Texas Lawyer Podcasts and Video Blog

Insurance Law: Court's UPLC Ruling Creates Confusion

Fri, 4 Apr 2008 12:07:01 -0500

The closely watched Texas Supreme Court opinion in UPLC v. American Home Assurance Co. creates confusion as to whom an insurance defense attorney represents in some cases, says Ernest Martin. Instead of settling a complicated area of law, the court may have engendered more uncertainty, confusion and continued litigation in an area already burdened with disputes, he says.

Legal Malpractice: Obstacles to Successfully Suing a Client's Former Divorce Lawyer

Thu, 20 Mar 2008 12:00:38 -0500

Clients of family lawyers continue to be one of the highest identifiable sources of ethics complaints and malpractice claims against lawyers, says Randy Johnston. This doesn't mean they're bad lawyers, he says, but the reality is that divorce lawyers handle some of the most emotionally charged legal issues any lawyer faces. In this podcast he discusses the land mines that can await the husband or wife who wants to sue a divorce lawyer.

Trusts & Estates: Red Flags to Watch for During the Initial Client Interview

Mon, 17 Mar 2008 09:32:40 -0500

The first interview with a prospective client gives a lawyer a good opportunity to decide whether to accept that person as a client, says Ingrid Warren. Typically, any early red flags will appear either from an heir or a testator, she says.

Video Blog: Reversed & Remanded

Mon, 17 Mar 2008 09:30:09 -0500

Watch Texas Lawyer senior reporter John Council and guest James Baker, former justice on the Texas Supreme Court, discuss: justices' travel expenses, where justices should live, 14 different appellate courts with 14 different ways to look at an issue, the per curiam approach, the Harriet Miers subpoena, and intellectual honesty.

Video Blog: Reversed & Remanded

Mon, 25 Feb 2008 13:50:50 -0500

John Council and guest Terri Moore of the Dallas County District Attorney's Office discuss: why the JFK documents were released, the Ruby-Oswald "transcript," conspiracy theorists' response, Chuck Rosenthal's resignation, and the state of the death penalty.

Video Blog: Reversed & Remanded

Mon, 11 Feb 2008 16:07:03 -0500

Watch Texas Lawyer senior reporter John Council and guest Greg Ave, a Dallas lawyer who handles insurance cases, in a no-holds-barred discussion on: interesting bedfellows in the Frank's Casing insurance case decision, the effect of amici briefs in that ruling, a challenge of the "pole tax," and a worker's comp case involving a professional athlete and a hard-to-predict court.

Video Blog: Reversed & Remanded

Mon, 28 Jan 2008 14:02:12 -0500

Watch Texas Lawyer senior reporter John Council and guest David Schenck of Jones Day in a no-holds-barred discussion on: how the U.S. Supreme Court's decision in the Stoneridge case presaged its denial of the appeal in the Enron case, how those rulings will affect business for law firms, the chances for Catharina Haynes' nomination to the 5th Circuit, the politics of judicial appointments, and how Wall Street upheaval affects law firms' business.

First Amendment: Gag Orders and the Media

Fri, 14 Dec 2007 16:03:02 -0500

Does the Texas Constitution allow a trial court to enter a gag order forbidding jurors from speaking to the news media following a highly publicized civil trial? Paul Watler says a recent ruling addresses that question.

Labor & Employment Law: Changes Looming for the NLRA

Fri, 14 Dec 2007 15:59:43 -0500

Times are changing, says Michael Maslanka, and one of the things due for the biggest changes is the National Labor Relations Act.

Video Blog: Reversed & Remanded

Fri, 14 Dec 2007 15:53:39 -0500

John Council and Mark Donald discuss a suit against Fleming & Associates, a gift list for the lawyer who has everything, a high-profile legislator ordered to pay back child support, the conviction of a San Antonio solo, and a new lawyer for Judge Samuel Kent.

Legal Malpractice and Attorneys Fees

Thu, 6 Dec 2007 14:41:16 -0500

Randy Johnston discusses a ruling in Akin Gump v. National Development Research Corp. that clarified a holding that attorneys fees incurred in prior litigation may not be recovered as damages in a later legal malpractice case. The court also held that damages in a legal malpractice case are not to be reduced by any contingent fee that was applicable to the underlying case, he says.

Family Law: Virtual Visitation

Tue, 20 Nov 2007 11:36:47 -0500

Brad M. LaMorgese tells how the Texas Legislature has revised the Family Code to try to catch up to developments in communication technology — particularly in the area of visitation of children. It's known as "virtual visitation," he says.

What Lawyers Need to Know About Legal-Malpractice Insurance

Thu, 15 Nov 2007 14:32:05 -0500

Randy Johnston strongly recommends that lawyers carry malpractice insurance. A failure to carry insurance is one of the most inconsiderate things a lawyer can do, he says. In this podcast he outlines the basics of typical malpractice insurance policies.

Legal Malpractice: Arbitration Clauses in Fee Agreements May Torpedo Malpractice Insurance Coverage

Tue, 6 Nov 2007 16:24:47 -0500

Randy Johnston says he's seeing more-frequent use of arbitration clauses in fee contracts and engagement letters. While you may think that's a good idea, he says that clause may jeopardize your insurance coverage.

Criminal Law: The Supreme Court's Dilemma in Addressing Lethal Injection

Fri, 2 Nov 2007 10:44:22 -0500

The fact that the U.S. Supreme Court is considering the constitutionality of lethal injection has had an immediate effect on death row inmates, says Gary Udashen. If advocates for abolishing lethal injection are successful, he says, states will be back to the drawing board in developing new techniques of execution.

Video Blog

Mon, 29 Oct 2007 09:30:18 -0500

John Council and Mark Donald discuss: Craddick blames tort reformers, Ronnie Earle may not run again, Clarence Thomas finds a fan in Dallas, Mikal Watts sticks by his story, and the HLF trial is a disaster.

Labor & Employment: Baby Boomers and the FMLA

Thu, 4 Oct 2007 14:04:49 -0500

Mike Maslanka sees baby boomers caught in a big squeeze: caring for children, on one hand, and caring for aging parents on the other. The Family and Medical Leave Act comes into play in these cases, he says, but the contours of the act are malleable, even after years of being in effect. He expects more and more cases invoking the FMLA in the future.

Family Law: Alimony/Maintenance in Texas

Thu, 4 Oct 2007 14:02:30 -0500

Modern times have brought about court-ordered alimony -- which goes by the innocuous name "maintenance" in Texas, says Brad M. LaMorgese. But spousal maintenance in Texas is limited in duration, limited in amount, and limited even as to who can qualify for it, he says.

Legal Malpractice: Ghostwriting Pleadings for a Pro Se Litigant

Tue, 11 Sep 2007 15:00:53 -0500

Randy Johnston discusses the "huge ethical issue" of ghostwriting a pleading for someone who is not a lawyer. In some jurisdictions, he says, ghostwriting is unethical per se as a fraud upon the court, while in others it is an accepted practice.

Bankruptcy Law: Second-lien Financing, the Next Wave of Bankruptcies and Intercreditor Agreements

Thu, 23 Aug 2007 15:43:21 -0500

Gregory Gordon says second-lien financings have become increasingly popular in recent years. The next wave of corporate bankruptcies will almost certainly feature disputes between second-lien and first-lien lenders, he predicts.

Advice for First-Time Corporate Litigants in Employment Cases

Thu, 16 Aug 2007 09:56:23 -0500

With the possibility of Democrats reclaiming the White House and maintaining a majority in Congress, Michael Maslanka sees a possible seismic shift in employment law, including the number of jury trials. He offers some advice for parties who might find themselves involved in litigation, especially first-time corporate litigants in the employment arena.

Legal Malpractice: Discovering Your Own Malpractice

Wed, 8 Aug 2007 12:57:13 -0500

What are your duties when you realize you've made a big mistake that puts you into a conflict of interest with your client? Randy Johnston gives some advice: full disclosure, informed consent.

Employment Cases to Watch at the U.S. Supreme Court

Thu, 2 Aug 2007 15:52:10 -0500

The U.S. Supreme Court — what Michael Maslanka likes to call "The High Nine" — is going to consider four employment questions beginning this October. He outlines those four cases in this podcast.

Insurance Law: The Folly of Fortuity

Thu, 2 Aug 2007 11:59:45 -0500

The fortuity doctrine has its place as a legitimate gatekeeper in avoiding fraud in the insurance world, says Ernest Martin. But rather than focusing on whether the insured actually committed the fraud, Texas courts have erroneously focused on whether some third-party has alleged that the insured committed fraud to determine the doctrine's applicability.

Look Before Leaping When Filing Infringement Suits

Thu, 26 Jul 2007 16:39:43 -0500

Lots of lawyers think they understand what it takes to file a patent infringement suit, but federal courts can and do sanction firms and their clients for inadequate pre-filing investigations. Being diligent in the pre-filing legal and factual analysis might just save your reputation -- and your wallet -- from permanent damage.

Video Blog

Mon, 16 Jul 2007 16:56:23 -0500

John Hill's unfinished mission, a lawyer misses a hearing and goes to jail, John Cornyn raps his potential foe, protecting attorney-client privilege and Harriet Miers is a no-show.

Personal Injury and Civil Trial Law: Five New Rulings on Personal Injury Cases

Tue, 10 Jul 2007 16:24:24 -0500

Ralph C. "Red Dog" Jones discusses five new cases concerning (1) the made-whole doctrine, (2) informed consent in a medical-malpractice case, (3) the recreational use statute, (4) a contractor/subcontractor issue and (5) taxation of recovery in a whistleblower suit.

Legal Malpractice: Former Clients and Conflict of Interest Waivers

Tue, 3 Jul 2007 10:45:11 -0500

Juries hate conflict waivers, says Randy Johnston. "They interpret your conflict waiver as proof that you knew what you were doing was wrong but you talked the client into letting you do it anyway," he says.

Bankruptcy Law: The Zone of Insolvency - Directors, Creditors and Fiduciary Duties

Thu, 21 Jun 2007 10:57:46 -0500

Gregory Gordon reports on a recent ruling by the Delaware Supreme Court, which rejected the proposition that a director's fiduciary duty shifts to creditors when a corporation is in the zone of insolvency, but not insolvent. The decision provides important guidance to directors, he says.

Beyond the Grave: Legal Mal Claims Involving Wills

Thu, 14 Jun 2007 16:19:38 -0500

A long-standing prohibition on estate beneficiaries suing a lawyer who drew up a will or trust document gave estate planners a great deal of comfort because only the client could sue them, and the client would be dead before a claim appeared. But Randy Johnston says that protection isn't as broad as many have believed. He offers three suggestions to protect yourself.

First Amendment: 5th Circuit Hands Newspaper a Victory

Tue, 22 May 2007 11:04:29 -0500

When the sex lives of lawyers hit the courthouse, the news media have a common-law privilege to report on them, says Paul C. Watler, citing a recent 5th Circuit ruling. The press may report intimate or embarrassing information about private individuals where the details are related to matters of public concern, he explains.

Family Law: International Child Abductions

Thu, 17 May 2007 16:36:04 -0500

Brad M. LaMorgese discusses the International Convention on Child Abduction, or the Hague Convention. He explains that the agreement is a useful tool for remedying such international abductions and lists the usual defenses that can be offered. Generally, a court will favor the return of a child to its home of habitual residence, he says.

Securities Law: The McNulty Memo

Tue, 15 May 2007 14:52:01 -0500

David Clouston discusses the McNulty Memo from the Department of Justice and the loosening of the government's stranglehold on corporations' privileges while under investigation. The waiver of privileges is not a prerequisite to a finding that a company is cooperating with an investigation.

Texas Lawyer Video Blog

Mon, 14 May 2007 11:32:31 -0500

The Supreme Court takes up Medellin, an ACLU guy goes to state government, immigration bills get bottled up, a Democrat is wooed for a Texas Supreme Court race, and another 5th Circuit nominee is in trouble.

Insurance Law: Fort Worth Court of Appeals Drops Declaratory Judgment Bombshell

Wed, 9 May 2007 09:52:46 -0500

Ernest Martin tells about a recent ruling in the Fort Worth Court of Appeals, finding that a declaratory judgment is permissible when brought by a third-party seeking to have an insurance company defend or indemnify for the conduct of its insured.

Is the 5th Circuit Really Employer-Oriented?

Fri, 4 May 2007 10:39:09 -0500

Michael Maslanka wants to debunk a myth: The 5th Circuit is solidly, 100 percent, bet-the-farm employer-oriented. That's not true, he says, and he offers four recent opinions to back his belief.

Personal Injury and Civil Trial: Snapback, Jurisdiction and the Collateral Source Rule

Wed, 2 May 2007 16:51:47 -0500

Ralph C. "Red Dog" Jones talks about a recent opinion on the snapback provision, as well as some other rulings of interest to civil practitioners. He concludes with a comment on the collateral source rule and discusses whether it's alive in Texas.

Personal Injury and Civil Trial Law: Recent Rulings from the Texas Supreme Court

Tue, 17 Apr 2007 14:23:33 -0500

Ralph C. "Red Dog" Jones gives a run-down on some of the opinions coming out of the Texas Supreme Court in early 2007. The cases involve worker's compensation, uninsured/underinsured motorist coverage, other insurance matters, and arbitration.

Intellectual Property: Using The Enablement Requirement To Invalidate Overly Broad Patent Claims

Thu, 12 Apr 2007 14:04:12 -0500

Steve Malin says a recent ruling offers a lesson for patentees who seek more than their fair share of the intellectual property bargain. While unreasonably broad claim construction can help a plaintiff win on his patent infringement claim, that strategy presents the plaintiff with a number of hazards.

Legal Malpractice: Contingent Fees -- You're Fired

Tue, 10 Apr 2007 14:58:03 -0500

What happens when a client calls to tell you that he or she is terminating you? The first thing you should do is re-read Mandell & Wright v. Thomas, says Randy Johnston. But that opinion leaves a lot of unanswered questions.

Insurance Law: The Duty to Cooperate

Tue, 3 Apr 2007 16:47:00 -0500

Liability insurance policies usually contain a cooperation clause that requires insureds to cooperate in the investigation or settlement of a claim or the defense against a suit. Ernest Martin discusses the insured's obligations and the ramifications of cooperating or not cooperating -- important questions before responding to the insurance company's request.

Legal Malpractice: Contingent Fees: The Element of Risk

Thu, 29 Mar 2007 16:34:25 -0500

What is a reasonable fee when a client has a case with what appears to be clear liability with unassailable damages in the million? What appears to be clear and certain in a first meeting may very well prove to be much less clear or certain at the courthouse, says Randy Johnston.

Family Law: Understanding the Standard Possession Order

Tue, 27 Mar 2007 09:56:30 -0500

In Texas, the standard possession order gives guidance for the parent who does not have primary possession of his or her child. There can be exceptions, but in most cases the court orders some variation of the standard possession order.

Video Blog

Fri, 23 Mar 2007 15:04:02 -0500

An assassin dies, the drug court bill advances, specialization for judges, a well-connected builder goes to court, and the "Hecht Bill" gets dropped.

Bankruptcy Law: Cause of Action for a Deepening Insolvency

Thu, 22 Mar 2007 09:58:10 -0500

Is there an independent cause of action for a deepening insolvency? Until recently, the answer was "probably no." Now some courts have concluded otherwise. Whether the cause exists is significant because of its impact on the so-called "business judgment rule," says Gregory M. Gordon.

Labor and Employment: U.S. Supreme Court to Rule on the Cat's Paw Doctrine

Wed, 21 Feb 2007 11:51:48 -0500

Depending on how a case before the U.S. Supreme Court comes out, it may mean an employer must do more homework before making an adverse employment decision, not less. And that's only fair, says Michael Maslanka.

Bankruptcy Law: A Loan or an Investment? Recharacterizing Debt as Equity

Thu, 8 Feb 2007 16:06:14 -0500

A recent federal court's ruling reaffirms the vitality of recharacterization as an important tool available to bankruptcy courts to ensure that a transaction's substance, rather than its form, is considered for purposes of determining priority under bankruptcy law, says Gregory M. Gordon.

First Amendment: Legal Issues Raised by Photos of a Soldier's Last Moments

Tue, 6 Feb 2007 16:37:46 -0500

Not only did a U.S. Army sergeant from Texas pay a heavy price to defend our freedoms, but his loved ones paid a heavy price for the freedom of the press exercised by The New York Times.

Insurance Cases in the Texas Supreme Court Pipeline

Wed, 31 Jan 2007 09:40:45 -0500

Ernest Martin talks about the 13 insurance cases pending before the Texas Supreme Court. The cases involve such issues as the insurability of punitive damages, an insurer's use of captive law firms, duties between two co-equal carriers, subrogation and the Made-Whole Doctrine, and more.

Video Blog: Draconian Criminal Laws, A Lawyer for Speaker?, More Dallas DA Office Changes, More Pay for Federal Judges, and Harriet Miers on the Bench?

Mon, 8 Jan 2007 16:51:34 -0500

First Amendment: Suits Against Clergy

Fri, 5 Jan 2007 11:21:05 -0500

Can a clergy malpractice action be brought in the state's courts? Paul C. Watler says the Texas Supreme Court is considering such a case now.

Family Law: Jurisdiction in Child Custody Disputes

Thu, 14 Dec 2006 11:59:07 -0500

The peculiar thing about child custody jurisdiction is that no personal jurisdiction over the parents or the parties in the suit is needed, says Brad LaMorgese.

Surprising Findings on Pace of Bankruptcy and Creditor Recovery

Tue, 12 Dec 2006 14:41:42 -0500

Do longer bankruptcies result in reduced creditor recoveries? A recent study shows that faster is not always better when it comes to a restructuring. Current congressional policy that favors shortening the duration of bankruptcy cases should be reconsidered.

Video Blog: Throwing Open the Prison Doors, Second Jobs for Prosecutors, Billionaires and Their Big-Time Lawyers, and Crime and Deportation

Fri, 8 Dec 2006 16:39:20 -0500

Legal Malpractice: Helping Someone with a Pro Se Case

Thu, 7 Dec 2006 10:09:51 -0500

Suppose someone needs your help with a pro so case. What do you do when you know that your rejection could have disastrous effects for the prospective client because of timing? Is ghostwriting a pro se pleading OK? Randy Johnston has some suggestions.

Insurance Law: The Rise in the Fraud-in-the-Application Defense

Tue, 21 Nov 2006 08:12:02 -0500

Imagine spending thousands of dollars on premiums and finding yourself in a litigation battle, only to learn that there's no coverage for you, based on an alleged misrepresentation in the insurance policy application. This is a trend that many insureds are encountering, says Ernest Martin.

Labor and Employment Law: Noncompetes After Sheshunoff

Tue, 14 Nov 2006 13:46:55 -0500

Michael Maslanka says the Texas Supreme Court's ruling in Sheshunoff v. Johnson is a critical case involving covenants not to compete. It's a victory for Texas employers, he says, but there are a few caveats.

Video: "Cheaters" Acquitted, a Prosecutor's Suicide, a Child-Killer Goes Free, and Upheavals in the Dallas and Denton DAs' offices

Fri, 10 Nov 2006 16:28:49 -0500

John Council and Mark Donald discuss some of the top stories of the week.

Legal Malpractice: The Dangers of Metadata

Thu, 9 Nov 2006 11:17:14 -0500

Robert Tobey points out that computer files -- such as contracts forwarded to other counsel -- can carry hidden information that you don't want the other side to see. A lawyer failing to protect that information could even end up facing malpractice consequences.

Criminal Law: Restrictions on Cross-Examination of Prosecution Witnesses

Tue, 7 Nov 2006 09:31:15 -0500

A federal court has issued a decision that dramatically limits the use of impeachment material, particularly in federal drug cases, says Bruce Anton.

Labor & Employment: Tips for Defending a Deposition

Thu, 2 Nov 2006 14:27:33 -0500

Michael Maslanka tells how to prepare an executive or a manager for a deposition in an employment case. "You can't change people; you can only help people," he says. "Remember that in getting a a witness ready."

Jurisdictional Surprises in Family Law

Wed, 1 Nov 2006 10:25:15 -0500

Brad LaMorgese says family law cases involve the peculiar interplay of several different types of jurisdiction. And some cases may -- or must -- be heard in another state or even in another country.

Legal Malpractice: Aggregate Settlements

Mon, 30 Oct 2006 16:20:50 -0500

Randy Johnston discusses the problems of representing more than one client on the same matter. It's possible for a lawyer to breach his fiduciary duty to an individual client if the lawyer negotiates for -- and agrees to -- an aggregate settlement.

Intellectual Property: The Advice-of-Counsel Defense

Mon, 30 Oct 2006 16:13:55 -0500

David H. Judson says that, once a company elects to rely on the advice of counsel, it waives the attorney-client privilege concerning the same subject matter, including the advice of in-house counsel.

Paul Watler: Judges' Free Speech

Mon, 16 Oct 2006 13:48:51 -0500

Texas judges may be taking on a different role in 2008 when it comes to freedom of speech.

Paul Watler: Journalists and Grand Jury Subpoenas

Mon, 16 Oct 2006 13:48:56 -0500

If journalists promise a source they will go to jail to protect a source's identity, the Texas legal system just might give them the change to prove they mean what they say, reports Paul Watler.

Video Blog: Swaying a Jury, a Judge's Free Speech, No Judges in Sting, Money and Hypocrisy, and Forget the Old Disciplinary Actions

Fri, 13 Oct 2006 15:42:51 -0500

Texas Lawyer's John Council and Mark Donald discuss the week's legal news.

Labor & Employment Law: Tips for taking Plaintiffs' Depositions

Wed, 11 Oct 2006 11:59:34 -0500

Michael Maslanka gives some pointers on taking depositions from plaintiffs in employment cases.

Texas Lawyer Video Blog

Mon, 9 Oct 2006 11:24:15 -0500

No Sex Toys for the Supremes, Human Smuggling, Scientology and the Dentist, the Legislator's Condo, and Money for Judges, with Mark Donald and John Council, senior reporters

Bankruptcy Law: When Bankruptcy Courts Can Refuse to Enforce Arbitration Agreements

Thu, 5 Oct 2006 09:58:52 -0500

The policies underlying the Federal Arbitration Act and the Bankruptcy Code inherently conflict.

Insurance Coverage, Jury Waivers, Tax and the Made-Whole Doctrine

Tue, 3 Oct 2006 10:41:59 -0500

Ralph C. "Red Dog" Jones discusses insurance coverage, the right to a jury trial, taxation, and the made-whole doctrine.

Insurance Law: D&O Policies and Backdating Stock Options

Ernest Martin — Thu, 28 Sep 2006 09:35:37 -0500

Directors and officers could have some surprises in store if they think their D&O insurance coverage gives them protection in options-backdating cases.