Thursday, May 25, 2017

Best Types of Facebook Ads for Law Firm Marketing

Originally published by Stacey E Burke Blog.

As I’ve written about before, Facebook’s advertising platform is growing at an exponential rate, giving Google AdWords a run for its money. In fact, Facebook says over 1.8 billion peope use its social media platform every month. But to the social media advertising novice, Facebook’s advertising platform may appear to be a little overwhelming. In this, the first of a two-part series, we will discuss the different types of Facebook ads and the corresponding metrics you should pay attention to as they are running.

Campaigns

Facebook’s advanced advertising platform is comprised of three main components: campaigns, ad sets, and ads. Campaigns are the highest tier and the most important in determining the success of your ads: the campaign is where you determine the objective of the advertisements. Are you trying to increase followers for your Company Page? Do you want more users to see a video about your law firm? Or are you seeking to increase contact form submissions for specific types of clients? Establishing your objective will determine which campaign type to utilize.

Facebook categorizes campaigns into three categories: awareness, consideration, and conversion. As indicated by their titles, each category has a specific purpose and should be used accordingly.

Facebook Advertising Options

Awareness

Awareness ads do exactly that: they raise awareness about your law firm to targeted users. For newly established law firms, or law firms diving into the social media world for the first time, these ads are a great way to build your following and attract new “likes” for your Company Page. We recommend selecting the “Brand Awareness” objective, as it will ensure users who are the most likely to be interested in your Page see the ads. Conversely, the “Reach” objective focuses on serving the ad up to the maximum number of people, without concern for their interest levels.

Use for:

  • Announcing a new law firm
  • Generating followers for a new Company Page
  • Increasing your followers periodically

Consideration

Consideration ads focus on the first step of lead generation: engaging with the follower by enticing them to perform an action of some sort. This could include visiting your website, commenting on the ad, watching a video, or providing an email address. Utilizing these types of ads can provide another layer of brand exposure by capitalizing on the “social” portion of social media. When individual Facebook users comment and interact with your ads, this allows your ads to reach all of their friends organically. Each of the different objectives is worthwhile, and you should select based on what you are looking to accomplish.

Use for:

  • Driving traffic to your website
  • Increasing views of your video content
  • Capturing email addresses for an e-newsletter
  • Obtaining responses to an event

Conversion

Conversion ads are the answer to, “How do I get more leads?” For law firm demand generation, we recommend using the “Conversions” objective. Conversion ads drive valuable actions on your website. They target Facebook users with specific criteria and entice them to convert. In the case of law firms, this generally means having them complete a contact form or click-to-call.

Use for:

  • Targeting potential new clients
  • Increasing contact form submissions and phone calls

Once you’ve selected your campaign objective, Facebook walks you through building out your ad sets and ads. This includes setting your targeting (who you want to see your ads), setting your budget, crafting the content, selecting images, and determining how long you want them to run.

Once your ads are launched, Facebook provides a variety of metrics. Next week, I’ll discuss what all of those numbers mean, and which ones you should pay attention to for a successful ad campaign.

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Tough Time Flying? Soon There Could be a (Patented) Digital Pill For That

Originally published by Kirby B. Drake.

If you ever have a tough time flying, struggle with how to combat potential jet leg, or just wish that the flight attendant would bring […]

The post Tough Time Flying? Soon There Could be a (Patented) Digital Pill For That appeared first on Klemchuk LLP.

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Law Firm Marketing with Social Media: Getting Started

Originally published by Christina DiPinto.

After previously outlining some of the more common social media dangers for lawyers, we are now focusing on how you can market your practice by getting started on the top social media networking platforms. When handled properly, social media can be a valuable tool to promote your firm’s brand, raise your public profile, grow your […]

The post Law Firm Marketing with Social Media: Getting Started appeared first on Muse Communications.

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Fifth Circuit Holds Payday Lender Waived Right to Arbitration

Originally published by Beth Graham.


In a 2-1 decision, the nation’s Fifth Circuit Court of Appeals has ruled a payday loan lending company that sought criminal charges against customers who failed to repay their loans waived its right to arbitration by substantially invoking the judicial process.  In Lucinda Vine, et al. v. PLS Financial Services, Inc., No. 16-50847 (5th Cir., May 19, 2017), a Texas payday lender, PLS, provided short-term loans to two customers, Vine and Pond, in exchange for a fee.  Before the loan was provided, each customer signed a credit services agreement that included an arbitration provision.   As part of the loan process, the customers also provided PLS with post-dated checks.

Both customers later defaulted on their payday loans and PLS unsuccessfully attempted to cash the post-dated checks.  After the checks were returned for insufficient funds, PLS submitted a worthless check affidavit for each customer to the local district attorney’s office.  Next, the district attorney’s office advised the customers via letter that they would face criminal prosecution if they did not pay restitution to PLS.

In response to PLS’s worthless check affidavit, Vine and Pond filed a class-action lawsuit against the payday lender.  According to the customers, PLS violated Section 392.301 of the Texas Finance Code and certain provisions of the Texas Deceptive Trade Practices Act.  In their complaint, the customers also accused PLS of engaging in malicious prosecution and fraud.

PLS responded to the class-action lawsuit by filing a motion to compel the dispute to arbitration based on the credit services agreement that was signed by each customer.  A district court found that PLS waived its right to arbitration by substantially invoking the judicial process when the company filed the worthless check affidavits.  As a result, the court denied PLS’s motion.

On appeal to the United States Court of Appeals for the Fifth Circuit, PLS argued the district court committed error by:

(1) deciding whether PLS waived its right to compel arbitration by participating in litigation conduct;

(2) ignoring the parties’ express agreement to arbitrate all disputes, including any litigation-conduct waiver claims; and

(3) concluding that PLS waived its right to arbitrate by submitting worthless check affidavits.

The appellate court first ruled “the district court did not err by deciding the litigation-conduct waiver.”  The Fifth Circuit stated:

In Tristar Fin. Ins. Agency v. Equicredit Corp. of Am., 97 F. App’x 465, 464 (5th Cir. 2004), we recognized that when “waiver . . . depends on the conduct of the parties before the district court,” “the court, not the arbitrator, is in the best position to decide whether the conduct amounts to a waiver under applicable law.” Here, the district court’s waiver decision depended on the conduct of PLS—a party to the litigation. Consequently, the district court was “in the best position” to decide the litigation-conduct waiver. Id.

Next, the Court of Appeals found that “the parties’ express agreement does not address litigation-conduct waiver.”  After stating PLS waived the issue by failing to bring it up when the payday lender filed its motion for reconsideration with the district court, the appellate court added:

While the language of an arbitration agreement can displace the presumption that a court should decide an issue, “[a]n issue that is presumptively for the court to decide will be referred to the arbitrator for determination only where the parties’ arbitration agreement contains `clear and unmistakable evidence’ of such an intent.” See Ehleiter, 482 F.3d at 221 (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).

Here, we do not find “clear and unmistakable evidence” that the parties intended to arbitrate litigation-conduct waiver. Id. Though the parties’ agreement requires arbitration of “any claim or attempt to set aside this Arbitration Provision,” it does not explicitly mention litigation-conduct waiver. See Principal Investments, Inc. v. Cassandra Harrison, 366 P.3d 688, 696 (Nev. 2016) (“Had Rapid Cash intended to delegate litigation-conduct waiver to the arbitrator, rather than the court, the agreements could and should have been written to say that explicitly.”). Furthermore, we “cannot interpret the Agreement’s silence regarding who decides the waiver issue here `as giving the arbitrators that power for doing so . . . [would] force [an] unwilling part[y] to arbitrate a matter he reasonably would have thought a judge, not an arbitrator, would decide.’” Ehleiter, 482 F.3d at 222 (quoting First Options, 514 U.S. at 945). Because the Agreement does not contain “clear and unmistakable evidence” of an intent to arbitrate the instant litigation-conduct waiver issue, the district court did not err. Id. at 221.

With regard to PLS’s third argument, the Fifth Circuit held “the district court correctly found that Vine and Pond plausibly alleged that PLS waived arbitration when it submitted false worthless check affidavits.”  According to the court:

“The question of what constitutes a waiver of the right of arbitration depends on the facts of each case.” Tenneco Resins, Inc. v. Davy Int’l AG, 770 F.2d 416, 420 (5th Cir. 1985). “Waiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.” Subway Equipment Leasing Corp., 169 F.3d at 326 (quoting Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir. 1986)).

Next, the appellate court distinguished the Fourth Court of Appeals’ recent decision in Cash Biz, LP v. Henry et al., (Tex. App.-San Antonio 2016, pet. filed) from the case at hand.  (You may read more about the Cash Biz case in a prior blog post.) After that, the Fifth Circuit stated:

Therefore, by allegedly submitting false worthless check affidavits, PLS “invoke[d] the judicial process to the extent it litigate[d] a specific claim it subsequently [sought] to arbitrate.” See Subway Equip. Leasing Corp., 169 F.3d at 328. As the district court made clear, “Defendants have initiated a process that invites Texas district attorneys’ offices to address issues that are at stake in the instant action.” Most obviously, all claims involve whether PLS misled or threatened Vine, Pond, and the class of PLS customers they purport to represent in order to obtain outstanding debt owed to PLS.

Finally, the appeals court ruled the customers successfully demonstrated that they were prejudiced by PLS’s actions when the company filed worthless check affidavits with the district attorney’s office.  The court said:

Vine and Pond have also demonstrated detriment or prejudice from PLS’s submission of worthless check affidavits. “Prejudice in the context of arbitration waiver refers to delay, expense, and damage to a party’s legal position.” Nicholas v. KBR, Inc., 565 F.3d 904, 910 (5th Cir. 2009). Here, Vine and Pond would have borne the costs of defending against any theft by check prosecution. In addition, they would have suffered the preclusive effect of a conviction in any subsequent litigation. Consequently, they have sufficiently shown detriment or prejudice. See Subway Equip. Leasing Corp., 169 F.3d at 327.

Because PLS waived its right to arbitration, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s order denying the company’s motion to compel arbitration.

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Client development coaching: Why start now?

Originally published by Cordell Parvin.

I could answer by simply saying that every lawyer I have coached wishes he or she had started focusing on client development earlier in their career. But, let me give my own example.

Is your firm providing client development coaching for it next generation?

I tell law firm leaders that when I was growing up I played baseball every day during the summer. I played all the way through college.

I have not swung a baseball bat in 30 years or more. If I went to a batting cage today, I am not positive I would hit the ball, but I am postive I would not think about the technique of my swing.

 

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Wednesday, May 24, 2017

Can You Recover Damages in a Texas Car Accident if You Weren’t Wearing a Seatbelt?

Originally published by » Blog.

Under Texas law, you are required to wear a seatbelt if you are operating or riding in a vehicle. Unfortunately, not everyone follows this important safety law. According to the Texas Department of Transportation, 25% of people who died and 11% who suffered serious injuries in a Texas car accident in 2015 were not wearing a seatbelt…

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Texting While Driving Ban Possible in Texas

Originally published by Anderson Law Firm's Injury Blog.

Image result for texting while driving

After numerous attempts over the last decade to legally ban texting while driving in Texas, there is a real possibility that a law to formally institute a statewide ban. Even though the ban is being driven on the state government by families, friends, and organizations that have been impacted by the death of a loved one, there are opponents that have arguments against the ban, as this post will show.

The push for a statewide ban would have been successful in 2011, but the governor at the time, Rick Perry, vetoed the bill and thus prevented the bill from becoming law. After multiple attempts, however, both governmental chambers approved the ban this year, the Texas House of Representatives doing so in March, followed by a set of revisions proposed by the Texas Senate (by allowing for smartphone GPS applications to be used).

Tell Me About the Bill

In the proposed law – currently titled “HB 62” (HB stands for “House Bill”) – drivers who are found using their phones for texting, emailing, or using social media such as Facebook, Instagram, Twitter, etc., could potentially pay up to a $99 fine for their first offense, followed by a $200 fine for offenses that occur thereafter.

However, HB 62 would only be applied to those using the mentioned phone usages while the car is in motion. Drivers who have their vehicles parked or stationary can still text and use their phones in other ways. Also, HB 62 could not be used for drivers using their phones as a music player.

While the legal matter is relatively new in Texas, there are 46 states that currently have some form of statewide texting while driving ban.

Enforcement Concerns

There have been several concerns that the proposed bill would be too confusing and difficult to enforce. A sample of concerns surrounding HB 62 is:

  • What if the driver was not texting while driving?
  • Can a violation of appear on a driving record?
  • What defines a vehicle as stationery or idle?
  • What will be the fairness of the bill?
  • How would the proposed bill be properly enforced?

These and other concerns have been surrounding texting while driving bills throughout the decade. While HB 62 may appear to be a simple law, there may be greater complications involved with its legality, enforceability, and legitimacy.

HB 62: Government Intervention…or Interference?

A classical approach to dealing with the arguments for- and against- HB 62 lies within two basic political principles: intervention versus interference. The first concept means that the government is coming to action for the benefit of the people and is typically met with positive response from the population, while the latter concept means that the government is entering a sphere where their reach is perhaps not wanted or needed. Similar examples of the issue of government intervention vs. interference lies within business regulations, price controls, and wage statutes.

Using these principles, the question could be asked: is the proposed HB 62 a way for the government to use legal methods to prevent accidents from occurring in the future, or is the government reaching their scope into the personal and daily lives of its population? If passed, will HB 62 be an example of how a government could use its legal abilities for the benefit and safety of its people, or will HB 62 be an unwanted gateway for future restrains on the individual?

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What Is “Account Takeover” Fraud?

Originally published by John Floyd.

What Is "Account Takeover" Fraud?

Any online banking accounts or credit cards are subject to fraudulent takeover. There was a time not so long ago when fraudsters targeted credit card numbers. With the advent of EMV chip-card technology, credit card fraudsters are now going after a complete account takeover because the financial gain is obviously greater.

 

Patrick Reemts, president of ID Analytics in San Diego, says that “account takeover is a type of identity theft where a fraudster uses parts of the victim’s identity such as an email address to gain access to financial accounts.”

 

Once the fraudster gains access to the account, Reemts says, “the perpetrator often reroutes communication about the account, keeping the victim in the dark so the thievery can continue longer. Affected accounts can include credit cards, checking and savings accounts, brokerage accounts and store loyalty rewards accounts …”

 

Reemts compares this new type of fraud to relationships. He says that when a person steals a credit card, he has “stolen one relationship,” but when he or she accomplishes an account takeover, they have “access to several relationships.”

 

Clearly, account takeover has proven to be more lucrative for fraudsters than simply stealing a credit card number. What used to be one-time credit card fraud schemes have turned into longer schemes that can affect multiple accounts.

 

And account takeover is not as difficult as one might think. Once a fraudster gains access to a victim’s password, they can open the door to the house that then leads to every room inside the house.

 

Think of how many passwords you have, and how many accounts use the same password. With normal credit card fraud schemes, the fraudster loses access to the person’s money as soon as the card is cancelled (which is usually done within a few days of the victim finding out someone stole their information). However, it may take quite a bit longer for victims to go and change all of the passwords for their bank accounts, PayPal accounts, email, and so on.

 

This type of fraud scheme is quickly gaining in popularity.

 

In the first quarter of 2015, account takeover fraud jumped 112%. It grew an additional 31% from 2015 to 2016, and losses to victim grew 61% to $2.3 billion.

 

Penalties for Account Takeover Fraud

 

Houston Bank Fraud Defense Attorney

Like most white collar crimes, sentences for bank fraud and other charges related to account takeover schemes are based on the amount of money stolen. Many of these crimes are tried and sentenced in federal court. Federal offenses do not have parole eligibility and the offender must serve roughly 85 percent of their sentence before securing a good conduct release. Other penalties may include paying restitution to victims, which could reach tens (or even hundreds of thousands of dollars depending on the amount that was stolen.

 

Let’s look at one example.

 

In early 2017, six individuals were sentenced on bank fraud and identity theft charges. The scheme was classic account takeover fraud: one of the fraudsters impersonated an account holder with their information to transfer out $150,000. A related account takeover resulted in the transfer of $500,000. That’s a big scheme, so the fraudsters received big penalties.

 

Of the six fraudsters, Darnell Crutcher received the harshest sentence. He was one of the main individuals involved with obtaining the victims’ account information. He received nine years and one month behind bars, five years of supervised release, and ordered to pay $794,825.90 in restitution. The least sentence imposed was13 months, which was probate d, and three months of home confinement. In addition, there was a $222,825.90 restitution order that had to be satisfied. This sentence, though relatively lenient for a federal offender, was for merely assisting one of the fraudsters in their scheme.

 

Bottom line?

 

The charges and penalties for account takeover fraud are not to be taken lightly. The more you take, the more you will have to pay back if you are convicted. If you have been arrested or charged for bank fraud schemes, talk to a federal criminal defense lawyer.

 

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Right of First Refusal, Part Two: What about the Kids?

Originally published by Jonathan James.

The right of first refusal can create a police state mentality. Clocking the comings and goings of an ex is anathema to healing.  It is a great way to remain angry, stuck, and convinced of moral “right-ness,” which might feel good in the moment but brings eventual misery.  Heard the expression would you rather […]

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The Invisibility Cloak Illusion: We are more observant (and  yet, less observed) than all others

Originally published by Rita Handrich.

This is the sort of article that can either amuse or terrify you. It will amuse you if you are charmed by all the ways in which we see ourselves as superior to others. And it will terrify you if you do not want to know that you are always being observed closely by everyone around you. The article even starts off creepily:

“People-watching is an age-old pastime. People notice and observe the people around them all the time—on trains, at cafés, waiting in line, at cocktail parties and office meetings, and beyond. Pretty much anywhere there are other people, we spend a good deal of time watching them, wondering who they are, and assessing what they are like. But despite all the watching people do of others people rarely feel as if they, themselves, are being observed as they go about their daily lives. Indeed, people feel relatively invisible.

Of course it is impossible that people (on average) observe others more than they themselves are observed. Yet this is precisely what we suspect people believe. We call this bias the invisibility cloak illusion. This is an illusion that prevents you from realizing that, whether you are on a plane, in a restaurant, or at a rodeo, when you stop watching people and taking in the social scene—when you turn your attention to whatever else you are doing—the people around you are likely to raise their eyes from whatever they were doing and watch you.”

It is just spooky. We first saw this article over at the BPS Research Digest and they poked fun at it (just a little) and poked special fun at a “particularly cruel experiment” from the year 2000, involving being required to wear a Barry Manilow t-shirt—so we went to read the actual article. (We also have a blog post poking fun at a more recent Barry Manilow reference.) But we digress. Here is what the researchers did in today’s featured research.

First, the researchers verified the existence of the invisibility cloak illusion using online participants. Then, using Yale undergraduate students, they asked two participants of the same gender to sit in a waiting room prior to the experiment beginning. (We all know the experiment had already begun.) After seven minutes (precisely), the two participants were taken to separate rooms and told they were either the “observer” or the “target”. The observer wrote down everything they noticed about the target while the participant assigned to be the target wrote down everything they expected the observer would have noticed about them. Consistent with the invisibility cloak illusion, the observers produced more detailed notes about the target than the target predicted they would. But having read that old Barry Manilow experiment, our fearless researchers were not yet done.

Next, the researchers wanted to see if the spotlight effect (featured in the Barry Manilow t-shirt experiment where people required to wear the t-shirt felt exceptionally self-conscious) could co-exist with the invisibility cloak illusion. So they had half the target-participants wear a t-shirt with the Columbian drug lord Pablo Escobar on it. (We think they should have used a Barry Manilow t-shirt instead but perhaps it was deemed by the Yale Human Subjects Review committee to be unreasonably cruel—hence the Escobar attire.) They repeated the waiting room experiment with the only difference being the drug lord t-shirt foisted on one of the participants. They were left in the waiting room together for five minutes and then sent to separate rooms to once again answer questions as to what they had observed or what they thought had been observed about them. Again, observers listed more behaviors and characteristics than the target thought they would have observed.

An addition to this follow-up experiment was that the observer was asked how much they thought about the target’s shirt as they observed the target prior to the experiment. And here is where it gets even creepier—the target-participants thought the observers would look at their shirt much more when they were wearing the Pablo Escobar shirt supplied by the experimenters rather than their own shirt. The observers, however, “observed, noticed, and thought about the targets’ shirts equally across conditions, regardless of whether the target was wearing a provided shirt”.

From a litigation advocacy perspective, this means it is particularly important that you and your client are always aware you are on-stage at all times when in the courtroom. The most important audience is, naturally, the jury, but this research would say everyone is watching you (although the researchers remind us frequently in the article that observers go to great pains to make it appear they are not watching you). Much like the inaccurate “better than average effect”, the invisibility cloak illusion tells us we are watched even as we watch (and apparently, we are judged even as we judge). Parties and witnesses sometimes believe they are only really being observed when they are giving testimony. Alas, it is so untrue.

The researchers sum it up this way:

“The invisibility cloak illusion consists in people believing they observe others more than others observe them. This belief appears to be pervasive and persistent, despite being logically impossible in the aggregate. It cannot be true that, on average, people are noticing and observing others more than they themselves are noticed and observed. Yet everyday people experience the compelling sensation that social observations flow predominantly in one direction.

People peer out at the social world and yet they feel relatively unseen, as if they are inconspicuous consumers of their social surroundings. However irresistible this sensation may be, it is not to be trusted. The sensation of observing others while remaining relatively unseen is a mirage, obscuring the reality that we are all equally exposed to one another.”

Obviously these researchers have no interest in comforting any of us and this research is not at all comforting. What it does do though is offer an uncomfortable reminder to us—we are never off stage and certainly never off stage in the courtroom or in professional activities. And neither is anyone else.

Boothby EJ, Clark MS, & Bargh JA (2017). The invisibility cloak illusion: People (incorrectly) believe they observe others more than others observe them. Journal of Personality and Social Psychology, 112 (4), 589-606 PMID: 27977221

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Would You Like a Power of Attorney with that Diploma?

Originally published by Rania Combs.

It’s that time of year again. High school seniors are preparing to graduate and head off to college, and parents are wondering how it’s possible that their children are all grown up!

It’s a milestone that highlights how quickly the years pass. I know. My son will be graduating next year, and I am already getting emotional thinking about it.

While you’re likely proud of how much your children have accomplished and excited about the bright opportunities that lie ahead for them, you’re probably also a bit anxious too. As a parent, it’s been your job to keep your children safe for 18 years, but now, your babies are heading out alone.

You hope that all the lessons you’ve taught your children will help them make wise choices and stay safe. But what happens if things go wrong? Will you be able to step in to help your children need you most?

Without three important documents, you may not be.  Why?

Because once your children turn 18, they are adults in the eyes of the law.

That means that even though they will likely continue to rely on you for the majority of their support and depend on you for health insurance coverage during college, privacy protections will prevent financial institutions and medical providers from disclosing private information concerning them to you without their authorization.

That’s why it’s important your graduate should sign three important documents before heading off to college:

  1. Durable Power of Attorney: The Durable Power of Attorney will allow your child to authorize you to manage his financial affairs either immediately or in the future should he become mentally or physically unable to do so. This would authorize you to handle tasks such as paying bills, applying for social security or government benefits and opening and closing accounts if necessary.
  2. Medical Power of Attorney: The Medical Power of Attorney allows your child to authorize you to make medical decisions if he or she is incapacitated and unable to do so. An agent acting under a Medical Power of Attorney is authorized to see the principal’s medical records to make informed medical decisions on his or her behalf.
  3. HIPAA Release: HIPAA (the Health Insurance Portability and Accountability Act of 1996) requires health care providers and insurance companies to protect the privacy of patient’s health care information. Those who violate HIPAA are subject to civil and criminal penalties, including jail time, which makes them reluctant to share protected health information without an authorization.While it’s true an agent under a Medical Power of Attorney has the authority to view the principal’s medical records, the Medical Power of Attorney does not grant authority to the agent until the principal is incapacitated. If capacity is questioned, then HIPAA regulations would prevent access to protected health information.This means that even parents may be prevented from accessing their children’s medical information without an authorization, just like the mom above. By signing a HIPPA release your child can authorize doctors to share diagnoses and treatment options with you.

These three documents are easy to prepare and are relatively inexpensive. If you have a child heading off to college this year, it’s important that you discuss the importance of these documents with him or her.

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Texas Car Seat Laws

Originally published by Shannon Williams.

For the past 15 years Texas Department of Transportation has been working to raise the level of seat belt use with their Click or Ticket campaign. But a recent study shows that nearly 1 in 10 Texans still don’t buckle up.

Last year 994 Texans died because they weren’t wearing a seat belt. For this 15th anniversary of the campaign, take the time to remind all your passengers to buckle up. Share the Click it or Ticket message with those you love.

Buckling up isn’t just the safe thing to do, but it could also save you money. In Austin, a driver can be ticketed up to $50 for a rider that’s 15 years of age or older in the front seat who’s unrestrained. Once you tack on court costs the fine amounts to a total of $157. Continue reading this post to find out more about how to protect your family, and what fines you could face if you fail to comply with Texas seat belt laws.

Car Seat Laws in Texas

While traveling with children in Texas it’s important to have them buckled in for their safety. Failure to have a child buckled into a safety seat could result in a traffic violation, points on your license, or the need to take a Texas seat belt course to have the points dismissed.

The last thing you would want to do is put your child in danger. You can keep your kids safe from some of the dangers of a car crash if you follow proper child car seat instructions and have the appropriate gear for them.

There’s some gear that’s legally required for keeping children in tow. Very small children should only ever ride in the backseat, in a rear facing child seat.
When a child has reached a year old, they can graduate to a forward-facing safety seat in the rear of the vehicle.

 

Recommended child safety seats (also known as booster seats):

  1. It’s required that infants ride in the back in a rear-facing seat.
  2. Kids under 2 years of age, or between 20 and 40 pounds should be in rear facing seats
  3. As a child grows they should graduate to a forward facing seat, typically at 2 years of age.
  4. Kids from 2 -4 years should ride in forward-facing car seats until they reach the upper height and weight limits of the seat.
  5. Kids from 4 -7 years should be in a high-back booster seat.
  6. An 8- to 12-year-old less than 4 feet 9 inches can be in a high back booster or low-back booster until they reach the upper height and weight limits of the seat. The low-back booster may be used with the car’s adjustable headrest.

Some children may legally ride in the car without a booster seat. Legally, a child may sit without a booster seat after their eighth birthday. It’s a law that went into effect in September 2009. However it’s recommended that a child remain in booster seat until they are 4 feet 9 inches.

Texas Seat Belt Law: Where should the kids ride?

  1. Teenagers and adults may ride in the front seat with a seat belt on.
  2. Children may safely ride in the back seat without a booster if their height is above 4 feet 9 inches.
  3. Children should never ride in the front seat.

Injury in case of a car accident is undoubtedly the biggest cost of not wearing a seat belt. But there are some rules on the books that allow Texas peace officers to enforce use of seat belts in the front seat and for children.

  • Adults in the front seat can receive up to a $50 fine for not wearing a safety restraint.
  • A driver can face up to a $200 fine for children who are not properly restrained.
    1. Children under 8 must be in an appropriate booster seat or car seat.
    2. Children riding in any seat must be restrained by a seat belt.

Some of this information, such as that child passenger safety seats are required for all children under the age of 8 may not be entirely obvious or widely known. If you want to know more about what’s legal and safe in Texas, visit this resource provided by TxDOT.

Child Seat Law Texas: School Bus Bill Moves on in Lege

Check back on McMinnlaw.com for more information about current Texas seatbelt law as this story unfolds. Find out about how the Texas 2017 legislative session will make an impact on Personal Injury law here.

 

Seat belt laws have made recent news in the Texas lege. In mid May, nearing the end of the Texas legislative session the Texas House backed legislation that would require three-point seat belts on new school across the state. Senate Bill 693 has been tentatively backed by the Texas House. It would only impact new buses purchased by schools.

This bill follows similar legislation that was passed in 2007. Then the law was called Ashley and Alicia’s Law, which remembers two teens killed en route to a soccer playoff. Even with good intentions, the law did little to prevent deaths like Ashley and Alicia’s. The legislation left the responsibility to schools to apply for state money that was earmarked for the effort. A Houston Public Media report revealed that virtually no school districts applied and students still ride in buses without seat belts.

As the school year closes tomorrow, 1.1 million children still ride without an ability to buckle up on the way to class.

Personal Injury and Texas Seat Belt Laws

Can using a seatbelt at the time of the accident affect your personal injury case? If you were injured in a crash, you may want to consider filing a claim and hiring a local personal injury lawyer. Compensation from the insurance company may help you pay medical bills and get your life back on track after the crash.
If it’s found that you weren’t wearing a seatbelt during a crash it could greatly affect your personal injury claim. Because seat belts have been shown through research and statistics to effectively reduce the number and severity of injuries, a person who chooses not to wear seat belts may be considered negligent. If you chose not to wear a seatbelt at the time of the crash, and you need to file a claim for injuries, the amount you could receive may be diminished under comparative negligence.

An insurance company will use this information to reduce your claims. If you want to understand more about comparative and contributory negligence in Texas, visit this page.

Austin Car Accident Lawyers

Jason McMinn and Justin McMinn specialize in personal injury cases in Austin, Texas. If you or a loved one were involved in a serious car accident, you may want to seek legal help. An experienced attorney can help you recover the compensation you need and deserve.

No case is too small for McMinn Law Firm. If you believe you have been the victim of someone else’s negligence, call McMinn Law Firm for a free case consultation today. Our staff is here to help. 512-474-0222

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Prenuptial Agreements in Texas

Originally published by Evan Hochschild.

Agreements that marrying persons enter into before the marriage actually begins are enforceable by law under the Texas Family Code.

The requirements of a prenuptial agreement must be met, but so long as it does, the document:

  1. acts as a contract between the parties that
  2. will determine how their property is handled in the future should the marriage relationship end.

The Requirements

The basic requirements for a prenuptial agreement to be enforceable in Texas are that the document must:

  1. be in writing
  2. be signed by both parties
  3. both spouses disclosed assets and liabilities prior to signing the agreement and
  4. both spouses waived the right to further disclosure.

Challenging Prenuptial Agreements

If it comes to light that either party did not sign the agreement voluntarily or that one party signed without knowing the full breadth of the financial situation of either party then the agreement may be deemed unenforceable by a Court.

Determining the Rights to Property

Deciding what rights and responsibilities each party to the marriage will have to any piece of property is a definite positive aspect to signing a prenuptial agreement.

This is true no matter who bought the property, when it was bought or who currently owns it.

Why Sign a Prenuptial Agreement?

The reasons why parties may want to sign a prenuptial agreement are varied and many.

Inheritance Planning

For starters, the distribution of property upon the death of one of the parties in order to avoid certain pieces of property going to a person’s spouse is one reason.

In this way, the prenuptial agreement acts as a de-facto estate planning document. Inherited income from a person’s family or other property the intent of which was to remain in that family’s control may not work out that way if that property becomes community property because of intermingling in the other spouse’s property as well.

Financial Planning

The attorneys with the Law Office of Bryan Fagan also see clients who wish to enter into a prenuptial agreement in order to maintain the financial integrity of the marriage prior to the day that vows are actually exchanged.

For example, if one party to a marriage has a significant amount of debt but not all that much income it is sensible to utilize the protections offered under a prenuptial agreement in order to keep the spouse with no debt’s income separate.

The careful organization of assets, income and property is obviously a requirement for this to be a possibility. Those people that own a business can see benefit from signing a prenuptial agreement by shielding your business and any investors/partners you may have from having those interests become part of the community estate.

Prenuptial Agreements Cannot do Certain Things

A prenuptial agreement cannot do everything, however. Public policy or State law cannot be violated, obviously.

A prenuptial agreement cannot defraud creditors that are already in place either. Avoiding a lien or a creditor’s phone calls by making all of your separate property the property of your soon to be spouse is not something that a Court can enforce.

A prenuptial agreement can, however, be structured to make sure your spouse’s property from your creditors. Convincing a Court that you did not enter into the agreement voluntarily is a way to get out of the agreement but this can prove difficult.

The prototypical example of having a gun held to your head is applicable here. Unless a person can show a judge that something akin to this has occurred the document will most likely be held to be enforceable. Two adults that sign a document together typically means the document will not be overturned by a Court.

A less frequently considered benefit of entering into a prenuptial agreement is if either party has children from a prior marriage there is likely to be a child support obligation that is current. By signing a prenuptial agreement ensures a party that owes child support ensures that their assets are protected for their children in the even that something were to happen to them.

Postnuptial Agreements

A marital property agreement, also known as a “post-nup” function very similarly to one another. The big differences are obviously when they are entered into (before the marriage vs. during the marriage).

Marital property agreements are also written as partition and exchanges between the parties. This means that spouses can either agree to split pieces of property into his and hers separate property, or they can agree to trade one piece of property for another.

The key part of a prenuptial agreement is to take property that would ordinarily be considered to be community under the law in Texas and make it the separate property of one spouse. Instead of having a marriage where some of the property is separate and some of it is community, parties that enter into a prenuptial agreement can actually make all property one or the other. In the event that a divorce is necessary, the process can be streamlined to a great extent. Whatever items are not covered by the prenuptial would have community property laws of our State applied as in most divorces.

To find out if a prenuptial agreement is right for you and your soon to be spouse, please contact the Houston divorce lawyers at the Law Office of Bryan Fagan. Our office has years of experience drafting agreements that stands to benefit both parties to a marriage and can help create a peace of mind for clients for years to come. A consultation with our office is free of charge and will be with a licensed, practicing family law attorney.

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If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Other Articles you may be interested in:

  1. Should I sign a Texas Premarital or Prenuptial Agreement?
  2. Common Questions about Texas Prenuptial and Marital Agreements
  3. Making Postnuptial Agreements Stick in a Texas Divorce
  4. Attacking the Enforceability of a Premarital Agreement in a Texas Divorce
  5. My Fiancé wants me to sign a Texas Prenup. What should I do?
  6. Dower Contracts and a Texas Divorce
  7. Can I sue my spouse’s mistress in Texas?
  8. When is, Cheating Considered Adultery in a Texas Divorce?
  9. 6 things You Need to Know Before You File for Divorce in Texas
  10. Texas Divorce Morality Clause: Be Careful What You Ask For

Law Office of Bryan Fagan | Spring Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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Avoid This Pitfall When Using Life Insurance to Guarantee Post-Divorce Child Support Obligations

Originally published by Axel Lindholm.

Divorce Attorneys Helping Sort out Insurance and Child Support Issues for Divorcing Couples in Texas

Quite often, particularly when a divorcing couple has minor children and one of the parents has been the dominant income producer, the couple may agree that the income producer utilize life insurance. This can be used as a guarantee that adequate funds will be available to provide for the children until they reach a certain age, or perhaps until they complete their education and get started in life.

Care and attention need to be given to the designation of life insurance beneficiaries, however, if the goals of the former spouses are to be met. Failure to follow a few important rules can result in significant problems for both the estate of the deceased former spouse, as well as the deceased’s children.

Insurance Policies Already in Place at Time of Divorce

It may be that the income producer has already established one or more life insurance policies and has already designated the former spouse as the primary beneficiary. The divorcing couple may informally decide that the existing policy or policies can continue to provide protection for the interests of the minor children.

Unfortunately, such an informal arrangement often fails since, under Texas Family Code § 9.301(a), the divorce generally operates so as to extinguish all rights that the former spouse might have in the insurance policy. Unless special arrangements are made, if the income provider were to die after the divorce, the insurance proceeds would typically pass not to the former spouse, but rather to any alternate beneficiary named in the policy. If the policy failed to name such an alternate, the proceeds would typically pass on to the income provider’s estate. If the income provider failed to establish a testamentary trust for the benefit of his or her children, their well-being might be put in jeopardy. Indeed, the surviving former spouse might have to initiate litigation on behalf of the children. That often results in needless expense.

Insurance Policies Purchased After the Divorce

If the income producer acquires life insurance after the divorce and designates his or her former spouse as the primary beneficiary, that designation is unaffected by Texas Family Code § 9.301. At the death of the income producer, the life insurance proceeds would be paid over to the former spouse, but there’s a wrinkle. Payment of the proceeds to the former spouse is independent of any child support obligation that the income producer may have had. That is to say, even if he or she had no actual continuing obligation (e.g., the child or children have reached 18 years of age, or have completed their education), the life insurance proceeds would still go to the former spouse. Those who would otherwise benefit from the estate might resent the former spouse’s apparent windfall.

Divorce is a Time for Careful Estate Planning

While going through a divorce is often a frustrating and emotional experience, it is also a time for sober reflection upon one’s estate plan. Care needs to be given to crafting a plan that is not only consistent with one’s personal goals, it must usually also reflect the continuing needs of children and other family members. Mistakes can be heart-breaking and expensive.

Romano & Sumner – Experienced Attorneys in Estate Planning

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The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients in all sorts of estate and trust matters. We know the “ins and outs” of the Texas Estates Code. We understand the interaction between estate and insurance matters and the Texas Family Code, and we can help you modify your existing plans or craft completely new ones to meet your needs and the needs of those whom you love.

At Romano & Sumner, we pride ourselves not only on our professionalism, but also upon our client service. We know that each situation is unique. We return phone calls within one business day. We keep our clients well informed as to the status of their case. 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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COPPA and Online Privacy for Children

Originally published by Peggy Keene.

The latest season of HBO’s hit comedy Silicon Valley highlighted the very real liabilities for companies that fail to comply with the Children’s Online Privacy […]

The post COPPA and Online Privacy for Children appeared first on Klemchuk LLP.

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Michael Jackson’s Estate Poised for Suit

Originally published by Gerry W. Beyer.

Both Lifetime and Netflix have soon-to-be-released movies with Michael Jackson as their centerpiece. While it may be unthinkable to release a cinematic depiction of the beloved pop star absent his unique music balancing the soundtrack, the networks would be better…

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Innocent Spouse Ability to Recover Policy Proceeds Following Arson

Originally published by Jeff Zane.

In Texas, unlike some states, courts assign a minor role to public policy when interpreting insurance policies. A good example is the treatment of an arsonist’s innocent spouse. As has been described earlier, the “arson defense” permits a carrier to avoid payment upon a showing that the policyholder intentionally created a loss.1 But what about…… Continue Reading

.

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Tuesday, May 23, 2017

LLC Member Withdrawal: How to Get out of Your Limited Liability Company

Originally published by Vethan Law.

how to withdraw from llc
If you are a member of a limited liability company and wish to leave the membership voluntarily, you cannot simply walk away.

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Homeowners Association Files Bad Faith Insurance Lawsuit

Originally published by Jeff Raizner.

Raizner Slania filed a lawsuit on behalf of a local homeowners association against Mid-Century Insurance Company after its hail damage claim was wrongfully denied.

April 2016 Bexar County Hailstorm

On April 12, 2016, a severe hailstorm swept through Bexar County causing significant damage to the roofs, interiors, and exteriors of condominiums contained in over 50 separate buildings managed by the policyholder homeowners association . Immediately upon discovering the damage, the homeowners association filed a hail damage insurance claim with Mid-Century to cover the cost of the repairs and other damages.

In response to the claim, Mid-Century assigned adjusters, consultants, and agents to the plaintiff’s file that were inadequate and improperly trained. Specifically, the claim was assigned to two adjusters, both of whom were not properly trained to handle this type of claim and failed to perform an adequate evaluation of the damage.

After a haphazard investigation of the property, the adjuster prepared an estimate of damages to the structure that grossly undervalued and ignored obvious damages to the property. Mid-Century relied solely on the adjusters’ investigation to determine what amounts, if any, to pay on the plaintiff’s claim. Mid-Century and the adjusters represented to the plaintiff that certain damages were not covered under the policy when in fact they were.

Mid-Century denied and grossly underpaid the plaintiff’s claim. In addition, Mid-Century continued to deny and delay timely payment of the damages it did accept. This caused the plaintiff to suffer significant economic impact, worry, distress, and continuing economic and physical damage.

Mid-Century Operated In Bad Faith

Our client cites numerous violations of the Texas Insurance Code, including failure to effectuate a prompt, fair, and equitable settlement of a claim, failure to implement reasonable standards for investigation of a claim, and violations of the Deceptive Trade Practices-Consumer Protection Act (DTPA).

Bad Faith Insurance Lawsuit Attorneys

Unfortunately for Texas policyholders, bad faith insurance practices are rampant. For policyholders whose claims have been wrongfully denied by their insurance company, the only way to seek full compensation is with the help of an experienced bad faith insurance lawsuit attorney. At Raizner Slania, our attorneys can help you get what you rightfully deserve under your policy. Contact us today to schedule a free consultation to discuss your case.

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Record on Appeal, Defamation, & Ancient Cauldrons: Opinions, May 23, 2017

Originally published by mkhtx.

The First District Court of Appeals released one family law opinion this morning and two published opinions that I just found interesting and wanted to share with you, even though they are not related to family law.

Allen v. Porter, No. 01-16-00823-CV, concerns retroactive child support, but is really a reminder to obtain a record when appealing. The mother’s sole issue on appeal was that the trial court erred in not awarding retroactive child support from the date of the child’s birth. But the mother did not produce a record on appeal which, the Court said, “makes it impossible for the appellate court to determine that the trial court abused its discretion in making the ruling.” The Court affirmed the trial court.

In Johnson v. Phillips, No. 01-15-00173-CV, Houston attorney Michael Phillips wrote a book (Monster in River Oaks) about his own client Dinesh Shah’s sordid infiltration and lengthy abuse of the Johnson family. The family sued Phillips (and his law firm and publisher) for defamation, alleging the book libeled them. Phillips’ motion for summary judgment argued the book constituted a fair report of the 2008 trial. The trial court agreed and granted the summary judgment and the Court of Appeals affirmed.

The published opinion in Hatzenbuehler v. Essig, No. 01-16-00515-CV, has easily the most interesting first paragraph of a special appearance case ever:

This appeal from a special appearance arises out of a dispute between German citizens concerning the provenance of a cauldron discovered in a Bavarian lake. Josef Hatzenbuehler sued Jens Essig, alleging that Essig and others falsely represented the cauldron to be of ancient Celtic origin. With Essig’s assistance, Josef purchased the cauldron at a Swiss bankruptcy sale. Josef alleged that he later discovered that the cauldron was likely created by the Nazis in the 1940’s, making it significantly less valuable.

When Hatzenbuehler sued Essig in Harris County, the trial court granted Essig’s special appearance. And the Court of Appeals affirmed.

 

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Texas Subsurface Trespass Law Clarified

Originally published by Charles Sartain.

Yellow KEEP OUT Barrier TapeCo-author Chance Decker

We know that in Texas the mineral owner has the right to explore for and produce the minerals. What does that leave for the surface owner? In Lightning Oil Company v. Anadarko E&P Onshore, LLC the Texas Supreme Court tells us he owns the right to possess the specific place or space where the minerals are located. Absent pooling or some other contractual arrangement, with that comes the right to grant (for a price) or deny an off-lease operator the right to drill through the mineral estate to reach minerals under an adjacent tract.

Facts

  • Anadarko entered into a lease with the State of Texas for the mineral estate underlying the Chaparral Wildlife Management Area in South Texas. The lease required Anadarko to drill from off-site locations when prudent and feasible.
  • Anadarko entered into a Surface Use and Subsurface Easement Agreement with the surface owner of the adjacent tract, Briscoe Ranch, which permitted Anadarko to place wells on the Briscoe Ranch to access the minerals under the Chaparral. To do that, Anadarko’s well-bore would pass through the Briscoe Ranch subsurface.
  • The mineral estate under the Briscoe Ranch was leased by Lightning, who was not a party to the Surface Use and Easement Agreement.
  • Lightning sued Anadarko for trespass and tortious interference, and sought to enjoin Anadarko from drilling. Lightning claimed that the Briscoe Ranch, as a mere surface owner, could not consent to drilling through Lightning’s mineral estate.

Lightning argued (without success)

  • The holder of the dominant mineral estate has the right to exclude others from passing through it; to hold otherwise would transform a mineral lease into a “mere license to hunt for minerals.”
  • Anadarko’s activities would interfere with Lightning’s ability to develop its minerals.
  • Anadarko’s well-bore would remove at least some minerals, and removal of even that small volume is an actionable trespass.

The court said

The court noted two basic principles:

  • The surface owner owns all non-mineral molecules, i.e., the mass of earth that undergirds the surface estate.
  • The mineral owner is only entitled to a “fair chance to recover the oil and gas in place or under” the surface estate.
  • The rights conveyed by a mineral lease do not include the right to possess the specific place or space where the minerals are located.

The result

  • Lightning, as mineral owner, has no right to exclude others from traversing through the subsurface. Anadarko will not commit trespass by doing so with the surface owner’s permission.
  • Lightning produced no evidence that Anadarko’s activities would interfere with Lightning’s development of its mineral estate.
  • Though Anadarko’s activities would necessarily remove some minerals, that small volume is not large enough to be actionable.

There’s always an exception

The court left open the possibility that a mineral owner could prevent pass-through drilling if it can show that such activity would either (i) unreasonably interfere with the mineral estate owner’s development of the estate or (ii) remove or destroy a sizeable quantum of minerals.

A musical interlude.

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Client Development Coaching: Why Some Potential Rainmakers are Overlooked

Originally published by Cordell Parvin.

You likely have potential rainmakers in your firm that you are overlooking. You might even have concluded these lawyers are not motivated to make rain.

I have learned from coaching lawyers that there is more than one way to be be motivated. I will show you by telling you the tale of two lawyers. For purposes of this discussion, I will call one of them Sandra and the other one Jill. I bet you know lawyers who are like each of them.

Sandra is a go getter. She is very upbeat and has high energy. She is obviously highly motivated and very focused on her goals. She is very positive and very competitive. She is creative and willing to take risks on client development, but sometimes she is not very strategic using her time. She sets stretch goals and achieves them. When she achieves a goal she is highly charged. If she finds anything she believes she will not do well, she simply does not try doing it.

Jill, is much different. While she is highly motivated, she is not as positive. She does well and succeeds because she does not want to look like she doesn’t know something. She likes to say that she fears that her clients may come to realize that she is not the expert that she appears to be. She is very focused and not easily distracted. She is very detail oriented. She values getting it right more than getting it done quickly. She struggles with being a perfectionist. When she achieves a goal instead of being charged up, she is actually relieved.

Winston Churchill said it well:

The pessimist sees difficulty in every opportunity. The optimist sees the opportunity in every difficulty.

Sandra is the optimist and Jill the pessimist. Some law firm leaders or marketing professionals may believe that Sandra will easily become a rainmaker and Jill will never become a rainmaker.

I am sharing this story simply to tell you that both can become successful rainmakers, but  you cannot coach and motivate them the same way. If you try and use the power of positive thinking with Jill, it will not motivate her.

So, how would you motivate Jill to become a rainmaker in your firm? If you want some ideas read: Getting Others to Embrace Risk by Heidi Grant Halvorson. If you want even more ideas, read her book.

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Objectively unreasonable removal

Originally published by David Coale.

A business named “Renegade Swish” sued Wright in Texas state court for breach of an employment agreement. Wright counterclaimed for violations of the FLSA. For reasons not explained in the opinion, Swish then nonsuited its contract claims, moved to realign the parties so it would be the new defendant, and removed the case to federal court based on federal jurisdiction. The Fifth Circuit held that Swish lacked an objectively reasonable basis for removal, citing both precedent (primarily, Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002)), and the text of 28 U.S.C. § 1441(a), which refers to removal by “defendants.” The Court did not credit Swish’s reliance on the pending motion to realign, declining to “invite federal courts to dream of counterfactuals when actual litigation has defined the parties’ controversy,” and rejected the cases cited by Swish as not presenting a meaningful conflict: “As compared to [a controlling case]m where the disagreement among the courts was ‘hotly contested,’ any disagreement here is tepid and lopsided.” Renegade Swish v. Wright, No. 16-11152 (May 22, 2017).

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Western District Grants Summary Judgment

Originally published by Thomas J. Crane.

 

In a recent decision, the Western District of Texas granted the employer’s motion for summary judgment in a case alleging discrimination based on gender (male), age (age 55), race (Hispanic) and disability (morbid obesity). In his EEOC complaint, the employee also alleged national origin. As I have mentioned here before, it is very unwise to allege more than one basis of discrimination. It is not impossible that persons would discriminate based on multiple reasons, but it does look like the employee is throwing everything out there that might work. Lawsuits, especially in federal court, need to be based on more than “maybe” reasons. In Beltran v. Union Pacific RR. Co., No. 15-CV-1019 (W.D. Tex. 2017), the plaintiff argued age, national origin (Hispanic, and disability when it responded to the employer’s motion for summary judgment. He argued he had reported racial slurs at work in the past, but provided no details. He pointed out the obvious fact that he was replaced by someone in his 20’s.

But, most of his efforts were devoted to arguing that his disability played a role in his termination. And, that focus largely attacked the drug test to which Mr. Beltran was subjected. The employer argued that Mr. Beltran was  fired because he failed a drug test. The plaintiff responded that prior to his termination, he had passed some 55 drug tests over the prior 4 years. The plaintiff pointed to testimony from a doctor saying that the prescription medication he was taking likely caused a “false positive” on his test. During the lawsuit, the plaintiff moved that the judge allow a re-test of the same sample. The judge ordered the re-test to proceed. The parties knew the re-test could result in the same result, which it did.

Regarding summary judgment, the court noted that it does not matter whether the drug test was valid or not. Even if the third re-test had produced a different result, that would still not create a fact so as to avoid summary judgment. Citing Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991), the court noted that the existence of competing evidence about the objective truth of a fact supporting the employer’s preferred reason does not in itself make it reasonable to believe the employer was not truly motivated by its proffered reason. The plaintiff presented evidence that the doctor certifying the initial drug test had a felony conviction did not create a fact issue either. The court was saying that just because the drug test had issues does not indicate the employer did not sincerely believe the results were genuine. Something more would be needed to show that Union Pacific had doubts about the drug test.

The employee also argued that the employer had shifted its explanation over time. But, said the court, the shift was not perceptible to it. So, the judge granted the motion for summary judgment. See the decision here.

And, we are reminded that it is never wise to allege too many bases for discrimination.

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What Is a Brady Violation?

Originally published by John Floyd.

The landmark decision Brady v. Maryland was handed down by the U.S. Supreme Court in 1963. The decision held that, under the Fifth and Fourteenth amendments, a prosecutor has a duty to disclose favorable evidence to defendants upon request, if the evidence is “material” to either guilt or punishment. Failure to comply with this duty has become commonly known as a “Brady violation.”

 

What Is a Brady Violation?

 

The Supreme Court in 2006 succinctly answered this question in Youngblood v. West Virginia:

 

“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused. This Court has held that the Brady duty to disclose extends to impeachment evidence as well as exculpatory evidence, and Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigator and not to the prosecutor.’ ‘Such evidence is material if “there is a reasonable possibility that had the evidence been disclosed to the defense, the result of the proceeding would have been different”,’ although a ‘showing of materiality does not require demonstration by a preponderance of the evidence that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.’ The reversal of a conviction is required upon a ‘showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’”

 

Over the next 50 years, the Supreme Court revisited Brady in twelve major decisions including Youngblood. Those cases are listed below:

 

  • Giles v. Maryland (U.S. 1967): After having been convicted of rape in a Maryland state court, defendants brought a post-conviction proceeding alleging that the prosecution denied them due process of law by suppressing evidence favorable to them and by the knowing use of perjured testimony against them. The presiding judge in the post-conviction proceeding ordered a new trial on the ground that the petitioners’ evidence did not sustain the allegation of knowing use of perjured testimony by the prosecution, but did establish the suppression of evidence concerning the credibility of witnesses and the issue of consent, which constituted a denial of due process. This judgment was reversed by the Court of Appeals of Maryland on the ground that the evidence allegedly suppressed would not materially affect the determination of the petitioners’ guilt or the punishment to be imposed, and that the prosecution’s failure to disclose it was not so prejudicial as to warrant the granting of a new trial on the basis of the denial of due process. Supreme Court vacated the judgment of the Maryland Court of Appeals and remanded the case for further proceedings, even though the court did not agree on an opinion.

 

  • Miller v. Pate (U.S. 1967): Court held that an Illinois death row inmate was entitled to habeas corpus relief where prosecutor knowing misrepresented paint-stained shorts as blood-stained and for failing to disclose the nature of the stains.

 

  • Giglio United States (U.S. 1972): Withheld promise of immunity to con-conspirator upon whose testimony the Government’s case depended required reversal of conviction because “evidence of any understanding or agreement as to a future prosecution would be relevant to [co-conspirator’s] credibility and the jury was entitled to know of it.”

 

  • United States v. Agurs (U.S. 1976): Prosecutor has a due process duty to disclose evidence about a victim’s criminal record, except (1) when the victim’s record was not requested by defense counsel and no inference of perjury by witness created; (2) if the trial court remains convinced of defendant’s guilt after the withheld evidence is reviewed in light of entire trial record; and (3) the trial judge’s firsthand appraisal of the record is thorough and reasonable.

 

  • United States v. Bagley (U.S. 1985): Refined Brady by holding that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request. The Court said, “favorable evidence” is “material” if there is a reasonable probability that disclosure of the evidence would have produced a different outcome. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.”

 

  • Wood v. Bartholomew (U.S. 1995): The failure to disclose inadmissible information does not constitute a Brady violation where there is only “mere speculation” about whether its disclosure would have led to admissible evidence.

 

  • Kyles v. Whitley (U.S. 1995): Accused entitled to a new trial because of the prosecution’s failure to comply with the due process obligation to disclose material evidence favorable to the accused concerning his possible innocence of the crime because the net effect of the withheld evidence raised a reasonable probability that the evidence’s disclosure to competent counsel would have produced a different result. Even if the prosecutor was not personally aware of the evidence, the State is not relieved of its duty to disclose because “the State” includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement.

 

  • Strickler v. Greene (U.S. 1999): Held that a Brady violation occurs when: (1) evidence is favorable to exculpation or impeachment; (2) the evidence is either willfully or inadvertently withheld by the prosecution; and (3) the withholding of the evidence is prejudicial to the defendant.

 

  • United States v. Ruiz (U.S. 2002): Brady does not require disclosure concerning “impeachment information relating to informants or other witnesses” before entering into a binding plea agreement with the defendant.

 

  • Banks v. Dretke (U.S. 2004): Brady violation occurred, and new sentencing hearing ordered to Texas death row inmate, where prosecution suppressed evidence of the informant status of a key state witness whose testimony was key during the punishment phase of the death penalty trial to the prosecution’s claim of future dangerousness.

 

  • Cone v. Bell (U.S. 2009): Observed, without specifically holding, that a prosecutor’s pre-trial obligations to disclose favorable or impeaching evidence, either to guilt or punishment, “may arise more broadly under a prosecutor’s ethical or statutory obligations” than required by the Brady/Bagley post-conviction “materiality” standard of review. The court distinguished the post-conviction setting where the reviewing court must make a constitutional determination of whether the withheld evidence is material to the prosecutor’s pre-trial broader ethical obligations to disclose, which requires a “prudent prosecutor [to] err on the side of transparency, resolving doubtful questions in favor of disclosure.”

 

American Bar Association Weighs into Brady

 

The American Bar Association has instructed that a Brady violation has three elements: 1) the information must be favorable to the accused; 2) the information must have been suppressed by the government either willfully or inadvertently; and 3) prejudice must have ensued sufficient to undermine confidence in the verdict.

 

Favorable, Not Necessarily Admissible

 

The first element has three components the courts must resolve. First, whether the information was “exculpatory” or “impeachment.” The ABA says there is “no meaningful distinction” between the two. Second, whether the alleged violation involves “Brady material” or “Brady information.” Brady material generally refers to documents and tangible things while Brady information could mean statements by a witness that is not recorded. Because prosecutors sometimes seek to avoid Brady obligations by not memorializing favorable information in writing, the ABA instructs that judges, lawyers, and law enforcement should use the term “Brady information” instead of “Brady material.” C) “Favorable evidence” is not confined to admissible evidence. Brady information can be favorable if it could reasonably lead to admissible evidence.

 

Evidence Not Disclosed

 

The second element focuses on the term “suppression”—a term the ABA says is “broad.” The ABA defines the term like this: “If the government had the favorable evidence and did not provide it, it has been ‘suppressed.’ It does not matter why the information was not disclosed.”

 

Has Confidence in Outcome Been Undermined?

 

The third element—prejudice undermining the verdict—is the most difficult element to satisfy. The first component of this element, is that “a defendant need not have requested the information to argue that its suppression caused prejudice,” says the ABA. The second component is probably the most significant—that the materiality test does not equate to either a sufficiency of evidence” or a “harmless error” test. The court should not look beyond the suppressed evidence to find there was other sufficient evidence to convict, nor should the court indulge the notion that it was “more likely than not” that the verdict would not have been any different even if the Brady information had been disclosed. The only question the court should decide, as the ABA says, is this: Has “confidence in the outcome” of the trial been undermined? That question can only be answered through a “detailed analysis of the factual record.”

 

Preservation of Evidence

 

As a caveat here, it should be noted that the Supreme Court in 1984 with California v. Trombetta held that the government has a limited duty to preserve evidence. Due process requires preservation of evidence “that might be expected to play a significant role in the suspect’s defense.” There are two components to this limited duty to preserve: A) the evidence must “possess an exculpatory value that was apparent before the evidence was destroyed;” and B) the evidence must “be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

 

Four years later the Supreme Court in Youngblood v. Arizona further clarified the prosecution’s limited duty to preserve by saying that in cases where the evidence is only “potentially” exculpatory, then there is no due process violation “unless a defendant can show bad faith on the part of the police …”

 

Defense Must Request Discovery/Brady Immediately

 

That’s why criminal defense attorneys should immediately after representation begins start the discovery process. This is relatively simple in federal courts because in addition to a constitutional duty to disclose Brady information to the defendant, the government is required by Rules 12.1, 16, and 26.2 of the Federal Rules of Criminal Procedure to disclose other information upon request by the defendant.

 

Federal Criminal Discovery

 

Rule 16 in pretrial discovery requires the government to disclose the following six types of information:

 

  1. The defendant’s oral statements, if any;
  2. The defendant’s written or recorded statements, if any;
  3. The defendant’s prior criminal record;
  4. Certain documents and objects;
  5. Certain examination and test reports; and
  6. The content and basis of any expert testimony the government intends to offer during its case-in-chief.

 

Rule 16 permits inspection and copying of certain documents and objects if these items are 1) material to the defendant’s case, 2) the government intends to use the items in its case-in-chief, or 3) the items are owned by or obtained from the defendant.

 

Jencks Act

 

Rule 26.2 deals with the production of witness statements and Jencks Act material. This rule allows that after a government witness has testified on direct examination, the defendant may discover that witness’s pretrial statements under two circumstances: 1) the statements are in the government’s possession, and 2) the statements relate to the subject matter of the witness’s trial testimony.

 

With respect to Jencks Act statements, the court must determine either the existence or non-existence of such statements only after the defendant has made a timely request that is sufficiently precise in identifying the statements being sought. Rule 26.2 does not entertain requests for Jencks Act statements that are overly broad or that are made before a witness testifies, although the trial court does have the discretion to order production of such statements before the witness testifies.

 

Discovery is a key pretrial process. Criminal defense attorneys must know, and understand, both the constitutional and statutory duties of the government to disclose. It is best to remember this advice from the National Association of Criminal Defense Lawyers concerning discovery in criminal cases:

 

“… in criminal cases, when personal liberty and sometimes life itself are at stake, citizens are left to chance regarding the jurisdiction in which they are charged and whether they are allowed access to the evidence in the possession of the prosecution before going to trial. And although there remains the constitutional protection afforded by Brady v. Maryland and its progeny, one need only review reports from organizations such as the Innocence Project and the Northern California Innocence Project to understand that Brady violations remain a systemic problem within the American criminal justice system. A study by the North California Innocence Project of Santa Clara University School of law, found Brady violations to be ‘among the most pervasive forms of prosecutorial misconduct.’”

 

The take away from this is simple: never take for granted that the prosecutor you are dealing with is playing by the rules.

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