Thursday, August 17, 2017

Staying Well In Law School

Originally published by myadmin.

The fall semester of law school is almost here!  It will be a stressful time for both incoming students and those returning who may be dealing with ongoing mental-health/substance-use issues as well as those who may not have these issues but want to maintain a healthy mental health outlook.

To get some perspective on these issues, I reached out to David Jaffe. David is the Associate Dean of Students at the American University Washington College of Law. David is also the co-author of the seminal study on law student mental health.

If a student comes to you and says, “I think I have a substance-use issue and I am afraid if I seek help I will have to drop out and will never make it back,” what do you tell him/her?

Given the incredible fortitude it takes for a student to take this step, and noting per our national survey that there is a far greater number of law students struggling with a substance use or mental health issue than those expressing a willingness to seek help, the first thing I do is acknowledge the student’s bravery for having come forward, and let him know that he is in a safe and confidential environment.

Students are first and foremost concerned that they may get kicked out of school or not be admitted to the bar, and we have to disarm them of these fears.  In almost every instance we are assessing the depth of the situation while looking for the most helpful way forward.  As such, often I follow up with a specific question: “Do you want to be a lawyer?”, which also can be interpreted as “is law school right for you right now.”  The immediacy (or delay) in the response drives the remainder of the conversation.

A student who “but-for” the issue facing him has his heart set on becoming a lawyer will answer almost immediately in the affirmative, while a student who hesitates typically is dealing with an unrelated issue likely exacerbating the immediate concern (i.e., the student applied to law school as a default option, bent to the will of his parents in applying to law school). For the latter student, a substantive conversation will yield if continuing with law school at the moment is in his best interest.

Assuming an affirmative response (“I want to be here, but this issue is getting in the way”), and the consequences of the use has not gotten too profound, my goal is to find help for the student without having to withdraw from school.  In some instances, even a 28-day inpatient stay can be employed without a withdrawal, though this involves careful coordination with and support of relevant faculty; a committed dean of students however will have good relationships here and should be able to facilitate a temporary absence.  In the event that a particular course is heavy on participation and too much class will be missed, the dean of students should be able to arrange for a withdrawal from the course without a complete withdrawal from the semester (in cases where the situation arises late in the semester, we might even make plans for the student to return to the course when it is next taught).  Even where/especially if the student needs to (or opts to) withdraw from one or more semesters, maintaining regular contact signals that someone cares and that avenues for return to law school have not been foreclosed: When working with a student who withdrew partway through a semester and then extended his leave by another, we met every couple of months off-campus just to talk, during which time I was able to reassure him that we were prepared to receive him back (and provide ongoing assistance, if necessary) when he was ready.  The student subsequently returned and graduated, with solid grades, and with employment.

In sum, a student who want to earn a law degree should not be prevented from doing so due to a substance use or mental health issue. If the student is committed to assistance and recovery, so too should be the law school.

What are the top three to five things you tell either an incoming or even a more advanced student who is looking to find a more solid recovery support structure in a high-stress environment?

Find someone to trust.  Left alone, law students will attempt to muddle through while challenged by their mental health and/or substance use issues and will ultimately find themselves in worse to critical shape because they were afraid to seek help.  The stigma and fear associated with getting assistance is real. What strikes me about so many of the conversations I have with students near or in crisis is how similar they are: “Every classmate I see is fine so I am the only one with a problem”; “I have accomplished everything I have set out to do so far in my life so I should be able to handle this on my own”; “No one — from my family to my friends — will understand or believe this is affecting me in this way.” The relief when I share that the student is by no means the first to have come to me with an issue is palpable, and almost always opens the door for a freer conversation about next steps.

A law school seeking to do right by its students should have at least a part-time counselor onsite who can provide ongoing assistance, as well as ample resources for particular situations affecting a student where specialized counseling may be necessary (such as for matters involving sexual assault, PTSD, etc.).  If budgetary challenges exist, access to the university’s resources should stand as a fill-in.  A school in this situation might also check if the state’s Lawyer Assistance Program (LAP) can provide hours at the school.

Establishment of a student organization dedicated to students in recovery is ideal but can be a challenge at the law school level, as one or more students have to be comfortable with their own recovery before placing themselves out to others. At the Washington College of Law, we have explored this development, establishment of Friends of Bill meetings, and even use of a nearby church for support.  We also have tinkered with Thursday night gatherings that do not challenge the traditional “bar reviews” but that are intended to provide comfortable space for non-drinkers.  In each of these instances, the challenge is developing a circle of classmates, ideally to become friends, who can trust one another over the long haul that defines the law school process.

We hear so much about “wellness” as a way of dealing with stress. Very few would claim law school is not stressful. What types of things is American doing to help law students deal with stress and move away from a “drinking culture” that may encourage students to turn to alcohol as a way of dealing with their issues? What more can we do as a profession to help graduate lawyers with a balanced outlook on dealing with the pressures of legal practice?

In addition to the foregoing, we constantly strive for “wellness” activities that have an emphasis on health with the absence of alcohol.  For example, we host weekly mindfulness sessions and yoga sessions for free or at a minimum cost.  We work with the student government to support movie nights, and we continue to host semi-annual puppy days for our students to relax and interact, reminding them of the importance of capturing the moment for other times when they need it.  Finally, we are out and about as often as we can, checking in with students in the hallways and common areas to remind them that a friendly face is around the corner.

We also encourage to faculty to take at least two steps in their approach to students on these issues: First, we ask them to keep class attendance and share with us repeat absences, which is in almost every instance a sign of a student in or nearing crisis.  Second, we ask our faculty to take intentional moments from their class at relevant points of the year to “be real” with their students: let them know that law school is a challenge in different ways for everyone gathered; remind them that they had a life prior to law school and need to continue to nourish the positive aspects that they brought forward; and encourage them to seek assistance before a smaller problem becomes a large one.  As much as deans of students want to be on the front lines of proactive outreach to students, we have to rely on our faculty who see these students on a regular basis.

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Why Is Child Support Taking Money From My Personal Injury Settlement?

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

So your attorney recently called and told you that after the negotiating process, the insurance company is making a settlement offer that may bring your matter to a resolution. You are happy! Finally, the stressful process of getting into a motor vehicle collision and the dealing with the injuries it caused is coming to an end. Then your attorney tells you that the insurance company also put him or her on notice of a child support lien. What does that mean? What does child support have to do with your personal injury? How much are they going to take? Can you dispute it?

The Rule

Unfortunately, though one would assume every child support obligor has intentions of paying their child support obligations, for one reason or another, an obligor can get behind on their responsibilities. When this happens, the State of Texas has strict rules on the status of such a debt. Generally speaking, if a obligor recovers compensation from a personal injury settlement, but has outstanding child support arrears, the State of Texas Attorney General’s office child support intercept division will attach a lien to the claim. This means that the obligor must satisfy their child support debt before the Texas Attorney General’s office will lift the lien and allow payment to the obligor.

Do I have to pay ALL my back child support debt before I can receive compensation for my injury?

Generally speaking, the answer is yes. Your attorney can always reach out to the Child Support intercept division of the Texas Attorney General’s office and ask that an amount be taken by child support that is less than the total amount outstanding. In some circumstances, child support is willing to work with the obligor. For your specific circumstance, you should ask your attorney to reach out to the Texas Attorney General’s office.

What about my medical bills? What about the fee for my attorney?

Good news! From the settlement offer, your attorney’s fees are deducted, as well as any medical bills you accrued as a result of the injury, before your child support lien is addressed, to ensure you are not creating new debts by attempting to pay existing ones.

It is important to always know your legal rights and be properly apprised of them in every situation. If you have ever been involved in a motor vehicle collision, you may be confused about the process and what to do next. The attorneys at Herrman & Herrman PLLC are always on standby to help! Contact Herrman & Herrman PLLC, located at 1201 Third St., Corpus Christi, Texas 78404 or 801 E. Fern Ave., McAllen, Texas 78501. If you have any questions about a potential claim or would like to sit down for a consultation and discuss your issue, please contact us immediately. At Herrman & Herrman PLLC, we always strive to put our clients, first!

*This blog is for informational purposes only and is not intended to, and should not be construed as legal advice.

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Targeted Differentiators: One Way to Stand Out in the Crowd

Originally published by Cordell Parvin.

Greetings from New York City. I’m here today to sit in on an all day workshop titled: FIND THE STORY BENEATH THE SURFACE. New York Editor. Donald Maass, is the presenter.  I heard him speak in Dallas a couple of years ago and I was so impressed that I bought his books, and traveled to New York to hear him speak today.

I heard him speak in Dallas a couple of years ago and I was so impressed that I bought his books, and traveled to New York to hear him speak today. He definitely stands out in the crowd of editors and speakers at writers conferences.

With that in mind, I’m writing a series of posts on standing out from the crowd.

As I was thinking about this post, a lawyer I coached sent me a message on LinkedIn about Verrill Dana lawyers whose niche practice is representing breweries. They write a blog titled: Lawyers on Tap, which as best I can de

Seth Godin recently posted a blog titled: Be the Different One. It’s short, take a moment to read it.

I have shared parts of this story before, but it bears repeating. While I was on active duty in the USAF, I represented the Air Force in government contract litigation against some of the top defense contractors and top government contract lawyers.

In 1976, as I was planning the next phase of my life and career, I received offers from large defense contractors to go in-house and from DC law firms with government contracts practices. I chose something different and Nancy and I came to Roanoke, Virginia where there wasn’t a government contractor for miles and miles.

I became a commercial litigator, like at least a dozen or more Roanoke lawyers. Then, I decided to focus on construction law, representing contractors. (I believe I was the first construction lawyer in Roanoke. Now there are several.)


The whole idea of being the different one was made clear to me when I was asked to be on a Public Contracts law panel at the 1981 ABA Annual Meeting. During a conference call, each panel member was asked to describe their topic. When I responded I would be talking about highway construction contract disputes, the panel chair said:

Cordell, no one cares about that topic.

I can’t remember exactly how I felt when he put down my topic, but I do remember that after my presentation, I knew I was on to a great practice, because he had probably been right-the lawyers attending that meeting probably did not care about my topic.

I was indeed the different one, and it paid off over the next 30 years of my career.

What’s a different practice now?

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5 Building Blocks of a Strong Law Firm Culture

Originally published by Darin Klemchuk.

Law Firm Culture A culture is unique to each law firm, as it stems from the people who work there and the clients. A strong, […]

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If You Trademark It, Then You Better Put a Ring on It

Originally published by Androvett Legal Media Blog.

The iconic jewelry store Tiffany & Co. is a model for trademark enforcement, aggressively and successfully policing its brand in the courts. Last year, Tiffany filed a lawsuit against Costco Wholesale Corp., claiming that the warehouse giant sold more than $6 million of ersatz Tiffany engagement rings and improperly used the jeweler’s name on at least 200,000 in-store signs. This week Tiffany prevailed by winning a $19.4 million judgment in federal court.

Dallas lawyer Chris Schwegmann, a partner at Lynn Pinker Cox & Hurst who tries intellectual property cases, has been following the Tiffany v. Costco dispute.

“This type of litigation not only discourages counterfeiters, but also ensures that Tiffany’s luxury brand doesn’t get diluted over time. I find it interesting that Costco argued that ‘Tiffany’ represents a generic term used to describe a ring setting, and not just a brand name. That’s a tough case to make against a company that aggressively defends its brand.

“Based on the sizable judgment, it is unlikely that other companies in the industry will try to make the same arguments against Tiffany & Co. That’s the benefit of aggressive trademark enforcement.”

For more information on the case or to set up an interview with Mr. Schwegmann, contact Holly Scimeca at 800-559-4534 or

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Work Balance: Protecting Lawyers from the Growing Drug Epidemic

Originally published by Bob Kraft.

At a large law firm, it is not uncommon for a lawyer to be away from the office for several days. As much as they are in the office, courtroom, and with clients, time off can quickly become just as long. Usually, an unplanned absence is due to exhaustion. Many lawyers seek medical treatment when they are stressed and exhausted, but sometimes a long absence is due to drug addiction. Self-medication is becoming more and more widespread. Especially for those in high-stress positions like lawyers often are. Alcohol abuse, as well as prescription medication have truly become an epidemic in some law firms.

Handling a Demanding Job

The legal field is very demanding, and a lawyer’s job can be overwhelming. Many lawyers deal with drug addiction issues. Nearly 20 percent of lawyers abuse alcohol or drugs. The rate is much lower in the general population, but there are several reasons why lawyers have a high drug addiction rate.

Pressure and Tight Deadlines

Attorneys have tight deadlines, and cannot afford to make errors. A sick day cannot be used as an excuse for missing an important deadline. For some attorneys, the pressure can be too much to handle. Many also work long hours with some working nearly 80 hours per week. After a long day at a law firm, these professionals often attend networking functions after business hours. Long hours can take a toll on an anyone’s mental state.

A Competitive Job Market

The job market is very competitive, and attorneys always need clients. In a competitive job market, new graduates will take low paying jobs and a low salary can lower self-esteem.

Stress and Mental Health Disorders

Some professionals blame mood swings on stress. Attorneys can have undiagnosed mental health disorders and things like anxiety and depression can affect overall well-being. If mental health issues are untreated, many try to relieve the symptoms with drugs and self-medication.

Reducing Stress and a Lighter Workload

Fortunately, there are several things attorneys can do to manage stress. A stressed attorney can seek support from counseling and peer support groups. A lighter workload will also reduce stress. Many firms are now in support of these kinds of therapy and some are even implementing them into work. Law offices often create formal policies that focus on team interventions. Attorneys can discuss their problems in a group setting and with peers who deal the same work, talking about these issues can be much easier this way.

Specialized Treatment Services

An addiction recovery facility can offer specialized treatment services when things get out of the hand. The trick is getting law offices to recognize and help lawyers who might be at risk. Therapists understand the demands of the legal field, and they can give confidential assistance. According to a Casa Nuevo Vida Sober Living facility, having patients stay for a longer amount of time is often more beneficial to a lasting recovery.

Drug dependence is treatable. A healthcare professional can develop a tailored treatment plan for anyone self-medicating. A good treatment plan will take into account the attorney’s medical history and past substance abuse problems.

Author Information: Eileen O’Shanassy is a freelance writer and blogger based out of Flagstaff, AZ. She writes on a variety of topics and loves to research and write. She enjoys baking, biking, and kayaking. Check her out on Twitter at @eileenoshanassy.

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Texas Supreme Court Jurisdiction, Part II: The Times They Are a-Changin’ (Or Are They?)

Originally published by Maitreya Tomlinson.

My previous blog post briefly outlined the Texas Supreme Court’s jurisdiction and the soon-to-be-effective legislative changes. As the title of these posts suggests, the next step is to examine the potential effects, if any, that these changes will have on courts, practitioners, and clients. Admittedly, by doing so, I tread into uncharted territory armed solely with surmise and experience.

Expanded Jurisdiction?

It’s difficult to predict the effect that the likely expanded jurisdiction will have on the Texas Supreme Court. Overall, HB 1761 appears to have expanded the Supreme Court’s jurisdiction over all appealable orders and judgments. HB 1761 confers the Supreme Court with broader jurisdiction over interlocutory orders. (Note: the changes only apply to interlocutory orders rendered on or after September 1, 2017.) As a result, the Supreme Court should be able to review more intermediate appellate-court and trial-court decisions.

Or Narrowed?

But in some ways, jurisdiction may have narrowed. HB 1761 traded more concrete, explicit bases for appealing final orders and judgments for a more subjective one: importance to the state’s jurisprudence. For example, the previous standards allowed for explicit bases of appeal, like matters in which the Railroad Commission is a party, regardless of their importance to the state’s jurisprudence. The Supreme Court may soon decide that some cases involving the Commission are not important to the state’s jurisprudence. However, a quick review of the previous bases, like validity of statutes, suggests that many would meet the new standard. In addition, the bar is currently very low when it comes to what constitutes conflict jurisdiction. For conflict jurisdiction, there must only be an inconsistency that should be clarified to remove uncertainty in the law and unfairness to litigants. The Supreme Court may find that certain inconsistencies between courts of appeals’ decisions do not meet the jurisprudential-importance standard. One thing is relatively certain: the changes will likely increase the Supreme Court’s workload

The Supreme Court Decides

The other relative certainty is that the Supreme Court controls its own destiny when it comes to its jurisdiction and its future workload. At least initially, litigants will likely file more petitions for review to test the new jurisdictional standards. The expanded jurisdiction now allows the Supreme Court to review more interlocutory appeals, which should generate more petitions. Although tougher to predict, because a similar importance-to-the-state’s-jurisprudence standard was already part of a catchall basis when reviewing final orders or judgments, the new jurisdictional standards will likely have little effect on appeals concerning final orders or judgments. The new standards also may attract more amicus briefs as amici try to establish that reoccurring issues affecting them are sufficiently important. The Supreme Court, however, can mitigate any increase by exercising its discretionary powers in the petition phase. It can also narrow or expand what constitutes presenting a question of law that is important to the state’s jurisprudence. For example, the Supreme Court may hold it lacks jurisdiction over fewer no-evidence questions. That being said, there is a risk that an increased workload (even at the petition stage) will, at least at first, bog the Supreme Court down and force it to adapt.

What Effect on Courts, Practitioners, and Clients?

Like the Supreme Court, practitioners and their clients will be affected by and will have to adapt to the legislative changes. The expanded jurisdiction should, at least initially, provide attorneys with more legal work. It will also provide clients with more opportunities to appeal unfavorable rulings involving appealable interlocutory orders. On the other hand, guaranteed bases of jurisdiction have evaporated. Practitioners and clients will, therefore, face more uncertainty regarding jurisdiction. Because Texas Rule of Appellate Procedure 53.2(e) prohibits argument in a petition’s “statement of jurisdiction,” practitioners and clients will also have to dedicate more of their petitions’ limited word count arguing that their questions are important to the state’s jurisprudence.

The Supreme Court’s expanded jurisdiction over appealable interlocutory orders might also lengthen the time for litigating these matters and increase client’s costs. Come September, appeals that once ended in intermediate appellate courts will now potentially make their way through the more time-consuming petition-for-review and briefing-on-merits processes. While beneficial if an appealing party wins in the Supreme Court, these appeals will increase all the litigants’ costs. More appeals might also increase the time in which the Supreme Court, which has been very efficient lately, decides matters.

The legislative changes should also affect lower courts. Although not entirely certain, the legislative changes should allow the Texas Supreme Court to review more appealable orders. This could lead to more matters lingering in the trial courts while certain issues make their way through the Supreme Court. And, for better or for worse, the trial courts will experience another level of appellate scrutiny.

In the third and final installment of this series, we’ll take a closer look at the jurisprudential-importance standard.

Image courtesy of Flickr by Jim Linwood.

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Business records of a marital household – exception to hearsay

Originally published by Michelle O'Neil.

In family law cases, issues often arise regarding the admissibility of records that are maintained by a spouse or the household, like bank statements or children’s school records. Hearsay rules might seem to prevent admissibility of these documents unless they come directly from the bank or school. But that’s not the case.

Rule 806(6) permits records created by a third party person or entity to become the business records of another entity if the sponsoring witness has knowledge of the events recorded in the third party documents. The Texas Supreme Court reaffirmed this notion in the Duncan case, where the invoices of subcontractors became an integral part of the general contractor’s records showing the work, progress, and costs of the construction. Duncan Development Inc. v. Haney, 634 S.W.2d 811, 813-14 (Tex. 1982).

And, the personal records of a family can constitute business records. “…[P]rivate records, if kept regularly and if incidental to some personal business pursuit, are competent evidence.  Sabatino v. Curtiss National Bank, 415 F.2d 632 (5th Cir. 1969, pet. denied). There, check records, even if kept by an individual, clearly meets the test of trustworthiness and is routinely entered and checked record of fact, used to compute funds remaining in one’s account, which the maker would have no motive to falsify. Id. The definition of “business” under the evidence code is broader than the ordinary use of the term. “’Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.” Tex. R. Evidence 803(6).

The 1st District Court of Appeals in Houston provides a three prong methodology for determining whether a third party’s records may become part of another entity’s records as an exception to the hearsay rule. Those three tests are:

  1. The records of the third party have been incorporated and kept in the regular course of the testifying witness’ business;
  2. That business reasonably relies upon the accuracy of the third party’s documents; and,
  3. Circumstances exist indicating the trustworthiness of the third party documents.

Bell v. State, 176 S.W.3d 90 (Tex. App. – Houston [1st Dist.] 2004, pet. ref’d.). The following courts have upheld the Bell test:

  • Houston 1st Court: Simien v. Unifund CCR Partners, 321 S.W.3d 235 (Tex. App. – Houston [1st Dist.] 2010, no pet.);
  • Austin: Ruper v. CitiMortgage, Inc., No. 03-11-00887-CV (Tex. App. – Austin 2013, pet denied);
  • Dallas: Nat’l Health Resources Corp. TBF Fin., 429 S.W.3d 125 (Tex. App. – Dallas 2014, no pet)
  • Houston 14th Court: Ainsworth v. CACH LLC, No. 14-11-00502-CV (Tex. App. – Houston [14th Dist.] 2012, pet denied);

The Dallas Court has also since affirmed this concept of household business records. The case of Castillon v. Morgan held that the Bell exception to the hearsay rule for business records of an entity applies to a marital household or to an individual party as much as it applies to a business. Castillon v. Morgan, No. 2015-13-00872-CV (Tex. App. – Dallas 2015, no pet.).

So, all of this together, should mean that in family court, if a spouse keeps records of activities like bank statements, credit card statements, school records, and the like, those should be admissible as an exception to hearsay as a business record of the household or spouse.


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State anti-SLAPP laws; the elephant remains in the Erie room

Originally published by David Coale.

In a return trip to the Fifth Circuit, the defamation case of Block v. Tanenhaus again sidestepped the question of whether state anti-SLAPP laws apply in federal courrt, allowing that elephant to remain in the Erie room for awhile longer. Here, assuming that the Lousiana state law applied, the panel reversed and remanded the dismissal of a professor’s claim that the New York Times misquoted him. Jess Krochtengel summarizes the underlying Erie question and its implications in a recent Law360 article. No. 16-30966 (Aug. 15, 2017).

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Why Some Rideshare Drivers Are Pushing Their Limits

Originally published by Terry Bryant.

Commercial vehicle drivers adhere to “Hours of Service” laws that dictate how many hours they can legally drive in a day. These laws were enacted to make sure that drivers aren’t fatigued when behind the wheel. They are important because driving while fatigued can make a driver more prone to error; some studies suggest that drowsy driving is comparable to drunk driving when it comes to impairing driver performance.

With the emergence of the ridesharing services Uber and Lyft, both of which operate in Houston, the accepted norms and standards that govern conventional transportation workers do not apply to a growing subset of “professional” drivers. Uber and Lyft drivers aren’t vetted or trained like their CMV (Commercial Motor Vehicle) driver counterparts that have a special type of driver’s license. They are also not subject to the same laws. As ridesharing apps increase in popularity and more people look to driving to supplement their income, a lack of standards could prove to be dangerous for everyone on our roads.

The Wild West of Ridesharing Oversight

Uber doesn’t place a limit on how many hours a driver can work. Making matters worse, there are periods when fares spike, giving drivers incentives to keep driving well past a point that they would otherwise take a break. USA Today reported a story about a driver who drove 20 hours straight because his hourly rate inexplicably jumped from $8 to $20 and he felt compelled to take advantage of it.

The USA Today’s story might be more common than people would like to believe. For drivers who rely exclusively on income from ridesharing services, a 16-hour shift during peak fares might be the only way to pay the bills. These grueling shifts force drivers to rely heavily on caffeine and push their bodies well beyond their limits.

Uber’s rival, Lyft, conversely, does put a limit on how many consecutive hours a worker can drive. After 14 hours, the app shuts down and a driver can’t begin working again until six hours of time off. However, even with that limit, Lyft drivers are allowed four more hours on the road per day than passenger-carrying commercial vehicle drivers. Federal law says that no passenger-carrying commercial vehicle driver can drive for more than 10 hours a day, but rideshare companies don’t have to abide by those same laws.

A Lure to Rideshare, Despite the Risks

People who use rideshare apps are drawn to the convenience and speed of the service. Drivers are drawn to the opportunity to make money on the side and set their own hours. But the inherent problems that accompany these types of services present serious risks for both passengers and drivers. No one wants to drive for 16 hours straight just to pay their bills, and no one wants to hail a ride in a vehicle being driven by someone who is completely exhausted from a 14-hour stint of driving.

Drowsy driving is a serious problem on our roads. There is a good reason that federal law limits the number of hours a professional driver can work in each day. After driving several hours straight, drivers can become distracted, lose focus, and be much more prone to error.

If you’ve been injured in a crash involving a fatigued driver, you shouldn’t have to pay the costs associated with your injury. At Terry Bryant Accident & Injury Law, we have years of experience getting our clients the compensation they deserve.

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.

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What is Deferred Adjudication in Texas?

Originally published by Benson Varghese.

What is Deferred Adjudication in Texas?

Deferred adjudication in Texas is an alternative to jail or prison time and is a form of community supervision (probation) that is allowed under Code of Criminal Procedure 42A.101 through 42A.111. The most important difference between deferred adjudication and “straight probation” is that deferred adjudication avoids a conviction for most purposes while straight probation is considered a conviction.

Can a person get deferred adjudication from a jury?

No. A person cannot get deferred adjudication from a jury. The deferment must happen before a person is found guilty. As a result, only a judge can place a person on deferred adjudication. In order to do so, the person must plead guilty, and the judge will accept their plea without finding them guilty thereby placing the person on deferred adjudication for period of time.

How long does Deferred Adjudication stay on your record?

If you successfully complete deferred adjudication, your case will be dismissed without a conviction on your record. While the arrest never automatically falls off your record, you may be eligible to have your arrest sealed or expunged after the required waiting period.

How long is Deferred Adjudication in Texas?

A misdemeanor punishable by jail can be deferred for up to two years. A felony can generally be deferred for up to ten years. Skilled defense attorneys may be able to negotiate terms that are not as long. A person charged with Indecency with a Child, Sexual Assault of a Child, or Aggravated Sexual Assault of a Child cannot be placed on deferred for less than 5 years.

Early Release from Deferred Adjudication

You will also want to speak to your attorney about early release from deferred adjudication if you have been doing well during the deferred adjudication period and you have not had any violations. A judge may release a person from deferred adjudication early when it is in the best interest of society and the probationer. However, a probationer does not have a right to early termination; it is purely discretionary on the part of the judge to allow someone to be released from deferred adjudication early.

Can you request a sentence without violating deferred adjudication?

Occasionally, a person on deferred adjudication decides that the conditions of deferred adjudication are too onerous to comply with. They regret having pled to deferred adjudication and look for a way out. Unknown to most defense attorneys is a provision under CCP 42A.107 which allows for a written motion to be filed within 30 days of the plea asking the judge to proceed to adjudication – which of course means time in jail or prison and a conviction.

What are the differences between Deferred Adjudication and Straight Probation?

Deferred adjudication probation

Can you get deferred adjudication for any offense in Texas?

No. There are certain offenses that you cannot get deferred adjudication for in Texas, such as Continuous Sexual Assault of a Minor, certain drug offenses in Drug Free Zones, and any offense involving an intoxicated driver, such as DWI, Intoxication Assault, or Intoxication Manslaughter.

What are the standard conditions of deferred adjudication in Texas?

The judge sets conditions of deferred. The most common conditions of deferred adjudication in Texas requires that a probationer:

  • Not violate any other laws
  • Avoid any bad conduct including use of illegal controlled substances
  • Avoid bad people and places.
  • Report as directed by probation office: Generally once a month
  • Be subject to house inspections
  • Maintain a job
  • Support your dependents
  • Advise probation officer of any address or job change
  • Execute a waiver of extradition
  • Submit to drug testing
  • Pay probation supervision fees, Crime Stopper fees, and court costs
  • Complete GED or obtain high school diploma
  • Complete any classes required by probation officer
  • Abide by limitations on travel
  • Abide by a curfew
  • Pay restitution, if any, to crime victim
  • Complete community service
  • Complete a psychological or psychiatric evaluation

In Tarrant County, felony probation officers supervise approximately 130 people in any given month.  Most adult probationers are ordered to report once a month for half hour meetings.  Probationers on more serious offenses might have in-home visits or inspections and field visits by a probation officer.

Contact us

If you have been charged with a criminal offense and are hoping to avoid a conviction or if you are trying to clear your record, call us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:

  • Discuss the facts of your case;
  • Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
  • Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

You can also contact us online:

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Stories of Recovery: The Problem Was Me

Originally published by Guest Blogger.

We lawyers are all pretty clever.

We spend our careers trying to distinguish our facts to gain an advantage in a case. At first, chasing that advantage felt exciting but, in time, it began to feel stressful, and I began to need to “take the edge off” those feelings by drinking them away. Now in my eighth year of recovery, I’m convinced that I cannot safely use drugs or alcohol to “take the edge off,” even where others safely can.

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Leadership Means Leaders Eat Last

Originally published by Thomas J. Crane.

Awhile back, I watched another episode of Undercover Boss.  As they often do, the boss revealed himself at the end of the show, handed out thousands to deserving employees who are struggling, promoted one or two who clearly deserved it, hugged his workers and explained why his company was good and pledged himself to make it better.

I hear everyday about employers who do not treat workers with respect. I hear about employers who implement company policies with untrained, uninspired managers. Recently, I attended a legal training at which the well-versed Mike Maslanka spoke.  Mike represents employers and has done so for 30 years.  He reads much about teamwork, leadership and managing for success. I always enjoy listening to Mike.  He talked about how as lawyers, we need to be reminded of our values from time-to-time. If we did so, we could work together better and our country would be a better place.

The military is far from perfect. But, speakers like Maslanka always remind me how lucky I was to serve in the Army. The Army, like all the services, requires periodic training. When I was first commissioned as a lieutenant, I attended the Infantry Officers Basic Course at Ft. Benning, Georgia. We learned the Army values, duty, loyalty, selfless service, and more. We then practiced them and debated them in a class known as “Leadership.” In Leadership class, our instructor let us know our opinion had value. He listened to every opinion, no matter how ignorant. We learned a value not stated, that every person’s opinion had value.

A few years later, I was back at Ft. Benning for the Infantry Officers Advance Course.  As captains, all of us now had substantial experience with troops. All of us had now experienced the ups and downs of trying to lead disparate groups of men and women in missions they may not respect. How motivated is any soldier to stay until midnight getting ready for a 0530 inspection the next day? So, as captains, we spent a lot of time practicing counseling. We would role play soldiers in trouble and how to help them through major crises. We role played how to deal with selfish commanders and obstinate NCO’s. A few years later as a Major, I attended the more intellectual course, Command and General Staff Officer’s Course. I shook hands again with Army values, learned about Army history, and how to work as part of a staff.

At each step of our career, we are, in effect re-trained, re-armed and re-fueled for the wider Army world.  The system is not perfect, but it does produce “workers” who share expectations and who willingly surrender their individuality for a larger purpose.

One Undercover Boss tonight was from Rally Checkers. At the end of the show, he re-pledged himself to teach his workers his company values. Company values lead to greater retention, less re-training, better cooperation between workers and quicker turn-around time for the basic burger.

One thing I learned in the Army, when a leader compromises on one policy or one value, that inevitably leads to compromise on others. I told my son the other day that we tell the truth on the small things because that is practice for telling the truth on the big things. Soldiers and workers see it when we compromise once or twice. They remember.

When I first got to Iraq, we were replacing a unit that was seriously dysfunctional. The member of that unit violated some very basic principles of leadership and teamwork. We had to spend ten days with them, learning their jobs before they rotated back home. We got to know them too well.

One basic rule in the Army is that a leader never eats before his soldiers do. The leader eats last. In the Army, when you are in the field, food choices are limited. There is no McDonald’s on the corner. Food takes on added importance. The commander eats the same meals his soldiers eat. The President might get two scoops of ice cream. But, leaders do not eat what his soldiers cannot eat. The leader does as his soldiers do.  In that unit we replaced in Iraq, I am sure the commander ate whenever and whatever he pleased. Do not be the leader who eats before his people do. Do not be the leader who revels in the perks. The employees see that. They remember.

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Wednesday, August 16, 2017

When Stopping Competition with A Temporary Injunction, It Pays To Be Precise

Originally published by Leiza Dolghih.

ArcherEven the best non-disclosure and non-competition agreements are not worth anything if not enforced correctly. A lot of times a company rushes to court asking the judge to stop a former employee or his new employer from using the company’s confidential information or soliciting its customers based on the agreements that the former employee had signed with the company.    

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Does Your Job Application Need a Check-Up? Three Costly Compliance Blunders to Avoid

Originally published by Shaun Cassin.

The days of the “one size fits all” job application may soon be coming to an end. As federal, state, and local governments increasingly heighten employer hiring process requirements, national employers must be diligent to avoid getting tripped up by the varying rules across different locations. This post will discuss three hiring requirements that are increasingly leaving companies exposed to risk.


“Ban the Box” Laws

State and local governments have continued to pass “ban the box” laws, which prevent employers from inquiring into applicants’ criminal history at the initial stages of the hiring process. As of May 2017, nine states and fifteen cities and counties have adopted a ban the box law that applies to private employers. While Texas is not among those states, last year Austin became the first city in Texas to ban the box for private employers.

But not all ban the box laws are the same. For example, while the most stringent ban the box laws prohibit inquiries about criminal history until after a conditional offer of employment, others allow such questions after an initial interview. Accordingly, employers must make the difficult decision to individually tailor their hiring policies to the specific jurisdictions in which they operate, or to maintain a national hiring policy that complies with the most strict local laws. Either way, under almost every ban the box law, including broad questions about criminal history on an employment application will be a violation.

Pay Equity

The past two years have produced groundbreaking changes to equal pay laws on both the state and federal level. New York, Maryland, California, and Massachusetts all minted new equal pay laws that fundamentally changed how equal pay claims are handled in those states, lowering the bar for a viable pay equity law suit. On the federal level, the EEOC passed an expansion to Employer Information Reports (or EEO-1 reports), which will require many private employers to submit annual pay data detailing racial and gender breakdowns of each job category. Employers must complete their 2017 EEO-1 reports with this additional pay data by March 31, 2018.

What do these changes to equal pay mean for employers aiming to lower legal risk? First, employers who inquire about applicants’ salary histories at the application stage may have to update their applications and hiring processes. Indeed, a growing number of state and local laws explicitly ban questions about an applicant’s salary history. Further, in light of the recently increased viability of pay equity claims at the state level, employers should conduct internal pay equity audits to ensure their hiring processes are not exacerbating pay inequity within their company.

Prohibited Medical Inquiries

Under the Americans with Disabilities Act (ADA), a company’s right to make disability-related inquiries changes across different stages of the hiring process. Prior to an offer of employment, an employer may not make any disability-related inquiries or conduct medical examinations, regardless of whether they are related to the job. Once employment begins, employers may make disability-related inquiries or conduct medical examinations only if they are job related and consistent with business necessity.

Because of this framework, job applications that include disability-related inquiries are in violation of the ADA. Employers should refrain from making disability-related inquiries or requesting medical examinations as part of their hiring process. Off-limits pre-offer questions include not only direct inquiries as to whether an applicant has a disability, but also inquiries about an applicant’s genetic information, prior workers’ compensation history, or prescription medications. Employers seeking to minimize legal risks with their job applications should eliminate any questions that ask or relate to an applicant’s possible impairment.


In short, employers seeking information about employees’ criminal history, salary history, or disabilities should proceed with caution. The current legal frameworks surrounding ban the box, disability-related inquiries, and pay equity all suggest that when it comes to asking sensitive questions at the pre-offer stage in the hiring process, less is more. To avoid liability, employers should contact legal counsel and conduct a job application check-up.

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Federal Court Strikes Down Two Texas Congressional Districts

Originally published by Paul Cannon.

Districts Drawn on Basis of Race On Tuesday, a three-judge panel of the United States District Court for the Western District of Texas ruled that Texas Congressional Districts 27 and 35 violated the Constitution and the Voting Rights Act because they were primarily drawn on the basis of race. Ultimately, this weakened the voting power […]

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Second District Court of Appeals Chief Justice Terrie Livingston announces retirement

Originally published by Eric Quitugua.

Second District Court of Appeals Chief Justice Terrie Livingston plans to retire September 8, 2017. Livingston, who has served as a justice since 1994, was appointed as the court’s chief justice in 2010 by former Gov. Rick Perry and reelected in 2012.

“It has been an honor to serve our 12 counties these last 22 plus years, and to work with our justices here and across the State of Texas,” Livingston said in a press release. “We also have some of the best lawyers and support staff that continuously step up when needed; our production is top notch.”

Livingston began her legal career in 1980, working for several law firms and later her own practice. She created the first budget for the Tarrant County Bar Association and served as chair of the Tarrant County Bar Foundation in 2007. In 2015, Livingston received the Tarrant County Bar Association’s Silver Gavel Award, which recognizes a member of the judiciary who has served on the bench for at least a decade and has made many notable contributions.

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Tuesday, August 15, 2017

The Importance of Understanding Future Income in a Mediated Settlement Agreement

Originally published by Guest and Gray Law Firm.

What is a Mediated Settlement Agreement?

If you reach an agreement in a mediation, more precisely called a Mediated settlement agreement or MSA for short, the agreement is binding on you and all other parties you are agreeing with in a family law case as long as the MSA is drafted in the way that is required under the Texas Family Code. The agreement must be the result of a mediation, hence the name, which is basically just the meeting of both parties with a neutral third person facilitating the conversation so that the parties can come to an agreement. Texas law encourages mediation as a cost-efficient and time-efficient way of settling disputes. One of the benefits of mediation is that instead of a judge who has only a glimpse into the lives of parties based on evidence presented to him or her, during a mediation the parties who know their situation and family the best get to come to an agreement that works for them and is custom to their situation.

One downside to a mediation could be that as opposed to a judge who should know what the consequences of their decision could potentially be, parties could be making agreements in a mediated settlement agreement using language that will have consequences after the agreement is entered that they did not intend. One of the reasons that we trust judges to make decisions for us in legal matters is that in general they have years of experience dealing with similar matters and they should understand what all of the legal jargon that goes into an order actually means.
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Licensing Agreements: How to License Your Intellectual Property

Originally published by Vethan Law.

Licensing Agreements: How to License Your Intellectual Property
Have you ever thought of licensing one or more pieces of your intellectual property? It’s always nice to have a source of revenue and maybe a few companies have hinted they would pay to use your IP in their products or services.

If so, you need to license your intellectual property to gain those revenues and retain the rights to your property.

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The old document and the sea.

Originally published by David Coale.

The common law of contracts was forever shaped by the good ships Peerless (one of which appears to the right), which both sailed into Liverpool in late 1863 bearing loads of cotton from Bombay. A modern counterpoint appears in GIC Services v. Freightplus USA , in which the parties were both talking about a tugboat called REBEL (left), but disagreed over what Nigerian city it was supposed to arrive in after a trans-Atlantic journey from Houston. The core problem with the “meeting of the minds,” however, was not among the parties, but among their counsel and the trial court, as the calculation of damages for the prevailing party rested almost entirely on one invoice. The Fifth Circuit panel split 2-1 over whether an effective stipulation had been reached about the authenticity of the invoice, providing a cautionary note to all trial lawyers about the effect and scope of agreements reached “on the fly” in open court. No. 15-30975 (August 8, 2017).

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Citing Stephen Colbert, the Fifth Circuit Rolls Back Several NLRB Handbook Positions

Originally published by Alicia Voltmer.

Not long ago, I wrote about how the National Labor Relations Board’s (NLRB’s) positions on various handbook policies transcended common sense.  In a recent opinion, a three-judge panel of the Fifth Circuit Court of Appeals agreed, holding that the following employer handbook policies did not, contrary to the NLRB’s opinion, violate Section 7 of the National Labor Relations Act and “chill” an employee’s organizing rights: (1) encouraging employees to “maintain a positive working environment”; (2) prohibiting “arguing or fighting,” “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork”; and (3) prohibiting access to electronic information by non-approved individuals. See T-Mobile USA, Inc. v. National Labor Relations Board, No. 16-60284 (5th Cir. July 25, 2017). 

According to the Court, the relevant inquiry isn’t whether a rule “could” conceivably be read to cover Section 7 activity, but rather whether a reasonable employee reading the rule “would” construe it to prohibit Section 7 activity.  A reasonable employee is one who is aware of her legal rights, “but who also interprets work rules as they apply to the everydayness” of her job.  

As I said in my earlier blog, and as the Court reasoned, reasonable peopleunderstand the meaning of work rules such as, “treat employees with respect,” and “don’t fight at work.”  To drive home its point, the Court, in a footnote, cited a YouTube clip from Stephen Colbert mocking the NLRB’s position.  And if you’re wondering, the Fifth Circuit doesn’t routinely cite to YouTube in its opinions. The decision is important for Texas employers because it reinforces the idea that an employer has the right to enact “reasonable” work rules.   


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Metadata is “the new black,” but it’s often a useless accessory (Part 2)

Originally published by Robin Tooms.

ESI (electronically stored information) can make or break your case. ESI often gives the most accurate recitation of what occurred in a dispute, and ESI is locked in time when the send or save button is clicked.

ESI is often one party’s biggest strength—and the other party’s biggest weakness—in employment litigation. For example, we recently represented a services company in the oil and gas industry in litigation against a former employee. A forensic examination of the former employee’s computer showed he actively competed with his former employer during his employment, and the time stamps on his computer files (including the created, last modified, and deleted dates) were the nail in the coffin in the Court’s decision to award broad injunctive relief. On the flip side of the coin, the complete lack of evidence on the computer of a client sued for misappropriation of trade secrets was enough to convince a Harris County district court judge to completely deny a request for a temporary injunction.

However, the cost of preserving and producing that ESI is a significant concern for litigants, especially in high-volume productions. Attorneys are well-aware of the cost of electronic discovery, and often serve far-reaching requests for production of documents that include ESI to impose a cost burden on the other side and leverage settlement. Still, Texas Rule of Civil Procedure 196.4 gives litigants the right to “specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced.” It also gives the responding party the right to object to the form of production requested.

Rule 196.4 is limited by Rule 192.4, which allows courts to limit the scope of discovery when the burden or expense of responding to a discovery request outweighs its likely benefit. The rule was originally designed to prevent unwarranted delay and expense, but Rule 192.4 objections have long been an overused, but underutilized, discovery objection.

In re State Farm Lloyds was an impactful decision by the Texas Supreme Court both in the definition of the discovery standard and production of ESI. In In re State Farm Lloyds, State Farm objected to the requesting party’s demand for production of documents in native form, arguing doing so would be burdensome and the documents were more reasonably available in PDF form.

The trial court overruled State Farm’s objection and ordered it to produce documents in native form. The court of appeals agreed, noting Rule 196.4 “does not offer State Farm the unilateral option to produce ESI in a ‘reasonably usable format,’” and a party is “required to produce the information in the form requested unless the party serves timely objections or assertions of privilege.”

The Texas Supreme Court clarified that neither the requesting nor the responding party have the unilateral right to specify the form of electronic discovery. Instead, courts must apply the proportionality factors for determining whether the producing party must produce documents in the form requested or a reasonably usable alternative form is appropriate:

[W]hen a party asserts that unreasonable efforts are required to produce documents in the requested form and a “reasonably usable” alternative form is readily available, the trial court must balance any burden or expense of producing in the requested form against the relative benefits of doing so, the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the requested format in resolving the issues.

 . . .

[I]f these factors preponderate against production in the requested form, the trial court may order production as requested only if the requesting party shows a particularized need for data in that form and “the requesting party pay[s] the reasonable expenses of any extraordinary steps required to retrieve and produce the information.”

The Court observed “‘a weak presumption against the production of metadata has taken hold,’ which may be due to ‘metadata’s status as ‘the new black,’ with parties increasingly seeking its production in every case, regardless of size or complexity.” This follows the presumption against production of metadata applied by many federal courts, recognizing metadata is of little evidentiary value in litigation, and only serves to needlessly and unnecessarily drive up litigation costs.

If applied correctly by the trial courts, In re State Farm Lloyds is a significant and positive development in business litigation. It should limit the costs of discovery in cases where metadata is not critical to the outcome (i.e., your run-of-the-mill breach of contract case). However, in cases where metadata is important, like in many employment litigation cases, the Texas Supreme Court left a reasonable avenue for litigants to obtain evidence documents in native form.

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Leadership Lessons from Dunkirk

Originally published by tfoxlaw.

If you have not seen it, I would suggest you go to see what I believe is the summer’s top movie, Dunkirk. It is great cinema, good history and presents the view of soldier on the ground from the English perspective. It unfolds on land, sea and air; in decreasing time frames of one week, […]

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What’s the Next Hot Market for Law Firm Mergers?

Originally published by Texas Lawyer.


In recent months, the Midwest has seen a spurt of law firm combinations. Smaller firms are joining forces.

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Monday, August 14, 2017

5th Circuit Upholds Class Waiver Without an Arbitration Agreement

Originally published by Beth Graham.

In a 2-1 decision, the United States Court of Appeals for the Fifth Circuit has overturned a National Labor Relations Board (“NLRB”) ruling stating an employer may not require job applicants to sign a class-action waiver that is not included in an arbitration agreement because such a requirement violates the National Labor Relations Act (“NLRA”).  In Convergys Corp. v. NLRB, No. 15-60860 (5th Cir., August 7, 2017), an Ohio-based company, Convergys, required all prospective employees to sign a waiver stating the individuals would not engage in collective action against the company.  Unlike many other NLRB decisions involving class-action waivers, the Convergys waiver was not included in an arbitration agreement.

A Convergys worker who signed the class-action waiver as part of the employment process later brought a collective action lawsuit against the company over its purported Fair Labor Standards Act violations.  After Convergys sought to enforce the class waiver in the case, the worker filed a charge with the NLRB.  Although the lawsuit was ultimately settled, the NLRB “ordered Convergys to cease and desist from requiring applicants to sign a waiver, to cease and desist from enforcing the waiver, and to take steps to ensure all applicants and current and former employees knew the waiver was no longer in force.” In response, Convergys filed an appeal with the nation’s Fifth Circuit.  Likewise, the NLRB sought enforcement of its order through a cross-application.

On appeal, the court first examined whether Section 7 of the NLRA guaranteed an employee’s right to engage in collective action.  Relying on its 2013 decision in D.R. Horton, the court said:

This court has already rejected the Board’s position that Section 7 guarantees a right to participate in class or collective actions, holding that the use of a class or collective action is a procedure rather than a substantive right. Horton, 737 F.3d at 357; id. at 361; see also id. at 362 (noting that, under the Board’s interpretation, “the NLRA would have to be protecting a right of access to a procedure that did not exist when the NLRA was (re)enacted”). Despite our decision in Horton and similar rulings by a majority of circuits that have considered the issue, the Board has persistently clung to its view that Section 7 guarantees a substantive right to participate in class and collective actions, and we have persistently declined to enforce Board orders based on this disregard of our law.5 We recognize that the Supreme Court’s decision in NLRB v. Murphy Oil USA, Inc., cert. granted, 137 S. Ct. 809 (2017), may resolve the issue shortly. In the meantime, however, we must apply our circuit’s binding precedent. See, e.g., Horton, 737 F.3d at 344; Murphy Oil, 808 F.3d at 1013.

The court continued by stating:

Because our decision in Horton was based on our interpretation of Section 7 and our reasoning was not limited to interpretation and application of the FAA, the Board’s argument that Horton is limited to the arbitration context is unpersuasive. Horton’s interpretation of Section 7 is binding on this panel. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“[O]ne panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”); see also Gochicoa v. Johnson, 238 F.3d 278, 286 n.11 (5th Cir. 2000) (“When confronting decisions of prior panels . . . we are bound by not only the result but also those portions of the opinion necessary to that result.”).

The Board’s argument that Section 7 creates a substantive right to participate in class and collective actions ignores Horton’s contrary holding that “[t]he use of class action procedures . . . is not a substantive right.” Horton, 737 F.3d at 357. Moreover, the Board’s assertion that the waiver in Horton was permissible only because the FAA overrode the NLRA contradicts our determination in Horton that the statutes are not in conflict. See id. at 361. Finally, the Board’s suggestion that Horton is distinguishable because the FAA empowers arbitration agreements to waive rights that other agreements cannot waive is contrary to Supreme Court precedent, which holds that the FAA places arbitration agreements “on an equal footing with other contracts.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). For all these reasons, Horton precludes the Board’s position.

In an opinion authored by Judge Elrod, the Fifth Circuit Court of Appeals ultimately held “Convergys did not engage in an unfair labor practice” by requiring job applicants to sign a class-action waiver.  Judge Higginson wrote separately to concur in the judgment only.  Judge Higginbotham also authored a lengthy dissent stating “The Board’s decision that Convergys violated Section 8(a)(1) of the NLRA should be enforced.”

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Monitoring Lease Compliance

Originally published by John McFarland.

With the drop in oil prices has come a wave of litigation over underpayment of royalties. Multiple suits have been filed against Repsol (formerly Talisman) over its royalty payments in the Eagle Ford. Multiple suits against Devon for royalty underpayment have been consolidated into a multi-district docket in San Antonio. A federal court in Fort Worth has certified a class action against Devon for underpayment of royalties in the Barnett Shale. Conoco is settling class actions brought in Oklahoma that also cover class members in Texas. These suits allege underpayments of royalty on oil and gas. The San Antonio multi-district suits also allege breach of lease provisions requiring the lessee to protect the lease against drainage from wells on adjacent properties.

These cases present opportunities for plaintiffs’ attorneys to earn large contingency fees. They also point out the problems faced by land and mineral owners in determining whether their lessee is complying with their oil and gas lease. What should landowners do to monitor lease compliance?

There are no easy answers to these questions. Below are some suggestions.

Know how to read your check detail.

Companies are required by law to report certain details on how royalties are calculated and paid on the check detail that comes with each royalty payment. Texas Natural Resources Code Chapter 91, Subchapter L, requires that the check stub include:

The lease, property or well name and identification number, and the county and state in which the well is located;

the month and year during which sales occurred for which payment is being made;

the number of barrels or mcf of gas sold;

the price per barrel or per mcf of oil or gas used for calculating royalties;

the total amount of state severance taxes paid;

any other deductions or adjustments;

the net value of total sales after deductions;

the owner’s decimal royalty interest;

the owner’s share of the total value of sales before and after any deductions; and

an address and phone number at which additional information regarding the payment may be obtained and questions may be answered.

The statute also requires a payor to provide additional information about any deductions if a request is sent by certified mail.

Check stubs have codes that identify the product for which royalty is being paid – oil, condensate, gas, natural gas liquids – and the type of deduction – transportation, processing, gathering, etc. Each company has its own format and codes. Explanation of the codes may be on the check stub or may be provided in a separate insert with the check stub. Some companies also have explanations on how to read their check stubs on their website. Some companies sub-contract royalty payment and reporting to other companies who process the checks and provide the check details. Oildex is a major subcontractor.

Check stubs often show adjustments in payments for previous periods. These adjustments often make the check stub virtually unreadable. Usually, prior period adjustments are shown by two entries, one reversing out an entry made in the previous period, and a second making a new entry for the same period with the adjusted amount shown. The adjustment may be in the price or volume, or may reflect a new or adjusted deduction amount.

Many companies now make check stubs available online. Some companies have sought to require royalty owners to access their check stubs online. The Texas Legislature recently passed a bill requiring companies to provide paper check stubs if requested by the royalty owner. An advantage of accessing check stubs online is that they can be downloaded either as Xcel spreadsheets or as pdfs that can be converted into Xcel spreadsheets. But some online versions of check stubs will limit the number of lines of code from the check detail that can be downloaded.

Know your lease.

The lessee’s obligations to the royalty owner are governed by the oil and gas lease. The lease determines how royalties are calculated and paid. Some royalty clauses provide for payment based on market value, some based on proceeds received from sale. Some leases allow deduction of post-production costs, some do not. A lease may also set forth the consequences for failure to pay royalty in accordance with the lease.

The oil and gas lease may impose additional covenants on the lessee that should be monitored. If there is no production at the end of the primary term, the lease terminates and the lessee should sign and file a release. The lease may impose drilling requirements after the end of the primary term, and may require releases of acreage not developed after drilling operations cease. The lease may require release of depths below those from which the lessee is producing. It may contain express covenants for protection against drainage.

If the lessor is the owner of the surface estate in the leased premises, the lease may contain obligations regarding the lessee’s use of the surface of the land. Surface damage payments, use of roads, construction of pipelines, keeping gates closed — all of these should be monitored to assure that the lessee is in compliance.

Monitor the lessee’s drilling and production activities.

A royalty owner should know when his/her lessee is drilling on the lease, when a well is completed and commences production. The lessee usually does not notify the royalty owner of these activities unless the lease so requires. The Texas Railroad Commission now has online search capabilities that allow a mineral owner to track activities on the property. Mineral owners should learn how to use those search capabilities.

Once production commences, operators must report production monthly to the RRC, and that information is available online. Volumes reported to the RRC should be compared to volumes reported on check stubs. It should be noted, however, that volumes on check stubs may not match RRC-reported volumes, particularly for gas. If gas is processed for removal of natural gas liquids before sale, the volume reported to the RRC will be the wellhead volume, whereas the volumes reported on the check stub may be the residue gas and NGL volumes.

Royalty audit?

If the dollar amount of royalties are sufficient to justify a professional audit to confirm that the royalties being paid comply with lease requirements, a royalty owner should consider hiring an auditor to conduct such an audit. Such audits can be expensive, depending on the number of wells, the complexity of the lessee’s marketing system, the cooperativeness of the lessee, and the terms of the lease. But audits often uncover substantial underpayments.

Under Texas law, the statute of limitations for royalty payments is four years. So a royalty owner who is underpaid must file suit to recover royalties owed within four years from the date the royalty is due.  Because audits often take several months to complete, one should consider an audit well before the end of the four-year period for which the audit will be conducted.

Gaps in production.

Most oil and gas leases provide that, if a well stops producing for mechanical reasons, the lease will continue in force as long as the lessee commences efforts to restore production within 60 or 90 days and continues such efforts with no gaps in operations of more than 60 or 90 days until production is restored. If a royalty owner sees a gap in production of more than 60 or 90 days (depending on the lease), the owner should inquire with the operator whether operations were conducted during that period so as to keep the lease in effect. Absent such operations, the royalty owner should consider whether to claim that the lease has terminated.

Production in “paying quantities.”

Texas case law requires that a lease remains in effect after its primary term only if oil and/or gas is produced in “paying quantities.” In general, this means that the lessee must be making a profit after payment of operating costs of the well or wells on the lease. A large body of case law has developed over how to determine whether a lease is producing in paying quantities, and that topic is too large to discuss here. If a royalty owner suspects that a lease is not producing in paying quantities, he/she should consult an attorney to evaluate the issue.

Spills and leaks.

Spills and leaks of oil, gas and produced water are a common occurrence in the oil field. Landowners with oil and gas operations on their property should expect them to occur occasionally. Jurisdiction of those events is in the Texas Railroad Commission. Operators are required to report spills and leaks of more than five barrels of liquid, and RRC rules provide cleanup standards for those events. Landowners should be proactive in reporting leaks to the RRC when they find them, be sure that RRC inspections and follow-up inspections occur, and insist that the RRC require the operator to clean up the spill or leak as required by RRC regulations.

Some leaks are often not detected until long after they commence. Lighter crude, condensate or produced water may percolate into shallow groundwater aquifers with little or no evidence on the surface. Texas law requires landowners to bring suit within two years of discovery of such events. Audits of surface operations may be conducted by professional environmental engineers to detect such events. Remediation of groundwater is very expensive and complex, and the sooner such leaks are detected the easier it will be to deal with them.

Pool your resources.

Royalty interests in some cases are divided among family members who have inherited those interests. While it may not be economical for one royalty owner to hire professionals to conduct a royalty audit, several royalty owners with interests in the same lease might do so economically. Some families have formed family offices to monitor their production and engage in audits where justified. In my experience those family offices often pay for themselves in recoveries of underpaid royalties and management of their family mineral interests.

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

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National task force tackles lawyer well-being in new report

Originally published by Amy Starnes.

The National Task Force on Lawyer Well-Being today released a comprehensive report that makes recommendations for improving lawyer well-being, including addressing substance use and metal health disorders. Bree Buchanan, director of the Texas Lawyers’ Assistance Program, is a co-chair of the task force and a co-author of the report.

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

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Friday, August 11, 2017

Day 9 of One Month to More Effective Continuous Improvement-the Fraud Audit

Originally published by tfoxlaw.

Today I consider a fraud audit by using data analytics to help detect or prevent bribery and corruption where the primary sales force used by a company are its FCPA and Chinese domestic law, involved China based employees defrauding their company by using false expense reports to create a pot of money to use as […]

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Omitted Legal Descriptions in Sale of Oil and Gas Leases

Originally published by Aimee Hess.

In a case that is probably a recurring nightmare for oil and gas attorneys, the Texas Court of Appeals recently addressed the question of what constitutes a material change to a written agreement involving the purchase of oil and gas leases in the case of Ranger Energy LLC v. Tonya McCabe Trust et al. In 2008, Mark III Energy Holdings purchased eight oil and gas leases from Tomco Energy. Mark III Energy paid for the leases with a $4 million dollar loan from Peoples Bank. However, two of the leases were accidentally left out of the assignment to Mark III Energy from Tomco Energy. The mortgage lien also failed to include the same two leases. In 2011 and 2012, certain trusts purchased overriding royalty interest in these leases. One of the assignments to the trusts also omitted reference to the same two leases.

Mark III Energy defaulted on the loan and Peoples Bank sued. In settlement of that litigation, Mark III conveyed the leases to Peoples Bank in lieu of foreclosure and gave the Bank a modified deed of trust. Later, the Bank discovered that two leases were missing from the mortgage lien and modified deed of trust, so they took it upon themselves to unilaterally file a corrected mortgage and deed of trust which added the missing leases. Neither the Bank nor Mark III Energy signed the revised agreements. Instead the Bank just added the signature pages from the old documents. In 2013, the Bank sold the lien and indebtedness to an affiliate, Ranger Energy, who then proceeded to foreclose on the loan.

Ranger Energy filed suit to extinguish the overriding royalty interest in the eight leases. The litigation centered on the “correction instrument” statute in the Texas Property Code §§ 5.027–.031. Specifically, the Texas Property Code permits “a nonmaterial change that results from a clerical error,” [§5.028(a)], “a nonmaterial change that results from an inadvertent error,” [§ 5.028(a-1)] and in certain cases “a material correction” to a recorded instrument of conveyance. (§5.029). The statute also allows correction of nonmaterial clerical errors by a person who has personal knowledge of the facts relevant to the correction and the kinds of errors that can be corrected include “a legal description prepared in connection with the preparation of the original instrument but inadvertently omitted from the original instrument”.

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