Monday, December 18, 2017

Too much, too late.

Originally published by David Coale.

In Howard v. Maxum Indemnity Co., “Howard’s appeal raises as a central, threshold question whether he waived application of Oklahoma law” in an insurance dispute. Unfortunately, “[a]lthough Howard did raise the choice of law issue in his Rule 59(e) motion, ‘this court will typically not consider an issue or a new arugment raised for the first time in a motion for reconsideration in the district court.’ . . . ‘Parties generally are bound by the theory of law they argue in the district court, absent some manifest injustice.’” No. 16-11746 (Dec. 13, 2017).

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SABA launches Project RISE with $7,000 Texas Bar Foundation grant

Originally published by Eric Quitugua.

The San Antonio Bar Association and San Antonio Bar Foundation launched Project RISE: Rebranding, Innovation, Success & Experience, an initiative to streamline communications and improving the customer experience.

Project RISE is a multi-year strategy set in phases, with the first funded in part by a $7,000 grant from the Texas Bar Foundation. During this phase, SABA staff will be equipped with the tools and infrastructure needed to breathe new life into existing programs while planning and implementing new ones. The later include the Subpoena newsletter and the Civil Bench Motions & Trials continued legal education seminar.

The project comes on the heels of the San Antonio Bar’s 2016 Raising the Bar initiative. Fifteen-year-old SABA data systems were updated and access to community information, membership benefits, and the bar’s legal directory was made easier.

The grant from the Texas Bar Foundation will allow the San Antonio Bar to continue its upgrades. Since 1965, the bar foundation has awarded more than $18 million in grants to law-related programs, according to a press release.

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Checklist for Negotiating an Oil and Gas Lease

Originally published by John McFarland.

I got the idea to start this blog after I made a presentation to a landowner group in which I distributed a checklist for negotiating an oil and gas lease.  Soon thereafter, I began receiving calls from people who had found the checklist on the internet. The organization that sponsored my presentation had posted it on their website, and people searching for help on negotiating a lease found it.  I decided that I should investigate this internet thing more closely, and that led to my decision to start this blog.

I have updated my checklist, and you can find the new and improved version here:  Checklist for Negotiating an Oil and Gas Lease

And on a sadder note, I would like to mourn the passing of Tommy Nobis, the best linebacker ever to play for the University of Texas. He played for UT 1963-65, and was a member of its 1963 national championship team.  He had a great professional career with the Atlanta Falcons, where he was the franchise’s first draft pick in 1966 and was known as “Mr. Falcon.” He still holds the record in the NFL for most tackles in a season, at 294.  Nobis died December 13. He attended the football banquet at St. Stephen’s Episcopal School in 1965 where I was a sophomore and played defensive guard and center. My jersey, like Nobis’s, was number 60. He and I both sported a flat-top haircut, and for the rest of my high school football career my nickname was “Nobis.”  Requiescat in pace, Tommy.

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FCPA Compliance Report-Episode 362, Brian Platz of Fluree

Originally published by tfoxlaw.

In this episode, I visit with Brian Platz who discusses blockchain and his new company Fluree, a new Public Benefit Corporation that has introduced a scalable blockchain database for decentralized applications. Fluree is not healthcare specific, but there is a lot of potential for blockchain. In this podcast interview we covered the following: What is a […]

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Want to Learn How to Sell? Pay Attention to How Others Sell You!

Originally published by Cordell Parvin.

Nancy and I recently bought something I didn’t think we would buy. I marveled at the saleswoman’s no pressure sales technique. I’ve seen the same saleswoman use it before, but I was still pretty amazed.

She knew we were happy with what we already had, but she ever so softly let us know that one important feature may not be available in the future. Then she showed us the new products, which were much nicer than what we had. Then she showed us the price of the new products, which were more than we would spend. Then, she said:

Suppose cost is not a factor, which would you choose?

If we weren’t willing to buy, we should have said something like:

If you gave it to us we still would not want it.

But, we picked out the one we would buy if cost was not a factor. You know what happened next: She made us a “deal” we couldn’t refuse.

I want you to think about whether anything she did applies to client development and persuading a client to use you.

On the other hand, I have told this story about a financial advisor many times. It taught me what it feels like when someone is selling me.

Tom is a financial advisor I know here in Dallas. His wife and Nancy are friends and we have played golf as couples a few times. Tom is really, really a nice guy, but, in my view he has made many cardinal mistakes in trying to get my business.

A few years ago, Tom’s assistant called me and said: “Mr. Smith would like to know if you would like to play golf with his group on Saturday.” My first thought was: “If Mr. Smith really wanted me to join him, wouldn’t he have called me himself?” I decided Mr. Smith was having his assistant call a “prospect” list.

Fast forward to 2007. I no longer work downtown. I discover my office is in the same building as Mr. Smith’s and that he is most anxious for me to join him for lunch. I knew it would not be a social lunch between friends. Tom was looking for the opportunity to sell me his financial services.

I immediately thought:

I can run, but now that we are in the same building, I can’t hide forever.

Sure enough, in January of that year, Tom finally had me cornered. He and his son had joined Nancy and I during a round of golf. During the round he asked when I would next be in my office so I could join him for lunch. Knowing I could not say: “never,” I told him I would in be in office on Tuesday.

I went downstairs Tuesday at noon for what I anticipated would be a sales lunch. Because I teach lawyers how to interact with potential clients, I thought that at the worst I would see an experienced sales professional in action.

The lunch was very nice. We sat in Tom’s office where he had a flat screen TV tuned to a financial station and I thought that was very cool. I expected the small talk about golf and our spouses and waited to see how Tom would transition to business. Here is how he did it:

Let me tell you about my company.

He proceeded to give me a bit of a history lesson and talked about how the company is full service and can handle all my financial services.

It was all the stuff that was on the firm’s webpage that I had read, But, the one advantage of having Tom tell me all this is I could eat rapidly and just keep nodding my head.

Finally Tom popped the big question:

Cordell, would you like to be able to put away more for retirement that would not be taxed?

That is like asking if I would like to have someone give me a million dollars. Knowing Tom expected me to say: “Yes, tell me how.” I, instead said:

Yes, and I have been talking that over with MY financial advisor.

I put the emphasis on the word MY purposely to let him know I already had someone with whom I was happy. Not to be deterred, Tom spent the next 15 minutes telling me what I already knew about Defined Benefit Plans for small businesses.

When I got home, I told Nancy that even though I made clear I did not need a new financial advisor, I knew I would receive an email from Tom…the follow up. Sure enough, I got this email:

Cordell, please let me know if you want any assistance in designing a qualified retirement plan for you—many times we can maximize the benefits for the principal and minimizing the same for other employees. Most principals want to obtain at least 80% of contributions so that the IRS tax savings pays for the other employees. I’m available to assist you..Tom

Put, yourself in Tom’s position. How would you have handled this differently?


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2017 Ag Law Year in Review – Federal

Originally published by tiffany.dowell.

2017 has been a busy year on the agricultural law front.  From WOTUS to “ag gag,” Syngenta to Dicamba, there has been no shortage of drama this year.  Here is a look at some of the most important issues on the federal level.  (A post outlining major issues in Texas is forthcoming.)  Paul Goeringer and I recorded a webinar discussing these issues as well, which can be found here.

EPA heads back to the drawing board to re-draft WOTUS rule.

Where to even start?  Readers likely remember back in 2015 when the EPA published a rule offering a definition of what constitutes a “Water of the United States” pursuant to the Clean Water Act.  Before the ink was dry on that rule, numerous lawsuits were filed claiming the 2015 rule exceeded the scope and power given to the EPA by the Clean Water Act.  The US Court of Appeals for the Sixth Circuit entered a nationwide stay, so the rule never went into effect.  [Read prior blog post here and listen to prior podcast episode here.]

In February 2017, President Trump issued an Executive Order requiring the EPA and US Army Corps of Engineers to “rescind or revise” the 2015 rule and that the agencies should “consider interpreting” the term consistent with Justice Scalia’s opinion in the Rapanos decision.  [Read prior blog post here.]

The EPA and COE followed President Trump’s Executive Order and have begun the process to rescind and replace the 2015 rule.  They have created a two-step process by which they will first rescind the 2015 rule and then will turn to crafting a new definition.  The first step has undergone notice and comment rulemaking and a published rule rescinding the 2015 rule should be forthcoming.  [Read prior blog post here.]

In October, the US Supreme Court took up the WOTUS issue, but in a very limited fashion.  The Court heard oral arguments on the issue of jurisdiction only–should it be an appellate level court (like the 6th Circuit) or a trial level court who hears the lawsuits challenging the 2015 rule.  This question will come down to how the Justices interpret the language of Section 509 of the Clean Water Act, which gives appellate courts jurisdiction over challenges to “any effluent limitation or other limitation” and permit approvals or denials.  A decision has not been announced yet.

Meanwhile, in November, the EPA and COE have proposed a 2 year stay on the implementation of the 2015 WOTUS rule.  They say this stay is necessary to ensure certainty in the event the 6th Circuit judicial stay is lifted for some reason.

California farmer “reluctantly” settles controversial WOTUS case.

Continuing on the WOTUS front, a California farmer settled a much-watched lawsuit involving a Clean Water Act claim.  In 2012, John Duarte purchased 450 acres north of Sacramento intending to sow wheat.  The property had been in agricultural production for decades, being farmed prior to 1988, then grazed by cattle from 1988 – 2012. When Duarte’s employee began to plow the field, the US Army Corps of Engineers decided that low points in the field that collected water when it rained, referred to as “vernal swales,” constituted a Water of the United States, meaning that Duarte was required to obtain a federal permit under the Clean Water Act to plow his field.

The trial court sided with the Corps of Engineers, holding that the vernal swales were a WOTUS as they were hydrologically connected to a stream over 8 miles away that fed into the Sacramento River.  Additionally, the “normal ongoing farming operation” did not apply to this property because plowing was not an ongoing operation during the years that the property had been grazed prior to Duarte’s purchase.   [Read prior blog post here.]

Duarte initially appealed, but in August, Duarte issued a statement that “given the risks posed by further trial on the government’s request for up to $45 million in penalties…” he “reluctantly” agreed to settle the case.  Under the agreement, Duarte does not admit liability, but will pay civil penalties of approximately $300,000 and purchase mitigation credits of approximately $770,000.  There are also various limitations on how he can farm the field going forward.  [Read prior blog post here.]

“Ag Gag” statutes held unconstitutional, additional challenge filed.

Statutes seeking to impose criminal penalties on activists who either trespass on farms or obtain employment through false pretenses to record undercover video of agricultural operations have repeatedly been deemed unconstitutional this year.  Most notably, federal district courts in Idaho and Utah have held that the states’ respective statutes violate the First Amendment Free Speech Clause and the Fourteenth Amendment Equal Protection Clause of the United States Constitution.  The Idaho case is currently pending on appeal before the United States Court of Appeals for the Ninth Circuit, and Utah announced that it will not appeal the lower court ruling.  Additionally, in October, animal rights groups filed suit in Iowa, making similar challenges to that state’s “ag gag law.”  [Read prior blog posts here and here, and listen to prior podcast episode here].

Tentative settlement reached in cases pitting corn farmers against Syngenta.

Numerous cases across the United States were filed by farmers against Syngenta related to Syngenta’s release of genetically modified corn seeds containing the MIR-162 trait.  Although the seeds were approved for planting in the United States, they were not approved for China for exporting from the US.  When corn containing the MIR-162 trait was found in 2013 corn shipments, China rejected these shipments at the border.  Shortly thereafter, corn prices fell.  Plaintiffs from numerous states filed putative class action lawsuits against Syngenta, alleging that they acted negligently in marketing and selling these seeds, causing corn prices to drop and monetary damages to producers who did not plant the seeds.  [Read prior blog post here.]

Most of the cases were consolidated in the Multi-District Ligation Court in Kansas.  Nine classes were certified initially, with numerous other states with claims filed and certification pending.  In June, the first trial awarded Kansas farmers nearly $217 million on a negligence claim.  With additional cases coming down the pike, and a trial underway in Minnesota on similar claims, Syngenta announced in September that they had reached a tentative settlement of the lawsuits.  Details have yet to be worked out and approved by the court, but Reuters News reported that the settlement amount was to be $1.5 billion.  [Read prior blog posts here and here.]

Case limiting scope of Endangered Species Act reversed on appeal.

The People for the Ethical Treatment of Property Owners won a huge trial level decision in Utah federal court in 2014, when the judge held that the Endangered Species Act could not apply to the Utah Prairie Dog since it was a purely intrastate animal.  [Read prior blog post here.]  This year, however, the United States Court of Appeals for the Tenth Circuit reversed that decision.  Specifically, the court found that Congress had a rational basis to conclude that the Endangered Species Act, in the aggregate, substantially affects interstate commerce.  Plaintiffs are seeking review by the United States Supreme Court.  [Read prior blog posts here.]

Flood of new lawsuits related to pesticide Dicamba.

Almost certainly, the biggest ag law news story this year involved claims of damage caused by pesticide drift from over the top application of Dicamba on soybeans and cotton.  With the development of genetically modified soybean and cotton plants that are tolerant to Dicamba, many producers turned to this pesticide to help control resistant weeds.  Throughout the country, there have been numerous lawsuits filed related to Dicamba.  [Read prior blog post here.]  Several class action suits have been filed against Monsanto, the developer of Xtend soybean and cotton seeds and the corresponding XtendiMax pesticide.  Monsanto has filed a claim of its own in Arkansas against the Arkansas State Plant Board, which prohibited the use of the Monsanto product last year in the state, and which has imposed an April 15 deadline on application for 2018.  Lawsuits have also been filed against the EPA for approving the use of Dicamba at all.  In October, the EPA announced it was making numerous changes to the label for three new Dicamba formulations, including XtendiMax and Engenia.  Most importantly, these pesticides will now be restricted use, meaning that persons will be required to have an applicator’s license and training to purchase the products.  Additionally, changes have been made to maximum allowable wind speeds, times of day when the product may be applied, and recordkeeping requirements will increase.  [Read prior blog post here.]

Court holds that agriculture is not exempt from federal air emissions standards.

In April, a D.C. Circuit opinion involving air emissions and agriculture caused concern among many animal agriculture groups.  The Court in Waterkeeper Alliance v. EPA found that exemptions that excluded agriculture from reporting air emission requirements under federal CERCLA and EPCRA environmental statues were illegal.  These statutes require reporting of “any release” into the air of hazardous substances above a certain threshold.  Now that agriculture is no longer exempt per the court’s ruling, this would include animal agricultural operations emitting hazardous substances from animal wastes.  After an additional stay was entered by the court, reporting will not be required until January 22, 2018.  In October, the EPA issued “guidance” on reporting releases of hazardous substances from animal waste, stating that releases of substances such as ammonia and hydrogen sulfide in an amount over 100 pounds of either from an entire farm per 24-hour period would trigger the reporting requirement.  The guidance offers direction on how to calculate emissions from various animal operations.  [Read prior blog post here.]

Court finds that damage caused by manure excluded from insurance coverage containing “pollutant exclusion.”

A Washington case offers an important reminder for ag producers to carefully read and understand liability insurance policies.  This case was an insurance coverage dispute between a dairy farm, which was accused of polluting groundwater with inadequate manure storage and application practices, and their insurance company.  When the dairy contacted the insurer about the underlying lawsuit being filed, the insurer denied both indemnification and defense to the dairy, stating that claims related to manure were excluded from coverage pursuant to the “pollutant exclusion” clause in the insurance policy.  This is the second case in recent years reaching this conclusion and could have important impacts on ag operations facing claims of damage related to manure.  [Read prior blog post here.]

Ninth Circuit holds that federal reserved water rights include groundwater.

A really interesting and important issue was before the United States Court of Appeals for the Ninth Circuit.  When the federal government sets aside lands for purposes such as an Indian Reservation or a National Park, the government also reserves “appurtenant water then unappropriated to the extent needed to accomplish the purpose” of the land.  In this case, the federal government created a reservation in California for the Agua Caliente Band of Cahuilla Indians (the Tribe) in the 1800’s.  A question arose as to whether the federally reserved water rights included groundwater, as well as surface water.  This is an extremely important issue for the Tribe because this particular area of California is extremely dry, receiving only 3-6 inches of rain per year and having a very limited supply of surface water.  No federal court had addressed this issue, but the US Court of Appeals for the Ninth Circuit held that the federally reserved water rights does include groundwater.  The court also stated that these federally reserved rights preempt state groundwater law.  The case was appealed to the US Supreme Court, but they declined to hear the matter.  The case will now proceed back to the trial court to determine the quantity of water reserved to the Tribe.  Given water shortages and large amounts of federally owned land across the West, this decision could have major implications for groundwater rights in many states.  [Read prior blog post here.]

So that’s a wrap of the key agricultural legal issues for 2017.  No doubt, 2018 will bring even more exciting news and cases.

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Share your blog on Texas Bar Today

Originally published by Teri Rodriguez.

Share Your Blog
Share your blog with more readers!

Texas Bar Today is a curated blog updated daily that features legal news and commentary by Texas legal professionals:

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Friday, December 15, 2017

Top 10 from Texas Bar Today: Santa, Scrooge, and Dr. Seuss

Originally published by Joanna Herzik.

10. Law Students: Why Should a Law Firm Hire You?Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

9. The Problem with “Acceptable” SpeedingStewart Guss @StewartGuss of Stewart J. Guss, Attorney at Law in Houston

8. Is Your Company Email to Santa Protected?Cleve Clinton of Gray Reed & McGraw @GrayReedLaw in Dallas

7. Use Your Calendar for Legal Marketing Success in 2018Bruce Vincent of Muse Communications, LLC @MuseCommLLC in Dallas

6. Don’t Unwittingly Abandon Your PropertyJeff Zane of Merlin Law Group @MerlinLawGroup

5. Fact Sheet: Estimating Potential Capital Gains Tax LiabilityTiffany Dowell Lashmet @TiffDowell, Assistant Professor and Extension Specialist in Agricultural Law with Texas A&M Agrilife Extension in College Station

4. Three Recent Arguments in Texas Supreme Court: Offset Clauses, the Rule Against Perpetuities, and the Duhig RuleJohn McFarland of Graves Dougherty Hearon & Moody @GravesDougherty in Austin

3. Dr. Seuss and Star Trek at Odds over Copyrights and Trademarks – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

2. Finding Scrooge: Trial-Tested Tips for Seating a Defense-Friendly JuryKacy Miller of CourtroomLogic Consulting, LLC @CourtroomLogic in Dallas and Fort Worth

1. The Greatest Gift My Father Gave MeBrian Cuban @bcuban

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Texas Bar Foundation grant to help CJP upgrade technology

Originally published by Eric Quitugua.

The Community Justice Program, the San Antonio Bar Association’s pro bono project, will be able to expand and upgrade infrastructure thanks to a $20,800 grant from the Texas Bar Foundation.

The money will help CJP replace malfunctioning laptops and cover the purchase of other equipment the program needs for its services.

Since October 2002, the program has held community clinics offering legal advice and services in areas of law including family law, wills and probate, and veterans law. CJP has helped more than 10,000 low-income clients since the start of the clinics, according to a press release. With the grant from the Texas Bar Foundation, the program will be better able to accommodate volunteer demand and assist clients.

The Texas Bar Foundation has awarded more than $18 million in grants to law-related programs since it began in 1965, according to a press release.

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What is a Voluntary Recall?

Originally published by Paul Cannon.

Most people know that when a product, food, or medication is recalled by a governmental entity such as the Food & Drug Administration (FDA) or the Consumer Product Safety Commission (CPSC), the recall should be taken seriously. If a government agency finds it necessary to order goods off the shelves and out of circulation, or […]

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An Estate Planning Nightmare: Hopper v. JP Morgan

Originally published by Gerry W. Beyer.

Max Hopper served as Senior Vice President of American Airlines, Chief Information Officer of Bank of America, and was chairman of the Sabre Group. The Texas native accumulated an extensive and impressive resume over the course of his working career….

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Discounts for vacations

Originally published by Staff Report.

Need a vacation? Your Beneplace Savings Program has great deals on luggage, rental cars, hotel reservations and vacation packages—everything you need to get away and have the trip of a lifetime.

If your luggage is starting to look a little worse for the wear, it’s time to start thinking about an upgrade. Save an additional 10% off the already lowest prices on luggage and travel goods from Luggage Designers. They feature the lowest prices on luggage, suitcases, anti-theft travel bags, RFID blocking wallets, backpacks, duffels, handbags, leather goods, totes, garment bags, luggage sets, sports bags, and a complete line of travel accessories for your trip.

Don’t overpay for your rental car. Take advantage of an Enterprise membership and enjoy a discount on their everyday low rates. When you’re ready to go, Enterprise makes it easy. Or try a Zipcar membership—you can book sedans, hybrids, SUVs and vans whenever you need. Then, just walk to the car, scan in with your Zipcard and drive.

Check out great savings on accommodations, by land or by sea. Save up to 20% with Wyndham. From upscale hotels and all-inclusive resorts to something more cost-effective, Wyndham has the right hotel for you! Discount Hotel Reservations offers exclusive rates up to 60% off – with over 8,000 hotels around the globe. Book a vacation with Cruise & Vacation Perks and save 4%! Plus, CVP brings you added-value offers, including special pricing, cabin upgrades and onboard credits.

Current offers provided by Beneplace.

For more information on other discounts you’re eligible for as a member of the State Bar of Texas, visit

Texas Bar Private Insurance Exchange
The Texas Bar Private Insurance Exchange is a multi-carrier private exchange designed for State Bar of Texas members and their staff and dependents. Available to both individuals and employer groups, the exchange offers a wide range of health insurance choices and more.

State Bar of Texas – Benefits & Services

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The Problem With “Acceptable” Speeding

Originally published by Stewart J. Guss.

Many drivers think that going a few miles over the speed limit here and going a few more miles over the speed limit there is acceptable speeding—basically a non-event. Speed limits, however, are posted for one important reason—to protect the safety of everyone on the road (other vehicles and pedestrians alike). If you think there’s a time and a place for exceeding the posted speed limit, now’s probably a good time to reevaluate your notions about acceptable speeding.

Speed Limit Laws in Texas

While many states implement absolute speed limits (whatever speed is posted on the sign is the absolute legal limit, and if you exceed that limit, you’ve broken the law), Texas implements presumed speed limit laws (or prima facie speed limits), which allow drivers some flexibility regarding speed—which means that as long as you drive safely within the context of the driving conditions, you’re allowed some wiggle room with the speed limit. Texas law does, however, mark specific instances when you must appropriately reduce your speed:

  • When you approach an intersection or railroad crossing
  • When you drive around a curve
  • When you approach a hill’s crest
  • When you travel on a narrow or winding roadway
  • Whenever you encounter any special traffic hazards, including pedestrians, inclement weather, or dangerous road conditions

As we all know, some drivers don’t think the rules apply to them. If you or someone you care about was injured by a speeding driver, you need an experienced Houston personal injury lawyer. The legal team at Stewart J. Guss, Attorney at Law, has the skill, knowledge, and dedication to protect your rights and your rightful compensation.

The Speed Limits

Although Texas implements presumed speed limit laws, it has specific prima facie limits for specific areas:

  • 15 miles per hour in urban district alleys
  • 15 miles per hour on beaches or on county roads that are adjacent to a beach
  • 30 miles per hour on urban district streets
  • 60 miles per hour on unnumbered highways outside urban districts
  • 70 miles per hour on numbered highways outside urban districts

Speed Kills

When you choose to exceed the posted speed limit, you endanger yourself and everyone else on the road. Speed limits are posted for the safety of all, and Texas’s presumed speed limit laws notwithstanding, these limits are not mere suggestions. When drivers choose to embrace acceptable speeding, they elect to drive at a speed for which the roadway wasn’t necessarily built and they make our highways and byways more dangerous.

As your vehicle’s speed increases, your braking distance lengthens, and your available reaction time decreases. In fact, the National Highway and Traffic Safety Administration (NHTSA) reports that, in 2015, more than 9,500 people were killed by speeding drivers in the United States. Furthermore, for more than two decades, speed has played a role in about a third of vehicular fatalities.

When You Speed

You know that speeding is dangerous in general, but speeding is closely associated with a variety of specific dangers:

  • You increase your odds of losing control of your car.
  • You reduce the effectiveness of your car’s occupant protection devices (seat belts and airbags, for example).
  • You increase the severity of medical, psychological, economic injuries if you crash.

Speeding Explained

The NHTSA considers speeding a form of aggressive driving. Significant societal factors have contributed to the increase in aggressive driving:

  • Traffic congestion
  • Late for a very important date
  • The anonymity of driving

Many drivers blame increased traffic congestion for their aggressive driving patterns, including speeding. Traffic is a fact of modern living, however—if you drive, take a deep breath when you get behind the wheel and stay cool out there.

All of our lives are crammed with important meetings, job functions, kid stuff, and any number of other activities. Life is busy, and with the holidays approaching, it’s especially so. By planning ahead and allowing yourself the time to get where you need to go, however, you aid your ability to arrive safely and timely at your destination.

Many drivers cite the anonymity of driving as contributing to their aggressive driving. When you get behind the wheel, you may experience a sense of detachment—almost as if you are an observer rather than a participant in the action all around you. Some drivers find this sensation loosens their inhibitions on the road. But driving is serious business—never allow the cocoon-like quality of your vehicle to encourage you to drive any way other than safely.

As drivers clock more hours on the road and as traffic continues to intensify, more drivers are adopting aggressive driving habits, including speeding. Check in with yourself when you drive. If you find yourself getting hot under the collar, it’s probably a good time to focus on driving safely. Don’t let your own or anyone else’s aggressive driving endanger your life.

If You Were Injured by a Speeding Driver, Contact an Experienced Houston Personal Injury Attorney Today

When drivers choose their own acceptable speed limits, they put everyone on the road in danger. If a speeding driver injured you or someone you care about, you know just how difficult that can be. Don’t leave your rights to chance—you need a skilled Houston personal injury lawyer.

These cases can be complicated, but your rights matter. The legal team at Stewart J. Guss, Attorney at Law, is here to help. We have defended claims like yours for more than 20 years, and we are committed to effectively advocating for all our clients. You don’t have to go through this alone. We’ll thoroughly investigate your case, fight for your just compensation, and file a lawsuit on your behalf if necessary. If you were injured by the negligence of a speeding driver, please don’t hesitate to either send us an email through our online contact form or call our team at (281) 664-6500 for a free consultation today. Remember—you pay us nothing up front when we take your case, and you pay us nothing unless and until we’ve won your recovery.

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Undocumented Immigrant Not Guilty of Steinle Murder, Will Be Deported

Originally published by John Floyd.

Undocumented Immigrant Not Guilty of Steinle Murder, Will Be Deported

The undocumented immigrant charged with shooting and killing Kate Steinle in San Francisco in 2015 was recently acquitted of murder, although he will be deported to Mexico on other felony charges.


Even before this controversial jury verdict, the Steinle case has triggered a political firestorm across the nation’s political spectrum, fueling the debate about the legal and practical issues surrounding  sanctuary cities should.


This past summer, a bill called Kate’s Law was passed by the U.S. House of Representatives.


The law would allow enhanced prison sentencing for immigrants who have repeat incidents of illegally entering the U.S. The bill, however, has stalled in the Senate, and the potential for its revival is uncertain.


Jose Ines Garcia Zarate’s not guilty verdict has generated a renewed political uproar.


President Donald Trump tweeted that the decision was “disgraceful,” and ICE’s Deputy Director Tom Homan called San Francisco’s sanctuary city status “a blatant threat to public safety.”


Steinle’s family was not present when the verdict was read.


What exactly happened to cause uproar?


The Tragic Tale of Kate Steinle and Jose Ines Garcia Zarate


On July 1, 2015, 32-year-old Kate Steinle was walking with her father on Pier 14 in San Francisco. Suddenly, a bullet from a Sig Sauer .40-caliber handgun shot through her back and pierced her aorta. Two hours later, Steinle died in a local hospital. Mexican citizen Jose Ines Garcia Zarate, 45, a man who has had a long-standing problem with non-violent crimes, was charged with murder, involuntary manslaughter, assault with a deadly weapon, and other violations in connection with Steinle’s death.


Known by several aliases, Garcia Zarate had been released from jail about 10 weeks before the killing, where he had been held on drug charges. San Francisco authorities did not report his release to the U. S. Immigration and Customs Enforcement (ICE), which reportedly had been trying to deport Garcia Zarate but had neglected to present a detainer warrant to local authorities.


At the time of the shooting, Garcia Zarate was homeless and wandering around the area. Video at Pier 14 showed Garcia Zarate running away from the scene. His hand was covered with gunshot residue, which was discovered upon his arrest.


Garcia Zarate’s attorney said that his client found the cloth-wrapped gun at the pier and it discharged by accident when he unwrapped it. However, when Garcia Zarate was questioned by police, he admitted to aiming the gun at a seal. He said the gun fired when he stepped on it. After the gun discharged, he threw it into the San Francisco Bay. The gun had been stolen four days earlier from a Bureau of Land Management ranger vehicle parked near the pier.


Throughout the month-long trial, Garcia Zarate’s attorney maintained that the firing was an accident and that the bullet ricocheted 80 feet before reaching Steinle. The details surrounding the shooting were intensely debated by both sides, and the jury deliberated six days before reaching their final decision.


Houston Immigration Crimes Attorney


On Nov. 30 Garcia Zarate was acquitted of all the charges relating to Steinle death but was found guilty of being a felon in possession of a firearm, which carries a three-year prison sentence.


Federal officials will report him back to Mexico. This deportation will be Garcia Zarate’s sixth from the U.S.


What the Steinle Case Says about the State of Illegal Immigration and Sanctuary Cities


This case sparked a national discussion because San Francisco is known as a “sanctuary city” for undocumented immigrants like Garcia Zarate. That means local law enforcement officers have decided they do not have a responsibility to enforce immigration laws, which they consider to be under ICE’s jurisdiction.


Attorney General Jeff Sessions has stated that the city of San Francisco bears the blame for the Steinle killing because of its status as a sanctuary city.


Other political conservatives have joined this politicized clamor by charging that Steinle’s death would not have occurred if the San Francisco police had turned Garcia Zarate over to ICE rather than releasing him from jail.


For their part, Kate Steinle’s parents filed a lawsuit against the city of San Francisco and its sheriff in 2016, but it was dismissed earlier this year. Now they have filed a wrongful death suit against both San Francisco and the federal government.


Despite these accusations and potential legal concerns, the recently deceased San Francisco Mayor Edwin M. Lee released a statement affirming San Francisco as a sanctuary city. However, the city has agreed to cooperate with future detention requests from ICE if the offender has a felony conviction for serious or violent crimes within the past seven years.


Kates Law Immigration Crimes


Something that should be noted: even if that policy had been in place at the time of the killing, it would not have held Garcia Zarate in jail any longer because he did not have a history of violence.


Bottom line?


Immigration law is changing rapidly in the current political climate. If you are facing charges for alleged immigration crimes, enlist the help of an experienced attorney who keeps up with the latest happenings and has a track record of success dealing with these types of offenses. Reach out now for your confidential case review.


The post Undocumented Immigrant Not Guilty of Steinle Murder, Will Be Deported appeared first on .

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Not-so special appearance

Originally published by David Coale.

A Mexican company disputed personal jurisdiction in Texas, but ran afoul of special appearance procedure: “A special appearance that merely challenges the method of service fails as a special appearance and constitutes a general appearance. A complaint that a defendant was not served in acccordance with the Hague Convention is a complaint regarding a curable defect in service of process. Such a complaint does not defeat a nonresident’s amenability to the court’s process and thus should not be raised via a special appearance.” Vitro Packaging de Mexico v. Dubiel, No. 05-17-00258-CV (applying Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202 (Tex. 1985)) (Dec. 13, 2017) (mem. op.) (citations omitted, emphasis added)

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Thursday, December 14, 2017

Use Your Calendar for Legal Marketing Success in 2018

Originally published by Bruce Vincent.

With the end of the year upon us, now is the perfect time for insightful lawyers to begin thinking about the best ways to boost their practices in 2018. Regardless of your expertise, there are countless opportunities for legal marketing success based on next year’s calendar. These upcoming events represent excellent fodder for blog posts, […]

The post Use Your Calendar for Legal Marketing Success in 2018 appeared first on Muse Communications.

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Is Your Company Email to Santa Protected?

Originally published by Cleve Clinton.

Frazzled by the incessant demands for her company Acne Brick’s financial records from her husband’s divorce lawyer Ditcher Quick, company president Annie Acne was wondering what her next maneuver might be when her Information Technology officer walked into her office. The subpoena that he was holding demanded production of all Acne email communications between Annie and (i) her divorce lawyers and (ii) her attorney brother who helped her rearrange just a few things. Annie immediately called her attorney Elle O’Quent to ask, “Can Acne Brick be ordered to produce Annie’s emails from Acne’s computer?”

Maybe, depending upon what the Acne employee handbook says. If Acne has an explicit policy on lack of privacy, any attorney-client privilege that Annie may claim with her attorney Elle O’Quent is waived, including any claim of an attorney-client relationship with her brother. If the company has no email / computer policy, both the attorney-client privilege and Annie’s expectation of privacy are likely to be honored unless the company takes actions to make its employees’ lack of privacy obvious. For anything in between, a fact-intensive analysis is required.

Pulling out the Acne employee handbook which was generated from the internet, the IT officer points to “Corporate Email Usage” which provides “Our employees represent our company whenever they use their corporate email address… Our company has the right to monitor and archive corporate emails.”

When analyzing whether an individual has waived attorney-client privilege through the use of company email, courts have analogized the reasoning to an employee’s Fourth Amendment right to privacy in the contents of their office computer – was there (i) a “subjective expectation of privacy” (ii) that “society accepts as objectively reasonable?”

To decide whether Annie has a reasonable expectation of privacy in e-mail communications sent and received over a company network that would be protected by the attorney-client privilege Texas courts have asked if:

(i) the company had a policy banning personal use,

(ii) the company monitored employee’s computer or e-mail,

(iii) third parties have a right to access the employee’s computer or e-mails, and

(iv) the company notified the employee, or if the employee was aware, of the company’s use and monitoring policies.

Considering the language of the Acne employee handbook, Annie was on notice of the company’s right to monitor and to keep Annie’s emails. It is probable that Acne Brick’s IT officer must produce to Ditcher Quick all of Annie’s personal emails on her corporate Acne Brick account, including those to her attorney Elle O’Quent and to her attorney brother. In fact, language as apparently innocuous as “Employees should limit their use of the e-mail resources to official business” was held by a Delaware bankruptcy court to eliminate an employee’s expectation of privacy.

Tilting the Scales in Your Favor

Protecting Acne Brick is not as simple as implementing a sweeping computer use policy announcing that the company owns and has the right to monitor all company computers and emails. Yes, Acne Brick has its own interests to protect. Yet, an overly broad policy creates a risk both to the company and to its employees that any litigant can successfully procure all email communications – including those generally believed to be protected by the attorney-client privilege. The risk is that any company with such a broad policy may find that its IT group is responding to more and more third-party email and computer document demands affecting its employees.

At a minimum, companies with a computer use policy allowing company access to monitor an employee’s computer or email account should also consider advising their employees:

  • Strongly consider maintaining and using a separate email account, and likely, separate mobile phone;
  • Do not use the company computer / telephone / email account to communicate any personal, non-company information that you do not want to share outside of the company.

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New Cybersecurity Regulations Series (Part Two)

Originally published by Verne Pedro.

Part two of this series continues exploring cybersecurity regulations and breach notification requirements. [Read Part One here]. The first installment of this post mentioned some of the cyber security regulations in New York, which has been noted as leading the pack in this area.1 Part two follows up with a few additional regulations and calls to…… Continue Reading


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When the Screen Freezes

Originally published by lawschool academicsupport.

How individuals manage difficult moments or periods of crisis is very telling of who they are as individuals, their perseverance, and their strength. As the title states, what happens when students are in the process of taking an exam and…

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Rule of the week –

Originally published by David Coale.

In Walls v. Capella Park Homeowners’ Association, Inc., the Fifth Court recapped the standards for a “trial on stipulated facts” under Tex. R. Civ. P. 263 – a useful and underappreciated rule. “An agreed statement of facts under rule 263 is similar to a special verdict; it is the parties’ request for judgment under the applicable law. In a rule 263 agreed case, the only issue on appeal is whether the district court properly applied the law to the agreed facts. Such a review is less deferential to the trial court, because a trial court has no discretion in deciding what the law is or in properly applying it. Id. If the trial court files findings of fact in an agreed case, they are disregarded by the appellate court.” No. 05-16-00783-CV (Nov. 30, 2017) (applying Addison Urban Development Partners v. Alan Ritchey Materials, 437 S.W.3d 597, 600 (Tex. App.—Dallas 2014, no pet.)).

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Reasons to not file a Child Custody Modification Suit in Texas

Originally published by Evan Hochschild.

If you have ever been involved in a child custody or divorce case and the outcome wasn’t what you expected or necessarily wanted you may have already started thinking about changes that you would like to have made. Maybe you weren’t able to get primary custody of your child and now your ex spouse has moved in a person that you think is a bad influence on your little one.

It could be that you’ve seen a decrease in the amount of income that you earn and you believe that a decrease in your child support obligation is due. Whatever the reason you owe it to yourself and your family to consider the positives and negatives of filing for a modification.

The Law Office of Bryan Fagan represents clients across southeast Texas, and many of those cases are modification suits. From our experiences we would like to discuss some of the reasons why it may not be a great idea for you to file a suit to modification either a divorce decree or child custody order.

If you file, a lawsuit may be filed against you by your opposing party

Do you remember the rule that we all learned back in high school science: “Every action has an equal or opposite reaction”? While the laws of physics may be different than the laws contained in the Texas Family Code, the fact remains that if you act as the aggressor in filing a lawsuit against your child’s other parent it is likely that he or she will come back and assert some grievance against you as well. Essentially he or she will piggy back off your lawsuit to file one of their own against you.

Clients are typically shocked to learn that the other parent has filed something against them. This is even after I or another attorney with our office discuss with you what potential “ammunition” the opposing party may have against you.

The reason why these “countersuits” are so common in modification cases in Texas is that the other side doesn’t really have anything to lose by filing, so he or she may as well do it. If it can negate any claims you are making or scare you enough into dropping your lawsuit it was worth the time and money to draft and file the paperwork in the first place. You are paying more money to file your lawsuit and their countersuit costs a fraction of that which you’ve already spent to initiate the case.

If you have to face a counter-suit you will simultaneously be responsible for presenting evidence sufficient to win your own case, while having to wage a defensive battle against the claims and allegations of your child’s other parent. Realistically this means more time, money and effort for you and your attorney and can end up being a double whammy if you are not successful in your case and your child’s other parent is in theirs.

Of course, you can always have your family law attorney call the opposing party’s lawyer and discuss a nonsuit of both cases. This means that a piece of paper is filed stating a request to have the lawsuit you’ve filed dropped from the court’s docket as if it had never been filed. The problem is that now it takes two to tango. You can’t nonsuit both cases- only your own. If the opposing party wants to he or she can maintain their case against you no matter what you decide to do with your own case.

Filing a modification means asking a court to fix a twice broken situation

What I mean by “twice broken” is that you’ve already been in front of this judge before and asked him or her to fix a bad situation for you and your family. The order that came out of that case, either by agreement or by order of the judge, does not work for at least one of the prior litigants.

You’ve now come back to the same court and asked the same judge to fix the broken situation once again. This often proves difficult because the ability to modify a prior order is almost exclusively fact dependent. This means that a judge will have to look at all of the circumstances in your family since the original order was signed and determine if there are sufficient grounds to make yet another change for your family. It often takes a mountain of evidence and facts to support your side in order to get the changes you are asking for.

Modification suits are often anger multipliers

Odds are good that you and your child’s other parent are not getting along all that well if a modification suit has been filed. If there are already small fires surrounding your relationship with this person, the filing of the modification suit will add gasoline and light a match at the same time to those flames.

Anger, hostility and negative words about one another will be shared between the two of you (if you’re even communicating with one another) and possibly even with your children.

When lawsuits get filed, pride becomes an issue and people tend to make bad decisions when they feel like their pride is on the line. We’re all human, so that statement probably applies to you as well. It is sometimes the case where small issues that could have been sorted out in mediation prior to the filing of a lawsuit get brushed over due to the anger that you and your child’s other parent feel towards one another.

Before you reach this point, it may be best to attempt to have a dialogue and see if these issues can be resolved by agreement rather than by hiring attorneys and filing lawsuits against one another

Modification attorneys for southeast Texas families: The Law Office of Bryan Fagan

The point of this blog post was not to dissuade you from wanting to file a modification suit in the areas of child custody, child support or any other family law related dispute. There are certainly instances where a modification attempt is justified as well as necessary. However, sometimes discretion is the better part of valor and the modification should be put on the back burner in favor of an honest and fair discussion with your potential opposing party.

If you believe that your family situation calls for a modification of a court order, please contact the Law Office of Bryan Fagan today. A free of charge consultation is only a phone call away with one of our licensed family law attorneys.


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. Will a DUI affect my child custody case in Texas?
  2. What is the purpose of Standing Orders in a Texas Divorce or Child Custody case?
  3. Modifying a child custody order: A how to guide for Texas parents
  4. Where will my child’s custody case need to be filed?
  5. Tips on giving in-court testimony in your divorce or child custody case
  6. Getting Ready for a Hearing On Temporary Custody Orders
  7. Child Custody Geographic Restrictions in Texas
  8. Geographic Restrictions in Child Visitation Orders in Texas
  9. The Dirty Trick of Moving Out of State with the Kids
  10. Can a Parent remove My Child from the state of Texas or from the County or Country where I am living?
  11. Children’s Passports and International Travel after Texas Divorce
  12. Child Custody Basics for Texas Parents Revisited
  13. Child Custody Basics in Texas

Law Office of Bryan Fagan | Spring, Texas Child Custody Lawyers

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

Our Child Custody 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 Child Custody cases in Spring, Texas, Cypress, 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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Finding Scrooge: Trial-Tested Tips for Seating a Defense-Friendly Jury

Originally published by Kacy Miller.

The holidays are a wonderful time of generosity, when we open our hearts and wallets to those we love, and sometimes, complete strangers. But in the legal industry, some litigants shy away from jury trials during the holidays, if for no other reason than to avoid a box filled with jurors who feel a tad indulgent.

Civil defendants roll the dice each and every time they go to trial and risk of receiving a multi-million-dollar judgment. (Just ask J&J.) When it comes to money damages, defendants typically fare better when bleeding hearts are not seated on the jury panel – and this is true at any time of year.

As a civil defendant, it’s crucial to probe potential jurors’ attitudes on lawsuit validity and damages during voir dire. This is especially true in cases where David is hoping to slay Goliath, or in cases seeking dollars for medical issues, earning capacity, or loss of consortium. Surprisingly, some clients are still reluctant to have that conversation with prospective jurors. The main pushback I hear is this: “We can’t talk about damages or jurors will think we’re admitting liability!”


Failing to have some conversation with potential jurors about their views on lawsuits and damages could bite you on the backside. After all, should jurors deliberate and determine that money damages are appropriate, dollars will obviously be discussed. Voir dire is your one and only opportunity to up the odds of seating jurors who exhibit a healthy dose of skepticism and frugality, rather than blind faith and generosity. As the defendant, don’t you want a little Scrooginess on your panel?

Our mock jury and post-trial interview data shows that a few attitudes about damages and lawsuit validity are fairly universal and merit some discussion during jury selection. The conversation doesn’t need to be deep, expansive, or even long. But it really should be woven into your outline. You can decide once you’re on your feet whether you need it or not. Effective voir dire boils down to implementing a planned strategy, having a purpose for each question, engaging the panel, and making the best use of your (sometimes very) limited time.

Since it’s the holiday season and I’ve caught the generosity bug, I thought I’d share a few of my favorite voir dire strategies for finding Scrooge-y jurors in high-stakes commercial defense litigation.

Lawsuit Validity

Our jury research and post-trial interview data indicate the majority of people feel that because a lawsuit makes it all the way to a courthouse and in front of a jury, it must be pretty darned valid. We all know that’s not necessarily true, but the general public seems to have that sentiment. And it’s pretty entrenched.

Plaintiff attorneys typically spend a bit of time identifying jurors with lawsuit experience, but very few ever address the issue of validity. As a commercial defendant, it’s important to locate venire members who already assume – before any evidence has been presented – that plaintiffs’ claims are valid and that your client has done something wrong.  Here are a few tried and tested ways to identifying the sympathizers:

  • If time permits, educate the panel that anyone can file a lawsuit by walking down to the courthouse and paying a filing fee. There’s no litmus test for determining whether the claims are truthful or supported by facts. In fact, if you so desired, you could walk downstairs, pay $30 or so, and file a lawsuit against McDonald’s claiming that its iced mocha coffee was just too cold and gave you such horrendous cold headaches that you lost your job for too many absences. The goal here is to learn if this filing process surprises anyone; if it does, he most likely assumed it was a more difficult process (and thereby gave more credibility to the party suing). It also allows you to plant a subtle seed that claims in a lawsuit are not necessarily all they’re cracked up to be.
  • Ask jurors how they feel about lawsuit validity, but do so in a conversational tone. For example, “X, I’ve talked with a lot of jurors in my day, and I meet folks who tell me that my client must have done something wrong or we simply wouldn’t be here in court. Do you tend to agree with that?” Ideally, you’ve already pegged that juror as a possible strike and fully expect her to agree, so use her affirmative answer to invite others to agree with the juror – not you. “Y, do you agree with X?” (Yes) “How many of you agree with X and Y and have a gut feeling that because we’re here, my client probably did something wrong?” Boom. Potential strikes.

Burden of Proof

Most attorneys talk about burden of proof and the magical scale of “greater weight of the credible evidence.” Here’s the deal: (1) very few jurors are going to admit in open court that they cannot (or will not) follow the judge’s instructions, (2) phrases like “greater weight of the credible evidence” are legal mumbo-jumbo to most in the venire.

By the time a defense litigator stands up for oral voir dire, the judge and/or plaintiff counsel has already educated the panel on the burden of proof. There is absolutely no need to reeducate the panel, and by no means should you try to convince jurors that they are wrong. They feel what they feel. Accept it graciously and move on.

But what you can do is ask who disagrees with the burden. It’s not a matter of determining whether a juror will follow the burden – almost everyone will say they will. Discover how they feel about the legal requirement. For example:

  • “Z, do you feel it’s fair to make the plaintiff prove its claims?” [Note: Some judges halt discussions about whether the burden requirement is “right” or “wrong”; it is, after all, the law. But discussions about how jurors feel about the law should be fair game. Choose your phrasing carefully.]
  • “Y, would it make more sense to you if my client were required to prove to you that it did not do what the other side claims?”
  • “Before learning about the law, how many of you were thinking, ‘Ooooh… they’d better show me a lot of evidence to prove they didn’t mess up.’?”

Any juror who feels the burden of proof requirement is backwards, strange or just plain wrong is most likely a juror who will expect your client to prove why it’s not a wrongdoer… whether she admits it or not.

Corporate Greed / Deep Pockets

If the case involves a well-known corporate defendant, the issue of “deep pockets” and “corporate greed” will be percolating in jurors’ minds. However – despite the need to weed these folks out – I do not typically recommend talking about these issues in oral voir dire (they are much better for a written questionnaire). If it’s an unusually big concern, we will typically discuss the topic in a more positive light (thus, planting seeds for our story) and focus on finding folks who don’t agree with our premise.

For example, in a quest to flush out anti-corporate jurors, we might develop a scenario that allows us to humanize the business, brag about our employees, and to portray the company as having good judgment and a people-first persona. It’s an easy way to weave very casual Q&A into the discussion and to encourage participation from the “quiet ones.” Here are a few jurors we’d want to identify and, possibly, strike:

  • People who are unhappy or dislike their current job.
  • People who have little to no experience working in big business.
  • People who think big businesses should just “pay some money” so everyone can avoid a lawsuit simply because it has the funds.
  • People who believe corporations value profit over people. [Note: In a general query, this will elicit a significant number of hands in the air.]


When I’m consulting with a defense team, I often discourage counsel from spending too much time discussing monetary damages because plaintiff counsel usually does the job for us. Whichever prospective jurors the plaintiffs don’t like, we on the defense side typically do. Usually, we plan on asking some global queries and making assessments and adjustments as needed.

Of course, each trial is different, and there are some cases, venues, and circumstances that merit a more in-depth discussion of damage-related issues.

Here are a few questions we’ve used in recent jury selection proceedings. The matters included claims related to wrongful death, discrimination, breach of contract, manufacturing defect, and just plain negligence. You’ll notice the language is simple and the tone is casual: it is conversational and (hopefully) promotes a safe environment for honest feedback. Jurors will be more candid and vocal if they believe you are genuinely interested in what they have to say, and will accept their answer without judgment.

  • “This is an emotional and difficult case because we are dealing with the death of a child. There isn’t a person involved in this case on either side who doesn’t feel sympathy and sadness for the family. Y, based on your recent experience of [insert whatever you have learned], do you think it might be hard for you to set sympathy aside and reach a verdict based only on the facts? Do you feel a twinge in your gut that the Plaintiff should receive at least some money as compensation for her troubles, and for the time and energy she invested in this lawsuit?”
  • “X, how comfortable would you be looking [insert name of Plaintiff] in the eye at the end of the trial and saying, ‘[Plaintiff], I am so sorry you felt that you were treated unfairly, but based on the evidence in this case, I cannot award you any money’? Is this something that you could do, if the evidence supported it?”
  • “Z, how difficult would it be for you to face your friends at work next week and tell them that you did not award a fellow [insert job] any money in his lawsuit for wrongful termination?”
  • “Which is more important to you: compensating someone who was injured, or determining who or what actually caused the injury?”

Final Thoughts 

Ultimately, jurors must believe your version of the facts. My preference is to focus the bulk of voir dire on discovering the juror attitudes and beliefs most likely to impact juror expectations of my client, and influence a juror’s willingness or resistance to embrace our story.

I rarely advise my clients to strike a potential juror based solely on feedback related to perceptions about lawsuits or damages. But all things being equal, I’d much prefer a potential damages juror who exhibits attitudes consistent with my client’s story than a possible low-damages juror who seems resistant to our themes. Wouldn’t you?


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What Your Brand Identity Says About Your Law Firm

Originally published by Stacey E Burke Blog.

Brand identity is something widely discussed in the marketing sphere, but isn’t always top-of-mind for those working in other industries. Law firms in particular have difficulty articulating their brand identity outside of a summation of their practice areas. But having a clear idea of your firm’s overall brand identity, and using that template to drive all of the firm’s marketing efforts, will result in a more powerful and cohesive message to potential new clients and referral sources.

What is Brand Identity?

A firm’s brand identity encompasses all of the components related to the firm’s image, including name, logo, Pantone colors, tagline, typeface, shape of the logo, and all of the visual elements associated with the firm. Most importantly, it’s the message the consumer receives from the visual elements that together identify and associate the firm in the consumer’s mind.

One of the first steps we take when working with a new law firm is assessing its brand identity. This includes gathering all previous print materials, digging into their online presence, assessing social media channels, and otherwise compiling all visual and digital content previously distributed by the firm. Many times a law firm has an internal image they believe they are projecting, but in reality it may not correlate to how the public sees them.

Inconsistency is Mistake #1

Visual cues are a huge part of any marketing strategy, primarily because of overwhelming reaction they receive from consumers. Part of that boils down to the fact that the part of the brain used to process visual images is significantly larger compared to the part used to process words. The use of imagery continues to rise, with 74% of social media marketers using visuals in their marketing – well over their use of blogs and even video.

Our brains subconsciously associate colors, shapes, and patterns with a brand. Anyone can tell you immediately the Starbucks logo is green, the Wal-Mart logo is blue, the Nike logo is a check mark, and the Target logo is a bulls-eye. We’ve associated these colors and shapes in our minds with the brands they represent, which is why consistency is so important. An old marketing adage states a prospect needs to hear or see a message at least seven times before they will take action. While seven may seem a bit high, repetition is certainly important in fixing a brand identity in a client’s mind. If that identity isn’t consistent, the harder it will be for the consumer to remember.

Circling back to our previous examples, the Starbucks green is always the exact same shade of green: Pantone 3425C. The aprons are this shade of green, their signs are this shade of green, and their logo is this shade of green. It never varies, regardless of the marketing medium. The same is true for Target: the bulls-eye is always, always, always red. The easiest way to ensure your firm has the same type of consistency is to create a set of brand standards for everyone to follow. This includes Pantone color selections for the firm’s logo and secondary or tertiary accent colors, typeface and/or specific fonts, and overall image style.

Keep Your Message Clear

While many different elements can impact a brand identity, the three most important include image style, color, and typeface. Each of these elements sends a clear message to potential clients and should be thought about carefully.

  1. Images: Unless your firm specializes in criminal defense, most potential new clients in search of a lawyer will have never set foot inside of a courtroom. So why are images of gavels, courthouses, and scales of justice still so prominent in lawyer marketing? Instead of using something trite, when choosing imagery for your firm’s marketing, focus on potential clients. What experience have they been through that led them to you? Make sure it’s something they can relate to while clearly conveying your area of law and what makes your law firm different.
  2. Color: Think about the colors used by your firm. Different colors are subconsciously associated with different reactions or emotions. For instance, red captures attention while purple evokes royalty. Blue is the most commonly used color in corporate identity – which can make it a safe but overused color. Think about all of the law firms you know that use blue as the key color component of their logos – don’t you want to stand out?
  3. Typeface: Most everyday fonts fall into two categories: serif and sans serif. Serif fonts include a small line at the end of characters, like Times New Roman or Palatino. Sans serif fonts lack these lines or strokes, such as Helvetica or Arial. Serif fonts are generally considered more traditional, and the feelings most associated with serif typefaces include formal, confident, and established. Sans serif fonts, on the other hand, are considered more modern, with a look that is direct and precise. Make sure the typeface used in your firm’s brand identity matches the overall identity of the firm.

While these items may seem inconsequential, together they form a powerful representation of the law firm’s identity and should be taken seriously. Crafting a brand identity and setting brand standards for your law firm is crucial for overall marketing success. Find out how we can help develop your law firm’s brand identity today.

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Six Client Development Myths That Hold Most Associates Back

Originally published by Cordell Parvin.

Over all these past 12 plus years that I have coached lawyers, the most familiar refrain I have heard has been:

I wish I had started my client development efforts earlier

Why have so many lawyers waited until they became partners, when the pressure was on them to bring in business?

I say there are what I call client development myths.Here are the most common myths I see and my response:

  1.  You either have it (skills to develop business) or you don’t. I can tell you from my personal experience that I did not naturally have it. Knowing that drove me to work at it and develop my skills. So, you can learn to successfully attract clients if you are open to ideas and willing to work at it.
  2. Just do good work, get a Martindale A-V rating and wait for the phone to ring. I was told that when I was an associate. The problem is there are thousands of lawyers in your city or state who do good work. Client development is a contact sport. It is about building relationships and adding value beyond the good work
  3. I’m “too young, and inexperienced to…” You are never too young to start learning client development skills. You may not bring in business right away, but that is ok. This is a marathon not a sprint, you are building towards doing so later. If you wait until you are a partner to start making the efforts, you may have the same learning curve.
  4. You have to be an extravert and know how to work a room. I know lawyers who are very outgoing and do poorly because they talk about themselves and do not listen. I know introverted lawyers who ask great questions and listen who do very well.
  5. You have to “ask” for business. Some lawyers are good at asking for business. Others who ask come across as needy or greedy. I was never comfortable asking for business. Instead, I tried to be the “go to” lawyer who would be sought by clients in my target market.
  6. Associates in big firms do not need to learn client development. At the very least, associates in big firms with institutional clients need to learn about those clients and find ways to become more valuable to those clients. In the current economy institutional clients are no longer loyal and they are looking more for value in their outside legal expenditure. As a result, learning the skills to get new clients is more important today than before.

I shared much more with the associates I coached. If you are interested, you can find some of my thoughts in my e-book: Client Development in a Nutshell.

The post Six Client Development Myths That Hold Most Associates Back appeared first on Cordell Parvin Blog.

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Fact Sheet: Estimating Potential Capital Gains Tax Liability

Originally published by tiffany.dowell.

Capital gains tax liability can be a major issue for agricultural landowners that who are looking to sell property.  Determining the value on which taxes may be figured can be difficult, particularly when the land was inherited decades ago and the basis may not be known.  With this in mind, Dr. Terry Griffin, Assistant Professor of Ag Economics at Kansas State Univeristy and I put together a fact sheet to help landowners with this issue.

Capital gains taxes are paid on the increase in value over time of certain assets.  For agricultural producers, land is a common example of where capital gains taxes may be owed if the property is held for a period of time and then sold.  Generally, capital gains taxes are owed on the difference between the value of the asset at the time it is sold, less the value of the asset at the time of purchase.  For example, if you purchased property in 1950 for $100/acre and you sell it in 2017 for $1,000/acre, your capital gains tax liability would be based on the $900 increase in value.

One tool that can be helpful to reduce the amount of capital gains taxes owed is the concept of “stepped up basis,” whereby a landowner who inherits property is allowed to calculate future capital gains taxes on the value at the time of inheritance, rather than the time of purchase.  This scenario often greatly reduces the capital gains tax liability.  Using the above example, assume your parents purchased land in 1950 for $100/acre.  Then you inherited the land in 1980.  You are considering selling the land today and the appraised value is $1,000/acre.  Rather than owing taxes on the $900 value difference, the tax liability would be based on the difference between the current value of $1,000/acre and the value of the land in 1980.

So what was the value of land in 1980?  That’s where this fact sheet and the tables that Dr. Griffin put together come in.  These tables will allow landowners to ballpark the value of land at the time it was inherited, and, therefore, determine what the stepped-up basis might be for capital gains tax purposes.

To view the fact sheet, click here.

To listen to a radio interview we did discussing this concept and the fact sheet, click here.


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Wednesday, December 13, 2017

Stories of Recovery: ‘Good Enough Just by Being Me’

Originally published by Guest Blogger.

I remember the day I was accepted to law school. I was full of promise and excitement. That is, until I got to orientation.

I was used to being one of the smartest kids in the room. But now I felt outranked and overwhelmed at every turn. After my first year, I was embarrassed that I had a solid C average — not the straight A’s I was used to. My grades had always been what made me feel good about myself. If I wasn’t the “one who had it all together,” then who was I?

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

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