Originally published by Kelce Wilson.
How familiar are you with the “encryption exception” in the EU General Data Protection Regulation and some U.S. state laws? Kelce Wilson It can be used to exempt a company from breach reporting and notification obligations if data was encrypted and the key had not also been compromised. The GDPR identifies the exception […]
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Michael Cohen.
Some courts are more liberal than others in their determination if the proponent of the Will is in default. Usually, courts require all potential heirs at law to be at least notified prior to admitting the Will. It is often necessary to probate the will (even if after four (4) years) if the pattern of disposition under the Will is different than under the laws of intestacy (if the deceased had no will). For example, if a married couple purchased a home together but the spouse that dies first had children born from a different relationship, then under laws of intestacy the children of the prior relationship would own an interest in the home even though the Will indicates “all to spouse” unless the Will is probated (the court issues an order that the Will is valid). Many simply wrongfully assume that if they purchase the property together, it automatically passes to the survivor.
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The post CAN I PROBATE A WILL AFTER FOUR (4) YEARS? appeared first on Dallas Elder Lawyer.
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Originally published by David Coale.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Mike Northrup.
There’s a perception in some appellate circles that if the court of appeals has issued a “memorandum opinion,” the chances of getting review by the Supreme Court of Texas are minuscule. A look at the supreme court’s statistics might change a few minds.
To give some perspective, first consider what it means to have a “memorandum opinion.” The Texas rules of appellate procedure allow intermediate courts of appeals to designate written opinions as an “opinion” or a “memorandum opinion.” In general, if the issues decided by the court are settled under existing law, the court should use the “memorandum opinion” designation. But the “opinion” label should be used when the court (1) establishes a new rule, alters an existing rule, or applies an existing rule to a novel set of facts; (2) addresses issues of constitutional law or other legal issues important to the jurisprudence of the state; (3) criticizes existing law; or (4) resolves an apparent conflict of authorities. Faithful application of this test to each appeal results in a sorting of cases into those that are mundane because they don’t plow new ground (memorandum opinions) and those that are significant because of the nature of the issues resolved (opinions). The Texas Supreme Court accepts only cases that are important to the state’s jurisprudence, so one would expect to see a strong bias in favor of the “opinions” over “memorandum opinions.”
The breakdown of granted petitions for the 4-year period from 2014 through 2017 shows that approximately 1/3 of the petitions granted involved memorandum opinions. In 2016, the percentage was approximately 40% of the total petitions granted. Those percentages are strikingly high if memorandum opinions are supposed to be reserved for mundane settled legal questions. The percentages may give practitioners hope that an opinion labelled as a “memorandum opinion” is not the end of the appellate road.
The post The Texas Supreme Court’s Docket, Part 3 appeared first on Reverse & Render.
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Originally published by Thomas J. Crane.
In a recent decision, the Fifth Circuit addressed the turbulent area of non-solicitation agreements. Michelle Moffitt-Johnston used to work for GE Betz, Inc. GE Betz applied chemicals to fuel prior to export. Ms. Moffitt-Johnston signed a non-solicitation agreement with GE Betz during her employment, in which she agreed to not solicit Betz’ customers for up to 18 months after any resignation or termination. After some ten years with GE Betz, Ms. Moffitt-Johnston resigned in 2012. Soon after, she started working for AmSpec Services, a competitor of GE Betz.
GE Betz had installed monitoring software on its worker’s computers. Monitoring logs on Ms. Moffitt-Johnston’s computer showed suspicious activity in the weeks leading up to her resignation. Days after she had announced her departure, someone using her computer downloaded some 27,000 files to an external hard drive. The evidence regarding this download was disputed. Plaintiff Moffitt-Johnston said this was the GE Betz IT department doing back-up, while the employer claimed Ms. Moffitt-Johnston had use of the computer at the time.
GE Betz admitted it had no smoking gun evidence that Ms. Moffitt-Johnston had solicited customers. Instead, it relied on a “mosaic” of evidence. The “mosaic” essentially consisted of AmSpec’s success with the customers who were included in an email from Moffitt-Jounston to AmSpec on her last day at work. But, as the court noted, it is just as likely that those customers worked with AmSpec because their cost was lower. “Many” but not all of Moffitt-Johnston’s former clients went with AmSpec. The Fifth Circuit affirmed the grant of summary judgment on the mis-appropriation of trade secrets claim. For similar reasons, the court also affirmed summary judgment regarding GE Betz’ claim for tortious interference with prospective business relationships.
To recover her attorney fees, Ms. Moffitt-Johnston relied on the Texas Covenants not to Compete Act (Tex.Bus.&Com.C. Sec. 15.50). The act requires several factors before a court could award attorney’s fees to the employee. One of those factors involved whether the employer knew the non-solicitation agreement included no geographic limitation. The GE Betz non-solicitation agreement was silent regarding any geographic limits. And, Texas jurisprudence provides, said the Fifth Circuit, that a limit regarding one’s customer base is reasonable – even if no geographic limit is specified. So, found the appellate court, it was not clear that the employer knew its non-solicitation agreement had no geographic limit. The Fifth Circuit then agreed the employee was not entitled to recover her attorney fees. See the decision in GE Betz, Inc. v. Moffitt-Johnston; AmSpec Services, LLC, No. 15-20008 (5th Cir. 3/13/2-18) here.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Kacy Miller.
U.S. District Judge Amy J. St. Eve and Gretchen Scavo, her former law clerk who now oversees attorney training at Winston & Strawn’s Litigation Department, wanted to know what actual jurors liked – and more importantly, didn’t like – about trial attorneys. Between 2011 and 2017, they gathered unfiltered written feedback from more than 500 jurors in the Eastern Division of the Northern District of Illinois (Chicago), primarily from cases in Judge St. Eve’s court. After trials wrapped up, jurors were asked to complete a voluntary, anonymous survey, the results of which were analyzed and recently published by the Cornell University Law School Law Review in a report titled “What Juries Really Think: Practical Guidance for Trial Lawyers.”
Nothing in the article surprised me, but that’s likely because I have spent thousands of hours over the course of my 20-plus-year career conducting shadow juries, post-trial interviews, and debriefing mock jurors. What the study found is consistent with my experience in trial venues across the country and gives credence to what many jury consultants have been advocating for years. Since the vast majority of folks in the legal industry aren’t fortunate enough to log this volume of face time with jurors, I thought it was absolutely worthwhile to share some of the article’s more noteworthy tidbits.
The feedback, once analyzed, fell into four main categories:
Because there’s just so much meat in this study, I’ll share their findings and my analysis of them over the next four blog posts. For now, let’s talk about the importance of organization and preparation.
Here are some samplings of actual jurors’ quotes – taken straight from the study – about attorney preparation and organization:
As I said, given the opportunity, jurors will tell it like it is. Based on the article data, and my own experience, here are a few tips to help you maximize those “likes” regarding your organization and preparedness.
This may seem obvious, but it bears repeating. Organization, for jurors, is often something as simple as having a clean and tidy desk area. Is this an annoyance during the throes of trial? Absolutely. But it matters to jurors. At the very least, start and end the day with your workspace looking as though you were a guest and are not returning. Leave it clean enough for someone else to come in and use not only counsel table, but the surrounding areas as well. It communicates respect not only for the court, but respect for yourself and your client as well.
If you happen to be trying a case with a judge who does not preadmit exhibits, avoid “winging it” with your exhibits when questioning a witness. Nothing irritates a juror more than having to wait for counsel to dig through a box looking for the proper exhibit, or to wait while counsel asks an assistant to retrieve and deliver a document. (And if the attorney is male and relies on a female to hand over the documents, that’s a whole different perception problem.)
Bottom line: Do your homework before entering the courtroom each morning. Use whatever system works for you, but we suggest having one single file folder per exhibit, labeled, with the proper number of copies, and sorted in a manner that follows your outline. Yes, it only takes seconds to go dig through that box, but trust me, those seconds have a big impact on juror perceptions. And it’s rarely a positive one. (This is yet another reason to use Trial Director, or a comparable presentation system, in the courtroom, but we’ll address the importance of technology later in the series.)
While some lawyers may assume things like stipulations have zero relevance to jurors, think again. Multiple jurors wished counsel for all parties would stipulate to a greater number of facts. Obviously, this isn’t feasible in every type of case, but in the event there arefacts that both sides can agree upon, there’s really no need to belabor the points any more than necessary for the appellate record. Agree to agree, address the issues as succinctly as possible, and move on to the facts actually in dispute.
Jurors also notice those pesky little sidebars. Some perceived them as a “waste of time,” while others saw them as a sign that counsel was unprepared and disorganized. Sidebars will always be necessary, but use them wisely: jurors are watching … and trying hard as hell to lip read.
When possible, consider raising the issue during a break, or create a situation that prompts the judge to request counsel up to the bench (as opposed to counsel requesting the sidebar discussion). One juror in the survey noted that counsel was disrespectful of their time by requesting a sidebar so soon after a break. And juror perceptions sometimes have hints of something duplicitous. In multiple post-trial interviews, jurors have voiced a belief that an excessive use of sidebars is nothing more than an intentional attempt by counsel to keep the jury from learning the truth. Ouch.
Bottom line: If you really need a sidebar, request one. If you don’t, keep calm and carry on.
What this study brings home for lawyers is that, although it’s crucial to have the facts and the law on your side, jurors notice a world of issues that have little to do with the facts or the law. So, when preparing for trial, it is absolutely essential to make sure your “style” is as good as your substance.
Speaking of style, next time, we’ll tackle the “Style and Delivery” portion of the Cornell study.
The post What Jurors Really Think, Part 1: Organization appeared first on CourtroomLogic.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Rich Phillips.
Posted by Rich Phillips and Emily Fitzgerald
In its weekly orders on Friday, May 25, 2018, the Texas Supreme Court issued opinions in five argued cases. This leaves the Court with 22 cases to decide before the end of June if the Court is going to continue its trend of clearing out its docket each year before the summer recess. So, the next few Fridays will likely be busy. One common theme in these five cases is unanimity; there were no separate writings. That trend will likely change over the next month. Also, the Court has granted only two cases so far for next term, so there may be new grants to report on before the summer recess as well.
The cases from May 25 are:
No. 14-1057, Benge v. Williams — In this medical-malpractice case, the primary issues are (1) whether plaintiff’s expert was qualified to testify and (2) whether the trial court should have instructed the jury not to consider the primary surgeon’s failure to disclose that the resident who would be assisting with the surgery had never performed the procedure before when the plaintiff had conceded that this failure to disclose did not proximately cause her injuries. In a unanimous opinion by Chief Justice Hecht, the Supreme Court held that the expert was qualified to testify and that the trial court erred by failing to give the instruction requested by the surgeon. On the first issue, the surgeon argued that the plaintiff’s expert was not qualified because he was not “practicing medicine” as defined by the Texas Medical Liability Act. The Court held that although the plaintiff’s expert was not currently seeing patients, he was licensed in Texas, had extensive experience with the surgery at issue, was teaching at a school in South Korea, and was consulting with other physicians regarding the surgery at issue in the case. The Court reiterated that the TMLA’s test for experts should not be too narrowly drawn and found there was sufficient evidence for the trial court to conclude that he was qualified to testify. On the second issue, the Court held that the trial court should have instructed the jury not to consider what the surgeon did or did not tell the patient about the resident who helped with the surgery, because the plaintiff expressly disclaimed any argument that the surgeon failed to obtain informed consent. Since the lack of disclosures about the resident was repeatedly mentioned during testimony and during the plaintiff’s argument, the Court held that the jury could have found the surgeon negligent based on this theory that the plaintiff had disclaimed. Therefore, the failure to instruct the jury not to consider it was harmful under the reasoning of the Court’s decision in Casteel and its progeny. Accordingly, the Court reversed the judgment and remanded for a new trial.
No. 16-0412, TRO-X, L.P. v. Anadarko Petroleum Corp. — In this oil and gas case, the Supreme Court held that when a lessor and lessee under an existing lease execute a new lease of the same mineral interests that are subject to the existing lease, the existing lease is terminated unless the new lease objectively demonstrates both parties’ intent otherwise. In 2007, TRO-X executed leases that contained offset-well clauses, requiring TRO-X to drill offset wells in certain circumstances and providing that if TRO-X failed to drill a required offset well, TRO-X had to release a specified portion of the land upon lessors’ demand. TRO-X later transferred its interests in the 2007 Leases to Eagle Oil & Gas Co., subject to a “back-in” option if Eagle Oil reached a specified production payout. The transfer also contained an “anti-washout” clause that provided that TRO-X’s back-in option would extend to any renewals, extensions, or top leases taken within one year of the termination of the current leases. Eagle Oil eventually assigned the 2007 Leases to Anadarko. Anadarko failed to drill a required offset will, and the lessors demanded Anadarko surrender the specified portion of the property. Anadarko concluded that due to the breach of the offset-well clause, the leases on the acreage the lessors demanded had terminated. Anadarko then entered into new leases with the lessors in June 2011 that covered the same interests as those that were covered by the 2007 Leases. The 2011 Leases did not mention the 2007 Leases or TRO-X’s interest in the 2007 Leases, or contain language releasing the 2007 Leases. TRO-X sued Anadarko, arguing that the 2011 Leases were top leases and were therefore subject to TRO-X’s back-in interest. Much of the dispute centered on which party bore the burden to establish the nature of the 2011 Leases. In a unanimous opinion by Justice Johnson, the Court held that a party contending that a new lease did not terminate the previous lease has the burden to prove and obtain a finding that the parties intended for the previous lease to survive the execution of the new lease. The Court noted that the proof must be either specific language in the new lease objectively demonstrating that intent, or an ambiguity in the new lease as to the termination of the previous lease together with evidence that the parties did not intend the new lease to terminate the prior lease. Ultimately, the Court determined that TRO-X failed to show that the 2011 Leases contained language evidencing that the parties intended the 2007 Leases to survive the 2011 Leases’ execution. Therefore, the 2011 Leases were not top leases and they terminated the 2007 Leases.
No. 16-1005, Tarr v. Timberwood Park Owners Ass’n, Inc. — This case addresses whether short-term rentals of a house (such as through sites like VRBO or Airbnb) causes the owner to violate restrictive covenants that limit use of a property to single-family residences and that require that tracts be used solely for residential purposes. Petitioner Tarr listed his single-family home on VRBO and over a period of about five months entered into thirty-one short-term rental agreements of between one and seven days. He formed an LLC to manage the rentals and paid both state and local hotel taxes on the rental income. The homeowners association sent a notice asserting that his use of the house violated the single-family residence restriction. Tarr eventually sued the association for a declaratory judgment that his activities did not violate the restrictive covenants. In a unanimous opinion by Justice Brown, the Court held that Tarr did not violate the restrictive covenants. The Court declined to resolve an open issue regarding the historical, common-law approach to restrictive covenants (which holds that they must be strictly construed) and a statutory command in Property Code section 202.003(a) (which instructs that they be “liberally construed to give effect to [their] purposes and intent”). Under either construction, the Court concluded that there is no way to read the restrictive covenant here to bar short-term rentals. Because there was no dispute that Tarr’s house was a “single-family residence,” the Court found that his use did not violate the single-family residence restriction. The Court then construed “residential use” and found that it refers to the activities carried on by the occupants of the property. Because the restrictive covenants did not require the single-family residences to be owner-occupied or otherwise address leasing, use as vacation homes, short-term rentals or anything similar, the Court found that the covenants did not restrict Tarr’s ability to engage in short-term rentals of the house.
No. 17-0130, Texas Workforce Comm’n v. Wichita County, Texas — In this statutory-construction case, the Court was asked to resolve a narrow issue: whether an employee who is on unpaid leave under the Family Medical Leave Act is “unemployed” as that term is defined in the Texas Unemployment Compensation Act. Julia White, an employee of Wichita County, went on paid leave under the FMLA due to severe anxiety and depression and then unpaid leave when her accrued paid leave ran out. Eventually, White returned to work in a different position, but during her period of unpaid leave, she applied for unemployment benefits. The County argued that White was not eligible for unemployment benefits because she was not “unemployed” under the Texas Unemployment Compensation Act. In a unanimous opinion by Justice Lehrmann, the Supreme Court held that under the unambiguous language of the act, White was “unemployed.” The definition of “totally unemployed” under the act is that a person does not perform services for wages in excess of the greater of $5 or 25% of the benefit amount. Under this definition, White was unemployed during the period she was on unpaid leave. Because there are other requirements before an unemployed person is eligible for unemployment benefits, the Court did not address the County’s argument that the definition of “unemployed” leads to an absurd result. The Court repeatedly made clear it was not deciding whether White could obtain unemployment benefits, only whether she met the statutory definition of “unemployed,” which is just one part of the qualifications for benefits.
No. 17-0146, Bosque Disposal Sys., LLC v. Parker County Appraisal Dist. — In this property tax dispute, the Supreme Court held that, when valuing land that contains a saltwater disposal well, assigning separate appraisal values for the well and the surface is not double taxation. The taxpayers own properties in Parker County that contain saltwater disposal wells, in which wastewater is injected deep underground and permanently stored in the subsurface rock. The Parker County Appraisal District issued separate assessments for the saltwater disposal wells and the surfaces of the tracts. The taxpayers challenged these assessments, arguing that the Tax Code does not permit the county to appraise the wells separately from the land itself when the interests are both owned by the same person and have not been severed into discrete estates. The taxpayers argued that the wells do not fit within any of the categories of “real property” in the Tax Code, and appraising the wells separately from the land effectively appraises—and taxes—the wells twice. In a unanimous opinion by Justice Blacklock, the Supreme Court held that whether an aspect of real property can be separately appraised depends on whether the appraisal of the land itself already accounts for the value of the aspect. If so, separate appraisal would result in illegal double taxation. If not, separate appraisal is permissible to achieve the overall measurement of the property’s market value. The Court determined that in this case, the saltwater wells are part of the real property estates and contribute significantly to the overall market values, which the district is required to appraise. The Court noted that ignoring this economic reality would mean that two properties of similar location, acreage, and other attributes would have the same appraisal value even if one contains a saltwater disposal well and the other does not, which would violate the constitutional requirement that taxation be equal and uniform.
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