Originally published by Staff Report.
The Committee on Disciplinary Rules and Referenda (CDRR) will continue to accept public comments concerning the proposed lawyer advertising rules through March 1, 2019. You can submit comments here.
Interested in law firm trade names? Take the CDRR’s poll.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Alex Hernandez Trial Law.
Uber, Lyft, and other up and coming companies are considered rideshare companies. They are essentially taxi cabs that you can hail and pay for on your phone. While they have transformed the way people get around, especially in cities, they have also brought up some questions about insurance coverage and what happens if you are injured in an Uber or Lyft.
Uber and Lyft want to hire good drivers in order to keep up their image. However, some drivers slip through the cracks. While both companies require background checks for their drivers, the requirements for background checks vary from state to state. For example, Taxi drivers are usually required to be fingerprinted for their background checks and records from both the state and federal level will be checked. Finger-print based background checks are more thorough and span the entire adult life of the applicant and can even check for name changes. If there are any red flags on their background checks they might not be considered for a position.
Uber and Lyft, on the other hand, use less stringent online background checks, and in some states the background check records only go back seven years. Additionally, only some court records can be found through these online background checks.
While background checks can check for a driver’s criminal past and driving history, it can’t guarantee that your driver is a safe driver or prevent unexpected events from happening.
So, what happens if you order an Uber or Lyft, get in for a ride, and are injured in an accident before you get to your destination? Who is liable? Who is responsible?
First, it is important to understand that the world of insurance liability for Uber and Lyft rides is rapidly changing. It is not as regulated as the taxicab industry and therefore there are a lot of grey areas when it comes to policy coverage and legal issues. If you are injured in an Uber or Lyft accident, it is a good idea to get in contact with a car accident lawyer as there is now a major corporation involved, not just a driver and an insurance company.
If another vehicle, not the Uber or Lyft driver is at-fault, the case will likely be handled like any other personal injury case. You will work directly with the at-fault driver’s insurance company.
If, on the other hand, the Uber or Lyft driver is found to be at-fault, things get a little more complicated.
First, the rideshare driver should have their own personal insurance policy. Unfortunately, many insurance policies have commercial or business-use exception clauses that will void their personal coverage if they are using their cars for business-related purposes.
It comes as no surprise that both Uber and Lyft have big insurance liability policies. Both of them carry up to $1 million in coverage for personal injuries and property damage. However, this typically will not kick in until after the driver’s personal insurance has been exhausted. After that, it is in the best interest of these major corporations and their insurance companies to settle for less than you deserve.
If you have been injured in an accident while you were a passenger in a ridesharing vehicle such as Uber or Lyft, get in touch with a car accident lawyer at Alex R. Hernandez Jr., PLLC. We will review the details of your case and work to get you the compensation you deserve. We’re not afraid to go after the ‘big guys’ and their insurance company if you are eligible for compensation for medical expenses, lost wages, pain and suffering, and more.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
We’ve all heard the tried and true sayings regarding a home. It’s the most important purchase you will ever make, some will say. It’s an investment in your future, others will opine. Whatever it is that you think about your home the fact is that it is a major investment and it is important. There’s another element that you will need to take into consideration and that is the emotional elements that surround the purchase of and enjoyment of a personal residence.
Your home is where the memories, good and bad, that your family created live and remain. The decision of what will happen to your home as a result of a divorce is not one that can be arrived at without a great deal of contemplation and likely negotiation with your spouse. If you have children then this decision becomes even more important and likely more emotionally driven. That is usually a bad combination for a divorce that requires you to have nerves of steel while maintaining a certain degree of objectivity in your negotiations.
Ultimately your case has its own unique set of facts and circumstances that would be taken into consideration by a judge if you and your spouse cannot agree on what is to happen with your home. As I mentioned a moment ago a lot will depend on whether or not you and your spouse have children. In the event that you do the next step in the equation will be the judge making a determination to see if one of you or your spouse can actually afford the monthly mortgage payment on a single income.
The most important issue regarding your children is likely the most important issue regarding who gets the family home in the event that either you or your spouse can pay themortgage. Whichever parent is awarded the right by the judge to determine the primary residence of your children, that will obviously give that parent a huge leg up in being able to remain in the home. The reason for this is that the judge will want to ensure that your children have some stability and consistency in their lives in the midst of all the change and upheaval as a result of your divorce.
In the event that neither you nor your spouse can afford the mortgage payments it is almost assured that the judge will order the house to be sold and the profits split in some manner between you and your spouse. This equity will likely be community property and if so then the factors that we discussed yesterday in our blog post will be applied here as well to determine what share you receive as a result of the sale of the home and what share your spouse receives.
An alternative to the set up that I laid out for you all is the following: the judge awards the parent with the right to determine the primary residence of your children the home until your children graduate from high school or any other date that he or she believes is fair. After that date the house will be put on the market for sale and the proceeds from the sale split according to a breakdown set forth by the judge. This allows for some stability for your children, while ensuring that both parents share in the benefit of the sale of the home.
Whether you are in a position to expect to receive spousal maintenance in your divorce, or you are worried about the possibility of having to pay spousal maintenance in the divorce you should pay attention to this subject.
Spousal maintenance is money that is paid from one spouse to the other for daily living expenses when the receiving spouse cannot meet the minimal, basic standards for living on their own. This could be because he or she is disabled, has a lack of education or simply has not worked in many years and needs to transition back into the workforce.
I’ve used this example before when discussing how a judge can split up community property in a divorce but I believe it bears repeating in this context as well. Suppose that you are a physician who has been in practice for a few years and earns $250,000 a year. Your spouse has been a homemaker since your marriage began and has only a high school education. On top of these factors she worked part time as a waitress while you were in medical school in order to pay for your schooling and to support the household.
Your paying spousal maintenance to your ex-spouse is not only justified, it will likely be determined, because she will now have to find a full time job to support herself after being out of work for many years, but also because she helped you in your career path by paying for your school with her income. You can look at the spousal maintenance payments as sort of like a payment of “Debt” that you are crediting back to her.
Not all that frequently, from my experience. First of all, judges do not like to award spousal maintenance unless it is necessary in terms of fairness and survival to do so. A second reason why spousal maintenance is not as common nowadays is because both you and your spouse likely work and earn similar wages. More women are graduating from college from men and this has been the case for sometime. So, if you’re a man your wife likely has just as much of an education to her credit as you do- if not more.
We’ve reached a point where property and money issues have been gone over with a fine tooth comb, or at least a comb that is close to being finely toothed. Now we can jump into subject matter that is truly important for many of you going through a divorce, namely child custody determinations.
The term “Child custody” does not actually appear at all in the Texas family code. Much of what we consider to make up child custody- time with your child, where your child lives primarily, rights and duties to your child- are broken down into conservatorship, possession, access and visitation orders. Custody is a term that lawyers and clients alike utilize with frequency so I will do so in this section. Just know that your divorce decree probably won’t have the word “custody” show up anywhere.
Child custody is comprised up of many rights and duties to your child. Will you or your spouse gain the right to determine the primary residence of your child? How will you and your ex-spouse make decisions regarding educational, medical and psychiatric matters? These are the types of important subjects that will fall under the banner of child custody?
This is a concern that fathers raise with me a great deal. If you are a dad you can breathe a little easier knowing that there is not specific advantage within the laws on divorce that provides your wife with a leg up when it comes to your kids. In fact, judges are not supposed to presume or assume that your wife will be a better parent in terms of future prospects of raising your child. If your case makes it to a trial then you both will need to present evidence that will show the judge why you should be the parent who gets to have the kids live with you primarily. It is largely a merit based decision, though fathers often put themselves at a disadvantage in this regard. We will start tomorrow’s blog post by discussing this in greater detail.
Our office has licensed family law attorneys ready and able to meet with you six days a week to discuss your family law matter. Please contact us today so that we can address any questions you have in a comfortable and pressure free environment.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Eric Quitugua.
More than 25 high school teams will travel to the George Allen Courthouse in Dallas March 1-2 for the 40th annual Texas High School Mock Trial Competition, organized by the Dallas Bar Association. Students will argue a hypothetical criminal court case, culminating in a final championship round on Saturday.
The case was written by local attorneys and involves students representing nearly 200 Texas school districts. Throughout the tournament, more than 1,000 Dallas-area attorneys and judges volunteer as clinic instructors, as well as attorney advisers and competition judges.
The mock trial, which is designed to teach students how the justice system works and how the law is applied in everyday life, involves critical thinking exercises and quick analysis through preparation and presentation.
In the competition, students portray plaintiffs, defense attorneys, and witnesses. Dallas judges and attorneys play the role of jurors and choose the teams that are best prepared and who demonstrate exceptional presentation skills. The winner of the competition moves on to the 2019 National Mock Trial Competition in Athens, Georgia, May 16-19.
Competition times and location:
The Dallas area teams:
For more information, go to dallasbar.org and texashighschoolmocktrial.com.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Jeff.
Looks like an email-access phishing attack. A good reminder not to keep PHI in emails, either in the emails themselves or in attachments. Or encrypt everything at rest.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by David Coale.
Among other important business-litigation issues recently addressed by the Texas Supreme Court in Bombadier Aerospace v. SPEP Aircraft Holdings, footnote 17 of the opinion provides a lengthy summary of potential Casteel issues in a jury question about damages – providing a not-so-subtle hint to be aware of potential appeal points in that highly technical area of Texas practice, as they are not reviewable absent objection. No. 17-0578 (Tex. Nov. 1, 2018) (noting, after describing the applicable principles: “Here, no party raises the issue of charge error, and no party objected to the jury charge on that basis; in fact, the parties explicitly agreed to the form of question four with a single blank for actual damages. Therefore, although we note that question four arguably intermingles compensatory damages for diminution in value with damages for loss of warranty value, damages that Bombardier argues are unsupported, we express no opinion on the validity of question four under our broad-form damages question precedent.” (citations omitted)).
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Kyle Bailey.
An ongoing legal battle between smartphone manufacturer HTC Corporation and networking and telecommunications company Ericsson offers a case study in the waiver of arbitration rights in the patent context. In subsequent motions to compel arbitration, the Eastern District of Texas first held that Ericsson did not waive its right to arbitrate certain claims filed against the company but later held HTC waived its right to arbitrate Ericsson’s counterclaims.
The dispute between the two companies arose from three agreements to license standard-essential patents owned by Ericsson that relate to wireless communication. All three of the licensing agreements contained arbitration provisions. HTC first sued Ericsson in April 2017 in the Western District of Washington, alleging that the terms of the licensing agreements were not fair, reasonable, and non-discriminatory (FRAND). HTC also filed a past royalty claim, arguing it was due the royalties it paid to Ericsson in violation of FRAND principles. The lawsuit was subsequently transferred to the Eastern District of Texas for lack of personal jurisdiction.
In HTC Corporation v. Telefonaktiebolaget LM Ericsson, No. 6:18-CV-00243-JRG (E.D. Tex., November 7, 2018), Ericsson moved to compel arbitration of HTC’s past royalty and antitrust claims and HTC contended that Ericsson waived its right to arbitrate the claims. In responding to Ericsson’s motion to compel arbitration, the court first outlined the strict requirements for finding that arbitration rights are waived:
“[A] party waives its right to arbitrate if it (1) substantially invokes the judicial process and (2) thereby causes detriment or prejudice to the other party.” Janvey v. Alguire, 847 F.3d 231, 243 (5th Cir. 2017) (internal citation omitted). This analysis is highly fact-dependent, in which any doubts should result in a finding of no waiver. Al-Rushaid v. Nat’l Oilwell Varco, Inc., 757 F.3d 416, 421–22 (5th Cir. 2014) (“[I]n light of the federal policy favoring arbitration, ‘[t]here is a strong presumption against finding a waiver of arbitration.’”) (internal citation omitted). As such, the party asserting waiver “bears a heavy burden of proof.” Petroleum Pipe Americas Corp. v. Jindal Saw, Ltd., 575 F.3d 476, 480 (5th Cir. 2009) (internal citation omitted).
The court then addressed whether Ericsson had substantially invoked the judicial process through its various interactions with the district court litigation prior to seeking arbitration:
[O]nce Ericsson realized that HTC was pursuing claims for past refunds in both arbitration and in court, it immediately filed the instant motion. Ericsson’s delay in seeking arbitration, therefore, was entirely reasonable given HTC’s conduct. HTC contends that it never told Ericsson that it would drop the past refund claims in court. However, the Court was not presented with any communications regarding the same. Even if HTC’s general statement that it planned to file for arbitration could be interpreted as having no effect on its intent to litigate its past refund claims here, this Court must resolve all doubts in favor of Ericsson in light of the strong presumption against waiver. Accordingly, the Court is not persuaded that Ericsson “substantially invoked the judicial process” with an intent to litigate, rather than arbitrate, HTC’s past refund claims.
Further, the Eastern District of Texas reasoned that HTC did not show it had been materially prejudiced:
Prejudice refers to the harm incurred to a party “when the party’s opponent forces it to litigate an issue and later seeks to arbitrate the same issue.” Petroleum Pipe, 575 F.3d at 480 (emphasis added). Such is not the case here. Once HTC added its past refund claims, Ericsson immediately moved for arbitration. It would be unfair to infer prejudice based on discovery conducted during the pendency of Ericsson’s motion to dismiss.
Thus, the district court concluded that Ericsson did not waive its right to arbitrate HTC’s back royalty and antitrust claims. Ultimately, the court granted Ericsson’s motion to compel arbitration of those claims.
In a subsequent order, No. 6:18-CV-00243-JRG (E.D. Tex., January 22, 2019), the Eastern District of Texas addressed HTC’s motion to compel arbitration on two of Ericsson’s counterclaims. Applying the same standards for determining when a party waives its right to arbitration, the district court held that HTC had committed waiver by substantially invoking the judicial process. The court reasoned:
There is no reasonable doubt that HTC has invoked the judicial process as to Ericsson’s counterclaims. At least as early as its June 2018 FRAND contentions, Ericsson clearly disclosed to HTC its claims that HTC acted in bad faith by suing Ericsson before the expiration of the 2014 GPLA’s standstill provision, thereby tying Ericsson’s hands until the term of that standstill expired. (Dkt. No. 414–2 ¶ 18.) The Fifth Circuit has made it clear that “[a] party waives arbitration by seeking a decision on the merits before attempting to arbitrate.” Forby v. One Techs., L.P., 909 F.3d 780, 784 (5th Cir. 2018); see also Republic, 383 F.3d at 345 (5th Cir. 2004) (waiver found where party “answered … counterclaims; conducted full-fledged discovery, including four depositions; amended its complaint; … filed the required pretrial materials with the district” as well as “two motions to compel discovery, a motion for summary judgment, and a motion in limine” all before its motion to compel arbitration). Here, the parties have completed fact and expert discovery on all claims that have not already been sent to arbitration, including discovery on Ericsson’s counterclaims. (Dkt. No. 226.) HTC has also affirmatively moved for dismissal of and summary judgment on Ericsson’s counterclaims. (Dkt. Nos. 105, 238.) At no point since the filing of its complaint through the course of discovery did HTC demand arbitration. Instead, HTC waited to move for arbitration until after the completion of all pretrial proceedings and only weeks before trial.
These two district court orders provide illustrative guidance regarding when a court will determine that a party’s right to arbitration has been waived. Although no bright-line rules emerge, both the delay and the amount of resources spent prior to filing a demand for arbitration are important factors to consider.
Photo by: Kote Puerto on Unsplash
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
