Harvest Celebration raises $735,200 in pro bono legal services

Originally published by Eric Quitugua.

Houston area pro bono legal services received a big boost thanks to money raised at the 68th Harvest Celebration at the River Oaks Country Club.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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Things Employers Can Ask in a Job Interview

Originally published by Thomas J. Crane.

There are many things an interviewer can ask a job applicant. But, you do need to be careful about some questions. Here are some things to consider.

1. How old are you? Be very careful about asking this question. There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. Why would this question be helpful? Unless this is a ruse to discover whether a female applicant might quit when she wants to have a baby. This question serves little purpose.

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

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

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

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

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

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

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

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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Divorce Among Millennials

Originally published by Family and Criminal Law Blog.

How are divorce patterns changing with the Millennial generation?

Divorce rates and the circumstances surrounding divorce tend to shift with each new generation.  As more millennials are getting married, and divorced, divorce lawyers in Texas and elsewhere across the nation are noticing some distinct trends among today’s generation when it comes to divorce.  Millennial divorces may not involve as much property or debt to divide, but they nonetheless require the assistance of a skilled divorce lawyer.

Millennials Are Delaying Marriage

Marriage patterns have a direct influence on shifting divorce trends.  Millennials are getting married and starting families later than previous generations.  Whether it be due to the fluctuating economy, staggering student loans, or simply changing cultural norms, more Millennials are putting off marriage in favor of focusing on their careers.  This has led to fewer divorces overall than in previous eras.

Millennials More Likely To Have Prenups

For many Millennials, prenups are part of the normal discussion that takes place before marriage.  Many Millennials came from homes with divorced parents.  As such, Millennials tend to enter into marriages with a realistic outlook as to the possibility of divorce.  Millennials often protect themselves against the dangers of losing their property in a divorce through the use of prenups.

Millennials Favor Cohabitation

While many Millennials are waiting to tie the knot, this has not stopped them from living with a significant other.  Cohabitation has become quite common across the country.  Texas is one of the few states that recognizes common law marriage, though being considered married under common law will require more than just living together.

To protect yourself if you are cohabitating with a significant other, you could consider entering into a cohabitation agreement.  In the agreement, you can specify that you do not intend to have a common law marriage and you can set out what assets you share, along with a plan for splitting said assets if the relationship dissolves.

Divorce trends will likely continue to shift in the coming years.  Millennials should consult with a family law attorney for assistance with a prenuptial agreement and other protections prior to marriage.  Millennials considering divorce can retain the guidance of an experienced divorce lawyer to help them come through the divorce unscathed.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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Murder vs. Manslaughter: How Are They Different?

Originally published by Law Office of Brett A Podolsky.

Many people ask, “How are murder and manslaughter different?” Both the crimes of murder and manslaughter involve a person’s death at the hands of another. The important difference between murder and manslaughter lies in the intent, or mens rea, of the offender:

• The crime of murder is charged when an individual takes another person’s life with malicious intent.
• The crime of manslaughter is charged when an individual kills another person without malice, or if a person is killed because of another person’s reckless actions.

If a deranged person takes years to plan a brutal homicide, this is murder. When an individual gets behind the wheel, talks on his or her cell phone, fails to stop at a stop sign, and runs over a pedestrian, this is manslaughter.

One of the above events is a heinous crime. The other is a horrific accident. In both cases, someone is dead. The distinctions between manslaughter and murder are highly relevant to the defendant and the courts. The victim and his or her family must still deal with the significant loss of life of a loved one.

 

Definition of Murder and Manslaughter

Murder is defined by Texas law as a party’s use of violent means to deprive another person of his or her life with malicious intent.

Manslaughter is similarly defined in the United States. It involves one party’s taking another human being’s life without malice:

• The mind of the killer and his or her intentions are the most important legal distinction between the crimes of murder and manslaughter.
• Murder involves a “successful attempt” to kill another person.
• Manslaughter occurs when an unintentional action of a person results in the horrible outcome of the death of another.

Have you been accused of murder or manslaughter?
Contact a defense attorney at the Law Office of Brett A. Podolsky >>

Degrees of Murder in Texas

The state of Texas doesn’t acknowledge first-degree murder, and that can be a bit confusing. First-degree murder is called capital murder in Texas:

• Capital murder is a murder in which the offender receives the sentence of capital punishment, or death.
• To convict the accused of capital murder, the prosecutor must prove beyond a reasonable doubt that: 1) the accused “intentionally” and “knowingly” took another individual’s life, 2) the accused “intentionally” caused serious bodily injuries and committed act(s) that endangered human life, 3) the defendant’s actions caused the death of another human being, or 4) the defendant committed/attempted to commit a felony crime (other than the crime of manslaughter). In the performance of the felony, the defendant endangered human life and caused the death of another person.

Overview of Texas Capital Murder Laws

Texas Penal Code, Title 5 Chapter 19 describes Texas capital murder laws. To be charged with capital murder in Texas, one of the following conditions or circumstances must apply:

1. The defendant killed a fireman or peace officer acting lawfully at the time of the crime.
2. The defendant intended to commit murder in the commission of another crime, e.g. kidnapping, terrorist threat, burglary, retaliation, robbery, arson, or aggravated sexual assault.
3. The defendant was paid to commit a murder or paid another party to commit a murder.
4. The defendant committed the murder in the act of escaping from a Texas penal institution.
5. The defendant killed another person while in jail or prison.
6. The defendant murdered more than one individual.
7. The defendant murdered a young child less than six years old.
8. The defendant murdered someone to retaliate against or on account of the judiciary.

Possible defenses depend on the facts of the case. Available defenses may include 1) lack of intent, 2) self-defense, 3) lack of knowledge, 4) intoxication, or 5) insanity.

Penalties for capital murder in Texas

If convicted of capital murder, the offender may receive a death penalty sentence. The sentence for capital felony crimes in Texas is either life in prison (without the possibility of parole) or death. If a defendant is deemed incapacitated (i.e., he or she has a mental disability or is declared insane by psychiatric experts), he or she may be spared the death penalty.

Second-Degree Murder in Texas

Second-degree murder in Texas is called murder, a serious criminal offense with severe penalties. Second-degree murder involves the death of a person resulting from the defendant’s alleged wrongful actions. This includes death(s) that happen during the defendant’s commission of another crime or because of the defendant’s alleged recklessness.

Under the Texas Penal Code, Title 5 Chapter 19, the Texas Murder Statute, to convict the defendant of murder, the prosecution must prove beyond a reasonable doubt that:

• The defendant “intentionally” and/or “knowingly” caused the death of another human being
• The defendant intended to cause serious bodily injuries to another person and acted to endanger human life.
• In the commission of another felony crime, other than the crime of manslaughter, the defendant’s actions endangered human life and caused the death of another person.

Common defenses for murder may include 1) the defendant’s lack of intent, 2) heat of passion defense, 3) intoxication, 4) lack of knowledge, 5) self-defense, or 6) insanity. If the prosecution fails to prove these criteria, the defendant may be convicted of a less serious homicide charge.

Penalties for murder in Texas

The offender faces a first-degree felony if convicted of murder in Texas. He or she faces a minimum of five years to a maximum 99 years in prison. If the offender’s criminal defense attorney successfully argues the defense of heat of passion, he or she faces a second-degree felony charge punishable by two – 20 years behind bars and/or a maximum $10,000 fine.

Texas Manslaughter Laws

The laws of Texas define manslaughter as the reckless cause of the death of a human being. When a prosecutor charges the defendant with manslaughter, he or she must have sufficient evidence to prove that the accused committed the crime of manslaughter beyond a reasonable doubt.

The prosecutor doesn’t have to show that the defendant used premeditation before committing the crime. His or her single requirement is to prove that the accused’s actions were reckless or careless.

Types of manslaughter

Texas recognizes the following types of manslaughter:

1. Vehicular manslaughter: this crime involves the offender’s killing of another person while he or she is operating a motor vehicle.
2. Intoxication manslaughter: this crime involves the offender’s killing of another person while under the influence of drugs or alcohol.
3. Criminally negligent homicide: this crime differs from vehicular manslaughter or intoxication manslaughter because the mens rea requires only criminal negligence, not recklessness.

Penalties for manslaughter in Texas

If convicted of manslaughter in Texas, the offender faces two – 20 years in prison and/or a maximum $10,000 fine.

Manslaughter defenses

A defendant charged with manslaughter may present an affirmative defense. In other words, the defendant admits to killing another person but has a legally acceptable reason, such as self-defense.

The criminal defense attorney may argue that the defendant was temporarily insane at the time the crime was committed. To successfully argue an insanity defense, the criminal defense attorney must show that the defendant couldn’t distinguish right and wrong at the time the crime was committed.

Murder and Manslaughter Examples

Facts of Case 1: James Boyle is walking on a congested street. John Smith bumps into James but doesn’t say “Sorry.” James becomes angry at the stranger’s rudeness. He pulls out a gun and shoots John. John Smith dies as a result of close-range gunshot wounds.

Assessment of Case 1: James could be convicted of murder in Texas because he intended to kill John. However, the jury or judge probably won’t determine that the murder was premeditated because James didn’t know John and didn’t make advance plans to kill him. In contrast, James probably wasn’t engaged in a heat of passion killing. While James may have been provoked in a minor way, the circumstances facing him were unlikely to cause a reasonable individual to lose control.

Facts of Case 2: Arnold and Irving are in a bookstore. They stand next to each other just a few feet away from a stair flight landing. They’re vigorously arguing over the esoteric meaning of Nietzsche’s philosophy. Both become animated. Arnold eventually points his finger at Irving. The action pushes Irving down the stairs. He dies from the sustained injuries.

Assessment of Case 2: Arnold would probably be found guilty of manslaughter. (Texas doesn’t distinguish between voluntary and involuntary manslaughter.) He may be considered criminally negligent because he shoved Irving, standing near the flight of stairs. However, the circumstances of the case don’t appear to show that Arnold’s behavior was indifferent to human life (this would elevate the crime to murder).

Facts of Case 3: George arrives home to see that his wife, Jennifer, was sexually abused and beaten. He takes Jennifer to the hospital right away. In the car, Jennifer tells George that the attacker was Bradford, a local tavern owner that she and George sometimes frequent. After George brings Jennifer home from the hospital several hours later, he heads to a local gun shop and buys a shotgun. George then gets in the car, drives to Bradford’s tavern, and shoots Bradford. Bradford dies of the close-range gunshot wounds.

Assessment of Case 3: George could be convicted of murder in Texas. He reflected and planned (premeditated) to murder Bradford. He deliberated about how to murder Bradford. Voluntary manslaughter, a less likely alternative, might be argued. The jury or jury might believe that George’s heat of passion was cooled when he arrived at Bradford’s tavern. He was still angry when he shot Bradford.

Note that each of these defendants needs to hire an experienced criminal defense attorney as soon as possible. Murder and manslaughter are serious crimes in Texas. With aggressive criminal defense, it may be possible for the jury to find any of the defendants not guilty.

Summary of Murder vs. Manslaughter

The charge the defendant faces for a crime in which another person died depends on the unique case facts, including:

• Intent. The major distinguishing factor between manslaughter and murder is the actor’s intent. In legal terms, the intent is called mens rea, which refers to the actor’s intention to commit an illegal and/or wrongful act, or his or her knowledge of committing an illegal and/or wrongful act in the circumstances of the killing.

Mens rea may apply to both murder and manslaughter, but there’s a distinct variation in the actor’s culpability based on his or her state of mind. When the defendant’s actions result in death, his or her state of mind is considered to determine potential criminal liability. That’s because a person who didn’t mean to kill another party shouldn’t be held similarly accountable to the person who plans and intends to kill someone else. This is the reason for the clear distinction between murder and manslaughter criminal laws in Texas.

• Manslaughter. Manslaughter is differentiated from the crime of murder because of the actor’s lower levels of criminal intent and culpability. While other states in the U.S. distinguish involuntary and voluntary manslaughter, Texas statutes view manslaughter as a crime involving one person’s recklessness causing another person’s death.

Separate manslaughter charges exist, e.g. vehicular and intoxication manslaughter. These crimes are considered manslaughter because the drunk driver doesn’t knowingly or intentionally decide to kill another person when he or she causes a fatal accident. The law says that the driver should’ve realized that drunk driving may result in fatal consequences. Depending on the specific circumstances of the case, a manslaughter conviction in Texas can result in two – 20 years in prison and significant fines.

• Murder. Unlike the crime of manslaughter, a murder occurs when the defendant knowingly and intentionally causes someone else’s death. If the defendant intended to kill, cause serious injuries or harm, or commits a felony crime that results in the death of another person, he or she may be charged with murder in Texas.

The laws of Texas distinguish capital murder from murder: 1) Capital murder usually involving killing a law enforcement officer, multiple persons, arranging or executing murder for hire, or other factors. If convicted of murder, the offender faces five to 99 years behind bars. Capital murder is punishable by life in prison without the opportunity of parole or death.

The difference between murder and manslaughter also involves the specific facts of the case as well as how the prosecutor constructs its narrative about the defendant’s intentions, premeditation, and so on.

A charge of murder or manslaughter is a complex, serious charge. An experienced criminal defense attorney can defend against the charge to mitigate penalties or prove innocence.

Contact a Board Certified Criminal Law Specialist in Houston, TX

If you or someone you love has been charged with murder or manslaughter, you need to hire the most experienced criminal defense attorney available. Brett A. Podolsky is certified by the Texas Board of Legal Specialization as a Criminal Law specialist. A small number of criminal defense lawyers in Texas hold this distinction.

A defendant facing an allegation of murder or manslaughter needs a proven legal strategist in his or her corner when freedom and future are at stake. Contact the Law Office of Brett A. Podolsky in Houston at 713-227-0087 now for an initial case evaluation.

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Legal Resources and Services for Veterans

Originally published by Heather Holmes.

Veterans Law Resource Month at the Harris County Law Library is coming to an end. All month long, we’ve featured legal research materials throughout the Law Library, including the following:

• Federal forms for veterans
• Code of Federal Regulations (Title 38: Veterans Affairs)
• 2017 Veterans Benefits Handbook from the Department of Veterans Affairs

We’ve also spotlighted a few of our online resources including the Veterans Legal Aid Portal from TexasLawHelp.org and military law titles available through HeinOnline.

All of these research tools will continue to be available in our collection and online. In addition, veterans can find a variety of services from organizations such as Lone Star Legal Aid, the Texas Veterans Commission, the Texas Legal Services Center, the State Bar of Texas, the Houston Bar Association, and the Texas Veterans Legal Assistance Project.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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Scams continue with fake law firm websites

Originally published by Eric Quitugua.

Texas attorneys continue to be targeted by online scammers. Throughout 2017, there were several attempts to coerce people into sending money while claiming to work for real law firms. In a recent rash of scams, websites have been designed to mirror firms’ very real pages. But there are giveaways—and resources for verifying the not-so obvious scams.

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What is Cite and Release? Cite and Release in Texas

Methods of Service Including Facebook in a Divorce

Originally published by Law Office of Bryan Fagan.

Recently, in one of the attorney discussion groups I am a member of on Facebook, it was mentioned that some lawyers have been successful in getting judges to sign off on allowing them to serve a party via Facebook.

I had heard of other states allowing service via Facebook before, but this was the first time I heard it mentioned that a Texas judge had allowed this. In today’s discussion, we will look at different types of service available in a divorce, including Facebook.

Notice and an Opportunity to be Heard

One of the requirements for due process under the United States Constitution is that the parties to a case against them have the right be notified and an opportunity to be heard.

The notice does not have to be actual notice, but under the law, “due process: notice must be reasonably calculated to succeed.”

Personal Service under Rule 106(a)

For this reason, courts usually prefer that parties try and provide actual notice by first trying to personally serve a party to a divorce.

1. Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by:

1. delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or

2. mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.

Rule 106(b) of the Texas Rule of Civil Procedure (TRCP)– Method of Service

If that fails, then a court will then consider a motion for substitute service under Rule 106(b).

This section provided that all motions for substituted service under Rule 106 must be accompanied by an affidavit that includes the following information:

1. all efforts taken to verify that defendant actually lives or works at the subject address;

1. each attempt at service, with date(s) and time(s);
2. identity of persons who were present at the subject address and what was
3. said; and
4. a printout of some public record or PublicData.com or similar online database confirming that the person to be served actually resides at the address at which service is being attempted.

This can also include a statement identifying license plates of cars in the driveway and attaching a printout of license plates registered to the person to be served. Statements by neighbors or by people residing in the abode must include the full name of the person and a description. The idea is to give the court some assurance that the person resides at that address.

Any Rule 106 motion should be accompanied by the attached proposed form order. Failure to do so may delay the court’s granting of an otherwise proper motion.

Rule 109 and Rule 109(a) of the Texas Rule of Civil Procedure

The current Texas Rules of Civil Procedure have two rules governing substituted service of citation.

• In Texas Rule of Civil Procedure 109, the plaintiff or petitioner can serve the defendant or respondent by publication as a last resort. You typically see this when a petitioner cannot find the respondent.
• Texas Rule of Civil Procedure 109a allows the court to prescribe a method other than publication if a different method would be as likely as publication to give the respondent actual notice.

Rule 109 – Citation by Publication

When a party to a suit, his agent, or attorney, shall make oath that the residence of any party defendant is unknown to affiant, and to such party when the affidavit is made by his agent or attorney, or that such defendant is a transient person, and that after due diligence such party and the affiant have been unable to locate the whereabouts of such defendant, or that such defendant is absent from or is a nonresident of the State, and that the party applying for the citation has attempted to obtain personal service of nonresident notice as provided for in Rule 108, but has been unable to do so, the clerk shall issue citation for such defendant for service by publication.

In such cases, it shall be the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in ascertaining the residence or whereabouts of the defendant or to obtain service of nonresident notice, as the case may be, before granting any judgment on such service.

Rule 109a. – Other Substituted Service

Whenever citation by publication is authorized, the court may, on motion, prescribe a different method of substituted service, if the court finds, and so recites in its order, that the method so prescribed would be as likely as publication to give defendant actual notice.

When such method of substituted service is authorized, the return of the officer executing the citation shall state particularly the manner in which service is accomplished, and shall attach any return receipt, returned mail, or other evidence showing the result of such service.

Failure of defendant to respond to such citation shall not render the service invalid. When such substituted service has been obtained and the defendant has not appeared, the provisions of Rules 244 and 329 shall apply as if citation had been served by publication.

Service by Facebook?

As mentioned above, TRCP 109a allows a court to order a method other than publication if the different method would be as likely as publication to give the respondent actual notice.

Most courts and lawyers would agree that service by publication is a very poor substitute for actual service.

The Texas Supreme Court said as much in In re E.R., 385 S.W.3d 552, 561 (Tex. 2012). The court cautioned that “publication should be a last resort, not an expedient replacement for personal service.”

Arguments in Favor of Service by Facebook or Other Social Media

Some courts have concluded that service by Facebook or other social media provides a better chance of actual notice than by placing an ad in the classified sections of a newspaper.

This was the situation in a New York case In the Matter of a Support Proceeding Noel B, Petitioner, – against– Anna Maria A, 2014 N.Y. Misc. LEXIS 4708 (2014).

The court found that it was “…not aware of any published decision wherein a New York state court has authorized service of process by means of social media… The method detailed here by the court provides the best chance of the Respondent getting actual notice of these proceedings.”

Concerns for Serving via Facebook or Other Social Media

Below is a case that discusses service via Facebook and some of the concerns that have been raised regarding serving people via Facebook:

Baidoo v Blood-Dzraku 2015 NY Slip Op 25096 [48 Misc 3d 309] (2015)

In this case, a wife was having trouble serving her husband in a divorce. As result, the wife sought to serve him via Facebook.

When deciding whether to grant her request, the judge considered whether the method by which the plaintiff seeks to serve the defendant comports with the fundamentals of due process by being reasonably calculated to provide the defendant with notice of the divorce.

Or more simply posed: If the summons for divorce is sent to what the plaintiff represents to be the defendant’s Facebook account, is there a good chance he will receive it? To answer this question, the judge asked the following questions:

Authentication – Does the Account Belong to the Person Being Served?

The first is that the Facebook account the plaintiff believes is the defendant’s might not actually belong to him.

As is well known, the Facebook profile somebody views online may very well belong to someone other than whom the profile purports it to be. This has led courts to observe that “anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the Facebook page belongs to the defendant to be served.”

Will the Person Being Served Get the Notice?

The second concern is that if the defendant is not diligent in logging on to his Facebook account, he runs the risk of not seeing the summons until the time to respond has passed.

Here too, the plaintiff’s affidavit successfully addressed the issue. Her exchanges with the defendant via Facebook showed that he regularly logged on to his account.

Should Facebook only be used to Supplement Other Service?

The third concern is whether a backup means of service is required under the circumstances. Although, as was discussed, other court decisions have endorsed using Facebook as a means of service, they have done so only where Facebook was but one of the methods employed, not the only method.

Why use Facebook as Either the Sole or Supplemental Means of Service?

Why use Facebook as either the sole or the supplemental means of service in the first place when there is a statutorily prescribed method of service readily available?

After all, publication is not only expressly sanctioned by the CPLR, but it is a means of service of process that has been used in New York in one form or another since colonial times. Even today, it is probably the method of service most often permitted in divorce actions when the defendant cannot be served by other means.

The court then went on to say that: “The problem, however, with publication service is that it is almost guaranteed not to provide a defendant with notice of the action for divorce, or any other lawsuit for that matter.”

“In divorce cases brought in New York County, plaintiffs are often granted permission to publish the summons in such newspapers as the New York Law Journal or the Irish Echo. If that were to be done here, the chances of defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none.”

Facebook Service in El Paso

From the Texas Family Law Group on Facebook I am a part of, I learned that at least one Judge in El Paso allows and encourages substituted service via Facebook. They also generously provided me some sample forms that they used including:

1. Motion for Other Substituted Service
2. Order on Motion for Other Substituted Service
3. Affidavit in Support of Motion for Other Substituted Service

Example Motion

This Motion for Other Substituted Service is brought by _________________, Petitioner,

who shows in support:

1. Attached is the Affidavit of _________________ (Affidavit in Support of Motion for Other Substituted Service), stating facts showing that service of citation by publication (via Facebook) on ________________________ is authorized.

2. Reasonably effective notice, via a substituted method of service as likely as publication via Facebook is likely to give ____________________ actual notice.

3. _____________ Facebook url is:

________________ prays that the Court grant this Motion for Other Substituted Service.

Respectfully submitted,

Ebook

If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”

Other Articles you may be interested in:

1. What does a Default Judgment Mean in a Texas Divorce?
2. Do I have to bring Evidence to a Default Judgment Hearing in Texas?
3. How to Divorce Your Spouse in Texas When Their Whereabouts are Unknown
4. Can I get a divorce even if my spouse lives in another country?
5. Getting divorced in Texas when you cannot locate your spouse
6. I have been served with Divorce Papers – What do I do now in Texas?
7. What Happens if my Ex-Spouse Refuses to Sign the Final Decree of Divorce Revisited
8. What if My Ex Will Not Sign the Final Decree in My Texas Divorce?
9. Waivers – To sign or not to sign? The answer is don’t do it!
10. How to Draft and File an Answer to a Texas Divorce – Free Downloadable Forms

Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding Divorce, it’s important to speak with one of our Houston, TX Child Divorce Lawyers right away to protect your rights.

Our Divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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Signs That Exams Are Upon Us

Originally published by lawschool academicsupport.

There are a few things that happen almost every semester to indicate that the semester is wrapping up. Of course, I am not going to list each and every event here but I will highlight five things that seem to…

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Civil Remedy Notices – What Are They and What Do They Require?

Originally published by Marie Laur.

You filed a claim with your insurance company after suffering a loss and it is refusing to pay what is owed under your insurance policy – what now? One of your options is to file a Civil Remedy Notice of Insurer Violation, or CRN, with the Department of Financial Services. The CRN serves as notice…… Continue Reading

.

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4 Legalities to Understand Before Taking out a Loan

Originally published by Bob Kraft.

There are plenty of reasons to take out a loan. It could range from being short on money due to unforeseen circumstances to needing to borrow money for an expensive but worthwhile transaction, such as purchasing a house or a car. However, taking out a loan means that you need to understand the legal obligations you have. A loan is something that needs to be paid back, and you could be severely penalized for not doing so. Here are four legalities to understand before taking out a loan.

When to Pay It Back

A loan offers relief through giving you money, but this money is not a gift. You need to make sure that you have a clear understanding of how much you need to pay it back and when to pay it back by. Most loans will offer you the option to pay back in monthly installments. However, the more time you take to pay back your loan, the more interest you’re likely to incur. No matter what kind of loan you have, be it payday loans like those from Power Finance Texas (which are easy to apply for and can help in a pinch) or a car loan, you need to understand when to pay it back.

Understand Your Credit Rating

Your credit rating is a number that is very important when it comes to taking out a loan. While having a low credit rating doesn’t have any direct legal consequences, it can influence whether lenders loan money to you. Take a look at your credit rating through a reputable credit rating agency. They will be able to look at your history of borrowing money and paying it back and see if you’re able to be trusted. If your credit rating is particularly low, then a loan might not be possible for you, at least not at the rate you desire.

Read the Fine Print

A loan is a contract, and like any other contract, you need to make sure you understand all the stipulations of it. For a loan, the main things you need to understand are the payment amount, due dates, and interest. Interest can be incurred at high rates, and you should make sure that you’re prepared to pay more than you originally borrowed, depending on how much you took out for the loan and how soon you’re able to pay it back. You also want to take a look at any consequences that might happen for not paying it back on time. This will typically result in higher payments being due and could even include things like repossessing of your vehicle or foreclosure of your home.

Legal Action

You’re not going to be charged with a crime for not paying back a loan, but there are still legal risks for not doing so. For one, you could be at the risk for lawsuits from banks or other lending agencies who you owe money to. If you’re defaulting on your loans to a severe amount, you’re likely to be hounded by collection agencies. You might also find yourself due to appear in court as a result. The legal fees to deal with a loan dispute could make your debt even higher. Therefore, it’s crucial to handle your loans in the best way possible and to make your payments on top.

Loans are something that can really help in times of financial need. However, they need to be handled with maturity and financial understanding. By understanding the legal requirements of taking out and paying back a loan, you can help ensure that your financial situation is as sorted out as possible.

Author Info: Hannah Whittenly is a freelance writer and mother of two from Sacramento, CA. She enjoys kayaking and reading books by the lake. You can find her on Twitter.

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One More Time: Law Firm Libraries Are Not About the Space

Originally published by Greg Lambert.

Photo by Annie Spratt on Unsplash

In 1995, a law firm was approached by one of its major clients to open an office in the city where the client’s headquarters was located. The law firm really didn’t want to expand into a new region of the country, where it had no other significant clients, so it politely refused the clients request. The client, however, was very persistent, and continued to press the law firm to open a new office in order for their joint legal teams to work closer to one another. The client would not back down, but then neither did the law firm. In a last-ditch effort to entice the law firm over, the client offered to donate its entire law library collection to the law firm; thousands of linear feet, worth hundreds of thousands of dollars of reporters, treatises, and specialty collections were offered in order to convince the law firm to open a new office. The law firm was stunned by the offer and immediately agreed to open the office. Twenty-Two years later, the law office thrives… and the law library collection that sealed the deal? It barely exists today.

True story.

On the surface, this sounds like a sad story for law libraries in law firms. Once the centerpiece of a law firm, the law library now inhabits a small fraction of the space it once did. Does this mean that the law firm no longer has a library? If all you think about is the space a law library takes up, then yes. If, however, you think of the library as the information and knowledge needed to effectively practice law, then the law library is as important now as it has ever been… perhaps more important than it has ever been.

I talked with a reporter a few weeks ago about another firm that actually re-purposed their old library space and sublet that space to a start-up company. The reporter found it to be telling that the traditional book law library was literally losing ground to a modern start-up company. What the reporter didn’t realize is that the law library actually became its own little start-up and had already reinvented itself. The traditional law library was about space, size, beauty, and being a showpiece. The modern law library is about function, ease of use, portability, and just-in-time availability. This isn’t a paradigm shift that suddenly appeared in 2017. This has been a gradual shift that has occurred over the past twenty-five years or more.

Law firm libraries occupy less space than ever, yet contain more information than ever. Saying that a law firm library has lost its importance because it has a smaller physical footprint is like saying that today’s laptop or tablet is less important because it doesn’t take up as much desktop space as an IBM Selectric typewriter. It’s actually quite a silly notion once you really think about it.

The modern law librarian has taken advantage of the paradigm shift and has reinvented themselves away from maintaining and updating a physical collection toward developing and training the members of the firm to understand which tool is the most valuable at the appropriate time. Very few firms lack for resources. The problem is that we have so many resources that we become overwhelmed by them. The law librarian’s skill at helping others find the right resource for the task is more important than ever. Moving the idea of the law library away from the physical and focusing on the actual information available has opened up opportunities for innovated law librarians.

So when you think back on the “good ol’ days” of the law firm library being the centerpiece of the office, don’t be sad for the law librarian that it has faded away. Be grateful that the law librarian is now offering you more information than ever before, and will gladly help you understand how to use it effectively.

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Maker, Breaker, Tinker, Try: The Right to Repair

Originally published by Heather Holmes.

Today is not just Tech Tuesday at the Harris County Law Library; it’s Giving Tuesday all over the world. This global movement of sharing and collaboration is designed to kick off the charitable giving season.  It’s also the perfect chaser to a full week of enthusiastic discount holiday shopping, often for the latest laptops, TVs, and smartphones. 

Little do we realize that, in buying the latest and greatest tech gizmos, we’re not only acquiring new gadgets — in many cases, we’re also subjecting ourselves to the proprietary grip of the designers and manufacturers who make the products so irresistible.  According to consumer advocates, we’re being manipulated, while manufacturers would argue otherwise. This disagreement, at the heart of the “right to repair” movement, has been the motivation behind proposed legislation in a dozen states.

Lawmakers of all political stripes and consumer advocates who are driving much of the legislation claim that all individuals have a right to make, break, hack, fix, or mend their personal property -– everything from farm equipment and automobiles to smartphones and home appliances. The issue is this: even when you own the item in need of repair, you may not own the internal software that allows the equipment to function. Moreover, technical information about the design of the item may be withheld, service manuals might not exist, and replacement parts could be unobtainable. Proprietary repair tools may be equally hard to come by, further complicating the ability for do-it-yourselfers to fix and maintain their own property.

To learn more about the “right to repair” movement, including the manufacturers’ equally legitimate claims to maintaining proprietary integrity and ensuring security and safety, please visit the links below. Learn why environmentalists, farmers, copyright reformers, hobbyists, staunch private property rights advocates, and others all feel passionate about the right to repair. Also, explore the future of ownership in an age when manufacturers increasingly limit our ability to manipulate or adapt the things we buy.

• “A ‘right to repair’ movement tools up” in The Economist, September 20, 2017
• “You bought that gadget and dammit, you should be able to fix it” in Wired, March 22, 2017
• “No, you shouldn’t be able to fix your own phone, ‘right to repair’ is a dumb idea” at Mashable, February 16, 2017
• “The Fight for the ‘Right to Repair'” at Smithsonian.com, July 13, 2016
• The End of Ownership: Personal Property in the Digital Economy by Aaron Perzanowski and Jason Schultz

 

 

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The Duties of an Executor of a Texas Will

Originally published by Nacol Law Firm - Dallas TX.

The executor of a will is the person chosen by the deceased to administrate the provisions of the will of his/her estate. The executor must be eighteen years older and have no prior felony convictions. Executors are usually family members, accountants or lawyers. The duties of the executor start at the time of death and finish when the last state and federal taxes are paid and the estate is closed or otherwise fully disposed. Executor responsibilities include accounting of assets in the estate, payment of estate liens and debts and final distribution of assets to the beneficiaries.

An executor has legal fiduciary responsibilities and must act with utmost honesty, impartiality, and scrupulousness on behalf of the deceased and the estate’s beneficiaries. Rational decisions must be made; and the executor must overcome emotion caused by loss and adhere to the terms of the will.

Some questions the potential executor should ask before accepting the position?

1. What type of property and debts does the deceased own or owe? What type of property is it? Real estate, personal, mineral, oil or gas rights or other types of property?
2. Where is the property located? Is all the property in Texas or are some estate assets in other states?
3. Did the deceased own a business that will have to be assumed by the executor to continue operations until the probate is settled and where is the business located? The executor will need to know about all aspects of the business operations and obligations.
4. Do you have an accountant, attorney or other professional advisor who can assist you in handling the probate transition in a timely and expedient fashion?
5. What are the deceased debts? Is the estate solvent or insolvent? Are there any outstanding lawsuits or potential problems? Any other property disputes?
6. Any potential family disputes?
7. Where is the will located? If the maker of the will is living, should any changes be made to the will before the person dies? If the executor decides to accept the position, does the will need to be changed on acceptance to appoint the executor of choice.
8. What are the basics of administering the executor’s position and duties while administrating of the estate of the deceased?

• Collection and management of the assets
• Paying all taxes, debts, and expenses of the estate
• Distribution of remaining assets to the beneficiaries of the estate in strict accordance with the will terms.

The executor’s position can be very complicated and time consuming and you should have knowledge of all financial and legal aspects of probating an estate. An experienced employee, accountant or attorney can help you with this important task. If not sure, ask for help! You have a serious and legally accountable responsibility to the estate and its beneficiaries.

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Uber Sued over Massive Data Breach

Originally published by Peggy Keene.

After admitting that they paid $100,000 to hackers in exchange for their silence regarding a data breach, Uber is now being sued over the breach […]

The post Uber Sued over Massive Data Breach appeared first on Klemchuk LLP.

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Two Time Management Techniques: Eisenhower Matrix & Pomodoro

Originally published by lawschool academicsupport.

As you study for final exams, it is essential to develop a time management strategy that will help you minimize interruptions and maximize focus. Here are two popular methods: the Eisenhower Matrix and the Pomodoro Technique. The Eisenhower Matrix stems…

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Appellate Lawyer of the Week: Attorney Revives Claims Against Juvenile Detention Center

Originally published by Texas Lawyer.

Although Chance Clyce suffered life-threatening injuries while he was detained in the Hunt County Juvenile Detention Center when he was 13 years old, he’s twice been prevented by federal courts from suing the officials who allegedly subjected him to inhumane conditions.

       

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Day 18 of One Month to 360 Degrees of Communication in Compliance-Leadership is a 360-Degree Conversation

Originally published by tfoxlaw.

Planes, trains and automobiles can be three of the most important leadership tools for any compliance professional. For it is through these transportation methods that you get out of the office and into the field to meet and talk with your stakeholders, both internal and external. This greatly facilitates a 360-degree use of communication. 360-degrees […]

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Dragon v. Trial: the Duhig Rule Reigns

Originally published by John McFarland.

Dragon v. Trial, from the San Antonio Court of Appeals, No. 04-16-00758-CV, decided November 8, is a case that may be of interest only to title attorneys and landmen and those of us who delight in the minutiae of land titles. It is also, like many title disputes, the story of a dispute over land whose minerals have become fantastically valuable. The case involves 237 acres in Karnes County, in the heart of the Eagle Ford play.

In 1932, the 237 acres was conveyed in equal shares to eight siblings. One of the siblings died, and the property was thereafter owned by the remaining seven. One of the siblings was Leo Trial. In 1983, Leo conveyed one-half of his 1/7th share to his wife Anna Ruth.

In December 1992, Jerome and Patricia Dragon purchased the property from Leo Trial and his siblings. They financed a part of the purchase with a 15-year note. Also, the grantors reserved the mineral estate in the 237 acres for a term of 15 years, after which title to the minerals would go to the Dragons. But Anna Ruth Trial did not sign the deed – an oversight that was not discovered until years later.

Leo Trial had died in 1996, and he devised his estate to a trust with his wife Anna Ruth as life beneficiary, and on her death his estate would go to his sons Joseph and Michael. After Leo’s death, Anna Ruth continued to accept Leo’s share of payments on the Dragons’ note, and when the debt was paid, she signed a release of lien, along with Leo’s other siblings.

The minerals in the land were leased and production commenced. In 2008, the Dragons informed the operator that the 15-year mineral reservation had expired so all royalties should be paid to them. But the operator’s title opinion concluded that, because of the 1983 deed to Anna Ruth, the Dragons did not acquire her interest in the property. Since Anna Ruth had died, the operator’s title attorney credited Anna Ruth’s 1/2 of 1/7 interest in the property to her two sons. The Dragons then sued the two sons over title to the 1/2 of 1/7 interest.

This brings us to the Duhig Rule, established in Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d 878 (1940).  In Duhig, Gilmer sold land to Duhig, reserving a one-half mineral interest. Duhig then conveyed the land to Miller-Link Lumber Company, also reserving a one-half mineral interest. But Duhig’s deed to Miller-Link failed to mention the prior mineral reservation by Gilmer. The Supreme Court held that, because Duhig had warranted title in his deed, his deed reserved no mineral interest, and the minerals were held 1/2 by Gilmer and 1/2 by Miller-Link.

The San Antonio Court of Appeals held that the Duhig Rule applied to the deed to Dragon. It held that, because Leo Trial’s sons derived their title claim from their father Leo, and because Leo had conveyed his interest in the 237 acres to Dragon by a general warranty deed, Leo’s sons were estopped from claiming ownership of an interest in the land. In the words of the court:

The Trials are remainder beneficiaries of Leo’s estate and trust, and, therefore, they are his privies in blood, privies in estate, and privies in law. As such, they also are bound by the recitals in the 1992 Deed. The Trials are therefore estopped from asserting title to any interests in contradiction to Leo’s duty to defend the Dragons against all claims to “all that certain parcel or tract of land.”

Lawyers love phrases like “privies in blood.”

Many law review articles and treatises have been written about the Duhig Rule and its legal basis. It is at its core a rule of fairness. Under the circumstances, it would not have been fair for the Trial sons to claim an interest in the land that their father sold, the Dragons paid for, and their mother accepted note payments on.

Duhig lives on.

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A Texas Bar Foundation grant sends Texas judges to the National Judicial College in 2018

Originally published by Eric Quitugua.

Six Texas judges will attend the National Judicial College’s flagship general jurisdiction course in Reno, Nevada, in 2018 thanks to a $12,000 grant from the Texas Bar Foundation.

The general jurisdiction course will bolster the judges’ courtroom management skills and better prepare them to conduct jury trials and apply the latest in criminal law and procedures. The National Judicial College has provided such judicial education since 1963 and has taught participants from across the United States and from more than 150 countries.

The Texas Bar Foundation’s grant will award $2,000 to each of the judges, who will attend the course in either the spring or fall session. The college then matches the funding for six $4,000 awards. The Texas Office of Court Administration and Texas Center for the Judiciary will select the recipients.

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What Would Your Clients Say About You?

Originally published by Cordell Parvin.

I want you to use your imagination for a moment. Picture a group of your clients meeting and discussing you. What are the 3-5 things you believe they would say about you?

Take a moment and write those things down. Now, think about what you would want them to say about you. Is there a difference?

Many years ago I went through this same exercise. I do not specifically remember what I listed that my clients would say about me, but I do remember what I would have liked them to say about me. I wanted my clients to say I was:

1. The leading transportation construction lawyer in the country;
2. A lawyer who understood their business;
3. A  lawyer who always put his clients’ interest ahead of his own;
4. A lawyer who could be trusted to always fulfill the commitments he made; and
5. A  lawyer who searched for innovative ways to help me achieve my business objectives.

Why did I do this exercise and why should you?

I did it because it changed how I was working with my clients. It helped me focus on what was important to them and caused me to search for ways to become the lawyer I wanted to be.

Let me know what you want your clients to say about you.
 

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Employment Transitions – The College Football Coach Way

Originally published by Rob Radcliff.

This time of  year is usually interesting from a college football coach perspective.  Most teams that intend to fire their coach have done so and are now in the coaching market.  Of course once those hires are made that creates additional openings for others.  There seem to be a lot of vacancies for very good programs this year with many in the South Eastern Conference.  The thing about these jobs is most of these coaches have a buyout provision in their contract – meaning they get paid by the university if they get fired!  What a deal.

Texas A&M fired its coach, Kevin Sumlin, yesterday afternoon.  According to reports, Sumlin gets paid $10 million for being fired.  Not too bad.  Some of these buyout provisions contain offset provisions where if the coach goes on to coach somewhere else in the same year the school that fires them gets a credit for the buyout and pays less.  It all comes down to what the coach can negotiate.  Rumor has it Sumlin will wind up coaching somewhere else so he’ll get $10 million + his new contract.   Not a horrible proposition from a financial standpoint.

The reasons these coaches are able to negotiate such great deals is because they are limited commodity – supply and demand.  Plus, there is an overall frenzy right now that defies common sense.   It’s hard to feel too bad for the universities.  They are making millions of dollars off of these coaches and more importantly players they don’t pay.  But that’s for another discussion.

Here’s a link to some interesting college coach contractual clauses.  My favorite is my Alma Mater’s coach’s tuition clause.  All of his children get to go to the University of Utah for free.  His grandchildren and great grandchildren only have to pay half in-state tuition.  The only stipulation is you have to be under the age of 26 and not married so no professional students.

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What to Avoid When Your Law Firm Undergoes Website Translation

Originally published by Stacey E Burke Blog.

The blog post below is written by Morningside Translations:

Websites are usually the first destination customers visit when they’re interested in a company. In the same vein, for professional industries like law, clients will often gauge a law firm’s credibility and reputation through their website.

First impressions are important, especially when we’re talking about an industry like law. The last thing you need is for your website to tarnish the reputation you’ve built through hard work and determination with incorrect errors.

Which brings us to translation, a key way of offering up your sevices to different audiences on a localized scale. A low-quality and mistake-ridden website translation can be extremely detrimental to the success and growth of a law firm.

Here are four of the most common legal translation mistakes made on law firm websites, and how to potentially avoid them.

1. Forgetting your email and contact forms

Your website is ready for launch and you’ve double-checked all of the translations made on your site to ensure it’s perfectly localized for your target markets. But, you leave your email responses and contact forms in English. This is a very common mistake that could lead to lower conversions on your site. Why?

The steps to a user’s conversion on your website often occur like this.

• A potential client, who only speaks X language, is looking for legal assistance.

• He/she looks through the site, is visibly impressed at the attention given to localization efforts, and enjoys reading it in their native tongue.

• The potential client clicks on the Contact Us form to provide information on the services they might require.

• Your website shoots back an automated email in English, but the client can’t read English.

• He/she leaves the website to search for another legal firm that can handle the tasks he/she requires without reverting to English.

If you forget about this step, which is an important one in actually converting a client, you’ll be losing many potential leads. It’s important to have the entire user journey translated properly, especially since a law firm will be handling a lot of sensitive legal matters.

2. Multilingual versions of a law firm’s website or landing pages through machine learning

While law firms might consider the low-cost, quick turnover qualities of machine translation an advantage, the translations are usually littered with mistakes that can harm the digital branding of your law firm. Even for law firms that are just starting out with minimal funds, machine translation on its own is a dangerous method to use for website translations.

The solution for this is to find a professional legal translation firm that utilizes legal translation experts to do the work for you. These legal translation experts will understand the nuances of legal terminology so that they can accurately translate difficult terms into the language you require. While the cost will be higher than machine translation, you’re paying for a premium service that will net you better results in your localization efforts.

3. Email marketing and newsletters should also be localized

While a full translation effort on your website is a good first step, if you’re trying to enter a new market, you should ensure that all of your assets and campaigns are also localized. Email marketing and newsletters are commonly used to communicate with potential and current clients. Make sure these marketing pieces are translated in order to reach everyone, across all platforms.

If you’re looking to target new communities in a different language, it would make sense to send out translated newsletters on days that coincide with specific regional or cultural holidays. This will show your clients that you care about them, have a clear understanding of who they are, and why they should choose you or stick with you as their law firm.

4. Translate lawyer profiles

A lot of web searches that will lead potential clients to your site will be searches for a lawyer to work on their case. Whether these visitors are led to your site through references or search engine queries, you don’t want to waste this warm lead if they can’t read English.

Ensuring your lawyers’ profiles, descriptions, and bios are translated will help improve conversion rates and minimize the chance of early bounce and exit rates. By looking at Google Analytics, you can break down the traffic that your lawyers are generating and create a plan of action for translation efforts. If one lawyer is getting a lot of traffic from a specific demographic that you are targeting, it might be time to put some serious efforts into localizing their descriptions for better chances of conversions.

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CFTC Annual Enforcement Update

Originally published by Energy Legal Blog ®.

On November 22, 2017, the Commodity Futures Trading Commission (“CFTC”) released its annual enforcement report for fiscal year 2017.  As in previous years, this year’s report highlights the agency’s continued commitment to enforcement and aggressive pursuit of those viewed as engaging in conduct that undermines the integrity of CFTC-jurisdictional markets.

Energy
Michael Brooks, David Perlman, George Fatula, Bob Pease, Stephen Hug, Jennifer Gordon, Ryan Eletto
view

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What Does Ransomware Cost Companies?

Originally published by Eric Begun.

In its 10-Q filing for the quarter ended September 30, 2017, Merck & Co., Inc. stated the following:

On June 27, 2017, the Company experienced a network cyber-attack that led to a disruption of its worldwide operations, including manufacturing, research and sales operations. … [T]he Company was unable to fulfill orders for certain other products in certain markets, which had an unfavorable effect on sales for the third quarter and first nine months of 2017 of approximately $135 million. … In addition, the Company recorded manufacturing-related expenses, … as well as expenses related to remediation efforts … , which aggregated $175 million for the third quarter and first nine months of 2017.

Worth noting, this $310 million amount likely does not include all legal fees, forensic costs, and all other costs, expenses, and losses related to the cyber-attack. Nor does it appear to include other costs, expenses, and losses that may be indirectly revealed elsewhere in Merck’s business or operations. The attack in question is the NotPetya ransomware attack, which impacted countless companies worldwide on June 27 of this year.

Lost Business Resulting from Ransomware

Merck’s announcement is remarkable for several reasons, especially for those who negotiate technology contracts and agreements with data privacy and security implications. First, it’s noteworthy in its relatively clear quantification of lost business resulting from the ransomware attack. That is, often it is difficult to quantify lost business, lost sales, and consequential damages when negotiating liability provisions related to data security and information security in technology agreements and other commercial contracts. This is not to say that Merck’s recitation of these amounts is a new rule-of-thumb or benchmark, but it may start a conversation.

Quantifiable Losses

Second, the loss numbers reported by Merck are not small ones. It is common to discount publicly announced forecasts of ransomware impacts that are viewed as extreme – $75 billion per year, according to one recently cited resource. But the concreteness of Merck’s number and the specificity of the ransomware attack merits attention.

Ransomware is Fact-Specific

Third, the Merck announcement implicitly underscores the criticality of the precise facts surrounding the NotPetya ransomware attack and the unique business and situation of Merck. Not all ransomware or malware attacks can cause the same sort or amount of losses reported by Merck, nor does the same ransomware or other malware give rise to the same quality or quantity of losses for every corporate victim. When negotiating data privacy and data security provisions in commercial technology contracts and similar agreements, it is important for all sides to consider the specific circumstances and risks related to the transaction and parties in question.

Ransomware Impacts Are Not Necessarily Per-Record

And, fourth, the Merck report sheds light on the financial repercussions of ransomware, as opposed to other malware and hacking activities. That is, there are a number of industry and other reports and surveys that speak to the financial and other impacts of data breaches and security breaches on a per-record basis (for example, cost per record, records per breach, etc.). The 2017 Ponemon Institute Cost of a Data Breach Study, Verizon’s 2017 Data Breach Investigations Report, and Gemalto’s Breach Level Index Findings for the First Half of 2017 are just a few. However, in many cases the particular per-record numbers reported do not provide a clear picture of the financial effects of ransomware, which often is not the kind or scope of cyber-attack that can be assessed on a per-record basis.

Merck’s 10-Q for the third quarter of 2017 is definitely not a quick-fix answer to the question of how much a ransomware attack would or could financially impact a company. However, for attorneys, contract professionals, and others who draft and negotiate technology agreements and contracts and, specifically, information and data security and privacy provisions, the Merck quarterly report is potentially meaningful.

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Special disappearance –

Originally published by David Coale.

Appellant filed a notice of appeal about a special appearance that was timely, measured from the ruling on a motion to amend and reconsider, but was not timely, when measured from the original ruling. The Fifth Court found that it was untimely: “The record here reflects the issue in the special appearance was whether the trial court could exercise specific jurisdiction over appellant. Appellant’s motion to amend and reconsider did not present any new arguments. Instead, it cited to decisions issued after the original order was signed, none of which changed the state of the law regarding specific jurisdiction. Because the motion to amend and reconsider presented no new argument, we conclude the amended order denying appellant’s special appearance was not independently appealable and agree with appellees that appellant should have filed its notice of appeal within twenty days of the signing of the original order.” Michelin North America v. Gallegos, No. 05-17-00617-CV (Nov. 21, 2017) (mem. op.)

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Day 17 of One Month to 360 Degrees of Communication in Compliance-Operationalize Compliance; Operationalize Culture

Originally published by tfoxlaw.

One area which most particularly lends itself to a 360-degree approach to communications is in the area of corporate culture. The more you can operationalize compliance, the more it works to operationalize culture in your organization. It works for all levels of a company, literally from the Boardroom to the shop floor. The Department of […]

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The Fifth Circuit Rules that Federal Law Preempts Unfair Competition Claim Under Texas Law

Originally published by Leiza Dolghih.

The Fifth Circuit Court of Appeals recently considered whether the federal copyright and patent laws (rock!) preempt  Texas common law claim of unfair competition by misappropriation (scissors!). The question reared its head amidst a web of lawsuits involving a medical device company, ThermoTek, and its former distributor, in which the company accused the distributor of obtaining its trade secrets involving a medical device he sold for them and proceeding to use the information to manufacture his own line of competing devices.   

The Fifth Circuit explained that the federal Copyright Act preempts a state law claim where (1) the intellectual property rights at issue are within the subject matter of copyright and (2) the state law protects rights in that property that are equivalent to any of the exclusive rights within the general scope of copyright. Meanwhile, the federal patent statutes preempt a state claim where its aim is to protect “the functional aspects of a product” because such claim would likely obstruct Congress’s goals by offering patent-like protection to intellectual property that its owner chose not to protect with a patent.  

In applying the above tests, the Fifth Circuit Court of Appeals held that the various aspects of the unfair competition by misappropriation claim in ThermoTek’s case against its former distributor were preempted either by the federal copyright or patent laws. 

The Copyright Act preempted the claim to the extent that ThermoTek alleged that the distributor misappropriated its written materials related to the medical device – here, manuals, reports, billing information, and other written documents – because such materials fell within the subject matter of copyright and the unfair competition by misappropriation claim did not qualitatively differ from a copyright claim.  Meanwhile, the federal patent law preempted the unfair competition claim to the extent it sought to protect the medical devices themselves or their functional aspects because the claim substantially interfered with the public’s enjoyment of unpatented aspects of the devices that ThermoTek publicly disclosed. 

BOTTOM LINE:  On a very basic level, the doctrine of preemption allows federal claims to preempt state law claims if they concern the same subject matter. If not analyzed strategically and addressed in the pleadings, this doctrine can wreak havoc on a party’s litigation strategy in a trade secrets lawsuit.  For example, in the ThermoTek lawsuit, the jury found in the company’s favor awarding it $6,000,000.00 in damages on the unfair competition claim. However, after the trial, the court found that the unfair competition claim was preempted by federal law and dismissed it leaving ThermoTek with $0.  In conclusion, trade secrets claims do not exist in a vacuum, but should be analyzed in the context of the existing intellectual property framework along with other types of IP.

Leiza litigates non-compete and trade secrets lawsuits in a variety of industries. If you are a party to a dispute involving a noncompete agreement in Texas, contact Leiza at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108 or fill out the form below.

 

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Will the Supreme Court rely on a 1979 case (think 18,134 Internet years) for Internet/cellphone privacy in 2017?

Originally published by Peter S. Vogel.

On November 29th the US Supreme Court will consider the case of US v. Carpenter where “police acquired the data from Carpenter’s wireless carriers without a warrant showing probable cause”  which led to Timothy Carpenter’s conviction that he was  “leading a gang of robbers” and the “prosecution produced cellphone-tower data that tracked the whereabouts of Carpenter’s cellphone for more than four months and placed him at or near the sites of a string of armed robberies.”

The Washington Post had an article written by Stephen Sachs on November 26, 2017 who was Maryland’s Attorney General from 1979 to 1987 entitled “The Supreme Court’s privacy precedent is outdated” who commented that in 1979 he “argued and won Smith v. Maryland when I was Maryland’s attorney general. I believe it was correctly decided. But I also believe it has long since outlived its suitability as precedent.” As Mr. Sachs pointed out, the 6^th Circuit Court of Appeal relied on Smith v. Maryland in the Carpenter case.

Mr. Sachs supports a new legal construction of privacy in 2017 relying on Justice Sonia Sotomayor, in her concurring opinion in the 2012 case of US v. Jones which held:

….that the clandestine and warrantless attachment of a GPS tracking device to a defendant’s car was an unconstitutional search.

…the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.

People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their internet service providers; and the books, groceries and medications they purchase to online retailers.

It will be interesting to see how the Supreme Court rules in the US v. Carpenter.

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Tortious Interference with Inheritance Rights

Originally published by Axel Lindholm.

When a significant inheritance is at issue, or items in an estate have important sentimental value, the handling of an estate can quickly become a controversial matter. Family members may contest wills, dispute estate planning, and argue that they were promised certain items not reflected in the deceased’s documents.

One claim that can arise when a family member’s inheritance is reduced or eliminated is a claim for tortious interference with inheritance rights. In Texas, the validity of this claim is still up for debate but may be important where you have reason to believe that your inheritance rights were altered through the undue influence of another.

When Influence Becomes Too Much

Tortious interference claims arise when it can be alleged that one party exerted undue influence on the decedent or fraudulently led the decedent to change his or her will or estate plan, and the change causes a beneficiary of a prior will or an heir to lose some or all of their inheritance.

For example, perhaps a brother knows that he and his sister will each inherit one-half of their father’s estate under his current will.  Brother, who is father’s primary caregiver, threatens to stop caring for father if he does not change his will to make brother the sole beneficiary. This is undue influence. Or he may simply lie and tell his dad that his sister no longer needs an inheritance because she just won the lottery. This is fraud.

In either circumstance, the brother has effectively “interfered” with his sister’s expectation of an inheritance by persuading their dad to change his estate plan. While such interference often occurs to benefit the one who is doing the interfering, that does not always have to be the case.

What Is Tortious Interference?

Tortious interference is a separate claim from claims commonly brought in a will contest or probate dispute. In some circumstances, long after probate has closed, a beneficiary of a will or estate may learn that her inheritance was reduced due to the undue influence or input of another. While it may be difficult to re-open the probate proceedings, the individual can instead bring a tort claim for interference.

Tortious interference with expected inheritance requires a plaintiff to prove three things:

• First, that he or she had a reasonable expectation of receiving a benefit or inheritance from the decedent.
• Second, that the defendant interfered with this expectation through some type of bad conduct, such as fraud or undue influence.
• Third, that this interference caused the plaintiff damages (i.e., loss of an inheritance).

The advantage of making a claim for tortious interference with inheritance rights in addition to fraud or undue influence is that tort claims enable the claimant to request punitive damages in addition to actual damages.  Punitive damages, as the name suggests, are damages which are designed to punish the wrongdoer in addition to making the claimant whole.  In the previous example, if sister were to prevail in her claim of tortious interference with inheritance rights she might be awarded damages against brother in the amount of the inheritance she lost plus an additional amount one to two times the value of the inheritance.

In Texas, the Texas Supreme Court has not yet definitively weighed in on whether tortious interference with inheritance rights is a recognizable tort claim under Texas law. Some lower courts have recognized the claim and allowed plaintiffs to pursue it, while others have not. As such, it remains a possible claim but with an uncertain future.

Texas Attorneys Filing a Tortious Interference Claim to Protect Your Interests

If you have reason to believe that your inheritance was reduced, or even eliminated because of the actions of another individual, it is important that you take action as quickly as possible. If probate proceedings are still ongoing, you may be able to contest the will or claim fraud against the estate. You may also consider filing an additional claim for tortious interference with your expected inheritance.

At Romano & Sumner, PLLC, our estate litigation attorneys can help you determine which approach works best for your circumstances, and a claim for tortious interference with inheritance rights is advisable. We proudly serve Sugar Land, Houston, and the surrounding areas. For more information, contact us online or at 281-242-0995.

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