When "It happens" we can help. Free phone consultation. Make the call today: 972-559-4548

When "It Happens" we can help. We will be happy to discuss your situation. The phone consultation is free so make the call today: 972-559-4548

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News on the Lawyers and Legal Professionals of Texas
Updated: 5 hours 21 min ago

The Battle over Biometrics

Mon, 10/08/2018 - 12:24

A look at the law in Texas and two other states

Public hearing set on proposed rules changes

Fri, 10/05/2018 - 16:12

The Committee on Disciplinary Rules and Referenda (CDRR) has published proposed rules changes regarding confidentiality/ethics advice and diminished capacity.

These were also printed in the (September) Texas Bar Journal and the (August 31) Texas Register. A public hearing on the proposed rules will be held at 10 a.m. October 10, 2018, at the Texas Law Center in Austin.

The public can listen via teleconference at 1-605-475-5604, Passcode: 2870504#

The committee also will accept comments concerning the proposed rules through November 1, 2018. Comments can be submitted at texasbar.com/CDRR.

The committee was created by Government Code section 81.0872 and is responsible for overseeing the initial process for proposing a disciplinary rule. For more information, go to texasbar.com/CDRR.

Savings on events and fashion

Fri, 10/05/2018 - 08:00

With offers on sporting events, theme parks, and stylish outfits, your Member Benefit Program has everything you need to have fun and look great this October. Visit the Entertainment, Retail, and Wireless Phone pages to start saving.

  • Premium Seats: NFL Football Tickets — Premium Seats USA carries a huge selection of NFL tickets. Save $50 on orders of $400 or more, or save 10% on your entire order.
  • Ticket Monster — Thanks to the Ticket Monster Employee Discount Program, you can save up to 50% on tickets to sports events, concerts, theme parks, and movies.
  • Preferred Access Tickets: Concerts — Get tickets to the most in-demand concerts, sports games, and major events around the world with the new TicketsatWork Preferred Access. It’s all here: great seats, the best prices, and the top shows.
  • Theme Parks & Attractions — Save up to 40% on admission to the nation’s most popular theme parks, special events, and attractions. Savings are available for Walt Disney World Resort, Universal Orlando, Cirque du Soleil, movie tickets, and more.
  • Rockport — Rockport believes that your workday should be spent in comfort and style. To help you turn heads at work without compromising comfort, Rockport offers 25% off your entire purchase all year round.
  • OtterBox — Shop otterbox.com, and receive 15% off the OtterBox case of your choice. We dedicate our cases to all the klutzy, spontaneous, chaotic, graceless individuals who have broken a device or valuable due to their active lifestyle.
  • Skechers Direct — Skechers Direct is proud to offer you all the benefits of our corporate shoe program. Save 30% year round on select work, corporate casual, dress, and performance shoes from Skechers.

Current offers provided by Beneplace.

For more information on other discounts you’re eligible for as a member of the State Bar of Texas, visit texasbar.com/benefits.

Texas Bar Private Insurance Exchange
The Texas Bar Private Insurance Exchange is a multi-carrier private exchange designed for State Bar of Texas members and their staff and dependents. Available to both individuals and employer groups, the exchange offers a wide range of health insurance choices and more.

State Bar of Texas – Benefits & Services

State Bar accepting expressions of interest for 2019-2020 committees

Thu, 10/04/2018 - 08:08

The State Bar of Texas is accepting expressions of interest to serve on committees for the upcoming bar year.

Please fill out this form by December 7, 2018, to express interest in serving on a State Bar committee beginning in the 2019-2020 bar year, which starts June 1, 2019. Information provided in this form will be submitted to the president-elect for consideration when naming committee appointments.

State Bar committees are established by the Board of Directors and appointed by the president-elect to consider matters of interest to the bar membership, update professional materials, recommend changes to policies and procedures, and study legal issues affecting the legal profession and the public.

A list of committees and their roles is available at texasbar.com/committees.

State Bar accepting expressions of interest for 2019-2020 committees

Thu, 10/04/2018 - 08:08

The State Bar of Texas is accepting expressions of interest to serve on committees for the upcoming bar year.

Please fill out this form by December 7, 2018, to express interest in serving on a State Bar committee beginning in the 2019-2020 bar year, which starts June 1, 2019. Information provided in this form will be submitted to the president-elect for consideration when naming committee appointments.

State Bar committees are established by the Board of Directors and appointed by the president-elect to consider matters of interest to the bar membership, update professional materials, recommend changes to policies and procedures, and study legal issues affecting the legal profession and the public.

A list of committees and their roles is available at texasbar.com/committees.

Guest blog: Making sure you have a court reporter in today’s market

Wed, 10/03/2018 - 12:46

By now, you have heard there is a shortage of court reporters or felt the pinch of not having a reporter when you need one. The Texas Court Reporters Association, or TCRA, has suggestions to help lawyers have a greater likelihood of having a reporter when they need one.

Court reporters are vital to the justice system. We know the system can get bogged down when a reporter isn’t available. Currently, the demand for court reporters exceeds the supply. TCRA has been working to recruit people into the field. We are also working on new ways to alleviate the problem in the near term. In the meantime, the suggestions below will help ensure you have the service you need when you need it.

  • Most importantly, as soon as you know you will need a court reporter, reach out—right away—to your favorite reporter or a court reporting firm to book the work. Many court reporters are independent contractors and take work from any firm that hires them or act as substitutes for official reporters in the courtroom. Reporters stay booked up, many as far out as three weeks. Asking for one the day before a deposition or hearing will often result in a court reporter not being available. The further out you book, the better.
  • Second, when scheduling, ask the firm if they have a reporter who is committed to do your specific job or if your job is just one of many on their books for that day. Request—when you book—that the court reporting firm confirm that they have a reporter assigned to your job for the date and time you have specified.
  • Third, if a court reporting firm doesn’t have a reporter for the time you would like to schedule one, ask the firm what dates the firm can commit to cover your job. While that process might take longer, it will be one way to keep things running smoothly.
  • Fourth, a few days before the job, follow up with the court reporting firm to confirm they have a reporter committed to your job. Firms normally confirm jobs the day before with both the attorney who scheduled the job and the reporter assigned to it. However, most firms welcome early confirmations.

Keep in mind that anything can happen to court reporters that can hinder them from doing a job to which they have previously committed. Even the most responsible reporter can get sick or have a family emergency. In that instance, the firms will do everything they can to get a replacement reporter for your job.

Court reporters want to be available when you need them and will make every effort to do so. However, we need your help to make this happen. TCRA’s members want to work with their customers—Texas lawyers—to keep the wheels of justice rolling as our new ideas for alleviating the shortage are implemented.

Thanks for your patience and your service to Texas.

 

Shari J. Krieger, CSR, RMR—President, Texas Court Reporters Association
Official court reporter of County Court at Law No. 3, Tarrant County

Lorrie A. Schnoor, CSR, RDR, CRR—President-Elect, Texas Court Reporters Association
Owner, Kennedy Reporting Service, Austin

Guest blog: Making sure you have a court reporter in today’s market

Wed, 10/03/2018 - 12:46

By now, you have heard there is a shortage of court reporters or felt the pinch of not having a reporter when you need one. The Texas Court Reporters Association, or TCRA, has suggestions to help lawyers have a greater likelihood of having a reporter when they need one.

Court reporters are vital to the justice system. We know the system can get bogged down when a reporter isn’t available. Currently, the demand for court reporters exceeds the supply. TCRA has been working to recruit people into the field. We are also working on new ways to alleviate the problem in the near term. In the meantime, the suggestions below will help ensure you have the service you need when you need it.

  • Most importantly, as soon as you know you will need a court reporter, reach out—right away—to your favorite reporter or a court reporting firm to book the work. Many court reporters are independent contractors and take work from any firm that hires them or act as substitutes for official reporters in the courtroom. Reporters stay booked up, many as far out as three weeks. Asking for one the day before a deposition or hearing will often result in a court reporter not being available. The further out you book, the better.
  • Second, when scheduling, ask the firm if they have a reporter who is committed to do your specific job or if your job is just one of many on their books for that day. Request—when you book—that the court reporting firm confirm that they have a reporter assigned to your job for the date and time you have specified.
  • Third, if a court reporting firm doesn’t have a reporter for the time you would like to schedule one, ask the firm what dates the firm can commit to cover your job. While that process might take longer, it will be one way to keep things running smoothly.
  • Fourth, a few days before the job, follow up with the court reporting firm to confirm they have a reporter committed to your job. Firms normally confirm jobs the day before with both the attorney who scheduled the job and the reporter assigned to it. However, most firms welcome early confirmations.

Keep in mind that anything can happen to court reporters that can hinder them from doing a job to which they have previously committed. Even the most responsible reporter can get sick or have a family emergency. In that instance, the firms will do everything they can to get a replacement reporter for your job.

Court reporters want to be available when you need them and will make every effort to do so. However, we need your help to make this happen. TCRA’s members want to work with their customers—Texas lawyers—to keep the wheels of justice rolling as our new ideas for alleviating the shortage are implemented.

Thanks for your patience and your service to Texas.

 

Shari J. Krieger, CSR, RMR—President, Texas Court Reporters Association
Official court reporter of County Court at Law No. 3, Tarrant County

Lorrie A. Schnoor, CSR, RDR, CRR—President-Elect, Texas Court Reporters Association
Owner, Kennedy Reporting Service, Austin

Holy Moley: Musings on “Super” Litigation

Tue, 10/02/2018 - 15:00

It was a simpler time. When I was a kid in the 1940s and ’50s, growing up in the Oak Cliff section of Dallas, the best part of the week was Saturday. With my 25-cent allowance closely clutched, I stood in a rowdy line at the old Beckley Theater to see the latest B-Western or Tarzan movie. Afterwards, I beat a hasty retreat to a nearby pharmacy to peruse the latest 10-cent comic books, finally selecting and purchasing one. My choice almost always featured a hero-type character with strong principles and a dedication to crime fighting and the “American way” in their make-believe world. Little did I know that deep-carpet copyright lawyers in faraway cities were then in a continuing and desperate battle for my one thin dime, fighting to maintain the legal existence of the fictional characters whose virtue I admired and adventures I so fervently followed.

The first such comic book litigation involved Superman, an alien from the planet Krypton who came to Earth possessing tremendous powers, including the ability to fly (and for some reason wore his underwear on the outside of his pants). He first appeared in Action Comics, published by Detective Comics, in June 1938, and became immensely popular. Bruns Publications, a competitor, was quick to try and capitalize on Superman’s success and published its own comic superhero, a character called Wonderman, created by noted cartoon artist Will Eisner. Suit for infringement of a copyright was immediately brought in federal court. The court found that infringement had indeed occurred, the only real difference between the two being that Superman’s “skintight acrobatic costume” was blue, while the other’s was red. Their super abilities were the same, as was their stated intent to battle against “evil and injustice,” (Detective Comics. v. Bruns Publication, 111 F. 2d 432 (2d Cir. 1940)). Legally vanquished, Wonderman disappeared, the world of evil apparently no worse off.

Fawcett Publications, in the meantime, had come up with Master Man in 1940. This character, too, was the equal of Superman in strength, speed, and crime-fighting ability. But Superman once more prevailed when Fawcett was threatened with a lawsuit. The mighty Master Man gave up without a fight after six issues (Alex Grand, How DC Sued Their Competition to Keep Superman as the #1 Superhero, Comic Book Historians, https://comicbookhistorians.com/how-dc-kept-superman-super-litigation-attorneys/).

A key challenge to Superman’s reign as “numero uno” superhero was in the form of another-red suited character introduced by Fawcett in 1939 and dubbed Captain Marvel. Under the storyline, Captain Marvel came into existence as a superhero mirroring Superman’s abilities when newsboy Billy Batson uttered the term “Shazam,” the letters being an acronym for various ancient gods. In addition to success in comic books, even surpassing Superman’s popularity, Fawcett’s character was also featured in the 1941 serial motion picture, Adventures of Captain Marvel, starring Tom Tyler. Often exclaiming “Holy Moley” when confronted with a dilemma, Captain Marvel’s archenemy was mad scientist Doctor Sivana, who assailed “the world’s mightiest mortal” as the “big red cheese.”

National Comics Publications (the result of a merger between National Allied Publications and Detective Comics, which published Superman,) again ordered its lawyers into the breach to add to the litter of would-be super pretenders. Superman was again found to be protected by copyright. The federal district court compared the characters’ super powers, costumes, and storylines, determining that Captain Marvel was a duplication of the blue-suited character and that Fawcett had plagiarized plots (National Comics Publications v. Fawcett Publications, 93 F.Supp. 349 (S.D.N.Y. 1950)). The U.S. 2nd Circuit Court of Appeals affirmed the lower court’s findings as to infringement, but reversed and remanded on other issues related to the status of the copyright themselves (National Comics Publications v. Fawcett Publications, 191 F.2d 594 (2d Cir. 1951)). The Captain Marvel character was shunted off into temporary oblivion, but years later resurfaced as “Shazam,” and a feature film involving him is currently scheduled for 2019.

Superman, however, finally met his nemesis in the form of a competing television character. The “man of steel” had gone on to tremendous success in comics, television, and movies, ever alert to pretenders, although the “golden age” of comics had become a distant memory. In 1981, ABC began promotion of a new program, The Greatest American Hero, starring William Katt as Ralph Hinkley, a high school teacher who receives a magical costume from aliens that invests him with super powers comparable to those of Superman. However, he loses the instruction book for the suit and experiences repeated catastrophic accidents in trying to control his powers, such as crash landings, flailing while flying, etc. After a lawsuit was filed and the two characters were compared, a federal district judge concluded that the television character constituted a parody of Superman and was thus protected under the “fair use” doctrine (Warner Bros. v. American Broadcasting Cos., 523 F.Supp 611 (S.D.N.Y. 1981)). On appeal, also based on a review of physical similarities and the totality of attributes and traits, the lower court finding was upheld (Warner Bros., Inc., v. American Broadcasting Cos., Inc., 654 F.2d 204 (2d Cir. 1981)). During the first season of the program, the name “Hinkley” was changed to “Hanley” because of the attempted assassination of President Ronald Reagan by John Hinckley Jr.)).

Given this ruling, it explains why no lawsuit followed the publishing by Entertaining Comics, or EC Comics, in Mad comics of its spoof, “Superduperman,” although DC Comics (the name officially adopted by National Comics Publications in 1977) initially threated a legal challenge without following up (Grand, How DC Sued). EC Comics went after other superheroes with “Captain Marbles” and “Bat Boy and Rubin.” EC’s attitude? “What, me worry?” Superman was beginning to lose his battle for copyright primacy. In the comics, parody prevailed with Li’l Abner’s “ideel,” bumbling detective Fearless Fosdick, as drawn by Al Capp, as a ruthless takeoff on Chester Gould’s Dick Tracy.

Although the “golden age” of comics ran out of steam in the 1950s, DC continued its attempts to protect Superman’s posture as the world’s mightiest hero. It was able to force some minor would-be superheroes from the field by threat of lawsuit, but, ultimately, an onslaught of such characters, as witnessed by the plethora of films currently depicting such characters, has seen that primacy diminish and copyright protection yielded for all practical purposes.

However, superheroes were not the only fictional characters in those early years making an effort to protect their legal status. In 1933, a Detroit radio station began broadcasting the exploits of a masked man and his faithful American Indian companion fighting evil in the Old West, a program quickly picked up for national airing. The Lone Ranger proved immediately successful, as witnessed by the millions of kids joining the masked man’s “safety club.” In 1938, on the heels of that success, a movie serial, The Lone Ranger, was released, featuring seven men, each of whom was potentially the Lone Ranger. Only in the final chapter was it revealed that the Lone Ranger was the seventh candidate, a character named Allen King as portrayed by actor Lee Powell

Powell then began appearing with a small circus. Billed as the “original Lone Ranger,” he wore a mask and rode a white horse, crying out “Hi-yo, Silver!” Suit was quickly brought, but a federal district court denied relief. On appeal, a circuit court found that, in the absence of copyright evidence, the actor had nevertheless engaged in a form of unfair competition, and reversed the lower court (Lone Ranger v. Cox, 124 F.2d 650 (4th Cir. 1942)). Of course, the Lone Ranger and Tonto went on to ride off into those thrilling days of yesteryear, as personified by Clayton Moore and Jay Silverheels.

Other characters underwent copyright examination. One court upheld a movie studio in a lawsuit by the Edgar Rice Burroughs family, which claimed that films about the jungle “ape man” Tarzan, had infringed on the copyright of the original books. The court found that there were sufficient differences between the original books, which traced from 1912, and the many successive Tarzan movies beginning in 1918 with Elmo Lincoln starring, and that the studio was a grantee of title to the character (Burroughs v. Metro-Goldwyn-Mayer, 683 F.2d 610 (2d Cir. 1982)). Had the plaintiffs prevailed, would comedian Carol Burnett have been estopped from giving her famous Tarzan yell?

The cowled superhero, Batman, was also not totally spared copyright challenge. The term “Batcave” was found to be protected, (DC Comics v. Reel Fantasy, 696 F.2d 24 (2d Cir. 1982)), as was “Batmobile” (DC Comics v. Towle, 802 F.2d 1012 (9th Cir. 2015)).

Thus the battles raged while kids unknowingly followed their heroes’ exploits. A thin dime doesn’t buy much anymore, and comics as I recall them have turned into serious, even morbid “graphic novels.” The heroes of my childhood, with their straightforward personalities and values, have morphed into complex entities with depressing angst. The Western stars of movie and comic fame in my childhood—Gene Autry, Roy Rogers, William Boyd, and Monte Hale—have gone to their eternal reward. It was indeed a simpler time, now sadly long forgotten. These deep-carpet copyright lawyers just couldn’t prevail over the long haul and preserve that era. Dang.

Richard J. “Rick” Miller is a retired attorney. He served 20 years as Bell County attorney and is the author of seven non-fiction books on Texas outlaws and lawmen, as well as a legal manual on Texas fire and police civil service.

Holy Moley: Musings on “Super” Litigation

Tue, 10/02/2018 - 15:00

It was a simpler time. When I was a kid in the 1940s and ’50s, growing up in the Oak Cliff section of Dallas, the best part of the week was Saturday. With my 25-cent allowance closely clutched, I stood in a rowdy line at the old Beckley Theater to see the latest B-Western or Tarzan movie. Afterwards, I beat a hasty retreat to a nearby pharmacy to peruse the latest 10-cent comic books, finally selecting and purchasing one. My choice almost always featured a hero-type character with strong principles and a dedication to crime fighting and the “American way” in their make-believe world. Little did I know that deep-carpet copyright lawyers in faraway cities were then in a continuing and desperate battle for my one thin dime, fighting to maintain the legal existence of the fictional characters whose virtue I admired and adventures I so fervently followed.

The first such comic book litigation involved Superman, an alien from the planet Krypton who came to Earth possessing tremendous powers, including the ability to fly (and for some reason wore his underwear on the outside of his pants). He first appeared in Action Comics, published by Detective Comics, in June 1938, and became immensely popular. Bruns Publications, a competitor, was quick to try and capitalize on Superman’s success and published its own comic superhero, a character called Wonderman, created by noted cartoon artist Will Eisner. Suit for infringement of a copyright was immediately brought in federal court. The court found that infringement had indeed occurred, the only real difference between the two being that Superman’s “skintight acrobatic costume” was blue, while the other’s was red. Their super abilities were the same, as was their stated intent to battle against “evil and injustice,” (Detective Comics. v. Bruns Publication, 111 F. 2d 432 (2d Cir. 1940)). Legally vanquished, Wonderman disappeared, the world of evil apparently no worse off.

Fawcett Publications, in the meantime, had come up with Master Man in 1940. This character, too, was the equal of Superman in strength, speed, and crime-fighting ability. But Superman once more prevailed when Fawcett was threatened with a lawsuit. The mighty Master Man gave up without a fight after six issues (Alex Grand, How DC Sued Their Competition to Keep Superman as the #1 Superhero, Comic Book Historians, https://comicbookhistorians.com/how-dc-kept-superman-super-litigation-attorneys/).

A key challenge to Superman’s reign as “numero uno” superhero was in the form of another-red suited character introduced by Fawcett in 1939 and dubbed Captain Marvel. Under the storyline, Captain Marvel came into existence as a superhero mirroring Superman’s abilities when newsboy Billy Batson uttered the term “Shazam,” the letters being an acronym for various ancient gods. In addition to success in comic books, even surpassing Superman’s popularity, Fawcett’s character was also featured in the 1941 serial motion picture, Adventures of Captain Marvel, starring Tom Tyler. Often exclaiming “Holy Moley” when confronted with a dilemma, Captain Marvel’s archenemy was mad scientist Doctor Sivana, who assailed “the world’s mightiest mortal” as the “big red cheese.”

National Comics Publications (the result of a merger between National Allied Publications and Detective Comics, which published Superman,) again ordered its lawyers into the breach to add to the litter of would-be super pretenders. Superman was again found to be protected by copyright. The federal district court compared the characters’ super powers, costumes, and storylines, determining that Captain Marvel was a duplication of the blue-suited character and that Fawcett had plagiarized plots (National Comics Publications v. Fawcett Publications, 93 F.Supp. 349 (S.D.N.Y. 1950)). The U.S. 2nd Circuit Court of Appeals affirmed the lower court’s findings as to infringement, but reversed and remanded on other issues related to the status of the copyright themselves (National Comics Publications v. Fawcett Publications, 191 F.2d 594 (2d Cir. 1951)). The Captain Marvel character was shunted off into temporary oblivion, but years later resurfaced as “Shazam,” and a feature film involving him is currently scheduled for 2019.

Superman, however, finally met his nemesis in the form of a competing television character. The “man of steel” had gone on to tremendous success in comics, television, and movies, ever alert to pretenders, although the “golden age” of comics had become a distant memory. In 1981, ABC began promotion of a new program, The Greatest American Hero, starring William Katt as Ralph Hinkley, a high school teacher who receives a magical costume from aliens that invests him with super powers comparable to those of Superman. However, he loses the instruction book for the suit and experiences repeated catastrophic accidents in trying to control his powers, such as crash landings, flailing while flying, etc. After a lawsuit was filed and the two characters were compared, a federal district judge concluded that the television character constituted a parody of Superman and was thus protected under the “fair use” doctrine (Warner Bros. v. American Broadcasting Cos., 523 F.Supp 611 (S.D.N.Y. 1981)). On appeal, also based on a review of physical similarities and the totality of attributes and traits, the lower court finding was upheld (Warner Bros., Inc., v. American Broadcasting Cos., Inc., 654 F.2d 204 (2d Cir. 1981)). During the first season of the program, the name “Hinkley” was changed to “Hanley” because of the attempted assassination of President Ronald Reagan by John Hinckley Jr.)).

Given this ruling, it explains why no lawsuit followed the publishing by Entertaining Comics, or EC Comics, in Mad comics of its spoof, “Superduperman,” although DC Comics (the name officially adopted by National Comics Publications in 1977) initially threated a legal challenge without following up (Grand, How DC Sued). EC Comics went after other superheroes with “Captain Marbles” and “Bat Boy and Rubin.” EC’s attitude? “What, me worry?” Superman was beginning to lose his battle for copyright primacy. In the comics, parody prevailed with Li’l Abner’s “ideel,” bumbling detective Fearless Fosdick, as drawn by Al Capp, as a ruthless takeoff on Chester Gould’s Dick Tracy.

Although the “golden age” of comics ran out of steam in the 1950s, DC continued its attempts to protect Superman’s posture as the world’s mightiest hero. It was able to force some minor would-be superheroes from the field by threat of lawsuit, but, ultimately, an onslaught of such characters, as witnessed by the plethora of films currently depicting such characters, has seen that primacy diminish and copyright protection yielded for all practical purposes.

However, superheroes were not the only fictional characters in those early years making an effort to protect their legal status. In 1933, a Detroit radio station began broadcasting the exploits of a masked man and his faithful American Indian companion fighting evil in the Old West, a program quickly picked up for national airing. The Lone Ranger proved immediately successful, as witnessed by the millions of kids joining the masked man’s “safety club.” In 1938, on the heels of that success, a movie serial, The Lone Ranger, was released, featuring seven men, each of whom was potentially the Lone Ranger. Only in the final chapter was it revealed that the Lone Ranger was the seventh candidate, a character named Allen King as portrayed by actor Lee Powell

Powell then began appearing with a small circus. Billed as the “original Lone Ranger,” he wore a mask and rode a white horse, crying out “Hi-yo, Silver!” Suit was quickly brought, but a federal district court denied relief. On appeal, a circuit court found that, in the absence of copyright evidence, the actor had nevertheless engaged in a form of unfair competition, and reversed the lower court (Lone Ranger v. Cox, 124 F.2d 650 (4th Cir. 1942)). Of course, the Lone Ranger and Tonto went on to ride off into those thrilling days of yesteryear, as personified by Clayton Moore and Jay Silverheels.

Other characters underwent copyright examination. One court upheld a movie studio in a lawsuit by the Edgar Rice Burroughs family, which claimed that films about the jungle “ape man” Tarzan, had infringed on the copyright of the original books. The court found that there were sufficient differences between the original books, which traced from 1912, and the many successive Tarzan movies beginning in 1918 with Elmo Lincoln starring, and that the studio was a grantee of title to the character (Burroughs v. Metro-Goldwyn-Mayer, 683 F.2d 610 (2d Cir. 1982)). Had the plaintiffs prevailed, would comedian Carol Burnett have been estopped from giving her famous Tarzan yell?

The cowled superhero, Batman, was also not totally spared copyright challenge. The term “Batcave” was found to be protected, (DC Comics v. Reel Fantasy, 696 F.2d 24 (2d Cir. 1982)), as was “Batmobile” (DC Comics v. Towle, 802 F.2d 1012 (9th Cir. 2015)).

Thus the battles raged while kids unknowingly followed their heroes’ exploits. A thin dime doesn’t buy much anymore, and comics as I recall them have turned into serious, even morbid “graphic novels.” The heroes of my childhood, with their straightforward personalities and values, have morphed into complex entities with depressing angst. The Western stars of movie and comic fame in my childhood—Gene Autry, Roy Rogers, William Boyd, and Monte Hale—have gone to their eternal reward. It was indeed a simpler time, now sadly long forgotten. These deep-carpet copyright lawyers just couldn’t prevail over the long haul and preserve that era. Dang.

Richard J. “Rick” Miller is a retired attorney. He served 20 years as Bell County attorney and is the author of seven non-fiction books on Texas outlaws and lawmen, as well as a legal manual on Texas fire and police civil service.

Texas Bar Journal Must-Reads for October

Mon, 10/01/2018 - 16:30

Limited time to read the October issue of the Texas Bar Journal? Our editorial staff’s picks have you covered. Check out our must-reads for in-depth articles exploring cybersecurity, data privacy issues, and more. And don’t forget to catch up on the latest Movers and Shakers, Memorials, and Disciplinary Actions.

Leadership Role
New laws are putting Texas at the forefront in addressing cybersecurity as a matter of public policy.
By Elizabeth Rogers

Privileges
Understanding applicability in cybersecurity cases.
By Shawn E. Tuma and Jeremy D. Rucker

Tech Savvy
Improve your cybersecurity without a Ph.D.
By Claude Ducloux

LeadershipSBOT Celebrates 10 Years
Classes develop skills to move diverse lawyers into leadership roles.
By Eric Quitugua

Texas Bar Journal Must-Reads for October

Mon, 10/01/2018 - 16:30

Limited time to read the October issue of the Texas Bar Journal? Our editorial staff’s picks have you covered. Check out our must-reads for in-depth articles exploring cybersecurity, data privacy issues, and more. And don’t forget to catch up on the latest Movers and Shakers, Memorials, and Disciplinary Actions.

Leadership Role
New laws are putting Texas at the forefront in addressing cybersecurity as a matter of public policy.
By Elizabeth Rogers

Privileges
Understanding applicability in cybersecurity cases.
By Shawn E. Tuma and Jeremy D. Rucker

Tech Savvy
Improve your cybersecurity without a Ph.D.
By Claude Ducloux

LeadershipSBOT Celebrates 10 Years
Classes develop skills to move diverse lawyers into leadership roles.
By Eric Quitugua

In Memoriam

Mon, 10/01/2018 - 16:30

The State Bar of Texas’ Membership Department was informed in September of the deaths of these members. We join the officers and directors of the State Bar in expressing our deepest sympathy.

Ralph Balasco, 99, of Houston, died June 23, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1947.
Justin Cunningham, 39, of Odessa, died September 10, 2018. He received his law degree from Texas Wesleyan University School of Law and was admitted to the Texas Bar in 2006.
Frederick Dalley, 69, of Houston, died August 15, 2018. He received his law degree from Widener University Delaware Law School and was admitted to the Texas Bar in 1986.
Robert Dawson, 81, of Midland, died August 24, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1962.
Hobert Douglas Jr., 71, of Fort Worth, died August 20, 2018. He received his law degree from Texas Southern University Thurgood Marshall School of Law and was admitted to the Texas Bar in 1985.
Lawrence Durnford, 65, of El Paso, died March 7, 2018. He received his law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 1980.
Charlotte A. Harris, 67, of Lubbock, died August 23, 2018. She received her law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1978.
Sam Z. Haviland, 59, of Seattle, died May 29, 2018. He received his law degree from Northwestern School of Law and was admitted to the Texas Bar in 1987.
Joan Hayes, 75, of Richardson, died August 25, 2016. She received her law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1998.
Walter L. Jefferson, 85, of Houston, died September 1, 2018. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1964.
Stephanie Kan, 29, of San Gabriel, California, died April 1, 2018. She received her law degree from the University of Houston Law Center and was admitted to the Texas Bar in 2016.
Rebecca R. Kieschnick, 72, of Sinton, died August 22, 2018. She received her law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1981.
George P. Kirkpatrick Jr., 83, of Silsbee, died December 20, 2017. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1961.
Margaret Ann Lake, 73, of Dallas, died September 5, 2018. She received her law degree from Nova Law and was admitted to the Texas Bar in 1993.
David Wayne Lamb, 57, of Clemson, South Carolina, died March 10, 2018. He received his law degree from the University of Tennessee College of Law and was admitted to the Texas Bar in 1986.
Andrew Lasky, 37, of Houston, died August 25, 2018. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 2009.
Henry Lewis, 54, of Addison, died August 23, 2018. He received his law degree from Texas Wesleyan University School of Law and was admitted to the Texas Bar in 2002.
John Stuart Lilly, 62, of Austin, died September 7, 2018. He received his law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1990.
Warren Case Lyon, 85, of Dallas, died July 27, 2018. He received his law degree from the University of Missouri School of Law and was admitted to the Texas Bar in 1961.
Larry Wayne McEachern, 65, of Plainview, died June 30, 2018. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1977.
Harold Dixon Montague, 66, of Houston, died August 19, 2018. He received his law degree from the University of Mississippi School of Law and was admitted to the Texas Bar in 1978.
John Onion Jr., 93, of Austin, died September 2, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1950.
Lee Roger Ratliff, 76, of Silsbee, died April 15, 2016. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1964.
John L. Roach, 90, of Dallas, died September 12, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1951.
Karla J. Rogers, 64, of Vidor, died September 8, 2018. She received her law degree from South Texas College of Law and was admitted to the Texas Bar in 1991.
Jack M. Sanders Jr., 65, of Woodlawn, died August 22, 2018. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1980.
Beverly B. Skelton, 91, of Dallas, died August 9, 2018. She received her law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1971.
Wayne S. Smith, 72, of Magnolia, died September 5, 2017. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1971.
William M. Thacker Jr., 94, of Wichita Falls, died September 25, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1949.
Alda Trevino, 43, of Robstown, died March 25, 2018. She received her law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 2003.
Carolyn E. Walker, 67, of San Antonio, died August 10, 2018. She received her law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1981.
Ray Weed, 84, of San Antonio, died August 31, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1964.
Forrest Dean White, 71, of Canton, died August 27, 2018. He received his law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1973.
Donald L. Young, 79, of Pearland, died August 6, 2018. He received his law degree from Texas Southern University Thurgood Marshall School of Law and was admitted to the Texas Bar in 1989.

If you wish to have a memorial published for a loved one, please visit www.texasbar.com/memorials. If you have any question, please don’t hesitate to contact the Texas Bar Journal at (512) 427-1701 or toll-free at (800) 204-2222, ext. 1701.

Free legal clinic for veterans in Galveston

Mon, 10/01/2018 - 08:00

The Galveston County Bar Association and the Houston Bar Foundation’s Veterans Legal Initiative are sponsoring a free legal clinic for veterans on Saturday, October 6, from 9 a.m. to noon.

Veterans and spouses of deceased attorneys can receive one-on-one advice and counsel from volunteer attorneys in family law, wills and probate, consumer law, real estate and tax law, and disability and veterans benefits.

Pro bono attorneys from the Houston Volunteer Lawyers may be assigned to veterans in need of ongoing legal representation and who qualify for legal aid.

No appointment is necessary.

The clinic will be held at the Galveston VA Outpatient Clinic, 3828 Avenue N., Galveston 77550.

For more information, go to hba.org or call (713) 759-1133.

To view a list of other free veteran legal clinics around the state, please go to the State Bar’s Texas Lawyers for Texas Veterans website at texasbar.com/veterans.

Free legal clinic for veterans in Galveston

Mon, 10/01/2018 - 08:00

The Galveston County Bar Association and the Houston Bar Foundation’s Veterans Legal Initiative are sponsoring a free legal clinic for veterans on Saturday, October 6, from 9 a.m. to noon.

Veterans and spouses of deceased attorneys can receive one-on-one advice and counsel from volunteer attorneys in family law, wills and probate, consumer law, real estate and tax law, and disability and veterans benefits.

Pro bono attorneys from the Houston Volunteer Lawyers may be assigned to veterans in need of ongoing legal representation and who qualify for legal aid.

No appointment is necessary.

The clinic will be held at the Galveston VA Outpatient Clinic, 3828 Avenue N., Galveston 77550.

For more information, go to hba.org or call (713) 759-1133.

To view a list of other free veteran legal clinics around the state, please go to the State Bar’s Texas Lawyers for Texas Veterans website at texasbar.com/veterans.

Free legal clinic for veterans in Galveston

Mon, 10/01/2018 - 08:00

The Galveston County Bar Association and the Houston Bar Foundation’s Veterans Legal Initiative are sponsoring a free legal clinic for veterans on Saturday, October 6, from 9 a.m. to noon.

Veterans and spouses of deceased attorneys can receive one-on-one advice and counsel from volunteer attorneys in family law, wills and probate, consumer law, real estate and tax law, and disability and veterans benefits.

Pro bono attorneys from the Houston Volunteer Lawyers may be assigned to veterans in need of ongoing legal representation and who qualify for legal aid.

No appointment is necessary.

The clinic will be held at the Galveston VA Outpatient Clinic, 3828 Avenue N., Galveston 77550.

For more information, go to hba.org or call (713) 759-1133.

To view a list of other free veteran legal clinics around the state, please go to the State Bar’s Texas Lawyers for Texas Veterans website at texasbar.com/veterans.

Longley: Committee review planned, president-elect nominees approved

Fri, 09/28/2018 - 14:39

Joe K. Longley

Editor’s note: State Bar of Texas President Joe K. Longley sent the following message to members on Friday.

Dear Member,

The State Bar of Texas Board of Directors and its Executive Committee held meetings today in Austin. I’m writing to update you on some of the major developments from the meetings.

Committee Review Subcommittee Formed
Much of the State Bar’s work is done by volunteers on 30 standing committees, and there is a safeguard in place to make sure those committees remain effective. At least every other year, the Executive Committee is required by statute to review the existing standing and special committees of the State Bar. The last review was done in April 2017.

This year, I will chair the seven-member Committee Review Subcommittee of the Executive Committee. Over the next three months, the subcommittee will assess whether there is a continued need for each committee, whether the committees are fulfilling their purposes, and whether any of their activities overlap.

This oversight process has led to a streamlining of the committee process and structure over the years. For example, as a result of the last review, one committee was eliminated as duplicative and five others updated their purpose clauses to more closely align with the purposes of the State Bar. During prior committee reviews, term limits were implemented to rotate committee membership and give more members an opportunity to serve.

President-elect Nominees Approved
The Board approved the nomination of Jeanne “Cezy” Collins of El Paso and Larry P. McDougal Sr. of Richmond as candidates for 2019-2020 State Bar president-elect, accepting the recommendation of the Nominations and Elections Subcommittee. The candidates will appear on the ballot in April 2019 along with any certified petition candidates. Click on the names below to read the candidates’ interest letters to the Nominations and Elections Subcommittee.

Potential petition candidates have until March 1 to submit their nominating petitions to the State Bar for certification. For information on how to run for president-elect, go here.

Courthouse Access Badge Task Force Created
The Board approved President-elect Randy Sorrels’ request for a Courthouse Access Badge Task Force. The task force will study the development and implementation of a statewide courthouse security access badge that would give lawyers expedited access to Texas courthouses. State Bar Director Christy Amuny of Beaumont and Granbury attorney Cindy V. Tisdale are co-chairs of the 17-member task force. View the full roster here.

2019-2020 Budget Update
The board’s Budget Committee met Thursday to discuss the budget process and the timeline for preparing the 2019-2020 budget. The committee is scheduled to meet next on December 13 to finalize a proposed budget for presentation to the Executive Committee and to the board at their respective January meetings.

Chief Disciplinary Counsel Retiring
Linda Acevedo is retiring in January 2019 after nearly 10 years as chief disciplinary counsel and 33 years with the State Bar, and we thanked her for her many years of service. She previously served in the Office of the Chief Disciplinary Counsel as first assistant, appellate counsel, trial counsel, corporate counsel, counsel to the local grievance committee, and liaison to the Supreme Court of Texas Professional Ethics Committee and Unauthorized Practice of Law Committee. The job opening was posted today on the State Bar website. If you are interested in applying, go here.

Board Resolution Presented
Austin attorney Shannon H. Ratliff, a shareholder in Davis, Gerald and Cremer, has been honored for his lifetime of dedicated service to the legal profession and to this country.

Mr. Ratliff has been a trial and appellate lawyer for more than 50 years and is a leading authority on oil and gas legal matters. He clerked for U.S. Supreme Court Justice Tom C. Clark and served as an assistant to Lyndon Baines Johnson in his roles as U.S. Senate majority leader, vice president, and president. Dr. Kyle Longley, director of the LBJ Presidential Library, attended the board meeting to help us honor this longtime LBJ advisor.

If you have any questions about the board meeting, please let me know. For more information on the board or to read meeting agendas and materials, go to texasbar.com/board.

With kindest regards,

Joe K. Longley 
President, State Bar of Texas 2018-2019
Joe.Longley@texasbar.com

Guest blog: Absent respondeat superior, a negligent entrustment action should not impose vicarious liability on the entrustor

Fri, 09/28/2018 - 13:00

In F.F.P. Operating Partners v. Duenez, 237 S.W.3d 680, 686 (Tex. 2007), the Texas Supreme Court stated that negligent entrustment is a form of vicarious liability. The basis for imposing liability on the owner of the object entrusted to another is that ownership of the object gives the right of control over its use (Id.). But perhaps the court applied this concept too broadly. Perhaps ownership of the object and control of the person using the object are two different concepts. Most Texas cases do not address this distinction because they have construed negligent entrustment in the context of the employer-employee relationship where vicarious liability is otherwise present through respondeat superior [See TXI Transp. Co. v. Hughes, 306 S.W.3d 230 (Tex. 2010); Schneider v. Esperanza Transmission Co.744 S.W.2d 595 (Tex. 1987); but see, Dao v. Garcia, 486 S.W.3d 618, 629 (Tex. App.—Dallas 2016, pet. denied)(friend liable for driver’s negligent driving where the driver had taken the friend’s keys without her knowledge); Williams v. Steves Industries, 699 S.W.2d 570, 571 (Tex. 1985); Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007); and McGuire v. Wright,140 F.3d 1038, 1998 WL 156342 at *2 (5th Cir. 1998) (unpublished)].

To establish negligent entrustment, a plaintiff has the burden to prove (1) entrustment of a vehicle by an owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) that the driver was negligent on the occasion in question; and (5) that the driver’s negligence proximately caused the accident (Schneider, 744 S.W.2d at 596).

The doctrine of vicarious liability, or respondeat superior, makes the principal liable for the agent’s actions because the principal has the right to control the agent’s actions undertaken to further the principal’s objectives [Wingfoot Enterprises v. Alvarado,111 S.W.3d 134, 136 (Tex. 2003)]. A negligent entrustment cause of action, as a form of vicarious liability, functions seamlessly in an employer/employee context where the employer has the right of control over the employee and the employee, in operating a vehicle, is furthering the interests of the employer.

In cases where respondeat superior is not present, the policy reasons for imputing the negligence of the driver to the entrustor are not as convincing. For example, in a social context where a vehicle owner allows a buddy to drive his or her car, no respondeat superior is present. In the case of rental car companies, no respondeat superior is present (Rental car companies are protected from claims of negligent entrustment under 49 U.S.C. §30106, The Graves Amendment). Similarly, respondeat superior is not present when a parent permits a teenager to drive the family car, a customer permits a valet to drive his or her car, a car repair company loans a car to a customer, or a person borrows a vehicle from a coworker in order to drive to and from work. In such non-employment scenarios, the driver operates the borrowed vehicle for his or her own benefit, and not for an employer who has control over his or her livelihood and the driving choices that he or she makes. The entrustor is liable for his or her percentage of fault in entrusting the vehicle (In a non-employment scenario, an entrustor has no duty to investigate the driving record of a prospective driver as long as the driver maintains a valid driver’s license. [Avalos v. Brown Auto. Ctr., 63 S.W.3d 42, 48-49 (Tex. App.—San Antonio 2001, no pet.)], but should the entrustor be responsible for the percentage of fault attributed to the negligent driver?  The justification supporting the imposition of vicarious liability on the entrustor is not present when the driver has no obvious connection to furthering the commercial interests of the entrustor. In one illustrative example, the court in Daofound that the driver had implied consent to drive his friend’s car, even though he took the car without her knowledge while she was sleeping. The court applied vicarious liability, and imposed joint and several liability on the driver and his friend, now the entrustor, for a fatality resulting from an accident caused by the driver.

The imposition of vicarious liability on the entrustor requires that the entrustor defend the actions of the driver, no matter the negligent driving operations. Furthermore, since under vicarious liability, the negligent driver is not required to be joined as a party and may not be available as a witness, legitimate defenses may be lost. It is not clear whether the entrustor has a post-verdict indemnification claim against the driver as an employer has against an employee [See Aviation Office of America v. Alexander & Alexander of Texas, 751 S.W.2d 179, 180 (Tex. 1980) (common law indemnity permitted under pure vicarious liability, but not between joint tortfeasors)]. The entrustor without control over the driver and whose interests are not being carried out, should be liable solely for his or her own negligence and not for the acts and omissions of the negligent driver. In F.F.P. Operating Partners, the Texas Supreme Court construed the Dram Shop Act, Tex. Alco. Bev. Code § 2.02(b), a statute creating the dram shop’s legal duties, in conjunction with the Proportionate Responsibility Act, Tex. Civ. Prac. & Rem. Code § 33.003 to hold that dram shops are responsible only for the proportion of damages they cause or contribute to cause (F.F.P. Operating Partners,at 692-93). The court specifically noted that the dram shop is responsible for the acts of its employees, but not responsible for the acts of the driver and thus did not have an indemnity claim against the driver. An employer has a common law right of indemnity against an employee (See Aviation Office of America v. Alexander & Alexander of Texas eat 180). Pursuant to Chapter 33 of the Proportionate Responsibility Act requiring the submission of responsibility of “each claimant, defendant, settling person, and responsible third party” to the jury, the dram shop properly had a contribution claim against the driver. Absent a right of control over the driver, absent a right of indemnity against the driver, and armed with a contribution claim against the driver, the liability of the non-employer entrustor should be determined like the liability of the dram shop in F.F.P. Operating Partners, i.e., without vicarious liability.

Katherine Knight is a shareholder in Henry, Oddo, Austin & Fletcher in Dallas, www.hoaf.com.

State Bar board approves Collins, McDougal as candidates for president-elect

Fri, 09/28/2018 - 10:52

The State Bar of Texas Board of Directors voted unanimously September 28 to approve Jeanne Cezanne “Cezy” Collins of El Paso and Larry P. McDougal Sr. of Richmond as candidates for 2019-2020 president-elect.

Collins and McDougal will appear on the ballot in April 2019 along with any certified petition candidates. There are currently no additional president-elect candidates, although members have until March 1 to run as a petition candidate by submitting a petition signed by at least 5 percent of the State Bar membership.

Collins is general counsel for El Paso Independent School District and previously worked as a legal aid lawyer, an assistant county attorney, and a law firm partner.

She served on the State Bar Board of Directors from 2008 to 2011 and as chair of the Texas Bar Foundation Board of Trustees in 2015-2016, chair of the Supreme Court Task Force to Expand Legal Services Delivery from 2009 to 2011, and president of the National Conference of Women’s Bar Associations in 2011-2012. Collins is a Founding Life Fellow of the El Paso Bar Foundation for which she served as president from 2008 to 2011, and was a commissioner for the Texas Access to Justice Commission. She is currently a member of the Board of Disciplinary Appeals.

Collins was honored with the 2017 President’s Award from the George A. McAlmon Inn of Court, El Paso and the 2013 Shattering Barriers Award from the Mexican American Bar Association of El Paso, among other accolades.

She earned her J.D. from University of Arizona College of Law-Tucson in 1991.

McDougal is board certified in criminal law and the founder of a namesake law office where he practices with his son. McDougal has previously served as a police officer, firefighter, and an assistant district attorney.

He served on the State Bar Board of Directors from 2012 to 2015 and continues to serve on the State Bar Continuing Legal Education Committee. He is the District 5 Grievance Committee chair for the State Bar and District 5 nominating chair for the Texas Bar Foundation. McDougal also serves on the Texas Criminal Defense Lawyers Ethics Committee, Ethics Hotline, and Strike Force. He teaches legal ethics to lawyers around the state and is a member of several professional associations.

McDougal won the President’s Award from the Texas Criminal Defense Lawyers Association in 2009, TexasBarCLE Standing Ovation Award in 2014, and the Outstanding Third-Year Director Award from the State Bar of Texas in 2015, among other accolades.

He earned his J.D. from South Texas College of Law Houston in 1990.

Collins and McDougal were recommended to the board by the Nominations and Elections Subcommittee, which interviewed six potential nominees from non-metropolitan counties.

SBOT Board of Directors honors Austin attorney Shannon H. Ratliff

Fri, 09/28/2018 - 10:21

Austin Attorney Shannon H. Ratliff (center), receives a resolution honoring him from from Kyle Longley, director of the LBJ Presidential Library (left), and State Bar of Texas President Joe K. Longley (right).

The State Bar of Texas Board of Directors on Friday presented attorney Shannon H. Ratliff with a resolution honoring him for his service to the bar and the people of Texas and the United States and his overall commitment to the legal profession.

Ratliff is a shareholder in Davis, Gerald and Cremer in Austin. He has been a trial and appellate lawyer for more than 50 years.

Early in his career, Ratliff clerked for U.S. Supreme Court Justice Tom C. Clark and served as an assistant to Lyndon Baines Johnson in Johnson’s roles as U.S. Senate majority leader, vice president, and president.

Ratliff, a leading authority on oil and gas legal matters, has served as the lead trial lawyer in numerous complex lawsuits for Fortune 50, 100, and 500 companies in a variety of statewide and nationwide litigation.

He was appointed and served as a member of the University of Texas System Board of Regents from 1985 to 1991. He is a Life Fellow of the Texas Bar Foundation and the Austin Bar Foundation and is a Fellow of the American College of Trial Lawyers and American Board of Trial Advocates.

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