the case.

The Law Described

If you’ve gotten this far and still haven’t recognized this law, chances are that you just missed seeing the public service campaigns. You can hardly be blamed, after all, since our nation adds a substantial number of new laws to the books every year and it can be difficult to keep track of them all. This one is important, though, so you deserve to know exactly what it is and exactly what it requires of you.

The Move Over law movement began with the South Carolina passage of similar legislation in 1996 after a paramedic was injured by a motorist while he was helping others at an accident alongside the road. Because there were no laws in place to protect roadside emergency workers, the victim of the accident was actually found to be at fault – a fact that motivated him to champion legislation protecting all emergency responders. When other emergency personnel were injured and killed over the next two decades, states began passing similar legislation.

Under the terms of these laws, motorists are required to do one of two things when they notice that there is an emergency vehicle with active lights and sirens alongside the road:

  • Change lanes so that there is at least one empty lane between them and the roadside vehicle they are about to pass; or
  • Slow their vehicle down to whatever speed is required in their state jurisdiction.

In the state of Texas, for example, Transportation Code 545.157 mandates that all motorists either slow down or move their vehicles to another lane when they are approaching any emergency vehicles with flashing lights that are parked on the side of the road. That entails moving over so that there is at least one clear lane between the motorist and the parked vehicles. When that is not possible, motorists must slow their vehicles to a speed that is 20 miles below the legal limit. Failure to comply with these requirements can result in the assessment of a $200 fine. That is increased to $500 if your violation of the code results in any damage to property, and is elevated to a Class B misdemeanor if your refusal to obey the law results in harm to others.

These precautionary actions must be taken whenever you see police vehicles, ambulances, or fire trucks. Some states have now extended those requirements to utility vehicles and workers as well. Keep in mind, however, that this is the law in most states. Each state has its own individual law, as well as the type of vehicles to which the law applies to. To be on the safe side, it is advisable that you research your state’s individual Move Over law to ensure that you are properly complying with the legislation.

A Lack of Awareness

Mason Dixon Polling and Research did a survey of Americans in 2007, and discovered some shocking facts about these types of motorist laws:

  • 90% of those polled agreed that law enforcement and other emergency personnel are at risk during traffic stops and vehicular crashes.
  • 86% of respondents supported the notion of passing Move Over legislation in every state. (They eventually got their wish.)
  • 71% of those surveyed had never even heard of these laws.

Granted, that was about ten years ago, and since then there has been more of an effort to get the word out and educate the public about the dangers of roadside accidents and how necessary Move Over laws are. Still, even news like this takes time for the public to absorb, and –as anyone who has recently traveled the highways and interstates of the nation can attest – many motorists still seem to be unaware.

Does the law really work?

It can be difficult to judge just how effective laws such as these actually are. Unfortunately, traffic incidences and citations resulting from failure to follow the law are reported differently from jurisdiction to jurisdiction.

Even with these laws in place, officers and other emergency responders still die due to motorist ignorance of the law. Statistics show that failure to follow Move Over guidelines results in the death of roughly 60 tow truck employees each year, another five firemen and women, and about twelve police officers. On average, almost two dozen highway workers are killed each month due to negligence in this area.

So, exactly how unaware is the Average Motorist?

Obviously, there is a tremendous amount of work that must still be done before the scourge of roadside fatalities can be further reduced. There have been state and national campaigns that have attempted to educate the public about these laws and the civic duty of every motorist to obey them. Still, the numbers continue to suggest that many people are either not paying attention or simply refuse to comply with these common-sense measures.

Statistics from the state of Tennessee make that fact abundantly clear. There, the Highway Patrol has reported that it issued a total of 9,317 Move Over law citations from 2004 to 2012. That’s an average of 1,035 separate incidents of motorists who failed to obey this simple law. One would hope that the state – and the nation – would have improved on those numbers in the last few years. Sadly, it would appear that those hopes remain unfulfilled.

In 2013, Tennessee reported issuing 1, 380 citations. That number then jumped to 1,880 citations in 2014. Despite the fact that violations carry a penalty of as much as $500 in fines and 30 days in jail, motorists in Tennessee still refuse to move over. The fatality statistics may indicate some improvement in the number of accidents related to roadside emergency workers, but the violation numbers suggest that we have a long way to go before we can consider the Move Over law education effort a true success.

The post Move Over Laws: Something You Probably Didn’t Know Existed appeared first on Herrman & Herrman, P.L.L.C.

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Defamation suits against Southern Poverty Law Center

Originally published by Nonprofit Blogger.

When is criticism against your organization grounds for a defamation suit? In a handful of recent lawsuits filed in recent months, groups designated as “hate groups” by the Southern Poverty Law Center have sued both SPLC (and, in one instance,…

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Haunted Places in Dallas-Fort Worth

Originally published by Jeff Rasansky.

Looking for a REAL Haunted House in Dallas This Halloween?

Allow us to take you on a journey through the supernatural underworld of Dallas, marking the most “haunted” locations in the DFW Metroplex. Even if you’re not a believer of the supernatural, you may be surprised by the deep and interesting history of these north Texas landmarks.


The Baker Hotel

The Baker Hotel in Mineral Wells, TX

The Baker Hotel / Mineral Wells, TX

Located in Mineral Wells, the Baker Hotel was the subject of several alleged hauntings well before its closing in 1972. According to former hotel workers, the ghost of a woman haunts the seventh floor of the hotel. Workers believe the ghost to be the former mistress of the hotel’s manager, who jumped to her death from the roof of the building. Some have reported smelling her perfume in her former room on the southeast corner of the seventh floor.

When a tour of World War II veterans and their spouses were touring the hotel, as they entered the “Brazos Room,” most members of the group reported hearing faint clanking dishware, voices, and orchestral music. Sources say the group was certain that they were hearing “the ghostly echoes of a time long past.”

Recently, some of the caretakers of the now decrepit building have reported hearing footsteps while alone in the empty former hotel.


Thistle Hill (Wharton-Scott House)

Thistle Hill in Fort Worth, TX

Thistle Hill / Fort Worth, TX

Constructed in 1903, the historic colonial-style mansion located in Fort Worth was built for wealthy rancher Tom Waggoner’s newly-wed daughter, Electra. The mansion passed through a few sets of hands until it was left empty from 1968 until 1975. At that time, a group known as “Save-the-Scott” (the mansion was known as “The Scott” at that time) purchased the home for preservation. As the house was renovated, multiple reports of apparitions began to surface.

One reported apparition was of a woman dressed in white who appeared on the landing of the grand staircase. A man dressed in tennis clothes with a handlebar mustache has also been reportedly spotted on the grounds. During the renovations, music was even reported to be emanating from a closed-off third story bedroom.

During a wedding held on the grounds, one of the members of the bridal party reported seeing a lady dressed in clothes from a much earlier era exiting a parlor near the dressing room. However, she was told that no persons in period clothing were used for weddings on the grounds.

A ghost hunter who was conducting a paranormal investigation of the mansion also reported seeing a dark shapeless materialization hovering over her. However, when she shined the flashlight on the apparition, it was said to have vanished.


Miss Molly’s Hotel

Miss Molly's Hotel in Fort Worth, TX

Miss Molly’s Hotel (over the Star Cafe) / Fort Worth, TX

Miss Molly’s Hotel in Fort Worth was built in 1910 and was used as a bordello through much of the 1940’s (when it was called the Gayatte Hotel). According to stories, many residents from the bordello days decided to extend their stays… permanently.

There are seven themed rooms in the hotel, and all have allegedly experienced some type of paranormal activity, with the Cattleman’s and Cowboy’s rooms being the location of the most famous sightings. Most reported visitations are apparitions of young girls who are believed to have worked in bordello.

There have also been unexplained scents, disappearing items, toilets flushing, lights turning off and on, and unlocked doors that refuse to open. Texas Christian University makes regular visits to the hotel to record the phenomena with their paranormal activity class.


River Legacy Park

River Legacy Park in Arlington, TX

River Legacy Park / Arlington, TX

In Arlington, River Legacy Park is said to have hosted multiple haunting events over the years. The park lies near a set of railroad tracks where the train must slow down, which makes it an attractive area to train hoppers or “hobos.” One night, a train hopper reported that he was awoken by the sounds of a man and a woman fighting in a car. The man had apparently knocked the woman unconscious, so the vagrant opened the car door to help and was shot and killed by the other man. Legend has it that if you park your car in the park late at night, you may hear a ghostly tap on your window.

During the Civil War, captured Union spies were often brought to the area in order to be hanged. The accused were often brought to an area of the park with a large mound of dirt and what was a fence (now it is only two fence posts). The area is now called “Hell’s Gate,” and according to legend, if you walk the trail to the fence posts, you can hear the faint sobs and whispers of the captured men.


Reindeer Manor in Red Oak

Reindeer Manor in Red Oak, TX

Reindeer Manor / Red Oak, TX

Reindeer Manor is currently a “commercialized” haunted house (or Halloween park), but the current owners picked this house specifically due to its strange history of violent incidents. Around 1915, while the house was leased to a group of Swedish sharecroppers, a bolt of lightning erupted a violent fire which killed the entire family of sharecroppers. Sharp decided to rebuild the house and wanted to create a lavish homestead for his wealthy family. However, Sharp was killed before the house in Red Oak was finished. Legend has it he was killed either by his own hand or by his mistress.

His son, Matt, moved into the property and developed a successful ranching business. However, when the Great Depression hit in 1929, Matt was hit hard. Rumor has it that Matt held seances within the house in order to turn his fortunes around. Matt later committed suicide inside the home by hanging himself, and his wife was found dead by poisoning.

Currently, the location operates as a commercial haunted park and puts on several shows from September through November.


Catfish Plantation Restaurant

Haunted Catfish Plantation Restaurant

Catfish Plantation / Waxahachie, TX

The Catfish Plantation restaurant (located about 30 miles south of Dallas in Waxahachie) is notorious for their many paranormal reports, and proudly proclaims themselves “The Most Haunted Restaurant in Texas.” The restaurant has been featured on a variety of shows from various networks, including the Travel Channel.

Over the years, the owners and employees have reported several strange happenings, including coffee being brewed before employees arrived, levitating objects, a blue glowing light, and the ghostly figure of a bride standing by a front window.

Not to fear though, the “group’s chief investigator” determined that all of the spirits at the Catfish Plantation are categorized as “friendly and positive.”


Haunted Houses and Other Attractions

If you’re looking for something more-geared toward fun and excitement this Halloween, there are always plenty of haunted houses as well as a few family-oriented events.

Hangman’s House of Horrors

4400 Blue Mound Rd., Fort Worth, TX
http://ift.tt/13rILhe

Cutting Edge Haunted House

1701 E. Lancaster Avenue, Fort Worth, Texas 76102
http://ift.tt/1q79zGH

Moxley Manor

510 Harwood Road, Bedford, TX 76021
http://moxleymanor.com/

Screams

2511 FM 66, Waxahachie, TX 75167
http://ift.tt/2eVuXn0

Dan’s Haunted House

501 E. Swisher Road, Lake Dallas, TX 75065
http://ift.tt/1j6LWfP

Dark Hour

701 Taylor Drive, Plano, TX 75074
http://ift.tt/1qr50IH

J & F House of Terror

1855 Wall Street, Suite B, Garland, Texas 75041
http://ift.tt/2g6mPjU

Six Flags Fright Fest

2201 E Road to Six Flags Street, Arlington, TX 76010
http://ift.tt/2ydZjMM

“Halloween Nights” at the Dallas Zoo

650 S R.L. Thornton Fwy, Dallas, TX 75203
http://ift.tt/2g6mPQW

Boo at the Zoo (Fort Worth Zoo)

1989 Colonial Parkway, Fort Worth, TX 76110
http://ift.tt/2yeSeM5


Know of more “haunted” places in the north Texas area? Tell us in the comments below!

The post Haunted Places in Dallas-Fort Worth appeared first on Rasansky Law Firm.

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



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