Standard Possession Orders for Texas family law cases

Standard Possession Orders for Texas family law cases

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

In the event that you are served with papers ordering you to appear in court for a case related to your child, you probably would have some questions that you would like answered. To begin with, why do you have to go to court in the first place? If you are paying some amount of child support to your child’s mother and see your child with the regularity you may want to just continue doing what you’ve been doing and not have to worry about going to court.

Although taking off work and going to court may be a hassle (and it is), the end result of your going will be a good thing for you, your child and the child’s mom. A court date to establish orders in relation to you and your child will result with you being awarded visitation time as well as rights and duties that pertain to raising your child. It is only then that you formally have rights and duties to that child if you are not married to the child’s mom and have not previously acknowledged paternity.

Step one of the process, if you are not yet the legal father of the child, is to be named as the child’s legal parent. With that comes the ability for you to step in and participate in a negotiation regarding custody, visitation, possession, and access. Unless circumstances require a different conclusion, you and your child’s mother will be named as joint managing conservators of your child. This allows you to share in the rights and duties associated with raising your son or daughter.

What sort of visitation will you be ordered in a Texas family law cases?

The presumption is that you will be ordered visitation that is included within a Standard Possession Order. This order allows you to be able to spend time with your child on a fairly substantial basis throughout the year.

If you live within 100 miles of your child you will have visitation with him or her on the first, third and fifth weekends of each month. You will also have a visitation period each Thursday during the week where you can take your child to dinner and then take him or her back to their other parent’s home. Holidays like Thanksgiving and Christmas will alternate year by year. For example, if you get Thanksgiving this year, your child’s other parent will have Thanksgiving next year. Finally, you are entitled to an extended period of possession during the summertime that lasts for 30 days.

If you do not live within 100 miles of your child, then your periods of possession will look slightly different. For instance, your weekend schedule may be the first, third and fifth weekends of each month, or it may be reduced to as little as one weekend per month. It will all depend on the distance put between you and your child, the frequency with which you can travel and other factors relevant to your case.

Because of the distance between you and your child, there is no mid-week visit on Thursdays when you live more than 100 miles apart. The alternating of holidays would still occur, and you would be provided with an even longer period of extended summer possession. Instead of 30 days of possession, you would have 42.

Changes to the Standard Possession Order may occur based on specific circumstances

If your child under the age of three then it is likely that that the visitation provisions that we just went over will need to be altered slightly to take into consideration your family’s dynamics. For instance, because your infant relies on their mother for food in many cases, he or she must literally be within arm’s reach at nearly all time. As a result, visitation overnights may not be possible for a few years until your child is older. Of course, if your child is comfortable with visiting overnights with you and he or she is bottle fed these limitations may not apply to your case.

What is in your child’s best interests?

Everything that we have discussed today and everything that a court would consider in your family law case are based on what is in that child’s best interests. This is a difficult question to answer because there are a lot of factors that exist for your child and your family that may not exist for other kids and their families. As a result, judges have a tough assignment to make interpretations of your individual circumstances.

However, the Texas Family Code does contain helpful information that can guide your judge in making a determination as to what is in the best interests of your child. What your child wants to see happen is important to a judge, especially if your child is over the age of 12. A motion can be filed with the judge to have him or she confer with your child in their office to determine what your child’s preferences are.

Before I go any further, I want to note that what your teenage child wants is not the be all, end all of your case. Many parents tell me at the beginning of their child custody case that theirs will be a quick and easy case because they know that their child wants to live with him or her. In their mind, all we have to do is file a motion to have the judge talk to their child and the case will quickly be over with. This is not how things actually work, however.

In the real world of family law cases, a judge can speak to your child if a motion is filed. If your child is over the age of 12 the judge must honor that request and speak to your child about their living preference. Any child under the age of 12 may also speak to the judge but in that situation, the judge will get to decide whether or not to speak to a child so young about this subject. All of the other issues that we are going to discuss right now are just as important if not more important as your child’s preference.

The emotional, physical and mental needs of your child now and in the future will be considered by the judge as well. The safety of your child is also important and so if any physical or emotional dangers exist in your home or that of your child’s other parent it is likely that primary conservatorship would be given to the parent whose home life is more conducive to raising a child in a safe environment.

On a practical level, the parenting abilities of you and your child’s other parents will be assessed. You may be the most competent dad in the world, but if you have never really made any time to see your child other than in the weeks prior to your child custody case, it is likely that your parenting abilities would rate rather low with the judge. The reason for this is simple: you have never taken the time to attempt to parent your child.

What are your plans and goals for your child?

A parent with a roadmap of where he or she wants their child to go and how he or she is going to help their child attain those goals is a desirable quality for a parent to possess in the eyes of a judge. Part of those goals is being able to provide your child with a stable home life that allows him or her to reach their potential. If you are moving every six months because you cannot pay your rent, or have significant others causing problems for your children then you will have trouble arguing that your home life provides the best possible environment for raising your kids.

What happens with child support if you do not attend your court hearing?

If you do not attend your court hearing when child support is being determined, you run the risk of having a child support award determined for you. If that doesn’t seem fair, read this: a court may order you to pay child support based off of minimum wages being earned 40 hours a week. That could be what a court determines even if you do not work. That is a tough thing to digest, so if you have the information you want to share with the judge regarding either of these subjects you need to make sure you appear for every hearing that occurs.

What happens if your child comes to live with you? Do you still need to pay child support?

In some situations, your child’s other parent will need you to take care of your child for an extended period of time for any various reason. Maybe he or she has to go care for an ill relative. Maybe he or she has to spend some time in jail. There are a number of reasons why your child’s other parent could approach you regarding the full-time care of your child. If this happens to you, it is reasonable to wonder whether or not you have to pay child support even if you have become the full-time caretaker for your child.

Even if you start to care for your child on a full-time basis and he comes to live with you primarily, you are still responsible for paying child support under your court order. As such, I could not recommend that you stop paying child support. Your child support orders can be modified (changed) and so this responsibility will not be ongoing if modification is requested and granted by your court. However, until that happens you need to pay child support on time and in full.

Can you pay more or less child support than what is laid out in the Texas Family Code?

The Texas Family Code contains the guideline amounts of support that people are expected to pay towards the upbringing of their children. However, it is may happen that your child either needs to receive a higher than guidelines level of support or an amount of money that is below the child support guidelines.

You can ask a judge to order you to be able to pay a non-guidelines level of support for any reason that you would like. It must be shown that the modified amount of child support is in the best interests of your child. The age of your child, their specific needs, their health and the split in custody between yourself and your child’s other parent are the other main factors that I believe a court will look to when assessing a child support amount for you to pay.

Keep in mind that you and your child’s other parent can agree to change the amount of child support that is paid- either upward or downward. If you all can negotiate and agree on a new amount, all you have to do is draft a new set of final orders that reflect that change. A judge can review those new orders and sign off on it as long as it is determined that the change in child support is in the best interests of your child.

More on child support to be posted in tomorrow’s blog

If you have ever wondered when the responsibility to pay child support ends or if you also have to pay for your child’s health insurance as well as child support, please head on back to our blog tomorrow. We will cover this information and more with you all.

In the meantime, if you have any questions about the material that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with one of our licensed family law attorneys. These consultations are a great opportunity to ask questions and receive feedback about your particular circumstances.

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



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The Texas Legislature Has Limited Discovery Of A Defendant’s Net Worth For Exemplary Damage Claims

Originally published by David Fowler Johnson.

Plaintiffs in civil litigation often seek punitive or exemplary damages. “Exemplary damages” means any damages awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages are neither economic nor noneconomic damages. “Exemplary damages” includes punitive damages. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(5). A jury may only award exemplary damages if the claimant proves, by clear and convincing evidence, that the harm resulted from: (1) fraud; (2) malice; or (3) gross negligence. Id. at § 41.003(a). Under Texas case law, exemplary damages may be proper in breach of fiduciary duty cases where the plaintiff can prove by clear and convincing evidence that the action arose by actual fraud, malice, or gross negligence. Murphy v. Canion, 797 S.W.2d 944, 949 (Tex. App.—Houston [14th Dist.] 1990, no pet.); see also Lesikar v. Rappeport, 33 S.W.3d 282, 311 (Tex. App.—Texarkana 2000, pet. denied); Natho v. Shelton, No. 03-11-00661-CV, 2014 Tex. App. LEXIS 5842, 2014 WL 2522051, at *2 (Tex. App.—Austin May 30, 2014, no. pet.).

A jury must consider multiple factors in determining the amount of an exemplary damages award: “(1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; (5) the extent to which such conduct offends a public sense of justice and propriety; and (6) the net worth of the defendant.” Tex. Civ. Prac. & Rem. Code Ann. § 41.011. So, a jury may consider the defendant’s net worth (size) in determining the amount of damages to assess as exemplary damages. A jury may determine that a larger exemplary damages award may be appropriate to punish a larger defendant in order to dissuade future similar bad conduct.

One issue that arises is whether a plaintiff is entitled to discovery into the net worth of a defendant by simply pleading an exemplary damages claim. Many defendants, especially individuals and private entities, understandably consider that type of information to be confidential or even trade secrets. Those defendants have argued that before they have to turn over that type of sensitive information, there should be some evidentiary showing that there is some merit to the exemplary damages claim.

More than twenty-five years ago, the Texas Supreme Court expressly rejected an argument that net-worth discovery should be limited until plaintiffs show that they are entitled to exemplary damages. Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex. 1988) (orig. proceeding), overruled on other grounds by Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding). Under prior Texas law, a party seeking discovery of net-worth information did not need to satisfy any evidentiary prerequisite, such as making a prima facie showing of entitlement to exemplary damages, before discovery of net worth was permitted. In re Jacobs, 300 S.W.3d 35, 40-41 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding [mand dism’d]); In re House of Yahweh, 266 S.W.3d 668, 673 (Tex. App.—Eastland 2008, orig. proceeding); In re Garth, 214 S.W.3d 190, 192 (Tex. App.—Beaumont 2007, orig. proceeding [mand. dism’d]); In re W. Star Trucks US, Inc., 112 S.W.3d 756, 763 (Tex. App.—Eastland 2003, orig. proceeding); Al Parker Buick Co. v. Touchy, 788 S.W.2d 129, 131 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding).

On June 19, 2015, Senate Bill 735 was signed into law changing the way net-worth discovery will be conducted going forward. Act of June 19, 2015, 84th Leg., R.S., ch. 1159, § 2, 2015 Tex. Sess. Law Serv. 3923, 3923 (West 2015). The bill, codified as Section 41.0115 of the Civil Practice And Remedies Code, requires a party seeking net worth discovery to first demonstrate and obtain a finding from the trial court that there is a substantial likelihood of success on the merits of a claim for exemplary damages. See Tex. Civ. Prac. & Rem. Code § 41.0115(a) (West Supp. 2015).

The provisions of section 41.0115 did not become effective until September 1, 2015, and apply only to an action filed on or after that effective date. See Act of June 19, 2015, 84th Leg., R.S., ch. 1159, § 3, 2015 Tex. Sess. Law Serv. 3923, 3923 (West 2015). Parties have requested that courts apply this statute retroactively, but at least one court has expressly denied that request. In re Michelin N. Am., Inc., No. 05-15-01480-CV, 2016 Tex. App.  LEXIS 2467 (Tex. App.—Dallas March 9, 2016, original proceeding). Further, the Texas Supreme Court denied a petition for review seeking a similar holding after full briefing on the merits. In re Robinson Helicopter Co., 2016 Tex. App. LEXIS 378 (Tex. May 13, 2016). So, at this point, the only authority is that Section 41.0115 is not retroactive and only applies to cases filed after September 1, 2015. Of course, this issue becomes less important as time passes and fewer cases that were filed before 2015 exist.

Texas Civil Practice and Remedies Code Section 41.0115 provides:

(a) On the motion of a party and after notice and a hearing, a trial court may authorize discovery of evidence of a defendant’s net worth if the court finds in a written order that the claimant has demonstrated a substantial likelihood of success on the merits of a claim for exemplary damages. Evidence submitted by a party to the court in support of or in opposition to a motion made under this subsection may be in the form of an affidavit or a response to discovery.

(b) If a trial court authorizes discovery under Subsection (a), the court’s order may only authorize use of the least burdensome method available to obtain the net worth evidence.

(c) When reviewing an order authorizing or denying discovery of net worth evidence under this section, the reviewing court may consider only the evidence submitted by the parties to the trial court in support of or in opposition to the motion described by Subsection (a).

(d) If a party requests net worth discovery under this section, the court shall presume that the requesting party has had adequate time for the discovery of facts relating to exemplary damages for purposes of allowing the party from whom net worth discovery is sought to move for summary judgment on the requesting party’s claim for exemplary damages under Rule 166a(i), Texas Rules of Civil Procedure.

Tex. Civ. Prac. & Rem. Code Ann. § 41.0115.

This provision sets up several steps for a plaintiff to obtain net worth information. First, the plaintiff must file a written motion requesting that information. The statute does not state what is required in this motion. The statute does not appear to require that the motion be verified. Presumably, it can be a simple one page motion stating a request for the net worth discovery, and then the movant can elaborate at the hearing. An advocate may choose to have a longer motion that describes the facts, claims, evidence, and explains how the evidence establishes a substantial likelihood of success on the merits.

Second, the plaintiff must set a hearing and provide notice of same to the defendant. There is no express requirement for how much notice should be provided. Certainly, many courts are so busy that a short notice period will not be possible. The Texas Rules of Civil Procedure provide that there should, generally, be at least three-days’ notice of a hearing.

Third, the statute provides that the opposing party can file evidence. The statute does not require a written response though it requires a written motion. So, a party opposing such a motion can forego a written response and simply show up at the hearing and offer evidence and argument to contradict the plaintiff’s motion. However, once again, an advocate may decide to prepare and file a detailed response that contradicts the plaintiff’s claims and evidence.

Fourth, there must be a hearing where the plaintiff must “demonstrate[] a substantial likelihood of success on the merits of a claim for exemplary damages.” Id. The statute does not describe what this standard means or provide other guidance. The Texas Civil Practice and Remedies Code provides that, at trial, a party has to establish a claim for exemplary damages by clear and convincing evidence. Clear and convincing evidence is “proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). While the proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Id. This burden of proof should be compared to a preponderance of the evidence. Under a preponderance of the evidence burden, the fact finder must decide if the plaintiff’s allegations meet the legal standard of the preponderance of the evidence meaning that they are “more likely true than not.” Essentially, the fact finder must be convinced that it is at least 51% likely that the plaintiff’s allegations are correct.

However, Legislative history indicates that the phrase “substantial likelihood is not intended to be the same as the clear and convincing standard” nor is it even a “preponderance standard.” The intent is that, for the “the plaintiff to be entitled to net worth discovery, it’s only necessary that the claimant present a prima facie case, but not to demonstrate that he is certain to win.” The plaintiff need only raise “questions on the merits to make them fair ground for more deliberative investigation.” A similar standard may be the “probably right to recovery” standard that is required for a court to issue temporary injunctive relief. To show a probable right of recovery, an applicant need not establish that it will finally prevail in the litigation, rather, it must only present some evidence that, under the applicable rules of law, tends to support its cause of action. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (Tex. 1961); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211, (Tex. 2002); IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 197 (Tex. App.—Fort Worth 2005, no pet.); Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 638 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); Gatlin v. GXG, Inc., No. 05-93-01852-CV, 1994 Tex. App. LEXIS 4047 (Tex. App.—Dallas April 19, 1994, no pet.); 183/620 Group Joint Venture v. SPF Joint Venture, 765 S.W.2d 901, 904 (Tex. App.—Austin 1989, writ dism’d). To establish a probable right of recovery, a party need only show that a bona fide issue exists as to its right to ultimate relief. Gatlin, 1994 Tex. App. LEXIS at 4047; 183/620 Group Joint Venture, 765 S.W.2d at 904; Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961). The common law clothes the trial court with broad discretion in determining whether an applicant has met its burden. Recon Exploration, Inc. v. Hodges, 798 S.W.2d 848, 851 (Tex. App.—Dallas 1990, no writ).

What type of evidence can a trial court consider in making this determination? The statute provides that this finding may be supported or opposed by “an affidavit or a response to discovery.” So, parties may file affidavits, interrogatory responses from the opposing party, responses to requests for admission, documents, deposition transcripts, etc. The statute, however, does not limit evidence to affidavits and discovery products. A party can potentially call a witness and have live sworn testimony.

Fifth, if the court grants the discovery, the trial court must file a written order that “that the claimant has demonstrated a substantial likelihood of success on the merits of a claim for exemplary damages.” So far there is only one case that has applied Section 41.0115: In re WTG Fuels, Inc., No. 11-19-00390-CV, 2020 Tex. App. LEXIS 280 (Tex. App.—Eastland January 13, 2020, original proceeding). In that case, a trial court allowed the net worth discovery and signed an order that stated:

BE IT REMEMBERED that on this the 25th day of September, 2019, came on to be heard Plaintiffs’ Motion to Conduct Net Worth Discovery for Gross Negligence Claims Against Defendant WTG Fuels, Inc., and the Court having reviewed the pleadings and heard the arguments of counsel finds that said motion should be GRANTED on a limited basis. IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Conduct Net Worth Discovery for Gross Negligence Claims Against Defendant WTG Fuels, Inc. is GRANTED. However, it is limited to discovery of the Balance Sheet of WTG for the current year and the preceding year only.

Id. There was no express finding of that the claimant had demonstrated a substantial likelihood of success on the merits of a claim for exemplary damages. The court of appeals granted mandamus relief to reverse the order, stating: “In the October 9, 2019 order, Judge Satterwhite did not make a finding that Plaintiffs had demonstrated a substantial likelihood of success on the merits of their claim for gross negligence. In the absence of that statutorily required finding, Judge Satterwhite could not exercise discretion to order discovery of WTG’s net worth.” Id. So, the court held that the statute means what it says, the trial court must expressly state that there is a substantial likelihood of success on the merits. There are no implied findings that support the order. However, it should be noted that the statute does not require the trial court to discuss the evidence and explain why the plaintiff met the statutory burden.

If a trial court authorizes net worth discovery, the court’s order will require the defendant to produce the net worth evidence. Tex. Civ. Prac. & Rem. Code Ann. § 41.0115. Section 41.001 of the Texas Civil Practice and Remedies Code defines net worth as: “the total assets of a person minus the total liabilities of the person on a date determined appropriate by the trial court.” Id. at § 41.001. Generally, parties are entitled to only documents that show the current net worth of a defendant. See In re Michelin N. Am., Inc., No. 05-15-01480-CV, 2016 Tex. App.  LEXIS 2467 (Tex. App.—Dallas March 9, 2016, original proceeding); In re Ameriplan Corp., No. 05-09-01407-CV, 2010 Tex. App. LEXIS 31, 2010 WL 22825, at *1 (Tex. App.—Dallas Jan. 6, 2010, orig. proceeding) (mem. op.) (trial court erred in ordering production of corporation’s balance sheets for two prior years and its current and prior income statements because documents did not reflect current net worth).

The statute provides that the court’s order may only authorize use of the least burdensome method available to obtain the net worth evidence. Tex. Civ. Prac. & Rem. Code Ann. § 41.0115. This could include tax returns, financial statements, or Securities and Exchange Commission filings. To the extent the information is already public, a defendant objecting to a request for net worth information could plausibly defeat such a motion by arguing that the publicly available information is equally available to both parties and therefore defendant is not required to produce documents or information in response to request. Potentially, a trial court may permit broader discovery in cases in which it is necessary to provide an accurate reflection of the defendant’s net worth. See In re Brewer Leasing, Inc., 255 S.W.3d 708, 713 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding [mand. denied]) (permitting additional net worth discovery where trial court implicitly found that previously provided unaudited balance sheets did not adequately represent the net worth of the relator).

There is no express right to appeal a trial court’s decision on a motion. Because there is no immediate relief by an interlocutory appeal, one court granted mandamus relief from a trial court’s order granting net worth discovery under the statute. In re WTG Fuels, Inc., No. 11-19-00390-CV, 2020 Tex. App. LEXIS 280 (Tex. App.—Eastland January 13, 2020, original proceeding). The statute does provide that when there is appellate review, the reviewing court may “consider only the evidence submitted by the parties to the trial court in support of or in opposition to the motion.” Tex. Civ. Prac. & Rem. Code Ann. § 41.0115(c). So, a party on appeal should not be able to cite to other evidence in the record to support or attack the trial court’s order. This will require the parties to refile any evidence that they want the court of appeals to consider in conjunction with the motion and response. It is unclear whether the statute abrogates a trial court’s ability to take judicial notice of its own file or a party’s right to incorporate evidence on file with the court in its motion for net worth discovery or response thereto.

Finally, the party seeking net worth discovery via this motion should be prepared to defend a no-evidence or traditional motion for summary judgment on its exemplary damages claim. The statute provides: “the court shall presume that the requesting party has had adequate time for the discovery of facts relating to exemplary damages for purposes of allowing the party from whom net worth discovery is sought to move for summary judgment on the requesting party’s claim for exemplary damages under Rule 166a(i), Texas Rules of Civil Procedure.” Tex. Civ. Prac. & Rem. Code Ann. § 41.0115(d). So, if the plaintiff seeks net worth discovery very early in a case, it should be prepared to have to answer a no-evidence motion for summary judgment on the exemplary damages claim early in the case. A cautious plaintiff may want to wait until near the end of discovery to file a motion for net worth to ensure that it will have time to discover underlying facts and be prepared to respond to a no-evidence summary judgment motion.

The new procedure for obtaining net worth discovery is intended to protect a defendant from the disclosure of confidential information where the plaintiff’s exemplary damages claim is facially meritless. Texas courts will wrestle with how the procedure works in the years to come.

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



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In Sixth Circuit, a Change in Contribution Payment Methods under a Group Health Plan is not a Loss of Coverage under COBRA

Originally published by Haynes and Boone Benefits Group.

In Morehouse v. Steak N Shake, the U.S. Court of Appeals for the Sixth Circuit (the “Sixth Circuit” or “Circuit Court”) reversed a federal district court’s prior holding that a change in contribution payment methods under a group health plan constitutes a loss of coverage under COBRA. The plaintiff was a participant in Steak N Shake’s (“SNS”) group health plan when she sustained a work-related injury. Due to her injury, she took a leave of absence (and thus incurred a reduction in her work hours) and began receiving workers’ compensation benefits. Because the participant was not receiving her usual salary from SNS, SNS instead deducted her contributions toward her plan coverage from her workers’ compensation checks. When the participant’s workers’ compensation payments terminated, SNS informed her that she must continue to pay her required plan contributions out-of-pocket in order to continue her coverage under the plan. When she did not make a required payment, SNS discontinued her coverage without offering her COBRA coverage. The participant filed suit claiming that her reduction in work hours following her injury, together with the required change in her contribution payment method, was a “qualifying event” under COBRA which entitled her to notice of her COBRA continuation coverage rights. The district court agreed and required SNS to pay both compensatory damages and statutory penalties. On appeal, the Sixth Circuit reversed the district court’s decision. The Circuit Court found that a COBRA qualifying event did not occur when the participant first began her leave of absence because, although a reduction in hours (one type of COBRA qualifying event) occurred, the participant did not experience a loss of coverage at that time because (i) her contributions were deducted from her workers’ compensation payments and (ii) her plan coverage continued unchanged.

The Sixth Circuit then considered whether a deferred loss of coverage occurred when SNS changed the participant’s contribution payment method, noting that, under COBRA, a “loss in coverage” occurs when there is a change in the terms and conditions of coverage. The Circuit Court held that SNS’s alteration of the participant’s contribution payment method did not change the terms and conditions of her coverage and thus did not cause a deferred loss of COBRA coverage. As a result, no COBRA qualifying event occurred, and no COBRA election notice would be required.

Although the employer in this case did not violate its COBRA notice obligations toward the participant, the employer was subject to a costly lawsuit to defend its position. When terminating a participant’s group health plan coverage for a reason that does not trigger COBRA rights, an employer should consider communicating proactively with the participant to inform him that the termination of coverage does not entitle him to COBRA continuation coverage.

The Sixth Circuit’s opinion is available here.

The post In Sixth Circuit, a Change in Contribution Payment Methods under a Group Health Plan is not a Loss of Coverage under COBRA appeared first on Haynes and Boone Blogs.

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



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Does it matter who files first in a divorce?

Does it matter who files first in a divorce?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Many people are under the impression that filing first in a divorce will put you at an advantage over your spouse. This is generally not true but there are some reasons a person should consider when pushing to be the first to file in a divorce.

The first person to file a divorce in the state of Texas is known as the petitioner. The opposing party is known as the respondent. This petitioner’s name will be stated first in the case style on all pleadings that are filed in the case and will be the first party to present their arguments at any hearings or at trial.

Being the party to file the initial suit means the petitioner can have an option at deciding what county to file in. If both parties are residents of different counties, it may matter to a person that they file in the county where they currently reside. This can be for many reasons, a big one being convenience. Especially for parties that are domiciled out-of-state, it can be urgent that you file your suit first. This would ease you from having the inconvenience of having to travel, and instead require the other party travel to the county where you have filed the suit.

Of course, this does not give the petitioner any county as an option as they must meet the residency requirements to be able to file in any county. For example, in order to file within Harris County a person must be (1) domiciled in the State of Texas for at least six months, and more specifically, (2) have resided in Harris County for at least 90 days prior to filing a petition for divorce. Only one party needs to meet these requirements, meaning that even if you do not meet these requirements you can still file within that county if your spouse does.

However, a court would still need to be able to exercise personal jurisdiction over a respondent if the petitioner meets the residency requirements. This means they will need to have the authority to require the out-of-state party to subject themselves to the laws of the state and court. Simply stated, personal jurisdiction is the court’s power over the parties to a lawsuit. Personal jurisdiction is typically granted to a court over an out-of-state respondent through a long arm statute. The two main types of long arm statutes that pertain to a divorce would be divorce jurisdiction and parent-child jurisdiction if there are children involved in the marriage. All statutes in relation can be found within the Texas Family Code, Section 6.305.

Another thing to consider when filing first, is that the Petitioner is responsible for paying the initial filing fee. This fee can range anywhere from $300 to $400 depending on what county the lawsuit is filed, and if there are children involved. As a respondent, the only pleading required would be an answer which is mainly free, but at most can cost a few dollars. If you are wanting to countersue the petitioner for divorce, the respondent would need to file a counterpetition which can range from $50 to $100. In short, the initial filing will incur more costs. This as well does not include the fees a petitioner will have to bear by requesting a citation and hiring a process server to serve the respondent. This too can be costly, especially if the respondent’s whereabouts are unknown. These fees are something a person should keep in mind if they are insisting on filing first in a divorce.

A petitioner can have the upper hand in a divorce because they are able to set the tone of the divorce. This means they will have to decide whether they want to plead fault or no fault in the original petition. However, pleadings can be amended and changed by either party after the initial filing. Most people however will aim for an amicable divorce where no-fault has been plead, but they can always amend later if they want to include any at fault grounds for the divorce.

Along with the original petition for divorce, it is not uncommon for a petitioner to file a request for temporary orders along with the petition. They are often requested in the initial pleading, and their purpose is to put restrictions on how the parties should behave during the divorce proceeding. These can include visitation rights, conservatorship of the children, child support, who will have access to the marital home, bills, etc. A petitioner can have the advantage here because they will have more time to prepare for the hearing versus the respondent. A petitioner can also ask for a Temporary Restraining Order (TRO) which can help prevent the other party from hiding assets. A TRO is binding on your spouse and can help deter these behaviors. A petitioner has the advantage to prepare for both a temporary order hearing and a temporary restraining order.

Most family and divorce law cases will not make it to trial, this is because most cases will settle in mediation before the case goes to trial. While it is the most cost-efficient method to settle outside of court, there are a small percentage of cases that do end up in a trial. If you are a petitioner in a case this can have a significant impact on what trial strategy is used. A petitioner gets to present their case before the judge first, to which a respondent will have to counter-argue and put on their case second.

If you are unable to file first in a divorce proceeding, a person should not worry too much because you will still be able to fully present your case in the divorce process. You have the right to counterpetition and present your arguments before the court. However, if you are persistent in filing first you should keep in mind the advantages you will be entitled to in preparing your case against the respondent. Also, you should be aware of the cost you will incur with the initial process of filing and service of process.

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



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Bluestone v. Randle – Another Case to Watch – Post-Production Costs

Bluestone v. Randle – Another Case to Watch – Post-Production Costs

Originally published by John McFarland.

Last April the Fort Worth Court of Appeals issued its opinion in Bluestone Natural Resources II, LLC v. Randle, No. 02-18-00271-CV, 2019 WL 1716415. The Court decided that, under Randle’s lease, Bluestone could not deduct post-production costs and owed royalty on plant fuel and compressor fuel. Bluestone has petitioned the Supreme Court for review and the Court has asked for briefs on the merits.

Randle’s lease was a printed form with an exhibit. The printed form provided that royalties on gas would be “the market value at the well of one-eighth of the gas so sold or used …” Exhibit A provided that “the language on this Exhibit A supersedes any provisions to the contrary in the printed lease hereof.” One provision in Exhibit A dealt with post-production costs:

Lessee agrees that all royalties accruing under this Lease (including those paid in kind) shall be without deduction, directly or indirectly, for the cost of producing, gathering, storing, separating, treating, dehydrating, compressing, processing, transporting, and otherwise making the oil, gas and other products hereunder ready for sale or use. Lessee agrees to compute and pay royalties on the gross value received, including any reimbursements for severance taxes and production related costs.

The trial court held that Bluestone could not deduct post-production costs, and the Fort Worth Court of Appeals agreed. The Court distinguished Heritage Resources v. NationsBank, 929 S.W.2d 118 (Tex. 1996) and held that the no-deduction clause in the lease’s exhibit modified the royalty clause – in particular, the second sentence of that clause. The second sentence, not present in Heritage, provided an alternate measure of value for royalties – “gross value received” rather than “market value at the well” – and “gross value received” means proceeds prior to deduction of post-production costs. This part of Exhibit A conflicts with the printed royalty clause and so must supersede that clause.

Bluestone argued that the second sentence in the Exhibit A provision did not establish an alternate “valuation point” for the royalty, so the valuation point must still be “at the well” as provided in the printed form. The Court disagreed:

[Bluestone] argues that once an “at the well” measure is baked into the royalty provision, it requires super clarity in any provision that attempts to alter its effect. We construe this argument to mean that once a royalty provides an “at the well” point of valuation, a lease can alter that scheme of valuation only by clearly altering its terms to provide a different point of valuation, such as by striking the words “at the well” when they appear in a lease. …

We do not see how we would be giving Exhibit A its controlling role if we were to cut and past the words “at the well” from Paragraph 3 of the Printed Lease into Paragraph 26 of Exhibit A. In fact, that approach would seem to take exactly the opposite approach mandated by the superseding provision in Exhibit A; we would be resolving the conflict by giving superseding effect to the terms of the Printed Lease. …

In essence, Appellant’s position boils down to the argument that once it appears, the “at the well” measure is so “baked into” the royalty calculation that it has to be physically removed by going to the length of actually striking those words wherever they appear.

The Court noted that the Supreme Court has recognized that  “a proceeds measure–not tied to particular point of sale–creates a measure that does not allow the lessor to net-back its post-production costs,” citing Judice v. Mewbourne Oil Co., 929 S.W.2d 133, 136 (Tex. 1996): Burlington Res. Oil & Gas Co. LP v. Texas Crude Energy, LLC, 2019 WL 983789 at 5; Chesapeake Expl. LLC v. Hyder, 483 S.W.3d 70, 873 (Tex. 2016); and Heritage Res., 939 S.W.2d at 130.

The Court noted that its conclusion may be contrary to that of the El Paso Court of Appeals in Commissioner v. SandRidge, 454 S.W.3d 603 (Ct.App.-El Paso 2014, no pet.), which construed very similar language to allow deduction of post-production costs.

The Court also held that Bluestone had to pay royalty on plant fuel and compressor fuel. Plant fuel was gas produced from the leased premises and burned in the gas plant that processed the lessee’s gas. The compressor fuel was a commingled gas stream that included gas produced from the lease and other leases and was sent to compressors on Plaintiff’s lease and other leases to compress gas produced from the leases. The lease provides that “Lessee shall have free from royalty or other payment the use of … gas … produced from said land in all operations which Lessee may conduct hereunder .. and the royalty … shall be computed after any so used.” The Court held that this provision applied only on gas used on the leased premises. “Hereunder means “under or in accordance with this writing or document.” Plant fuel was not used to operate the lease or produce oil or gas from the lease, but to process gas in the third-party gas plant.

The Court also reasoned that the lease required payment of royalty on “gross value received” from the production; that the lessee received value from the processo in exchange for free use of the gas as fuel; and that Bluestone owed royalties on that value.1

The Court recognized that some of the gas produced from Plaintiff’s lease was used in compressors on the lease and therefor would be covered by the “free from royalty” clause. But the Court held that, because the lessee commingled gas from the lease with other gas, it had a duty to account for the aliquot share of the gas that is burned in compressors on the lease, citing Humble v. West, 508 S.W.2d 812 (Tex. 1974), and had failed to do so, and so was obligated to pay royalty on all production from the lease used as compressor fuel.

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



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ADA Title III Litigation: A 2019 Review and Hot Trends for 2020

ADA Title III Litigation: A 2019 Review and Hot Trends for 2020

Originally published by Seyfarth Shaw LLP.

By Minh N. Vu

ADA Title III Litigation: A 2019 Review and Hot Trends for 2020 1Seyfarth Synopsis:  ADA Title III lawsuits flooded federal courts in 2019 and will likely continue to do so in 2020 with new theories for the courts to consider. 

We are still tallying up the end-of-year numbers, but the number of ADA Title III lawsuits filed in federal courts by the end of November 2019 (10,206) exceeded the number of such lawsuits filed in all of 2018 (10,163).  California courts continue to be the busiest with roughly 43% of the lawsuits, with New York and Florida courts taking second and third place with  24% and 18% of the market share, respectively.  With plaintiffs and their lawyers constantly conjuring up new claims, businesses are not likely to see any relief from these types of suits in 2020.

What types of lawsuits are trending now?

Braille Gift Card Lawsuits.  Starting in October of 2019, more than a dozen blind plaintiffs represented by five attorneys have filed at least 243 lawsuits in the Southern and Eastern Districts of New York alleging that retailers and other businesses have violated the ADA and New York state and city laws by failing to offer for sale gift cards that have all the information printed on the cards shown in Braille. These cases are assigned to at least twenty-nine different judges. A firm in southern California has also jumped on the bandwagon, filing Braille gift card lawsuits in California state court and sending out a number of pre-suit demand letters. Most defendants are digging in for a fight so we expect to see many motions to dismiss filed in the first quarter of 2020.

Website and Mobile App Accessibility Lawsuits.  Although we are still tallying the numbers, lawsuits alleging inaccessible websites and mobile apps accounted for at least a fifth of the total number of ADA Title III lawsuits filed in federal courts in 2019. Most plaintiffs in these cases are blind and claim that the websites in question do not work with their screen reader software which reads website content aloud. A much smaller number of plaintiffs are deaf and are suing about the lack of closed captioning for online videos.

Plaintiffs continue to file these website and mobile app accessibility lawsuits, though the rate at which they were being filed seemed to slow down in the fourth quarter of 2020. The change may be attributable to the fact that some of the lawyers who were filing many of these website accessibility suits in New York have turned their attention to Braille gift card lawsuits.

The big news from 2019 on the website accessibility front was the U.S. Supreme Court’s refusal to hear Domino’s appeal from a Ninth Circuit Court of Appeals decision allowing a blind plaintiff to pursue his lawsuit against the pizza chain for having an allegedly inaccessible website and mobile app. Businesses had hoped that the Supreme Court would hear the case and perhaps take some action to curtail the tsunami of website and mobile app lawsuits.

In 2019, Plaintiffs also made significant headway in persuading California state courts that inaccessible websites violate the state’s non-discrimination statute, including one appellate affirmation of a judgment in favor of blind plaintiff. In fact, one California Superior Court judge decided that the ADA applies to websites of businesses with no physical location where customers go. In reaching this conclusion, this California judge rejected federal Ninth Circuit precedent that the ADA only applies to websites of public accommodations with a nexus to a physical location.

Hotel Accessibility Information on Reservations Websites.  A number of plaintiffs filed lawsuits against hotels for allegedly failing to provide sufficient information about the accessibility of their accessible guest rooms and common areas on their websites, as required by the ADA Title III regulations, to allow travelers with disabilities to make informed decisions about whether a hotel meets their needs. In response to this flurry of lawsuits, many hotels have updated their websites to provide the required information. Now some plaintiffs are filing lawsuits alleging that hotels are not making accessible rooms available for sale on websites operated by third party online travel agencies.

Accessible Hotel Room Dispersion.  Title III of the ADA requires hotels to provide accessible rooms in a range of different room types (e.g. rooms with two beds, premium views, suites) so that people with disabilities have room choices that are comparable to those offered to people without disabilities. One plaintiff in particular has filed more than a hundred lawsuits under this theory, and we have no reason to think she will stop in 2020.

Inaccessible Facilities.  Historically the most prolific category for accessibility lawsuits, we have continued to see in the lawsuit filing numbers and in our practice many lawsuits about allegedly inaccessible physical public accommodations facilities such as hotels, retail stores, restaurants, and shopping centers in 2019. We do not expect this to change in 2020.

***

Be sure to subscribe to our ADA blog to receive notices of developments throughout the year!

Edited by Kristina Launey

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



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Will Dispute Arises Over Definition of “Personal Effects”

Will Dispute Arises Over Definition of “Personal Effects”

Originally published by Tiffany Dowell.

 

A recent case involving a will devising “personal effects” to a family member is a good reminder of the need to be detailed and complete when drafting a will, and the importance of residuary clauses.

Will Dispute Arises Over Definition of “Personal Effects” 2

Photo by sydney Rae on Unsplash

Background

In 1990, Mildred Ethridge drafted a will that included the following provisions:

I, MILDRED L. ETHRIDGE, (femme sole) of Midland County, Texas, for the purpose of the distribution of my entire estate, real, personal and mixed, which I wish to have take effect at my death, do make, publish and declare this to be my Last Will and Testament, and I do hereby revoke all former wills and testamentaries heretofore made by me at any time.

I hereby appoint and name Fred D. Davis, Jr. as Independent Executor and trustee of my estate, to serve without bond.  I give Fred D. Davis, Jr. all my personal effects to clear my estate after my death.

I give and bequeath my 1/2 ownership in my residence and homestead…to Patricia Petosky. 

Mildred passed away in 1994.  Prior to her death, she gifted her 1/2 ownership interest in the homestead to someone else, leaving Davis as the only named party under the will. Davis was named executor of her estate. 

At her death, Mildred had money in checking accounts and miscellaneous property including furniture and a television. She also had mineral interests that were not specifically devised in her will or included in the inventory submitted to probate.  The mineral lessee began paying royalties to Mildred’s estate and Davis opened a checking account to receive these royalties.  Believing he was entitled to her entire estate, he transferred the royalty payments from the estate’s checking account into his personal account.

Lawsuit

In 2010, Mildred’s heirs discovered they may have been entitled to royalties under her estate. They argued that the mineral interests did not pass under her will. At trial, the court had to construe the meaning of the term “personal effects.”  The court held that this term as more limited than “personal property” and rule that it included only the furniture and television owned by Mildred, but did not include her bank accounts, receivables, and interest in oil, gas, other minerals, royalties, real property, or other personal property.  As to these assets, the court held she died intestate and the intestate succession laws should govern distribution.

Davis appealed the court’s decision regarding the definition of “personal effects.”  The Eastland Court of Appeals affirmed the trial court’s ruling. [Read full opinion here.]

The court noted that, when interpreting a will, a court seeks to ascertain the intent of the testator based on the language included in the will itself.  Terms used in a will are to be given their “plain, ordinary, and generally accepted meaning” unless the will shows they were used in a technical or different sense.

First, Davis argued that the initial clause in her will stated that her intent was to dispose of her entire estate, real, personal, and mixed.  It was her intent, Davis argued, to divide her property into two categories–the 1/2 interest in the Oxford House, and then everything else, which she referred to as “personal effects.”  Davis argues the court should broadly interpret the phrase “personal effects” because Mildred was not an attorney and her will was not drafted by an attorney.

The court rejected this argument. Under the law, the term “personal effects” generally refers “to articles bearing intimate relation or association to the person of the testator” such as clothing, jewelry, toiletries, glasses, dentures, and luggage. Mineral interests do not fall within the scope of “personal effects.”  Further, Mildred indicated she intended to dispose of her entire estate, real, personal and mixed.  By stating she left only her “personal effects” to Davis, it appears she did not intend for that to include her real property as well.

In light of this, Mildred’s will did not dispose of her entire estate.  When a person drafts a will, there is a presumption that he or she intends to dispose of the entire estate.  That presumption is strong, noted the court, but can be overcome in situations where the testator fails to provide for complete distribution of property.  In that situation, the testator is found to have died intestate as to the property not included in the will.  In this scenario, the court upheld the finding that Mildred died intestate as to her mineral and royalty interests and her bank accounts.

Thus, the court affirmed.  Davis was entitled only to the furniture and television, while the bank accounts, mineral interest, and royalty interests passed through intestacy.

Key Takeaways

First, I think the most important reminder from this case is the need for including a residuary clause in a will. Even the most carefully drafted will may omit certain assets.  Whether that be something the testator simply forgot, something purchased after a will was drafted, or something that the testator thought was covered by the will that simply was not, this can certainly happen.  One way to avoid the issue here, where a portion of the estate passed outside the will via intestate succession, is to ensure that a will has a residuary clause.  This clause simply disposes of any estate assets that remain after all of the other devises in the will have been made. In this case, for example, had there been a residuary clause, the bank accounts, mineral rights, and royalty rights would have passed to the person named in the residuary clause.  A sample residuary clause could be: “I give the rest, residue, and remainder of my estate to my husband.”

Second, when writing a will, it is important for the testator to do his or her best to think of all assets owned.  I always recommend that before delving into will drafting or other estate planning, parties gather information on their assets, agricultural business, farm and ranch.  This includes an inventory list that identifies all major assets including real property, vehicles, equipment, mineral rights, royalty interests, bank accounts, retirement savings, investment portfolios, and personal property of significant value such as jewelry, artwork, and firearms. Having a complete inventory list can help to ensure one’s will does bequeath all of one’s assets.

Third, it is important to continue to update a will after it is drafted.  This is particularly important if major life changes occur such as births, deaths, divorces, or the sale or purchase of assets.  It is good practice to do a quick review of one’s will each year to ensure that changes do not need to be made.

Fourth, I always recommend that people at least consider using an attorney to draft a will.  There are certainly documents that I think people can adequately draft themselves without too much worry.  Wills, however, are so important and their interpretation is so critical that using an attorney to ensure that the testator’s wishes are carried out is generally well worth the cost.  Additionally, while there is an up-front cost to have a will drafted by an attorney, it will almost always be less than the cost of litigating a will dispute down the road.

Finally, for anyone serving as an executor of an estate, it is really important to ensure that the executor understands what assets exist and how they are to pass under the will.  Here, it was the executor’s belief that mineral and royalty rights were included in the term “personal effects” that caused the issue leading to litigation. Executors should be extremely careful and prudent before deeding over any assets from an estate.

 

 

 

 

The post Will Dispute Arises Over Definition of “Personal Effects” appeared first on Texas Agriculture Law.

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

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‘Bull’ Case Highlights Importance of Witness Prep

‘Bull’ Case Highlights Importance of Witness Prep

Originally published by Kacy Miller.

Testifying is stressful, regardless of topic. But when it’s about something personal, the witness requires even more intensive coaching to stay composed.

Michael Weatherly in an episode of CBS drama Bull that highlights the importance of witness prep.

Courtesy of CBS

Nothing says Happy New Year like a “Bull” episode with a predictably ridiculous happy ending. This week’s episode, “Look Back in Anger,” involves a civil trial alleging sexual abuse of a minor during camp for at-risk boys. The challenge, however, is the abuse occurred about 25 years ago. Even though New York temporarily lifted the statute of limitations for childhood sexual abuse for one year, suing over abuse from a quarter century ago is challenging, at best.

The plaintiff, Stephen Raposa, had originally hired Bull’s team to sue on behalf of his younger brother, Ryan, who claimed he had been molested at 13 by the camp’s founder, a wealthy businessman named Peter Maybrook. Ryan’s life had since been plagued with drugs, alcohol, theft and, generally, failing to cope in the adult world. One afternoon, Stephen finds Ryan bleeding out in his bathtub: He OD’d and slit his wrists to make sure the deed was done.

The team informs Stephen that despite New York’s new laws, he cannot sue on behalf of his deceased brother. Moments later, Stephen tearfully admits that he too was molested at the camp by Maybrook, and a claim is born.

The episode, as usual, confuses civil procedure with criminal procedure, and most of the time ignores procedure altogether. Apparently in the world of “Bull,” this thing called “discovery” does not exist, which makes for interesting television, but laughable moments. Instead of writing about the litany of far-fetched procedural snafus, I want to focus on a subtle, but critically important, interaction between Bull and his client.

After deciding to take on the case, Bull met with Stephen privately to talk through the details of what happened. (Note: Typically, this sort of meeting would occur before deciding to file a lawsuit, but again, procedural muckety-muck.)

Stephen has not told his story of childhood molestation to anyone before and he is clearly uncomfortable. Bull’s advice to him was spot-on:

[Your discomfort is] completely understandable, but you’ll have to tell the story in front of a jury, and the best way to prepare for that is here. 

Seldom do I wholeheartedly agree with Bull’s musings or tactics, but I can get on board with this one. Witness preparation is one of the most important, but often ignored, elements of trial prep. The law and the facts are the foundation of any successful case, but since human beings are the ones carrying the water for those facts, the people who tell your story must be ready to do so in a concise and compelling way. Unfortunately, the trial (and deposition) setting is so anxiety-producing that I’ve seen even the most composed professionals turn into sweating stammerers who would confess to the Lindbergh kidnapping just to get out of the hot seat.

Witness prep both helps them hone their message and also find ways to manage their (perfectly natural) anxiety. Here’s a rundown of my most crucial witness prep tips:

Acknowledge the Witness’ Discomfort

Whether your witness admits to it or not, he or she is feeling stress and anxiety about the prospect of testifying. And if your witness is testifying about personal issues, as opposed to accounting numbers or business policy, it’s even more difficult. This is especially true with victims in criminal matters; in family law cases, where dirty laundry and mudslinging accusations are almost a given; and in wrongful death or personal injury cases where a witness is testifying about a heart-wrenching loss, be it life or limb.

Empathize with your witness and acknowledge what they’re feeling. Let your witness feel all the feels; it’s OK. It’s not your job to make the feelings go away altogether. Instead, provide feedback that acknowledges what the witness is feeling and offer some support. Lawyering also involves a bit of shrinking (as does jury consulting).

The feelings that emerge when a witness recalls his story should never be overlooked, and I’m here to say, they often are. So, props to Bull for at least acknowledging the witness’ discomfort.

Practice Telling the Story

I’ve worked with witnesses who simply could not share their story without bursting into tears, expressing inappropriate anger or shutting down completely. And I am a friendly face and advocate. Can you imagine how these witnesses would fare in a deposition or on the stand without having told their story multiple times?

The more often a witness talks through her story, the more comfortable she’ll become with telling it. I’m not promising that your witness will turn into a rock star, but with preparation, she will certainly testify more effectively than they would otherwise. And know this: Telling the story does not always involve a formal mock question-and-answer session. Sometimes, you just need to have a casual conversation with your witness and allow her to process the experience, tap into the memory bank and figure out what her story actually is.

Use repetition to your advantage during the prep sessions. The story does not need to be perfect. It does not need to be trial-ready right out of the gate. It just needs to be accurate. Over time, the act of repetition teaches your witness that she can, in fact, tell her story. And tell it well.

Do Not Cram

The opportunities to talk through the story should occur long before the scheduled deposition or actual trial testimony. Do not, I repeat, do not, cram the night before. And do not wait until the witness bombs in a deposition to refine the message.

Ask any of my clients what I nag them about, and they’ll tell you this: Preparing your witness for testimony begins during discovery. It’s an ongoing process, not an eight-hour marathon meeting.

Break your prep sessions into multiple, shorter sessions. Yes, it’s a beatdown scheduling-wise, but it’s actually a win-win. The witness is provided more opportunities to tell her story and you are provided with multiple chances to identify inconsistencies, areas that require some information-gathering, and determining potential strengths and weaknesses from a fact standpoint.

Back to Bull

And now I realize I haven’t told you what happened in “Bull.” The quick version is this: Despite skepticism about Stephen Raposa’s claim that he too was abused by Maybrook (especially after the defense proves that Maybrook was out of the country during the critical date in Stephen’s testimony), Bull and team miraculously find photographic evidence of Maybrook’s affinity for young boys, resulting in a $35 million verdict against him.

The civil trial gave rise to criminal charges that most likely will put Maybrook in prison for a very, very long time.

OK, so I said it was a “happy” ending, and there isn’t such a thing when dealing with matters of sexual abuse. But, at the very least, there was a measure of justice for Raposa, which is something.

This article was originally published by Texas Lawyer on January 8, 2020. Reprinted with permission. © 2020 ALM Media Properties, LLC. All rights reserved.

 

 

Photo: Michael Weatherly as Dr. Jason Bull and Aaron Dean Eisenberg as Stephen Raposa in “Bull” season 4 episode 11: “Look Back in Anger.” Photo: CBS Broadcasting Inc.

The post ‘Bull’ Case Highlights Importance of Witness Prep appeared first on CourtroomLogic.

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

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Top 10 from Texas Bar Today: A Thinning Tightrope, a Lump of Coal, and a Worry-Free Year

Top 10 from Texas Bar Today: A Thinning Tightrope, a Lump of Coal, and a Worry-Free Year

Originally published by Joanna Herzik.

Top 10 from Texas Bar Today: A Thinning Tightrope, a Lump of Coal, and a Worry-Free Year 3To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. 20 Questions to Answer to Start 2020Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

9. Texas Supreme Court on arbitrability of class claimsChristopher Stevenson of Adair Myers Graves Stevenson @AdairMyers in Houston

8. Establishing coverageDavid Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

7. Happy New Year!! A Great Time to Review Your Insurance Policies for a Worry-Free YearChip Merlin of the Merlin Law Group @MerlinLawGroup

6. Safety, Substance Abuse and Mental Health: Helping yourself through a Texas family law caseBryan Fagan @bryanjfagan of Law Office of Bryan Fagan in Houston

5. Oil Field Services Gets Lump of Coal from SantaCharles Sartain and Ethan Wood of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas

4. Court Rejects Reasonable Cause Argument in FBAR Penalty CaseLaw Office of Kunal Patel, PLLC in Houston

3. Your Estate Plan May Need To Be Tweaked: The SECURE Act Has PassedRania Combs of Rania Combs Law @raniacombs in Houston

2. Court Holds That Will Contestant Was Not Estopped From Challenging the Will Due to Accepting AssetsDavid Fowler Johnson @TXFiduciaryLit of Winstead PC in Fort Worth

1. The Thinning Tightrope for Harassment InvestigationsRobert G. Chadwick, Jr. @chadwicklawusa of Seltzer Chadwick Soefje & Ladik, PLLC in Frisco

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



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Want to resolve your Texas family law case outside of court? Remember these rules of engagement

Filing an Answer and proceeding with a family lawsuit in Texas

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

If you have been served with a petition for divorce or a Suit Affecting the Parent-Child Relationship, then you may have questions about how to proceed. It’s probably pretty clear to you that your spouse or the other parent to your child has filed a lawsuit against you, but after that, you are unclear on exactly what you should be doing. Do you need to file something yourself? Should you hire a lawyer?  If you were served with the papers at a park or in a parking lot is that legitimate?

My first piece of advice on this subject is to at all times remain calm. A process server or constable has been hired by your opposing party’s attorney to go to the courthouse, pick up the documents from the court and give them to you. This has the effect of providing you with legal notice of the lawsuit having been filed. If you are approached by a person with paperwork that looks important you should receive the papers. There is no benefit to running away, throwing them on the ground or refusing to comply. Your opposing party will get “credit” for serving you notice of the lawsuit no matter what you do at that point.

Another point that I would like to make is that your spouse will get credit for having served you no matter where you are served. Many people are served at their home. Some are served at work. Others are served at doctor’s appointments, family member’s homes or other places that they regularly visit. Your opposing party will coordinate this with their attorney and the process server. Do not be surprised to be served if your spouse has spoken to you about filing for divorce or for a child custody case.

Do not make assumptions about what the paperwork you are served with says

One thing that I have noticed that people tend to do after they are served with a Petition for Divorce is that they will immediately read and become frustrated with what they are reading. The legal terms that are used in a Petition are often utilized in different ways than we would use those same words in everyday conversation. So, while you may think a phrase or request means one thing- it likely means something completely different.

With that said, you can read through what has been handed to you- it is your case after all. But, until you speak to an attorney do not make any hard and fast assumptions or determinations about what has been written in those documents. Requests for attorney’s fees to be paid by you is a common request in a Petition. When you file your Answer to that petition your attorney will likely make the same request of your spouse. It is not something to get immediately upset about.

What happens with the timeline of your case once you are served with a Petition?

The timeline or “clock” begins to tick as soon as you are served. The process server will report back to the courthouse with a document certifying that you were served with the Petition on that day at the specific time you were provided notice of the lawsuit. From there, a couple of different things happen.

First, you now have twenty days to file an Answer. Technically you have until the first Tuesday at 10:00 after the expiration of twenty days to file your Answer. An Answer is your legal response to the allegations and requests made by your opposing party in their Petition. It is not a complex legal document, but rather alerts the court that you are intending to participate in the lawsuit and have responses ready to the allegations made in the Petition. Most importantly, by filing an Answer you keep the opposing party in your case from getting a default judgment.

As simply as I can put it, a default judgment is a legal judgment that your spouse can get from a judge if it is shown that you were provided notice of the lawsuit, were served properly and then never filed an Answer. In order to keep your having not filed an Answer from delaying the end of the case, your spouse can then proceed to court after 60 days to have the judge sign into effect final orders that were created by her. You are bound by those orders even though you never laid eyes on them. Therefore, filing an Answer is a very important step in your legal case.

What should your reaction be after getting served?

We have already talked about how you should react at the moment that you are served. Well, you should continue to act calmly and rationally after the fact, as well. Speaking to an attorney as soon as you can is a good idea. I always advise potential clients of the Law Office of Bryan Fagan to speak to a handful of attorneys in order to get a good idea of what the issues are, to learn as much about the process as possible and to get a feel for the attorney herself. Once you have interviewed enough attorneys to feel comfortable you can make arrangements to hire one.

The lawyer will take care of filing an Answer for you. However, he or she will certainly ask you for information about your family in order to not only file an Answer but to prepare for the next stages of your case. The attorney should inform you that your case is a marathon and not a sprint. You may want to take action immediately to address inconsistencies or “lies” in the Petition. You will get that opportunity, but it likely will not come in front of a judge- more on that later.

For now, you should enter the mindset that you are not going to contact your spouse unless you absolutely have to. Communication regarding your child is fine as long as you can be civil. You do not need to speak to your spouse if he or she is being uncivil or nasty to you. By the same token, you should not act that way towards him or her.

Consider not logging onto Facebook, Twitter, Instagram or any other social media until your case is over with. Family law attorneys are good at getting dirt on the opposing party and social media is a great place to look. For example, if you log into a social media account and say nasty things about your spouse and make this out to be World War III then that is information that certainly would be interesting to your spouse and their attorney. Do not give your spouse any ammunition to be used against you later. Work with your attorney, work to see your kids and play nice in the sandbox.

An alternative to filing an Answer: signing a Waiver of Service 

There is one other way to respond to your spouse’s Petition for Divorce that we have not yet discussed in today’s blog post. That would be signing and filing a Waiver of Service. If you and your spouse are on speaking terms, agree on whatever issues exist in your case, and want to work together from the start to finish your divorce as quickly as possible then you can sign a Waiver of Service.

A few items to consider before signing a Wavier of Service. First, you need to read the Waiver carefully. Usually, if you have already hired an attorney, he or she will advise against you signing the document no matter what it says. However, if you do not believe that hiring an attorney is necessary then a Waiver can be signed. This happens with some frequency in situations where you and your spouse have talked through the divorce in a detailed fashion and have agreements in place on all issues related to your case.

Most waivers tell a court that you have received the Petition for Divorce (thereby proving that you have notice of the filing of a lawsuit) but waiver your right to be personally served with the lawsuit. From there, you will provide your contact information to the court so that they can have it on record if official mailing from the judge has to be sent out for any reason.

Temporary Orders: What they are and what they mean to your family law case

Filing for divorce, being served and then having an Answer filed can be looked at as the first step in the divorce process. Step number two involves something called Temporary Orders. This is a step where the marching orders for you and your opposing party will be established during the duration of your case. It is important that you be able to either negotiate for or have a judge award a fair array of temporary orders because the final orders in your case tend to mirror the temporary orders to a great extent.

If your case involves children then the temporary orders will deal primarily with them. Visitation, child support, conservatorship, etc. will all be dealt with. These orders will be signed by you, your opposing party and the judge. In a divorce, issues related to bills, property, temporary spousal support and other circumstances specific to your case will be hammered out. Issues regarding the sale of your home or other property, as well as the allocation of debts,  will be determined later in your case.

Most of the time, family law cases in the temporary orders phase will be settled in mediation. Mediation is a process where you and your attorney, your spouse and their attorney and an independent attorney will come together to attempt to settle and negotiate your case. You will typically go to the mediator’s office and that attorney will put you in one room and your spouse in another (with your lawyers). The mediator will then bounce back and forth in between your rooms in hopes of reaching a settlement.

If a settlement is reached, the mediator will draft a document known as a Mediated Settlement Agreement (MSA). That MSA will be the basis from which the temporary orders in your case will be drafted. One of your attorneys will be charged with the responsibility to draft the temporary orders based on the language contained in the MSA. Both attorneys will typically look over the final draft and decide whether or not it fairly reflects the MSA. Once both sides are satisfied it will be signed and sent to the judge for their signature.

If no settlement, then a temporary orders hearing occurs

Tomorrow’s blog post from the Law Office of Bryan Fagan will center around Temporary Orders. This is a full-fledged hearing that allows you and your opposing party to submit evidence to a judge if a settlement cannot be reached in mediation. It is called a hearing but in reality, it is a mini-trial. A person who walks into the courtroom could not distinguish your hearing from a trial, anyway. If you are interested in what your temporary orders hearing could look like, then please head back here tomorrow.

Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan are honored to be able to serve the community that we work and live in. For us, learning about you and your needs is the basis for developing a strong attorney-client relationship. We hope that you have learned something from our blog post today and always encourage questions and suggestions about the topics we discuss here.

If you have any questions or need clarification on anything you read today please do not hesitate to contact our office. We offer free of charge consultations here in our office six days a week. These consultations are a great opportunity for you to learn more about your case and to have your questions answered in a comfortable environment. We look forward to meeting with you and serving your needs along with those of your family.

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



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