Tuesday, March 28, 2017

Will There Be A Statewide Ban On Texting While Driving?

Originally published by Liggett Law Group.

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

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

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

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

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

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

Lubbock Texting and Driving Accident Lawyers

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

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

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Monday, March 27, 2017

Houston Legal Links

Originally published by Mary Flood.

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

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

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

Originally published by Axel Lindholm.

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

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

Many Large Tenants Negotiate “Go Dark” Provisions in Leases

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

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

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

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

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

Romano & Sumner: Experienced, Skilled Commercial Real Estate Attorneys

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

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

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Much blame, but lame claim.

Originally published by David Coale.

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

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Friday, March 24, 2017

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

Originally published by Joanna Herzik.


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

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

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

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

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

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

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

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

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

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

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

Originally published by Energy Legal Blog ®.

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

Environmental Strategies
Richard Alonso, Whit Swift

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Separation Anxiety: How a Lawyer Can Smooth Out a Divorce

Originally published by Bob Kraft.

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


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


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


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

Narrowing Issues

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

Motion Practice

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

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

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

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Property Midterm – Castaway, Modified

Originally published by Josh Blackman.

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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Discounts for financial planning

Originally published by Staff Report.

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

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

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

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

Current offers provided by Beneplace.

For more information on other discounts you’re eligible for as a member of the State Bar of Texas, visit http://ift.tt/1cS7Rdr.

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

State Bar of Texas – Benefits & Services

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

Originally published by Roxanne Edwards.

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

The post Social Media Challenges for Businesses: How to Use, Police, and Enforce Your Intellectual Property appeared first on Klemchuk LLP.

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Common Branding Mistakes Your Law Firm Might Be Making:

Originally published by Stacey E Burke Blog.

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

1. No Focus

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

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

2.  Inconsistency

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

3.  Failing to recognize your target audience

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

4. Overlooking the competition

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

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

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

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

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

Originally published by Androvett Legal Media Blog.

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

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

To speak with Amanda Greenspon, contact Robert Tharp at 214-559-4534 or robert@androvett.com.


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A Girl Walks Home Alone at Night

Originally published by The Movie Court.

From the desk of The Movie Snob.

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

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

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

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Can You File a Personal Injury Lawsuit Against a Stalker?

Originally published by robertslawfirm.

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

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Thursday, March 23, 2017

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

Originally published by Robert Z. Cashman.

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

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Who is Liable for Sports Injuries?

Originally published by robertslawfirm.

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

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Texas Jury Reform Would Limit Prosecutors in Grand Jury Proceedings

Originally published by AZ.

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

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

What Is a Grand Jury?

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

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

Proposed Rule Change for Grand Jury Proceedings

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

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

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

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

Bill Would Also Allow Suspects to Receive Evidence

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


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Mick Mickelsen Dallas Criminal Defense Lawyer

Founding Partner/Former Assistant Federal Public Defender

Contact Info

Broden & Mickelsen, LLP

2600 State St Dallas,

Texas 75204

(214) 720-9552

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Wednesday, March 22, 2017

Workshops held for Rio Grande Valley inventors, entrepreneurs

Originally published by Eric Quitugua.

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

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

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

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

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

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

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SXSW law-related panels roundup

Originally published by Jillian Beck and Amy Starnes.

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

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

Legal challenges to ‘fairness bots’

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

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

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

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

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

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

Trade secret protection

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

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

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

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

Building brands in film and television

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

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

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

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

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

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

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

Originally published by Walter James.

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

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

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

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

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

More later.

As always, feel free to contact me at walter.james@jamespllc.com


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SXSW panel tackles entertainment law ethics

Originally published by Amy Starnes.

Top legal experts offered guidance and perspective on ethics in the constantly evolving and fairly unconventional field of entertainment law at a South By Southwest panel titled “Ethics Matter.”

Peter Strand, a partner at the Chicago-based Leavens Strand & Glover LLC; Lawrence Waks of Wilson Elser Moskowitz Edelman & Dicker LLP; and retired Chief Justice of the Supreme Court of Texas Wallace B. Jefferson walked attendees through the 4 Cs of ethics:

  • Competence
  • Conflicts of Interest
  • Confidentiality
  • Compensation

To obtain competence in entertainment law, the panelists recommended interested lawyers get involved with “volunteer lawyers for the arts” groups. The work will allow lawyers new to the field to build relationships and gain experience to help them stand on their own in the field.

Handling conflicts of interest in entertainment law can be tricky Strand noted because the industry is very small. When approaching a waivable conflict of interest, Jefferson advised lawyers to make sure clients fully understand the matter at hand and give the clients a chance to back out of representation.

On the matter of confidentiality, the panelists advised lawyers to always keep in mind their client is the artist—not the manager or parents. Sometimes maintaining confidentiality requires not disclosing certain information to some of the management personnel with whom you are most commonly communicating.

When it comes to compensation, the panelists reminded attendees that ethical guidance dictates that fees be “reasonable,” but added this too has its challenges based on nature and size of the industry. Compensation also may circle around to affect confidentiality as an entertainment lawyer representing an artist often may be paid by parents or a manager, but again, the lawyer must remember his or her client is the artist.

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Pass the App: What Consumers Want in a Restaurant

Originally published by Darin Klemchuk.

Restaurants use mobile order and pay-ahead apps to boost sales, facilitate order/payment, and increase customer loyalty. Only a few years ago, customers relied on restaurant […]

The post Pass the App: What Consumers Want in a Restaurant appeared first on Klemchuk LLP.

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Tuesday, March 21, 2017

AG’s office warns public about IRS scams

Originally published by Amy Starnes.

Attorney General Ken Paxton is warning Texans to beware of a tax-related scam preying on individuals as the April 18th income tax deadline approaches.

The scam involves unsolicited phone calls from individuals who claim to be Internal Revenue Service agents, according to a press release issued by the Office of the Attorney General. The scammers claim the person owes back taxes and will be arrested if he or she doesn’t provide immediate payment.

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Circuit Splits

Originally published by Jason P. Steed.

There’s a split over whether plaintiffs must prove the absence of probable cause when bringing a First Amendment retaliatory-arrest claim. See here at p.19. (Incidentally, this case is a good example of how messed up the law is, on qualified immunity. The question in this case is whether a person has a right against retaliatory arrest even when there is probable cause for the arrest. But the court grants immunity, saying it doesn’t need to determine whether the right exists because the Supreme Court has previously recognized that the right has not been clearly established. In this way, under our current qualified-immunity jurisprudence, when a right isn’t clearly established the courts can just continue to grant immunity on that basis, without ever deciding whether the right exists. Happens all the time. I’ve written more here.)

There’s a split over whether a mandatory supervised-release term may be modified or terminated under section 3583(e). See here at p.4.

There’s a split over whether participants or beneficiaries of an ERISA plan must exhaust internal plan remedies before suing plan fiduciaries on the basis of alleged violations of statutory duties. See here at p.14.

There’s a split over whether the denial of a “Hail Mary” chance at trial constitutes prejudice (in the context of possibly rejecting a plea agreement). See here at p.9 & n.3.

There’s a split over whether burglary requires intent-at-entry or just “the development of intent at any point.” See here at p.5.

Courts are divided over whether the joint-employer or single-integrated-enterprise theory of liability under the FLSA also applies to the personal-jurisdiction inquiry. See here at pp.5-6.

There’s disagreement over the interaction between sections 2680(a) and 2680(h) in the context of determining sovereign immunity. See here at p.15 n.5.

And there’s a split over whether the failure to object to the reasonableness of a sentence upon its imposition requires plain-error review. See here at p.6 n.10.

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Controversial subject: noncustodial parent possession over an infant

Originally published by Michelle O'Neil.

infant and fatherArizona State University has weighed in on a controversial subject – the quantity and quality of access of a noncustodial father to an infant child. “New research from Arizona State University shows that children, no matter what their age, benefit from having time with each parent that includes sleepovers at each home,” the article says. (See Overnights with dad benefits kids of divorce – no matter their age)

The study entitled “Should Infants and Toddlers Have Frequent Overnight Parenting Time with Fathers? The Policy Debate and New Data” was published February 2, 2017 in the American Psychological Association Journal of Psychology, Public Policy and Law.

ASU Associate Professor of Psychology William Fabricius, and lead author of the study, says that overnight parenting time with fathers during infancy and toddlerhood “causes no harm to the mother-child relationship” and actually it appears to benefit the children’s relationships with both mother and father. “Children who had overnights with their fathers when they were infants or toddlers had higher-quality relationships with their fathers as well as with their mothers when they were 18 to 20 years old than children who had no overnights,” Fabricius said.

The study was co-authored with ASU graduate student Go Woon Suh. The study revealed that the amount of parenting time small children had with their fathers when they were older did not makeup for the overnights they missed during their first few years. The increase in overnights during infancy and toddlerhood matched an increase in the strength of the bond between the father and their grown children. The findings were not changed depending on the level of conflict between the parents or whether the overnight parenting with the father was by agreement or over the objection of the mother.

“Having to care for their infants and toddlers for the whole cycle of evening, bedtime, nighttime and morning helps dads learn how to parent their children from the beginning,” said Fabricius, who studies father-child relationships and the impact they have on the child’s health and well-being. “It helps dads and babies learn about each other, and provides a foundation for their future relationship. Other studies have shown that programs that encourage married dads to take more responsibility for infant care help those dads learn better parenting skills, and we think that the same kind of thing happens when divorced dads have overnight parenting time.”

The mother-child relationships were improved when father’s had overnights, presumable because of the decrease in stress associated with sharing the responsibilities.

These findings differ from the position of many family court judges. In Texas, there is no presumption as to what the parenting time schedule should look like for infants and toddlers. Some judges have a restrictive view that a father’s parenting time should be frequent and limited with an infant based on research studies about memory development of infants. A common possession schedule under this view might look like this:

Children Under Six Months of Age:

  • Weekdays: On Wednesdays and Fridays of each week from 6:00 p.m. until 8:00 p.m. that same day.
  • Sundays: On Sundays of each week from 4:00 p.m. until 6:00 p.m. that same day.
  • Alternative Times: For three periods of two hours each during any seven-day period, with no more than two days between periods of possession whenever possible.

Children Between Six Months & Eighteen Months of Age:

  • Weekdays: On Wednesdays and Fridays of each week from 6:00 p.m. until 8:00 p.m. that same day.
  • Sundays: On Sundays of each week from 2:00 p.m. until 6:00 p.m. that same day.
  • Christmas: From Noon until 4:00 p.m. on Christmas Day each year.
  • Thanksgiving: From Noon until 4:00 p.m. on Thanksgiving Day each year.
  • Birthday: From 6:00 p.m. until 8:00 p.m. on the child’s birthday each year.
  • Alternative Times: For two periods of two hours each and one four hour period during any seven-day period, with no more than two days between periods of possession whenever possible.

Children Between Eighteen Months and Three Years of Age:

  • Weekdays On Wednesdays and Fridays of each week from 6:00 p.m. until 8:00 p.m. that same day.
  • Sundays: On Sundays of each week from Noon until 6:00 p.m. that same day.
  • Christmas: In odd-numbered years from Noon until 6:00 p.m. on December 26th of each year. In even-numbered years from Noon until 6:00 p.m. on December 25th of each year.
  • Thanksgiving: In odd numbered years from 10:00 a.m. until 6:00 p.m. on Thanksgiving Day each year.
  • Birthday: From 6:00 p.m. until 8:00 p.m. on the child’s birthday of each year.
  • Alternative Times: For two periods of two hours each and one six hour period during any seven-day period, with no more than two days between periods of possession whenever possible.

Children Three Years of Age and Older:

  • Standard Possession Order.

Other Texas judges believe the standard possession schedule should apply to infants and toddlers. Even other judges have been known the order equal parenting time for both parents no matter the age of the child. This issue is very controversial and emotional for mothers and fathers.

Texas Family Code sec. 153254 provides the factors for a court to consider when determining an access schedule for a young child:

A) The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:

  1. the caregiving provided to the child before and during the current suit;
  2. the effect on the child that may result from separation from either party;
  3. the availability of the parties as caregivers and the willingness of the parties to personally care for the child;
  4. the physical, medical, behavioral, and developmental needs of the child;
  5. the physical, medical, emotional, economic, and social conditions of the parties;
  6. the impact and influence of individuals, other than the parties who will be present uring periods of possession;
  7. the presence of siblings during periods of possession;
  8. the child’s need to develop healthy attachments to both parents;
  9. the need for continuity of routine;
  10. the location and proximity of the residences of the parties;
  11. the need for temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d)[The Standard Possession Order] based on: a) the age of the child; or b) minimal or inconsistent contact with the child by a party;
  12. the ability of the parties to share in the responsibilities, rights, and duties of parenting; and
  13. any other evidence of the best interest of the child.

See my prior blog posts:

One Size Does Not Fit All: Possession for Children Under Three

One Size Does Not Fit All: Possession for Children Under Three Part 2

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Man Charged with Cyberstalking After Strobe Tweet is Sent to Dallas Reporter

Originally published by [email protected].

The rapid growth of social media and apps has to a raft of new cyberstalking laws at federal and state levels. Offensive tweets, Facebook posts, and texts have been linked to teen suicides and other consequences. However, in a recent case involving a Dallas-based reporter, a tweet is linked to direct harm.

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Monday, March 20, 2017

What’s in a name?

Originally published by David Coale.

Adams LLC, formed in July 2010, bought a number of assets from Adams Produce Company, Inc., and sought to prosecute a Deepwater Horizon claim for damages suffered by Adams Inc. Unfortunately, “[a]lthough substantially alll of Adams Inc.’s assets and liabilities were transferred as part of the transaction, it is undisputed that Adams Inc. retained certain assets and liabilities. Adams Inc. and Adams LLC are two distinct entities, and the asset transfer that occurred here was not just a change in form.” BP Exploration v. Claimant ID 100169608, No. 16-30482 (March 8, 2017, unpublished).

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Texas May Face Federal Supervision After Judges’ Ruling on Three Congressional Districts

Originally published by Androvett Legal Media Blog.

A Dallas attorney says Texas may have to ask for permission to change election laws after a panel of federal judges ruled the maps drawn for three U.S congressional districts violate federal statutes.

The judges found the maps used for the congressional districts covering parts of South and West Texas intentionally discriminated against minority voters by either violating the U.S Constitution or the Voting Rights Act.

Constitutional law attorney David Coale of Lynn Pinker Cox & Hurst says the decision means that Texas may face a rare remedy referred to as a “bail-in,” which could lead to requiring prior federal approval of any changes to district lines.

“The issue here is not so much what the court said about these districts, since none of them were actually used in an election. It’s whether Texas’ process for drawing districts was so flawed that the federal government has to take over.”

Texas can appeal the ruling before early May, but that will mean more uncertainty and added delay to an already complicated case, adds Mr. Coale.

For more information or to interview David Coale, contact Sophia Reza 214-559-4630 or sophia@androvett.com.


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Fourth Court Reverses Summary Judgment

Originally published by Thomas J. Crane.

Texas has a whistleblower statute. It applies only to government workers. In a recent whistleblower decision, the Fourth Court of Appeals here in San Antonio reversed a grant of summary judgment. In the case of Torres v. City of San Antonio, No. 04-15-00664 (Tex.App. San Antonio 12/7/2016), Lt. Torres worked for the City Fire Department. In 2009, he was assigned to the Arson Division, where he would spend time at the San Antonio Police Department building. As an arson investigator, he had credentials to access a secure area at SAPD. He noticed two former arson investigators using credentials to get into the same secure area. They should have turned in their investigator credentials when they left the Arson Division. So, Lt. Torres mentioned this to his Captain. A few days later, he submitted a report to the Deputy Fire Chief. Believing no action was being taken, a few days later, he submitted a complaint to the City wide Office of Municipal Integrity. OMI investigated and found the two former Arson investigators were indeed retaining their former credentials. Fire Department Chief Hood was aware they were retaining their credentials, but the Chief did not realize that retention violated statute. Changes were made in procedures to keep this from happening again. Lt. Torres left the Arson Division a few months later.

In 2012, Lt. Torres applied to return to the Arson Division. He was turned down in favor of someone less experienced and without the necessary certifications. The persons making the selection included Chief Hood and Torres’ former supervisor, Capt. Casals. Both Hood and Casals said they overlooked Lt. Torres for the position in part because of his prior complaint to OMI. That evidence amounts to a clear violation for he Texas Whistleblower law. Under the statute, a claimant must show: 1) he was a public servant, 2) he made a good faith report of a violation of law by his employer governmental agency, 3) he made the report to an appropriate law enforcement agency, and 4) he suffered retaliation at work for making the report. Yet, the lower court granted summary judgment.

The City presented evidence that Torres made the report not out of good faith belief, but to shield himself from consequences of unilaterally causing the credentials to be cancelled for the two prior former Arson Investigators. Lt. Torres responded with evidence showing that other officers would have made the complaint, and that he only went to OMI after he saw no action was being taken by the Fire Department. The court of appeals found there was genuine issue of material fact regarding whether his report was in good faith. The employer also argued that the plaintiff did not show his being turned down for the position was related to his report to OMI.

The City showed several reasons why Lt. Torres was not selected, other than his prior whistleblower complaint. But, said the Fourth Court, the plaintiff is not required to show his reporting the credentials issue was the sole reason for being passed over. Instead, the employee need only show that but for the report, he would not have been turned down. That is, the employee need only show the report played some role, however small in the action taken against him. The issue should be resolved by a jury, said the court. See the decision here.



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Agree on These Litigation Rules to Level the Playing Field

Originally published by Zach Wolfe.

The “Fiver Rules” Recognize the Reality of Modern Litigation Practice

WARNING: Typically, I try to write posts that will interest lawyers and non-lawyers alike. But this post is for attorneys only, particularly Texas attorneys. If you don’t have a “JD” or an “Esq.” after your name, DO NOT READ THIS. It is “inside baseball” exclusively for us lawyers.

The high-powered litigation firm Susman Godfrey popularized the practice of “Trial by Agreement,” a process where lawyers on both sides of a lawsuit agree on certain procedures up front to minimize gamesmanship and unnecessary discovery disputes.

This was an admirable goal, but as a practicing Texas litigator, I find that the suggested stipulations on “Trial by Agreement” don’t always match the reality of modern litigation practice. Having closely observed the way Texas lawyers actually handle lawsuits, I propose that readers of Five Minute Law agree on the following “Fiver Rules” for Texas litigation.

  1. Every response to a written discovery request must begin with three pages of detailed “general” objections. If the responding law firm is from California or New York, the requirement is increased to five pages. These general objections must state that they apply to every request, but most of them must not actually apply to every request.
  1. In state court, the response to each request for production must include an objection that the documents are privileged. Texas Rule of Civil Procedure 193.2(f) says that the responding party should withhold privileged documents, not object to the request, but the parties will be required to ignore this rule.
  1. Contention interrogatories must ask for “all facts” supporting the responding party’s contentions. Texas Rule of Civil Procedure 197 is clear that phrasing a contention interrogatory this way is objectionable, but the requesting party must ignore this rule. Conversely, an interrogatory asking for the basic factual grounds for a claim in a party’s pleading must be met with the objection that it improperly requires “marshaling evidence.”
  1. The “conference” requirement for discovery disputes may be satisfied by stating to opposing counsel in writing that all of his objections are unfounded. The statement must be in the form of a letter attached to an email to emphasize its seriousness. Alternatively, the procedure for resolving discovery disputes will be a conference call with at least three participants on each side. The lead lawyers are expected to use the conference call to train their associates on how to show the lawyers on the other side how tough and smart they are.
  1. Motions for summary judgment will be decided based on which side brings a larger binder of documents for the judge. If the binders are the same size, the tie-breaker will be which side has more PowerPoint slides.
  1. Every document produced in discovery must be designated “Confidential – Attorneys’ Eyes Only,” regardless of actual confidentiality. This includes documents found on the internet and copies of pleadings from publicly available court files.
  1. No one is allowed to smirk or make a sarcastic comment when a lawyer interrupts a difficult deposition question to “confer on a privilege issue.” If there is no plausible reason the question would raise any privilege issue, the remedy for the questioning lawyer will be limited to resuming the deposition with a snarky comment like “now that you’ve had a chance to confer with your lawyer . . .”
  1. The parties stipulate that every witness met with his lawyer five times for a total of 20 hours to prepare for the deposition. How many hours of your life have you spent listening to detailed deposition questions about who the witness met with, where, and for how long to prepare for the deposition? How many times has this questioning resulted in discovering a fact that will make any difference whatsoever at trial? This stipulation will save time for everyone.
  1. Each side’s first request for production will include a request for every document generated by the other side’s expert witness. Never mind that the “new” Texas discovery rules (which are now almost 20 years old) provide for only two exclusive methods of obtaining discovery about testifying experts (read Rule 195.1 if you don’t believe me). Why waste those forms your firm has been saving since the Reagan administration?
  1. In federal court, the defendant must file a motion to dismiss raising every possible factual defense to the plaintiff’s claims. A lot of court opinions say the judge should decide a motion to dismiss based only on the facts alleged in the plaintiff’s complaint. Those courts obviously do not appreciate the number of billable hours that a thorough motion to dismiss can generate for the benefit of both sides.

Agreeing on these rules up front will level the playing field for everyone. Nerds who take the Rules of Civil Procedure seriously will no longer be at a disadvantage. If the judge reprimands a lawyer for following one of the Fiver Rules, it will be socially acceptable for that lawyer to point at opposing counsel and say “he started it!”

And if you are a non-lawyer who has gotten this far and is now saying, “I wish I had that five minutes of my life back,” all I can say is, “you were warned.”


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

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


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Simple Jury Persuasion: The SPOT (Spontaneous Preference  for Own Theories) effect 

Originally published by Douglas Keene.

It’s been a while since we’ve had a new cognitive bias to share with you. Previously we’ve blogged on many different biases and here are a handful of those posts. Today’s research paper combines three biases—two of which we’ve blogged about before: the better-than-average effect, confirmation bias and also, the endowment effect. The endowment effect is the “(irrational) added value” we place on things just because they belong to us and not to someone else.

So, today’s research was described over at BPS Digest (a reliable source for accurate summaries), and it’s a bit odd. For the sake of brevity, here’s what BPS Digest says (they are based in England so they don’t spell everything like we do in the States) as they describe the study (we added emphasis to important points with bold font):

Across three studies, the researchers asked hundreds of participants to imagine a fictional planet in a distant solar system, inhabited by various creatures some of which are predators and others prey. Focusing on two of the creatures on the planet – Niffites and Luppites – the participants were told to imagine that they (that is, the participant himself or herself) held one of two different beliefs: Some were told that they had a theory that the Niffites were the predators and the Luppites were their prey, while others were told to assume that somebody called “Alex” had this theory. This background scenarios was chosen to be neutral and unconnected to existing beliefs, and the hypothetical “ownership” of the theory by some of the participants was intended to be as superficial and inconsequential as possible.

Next, the researchers presented the participants with a series of seven facts relevant to the theory. The first few were mildly supportive of the theory (e.g. Niffites are bigger), but the last few provided strong evidence against (e.g. Luppites have been observed eating the dead bodies of Niffites). After each piece of evidence, the participants were asked to rate how likely it was that the theory was true or not.

The way the participants interpreted the theory in the light of the evidence was influenced by the simple fact of whether they’d been asked to imagine the theory was theirs or someone else’s. When it was their own theory, they more stubbornly persisted in believing in its truth, even in the face of increasing counter-evidence.

This spontaneous bias toward one’s own theory was found across the studies: when different names were used for the creatures (Dassites and Fommites); whether testing happened online or in groups in a lecture room; regardless of age and gender; and also when an additional control condition stated that the theory was no one’s in particular, as opposed to being Alex’s. The last detail helps clarify that the bias is in favour of one’s own theory rather than against someone else’s.

The ownership of the theory made the difference in belief persistence. We are reluctant to discard ideas we think of as our own, even when the evidence contradicts it.

From a litigation advocacy perspective, we have talked a lot about how facts don’t matter (still true in 2017 as our most recent post on this topic explains) when it comes to personal beliefs and emotional reactions of jurors. In their paper, the authors of the SPOT effect research say this bias cuts across gender and age and that it “reflects a pro-self as opposed to anti-other bias”. They also comment on how easy it was to create allegiance to a theory (“phenomena that require surprisingly little to bring about”)—just by saying “I have a theory”–participants stood by the beliefs even in the face of evidence to the contrary.

We wonder how much stronger (and emotional) this bias would be if those core values and beliefs held by individual jurors were challenged in case narrative. While this is a new bias just named, it is why (for years now) we have recommended that our client-attorneys try to avoid hot-button issues and instead focus on incorporating universal values into their case narrative.

You are less likely to get knee-jerk reactivity from jurors who have polarized political positions when you use universal values to frame your case narrative (and stay away from unnecessary controversies).

Gregg AP, Mahadevan N, & Sedikides C (2017). The SPOT effect: People spontaneously prefer their own theories. Quarterly Journal of Experimental Psychology, 70 (6), 996-1010 PMID: 26836058



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Is a Non-Compete Agreement Without Geographical Restriction Enforceable in Texas?

Originally published by Leiza Dolghih.

imagesThis exact question is currently being decided by the Texas Supreme Court, which earlier this month held oral arguments in Horizon Health Corp. v. Acadia Healthcare Company, Inc. 

Under the Texas Noncompete Act, a noncompete agreement is enforceable in Texas only if it is:

Ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.

The non-compete agreement in Horizon Corp. v. Acadia Healthcare did not contain an express geographical limitation, but barred employees from:

  • seeking work in, or independently establishing, a psychiatric contract management company;
  • being employed by “company clients, hospital affiliates or hospital joint venture partners,” or
  • engaging in any business relationship with those hospitals for 1 year after the end of employment. 

Horizon argued that the non-compete agreement is not enforceable because it does not contain an express geographical limitation.  Acadia argued that because the agreement is limited to certain identifiable set of companies or clients, it did not need to have a geographical limit to be enforceable under the Texas Covenants not to Compete Act.  The parties presented their oral arguments to the Texas Supreme Court on March 1, 2017. 

BOTTOM LINE:  Until there is a ruling from the Texas Supreme Court resolving the issue of whether noncompete agreements must contain an express geographical limitation, to be safe, companies should include such limitation in the agreements in additional to any limits on client solicitation.  Stay tuned to learn how the Texas Supreme Court rules on this issue. 

Leiza litigates non-compete and trade secrets lawsuits on behalf of COMPANIES and EMPLOYEES in a variety of industries, and knows how such disputes typically play out for both parties. If you need assistance with a non-compete or a trade secret misappropriation situation, contact Leiza for a confidential consultation at LDolghih@GodwinLaw.com or (214) 939-4458. 

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Friday, March 17, 2017

Top 10 from Texas Bar Today: Law Librarians, Legal Writing, and Social Media

Originally published by Joanna Herzik.

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

10. Lessons from a Recent Employer Win in an ADA Accommodation CaseAlicia Voltmer of Lillard Wise Szygenda PLLC in Dallas

9. Client Development: Stop Selling and Start HelpingCordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

8. My Questions Surrounding ME2 Productions Attorney Gary Fischman’s Disclosed List of Interested Parties. – Robert Z. Cashman of Cashman Law Firm, PLLC @HoustonLawy3r in Houston

7. 5 Tips for Complying with EDTX Standing Orders on Jury ResearchKacy Miller @CourtroomLogic of Courtroom Logic Consulting in Dallas

6. Who Leads the Law Library? How About Law Librarians? – Greg Lambert @glambert of Jackson Walker L.L.P. in Houston

5. SCOTUS Hears Arguments on State Law Banning Sex Offenders from FacebookCriminal Defense Blog of Broden & Mickelsen, LLP @BrodenLaw in Dallas

4. Why Texas lawyers aren’t subject to non-competes.Rob Radcliff @robradcliff of Weinstein Radcliff LLP in Dallas

3. The legal-writing teacher who makes mistakesWayne 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

2. To every garnishment there is a season –David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

1. Beware The Tweet – or You May Face an Unintended TweetstormRoxanne Edwards of Klemchuk LLP @K_LLP in Dallas

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