Friday, March 31, 2017

Top 10 from Texas Bar Today: Art, Timing, and Dark Space

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. Can You Sue the State of Texas for Poorly Designed Roads?Roberts & Roberts @robertslawfirm in Tyler

9. Testator lacked capacity to execute estate planning documents –  J. Michael Young of Sanders, O’Hanlon, Motley & Young @JMichaelYoung1 in Sherman

8. Protecting Yourself as a Good Samaritan in TexasBill Berenson @LawyerFortWorth of Berenson Law in Fort Worth

7.Does Your Small Space Lease Have an Appropriate “Dark Space” Provision?Axel Lindholm of Romano & Sumner, LLC ‏@RomanoSumner in Sugar Land

6. Timing is EverythingToby Brown of Perkins Coie LLP @PerkinsCoieLLP

5. Copyright, volition, and hair.David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

4. Content Curation For LawyersStacey E. Burke of Stacey E. Burke P.C. @StaceyEBurke in Houston

3. Combatting Digital Threats to Brands in the Online MarketplaceRoxanne Edwards of Klemchuk LLP @K_LLP in Dallas

2. How to Get Media-Ready for a High-Profile TrialKacy Miller @CourtroomLogic of Courtroom Logic Consulting in Dallas

1.Why Being An Artist Will Make You a Better LawyerCordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

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Houston Legal Links

Originally published by Mary Flood.

Top legal news: Two Houston surgeons facing deportation get temporary relief; Judge orders Ken Paxton criminal trial moved out of Collin County and delayed; New policy may mean seeing a lot more cops with tattoos; 2016 M&A Lawyer Leaderboard: Houstonians and A Lotta White Guys (Texas Lawbook); Houston mayor: 50 percent of Uber driver applicants have criminal record; Texas Republicans defend “bathroom bill” as North Carolina tweaks its law; Houston Lawyer Couch Finds Way to Make Police-Shooting Case Stick (Texas Lawyer); UH Hosts ‘People’s Law School’ Tomorrow; Doctor Sues McGuireWoods for Legal Malpractice (Texas Lawyer); Bestiality isn’t illegal in Texas. Lawmakers may soon change that; Years after Perry veto, Travis County seeks revival of statewide prosecuting unit; Sex offender arrested after falling in open manhole; Murder victim’s niece weighs in after Supreme Court sides with death row inmate; States Weigh Legislation After Dental Board Antitrust Ruling (Law360) & Callers reported a swerving pickup before deadly bus crash.

For the water cooler: Graduate of two law schools who never attended college may take the bar exam, court rules; Lawyers mimic defendant BuzzFeed in motion with clickbait heading and adorable kitten photo; North Carolina becomes first state to require lawyers to reveal innocence evidence after conviction; Why ‘Higher-Class’ Women Won’t Get That Biglaw Job: Hiring Biases That You Won’t Believe!; Federal Charges Against Judge Who Allegedly Traded Sex For Help With Traffic Tickets; How Hunting Clients Is Like Being Addicted To Tinder; The 5 Most Expensive Law Schools In America (2017); Boutique Bests Biglaw In Booze-Bottle Battle; Seattle sues over threat to withhold funds from ‘sanctuary cities’; Law deans were unaware of judge’s largesse in wrongful foreclosure case; Hawaii federal judge extends order blocking revised travel ban, ‘will not crawl into a corner’; Chemerinsky: Civil rights advocates win important victories at SCOTUS & GOP could try these ‘nuclear option’ alternatives to put Gorsuch on the Supreme Court.

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Combatting Digital Threats to Brands in the Online Marketplace

Originally published by Roxanne Edwards.

Although the exponential growth of e-commerce in recent years has benefited retailers and manufacturers, the continued expansion of cyber sales channels has also increased the […]

The post Combatting Digital Threats to Brands in the Online Marketplace appeared first on Klemchuk LLP.

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No crawfishing about this summary judgment

Originally published by David Coale.

Several crawfishermen sued about the effects of canal dredging on the Atchafalaya Basin fisheries. As to one defendant company, the Fifth Circuit affirmed summary judgment in its favor, reviewing each of the documents cited by plaintiffs and finding that none raised a genuine issue of material fact as to actual dredging activity by that company, on the pipelines at issue in this case.

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Western District Denies Motion to Dismiss

Originally published by Thomas J. Crane.

Johnson worked at Southwest Research Institute for many years before she was fired. Some time before her termination, she complained about possible discrimination against her due to her gender. She filed an internal complaint with SWRI in June, 2012. She then filed a complaint with the EEOC on Aug. 3, 2012. Several days later, she was fired on Aug. 15, 2012. She was told the reason was failure to observe timekeeping requirements. She had a security clearance in her former position. She lost the clearance when she was fired. The timing of the termination alone suggests the employer was motivated by reprisal because she went to the EEOC.

The employer moved to dismiss the retaliation claim. It claimed she was fired because she lost her security clearance and only because she lost her clearance. If any employer is not motivated by retaliatory intent, but by something neutral, then she could not claim reprisal. When reviewing a motion to dismiss, a judge must look at what the plaintiff says she can show. To dismiss a lawsuit, the judge would have to find there was no set of facts that could support her claim. The employer must show “beyond doubt” that she cannot prove a plausible fact scenario for her retaliation claim.

The court reviewed the papers concerning her termination. It found that the documents were not clear. Neither the memo recommending dismissal or the email concurring in termination mentioned any loss of a security clearance. The letter to the Plaintiff notifying her of her termination does mention a lack of “trustworthiness.” That term matches terminology used for loss of a security clearance. But, said the court, it would be a stretch to conclude from the use of that term that her termination was based on the loss of access to classified material. The letter itself did not otherwise mention the loss of her security clearance.

She might have lost her clearance because she was fired. Or, she might have been fired immediately after losing her clearance. The clearance issue could have come before the termination, or after. The records submitted by the employer did not show one way or the other which came first.

Because the documents are not clear, the motion should be denied. A fact-finder, a jury, should determine what happened. See Johnson v. Southwest Research Institute, No. 15-297-FB (W.D. Tex. 9/28/2016). And, seriously, if the employer makes a claim regarding why someone was fired, but it cannot produce better evidence than the use of one term, with no apparent connection to the decision-making process, then it is either rather very unorganized or it is trying to mis-lead the court. Either way, the employer loses some credibility with the court when it makes an argument based on fairly weak evidence.

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Misled By A Beer’s Label: A New Lawsuit Over “Hawaiian” Beer

Originally published by Nick Farr.

As reported by West Hawaii Today, a new class-action lawsuit has been filed against Craft Brew Alliance, Inc. and Kona Brewing Company over some allegedly deceptive advertising. Specifically, the lead plaintiff alleges that he purchased a 12-pack of Kona’s Longboard Island Lager under the belief that the product was brewed in Hawaii, a suspicion based, at least in part, on the beach and surfer depicted on the bottle’s label. The lager, however, is apparently brewed stateside – a fact, that if known by the plaintiff, would have apparently dissuaded him from his purchase.  The suit, filed in a federal court in California, asserts a violation of California business laws, common law fraud and misrepresentation, as well as several other causes of action.

According to its website, Kona began brewing beer back in 1995 at a brewery in Kailua-Kona, Hawaii. That facility still produces beer. However, its bottled beer and mainland draft is produced at several breweries located within the mainland of the United States. The list of brewing locations is included on the labels of Kona beers.

We here at Abnormal Use find this lawsuit intriguing on several levels.

First, there is nothing on the Longboard Island Lager packaging (as shown below) that specifically says that it is brewed in Hawaii.


Admittedly, the name “Kona” coupled with the depicted surfers catching waves in front of a mountain certainly offers a Hawaii-vibe. That said, Olive Garden also attempts to resemble an authentic Italian bistro, but no one is accusing it of leading its patrons to believe that its food is authentic Italian. Kona does not represent that its beer is brewed in Hawaii. Rather, in our opinion, Kona merely represents that its product is a beer best-consumed on a beach vacation a la Corona or Landshark.

Secondly, even if the plaintiffs can prove that Kona implicitly represented that the beer was brewed in Hawaii, how have the plaintiffs actually been damaged? We consider ourselves beer snobs. As such, we have never viewed the quality of beer to hinge upon the location of the brewing facility. (This is not wine, after all).  While we do enjoy certain beers from certain regions of the country, our preference  has more to do with the breweries themselves than the region in which they are located.  A good beer may be brewed in California, but it is not a good beer because it was brewed in California.

We are guessing that the plaintiffs actually purchased the Longboard Lager because they like the way it tastes.  And, they like the way it tastes regardless of whether it was brewed in Hawaii, Oregon, or Tennessee. To claim otherwise is either completely disingenuous or a display a beer snobbiness than even we can’t comprehend.

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Why Being An Artist Will Make You a Better Lawyer

Originally published by Cordell Parvin.

Parvin Dad.pngMy dad’s birthday is tomorrow, March  31. If he was alive he would have been 106 today. He passed away in 1980.

My dad was an artist, a photographer, a musician, and an entrepreneur. He loved fishing and hunting. He also loved fixing sports cars.

I never gave him the chance to teach me to draw, paint or carve. I was too busy playing baseball, basketball and football. He tried to teach me to play the piano, but I wouldn’t practice so he gave up.

When I was a teenager, my dad frequently towed home sports cars that he repaired in our garage and resold. I remember the first car was a green Jaguar XK 120. He frequently tried to get me to work on the cars with him. I tried, but I got bored quickly and went back to playing baseball.

Looking back now, I can say that while I was passionate about playing baseball, hunting, fishing and working on cars together are father-son experiences we could have shared for a lifetime. I missed an opportunity.

Even though I never gave him the chance to teach me to be an artist, I believe he unknowingly taught me about art and drawing in a way that made me a better lawyer and that is the point I want for you to get from this post.

Seth Godin talks about making art. He says it has three elements:

  1. Art is made by a human being.
  2. Art is created to have an impact, to change someone else.
  3. Art is a gift. You can sell the souvenir, the canvas, the recording… but the idea itself is free, and the generosity is a critical part of making art.

Daniel Pink, in his book A Whole New Mind: Why Right-Brainers Will Rule the Future, describes taking a week long drawing class and being taught that drawing is about seeing relationships between positive space and negative space, light and shadow, angles and proportions.

In a  blog posted a few years ago, Pencil as a Power Tool Daniel Pink talked about drawing again. He said drawing:

is a terrific way to develop the aptitude of Symphony, the ability to put together seemingly unrelated pieces to create something new.

I believe my dad taught me to see things others did not see. I had a unique interest in anticipating what might impact my clients. I believe I had the aptitude of Symphony. Lawyers I coach have heard me suggest many times to:

  1. Identify a client problem, opportunity or change before the client does
  2. Create a remarkable solution
  3. Give it away

That is what making art as a lawyer is all about. If you are not making art, consider taking a drawing class or a photography class and focus on relationships of things to other things. Then, diligently read business news and industry publications.

Are you making art as a lawyer? If your father is still alive, what experiences are you sharing?

The post Why Being An Artist Will Make You a Better Lawyer appeared first on Cordell Parvin Blog.

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How to Get Media-Ready for a High-Profile Trial

Originally published by Bruce Vincent.

Trying a high-profile case under the media spotlight is rare for most lawyers, but it is becoming more and more common given the number of new media outlets and the growing public appetite for legal news and information. The delicate balancing act of effectively handling a client’s case while also protecting their public reputation is […]

The post How to Get Media-Ready for a High-Profile Trial appeared first on Muse Communications.

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Protecting Yourself as a Good Samaritan in Texas

Originally published by William K. Berenson.

ArPduR11-300x300If you see somebody in distress, your first impulse may be to jump in and help. This sense of responsibility for your fellow man is a wonderful quality. But in your desire to do the right thing, you might be putting your own life at risk.

This is what happened Monday night when 46 year-old Julia Zaman witnessed a collision on the Dallas North Tollway. A car hit a concrete barrier for unknown reasons, careened across the highway and came to rest on the inside median. Ms. Zaman pulled over and got out of her vehicle to help but was tragically hit and killed by an oncoming car. Unsurprisingly, the good Samaritan was well known for her kindness.

Another good Samaritan, professional soccer player Ryan Hollingshead was also struck by a car in Bedford while helping a man injured in January. A newlywed’s car skidded on black ice and slammed into a guardrail. The FC Dallas midfielder graciously ran over to assist. Then another car hit a patch of black ice and slid out of control, striking Hollingshead. At first, doctors worried the star athlete might be paralyzed from three vertebral fractures, but this story has a happy ending — the good Samaritan was back on the field last week training with his team.

Good Samaritans Put Themselves at Risk

These incidents demonstrate a key point in good Samaritan cases. The conditions that resulted in the first auto accident are just as dangerous to anyone trying to help. The ice patch, rain, darkness, obstruction, high speed limit or curvy road remains a factor for another driver to lose control of her car. Because the good Samaritan has gotten out of his vehicle, he or she has no protection if hit by the car.

What should you do if you witness an accident? Often you can do the most good by remaining in your vehicle and calling 911. Your call will get trained emergency responders to the scene quickly without putting yourself in harm’s way.

Recovering Damages for Good Samaritan Injuries

Good Samaritans don’t think about what happens if they get hurt. But there is a very real possibility that you could be seriously injured if you stop on a rural road or bolt across a busy highway, no matter how good your intentions are.

Fortunately, you are entitled to recover compensation under your insurance policy, just as you would if you were otherwise hit as a pedestrian. Proving fault to recover from the driver who injured you may prove more challenging, however, if you took a risk — for example, if you ran out in front of a car that did not have time to stop.

However motorists have a responsibility to remain alert to disabled vehicles or other roadway obstructions. The fact that the driver did not expect to encounter a disabled vehicle does not relieve him of liability for reckless conduct.

Good Samaritan Liability Laws

On the other hand, what happens if you accidentally injure the victim while trying to render aid?

Texas law recognizes that society benefits from people helping each other. Reasonably, a bystander who could be liable for damages might hesitate to take action. With this in mind, good Samaritan laws relieve people “who in good faith administer emergency care as emergency medical service personnel” from civil liability “for an act performed in administering the care.” A good Samaritan can not be sued for saving somebody’s life, but causing injuries in the process.

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Is Grandma a Drug Dealer?

Originally published by Rosenthal & Wadas.

The term drug crime conjures the image of meeting someone in a back alley to buy marijuana or heroin. But for many Collin County residents, drug crimes involve everyday products you get at the local pharmacy. In fact, Texas prosecutors…
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Content Curation For Lawyers

Originally published by Stacey E Burke Blog.

With millions of informational sources in the digital sphere today, the amount of available content can be overwhelming. For a law firm managing its own social media channels and blogs, sharing relevant digital content can establish the firm as an authoritative voice on specific topics – even when the firm is not creating the content itself. Finding that content, however, requires content curation.

What Is Content Curation?

When you engage in the curation of relevant legal industry content, you collect blog posts, videos, images, and really anything related to a topic, practice area, or niche. This process lets you sort through the massive amount of online information, pick the best pieces, and compile them. Once all of your content finds are sorted and arranged, select the best and most relevant items and share them – accompanied by your own unique commentary – on social media, on your blog, in an e-newsletter, or elsewhere.

I have always done my content curation manually, as I think it is important to really look through each item selected to be certain it is applicable to the overall theme and appropriate for the law firm to share. However, there are apps and tools that can make content curation quick and easy, including, Themeefy,, YourVersion, ContentGems,, Storify, and more.

Where To Find Great Stuff To Share:

With having an audience (or trying to build one) comes the responsibility of having something worthwhile to share. You can’t just throw up a list of links and say, “read these, they’re great.” Finding content to share is only the first step in a content curation strategy, but you can’t really do anything until you find it. Here are some recommended locations for scouting out and acquiring interesting and relevant content of all types:

  • Communities (e.g., LinkedIn Groups)
  • Curators
  • Data Aggregation Sites (e.g., Hacker News)
  • Feedly / RSS Tools
  • Google News Sources
  • Medium
  • Newsletters
  • Research
  • SlideShare
  • Tumblr
  • Twitter
  • Vimeo
  • YouTube

Why Should Lawyers Engage in Content Curation?

  1. When cultivating connections online, it is important to establish an appropriate balance between sharing your own content and sharing others’ content. Content curation enables lawyers to demonstrate they are not totally self-centered and can identify other good content besides their own.
  2. Because there is so much information available, finding what is important and/or credible can be next to impossible. Curating content does the heavy lifting for busy folks who follow you on social media or other platforms – you pick through the content that’s out there to find what is most valuable. Therefore, your audience only has to read a prescreened segment of available information from a trusted source, saving them time and establishing your firm as an authoritative voice for any future questions.
  3. Sharing others’ content helps to build relationships with other users you might never meet in real life and encourages them to re-share your content since it promotes them. You should share others’ content on Twitter, making sure to tag the account of the author using Twitter’s @ feature. You should share others’ content on Facebook and LinkedIn by tagging the individual profile or Page associated with the person or entity responsible for the original content creation.
  4. Sharing engaging content with your followers keeps them coming back for more. An individual lawyer or a law firm as a whole can become an industry thought leader by sharing content that a large audience finds valuable. Content curation can have as big of an impact on your overall success on social media as the creation of original content.

Don’t Have Time To Curate Content?

If you’re like most lawyers, you are too busy working to find time in your schedule each day for content curation. That’s ok – we can do it for you. We have curated content related to natural disasters, pharmaceuticals, agriculture, motor vehicle safety, and more, as it relates to the practice of law and/or how it can impact a particular geographic area or other population subset.

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Free legal clinic in Katy serves veterans

Originally published by Eric Quitugua.

veterans_unsplashA free legal clinic will be held in Katy to serve veterans in need of legal assistance.

The clinic, put on by the Katy Bar Association and the Houston Bar Foundation’s Veterans Legal Initiative, will be held at the Katy Elks Lodge 2628, 1050 Katy Fort Bend Rd., 77493.

Veterans and spouses of deceased veterans will get to meet with volunteer attorneys for one-on-one advice and counsel in several areas of law, including family, wills and probate, consumer, and real estate and tax law. Attorneys will also be available to discuss disability and veterans benefits.

Qualifying veterans seeking legal representation may be assigned a pro bono attorney from the Houston Volunteer Lawyers.

The clinic runs from 10 a.m. to 2 p.m. on Saturday, April 1, and is part of the Third Annual Katy Area Veterans Family Fun & Resource Day. No appointment is necessary.

Additional legal clinics are sponsored by the Houston Bar Foundation weekly at the Michael E. DeBakey VA Medical Center from 1 p.m. to 5 p.m. on the first floor. For more information, go to

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Terroristic Threats: Laws and Consequences in Texas

Originally published by Matthew Sharp.

Texas defines assault as intentionally, recklessly or knowingly causing bodily injury to another. Assault is also knowingly or intentionally threatening another with imminent bodily harm. The punishment for assault is a Class C misdemeanor punishable by a $500 fine. Assault and making a terrorist threat involve threatening another person, but that’s where the similarities end. more >

The post Terroristic Threats: Laws and Consequences in Texas appeared first on The Law Office of Matthew D. Sharp.

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Thursday, March 30, 2017

Copyright, volition, and hair.

Originally published by David Coale.

Defendant hosted a website with a public forum called “HairTalk.” Plaintiffs sued for copyright infringement when celebrity photos, to which they owned the rights, were posted by third-party users on HairTalk without their consent. The Fifth Circuit affirmed summary judgment for Defendant, adopting the “volitional conduct” requirement for direct infringement cases, and observing: “[I]t does not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more than setting up and operating a system that is necessary for the functioning of the Internet.” BWP Media USA v. T&S Software, No. 16-10510 (March 27, 2017).

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Wednesday, March 29, 2017

Testator lacked capacity to execute estate planning documents

Originally published by Michael Young.

In Texas Capital Bank v. Asche, the Dallas Court of Appeals affirmed the probate court’s judgment that a series of estate planning documents should be set aside. The judgment was based on jury findings that the testator lacked sufficient mental capacity to execute the documents. This was not the classic case of challenged will executed in the days or weeks before death. In this case, the challenge was to a series of wills, codicils, and trust documents executed over a period of about 13 years. This was not an easy task for the contestants, given the long time period and […]

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Timing is Everything

Originally published by Toby Brown.

Years ago I got into the legal speaking circuit after presenting on the future of the legal profession to a group of bar leaders. I called the presentation “Staying Relevant.” I credit this moment with pushing me into the spotlight of change in the legal profession since it lead to a slew of speaking invites and for me becoming known for driving change in the legal market.

This was 1999.

A lot has happened since then – but somethings from my presentation have yet to materialize. On one level, I should have published a book based on that presentation. That, along with a British accent, would have lead to much greater fame and fortune. But such was not to be.

The presentation covered a broad range of trends, from the incursions of technology to the emergence of alternative providers. At the end of the presentation I commented on the need for the profession to “stay relevant.” My catch phrase which I still use today is the “Paradigm of Precedence.” This label is meant to highlight how the profession is indoctrinated from an early age to look backwards – not forwards. At the center of that paradigm is that the courts look to the past for direction on today’s needs. This approach is bedrock to the judicial branch of government.

However, this thinking has spilled into every corner of the profession. Thus my recommendation to stop driving the boat by watching the wake.

Last week I presented at a courts and technology conference. I actually used my paradigm of precedence phrase as it was very applicable. What caught my eye at the conference was another session on the vanishing trial. The session noted how only a few cases ever go to trial anymore. 1 in 100 was the stat quoted. This is not new news. However, the session went on to talk about how the rule of law is threatened since without trials, the courts are no longer setting precedence. Instead, settlements, arbitrations and the like are where disputes are resolve: in private where they do not impact the law … or set precedence.

The punch line of my 1999 presentation was that lawyers can sit back and watch change, or they can engage and shape it. I noted that the three letters that should scare lawyers the most were H.M.O. – referring to the fact that when doctors sat back, there were real consequences for their profession. At the core of that concern for lawyers, I suggested, sits the Rule of Law. Back then I noted that if disputes were no longer resolved in public, by the courts, then the rule of law would be up for sale. So it should be of paramount concern to lawyers that the courts retain a viable place at the center of legal ecosystem.

A mere 18 years later the courts noticed – sort of.

This makes me take stock of all of my current thinking about change in the legal market and how it will be relevant in 18 years. And it gives me an idea for the title of my new book: Timing is Everything.

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“Acting Suspicious” is Not Enough to Justify a Pat Down Search

Originally published by Madeline Pricer.

Does an Officer’s Testimony That a Person was “Acting Suspicious” Establish Reasonable Suspicion to Support a Terry Stop? The Fifth Circuit Court of Appeals recently handed down an opinion concerning…

The post “Acting Suspicious” is Not Enough to Justify a Pat Down Search appeared first on Fort Worth Criminal Defense Attorney, DWI Lawyer, Sexual Assault Defense.

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Jury Awards Homeowner $1.3 Million Stemming from Residential Claim Dispute

Originally published by Kevin Pollack.

Last week, a jury in California awarded a homeowner more than $1.3 million arising from a dispute with his Ameriprise insurer.1 According to the complaint, the coverage dispute arose after the insured’s home was damaged during a September 2013 burglary. The burglars not only stole property, but also turned on the water in an upstairs … Continue Reading


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Can You Sue the State of Texas for Poorly Designed Roads?

Originally published by robertslawfirm.

If an accident is caused by a defect or poorly designed roads, the government may be liable for any resulting damages. Usually a state agency, such as a department of transportation, will have the responsibility of implementing proper care in the design, construction, and maintenance of highways in order to protect drivers from any potential hazards. Placement and proper maintenance of traffic signs and traffic signals are usually the responsibility of this agency. If an accident occurs due to an incorrectly placed or malfunctioning sign or signal, then liability may be assigned to the state agency. For example, in construction zones, signs and signals should be visible so drivers can be warned of possible dangers. In some states, the level of care needed in construction zones may be greater than in others. Streetlights Streetlights are usually installed by the state as necessary, and typically protect the safety of people traveling on highways. In some areas, streetlights may not be mandatory to avoid danger, but they may be installed merely as an added benefit for travelers. Regardless of why they were installed, once streetlights are in existence they must be properly maintained. Safe Conditions The state has a duty to ensure that roadways are in safe driving condition. This includes the shoulders of highways as well as any features that were built to prevent accidents. Shoulders should be maintained in safe condition to protect drivers who intentionally or unintentionally drive onto the shoulder. Other Responsibilities In addition, roads should be clear […]

The post Can You Sue the State of Texas for Poorly Designed Roads? appeared first on Roberts & Roberts.

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Tuesday, March 28, 2017

Will There Be A Statewide Ban On Texting While Driving?

Originally published by Liggett Law Group.

Using a cell phone while driving is incredibly dangerous. Each year, thousands of drivers using their cell phone while driving cause car accidents resulting in serious and sometimes fatal injuries. Although most people know texting while driving is unsafe, many Texas drivers engage in this risky behavior anyway. However, Texas legislators are doing everything in their power to bring an end to car accidents caused by texting drivers.

The Texas House of Representatives tentatively voted 113-32 to approve a statewide ban on texting while driving. With no current statewide ban in place, some cities like Austin and San Antonio passed their own citywide bans. Unfortunately this does nothing for drivers outside of these cities, and millions of Texans remain at risk on the roadways.

The legislation will require a final vote in the House before being introduced into the Texas Senate. If passed, the legislation would classify texting while driving as a misdemeanor and drivers would be fined between $25 and $99 for the first offense, and between $100 and $200 for repeated offenses.

This is not the first time legislation banning texting while driving has passed in the Texas House. In 2011, 2013, and 2015, similar legislation was proposed and even passed in the Texas House. Unfortunately, in 2013 and 2015 the legislation died in the Texas Senate, and in 2011 the Texas governor vetoed the legislation.

However, this time around, the legislation has a lot more firepower. The number of accidents caused by texting drivers has continued to increase since 2011 and drivers are fed up with the risk.

According to the United States Department of Transportation, cell phones cause 1.6 million car crashes each year resulting in nearly half a million injuries and over 6,000 deaths.

Lubbock Texting and Driving Accident Lawyers

Reckless drivers need to be held responsible when they cause motor vehicle accidents. If a texting driver in Lubbock hit you or someone you love, the Lubbock texting and driving accident lawyers at Liggett Law Group can help. We can help you recover compensation to pay for medical bills, pain and suffering, and emotional distress. Call us today to schedule a free consultation.

The post Will There Be A Statewide Ban On Texting While Driving? appeared first on Liggett Law Group.

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Monday, March 27, 2017

Houston Legal Links

Originally published by Mary Flood.

Top legal news: In Closing Argument, Harris County Says Almost No Poor People Are Stuck in Jail; Stockman says he’ll be vindicated as lawyers brush off “deep state blame; Texas legal rates soar as national firms rush in (Chron subsc); Online Arbitration Policy Needs Explicit Notice: Texas Court (Law360); Austin mayor to meet with DHS secretary amid “sanctuary” debate; Sheriff: ICE arrests 26 parolees during community service; Baylor scandal sparks effort to end sexual assault statewide; Hackers increase attacks on energy sector computers (Chron subsc); ‘Lawyers Behaving Badly’: Firm Sues Former Lawyer, Alleging He Stole Client Information and Operated His Own Firm on the Side; Possible Discrimination Against White Straight Christian Raised in A&M Election Fiasco; First trial in 2015 Texas biker shootout delayed by judge; Chief Judge Stewart Appointed to Judicial Conference Executive Committee (Texas Lawbook); Retired HPD officer shoots neighbor to stop machete attack; At feisty town hall, Culberson stays course on Obamacare repeal; U.S. Rep. Ted Poe resigns from Freedom Caucus; Texas Jury Hits Motorola For $9M In HD Voice Patent Trial (Law360); Liquor regulators acknowledge Rangers haven’t cleared them; 18 Texas sheriffs step up to replace Harris County in Trump’s deportation push (Chron subsc); Texas ‘Small Tobacco’ Tax Beats Constitutional Challenge (Law360); How to make sure your voice gets heard at the Texas Capitol; Suspect arrested in Houston-area hit-and-run, 2 cyclists die; FAA resisted efforts to strengthen oversight of balloon industry (Chron susbc); Two teens charged in death of man found in burning dumpster& Falkenberg: At some public bathrooms there’s no debate, no signs (Chron subsc).

For the water cooler: Oregon judge allows video game designer to change sex to ‘agender’; Chicago officers faulted for misconduct went unpunished after their cases got lost in the system; The Law Schools With The Highest LSAT Scores; Utah adopts country’s toughest drunken driving standard; Supreme Court Says You Can Copyright Elements Of ‘Useful Articles’ — Which May Spell Disaster For 3D Printing & More; Corporate law prof is accused of stealing more than $4M from investors; Reinventing Professionals: From BigLaw partner to ethical hacker; Lawyer is among four killed in shootings at Wisconsin law office and bank; Biglaw Lawyers Behaving Badly: The Elite 8 (Part 2); Could Biglaw See Another Associate Pay Raise — Followed By A Recession? & Social workers charged with felony child abuse in boy’s death at the hands of his mother.

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Does Your Small Space Lease Have an Appropriate “Dark Space” Provision?

Originally published by Axel Lindholm.

Real Estate Attorneys Help Commercial Tenants in Sugar Land, Texas Negotiate “Go Dark” Provisions

The profitability of many small retailers and service providers is not only dependent upon factors over which the business owners have some measure of control, it is most likely also strategically linked to the existence of a nearby “anchor” or flagship tenant that brings traffic – and dollars – to the commercial property. Each time a large tenant customer drives by, he or she gets at least a glimpse of the small retailer or service provider.

Many Large Tenants Negotiate “Go Dark” Provisions in Leases

Many small businesses recognize that with size comes leverage. They often fail to understand that large tenants often use that leverage to gain some significant advantages in their leasehold terms – advantages that can work against the business interests of the smaller tenants. For example, while a small space lease will likely contain a provision requiring the owner to remain open for business during the term of the lease, many large lessees get the benefit of “go dark” clauses.

With a typical “go dark” clause, the large tenant can do just that – go dark and close its business – and not be in default, as long as it continues to pay its rent. While the landlord, of course, would prefer to have an active tenant, as long as its cash flow is protected, it can often afford to look the other way. Not so, however, for the small space tenant that needs the traffic from the anchor.

Experienced Small Space Tenants Shoot for “Dark Space” Clauses of Their Own

When negotiating a commercial lease for space that is dependent upon anchor tenant traffic, many experienced small space tenants hold out for “dark space” provisions of their own. Sometimes called “co-tenancy requirements,” these lease provisions provide for various alterations in the small tenant’s obligations should the anchor tenant vacate the premises. Typically, the rent may be reduced to some specified level – or even eliminated – during the period that the large space remains “dark.”

Care should be given to the wording of these small space dark space clauses, however. If poorly drafted, they can sometimes be defeated by the landlord’s showing that the large tenant hasn’t actually abandoned the anchor space. For example, a small security force may still be present. Security guards don’t generate traffic for the small tenant, of course. The dark space clause should provide protection for the small space tenant in any situation in which the large tenant is less than fully open and operating in a manner that is reasonable for tenants of that type.

Romano & Sumner: Experienced, Skilled Commercial Real Estate Attorneys

Texas BarToday Top Ten Badge
Is your business contemplating a new commercial property lease of any type? Is your current commercial lease up for renewal? Is your business dependent – at least in part – on a nearby anchor tenant or other business? If so, consider retaining a solid, strong, legal partner to help you with the intricacies and headaches involved. Running a business is stressful enough; let the experienced attorneys at Romano & Sumner handle your business law matters.

At Romano & Sumner, we pride ourselves not only on our professionalism, but also upon our client service. We know that each situation is unique. We return phone calls within one business day. We keep our clients well informed as to the status of their case. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.

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Much blame, but lame claim.

Originally published by David Coale.

An architecture firm held a large judgment against a bankruptcy debtor, and contended that the failure of the debtor’s insurer to object to that claim barred further dispute about the insurer’s liability. The Fifth Circuit disagreed, concluding that “in this no asset bankruptcy case, nothing in the court proceedings required claims allowance, no notice was provided to parties in interest to object to claims, and no bankruptcy purpose would have been served by the bankruptcy court’s adjudicating [the firm’s claim.” Kipp Flores Architects v. Mid-Continent Casualty Co., No. 16-20255 (March 24, 2017).

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Friday, March 24, 2017

Top 10 from Texas Bar Today: Apps, Copycats, and Stalkers

Originally published by Joanna Herzik.


10. Agree on These Litigation Rules to Level the Playing FieldZach Wolfe @zachwolfelaw of Fleckman & McGlynn, PLLC in The Woodlands

9. Texas Regional Haze: Fifth Circuit Grants EPA’s Motion to Remand the Texas Regional Haze FIPRichard Alonso and Whit Swift of Bracewell LLP @BracewellEnergy in DC

8. Pass the App: What Consumers Want in a Restaurant –  Darin Klemchuk of Klemchuk LLP @K_LLP in Dallas

7. What’s in a name?David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

6. Why I would not put Kodi on an Amazon Fire TV Stick (or any Streaming Device). – Robert Z. Cashman of Cashman Law Firm, PLLC @HoustonLawy3r in Houston

5. Is a Non-Compete Agreement Without Geographical Restriction Enforceable in Texas?Leiza Dolghih @TexasNonCompete of Godwin Lewis PC in Dallas

4. Can You File a Personal Injury Lawsuit Against a Stalker?Roberts & Roberts @robertslawfirm in Tyler

3. Man Charged with Cyberstalking After Strobe Tweet is Sent to Dallas Reporter –  Broden & Mickelsen, LLP @BrodenLaw in Dallas

2. Supreme Court to Fashion Copycats: Hands-Off Cheerleader Uniform’s Distinctive StripesAndrovett Legal Media & Marketing @AndrovettLegal

1. Willful Blindness or Deliberate Ignorance – Either One Can Get You in TroubleWalter James of James PLLC in Colleyville

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Texas Regional Haze: Fifth Circuit Grants EPA’s Motion to Remand the Texas Regional Haze FIP

Originally published by Energy Legal Blog ®.

On March 22, 2017, the U.S. Court of Appeals for the Fifth Circuit allowed EPA to revise and change the Texas Regional Haze Federal Implementation Plan (FIP) when it granted EPA’s motion to remand the plan to EPA for revision. FIPs are issued when EPA does not agree with the measures taken by States in their State Implementation Plan (SIP) and when EPA second-guesses a State’s regulatory decision making. The Obama Administration issued FIPs and overruled State judgment more than any other previous Administration.

Environmental Strategies
Richard Alonso, Whit Swift

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Separation Anxiety: How a Lawyer Can Smooth Out a Divorce

Originally published by Bob Kraft.

Divorce is almost always hard on couples, and in most cases it results in animosity between the ex-partners. There is need for divorce to be settled peacefully, not only because of the children, but also because of the high cost involved in court trials. The following are some of the strategies used by lawyers to smooth out divorce proceedings.


In most states, mediation is used to settle divorces peacefully. However, mediation does not work in cases where there has been domestic violence. During mediation talks, the lawyers from both sides sit with their clients and discuss the pertinent issues with the aim of arriving at unanimous solutions. In cases where this type of mediation fails, many advocates hire a designated professional mediator to preside over the main disputes in a divorce.


Lawyers will in some cases submit a case to arbitration. During arbitration, lawyers from both sides submit their cases to a law expert who upon listening to the evidence, looks into the legal solutions to the case before declaring their verdict. The decision made during formal arbitration is final; therefore, there can be no more court hearings. In informal arbitration, both lawyers seek advice from a family law expert. The legal expert will give a non-binding advisory ruling. In essence, an informal arbitration is the same as a court ruling. It gives both parties an idea of how the case would end up in a trial.


In most divorce cases, lawyers keep urging their clients to settle. Lawyers shed light on the facts of a divorce case, and when their clients are likely to get a raw deal in court, they usually advise them to settle. Many divorce attorneys continue pushing for a settlement up until the scheduled date for trial.

Narrowing Issues

When lawyers cannot fully agree to a settlement, they usually attempt to narrow down the issues that will be presented during trial. This prompts clients to agree to a partial settlement, and leave the pertinent issues to a trial. For example, if one spouse wants sole custody of the child and the other side agrees to it, there will be no need to pursue this issue during trial.

Motion Practice

When clients cannot agree on pertinent issues, like custody, or mortgage payments, the divorce attorneys will file motions. Motions will help the clients predict what the judge is likely to decide, and provokes them to reach an amicable solution.

In many cases, divorce matters take a long time to be finalized. Divorce lawyers use many approaches to ensure a divorce ends quickly and peacefully. Some of these strategies include mediation, arbitration, settlement, narrowing down issues, and filing of motions.

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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Property Midterm – Castaway, Modified

Originally published by Josh Blackman.

My Property midterm exam was based, loosely, on the film Castaway. You can download the exam here, and the A+ paper here.


You are a mediator. Two castaways who were on a deserted island ask you to write an opinion of no more than 1,000 words, addressing five property disputes that arose between them. Because the island did not have any statutes or regulations governing the issues in this case, you can rely on any common law or natural law principles that American courts have cited.

Tom and Wilson set out to circumnavigate the world in a hot air balloon. Tragically, during a storm, their balloon crashed on a deserted island. All of their radio equipment was damaged, so they cannot signal for help. The two only have enough provisions to last for a few days.

The island is divided down the middle by a mountain range. Tom sets up camp on the north side of the island, and declares it Northacre. Wilson sets up camp on the south side of the island, and declares it Southacre.

There is a fresh-water river that begins on Northacre, flows across the mountain range through Southacre, and spills into the ocean. The river provides more than enough water to satisfy their personal needs, and both Tom and Wilson begin to draw water from it.

Wilson discovers that Southacre is inhabited by a pack of wild boars. At dawn, he begins tracking a boar. Wilson fashioned a spear out of a branch with a rock attached to the tip. He throws the spear at the boar, which grazes the beast’s tail. Frightened, the boar starts running toward the mountain range. Wilson follows it. Once the boar crosses onto Northacre, Tom sees it, and starts chasing it as well. As Tom and Wilson corner the beast, it jumps into the river and starts swimming downstream. At that moment, a freak winter storm arrives, and the temperature suddenly plummets. The river immediately freezes over. The boar is stuck in the river, frozen solid. Tom and Wilson both try to dig the boar out, but the ice is too thick. The next day, as the river thaws, the frozen boar floats downstream to Southacre. Wilson pulls it out of the water. Tom asserts that he has the strongest claim to the boar. Wilson disagrees; he skins the boar, which he makes into a coat, and eats the meat.

While the rocky soil on Northacre was dry, the soil on Southacre was very fertile. Wilson plant crops on Southacre, which, when harvested, would provide more than enough food for both residents on the island to eat. Wilson relies on the river to water the crops. Tom, still bitter about the boar, erects a dam on the river, thus blocking the flow of water to Southacre. Wilson demands that Tom remove the dam, stating that he also has a claim to the water. Tom refuses, destroying Wilson’s entire harvest.

Left without anything to eat, Tom begins to forage the beach of Northacre for food. While digging in the sand, he discovers a buried chest. Without removing the chest from the sand, he pries open the lid, and finds it is full of gold coins. Tom immediately realizes that the island was not as deserted as he had thought. As the sun was setting, Tom decides to wait until the morning to remove the chest from the sand. While Tom is sleeping, Wilson crosses the mountain and

removes all of the gold coins, and leaves the chest buried in the sand. Wilson then buries the gold coins on the sands of Southacre. Tom demands Wilson return the gold coins. Wilson refuses.

The next day, a box washes ashore on Southacre containing a sealed, fully-functional solar- powered flashlight. Wilson tells Tom about it. Tom asks Wilson if he can have it. Without writing anything down, Wilson says that he will use it for the rest of his life, and then Tom can have it. Tom agrees.

Later that year, Tom becomes ill, and writes the following conveyance: “I will continue to live on Northacre, but if I die, then to Wilson and his heirs.” Wilson accepts the conveyance.

Shortly thereafter, Tom makes a speedy recovery. Miraculously, a rescue boat locates the castaways. After they return to the United States, the duo hires you, a mediator, to resolve their disputes.

You are asked to prepare an opinion of no more than 1,000 words addressing the following five issues:

1. Who has the stronger claim to the boar’s skin? Tom or Wilson.

2. What is Tom’s strongest claim to the gold coins? What is Wilson’s strongest claim to the gold coins?

3. What are the present and future interests in the flashlight? 4. What are the present and future interests in Northacre?

5. How should Tom and Wilson have resolved the dispute over the erection of a dam on the river?


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Discounts for financial planning

Originally published by Staff Report.

Spring is a great time to clean up your finances! As a State Bar member, you have access to the Beneplace website, where you can browse and compare deals to save on purchases large and small. You can refinance your car, compare identity/credit protection services, and get your taxes done. Visit the Beneplace page to start saving today.

With just one auto finance application, get up to four loan offers with The average customer saves up to $1,900 when they refinance their car. You also have access to savings with rateGenius. Refinancing is easy—you fill out an application and rateGenius will find a lender. Customers save an average of $81/month.

Identity theft is America’s fastest growing crime, and it can cause major headaches and financial strain. Protect yourself with InfoArmor’s industry-leading PrivacyArmor benefit, to catch more identity fraud sooner. You can also save 10% on identity monitoring and protection services from LifeLock. For top-of-the-line credit protection, go with Equifax’s Complete Premier plan, where you’ll get credit reports, credit scores and credit monitoring alerts, with the power of Equifax’s identity protection features included.

Taxes are due on April 18th this year—but don’t procrastinate! Get your taxes done now so you can get them out of the way and get your return sooner. Save on federal tax products from TurboTax, the nation’s #1 tax software. Or go with H&R Block, where you can get your maximum refund—guaranteed. Use your exclusive discount to save on in-office and online tax preparation.

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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Social Media Challenges for Businesses: How to Use, Police, and Enforce Your Intellectual Property

Originally published by Roxanne Edwards.

Social media has become a major marketing tool for many companies. It provides an unprecedented number of opportunities for a company to engage with customers, […]

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Common Branding Mistakes Your Law Firm Might Be Making:

Originally published by Stacey E Burke Blog.

Most attorneys know it’s important to have a law firm brand but usually underestimate just how much work goes into building a great one. Law firm branding needs to be well thought out, well researched, and well planned.  There’s more to branding than just throwing a logo on all of the content you create and share on the web. In order to build a great brand, be sure to avoid the common pitfalls in law firm branding mentioned below.

1. No Focus

Overloading prospective clients with excessive design elements in your logo, too long of a domain name, or even too much copy on your website becomes difficult to read and especially tough to remember.

Your branding should represent your practice. You want the visual assets of your practice to come off as organized, clear, and concise.  This is the first impression a potential client or adversary will have of your law firm. Strong brands with a firm and clear identity will foster familiarity and trust among audiences.

2.  Inconsistency

Along with focus, the key behind branding is consistency across all channels where your firm is represented. The imagery on your website, social media platforms, business cards, and digital and print advertisements all needs to be uniform.  Being recognizable across all media will not only help to create increased awareness of the firm but will also build loyalty among clients and others you work with.

3.  Failing to recognize your target audience

Your branding should be centralized around your target audience. How do you want them to perceive your law firm?  Here is a useful tip on how to understand your audience – imagine your target audience is a single person, and your brand is a single person. What type of person does your target audience respect and identify with? Incorporate the answer to that question into your branding efforts.

4. Overlooking the competition

Researching the competition is step one in the process of branding. You will see examples of what you should be doing, what you should avoid doing, and above all, how to stand out from similar law firms.  The entire purpose of branding is to set your business apart from the rest.

5. Straying from messaging that’s in line with your firm brand

One of the greatest tips I can offer is to not stray too far from messaging that directly correlates with your firm’s areas of expertise and/or the graphic design components you have created through your branding efforts. You want to be recognizable to your audience after all of the hard work put in to build a lasting brand. The goal here is to be top of mind when potential clients are looking to hire a lawyer. Your content should represent your brand, just as your brand should represent your firm.

Not knowing what exactly works and what doesn’t in the branding world can make the task especially daunting. Producing a presence that is design friendly, easy to recognize, and represents your firm as a whole is a lengthy but valuable process. If your law firm doesn’t have the time to develop a world-class brand and presence, contact the legal branding experts at Stacey E. Burke P.C. to help.

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Supreme Court to Fashion Copycats: Hands-Off Cheerleader Uniform’s Distinctive Stripes

Originally published by Androvett Legal Media Blog.

Bold stripe patterns and other decorative elements on cheerleading uniforms can be protected by copyright law, the U.S. Supreme Court ruled Wednesday in a closely watched case that has implications for the fashion industry’s ongoing efforts to police counterfeit merchandise. The high court sided with Varsity Brands in a dispute with rival Star Athletica, finding that while the basic functional design of a uniform cannot be protected, Varsity’s copyrights for specific decorative patterns are valid. The opinion helps clarify a long-running debate over a manufacturer’s ability to protect products from knock-offs by copyrighting ornamental designs.

“The fashion and apparel industry is doing everything it can to combat counterfeiting, and this opinion provides the industry with another tool,” says intellectual property lawyer Amanda Greenspon of Dallas’ Munck Wilson Mandala. “Copyright enforcement will remain subjective and determined on a case-by-case basis, but this ruling will spur companies to obtain copyright protection of their work to discourage competitors with the threat of monetary damages.”

To speak with Amanda Greenspon, contact Robert Tharp at 214-559-4534 or


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A Girl Walks Home Alone at Night

Originally published by The Movie Court.

From the desk of The Movie Snob.

A Girl Walks Home Alone at Night  (B-).  Somehow I missed this 2014 black & white foreign-language vampire flick during its original release, but happily a friend invited me to a special showing last night at the Alamo Drafthouse.  (Actually I tried to talk her into seeing Logan instead, but she wasn’t having it.  She’s been a big vampire fan ever since New Moon.)  It’s a weird movie, but interesting.  Our hero is some ordinary guy living in a bleak industrial town called Bad City.  His father is a junkie, and a drug dealer takes our hero’s beloved car because dad can’t pay his debts.  Then the drug dealer abuses a prostitute who works for him.  This draws the ire of our vampire (Sheila Vand, Argo), an ordinary-seeming woman who ghosts around town at night and can sprout fangs in a jiffy.  Later she menaces a little boy and takes his skateboard.  After that she meets our hero after he has gone to a costume party (as Dracula!), and instead of making a meal out of him she actually seems to start liking him.  But you’re never really sure if she’s eventually going to chomp on him or not; her affect is pretty flat.  More stuff happens after that, in a slow, moody, artsy kind of way.  It held my interest.

(I’m categorizing it as a foreign film because it’s in Farsi, but I have read that it was actually shot in California.  The director, Ana Lily Amirpour, is Iranian-American.)

This was my first trip to an Alamo Drafthouse, and it was a pretty interesting experience.  We got to our theater pretty early, and before getting to the real previews they showed a bunch film clips and trailers from cheesy old horror movies back-to-back.  It was fine to set the mood, I guess, but it made conversation difficult.  I got food, which I seldom do at movie theaters, and got a mediocre Royale Burger with Cheese and some cold fries out of the deal.  The seats were comfy, though.

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Can You File a Personal Injury Lawsuit Against a Stalker?

Originally published by robertslawfirm.

In the Internet age, stalking has become an increased concern. Because of the Internet and social media, stalking is no longer limited to physically following someone or making harassing phone calls. Stalking can lead to a serious disruption of the victim’s life, and cause the victim to suffer severe emotional distress. Accordingly, recent laws have provided more protection against stalkers. Until recently, stalking was addressed as a form of harassment or nuisance. Some states — including Texas — have enacted anti-stalking statutes that specifically address the issue of stalking, and have created a specific cause of action for stalking. Under these anti-stalker statutes, stalking is harassment, and includes contacting, following, annoying and/or threatening someone. A victim must reasonably be in fear of his or her safety, or of that of an immediate family member, or even the safety of someone who lives with the victim. The victim must also establish that the defendant engaged in a pattern of conduct that would amount to stalking. One telephone call or personal appearance at work will usually not suffice. The defendant must also have threatened the victim in such a way that the victim genuinely was in fear. Furthermore, the threats must be aimed at a specific person and not be general in nature. In drafting anti-stalking laws, state legislatures have recognized that technology has increasingly made contact easier. Current anti-stalking laws encompass many devices used for stalking, including cell phones and computers. Of course, the threats or harassment made by a stalker must […]

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Thursday, March 23, 2017

Why I would not put Kodi on an Amazon Fire TV Stick (or any Streaming Device).

Originally published by Robert Z. Cashman.

Using Kodi on an Amazon Fire Stick might not get you sued for copyright infringement, but it puts you at risk by exposing your IP address and your activities.

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Who is Liable for Sports Injuries?

Originally published by robertslawfirm.

In full contact sports such as football or hockey, injuries are essentially unavoidable. Although lawsuits having to do with sports injuries are rare and rarely succeed, in certain circumstances liability is imposed. For example, if a player violates the rules of a game and purposely injures another player, the injured player may be able to charge the other player with battery. Consequently, the player who violated the rules may be liable for the other player’s damages. Another legal theory applied to sports injuries is negligence. Examples of negligence include: Unsafe facilities Unsafe equipment Lack of a competent coach (negligent supervising or training) Forcing an injured player to play Moving an injured player unsafely Allowing mismatched players to play Noncompliance with workers compensation laws Failing to certify a player’s physical condition Manufacturing unsafe equipment The party charged with negligence, such as a coach or other players, typically will use what is known as the “assumption of risk” defense. This defense claims that the player was aware of the risk of danger that is associated with the sport, and therefore cannot hold anyone else responsible for injuries sustained while playing the sport. An injured player must file the claim within a specific period of time, which varies from state to state. If the party being charged with negligence is an agent or agency of the government, the player charging negligence must also file a notice of claim with a particular government agency within a specific period of time. Again, this amount of time […]

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Texas Jury Reform Would Limit Prosecutors in Grand Jury Proceedings

Originally published by AZ.

Grand jury proceedings were originally designed to provide checks and balances against oppressive prosecution or potential witch hunts.

If passed, a proposal that’s currently before Texas lawmakers would make it mandatory for prosecutors to share evidence that could help a suspect’s case with grand juries. According to a Texas Tribune report, two versions of the same proposed law have been filed by both Democratic and Republican state lawmakers, meaning the bill has bipartisan support.

What Is a Grand Jury?

A grand jury differs from what people think of when they hear the term “jury trial.” When a grand jury is assembled, its function is only to determine if there is probable cause to believe an individual has committed a crime. If the grand jury finds there is probable cause it issues a formal charge, the indictment. Because a grand jury does not make an ultimate determination of guilt, the rules governing the process are much different than those in criminal prosecutions after the grand jury has returned an indictment.

Grand jury proceedings are not open to the public. This prevents people merely suspected of crimes from being publicly embarrassed by a disclosure that they are under investigation, and it aids law enforcement by not alerting suspects that they are under investigation.

Proposed Rule Change for Grand Jury Proceedings

According to one of the bill’s sponsors, grand jury proceedings were originally designed to provide “checks and balances against oppressive prosecution or potential witch hunts.” He claims that current rules and policies give prosecutors an “unfair advantage over the accused,” even in cases where the accused is innocent of any wrongdoing.

The bill would reform grand jury proceedings by requiring prosecutors to provide the grand jury not only with evidence that tends to establish the guilt of a suspect, but evidence that also tends to establish a suspect’s innocence.

Additionally, the proposed law would permit a suspect’s lawyer to be present during questioning and would stop prosecutors from going to a second grand jury if the first grand jury fails to indict.

The second proposed provision is designed to prevent instances of “double jeopardy,” according to a senior policy analyst with the Texas Public Policy Foundation. He stated that if a case has already been investigated and a grand jury said there’s not enough evidence to indict, the prosecutor shouldn’t have an opportunity to shop around for a grand jury willing to do so, as that sort of behavior goes against the principle that an individual can’t be prosecuted twice for the same alleged criminal offense.

Bill Would Also Allow Suspects to Receive Evidence

Another part of the proposed law would permit suspects to receive evidence from the case upon request, however, they would not have access to any identifying information about witnesses or alleged victims. This section of the bill would give suspects the ability to begin building their defense prior to setting foot in a courtroom — an option they don’t have under current Texas grand jury rules.



Mick Mickelsen Dallas Criminal Defense Lawyer

Founding Partner/Former Assistant Federal Public Defender

Contact Info

Broden & Mickelsen, LLP

2600 State St Dallas,

Texas 75204

(214) 720-9552

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Wednesday, March 22, 2017

Workshops held for Rio Grande Valley inventors, entrepreneurs

Originally published by Eric Quitugua.

state_bar_of_texas_129794Inventors and entrepreneurs will learn from attorneys about pertinent patent and trademark topics at free intellectual property workshops in the Rio Grande Valley.

The full-day workshops, one in Brownsville on March 23 and one in McAllen on March 24, are geared toward underserved inventors and entrepreneurs who may just be getting ideas off the ground and starting up businesses. Volunteer lawyers and examiners will be available for one-on-one private consultations about those ideas.

The Brownsville session will be hosted at the University of Texas Rio Grande Valley Entrepreneurship and Commercialization Center, 1601 Price Rd., Ste. E.

The McAllen session will be at the UTRGV Small Business Development Center, 1800 S. Main St., Ste. 1100.

The workshops are hosted by the two UTRGV centers, the State Bar of Texas Intellectual Property Law Section, and the United States Patent and Trademark Office.

To view the full agendas for the sessions and to register to attend, go to the Eventbrite pages for Brownsville and McAllen.

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SXSW law-related panels roundup

Originally published by Jillian Beck and Amy Starnes.

Attorneys had the opportunity to learn about new trends and topics in the law at many sessions at South by Southwest March 10-19. Here we provide a recap of some of the panels.

Read some of our past coverage about others involving crowdsourcing for access to justice, privacy and the Fourth Amendment in an evolving digital age, copyright infringement and music policy, and the possibility of law on Mars.

Legal challenges to ‘fairness bots’

University of Michigan Professor Christian Sandvig opened the panel “We Sued for Your Bots” on March 14 with a thought-provoking question: If you were being treated unfairly by an online platform, how could you tell?

Sandvig and other researchers, activists, and journalists aim to answer the query by using so-called “fairness bots” to test online platforms and websites—such as those involving housing, credit, and employment—for any possible discrimination against certain types of users.

The American Civil Liberties Union is representing Sandvig and many other researchers in a lawsuit with the federal government targeting a narrow part of the Computer Abuse and Fraud Act, attorneys on the panel said, that allows for the government to prosecute researchers or journalists for violating the terms of service of websites or online platforms.

The government is largely not pursuing such cases, ACLU attorney Esha Bhandari said, but they believe the law should be limited to preclude the possibility.

Sandvig, Bhandari, and ACLU attorney Rachel Goodman discussed the importance of technology companies addressing possible unintentional discrimination in software in the beginning of the development stages.

“It is likely that certain types of discrimination issues are going to crop up and it’s worth it to think about it early in the process,” Goodman said.

Trade secret protection

Anyone can have an idea about a product or a service, but it’s the execution of that idea that constitutes a trade secret that may be in need of protection, said experts on the March 16 South by Southwest panel “Trade Secret Protection and Cybersecurity Risks.”

Panelist Adam Gislason, an attorney with Fox Rothschild, told attendees that trade secrets are difficult to establish under the law. While it may seem a bit simple, a key to protecting a trade secret is that it has to be a secret. If a business owner doesn’t take steps to protect the “secret sauce,” it’s hard to prove later that it was actually a key component of the business and proprietary information, he said.

Ryan Tabloff, managing partner of Avantgarde Partners, said don’t toss around non-disclosure agreements loosely, however, innovators need to make sure they have appropriate agreements and contracts in place covering their employees.

“You have to assume they (employees) are going to go work for the competition tomorrow,” Tabloff said.

Building brands in film and television

The growth of reality television and new technology have introduced new opportunities for celebrities, influencers, and advertisers to build their brands, Los Angeles-based entertainment attorney Jody Simon said at the March 16 South by Southwest panel “Building Brands in Film & Television is the New Normal.”

Toward the end of the 19th century with the increase in massed produced consumer goods, advertisers started to partner with celebrities to create brand identities and associations through product endorsements, said Simon, a partner in Fox Rothschild.

Disney was an early leader in branding, Simon said, building off of its films with merchandising, live shows, theme park attractions, and remakes.

Reality TV and new technology, such as DVRs, have increased opportunities for product integration—like the Coca Cola products prevalent in American Idol, Simon said.

Celebrities and online personalities have capitalized on the proliferation of social media to enhance their brands and build large followings, he said.

“The critical thing for social media personalities in particular is their brand—and they have to be true to (it),” Simon said.

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Willful Blindness or Deliberate Ignorance – Either One Can Get You in Trouble

Originally published by Walter James.

It does not matter if you purposefully decided not to look at the results of an audit, you could still be found culpable.  Let us suppose you have engaged a firm to conduct an audit of your operations.  You get the audit report and stick it in a drawer and do nothing to review the results or correct any deficiencies or problems.  Are you still liable?  More than likely, yes.

In United States v. Uzoaga, No. 16-20211 (5th Cir. 2017), the Fifth Circuit affirmed the use of a “deliberate ignorance” instructions in those situations where the evidence shows that the defendant was aware of a high probability of criminal conduct  and still maintains that he/she had no knowledge of the conduct.  In Uzoaga, it was a doctor that did nothing to change billing practices, even after a Medicare audit indicated Medicare fraud.  The opinion states that: “Uzoaga reviewed the Medicare remittance notices yet refrained from ever inquiring with the treatment provider about the billing or coding used. Under the circumstances here, Dr. Uzoaga had good reason to be suspicious that illegal conduct was occurring in her patients’ treatment. After Dr. Uzoaga’s submission of documents to the audit response, Medicare denied some of the claims submitted. Regardless of the precise basis given by Medicare, the post-audit denial gives rise to a reasonable inference that Dr. Uzoaga was aware of a high probability of illegal conduct.”  The Fifth Circuit found that this should have put the doctor on notice of the high probability of illegal conduct.

Uzoaga was a Medicare fraud case.  How does that apply to the environmental world?  Well, if you do an audit and do nothing to correct deficiencies, the government has an argument that you are culpable by deliberately ignoring the results of the audit and what steps were necessary to correct the deficiencies.  It could certainly get a jury instruction that remaining deliberately ignorant when circumstances showed a high probability of illegal conduct may be circumstantial proof of the requisite guilty knowledge.  That would be deemed to be the same as a “knowing” violation of the environmental laws.

So, when it comes to audits, make sure there is not only a commitment to conducting the audit, but a commitment to correcting the deficiencies that are identified in the audit report.

And a shout out to my friend Jim Smith for bringing this case to my attention!

More later.

As always, feel free to contact me at


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