Do you know your local rules?

You might know that civil lawsuits in Texas are governed by a set of rules, the Texas Rules of Civil Procedure, which are promulgated by the Texas Supreme Court.  Much like the federal rules, the Texas Rules (TRCP) cannot “abridge, enlarge, or modify the substantive rights of a litigant.”  But did you know that every court in Texas can also draft its own rules?

Known as “local rules” a court wishing to adopt its own rules must file copies of its local rules with the Supreme Court for approval, and those rules must be published at least 30 days before they are effective, in accordance with TRCP 3a(3) and (4).  Attorneys and parties operating within a court are charged with knowing its local rules.  Failing to familiarize yourself with the local rules can be damaging.

Consider one of the Dallas County District Courts’ local rules

Within 30 days after the Court has announced a verdict or judgment or the Court receives a written announcement of settlement from either party or from a mediator, counsel shall submit to the Court a proposed judgment or dismissal order, unless ordered otherwise. Failure to so furnish the Court with such a proposed judgment or dismissal order will be interpreted to mean that counsel wish the Court to enter an Order of Dismissal with prejudice with costs taxed at the Judge’s discretion. (Emphasis supplied).

That’s a pretty hefty rule.  If the parties notify the court they are settling, but don’t furnish a proposed judgment of order in a timely fashion, the court will dismiss the action with prejudice!  In other words, the plaintiff won’t get to file another lawsuit, and his or her only remedy is on appeal.  This is the sort of trap that could be fatal to a pro se plaintiff, or an unwary attorney.

Moral of the story:  read the local rules!

Steinberg Presents to Collin County Bar Association

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

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

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

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

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.

Do I really need a lawyer?

The only way to know for sure is to talk to one. Unfortunately each legal problem brings with it a unique set of facts and complications.

Without speaking to a lawyer about your circumstances, it’s impossible to know for sure if retaining a lawyer is the best and most cost-effective way of maintaining your rights. Also, while you may be thinking of representing yourself, known as “pro se” in legalese, you may want to carefully weigh the benefits. Lawyers have access to more than just courtroom experience. We subscribe to electronic services which help us keep up to date on the most cutting edge laws, and we’re familiar with the sometimes complicated rules of procedure and evidence. There’s also a saying in the profession, “the lawyer who represents himself has a fool for a client.” We wouldn’t appear pro se, and we suggest you don’t either.

How much will it cost me to hire a lawyer?

Lawyers generally have three ways of charging for their services, but it can get a little complicated. Read on.

First, a lawyer will frequently bill at an hourly rate for the time she works. Under this model you will only be charged for the time put into your case. Under this fee-structure, as well as the others, you will be charged for incidental costs like court costs, expert witnesses, and any travel costs.

Second, depending on the nature of your case, a lawyer may base their fee on how much you recover. This is called a “contingency fee” and is often used when the case is complicated, and the size of your recovery hinges on a lawyer’s skill. For instance, this is a frequent billing method in a civil rights case.

Third, you could be billed a flat fee, at the outset of your case. This final method is much rarer, and usually only for very simple cases like a standard ticket or an uncontested divorce, with no children or property.

How long can I expect a lawsuit to last?

A long time.

One of the hardest things about filing a lawsuit is managing your expectations about the speed of the proceedings. If Law and Order can get from crime scene to acquittal in an hour, why can’t you, right?

Unfortunately courts have substantial dockets, and depending on where your case is filed, it could take anywhere from a few weeks for your opponent to decide your right, to a few years for the Supreme Court to decide you’re right!

When should I contact a lawyer?

You should contact a lawyer if you’ve been wrongfully laid off because you’re older, or a woman; if you’re a man who has been wrongfully accused of harassment; if you’ve been arrested; anytime your gut tells you, “This just isn’t right!”

Your problem may not always have a legal solution, but if it does your rights have an expiration date. It’s called a statute of limitations, and it exists in almost every type of case. So if you wait to long, no matter how wrong they were, or how right you are, you may not be able to do anything about it.