Writing a will is an important step in ensuring that your assets and property are distributed according to your wishes after your death. In Texas, there are specific requirements that must be met in order for a will to be considered valid. One option for creating a will is to write it by hand, also […]
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The negotiators and scriveners of the purchase and sale agreement in Matter of PetroQuest Energy, Incorporated would have been well served to consider all the potential ramifications, however remote, flowing from the definitions in their agreement. (Potential reply: “Who woulda thunk THAT would happen?”)
The Fifth Circuit, applying Louisiana law, held that in a federal offshore Gulf of Mexico lease trade, if a purchaser assumes liabilities for “Assets” under a purchase and sale agreement that does not require the Assets to actually transfer between the parties, then a lack of consent from the Bureau of Ocean Energy Management (or other agencies) does not invalidate the purchaser’s assumption of the liabilities. The case turned on the specific language of the agreement.
Sanare Energy Partners purchased a mineral lease and related contracts from PetroQuest and assumed liabilities for the “Assets”. PetroQuest filed for bankruptcy. Sanare, trying to avoid responsibility for the Assets, filed an adversary proceeding in the bankruptcy on the theory that the wells and lease in connection with the sale were not “Assets” for which all obligations and liabilities were assumed by Sanare.
Sanare: The interests are not “Assets”
Sanare argued that PetroQuest failed to obtain third-party consent from the BOEM, whose consent is required for mineral lease transfers on federal lands.
Sanara also argued that “absurd results” would follow if the PSA’s definition assigned liabilities to Sanara for Assets that still belonged to PetroQuest.
The Court: Yes they are
The Fifth Circuit denied the first argument, concluding that the definition of “Assets” unambiguously included the wells and lease, and the definition was not changed by the BOEM’s failure to consent. Furthermore, the court found that the consent requirement did not extend to “customary post-closing consents,” such as BOEM’s. Even so, the “Bureau’s withheld consent may prevent a post-closing transfer from occurring, but it does not change the PSA’s definitions.”
The Court also denied the absurd result argument, noting that “these absurdities do not arise from the purchase agreement’s internal definition of Asset.” Rather, they arise only if the purchase agreement requires title to an Asset to actually transfer between the parties even without the necessary consents. There was no such requirement.
Conclusion
Words have meaning! The properties were “Assets” under the PSA, even if the Bureau’s failure to grant consent prevented record title for the Properties from transferring to Sanare.
More on how the climatistas resort to personal destruction of serious, mainstream scientists who dare fail to conform to the orthodoxy. In this case its Steven Koonin, former Obama undersecretary of energy and author of Unsettled: What Climate Science Tells Us, What it Doesn’t, and Why it Matters”. The Powerline post is worth a read.
When a person becomes unable to make decisions for themselves or manage their own affairs, a guardianship or conservatorship may be established in Texas probate court. Both guardianship and conservatorship are legal processes that allow a court to appoint someone to make decisions and take actions on behalf of another person, known as the ward. […]
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Gathering opinions on new legal writers
In summer 2022, I had lunch meetings with five local attorneys. My goal was to gather input from practicing lawyers about ways I could improve my teaching of legal writing. Before meeting, I asked my “consultants” to consider three questions:
I was pleased to learn that, according to my consultants, the writing ability of new lawyers these days is okay. No one was gushing about it—after all, new lawyers need lots of practice and experience to become skilled legal writers. But I was pleased that I didn’t hear any “the sky is falling” or “sound the alarm” reports.
I think that’s partly because formal legal-writing instruction in U.S. law schools, once almost non-existent, has been transformed in the last thirty years. At many schools, legal writing has moved from a low-credit, pass-fail course taught by teaching assistants to a graded course taught by full-time faculty.
Still, there’s room for improvement, and the most-common concerns expressed about new lawyers’ writing fell into three categories: tone, concision, and organization.
Tone: My consultants said that new lawyers sometimes write too formally, in a tone that is stiff or stilted. They guessed that new lawyers might be trying to sound … lawyerly. This is understandable, of course, and it’s a phase nearly every lawyer passes through. You’ve entered a learned profession, and you’ve become a licensed attorney, so you want to sound like one.[1] Yes, writing with an unduly formal tone is a flaw, but it’s not a major one. With some good feedback about audience and purpose, new lawyers will adapt to expectations and begin to adopt a readable tone.
Concision: New lawyers’ writing is sometimes wordy and verbose, my consultants said. They see long sentences, complex structures, and big words. But mostly, they said, they see documents that are too long. A memo the assigning lawyer thought would be five pages is ten; email messages that could be two or three paragraphs are five. New lawyers need to weed out extraneous details and unnecessary background and deliver the key information or analysis efficiently.
I agree that concise writing is a challenge for new lawyers, and my perspective as a teacher of first-year students makes me aware of a risk to keep in mind. If you apply pressure on novice legal writers to be concise, they might cut useful or necessary content just to achieve concision. In other words, to get the five-paragraph email down to three paragraphs, the beginner might just cut two paragraphs—perhaps removing a key legal standard or an important piece of the analysis.
What we want, of course, is for the writer to carefully edit all five paragraphs, removing a few words here, dropping an unnecessary comment there, and then consolidating so that we end up with three paragraphs. Ideally, they learn to achieve concision by a series of small edits that add up.
Organization. Even a concise piece of legal writing that uses the right tone still needs to be well organized, and in this area my consultants had two key comments: First, they wanted more up-front, bottom-line summaries in nearly everything thing they read. Spill the beans: get to the point first and put the background second, they said. It’s a common recommendation for all legal writing.[2] Second, the rest of the document should be sensibly ordered, with headings if necessary and strong topic and transition sentences.
These two key comments—the need for an up-front summary and the importance of a sensible, discernible order—highlight the reality of law practice: Lawyers are busy. These two techniques help busy lawyers read and understand efficiently.
The responses to this question fell into three categories: Getting assignments, following up, and following through.
Getting assignments
I practiced law before the Internet, cell phones, and email, so the way I got assignments was almost always to go into someone’s office with a pen and pad in hand. I sat and took notes on what I was told.
It turns out that’s still a good idea, according to my consultants.
If possible, assigning attorneys and assignment-receiving new attorneys would meet in person to discuss the assignment. The new attorney should have something to write with—probably not just a cell phone.
Even when getting an assignment by email (the most common method, according to my consultants), it’s usually a good idea to drop by and talk. New attorneys should ask about the assigning attorney’s expectations on timing, depth, length, and so on to be sure they understand the assignment. Then, after some initial work, they should check back to be sure they’re on the right track.
Following up
New lawyers and law students tell me they sometimes avoid following up with questions because they don’t want to look inept or uninformed. But my consultants said that, in fact, not following up with the assigning attorney is a bigger problem than asking too many questions.
Although it doesn’t happen frequently, it’s a serious problem to do the research and write up a project that isn’t what the assigning lawyer wanted. Of course, it’s best to follow up only after you’ve done at least some research, so you’ll have something useful to say when you check back.
Sometimes the new lawyer gets a project and can’t find anything or, at least, anything that seems responsive to the assignment. When that happens, it’s important to follow up, but it’s just as important to be able to report back with “here’s what I did.” For example, it’s great if new attorneys can say, here are the research queries I submitted, or here are the types of authorities I consulted, or something like that.
Following through
According to my consultants, new lawyers should aspire to do more than merely answer the question; one recommendation is to include a short report on the best cases for and against the outcome predicted. In addition, new lawyers should invest in the problem: ask about it, care about it, try to get involved.
Some new lawyers make the mistake of assuming that it’s a senior attorney’s job to get them involved and pull them into projects. But getting involved is a new attorney’s job. New attorneys should become invested in the problem, ask follow-up questions, and care about the result for the client.
My consultants had lots of ideas, and I’ve listed some below. There are some great suggestions, but given that my focus is on first-year legal writing courses, I’ve categorized them into two groups: (a) good ideas that my colleagues and I are already doing, are hoping to do more of, or are planning for the future; and (b) good ideas that might become part of an upper-division course or clinic but that would be difficult to implement in the first-year legal-writing course.
(a)
(b)
Overall, it was a great summer project that I hope to do again in a more systematic and expanded way.
_____
[1] Wayne Schiess, The Sound in Your Head, Austin Lawyer 6 (Nov. 2009).
[2] Wayne Schiess, Legal Writing Nerd: Be One 25-29, 30-36 (2018).
So this is the fifth and final installment of my five-part series on fraudulent transfers. In previous blogs, I laid out the basic statutory framework regarding fraudulent transfers, as well as described generally the difference between actual and constructively fraudulent transfers (Part 1). In Part 2, we took a detailed look at the elements of a fraudulent transfer under both the Bankruptcy Code as well as Texas law. In Part 3, we took a deeper dive into the badges of fraud that courts use to analyze the existence of actual fraudulent intent. In Part 4, we took a more detailed look at insolvency. In this final installment, we’re going to address the various burdens of proof that affect parties on both sides of a transaction.
With respect to actual fraudulent transfers, Plaintiffs must provide evidence that the Debtor made each transfer with actual intent to hinder, delay, or defraud “any entity to which the debtor [is] … indebted.” § 548(a)(1)(A); Furr v. TD Bank, N.A. (In re Rollaguard Sec., LLC), 591 B.R. 895, 918 (Bankr. S.D. Fla. 2018) (“In order to prosecute a claim based on actual intent to hinder, delay, or defraud a creditor, the plaintiff must show that the alleged fraudulent intent is related to the transfers sought to be avoided.”). Therefore, it’s important to note that Plaintiff’s burden applies separately to each transfer, and not just some general intent regarding all transfers.
From Part 2, you will recall that the first element of an actual fraudulent transfer under either the Bankruptcy Code or the Texas Uniform Fraudulent Transfer Act (“TUFTA”) is the existence of a creditor. Regarding that first element, the burden is on the Plaintiffs to demonstrate the existence of an actual creditor with an allowable claim against the debtor.” In re Northstar, 616 B.R. at 724. Further, “the so-called ‘triggering’ creditor must be the same creditor on both the transfer date and the date of commencement of the case.” Id. “If there is no [such] creditor . . . the [plaintiff] is powerless to act under § 544(b)(1). Id.
Plaintiffs further have the burden of establishing fraudulent intent. From previous installments, recall that courts typically rely on circumstantial evidence, known as badges of fraud, to infer intent. We learned in Part 3 that there is no clear authority on how many badges of fraud must be present to sufficiently establish actual intent under either the Bankruptcy Code or TUFTA. We do know that, as a matter of law, a finding of fraudulent intent cannot properly be inferred from the existence of just one badge of fraud. And we also know that the burden is on the Plaintiffs to establish the existence of “actual intent to hinder, delay, or defraud any creditor of the debtor” – including the presence of multiple badges of fraud. See, e.g., In re The Heritage Org., 413 B.R. 438, 464 Bankr. N.D. Tex. 2009.
Once the Plaintiffs have met the burden of establishing: (1) the existence of a creditor; (2) the existence of a debtor; (3) that the debtor transferred assets shortly before or after the creditor’s claim arose; and (4) that the debtor did so with actual intent to hinder, delay, or defraud any of the debtor’s creditors, then – and only then – the burden shifts to the defendant to show that the transferor had a legitimate purpose in making the transfer.” Id.
With respect to constructive fraudulent transfers, under TUFTA, the Plaintiffs have the burden to show that the transfers were made by the Debtor without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: (A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or (B) intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they become due. Tex. Bus. & Comm. C. §24.005(a)(2).
Under the Bankruptcy Code, 11 U.S.C. § 548(a)(1)(B), to prove constructive fraudulent intent, the Plaintiffs must show that the Debtor received less than a reasonably equivalent value in exchange for such transfer or obligation and one of the following:
11 U.S.C. § 548(a)(1)(B).
Specifically, and importantly, the Plaintiffs bear the burden to establish the lack of reasonably equivalent value – not the other way around. Yaquinto v. CBS Radio, et al., Adv. Proc. No. 19-03226-sgj (Bankr. N.D. Tex., July 13, 2022); In re McConnell, 934 F.2d 662, 665 n.1 (5th Cir. 1991); Altus Brands II, LLC v. Alexander, 435 S.W.3d 432, 441 (Tex. App.—Dallas 2014, no pet.). Therefore, a Plaintiff does not satisfy its burden simply by establishing the existence of transfers by the Debtor. The Plaintiff must go further to establish that reasonably equivalent value for such transfers does not exist. Plaintiffs cannot rely on mere suggestion or innuendo and thereby place the burden on the Defendant to establish the existence of reasonably equivalent value.
Once a Plaintiff can establish the existence of an actual or fraudulent transfer, the burden then shifts to the defendant transferee to establish that such transfer or obligation is not voidable based on the fact that such transferee took such transfer in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee. That defense is found in the Bankruptcy Code at 11 U.S.C. § 548(c), and under TUFTA at Tex. Bus. & Comm. C. §24.009. Therefore, it is possible that a plaintiff could establish the existence of a fraudulent transfer, but still not be able to undo or avoid the transfer in question.
Hopefully this series has provided a little clarity as it relates to fraudulent transfers. A future goal is to establish a 50-state analysis on fraudulent transfer law that could benefit those struggling with this topic from around the country.
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When a person passes away, their assets and debts must be settled through the probate process. This process can be complicated, especially when it comes to the payment of creditors. In Texas, there are specific rules and procedures that must be followed when dealing with creditor’s claims in probate court. In this article, we will […]
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Last year the 14th Court of Appeals in Houston issue an opinion that should serve as a warning to mineral owners, Thistle Creek Ranch v. Ironroc Energy Partners, No. 14-20-00347-CV.
Thistle Creek sued IronRoc to terminate an oil and gas lease it claimed had expired for lack of production in paying quantities. The lease is on a form I have seen before. The habendum clause provides:
Unless sooner terminated or longer kept in force under other provisions hereof, this lease shall remain in force for a term of three (3) years from the date hereof, hereinafter called “primary term,” and as long thereafter as operations, as hereinafter defined, are conducted upon said land with no cessation for more than ninety (90) consecutive days.
Business and commercial property owners must have a variety of types of insurance coverage in place to effectively run their operations. Having the proper policies often gives the insured peace of mind, in that they believe the insurance carrier will honor its obligations and protect the policyholder in the event of a claim. However, insurance plans can contain a wide array of exclusions, which often limit the insured’s ability to recover payment on a claim in whole or in part. When this happens, a reservation of rights letter may be sent to the policyholder to inform them of potential gaps in coverage.
Under most insurance policies, the insurance company has a legal duty to pay damages for a covered claim. When a claim filed by a commercial property owner falls into a gray area where further investigation may be needed to determine coverage, the insurance company may send out a reservation of rights letter to inform the policyholder.
Insurance companies typically utilize reservation of rights letters to alert policyholders of an investigation into a claim, stating that it reserves the right to deny coverage for some or all of the claim at a later date. These letters usually include certain facts about the claim, such as excerpts of language from the policy and what the insurer is contending is not covered. Essentially, a reservation of rights letter is used to state that while the carrier is actively investigating the loss and/or addressing any specific issues related to a claim, it has not yet determined whether or not the loss is covered. This means that while a claim has been opened, coverage of the claim is neither approved nor guaranteed for the specified loss.
Insurance companies sometimes use a reservation of rights letter as an alternative to immediately denying or agreeing to cover the claim. This allows the insurer to address the claim and evaluate the loss on its end before it makes a final decision on whether or not to cover it. While these letters can appear generic, they are a formal indicator that some of the losses being claimed by the policyholder may not be covered. Often, receiving the letter also lets the insured know the information provided in the original claim requires further evaluation.
Insurance companies will routinely send a reservation of rights letter, as failing to send one can waive their rights. If a commercial property policyholder receives one, they should contact their insurance company to find out why the claim may not be covered. If an insurance company is heading toward claims denial, an experienced insurance coverage attorney should be consulted.
The law regarding the use of reservation of rights letters varies from state to state; however, most jurisdictions hold that the letter must include an unambiguous explanation of what may not be covered and why. The letter must also be sent timely in response to the claim. If the insurance company waits until well after the claim was initially filed to send out a reservation of rights letter, it could negatively impact a policyholder’s ability to obtain legal counsel.
Although an insurance provider’s reasoning for sending out a reservation of rights letter may appear valid, it’s still a great cause for concern to a policyholder. This is because a reservation of rights letter brings up an inherent conflict of interest between the carrier and the insured, making it critical for commercial policyholders to know how to effectively respond to one.
While an insurance company could send out a reservation of rights letter to inform a policyholder of a potential coverage gap, it’s important that commercial property owners understand which events are commonly excluded from coverage. Most often, a commercial property insurance policy excludes events such as:
While coverage for water-related damage is often included within most commercial property coverage, flooding is not. If a commercial property is located within a state prone to flooding events – like Texas or Louisiana – owners should obtain a separate flood insurance policy to be certain the property is covered.
Similar to flood events, most commercial property policies exclude coverage for damage related to earthquakes. If a commercial property owner has facilities located in active earthquake areas like California, they should take extra care to obtain a separate earthquake or earth movement policy.
A commercial property insurance policy covers only the store, the warehouse, and/or the office where a business operates, but not the vehicles the company owns. Insuring vehicles and insuring buildings are two very distinct processes that require different coverage. While insurance for both the business facility and its vehicles can be bundled together, this is still accomplished by purchasing two different policies.
Equipment breakdown is inevitable during the lifetime of a business and is not a risk that can be managed like a potential fire. Because of this, commercial property insurance will not cover damage due to an equipment breakdown or malfunction.
Property that is not owned by the business or by the commercial property owner is generally not covered under a commercial property policy. If a fire breaks out at a restaurant and a customer’s property is damaged as a result, it will not be covered, as the customer’s belongings are not owned, used, or rented by the business. Rather, this would be covered by a general liability policy.
If your insurance provider is claiming that you may not have coverage for a valid claim under your commercial property policy, it is in your best interest to consult with a commercial insurance coverage attorney. At Raizner Slania, our team of experienced attorneys offers free consultations to review the facts of your claim. Over the years, our trial attorneys have handled a wide variety of lawsuits and claims against national corporations and major insurance providers. We are confident we can help you succeed.
The post What is a Reservation of Rights Letter? appeared first on Raizner Slania LLP.
This is the third installment of our special, multipart series on production in paying quantities, recorded live at SMU Law School. If you missed the first two installments, they are available here (part one) and here (part two).
The divorce process can be a confusing and overwhelming affair. Understand how divorce works and what you can expect with this helpful step-by-step guide.
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Dallas Employment Lawyer Paige Melendez
There are certain skills that as we go through life we must obtain. One of those of those skills is knowing when enough is enough and it’s time to walk away. And it is a skill to be able to recognize that and act on the recognition. This skill is especially relevant in any type of legal process. The reason why is that sometimes moving forward is not the best action you can take and that’s a big decision, but hopefully some of the considerations below will help to illustrate good ways to analyze the choices made as a client.
We’ll start with an example of a situation where a big decision must be made: do you file a lawsuit?
The post Knowing When to Throw ‘Em appeared first on Dallas Employment Lawyer Blog.
Regardless of whether they are intentional, Fair Credit Reporting Act violations represent serious threats to your credit and your future. Various entities make decisions that affect your pursuits and endeavors based on privileged information that only specified people and institutions are authorized to use in particular ways.
The Debt Defenders at Ciment Law Firm help clients nationwide pursue stable financial futures and healthy credit scores. Working with an experienced debt resolution attorney can help you identify and address issues that may be silently sabotaging your opportunities behind the scenes.Read below to learn about five common violations, and contact The Debt Defenders at (833) 779-9993 today to schedule a free consultation with an experienced FCRA violation attorney. You can also take advantage of our free claim reviews.
The Fair Credit Reporting Act (FCRA) is legislation that governs how consumer reporting agencies (CRAs) and businesses or individuals that report to these “credit bureaus” can or cannot use your credit information. Your credit report can affect your ability to qualify for a mortgage, a car loan, an apartment, or even a job.
The FCRA protects the fidelity and privacy of your information while preventing its misuse or abuse by creditors, consumer reporting agencies, and others authorized to access this sensitive data. However, violations of the FCRA are common, and these crimes against you can negatively affect your credit and various aspects of your life.
It is important to be aware of these common violations and be prepared to act in your own interest when they occur. Below, we will explain five common violations of the Fair Credit Reporting Act. The Debt Defenders at Ciment Law Firm, PLLC, can help you address these issues effectively nationwide. Let us know if you encounter any of the following violations.
The information in your credit file must be accurate, as you and an authorized person or organization referencing your credit report could be harmed by inaccurate information. There are times when creditors supply erroneous information to credit bureaus when they either know or should know it is incorrect; such instances would be FCRA violations by those creditors. Some examples of inaccurate information include:
Sometimes creditors or credit bureaus fail to update your credit information after you have taken actions that changed your circumstances. Providing or reporting this old information after failing to keep your credit file current may constitute FCRA violations. Some examples of failures to keep credit records current would include the following:
In some instances, the credit information of people with similar names or Social Security numbers may become confused or mixed. It might happen when these people live in the same zip codes, when Sr. or Jr. are mistaken for each other or not specified, or when individuals with the same last name have very similar first names. Credit files may have been mistakenly combined at some point in the past, which could lead to ongoing confusion and distortions of the individuals’ credit histories in the future.
While employers, creditors, and landlords may be authorized to pull your credit report, they can only do so for permissible purposes. Some examples of impermissible purposes for pulling a credit report include:
Credit bureaus are only authorized to supply your credit report to individuals or organizations with valid needs, such as employers to which you have previously provided consent, landlords, utility companies, insurance providers, and creditors. Generally, valid reasons to access your credit report involve assessing your ability to make responsible financial decisions and timely payments. You may be entitled to damages if a credit bureau has provided this information to other individuals who do not have a valid reason to access your credit history.
You are entitled to notices when a creditor supplies negative information to a credit bureau or when an employer, lender, or creditor fails to notify you of a negative decision based on your credit report. A creditor must provide you with your credit score if it was used in any decision, and they must notify you of your right to a free credit report and the option to dispute inaccurate information.
Any creditor or any user of your credit report information cannot refuse to identify the source of credit information they have collected on you. Failures to properly notify you under any of these circumstances constitute FCRA violations.
If you have identified inaccurate information in your credit report, you should work with an experienced FCRA attorney to formally dispute the inaccuracies. There are specific actions creditors and credit bureaus must take in response to your written dispute regarding the accuracy of an item in your credit report. In short, they must conduct a reasonable investigation, correct inaccuracies, and perhaps remove the disputed debt from your credit report.
Credit bureaus must notify a creditor if you have reported a dispute. Creditors must notify every credit bureau of a dispute and provide them with corrected information following their internal investigation. They must inform you of their findings within five business days of its completion. Creditors must refrain from continuing to submit incorrect information.
Depending on the details of the dispute, the creditor’s internal investigation must be conducted within 30 or 45 days; they must also provide you with their reasonable procedure and an address where you can send your written dispute. Failures to follow proper dispute procedures may constitute FCRA violations.
Different types of damages or penalties may apply for willful or negligent violations. If you believe you have experienced any of these violations or want to work with an experienced FCRA attorney, don’t search for a “debt lawyer near me.” The Debt Defenders at Ciment Law Firm, PLLC, will help you identify and resolve your credit or debt issues.
Contact us today at (833) 779-9993 or fill out our online form to schedule a free consultation with an experienced debt relief attorney with The Debt Defenders. We can help you with your credit strategy, regardless of whether you have a valid FCRA violation case. No matter what your credit issue is, we have an option for you.
At The Debt Defenders, we apply our experience and knowledge to assist clients with various debt issues and financial legal challenges. When you choose The Debt Defenders at Ciment Law Firm, we will immediately get you on the right track with our proven three-step process that helps you resolve your debts, protect your rights, and rebuild your credit.
In Step 1, we resolve your debts. Depending on your unique circumstances, this could involve:
In Step 2, we protect your rights.
In Step 3, we rebuild your credit with 7 steps to a 720 Credit Score.
Learn more about each step and how our 3 Step Proven Process puts you on the path to financial stability.
Send us your Credit Karma report for a free claim review if your debts have been disputed, settled, or included in bankruptcy within the last year. Even if you didn’t use our firm for your original debt resolution case, you should still take advantage of our free claim review.
Copyright © 2023. The Debt Defenders at Ciment Law Firm. All rights reserved.
The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.
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Katy, TX 77494
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Today’s blog entry is a case from the Eastern District of New York, Martinez v. Gutsy LLC, here, which makes the case for why standalone websites can be a place of public accommodation providing that site is functioning for one of the purposes laid out in 42 U.S.C. §12181(7).
Once again, a person using a screen reader could not access a website. In this case, a company sold probiotic soda through its website. Defendant filed a motion to dismiss, and it is that motion that the case considers. As usual, the blog entry is divided into two categories, and they are court’s reasoning that a Gutsy’s standalone website is a place of public accommodation and thoughts/takeaways. Of course, the reader is free to focus on either category.
I
Court’s Reasoning That Gutsy’s Standalone Website Is a Place of Public Accommodation.
II
Thoughts/Takeaways
The Environmental Protection Agency (EPA) has proposed new rules that would add PFAS chemicals to the list of hazardous substances covered under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). If these new rules take effect, they will have dramatic impacts, both on consumers and public utilities. Although the EPA has made addressing the issue of PFAS chemicals a priority, the agency may be underestimating the downstream impacts of its proposed regulations. Both companies and consumers may feel the pinch of sharply increased costs as a result of these new rules.
PFAS refers to a family of chemicals that are used to make durable and long-lasting substances. They are specifically designed to be both heat- and stain-resistant. Given the durability of PFAS, some plaintiff attorneys refer to them by the name “forever chemicals.” Plaintiff attorneys allege that PFAS chemicals have been found in the ground and water supply near areas where they are used. Although PFAS chemicals are often discussed by these lawyers in the context of the imminent danger they create, the International Agency for Research on Cancer classifies PFAS chemicals as “possible” carcinogens.
Environmental interests have lobbied the federal government to take strong action on PFAS chemicals. They appear to have found an ally in the Biden Administration. As a result, the EPA has proposed drastic new rules that would extend CERCLA coverage to PFAS chemicals. The new rules may have a number of significant effects, whether intended or not.
CERCLA attempts to pass the costs of cleanup to the companies that work with chemicals and substances categorized as pollutants. The government can designate certain sites as “Superfund” sites and essentially hand the bill for cleanup to the company that they deem responsible for the pollution. Superfund designation depends on the presence of “hazardous substances.”
In September 2022, the EPA designated PFAS chemicals as hazardous substances. This classification may result in hundreds of billions of dollars in cleanup costs. There are nearly 3,000 sites throughout the United States that are known to contain PFAS chemicals. The alleged durable and long-lasting nature of PFAS chemicals means that remediation will be challenging and expensive.
The new rules could impose costs not only on the companies that make PFAS chemicals themselves but also on companies that use them in their products. The way that CERCLA is drafted could also mean that waste management and wastewater facilities that treat PFAS chemicals could also be liable for cleanup costs. Again, the alleged durable character of PFAS chemicals could mean an expensive and long-lasting cleanup effort.
If companies are made to pay for the costs of remediation, it could impose a crippling financial burden on them. One cannot expect companies to take on these costs on their own because they may not survive. Most businesses will look to pass at least part of the costs along to consumers, meaning that there could be dramatic price hikes on consumer goods during a time of already heightened inflation.
Another area that may lead to skyrocketing costs for consumers is their utility bills. Environmentalists argue that PFAS has sometimes contaminated the water supply in areas where it is used. Even though water utilities were not the ones who used the chemicals in the first place, they are often the ones who have the responsibility of absorbing the cleanup costs. Water utilities cannot be expected to foot the bill for these costs, and in many cases, they simply cannot afford them. As a result, consumers will see sharp hikes in their water bills when PFAS cleanup is required. Although the recent infrastructure bill allocated $10 billion for PFAS cleanup in water, it is not nearly enough to pay the total costs of doing so, assuming that remediation is required.
Another area where costs may be passed along to consumers is air travel. Airports have often used products that contain PFAS, such as firefighting foams. Assuming that airports must foot the cleanup bill, they will pass the costs along to the airlines, which will in turn hike airfares yet again.
One potential solution is for Congress to pass a law that clarifies the extent of the exceptions from CERCLA. For example, there is currently an exemption from CERCLA that covers PFAS in fertilizers. Although this exemption is meant to cover farmers, there is some uncertainty about how it would protect farmers from the new PFAS designation. However, given the sharp divisions in the current Congress and the controversy over PFAS, it is not likely that Congress would pass any legislation. PFAS chemicals have been a controversial issue across the political spectrum, and there are numerous differing opinions.
For now, much depends on the scope of the regulations that the EPA finalizes. Like every agency rule, the EPA has released its proposed PFAS/CERCLA rule for public comment. Once the public has commented, the agency must consider the comments and respond in its final rule. Hopefully, the EPA will take the above factors into consideration, but its flexibility may be limited by CERCLA once it finalizes these rules. The EPA could use its discretion in enforcing the rules, but the current agency leadership seems inclined to make a broader sweep when it comes to PFAS cleanups.
In the meantime, one can expect these rules to be challenged on multiple legal fronts if and when they are finalized. Courts have recently shown a willingness to curtail agency action that reaches too far without Congressional authorization. However, they choose to act, rest assured that the end result of the actions taken by the EPA, Congress, and federal courts regarding the EPA’s new CERCLA plan could have drastic impacts on companies and consumers.
The post EPA’s New CERCLA Plan Could Have Wide-Reaching Implications appeared first on MehaffyWeber.
If there is one thing that I can say with any certainty on this blog is that the world is constantly changing. Just when it feels like things are beginning to slow down for you or your family, in the blink of an eye a circumstance or other aspect of your life can change. Whatever it may be, we humans have learned to become flexible with major changes in our lives. When it comes to making changes as a result of a divorce, we see that you may have needed to re-adjust to life as a single adult. Part of that adjustment period is the ability to succeed in life with the divorce orders you were awarded in the divorce itself.
The orders that you negotiated for or were handed down from the judge in the divorce are the key to understanding what to make of your life post-divorce. For many people, those orders will be ok for years after the divorce. If these orders suit you and your family well then you do not need to give them a second thought. You can adjust your life to live within the confines of those orders and move on with the rest of your life to better account for whatever life throws at you after getting a divorce.
On the other hand, change is inevitable, and you may find yourself in a position where you are needing to change your court orders to match up with the circumstances that are now your reality. For you to be able to feel good about your life you may want to update your court orders to reflect the life of you and your children. What was true a decade ago may no longer be true as far as what suited you all best. Now you may find yourself in a position where you need to seriously look at your life and reestablish what is best for you and especially what is best for your children.
That is what we are going to discuss in today’s blog post from the Law Office of Bryan Fagan. I would like to talk with you all about the process for modifying a final decree of divorce here in Texas. The answer to the question of whether it is possible to modify a divorce decree is, yes, you can do that. However, the devil is in the details, and you need to be aware of the limitations, process, and structure of how you can best go about making those changes.
We are going to discuss how to manage this type of modification if that is something you want to pursue. A modification of a divorce decree is not the same thing as filing a second divorce. There are different elements to the case and different considerations that you must make to be successful in this type of matter. It does not make sense to file for a modification and to hope that you can win. Rather, if you are going to spend the time and money to file for a modification you would want to make sure that all signs point to you winning the case.
With that in mind, there is no greater advantage that you can acquire for yourself in a modification case than to have an experienced attorney assisting you, walking with you, and advocating for you and your family. Even if you didn’t have an attorney in your divorce there are distinct advantages in a modification case that you will gain over a person who files for a similar modification but does not have an attorney by their side. At this level, you want every advantage you can gain. Hiring an attorney is a short-term investment into your long-term future and to your future relationship between you and your children if you are a parent.
If you have any questions about the material contained in this blog post, you can contact the Law Office of Bryan Fagan. We have three Houston area locations where we would be honored to host you for a free-of-charge consultation. Or, if you would prefer a virtual meeting with an attorney, we can schedule you for a video appointment. Finally, the phone works for us, too. A quick phone call on your lunch break or on the way home from work can go a long way toward helping you gain some insight and perspective on a difficult family law situation that you may be facing. Or you may be interested in learning more about the possibility of filing a modification based on your divorce from a few years ago.
No matter where you are concerning your family law-related matter, the attorneys with the Law Office of Bryan Fagan want to be able to meet you where you are and assist you in moving forward now or in the future with a modification, child custody, divorce or any other sort of family law case. We focus our practice on family law because that is where we believe we can make the largest possible impact in our community in a meaningful way. To learn more about our practice and what can offer you as a client please contact us today. A free-of-charge consultation is just a phone call away.
As we alluded to at the beginning of today’s blog post, it is no secret that your life is probably different now than it was a few years ago when you went through a divorce. For some families, a significant change in circumstances may have happened immediately after the divorce ended. Or your family may have remained virtually unchanged for years after your divorce until something happened that changed all that. No matter what circumstance looks more like what you are going through we want you to understand that there are some characteristics that you need to be aware of before moving forward with a modification.
When it comes to modifications after a divorce most of the time the requested modification has to do with minor children. If that is the case your chances of something changing from the time of your divorce to now increase dramatically. The reason being is that children grow up and see parts of their lives shift and evolve more so than adults. Adults tend to be in a more consistent place than a child. If your child was 5 when you got divorced but is 15 now, then odds are several things are different about him or her compared to back in the day when you got your divorce. We would need to examine the reason why you think a modification of your divorce decree is necessary for connection with your children.
The rule for a modification is that there must have been a material and substantial change in circumstance that has developed which would otherwise lead to your prior court order not being workable. This is important because the material and substantial change are more significant than just any change that you could envision. No doubt- there is probably a small change that has occurred in your life within the week that your divorce decree was issued. However, small changes in your circumstantial changes are not what your modification should be based on. Rather, we need to see substantial changes in a circumstance that materially impacts the course of our lives as a family. That material change in circumstances could have occurred in your life, your ex-spouse’s life, or in the life of one of your children.
You would allege the material and substantial change in circumstances in an affidavit to the judge. An affidavit is a sworn statement under oath. You complete the affidavit laying out your position as to what material and substantial change are, and how it has impacted your family and then you would file that along with your petition to modify your divorce decree. The court that issued your divorce decree would review your affidavit to determine whether there is a material and substantial change as you allege. Assuming that there is, your modification would be accepted, and you would then have to serve your ex-spouse with notice of the lawsuit.
Service most likely means personal service to your ex-spouse. Hiring a private process server or law enforcement officer to facilitate this step is how most people in your position would choose to proceed. Once the process server successfully serves your ex-spouse proof of the service would be filed with the court and your ex-spouse would respond with an Answer. The rest of the case would develop according to how the circumstances dictate. Meaning: you all would probably be going to mediation as a next step.
One of the most important parts of any family law case is the opportunity to attend mediation. Mediation involves formal settlement negotiations with a neutral, third-party mediator. Often the mediator is a practicing family law attorney who also works in the field of mediation. When you plan to attend mediation, the goal is to conclude the case with a settlement negotiation rather than having to go to a contested hearing. This allows you and your ex-spouse to control the proceedings. This is usually a better set-up for success as opposed to having a family court judge issuing rulings based on their limited interactions with your family. Even if you and your co-parent are not seeing eye to eye on much of anything now you all still know your family circumstances better than a family court judge.
When you attend mediation, it is especially useful for you to have an idea of what you want to get out of the case. Not in a general sense but with the specific plans that you have for yourself and your family after the case is done. Being intentional with goal setting and how you negotiate is critical to your success. We underestimate the extent to which an eye for detail and a specific plan can make up for a lot of other deficiencies in a case. Focusing on what you need to do to position yourself well for mediation is important as well. Sitting down with your attorney to develop a strategy, discuss your goals and talk about how to make counter proposals and other settlement offers is just as important as planning for a trial.
One of the parts of a modification case is to decide whether mediation even makes sense given your goals and circumstances. If you are pursuing a modification of your child custody schedule, then mediation would seem to be a productive use of your time. Many times, your ex-spouse can talk through different options that you could pursue and decide to approach the case from a different perspective than you had intended to. There can be a middle ground in a modification case just like there likely was a middle ground in your divorce. It is just a matter of finding that middle ground with your ex-spouse and being open-minded to think about your options and different courses of action that you could pursue.
On the other hand, you and your ex-spouse may be in a situation where a settlement is unlikely or not possible. For example, let’s assume that you are asking for a geographic restriction to be lifted from your court orders to allow you to take a new job in a different city that is beyond the geographic area where your children can now reside. This is a substantial modification request given that a geographic restriction imposes significant limitations on where a child can live. Therefore, if you are the primary conservator of those children and are asking to have the geographic restriction lifted that could potentially put your Co-parent in a position where he would need to move, as well.
Your desire to have the geographic restriction lifted has everything to do with a new job and new opportunities in a different place. Either you can have that geographic restriction lifted and be able to move where you would like to take the new job, or the geographic restriction will not be able to be lifted. This is what I mean by there not being very much middle ground in this case. It is not as if you can have half of the geographic restriction lifted and leave the other half in place. In a situation like this, you would very likely be unable to mediate your way out of the situation. The other consideration would be if you would be willing to change your goals during the case and instead focus your attention on a different part of your final decree of divorce.
if you are unable to settle your modification case in mediation then you and your ex-spouse would need to attend a modification hearing in court before the judge. In this hearing, you would collect evidence and with your attorney would present your case to the judge as to why your requested modifications should be granted. Even though this is commonly referred to as a hearing it is a trial in every sense of the word. Being able to offer evidence and have admitted into the record documents and other physical evidence is difficult. For that reason, we recommend that you have an experienced family law attorney walking with you during the case. To go all the way to a hearing and not be able to express yourself fully and present the best care possible would be a major disappointment, to say the least.
A judge would consider all the evidence presented after a hearing. The judge would need to consider whether a material and substantial change have occurred in the circumstances of your family sufficient to justify the modification that you are requesting. The physical, emotional, and mental well-being of your child would need to be considered along with the future of your relationship with your child as well as that of your ex-spouse.
These are only a few of the considerations that the judge must think about when it comes to a material and substantial change. Next, even if the court finds that a material and substantial change has occurred it would still need to determine that the requested relief would be in the best interests of your child. To effectively navigate these choppy waters in a complex modification case you need to be prepared and resilient. Having an experienced family law attorney by your side can be a huge help to any family going through a complex modification.
if you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of divorce for a child custody case.
Riding a bike is a convenient form of transportation and a great way to get some exercise. But, if you’re going to ride your bicycle on the streets, you should know that laws apply specifically to you. These laws are designed to keep motorists and cyclists safe while sharing the road. Be sure to learn and understand the laws that apply to cyclists on the road before you set out. If you get into a collision, speak to an experienced bicycle accident attorney in San Antonio as soon as possible. These laws include the following:
Cyclists, just like cars, are required by law to stop at stop signs and red lights. This is for your safety. If you don’t stop at a stop sign, a driver may be already making a turn, not see you coming, and can hit you. And because as a cyclist, you are much more vulnerable than a vehicle passenger, you will likely be hurt.
Let others on the road know your intentions by using hand signals. For the same reason cars are required to signal their intentions – to let others know what move they are going to make – you need to do this too. Doing so could prevent an accident.
The following signals should be used by bicyclists:
Make sure your bike has a white light on the front and a red reflector or light on the rear. This is especially important if you are riding while it is dark out. These lights mimic the headlights and tail lights of a car and help other motorists to see you in low light conditions.
The headlamp or white light on the front of your bicycle should be visible from at least 500 feet in front of you. The red light or reflectors on the rear of your bike should be visible from 300 feet behind (reflector) or 500 feet behind (light).
When riding on the road, ride near the curb, or in the bike lane if available, and go in the same direction as the other traffic. This allows you to have a safe amount of distance from vehicles on the road and avoid causing accidents by riding with the flow.
These laws are a few of the most important laws that apply to bicyclists on the road, but there are several more. As a bicyclist, it is your responsibility to study, know, and understand all the rules that pertain to you on the road so that you may operate your bicycle in the proper manner and keep yourself safe. A bicycle and car accident lawyer in San Antonio can assist you if you are harmed due to the negligent actions of another biker or motorist.
The post Texas Bicycle Laws You Should Know appeared first on Hill Law Firm.
If a family member has died intestate (without a will), what are the next steps to transferring the property of the decedent’s estate? Probate can be overwhelming and an expensive process. Currently, any executor, administrator, or guardian in Harris County must be represented by counsel. What options are there if the estate is small and only consists of property that amounts to $75,000 or less? Probate may not be required in this case if the transfer of property qualifies for a Small Estate Affidavit.
Does the estate qualify for a Small Estate Affidavit?
The Texas Estates Code Chapter 205 covers what is required in order to qualify for a Small Estate Affidavit in detail. Some important qualifications include:
· The decedent must have died intestate.
· It has been over thirty days since the decedent’s death.
· The decedent left no more than $75,000 in property. (This does not include the decedent’s homestead and exempt property).
· The decedent’s assets must be worth more than the debts.
· All the distributees must be able and willing to sign the affidavit along with two disinterested witnesses. The witnesses must sign in front of a notary.
· There is no appointment of a personal representative.
· The title of the decedent’s homestead can only be transferred to the surviving spouse or minor child who were homesteading with the decedent when the decedent died.
· The affidavit cannot be used to transfer title to real estate that was not considered the decedent’s homestead.
Cons.
Even if the Small Estate Affidavit seems like a perfect fit for your situation, there are some cons you should keep in mind. Some banks, especially those outside of Texas, may not accept a Small Estate Affidavit. They may want to see Letters Testamentary or Letters of Administration before they will assist as they are not familiar with Texas laws.
The court also does not have to accept the Small Estate Affidavit, even if it meets all the statutory requirements. Different courts also have specific requirements regarding the Small Estate Affidavit so you will want to review your courts processes before deciding whether this is the right step forward for you. While you may save money by not hiring an attorney to complete this form, the filing fee can be costly and, as stated above, the court does not have to approve a Small Estate Affidavit even if it meets all the statutory requirements.
Approval.
Once this Small Estate Affidavit is approved by the court (usually through an ‘Order Approving Small-Estate Affidavit’), a certified copy of the affidavit can then be used to collect estate assets and transfer title to the homestead to the decedent’s spouse or minor child. These assets can also be used to pay any debts remaining from the estate.
If the Small Estate Affidavit seems like the right fit for your needs, you can access a fill-in-the-blank copy here, provided by Harris County Probate Court 1. This packet also includes further instructions on how to fill out each section of the form. If you are outside of Harris County, you can access a list of county-specific Small Estate Affidavit forms (if they are available) and more information about Small Estate Affidavits from TexasLawHelp.org.
If you are unsure whether a decedent’s estate qualifies for a Small Estate Affidavit or if you have any questions on how to fill out the form, please seek advice from an attorney.
Further Resources:
What is a homestead?
Small Estate Affidavit Toolkit
Small Estate Affidavit not the right fit? Here are other ways property can be transferred after death.
The phone rings in your office on a Tuesday afternoon at 1:14 p.m. The CEO of your favorite tech giant client sounds unnerved:
“My son is on his way to the police station. They want to talk with him at 2, but they’re not saying why. Our son has heard rumblings on social media he was inappropriate and forceful with a girl at a party—but he insists everything was consensual. I thought he should tell his side to the cops but then I was wondering if maybe he should talk with a lawyer first?”
The CEO spits questions at you: “Is he a rape suspect?”
“Are they going to arrest him?”
“Don’t they have to tell him the accusation first?”
And on and on … But you’re a big shot M&A lawyer, not a criminal lawyer.
What can you possibly do in the 46 minutes remaining before the police expect the CEO’s son to arrive for a discussion?
Don’t Worry About Malpractice
For a criminal defendant to prevail in a malpractice claim they must prove they are actually innocent of the original charges. (See Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995).)
A criminal defendant would have to be convicted or charged due to the negligence of counsel and then have that conviction overturned to bring a successful case. If you are not involved in the plea negotiation or trial of the case, then civil exposure is farfetched.
Putting on a Criminal Lawyer’s Hat
Several rules in the Texas Rules of Criminal Procedure and the Texas Rules of Evidence make practicing criminal defense special. When dealing with a criminal case, a lawyer must “change hats” and think like a criminal defense attorney.
One-Sided Litigation
Don’t assume the state either (1) has present knowledge of all the facts known by your client of an alleged crime; (2) will inevitably learn of such facts; and/or (3) has a legal right to discover facts unknown to them.
An accused has the right to remain silent under the 5th Amendment. Texas Code of Criminal Procedure Art. 39.14 governs discovery and that provision is unilateral. The state is not ordinarily entitled to depositions, interrogatories, or production of evidence.
Texas Rules of Evidence § 503(b)(2) is the “Special rule of privilege in criminal cases,” and is as follows:
In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. (Emphasis added).
When compared to the general attorney-client relationship rule of privilege as defined by 503(b)(1), which states in relevant part, “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating … legal services,” the attorney-client privilege in the criminal case is infinitely broader. If taken to its logical extreme, the mere fact an attorney represents someone on a criminal matter could be argued as privileged. Put it this way—wouldn’t the police be very interested to know an unknowing suspect went to a criminal lawyer’s office?
Criminal counsel’s main goal is to cut off the main source of oxygen of a criminal prosecution—information from the accused.
Understanding Police Investigations
Many of us are programmed from birth to talk our way out of trouble. We are raised to believe that when we’ve done nothing wrong, people will take us at our word. We also think if we admit to making mistakes, others will understand and be fair with us.
It’s tempting to act based on these assumptions. What we don’t understand is some people won’t take us at our word, especially if they think we’ve committed a terrible crime. We also assume our version of taking responsibility might include an apology, but we don’t realize police or prosecution’s version of responsibility might be 20 years in prison.
I like to think of investigations in two different ways. First is a linear investigation for most simple crimes where the elements and facts are usually straightforward. Police just want to check the box for each element in a linear investigation (think shoplifting or DWI). Second are “360-investigations,” which are the complex investigations such as murder, sexual assault, or drug rings (think CSI).
Remaining Silent and Invocation of the Right to Counsel
Most investigations are linear due to the relative simplicity.
Advising a client to remain silent—even if only for the immediate situation—is what any novice criminal law practitioner should do in the vast majority of situations. There is nothing ethically or legally flawed by advising a client to invoke their 5th Amendment right to remain silent as well as their 6th Amendment right to counsel.
People fear making the police angry. They also fear invoking the right to counsel looks bad or arouses suspicions. These fears are understandable and not entirely unfounded—but the police are probably already suspicious, which is why they’ve called in the first place. A skilled lawyer talks with police, humanizes their client, and diffuses these suspicions.
Investigations With Detectives or Other State Actors
The Disciplinary Rules of Professional Conduct require lawyers to have honest dealings with everyone. Deception can be a legitimate law enforcement tactic, though. Police can do things like infiltrate the mafia, run prostitution stings, or pretend to be a 12-year-old to trap online predators.
Your client is more than likely no match for a police interrogation, particularly if they are teens or young adults. (Owen-Kostelnik, J., Repucci, N.D. & Meyer (2006)); see also Testimony and interrogation of minors: Assumptions about Maturity and Morality. American Psychologist, 61(4), 284-304.) Even adults regularly succumb to natural instincts to obey authority. Police are highly polished and trained in leveraging their authority to get suspects talking and giving incomplete or poor answers to surprise questions. Detectives frequently use the Reid Technique of interrogations and its variations, or the 5-step Preparation and Planning, Engage and Explain, Account, Closure and Evaluate, or PEACE Method. (See e.g. Cameron v. State, 630 S.W.3d 579 (Tex., Crim. App. 2021).) In any event, law enforcement usually has a plan.
The Feds
Some initial interactions with federal authorities can affect the government’s charging decisions and potentially sentencing well down the road. If your client is under federal investigation and you’re aware of it, then obviously get it to a criminal lawyer quickly.
Can’t the Accused Talk Their Way Out of Trouble?
Sure. But remember a vague police officer is probably being so for a reason—usually to retain the element of surprise over a suspect. Professional police officers in search of the truth shouldn’t care whether it comes from an accused or his/her lawyer. An officer insisting on a one-on-one with your client alone probably thinks they already know the truth, and your client might be arguing with the drink machine that stole his dollar about their innocence.
“But I’m Innocent and I Can Handle This”
Let’s say your client gives a statement like this: “It was a weird vibe. My buddy and I got to the party, and I don’t even think I finished my beer. A few people were looking at us funny, so he and I left.”
Here’s how the police report might summarize your client’s statement: “Suspect admitted entering the house.”
Get the picture? Confession or not, don’t give any oxygen to the fire.
What Should You Do if the Police Are There With Your Client?
Most on-view arrests don’t trigger a right to counsel such as DWI or domestic assault. Police also aren’t big fans of letting suspects make phone calls to lawyers on the side of the road. If this happens, though, tell your client to behave but remain silent. Tell them to comply with any police commands but not to consent to anything optional such as a search or an interview.
Never allow a client to give police cellphone or computer passwords voluntarily. Cellphone and computer examination are hot topics of search and seizure law, and your client does not want to agree to a fishing expedition by police.
What Happens Next?
Get the case to experienced criminal counsel who is comfortable dealing one-on-one with law enforcement. Some of the warmest “thanks” you might ever get are from helping someone in the most terrifying moment of their lives or the life of their loved one … all because you kept cool and knew what to do in those 46 minutes.
Jeremy Rosenthal is a senior partner at Rosenthal, Kalabus & Therrian, one of the largest criminal defense law firms in Collin County. He has tried over 250 cases and is a former prosecutor in Collin County. Rosenthal had cases both at the Texas Supreme Court and the Texas Court of Criminal Appeals. He is the past president of the McKinney Bar Association, a former board member of Texas Criminal Defense Lawyers Association and serves as an assistant editor for the Voice for the Defense magazine. Rosenthal graduated from SMU Dedman School of Law in 2000 and earned his undergraduate degree from Texas Tech University in 1997.
