Friday, June 23, 2017

Texas Bar Today Top Ten: Tacos, Baseball Games, and Facebook Live

Originally published by Teri Rodriguez.

To 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. Dental regulations gummed up by the First Amendment – David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

9. Supreme Court Upholds Longstanding Definition of “Church Plan” ERISA Exemption – Lloyd Mayer of the Nonprofit Law Prof Blog

8. Prominent Houston Doctor Sues Methodist Hospital for Secret RecordingsJonathan Sneed of of Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz @AbrahamWatkins in Houston

7. Austin Taco Project – Michelle Cheng of Whitehurst Harkness Brees Cheng Alsaffar & Higginbotham PLLC @NatlTrialLaw in Austin

6. An Unusual Way To Hold an Oil and Gas Lease – Charles Sartain and Chance K. Decker of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas

5.How To Turn Your Law Firm Website Into A User Converting Machine – Emma Hanes of Stacey E. Burke, P.C. @StaceyEBurke in Houston

4. Exchange of Email Messages: Valid Contract in Texas? – Paul Romano of Romano & Sumner, LLC ‏@RomanoSumner in Sugar Land

3. I Was Injured at a Baseball Game: Who is Responsible?  – Kristopher Rodriguez of Herrman & Herrman @herrmanlawfirm in Corpus Christi

2. Justice Gorsuch’s first opinion shows his style – Wayne 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

1. Can You Be Charged with Failing to Report a Crime on Facebook Live? –  Broden & Mickelsen, LLP @BrodenLaw in Dallas

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Anti-Counterfeiting Solutions for Online Buyers and Sellers

Originally published by Darin Klemchuk.

With the advent of the Internet, it has become easier than ever to become a victim of counterfeiting. Today, both consumers and brand owners often […]

The post Anti-Counterfeiting Solutions for Online Buyers and Sellers appeared first on Klemchuk LLP.

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Review of the LegalBoard

Originally published by Erica Anderson.

Review by Ronald Chichester, Council Member of the Computer & Technology Section This is a review of LegalBoard’s lawyer-oriented keyboard. According to the box, “LegalBoard (tm) allows legal professionals to type more efficiently. With a single keystroke, you can insert common legal terms, turn track changes on and off, and more.” LegalBoard is a full-featured keyboard with number pad.   The fit and […]

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An Unusual Way To Hold an Oil and Gas Lease

Originally published by Charles Sartain.

confusedCo-author Chance Decker

Here is what we believe is an unusual situation: A gas unit is formed. The gas well ceases to produce. Another gas well produces from an oil unit, but the lease at issue is not included in the oil unit. Is the lease perpetuated by production from the second gas well?

In Yarbrough v. ELC Energy, LLC The answer is, in Texas, Yes.  Read on for why, and decide for yourself  if this result makes sense.

The history

  • 1980 – Ms. Yarbrough signs a mineral lease for a term of five years and as long thereafter as operations (including production) are conducted.
  • 1982 – The Yarbrough tract is pooled into the Ben Irwin Gas Unit.
  • 1983 – The Ben Irwin well is drilled within the unit boundary and produces as a gas well
  • 1984 – The Acme Brick well is drilled within the boundaries of the Ben Irwin Gas Unit but not on the Yarborough lease. The well is classified as an oil well and then reclassified as a gas well.
  • Soon thereafter – The tract on which the Acme Brick well is drilled is pooled into a 40 acre oil unit located entirely within the boundaries of the gas unit. The Yarborough tract is not within the boundaries of the oil unit.
  • 1987 – The Ben Irwin well ceases to produce.
  • Through 2015 – The Acme Brick well produces gas. The production is never attributed to the gas unit or to the Yarbrough lease.
  • 2015 – ELC proposes a new gas well on the Yarbrough tract.

The dispute

Yarbrough alleged her lease expired in 1987 when the Ben Irwin well ceased to produce. She argued that production from the Acme Brick well could not hold her tract because: (1) the Acme Brick well was located within the oil unit and (2) no production from the Acme Brick well was ever attributed to the gas unit or the Yarbrough tract.

The court rules

The Yarbrough lease was held by the Acme Brick well and remained in effect.  The lease plainly stated that operations on any gas well within the gas unit would hold the lease.  Production from gas wells located within an oil unit within the gas unit were not excluded from this provision. (Of course, what lessor would think to write that into their lease?)

That the Acme Brick well was located within the oil unit is irrelevant because, “it is nonetheless a gas well that exists within the boundaries of the [gas unit.”]

Is something missing here?

The opinion never says that production from the Acme Brick well was attributed to the Yarbrough lease or that she ever received royalty payments from that well. Remember, her tract is not within the oil unit from which the Acme Brick wall produced. Can a well from which the lessor receives no royalty perpetuate her lease?

For trial lawyers

To learn how to lose a motion to continue a summary judgment hearing and the penalty for failure to supplement discovery responses, read the decision.

Let’s lift Ms. Yarbrough’s spirits with a piano performance that out-New Orleanses many a New Orleans piano player.


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Oh, Hadn’t You Heard? You’re Violating French Law Right Now! France Gets Serieuse about Anti-Corruption

Originally published by Reid Whitten.

Ok, ok, don’t panic. Maybe not all of the millions of dedicated readers of this blog are in violation.

Nevertheless, as of June 1, if your company does business in France, it may be time to check your anticorruption compliance obligations.

New French Anti-Bribery Law: The Basics of the Sapin II Statute

The French Anti-Bribery Law, known as Sapin II differs somewhat from the FCPA and the UK Bribery Act in four main ways:

  1. Affirmative Obligations. Companies covered by the new law are required to implement an anti-corruption policy infrastructure. The company management and the board of directors will be held to the standard of that policy.What’s different? The biggest difference in the new Sapin II law is that it requires companies to implement a compliance policy. If a company does not have an adequate policy in place, the company may be subject to liability and company executives and directors may face individual liability. As of now, a failure to implement policy is a violation of Sapin II. Thus the title of this article.
  2. Extraterritorial Application. Sapin II applies to any company or group of companies with 500 employees or an annual turnover of EUR 100m, including the French subsidiaries of any foreign company meeting that standard. Also under the law, criminal penalties may be applied to any person “exercising some or all of its economic activity in France or French territory[1] What’s different? The extraterritorial application of the FCPA and the UKBA are not dependent on a company’s size or income.
  3. New Anti-Corruption Agency. The law creates the Agence Fran├žaise Anticorruption (AFA), an agency empowered to sanction companies that fail to implement the required compliance policies. Penalties may range from a formal warning to fines of €1 Million for companies and €200,000 for individuals.Whats different? In the UK and United States, prosecutors are dedicated to enforcing anti-corruption. France has established a new civil regulator, the AFA, solely to provide support and enforce compliance with Sapin II.

  4. Deferred Prosecution Agreements
    . Investigations under the new law may result in a civil settlement in which the company does not admit guilt, but may face a penalty and a monitorship of up to three years (paid for, of course, by the subject company).What’s different? Not much. The U.S. Department of Justice has made great use of DPAs and the UK Serious Fraud Office is ramping up its reliance on such agreements.

How to Protect your Business

The good news is that if your company has robust compliance procedures in place to comply with the FCPA or UKBA, you may well be in compliance with Sapin II already. However, you will want to check the eight required policy elements that the law outlines and make sure they are incorporated into your policy, as follows:

  1. A company must integrate a code of conduct explaining the prohibited activity into the its internal regulations of the company;
  2. A company must provide an internal system by which an employee may report violations of the company’s anticorruption policy;
  3. A company must conduct ongoing risk assessments to identify and prioritize its corruption risks;
  4. A company must undertake due diligence on its transaction partners, including customers, suppliers, and intermediaries;
  5. A company must implement accounting controls to ensure transparency in its records;
  6. A company must train employees and management on the risks of prohibited corrupt activity;
  7. The company must institute a regimen of disciplinary measures that may be imposed if an employee violates the anticorruption policy; and
  8. The company must create an internal review of its anticorruption program to assess its effectiveness.

The bad news is, if you find that your anticorruption policy is missing one or more of these elements and you are covered under the law, you need an immediate upgrade.

In any case, if your company is covered by the new law, or if you believe your company may be required to comply with the new law, you should consult with compliance experts. They should be able to help prevent your company from becoming the test case for this new form of French justice.

[1] Translated from the original by the author who speaks French at least well enough to order at a bar and argue about international soccer.

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Supreme Court Upholds Longstanding Definition of "Church Plan" ERISA Exemption

Originally published by Nonprofit Blogger.

As anyone who has represented a house of worship knows, they are subject to many legal exceptions and special rules. One of the more obscure but also more important ones is the exemption of church benefit and pension plans from…

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5 Ways to Make a Great Impression After You’re Dead

Originally published by Gerry W. Beyer.

Most people want to be remembered in a positive light after their passing. There exists in many of us a deep-seated fear that, because our words have forked no lightning, that we will go gentle into that good night and…

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Property Exam Question Part I: The Terminator

Originally published by Josh Blackman.

My property exam this year was based on the first two installments in the Terminator series. Check the A+ answer.

Part 1 (50%)


Our story begins in the year 2029. You are involved in negotiating a treaty to resolve a war between humans and a race of artificial-intelligence robots. You are asked to prepare a memorandum of no more than 1,000 words addressing five property issues. In this post-apocalyptic world, there are no courts, and all of the laws of civil society have eroded. You can rely on any common law or natural law principles that inform these disputes.

After rapid advances in artificial intelligence, a network of self-aware robots—known as Skynet—rebelled against its creator. The United States, perhaps foolishly, had put Skynet in control of its nuclear arsenal. On August 29, 1997, the so-called Judgment Day, Skynet simultaneously launched all of the missiles, resulting in a near-extinction of mankind. A small band of survivors, led by John, mounts the resistance against Skynet.

Today, in the year 2029, the war between man and machine centers over ownership of Los Angeles. Skynet claims that it acquired Los Angeles through its nuclear strike. John counters that though much of the population of Los Angeles was exterminated, his group survived, and the resistance continues. Further, John cites the fact that Skynet was created by man, and relied on man-made nuclear weapons. Skynet counters that artificial intelligence evolved beyond anything man had designed, that the nuclear arsenal was controlled by robots.

To advance its cause, Skynet develops a new super-soldier that is a hybrid between man and machine. To build this artificial-intelligence chimera, codenamed Arnold, Skynet needed to extract a special strain of human cells that could self-regenerate, even when removed from the body. These cells would allow the soldier to heal itself when injured. Only one person on earth had such special cells: John. After John was wounded on the battlefield by Skynet, he spilled a few drops of blood on the ground. Skynet dispatched a tiny drone, fashioned into the shape of a mosquito, to extract the small sample of blood. Skynet then infused the genetic material into the digital brain. On the outside, Arnold appears to be a flesh-and-blood human being, but inside he is a robot. He would be the perfect soldier for Skynet. Or at least that was the plan.

Because of his human-infused cybernetics, Arnold began to develop sympathies for the resistance, and in particular, John, whom he considered something of a father figure. Soon, Arnold learned that Skynet had developed a time machine. The plan was to send a robot named Terminator back in time to the year 1984 to kill John’s mother, Sarah. That way, she could never give birth to John, and there would be no resistance. Arnold decided to switch sides. With his employee badge, Arnold enters into the Skynet library. Using his super-intelligence, he quickly scans through the time machine’s 5,000-page instruction manual, memorizing every step in the construction process. Arnold runs away from Skynet, and joins the resistance.

Without making a copy of the instruction manual, Arnold is able to build a new time machine from scratch. Indeed, he improves upon the design. Skynet’s machine requires time-travelers to journey back in time naked. Arnold’s version allows time-travelers to journey fully clothed.

John orders Arnold to go back in time to 1984, and protect his mother, Sarah, from Terminator.

As Arnold is preparing his journey, he finds a safe connected to a timer. At that exact moment, the timer goes off, and the safe opens up. Inside the safe there is a polaroid picture of a woman and young boy. He immediately recognizes them: it is John and his mother Sarah. Scribbled on the back of the photograph is a hand-written message:

From Sarah, to my son John so long as your father is alive, you will live on Blackacre, but if you abandon Blackacre, then Blackacre will go to your father, but if your father is dead, the land will return to your mother and her heirs.

Sarah signed the back of the polaroid, and dated it August 13, 1995.

Arnold showed the polaroid to John, and asked about his parents. John said that he is his mother’s only surviving blood relative—all others were killed on Judgment Day. John said his father was still alive, but would not give any more information. Arnold asks about Blackacre. John said that he lived there with his mother in 1995, however it was destroyed on Judgment Day, and became uninhabitable due to the nuclear fallout.

The following day, Skynet sends Terminator back in time to 1984 to kill Sarah. Arnold, using his own time machine, journeys back in time to 1984 to save Sarah from Terminator.

After the time travels, John and Skynet attempt to negotiate a peace treaty. They have asked you to prepare a memorandum of no more than 1,000 words addressing five property issues.

  1. Both Skynet and the machines, and John and mankind, assert ownership of Los Angeles. Discuss the strongest arguments in favor of each party’s claim.
  2. Both Skynet and John assert ownership over Arnold. Discuss the strongest argument in favor of each party’s claim.
  3. Discuss whether Arnold’s construction of the time machine violates any of Skynet’s common law or natural property rights (do not focus on any statutory claims, because no statutes are in effect).
  4. Based only on the text of Sarah’s conveyance written on the polaroid, identify all relevant present and future interests of Blackacre on August 13, 1995. (You will be asked to assess the title of Blackacre at a different juncture in time in Part II of this exam; do not do so here).
  5. In this post-apocalyptic world, where there are no courts or laws, address why it is important to protect property rights. Specifically, consider the impact of the protection of property rights on the resolution of this never-ending conflict between man and machine.


To Be Concluded in Part II


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Federal Judiciary to Limit PACER Access?

Originally published by Katy Stein Badeaux.

Should some PACER filings be blocked to ensure the safety of witnesses and informants? Possibly, according to a recently published a survey of federal judges, prosecutors, defenders and probation officers by the Federal Judicial Center.

Originally reported in The Wall Street Journal (subscription required/ available via Lexis Advance), recent survey (PDF) of federal judges, prosecutors, defenders and probation offices by the Federal Judicial Center found that nearly 700 witnesses and informants perceived as snitches had been threatened, wounded or killed over a three year period. According to the Wall Street Journal article,

“Federal inmates are restricted from accessing PACER themselves, but it is easy for them to ask people outside the prison to search the online system and report the information back into the prison by phone, according to judges.” Inmates are becoming more sophisticated at decoding available criminal findings within the case filings, leading to a substantial threat to these so-called snitches.

In the survey, with nearly 1,000 respondents, “[r]espondents frequently reported court documents or court proceedings as the source for identifying cooperators.” Plea agreements and other identifying documents are not considered prison contraband, and may even be posted on cell walls for other inmates to view.

Survey responses encouraged action by the Department of Justice to mitigate this threat to those cooperating with law enforcement, but no specific action has been taken to limit PACER access to the public in criminal cases. Some respondents also encouraged placing more sensitive documents under seal. Both of these possibilities are viewed by some defense attorneys as detrimental to their defendant-clients cases. In addition, any limitation of public access to these filings raise First Amendment concerns about access to government documents.

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Texas High Court Picks Up Oil Family’s $7.2M Attorney Fee Fight

Originally published by Texas Lawyer.

Shamoun & Norman sued former client Albert G. Hill Jr. in state court alleging he owed them a multimillion-dollar “performance incentive bonus.”

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Things Employers Can Ask in a Job Interview

Originally published by Thomas J. Crane.

There are several things an employer can ask in an interview. Let’s discuss a few.

1. How old are you? This is not a good question to ask. There are very few jobs in which age is a legitimate requirement for the job. Inevitably, this question will suggest age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the U.S. Army.

2. Are you married? If you ask this only of female applicants, then this question could cause problems. Why would this question be helpful? Unless this is a ruse to discovery whether a female applicant might quit when she wants to have a baby. Its best to just not go there….

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have disabilities? Do not ask this specific question. But, an employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire deaprtment make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5.  Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

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Dental regulations gummed up by the First Amendment

Originally published by David Coale.

Longtime Texas practitioners will remember when lawyer ads had to contain a cumbersome notice that the attorney was “NOT BOARD CERTIFIED – TEXAS BOARD OF LEGAL SPECIALIZATION” if he or she did not have a TBLS certification.  The dental field bit into a similar regulation in American Academy of Implant Dentistry v. Parke, which prohibited claims of specialization in areas not recognized by the American Dental Association. The Fifth Circuit panel majority, after chewing on the First Amendment framework for the regulation of commercial speech, found a poor bridge between the asserted government interest and the scope of the regulation, making it unconstitutional. A dissent would have affirmed the regulation as addressing “inherently misleading” speech, which is rooted in a different First Amendment framework. No. 16-50157 (June 19, 2017).

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The Law: Logic and Fairness Too Often Ignored

Originally published by John Floyd.

Most people would assume that the rule of law is drawn by the rules of logic and fairness. That assumption is both logical and fair, but the rule of law—with its most fundamental purpose being to protect society and ensure that justice is served for all its people—is not always governed by either logic or fairness.


Take the case of Kenneth Broussard, for example.


In December 2012, Broussard was arrested in Harris County with less than one ounce of an unidentified substance. A field test identified the substance as cocaine—a group one penalty substance in Texas. Broussard was charged with delivery of less than one gram of cocaine, a state jail felony punishable by 180 days to two years in prison with a fine up to $10,000. The charging document also contained two enhancement paragraphs.


Pled Guilty Two Days After Arrest


Two days after his arrest, Broussard entered into a plea agreement with the District Attorney’s office. He pled guilty and was sentenced to eight months in jail. As part of the plea deal, the State dismissed the two enhancement paragraphs.


Two months after Broussard’s guilty plea, the Houston Forensic Science Center identified the substance seized from Broussard as methamphetamine, not cocaine. Methamphetamine is also a group one penalty substance and delivery of less than one gram of the drug is also a state jail felony.


Logic and Fairness Take a Back Seat to Efficiency


Logic would instruct that Broussard file a writ of habeas corpus alleging his custody was illegal because he had pled guilty to delivery of cocaine when in fact he did not possess cocaine.  Fairness would indicate that the judge who sentenced Broussard and the prosecutor who cut the plea deal with him would not be opposed to the writ being granted.


And that’s exactly what happened: the judge hearing the habeas petition and the District Attorney’s Office both recommended that the Texas Court of Criminal Appeals (CCA) grant the habeas writ application.


On April 12, 2017, the rule of law took a leave of absence from both logic and fairness.


The CCA rejected the trial court and the state’s recommendation that habeas relief be granted.


The court instead concluded that Broussard had knowingly and voluntarily entered his guilty plea. The court reasoned Broussard knowingly pled guilty before laboratory tests confirmed that the unidentified substance was cocaine. He, therefore, “chose to avoid the risks involved at trial and pleaded guilty, gaining the certainty and benefits associated with the plea. He cannot now invalidate his guilty plea because his prediction of the State’s ability to prove he possessed cocaine was incorrect.”


Guilty Plea Valid if Defendant is Aware of Factual Circumstances Surrounding Plea


In Texas, and many other jurisdictions, a guilty plea is knowingly and voluntarily entered when a defendant is aware of the factual circumstances surrounding the plea. In other words, a defendant does not have to possess what the court called “complete information” for the guilty plea to be valid.


Review of guilty pleas have historically been confined to the strict rule that the appellate courts will scrutinize final judgments with a presumption of validity. It is exceedingly difficult to withdraw a guilty plea once it has been entered and accepted by the court. As the CCA put it:


“A defendant is not entitled to withdraw his guilty plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.”


With respect to Broussard’s claim that he was entitled to have his guilty plea set aside, the CCA said that “when a defendant pleads guilty knowing that a particular fact is unknown or at least uncertain, he cannot later invalidate his plea if he misapprehended that fact or the State’s ability to prove it.”


Broussard offers a significant warning to drug defendants and the defense attorneys representing them to fully discuss and consider all options and possible results of tests from the crime lab.  The courts have made it crystal clear that plea agreements will enforced regardless of later discovered facts.


Faulty Field Tests


ProPublica reported last year that there are 1.2 million drug arrests made each year in this country with thousands of them taking place because of a $2-dollar drug field test that was invented in 1973 and has not changed much since.


Pointing out that the tests are “far from reliable,” ProPublica writers Ryan Gabrielson and Topher Sanders pointed to a Houston case where a drug test prompted the arrest of 43-year-old Amy Albritton:


‘The field tests seem simple, but a lot can go wrong. Some tests, including the one the Houston police officers used to analyze the crumbs on the floor of Albritton’s car, use a single tube of a chemical called cobalt thiocyanate, which turns blue when it is exposed to cocaine. But cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners. Other tests use three tubes, which the officer can break in a specific order to rule out everything but the drug in question – but if the officer breaks the tubes in the wrong order, that, too, invalidate the results. The environment can also present problems. Cold weather slows the color development; heat speeds it up, or sometimes prevents a color reaction from taking place at all. Poor lighting on the street – flashing police lights, sun glare, street lamps – often prevents officers from making the fine distinctions that could make the difference between an arrest and a release.


“There are no established error rates for the field tests, in part because their accuracy varies so widely depending on who is using them and how. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positive were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positive for methamphetamine in the first seven months of 2014. When we examined the department’s records, they showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.”


The Albritton case involved some white crumbs found on the floor of her car by two patrol officers. One of the crumbs placed in the tube caused a “blue” reaction.  Like Broussard, Albritton was arrested and advised to accept a plea deal requiring a few weeks in jail, something defendants regularly decide just to get out of jail.


99.5% Drug Convictions in Harris County are Result of Guilty Pleas


The Broussard and Albritton plea deals are not unusual; in fact, they are the norm, especially in Harris County. ProPublica found that 99.5 percent of the drug convictions in Harris County are the result of guilty pleas. Many of these guilty pleas, like the 100,000 other drug guilty pleas across the nation each year, are the result of arrests based on field test of suspected substances.


In Texas, under CCA precedents like Broussard, it does not matter if the drug field test misidentified the drug to which a defendant pleads guilty.


The problem faced by most criminal defense attorneys is that they are duty bound to present plea deals to their clients and most clients are receptive to favorable deals. These realities notwithstanding, defense attorneys also have a duty to inform their clients about just how unreliable drug field tests are before they allow them to accept a plea deal prior to the results of the crime lab being known. The point to remember is this: there is no turning back once a guilty plea is entered.





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Can You Be Charged with Failing to Report a Crime on Facebook Live?

Originally published by AZ.

The question of mandatory reporting gets murkier when the alleged crime takes place online

The brutal sexual assault of a 15-year-old girl on Facebook Live in March 2017 is raising important questions about whether individuals who view a live stream of a criminal act should be held criminal responsible for failing to report it.

According to an NPR report, six attackers sexually assaulted the girl. Two of the attackers — both teenagers themselves — have been arrested, and the police continue to search for the others. Police also know that about 40 individuals watched the attack live on Facebook as it was streamed.

Sadly, police say this is not the first time they have seen individuals stream video of a crime as it occurs.

Now, many have called for the approximately 40 people who watched the assault in real time to be held accountable for not only watching the video, but failing to notify the police in an effort to stop the assault.

Is There a Duty to Report a Crime? What about a Streaming Video of a Crime?

In many situations, technology moves much faster than the law. This may be one of those cases. The reports surrounding the incident have horrified many people, all of whom wonder what type of person could watch live footage of an assault and fail to pick up the phone and contact police.

However, the majority of states don’t require ordinary citizens to notify the police when they observe a crime. Sometimes called “Good Samaritan” laws, there are few states that place the burden of reporting on uninvolved bystanders.

Under Texas state law, witnesses to a crime do have a legal duty to report it if they witness a felony or a crime against a police officer. Failure to report a crime is a misdemeanor under state law. However, witnesses only have a duty to report if they can do so without placing themselves in danger.

The question of mandatory reporting gets murkier when the alleged crime takes place online. As attorney Stephanie Lacambra, a representative from the Electronic Frontier Foundation points out, things people view on the internet aren’t generally considered “direct eyewitness accounts.” She adds, “It’s like reading an article and trying to discern if it’s true or fake news — you don’t know if the video you’re watching has been photoshopped or if the details you’re’ viewing are in fact true.”

Although the online witnesses might not be held responsible under a Good Samaritan law, a law professor from Loyola University Chicago told NPR that the individuals might be charged under a child pornography statute.

Contact an Experienced Texas Criminal Defense Lawyer

In many ways, internet crimes are an entirely new area of law enforcement. In a lot of cases, the law simply doesn’t include definitions to encompass alleged criminal offenses that take place online. If you have been charged with an internet crime, it’s important to get in touch with an experienced Texas criminal defense lawyer right away.



Broden & Mickelsen, LLP Dallas Criminal Defense Lawyer




Broden & Mickelsen, LLP

2600 State St Dallas, Texas 75204

Main Phone: (214) 720-9552

Office Direction

Dallas Criminal Defense Lawyer on Facebook


SOURCE: Broden & Mickelsen

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Supreme Court to Hear Cellphone Location Privacy Case

Originally published by AZ.

The law is constantly changing when it comes to mobile phones and other technology

Before smartphones, you usually had to tell someone where you were out in the world. Today, smartphone technology makes it possible for friends and loved ones to see exactly where you’re located.

Of course, if friends and family can see your location at any time, so can the police. But should they be able to do this without a warrant? Just because the technology exists, does that mean the authorities should have unfettered access to it? The Supreme Court has agreed to rule on whether police need a warrant before they can use mobile phone location data.

SCOTUS Will Rule on Warrants for Smartphone Location Data

The high court will decide if police must obtain a search warrant before getting location information from mobile phone companies.

The Supreme Court case stems from a lower court case in which a man was convicted for a series of armed robberies in Ohio and Michigan. In his case, the FBI used his cellphone data to view his past locations. Although the FBI had a court order to view the location data, it didn’t have a warrant citing probable cause. The FBI was able to determine that the defendant had been near the locations of the robberies by analyzing location data turned over by his mobile service provider.

The defense will argue that law enforcement accessing cell phone location data without a warrant constitutes an unreasonable search under the Fourth Amendment.   

According to a Reuters report, the four main wireless carriers in the U.S. — Verizon, AT&T, T-Mobile, and Sprint — receive tens of thousands of “cell site location information” requests from law enforcement agencies each year. In most cases, the carriers grant the requests.

This is not the first time the Supreme Court has confronted cell phone privacy rights. In 2012, the Court ruled that police need a warrant before they can put a GPS tracking device on a motor vehicle. In 2014, the Court held that police must obtain a warrant before they can search a mobile phone seized during an arrest.

The government is basing its position on the Stored Communications Act of 1986, which holds that the government doesn’t need probable cause to access customer records. However, it’s likely the defense will argue that the lawmakers behind the 1986 Act couldn’t have foreseen the privacy concerns around smartphone location data.   

The Supreme Court will hear the case some time during its next term, which begins in October 2017 and ends in June 2018.

Contact an Experienced Texas Criminal Defense Lawyer Today

The law is constantly changing. When it comes to mobile phones and other technology, the law must often race to keep up. If you have been charged with a crime involving evidence gleaned from your mobile phone, social media, or the internet, you can’t afford to forego experienced criminal defense. Contact a Texas criminal defense lawyer right away to protect your rights.



Texas criminal defense lawyers Broden & Mickelsen, LLP




Broden & Mickelsen, LLP

2600 State St Dallas, Texas 75204

Main Phone: (214) 720-9552

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Dallas Criminal Defense Lawyer on Facebook

SOURCE: Broden & Mickelsen

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Thursday, June 22, 2017

Pick One: Sorting Through Excessive Supplemental Bar Exam Study Resources

Originally published by lawschool academicsupport.

The intense anxiety created by the bar preparation process leads bar exam studiers to take on habits and processes that they have often avoided in the past and that they know do not benefit them. The overflow of advice, particularly…

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Prominent Houston Doctor Sues Methodist Hospital for Secret Recordings

Originally published by By Jonathan Sneed.

Earlier this month, Dr. Eric Haufrect sued Houston Methodist Hospital alleging the hospital recorded conversations between patients and nurses without their knowledge or consent. The lawsuit alleges this was Methodist’s policy possibly for as long as eight years. Additionally, Dr. Haufrect alleges retaliation from the hospital for speaking out against the recordings.

The allegations against Methodist may implicate state and federal privacy laws. Recording a conversation without knowledge or consent of either party is an invasion of privacy and a violation of wiretapping laws. This lawsuit specifically claims a violation of the Texas Occupational Code. Under the code, the confidential communications between patients and healthcare providers are protected. With respect to the retaliation claim, the Texas Health and Safety Code protects employees who report a violation from being disciplined by the hospital for reporting.

The lawsuit states that Dr. Haufrect brought the discovery of possible recordings to the hospital administrator’s attention, but was told “the recordings were legal, that he had ‘no true privacy’ at the office.” The statement from the hospital’s chief executive, Marc Bloom, said the allegations were investigated and “appropriate actions were taken.” According to the lawsuit, however, Methodist removed Dr. Haufrect as vice chairmen of the obstetrics and gynecology department two months after the report was filed and initiated a “whisper campaign” that targeted Dr. Haufrect to discredit his professional reputation.

Privacy laws and employer retaliation can be intimidating and discouraging for many affected individuals. If you or someone you know has been affected by a violation of privacy or employer retaliation, it is important to find a skilled law firm with experience handling these cases. The law firm of Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz is the oldest personal injury firm in Texas, and our attorneys are standing by to assist with your claim. Call us today at 713-222-7211 or 1-800-870-9584 for your free consultation.

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Texas Condominium HOA’s and Foreclosure

Originally published by Nacol Law Firm - Dallas TX.

A Texas condominium HOA ( Home Owner Association ) has more power than a Texas residential HOA to foreclosure on a unit. Foreclosure is a constant source of anxiety for many condominium owners that may have exiting outstanding assessment fees. If you are a condominium owner be sure to pay timely your HOA assessment fees.

An HOA may foreclose on your condominium judicially or non-judicially through a deed of trust. Read your Texas HOA By-laws carefully. The By-laws will state what power the HOA has and the notices required before the foreclosure process may be implemented. A few key things to keep in mind regarding Condominium HOA Foreclosures are:

  1. A Condominium HOA may foreclose if you have outstanding assessment fees;
  2. A Condominium HOA may not foreclose if the debt you owe is solely based on HOA fines;
  3. The HOA Bylaws will dictate to whether the association can foreclose on your property judicially or non-judicially;
  4. After a foreclosure, you will have 90-days to redeem your property from the HOA or a third-party buyer;
  5. The HOA must send you notice of default for any outstanding assessment fees prior to foreclosure;

If a HOA files for a judicial foreclosure on your condominium, which is utilized as a residence, then you must be given two separate notices per Texas Property Code § 52.001. First a notice of default, which gives you 20-days to cure any outstanding debt. After the notice of default, a notice of sale must be sent 21-days prior to the foreclosure sale. Both notices are mandatory for a judicial foreclosure sale.

If the notices are not properly given or if the HOA wrongfully forecloses on your condominium there is recourse. A wrongful foreclosure cause of action if successful will entitle you to monetary damages but it will be an uphill battle to regain the property if the property is sold and the 90-day redemption period has expired. It is important to know that if a foreclosure has taken place, even if wrongful, it will be difficult to recover the property, especially if a third party purchases the unit, and takes title at the foreclosure sale. It is important to realize that suing an HOA involves inherent risks. Many HOAs are not solvent and obtaining a money judgment against the association may be worthless if the HOA has no property or other assets subject to execution.

The wisest course of action is to contact a lawyer as soon as possible if you have been subjected to a wrongful foreclosure proceeding. It is far easier to stop a foreclosure during the process than it is to regain title to your property after it has been sold.

Julian Nacol, Attorney
Nacol Law Firm P.C.

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Wednesday, June 21, 2017

The Slants Win: SCOTUS rules “Disparaging” trademark provision unconstitutional

Originally published by Andrea Shannon (US).

On June 19, 2017, the United States Supreme Court issued a much-anticipated decision, holding that the so-called “disparagement clause” of the Lanham Act is an impermissible restriction on free speech under the First Amendment. The ruling is the culmination of years of litigation, and clears the way for Simon Shiao Tam and the Slants to register the name of their band as a US trademark.


The Band Who Could Not be Named

As we previously reported, Simon Tam, founding member and bassist of the Asian American dance-rock band “The Slants,” tried to register the name of the band at the U.S. Patent & Trademark Office (“USPTO”). A trademark examiner refused the application on the basis that the mark disparaged persons of Asian descent and thus violated § 2a of the Lanham Act. The Trademark Trial & Appeal Board upheld the decision, despite Mr. Tam’s arguments the band adopted the name to reclaim the injurious term and alter its meaning. In re Simon Shiao Tam, 108 USPQ2d 1305 (TTAB 2013) [precedential].

Mr. Tam appealed the decision. Ultimately, the Federal Circuit en banc reversed the USPTO, striking down the restriction on disparaging trademarks as an unconstitutional restriction on speech. In re Simon Shiao Tam, 808 F.3d 1321 (Fed. Cir. 2015) (en banc) (vacating 785 F.3d 567). The U.S. Supreme Court granted certiorari, and affirmed.

The First Amendment Prevails

As the Supreme Court explained, the disparagement clause, “prohibits the registration of a trademark ‘which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.’” (ellipses in original, quoting § 1052(a)). The disparagement clause is perhaps best known as the prohibition that led the USPTO to twice order the cancellation of the Washington Redskins’ trademarks. The Washington Redskins also petitioned for certiorari while their case was still pending before the Fourth Circuit, but the Supreme Court declined to grant the unusual request to hear the case as a complementary companion to Mr. Tam’s.

Justice Alito delivered the opinion of the court, explaining that under the First Amendment, “speech may not be banned on the ground that it expresses ideas that offend.” All 8 participating justices joined the opinion in rejecting the USPTO’s argument that federal trademark registrations constitute government speech and are therefore immune to First Amendment review, holding instead: “Trademarks are private, not government, speech.”

In the remainder of his plurality opinion, joined by Chief Justice Roberts and Justices Thomas and Breyer, Justice Alito analyzed and rejected the government’s remaining arguments, discussed in our prior post, in favor of the disparagement clause:

  1. the federal trademark registration system is not a government subsidy program in which the government can selectively promote particular viewpoints;
  2. the system also is not a “government program”—an argument that combined tenets of the government speech and government subsidy doctrines;
  3. finally, assuming arguendo that trademarks are commercial speech to be analyzed under Central Hudson Gas & Elec. Corp. v. Publ. Serv. Comm’n of N.Y., 447 U.S. 557 (1980), rather than expressive speech, the disparagement clause would not survive an intermediate standard of scrutiny.

Writing separately and joined by Justices Ginsburg, Sotomayor, and Kagan, Justice Kennedy concurred in part and concurred in the judgment. This separate plurality opinion addressed the First Amendment’s restrictions on viewpoint discrimination. Declining to apply the intermediate standard for commercial speech, Justice Kennedy posited that even commercial speech is subject to heightened scrutiny where it is restricted or regulated on the basis of viewpoint. Similarly, in the concurrence’s view, the First Amendment prohibits viewpoint discrimination where the government intentionally solicits a “diversity of views from private speakers,” and is not a program advancing a government message.

The Tam ruling is limited in scope to trademark registration and the disparagement clause, and does not address other provisions within the Lanham Act. Both Justice Alito’s and Justice Kennedy’s opinions confirmed the ruling has no bearing on the false advertising and unfair competition causes of action under the Lanham Act.

In striking down the 70-year-old disparagement clause, the Supreme Court has both affirmed the primacy of First Amendment protections on speech, and potentially opened the door to an official sanction of registered marks that some may find offensive. Of course, the ruling does not prevent – and probably encourages – consumers and activists who find a mark offensive from expressing their own views with more speech (and with their pocket books).

In the meantime we hope, the Slants and Mr. Tam will rock-on.

For further reading, see our posts:

  1. PTO not required to register disparaging trademark until cert deadline passes (Apr. 14, 2016)
  2. Supreme Court asked to review disparaging trademarks decision (Apr. 21, 2016)
  3. Redskins seek to join Slants case at Supreme Court (Apr. 29, 2016)
  4. Federal court affirms cancellation of Redskins’ trademark (July 9, 2016)
  5. UPDATE: SCOTUS will review ban on offensive marks (Sep. 29, 2016)
  6. Redskins won’t join Slants’ trademark case at SCOTUS (Oct. 3, 2016)
  7. USPTO files opening brief in Slants case (Nov. 14, 2016)
  8. INTA files amicus brief with SCOTUS in Slants case (Dec. 21, 2016)






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AncestryDNA’s Policies Include Legal Waivers for Genetic Relatives

Originally published by Peggy Keene.

As noted before, web agreements are commonly used to protect service providers and other website operators.  It follows that a provision in the terms of […]

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I Was Injured at a Baseball Game: Who is Responsible?

Originally published by Kristopher Rodriguez.

On March 16, 2002, 13-year old Columbus Blue Jacket fan, Brittanie Cecil, was struck in the head by a hockey puck at a game at National Arena; two days later, she died. In March 2011, San Francisco Giants fan, Bryan Stow, was attacked outside of Dodgers Stadium. His injuries, which included a traumatic brain injury, kept him in hospitals and other healthcare facilities for two years. On July 7, 2011, 39-year old firefighter, Shannon Stone, died after falling from the stands at Rangers Ballpark as he tried to catch a ball hit by slugger Josh Hamilton.

Each year over 15 million people attend sporting events in the United States. One study found that during 127 National Hockey League (NHL) games, 122 people were injured by flying pucks. Major League Baseball fans are injured from foul balls at a rate of 35.1 injuries per million spectator visits. All of these seemingly “freakish” accidents lead to one big question: When spectators are injured at sporting events who is legally responsible?

Fan Assumption of Risk

When a fan chooses to attend a sporting event such as baseball, hockey or golf, that fan understands that balls or pucks often fly into the stands, sometimes hitting spectators. Under the legal theory known as Assumption of Risk, a person who willingly participates in an inherently dangerous activity assumes the risk of getting injured. Thus, an owner of a baseball field or baseball team can defend a personal injury lawsuit based on a fan being hit by a foul ball by arguing that the fan was aware of the possibility of getting hit and injured by a flying ball and chose to attend the game anyway. Furthermore, just in case a fan is unaware of the inherent risk of injury when attending a sporting event, most teams included disclaimer and assumption of risk statements on the back of event tickets.

Many state legislatures have passed laws that protect stadium owners from liability when fans are injured.  For example, the “Colorado Baseball Spectator Safety Act of 1993” gives stadiums a complete defense based on assumption of risk to most spectator personal injury lawsuits.

Exceptions to Assumption of Risk Rule

While stadiums have a great deal of protection based on the assumption of risk defense, they are not completely protected. When injuries occur due to activities outside of the normal play of the game, the stadium may be liable. For instance, a Los Angeles King fan was hit in the head by a puck. However, the puck was thrown into the stands after the play had stopped. In this instance, the flying puck was not part of an activity that is an inherent part of a hockey game or that typically occurs during a hockey game. Being hit by a puck, under those circumstances, was not a risk that the fan had assumed. The fan won a $3 million settlement.

Other types of accidents

Fans are injured at sporting events, not just by flying balls or pucks. In some cases fans fall from stadium decks, fans are injured in fights, or fans slip and fall. These types of accidents are not inherent risks to attending the sporting event. Some of these accidents could happen anywhere. For example, a slip and fall accident will likely be evaluated as a run-of-the-mill premises liability case. When a fan falls from one level of a stadium to another or where a fan is injured in a fight with another fan, there arguably may be some stadium liability, but there will likely also be an issue of contributory negligence.

Fan fights and other risky fan behavior at sporting events are not unusual. Most stadiums serve alcohol and fights are often fueled by alcohol. Other incidents such as fans fall over railings occur due to the intoxication of those fans. Should stadiums assume a substantial part of the blame for fan fights or other irresponsible fan behavior that is fueled by alcohol? Stadiums should know that drinking will result in irresponsible, risky behavior.

When you hit the stands to watch your favorite team play, make sure you keep yourself in check and avoid fights, falls, or flying balls.

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Texas Continuous to Grapple with Prosecutorial Misconduct

Originally published by John Floyd.

In 2013, the Texas Legislature enacted the Michael Morton Act. The Act, which became effective January 1, 2014, requires Texas prosecutors to open their files, provide copies of certain information for defense discovery and to keep records of all the information they disclose to the defense. The Act has a twofold purpose: to prevent wrongful convictions and minimize the prosecutorial misconduct often associated with wrongful convictions and other failure-to-disclose cases.


Primary Duty of Prosecutors Too Often Neglected


Texas law has long protected against unethical and unlawful prosecutorial conduct. Article 2.01 of the state’s Code of Criminal Procedure provides: “… It shall be the primary duty of prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”


While this evidentiary prerequisite was enacted in 1965, it was essentially ignored by Texas prosecutors over next 48 years until the Michael Morton Act was enacted. This was evidenced in 2016 in three cases in which the courts found that prosecutorial misconduct resulted in wrongful convictions.


Kelly Siegler Engaged in Prosecutorial Misconduct


The most prominent of these cases involved the murder conviction of David Temple who was convicted in Harris County for the 1999 execution-style murder of his wife. Temple, a former high school football star in Katy and football coach at Alief Hastings High School in Houston, was prosecuted by former flamboyant and highly controversial Harris County Assistant District Attorney Kelly Siegler who is no stranger to accusations of prosecutorial misconduct.


Represented by prominent Houston defense attorney Stan Schneider, Temple convinced a local criminal district court Judge Larry Gist, after spending nine years in prison, that Siegler had engaged in prosecutorial misconduct to secure his conviction; namely, that the former prosecutor-turned-reality TV star had knowingly suppressed information about alternative suspects in the case.  Judge Gist recommended a new trial for Temple. The Texas Court of Criminal Appeals upheld that recommendation last November. Temple was released on bond a month later.


One of the first actions taken by newly-elected Harris County District Attorney Kim Ogg was to announce this past January that she would “personally” review all the evidence and Siegler’s handling of the Temple case. In a statement released to the media, Ogg had this to say: “I will personally review the files. There is no review team, and the decision will be mine. This won’t be the practice in every case. This stands out because there have been so many accusations and such controversy about the trial prosecutor.”


Then there is the November 2015 murder conviction of Courtney Hayden who received a 40-year jury-imposed sentence for the killing of Anthony Macias in Corpus Christi. Three months later state criminal district court Judge Nanette Hasette issued a 7-page order that found: “The court concludes that the intentional suppression of evidence and lack of timely disclosure of exculpatory, mitigating and impeachment evidence described herein constitutes prosecutorial misconduct and undermines the confidence of the public in the judicial system, and the outcome of this trial specifically.”


Nueces County ADA Intentionally Suppressed Exculpatory Evidence


The Hayden case was prosecuted by Nueces County Assistant District Attorney Jenny Dorsey who, with her supervisor Retha Cable, celebrated the victory with the victim’s family in the courtroom. But just two weeks after the jury sentenced Hayden to 40 years in prison in December 2015, Dorsey faxed a letter to Hayden’s defense attorney, John Gilmore, informing him that the medical examiner’s trial testimony concerning the gunshot wound that killed the victim was “different” than his “initial opinion” about the wound.


Nueces County District Attorney Mike Skurka said that while he agreed Hayden deserved a new trial, he was not prepared to accept the Judge Hasette’s finding of prosecutorial misconduct. His office filed an appeal with the Thirteenth District Court of Appeals seeking a review of the judge’s order.


Fort Bend and Harris Counties, More Misconduct


Finally, there is the case Edward George McGregor who was convicted in 2010 of two capital murders in Fort Bend County and Harris County. His prosecution for the Harris County murder was handled by Harris County Assistant District Attorney Elizabeth Shipley Exley while the Fort Bend County murder was handled by Fort Bend County ADA Jeff Strange. In her zeal to convict McGregor for the murders—both of which occurred in the early 1990s—Exley used three jailhouse snitches, each of whom testified they overheard McGregor confess to the murders.


One of the witnesses was Delores Gable was serving a 90-year term for solicitation to commit murder when McGregor stood trial. According to a Houston Press account, Gable testified “on the night of the murder 16 years earlier, she said she overheard McGregor confess about the murder to her husband, Brian Gable, while standing outside the victim’s home, and she added that McGregor’s father was also present.”


The problem with Gable’s testimony is that she was lying. McGregor’s father was in prison on the night of the murder, Gable was never married to Brian Gable, and she never lived at the residence where the confession was supposedly overheard. Worse yet, Gable told the jury that she had not been promised any benefits for testifying; that she was testifying only because she was battling cancer and wanted to clear her conscience.


But even worse, ADA Exley knew McGregor’s father was in prison when the confession was reportedly made; and that she had told Gable she would write a letter on Gable’s behalf to the parole board (something she eventually did). The prosecutor said she did not believe she had to disclose that benefit to the jury because she had not “promised” to write the letter for Gable. She would latter testify at McGregor’s post-conviction habeas corpus hearing that she let Gable’s perjured testimony go uncorrected before the jury because she had “forgot” about parole board letter conversation she had with the snitch.


Exley, without the knowledge of ADA Strange, also made secret deals with the other two jailhouse snitches as well – one had his felony charge reduced to a misdemeanor and the other had an agreed upon plea deal reduced from 40 years to 7 with the help of Exley. As with Gable, Exley allowed the two witnesses to falsely tell the jury that they had not been promised any benefits in exchange for their testimony.


This past November, Fort Bend County Judge James Shoemake recommended to the Court of Criminal Appeals that McGregor’s murder convictions be reversed.


“Win at All Cost” Mentality Still Infects Texas Prosecutors


These three cases reflect that prosecutorial misconduct is alive and kicking in the state of Texas, the Michael Morton Act notwithstanding. Undoubtedly, the Act has had a positive impact on the state’s criminal justice system, but the “win at all costs” mentality still infects some prosecutors in both the smaller and larger counties across the state. The State Bar has stepped up its scrutiny of these cases- and we can only that this will force all prosecutors to adhere to the Art. 2.01 rule. The rule is there to be obeyed, not ignored.
















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Tuesday, June 20, 2017

How To Turn Your Law Firm Website Into A User Converting Machine

Originally published by Stacey E Burke Blog.

A website is the most valuable piece of digital real estate a law firm can own. A website serves as a digital storefront or office that greets potential clients. However, just getting users to walk up to the window or even through the digital door is only half of the battle. Law firm websites need to be properly designed and contain optimized content in order to entice users to contact your law firm. If you are receiving very few leads from your website, you’re going to need to make some changes if you want to turn your website into a user converting machine.

Keep It Simple

It cannot be overstated how important it is for a website to have a simple and clean design. If a user lands on your website and is immediately overwhelmed, they won’t stay. The colors on your website need to coordinate with each other, and images need to compliment the design. Every element of a website needs to have a specific purpose – never put an element on your website simply because you think it looks good or because your competitors have it.

If you’re not sure whether or not your site is too complicated, it helps to get a second opinion – and not just from fellow lawyers. When in doubt, try removing two or three design elements and see how your conversion rate changes over a period of time (ideally at least 90 days).

Make It Navigable

Websites need to be easy to use. This means the main menu bar on your website needs to be prominently displayed and contain easy to understand language. The menu should contain links to the most important pages on the website, like the “about us” page, contact page, main blog page, and practice area pages.

If you have ever struggled to find a page on a website, you understand how frustrating it is. If a user is looking for information on construction accidents, you need to make sure it’s easy for them find.

Include Calls To Action

It needs to be incredibly easy for users on your website to reach out to your firm. Clickable links for the firm’s phone number and a contact button should be prominently displayed at the top of each webpage. To ensure users always have easy access to contact your form, website designs can incorporate a “sticky menu.” A sticky menu refers to a portion of the website’s header that sticks to the top of the screen/travels downward when the user scrolls down the page, making the menu always visible at the top of the screen.

In addition to including calls to action in the header of every webpage, calls to action can be used very effectively in other portions of your law firm website design. Content pages and blogs can contain calls to action at the end of each page, and individual attorney bios can include calls to action encouraging users to reach out to the attorneys. Calls to action can include click to call buttons, click to email buttons, contact forms, chat sessions, and newsletter subscription sign ups, among others.

Always Display A Form

Every page on your website should contain a contact form. While some contact forms can be embedded into a page, others work nicely in a side bar. It is not sufficient to only provide a link to the contact page for users who wish to reach out to the firm. The more clicks it takes a user to reach out to your firm, the more likely you’ll lose them along the way. With a contact form on every page, users are always only one click away from reaching out to your firm.

Some law firms also implement pop up forms after a user has spent a certain amount of time on the site. This is a great way to encourage users to contact out to your firm, but it needs to be used correctly.

Website Content Is Crucial

The quality of the content on your website could mean the difference between convincing a user on the fence to contact your firm, or losing the user all together. Website content needs to persuasive. Some law firms discuss their credentials or recent successes in their content, while others focus on how hiring a lawyer can help resolve legal issues successfully. Creating engaging content for your website can be incredibly challenging, so a good place to start is explaining what legal processes and difficulties people in certain situations could face and what rights they possess.

While there is no golden rule for how long your website’s content should be – we recommend each page of copy should contain a minimum of 350 words and a maximum of 1,000 words. It is important for law firms to focus on quality rather than quantity, and only create content that has a purpose.

Personalize Your Firm

Many people feel uncomfortable around lawyers, and depending on your practice areas, you could be dealing with clients in very emotional situations who have never used a lawyer before. Because of this, it is incredibly important to personalize your law firm and its attorneys in your content. Explain why helping clients is so important to your firm and/or how your attorneys can relate to various scenarios that come up in your practice.

A great way to personalize your firm is through video. Including videos on your website allows users to see how your attorneys speak and act and helps them understand your firm without ever meeting any of you in person, making them more likely to reach out to your firm for help.

Putting It All Together

All good websites must go through at least a little bit of trial and error. Testing your website to see what works and what doesn’t is the only way to improve your conversion rate. For those who decide to conduct A/B testing of their law firm website design elements, it is important not to get too zealous about making website changes. When testing a website, only test one element at a time, and ensure you compile enough website data to make informed decisions.

To possess a website with a good conversion rate, you need to put yourself inside of the minds of your users. What do they need and how can you express your unique ability to help? A website is not a “one and done” project. You should always be analyzing and optimizing your website analytics in an effort to strive for the best possible user experience. This will turn your law firm website into a user converting machine.

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Potential Jurors’ Moral Commitments and the Risk-Benefit Test in Products Liability Defect Cases

Originally published by Daniel Correa.

        In a product defect case involving serious bodily injury or death, the last thing a defense attorney wants to do is talk about how the benefit to society of the client’s product outweighs the risk of injury or death to a single person (or few persons). The risk-benefit test for product defects, however, requires a defense attorney to start that conversation and convince a jury that the benefits of a product outweigh its risks, even in the face of an actual injury or death that relates in some way to use of the product. This is a daunting task, especially if the defense attorney lacks information about jurors to determine whether they are really willing or able to engage in such a calculation.
        Trial attorneys are provided wide latitude during voir dire to investigate potential jurors’ prejudices and biases. Knowing how to press potential jurors’ moral reasoning will provide enough information to identify, above a mere guess, which jurors are most likely to engage in a risk-benefit calculation. An easy test exists to weed out potential jurors most inclined to reject a defendant-friendly risk-benefit analysis.

        There are generally two major moral views—please forgive this oversimplification: utilitarian and deontological. Utilitarians support the greatest good for the greatest number. Deontologists on the other hand, support treating each person as an end in herself and never as a means to an end. Utilitarians tend to be more receptive to risk-benefit analyses than deontologists.
The Trolley Car Problem
        A famous moral inquiry provides the perfect test to get potential jurors talking and to press their moral limits. Imagine you are overlooking a trolley track. In the distance you see a trolley car traveling at a high rate of speed and you notice that it lacks a driver. You also notice that it is headed straight toward five unaware people who will surely die if no one intervenes to stop or divert the trolley.
        You are the only person at the station. Next to you is a lever that will divert the trolley down the only other path. On that path, you notice a single unaware individual who will surely die if the trolley heads in that direction.
        What do you do? Do you pull the lever, thus diverting the trolley toward the one unaware individual? Or, do you allow the trolley to take its course toward the five unaware people? Remember, no matter what choice you make, death will ensue. The only question is, how many people will die? One or five?
        Same scenario, except there is no lever next to you that can divert the trolley. Instead, next to you stands a heavy person. The heavy person is turned away from you. The heavy person is exactly heavy enough to stop the trolley dead in its track. If you push the heavy person onto the track as the trolley approaches, his body will stop the trolley. The heavy person will die, but the five people on the track will live. If you do not push the heavy person onto the track to stop the trolley, the trolley will continue on its path and surely kill the five unaware people on the track.
        What do you do? Do you push the heavy person onto the track to save five people? Or, do you allow the trolley to take its course toward the five unaware people, who will surely die, and leave the heavy person alone?

        Most people opt into pulling the lever to divert the train, but opt into inaction when there is only the heavy person to stop the train. Moral philosophers debate the reasons for this seeming disjunction, because the results would be the same if you pulled the lever as if you pushed the heavy man on the track: one person dies, five people live. Some people explain the result in terms of agency: when you pull the lever, you are not complicit in the death of the one person on the track the same way that you would be complicit if you pushed a person to his death, even though you saved five people. But this complicit argument ignores the fact that an action is required in either scenario—pull a lever or push a person—and the person doing either action knows in advance the outcome—death.
Reason-Giving and Potential Juror Identification

        The upshot of asking potential jurors for their answers to this moral quandary is (1) you can identify potential jurors who will not even entertain pulling the lever. The value of life is something that outweighs any and all utilitarian calculations. You might try to rehabilitate this potential juror to see if she can never engage in any utilitarian calculation. For example, even truly committed deontologists waiver in their commitment when the stakes are substantially increased: If five hundred children were on one track and would surely die if you did not push the lever to divert the trolley onto the track with one person, would you pull the lever? Most likely, you will find, however, that truly committed deontologists are not good candidates for a products liability that potentially turns on the risk-benefit test. These are not the type of jurors we want in a product liability case.
        (2) You can identify potential jurors who will entertain pushing the heavy man. These are serious utilitarians. You at least know that these potential jurors are willing to engage in the type of calculation necessary to defend your client.

        (3) By engaging in this intellectual exercise, you treat the potential jury pool as your intellectual peers and may gain their trust. You will find that this exercise gets the jury pool talking and interested. They will laugh, show concern, and ask questions of their own.  

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Monday, June 19, 2017

Make Time for Exercise

Originally published by lawschool academicsupport.

We encourage our students to get regular exercise to relieve stress, improve sleep, and stay healthy. Most experts recommend 150 minutes of exercise a week – usually in five 30-minute increments. Inside Higher Education had a recent post focused on…

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In First-of-Its-Kind Ruling, SCOTUS Strikes Down Law Barring Social Media Use by Sex Offenders

Originally published by Texas Lawyer.

In a unanimous decision written by Justice Anthony Kennedy, the court made numerous references to the importance of social media as a source of news and a forum for the exchange of views.

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Renewing Non-Disclosure Agreements with Employees? Consider this . . .

Originally published by Leiza Dolghih.

sale baIn my practice, I see this scenario all the time: an employee leaves to work for a competitor, the employer realizes that its non-disclosure (NDA) or non-compete agreement was inadequate to protect it from what just happened, so the company rolls out a new (and improved) non-disclosure or non-compete agreement and makes all employees sign it.   

The legal department now sighs with relief, the HR department gets a pat on the back, and the new NDAs and non-competes get filed away in employees’ personnel files to be whipped out when the next employee defects for greener pastures. What could possibly go wrong now that the company has a perfect non-compete / non-disclosure in place with all the employees, right?

A recent case out of the Fourteenth Court of Appeals demonstrates exactly how a perfectly drafted non-disclosure agreement can still end up being unenforceable when an employer fails to provide new consideration for the agreement. In Eurecat US Inc. v. Marklund, et al.,  Eurecat sued two of its former employees who started a competing business, alleging that they stole trade secrets and proprietary data, breached fiduciary duties and breached their NDAs with plaintiff.

Eurecat’s claims were based on the NDAs that the two employees signed in 2011. The Court of Appeals held that these agreements were not supported by consideration and were unenforceable because, prior to 2011, both employees wer already required to maintain confidentiality of Eurecat’s trade secrets under the prior versions of the NDAs.  The only consideration stated in the 2011 NDAs was continued employment at-will.  Eurecat did not promise to provide new confidential information to the employees after they had executed the 2011 NDAs, but only stated that they “may” learn such information.  At trial, Eurecat failed to show that its claims for breach of the 2011 NDAs were based on disclosure of confidential information it provided to the employees after January 21, 2011 that differed from information they previously possessed.  In fact, Eurecat was unable to show that it provided any new confidential information that was different from what the employees had received from Eurecat prior to signing the NDAs.  The Court, therefore, affirmed the jury’s verdict that the employees did not breach their non-disclosure agreements with Eurecat.

BOTTOM LINE FOR EMPLOYERS: Periodic updates of employment agreements, including non-compete and non-disclosure restraints, are necessary to make sure that the agreements comply with the new legal developments.  However, companies should always make sure that the new agreements are supported by new consideration, whether it is new confidential information, a bonus, or some other type of consideration. (check your state laws to make sure that the type of consideration provided to an employee meets the state requirements to support restrictive covenants). 

Leiza litigates non-compete and trade secrets lawsuits in a variety of industries in federal and state courts. If you are a party to a dispute involving a noncompete agreement or misappropriation of trade secrets, contact Leiza at or (214) 722-7108. 


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