Musings on the Law

Saunders, Walsh & Beard is pleased to announce the promotion of Abigail Christmann to Senior Associate.

Since joining the firm in early 2017, Ms. Christmann has continued expanding her legal expertise in areas such as civil litigation, real estate, construction law, appellate advocacy, and insurance law (coverage and defense).

Ms. Christmann is licensed to practice law in Texas and has added the ability to handle matters in St. Louis and St. Charles Counties in Missouri. We are very proud of the attorney Ms. Christmann has become and look forward to her continued success.

On August 3, 2017, the 2^nd District Court of Appeals in Fort Worth granted class certification against Lon Smith Roofing (LSRC), a prominent North Texas Roofer, for violation of the Texas Public Insurance Adjusting Act. Given the direction the courts in North Texas have gone in the past few years, the ruling is not a surprise. It is a warning to restoration contractors in general, and roofers in particular, that the old way of doing business is over. Contractors that negotiate with, or even represent themselves as able and willing to negotiate with, insurance adjusters do so at their own peril. (read more)

By way of background, in September 2013, the Keys sued LSRC asking the court to declare their contract void and to order the return – to them – of all monies their insurance company paid to the roofer. It’s important to remember that this is not a lawsuit about whether the roof was properly or timely installed. The roof doesn’t leak, the color isn’t wrong, the roofer didn’t damage the driveway or flower beds, or fail to respond to warranty claims. This lawsuit, which is a continuation of a dispute that started in 2011, is about language that, until recently, was commonly found in roofing contracts throughout the state of Texas.  Language that I still routinely see in roofing contracts today.

The Keys asked the 236^th District Court in Tarrant County to approve them to act as representative plaintiffs in a class action lawsuit against LSRC. On October 15, 2015, the district court judge signed an order granting the class certification. That order was immediately appealed. Last week, after almost two years, the appellate court issued its ruling upholding the class certification on the Keys’ claim for the “return” of all monies paid to the roofer as part of their declaratory judgment claim (violation of Public Insurance Adjuster’s Statute/Insurance Code 4102) and the DTPA claim that provides for the potential for treble damages for violation of Texas Insurance Code 541 (unfair methods of competition and unfair or deceptive acts or practices). Class certification was denied for the DTPA claim for unconscionability.

The appellate court’s decision can, and likely will, be appealed to the Texas Supreme Court, who can choose to review that ruling, or to leave it undisturbed. In the meanwhile, the ruling upholding class certification is a further step in the continuum of cases favoring consumers to the detriment of restoration contractors. In discussing the facts supporting its decision to uphold the class certification, the court cited to testimony from Mr. Keys that the roofer “never told him that he could or should get a public insurance adjuster involved in his roof-damage claim under his homeowners’ policy” and that the homeowner “understood that [Roofer] was contracting to discuss his insurance claim with his insurer and was also contracting to repair his roof.“

Some groups are claiming this as a victory for consumers. Whatever your perspective on this issue, what is clear is that lawsuits claiming violations of the Public Insurance Adjuster (PIA) law have just been given a big boost via class certification.

What does mean for those of you working in the restoration contracting community? First, what happened to this roofer could have happened to any number of other roofers using the same or similar language in their contracts. Or any roofer negotiating claims with insurance adjusters. The ability to initiate class action lawsuits will embolden plaintiff’s attorneys to pursue similar claims against restoration contractors and roofers since they’ll only have to prove the representative plaintiff’s claim rather than the claims of every plaintiff taking part in the class action suit (one plaintiff – multiple verdicts). The cost to defend against a lawsuit of this type, win or lose, is extremely expensive. Further, if you lose, you not only have to write a check to the property owner for anything paid to you by them or their insurance company, sometimes tripled depending on whether the violation is determined to be knowing or intentional, you’ll also have to pay their legal fees, which will almost certainly greatly exceed the cost of the roof, to potentially every owner you sold for the last ten years (the span of the Keys/LSRC class action certification).

What should you do? Make sure your contract doesn’t contain any of the language the courts have determined violates the PIA statute. Include language in your contracts that specifically puts the owner on notice that you are not offering to and will not provide any PIA services. Don’t hold yourself out as an insurance expert. Understand and be ready to educate owners about their rights and options for dealing with insurance adjusters (attorney, appraisal, public insurance adjuster), making referrals where appropriate to ethical attorneys, appraisers, and public insurance adjusters who can advocate for the homeowner without taking away your sale. Restrict your conversations with insurance adjusters to answering questions regarding your scope and price – don’t negotiate the claim with the insurance adjuster.

Karen, you say, you don’t know what it’s like out in the real world. But I do understand, including that the majority of “negotiations” are initiated by the insurance adjuster. However, this PIA law isn’t going away. Instead, it is being vigorously and strictly enforced in the courts and by TDI, and the ramifications to your business cannot be ignored.

With Halloween just around the corner, it seems only fitting that it should be the topic of this week’s blog post.  While you are decorating your house, carving your pumpkins, and picking out your costumes, you might not be thinking about avoiding legal entanglements that may result from the celebration.  Thankfully, you read my blog, and I have compiled a short list of things for you to consider this holiday weekend:

• Costume etiquette – Besides being tasteful and conscientious enough not to wear your “naughty librarian” costume to your kid’s school’s fall festival, there are other places you should avoid wearing your costume. Do not wear your Halloween mask while driving.  Many masks will block your periphery vision, resulting in impaired driving ability, and a ticket.  It would also be inappropriate to wear your ski mask into a convenience store or bank.
• Decorating your house – Premises liability is always a concern when having guests over for parties. Halloween is probably the only holiday that someone might decorate with pointy objects and other tools of mayhem.  If you use such decorations, be sure they are secure and out of reach.
• Drink (and serve) responsibly – Alex Beard covered this topic last December, but it applies to Halloween parties as much as it applies to Christmas and New Year’s Eve parties.
• Prepare the front entrance for trick-or-treaters – Again with the premises liability. On Halloween, if you turn your lights on and decorate, you are inviting the public onto your property.  When you invite the public onto your property, you owe the public certain legal duties.  If you know that you have a loose cobble stone that could twist an ankle, you should probably get that fixed before Halloween night.  Just picture the little boy and his baby brother walking up your cobble stone path, hand in hand, when one of them twists an ankle, pulling the other down on top of them.  Given the number of plastic assault weapons in my home, I can always imagine numerous ways a child can hurt him/herself.  Think ahead and make sure that your front lawn and walkway are safe for children before turning your lights on this Halloween.
• Treats, not tricks – Every year, the morning after Halloween, I see a car covered with eggs or a house draped in toilet paper. I admit that I laugh, but I am also very grateful that I am not the one trying to get TP out of a tree or having to get paint chips repaired.  Remember, a “trick” can also be classified as “vandalism” or “willful destruction of private property.”
• Flaming Pumpkins of Death – NFPA’s most recent statistics show that decorations were the first item to be ignited in an average of 860 reported home structure fires per year from 2009-2013, causing an estimated average of one civilian death, 41 civilian injuries and $13.4 million in direct property damage. Nearly half of all decoration fires in homes are the result of decorations being too close to a heat source. I found this statistic HERE, along with a nice list of safety tips.

After researching and writing this blog post, I have decided that Halloween is a really hazardous holiday.  Be safe and please share any additional suggestions you may have for avoiding a truly scary Halloween.

 

Email has become the standard form of written communication in the business world.  It should come as no surprise that the laws have adapted to accommodate this new age of electronic communication.  We routinely enter into contracts while shopping online, but the formality of the experience leaves little question that we are entering into an enforceable agreement.  What many of us fail to recognize is that an enforceable agreement can be reached as a result of an exchange of emails.The Texas Uniform Electronic Transactions Act, Chapter 322 of the Texas Business & Commerce Code, is the law applicable to the creation of enforceable contracts by electronic means.  For the purpose of this article, there are two provisions of the Act that are of particular interest:

• 322.002(8) – “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
• 322.005(b) – This chapter applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct.  (Emphasis added).

The definition of “electronic signature” is so broad as to include a standard typed “signature” attached to most emails.  If you have created a standard email template that includes your typed signature, then you are intending to sign it.  If you are intending to sign the email, then even your standard typed email signature will be an “electronic signature” for the purpose of the Act.

Section 322.005(b) requires that the parties agree to conduct transactions by electronic means.  If it was left at that, then there would be little cause for concern or argument, but that is not the case.  The statute allows the courts to look beyond the existence of an express agreement to determine whether the parties impliedly consented to transact business electronically.  Given the amount of business conducted via email, a party would be hard pressed to argue that it had not impliedly consented to transact business by electronic means.

            The most recent case interpreting the Act comes out of the Federal District Court for the Northern District of Texas.  In the case of Williamson v. Bank of New York Mellon, 947 F.Supp.2d 704 (N.D. Tex 2013), the attorneys for the parties exchanged emails regarding settlement terms and reached an agreement.  After the emails were exchanged, the plaintiff fired her attorney and refused to abide by the terms of the negotiated settlement.  The defendant filed the emails with the court and sought to enforce the agreement pursuant to Texas Rule of Civil Procedure 11.  The issue before the court was whether the emails constituted a signed written agreement between the attorneys.  In finding that the emails constituted a signed written agreement, the court applied the Texas Uniform Electronic Transactions Act and concluded that the plaintiff’s former attorney’s act of signing his email with his typed name was sufficient to create a contract under the Act.  Specifically, the court held, “A typed name at the end of an email is similar to a ‘signature’ on a telegram, the latter of which can satisfy the statute of frauds.”  Id. at 709.

            In its opinion, the Federal Court specifically disagrees with an earlier opinion out of the Fort Worth Court of Appeals entitled Cunningham v. Zurich Am. Ins. Co., 352 S.W.3d 519, 530 (Tex.App. – Fort Worth 2011, pet. denied).  The facts in Cunningham are very similar to the facts in Williamson.   In the Cunningham case, the court concluded that a standard signature block did not evince an intent to sign an email under the Act.  The Federal Court rejects this decision on well-reasoned grounds:  1) the attorney created the signature block and directed his email client to attach it to his outgoing emails; 2) the Act is to be construed broadly; and 3) allowing a signature block to have the same effect as a typed signature is consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices.  Williamson, 947 F.Supp.2d at 710-11.  In practice, the Fort Worth’s opinion will be controlling within its jurisdiction, but it will be on equal footing with the Williamson opinion as persuasive case law throughout the rest of Texas.

            In conclusion, it is important to be aware that your typed signature on an email may create an enforceable contract.  The best practice would be to treat your emails like the typed, wet-signature, letters of yesteryear.  In the alternative, if you wanted to be particularly careful, you may consider ditching your standard signature block or amend it to specifically disclaim an intent to transact business via email.

The 2015 Texas Legislature did a lot of good work during the 84^th Legislative Session.  Many of the most notable bills passed involved the budget, tax cuts, education and transportation.  If you are the typical Texan, you will likely acknowledge that these laws are important and that they will ultimately affect your life in some minor way whether you realize it or not.  That being said, I have skimmed through the most recent legislative update and identified some new laws that might interest you on a more immediate level.  Here is my list of interesting new laws that have, or will soon, go into effect:

• HB 7 – No more $200 annual occupation tax!!! Practicing in one of the formerly taxed occupations, I am very pleased with this one.
• HB 910 and SB 11 – These laws concern the new open carry and concealed carry laws. To learn more about these laws, please see my earlier post HERE.
• HB 11 – More money to fund border security. This is  a high profile, highly debated issue, so I am just going to say that $800 million dollars is a lot of money.  Maybe they should have left the occupation tax in place.
• HB 40 – There can be no local regulation of oil and gas. If you want to complain about the earthquakes in North Texas, then you need to talk to the people in Austin, not your local city council.
• SB 339 – Epilepsy patients can now obtain doctor-prescribed, non-recreational “low-THC cannabis.” The first step on the slippery slope to legalizing recreational marijuana.  I would say that it’s never going to happen, but I have been wrong before.
• HB 1150 – Yes! We can legally buy fireworks to celebrate Texas Independence Day, San Jacinto Day, and Memorial Day.  Of course, if there is a burn ban in place, and there usually is, the question of whether you can actually set off your fireworks is to be determined
• HB 554 – Finally, if you accidently forget to take your Glock out of your briefcase before entering an airport, you will not immediately be arrested. You will have the option to leave the screening area (or get arrested).  You might miss your flight, but you will not spend the day in a holding cell.
• SB 462 – This law creates a means by which real estate can be transferred upon death without the time and cost associated with a formal probate. While this law may not immediately affect you, it is certainly something to be aware of when planning your estate.
• HB 2398 – This is another new law that may not affect you, but it might. This law repeals both the criminal offense and the juvenile offense of truancy.  There is now only the civil offense of truant conduct.  As an added bonus, all past criminal records created as a result of the old laws are being expunged.

That concludes my list of interesting new laws.  What does it say about our state, or maybe just me, that of the 1,300+ laws that were enacted, I could only find ten worth mentioning in this blog?

Please feel free to add to the discussion in the comment section below.  Thanks for reading.

            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.

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.

Recently, I had a minor disagreement with opposing counsel.  It was nothing of any significance, but I had my attention drawn to the Texas Lawyer’s Creed.  My first impression was that neither opposing counsel nor I were living up to the standards set forth in the Creed.  After doing my best to apologize for my part in our disagreement, I sat down and read through the entire Creed, which can be viewed HERE.

Before I read the Creed for the first time in many years, I would have told you that I am the type of lawyer that naturally follows the Creed.  I do not need to be told that I owe opposing counsel “courtesy, candor, cooperation and scrupulous observance of all agreements and mutual understandings.”  I do not need to be reminded that “my word is my bond.”  That all goes without saying.  However, reading through the Creed, I am reminded that the bar is set quite a bit higher, as it should be.  I must admit that I had forgotten some of the finer points, and I found a few that I think deserve mentioning.  Here are a few things we should all remember in the future:

Section I.  Our Legal System

(4) – I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.

[Now you can see why I felt it necessary to write this article.]

Section II.  Lawyer to Client

            (1)  I will advise my client of the contents of this creed when undertaking representation.

            (4)  I will advise my client that civility and courtesy are expected and are not a sign of weakness.

[I must admit to having this conversation with a few of my more enthusiastic clients over the years.  Generally, if I am having this conversation with a client, things are not going well.  The same is true of the next couple of sections.]

            (5)  I will advise my client of proper and expected behavior.

      (6)  I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.

         (7)  I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.

         (8)  I will advise my client that we will not pursue tactics which are intended primarily for delay.

Section III.  Lawyer to Lawyer

       (1)  I will be courteous, civil, and prompt in oral and written communications.

[I believe that I follow this one on a general basis, but I tend to respond poorly when other attorneys fail to be courteous, civil, and prompt.  I find it odd how rarely attorneys respond promptly, especially given the number of deadlines involved in our profession.]

            (6)  I will agree to reasonable requests for extensions of time and for waiver of procedure formalities, provided legitimate objectives of my client will not be adversely affected.

[While I am always quick to provide an extension, I only ask for an extension when it cannot be avoided.  It is so rare to have an opposing party respond to discovery by the original deadline.  I wish it would happen more often.]

            (10)  I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties, and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

[Amen.  Assuming all attorneys follow the Creed, there should never be “good cause” to attribute bad motives or unethical conduct to opposing counsel.  When I first started practicing, I saw conspiracies and gaming in every move my opponents made.  That is the path to insanity.  I now do my best to attribute reasonable and benign motives to my adversary’s actions.  Sometimes I have good cause to attribute bad motives or unethical conduct, but such instances are rare.]

            (13)  I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.

[If it is your habit to copy the court on correspondence, please disregard what I am about to write.  I absolutely loath the practice of copying the court on a correspondence involving a dispute over discovery.  Please do not be that kind of attorney.]

            (14)  I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement.

[I must take exception to this one.  While I will always make an effort to schedule a deposition by agreement, I rarely contact opposing counsel before scheduling a court appearance or hearing.  Assuming I have followed all of the other tenants of the Creed, I have made every effort to avoid involving the court in whatever dispute needs to be resolved at a hearing.  If the motion has to be filed, I am not eager to call opposing counsel back and coordinate our schedules.  I will strive to do better in the future.]

            (19)  I will not seek sanctions or disqualification unless it is necessary for protection of my client’s lawful objectives or is fully justified by the circumstances.

[The fastest way to get on my bad side is to threaten me with a motion for sanctions.  As you have read, I always assume the best in opposing counsel; we are just doing our jobs.  I also do not file lawsuits or seek discovery without first giving serious consideration to the justness of my cause, as required by the Creed.  Therefore, it really aggravates me when an attorney suggests that my actions are deserving of a sanction.  I do not mind if opposing counsel does not like what I have done, and I am okay if he/she is angry at first.  However, I find it insulting when opposing counsel suggests that I may have done something so unethical to warrant sanctions.  Please do not be that kind of attorney.]

Section III.  Lawyer and Judge

            (1)  I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.

[I must confess that I have failed to meet this standard on more than one occasion.  I find confidence in reminding myself that our elected judges are men and women who once practiced law before judges; they have once stood in my shoes.  While this is a great way to prepare for a hearing or a trial, keeping my nerves in check, such a strategy has to be tempered by the understanding that the judge represents an ideal.  I have heard more than once, “You solute the rank, not the man.”  In much the same way, I remind myself that I must be humble before the bench.]

            (4)  I will be punctual.

[In high school, my band director required us to show up for concerts at least 30 minutes early.  If we were not 45 minutes early, we were marked as tardy.  He would say, “To be early is to be on time.  To be on time is to be late.”  I have lived by that motto ever since.  Of course, there are always circumstances that may prohibit me from being on time.  In those rare situations, I am always prepared to contact the court coordinator and explain why I am running late and when I hope to be before the court.]

            I hope this brief, annotated, refresher of the finer points of the Texas Lawyer’s Creed proves beneficial to your practice, if you are a lawyer, or educational, if you are a layman.  Please add to the discussion in the comments section below.

What will become of my digital music, movies and books when I die?  I am getting ready for a trip.  Part of planning for the trip was deciding what audiobooks to download from Audible.com, what eBooks to download from Amazon, and what movies to download from iTunes.  While making these hard decisions, I paused briefly to reflect on how amazing it is that I can store all of these things in the cloud or directly on my iPad or iPhone.  I can now keep in my pocket a vast library of music, books and videos that would have taken up all of my cabinets and shelves in home only a few years ago.  (Speaking of which, the cabinets in my built-in entertainment nook are completely empty and have been for years.  My wife has considered storing the kids’ artwork in them).  While I was gazing into the half-distance, reflecting on the digital age, it suddenly occurred to me that I have not updated my will since my third son was born.  As my mind tried to cope with the sudden turn, the two thoughts collided and resulted in, “How will my boys divide up my digital library when I am dead?”  I am the holder of the password (I don’t think my wife knows it), and there are hundreds, if not thousands, of dollars in family entertainment locked in the cloud.

            Having discovered a gap in my legal knowledge, I did what any well-educated professional does when faced with a unique question, I googled it.  The majority of my search results were articles from 2012.  Each of the articles pointed out that the purveyors of digital entertainment have airtight user agreements that very clearly state that they are selling a non-transferable license.  If you cannot transfer it, then you cannot bequeath it.  My iTunes library is going to disappear when I die!  This cannot be right!  It’s not fair!

            The first page of my search results contained some interesting information.  Apparently, in September of 2012, there was a rumor that Bruce Willis was planning to sue iTunes for the right to transfer his iTunes library to his kids upon his death.  There were also quite a few articles pointing out that Bruce Willis denied the rumors.  I did get one result from 2014, an article on Slate.com by Ariel Bogle.  Ms. Bogle does an excellent job covering this topic.

            Ms. Bogle’s article, as well as others I found, point out that there are creative ways to get around this particular problem.  One such way, although a bit ridiculous from a practical standpoint, is to create a trust or corporate entity with which to buy digital entertainment.  Keep in mind, you could not transfer anything into the trust or corporation; you would have to create it, provide it with the capital, create online accounts, then purchase the digital materials in the name of the trust/corporation.  What fun!  The low-tech solution, though technically a breach of the user agreement, is to make sure that your heirs have your current username and password.  “To my first son of my only marriage, I do hereby bequeath ‘CowboysChamps1996’ and all of the rights, privileges and responsibilities connected therewith.”  I cannot wait to add something like that to the next will I draft.

            The only permanent solution to this problem will be through the enactment of legislation.  The iPod was first released in 2001.  I was 23 at the time and did not purchase an iPod for another six years.  My iTunes library has been increasing at an exponential rate over the past six years and is likely valued at well over $1,000.  That does not include the apps on my iPhone and iPad, nor does it include my eBook collection on my Kindle.  It should be safe to say that by the time I am in my 80’s, I will have over $10,000 worth of digital content.  That is a lot of money.  I and other old men who vote will have to become more politically active in our old age.  I will make it my personal mission to ensure that my iTunes library will carry on after I am dead.  I suspect that the laws will change before I die.  I would rather put my efforts behind introducing legislation rather than incorporate “Jacob’s iTune Library, Inc.”  Rock the vote!!!

In just about every publication aimed at the legal profession there will be an article about the joys of being a lawyer.  In such articles, the lawyer will often tell a story about his or her humble beginnings and how, through hard work and determination, they were able to complete law school and pass the bar.  The article will usually go on to describe the joys of helping people and serving the community.  I do not doubt the sincerity of those authors.  I too am at my happiest when I am serving a noble cause and helping my fellow man.  Assuming those are the noble reasons for being a lawyer, the following are the Top Five other reasons I love being a lawyer.

Number 5:  Hearing lawyer jokes.

            At some point, when meeting new people, someone will ask me, “So, what do you do for a living.”  After I tell them I am a lawyer, they will often say, “Have you heard the one about the lawyer who….”  Yes.  Yes, I have.  I have heard every lawyer joke ever written.  In fact, I can say with near certainty that the last time I heard a lawyer joke for the first time was about six months after I passed the bar, over a decade ago.  I am quite proud of my encyclopedic knowledge of the lawyer joke genre of comedy.

Number 4:  Getting speeding tickets.

            Let me tell you, police officers just love it when I say, “Hey, I am a lawyer.”  I have to stop them from apologizing for pulling me over.  When they ultimately overcome their initial fear, they do an excellent job documenting my crime.  They properly note the posted speed limit, that I identified myself as an attorney, my speed, my lack of current registration, the fact that one of my tires needs air, and my slightly cracked tail light.  They are also very prompt to show up for my court date.  Because of my profession, the police who give me speeding tickets take special care in conducting their official duties.

Number 3:  Friends, family and total strangers asking for legal advice.

            “I hope you don’t mind, but I have a question for you.”  That is how the I-need-some-legal-advice conversation normally begins.  I got a call from a cousin, in another state, who I had not spoken to in twenty years, because he had a question about the concealed carry laws of his state.  I do my best to answer all such inquiries, but my answer usually begins like this, “Now, I am not your lawyer, and I am not licensed in your state.  Also, I am a civil litigator and your family/criminal/tax issue is not really in my area of practice.  And don’t forgot, free legal advice is worth exactly what you pay for it.  All of that being said….”  It warms my soul to be so helpful.

Number 2:  Everyone assuming you are wealthy.

             I have to admit that I love it when people compliment me on being so humble despite being a wealthy attorney.  They say things like, “It’s good to see an attorney driving a late model Ford rather than some expensive import,” or, “You don’t mind picking up the tab, do you?”  Let’s be honest, it is not actual wealth, but the appearance of wealth that attracts people.  Rather than buying a flashy car or throwing around cash, I just show people my bar card.  Once people know that I am a lawyer, they assume that my lack of material possessions (and cash) is simply me living a bohemian lifestyle.

Number 1:  Knowing you should read the fine print, but still not doing it.

            I have asked numerous clients, “Did you read the contract before signing it?”  While a layman may be surprised by the fine print, I am not.  I know that the contract that I am signing was drafted by a lawyer.  I know that if I read the contract, I would not like the terms, and I may even think twice before signing it.  I also know that I want what the other party is selling, and I will ultimately agree to almost any terms.  As a result, I throw caution to the wind and will sign your document without a second thought.  It’s great being a lawyer.

Throwing a holiday party this year in your home?  Having guests over where alcohol will be served?  If so, then you know it’s always possible that someone is going to drink too much.  And you know things can get out of hand if that occurs.  Now you’ll probably get over it if someone throws up on your new rug or trips over the dog, but what about when they get behind the wheel?  Can you be held liable if that someone drives drunk and ends up killing someone on the way home?

          Generally speaking, in Texas the answer is no, you can’t be held liable.  The landmark Texas case in this area of the law is Graff v. Beard (   and in case you were wondering, no, the “Beard” party in that case was not me or any of my extended family members as best I can tell).  In that case, the Texas Supreme Court held that a social host has no legal duty to prevent a guest who will be driving from becoming intoxicated or to prevent an intoxicated guest from driving.  That is still the law.  So if you serve alcohol to a guest and they end up harming themselves or someone else, you generally cannot be held liable for the harm done.

          But that doesn’t mean you shouldn’t take precautions when throwing a party or having a gathering in your home.  Keep in mind that if someone can still sue you under a premises liability theory if they become injured as the result of a defect on the premises that you were aware of but failed to warn them about. So consider gathering all of your guests together to warn them about dangerous conditions they may be unaware of or might overlook.

As for alcohol, the best policy might be to simply urge your guests to drink responsibly.  If you try to do too much, you might find yourself in hot water if you don’t do what you set out to do.  In a case decided just last year by the Texas Supreme Court, Nall v. Plunkett, the Court dealt with a situation where some homeowners were sued after they held a New Year’s Eve party where they instituted a rule that anyone remaining in their home after midnight had to stay overnight.  Someone broke the rule and tried to drive home after midnight, and another guest tried to stop them and became severely injured.  Although the Court ultimately ruled in favor of the homeowners, it did so based on procedural grounds.  The Court did not reach the merits of the case.  The general rule is that if you undertake a duty, you must do so non-negligently.   So for now, the best practice is to use your best judgment and be careful if undertaking any additional duties not otherwise imposed by the law.

Don’t drink and drive.  Have a safe and Happy New Year from all of us at Saunders, Walsh & Beard!

Written By: Alex Beard

As they do each year, the Dallas Morning News published their list of those for whom we should be thankful on this truly American holiday.  I was struck by the common theme of their selections: people who help and serve others.  While hardly a novel concept, it was a good reminder of who constitutes the most remarkable among us.

Like many in our line of work, I grow weary of the sweeping assaults on the legal profession by the politicians and comedians (despite the undeniable humor of many.)  Too often I feel forced to explain that “I don’t practice THAT kind of law,” tacitly agreeing with the gist of their critique.  Why?

The commercials are sickening.  Loud-talking blowhards promising “cash” for fender benders on daytime television don’t look and sound like my friends and adversaries over the last 18 years (well, maybe one or two, but certainly not 99%).  The vast majority of my contemporaries, like me, wanted to pursue this difficult profession to be like Atticus Finch (at least in some small way.)  To HELP those who needed help.

I don’t know how to treat Ebola-stricken patients in a hospital.  However, I DO know how to file a mechanic’s lien to help a plumber with weak English skills get paid for the work his crew performed for months so that he can pay his workers.  I can’t clothe, house and feed house the hundreds of thousands of Central American refugees at the border like our Border Control agents.  However, I can help an entrepreneur establish her new corporation and hopefully employ dozens of employees.

My son asked me when he was in the first grade what a lawyer does.  It’s a tricky question to answer for a commercial litigator; I couldn’t think of any accurate “first grade response.”  Then it came to me: “We help people do things they can’t do for themselves.”  It’s true and I think it’s honorable.  I’m thankful for the opportunity to be a lawyer.

Okay, so a priest, a doctor and a lawyer are playing golf…

Written By: Mark Walsh