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            Texans are excited about the new open carry laws recently signed by Governor Abbott (HB 910).  I am intrigued by what I have heard about the new gun laws, so I thought I would educate myself and then pass some of that information along to you.

The first thing I learned was that the new open carry laws go into effect on January 1, 2016.  Many of the bills that Governor Abbott recently signed into law went into effect on September 1, 2015, but not the open carry laws.  If you started wearing your Colt on your hip on September 1^st, then you need to hurry up and conceal that puppy for another four months.

            There are a lot of misconceptions about Texas gun laws.  The primary misconception is that our laws are simple.  Having questioned a number of gun enthusiasts about Texas gun laws, I was under the impression that Texas gun laws were relatively simple.  Having done a little research for this blog post, I can assure you that they are not.  If this topic interests you, or if you intend to wear your handgun openly in public, I strongly recommend that you read HB 910, as well as Chapter 46 of the Texas Penal Code.  You will certainly get a better understanding of just how complex our gun laws are in Texas.  Frankly, the number of exceptions and restrictions sown throughout our gun laws are enough to discourage me from exercising my rights under the new open carry laws.

            In reviewing HB 910, I was struck by how few changes were actually made to the existing law.  HB 910 amends the following laws that formerly regulated concealed carry of handguns by those holding a conceal carry license:  Sections 62.082 and 284.001 of the Texas Parks and Wildlife Code; and Sections 30.05, 30.06, 46.02, 46.03, 46.035, and 46.15 of the Texas Penal Code.  The vast majority of the changes made to these sections was the deletion of the word “concealed.”  Really, that was pretty much it.  The word “concealed” was deleted from the phrase “concealed handgun” at least 67 times.  This should tell you a lot about how the law was changed.  In short, if you have a license to carry a concealed handgun, you no longer have to conceal it.

            Of course, it is not really that simple.  The handgun must be in a shoulder or belt holster. It is still illegal to walk around town with a handgun “in a manner calculated to cause harm.”  Also, the law has not changed as to “long guns,” which Texans may still carry in the open as long as they do so in a safe manner.

            Besides the deletion of the word “concealed,” here are a few of the other changes:

• Even with a license, you cannot openly carry a handgun onto property if the owner has provided written notice that handguns are not allowed. It is a Class C misdemeanor if you enter, and a Class A misdemeanor if you refuse to leave after receiving notice by oral communication.
• Even with a license, you cannot openly carry a handgun on the premises of an institution of higher education.

I hope that this post has helped you better understand the changes in the law.  If I have gotten anything wrong or if you have any other comments, please feel free to share them in the comment section below.

It is a cold, rainy morning in Dallas, Texas.  The low cloud cover hides the tops of the downtown buildings and everything is cast in a gray hue.  I am waiting for my contact under the hotel awning, anxious to get started with the task at hand.

            My contact runs through the rain from the corner of the block.  He didn’t bring an umbrella and he is quickly getting soaked.  As he runs up to me panting, I notice that he is not wearing the proper gear for this assignment.  We casually shake hands, his grip limp and clammy.  I turn and he follows me into the hotel.

            Our wet shoes squeak on the hotel’s marble floor, and I imagine that I can smell the anxiety on my companion.  I walk with purpose as he struggles to keep pace with my wide gate.  As we reach the door to the inner room, I pause.  I take one last look at my contact, mentally shake my head at his appearance, then I take a calming breath and open the door.

            In the room are two gentlemen in suits, a woman seated before a table, and a man with a video camera.  I nod at the woman as I approach the two men.  I reach quickly into my pocket, maintaining eye contact with my adversary at all times, and I quickly produce… a business card, “Hi, I am Jacob Thomas.  Are we ready to proceed?”

            In today’s world, Lawyers are often referred to as “gunslingers,” “hired guns,” “pit bulls,” or “bull dogs.”  There is infamous Dallas plaintiffs’ attorney who refers to himself as “The Hammer.”  Honestly, I kind of like the references, but they are generally laughable.  Most of the attorneys that I might refer to as “pit bulls” are small, elderly men who are just generally mean spirited and real pains in the neck.  Are they good lawyers?  Some of them, but many of them are successful only in their attempts to make life difficult.  They tend to make a lot more money than they should on relatively simple cases because their sole strategy is to create more work.  That being said, there are some clients that demand this approach and are only too happy to pay for it.

            I recall my torts professor, Michael Morrison, once commenting that civil trial law has replaced dueling as a means of resolving disputes.  As such, lawyers are the new dueling blades.  This image comes to mind often when meeting with new clients.

Recently I had a meeting with a family who was anticipating a dispute with their builder.  The construction of their new home was not going smoothly and they were hoping that getting me involved would move things along.  Over the course of the consultation, I explained to them that I would be happy to help, but that bringing a lawyer into a business dispute is analogous to bringing a sword to a meeting.

The analogy goes like this:  Prior to the meeting, the other party may be considering ways to defuse the situation, they are anticipating a conversation between equals.  As soon as they see you brought a sword, they get nervous, wondering if they should have brought a sword, and looking for potential escape routes.  As soon as the sword is brandished, all thoughts of cooperation vanish.  If you are earnest, you might be able to convince them that you brought the sword because you were worried that they would show up with a gun, but that rarely works.  The mere presence of the sword has changed the very nature of the meeting.

I tell my clients that when they hire me, they are hiring me to start a fight, or to join one that was started by someone else.  I tell them that I am a damn good fighter, but when you get into a fight, you are not going to be the only one throwing punches, the other side is going to fight back.  This is an important conversation to have with a potential client because most clients believe that they are absolutely correct, the other side is absolutely wrong, and that I will be able to simply walk amongst the lions and make them lie down.  Oh, if only that were the case.  If I were that good, I would need to have five times as many clients or I would go out of business as a result of my own success.

Lawyers do not earn monikers such as “gunslinger” and “pit bull” as a result of their appearance, but because they are the modern dueling weapons in our civilized society.  While I like to think of myself as a problem solver, I try to stay aware of the fact that my mere presence at a meeting, or my letterhead on a correspondence, changes the very nature of a dispute.  If you have a useful approach for minimizing the effect of your involvement in an otherwise friendly dispute, I would love to hear it.  Please add your view to the conversation in the comment section below.

A couple of years ago, a client came to me for assistance.  He suspected that his financial advisor was not being honest with him.  After looking through his documents, I had a lot of questions that needed to be answered, but I did not have enough to justify a lawsuit.  We made every effort to gain the opposing party’s cooperation, but to no avail.  I discussed my concerns with the client and proposed that we seek a Rule 202 deposition.

Texas Rule of Civil Procedure 202 is a pre-suit investigative tool often overlooked by many litigators.  Rule 202 allows a potential plaintiff to take an oral deposition or deposition on written questions prior to suit in order to 1) perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or 2) to investigate a potential claim or suit.  This tool is not to be used routinely[1], nor would many people wish to incur the expense associated with obtaining a pre-suit deposition, but there are certainly situations where it should be considered.

After deciding that the Rule 202 deposition could be helpful, I discussed with the client the procedure and costs involved.  The client approved the strategy and we proceeded.  In this case, the procedure went very smoothly.  We were able to effectuate service pursuant to the Rule, we were able to obtain the court’s order approving the application, and the deposition took place without any procedural difficulties.  While we were able to determine that the client’s suspicions were correct, we also determined that we were drilling a dry hole; the defendant was essentially judgment proof.  The client was able to gain a margin of satisfaction from learning the truth, and he was able to avoid the costs associated with litigating a case that would likely have resulted in little more than a paper judgment.

Despite the benefits of the Rule 202 deposition in my case, I have yet to have another case that I felt warranted its use.  In addition to the financial considerations, there are a number of statutory and common law limitations on the procedure.  Rule 202 cannot be used to investigate a health-care claim.[2]  In addition, Rule 202 cannot be used to circumvent procedural requirements, such as in certain Labor Code claims that must be exhausted before suit can be filed in state courts.[3]  Based upon the foregoing, I believe that Rule 202 investigative depositions would not be available to a litigant when one of the potential defendants is a licensed or registered professional under Chapter 150 of the Texas Civil Practice & Remedies Code.  Furthermore, the courts will not allow a Rule 202 deposition that is intended to discover trade secrets.[4]  For these reasons, even if I were inclined to use this tool more often, its usefulness is limited.

When researching Rule 202 for my prior case and for preparing this blog post, I was surprised to find quite a bit of case law interpreting the rule.  Apparently, this pre-suit investigative tool is used more often than I originally suspected.  If you have any experience with this procedure, or any thoughts on what I have written, please share in the comment section below.

[1] In re Bailey-Newell, 439 S.W.3d 428, 431-32 (Tex.App. – Houston [1^st Dist.] 2014, no pet.).

[2] In re Jorden, 249 S.W.3d 416, 418 (Tex. 2008); see Tex. Civ. Prac. & Rem. Code §74.351(s).

[3] In re Bailey-Newell, 439 S.W.3d at 431-32.

[4] In re Cauley, 437 S.W.3d 650 (Tex.App. – Tyler 2014, no pet.).

Congratulations to the AISD staff and students and to the community of Allen!

We are so happy for the students at Allen ISD. It is pleasing to know that Saunders Walsh & Beard played a role in getting Eagle Stadium ready for 2015 Graduation!

http://www.dallasnews.com/news/community-news/allen/headlines/20150531-graduates-to-reopen-allen-isds-eagle-stadium.ece

I was recently asked if I ever used email tracking software.  Initially the thought intrigued me, but I am concerned about the ethical implications.  The person who told me about this technology explained that it could provide me with an advantage in settlement negotiations.  Using this software, I could track how many times my emailed settlement offers were read and thus know whether my offer found any traction.  If they open it once and never open it again, I know that they are really uninterested.  However, if six people open it half a dozen times each, then I know that the offer is getting serious consideration.  While that sounds harmless enough, alarm bells were going off in the back of my head.  Should I have this advantage?  Is the number of times someone opens my email attorney-client privileged information?  I think it is attorney-client privileged information, and I do not think I should be privy to that information.

The most popular email tracking software currently on the market is called Sidekick.  This software places a single pixel in your email.  It is an imperceptible digital image that must be downloaded by the recipient’s email server.  Every time the email is opened, unless the recipient rejects image downloads, the pixel gets downloaded and the software tracks that information.  It is intended to be used for email marketing and sales, but there is no real restriction on its use.  You could use it on anyone for any purpose.

Frankly, as a lawyer, this bothers me.  While I am rather resigned to the fact that Big Brother Capitalism is always watching when I am on the internet, I am not at all comfortable knowing that opposing counsel could be counting the number of times I view his email, or, after forwarding it to my client, the number of times my client views his email.  This information may seem worthless, but it is not.  If opposing counsel knows that no less than five people opened his settlement offer, then he is not going to be swayed when I say, “That offer was a nonstarter.”  He is going to know, through clandestine means, that his offer got some attention.  For this reason, I believe that it would be unethical for lawyers to utilize this technology.

Scott Aurnou wrote an interesting article on ethical and security considerations for lawyers using email.  His article can be found HERE.  In discussing the American Bar Association’s Model Rules of Professional Conduct, Mr. Aurnou points out that lawyers have a duty to take “reasonable precautions” to protect emails containing a client’s protected information, but the rule “does not require that the lawyer use special security measures” if there is a “reasonable expectation of privacy.”  Now that I know about the use of email tracking technology, do I need to take measures to protect against the tracking of my emails?  I would argue that steps could be taken, such as adjusting my settings to not download images, but is that necessary under the model rules?  Perhaps.

  I do not have an answer to this question.  I think it needs to be discussed.  If you use email tracking in your practice, have you given the ethical issue serious consideration?  If so, I would like to hear your thoughts.  Please add to this discussion in the comment section below.