Let’s Deregulate All the Lawyers

The NY Times ran an opinion article by Clifford Winston, who promoted his book, First Thing We Do, Let’s Deregulate All the Lawyers. If you think this may be a good idea, please go to Wikipedia and look up a famous Texas lawyer, John Wesley Hardin. There is nothing new under the sun.


John Wesley Hardin is better known as a Texas gunfighter, who killed 42 white men. It may sound a bit racist, but he did not count the black men, Mexicans, nor the Indians that he killed. The story is about murder, gun fights, outlaw gangs, arrests, escapes, and more gun fights. He was finally captured and held long enough to stand trial, and got a 25 year prison sentence.


For 5 years, a bad attitude and attempted escapes could describe John Wesley Hardin. After that, he settled into prison life, was superintendent of the prison Sunday School, and studied law. After 16 years, he was paroled, went to Austin, and passed the bar exam. After another killing or two, (you know how these little misunderstandings can happen), he went to El Paso to practice law.


One can imagine the impact of a demand letter from John Wesley Hardin. 
“Sir, I represent Tom Smith.  You signed a contract with Tom Smith with regards to a cattle sale, and owe him $2,000.00. Demand is made that you pay him the money within 30 days.
Your failure to pay the money due will disappoint Tom Smith, who will become your enemy and 
I will remain,
Sincerely yours, John Wesley Hardin. 
P.S. Don’t make me send a messenger for you to meet me at my saloon to discuss this.


My first senior partners’s grandfather was a lawman in Comanche County, Texas, and was with the posse which captured the Hardin gang, and hanged them. (Lynch is a such an ugly word.) John Wesley Hardin was away at the time, but his brother was hanged.  Years later, when the grandfather was in El Paso on business, John Wesley Hardin sent him a messenger to say that “All is forgiven and please come down to the saloon for a drink, tonight.”
Grandfather stayed at his hotel.


The NY Times does not know everything. 


We have been down this road before. Let’s keep a few rules about who can practice law. Let's keep a few rules about how we practice law.

Evernote in the Solo Law Office

The coolest thing in my office desktop is Evernote. It misleading to say it helps me create to-do lists.  The purpose of Evernote is to insure that I will never forget any detail, of any kind, ever again.


Synchronizes. It automatically synchronizes my task and idea lists with my cell phone.  This is beyond cool.  If I type on the things-to-do, it will appear on my cell phone’s list of things-to-do. When leaving the office in the morning for the courthouse, I think about the first case and begin forgetting about things to check on, things to file, and other people to see.  Checking my phone brings the complete list back to me.   


Use the Cell Phone. If I am out and add something to a list on my cell, it will automatically synchronize things with my desktop.  Snap a photo with my cell phone of a deed, a client, or business card, and the handwritten notes or typed notes in the photo automatically become searchable on Evernote. Take notes, save images, and read pdf articles.  Send notes by email to my Evernote address.


Many Lists. It encourages me to create a list for everything.  To-Do lists for work at the office.  Phone calls to return.  Purchase lists for the office. Tasks for the farm. Purchase lists for the farm. Grocery lists.  Mileage lists for places I travel on business. Copies of 1st Visit Memos from new clients. Gift lists. Idea lists.    


Access. Access Evernote from every computer, tablet, and cell phone that you use!  Evernote is free, although for the more advanced version, there is a $5 a month fee.  That’s too rich for my blood, but not for big spenders that read this blog.  Evernote.com

Nihilism, Lawyers, and the Law

Some days the news is overwhelming to lawyers. A peek at the news today brought the following stories:


A dead 2 year old baby, with duct tape across her mouth, resulted in a murder case against her mother 
(Casey Anthony).  The defense said the baby accidently drowned and the body was hidden because of the grandfather’s sexual abuse.  Defense by smear. A horrific murder made worse. http://www.orlandosentinel.com/news/local/caylee-anthony/os-casey-anthony-trial-opening-20110523,0,921967.story


An inspiring national political figure is about to be indicted for misspending campaign money to hide his cheating on his dying wife. Inspired leadership by corruption. 
http://www.msnbc.msn.com/id/43168272


A powerful Federal Judge in Houston says that our legal system is corrupt beyond recognition.  Edith Jones says the lawyers corrupted the judicial system with nihilism. Lawyers lost their religious roots. Lawyers attack all society’s rules of decent behaviour. A basic  concept of right and wrong is lost. Political favor and money is found.  http://www.freerepublic.com/focus/f-news/1438496/posts


The Texas Legislature continued its long war on lawyers by passing the “Loser Pays” bill.  Although Visa, Master Card, Capital One Bank, and insurance companies will sue you, you do not have what it takes to sue them.  Why is Texas protecting Capital One Bank? The law hurts lawyers who bring lawsuits and hurts lawyers who defend lawsuits.  Simply stated, to be a hero, you have to have an amazing opponent to do battle with. The little guy lost his ability to fight the battle. http://www.lonestarreport.org/Home/tabid/38/EntryId/1174/In-blink-of-an-eye-Senate-passes-limited-loser-pays-bill.aspx


However, before I turned off the coffee maker and hid under my bed this morning, I remembered  Wintley Phipps.  He sings a great version of Amazing Grace.  He also says that “if the big mountain in your way were smooth, you wouldn’t be able to climb it”.  Yes, I did sign up to climb the big mountains.  Yes, I did sign up to slay large dragons.


I began to remember that we will not understand the things we see. ( Ecclesiastes 11:5 “As you do not know the path of the wind, or how the body is formed in a mother’s womb, so you cannot understand the work of God, the Maker of all things.” )


I can do more mediation and be a peacemaker. “Peacemakers who sow in peace reap a harvest of righteousness.” - James 3:17-18


I can put on my trial suit and start to climb the big mountains in my way.

Separation, Divorce, and Separation

If you are separated, what should you do for your depressed spouse?


Great question!  Because I am not a licensed forensic counselor, I called Beverly Womack, LCSW, LMFT, LCDC,  ( a Certified Forensic Counselor by the American College of Forensic Counselors ), for some guidance.  After 35 years of counseling separating and divorcing clients, she had several suggestions.


Suggestion 1:   Understand that divorce is incredibly hard on children and is hard beyond belief on adults.  I cannot say what her clients say to Beverly, but my clients tell me that a divorce changes everything, including deeply held convictions about their religion, their fundamental understanding of family values, their core beliefs, and that even the colors in the sky change.  These changes are hard.


Suggestion 2:  Understand that depression is an emotional response to the suffering in a separation and divorce. There are other stresses related to the separation or divorce.  Many separations and divorces start with stresses from unpaid bills, a job loss, an accident or illness.   Depression is not something a person asks for, or volunteers for, or earns.  It is exponentially worse than any scary dream you have ever had. Without professional help, depression can be a continuing, living nightmare.


Suggestion 3: Get the depressed person to a licensed mental health worker.  Within driving distance of your residence, there are licensed psychologists, licensed social workers and licensed counselors who can defeat depression.  If medicines are needed, there are physicians with specialties in mental health, called psychiatrists, who may prescribe medicines for depression.  You do not have to remember the names of these professionals to know the deal.


The deal is that depression can be defeated.  You may not get much help from a doctor for your bad cold, but depression is highly treatable. 


Additional resources beyond this blog, include:


WebMD.com for useful information,
Depression for Dummies (Wiley Publishing, Inc.)
look at http://www.womackcounseling.com, 
you might talk to someone who actually knows about divorce and depression: Beverly Womack, 903-535-7290.

Texas Visitation for Babies and Small Children

The Texas Legislature has passed a detailed law ( S.B. 820 ) concerning visitation with babies, less than 3 years of age. The Judge “shall consider evidence of all relevant factors”. There is a list of 13 things to consider, including “any other evidence of the best interest of the child”.


The “best interest” often means drugs, alcohol, and mommy or daddy having sex with someone else.  This evidence helps the Judge understand that, in the best interest of a child, a miracle is needed.


The rest of the list includes things like, “the caregiving” bestowed on the baby before and during the lawsuit, the “developmental needs of the child”, and the ability to give “personal care” to the child. This kind of evidence actually pertains to the child and is a breath of fresh air.  


If it appears that the evidence turning to the care of the child, take heart.  Evidence on “the impact and influence of individuals” who will be present during visitation is to be heard.  This means more sniping at the loopy mother-in-law or the new girlfriend.  The assault will continue for the “emotional, economic, and social conditions of the parties”.  This means, in a recession, showing that the other party is out of work. Does being poor now mean bad parenting?  The term, social conditions, is full of possibilities for defamation. Does the Judge draw the line at a parent having
no country club membership, or
no cable television, or
no indoor plumbing?


The statute gives the Judge responsibilities to do the right thing by the child.  However, specific guidance from the legislature is blurry. If I were a Family Law Judge, I would do more drinking.


If the Governor signs the statute, the trouble will start for cases pending September 1st or filed thereafter. 

Tough Guys

Usama Bin Laden (UBL) was in Abbottabad, Pakistan this past weekend, when Seal Team 6 came calling.  The most notorious 21st Century tough guy stood behind his wife, who was shot in her leg. In Texas, this is called “hiding behind your woman’s skirts”.


Several years ago, David Koresh was enjoying life in the Branch Davidian’s compound at Waco, Texas, when ATF agents came calling.  Koresh and his followers machine gunned ATF agents. Three hundred federal agents then surrounded the compound. The tough guy, David Koresh, called his mother and complained that the federal government was being mean to him. This is called “whining”.


At the courthouse, Judges see tough guys, who beat their women.  Typically, these tough guys are ugly to every women in their family, but are very polite to women they meet in public.  They are violent to wives, girl friends, and mothers, but nice to the boss' secretary and strippers. These tough guys call this “machismo”.


After an adult lifetime of hearing belittling criticisms by the women’s movement, I want to talk about tough guys.
I mean, talk about really tough men. There are two ways really tough men can act in the face of heavily armed opponents.


Example 1:  Face the music.  Jesus faced armed men at the Garden of Gethsemane.  He surrendered.  He calmed tensions.  He faced his fate with courage and prayer.  This was one really tough guy.  Three days later, in the early morning Jesus walked out of his tomb between two angels. The Centurian and Roman guards were heavily armed, and had sworn to stop Jesus from leaving.  Too tough by a mile.  The Romans decided it was better to wake up Pontious Pilate, than to come after Jesus and two Angels.


Example 2:  “Come and get me, you dirty rats!”  In 1836, the men at the Alamo at San Antonio faced a large army from Mexico.  That army never took prisoners.  The men could flee or stay and fight impossible odds.  There would be no help. They were on their own. William Travis drew a line in the sand, and the men stepped across the line.  Jim Bowie, in bed with TB, had his bed carried across the line. Tough guys.


The toughest guys you know. If you are looking for a tough guy, one needs look no further than a man, who married a woman, treated her right, and reared their children to do right. He did this in our modern day insane society.  He did this without hiding behind his woman’s skirts, without whining, and without violence.  He did this in the face of hostility and ridicule from society.  They are not in the news, but tough guys are not hard to find.

Understanding Child Support

It was Socrates’ opinion, “I advise everyone to get married.  If your spouse is good, you will be happy.  If your spouse is bad, you will become a philosopher.” Child support makes all of us philosophers. 


The short explanation. Things began at that time you, your spouse and your children lived in one residence and struggled to pay bills.  Now the same family is spending money for two residences, and it is impossible to make ends meet. The person paying child support sends off a week’s paycheck, more or less, as child support.  He or she also makes a payment for the health insurance for the children.   With 1/3 to 1/2 of the paycheck being deducted from a paycheck, the person paying child support cannot get started again.  


The person receiving child support knows that 1 1/4 paychecks is not going to pay the bills that 2 paychecks had trouble paying earlier. The words, “I need help with daycare”, does not add to the amount of child support. There are exceptions, of course, but do not plan on receiving more child support than is on the Texas Standard Child Support chart.


The longer explanation begins with the Attorney General of Texas calculating the “net income” of the person paying child support.  From the Attorney General’s tax chart, the payor then pays 20% of net pay for one child, 25% of net pay for two children, and 30% of net pay for three children.  This is the Attorney General of Texas’ estimate of someone’s “net pay”, not the actual “net pay”.  Car loans and other common deductions are not recognized by the Attorney General of Texas. The costs of the health insurance may be more than the amount of child support itself.


All child support payments are sent to the “Attorney General, P.O. Box 13499, Austin, Texas 78711-3499", who electronically deposits the child support into the bank account of the person with custody of the children. The Attorney General also keeps a record of all payments and all failures to pay.


All child support payments are deducted directly from the paycheck before the person paying the child support ever sees the check.  There is no reason to ask, “Where’s the check?”  When the company pays its employee, the company also sends out a check for child support.  It is a company deal.


When an employee gets a paycheck, the amount and the deductions are reported to the Comptroller’s computer and then sent to the Attorney General’s computer.  The Attorney General has the payroll records; it knows the payor’s wages.


Summary:  Children need support.  There is not enough money to go around.  The system may hold together, if everyone does their part.

Texas Law & the Best Interest of the Child

Best Interest: The Texas Family Code commands that “The best interest of the child shall always be the primary consideration of the court... “ 15.002 TFC.

Okay, but what is the “best interest of the child”?  What does it mean?  The Texas Family Code gives no definitions of “best interest”.  What kind of evidence does the Judge want to hear?  What do we tell the Judge?

No legal definition of best interest. The Texas Supreme Court wants Judges to consider a number of factors.  Their list suggests that the Judges consider all facts that “appear to be pertinent.” Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). If the Texas Supreme Court cannot, or will not, define “best interest”, it appears we must create our own list.

List of negatives: Let us start with negatives.
Who introduced the child to adult themes in drugs and alcohol? You were drunk (or high) in front of the child?
Who you introduced the child to adult themes in sex? You and your friend allow your child to see -What!?
Who you introduced the child to adult themes in family violence? Your family arguments involve fists?
Do you have a room, bed and toys for the child?  Your child sleeps on the couch?
Do you have druggie friends around your child?
What bad things are on your Facebook page?

List of Positives: Let’s consider positive things.
Who prepared meals for the child?
Who took the child to the doctor?
Who talks to the child’s teachers?
Who got the child to dance or baseball or soccer?  Who attends the games?
Who got the child up in the morning?  Puts the child to bed at night?
Who bought clothing for the child?
Who actually read a book about child discipline?
What are your child’s grades from school?

Make your case better: What can one do to help a case on “Best Interest”?
Hire a maid to clean your residence. She could testify about your neat and tidy home.  She will be in your house and  observe your close relationship with your child.
Go to PTA or PTO meetings, participate in school conferences. Get to know the teacher.
Go to church and Sunday school regularly.  Get to know your child’s Sunday school teacher and pastor.
 Daycare workers also observe you and your child.  Get to know them.
Read a short book on child rearing or discipline.
Take the child out for pizza once a week.  Let the child talk.  What is he or she thinking?
Take some photos of you and your child having fun.
Write everything down.

Summary:  You can make your case better, and help your child, by taking some steps suggested in this article.

Texas To Enhance Family Protective Orders

Texas adults are able to file Applications for Protective Orders to protect their families from violence. The police can arrest a person violating the protective order. The victim gets immediate protection. The violator sits in jail, until his hearing for violating the protective order.     


The Texas legislature is moving to increase protection for victims of family violence. In SB 819, the jurisdiction of  a court is expanded  to allow it to enforce protective orders from another court.  If a woman gets a protective order in Dallas and moves to Tyler, the Tyler court could enforce violations of the Dallas order.  The witnesses would be in Tyler, so the Tyler court hears the case.


The Tyler court would also be able to enforce a protective order through contempt. 


With regards to a “dating relationship” that becomes abusive, an Application for a Protective Order may be filed by a member of the dating relationship, even if the applicant is a child.  The child may sign a statement under oath, which will be accepted by the Judge.


The child may be a 15 year old girl dating a violent 20 year old man.


The child may also be a 9 year old girl of a single mother dating a violent man.


SB 819 adds another warning to would be violators, as if drug addicts or abusive spouses read warnings.


“Dating violence”  is expanded to include conduct directed against a child. Hitting the mother is family violence. Hitting the mother’s 9 year old girl would also be family violence.  Being nice to mommy is not a defense to acts of violence against her 9 year old girl.  Indeed, if the mother is in a coma and cannot take action, her 9 year old girl can ask for a protective order on her own.


The legislative session ends May 30th.  If SB 819 passes, it will take effect and the trouble will begin September 1st.

Understanding Bankruptcy

Bankruptcy:  Bankruptcy helps people unable to pay off debts.  There is a technical side to the law.  There is also an emotional side that touches one’s basic beliefs in right and wrong.  To understand bankruptcy, one needs to go to the beginning.  


Beginning:  In 1848, the nation was consumed with the problem of slavery.  The Mason-Dixon Line was created; the Civil War postponed. Senators came to the President and asked him to free the “white slaves”.


White Slaves:  The “White Slaves” were white farmers (and free blacks) along the river valleys.  They borrowed money each Spring, bought seed, planted corn, and sold the corn (or corn whiskey).  Then the loan was repaid. When too much rain, or too little rain, or something else destroyed the land, the farmer was unable to repay debts.  In effect, the farmers began to wear a “badge of slavery”. The Senators wanted the farmers released from those debts.


How?  How was it to be done?  “Debtors’ prisons” made things worse.


Moses:  The Senate turned to Moses.  The same Moses who came down the mountain with 10 Commandments.  The Jews had thought about God’s 10 rules for a good life and asked Moses for more rules.  One of the new rules was the 15th Chapter of Deuteronomy (KJV), which commanded, in part:


“1: At the end of every seven years thou shalt make a release.  2:  And this is the manner of the release:  Every creditor that lendeth ought unto his neighbor shall release it; he shall not exact it of his neighbor, or of his brother; because it is called the LORD’s release.  3.  Of a foreigner though mayest exact it again: but that which is thing with thy brother thine hand shall release; 4:  Save when there shall be no poor among you; for the LORD shall greatly bless thee in the land which the LORD thy God giveth thee for an inheritance to possess it:  5:  Only if though carefully hearken unto the voice of the LORD thy God, to observe to do all these commandments which I command thee this day.”


In effect today:  In 1848, no congressman would claim to have a better connection to God than Moses. The original Bankruptcy law was the first anti-slavery statute.  From time to time, the bankruptcy laws are redone, but they are still in effect today. Its purpose is to prevent debtors from wearing the “badge of slavery” because of credit card bills, hospital bills, illnesses, or unemployment. 


Warning:  Modern congressmen believe they have better ideas than Moses.  The Bankruptcy laws are longer and more complicated. Get a good bankruptcy lawyer.


Homework:  If one is unable to repay debts, do some homework and ponder the following:  
1) How long has the problem of too much debt has been around.  [Since Moses, 3000 years ago?]
2) What is the purpose of the commandment to release the debt?  [All of us will be greatly blessed when there are no poor among us?]
3.) Are you poor? [Unable to repay debts?]

McDonald's Hot Coffee Case

Recently, an e-mail was sent to me about the McDonald’s hot coffee cup case.  The message was that lawyers filed a silly case and got rich. The McDonald’s hot coffee case was used to attack the legal profession. This blog is about one case, and not a guide to accident claims.  I turned to Andrea Gerlin, Wall Street Journal, September 1, 1994, and The ‘Lectric Law Library ( www.lectlaw.com) for the facts.   

Facts in the News:  Facts are stubborn things.  They remain facts in the face of passions and prejudice.  The facts of this case are well known.

• 2/27/1992, Stella, a 79 year old woman, bought a 49 cent coffee at McD’s;
• Her grandson was driving, pulled forward from the McD’s window and stopped;
• Stella then tried to pull the plastic lid off of the coffee cup to add cream and sugar;
• The coffee spilled in her lap.

Facts not so well Known:   

• McD’s coffee pots were set to make coffee at 180 to 190 degrees;
• Mr. Coffee, at my house, made coffee this morning at 138 degrees; McD’s coffee was 47 degrees hotter than at my house this morning;
• A law student was hired to go around town, buy coffee, and stick a thermometer in the cup;
• The law student found that McD’s coffee was 20 degrees hotter than the hottest coffee sold in town;
• A McD’s executive told the jury that 185 degree coffee was not fit to drink, because it would burn the mouth and throat, but it smelled best at that temperature;
• McD’s coffee, almost instantaneously destroyed Stella’s skin, flesh, and muscle with third degree burns on 6% of her body and second degree burns on 16% of her body.  Coffee, at the lower temperature, would hurt, but give one time to take action and avoid burns;
• the jury saw the photographs of ugly burns on Stella’s inner thighs, buttocks, groin and genital areas;
• the jury saw the photographs of the skin graft process, where the burned skin is peeled off the victim’s body and then replaced; it feels as bad as it sounds;
• the jury heard testimony that McD’s had scalded 700 people with serious burns in the past 10 years; some of the cases were substantially similar to Stella’s; the jury saw that McD’s executives knew about nature and extent of the scalding for 10 years;
• the jury heard testimony that McD’s paid out $500,000 on claims to burn victims over 10 years; no one counted the seriously burned persons who did not file claims;
• the jury heard testimony that McD’s had no plans to change the temperature for brewing coffee;
• the jury heard that McD’s knew that the drive thru customers  were driving to work;
• the jury heard McD confess that it knew its super hot, undrinkable coffee was routinely spilled in the cars on people;
• the jury heard that McD’s served billions of cups of coffee and that McD’s was unfeeling about Stella;
• the jury heard that McD’s makes $1.35 million day in coffee sales;
• the jury surmised that McD’s is cold blooded; $1.35 million in coffee sales a day means everything; Stella is nothing.
• Allow the jury to figure out that McD’s is callous, arrogant, and too big to think of Stella.
• the jury did not know that McD's could have settled the case for $20,000 to pay for $11,000 in medical bills for skin grafts.  

Results:  The jury thought it was a case about callousness, not coffee, and awarded Stella money.  Then the jury punished McD’s by ordering it to pay 2 days of coffee money.  The Judge ruled that Stella was 20% at fault and McD’s 80% at fault, and cut back the award.  Although it was a public trial, Stella and McD’s signed a secret settlement, probably less than $600,000. It was a great victory for Stella. After looking at a 2 1/2 million dollar jury award, the settlement was a big victory for McD’s. The longer lasting result of the he jury’s decision to ridicule McD’s, was continued attacks attacks on the legal profession.

Deeper Meaning:  McD’s executives callously burned 700 people with a superheated, undrinkable coffee for 10 years, but in truth and fact they were picking up a big cat by the tail, and learned things they could not learn any other way. This is not the fault of the legal profession.

Dividing Property that is Not There

HB 908 - In House Bill 908, the Texas Legislature took up the problem of fraud in divorce cases.  Under the act, a man who takes money from the man and wife’s joint bank account, and  [1] hides the money, or [2] foolishly spends the money, and [3] fails to say where the money is, is guilty of fraud. This is not a new problem in divorce cases.

ADD IT BACK -The new act has a new solution. The Court will find out how much money is still in the bank account, then add the missing money back to the account, and divide the money and property between the parties.

Example -Suppose the man and wife had a joint account with $50,000, which is now missing, and a $50,000 house.  Because the man stole the money in the bank, he gets the missing money, wherever it is.  The wife gets the house. It is a 50 – 50 split.

Uh-Oh - If the man spent all the stolen money, then the man still gets his 1/2, worth $0. The wife still gets her ½, the house, worth $50,000.  It is still a 50 – 50 split.

The Court may also award a money judgment in favor of the innocent spouse.

The new law appears to be aimed at the man, with an evil heart, stealing from the innocent wife.  

Both guilty - What if both spouses are guilty? 

If the husband takes his girlfriend to Vegas, and the wife sells the furniture to buy recreational drugs, both spouses stole property.  Does the court divide the amounts stolen by both parties?

Was it intentional or reckless? - What if the man spends the money from the joint account to start a business, that fails?

Will his wife claim he foolishly spent their money on the business?  Won’t she say the business was a bad idea and he stole their money for the business?

House Bill 908 has been reported out of committee favorably and appears to be uncontested.  If the new act passes, the trouble will begin on September 1, 2011. The new act will apply to all divorces pending at that time and to all new divorces.

Child Visitation

This blog is for the parent who broke up the family, and hurt the children's feelings in a divorce involving child custody - a regrettable battle. There are some things a parent can do to help mend hurting children.

• In addition to paying child support, take your son or daughter to buy a new pair of shoes. Kids must eat their shoes, because they always need a new pair.
• Take your children to buy Summer clothes [bathing suit], school clothes [blue jeans & tops / shirts ], a winter coat and a thick winter blanket. I know a computer engineer who buys used clothing, with the fancy label, at Goodwill Stores and Marshals. Buy the coat when it first threatens to get cold, when it is on sale.
• Show up to see your kids when you promised.
• Take your children to a pizza place when you pick them up. Spend $20 on pizza, let them choose the kind of pizza, and let them talk.
• Take your daughter and son to the Dollar Store and let them choose a toy.
• Take your child to a book store and let them choose a book to buy and read.
• Call your child's teacher, on her break, and find out what's going on at school.
• Call your child or see you child on every birthday, get the child a present.
• Christmas is special to children, make it so for yours.
• Buy postcards and cards in advance, and every now and then spend the money for a stamp and send one to your children.
• Plan something for a visitation Saturday, other than cleaning house. Get out, go to a movie, or to the lake, or something else fun.

 None of this requires anyone to be a big spender.  All of it will help children mend their emotions, learn to make decisions for themselves, and help the parent be a better person.       

Child's Hearsay in Domestic Violence Protective Hearing

Child's Outcry in Criminal Cases: Written statements from abused children, on a case by case basis, are allowed in Texas criminal cases.  If the Court finds the statement reaches the level of reliability that the child's testimony would be admissible, then the statement is allowed.  The idea is to get the truth and protect a child from further domestic violence. Testimony from a child has the potential of intimidation or revenge for making an outcry.  A child should be protected from his abuser.  A child should be protected from the rigors of the courtroom.


Similar Provision in Texas Family Code:  A similar provision in the Texas Family Code, on a case by case basis, allows a child's written statement that describes his abuse to be admitted into evidence. Once again, the Court determines the reliability of the written statement in a hearing, away from the jury, to determine the reliability. Was the child's written statement the result of manipulation or is it reliable?  A Texas family lawyer sees cases in which neither the adults, both accuser and the accused, have the morals of an alley cat.  Or, perhaps they do not have the morals of an alley cat.   The appeals in these cases show that the real fight comes in the hearing to determine the reliability of the written statement.  Showing the reliability of the statement is trickier than it would first appear.


New Act for Protective Order Hearings:  Now the Texas Legislature has taken up House Bill 905 to allow the same kinds of written statements to be used  in hearings on Applications for Protective Orders.  The written statement of the child, 12 years and younger, that describes family violence against the child will be admissible.  The new Act follows the prior Texas laws and brings consistency to the protection of children in Texas Courts. If it passes, the new Act will take effect on September 1, 2011.


Protecting abused children is good: House Bill 905 appears to be a good Act to bring consistency to the legal system.  Protecting abused children is good. Protecting children from domestic violence is good. Getting to the truth is good.  Creating exceptions to the Hearsay Rule is always a bit scary to this lawyer. However, that protecting abused children is more important than my comfort level with a rule of evidence.

Mistaken Paternity in Texas

Mistaken Paternity:  The Texas Legislature is moving on cases of mistaken paternity.  Senate Bill 785 passed the Senate, was sent to the House, and allows a second look at paternity.  The Bill says that if the man (1) signed an acknowledgement of paternity, or (2) did not contest a paternity suit which declared him to be the father, then he may bring a suit to terminate the parent child relationship.  DNA tests would be ordered for the child and father.  The prior paternity decree would be effectively reversed, if the DNA test shows the man is the not the father.


Current Law:  Texas courts currently disallow paternity testing after a decree of paternity.   This allows the mother and her family to sit down with the best employed of her boyfriends and tell him he is the father of the child.  If a mistaken result occurs, at $500.00 per month in child support, the results are an 18 year, $108,000.00 fraud.


The Problem:  When she asks for government assistance, the mother is asked to identify the child's father. There are cases where the mother, over several years, named 3 or 4 different men as the father.  Texas family lawyers have cases, with DNA test results, showing their client not to be the father. No satisfactory remedy is currently available.


Attorney General of Texas: The change in law is an idea of the child support collection agency, the Attorney General of Texas.  The change in law is made possible by new DNA testing which allows paternity to be tested by taking DNA from the father and child only.  The mother does not need to be tested.


Good Changes:  The change in the law will prevent mistakes, fraud, and will be a good thing.  If it passes, the new law will take effect no later than September 1, 2011.  The new law will modify Section 161.005, of the Texas Family Code.

New Law Takes Effect: The new law is in place and giving 

relief to those in mistaken paternity cases.

Solo Lawyers, small businesses and Non-Profits and Inflation

In a recent talk, the CEO of Walmart reminded everyone that Walmart signs contracts for its products months in advance of the products appearing at stores.  He alerted us that Walmart's contract prices are jumping with serious inflation beginning in June of 2011.  He is not guessing; he is seeing the inflationary prices printed on the contracts. What is the solo lawyer, small business or non-profit to do?  It is time to make some guesses and take action.

Fuel costs will drive up the prices of things that are delivered by truck.  Paper, envelopes, and file folders are already spiking. For the small office, should we simply buy an extra box of copy paper or envelopes?


Ink? It is already too high!

Is it time to buy a good scanner and go paperless?  Scan in forms, important papers, orders, decrees and use Dropbox.com to have a free offsite storage?

They grow a lot of coffee in Brazil, but not in Texas.  Tea is grown in India and Indonesia, 12000 miles away. Shipping fuel and trucking fuel are and will continue to drive up prices.  What office can survive without coffee or tea? Time to  buy extra cans of coffee and boxes of tea.

Fuel costs travel is already going up and will continue to do so.  Is it time to get serious about Skype, Gotomeeting, or Anymeeting.com to offer seminars online?  Freeconferencecall.com could save travel expenses.

Of course, it is all guess work, but I remember serious inflation.  We have two or three months to make our guesses and take our chances. Take action! The days of serious inflation are acoming!

Carolyn Elefant (MyShingle.com) has a recording on her website for solo lawyers. When she lists web sites that offer free services for solo lawyers and small law firms, it is amazing.  This old dog learned a few new tricks.

Dropbox.com and box.net are simple storage places for documents on the web.  Simple to use, and simple to retrieve documents, even if away from your computer.

Freeconferencecall.com gives you a telephone number and a PIN, and you make free conference calls.

Wufoo.com allows you to create client comment forms and a host of other forms.

Anymeeting.com, formerly Freebinar, allows one to conduct free seminars, sharing your computer screen with students.

Openoffice.org provides a word processing program.

Godaddy provides and e-mail address with your name, instead of Yahoo or G-mail

FreelanceSwitch.com offers an online calculator to help set fees.

Google Scholar allows legal research (and other kinds of research).

Fastcase  is dedicated to online legal research.

Toggl helps track time.

Freshbooks.com will create your legal billing.

Zoho Projects and Google Apps offer services to help set up and office and get it going.

Most of the services are free, several have a minimal expense, and all offer expanded services for a fee.  None of these programs were invented when I started practicing law, nor even when the firm began to use computers, but they are a part of my life now and are great!

How Long Does it take to get a Divorce?

• If you just moved to Texas, you wait 6 months to establish residency.
• If you just moved to a new county, you wait 90 days to establish residency.
• If you just served papers on your spouse, you wait between 20 and 27 days for your spouse's Answer. The answer day is always Monday morning, but the law has a 7 day variable.  Go figure.
• If you just filed a divorce case, there is a 60 day "cooling off" wait built into the law. 
• If you are in a busy judge's court, there will be a scheduling order, which lists things to be done over a 4 month period ( or so ).
• If you have a Temporary Restraining Order, you have a 14 day wait to get to a hearing.  In other words, getting help on child support and expenses has a 14 day wait.
• If you ask for a trial setting from the Court, there will be a 45 day wait to give the other side proper notice.
• If you want to settle the case, it usually takes a wait of 45 days from the filing of the divorce until the parties are calm enough to talk and settle a case.
• If drugs and children are at issue, there is usually an immediate drug test. The drug test may take custody issues immediately. 
• If children are at issue, there may be a wait for a psychologist's report or a psychiatrist's report in 4 months or so.
• If you are the woman and feel in danger, there is no wait, you go to your nearest, oldest, male relative for a visit.  Modern science provides a miracle cure for spousal abuse cases, the thought of going to see the wife and meeting her unbalanced, shotgun loving Daddy.
• Of course, the most reasonable thing is to hire a lawyer, tell him you want a divorce, and then complain about how slow your lawyer moves the case.  Spend your time recovering, helping children recover, and getting your life back is a better use of time than learning the procedural rules for a divorce.  Only a lawyer could love rules of procedure.  

Oops - Unforeseen Consequences of Criminal Convictions

Punishment: We all  know that committing a crime can result in punishment by fine or jail or prison. It is not as well known that the ability to get work may be lost by a conviction, probation, deferred adjudication or pretrial diversion.

Bad News. The Texas Occupation Code gives licensing bodies wide discretion in denying, suspending, or revoking the license of any person convicted of a felony or a misdemeanor related to the occupation. A list begins with Athletic Trainers, Barbers, Cosmetologists, Interior Designers, Water Well Drillers, County Librarian, Landscape Irrigators, and Fish Farmers. The list of effected occupations is much longer than shown here, and may apply to guilty pleas, deferred adjudications, and pretrial diversions. As you may know, in a pretrial diversion, the District Attorney and Defense Lawyer agree on a course of action, and the parties never even go to the Courtroom. [ Librarians?  Hair Dressers?]

Worse news: Students lose scholarships, are denied scholarships, and lose grants. These bans are in addition to zero tolerance bans by Universities and Colleges in denying admittance or a diplomas on drug convictions.

Bad things can only get worse: For narcotics convictions, the Federal Government imposes a lifetime ban of Food Stamps and other assistance. There is a lifetime ban on federal health care benefits (Medicaid, Medicare, Obamacare). There is a lifetime exclusion from federally funded low income housing.

Never stop the punishment: There are annual surcharges, beginning at the $1,000 level, for persons convicted of driving while intoxicated within the past 3 years. The restrictions on rights may include a ban on gun ownership, registration as a sex offender, and a ban on the use of computers.

Probation:  Most first time offenders are given probation, and if they successfully complete the probation, should have their rights reinstated, to a degree.  This is fraught is dangers, because the specific language is not always there.  A general "be good now" phrase in the discharge is not good enough.  Just ask the guy who was sent to the federal lockup for going on a dove hunt after he successfully completed his probation.

For specific information, Randy T. Leavitt wrote an amazing article for the Texas Advanced Criminal Law Course (2010), [randy@randyleavitt.com.], which is a good starting point for further research.

My wife asked me, "Isn't all this a bit much?"  The answer is yes, but it is very real and a lifelong punishment for the impulsive kid who took a step too far in his youth.

Things to do first in a divorce.

Here is a list of things to do early in the divorce procedures.   The following is not a complete list, it is just some things to think about.

1. Go see your doctor. Divorce is stressful and depressing. Get something to help you sleep. If you have been battered, get it documented by the doctor and his staff.

2. If you feel that you are in danger, go stay with daddy or your oldest male relative. It is amazing how the idea of seeing the grumpy old guy, with a shotgun, calms an abusive husband.

Listen to your feelings. There are warning signs of spousal abuse.

3. Take some photographs inside and outside the residence and all the vehicles. Make copies of all valuable documents like letters, diaries, deeds, car titles, check books, and credit card statements. The Judge already knows what you think of your spouse. The Judge wants to see evidence and these things are evidence. I do not want original documents in my office and I do not know of any lawyer who wants to be responsible for originals. Go to a copy place. Make good copies.

4. MySpace, Facebook, &; Twitter pages are used every day in divorce courts. Even if you marked them private or for friends only. If you have been too opinionated, vulgar, or adventuresome in the social media, ( ahem ) change your ways. If your spouse ( or girlfriend ) has done the same, print some pages for your lawyer. In that regard, remember that e-mails and texts are also commonly put into evidence and shown to the Judge.

5. Drugs: society may accept recreational drug use. A judge concerned about children will only see an easy way to decide custodial rights. Clean up and stay clean.

Being prepared may make the case a lot easier, and that is something you will need.

Economy getting better?

Lee Iacocca says it best, "instead of getting mad, everyone sits around and nods their heads when the politicians say, 'trust me, the economy is getting better..' Better? You've got to be kidding. This is America , not the damned 'Titanic'."

Lee Iacocca also says, "Name me a leader who has a better idea for homeland security than making us take off our shoes in airports and throw away our shampoo?"

Go, Lee, go!

Facebook in 20% of American Divorces

It is being reported today that photographs and statements from Facebook, MySpace, and other social websites are the primary evidence in 20% of matrimonial and custodial court cases. Yes, Yes, Yes. Members routinely put the sexiest photographs on Facebook. Members, who are unhappy, routinely say the ugliest things on Facebook or brag about their adventures. Even if you limit the photographs and text messages to your friends only, the Courts look at printed copies of Facebook and MySpace entries every working day of the week. When your super sexy photograph is shown to the Judge or your brag about smoking grass is shown to the Judge, it may hurt your argument that you are a great mother or a great father.

Since the Facebook statements are "admissions against interest" (confessions), they are not hearsay and come rolling into evidence. Since Facebook photographs show what you actually looked like on the day the picture was taken, they come rolling into evidence.

Putting something too sexy or too adventuresome on Facebook or MySpace is like picking up a cat by the tail. You will learn things you cannot learn any other way.

Texas Legislature & Hiring Illegal Aliens

A Bill has been introduced at the Texas Legislature that would fine or jail any person hiring an illegal alien, except those working in your house or your yard. Your maid and nanny and lawn mowing kid would be okay, but if you hired them to work at someone else's house, you could be arrested. The Bill has not passed, yet.

Houston attorney Harry Tindall asks "why not exclude building janitors, construction workers, waiters, cooks, hospital employees and car wash employees?"

As for me, does my yard include the 6 acres of adjoining farmland? Are illegal alien farm & ranch workers to be despised and lawn boys praised?

Creating exclusions to the rules are nearly always difficult and unwise.

This smacks of a 19th century idea that Mexicans were only good people as maids and gardeners. As Sherlock Holmes would say, "The game is afoot."

Texas Dept. Family & Protective Services

House Bill 1 at the Texas Legislature proposes a cut of 400 caseworkers and investigators from the Dept. of Family & Protective Services. These are the persons who care for neglected and abused Texas children. The recommended caseload is 12 to 15 cases per caseworker, with the Texas average being 27 cases. The cuts in caseworkers would make this average much worse, meaning long delays in getting help for neglected and abused children.

For neglected children, think of the children of meth addicts, or alcoholics, or the homeless. For abused children, think of the children of parents with severe anger problems, or dangerous sexual habits, or emotional or psychological problems that make them dangerous to others. After an outcry is made, these are children who do not need long delays.

As a family lawyer, I have battled with the Dept of Family & Protective Services, have called the agency "out of control" and "too powerful". However, there are courts and Judges to see that justice is done when caseworkers make a mistake; there are no remedies for neglected and abused children who must wait too long for help.

Bankruptcy or Debt Solution Company plan

Debt solution companies - The GAO issued a report last year saying that only 1 in 10 customers of a debt solution company finished the program. The GAO also found that the debt solution companies tended to collect its fees first, then attempt to settle with the creditor. The customer may pay the debt solution company for months or a year with a 1 in 10 success rate.

Telephone collection calls - and other forms of debt collection continue while the customer is in the plan, until the bills are fully paid.

Bankruptcy - The automatic stay provision of the Bankruptcy act stops telephone collection calls and all attempts to collect a debt. This blog does not attempt to predict the outcome of any case, but "automatic" is, well, "automatic" and is better than 1 chance in 10.

The decision to file a bankruptcy - is more complicated than any blog can discuss. The ability to automatically stop harassing telephone calls can allow decisions to be made in silence, and away from the demands of creditors.