Originally published by Zach Wolfe.
Flashback to when I had a solo law practice: A recruiter calls me looking for candidates to join a large law firm. I wasn’t really looking to make a move, but I asked about the position because I was curious. “How much portable business are they looking for?” I asked. “At least a million,” she said (meaning dollars per year).
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Originally published by Legal Writing Prof.
Naruto, the seven-year-old Crested Macaque (a monkey) who took a selfie on the island of Sulawesi, Indonesia had Article III standing under the U.S. Constitution but he (and all other animals) lacked statutory standing under the Copyright Act to sue…
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Originally published by David Coale.
The district court admitted several pieces of inflammatory character evidence against defendants—including claims of race discrimination and bribes to Saddam Hussein’s Iraqi “regime”—reasoning the defendants had “opened the door” by repeatedly presenting themselves as “wonderful people doing wonderful things.”
. . .
The district court allowed these repeated references to Hussein and the [Deferred Prosecution Agreement] because defendants had supposedly “opened the door” by eliciting testi-mony on their corporate culture and marketing practices. This justification is strained, given that J&J owns more than 265 companies in 60 countries, and the Iraqi portion of the DPA addresses conduct by non-party subsidiaries. “[T]he Rules of Evidence do not simply evaporate when one party opens the door on an issue.”
Nos. 16-11051 et seq. (April 25, 2018) (citations omitted, emphasis added).
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Originally published by Joanna Herzik.
To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.
10. I’ve gone to the Court of Appeals, now what relief may I get? – Brad LaMorgese of Orsinger, Nelson, Downing & Anderson, LLP in Dallas
9. Oil Prices Continue to Advance – Bill Smalling of The Law Office of C. William Smalling, P.C. in Houston
8. Texas Anti-SLAPP Statute Used in Oil & Gas Lease Dispute – John McFarland of Graves Dougherty Hearon & Moody @GravesDougherty in Austin
7. “Deceased client” privilege exemption – David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas
6. Careers and Life: It was easier when I started – Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas
5. Good Litigating is Good Teaching: Mastering Your Case-in-Chief – Kirsha Trychta of the Law School Academic Support Blog
4. Homeschooling & Educational Decisions: Opinions – Matthew A. Knox of Laura Dale & Associates, P.C. @DaleFamilyLaw in Houston
3. Using Venmo as a Vehicle for Hidden Assets and Fraud in Divorce – Andrew Speer of O’Neil Wysocki P.C. @ONeilWysocki in Dallas
2. The Status of Appraisal in Texas Insurance Policies & Claims – Emily Marlowe of Merlin Law Group @MerlinLawGroup in Houston
1. Why Blockchain Matters to In-House Lawyers – Eric Begun of King Fisher in Dallas
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Originally published by John McFarland.
Lona Hills Ranch, LLC v. Creative Oil & Gas Operating, LLC, et al., No. 03-17-00743-CV, Austin Court of Appeals.
Creative Oil & Gas held an oil and gas lease on Lona Hills Ranch’s property. Lona Hills concluded that the lease had expired, but Creative disagreed and filed for a permit to drill a new well on the lease. Lona Hills protested the permit on the ground that the lease had expired. But the Texas Railroad Commission ruled that Creative had a “good-faith claim” that its lease was still in effect and granted the permit. So Lona Hills sued Creative in Lee County for trespass and trespass to try title on the ground that the lease had expired.
In response to Lona Hills’ suit Creative filed counterclaims for breach of the lease “by wrongfully claiming the Lease has terminated and wrongfully repudiating the Lease.” Lona Hills then filed a motion to dismiss Creative’s counterclaims under Texas’ Anti-SLAPP statute, the Texas Citizens Participation Act (TCPA), Tex.Civ.Prac. & Rem. Code Chapter 27.
A SLAPP is a “strategic lawsuit against public participation,” a suit intended to censor or intimidate critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Twenty-eight states have adopted statutes intended to protect against SLAPPs. In Texas, the Citizens Participation Act is intended to allow a person faced with a SLAPP an inexpensive procedure to challenge the validity of a claim that is “based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.” The recipient of a SLAPP files a motion to dismiss and shows that the action is based on or in response to the recipient’s exercise of the right of free speech, right to petition, or right of association. The burden then shifts to the party bringing the SLAPP to
“establish by clear and specific evidence a prima facie case for each essential element of the claim in question” to avoid dismissal. All discovery in the case is stayed, except only affidavits filed by the parties, until the motion is decided.
The trial court denied Lona Hills’ motion to dismiss under the TCPA, and Lona Hills appealed.
The Austin Court of Appeals held that Lona Hills had met its burden of showing that some of Creative’s counterclaims “are predicated factually on the Ranch’s exercise of the right of free speech, specifically its communications to third parties that the lease had terminated.” Creative contended that its counterclaims were based exclusively on alleged breach of the lease by failing to give notice and an opportunity to cure the lessee’s default. The lease provided:
no litigation shall be initiated by Lessee with respect to any alleged breach or default by Lessee hereunder, for a period of at least ninety (90) days after Lessor has given Lessee written notice fully describing the breach or default, and then only if Lessee fails to remedy or commence to remedy the breach or default within such period.
The court disagreed. Creative alleged in its pleadings that, because of Lona Hills’ claim that the lease had terminated, the purchasers of production had refused to pay for lease production, and that it had suffered damages “as a result of [Lona Hills’] breach of the Lease by wrongfully claiming the Lease has terminated and wrongfully repudiating the Lease.” These allegations “plainly show that [Creative] seek[s] relief that is predicated, in addition to the alleged breach of [the lease], on an alleged injury caused by [Lona Hills’] communications regarding the lease termination. As such, [Lona Hills] established by a preponderance of the evidence that [Creative’s] counterclaims are ‘based on, relate to, or [are] in response to’ [Lona Hills’] ‘exercise of the right of free speech.’” The court held that Creative’s counterclaims based on Lona Hills’ communications to the purchaser of its claim that the lease had terminated should have been dismissed.
The court then examined whether Lona Hills had met its burden under the TCPA of showing that Creative’s suit for breach of the lease was predicated on its exercise of the right to petition. As to the breach of contract claim, the court held that Lona Hills had waived its right to protection under the TCPA because it agreed in the lease not to sue before giving prior notice and an opportunity to cure.
By agreeing to this provision, [Lona Hills] has contractually restricted its normally unrestricted constitutional right to petition. … Accordingly, [Lona Hills] cannot establish that [Creative’s] counterclaim is factually predicated on [Lona Hills’] exercise of a protected expressive activity because the Ranch has agreed by contract to a notice provision limiting its right to petition — i.e., the lease removes [Lona Hills’] petitioning from the realm of protected activity. … Therefore, the trial court did not err in refusing to dismiss the Lessee’s breach-of-contract counterclaim that is based on [Lona Hills’] complaint to the Railroad Commission and the filing of this lawsuit.
The court’s opinion does not say on what basis Lona Hills had for contending that its lease had terminated. The opinion only says that it sued for “trespass and trespass to try title, alleging that the lease had terminated.” Such a suit ordinarily is brought on the basis that production had ceased or had ceased in paying quantities. Such a claim is not alleging that the lessee is in breach of the lease, only that the term of the lease has expired according to its own terms. Therefore, it seems to me that the lease requirement that the lessor give notice of the “breach or default” and an opportunity to cure would not apply to such a claim. If the lease has in fact terminated, the lessee cannot “cure” the termination. It seems that Lona Hills could have argued that its right to petition that the lease had terminated was not waived by the notice provision in the lease.
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Originally published by lawschool academicsupport.
Having just returned from a bar exam conference, I am struck by how little we know about what actually correlates to success on the bar exam. Nevertheless, for our students, it is common to jump to the conclusion that bar…
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Originally published by Cordell Parvin.
You are sitting at your desk working on an important client matter. All of a sudden you get an email from a friend about going to an event over the weekend. Do you continue working and ignore the email? Or, do you stop, read and answer the email and then go back to your work?
I believe the most successful lawyers in 2018 and beyond will be those who are able to stay focused and not be easily distracted.
Years ago, I gave a presentation on career success and life fulfillment to 250 Dallas Junior League members I began:
Can any of you tell me the date today?
Several in the audience called out “October 9th.”
I continued: “As you will read in the handout materials, October 9th in 1978 was a defining moment in my life. Our daughter, Jill was born 6 weeks prematurely that day and the Doctors didn’t know if she or my wife Nancy would pull through.
I asked the group.
Why am I taking you back to 1978, other than to remember our daughter’s birthday?
It was easier to have a successful career and a fulfilling life then. It was easier to stay focused on what was important in your career and life.
Think about it, we had no smartphones, no tablets, no text messages, no ATM machines, no email. We didn’t even have computers on our desk. Our assistants were still typing with carbon paper and using white outs to erase. I think our firm may have gotten it’s first IBM mag card typewriter that year.
Our office was very formal. Mr. Martin was the founding partner. I called him Mr. Martin. His assistant was Miss Johnson. I called her Miss Johnson.
It was easier to “be in the moment.” Arguably, in 2018, we have too much abundance, but not nearly enough time to enjoy it. We have too many choices, and not nearly enough help to make the right ones. We have too much technology, and not nearly enough freedom from it. And, we focus too much on outward success and not nearly enough on inward fulfillment.
I told the group:
Today it is more important than ever to take control of your career and life. Over the next hour I will give you a roadmap on how to do it.
Over the hour that followed, I talked about focusing on priorities in your life and career, being willing to say no to things that are not priorities, putting together a plan that includes career goals and life goals and making time for items on the plan.
So, today I ask: What are you focusing on? Are you really focused, or easily distracted?
The post Careers and Life: It was easier when I started appeared first on Cordell Parvin Blog.
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Originally published by Greg Land.
The appellate opinion said the trial judge committed “serious evidentiary errors” and allowed the plaintiffs counsel to mislead the jury.
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Originally published by Amy Starnes.
Veterans across Texas were honored at the Champions for Justice Gala Benefitting Veterans on April 25. More than $404,000 was raised to provide civil legal services to low-income Texas veterans at the event.
The gala, co-sponsored by the Texas Access to Justice Commission and the State Bar of Texas, was held at the AT&T Executive Education and Conference Center in Austin. Keynote speaker for the evening was the Hon. Nathan Hecht, the 27th Chief Justice of the Supreme Court of Texas.
Click here to read the full news release.
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Originally published by mkhtx.
The Fourteenth District Court of Appeals released a memorandum opinion this morning in In re M.C.K., No. 14-17-00289-CV, concerning homeschooling and educational decisions.
Mother filed a modification regarding custody of the child. Though Father did not file any pleadings regarding educational decisions, the MSA explicitly stated that the parties were reserving educational decisions as an issue for trial. Mother objected at trial to educational decisions being an issue at trial and the trial court allowed Father’s oral trial amendment.
When the child was a baby, Mother was awarded the right to make educational decisions for the child. But once the child became school-aged, Father sought to share that right because he was concerned about Mother’s homeschooling of the child. The trial court modified the parent-child relationship to give both parents the right to make educational decisions and ordered that, if they cannot agree, the child will attend public school. Mother appealed, arguing the evidence was insufficient to support the judgment.
At trial to the bench, Mother testified that she opposes public schools because: they do not promote critical thinking; they primarily teach children to memorize and regurgitate facts for standardized tests; and they do not teach Hebrew in school which was important to her because she is Jewish. She does not have any teaching degrees or certifications, though she did teach for one year at a Montessori school and she homeschooled her two older children (ages 16 and 11) for their whole lives. She testified that she does not follow a specific curriculum but she shops for textbooks on eBay, at teacher supply stores, and at HalfPrice Books. While the children are working on assignments she gives them, she works as a subcontractor for an online company that offers work-from-home employment.
Father testified that he is worried that the child is isolated in her homeschooling environment and that the child had never attended a birthday party or had play dates with other children. Mother testified that the child played with other children in the community, but she could not name any friend of the child’s and admitted the child had never been to a birthday party for a five-year-old. Father also expressed concern about the child’s curriculum and testified that when he asks the child what she is learning, the child does not say anything.
The Court of Appeals affirmed the trial court, finding the evidence was sufficient to support the trial court’s judgment and that the trial court’s judgment was not an abuse of discretion.
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Originally published by Katie Seegers Roth.
The United States Court of Appeals for the Federal Circuit recently issued a significant opinion in a case in which a takings claim was asserted to redress Hurricane Katrina-related flood damage. On April 20, 2018, it reversed a decision of the United States Court of Federal Claims (“Claims Court”), which had held the U.S. Army Corps of Engineers liable under the Tucker Act for flood damage to the Plaintiffs’ properties.
In 1968, the Corps completed construction of the Mississippi River Gulf Outlet (“MRGO”) in New Orleans. The purpose of this navigation channel was to increase commerce between the port of New Orleans and the Gulf of Mexico. Around the same time, Congress authorized funding for flood control through the Lake Pontchartrain and Vicinity Hurricane Protection Project (“LPV”). This project was instituted to reduce the risk of flooding in New Orleans, and it resulted in the construction of levees and floodwalls along the banks of MRGO.
In 2005, Hurricane Katrina hit New Orleans and catastrophically flooded St. Bernard Parish and the Ninth Ward in New Orleans, among other places. Property owners in these areas, as well as the St. Bernard Parish Government, sued the federal government in Claims Court, claiming that, under the Tucker Act, both action and inaction by the Corps constituted a “taking” by causing flood damage to their properties. Specifically, Plaintiffs asserted that the construction, operation, and improper maintenance of MRGO caused a variety of adverse impacts (e.g., increased salinity in the water and erosion of MRGO’s banks) that increased storm surge along the channel. After a bench trial in late 2011, the Claims Court held that a temporary taking had occurred. It found that the substantially-increased, storm surge-induced flooding of Plaintiffs’ properties that occurred during Hurricane Katrina and in later storms was a direct result of the Corps’ cumulative acts, omissions, and policies over time. After a second bench trial, the court awarded approximately $5.5 million dollars in replacement costs and lost rental value as just compensation. It certified a liability class and two subclasses for compensation. The federal government appealed both the liability and the compensation rulings, and Plaintiffs cross appealed the issue of compensation.
On appeal, the Federal Circuit first framed the case as one for inverse condemnation based on a taking of a flowage easement. It identified the pivotal legal issue as whether the increased flooding from the MRGO constituted a taking, and it explained the proof Plaintiffs needed to prevail on such an issue: that government action caused the injury to Plaintiffs’ properties and that the invasion was the direct, natural, or probable result of an authorized activity. Plaintiffs were also required to prove that the invasion was either intentional or foreseeable.
Turning next to Plaintiffs’ claims, the court noted that Plaintiffs’ theory of liability was based largely on government inaction—namely, the Corps’ alleged failure to maintain or modify MRGO (e.g., by failing to armor banks or repair erosion). The court flatly held that, on a takings claim, the government cannot be liable for failure to act—only for affirmative acts, or “authorized activity.” Plaintiffs’ sole remedy, if any, for the Corps’ omissions, lies in tort.
The court then turned to the two affirmative acts identified by Plaintiffs as causing their damages—the construction of MRGO and its continued operation. To the extent that Plaintiffs’ case was premised on these acts, the court held, Plaintiffs failed to prove that the acts caused their injury. Addressing the causation analysis applicable in a takings case, the court explained that Plaintiffs were required to prove that they would not have suffered the injury in the ordinary course of events, absent government action. Thus, they should have—but did not—present evidence comparing flood damage that actually occurred with damage that would have occurred had there been no government action.
Moreover, according to the Federal Circuit, Plaintiffs’ causation analysis was flawed from the outset. Their proof rested entirely on the premise that it was sufficient to establish that their injury would not have occurred absent the construction and operation of MRGO, without accounting for the impact of the LPV flood control project. The court held that this failure to account for the LPV project and the possibility that it mitigated the impact of MRGO was fatal to Plaintiffs’ claim. As the court put it, Plaintiffs asked the wrong question: the relevant inquiry is not whether isolated government acts caused the injury, but rather whether the totality of the government action caused the injury.
The court addressed Plaintiffs’ responsive argument that, in determining causation, it is unnecessary to consider the entirety of government action if the beneficial government action is not part of the same project as the detrimental action. It rejected this argument out of hand, finding that the LPV project was unquestionably directed to decreasing the very flood risk that Plaintiffs alleged was increased by MRGO. The court put it simply: when the government action mitigates the type of adverse impact that is alleged to be a taking, it must be considered in the causation analysis, regardless of whether it is formally related to the government project that allegedly contributed to the harm. Plaintiffs’ failure to consider the impact of the risk-reducing LPV project resulted in a failure of proof on the key issue of causation. The Claims Court’s judgment was thus reversed without consideration of the other issues on appeal.
Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.
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Originally published by lawschool academicsupport.
As my students transition into exam study mode and I start to close out all of the activities of this academic year, I have started to reflect on my accomplishments and goals. Reflection of this depth does not happen very…
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Originally published by Brad LaMorgese.
It is very important, when deciding to appeal, to find out what relief the appeals court can give. Will the appeals court change the decision, or just send me back to the same judge to re-decide the case?
Some cases will result in a reversal and remand. This means that the Court of Appeals found an error and the case is remanded, or sent back, to the same trial judge to re-decide the case. Many times issues can only result in a remand back to the same trial judge. So it must be factored in whether a successful appeal means the case is going to the same judge who committed error in the first place. Many times a trial judge may simply follow what the Court of Appeal stated and reach the same decision as before if there is some flexibility given by the Court of Appeals. However other times the remand language from the Court of Appeals is so specific that the judge must decide the case differently. It is all dependent on the direction of the Court of Appeals in its opinion.
Perhaps the best result is a reverse and render. In this case the trial court really is ordered to take only one action as directed by the Court of Appeals. So essentially there is not much left for the trial judge to do other than enter the Court of Appeals’ judgment. For the person appealing, this is the best and most desirable result.
It is very good to evaluate the appeal issues and determine if they might result in a reverse and remand, and require new hearings or new trial in front of the same trial judge that made the error (and more spending on litigation), or might they result in a reverse and render which means that the case will just be simply sent back to the trial judge to enter the new judgment directed by the Court of Appeals.
The post I’ve gone to the Court of Appeals, now what relief may I get? appeared first on ONDA Family Law.
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Originally published by Marie Laur.
The Eleventh Circuit Court of Appeals recently ruled that a policy’s exclusionary language did not apply to an insured’s previously denied water loss. In the case, Cameron v. Scottsdale Insurance Company, the insured, Ken and Michelle Cameron (“the Camerons”), suffered a loss to their residential rental dwelling when a pipe in the plumbing system collapsed,…… Continue Reading
.
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Originally published by Michael Booth.
A Texas appeals court has overturned $150,000 in sanctions, remanded for reconsideration an award of $375,383 in attorney fees, and vacated nonmonetary sanctions imposed by the trial judge on the operator of website purportedly aimed at stamping online bullying and other more lurid practices.
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Originally published by Jeff Rasansky.
Since 2009, Texas law requires that all vehicle occupants wear a seat belt. Accident injuries incurred while not wearing a seat belt can significantly reduce your potential recovery compensation.
Seat Belts & Liability
In Texas, your right to seek compensation from the insurance company following a car accident is based on fault, as well as comparative negligence.
Texas is a “modified comparative fault” state, meaning that you can only recover compensation from the other driver’s (or their insurance company) if they were determined to be at least 51% at-fault for the accident. Additionally, your overall award can be reduced based on your own negligence.
For instance, someone who causes a crash by running a red light will always be more than 50% at-fault — but jury might place a small percentage of fault on you for failing to take evasive actions. In this example, let’s say the jury puts 90% of the fault on the other driver, and 10% on you.
If the jury awards you $1,000,000, this will be reduced by the 10% of fault placed on you, leaving you with a $900,000 payout.
But if for example you were not wearing your seat belt at the time, a jury may decide that this contributed to the severity of your injuries. If they then put 30% of the blame on you, your $1,000,000 judgment will be reduced by 30%, leaving you with a total recovery of $700,000.
You must understand that the insurance company is not on your side. They’re looking to pay out as little as possible, and have no problem lying to your face when it comes to your potential claim. They may deny your claim outright, or lie and tell you that they cannot offer you a settlement over a certain number.
A good Dallas car accident attorney, on the other hand, is always looking out for your best interests. They will handle ALL communication with the insurance company, and will work to get you every penny you’re owed.
Your attorney will argue on your behalf that the fact that you were not wearing a seat belt doesn’t nullify the recklessness with which the other party acted, and can use evidence and case law to prove you’re owed the money you’re seeking.
Want to know more about comparative negligence as it relates to your car accident case? Give us a call right now at 1-877-405-4313 to learn more about your legal options, as well as how we may be able to help you on a no-win no-fee basis.
The attorneys at Rasansky Law Firm are happy to speak to you about your potential case free of charge. If we can help with your claim, we’ll do so for no out-of-pocket cost to you. Call us 24/7 at (214) 651-6100, or toll-free at 1-877-405-4313.
REQUEST A FREE CONSULTATION BY EMAIL
The post Failure to Wear Your Seat Belt Can Lower the Value of Your Claim appeared first on Rasansky Law Firm.
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Originally published by Environmental and Energy Law Blog.
This blog recently reported how the Texas oil and gas economy continues to thrive, buoyed by increased production and favorable pricing. Presently, crude oil prices are at the highest level since late 2014. Analysts attribute the price increase to declining US crude inventories and OPEC attempts to push prices higher through production cutbacks. While there is some debate as to whether prices will continue on this trajectory, navigating such market fluctuations requires the advice and counsel of experienced energy sector attorneys.
Crude oil prices are hovering close to five-year averages, with Brent crude futures reaching $74.74 per barrel, the highest level since Nov. 27, 2014, while US West Texas Intermediate (WTI) crude futures are also hovering at $69 a barrel.
As you may recall, OPEC ramped up production at that time in an attempt to defend its market share, eventually driving the price for Brent to $27 a year later. By 2017, however, OPEC and other major producers began curbing production to rein in oversupply and prop up prices. Some observers argue that the Saudis are aiming prices in the $80 to $100 a barrel range, and that Riyadh will not pursue changes to the OPEC supply pact agreed to in 2017. The Saudis are driven by domestic political and economic concerns as higher oil prices will support their fiscal positions and the Kingdom’s costly reform program. Saudi Arabia has previously acknowledged that it is crucial to diversify its economy away from oil and gas production.
Since supply cuts were instituted in 2017, US crude inventories have declined from record highs, settling back to long-term average levels. According to the Energy Information Administration (EIA), crude oil stocks are close to the five year average of 420 million barrels. The decline in inventories has boosted prices and geopolitical tensions in the Middle East region could lead to further supply reductions from the Middle East.
The question remains, however, whether this bull market still has legs. Some analysts argue that prices will level off and that global supply and demand data do not support current pricing levels. Moreover, there has been an uptick in the number of exploration and production wells being drilled in Texas. In any event, the riding the inherent volatility of the energy markets and negotiating favorable oil and gas contracts requires proper legal representation. Contact the Law Offices of C. William Smalling, P.C. today.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Eric Begun.
Today, news reports, academic articles, and corporate reports are flush with mentions of “blockchain,” “Bitcoin,” and “distributed ledger technology.” At first glance, many readers see the discussion as hype, generating a great deal of actionless attention, curiosity, and investment opportunities.
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Originally published by Shari Klevens and Alanna Clair.
The decision to end a representation entails a number of considerations, including both practical and ethical concerns. Depending on the nature and duration
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Originally published by Cordell Parvin.
Imagine for the moment that I am helping you find the right firm. I want you to go through this exercise:
Describe what makes you different or unique in 25 words or less
I picked this exercise because what makes you unique is a common interview question. If I was interviewing a partner who had a $1 million book of business, I might ask:
Why do your clients hire you?
Where did I get the idea? Years ago I am read a great book on communication titled: “10 Simple Secrets of the World’s Greatest Business Communicators.“
Author Carmine Gallo has captured secrets that every lawyer should consider. You should also check out his other books on communication.
Simple secret 6 is brevity. Gallo references “What Clients Love” where Harry Beckworth writes:
If you cannot describe what makes you different and excellent in twenty-five words or less, don’t fix your copy. Fix your company.
By the way, if you are interested in learning more about how clients select lawyers, you might find David Maister’s article: How Clients Choose, valuable.
The post 25 Words or Less appeared first on Cordell Parvin Blog.
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Originally published by Legal Writing Prof.
Simple. Your appeal gets dismissed. Ammar v. Schiller DuCanto and Fleck LLP, 2017 IL App (1st ) 162931, 419 Ill. Dec. 541, 93 N.E.3d 660. The appellate brief in Ammar failed to cite the record and failed to cite supporting…
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Originally published by lawschool academicsupport.
This is the third post in the “Good Litigating is Good Teaching” series. Part One: Introduction Part Two: Getting a Good Start Part Three: Mastering Your Case-in-Chief After the jury is empaneled and the opening statements have concluded, it’s time…
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Originally published by greg.
In the vast majority of Texas personal injury cases, a subrogation claim is made. Often, handling the subrogation is an essential part of a personal injury attorney’s involvement in the Read More
The post Insider Tips for Texas Personal Injury Subrogation appeared first on Baumgartner Law Firm.
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Originally published by David Coale.
Nogess v. Poydras Center LLC, No. 17-30449 (April 3, 2018).
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Originally published by William Goren.
Previously, we discussed in this blog entry a case out of the Southern District of Florida holding that DOJ had no authority to enforce on its own title II of the ADA. That decision laid out the case against DOJ having independent title II enforcement. However, I thought it would be interesting to discuss […]
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Originally published by Adam Faderewski.
Thank you to the 28 writers who submitted entries to the Texas Bar Journal Short Story Contest this year. The winner, “The Protective Order,” by Rosanne Gordon, earned the highest number of points.
The entire story, along with the second and third place winning entries, will be published in the June issue of the Texas Bar Journal.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Andrew Speer.
Millennials have grown up, and while they were busy revolutionizing the technology sector with smartphone applications like Venmo, the law has not adapted to the changing realities of how people interact. Venmo is a smartphone app, but it can be used as a tool by devious parties to the detriment of spouses and children. It uses a person’s Facebook account to verify their identity, and to produce a list of people with whom that person can send and receive money. After populating this list, and verifying identities through Facebook, Venmo syncs up with a person’s bank account, where it can deposit and withdraw funds with ease. Once set up, a party is not limited to exchanging funds to only their Facebook friends, but can receive funds from anyone, including employers and buyers of goods. If this transfer was instantaneous, there wouldn’t be a problem, Venmo would simply serve as a bridge, linking two bank accounts, similar to a direct deposit.
However, Venmo is not a bridge, it is a bridge with a parking lot in the middle of it. Money is sent from the transmitting bank account, received and held by Venmo, and then only upon instruction from the receiving party are funds transferred from Venmo into the receiving bank account. This payment “trigger” is the issue.
In the world of family law, Venmo is a problem that has not been fully realized yet. More employers are paying their employees through Venmo, particularly in the wedding industry (planners, DJ’s, florists, bakers, professional photographers, etc.). If that employee never instructs Venmo to deposit the funds received as wages into the receiving bank account, a problem arises. The party’s bank account would show a zero balance, when in reality, Venmo could be holding thousands of dollars on the employee’s behalf. In the case of a wedding photographer, a single day’s shoot could easily yield $3,000. If that photographer worked every weekend in a month, there could be $12,000.00 held in Venmo that is not accounted for. That party can essentially park assets in Venmo, wait for their court date or a final order to be signed, and transfer funds upon the entry of the order (or thirty days later if they are smart).
Venmo evades traditional discovery. Through the tactics above, it can be used to hide community assets in a divorce, or to minimize income in child support amounts in suits affecting the parent-child relationship. The only possibility of finding funds held by Venmo, is to conduct exhaustive discovery, which is expensive, easily costing a client at least $5,000 to request, respond to, and evaluate. Most attorneys of clients seeking more economical representation use discovery as a tool of last resort, and rely solely on Rule 11 agreements, verified inventories and appraisements, pay stubs, and bank account statements.
Why does Venmo matter in a discovery context? The Office of the Attorney General does not ask for Venmo records in their discovery requests in child support cases. Older attorneys do not know Venmo exists, and those who are aware of its existence rarely send requests for production of Venmo records in discovery. A party can say they receive little to no wages, produce bank accounts and inventories showing very low balances, and be ordered to pay minimum wage guideline child support, when in reality they earn many times minimum wage. In the divorce context, a party can hide large sums of cash from their spouse in Venmo, distorting property divisions. They can sell certain assets or goods, require payment through Venmo, then claim they gave it away as a gift or don’t know what happened to the asset, without having to ever disclose the actual value received for the goods.
Venmo is neither a bank account, nor is it a social media account, but lies somewhere in between, as a smartphone app that vaguely resembles an escrow account or clearing house. Unless attorneys are proactive in regards to new technological developments like Venmo, including requesting screenshots of a party’s Venmo “feed,” “transfers,” and “activity,” the problem will remain.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Environmental and Energy Law Blog.
As oil and gas producers maximize the benefits of advanced drilling techniques such as hydraulic fracturing (“fracking”) and horizontal drilling and take advantage of favorable pricing, the oil and gas economy in Texas is making impressive gains, driven largely by upstream production. While this presents opportunities to producers and investors alike, successfully navigating the current economic landscape often requires the advice and guidance of an experienced energy industry attorney.
Basically, the oil and gas industry is divided into three key sectors — upstream, or exploration and production (E&P), midstream and downstream. The upstream sector involves underground or underwater oil and gas exploration, drilling exploratory wells and subsequently drilling operating wells to bring oil and gas to the surface.
The Texas Petro Index (TPI), a composite index comprised of a comprehensive group of upstream economic indicators, increased to 192.7 in January, up from 188.9 in December and 153.7 in January 2017. Although the TPI has made gains for 14th consecutive months, the index is still off its November 2014 peak of 313.5, prior to the last downturn in Texas’ oil and gas economy.
The TPI also highlights that estimated January 2018 crude oil production totaled approximately 119.5 million barrels (bbl), up by 21.9 percent from January 2017, surpassing all prior production volumes for the month of January. With oil prices hovering at $60/bbl, that’s a crude oil value of $7.2 billion — more than 48 percent higher than last January. Meanwhile, natural gas production was also up by 2.7 percent while the number of both active drilling rigs and drilling permits issued continues to climb.
This is also a “kitchen table issue” given the fact that the energy production sector is a leading employer in the state, with about 226,000 Texans employed upstream, a gain of more than 15 percent, but still lower than the high of 295,000 in December 2014.
In sum, the upstream oil and gas economy continues to expand, buoyed by relatively favorable pricing and crude oil production at record levels. At the same time, growth comes with challenges such as negotiating energy contracts, managing risks, and adhering to state and federal energy and environmental regulations. By listing the services of an experienced energy and environmental attorney, you can take advantage of the opportunities in the oil and gas industry in Texas.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by James Amaro.
When a drunk driver causes an auto wreck, the impaired driver is typically liable for the injuries and damage (s)he causes. The driver may not, however, be the only liable party. In fact, if a drunk driver was served – or overserved – alcohol at a bar or another establishment, the alcohol-providing establishment may also be partly liable for the accident and damages caused by the driver it served.
TX Dram Shop Laws & Car Crashes
This type of retailer liability is established by dram shop laws, which have been enacted in more than 40 states across the U.S., including in Texas. Understanding how and when dram shop laws may apply to a given accident and claim is crucial to:
A dram shop law is a statute that establishes liability for alcohol-providing establishments when intoxicated patrons of those establishments harm others. The term dram shop refers to alcohol-serving establishments where alcohol used to be served by the dram.
You are also encouraged to contact the Amaro Law Firm for a free, no obligations consultation and important answers about your recovery options. Free mobile and virtual consultations are available to those who cannot visit our offices.
Enacted in 1987, the Texas dram shop law allows the victims of drunk driving accidents to hold alcohol retailers liable for contributing to a driver’s state of intoxication.1 According to this law:
To establish retailer liability under the dram shop act, the victim must be able to prove that:
Various evidence can prove that driver, who was served alcohol at a retail establishment, was clearly intoxicated before getting behind the wheel. This can include (and is not limited to):
The following example clarifies how the Texas dram shop law generally works:
After consuming multiple alcoholic beverages at a bar, a person chooses to drive home. While driving, the drunk motorist runs a red light and hits a pedestrian. The police investigation for the accident indicates the motorist was drunk (via a breathalyzer test, for instance). Further investigation uncovers the facts that:
– The driver was consuming alcohol at a bar immediately before the accident occurred.
– At the bar, the driver was clearly drunk and was still being served alcohol.
Ultimately, the jury finds that the driver is 70 percent liable and the bar is 30 percent liable for the accident. With the claim valued at $100,000, the driver is ultimately liable for $70,000 while the bar is liable for $30,000.
When it comes to drunk driving accident claims, the bottom line is that the impaired driver is not necessarily the only liable party. Alcohol retailers who contributed to the driver’s state of intoxication may also be liable for an accident caused by a drunk driver.
Given that it can take additional investigations to determine whether the Texas dram shop act applies to a given claim, it’s crucial to work with an experienced attorney who can position these cases for success and the maximum available recovery.
If you or a loved one has been hurt in crash caused by a drunk (or otherwise negligent) driver, contact an experienced Houston car accident attorney at the Amaro Law Firm for essential insights regarding your potential claim and recovery options.
Call (877) 892-2797, text (281) 612-8024 or email our firm for a free consultation.
With the Amaro Law Firm on your side, you can count on having extraordinary advocacy while we work diligently to help you achieve the best possible resolutions. Although money may never erase the permanent damage caused by drunk driving crashes, these financial recoveries can be integral to restoring lives.
The Amaro Law Firm’s record of extraordinary representation and success in car crash claims has earned us glowing testimonials from former clients and 5-star ratings on Google and Facebook.
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1: Completed Text of the Texas Dram Shop Act
The post Texas Dram Shop Laws & Drunk Driving Car Accident Claims appeared first on Amaro Law Firm.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Emily Marlowe.
The majority of insurance policyholders do not realize that their property insurance policy may contain an appraisal provision. Insurance companies attempt to use appraisal provisions to impose unnecessary burdens on insureds and to eliminate the insureds potential to file a lawsuit against the insurance company and its adjusters for violations of the Texas Insurance Code,…… Continue Reading
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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by David Coale.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by lawschool academicsupport.
Graduation is right around the corner. Party planning has begun, and thoughts of bar prep are put off until after enjoying the festivities. Senioritis is at an all-time high. 3-4 years of exhaustion is taking a toll. I completely understand…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by [email protected].
Revenge porn has made headlines in recent years. It’s the practice of posting nude or semi-nude pictures of a former partner on the internet without his or her permission. Texas has criminalized the practice.
However, a court has struck down the Texas revenge porn law for being too broad and in violation of the First Amendment.
The law was enacted in 2015 after its author, Sen. Sylvia Garcia, D-Houston warned the “very disturbing internet trend” of posting revealing pictures of ex-partners was occurring in Texas, reported the Texas Tribune.
Under the law, it is a misdemeanor offense to post a previous partner’s nude or semi-nude photographs. The offense carries a sentence of up to a year in jail and a $4,000 fine.
However, the 12th Court of Appeals sitting in Tyler ruled the Texas law is unconstitutional and its content restrictions are overly broad and infringe on free speech. Chief Justice James Worthen wrote that the First Amendment usually prohibits “content-based” restrictions.
The justices were also opposed to a provision of the law that allowed third parties who may have “unwittingly” shared intimate photos to be charged with an offense.
The court asked a lower court to dismiss the charges against Jordan Bartlett Jones, who was charged with posting an intimate photo of a woman without her consent.
The Tribune reported the recently-enacted law was partly inspired by the case of Hollie Toups, a woman whose intimate photos were posted online.
Toups from Beaumont in Texas headed up a class action lawsuit against the porn site Texxxan.com, as well as its host, GoDaddy, according to news reports. She found intimate photographs were posted by her ex-boyfriend alongside her Facebook profile and real name.
The Tribune reported the Texas Attorney General’s Office will fight to overturn the court’s ruling. The case may end up at the state’s highest criminal court, the Court of Criminal Appeals.
The new ruling only blocks the revenge porn law in more than a dozen Northeast Texas counties under the umbrella of the 12th Court of Appeals, although courts elsewhere in the state are likely to consider its reasoning.
As many as 38 U.S. states have enacted revenge porn laws in recent years, but they vary in scope.
If you have been charged with a criminal offense in Texas, you should hire an experienced criminal defense lawyer. Read more about state offenses on our website.
The post Texas Revenge Porn Law is Found to Violate the First Amendment appeared first on Dallas Criminal Defense Attorneys |State & Federal Lawyers.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Adam Faderewski.
The Texas Supreme Court and the Texas Court of Criminal Appeals have appointed 31 members to lead the newly established Judicial Commission on Mental Health. The commission will examine best practices in the administration of civil and criminal justice for persons with mental illness.
The newly appointed members will serve through August 2020 and include, Hon. Brent Carr, of Fort Worth; Camille Cain, of Austin; Terry Crocker, of Edinburg; Jerry Davis, of Austin; Hon. Francisco Dominguez, of El Paso; Hon. Camile DuBose, of Hondo; Dr. Tony Fabelo, of Austin; Sonja Gaines, of Austin; Hon. Ernie Glenn, of San Antonio; Hon. Sid Harle, of San Antonio; Dr. Andrew Keller, of Dallas; Adrienne Kennedy, of Austin; Hon. M. Sue Kurita, of El Paso; Beth Ann Lawson, of Lubbock; Major Mike Lee, of Houston; Chief James McLaughlin Jr. (ret.), of Elgin; Mike Maples, of Austin; Dr. Octavio Martinez, of Austin; Hon. Stacey Matthews, of Round Rock; Beth Mitchell, of Austin; Tom Mitchell, of Houston; Hon. Roxanne Nelson, of Marble Falls; Hon. Robert Newsom, of Sulphur Springs; Hon. Harriet O’Neill (ret.), of Austin; Denise Oncken, of Houston; Dr. William B. Schnapp, of Houston; Dr. Brian Shannon, of Lubbock; Reginald Smith, of Austin; Hon. Polly Jackson Spencer (ret.), of San Antonio; and Hon. Cynthia Wheles, of Plano.
Texas Supreme Court Justice Jeff Brown and Judge Barbara Hervey of the Texas Court of Criminal Appeals will serve as the initial co-chairs of the commission. Justice Bill Boyce, of the 14th Court of Appeals in Houston, will serve as the initial vice chair.
The governor, lieutenant governor, and speaker of the house have been invited to each designate a person to serve as an ex-officio member.
The first meeting of the commission is scheduled for May 15, 2018, in Austin. The meeting will be available by webcast and later archived at TexasBarCLE.com.
The signed order can be viewed at TexasJCMH.gov.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Joanna Herzik.
To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.
10. New Intellectual Property Issues Emerge with the Advent of Virtual Reality – Peggy Keene of Klemchuk LLP @K_LLP in Dallas
9. Farmout Agreement Worked Over by the Court – Charles Sartain and Chance K. Decker of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas
8. READ THIS CASE if you draft federal jury charges. – David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas
7. Texas District Court “Assumes” Title VII Protects Transgender Status – Alicia Voltmer of Lillard Wise Szygenda PLLC in Dallas
6. Improving writing—yours and others’ – Wayne Schiess, Senior Lecturer, The University of Texas School of Law @UTexasLaw in Austin
5. Texas Company Settles False Claims Act Suit – Justin Hill of Hill Law Firm @jahlawfirm in San Antonio
4. What is the Process to go to the Texas Supreme Court in an Appeal? – Brad LaMorgese of Orsinger, Nelson, Downing & Anderson, LLP in Dallas
3. Litigation over commas: How far Does Title II Extend? – William Goren of William D. Goren, J.D., LL.M., LLC
2. Questions Presented – Jason P. Steed of Kilpatrick Townsend & Stockton LLP @KTS_Law in Dallas
1. The Difference Between UCCJEA & UIFSA: Opinions – Matthew A. Knox of Laura Dale & Associates, P.C. @DaleFamilyLaw in Houston
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Karri Bertrand Bolton.
Today is the Day of Civility in Texas.
What does that mean exactly? Well, once a year, the legal community in Texas takes an entire day to focus on and improve the conduct of lawyers and to celebrate the importance of civility in our legal system. This day—known as the Day of Civility—was created to encourage legal professionals to aspire to the highest levels of courteous and professional interaction with judges, peers, adversaries, and workplace colleagues. This spirit of professionalism inspired the promulgation of the Texas Lawyer’s Creed in 1989, which serves as every lawyer’s “how-to” guide on civility. Its preamble states that, “[t]he conduct of a lawyer should be characterized at all times by honesty, candor, and fairness.”
The State Bar of Texas urges all local bar associations to participate in a Day of Civility—both to educate and to celebrate all members of the bar. The Dallas Bar Association will host its Day of Civility today at the historic Belo Mansion in downtown Dallas. The event features speakers and dignitaries from around the state, including Justice Eva Guzman of the Supreme Court of Texas, Tom Vick, President of the State Bar of Texas, the Honorable Carolyn Wright, Justice of the Fifth District Court of Appeals, and Royal Ferguson, Dean of UNT Dallas College of Law.
So why is civility so important? Why do we need a Day of Civility?
Justice Anthony Kennedy succinctly summarized the importance of civility in his 1997 speech at the American Bar Association’s Annual Meeting, stating: “[Civility] … is not some bumper-sticker slogan, ‘Have you hugged your adversary today?’ Civility is the mark of an accomplished and superb professional.”
P.T. Barnum, whose life is the subject of the recent hit movie The Greatest Showman, also praised civility, stating that “politeness and civility are the best capital ever invested in business.”
Civility–encompassing respect, professionalism, candor, honesty, and fairness–is espoused by OWL Attorneys and staff alike.
Here are “The 25 Rules of Considerate Conduct” for you to follow to ensure perfectly civility:
From Choosing Civility. Copyright © 2002 P. M. Forni. (St. Martin’s Press, 2002)
Happy Day of Civility from O’Neil Wysocki!
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Adam Faderewski.
The U.S. Court of Appeals for the 5th Circuit adopted a change to its rules this month.
The approved amendment is as follows:
FIFTH CIRCUIT RULE 35.5
35.5 Length. See Fed. R. App. P. 35(b)(2). The statement required by Fed. R. App. P. 35(b)(1) is included in the limit and is not a “certificate[ ] of counsel” that is excluded by Fed. R. App. P. 32(f).
The amended rule, which went into effect April 2, 2018, was approved by the court following a public comment period that ended March 9.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Kristen Rasmussen.
Ebong Aloysius Tilong is believed to have fled the United States. Last October, he was sentenced, in absentia, to one of the longest-ever terms for health care fraud for his role in a $13 million Medicare scheme in Houston.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
