Words Matter: Expert Advice on Effective Language (Part 3 of 3)

Originally published by Kacy Miller.

In two recent blog posts (here and here), I resurrected one of my favorite books on communication: Dr. Frank Luntz’s “Words that Work: It’s Not What You Say, It’s What People Hear.” Although his approach is often political, I believe Dr. Luntz’s “Rules of Effective Language” apply just as easily to the world of litigation and courtroom persuasion. Because words matter.

In this installment, I’ll finish up with rules 7-10.

Rule #7 | Speak Aspirationally

About five years ago, Budweiser premiered a commercial featuring a cute young man and his sweet yellow lab. Obviously, Budweiser was hoping to sell some suds, but it was also promoting an important social message: don’t drink and drive. This was five years ago, and I still remember it – not because of the cute guy, but because it caused me to feel all the feels.

The message was personal, human, and universal. And it stuck.

Aspirational messages are those that cause the listener to want something better for him/herself, or for society as a whole. It speaks to our better angels and attempts to inspire us to listen them. In the world of litigation, it can mean humanizing a corporation, a concept, or an experience and framing the message so the listener can relate to it on a personal level.

For example, when defending a corporation accused of wrongdoing, it’s always important for witnesses to communicate a message of pride in the workplace and a connection to something bigger than oneself.

This is not canned “I love working here” testimony, or testimony that attempts to elevate the company’s reputation. The message is aspirational when it conveys a solid work ethic, integrity, respect for peers, teamwork, opportunity, and community. More times than not, jurors, prospective clients, and even students, can connect on some level with these traits.

When trying to impart a message of any kind, consider how you can tie the takeaway to your listener’s own life. If your audience can identify with your message, the odds of making your point and making it stick increase exponentially.

Rule #8 | Visualize

When you want to engage listeners, create opportunities for them to visualize what you’re trying to convey. Years ago, I had the absolute pleasure of listening to an esteemed criminal defense attorney, Tyrone Moncriffe, speak on the impact of visualization. He asked audience members to close their eyes and to join him on a journey to the refrigerator. Over the course of a few minutes, his skillful storytelling quite literally caused audience members to salivate. By the end of the story, we were – at least in our minds – drinking the perfect glass of freshly made lemonade.

Dr. Luntz sums up the power of visualization nicely:

[V]isualizing has as much to do with words as it does with pictures, and there is one word in the English language that automatically triggers the process of visualization by its mere mention…: imagine. [It] is perhaps the single most powerful communication tool because it allows individuals to picture whatever personal vision is in their hearts and minds.

In the courtroom, ask jurors to imagine the plight of your client in the most evocative, empathetic terms you can muster. If you can get them to empathize with your client, you’re halfway there.

Rule #9 | Ask a Question

I’ve written before about the power of a rhetorical question, and I’m a fan of strategically incorporating them into your messaging repertoire. Whether you’re giving a speech, a pitch, or an opening statement, a rhetorical question engages listeners on multiple levels. It can cause them to tap into a personal memory, recall previous evidence or things learned, ponder hypotheses and brainstorm possible solutions. It’s really a win-win most of the time.

One will suffice. Perhaps two. But you may distract rather than persuade if you go overboard.

Although procedural rules prohibit argument during opening statement, there’s nothing that prevents you from using a rhetorical question to make your point. For example, in a trucking fatality case, simply telling jurors that the company’s driver caused the accident because he was speeding is one thing; incorporating a rhetorical question designed to evoke fear is quite another.

For example, if you show a photograph of a damaged vehicle, you can add power to the visual by saying something like this: “Can you imagine how fast this 80,000-pound truck had to be going to cause this kind of damage?” If you’re the plaintiff, you want jurors to conclude the driver must have been driving at an extremely high – and dangerous – speed. The image, coupled with the rhetorical question, becomes more persuasive than simply saying, “And the evidence will show that the driver was speeding.”

Rule #10 | Provide Context and Relevance

Most humans are more invested in a decision when they reach conclusions on their own. This holds true for most settings: the classroom, the boardroom, and the courtroom.

In the world of jury consulting and litigation strategy, we often discuss storytelling, communicating the “here’s why this matters” and “here’s how it all fits together” portions of your message. Potential clients, conference attendees, judges and jurors really can’t accept the value or importance of your message until they understand the context and the purpose.

Simply stated: if your intended audience cannot identify with your message in a personal, individual, and meaningful way, the odds of your listeners buying in to what you’re selling diminishes greatly.

The danger in the legal industry is that we often get so caught up in our own version of the events, or the power of our own messaging, that we forget about the decision-maker: John and Jane Juror. What do they value? Desire? And, what matters to them, and why?

I once consulted on a complex patent infringement matter. There was some conflict within the trial team about best strategies, so we conducted pretrial research to discover what jurors needed to hear. After all, they would be the deciders of our client’s fate and we knew that our messaging needed to meet their expectations and needs.

What we discovered was that jurors were more interested in the relationship between the third-party patent holder and plaintiff than our client’s use of the patent. This completely changed the trajectory of the trial strategy and we re-tested things with a subsequent focus group. The feedback confirmed that we were on the right track.

The trial team and clients were now armed with persuasive talking points, strategic argument, and confidence that the case was potentially winnable.

Try One On for Size

There are a number of simple adjustments you can make to take your communication skills up a notch, and this blog series covers ten of them! Try just one on for size and see how it fits. You might just decide to keep it in your repertoire and add a few more.

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What is “Oil or Gas” as Used in a Pipeline Easement?

Originally published by Charles Sartain.

Co-author Rusty Tucker

In Texan Land & Cattle II, Ltd. v. ExxonMobil Pipeline Company a Texas court of appeals ruled that “oil or gas” is not limited to “crude petroleum,” but includes refined petroleum products gasoline and diesel.

The easement

Texas Land’s property in Harris County is burdened by an easement obtained by ExxonMobil from Humble Oil Company in 1919 that granted the right to lay, maintain, operate, and remove a pipeline for the “transportation of oil or gas” across Texas Land’s property. The easement does not define oil or gas.

The arguments

The sole issue was the definition of oil and gas as used in the easement. Texas Land contended that “oil and gas” granted the right to transport only “crude oil” or “crude petroleum,” but not refined products. ExxonMobil argued that “oil and gas,” as used in the early 20^th century, included refined products such as gasoline and diesel.

What do the dictionaries say?

Because “oil or gas” was not defined in the instrument, the court’s task was to give the terms their plain, ordinary, generally accepted meaning. The court looked primarily to dictionaries, referring first to The Century Dictionary (1915):

“Oil”: the general name for a class of bodies which have all or most of the following properties in common: they are neutral bodies having a more or less unctuous feel and viscous consistence, are liquid at ordinary temperatures, are lighter than water, and are insoluble in it, but dissolve in alcohol and more readily in ether, and take fire when heated in air, burning with a luminous smoky flame.

“[O]il” is divided in 3 categories: (i) “fatty or fixed oils, essential or volatile oils, and the mineral oils.” “‘Mineral oils’” include ‘petroleum and its derivatives . . . mixtures of hydrocarbons, … containing varying quantities of hydrocarbons of the olefine and naphthene series.’” The court noted “mixtures of hydrocarbons.”

Then the court looked to Webster’s New Int’l Dictionary of the English Language (1915) for the definition of “gas,” and defined it as:

“ . . . Any combustible gaseous mixture used for illuminating or as a fuel[.]’”

The court then considered an industry-specific source, A Handbook of the Petroleum Industry (1922) where the glossary defined “oil” as:

[a]n unctuous combustible substance, liquid, or at lease easily liquefiable on warming and soluble in ether but not water. This term includes (a) fatty oils and acids; … and (c) mineral oils, such as petroleum products, including lubricating oils. The handbook described gasoline as “‘clear, white-water oil.” And referred to gasoline and other petroleum products as “oils,” and that oil may be “distillate or crude.”

The court explained that these sources “appropriately provided both layman’s dictionaries and industry reference books establishing that refined petroleum products, like gasoline and diesel, fell within the commonly accepted meaning of the terms oil or gas at the easement’s approximate date.”

Finally, squelching any chance for a Texas Land Hail Mary, the court discussed how Texas courts have found that the terms “natural gas” or “gas” in a deed or lease include “all constituent elements,” such as refined products like gasoline. Ohio courts have addressed this precise question and held that “oil and gas” include products in both refined and natural states.

The result

Based on the ordinary meaning of “oil and gas” ExxonMobil did not exceed its rights under the easement by transporting the refined products, gasoline and diesel, through the pipeline.

Musical interlude

Listless after a boring property case? Get lively.

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Can Life Support Be Withheld If A Patient Has Not Signed A Directive To Physicians?

Originally published by Rania Combs.

Most Americans have not executed basic estate planning
documents. Studies show that more than half of Americans have not executed a basic
will, and even fewer have executed durable powers of attorney and medical powers
of attorney, and directive to physicians.

So, what happens if someone suffers a catastrophic injury or
illness and is on life support? Can anyone make a determination as to whether
life support should be withheld if the patient has not signed a directive to
physicians?

In Texas, a decision to terminate life support can be made by the following individuals, in order of priority, if a directive to physicians has not been signed:

1. An agent under a medical power of attorney
2. The patient’s spouse
3. The patient’s adult children
4. The patient’s parents
5. The patient’s nearest living relatives
6. The patient’s court-appointed guardian

A directive to physicians gives Texans the ability share under what circumstances they would like life-sustaining treatment to be administered or withheld so that those tasked with making a very difficult decision will not be emotionally burdened by making the decision without knowing the patient’s wishes; however, the lack of such a document does not create a presumption that the patient opposes a decision to withhold life-sustaining treatment.

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No prejudice, no coverage defense.

Originally published by David Coale.

An insurer failed to show prejudice, and thus could not take advantage of a “consent-to-settle” provision in an uninsured motorist first-party policy.  The key Texas Supreme Court case “did not recognize difficulty in proving the value of a potential subrogation claim as sufficient prejudice”; to the contrary, it “indicates that the only kind of prejudice sufficient to make a consent-to-settlement breach material is loss of a valuable subrogation right[.]” And the insurer also failed to conclusively prove a loss of value, even under its view of the law. Davis v. State Farm Lloyds, No. 05-18-00969-CV (Nov. 12, 2019) (mem. op.).

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Transfer on Death Deeds

Originally published by Tiffany Dowell.

 

In 2015, the Texas Legislature created statutory guidelines for “Transfer on Death Deeds” in Texas.   The “Texas Real Property Transfer on Death Act” provides the requirements for using a transfer on death deed (“TODD”) in Texas.  Importantly, these statutory requirements apply only to a deed executed on or after September 1, 2015 by a transferor who died on or after September 1, 2015.  Any deeds attempting to directly transfer real property at death prior to that date may be effective, but will not be governed by the provisions discussed below.

Image by Charles Thompson from Pixabay

What is a TODD?   A TODD is a legal document that transfers an individual’s interest in real property to one or more designated beneficiaries effective at the transferor’s death.  The TODD requires the property owner (the “transferor”) to name a person (the “beneficiary”) to whom property will automatically transfer at the death of the transferor.

The creation and filing of a TODD does not impact the rights of the transferor while living.  In other words, the transferor retains all rights and control over the property, including the right to sell, transfer, encumber, and use the property. A TODD does not change ownership of or rights to the property until the death of the transferor.

Lastly, keep in mind that in a situation where a valid TODD and a will are in conflict, the TODD will control and the real property will pass in accordance with the TODD, rather than the will.  This is true regardless of which document was created first and regardless of whether the will expressly states it is intended to override the TODD.

Who can execute a TODD?  In order to execute a valid TODD, a person must have contractual capacity.  Note that a person with power of attorney may not create a TODD on behalf of another.

What can be transferred by a TODD? Any real property in Texas may be transferred by a TODD.

What must be included in a TODD?  A TODD must contain the essential elements of a deed and must also state the transfer of real property to a designated beneficiary (or beneficiaries) is to take place at the death of the transferor.  Importantly, the property description that must be included in the deed should match the deed originally granting the property to the transferor. The property description from the Appraisal District, for example, may be insufficient or inadequate to satisfy the necessary requirements of a TODD description.

What must be done with a TODD?  In order to be effective, the TODD must be executed and recorded in the deed records  at the county clerk’s office where the property is located prior to the transferor’s death.  If the TODD is not recorded prior to death, it is not effective.  Importantly,  unlike other deeds, there is no requirement that a deed be delivered to or accepted by the beneficiary.  A TODD is effective if executed by the grantor and filed, without any action by or even knowledge of a beneficiary.

Can a TODD be revoked?  Yes.  A TODD is always revocable, even if the deed states that it may not be revoked.  Any provisions of irrevocably will be ineffective.

In order to revoke a TODD, the transferor may file an instrument of revocation expressly revoking the TODD, or may execute and file a subsequent TODD that revokes all or part of the prior TODD either by expressly revoking or by inconsistency between the two TODDs.  Keep in mind that any subsequent revocation or TODD must be recorded prior to the transferor’s death in order to be effective.

Additionally, the creation of a TODD does not prohibit the transferor to sell, gift, or otherwise transfer ownership of the property during the trasnferor’s lifetime.  Thus, if a transferor were to make a transfer of the property while living, the TODD would essentially be revoked as the transfer of the property would be immediately effective.

One other note on revocation involves divorce.  If a transferor and a designated beneficiary were married when a TODD was created and subsequently divorce, the TODD is revoked only if the final judgment of divorce is recorded in the deed records where the TODD is recorded prior to the death of the transferor.  The mere fact that a divorce occurred would not revoke the TODD.

What other rights are affected by a TODD?  Certain property transfers can impact rights of a transferor.  Here is how a TODD may or may not impact the most common of these rights:

• A TODD does not affect the transferor’s right to claim the property as their homestead.
• A TODD does not affect any property tax exemptions afforded to the transferor (i.e. over 65 years old exemption).
• A TODD does not affect the rights of creditors of the transferor.
• A TODD does not trigger a “due on sale” or similar clause in a mortgage or other type of loan document.
• A TODD does not subject the property to claims of a creditor of the beneficiary.
• Because the TODD does not transfer ownership of the property until the death of the transferor, the property receives a step up in basis adjustment at the transferor’s death.
• Since the TODD is not a completed gift until the death of the transferor, is not considered a taxable event for the purposes of gift taxes.
• The TODD statute states it does not affect the eligibility of the transferor or named beneficiary to any form of public assistance, subject to federal law.  This provision combined with the fact that the TODD does not actually transfer ownership of the property until the transferor’s death means a TODD should not affect the qualification for Medicaid benefits for either the beneficiary or transferor.  In other words, executing a TODD should not trigger the Medicaid transfer penalty. (For more information on Medicaid and long term care planning, listen to my podcast interview with elder law attorney, Kristen Porter, by clicking here.)
• By executing a TODD, the property at issue is no longer considered part of the transferor’s probate estate, meaning that property subject to a TODD should avoid Medicaid Estate Recovery, at least under current law.

What action must the beneficiary take at the transferor’s death?  At the death of the transferor, a beneficiary must record an affidavit of death in the deed records in order to become the legal owner of the property.  In the event the beneficiary wishes to disclaim his or her interest, normal disclaimer procedures under the Texas Estates Code Chapter 122 should be followed.

What are the pros of a TODD?  A TODD can be attractive as a means to transfer ownership of real property quickly and affordably without going through the probate process.  A TODD allows the transferor to keep control over the property during his or her lifetime and allows the transferor to revoke the TODD at any time.  With regard to Medicaid, at least under current law, executing a TODD may allow a transferor to avoid potential Medicaid recovery, while not triggering the Medicaid transfer penalty.

What are the cons of a TODD? First, because TODDs are so new, there is simply not very much law related to these instruments, which may lead to uncertainty for lawyers and clients alike.  One potential downside of a TODD is the recording requirement for both the TODD itself and any revocation of the TODD.  If a transferor fails to property record the document prior to his or her death, it is ineffective and that could lead to unintended consequences at the transferor’s death.  Lastly, people may not understand the concept that a TODD essentially trumps a will if both address the same property, which again could lead to unintended consequences is a TODD was executed in addition to a will.

 

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Top 10 from Texas Bar Today: Bluffs, Revues, and Tangled Webs

Originally published by Joanna Herzik.

To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. What Is the Difference Between an LLC and an LLP? – The Kumar Law Firm PLLC in Austin

9. Success: Old Rules No Longer Apply – Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

8. Possible Change to Jones Act Interpretations Regarding Coastwise Activities – David L. Reisman of Liskow & Lewis @LiskowLewis

7. Texas Court Orders Child’s Name Change to Include His Father’s Surname – Robert Epstein of McClure Law Group @McClureLaw in Dallas

6. Is Your Cease and Desist Merely a Bluff? – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

5. Finally, finality. – David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

4. And you think legal writing is bad? – Wayne Schiess, Senior Lecturer, The University of Texas School of Law @UTexasLaw in Austin

3. Should Courts Use Artificial Intelligence to Predict Future Criminal Behavior? – Broden & Mickelsen, LLP @BrodenLaw in Dallas

2. “Revue” Your Materials Before You Compile – Charles Wallace of Creedon PLLC @CreedonPllc in Frisco

1. What a Tangled Web We Weave By Signing Documents We Don’t Read – Kim Hegwood of Hegwood Law Group @Hegwood_Law in Houston

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What is a Reservation of Rights Letter?

Originally published by Jeff Raizner.

Most of us have purchased various types of liability insurance, believing the insurance carrier will have our back in the event of a claim. However, insurance policies can contain a wide array of exclusions, which often limit the insured’s ability to recover in whole or in part. Under your insurance policy, your insurer must handle the claims process for you. A reservation of rights (ROR) letter lets you know that even though the company is administering your claim, certain losses may not be covered by the policy. For example, many insurance policies contain provisions excluding coverage for gross negligence and/or intentional acts.

How Important is a Reservation of Rights Letter?

A reservation of rights letter typically serves as notice your insurance company is reserving its right to deny coverage at a later date based on the terms of your policy. Such a letter neither denies the allegations in a claim nor is it a claims denial itself. While these letters appear generic, they are actually a formal indicator some of the losses you are claiming may not be covered. Often, receiving the letter also lets the insured know the information provided in the original claim requires further evaluation. ROR letters are used when an insurer identifies coverage defenses and/or policy defenses.

Insurance companies routinely send reservation of rights letters, as failing to send one can waive their rights. If you receive one, you should contact your insurance company to find out why your claim may not be covered. If an insurance company is heading toward claims denial, you should consult with an insurance coverage attorney regarding the next steps.

Insurance Lawyers

If your insurance company is delaying, underpaying, or denying your valid claim, you should consult with an insurance attorney that routinely handles insurance claims. Raizner Law offers free consultations to review the facts of each case. 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 throughout the litigation process. For specific questions concerning your claim, please contact our office.

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