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The Uncalled Witness Rule

Originally published by David Coale.

Iberiabank v. Broussard, among many other issues, addressed the “century-old” uncalled witness rule, under which, “if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” Also, there is “an important exception to the applicability of the presumption: if the witness is ‘equally available’ to both parties, any negative inference from one party’s failure to call that witness is impermissible.” Here, the Fifth Circuit found that a witness with knowledge about a particular computer-access issue could have been called by either side, making this rule inapplicable.  No. 17-30662 (Oct. 25, 2018).

 

 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: David Coale
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Agriculture Law: Weekly Round Up

Originally published by tiffany.dowell.

 

Hello and Happy Friday! Welcome to those of you joining from my recent presentations in Panhandle, Waco, and Clovis.

Here are some of the ag law stories in the news recently:

*California voters pass new animal welfare law.  Earlier this month, California voters passed Proposition 12, requiring that all eggs sold in California must come from cage-free hens by 2022.  The new law will also impose restrictions on the sale of veal and pork where certain production practices are not met.  For veal, calves must have at least 43 square feet of floor space by 2020, and breeding pigs must be given at least 24 square foot of floor space by 2022.  For hens, the law requires 1 square foot of floor space by 2020, with cage-free being required by 2022.  This law will have impacts beyond California’s borders, as producers in other states wishing to sell products in California will be required to comply as well.  [Read article here.]  Keep in mind, the prior California law that required certain size limitations for hens laying any eggs to be sold in California is currently facing challenge by numerous states in the US Supreme Court.  [Read prior blog post here.]

Photo by Mai Moeslund on Unsplash

*Montana case raises interesting question about ownership of fossils.  One of my readers sent me a really interesting case that raised the following question:  Are fossils owned by the surface owner, or the mineral owner?  This case arose when valuable fossils were found on a ranch in Montana.  That US Court of Appeals for the Ninth Circuit found that dinosaur fossils were “minerals” under the terms of the deed, and thus, belonged to the mineral owner.  This decision was made based on a Texas case that looked at whether the substance at issue was “rare and exceptional in character or possessed a peculiar property giving it special value.”  The dissenting judge would have found the fossils to be owned by the surface owner because the “ordinary and natural meaning test” would find fossils not to be a mineral.  I did a quick search and found no published opinions addressing this issue here in Texas, but it is interesting that it was the approach from a Texas case that led the Ninth Circuit to this decision.  We’ll see if this comes up here one day.  [Read Opinion here.]

* Farm Succession Planning Newsletter Series.  The Hallock & Hallock Law Firm in Utah recently published a four-part newsletter series on farm succession planning.  The steps are practical and the articles useful.  They suggest that farm and ranch owners should (1) Determine where the farm is now; (2) Determine where the farm wants to be in the future; (3) Create a road map to get there; and (4) implement the plan.  You can read these newsletters here.

* Podcast focuses on mental health and suicides in rural America.  My friend and Ag Day anchor, Clinton Griffiths, recently did a podcast looking at mental health in rural America.  In an era of low commodity prices, trade wars, high input costs, and the usual uncertainty like weather, it’s not been easy for ag producers.  Clinton did a great job of covering an important issue and I’d encourage everyone to listen.  [Play podcast here.]

Programs Next Week

Next week, I will not be speaking as it will be Thanksgiving, but the following week I’ll be back at it.  On November 27, I’ll be presenting a program on hunting leases for County Extension Agents.  On Thursday, November 29, I’m excited to be in Victoria to speak at an extension agricultural law meeting with topics including water law, fence law, and eminent domain.

As always, you can see my complete list of upcoming programs here.

 

The post November 16, 2018 Weekly Round Up appeared first on Texas Agriculture Law.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: tiffany.dowell
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No good cause, no pleading amendment.

Originally published by David Coale.

The plaintiff in a legal malpractice cause sought leave to amend to add a new party, the trial court denied leave, and the Fifth Court affirmed, finding a failure to show good cause: “[A]lthough James stated in that motion that ‘[Eberstein’s] involvement and participation in the fraud has been discovered and confirmed throughout Plaintiff’s utilization of the discovery process during the oral deposition of Ms. Witherite, which only occurred on February 22, 2017,’ James did not cite or describe any evidence to support that assertion, and (2) James did not describe or address how that assertion is consistent with her testimony in her January 25, 2017 deposition that Eberstein met with her and counseled her before mediation in the Lawsuit.” James v. Witherite, No. 05-17-00799-CV (Nov. 9, 2018) (mem. op.)

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: David Coale
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Stories of Recovery: Life’s terms

Originally published by Guest Blogger.


The first time I got intentionally drunk was on May 26, 1972. I was 12 years old and woke up that morning to find that my father had died during the night.

By that afternoon I had dipped into Dad’s liquor cabinet and I was drunk. For some reason I instinctively knew that alcohol was the balm for the pain that I thought was going to kill me.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Guest Blogger
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To Become a Rainmaker Later, Be a Thought Leader Now

Originally published by Jay Harrington.

 

If you can hone the skills required to develop business as an associate, you can set yourself up for great success within a law firm.
      

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Jay Harrington
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MOUNT LEMMON FIRE DISTRICT v. GUIDO, JOHN, ET AL.. Decided 11/06/2018

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No cases have been decided today.

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U.S. Economy Flashes Signs It's Downhill From Here

Private analysts and the Federal Reserve say a slowdown is looming. Though few believe a recession is near, a slowdown in growth would have far-reaching implications.
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Tesla Faces Deepening Probe Over Whether It Misstated Production Figures

Tesla, with a fresh civil fraud settlement now behind it, faces a new legal problem: a deepening criminal investigation.
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Chinese Firms Snap Up U.S. Sites to Process Scrap

Chinese companies are setting up shop in the U.S. to obtain the scrap paper and plastic their government has deemed too dirty to import.
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Stressed Southern Timber Growers Get Hit Again

Owners of forest land along the Florida Panhandle and beyond are grappling with at least $1.6 billion in timber losses after Hurricane Michael.
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Bringing Up Baby's Market Share at J&J

After missing out on major shifts in consumer tastes and watching sales stall, the company has remade its baby line from head to toe. Catching up won’t be easy.
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Fortnite Creator Epic Games Valued at Nearly $15 Billion

Epic Games, the creator of the smash-hit videogame “Fortnite,” is valued at almost $15 billion as part of a new investment round.
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After Months of Struggle, NBC's $69 Million Bet on Megyn Kelly Flames Out

An outcry over remarks Ms. Kelly made on the air about blackface Halloween costumes on Tuesday proved the last straw in the anchor’s rocky stint on the ‘Today’ show. NBC canceled her show Friday. Negotiations “about next steps” continue, her lawyer said.
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GDP Grows 3.5% on Consumer Vigor but Investment Slows

Strong consumer spending powered economic growth in the third quarter, helping to offset weak business investment and a drop in U.S. exports.
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China Puts Yuan Skeptics on Notice as Currency Nears Decade Low

After a nearly 7% selloff this year, the yuan is at the brink of hitting 7 per dollar, a threshold that could trigger further selling if Chinese businesses and individuals decide they need to expatriate capital before any further decline.
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Microsoft Defends Its Bid on U.S. Military Contract

Microsoft executives defended supplying technology to the U.S. military, in another case of a tech company having to explain its relationship with the government in the face of objections from employees.
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Apple May Lean on iPhone XR to Juice Sales

A year after leaning on its high-price iPhone X to ignite sales of its best-selling product line, Apple may need the lower-priced successor—the XR—to perform the same trick.
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A GOP Lawmaker's Battle to Turn Growth and Jobs Into Votes

Republicans and Democrats are sparring on the campaign trail over who gets credit and blame for the economy. Support for the president isn’t always translating into support for local Republicans on economic issues.
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U.S. Consumer Sentiment Ticked Down at the End of October

U.S. households became slightly less confident about the economy in late October, but their overall outlook remained elevated.
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