Year: 2010

Why do you keep calling me?

We’ve all been there. The phone rings and the dreaded “unknown caller,” obscure area code, or “1-800-some annoying telemarketer” pops up on the caller ID. Frustrating? Yes. Borderline harassing? Sometimes.

Most folks don’t realize that many telemarketing companies may be breaking the law by calling you repeatedly once you have requested that they do not call.

The Federal Trade Commission (FTC) has created a National Do Not Call Registry which allows consumers to limit the number of telemarketing phone calls they receive. Telemarketing agencies are required to remove your phone number from their call lists within 31 days or they are in violation of federal law.

Registering your number requires nothing more than a valid email address and a few minutes of your time. Simply go to the Do Not Call Registry website and follow the steps to place your phone number on the Do Not Call list. If you do not have an active email address, you may also call 1-888-382-1222.

In addition to the remedies available through the Do Not Call Registry, consumers have additional rights under federal law. Even if you choose not to register your number on the national Do Not Call list, you may still prevent individual telemarketing agencies from contacting you by requesting that they place you on their own Do Not Call lists. This request does not have to be made in writing. A simple “please place me on your do not call list” is all it takes to have your phone number removed! If an agency continues to contact you after this request has been made, you may have some form of legal recourse available to you.

For additional information about consumer rights involving telemarketing phone calls, visit the FTC website.

Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.

And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!

Circuit Breakers for Stocks are Stupid

In the next few weeks, the SEC and the heads of various stock exchanges will be telling you how to invest your money. “ The biggest U.S. equity markets will urge regulators to begin a program next month for temporarily halting individual stocks that swing more than 10 percent…” So who does he, she, or they want to protect?

Well, according to former NYSE CEO Dick Grasso, they want to protect “the least sophisticated person in the market.”  Because “ [w]hen we protect that person, the market flourishes.

If you’re shorting your stock, circuit breakers don’t help you. If you’re long, circuit breakers don’t help you. It only impedes the market movement.

So why do we want to do this? Simple:  “they” want the amateurs to be safe. There is no professional trader that wants a circuit breaker to stop the market movement.  Well, unless he or she is on the wrong side of the trade. Then, of course, they want to be saved from their wrong decision.

If I’m long, I want the market to go up, unimpeded by the regulator’s circuit breaker. If I’m short, I want the market to go down unimpeded by the regulator’s circuit breaker.  And circuit breakers on individual stocks are a particularly bad idea for the dedicated trader. If Company X goes is verging on bankruptcy, that trader needs to dump his stock, but individual stock circuit breakers could prevent that transaction.

So what are they thinking about? They want to save you and your retirement dollar. WHAT? If they knew what they were talking about they would not talk. If I invested in any index fund 30 years ago, would I care about a circuit breaker? Of course not, I do not trade my retirement funds. I invest it and leave it there until I need to retire, 30 years later.

Ask anyone over 40, that has any experience in Las Vegas. Yes, Las Vegas. You only bet on sure things, and there are none in Las Vegas or on Wall Street. Bet against the house, any Wall Street firm or the Casino, and you lose. Invest in a no load indexed mutual fund, invest every week, day, month, year, the same amount all of the time, and you will end up with more money.

No one wins all of the time, every time.  Except the house, because they take a commission. That is why the banks, failed, why the traders failed, why if you gamble you fail. But if you are an investor you do not care. You invest money consistently every day, or month, or week, or year, all the time and you keep doing it, through the life of the your earning lifetime. You win.

If you gamble you may win, you may lose. If you trade, you do provide liquidity to the rest of the market. And you give the real investor the opportunity to leave the market 30 years after he or she started. Real investors do not panic. If the market is down when they invest it, always goes up. If the market is up when they invest, it always goes down.

Real investors never worry, because the market trend is always up. Yes, always. Go ahead, look at the market in 1776, and look at it today, ok, 1930 and today, 1950 and today, I do not care any day and today or any day plus 30 years. On a thirty year moving average, since 1776, the market has gone up. REALLY. Yes, there are flat parts. But it goes up.

So, no, I do not want somebody in Washington to decide when I should invest, or not invest, or turn the lights on, or turn the lights off. Let me decide, and let the gamblers take their chances.  Give me liquidity!

The Dow, down a 1000 points, was back up in two days, and down again. Did you correctly guess the direction, every hour, every day, of course not. No one did. No one can. Did you loose $1 trillion?

No.  No one did. The market goes up, and it goes down. Investors win, gamblers win some, lose some. And regulators keep trying to normalize a system built around (relatively) free-market forces.

Feeling wound up about this issue?  Go sit in on the SEC’s upcoming meeting.

Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.


And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!

Fair Debt Collection

Odds are you’ve been contacted by a debt collector at some point. Even if it wasn’t your debt, maybe they called you about your ne’er-do-well brother, cousin, or ex-boyfriend. You know that debt collector is just doing his or her job, but it’s really frustrating!

Well, sometimes it’s not just frustrating it’s illegal. There are a host of consumer protection laws, on both the state and federal levels, which protect consumers from unfair debt collection practices. The Federal Trade Commission has some great information about federal laws. Specifically you can find a user friendly guide to the Fair Debt Collection Practices Act, as well as the entire text of the Act.

A few of the highlights include:

  • Debt Collectors should not call you before 8 am or after 9 pm without your permission
  • Debt Collectors cannot use any violence of threats of violence
  • Debt Collectors cannot use profanity
  • Debt Collectors cannot continuously phone you in a manner intended to harass, abuse, or annoy
  • Debt Collectors must disclose their identity in a meaningful way

This list barely scrapes the surface of the protections of the Act, and if you feel you’re being harassed, you should definitely familiarize yourself with the full text, including your remedies. You should also investigate the protections your state offers.

Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.

And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!

Controlling Your Online Image

When we were in the military we were often told not to do anything that we wouldn’t want the whole world to read about on the cover of the Washington Post. Or the Dallas Morning News, or whatever local paper was handy. Sound advice for a new recruit, struggling with his or her role in the framework of the larger military. But sound advice for everyone, not just military personnel.

But these days merely controlling one’s public behavior is not enough. The recruiter ought to also tell his recruits to be very careful about controlling their online persona, as well.

What’s this got to do with lawyering, you ask? Well, jurors, judges, opposing counsel, future employers, current employers, disgruntled romantic interests and everybody else all have one thing in common: access to the internet! And while it’s true that jurors and judges—in particular jurors— shouldn’t be indiscriminately Googling, blogging, tweeting, or texting about ongoing trials, the reality is that they do. A lot. Even if they are told not to. By the judge.

So we can ignore the reality—that folks are going to use the internet when they shouldn’t—and try to fix these problems on appeal, or we can face the problem and act proactively. If you’re like me, and prefer the proactive route, here are a few suggestions:

  1. Change your privacy settings for any social media. Often sites will have their own tutorials on this subject or you can find information posted by helpful users. Read the guides, check your settings, and update them frequently.
  2. Monitor your online presence. This is like fixing your credit score. You can’t make it better, if you don’t know it’s bad. So Google yourself. Put your name in quotes and out, run an images only search. What comes up? Anything bad? If so, can you change it? Maybe it’s an embarrassing picture posted by a “friend.” In that case, ask that it be removed, the label taken off, etc. These are not instant fixes, as the history will remain available indefinitely, but it’s a start.
  3. Remember that everyone is not your friend. It is okay not to be friends with everyone. For example, that guy you sat next to in math class a decade ago, you know, the one who likes to post embarrassing drunk pictures? Jurors on your DWI case will not be impressed that he’s your friend. It’s also okay to de-friend someone. On Facebook, at least, there is no notification if you de-friend someone. Go through and purge those folks that you only met once at a party three years ago.
  4. Be prepared to address negative or questionable content. You should know what’s out there, and particularly in a job interview, be prepared to respond to questions or concerns.

It’s unfair and sometimes illegal that the internet can be used against us so easily. But it doesn’t do your or your attorney any good to ignore the incredible source of information, good and bad, that jurors and everybody else will be using to learn about you.

Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.

And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!

Mosser Law Co-Hosts Appellate Meet and Greet

The Appellate and Civil Litigation Sections of the Collin County Bar Association are co-sponsoring a social on Thursday, April 29th, 2010, at Zea Woodfire Grill at Granite Park in Plano from 5:30pm- 7:00pm.

Our special guests are Justices Bob Fillmore and Lana Myers of the Fifth Court of Appeals.

Come enjoy food, drink, and good company compliments of our hosts Cowles & Thompson, P.C., Fulbright & Jaworski, LLP, Koons Fuller Vanden Eykel & Robertson, P.C., Mosser Law PLLC, and The Suster Law Group, PLLC. This is a great opportunity for the Collin County bench and bar to meet our two newest justices.

Plus, membership in the Appellate Section is free for the first year for those who join at the event.

On Long Lost Lawyers

Being a lawyer at a cocktail party is a little bit like being a doctor at a cocktail party: everyone wants you to diagnose their legal problems. That can be very challenging what with the liability issues involved, and problems with stepping on another lawyer’s toes. But the most disconcerting question lawyers get asked is “Why won’t my lawyer return my calls?

This is a really great question.  You pay your lawyer a lot of money, shouldn’t you expect him to call you back when you want him to?  As with all questions to lawyers, the answer is invariably “That depends.”

There are two main reasons a good lawyer isn’t calling you back.

1. NOTHING IS HAPPENING Oh, this can be very frustrating, but very true. There’s a lot of waiting in litigation. Waiting for discovery, waiting for a trial setting, waiting until it’s time for a deposition. If your lawyer called you just to let you know that it’s time for more waiting, your legal bills would be astronomical, and you’d be livid!

So how do you know, without calling, if nothing is happening or if your lawyer is slacking off?  Your lawyer ought to be sending you copies of any court filings, notices of court dates, and even some correspondence.  This way you can be “in the loop” without wasting your precious legal fund calling and checking in every other week.  If you’re not getting these documents automatically, call and ask your lawyer’s paralegal or secretary to forward them to you.

2. SOMEONE ELSE IS IN JAIL/BANKRUPTCY/DIRE NEED Believe it or not, this isn’t just a lame excuse. We spend a lot of time putting out our clients’ fires. Whether that’s jail, bankruptcy, injunctions, or just threatening letters, it’s important that we’re available in an emergency. So if your call isn’t returned the same day, it’s not because your litigation isn’t important, it’s just not as immediate.

This goes back to number 1, above. There’s a lot of waiting in litigation, so lawyers will put off till tomorrow returning your call, in favor of bailing someone else out of jail.   Think of this as a good thing.  After all, if you get thrown in jail, you’ll want us to be there as quickly as possible, right?

Other Tips:

You should be getting itemized bills so that you can keep track of the funds you pay to your attorney, and how he’s spending his time.

And any complaints that you make about poor communication, shoddy workmanship, etc. should be in writing.  You always want a record of your interactions, even with “your” lawyer.

Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.

And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!

Recusal and Disqualification

One of the scariest things in a lawsuit is when a litigant believes the judge has it in for him or her. Of course, everyone thinks at one time or another that the judge “just doesn’t like me!” But it’s different when you’re firmly convinced that the judge has aligned with the other side against you.

Fortunately, this doesn’t happen much. The judiciary is, on the whole, a really respectable bunch. They even have their own special sets of rules to keep them on the straight and narrow (and here in Texas).

But occasionally judges really shouldn’t sit on a particular case. For instance, if your brother is a judge he can’t sit on your criminal trial–even if you’re ok with it the other side wouldn’t be.

There’s two sorts of “shouldn’t hear the case” situations governed by the Texas Rules of Civil Procedure 18a and 18b. The first shouldn’t is known as disqualification. This covers previous legal associations, monetary interests, and family relationships. The second shouldn’t is recusal. Recusal includes everything else: bias, questionable impartiality, and looser professional and financial relationships, to name a few.

Motions to Recuse or Disqualify a judge are important legal tools. They’re used in some high profile cases, and here. While it may seem frightening to ask a judge to recuse himself, a good judge shouldn’t take it personally. And if he does? Well, there’s always the appeal!

Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.

And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!

Dodging Service

We get to see and do some fun things as lawyers. Usually serving papers on folks isn’t something we watch. We hire a process server, or let the local law enforcement take care of it. But sometimes you have a special party, one that you make an effort to be there for. Just in case your process server needs a witness!

We had one of those special sorts lately. The Gentleman was an executive for Big Company—no, that’s not really their name—who was in town for a speaking engagement. He was from out of state, so we were particularly excited to be able to serve him in Texas—in Dallas, even, and eliminate the sometimes pesky personal jurisdiction discussion.

Our process server approached the Gentleman from out of town, announced himself and his business and offered the Gentleman the papers. The Gentleman declined to take them, so the process server dropped them at his feet. The Gentleman then bent down, picked them up, and walked away—disgruntled I’m sure.

So what’s the legality of dropping the papers at his feet? Completely legal, if he refuses to accept service.

Rule 103 of the rules of civil procedure provides, among other things, that the citation shall be served by any person authorized by rule 103 by “delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto.” Tex. R. Civ. P. 106(a)(1). Generally, a person within the jurisdiction has the obligation to accept service of process when it is reasonably attempted. See Dosamantes v. Dosamantes, 500 S.W.2d 233, 237 (Tex. Civ. App.—Texarkana 1973, writ dism’d). He is usually held to have been personally served if he physically refuses to accept the papers and they are then deposited in an appropriate place in his presence or near him where he is likely to find them, if he is also informed of the nature of the process and that service is being attempted. Id.; see also Texas Industries, Inc. v. Sanchez, 521 S.W.2d 133, 135 (Tex.Civ.App.-Dallas), writ ref’d n.r.e., 525 S.W.2d 870 (Tex.1975).” Rogers v. Moore, 2006 WL 3259337, 1 (Tex. App.—Dallas, 2006).

So why did our Gentleman bother refusing service? Perhaps he thought it would help him, somehow. But then, folks do a lot of crazy stuff to avoid service.

Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.

And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!

Pro Se, saving money, but at what cost?

We wrote a little about going pro se—representing yourself—in our FAQs, but this recent article in the Los Angeles Times got us thinking about the issue even more.

There’s no question that the current economic climate makes representing oneself look very appealing, but the risks are daunting. In a criminal case you could face fines, a criminal record, probation, and even jail time. Civil court could spell financial disaster, or the loss of important rights and privileges.

But realistically we know some folks are going to give it the old college try, anyway. For you intrepid aspiring lawyers, here are some valuable resources…

Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.  And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!

Another Appellate Victory

Another appellate victory as Mosser Law vindicates our client’s interests.

Things don’t always go the way we want in the trial court. Fortunately we’ve got the Courts of Appeal to fix those minor problems. Recently one of Mosser Law’s clients witnessed this firsthand.

Mosser Law was able to have an unfair ruling by the trial court reversed and remanded. Read the trial court’s opinion for more details.