Tuesday, January 31, 2017

Texas Courts Structure and Statistics…

Originally published by Roger G Jain & Associates, P.C..

The existing Texas court system was established by an amendment to the state Constitution in 1891.  Below is a description of the basic hierarchal structure of the court system.


  • Supreme Court: The Texas Supreme Court is the highest state appellate court for civil cases. The Supreme Court is made up of nine judges, referred to as “justices,” who review the decisions of lower courts.
  • Court of Criminal Appeals: The Texas Court of Criminal Appeals is the highest state appellate court for criminal cases. The Court of Criminal Appeals consist of nine justices who review criminal decisions made by lower courts, post-conviction habeas corpus petitions, and criminal cases involving the death penalty.
  • Courts of Appeals: Texas has 14 Courts of Appeals that hear both civil and criminal cases on appeal from the trial courts. Each of the Court of Appeals has at least three justices.  There is currently a Court of Appeals in each of the following cities:  Amarillo, Austin, Beaumont, Corpus Christi/Edinburg, Dallas, Eastland, El Paso, Fort Worth, San Antonio, Texarkana, Tyler, Waco, and two courts in Houston.
  • Trial Courts: There are several levels of trial courts in Texas that have jurisdiction over different types of cases. The Government Code provides for courts in different counties to have slightly different jurisdiction, but each type of court generally hears the items listed below.
    • District Courts: There are 507 Districts Courts that serve as the trial courts of general jurisdiction. Generally speaking, District Courts hear felony criminal cases and misdemeanors involving official misconduct; divorces; slander or defamation; contested elections; disputes over land titles or enforcement of liens on land; and suits on behalf of the State for penalties, forfeitures and escheat.
    • Constitutional County Courts: The state Constitution provides for a county court in each of the 254 counties in Texas. Constitutional County Courts have jurisdiction over civil cases not exceeding $10,000 in damages, as well as uncontested probate matters.     
    • Statutory County Courts: Statutory County Courts were created by the Texas Legislature to increase judicial efficiency. These courts have overlapping concurrent jurisdiction with Constitutional County Courts and District Courts where the amount in controversy does not exceed $200,000. More specifically, Statutory County Courts hear workers’ compensation appeals, eminent domain cases, probate and family law matters.
    • Probate Courts: Probate Courts were also created by the Texas Legislature to specifically handle probate proceedings. Not all counties utilize statutory Probate Courts, however, this court will have original jurisdiction of probate matters if such a court does exist in that county.

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Warning: If You Have a New Car, The Spare Tire May Not Be There

Originally published by robertslawfirm.

In an attempt to meet new regulatory standards for fuel efficiency, U.S. automakers have been quietly eliminating an important piece of safety equipment in new model cars: the spare tire. Unfortunately, most drivers won’t know it until they need it. Most car manufacturers now offer spare tires as an option, with prices ranging from $100 for basic models to more than $350 for pricier cars. GM said that the requirement to add low tire pressure warning sensors in all models manufactured after 2006 has significantly reduced the risk of drivers being stranded by a flat tire, as has the prevalence of outfitting new cars with “run flat” tires. Whether your car has a spare tire or not, following these safety tips for maintaining tires gives you a better chance of never needing it: Check and adjust tire pressures monthly Inspect tires monthly for signs of abnormal wear Rotate tires every 6,000 miles or according to owner’s manual Make sure tires are properly balanced Make sure steering and suspension is in proper alignment Never overload tires Avoid overheating tires Replace tires as needed Select the right tires for your vehicle and driving environment Install tires in complete sets or matched side-to-side pairs If you or a loved one has suffered an injury, the experienced personal injury legal team at Roberts & Roberts is here to help with compassionate, aggressive representation. Please call 800-248-6000 or contact us for a free consultation.

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Beware of fake text message evidence

Originally published by Michelle O'Neil.

fake textThe hashtag #altfacts has become popular recently after a Trump spokeswoman offered “alternative facts” to a news report. Many assert the alternative facts are, actually, falsehoods.

Texas divorce lawyers face “alternative facts” frequently. Sometimes, people interpret a situation differently, making the alternative facts more about their perception, not factual falsities.

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Can Handing Over a Driver’s License App Entitle Police to Search Your Phone?

Originally published by Peggy Keene.

Iowa has become the first state to actively pursue the use of electronic drivers’ licenses on smartphones. Announced in 2015, Iowa’s Department of Transportation began […]

The post Can Handing Over a Driver’s License App Entitle Police to Search Your Phone? appeared first on Klemchuk LLP.

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I’m a grandparent, can I sue for visitation of my grandchild?

Originally published by Guest and Gray Law Firm.

Can I ask a Texas Court for visitation rights for my grandchild?

Texas allows grandparents to gain court-ordered visitation of grandchildren in very limited circumstances. The reason that the statute allowing grandparent visitation is so limited is because the United States Supreme Court has decided that parents having the ability to make decisions about raising their children is a fundamental right that should not be interfered with by courts. Basically, in the United States we want parents to be able to decide whether their kids get to see their grandparents or not even if the parents don’t seem to have a great reason for keeping their kids away from their grandparents. A parent’s right to decide how their kids are raised is more important under the law than a grandparent’s desire to see their grandchildren.

How does Grandparent visitation work in Texas?
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Don’t Fumble Your Future Away Just Because it’s Super Bowl Sunday

Originally published by Rosenthal & Wadas.

Gathering friends and family around the TV on Super Bowl Sunday is a fan favorite in America. It is one of the most widely watched national events, with millions tuning in time to watch. With the increased drinking that occurs…
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Family Finance: Tips For Calculating A Fair Child Support Amount

Originally published by Robert Kraft.

Family Finance Tips For Calculating A Fair Child Support Amount

No matter how two parents may feel about each other, they are jointly responsible for raising their child. In most states, the law says that a noncustodial parent must provide child support to the custodial parent to provide for the child’s basic needs. Support payments may also be used to pay for educational or entertainment expenses a child may accrue. How do you know how much you should pay or expect to be paid to raise a son or daughter?

Most States Have Guidelines Used To Create Support Orders

Typically, a state will have guidelines that a judge must use to create a child support order. These guidelines take into account the incomes of both parents, whether a parent is supporting another child and whether a child support payment could create a hardship for the person making it. Once an order is issued, it is binding on both parties, but a child support order may be modified in the future if circumstances change.

An Attorney May Help Parents Come To An Agreement On Their Own

As long as it meets the best interests of the child, parents can create a support agreement that works for them. In some cases, it means that a parent pays more or less than what state guidelines call for, but it may be beneficial for noncustodial parents because they won’t face automatic penalties for failure to pay or may be able to contribute in other ways. An attorney, like the professionals at Divorce Matters, may be able to help broker a child support agreement outside of court with minimal stress or drama.

Time Is Just As Important As Money

Parents should realize that spending time with a child is just as important as spending money on the child. Therefore, a noncustodial parent should seek as many parental rights as possible, which may include visitation or the right to contact a child by phone or email. Research has shown that children who have access to both parents in their lives have fewer emotional or behavioral problems as adults. It also shows a child that adults can put their issues aside for the benefit of others.

In a divorce case, the interests of the child are held above the interests of either parent. Therefore, those who have children will need to come to an agreement with the child’s other parent that helps ensure that the child’s needs are met. This is true even if it means that they have to make personal sacrifices to do so.

Author Bio: Emma Sturgis is a freelance writer living in Boston, MA. When not writing, she enjoys reading and indoor rock climbing. Find her on Google+


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States Banning the New MacBook Pro for the February Bar Exam

Originally published by lawschool academicsupport.

A number of states are banning the use of the new MacBook Pro with Touch Bar for the February bar exam because of issues with fully disabling the touch bar functions when using ExamSoft. ASPers at law schools may want…

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SCOTX confirms oroperty owners must only protect against crime risks that are foreseeable and unreasonable

Originally published by Carrington Coleman.

UDR Texas Properties, LP v. Petrie
Supreme Court of Texas, No. 15-0197 (January 27, 2017)
Justice Brown (Opinion linked here)
Justice Willett (Concurrence linked here)
Kelli Hinson

Alan Petrie was shot and robbed in the parking lot of his friend’s apartment complex at 2:00 one morning. He sued the apartment complex, claiming it had a duty to protect him from a foreseeable risk of crime. The trial court held the apartment complex had no duty to protect Petrie, but the Houston Court of Appeals disagreed, concluding that Petrie produced evidence the apartment complex knew or should have known of a foreseeable and unreasonable risk of harm based on the five factors set out by the Texas Supreme Court in Timberwalk. The Supreme Court disagreed, noting that the Timberwalk factors go to foreseeability only and that Petrie also had to show the risk of crime was unreasonable. Once foreseeability is established, “the parameters of the duty must still be determined,” which is addressed by the element of unreasonableness. Unreasonableness “turns on the risk and likelihood of injury to the plaintiff … as well as the magnitude and consequences of placing a duty on the defendant.” A risk is therefore unreasonable only when “the risk of a foreseeable crime outweighs the burden placed on property owners—and society at large—to prevent the risk.” Because Petrie did not produce any evidence concerning the burden on the apartment complex to make the property safe and whether that burden was reasonable, the Court reversed and rendered judgment against him.

Justice Willett, joined by Justice Boyd, concurred in the judgment but wrote separately to address a problem that has “long vexed him” in these cases, which is that including elements of foreseeability and reasonableness in the trial court’s determination of “duty” seems to intrude on questions of negligence and proximate cause, which have traditionally been the province of the jury. Justice Willett did not purport to have an answer for his concerns, but rather wrote his concurrence “only to kindle further study from the bench, bar, and academy.”

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Herding Fish

Originally published by David Coale.

The “Gulf Council” manages fisheries in the federal waters of the Gulf of Mexico.With respect to red snapper, its statutory grant of authority requires it to establish “seprate quotas for recreational fishing . . . and commercial fishing.” A group of private anglers complained that the authority to set those two quotas precluded the ability to set a quota for fishing from charter vessels. The Fifth Circuit disagreed, finding that neither the canon that “expressing one item of a commonly associated group or series excludes another left unmentioned,” nor that “a specific statute prevails over an inconsistent general statute” compelled a ruling in favor of the anglers: “Amendment 40 does not create a separate quota for charter fishing; it subdivides the recreational sector into private and charter components.” Coastal Conservation Association v. U.S. Dep’t of Commerce, No. 16-30137 (revised Jan. 26, 2017).

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Third Circuit Reverses District Court on Application of Work-Product Privilege for Email to Return Preparer

Originally published by Jack Townsend.

In In re: Grand Jury Matter #3, ___ F.3d ___, 2017 U.S. App. LEXIS 1498 (3d Cir. 2017), here, the Third Circuit in an unusual procedural setting reversed a district court holding that an email turned over by an accountant pursuant to a grand jury subpoena was subject to the crime-fraud exception to the work-product privilege.

The Unusual Procedural Setting – Appeal by Target Rather than Party Compelled Not Mooted by Indictment Because Grand Jury Ongoing.

The grand jury was investigating an individual, pseudonymed as John Doe, for potential fraud.  (The precise nature of the potential fraud is set forth in the opinion, but not important for this summary.)  Part of the fraud related to ownership of a company.  In the events leading to the possible fraud, Doe claimed he did not own the company.  However, Doe had previously filed tax returns indicating that he did own the company.  Doe received an email from his attorney indicating steps needed “to correct his records so that they reflect that the business associate, not Doe, owned Company A since 2008.”  Doe forwarded this email to his accountant.  The accountant retained the email in his files.  Doe never amended the returns or otherwise corrected the information as suggested in the email.

Pursuant to a grand jury subpoena, Doe’s accountant delivered his copy of the email to the grand jury.  The accountant’s attorney shortly thereafter asked that it be returned as it was within the work-product privilege (the attorney said it was not for legal advice).  Based on the request, the government attorney refrained form presenting it to the grand jury and asked the District Court for permission to present it to the grand jury, on the ground that Doe had waived the privilege (presumably by showing it to the accountant).  The District Court ruled that (i) the attorney-client privilege did not apply because Doe did not send the email to the accountant to obtain legal advice, (ii) the work-product privilege (called, or miscalled, the attorney work-product privilege) did apply because the accountant was not an adversary, and (iii) the crime-fraud exception applied.

Immediately after the order, Doe appealed.  While the appeal was pending, the email was shown to the grand jury.  And, while the appeal was pending, the grand jury indicted Doe and then issued a superseding indictment.

Through the appeal and rehearing up until the decision discussed here, the grand jury continued its investigation of Doe with the possibility of returning a superseding or even a new indictment.

The Third Circuit first issued an opinion holding that it lacked jurisdiction.  Doe sought rehearing.  This opinion is the opinion on rehearing.

So, the first question addressed in the new opinion was whether the Court of Appeals had jurisdiction.  The panel held that the Court of Appeals did have jurisdiction.  Although not a perfect fit, the Court of Appeals applied by analogy the rule in Perlman v. United States, 247 U.S. 7 (1918), that permits a party other than the party compelled (here the party compelled was the accountant) to contest an order to comply with a grand jury subpoena where the party compelled may not have sufficient interest to follow the normal procedure of refusing to comply and suffering a contempt order in order to obtain appellate review.

And, the Court of Appeals held, the case was not mooted by the indictment and superseding indictment, because grand jury consideration was proceeding.  The Court reasoned:

To be sure, an intervening indictment can (and often will) moot an interlocutory appeal. For instance, through this appeal Doe asks us to prevent the grand jury from relying on an email that he argues is confidential. If after the indictment the grand jury investigation had ended, any harm from exposure to the email already would have occurred. It would make sense in those circumstances to hold off until after the criminal proceedings are over before determining whether the grand jury proceeding were tainted.

But those are not our facts. The grand jury investigation continues, even after the new grand jury saw the email and issued a superseding indictment. Although the Government contends that the “grand jury easily can continue investigating questions relating to the ownership of [Doe’s company] without reexamining the email or considering any charges related to the email,” it may yet return another indictment based on the issue of the company’s ownership—the very subject of that email. Gov’t 28(j) Letter (Dec. 29, 2016). The grand jury cannot erase from its memory an email about Company A’s ownership while evaluating new charges relating to that issue. And though the Government contends it currently “has no plans” to put this email to further use during the continuing investigation, there is no guarantee that its plans will not change. Pet. Reh’g Opp’n at 4. Therefore, in our case, as in Johanson, these two indictments “did not bring the grand jury’s proceedings to [their] conclusion,” so there is still potential harm we can prevent. Johanson, 632 F.2d at 1040. The purpose of this appeal thus remains the same as when it was first filed: deciding whether an email that was inadvertently disclosed may be used as part of an ongoing grand jury investigation when that disclosure plausibly violates the attorney work-product privilege.

As long as we had jurisdiction at the outset, Doe’s case is guided by our analysis of the Government’s appeal in Johanson and by our decision in Fattah. As in those cases, the indictment and superseding indictment did not destroy jurisdiction that properly existed beforehand. n5 If the controversy is live enough that the case is not moot, we should decide it.
n5 The Government also contends this appeal is moot for an unrelated reason. It argues that Doe has waived attorney-client protections because his pretrial memorandum indicates that he might rely on the advice-of-counsel defense. See Travelers Cas. & Sur. Co. v. Ins. Co. of N. Am., 609 F.3d 143, 164 (3d Cir. 2010) (recognizing that attorney-client confidentiality protections may be waived if the client asserts a defense based on his reasonable reliance on the attorney’s advice) (citation omitted). We disagree. That Doe’s trial strategy has changed given the development of this case does not mean he has waived the issues he continues to challenge on appeal.

Crime-Fraud Exception Does Not Apply Because No Act in Furtherance.

The panel held that the element of furtherance of the fraud was lacking here, reasoning (bold-face added by JAT):

Having concluded that our appellate jurisdiction continues, we now address the merits and hold that the crime-fraud exception to the attorney work-product doctrine does not apply to the email at issue. One of the exception’s two requirements—the use of the communication in furtherance of a fraud—is lacking. The use-in-furtherance requirement provides a key safeguard against intrusion into the attorney-client relationship, and we are concerned that contrary reasoning erodes that protection.

Without the crime-fraud exception allowing the Government to show it to the grand jury, the email from Doe’s lawyer is protected by the attorney work-product doctrine. That doctrine (often referred to as a privilege from or exception to disclosure), which is a complement to the attorney-client privilege, preserves the confidentiality of legal communications prepared in anticipation of litigation. Shielding work product from disclosure “promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.” Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414, 1428 (3d Cir. 1991). Though Doe waived the attorney-client privilege by forwarding the email to his accountant, the document still retained its work-product status because it was used to prepare for Doe’s case against those suing him. See Id.

Yet work-product protection, though fundamental to the proper functioning of the legal system, is not absolute. As relevant here, the crime-fraud exception operates to prevent the perversion of the attorney-client relationship. It does so by allowing disclosure of certain communications that would otherwise be confidential. “[A] party seeking to apply the crime-fraud exception must demonstrate that there is a reasonable basis to suspect (1) that the [lawyer or client] was committing or intending to commit a crime or fraud, and (2) that the . . . attorney work product was used in furtherance of that alleged crime or fraud.” ABC Corp., 705 F.3d at 155.

The Government can readily satisfy the first requirement. Though ultimately it will be up to a jury to determine whether Doe committed fraud, there is at least a reasonable basis to believe he did. Even setting aside the email, the Government has a recording where Doe allegedly brags about defrauding the class action plaintiffs in the Indiana suit. He purportedly admits in that recording to telling his associate—the same one who was supposed to have already purchased Company A—”I’ll pay you ten grand a month if you will step up to the plate and say that you [own the company] and upon the successful completion of the lawsuit [I’ll] give you fifty grand.”

This evidence is strong, but it is not sufficient by itself to pierce the work-product protection. We have been clear that “evidence of a crime or fraud, no matter how compelling, does not by itself satisfy both elements of the crime-fraud exception.” In re Chevron Corp., 633 F.3d 153, 166 (3d Cir. 2011). Rather, the second requirement—use in furtherance—exists for the same reason that certain conspiracy statutes require proof that a defendant engaged in an overt act to further the crime. In both settings we want to make sure that we are not punishing someone for merely thinking about committing a bad act. Instead, as Justice Holmes noted in the conspiracy context, we ask for evidence that the plan “has passed beyond words and is [actually] on foot.” Hyde v. United States, 225 U.S. 347, 388, 32 S. Ct. 793, 56 L. Ed. 1114 (1912) (Holmes, J., dissenting).

To illustrate, if a client approaches a lawyer with a fraudulent plan that the latter convinces the former to abandon, the relationship has worked precisely as intended. We reward this forbearance by keeping the work-product protection intact. If, by contrast, the client uses work product to further a fraud, the relationship has broken down, and the lawyer’s services have been “misused.” In re Grand Jury Investigation, 445 F.3d 266, 279 (3d Cir. 2006). Only in that limited circumstance—misuse of work product in furtherance of a fraud—does the scale tip in favor of breaking confidentiality.

Here the only purported act in furtherance identified by the District Court was Doe forwarding the email to his accountant. If he had followed through and retroactively amended his tax returns, we would have no trouble finding an act in furtherance. Even if Doe had told the accountant to amend the returns and later gotten cold feet and called off the plan before it could be effected, there might still be a case to be made. That is because the Government “does not have to show that the intended crime or fraud was accomplished, only that the lawyer’s advice or other services were misused.” Id. (quoting In re Public Defender Serv., 831 A.2d 890, 910 (D.C. 2003)). 

But none of that happened. Doe merely forwarded the email to the accountant and said he wanted to “discuss” it. There is no indication he had ever decided to amend the returns, and before the plan could proceed further the lawyer told the accountant to hold off. Thus Doe at most thought about using his lawyer’s work product in furtherance of a fraud, but he never actually did so. What happened is not so different than if Doe merely wrote a private note, not sent to anyone, reminding himself to think about his lawyer’s suggestion. The absence of a meaningful distinction between these scenarios shows why finding an act in furtherance here lacks a limiting principle and risks overcoming confidentiality based on mere thought.

The District Court gave two reasons for its conclusion that Doe used his lawyer’s work product in furtherance of a fraud. First, it suggested that Doe, in forwarding the email to his accountant, “took [his lawyer’s] advice” about amending the tax returns. J.A. 16. It is not clear what the Court meant by this because, as it acknowledged, Doe “never followed through with amending” the returns. Id. Second, the Court said that the failure to follow through “is of no consequence” as long as Doe intended, as of the time he forwarded the email, to amend the returns. Id. This is no doubt an accurate statement of the law. See ABC Corp., 705 F.3d at 155. The problem is that there is simply no record evidence suggesting that Doe had ever made up his mind.

None of this should suggest that, in the event Doe is convicted (based on the superseding indictment) and appeals, he should automatically get a new trial because the Government used the protected work product. That is because the Government could avoid a retrial by showing the error was harmless. Bank of Nova Scotia v. United States, 487 U.S. 250, 255-56, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988). We express no opinion on that question.

JAT comments:

1.  I blogged on the ABC Corp. case cited so prominently in the opinion.  See Third Circuit on Crime-Fraud Exception to Attorney-Client and Work-Product Privileges (Federal Tax Crimes Blog 12/12/12), here.  The ABC Corp. case, In Re: Grand Jury John Doe 1; John Doe 2; ABC Corporation, 705 F.3d 133 (3d Cir. 12/11/12), is here.

2.  Note the Third Circuit’s comments (which I bold-faced) about a different result if the Doe and/or the return preparer had acted.

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“Grandma, What Big Teeth You Have:” Restoration Clauses in Commercial Office Leases Can Really Bite!

Originally published by Axel Lindholm.

Experienced Business Litigation Attorney Assisting with Commercial Office Leases in Sugar Land, Texas and the Surrounding Area

Most prospective commercial office tenants endlessly pour over the financial implications of the proposed lease agreement. How much is the monthly rental? Who is responsible for utilities? What costs are associated with up-fitting the space to meet the tenant’s requirements? All too often, however, the soon-to-be tenant fails to consider some of the more innocuous paragraphs in the lease draft, particularly those that relate to the surrender of the premises. Restoration clauses – those little provisions that require the tenant to restore, at the landlord’s request, the premises back to the condition it was prior to the lease – can be as sharp as wolves’ fangs.

It is one thing to spend money to outfit an office arrangement. It is another to spend additional sums to tear it out.

Why the Worry?

Some tenants think, “Why the worry? Won’t the new tenant jump at the chance to take over the improved premises?” The answer: “Not necessarily.” Tastes in office space have radically changed in recent years. Formerly, office space was often outfitted with multiple perimeter private offices that were filled with expensive paneling and built-in shelving. The “open concept” that is the rage in residential housing has spilled over to the commercial world.

No More Corner Offices

Now, many firms want broad, open space within which special cubicle arrangements can be installed. These arrangements are particularly attractive for businesses that allow workers to work remotely on some days. A dedicated office is now often an empty office. If the tenant that follows your firm desires an open concept and if your lease contains a restoration clause, you might very well need to get out your checkbook when you vacate the premises.

What Can a Prospective Tenant Do?

There are a number of ways that prospective tenants can try to protect themselves. For example, a prospective tenant can:

  • Negotiate hard to have the restoration clause removed from the lease agreement. If the landlord insists that it remain, try negotiating a maximum cost that you, the tenant, will be forced to pay at the end of the lease to restore the premises. If the landlord won’t agree, perhaps you should look for space elsewhere.
  • Talk with officer outfitters and contractors to determine if there might be ways to meet your needs and achieve your own layout goals in such a way that do not require expensive tear-down at a later date. Can you be flexible in your own plans in order to avoid costs at the surrender of the premises?

Lease Negotiations Involve Complex Legal Issues

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All too many businesses neglect to contact experienced legal counsel when they negotiate commercial lease space. Recognize that going it alone may be “penny wise and pound foolish.” Restoration clauses and other “innocuous” provisions can reach back to bite you later. Spending the time and the money to negotiate the best terms possible can work to your advantage. The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to business clients. We represent clients in all types of commercial real estate transactions and we have extensive experience in litigation, if that becomes necessary. We pride ourselves not only upon our professionalism, but also upon our client service. We return phone calls within one business day. We keep clients informed. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.

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Monday, January 30, 2017

Will New Nursing Home Regulations Solve All Issues?

Originally published by Gerry W. Beyer.

Recently, the Centers for Medicare and Medicaid Services issued a broad revision of nursing home regulations, which began taking effect in late November 2016, and will continue to be phased in this year through 2019, making them the first updates…

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How Accurate is TV When it Comes to Portraying Justice and the Law?

Originally published by Robert Kraft.

How Accurate is TV When it Comes to Portraying Justice and the Law

The subject of justice and law have been portrayed in many different ways on television. Each show gives you different characters and interesting cases. There comes a time, though, when some might wonder just how accurate these shows are in comparison to the real world. The following are a few examples that might shed light on this question.

Alley McBeal

Alley McBeal ran from 1997 to 2002 and starred Calista Flockhart. The show was considered a comedy-drama that centered around a lawyer in a fictional law firm in Boston. The cases were mostly plot devices, and most lawyers do not take the show too seriously, but there is one aspect of the show that could be considered a hot topic in law: female lawyers and the way they choose to dress when practicing law. Ally McBeal was put in jail because she would not stop wearing short skirts. Likewise, Marcia Clark—the famous lawyer in the OJ Simpson trial—was also criticized for everything she wore.


It was only a matter of time before the comic book genre blended law and order into storytelling. Daredevil follows a disabled and brilliant lawyer who is also a superhero. The show switches from vigilant work to the law. There is not much about the show that could be considered realistic except for its portrayal of lawyers down on their luck, though, that might be a little exaggerated.

Law and Order: SVU

Law and Order: SVU is considered, by some lawyers, to be a more serious show about law, but it still takes a few liberties here and there. For one, all those dramatic scenes and heated arguments are not usually seen in reality. In real life, there is much more paperwork, and the lawyer focuses on winning the case rather than anything else. Real lawyers, like Thomas A Coletta, deal with sex crimes just like we see on the show but does so with a little less drama and more law. Not only that, but most of SVU’s cases are solved within one episode and, as many of us know, that time frame is very unrealistic.

Drop Dead Diva

Drop Dead Diva is definitely a stretch when it comes to television about law and order. This show centered around the idea of a woman who passed away and somehow enters the body of another woman who happens to be a lawyer. There are angels in the story, so it could definitely be called fantastical. One thing that this show used a few times is the ability of the protagonist to find additional evidence that cops did not find. This could happen, yes, but most likely not as often as the show portrays.

Although most of what we see on TV isn’t real, it’s interesting to see how it mimics the real life of lawyers. Yet, it’s important for us to note that it’s a lot more serious work than what the entertainment industry may give it credit for.

Author Info: Hannah Whittenly is a freelance writer and mother of two from Sacramento, CA. She enjoys kayaking and reading books by the lake. You can find her on Twitter.


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When you have steady eye contact, it’s hard to think (even with  friends)!

Originally published by Rita Handrich.

In 2015, we wrote a one of our combination (“tidbit”) posts that included a bit of information on how extended eye contact can cause hallucinations. As it turns out, it also makes it hard to think (which seems reasonable if you are having hallucinations). The researchers we are covering today say that maintaining eye contact can (essentially) deplete your mental bandwidth since it uses the same mental resources we call upon to perform complex tasks. Not to mention it can be awkward and uncomfortable to have unbroken eye contact—even with someone we know well.

Apparently, we only maintain eye contact (in Western countries) between 30% and 70% of a conversation (with highly invested people maintaining more eye contact). And, in other cultures, the researchers say, there are very different norms for eye contact during conversations that can vary quite dramatically depending upon who is talking to whom. For this experiment, the researchers asked participants to make “eye contact” with a person’s face on a computer screen. And even with such a “false” representation of eye contact, they found differences.

Specifically, they found that when given a cognitively demanding task, the participants were prone to break their eye contact with the face on the computer screen in order to consider their answer to the task.

The researchers think eye contact somehow takes up our mental energy and so (in order to think) we break eye contact to free up extra brain-power to focus on our answer to a thought-provoking question.

From a litigation advocacy perspective, it’s an interesting study. Witnesses often ask how long they should steadily gaze at jurors during their testimony and we’ve blogged about that before too (based on another research study). Here’s what we found from that 2016 study:

On average, the close to 500 participants were most comfortable with eye contact that lasted slightly over three seconds. The majority preferred a duration of eye contact between two and five seconds and no one liked eye contact of less than a second or longer than nine seconds. We conclude that less than a second is too furtive, and longer than 9 seconds is intolerably intrusive. One problem with the study was that it used filmed clips rather than actual, live interactions but it is an approximate guide to “normal” eye contact versus “creepy” eye contact.

While you may want to take in the recommendations above for comfortable eye contact, this study also seems to give permission to break eye contact when thinking about your response to a question and maintaining your credibility. It’s a good strategy to teach in witness preparation for cross-examination. Just remember to re-initiate eye contact once you have retrieved or formulated your response!

Kajimura, S., & Nomura, M. (2016). When we cannot speak: Eye contact disrupts resources available to cognitive control processes during verb generation Cognition, 157, 352-357 DOI: 10.1016/j.cognition.2016.10.002



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From Russia with Love: A New Defend Trade Secrets Act Case

Originally published by Zach Wolfe.

Do Northern California federal courts have jurisdiction over every Gmail user who emails confidential information?

The answer is no, but give points for creativity to the plaintiff in OOO Brunswick Rail Management v. Sultanov, who at least made the argument.  More about that later.

If you like trade secrets cases, you’ve got to love the recent Brunswick case. It has everything. A Russian company. A renegade employee emailing confidential company documents to his personal Gmail account (allegedly). And something every trade secret litigation nerd has been waiting for: an application for an ex parte seizure order under the new federal Defend Trade Secrets Act.

Back in May 2016, then-President Obama signed the Defend Trade Secrets Act (DTSA). As I reported here, the chief practical effect of the DTSA was to give plaintiffs in trade secrets cases the option of suing in federal or state court. Unless you’re a trade secrets litigator like me, that’s pretty boring.

But the sexy part of the DTSA was the new ex parte seizure remedy. “Ex parte” is a Latin phrase that means “you don’t have to tell the judge how crappy your case is.” But seriously, it means only one side presents its case to the judge. The DTSA allows a judge to order federal marshals to seize a person’s property—typically we’re talking about a computer or smartphone—without notice to that person.

This caused some serious handwringing in the legal community. We have an “adversary” system of justice that guarantees due process—at least for now—so lawyers worried about potential abuse of the ex parte seizure remedy.

I agreed with critics who saw no real need for a federal trade secrets statute, but I wasn’t too concerned about a wave of ex parte seizure orders. The DTSA has strict requirements for such orders, and I predicted most federal judges would not grant such an extreme remedy when an ordinary temporary restraining order would do.

A test case for the DTSA’s ex parte seizure remedy

Brunswick is one of the first cases to test my theory. The complaint presented a fairly ordinary misappropriation of trade secrets case, but with a Russian twist:

  • Brunswick is a Russian company that leases railcars to large corporate clients in Russia. After beginning a process to restructure its debt, Brunswick sued its former CEO in a confidential arbitration.
  • A Russian-American named Sultanov went to work for Brunswick and signed a typical confidentiality agreement. Essentially, Sultanov agreed not to disclose Brunswick’s confidential information, that all of Brunswick’s internal information is confidential, and that he would return all Brunswick confidential information on request.
  • Sultanov started acting suspiciously: taking calls one floor up from his office, asking a lot of questions about the debt restructuring, and even coming to work on the weekends. (Big law firm associates take note.)
  • Sultanov emailed confidential Brunswick documents from his work email to his personal Gmail account. He then deleted the emails from his Brunswick account and emptied his “trash” folder. The emailed information could be highly damaging to Brunswick’s debt restructuring negotiations with its creditors.
  • Phone records showed Sultanov repeatedly calling a Brunswick creditor involved in the restructuring.
  • When confronted, Sultanov admitted sending the emails but refused to return his company-issued mobile phone and laptop.

And my favorite allegation from the complaint:


“Extraordinary steps” including “locking its doors.” Wow. I knew Russia had nuclear weapons, but I didn’t realize it now has access to modern door-locking technology.[1]

So far, these facts present an interesting, but typical, trade secrets case against a former employee.[2] Emailing company files to your personal Gmail account on the sly? Come on, man! That’s so last decade. It’s more obvious than getting down on the floor and sticking a USB drive in your PC tower.

But if you’re Brunswick’s lawyer, where do you sue Sultanov? How can you get his computer and phone back quickly? And how can you do it without giving him a chance to tell his side of the story?

It’s time to get creative.

Recent trade secrets case tests two novel theories

First, a little background for my non-lawyer readers. To sue someone in federal court, you need both “subject matter” jurisdiction and “personal” jurisdiction. Subject matter jurisdiction means the court has jurisdiction to hear the type of claim you’re making. Personal jurisdiction means that the court has jurisdiction over the person you’re suing.

Personal jurisdiction is complicated, but in a trade secrets case, it boils down to this: you need to show that the person you’re suing took or received the alleged trade secrets in the state where you’re suing him (as I explained here).

Brunswick came up with the brilliant idea of suing Sultanov in federal court in California for violating the Defend Trade Secrets Act. Subject matter jurisdiction? Check.[3]

Personal jurisdiction? That was a little harder. Sultanov’s sneaky shenanigans all took place in Russia, right?

Not exactly. If you had Encyclopedia Brown on the case, he’d spot a detail you might have missed: Sultanov emailed Brunswick’s confidential information to his Gmail account. And where is his gmail account located? You guessed it: Google headquarters in Silicon Valley.


Brunswick argued in its brief that Sultanov was subject to personal jurisdiction in the Northern District of California because he emailed the trade secrets at issue to his Gmail account hosted by Google. Not only that, Sultanov went to high school and college in California and “certainly would be aware that Google is based in California and that his intentional use of Gmail would have effects in California.”

Like I said, points for creativity.

Judge denies ex parte seizure order and rejects creative jurisdiction argument

Brunswick filed suit on January 4, 2017 asking for an ex parte seizure order against Sultanov under the Defend Trade Secrets Act. Two days later, U.S. District Judge Edward J. Avila issued this opinion denying a seizure order but granting a temporary restraining order (TRO).

Judge Davila cited the DTSA provision that a court can grant an ex parte seizure order only if it finds that another form of equitable relief would be inadequate. “Here, the Court finds that seizure under the DTSA is unnecessary because the Court will order that Sultanov must deliver these devices to the Court at the time of the hearing scheduled below, and in the meantime, the devices may not be accessed or modified.”

This seems like the sensible ruling, and the one you would expect most federal judges to make in this situation. It’s the reason I expected that granting an ex parte seizure order would be very rare.

So what happened when Sultanov’s lawyer got a chance to respond? If you’re a litigator, or if you’ve watched a lot of episodes of Law and Order, you know what’s coming.

First, would you believe there was another side to the story? Sultanov’s response painted a very different picture than Brunswick’s complaint. Far from a dishonest employee stealing the company’s trade secrets for personal gain, Sultanov portrayed himself as a conscientious whistleblower exposing corporate fraud, even against his own interest.

I would share more details, but most of Sultanov’s publicly available response looked like this:


Second, Sultanov attacked Brunswick’s creative “Gmail” theory of personal jurisdiction. After hearing arguments from both sides on the personal jurisdiction issue, the judge issued this order siding with Sultanov and rejecting the Gmail theory:


As a lawyer who has read literally hundreds of personal jurisdiction cases, I can tell you the judge was on solid legal ground.[4] Plus, the Gmail argument would make the Northern District of California to trade secrets litigation what the Eastern District of Texas has been to patent litigation.

That would be bad. I’ve traveled to both Silicon Valley and the Eastern District of Texas for litigation matters. I had some great Korean food in Palo Alto, but California is just too expensive. Tyler and Marshall, on the other hand, are much cheaper and have better BBQ joints.

But I digress.

A lesson about the adversary system

The Brunswick case provides a great lesson about the adversary system, due process, and the reason people got so worked up about the ex parte seizure remedy in the Defend Trade Secrets Act.

First, even when the lawyer asking for an ex parte order is totally honest, he’s unlikely to volunteer any important reasons not to grant the relief. The judge is only going to get one side of the story.

A related problem is that when the judge only hears from one side, no one involved has a strong personal incentive to test the underlying assumptions of the lawsuit. For example, does the court even have personal jurisdiction over the defendant?

So, when the judge in Brunswick issued a 2000-word order granting a TRO against Sultanov, the word “jurisdiction” appeared exactly zero times.

I wasn’t there, but I’m guessing when Judge Davila issued the ex parte order two days after the suit was filed, there wasn’t a robust discussion about whether Sultanov was subject to personal jurisdiction. I’m wondering if the judge was a little ticked off when he later realized that the jurisdictional basis for the TRO he signed was the Gmail theory.

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head-shot-photo-of-zach-wolfeZach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn has offices in Austin, Houston, and The Woodlands.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] In fairness to Brunswick, the Complaint also alleged some pretty extensive additional efforts to protect confidential information.

[2] For simplicity, I’m leaving out facts about Brunswick’s claim against another employee, its former CEO Paul Ostling. Adding those facts would turn this into “Ten Minute Law.”

[3] Federal courts have original but not exclusive jurisdiction over DTSA claims. 18 U.S.C. § 1836(c).

[4] The judge also found that the evidence did not support Brunswick’s additional allegation that Sultanov maintained a personal residence in California. The judge cited Sultanov’s testimony that the address at issue was a family friend’s property that he sometimes used as a mailing address.

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Friday, January 27, 2017

Top 10 from Texas Bar Today: Literally, Gray Areas, and Yesterday

Originally published by Joanna Herzik.

TexasBarTodayTopTenBadgeJune2016To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. Dallas COA Orders AdvoCare Employment Dispute to Arbitration – Beth Graham of Karl Bayer @karlbayer in Austin

9. Mandatory Venue When Primary Purpose of Action is InjunctionKen Carroll of Carrington Coleman Sloman & Blumenthal LLP in Dallas

8. Community Caretaking Function: Police May Stop without Reasonable SuspicionBrandon Barnett of Barnett Howard & Williams PLLC @BHWLAWFIRM in Fort Worth

7. When is a fraud claim subject to a 2-year limitations period? When it’s not a fraud claim.John Guild @600commerce of Lynn Pinker Cox & Hurst, LLP in Dallas

6. Your Law Firm and Video Content: The Time Is Now – Amanda Taylor of Stacey E. Burke, P.C. @StaceyEBurke in Houston

5. 3 Unique Legal Gray Areas and How They’re HandledBob Kraft of Kraft & Associates @BobKraft in Dallas

4. Access to Justice: Supported Decision-Making Agreements – Librarians at the Harris County Law Libary in Houston

3. What is a Pooled Special Needs Trust?Rania Combs @raniacombs of Rania Combs Law in Houston

2. Paul McCartney Wants Yesterday Back, Sues SonyAndrovett Legal Media & Marketing @AndrovettLegal

1. Intensifiers Part 3: You’re Literally Killing MeWayne Schiess, Director of the David J. Beck Center for Legal Research, Writing, and Appellate Advocacy at the University of Texas School of Law @UTexasLaw in Austin

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Houston Legal Links 1/27/2017

Originally published by Mary Flood.

Top legal news: Former Houston school trustee Marshall ordered to pay up to $2.1M in bribery case; Texas executes man convicted in Dallas-area double murder; Proposed Mexico tariff flusters local businesses (Chron subsc); State Lawmaker Wants Morning After Pill, Abortion Criminalized So Women Will Behave; League City woman admits to federal child pornography charge; Woman caretaker filmed hitting 94-year-old now in custody; Judge Wood Begs Family of Anna Nicole Smith’s Husband To Let Him Quit Case; Baker Botts Highlight Prosecutorial Misconduct Allegations (Texas Lawyer); Outburst in court between neighbors involved in Spring shooting; Ex-Baylor Financial Aid Staffer Claims Retaliation In Title IX Suit (Law360); What Exonerations Mean For The Texas Death Penalty Debate; Houston-area day care inspections: Children left unattended, unsanitary procedures found; Amid “sanctuary” standoff, Abbott asks agencies to list Travis County funding; Undocumented Community Puts Heat on Sheriff Gonzalez to Cut Controversial Policy; UT Researchers Find Travel Distance to Abortion Clinic Directly Impacts Access; Texas Jury Helps Steve Harvey Defeats $50M Claim Over Stand-Up Videos (Law360); Stanford Ponzi Receiver Doubles Down On Clawback Claim (Law360); Texas home raided for operating makeshift casino; Report: Dallas ISD teacher on leave for shooting at Trump image with squirt gun in class; Jury to decide Border Patrol agent’s fate & FBI director Comey to address South By Southwest festival.

For the water cooler: Lawyer is reprimanded for pretending to gag during prosecutor questioning of witness; Judge certifies class action claiming Pacer fees are too high; The Real Reason Cravath Raised Salaries; Belgian Parliament Decides to Keep Serving Itself Free Beer; Florida judge accused of racist and sexist remarks resigns before impeachment probe; 40 lawyers leave Sedgwick in two separate mass moves; firm calls them ‘efficiency adjustments’; ‘Alternative Facts’: Workplace Sexual Harassment Is Now Legal, And ‘We Can Say Fag Again’; Federal Judge Benchslaps Mich. Attorney General For ‘Superficial Posturing’; Speech-To-Text Dictation For Lawyers: What You Need To Know; Arbitrator tosses fired bar executive’s claim against former California bar president; Scalia opinion on EPA regulations could block Trump’s wall; Law Professor Arrested For Child Abuse; 33 Complaints Filed Against Company Run By Trump’s Labor Secretary.; Alito and Roberts are less like Scalia than two of the three top SCOTUS contenders, study says; Trump signs order banning federal grants to ‘sanctuary cities’; are there legal obstacles? & Standard Of Review: Afterlife Law On ‘The Good Place.’

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Community Caretaking Function: Police May Stop without Reasonable Suspicion

Originally published by Brandon Barnett.

In November of 2015, we wrote about State v. Byram, a DWI case out of Tarrant County. In Byram, the 2nd Court of Appeals held that a “hunched over” passenger…

The post Community Caretaking Function: Police May Stop without Reasonable Suspicion appeared first on Fort Worth Criminal Defense Attorney, DWI Lawyer, Sexual Assault Defense.

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Significant Opinions for January 27, 2017

Originally published by Lane A. Haygood.

Court of Criminal Appeals Byram v. State This week, the Court of Criminal Appeals addressed the question of whether officers must “protect and serve” their community by investigating the health and safety of people they randomly meet on the street. In a very troubling opinion, Byram v. State, No. PD-1480-15, the Court of Criminal Appeals […]

The post Significant Opinions for January 27, 2017 appeared first on HCCLA’s Reasonable Doubt.

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Your Law Firm and Video Content: The Time Is Now

Originally published by Stacey E Burke Blog.

There has been a recent shift in the online world to involve a very important component that many businesses are failing to include in their marketing strategies. Over the past few years, we’ve seen drastic changes in technology and user behaviors across online platforms, and they all point to one thing: video content.

According to Cisco, video will account for 69% of all consumer internet traffic in 2017. It is projected that by 2019, global internet traffic from videos will make up 80% of all internet traffic. What exactly does this mean for your law firm? It means it’s time to take action in revamping your marketing efforts, and add more video to your online platforms.

How Attorneys Are Using Video:

As a Personal Touch

When marketing your law firm, video content can deliver favorable results. Whether it’s a clip featured on your website or a full video on your YouTube channel, video serves as an incredible opportunity to highlight each lawyer at the firm. This also gives your firm the chance to differentiate your attorneys from others in the area, which is easily one of the greatest challenges when it comes to law firm marketing. Ninety percent of users say product videos are helpful in the decision process. With video you can spotlight each attorney in action, reveal more of their personalities, and showcase their persuasive abilities with a more connected, emotional impact. Videos could help a client decide to hire you above competitors.


If you’ve dabbled in social media lately chances are video content has flooded your social feed. Whether it’s live video like Periscope or Facebook live, or recorded content such as testimonials, video is what is engaging and entertaining audiences on social platforms. Gone are the days when people sit and read through every word you post. People are consuming their information in much quicker, simpler, and more entertaining ways.

Releasing your videos into the social media world is the best way to reach expanded audiences and realize your video’s full potential. Not only will you reach the attention of a huge audience, but distribution is 100% free when posting to social media.


Complex cases and information can easily be broken down in video content.  The ideal video length is between one and a half to three minutes, so your attorneys will be forced to explain things in a concise and simple manner. Take information from an existing landing page and try creating a video with the same information. Include this video on your landing page and share on social media. This technique could be incredibly effective for your firm, as including video on a landing page can increase conversion by 80%.

Easy Ways Your Law Firm Can Feature Video:

“About Us” Page

Add the personal touch we mentioned earlier in this post by featuring video snippets of each lawyer on the “About Us” page of your website. If you have a larger firm, think about shooting a law firm video to include everyone. Clients are likely to feel more personally connected to someone they have seen, rather than simply reading about them on your website. Again, this serves as a great way to showcase the persuasive abilities and personalities of each of your attorneys as well.


Just as positive ratings on Yelp or Google weigh heavily on consumer decisions, testimonials can easily draw new clients in. Take the time to record short testimonials from former or current clients that happily worked with you and your firm. Be sure to share these on your website and social media often.

Behind The Scenes Footage

One of the more simple but effective ways to share video content is using social media to share live, behind the scenes footage. Have someone at the office use Facebook Live or Periscope to show your attorneys hard at work. Live video is also great for showcasing an event your firm is hosting or community work your attorneys participate in.

Integrating video content into your marketing strategy will keep your law firm relevant in the world of online marketing. Video is a powerful medium that can yield powerful results. Yes, you can easily shoot your own videos but you want to keep quality and content in mind. If your videos are unprofessional and disordered, clients will think the same of your law firm. For help in bringing your attorneys to life online, and integrating more video content into your marketing efforts, contact the professionals at Stacey E. Burke P.C.

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Mandatory Venue When Primary Purpose of Action is Injunction

Originally published by Carrington Coleman.

Dallas Court of Appeals, No. 05-16-01145-CV (January 25, 2017)
Justices Bridges, Myers (Opinion, linked here), and Whitehill
Ken Carroll

Section 65.023 of the Civil Practice & Remedies Code directs that “a writ of injunction against a … resident of this state shall be tried in … the county in which the party is domiciled.” Texas courts have construed this as precribing mandatory venue for any lawsuit “in which the relief sought is purely or primarily injunctive.” But whether a suit that pleads for more than one remedy seeks “primarily” injunctive relief is not always clear, as this Dallas Court of Appeals decision demonstrates.

The members of a limited partnership disagreed about a number of things, including which entity should serve as general partner. The Second Street faction sued the FPWP faction, seeking a declaratory judgment to sort things out, but also a temporary and permanent injunction to prevent FPWP GP LLC from acting on behalf of the limited partnership as general partner. Because all members of the defendant FPWP faction resided in Harris County, they moved to transfer venue, relying on § 65.023, but the trial court denied that request.

On mandamus, the Dallas Court of Appeals explained that § 65.023 does not prescribe mandatory venue when a claim for injunctive relief is “ancillary” to claims for declaratory or other relief. That is true, for example, where injunctive relief is sought just to maintain the status quo pending resolution of the lawsuit, and generally when no plea is made for a permanent injunction or when “the injunction is sought [only] to enforce rights established in [the] declaratory judgment action.” Here, however, the Court explained, the requested injunctive relief (both temporary and permanent) sought to prevent FPWP and the other relators from taking a number of specific actions inherent in acting as a general partner and that this was the true aim of the lawsuit. Therefore, the Court concluded, “the primary purpose of the lawsuit is injunctive” and the mandatory venue requirement of § 65.023 applied.

The opinion demonstrates that, where this determination is being made in connection with a lawsuit that seeks only a declaratory judgment and injunctive relief intertwined with the requested declarations, one is looking essentially at two sides of a single coin, and deciding which is the “primary” purpose may be more art than science.

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Lawsuit Against eBay Over Counterfeit Sales Moves Closer to Trial

Originally published by » Blog.

Wimo Labs, which owns the rights to the Lunatik brand of cellular phone cases, recently sued eBay along with various online sellers for trademark infringement. […]

The post Lawsuit Against eBay Over Counterfeit Sales Moves Closer to Trial appeared first on Klemchuk LLP.

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Investigative Report: FDA Rules Allow Medical Device Manufacturers to Hide Adverse Events

Originally published by robertslawfirm.

An investigative report by the Minneapolis Star Tribune has found that the U.S. Food and Drug Administration (FDA) has created a program that lets medical device makers hide adverse events for up to several years by allowing them to submit summarized confidential reports. The Star Tribune analyzed FDA data received under the Freedom of Information Act and said that the FDA has accepted late reports covering hundreds of thousands of incidents under its “retrospective summary reporting program.” That program allows medical device manufacturers to provide a summary of adverse incidents rather than individual incident reports, sometimes covering years of incidents. For example, the Star Tribune said that the FDA allowed Baxter International to summarize 75,000 previously unreported malfunctions of its Colleague drug pump into a confidential report, releasing only a short summary to the public. The company later recalled that product. According to the report, the FDA has allowed more than 20 medical device manufacturers to submit retrospective summaries involving over 130,000 overdue adverse events since 2005. However, the Star Tribune noted that the retrospective summary program is not found anywhere on the FDA’s website and there is no law that authorizes it. The report found that late reports have also been submitted on several medical devices that are currently facing extensive litigation, including vaginal mesh. The FDA told the Star Tribune that the retrospective summaries “involve issues that are already well-understood by the medical community. Demanding additional documentation would waste resources and clog the public reporting system for adverse […]

The post Investigative Report: FDA Rules Allow Medical Device Manufacturers to Hide Adverse Events appeared first on Roberts & Roberts.

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Thursday, January 26, 2017

Small Law Firms: This One is For You

Originally published by Cordell Parvin.

Are you in a small or medium sized law firm? If so you will want to read a report I saw recently:

How Small Law Firms Succeed Under the Pressure of Today’s Challenges … or Fail: 2016 State of U.S. Small law firms Study.  (Note: You have to fill out some information to get the study).

In the study, small law firm leaders identified their top challenges:

  1. Challenges acquiring new client business
  2. Client rate pressure/clients wanting more for less
  3. Spending too much time on administrative tasks

What are the most successful small firms doing differently?

In essence, the study shows that among “lawyer entrepreneurs,” simple goals allow each firm to fill in unique strategies to get there…

It is this same opportunity for entrepreneurship that will likely help position small law for greater growth in the coming years…

By contrast, successful firms are differentiating themselves – building a brand, leveraging it to win
new business, and investing in the firm’s future. Less successful or unsuccessful firms, on the other hand, are instead trying to cut their way to profitability.

If you are a long time regular reader, you know I believe:

  1. About 10% of the business out there is “bet the company” and whoever is perceived to be the top lawyer/law firm will get that business.
  2. About 30% of the business out there is price sensitive meaning clients will do it themselves or whoever is willing to do it at the cheapest price will get it.
  3. About 60% of the work out there will go to lawyers the potential client knows, likes and trusts.

Small firms should be actively seeking that 60%. Attracting those clients is based on building trust based relationships.

When I practiced law, my clients were my friends and my friends were my clients. Recently, Nancy and I were on vacation in Cabo San Lucas. There were five couples. Three were clients from my law practice and the fourth was the brother and his wife of one of those clients.


Tomorrow  Nancy and I will travel to Phoenix where I will begin coaching lawyers in a firm there.

On Saturday, we’ll eat dinner with a lawyer I coached several years ago, her husband and three kids. Every time we go to Phoenix we see them. On Sunday, we’ll eat dinner with, you guessed it, a former client and his wife.

If you are a small firm, are you investing in your firm’s future?  If you are interested, I know I can help develop your next generation of rainmakers.


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SCOTX Refuses to Reconsider Patent Company’s Request to Vacate Arbitrator’s $3 Million Legal Fees Award

Originally published by Beth Graham.

The Supreme Court of Texas has once again declined to consider a company’s request to vacate an arbitrator’s award in a legal fees dispute.  In Parallel Networks, Inc. v. Jenner & Block, LLP, No. 16-0080, Jenner & Block was retained to represent a patent-holding company in a patent enforcement action that was filed against software giant Oracle.  The contingent fee relationship, however, did not continue through to the conclusion of the case.

After losing a motion for summary judgment, the law firm reportedly determined that Parallel Networks was unlikely to win a large financial award and withdrew from representing the company. The parties’ representation agreement stated any disputes over attorney fees would be subject to arbitration.

With the assistance of new counsel, Parallel Networks later settled the disagreement with Oracle for $20 million. After the case settled, Jenner & Block sought in excess of $10 million in attorney fees from Parallel Networks for the work previously performed by the firm. Pursuant to the parties’ representation agreement, the fee dispute was arbitrated and Jenner & Block received a $3 million award.

Following arbitration, Parallel Networks filed an unsuccessful motion to vacate the arbitrator’s award in Dallas County.  Texas’ Fifth District Court of Appeals agreed with the trial court and the patent-holding company filed a petition for review with the Supreme Court of Texas citing public policy grounds. Last June, the high court denied Parallel Network’s petition.  Two months later, the company gave it one more try and filed a motion for rehearing of its denied petition for review.  On January 20th, the Texas Supreme Court once again denied Parallel Network’s request.

You may read more about the history of this case in a prior blog post.

Photo credit: Liza Chudnovsky via Foter.com / CC BY

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3 Unique Legal Gray Areas And How They’re Handled

Originally published by Bob Kraft.

While the law is crystal clear around many topics, there are some legal gray areas, especially when it comes to international spaces. From international embassies located on land to the aircraft that fly in international airspace and the vessels that sail through international waters, application of laws can be confusing. Keep in mind these three unique legal gray areas and the common ways in which they are handled.

International Airspace

Airspace is controlled by the nation owning the land or controlling the waters under it. In general, a country owns airspace and water space about 12 nautical miles from its coastline. For international waters such as the open Pacific Ocean, there are some legal gray areas. While the United States provides air traffic control services to the open Pacific Ocean, it cannot necessarily apply its laws to what happens in an airplane over those same waters. In case of a dispute over international airspace, cases may be heard in international courts.

Maritime Law

Maritime law is another legal gray area. In the United States, maritime disputes must be handled by the federal court system. These cases may include claims against a vessel. If another vessel crashed into yours or caused you bodily injury or damaged your property, you will need to find a special lawyer or Maritime Law Center to take the case on in federal court. Other disputes, such as fishing rights and environmental concerns are usually handled by the federal court of the nation controlling those waters.

International Embassies

International embassies are governed by diplomatic law. Diplomatic laws are a part of agreed upon international law, which is a set of standards enacted by the United Nations. These customary laws are recognized as a matter of practicality and are administered under reciprocity. If an illegal act takes place at an international embassy, diplomatic immunity may be employed. While the diplomat may avoid prosecution under the law for the nation where the embassy is located, the sending country may choose to prosecute the diplomat. The sending country can also revoke the diplomat’s status, allowing the hosting country to initiate prosecution.

There are many legal gray areas when it comes to international relations, sharing air or water space and maintaining order. In many situations, nations are able to work out mutually agreeable conditions for such interactions. When two or more nations interact and do not have the same laws around the matter, international courts may have to settle the dispute.

This article is from Brooke Chaplan, a freelance writer and blogger. She lives and works out of her home in Los Lunas, New Mexico. She loves the outdoors and spends most her time hiking, biking and gardening. For more information contact Brooke via Twitter @BrookeChaplan.

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Access to Justice: Supported Decision-Making Agreements

Originally published by Lori-Ann Craig.


With the passage of HB 39 and SB 1881 by the 84th Legislature, Texas became the first state to enact legislation allowing individuals with an intellectual/developmental disability (I/DD) greater autonomy in the making of personal decisions while still retaining their rights. Prior to the passage of the Supported Decision-Making Agreement Act (codified at Tex. Estates Code ch. 1357), individuals with an I/DD were forced to relinquish their rights, and all decisions were then made by the person appointed as guardian, including such choices as where to live, where to work, and which doctors to use. The Act’s stated purpose is to provide a less restrictive alternative to guardianship for those adults who require assistance with day-to-day decisions but who are not considered incapacitated for guardianship purposes. Under the Act, an individual with an I/DD may appoint a caregiver to assist the individual with making decisions, including helping the individual understand any consequences of the decision, collecting relevant information to aid in the making of the decision, and assisting with the communication of the individual’s wishes. Note that the agreement may be terminated at any time by either party.

TexasLawHelp.org, a program of the Texas Legal Services Center, has made available on its website a free Supported Decision-Making Agreement. With this form, a person with an I/DD is able to choose a trusted caregiver, referred to as a “supporter,” to assist with the making of the decisions indicated by the individual. The form specifically states that the supporter does not make the decisions for the individual and allows the individual to identify the types of decisions for which he/she needs the assistance of the supporter.

In connection with the Supported Decision-Making Agreement form, TexasLawHelp.org provides an additional form: an authorization to release confidential information under a supported decision-making agreement. This form allows the supporter to obtain information about the individual with an I/DD that would have been private and otherwise protected.

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Paul McCartney Wants ‘Yesterday’ Back, Sues Sony

Originally published by Androvett Legal Media Blog.

Beatle Paul McCartney just sued Sony/ATV in federal court in New York to get his songs back to where they once belonged.

The Beatles songs were sold to Michael Jackson in 1985 and then to Sony, but U.S. laws have changed since that happened. That could mean “Ticket to Ride” and “Hey Jude” revert to Sir Paul in 2018. But the band Duran Duran is having some trouble in the U.K. invoking the same rule, so Mr. McCartney filed a lawsuit hoping to make it clear he gets the tunes back.

“When Lennon and McCartney sold their copyrights to Sony, some might not have imagined that Beatles music would still be popular – much less still under copyright – by the second decade of the next millennium,” said lawyer Steve Mitby, a partner in the Houston law firm Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., or AZA.

“In the 1998 copyright extension, Congress tried to give the original artists and authors the benefit of the longer 95-year term. But it is far from clear that Congress can modify private contracts – like those between the Beatles and Sony – through that retroactive legislation,” Mr. Mitby said.

Mr. McCartney followed the congressional rules to reclaim his music and served advance notice to the U.S. Copyright Office starting back in 2008 that he was coming for “She Loves You” and more. And no, he won’t just let it be.

For more information, contact Mary Flood at 800-559-4534 or mary@androvett.com.

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Wednesday, January 25, 2017

When is a fraud claim subject to a 2-year limitations period? When it’s not a fraud claim.

Originally published by John Guild.

Negligence is not fraud

In Parsons v. Queenan, et al., No. 05-15-01375-CV (January 23, 2017), the Dallas Court of Appeals affirmed summary judgment in favor of the defendants on limitations grounds. The suit was Parsons’ third in a series of malpractice suits against different attorneys that represented him since the death of his wife in a plane crash more than two decades earlier.

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Whole Foods Faces Class Action Alleging ADA Violations

Originally published by robertslawfirm.

A class action lawsuit has been filed against Whole Foods Market Group Inc., alleging that the company violated the Americans with Disabilities Act (ADA) by failing to provide accommodations to an employee after she underwent surgery and requested to return to work. The plaintiff, a Whole Foods employee, had spinal fusion surgery in June 2011. Her doctor cleared her to work in August 2011 with a restriction on not lifting more than 10 pounds. Although the plaintiff stated she could do her job with this restriction, Whole Foods informed her that she couldn’t return until she received full clearance from her doctor with no restrictions. She was cleared in December 2011 and returned to work. In May 2012, the plaintiff underwent another surgery and was given six weeks of unpaid leave by Whole Foods to recover. After the six weeks had lapsed, Whole Foods informed the plaintiff that she was required to apply for leave under the Family and Medical Leave Act (FMLA) since her doctor had not released her to work. The plaintiff submitted an application for FMLA leave to Whole Foods, which denied the application on the grounds the plaintiff had now worked the requisite 1,250 hours during the previous 12 months, making her ineligible. Two days after denying the FMLA application, Whole Foods terminated the plaintiff’s employment. The plaintiff filed a class action suit seeking to represent a class of Whole Foods employees who required and requested a reasonable workplace accommodation, but were denied because of the […]

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