Friday, June 30, 2017

Texas Bar Today Top Ten: Lions, Ghosts, and Tolling

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. New Texas law bans child marriages (yes, you read that right!) – Michelle O’Neil of O’Neil Wysocki P.C. @ONeilWysocki in Dallas

9. Why Videotaped Deposition Testimony can be More Powerful than Live Witnesses –  Drew York of Gray Reed & McGraw @GrayReedLaw in Dallas and Houston

8. Shale Oil and Gas Development in Texas: Pros and Cons – Bill Smalling of The Law Office of C. William Smalling, P.C. in Houston

7. Into the Lions’ DensBarry Barnett of Susman Godfrey L.L.P. @contingencyblog in Houston, Los Angeles, New York, Seattle

6. If the ghost of Lochner lurks about, it must pay toll. – David Coale of Lynn Pinker Cox & Hurst, LLP @600camp in Dallas

5. Guilt by association: One way that eyewitness testimonies go wrong – Rita Handrich of Keene Trial Consulting @KeeneTrial in Austin

4. Supreme Court Limits Class-Action Tolling – Sim Israeloff of Cowles & Thompson, P.C. @reverse_render in Dallas and Plano

3. Waiver Problems (or Why You Should Hire an Appellate Lawyer) – Jason P. Steed of Bell Nunnally @BellNunnally in Dallas

2. Ninth Circuit Ruling Sets Rules for Virtual Trespassing – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

1. Great American Ins. Co. v. Hamel: The “Fully Adversarial Trial” On Trial – Jeffrey C. Glass of Hanna & Plaut LLP in Austin

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Waiver Problems (or Why You Should Hire an Appellate Lawyer)

Originally published by Jason P. Steed.

mechanics-lien-waiverI did a quick search. In 2016 (just one year, Jan. 1 through Dec. 31), in the Dallas Court of Appeals (just one of the appellate courts in Texas), in what Westlaw identifies as “commercial” cases (just one narrow area of the law), there were at least nine appeals in which waiver was a problem. To me, that seems like a lot—because “commercial” cases typically involve high-dollar claims and high-caliber lawyers on both sides. And if we broaden our scope a bit, there were another 149 “civil” cases that popped up in my search for “waiver”—and many of those likely involved actual waiver problems, too. These waiver problems demonstrate why litigants should consider hiring an appellate lawyer.

To be clear, I’m not saying “only appellate lawyers can avoid waiver” or “waiver is never a problem for appellate lawyers.” Waiver is sneaky. Really sneaky. Even the best lawyers (including the best appellate lawyers) will occasionally get stung by a sneaky waiver problem.

But appellate lawyers are, by design, specially attuned to waiver problems—because waiver is always a threat to every issue on appeal. So, if you want to avoid waiver problems—and you do, you really, really do—you should consider hiring an appellate lawyer. And not just for the appeal. You should consider hiring an appellate lawyer way, way, way before the appeal. You’ll see what I mean, if you keep reading.

First, of the cases I found from 2016, in the Dallas Court of Appeals, four involved waiver through inadequate briefing. That is, the appellant wanted to challenge an error, but the appellant’s brief did not adequately address the issue, so the court of appeals dismissed the challenge as waived. See Golfis v. Houllion, 2016 WL 6236842, at *4 (failure to provide record citations or substantive analysis in challenging evidentiary rulings); Ponderosa Pine Energy, LLC v. Illinova Generating Co., 2016 WL3902559, at *10 (failure to cite legal authority in challenging judgment of joint-and-several liability); Wise v. Mitchell, 2016 WL 3398447, at *6 (failure to cite legal authority or provide substantive analysis in challenging validity of power-of-attorney); Chambers v. Allstate Ins. Co., 2016 WL 3208710, at *9 (failure to provide argument or authority for public-policy issue).

The cases described above involved appellate waiver, meaning the issue was (presumably) preserved in the trial court for a challenge in the court of appeals, but then the ball was dropped in the court of appeals. Obviously, these cases serve as examples of why you want a good appellate lawyer for the actual appeal, to make sure every issue is adequately briefed, etc.

But much more frequently, the ball gets dropped in the trial court, resulting in waiver of the issue long before you ever get to the court of appeals. This is why you should consider hiring an appellate lawyer long before it’s time to appeal.

Consider the following cases (again, from just one year, in just one appellate court).

How early can the waiver problems start? Well, as early as when you file your complaint, or your answer to the plaintiff’s complaint. Seriously. In one case from last year, two companies got into a dispute over a contract and one sued the other. The defendant lost, and on appeal it argued that the plaintiff was never a party to the contract in the first place—so the judgment in the plaintiff’s favor, based on the contract, should be reversed. But under Texas procedural rules (Rule 93), a challenge to a plaintiff’s capacity to sue (which is what this is) must be made in the defendant’s initial answer to the suit, in a “verified” denial (by affidavit) of the plaintiff’s capacity to sue. Here, the defendant had never done that—so the case went to trial, the defendant lost, and this issue was waived long before the parties ever got to the appeal. E.F. Johnson Co. v. Infinity Global Tech., 2016 WL 4254496, at *5-6.

(I’ll just throw in another quick example of waiver problems that can arise at the very start of a lawsuit: In Texas, to recover attorney’s fees in a breach-of-contract case, the plaintiff suing for breach must first present its claim to the defendant, 30 days before filing suit—to give the defendant a chance to avoid the possibility of having to pay the plaintiff’s attorney’s fees in a lawsuit. If the plaintiff doesn’t satisfy this “presentment” requirement, the plaintiff cannot recover fees—even if the plaintiff wins on its breach-of-contract claim. This creates a potential waiver problem for both sides: plaintiffs need to be sure to satisfy the presentment requirement before they file suit, or they waive their right to fees; and if the plaintiff fails to satisfy the presentment requirement, the defendant, in its answer to the complaint, must be sure to specifically deny that the presentment requirement was satisfied—or the defendant waives this issue and the plaintiff will still be entitled to recover fees! See Shin-Con Development Corp. v. IP Investments, Ltd., 270 S.W.3d 759, 768 (Tex. App.—Dallas 2008).)

In one case, waiver problems arose from start to finish. The appellant waived its right to arbitrate the dispute by failing to assert it until the eve of trial; waived its right to complain about the enforcement of a late-fee provision, by failing to raise the issue at any time before or during trial; and waived its right to complain about the trial court’s failure to enter factual findings in support of the judgment, by failing to request them after the judgment. High Rev Power, LLC v. Freeport Logistics, Inc., 2016 WL 6462392.

In two cases, the defendant failed to plead judicial estoppel as an affirmative defense, at the start of the case, and thereby waived that argument on appeal. See Koch v. Boxicon, LLC, 2016 WL 1254048, at *7-8; Tempay, Inc. v. Tanintco, Inc., 2016 WL 192596, at *7.

And in three cases, the problem was an error in the jury charge that the appellant failed to adequately preserve in the trial court. (We call it the “jury charge” in Texas, but you might know it as the “verdict form” or as something else, in other jurisdictions.) See Shamoun & Norman, LLP v. Hill, 483 S.W.3d 767, 789-790, 792-793; Dao v. Garcia, 486 S.W.3d 618, 627; Fitzerman v. Classic Americana, LLC, 2016 WL 1450165, at *10.

One of these cases (Hill) was among the “commercial” cases I pulled in my original (narrow) search. I came across the other two among the “civil” cases decided last year, when I took a cursory look at waiver problems relating to the jury charge. My search here was nowhere near exhaustive, and I would bet—in the broader class of “civil” cases—there were many more involving waiver of charge error. I recently attended a CLE presentation where a panel of three judges from the Dallas Court of Appeals seemed to agree that “charge error” (errors in the jury charge or verdict form) is the most common error they see—and the most common error that is waived by a failure to adequately preserve it at the trial court.

So consider these examples. Consider that they are taken from a very small sample of cases decided just last year. And, if nothing else, consider hiring an appellate lawyer—not just on appeal but also while you’re still at the trial court, even if only to handle the jury charge.

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Why Videotaped Deposition Testimony can be More Powerful than Live Witnesses

Originally published by Drew York.

TV production studio showing man talking to cameraAlthough our judicial system historically prefers live witness testimony over testimony of witnesses through a deposition, today’s technology allows even seasoned trial lawyers the ability to present witnesses through videotaped deposition testimony that can be even more effective than having the witness appear live.  I know because I just finished a 3-week trial where 75% of the witnesses we called in our case appeared by videotaped deposition. The defense also called approximately 75% of their witnesses by deposition, The result: after a half-day of deliberations the jury found the defendants negligent and awarded our clients $217.7 million.

Federal courts and most state courts have rules that govern the use of deposition testimony at trial.  The instances when parties may introduce deposition testimony are limited:

  • When the deponent (i.e., the person whose deposition is being taken) is an opposing party in the lawsuit.
  • When the witness, who may not be a party in the case, is unavailable for trial because, for example, the witness is outside the Court’s subpoena range to force the witness to testify live at trial.

Why can witness testimony be presented more effectively through a deposition than live?

There are several reasons:

  • Most lawyers videotape depositions today, so the jury is able to see the witness’s demeanor and judge his or her credibility. Jurors today are also more comfortable with videotaped deposition testimony because television has become such a prevalent part of our society.
  • Attorneys can use today’s technology to make the videos more interactive to keep the jury’s attention. Effectively, attorneys play the role of a Hollywood director.  Attorneys can now use picture-in-picture to call out and highlight portions of an exhibit while the witness is being questioned about that exhibit.  And because videotaped depositions are edited before they are played at trial, the exhibits and testimony are smoothly played without delays that normally occur with a live witness – such as waiting on the audio-visual technician to pull up the exhibit, enlarge the portion discussed, and highlight it for the jury.  You can also edit out the delays that occur while the witness is locating the language you want to discuss, which can also be distracting.
  • Many courts require the deposition testimony to be played chronologically, and will instruct the jurors before the depositions are played that the testimony they see will include questions and answers designated by both sides. Thus, jurors may not realize that a question and answer asked by the plaintiff’s lawyer in the deposition was actually designated by the defendant.  Although not all courts require deposition testimony to be played chronologically, if a court requires it a plaintiff should use it to its full advantage if possible.  Also, some courts will allow a party to play videotaped deposition testimony of an adverse witness – such as an employee of the opposing party – even if the opposing party is going to call the witness to testify live at trial.  Thus, a plaintiff could destroy the witness’s credibility with the jury before the witness takes the stand.

Tilting the Scales in Your Favor

Because of these technological capabilities, attorneys on both sides need to think ahead before a witness’s deposition.  If you are taking the deposition, and you know the witness will not be within subpoena range of the Court at the time of trial, you should consider taking the deposition more as a trial deposition (i.e., a true cross-examination) rather than a discovery deposition.  On the other hand, if you are the attorney defending the deposition, you need to talk to your client beforehand and decide whether you are going to have that witness appear live at trial.  If not, then you need to conduct a direct examination of the witness in order to preserve the testimony that you want to play at trial.  Otherwise, you are left with the witness’s answers to the questions asked by opposing counsel.

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Home Depot Sued Over Brinkmann Propane Grill Explosion

Originally published by » Blog.

A Maryland man has filed a putative class action lawsuit against Home Depot, alleging that a Brinkmann 4221 propane grill he purchased at an Aspen Hill, MD, store exploded, causing severe…

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Fifth Circuit Rejects Plaintiff’s Testimony

Originally published by Thomas J. Crane.

A critical issue for many persons who suffer any illness is recovery and treatment. That comes as no surprise. Yet, it seems to surprise many courts. The issue often arises when the employee asks to work from home. The employee and his/her doctor may not know to any degree of certainty how long the recovery will last or how the patient will react to particular forms of treatment. In Credeur v. State of Louisiana, No. 16-30658 (5th. Cir. 6/23/2017), the employee was an Assistant Attorney General for the state of Louisiana. Renee Credeur had a kidney transplant. That resulted in complications. She worked from home for several months, apparently without any problem. She then needed more time, so she used her FMLA leave, 12 weeks of unpaid leave on an intermittent basis.

When she still had not recovered, she asked to work from home as an ADA accommodation. A few months later in October, 2013, the employer said she could work from home. Yet, in January, 2014, the AG’s office asked for an accounting of her work hours and certification of her illness. Her three doctors gave different opinions, one stating she could work at the office no more than 3-4 hours per day, a second doctor saying she could work at the office “as tolerated,” and a third doctor saying she should not work at the office for another six months. Ms. Credeur told her employer her endurance was improving and she could now travel via airplane to depositions and attend hearings.

Later,  in February, 2014, Ms. Credeur’s supervisor transferred some of her files due to her reduced work load. And, she was told to use leave time to work from home. That requirement essentially meant she could no longer work from home. In March, 2014, she was given a “last chance” agreement to sign. She had to improve her performance, which referred to her attendance issues and other new, subjective performance issues, or suffer consequences. The “last chance” agreement specifically said she could not work from home.

Ms. Credeur’s condition worsened and she requested to work from home, again. The AG denied her request in August, 2014. At this point, her doctors had said she could not attend hearings, depositions and the like. She provided a medical note for her absences and then returned to work in late August, 2014. Reading between the lines, I interpret that to mean she returned to work because she had to. She worked until December and then resigned. She later filed suit against the AG’s office.

This is one of those rare cases that addresses working from home head on. The court credited the employer’s claim that to work as a litigation attorney, she had to work at the office. The plaintiff responded that she worked from home successfully for many months. She disputed the employer’s claim that face-to-face meetings with co-workers were essential. One supervisor said it was possible to work from home on a temporary basis. While another supervisor testified that to work as part of a team, she needed to work at the office frequently “to bounce ideas” off other members of the team. The court mentioned that Credeur “unilaterally” declared she had no problems when she worked from home earlier. The court also noted that she offered her own “unsupported” testimony that she need not work from the office every day. The panel cited EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc) for the proposition that a plaintiff’s unsupported testimony that she could work from home does not create an issue of material fact. The panel also cited an unpublished decision, Rodriguez v. Mrs. Baird’s Bakery, 111 F.3d 893 (5th Cir. 1997) for the holding that subjective belief that discrimination occurred cannot create a material issue of fact.

The court was troubled by the lack of support for Ms. Credeur’s claims about her job. It also may be that the court felt qualified to discuss the possible limitations for the job of medical malpractice litigation attorney. But, this requirement that Ms. Credeur provide some corroboration of her observations about her job violates most rules of evidence. It also conflicts with the court’s recent decision in recent cases, such as  Heinsohn v. Carabin & Shaw, 832 F.3d 224 (5th Cir. 2016) (cautioning against requiring greater credibility from the plaintiff than from the defendant); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015); Tolan v. Cotton, 134 S.Ct. 1861 (2014) (finding it to be error to disregard the plaintiff’s testimony simply because it is “self-serving”).

A plaintiff is a witness like any other. There is nor rule of evidence that requires the plaintiff to have corroboration. If the court wa snot sure, it should have denied the motion for summary judgment. What the essential functions of a job are is a question for the jury.

The panel devoted much of its opinion to discussing whether the job was capable of working from home or not. It discussed testimony from co-workers that they or others had previously worked from home for brief times. Surely, so much discussion regarding what the testimony says about that issue would suggest that this is a fact question best decided by the jury.

The Fifth Circuit affirmed the grant of summary judgment. There are few cases finding working from home to be a viable accommodation. The few that do find telecommuting to be viable almost always involve a situation in which the telecommuting worked previously for some period of time, but was then cancelled by a new supervisor. See, e.g., DeRosa v. National Envelope Corp., 595 F.3d 99, 104 (2d Cir. 2010) (Acknowledging the employee’s prior accommodation of two years working from home). See the Credeur v. State of Louisiana decision here.

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Ninth Circuit Ruling Sets Rules for Virtual Trespassing

Originally published by Peggy Keene.

When we hear the word, “trespass,” an image of a person crossing onto private property usually enters the mind.  Overall, the public is familiar with […]

The post Ninth Circuit Ruling Sets Rules for Virtual Trespassing appeared first on Klemchuk LLP.

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Supreme Court of Kentucky Holds “Substantial Impairment” Is Not Collapse

Originally published by Christina Phillips.

Insurance policies are all different. Some policies include a definition of the word “collapse” and some do not. The Supreme Court in Thiele v. Kentucky Growers Ins. Co., 2017 WL 2598494 (Ky. June 15, 2017), recently addressed whether termite infestation and damage which caused substantial damage was covered under the policy’s collapse provision. In relevant…… Continue Reading


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Post-Traumatic Stress Disorder in Criminal Defense

Originally published by P. F. McCann.

Post-traumatic Stress Disorder is a condition that occurs in people who have experienced a frightening or violent event, i.e., trauma.  The condition’s symptoms include nightmares, avoidance of the situations or people that remind the individual of the incident or series of incidents, flashbacks to the incident, trouble sleeping, feelings of being on edge, and they […]

The post Post-Traumatic Stress Disorder in Criminal Defense appeared first on HCCLA’s Reasonable Doubt.

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Johnson & Johnson Facing Thousands More Risperdal Lawsuits

Originally published by » Blog.

According to Forbes, more than 3,000 new Risperdal lawsuits have been filed against Johnson & Johnson subsidiary Janssen Pharmaceuticals, Inc., in the first three months…

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Thursday, June 29, 2017

Shale Oil and Gas Development in Texas: Pros and Cons

Originally published by Environmental and Energy Law Blog.

Although the development of oil and gas has been a boon to the economy in Texas, a recent study published by The Academy of Medicine, Engineering and Science of Texas (TAMEST), suggest that it has had an adverse impact on land, air, water and infrastructure throughout the state.

“This report shows what we’ve learned in Texas about the impacts from shale oil and gas development, and I hope others can benefit from our experience,” said Christine Ehlig-Economides, task force chair.

The Shale Task Force report focused on the following areas of impact:

  • Seismic Activity – Earthquakes have increased in Texas. Prior to 2008, about 2 earthquakes were reported each year, since then there have been about 12-15 a year. Contrary to popular conceptions, however, induced earthquakes are not associated with hydraulic fracturing, but rather, wastewater disposal wells.
  • Land – Shale oil and gas development has led to fragmentation of habitat on the landscape, however there is insufficient data to ascertain the impact on vegetation, agriculture and wildlife. The Task Force recommends that the state consider adopting a surface damage act to protect these resources.
  • Air – Oil and gas production contributes to greenhouse gas emissions, photochemical air pollutants and toxins. Although recent federal regulations have reduced emissions, less than five percent of “emitters” account for  more than 50 percent of emissions.
  • Water – Surface spills and well casing leaks near the surface are the most common causes of contaminated drinking water wells. Although fracking uses one to five million gallons of water per well on average, this accounts for less than one percent of water usage statewide. The study also found the depth and separation between oil-bearing and drinking water-bearing zones makes contamination of drinking water “unlikely.”
  • Transportation Damage to roads from oil and gas operations costs the state between $1.5 to $2 billion a year. This damage, in turn impacts the trucking industry resulting in vehicle damage and lower operating speeds that cost the industry between $1.5 and $3.5 billion a year.
  • Economic and Social – Oil and gas developments provides economic benefits to property values, schools and medical services, but poses environmental concerns and has an adverse impact on traffic, public safety and noise.

While environmental groups may try to use this study to their political advantage, the fact remains that shale oil and gas production will continue to drive the energy sector. Ultimately, striking a balance between the risk of environmental concerns with the rewards of economic growth requires in the insights of experienced health, safety and environmental attorneys.


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A Video is Worth a Thousand Words

Originally published by Stacey E Burke Blog.

As we’ve written about previously, client reviews are an incredibly important part of a digital marketing strategy. They serve as a verification point for your law firm, complete with an actual person’s opinion to listen to.

With the rise in video across the digital sphere, obtaining video testimonials from your clients is a great way to showcase your law firm in a fresh manner. Having clients speak on camera about their experience with your law firm not only provides much of the same value as a written review, it takes the concept a step further by removing the “anonymous” nature of online reviews. By showcasing a real live person extolling the virtues of your law firm, you can transform a happy client and glowing review into powerful social proof of your success. Below are a few tips and tricks to use when it comes to video testimonials.

Only Choose the Best

If you are going through the expense of hiring a videographer and spending the time to record video testimonials, make sure to select the best possible video subjects. Keep in mind the best interview candidate may not always be the client with the best or biggest result; just because you were able to secure a highly successful case resolution for a client doesn’t mean he or she will present well on camera.

Instead, think through your recent successful cases and make a list of clients who were very pleased with their results, expressed their happiness with the firm, and have a great presence – meaning they are well spoken, generally not shy, and have a story to tell.

Hire a Videographer

Smartphones can handle a lot of the heavy lifting when it comes to photographs and videos. Most of the time, shooting social media video yourself is a perfectly acceptable option. But when you’re planning video testimonials, go ahead and hire a videographer; your videos will absolutely look more professional that way.

A videographer will ensure the lighting is correct, have the necessary special equipment needed, and finalize the video in post-production with background music, overlays, and transition slides. Think of these testimonials as a video brochure for your law firm – which means you want to ensure everything is branded and polished.

Create a List of Questions

Anyone agreeing to speak on camera about the merits of your law firm is already doing you a huge favor. Make the experience as easy as possible for them by providing them with questions they can easily answer. It alleviates the “I don’t know what to say” issue and provides them with a framework for their answers.

Even some of the most gregarious people freeze up the minute a camera is pointed at them, waiting for them to speak; but, asking someone to answer a question will elicit a much more natural response. Start with something easy, such as: “Tell me your name and a little bit about yourself.” Make sure to let them know the videographer will cut you out of the footage, so they should repeat the question back in their answer. For example:

Question: Why would you recommend hiring our law firm?

Answer: I would recommend hiring [insert law firm name] because of their excellent communication skills…..

Here are a few sample questions we suggest:

  • What has it been like working with our law firm?
  • Why did you choose to hire our firm for your legal issues?
  • Would you recommend us to someone else and why?
  • Can you think of a word or phrase that best describes working with our law firm? Why that particular word or phrase?
  • What recommendations do you have for someone looking for legal help?

We Filmed Our Videos… Now What?

Once you have the video footage, it’s important to let your videographer know what you’re looking for. The rule of thumb for digital marketing videos is to keep the length anywhere from 30 to 90 seconds – but no more than that! Most viewers will stop watching after about 60 seconds, so keep them short and sweet.

If your firm has a YouTube or Vimeo channel (and it should), upload the videos with the appropriate descriptions, tags, and contact information. Make sure to include a link back to your website in the description.

Once your videos are uploaded, they can be repurposed across a variety of digital platforms. Embed the videos in your website, share them on Facebook or Twitter, include them in your law firm’s next e-newsletter, or utilize them to build out your Google My Business or Yelp profiles.

Creating video testimonials is an incredibly worthwhile investment for a law firm of any size, and can go a long way toward setting one firm apart from its competitors. If you need help developing a video marketing strategy for your law firm, call us today to find out how we can help your firm make a digital splash.

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$23.5-Million Settlement for Family Whose Teenager Died from a Heat Stroke in Sweltering Hot Bus

Originally published by By Brant Stogner.

The dangers of leaving children alone in the car during the summer months are well known to us in society. Unfortunately, despite the numerous public service announcements reminding us of these dangers, it seems that every year we hear about another heat stroke death as a result of a child being left alone in the car. However, children are not the only ones susceptible to heat stroke.

On September 11, 2015, Hun Joon “Paul” Lee, 19, was left alone for seven hours on a bus in the 96-degree California heat. The bus driver failed to check the rear of the school bus, where Lee had been sitting, to ensure that everyone was let off the bus. Sadly, Lee was pronounced dead on the floor of the school bus after life-saving efforts failed.

The bus was owned by Pupil Transportation Cooperative, a company that provides regular and special education school transportation for multiple school districts in California. This disastrous incident was not the first time that the company’s drivers had left children on their buses. In a deposition conducted by the family’s lawyer, the company director admitted that at least four special-education students had been left on one of their buses between 2006 and 2015. Shockingly, none of the drivers involved in those incidents had been terminated afterwards.

Last year, the California State Legislature passed a law requiring that all buses in California be equipped with child safety alarms that have to be manually deactivated by a driver before leaving the bus. The law, to be effective in the 2018-2019 school year, also mandates that bus drivers receive annual training for child safety to renew their bus driver safety certificate.

Since 1998, 712 children that were left in vehicles have died of a heat stroke. All of these deaths, including Paul Lee’s could have been prevented.

If you or someone you know has suffered a heat stroke from being left alone in a vehicle, contact an experienced attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz by calling 713-222-7211 or toll free at 1-800-870-9584. Abraham Watkins offers a free consultation to anyone wishing to pursue a claim for injuries that occurred as a result of another’s negligence.

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the art of the brief: Beware the Bloated Beginning

Originally published by Thomas G. Ciarlone, Jr.. the first installment of the his new video series on effective legal writing, trial lawyer Tom Ciarlone discusses the importance of the opening paragraph-in the hands of a skilled advocated, it can mean the difference between winning and losing.

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Demystifying Appellate Law on The Law Entrepreneur

Originally published by D. Todd Smith.

Screenshot 2017-06-26 15.57.40Solo and small firm lawyers, if you’re into podcasts and haven’t checked out The Law Entrepreneur, you should. Maryland lawyer Neil Tyra has put together 69 episodes (so far) of great conversation with lawyers, tech consultants, and other professionals offering insight into the entrepreneurial side of modern-day law practice.

The main reason I know exactly how many shows Neil has aired is that he had me on as his guest for Episode 69, entitled Demystifying Appellate Law & Leveraging the Cloud. It’s available for download in iTunes or through Neil’s podcast website for anyone interested.

I’ve followed The Law Entrepreneur for a while and recently got to visit with Neil while we were both in New Orleans attending the live version of Ernie Svenson’s Small Firm Bootcamp (a stupendous experience, by the way). Neil consistently puts together a very informative show, and I commend him for keeping it going like clockwork for well over a year now.

Demystifying appellate law is something I enjoy tremendously, and it’s fun to talk about how I got started in my post-Big Law practice, how I use technology, how much things have changed over the last decade or so, and what I’ve learned along the way. I was able to do all those things on Neil’s show. I look forward to doing it again sometime.

The post Demystifying Appellate Law on The Law Entrepreneur appeared first on Texas Appellate Law.

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The Hero

Originally published by The Movie Court.

A new movie review from the desk of The Movie Snob.

The Hero  (B-).  That voice.  That mustache.  The unmistakable Sam Elliott (Tombstone) has an unusual starring role in this little indie flick.  He plays a washed-up actor who spends his days smoking marijuana with a buddy (Nick Offerman, We’re the Millers) and doing voiceover work for commercials.  And, we quickly learn, he’s facing a serious cancer problem.  So he wants to reach out to his estranged daughter, Lucy (Krysten Ritter, Big Eyes).  He also, somewhat less credibly, starts dating a woman about half his age (Laura Prepon, TV’s Orange Is the New Black).  Katharine Ross (The Graduate), who is actually married to Elliott, has a very small part as his ex-wife.  All in all, the movie is a little pedestrian, a little predictable, a little off at times, but Elliott managed to keep me invested.  And at 93 minutes long, it doesn’t overstay its welcome.

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UBS Financial Services of Puerto Rico Ordered to Pay Investors $793,000 Over Muni Bond Sales

Originally published by Shepherd Smith Edwards & Kantas LTD LLP.

A Financial Industry Regulatory Authority (“FINRA”) arbitration panel has awarded two investors $793,000 in their Puerto Rico municipal bond fraud case against UBS Financial Services (UBS) and UBS Financial Services of Puerto Rico (UBS-PR). The claimants, Madeleine Carrero (as an in individual and as the trustee of Ulises Barros Carrero and Fideicomiso Ulises Barros), accused UBS of negligence, misrepresentation, breach of fiduciary duty, unauthorized trading, unsuitability, and breach of contract.

This is the latest ruling in which UBS and its Puerto Rico-based brokerage firm have been ordered to pay investors for the losses they suffered from investing in Puerto Rico bonds and closed-end bonds.

On the island and the U.S. mainland, our Puerto Rico UBS bond attorneys are continuing to work with investors seeking to recover their losses from investing in Puerto Rico securities. Many investors lost everything, with some even borrowing funds at the inappropriate recommendation of their advisor so that they could invest even more in the island’s bonds.

If you think that you may have grounds for a Puerto Rico bond fraud claim against UBS Puerto Rico, Santander Securities (SAN), Banco Popular or another brokerage firm, it’s not too late to file your claim. Contact Shepherd Smith Edwards and Kantas, LTD LLP today.


Bond Insurers File Lawsuit Against Puerto Rico Financial Oversight Board
In other Puerto Rico debt news, National Public Finance Guarantee Corp, which is an MBIA Inc. unit, and Assured Guaranty Ltd. are suing Puerto Rico’s financial oversight board. They are seeking a court order that would make the board accept the current $9 billion debt agreement covering the Puerto Rico Electric Power Authority (“PREPA”). The bond issuers are claiming that approval of the deal is being improperly withheld.

Under the current deal, the electrical authority’s bondholders would get new debt valued at 85% of their principle. This would be paid from a new charge to be billed to utility customers in the Commonwealth. Without the Board’s approval, however, PREPA could end up in court-protected bankruptcy proceedings just like the Puerto Rico government and a number of its other agencies.

The oversight board recently proposed a counteroffer to the electrical authority’s creditors that would revise the terms of the current agreement. However, the bond insurers are contending that the board does not have the authority to propose such an offer. If the electrical authority were to file for Title III too, a judge would get to decide how much PREPA bondholders would be repaid.

Title III
Title III was established just for Puerto Rico, which is not a municipality under U.S. law and therefore could not file for Chapter 11 bankruptcy protection. The island contends that the bankruptcy proceedings activated an automatic stay of debt payments.

Meantime, Puerto Rico has directed Bank of New York Mellon Corp. (“BNY Mellon”) not to issue a debt payment on Highways and Transportation Authority (“PRHTA”) bonds that is due to investors on July 1. The territory’s government said that the funds should stay with the agency while it undergoes bankruptcy proceedings to lower its debt.

Although Puerto Rico and the majority of its agencies have stopped issuing debt payments owed to investors, PRHTA has kept issuing its investor payments using reserve funds. In its lawsuit, Puerto Rico warned BNY Mellon that it might hold the latter liable for damages if the trustee issued the $222 million of principal plus interest that is due. PRHTA owes about $4 billion of debt that is outstanding.

To schedule your free case consultation, contact our Puerto Rico UBS bond fraud attorneys today.

UBS loses $793,000 in Puerto Rico bond arbitration case, InvestmentNews, June 28, 2017

Assured Guaranty : Bond Insurers Sue Puerto Rico Board to Enforce $9 Billion Utility Deal, 4-Traders, June 27, 2017

Puerto Rico Tells Trustee Not to Cover Payment on Highway Bonds, Bloomberg, June 26, 2017

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A Lesson in Connecting with the Jury

Originally published by Paul Cannon.

In 2010 I stood before a panel of prospective jurors. I had read the (then new) book on reptile tactics. I had been to the Jerry Spence weekend getaway seminar. I had read everything else I could find to tell me how to be a better trial lawyer. But none of these had taught me […]

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If the ghost of Lochner lurks about, it must pay toll.

Originally published by David Coale.

In St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013), the Fifth Circuit struck down a state-law restriction on the sale of funeral caskets by a monastery, finding that the state had no rational basis for that restriction. Cautious about encouraging similar challenges to economic regulation, the Court cautioned: “Nor is the ghost of Lochner lurking about. . . . We insist only that Louisiana’s regulation not be irrational—the outer-most limits of due process and equal protection . . . . ”

The recent case of Reyes v. North Texas Tollway Authority confiirms that if the ghost of Lochner chooses to lurk on Dallas-area tollways, it will have to pay its toll charges timely. It found that the NTTA’s system for charging late fees has a rational basis in both its legitimate need to recover collection costs and desire to encourage the use of TollTags, and concluded: “The Zip Cash system with its challenged fees is the type of novel policymaking for which the limited scrutiny of rational basis review is most justified. . . . The political process may continue to fine tune toll collection, but that is not the Due Process Clause’s role to play.”

In so doing, the Court clarified a sometimes-confusing principle about the legal standard: “[G]overnment action that applies broadly gets rational basis [review]; government action that is individualized to one of a few plaintiffs gets [‘]shocks the conscience[‘] review.” No. 16-10767 (June 27, 2017).

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Toughest Sheriff Goes on Trial for Contempt

Originally published by Thomas J. Crane.

Sherrif Joe Arpaio, the self-styled “toughest” sheriff in the country, is going on trial. He had been warned not to detain immigrants just because they lacked legal status. The order came from U.S. District Judge Murray Snow after the deputies had detained several Mexican-American citizens and Mexicans here on lawful visas. Sheriff Joe, the toughest sheriff in the country, disregarded the order for some 18 months. His deputies continued to detain immigrants. The judge said the Sheriff’s office was engaging in racial profiling. I wrote about that ruling here and here. Sheriff Arpaio hired a private investigator once to investigate Judge Snow’s wife. He famously claimed he would investigate Pres. Obama’s birth records. He has always courted the news whenever he could.

The current trial results from the Department of Justice charging the sheriff with criminal contempt. He could be punished with a fine or prison up to six months. See NPR news report. The toughest sheriff in the country lost his bid for re-election last November. This may be his last opportunity to garner further headlines.

The toughest sheriff lost his first motion to recuse Judge Snow in 2015. He appealed to the Ninth Circuit and lost. He later filed a second motion to recuse Judge Snow in 2016. But, the criminal contempt is proceeding under a different federal judge, Susan Bolton. See KJZZ news report.

Judge Snow was the second federal judge assigned to the racial profiling case. Sheriff Arpaio succeeded in getting removed a Mexican-American judge initially assigned to the case. But, more importantly, he uses these challenges with the federal judges as fodder for fund-rasinng. It was successful tactic to talk about his confrontations with the feds. Now, it seems that one fed will confront him.

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Wednesday, June 28, 2017

Can an Agent Under a Power of Attorney Revoke a Transfer on Death Deed?

Originally published by Rania Combs.

The Texas Transfer on Death Deed allows homeowners to name a beneficiary who will inherit their property after they die.

It works like a beneficiary designation on a bank account or an insurance policy. If a beneficiary is named, the property will pass to the beneficiary outside the probate process.

To be valid, the transfer on death deed must be signed by the homeowner and recorded in the County property records before the homeowner’s death. The transfer on death deed statute specifically prohibits an agent acting under a power of attorney from creating a transfer on death deed.

Recently, someone asked whether it was possible for an agent acting under a power of attorney to revoke a transfer on death deed.

Based on my reading of the statute the answer is: no.

The statute provides that a revocation or subsequent transfer on death deed that revokes the preceding transfer on death deed must be acknowledged by the transferor.

A transferor is defined as an individual who makes a transfer on death deed, which specifically excludes an agent acting under a power of attorney.

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“No, But” and “Yes, But” Tort Duties—Pagayon, et al. v. Exxon Mobile Corporation (and the importance of footnote 33)

Originally published by Daniel Correa.

When it comes to tort duties in Texas, the Supreme Court cautions attorneys to watch their buts. In Pagayon, et al. v. Exxon Mobile Corporation, No. 15-0642 (Tex. 2017), the Court addressed the issue whether an employer owed a duty to control its employee under the particular circumstances in the case, but declined to circumscribe a general duty, one way or another, to control others. Justice Boyd, in an impassioned and concise concurrence, charged the majority with substituting “Moses-like methods” for “Solomon-like” solutions and for succumbing to Potter Stewart-esque approaches to tort duties, a charge address by the majority in footnote 33.

Underlying both the majority and concurrence is an age-old problem with tort law, specifically negligence: how to create fact-insensitive principles of law that articulate general duties so as to narrow judicial discretion on what is generally a question of law—does the defendant owe a legal duty?  This blog provides (1) an overview of the facts and holding in Pagayon, and (2) an analysis of footnote 33, hopefully to help the reader understand what Moses, Solomon, and Pornography have in common here.

*One more thing to note, the Court, again, made clear that certain tried-and-true torts—specifically negligent supervision, hiring, retention, and training—may not exist under Texas law, notwithstanding the fact that lower courts generally recognize these torts or take these torts for granted.*

1.     Pagayon, et al. v. Exxon Mobile Corporation in a (medium sized) nutshell.

Pagayon involved the tragic and wholly unnecessary death of Alfredo Pagayon, Sr. Alfredo Sr. secured a job for his son, Alfredo, Jr., at a convenience store owned by Exxon Mobil Corporation and managed by Alfredo Sr.’s friend, Roce Asfaw. A fellow convenience store employee, Carlos Cabulang, at some point offended Jr. when Carlos asked if Jr. was having an affair with a co-employee, Vong Vu. Jr. complained to Roce, but was told to ignore Carlos. On a sequent evening, two customers complained to Jr. that the men’s restroom had an “out of order” sign on it. Jr. discovered that the restroom was not out of order and felt that Carlos had placed the sign on the door to harass him, as Carlos had worked the prior shift. Jr., again, informed Roce, who, again, told Jr. to ignore him.

Alfredo Sr. knew Carlos and called him after Jr. complained about the apparent harassment at work. Alfredo Sr. told Carlos to stop harassing Jr. The two got into an argument. On Jr.’s next shift, Carlos confronted Jr., cursing and threatening him and his father. Jr. became afraid and told another employee, Jovita Leslie, who, in turn, told Carlos to stop. When Carlos refused to stop, Jovita called Roce at Jr.’s request. Roce told Jovita to instruct Jr. to stay away from Carlos. Roce did not speak with either Carlos or Jr. The situation deescalated and Jr. and Carlos worked side by side until Jr.’s shift ended.

This was the first time that Roce had any indication of Carlos’ hostility toward Jr. or anyone else. Jr. had never informed Roce that he was afraid of physical violence. And, nobody had informed Roce about the heated conversation between Alfredo Sr. and Carlos.

Alfredo Sr. arrived at the convenience store to pick Jr. up and Carlos immediately confronted him. A fight between Alfredo Sr. and Carlos ensued. Carlos knocked Alfredo Sr. to the ground.  Jr. intervened, placing Carlos in a headlock. The fight then ended. Alfredo Sr. complained that he could not breathe, so Jr. called 9-1-1. Twenty-three days later, Alfredo Sr. died from cardiac arrhythmia, respiratory failure, and renal failure. The Pagayon family subsequently filed a wrongful death suit against Exxon.

At the trial proceeding, the jury found Exxon negligent in its supervision of employees and also apportioned fault to Alfredo Sr. and Jr. The jury attributed 75% liability to Exxon and awarded the Pagayon family damages near $2 million. The Houston Fourteenth District Court of Appeals remanded the case for a new trial on the ground that the trial court erred in not allowing Exxon to designate as a responsible third-party the emergency room physician, Dr. Hung Hoang Dang, who treated Alfredo Sr., and who allegedly made several failed attempts to drain a lung that did not exist—Dr. Dang read a dark space on Alfredo Sr.’s chest x-ray as a fluid filled left lung; Alfredo, Sr. was born without a left lung. The court of appeals, rejected, however, Exxon’s argument that it owed no duty to control Carlos.

The Texas Supreme Court granted the parties’ respective petitions for review and took up the single issue whether Exxon owed a duty to control Carlos under the circumstances. Even though lower Texas courts have held employers to general duties with respect to negligent hiring, negligent, or negligent supervision, the majority opinion made clear that the Texas Supreme Court has never ruled on the existence, scope or contours of such torts and the lower courts have never engaged in the requisite duty analysis to determine the existence of these torts either. See *13-14.

The rule in Texas is that no general duty exists to control others, unless a special relationship gives rise to a duty to aid or protect others. This is a “no, but” approach. Employment is one such special relationship, but the question is whether there is a general duty for persons in a special relationship with another to control the other. The Court looked to the Restatements Second and Third to aid its analysis of this issue.  The Restatement Second rule is “no, but”—no general duty to control others when a special relationship exists, but there are exceptions. The Restatement Third rule is “yes, but”—yes persons in a special relationship with another owe a duty to reduce or prevent risks to third parties, but there are exceptions. One such exception to the Restatement Third rule is that “a court may decide, based on special problems of principle or policy, that no duty or a duty other than reasonable care exists.” See *17-18.

The Court adopted the “yes, but” rule respecting special relationships. The court rejected the Restatement Second “no, but” approach, primarily due to a broad exception to the rule in Section 317, which states:

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a)                  the servant . . .  is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, . . . and
(b)                  the master . . .  knows or has reason to know that he has the ability to control his servant, and . . . knows or should know of the necessity and opportunity for exercising such control.

The Court rejected Section 317, as it stated a broad rule without regard to policy considerations and other factors that Texas courts are charged to weigh when determining whether a duty exists.  

Whether a duty exists is a question of law for the court and is determined by weighing various factors:

The considerations include social, economic, and political questions and their application to facts at hand. We have weighed the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Also among the considerations are whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.

*9-10 (quoting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004). The Court judged Section 317 according to this Humble Sandbaseline and explained that Section 317 falls woefully short. See *14-17. Section 317 states a general rule without regard to policy considerations, such as “the burden on the employer, the consequences of liability, and the social utility of shifting responsibility to employers.” See Pagayon, at *15.

Texas, then, is a “no, but” and “yes, but” state: There is no general duty to control others, unless a special relationship exists; There is a general duty for a person in a special relationship with another to control the other with regard to risks that arise within the scope of the relationship, unless a court determines, based on problems of principle or policy, that no duty exists. See *17-18.

Having articulated the standard, the Court easily determined that Exxon owed no duty to control its employee under the circumstances of this case. First, the risk of this occurrence was minor as the situation was not one in which ‘repeated, serious, threats or action” posed a threat to patrons. Second, the risk at issue was not foreseeable, as the disagreements between the parties were “matters of words until the fistfight suddenly broke out.” Third, placing a duty on the employer here would impose a significant burden, as employers would be required to investigate and monitor every situation, no matter how trivial or small. Fourth, “the result was bizarre, given the brevity of the altercation, the absence of any weapons, and the slightness of the provocation,” and extending liability to the employer here would effectively “render the employer liable for the most extreme consequences of simple employee friction.” Fifth, the public was never in danger, so there would be very little social utility to imposing a duty on the employer here. See *18-20.

2.Footnote 33—Moses, Solomon, and Pornography

Justice Boyd criticized the majority opinion on three separate, but related grounds, though he lists them as “two interrelated reasons.” See *20 (Boyd, J. concurring). First, the majority opinion did not need to reject Section 317 outright. Justice Boyd agreed that Exxon owed no duty under the circumstances here, whether solely applying the duty balancing test or Section 317. Section 317 imposes liability on an employer when “the employer knows or should know that a ‘necessity and opportunity for exercising such control’ exists.” *21. The facts here clearly showed that Roce, and thereby Exxon, had no reason to think that its employees posed a risk to any patrons, or any risk of physical harm to any third-party or fellow employee. It was not necessary to decide one way or another whether Section 317 correctly stated an employer’s duties.

The second criticism relates to the first. Section 317 provides something like a bright-line rule. It objectively defines a duty and, as a result, can provide authoritative guidance to others. Justice Boyd posited that the judicial system should provide “Moses-like methods,” by which the law provides such authoritative guidance so that people can govern their conduct accordingly. He charged that the majority, instead, provides a Solomon-like solution[].” See *24. That is, the judicial system disserves the public when, rather than providing authoritative dictates that facility predictability and prospectivity, it attempts to do equity only under the specific facts of the case. Courts, in other words, should not be viewed as the place to go to find out what your legal duties are. If you are to be held accountable for your actions, the law should, ex ante, already inform you or provide specific guidance for you to determine the duties to which the law will hold you accountable; otherwise, how can law be expected to govern anyone?

Third, and related to the first two, Justice Boyd bemoans unfettered judicial discretion. Though the majority cautions against overly broad rules, it ignores the danger of overly narrow rules. See *24-25. Both overly broad and overly narrow rules work the same evil—unfettered judicial discretion. With an overly broad rule, like the duty analysis, which requires weighing various factors, a judge can repair to his or her own personal intuitions about what the law should require under the circumstances, which “erodes objectivity.” See *24. With an overly narrow rule, even if the court employed an objective method to arrive at the narrow rule, if the facts to which the narrow rule apply are irreplicable,” the rule proves useless to lower courts and future litigants, which effectively leaves the judiciary with the same unfettered discretion. So, Justice Boyd accuseed the majority of providing “little more than a Potter Stewart-esque we-know-duty-when-we-see-it approach” to tort duties in the employer-employee relationship context. See *23 (citing Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (declining to attempt to define pornography, but stating that he “know[s] it” when he “see[s] it”).

The majority retorts in footnote 33. In footnote 33, the Court conceded to Justice Boyd’s charge that the majority provides only a Solomon-like solution, as opposed to a Moses-like method. This confession is significant when considering Justice Boyd’s overall point is that the judicial system disserves itself and the public when its rules do not, ex ante, provide clear authoritative guidance. The majority rejected, however, Justice Boyd’s “Potter Stewart-esque” charge.

Chief Justice Hecht, in footnote 33, provides a justification for narrow duty rules that he considers to serve the overall goal of a attaining an appropriate and  general rule. This is the common law vision: “The recognition of an appropriate rule must await ‘the incremental and reasoned development of precedent that is the foundation of the common law system.’” See footnote 33 (quoting Rogers v. Tennessee, 532 U.S. 451, 461 (2001). Justice Hecht’s retort in footnote 33, while conceding to Solomon-like solutions here, focuses on the proper role of the judiciary when developing the common law. “[T]he concurring opinion prefers a prescriptive approach in recognizing legal duties to that of the common law.” See footnote 33. State another way, the concurring opinion would have the Court usurp the function of the Legislative Branch.


Pagayon v. Exxon Mobil Corp. provides a roadmap for practitioners when preparing their next direct negligence claim against an employer as well as those practitioners defending against these claims. Remember to watch your buts. In the employer/employee tort context, Texas is a “No, But” and “Yes, But” state. Create, at minimum, three sets of generalized statements of the duty owed—a broad, medium, and narrow statement. And, polish up on public policy arguments.             

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Section 232 and Oil Country Tubular Goods

Originally published by Charles Sartain.

By now, you’ve heard the Trump Administration is conducting a “Section 232 Investigation” into the effect of imported steel and aluminum products on national security. Here’s a primer on the topic.

What is this Section 232 thing anyway?

  • Section 232 of the Trade Expansion Act of 1962 authorizes the Secretary of Commerce to conduct investigations to determine the effect on national security of imports of any product.
  • On April 19 the Department of Commerce announced it was initiating a Section 232 investigation into foreign steel and aluminum imports. President Trump then called upon the Secretary of Commerce to “prioritize” that investigation.
  • Section 232 requires the Secretary of Commerce (Wilbur Ross) notify the Secretary of Defense (James Mattis) that an investigation has been initiated. The Secretary of Commerce then consults with the Secretary of Defense and other agencies to determine whether any “corrective measures” are necessary to protect U.S. national security from excessive foreign imports.
  • Though not required, the Department of Commerce typically holds public hearings in connection with a Section 232 Investigation. In this case, public hearings have been held and the comment period is over. Many top officials from foreign and domestic steel producers, importers, and consumers have weighed in with testimony.
  • Within 270 days of initiating an investigation, the Secretary must issue a report to the President on whether importation of the product in question is in such quantities or under such circumstances as to “threaten to impair” U.S. national security. In this case, Secretary Ross has indicated the report will be issued sooner, likely by the end of June.
  • Based on the Commerce Department report, the President may take action to “adjust the imports” of the goods in question. The primary means of “adjusting imports” is through tariffs, quotas, or hybrid “tariff-quotas” on the imported goods (i.e., tariffs after certain import threshholds are met).

“National Security” – Broader than you think

  • U. S. steel producers easily produce enough steel to meet the Department of Defense’s traditional needs (think trucks, tanks, battleships). However, Section 232 Investigations are not limited to these traditional national security concerns.  They also consider “the close relation of national economic welfare to U.S. national security” and the effect of a “loss of skills or investment, substantial unemployment and decrease in government revenue” on national security.  With these broad parameters, it is no surprise President Trump has utilized Section 232 to effectuate his “America First” message.

What does this mean for America’s energy business?

  • To the surprise of many, U.S. energy producers import most of their casing, tubing, and line pipe from overseas. The vast majority of these imports are from Korea, Mexico, and Turkey. While these countries are our allies (Turkey, are you listening?) the Secretary of Commerce has given no indication they will be exempted from any corrective measures implemented as a result of the investigation.
  • If significant tariffs are imposed on foreign tubulars, there can be little doubt it will drive the costs of that pipe higher (that’s generally the point). And, when you consider that casing accounts for approximately 8 to 10 percent of the costs of drilling a horizontal well in most American shale plays, it is easy to see how increased casing costs would cause problems for American producers.  With oil currently below $45 per barrel, there is little room for increased costs.

Answers any time soon?

  • Steel industry players and downstream users have pleaded for more time and a more thorough investigation. Thus, the report may not be issued until as late as January 2018.
  • Once the report is issued, the President must then issue corrective measures, which are subject to court challenge. A legal challenge to whatever corrective measures are issued seems a near certainty.  It could then take years for challenges to work their way through the courts.  And, until it is resolved, forecasting the cost of casing, tubing, and line pipe, will be a guessing game.

Let’s pay a visit to the importers.

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Client Development: Where are you focusing your time?

Originally published by Cordell Parvin.

I recently read a Seth Godin post: Who are we seeking to become?

I particularly like this quote:

The difference between who you are now and who you were five years ago is largely due to how you’ve spent your time along the way.

I coached a successful lawyer who decided to focus her time on her family, church, health and law practice/clients. As you might imagine she accomplished a great deal in each of those categories.

With coaching and law firm consulting work at almost a standstill, I’m focusing my time on becoming fluent in Spanish, becoming a better novelist and becoming a better golfer.

I’m actually in San Miguel de Allende in a Habla Hispana Spanish Immersion class.

Habla Hispana

Yesterday, I went to class with five other beginners from 8:30 to 1:00. Three teachers worked with us and it was intense learning for an old guy like me. I had to listen very carefully.

I arrived on Saturday and moved into my room on the second floor at the school. My room is really large. So far there have been only three slight problems.

  1. The mattress on my bed is like a rock,
  2. I haven’t had any hot water for my showers. This morning I took my third ice cold shower. It was a bit of a challenge to put my head under the shower.
  3. During Saturday night fireworks and rockets were shot off throughout the night. I understand those are either to celebrate a religious festival or recognize someone has died. At about 4:30 I wake up from hearing the roosters crowing

On Sunday morning, I was awake at 6:00. I tried to go back to sleep, but…Around 6:45 Needing coffee, I searched to see if any coffee shops were open and discovered one near the El Jardín plaza opened at 7:30. (Starbucks opens at 8:00 AM on los domingos.)

When I arrived at 7:30, I I took this photo of El Jardín and the Parrish Church of San Miguel. The coffee shop was open,  but they hadn’t started making coffee. I sat waiting for 15 minutes and finally gave up and walked back to Via Organic  near Habla Hispana. Francisco fixed me a latte and I learned he had moved back to San Miguel from Los Angeles to help his aunt run the business.

La Jardin


To get a full appreciation of how beautiful the Parrish Church is, here is better photo.

Screen Shot 2017-05-13 at 1.17.06 PM

Believe it or not, I’m nervous about this experience. I’ve taken a Spanish class here in Dallas and I have a tutor. The first thing I realized is I probably have not focused on memorizing things since I took the Bar Exam in 1971. That’s a lot of years between memorizing things.

I’ve been asked why I want to learn Spanish. My father spoke fluent Spanish. He loved Mexico, and when I was 12, we traveled by car all the way from Chicago to Acapulco. If you think about Chevy Chase and the Vacation movies, we would have a good one on that trip.

My son-in-law’s first language is Spanish and Nancy and I travel to Mexico regularly. All of our friends who live there speak English. We love them and I want to speak to them in their language. Will I be able…? I’ll try my best and let you know.

If you’ve never been to San Miguel de Allende, I recommend it. The weather is never too cold or too warm. Many Americans and Canadians live there.  Check out Living, Working, Retiring in San Miguel de Allende. There are two golf courses, so I  have my golf clubs with me. But, having sat through class one day, I can picture the golf clubs remaining in my travel bag,

I’m determined to learn Spanish. I know it will take more than my four weeks of intensive learning, but I wonder if I’ll be able to write a blog in Spanish when I return.

P.S. If I never have hot water, my next post may be from Oaxaca at their Spanish Immersion School. Stay tuned.

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New Texas law bans child marriages (yes, you read that right!)

Originally published by Michelle O'Neil.

Texas Governor Greg Abbott signed into law a bill eliminating a loophole allowing child marriage. The new law prohibits people under the age of18 years from getting married unless they are emancipated minors. Minors are allowed to emancipate from their parents at the age of 16, so the youngest age a person may marry in Texas under any circumstance is now 16. The prior law permitted one parent to overrule another parent to allow a 16 year old to marry, and a parent could consent to the marriage of a child of any age with the approval of a judge without regard to wehther the child was being subject of abuse or coercion.

According to a Pew Research Center report, Texas has the second-highest rate of child marriage, with 7 out of every 1000 minors aged 15-17 were married in 2014. The national average is 5/1000. Between 2000 and 2014 almost 40,000 minors got married in Texas.

Here’s an article about this new law:


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Great American Ins. Co. v. Hamel: The “Fully Adversarial Trial” On Trial

Originally published by Jeffrey C. Glass.

In the much-anticipated Hamel decision, the Texas Supreme Court finally addressed the definition of a “fully adversarial trial” under the Gandy rule, holding that a reviewing court must focus on the insured’s incentives to contest liability, rather than on retroactive evaluation of tactical trial details.   Great American Ins. Co., et al v. Hamel, — S.W.3d –, No. 14-1007, 2017 WL 2623067  (Tex. June 16, 2017) (citing State Farm Fire & Casualty Co. v. Gandy, 925 S.W.2d 696, 714 (Tex. 1996)). The decision settles some controversies over Gandy, but raises several important questions insurers should be aware of.


The Hamels sued their builder, TMB, for defective construction of their home. Great American, TMB’s liability insurer, denied defense for reasons it later conceded were inadequate.  Before trial, Hamel essentially agreed not to execute any judgment against TMB’s assets. Before the bench trial, TMB provided factual stipulations supporting duty, breach and damages, and testified consistent with them at trial.  The Hamels offered supporting evidence, but TMB called no witnesses, made no objections to the Hamels’ evidence, and did not submit proposed findings.  Based on the Hamels’ uncontested findings, which largely tracked the builder’s pre-trial stipulations, the trial court awarded the Hamels damages for repair costs, loss of market value, and mental anguish.

The Hamels then sued Great American to recover the underlying damages. The Hamels abandoned extra-contractual claims and went to a bench trial on breach of contract. The underlying record and the stipulations, among other evidence, were admitted at trial and the court entered judgment for the Hamels finding TMB’s negligence caused the damage and, on the primary issue presented, that the rule of Gandy did not preclude enforcement of the underlying judgment against TMB.  See 2017 WL 2623067, at *4 (citing Gandy, 925 S.W.2d at 714).  That rule prohibits an insured’s judgment creditor from enforcing a judgment against the insurer if rendered without a “fully adversarial trial.” Id. The trial court found the Hamels’ trial strategies and actions were reasonable and were not collusive or fraudulent and that the underlying trial “was . . . an adversarial proceeding.” Id.  The El Paso Court of Appeals affirmed, holding the underlying judgment was the result of a fully adversarial trial, and TMB’s assignment of its claims against Great American to the Hamels was valid. Id. (citing Great Am. Ins. Co. v. Hamel, 444 S.W.3d 780 (Tex. App.—El Paso 2014)).


On appeal the Supreme Court explored Gandy’s two-pronged conclusion. Gandy first held an insured’s assignment of its rights under a liability policy to an injured party is void if:

(1) it is made prior to an adjudication of plaintiff’s claim against defendant in a fully adversarial trial, (2) defendant’s insurer has tendered a defense, and (3) either (a) defendant’s insurer has accepted coverage, or (b) defendant’s insurer has made a good faith effort to adjudicate coverage issues prior to the adjudication of plaintiff’s claim.

Gandy, 925 S.W.2d at 714. The Gandy Court independently concluded: “In no event . . . is a judgment for plaintiff against defendant, rendered without a fully adversarial trial, binding on defendant’s insurer or admissible as evidence of damages in an action against defendant’s insurer by plaintiff as defendant’s assignee.” Id.

Hamel explored in detail only the second prong because Great American had conceded the validity of TMB’s assignment to the Hamels.  To “provide further clarity on this issue”, the Court nevertheless held the assignment was valid because: a) TMB assigned its claims following, not preceding, a trial and judgment; b) unlike the insurer in Gandy, Great American breached its duty to defend; and c) Great American neither accepted coverage nor made a good-faith effort to adjudicate coverage before the Hamels’ claims against TMB were resolved.  2017 WL 2623067, at *6.

That holding did not settle the case, however, because Great American argued, independent of the assignment’s validity and despite its failure to defend, that Gandy precluded enforcement of the judgment against Great American solely because it was “rendered without a fully adversarial trial.” Id.  In the older Block decision, the Supreme Court had indicated an “insurer’s breach of its duty to defend necessarily renders any covered judgment binding on the breaching insurer.”  2017 WL 2623067, at *6 (citing Employers Cas. Co. v. Block, 744 S.W.2d 940, 942-43 (Tex. 1988)).  In the Atofina decision, subsequent to Gandy, the court applied Block where an insurer breached its duty to defend avoiding Gandy’s “fully adversarial trial” rule because “Gandy’s key factual predicate [was] missing” in that the insured had not assigned its claims but had sued the insurer directly.  Id. (citing Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 673 (Tex. 2008)).  The Hamel Court noted that Gandy’s “fully adversarial trial” rule had shifted focus away from failure to defend and “toward whether the underlying judgment accurately reflects the plaintiff’s damages and thus the insured’s covered loss.”  Id.

This raised the question of what a “fully adversarial trial” must entail.  The Court rejected the Court of Appeals’ approach – retroactively evaluating and second-guessing trial tactics – and concluded “determining whether and when [judgment] calls [made by trial lawyers] destroy the ‘adversarial’ nature of the proceeding is simply not possible”. 2017 WL 2623067, at *7.  The Court announced its new rule:

Today we clarify that the controlling factor is whether, at the time of the underlying trial or settlement, the insured bore an actual risk of liability for the damages awarded or agreed upon, or had some other meaningful incentive to ensure that the judgment or settlement accurately reflects the plaintiff’s damages and thus the defendant–insured’s covered liability loss.

Id. Applying that standard, the Court held the underlying trial in that case was not fully adversarial because “the parties’ pretrial agreement [not to levy any judgment against TMB’s assets] eliminated any meaningful incentive [TMB] had to contest the judgment” by “remov[ing] any financial stake [TMB] had in the outcome,” leaving liability insurance as the only potential source of satisfying any judgment.  Id. at *8. That absence of incentive to defend rendered the underlying suit “a mere formality.” Id. 

  Questions Raised

This question of incentives to win raises interesting issues that may be litigated as insureds and tortfeasors scramble in the wake of Hamel to find ways to cooperate in insurer set-ups.  For example, Hamel cited, as evidence of a lack of incentive, the builder’s testimony that he did not care about certain credit issues after the pretrial agreement was executed because his assets were not at risk.  Id. at *8-9.  Is “incentive” thus an objective question of the actual risks to the insured’s assets or can it be proven by subjective notions the insured has about his risks? Hamel does not say, but, as if to emphasize the quandary, the Court noted a formal, written pretrial agreement is neither necessary nor sufficient to disprove adversarial trial, but that the presence of such an agreement set up a presumption of lack of adverseness, and vice versa.  Id. at *9. The court left open the quantum and nature of proof necessary to overcome whatever presumption is present. Id. at *9, n. 9.

Hamel is an insurer-friendly decision because it gives insurers who decline to defend a means of avoiding liability, even as it requires the policyholder who is deprived of a defense to prove its assets are actually at risk in the liability phase, even if no collusion with the tortfeasor can be shown.  This fact is mitigated by the secondary holding in Hamel that the coverage case can cure defects in adverseness.  Id. at *10-11.  Noting “relitigation” of liability and damages, while not a “perfect solution” is “necessitated by the circumstances”, the Court concluded that under its approach “the insurer will have the opportunity to challenge its insured’s underlying liability and the resulting damages, the abandoned insured is protected, and the burden on the plaintiff is fair. And of course, the insurer has every incentive to assert a strong defense during the Insurance Trial.”  Id. at *10.  Applying this standard to the facts of the case before it, the Court held the parties did not effectively retry the underlying damages case and did not “cure” the problems raised.  It remanded for a new trial.  Keep an eye on this space for further developments!

The post Great American Ins. Co. v. Hamel: The “Fully Adversarial Trial” On Trial appeared first on Hanna Plaut.

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I’ve got a KPitch where it’s hard to scratch –

Originally published by David Coale.

which-pitch-2KPitch intervened in a lawsuit and obtained a temporary injunction against FSD. FSD appealed the injunction and sought mandamus relief against the intervention. KPitch then nonsuited the claims that were the basis for the injunction, and the Fifth Court agreed with KPitch that this action made the appellate proceedings moot. FSD argued that the appeal should proceed because KPitch had refiled the claims in an improper effort to obtain a severance, but the Court did not see this argument as creating an exception to the general rule about the effect of a nonsuit. Frisco Square Developers LLC v. KPitch Enterprises, LLC, No. 05-16-00992-CV (June 22, 2017) (mem. op.)

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Seven-Year Litigation Ends in a Victory for Victim of a Golf Cart Ejection

Originally published by By Benny Agosto.

Seven years ago, Alexis Flores was 15 years old and a sophomore at Pharr-San Juan-Alamo High School in Pharr, Texas, participating in the student athletic trainer program and playing third base on the high school’s softball team. On September 9, 2010, her supervising trainer asked her to board a two-seater golf cart with himself and another student and drove toward the football field to set up water and equipment for a junior varsity football game. He took a sharp left turn, and Flores was ejected from the cart onto her right knee, tearing her ACL and shattering her dreams of playing softball again that spring.

Over the next couple of months, Flores endured three separate surgeries that required general anesthesia and subsequent physical therapy and restriction from physical activities, including softball. Flores and her family filed suit against PSJA Independent School District (PSJA I.S.D.) hoping they would be granted relief for her physical and mental anguish, but they would not receive any such relief for another seven years when Flores was 22 and had not been a student of PSJA I.S.D. for several years.

Under the Texas Tort Claims Act, government entities-school districts included-are immune to liability except in the case of motor vehicle accidents. After an unsuccessful motion to dismiss and subsequent motion for summary judgment on the basis of a golf cart not being a “motor vehicle,” Benny Agosto, Jr. pushed through several more years of litigation to get Flores the justice she deserved. On Tuesday, June 20, Judge Keno Vasquez of the 398th District Court in Hidalgo County, Texas ruled in favor of Flores, granting her a verdict against PSJA I.S.D. for vicarious liability for the negligent acts of their employee. The Texas Tort Claims Act caps relief at $100,000, but with a verdict of approximately $287,000-in excess of the cap-Flores is guaranteed the $100,000 for her past, present, and future physical pain and mental anguish and to reimburse her and her insurance company for her medical bills.

Flores is now a graduate of South Texas College with an Associate’s degree and currently in pursuit of her Bachelors of Arts in Psychology and Criminal Justice at the University of Texas – Rio Grande Valley with hopes of attending law school upon her graduation in December of this year. Agosto hopes this verdict will make it clear to school districts across the country how dangerous golf carts can be and ensure they avoid cases like Flores’ by enforcing strict policies against transporting students in these hazardous vehicles.

Benny Agosto, Jr. is a partner at Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz in Houston, Texas. For over 66 years, Abraham Watkins has successfully represented injured people and families who fall victim to catastrophes. Our attorneys have the knowledge, experience, and resources necessary to obtain just compensation their clients. For more information, please contact the office of Benny Agosto, Jr. at Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz, by letter at 800 Commerce Street, Houston, Texas 77002, or by phone at (713) 222-7211.

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