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Originally published by Joanna Herzik.
To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.
6. A Game Plan: Last Minute Bar Preparation – Goldie Pritchard of the Law School Academic Support Blog
3. What Do Venus, Video and Vegetables Have In Common? – Bill Berenson @LawyerFortWorth of Berenson Law in Fort Worth
2. Lessons from Urban Outfitters’ Willful Copyright Infringement Ruling – Darin Klemchuk of Klemchuk LLP @K_LLP in Dallas
1. It’s Alive! Revive Your Dead Motions and Defend a Favorable Judgment With a Proper Appeal – Maitreya Tomlinson of Smith Law Group LLLP @SmithLawGroup in Austin
Originally published by William K. Berenson.
Yesterday the amazing Venus Williams blew away her opponent at the world famous Wimbledon tennis tournament. She’ll play for her sixth title on Saturday.
Venus, who at 37 is very old for an athlete, may make history by becoming the oldest woman ever to win Wimbledon. The previous record holder was our former Fort Worth resident Martina Navratilova who was also 37 when she reached the finals in 1994.
And the first American man to play in the semifinals since 2009, Sam Querrey, is playing now, so we have our strongest American showing in London in many years.
Venus has excelled despite just being sued when she was involved in a car wreck last month in Florida.
The tennis star was driving slowly through a light when her SUV was T-boned by a car driven by a 68-year-old woman who was seriously injured. Her 78-year-old husband tragically died several weeks later.
The family has filed a lawsuit against Venus for wrongful death and personal injury damages.
The accident report initially blamed Venus for running the light. But the police department now says it doesn’t know which driver was at fault. What made it reverse its position?
It was this video tape that showed her SUV passing the guard house of her gated community and entering the intersection (at the top in the distance) on a green light. The other driver T-boned her SUV.
The lawyers are downloading the black boxes, inspecting the vehicles, obtaining other evidence, and preparing for trial. Both claim their driver had the right of way. The actual impact is hard to see on the tape. But it bolsters Venus’s case.
This story emphasizes the importance of locating evidence when the drivers disagree on fault — which happens all the time.
In our techno-obsessed world, video cameras and cell phones are everywhere. To win his case, a personal injury lawyer first reviews the police report, photographs, measurements, and Google maps. He may need more evidence to rebut the other driver’s assertions and police investigator’s findings. Footage from red light cameras used by the Texas Department of Transportation and area businesses can make or break cases.
This case demonstrates why car crash cases often go to trial. The drivers involved in a crash have different sights and interpretations of what happened. An auto accident occurs quickly and without warning. One or all drivers may have lost consciousness, not remember key details, or not be on the scene after being rushed to the hospital by the time police arrive to sort things out. Determining fault can be difficult.
I love it when a major championship is on the line. I’m watching some of Wimbledon and the Tour de France either before or after work as I work up a sweat on my spin bike or zero gravity running machine or lift weights. I want to stay fit and healthy now that I’m 62, my 10 years of running marathons has taken its toll, and I need to be in top shape to fight for my clients.
The diets of Venus, Novak Djokovic, Serena Williams, Maria Sharapova, and Martina Navratalova are plant-based. Many high-achieving athletes’s diets are. I’m delighted that mine has also been vegan for the last seven years.
My wife goes to the farmers market to get these vegetables. But as you can see, our cat doesn’t seem interested. Most people aren’t. But our vegan diets are incredibly healthy and give us boundless energy.
Watch the new movie What the Health and others like Forks Over Knives and Sick, Fat, and Nearly Dead. You’ll learn how you can be less prone to illness and disease, kind to animals, and protect the environment. The diet is a winner!
Good luck to Sam and Venus!
Originally published by Laura Springer Brown and Erin Bambrick.
A July 3, 2017 ruling from the 17th Judicial District establishes that a mineral servitude owner’s obligation under Mineral Code article 22 “to restore the surface to its original condition” means the condition of the property at the creation of the servitude—and not the property’s pristine, pre-operation condition. The court’s commonsense ruling in Sterling Sugars v. Amerada Hess Corporation, No. 100091 (17th JDC) appears to be the first time a state court has directly interpreted the meaning of the phrase “original condition” in the Article 22 context.
Mineral Code article 22 (La. R.S. 31:22) provides:
“The owner of a mineral servitude is under no obligation to exercise it. If he does, he is entitled to use only so much of the land as is reasonably necessary to conduct his operations. He is obligated, insofar as practicable, to restore the surface to its original condition at the earliest reasonable time.”
In Sterling Sugars, mineral operations on the subject property began in the 1930s. After more than forty years of operations, a mineral servitude was created by reservation in 1979.
The plaintiff landowner sued the present mineral servitude owner in 2012, and argued that under Article 22, the servitude owner was required to restore the property to its “original condition” as of the 1930s—before the commencement of oil and gas operations.
Adopting the mineral servitude owner’s memoranda as its reasons for judgment, the court rejected this argument, agreeing that “the phrase ‘original condition’ in Article 22 is tied to the exercise of a servitude and means the condition in which it was originally found by the servitude owner immediately before the servitude is exercised.”
Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.
Originally published by David Coale.
Litigation continues on the Texas tollroads, most recently producing a defamation lawsuit in BancPass v. Highway Toll Administration LLC, arising from letters sent by a company’s competitors to Google and Apple. The defendant unsuccessfully argued that the letters were immune from liability by the Texas privilege associated with court proceedings.
Before the Fifth Circuit, matters began well for the defendant – the Court concluded (1) that an immediate interlocutory appeal was allowed because the Texas privilege protects from suit, not just liability, and (2) while “[c]ertainly, the district court expressed its displeasure” at this issue arising late in the proceedings, it did not formally certify the appeal as frivolous (and thus avoided a line of cases that would otherwise have undermined defendant’s appeal right). But on the merits:
“Texas caselaw is clear that our analysis must focus on the connection between the communications and the specific legal action HTA now claims that it was contemplating, rather than legal action more broadly. The letters to Google and Apple in particular put forward bare accusations of unlawful conduct that was unrelated to HTA’s later tortious interference claim and that neither directly implicated HTA’s own legal rights nor constituted legal claims that HTA had any ability to pursue.”
No. 16-51073 (July 13, 2017).
Originally published by Robert Kraft.
As an attorney, you probably already pay attention to new details and methods as they relate to how court cases play out and are handled in the office. Even with the personal research conducted, there is still an abundance of information that’s available to learn about as the legal profession has significantly changed in the 21st century. If you learn about the ways that the profession has changed, then you’ll be able to better understand all aspects of your career, such as how to assist clients and how to deal with court officials.
As prisons and jails become overcrowded, judges are looking at other types of punishment. One of the ways that judges punish criminals is to place them on probation for a certain period of time. It’s important to talk to your clients about these other forms of punishment so that they know what to possibly expect. If your client doesn’t abide by the regulations, then there could be a harsher punishment in the future. It’s like getting a second chance to make changes in life.
Since more people are using technology for almost every aspect of life, it’s no surprise that more people are gaining access to court records and other information online. As an attorney, you need to have all of your documents correctly transcribed and in order so that they are easy to understand. There are professional transcription companies, like Caliber Litigation Services, that offer support to attorneys by making it easier for clients to order everything from court transcripts to videos.
One of the changes that you might see as an attorney is a decrease in your workload. Since there are more people entering the field, there are more options for people who need someone to represent them in court. You’ll notice that secretaries aren’t used as much because of enhanced technology. There are also more attorneys who are doing work pro bono since the economy hasn’t fully recovered.
It seems like everyone is on some kind of social media site. Use this to your advantage because it’s a trend that is here to stay. Advertise your services and any special discounts that you might offer at the moment as social media is a way to draw more people to your practice.
Your legal practice is one that will likely continue to change in the future. With technology being enhanced at every turn and people looking for easier ways to communicate, you’ll see that there are new ways to reach people and offer solutions for the needs of the client. Pay attention to the smaller details as these will change over time more than those that are at the forefront.
Author Info: Hannah Whittenly is a freelance writer and mother of two from Sacramento, CA. She enjoys kayaking and reading books by the lake. You can find her on Twitter.
Originally published by Mike Northrup.
The answer to this question may depend upon the circumstances. As reflected in one recent Dallas Court of Appeals opinion, minutes mattered in order for the lawyer to ensure compliance with her obligation not to engage in conduct that might disrupt pending appellate proceedings. This opinion could serve as a good law school exam question.
Under the facts of the case, the Dallas County Child Protective Services Unit (CPS) filed suit to terminate parental rights of a child. The child’s foster parents had had possession of the child for 16 months and expressed an interest in adopting the child. However, CPS sought to place the child with a maternal aunt and uncle in Florida.
In some unusual circumstances, just prior to trial, the biological mother asked the trial court to strike the intervention of the foster parents, which the court did. Minutes later a trial was held outside of the foster parents’ presence, which lasted all of 9 minutes. At the conclusion of the trial, the court appointed the Florida aunt and uncle joint managing conservators.
Immediately following the trial, the parties made arrangements for CPS to take the child from the foster parents. The foster parents advised the CPS attorney’s supervisor that they were filing a petition for writ of mandamus and were seeking an emergency stay order. Before the filing, CPS removed the child from the foster parents’ home. The foster parents then filed their petition for writ of mandamus and motion for emergency stay and all counsel were notified of the filings. Thirty minutes after CPS’s counsel was notified of the filings, CPS released the child to the Florida aunt and uncle, who immediately left with the child to return to Florida. Fifty-five minutes later, the Dallas Court of Appeals issued an order staying all orders of the trial court.
Although the court of appeals concluded that mandamus relief was not appropriate because the foster parents had an adequate remedy by appeal, the court nonetheless wrote to express its concern over the fact that neither the CPS case worker’s supervisor nor CPS’s attorney attempted to contact the Florida aunt and uncle after learning of the stay order. The appellate court acknowledged that the child had been handed over to the Florida aunt and uncle before the stay order had issued, but the court questioned the decision to remove the child with such haste within 4 hours of the trial court’s rulings and in the face of the emergency filings.
After noting that the speed of the transfer violated CPS’s own internal guidelines and showed a lack concern for the child’s best interest, the court observed that the failure of the State to notify CPS of the appellate filings potentially violated ethical obligations to keep a client reasonably informed and not to engage in conduct intended to disrupt court proceedings. The court of appeals concluded by cautioning the State to treat future emergency proceedings as serious matters deserving of review and respect, and warning that the failure to do so may warrant referral to the grievance process.
In re Schklair, No. 05-17-00610-CV (Tex. App.–Dallas June 23, 2017, orig. proceeding)
The post How soon must an attorney notify his client of a court filing? appeared first on Reverse & Render.
Originally published by Darin Klemchuk.
Avoiding Willful Copyright Infringement In April 2017, Urban Outfitters and Century 21 were found liable for willful copyright infringement of a fabric design owned by […]
The post Lessons from Urban Outfitters’ Willful Copyright Infringement Ruling appeared first on Klemchuk LLP.
Originally published by Aimee Hess.
As many Texans are aware, hydraulic fracturing (“fracing”) uses a lot of water. In fact, one of the important ways in which Texas oil and gas lawyers assist their clients is to make sure that the oil and gas leases they sign contain appropriate protections for the client’s freshwater sources.
ConocoPhillips recently announced the availability of its “Water Visualization Tool” to use in discussing their water use with landowners in the Eagle Ford Shale. This is a 3D modeling tool that contains a model of the subsurface based on data from state and federal public databases, such as the US Geological Survey. With this tool, the oil company can demonstrate to a landowner the location and depth of the reservoir from which it is obtaining water and the spacing between horizontal wells and water sources.
The Water Visualization Tool sounds like it will assist in clear communication between oil companies and landowners. However, the more important issue is the need to continue to push to find non-freshwater sources for water used in fracing. For example, ConocoPhillips itself used municipal wastewater from Karnes City, Texas in the fracing of its wells in Karnes County. Other companies have used brackish water or are recycling water to use in fracking.
Continue reading →
The post New Modeling Tool for Aquifers in Eagle Ford Shale appeared first on Texas Attorney Blog.
Originally published by Bob Kraft.
The law is more complex than ever. In just the last few years, several fields of both paper and trial law have risen to the forefront, becoming both indispensable and more formidable as entire new businesses have sprung up around one world-changing technology after another.
It doesn’t take much effort to recognize some parts of the law, because of their relationships with the ways technology and business are changing each other, are likely to not only be more popular, but more difficult to understand. Here are three legal fields that are experiencing some of the greatest and most complex changes.
More than a few people thought the saga of copyright on the Internet concluded with the Napster case. Nothing could be further from the truth. The Internet has put tremendous pressure on copyright law, as the constituencies mandated to share the balance between culture and commercial exclusivity have staked out new territories and have demonstrated they are more than willing to defend them at trial.
Meanwhile, the patent system has nearly been washed out to sea by the explosion of dubious applications on the one hand, and hair-trigger litigation on the other. The process of applying for a patent, while cumbersome in the best of circumstances, has become amazingly time-consuming and expensive as the field of potential prior art has grown.
Nearly every criminal case in America now involves at least some kind of electronic evidence. Everything from photographs to voice mails to social media posts have become indispensable to human relationships and therefore have become ubiquitous in every kind of criminal matter from traffic accidents to arson.
The challenge with the deluge of new kinds of evidence is the fact most law enforcement and more than a few attorneys haven’t yet caught up with the realities of 21st century investigations. While strides have been made, technology isn’t standing still in the meantime, which means legal professionals will have to work faster and sometimes harder in order to keep up.
The intersection of medical technology, digital technology and law is a huge subject, which is one reason why it has become a fast-growing specialty among legal professionals from attorneys to paralegals to scholars. The legal issues around record-keeping alone have been a major task for governments and medical professionals for years, and now that the legal profession is beginning to catch up, the necessity for specialized education and the case law to go with it are more profound than ever. Health care law schools are now helping to specialize lawyers to tackle the vast amounts of work to be done.
The trend towards more complex laws and more technical legal work required to manage them is likely to continue. As always, you should consult a qualified legal professional if you have a legal issue.
This article is from Brooke Chaplan, a freelance writer and blogger. She lives and works out of her home in Los Lunas, New Mexico. She loves the outdoors and spends most her time hiking, biking and gardening. For more information contact Brooke via Twitter @BrookeChaplan.
The post 3 Legal Specialties That Are More Relevant Than Ever appeared first on pissd.com.
Originally published by Thomas J. Crane.
When you ask for an accommodation, you need to be careful what you ask for. Because, you just might get it. That is an old saying and it applies to the decision in Dillard v. City of Austin, 837 F.3d 557 (5th Cir. 2016). Derrick Dillard worked for the City of Austin. He was a laborer and field supervisor until he sustained injuries in a car wreck. He could not perform physical labor any longer. After extended leave, he was offered a position as an Administrative Assistant. He was stunned at first, because he did not know how to do “no administrative work.” He did not meet the stated qualifications for the job, three years experience as an Administrative Assistant. So, the city provided him with on-the-job training and let him shadow another Administrative Assistant. He was encouraged to complete additional training, but he never did. His typing skills did not improve. Instead of training on the computer, he was observed to be surfing the internet and playing games. He arrived at work late and left early. He spent some of his time looking for a new job.
The employee started the Administrative Assistant job in April, 2012. By September, he was given a bad performance evaluation. His supervisor testified that he lacked skills, but he also seemed unwilling to improve his skills. Mr. Dillard asked to be moved to a different job and claimed he was not given enough work to do. He admitted he could not complete his one typing assignment because he could not type fast enough. His physical abilities were improving. But, the process toward termination proceeded. At a pre-termination meeting, he admitted the allegations against him were accurate. He was not apologetic for his behavior. He said he was trying to find a new job within the City.
In late October, he was fired. Plaintiff Dillard filed suit saying the city failed to accommodate him. The district court granted summary judgment. The higher court noted that if an accommodation is not working, then the employee may ask for a new accommodation. That is part of the interactive process. The plaintiff argued that the City failed to cooperate when it became clear the new job was not working out. He argued that as his capacity improved, the City should have considered him for jobs that were open. But, the Fifth Circuit was not impressed. The interactive process is a two-way street. It requires that both parties work together in good faith. When they gave him the new job, the ball was in his court. He should have worked in good faith to make it work. The misconduct indicated the was not trying in good faith to succeed in this new position. There was also evidence of making personal phone calls, napping at work, lying about his attendance, etc. This case was now less about the interactive process and more about mis-conduct.
The higher court found no evidence that the City failed to act in good faith, since the employee did not show a desire to try and make the new position work. The court affirmed the grant of summary judgment. Yes, be careful what you ask for, because you just might get it. See the decision here.