Category: Life’s Little Legal Problems

Steinberg Presents to Collin County Bar Association

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By:  Kelly R. Ledbetter

On September 24, 2012, Alexis F. Steinberg presented a lecture about tables of authorities, tables of contents, hyperlinks, and other formatting and technology topics during the Law Practice Management Section meeting of the Collin County Bar Association in Plano, Texas.

Understanding formatting methodology in both Microsoft Word and Word Perfect is significant for lawyers primarily because it is in the lawyers’ best interest for any reader quickly to understand and appreciate both the legal arguments and the references to legal authorities.

Steinberg taught that automatically updating a table of authorities (a table of contents comprised of legal sources) will save lawyers and readers a lot of time. Rather than manually updating the table of authorities for an appellate brief–which can easily exceed a hundred pages and scores of sources–lawyers and legal staff should learn to make their technology work for them.

Saving time in the office means saving the client money. Hiring a technologically knowledgeable lawyer is a financially advisable decision. Judges also find briefs whose supporting documents are easy to navigate to be more persuasive, which is good news for favorable judgments.

Particularly stressing that Word Perfect as a word processing platform affords flexibility and control for more than documents written just for appeals, Steinberg demonstrated multiple opportunities to increase the readability of legal documents by inserting internal links as well as hyperlinks.

During the Q&A following her lecture, Steinberg explained that many appeals courts and, increasingly, district courts are welcoming if not requesting documents involving hyperlinked references to authorities.

Why is formatting so important? It helps Mosser Law PLLC present information in the easiest, most streamlined, and technologically practical manner for the benefit of its clients.

 

Vindicating the Rights of Texas Homeowners

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The Texas Constitution has some very strict language about protections for homesteads.  Unfortunately, many Texans don’t know about those safeguards, and their homes are foreclosed upon in violation of the Texas Constitution.  Mosser Law is actively working on behalf of homeowners.  With some success in the past, we hope to help more Texans in the future.

This Report and Recommendation from the US Magistrate Judge is the basis of a pending appeal before the 5th Circuit.  In that case two homeowners, unaware of the requirements of the Texas Constitution, were misled by the lender and title company–among others.  The loan was closed improperly, in the homeowners’ living room, without constitutionally mandated notice.  Upon informing the lender of the violations, the lender failed to reform the loan in accordance with the Texas Constitution.  After the appropriate time period had elapsed, the homeowner then filed a declaratory judgment for to have the lien declared void in accordance with the Texas Constitution.  The district court in that case decided that the homeowners had waited too long to pursue their claims.  Although the Texas Constitution has no language regarding a statute of limitations, the district court applied a “residual” statute of limitation of four years.  The homeowners, with the help of Mosser Law, are appealing.  We point out that the language of the Texas Constitution indicates that a lien created in violation of that document is void, and that there is no limit on your ability to have a court adjudicate the void nature of that lien.

Here you can find our clients’ opening brief, the Defendants’ Response, and our Reply.

If you are interested in reading about another of Mosser Law’s cases under the Texas Constitution relating to voiding a homestead lien because of constitutional violations, you should read about the Rays.  The lien on their homestead was declared unconstitutional because of fraud by the bank.  They also won a damage award, and an award of attorneys’ fees with the help of Mosser Law.

New Appellate Admissions

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As of this summer Alexis Steinberg  and Nicholas Mosser are admitted to practice before the 5th Circuit Court of Appeals.

Ms. Steinberg’s appellate practice has previously included appearing before the Texas Supreme Court, and the needs of her clients now demand she be prepared to travel to New Orleans.  Ms. Steinberg drafted the briefs in Mosser Law’s case on homestead liens created in violation of the Texas Constitution, which is currently pending before the 5th Circuit.

 

 

I won’t tell if you don’t… Confidentiality and Seals

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Everybody has secrets. One of the most frustrating and invasive aspects of litigation is the forcible exposure of those secrets to the prying eyes of your enemy (the other party), the courts, and anybody who takes the time to look up the records of your litigation.

So how do you handle the invasion of privacy that is litigation? Very, very delicately.

First, it begins with the recognition that just because you have been keeping something secret, that does not automatically entitle you to keep it secret from the world at large. You must examine what you are trying to protect. Is it a true trade secret? Is it the formula for Coke? Or is it a list of your clients, that would be valuable to your competitor? Or is it just a letter that reveals the embarrassing fact that you read trashy tabloids? It is important to remember that some things really are not worth protecting.

Second, after you have decided the value of your “secret” you must then decide the best vehicle for protection. You may be able to work with the opposing party, and produce your information to them under an agreed “protective order” in accordance with Tex. R. Civ. P. 192.6. Without agreement you must bring your desire for protection to the court. Under an agreed protective order, you have control over how the opposing party uses the documents, but the documents are not yet part of the “public domain.”

If you cannot get a protective order governing your documents, there is the possibility of a “seal” under Tex. R. Civ. P. 76a. Sealing documents is not without great peril. If you really want to keep your documents away from prying eyes, it is best not to have those documents as part of the record. Once those documents are considered “court records”—a fact specific question relating to the contents or use of the documents—you cannot take their public character away. Because Texas has an open-courts system, court records are generally open to the public without some weighty, contravening interest.

Finally, to have your records sealed, you must make a public announcement—to the Clerk of the Texas Supreme Court, and at the place where notices of meetings of county governmental bodies are posted—that you are attempting to seal records. Then there must be a public hearing, where anyone can intervene and contest the seal of your records. If you carry your burden of showing a specific, serious and substantial interest, outweighing the presumption of open courts, and outweighing any adverse effect to public health and safety, and you demonstrate that there is no less restrictive means than sealing your records to protect your interest, then and only then are your records sealed.

Imagine, trying to explain why your deepest secret should remain a secret, in front of a bunch of interested parties. Not exactly the best way to keep anything private! So if you are concerned about airing your dirty laundry during litigation, make sure you bring these issues to your attorneys’ attention early, and resolve them.

As always, our blog is no substitute for a real, live lawyer.

 

Mosser Law Defeats Patent Troll

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Does this mark the end of an era for patent trolls?  For the sake of patent holders everywhere, we sure hope so.

Recently, Mosser Law successfully defeated a patent troll in the Eastern District of Texas.  There is a little known law which prohibits the marking of a good with a patent that has expired.  That is, if your dohickey, patent no. 9,723,333,223, has reached the end of its patentented life, you have to remove the mark.  You cannot keep selling your dohickey with an expired patent number on it. 

If you keep selling your marked dohickey, anyone can sue you in a qui tam suit under 35 U.S.C. § 292.  This is called a “false marking” case.  Until recently, it was enough to meet the requirement of “intent to deceive” if a defendant was alleged to be a sophisticated company, perhaps retaining patent counsel, who was acquainted with the business of acquiring and using patents.  Then the courts would infer that the defendant’s failure to remove a mark was an active attempt to deceive.

However, the Federal Circuit recently clarified the “intent to deceive” requirement, by teaching us that the intent to deceive was held to a heightened pleadings standard, under Fed. R. Civ. P. 9(b).  In the case In re BP Lubricants USA Inc. the Federal Circuit opined that there must be more than just conclusory allegations to infer an intent to deceive.  The Federal Circuit did not specify what would meet that requirement, only noted that the “sophisticated company” argument was not effective. 

We look forward to seeing what sort of cases further develop the law in this area.  In the meantime, you can read more of what we wrote on this topic for the judge by reviewing our reply brief, and the Order Granting Motion to Dismiss is here.

Why do you keep calling me?

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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

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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

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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

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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

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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.