Thursday, September 22, 2016

Is this cute or what.

Debates seem kind of pointless these days.  People have already lined up behind their candidate no matter what candidates say it seems.
We understand PTSD when our young men and women in Iraq and Afghanistan are harmed by death all around them and the stress of being in a violent environment.  How come we don't understand that cops continuing to kill black men in their neighborhoods might affect many in the black community in the same way?  We have to find another way to deal with people who don't follow cops' lawful commands as fast as cops want them to.... besides killing them.

Long night ahead for me.  I like to write Trump a fan letter once a week to tell him how swell he is for promising to get rid of some parts of the Bill of Rights that doesnt suit him.




An oral history with a half-dozen attorneys who got their start back when a lawyer could cut his or (occasionally) her teeth on trials

Published in 2016 Texas Super Lawyers — October 2016

Everything might be bigger in Texas, but some lawyers remember when “mega-firms” were few and far between, and so were specific practice areas.  
It was also a time when loyalty to one law firm was the norm. “If you were at a big firm, you died there,” recalls Houston trial lawyer Steve Susman. We spoke with a half-dozen of Texas’ top attorneys on topics ranging from why jury trials are vanishing to what it’s like to argue before the Supreme Court.

For some, being a lawyer was a family affair. For others, everything they knew about the legal profession they learned from watching Perry Mason.
Jim Cowles (The University of Texas School of Law, 1961): My father wanted to be a lawyer, but World War I took him away from that dream. He worked in the courthouse as a troubleshooter for the county commissioners. I spent a lot of time in the courthouse visiting him, and he introduced me to the lawyers and judges. I was low-income, so I was going to have to earn my own way through school. I knew exactly what I wanted to do. It was just how to get there.

Harry Reasoner (The University of Texas School of Law, 1962): I majored in philosophy. That was an era when people said going to law school would be good for a variety of things. It turned out I loved law school. I really liked tax and antitrust; I also liked economics. I was a law clerk on the 2nd Circuit. [At Vinson & Elkins,] I was going to start in tax for six months and then do litigation for six months, but David Searles, who was then a head partner in the firm, said, “I’m going to trial. Why don’t you come with me, and you can try tax law later.” Never got around to trying tax law. It turned out I liked being in trial. [But] if you can’t handle losing, it’s a terrible way to make a living.

David Beck (The University of Texas School of Law, 1965): I was the first college graduate in my family. I majored in government and history and joined the pre-law club. I even watched Perry Mason growing up. [But] you begin to realize that reality’s a little bit different than television. I never could figure out how Perry Mason could beat Hamilton Burger, the district attorney, 152 straight times and somehow Burger kept getting re-elected. 

Stephen Susman (The University of Texas School of Law, 1965): My mother and father were both lawyers, so I never even thought about doing anything else. My father passed away when I was 8. In 1949, my mother had to go back to the practice of law. It was a very difficult time for a woman to practice law. She could not get with any of the large firms; even my father’s [former] firm would not have her. She had to make a living out of it, so she did a little of everything. I became a trial lawyer and I got the best clerkship, the best jobs with the biggest firms, and had opportunities that my mother never dreamed of having. 

Michael Bourland (Baylor Law School, 1969): I went to Baylor University on a football scholarship. The student athletes would show the young recruits around the school. Many of these young student athletes were interested in practicing law, so every year I was …  introducing them to the law professors and the law school. They emphasized that the law is the adhesive of a civilized society. As an athlete, passion is a big deal. It was always a big deal for me, because I was an undersized football player. I was 6 feet tall and 200 pounds as an offensive guard, a lineman. I was impressed with these people that I considered to be intellectual giants and their passion for what they were doing.

Frank Branson (Southern Methodist University Dedman School of Law, 1969): Public speaking seemed to be the thing that came easier to me than other things. I actually had never met an attorney. I grew up in a small town outside of Fort Worth. I had to go down and introduce myself to practicing attorneys to get a recommendation to go to law school at SMU. 

And then there were the lucky breaks—and ‘something a little more’ … 
Bourland: When I entered the Air Force, I entered at base level. You did wills, and you did anything and everything that you’d find in a basic smaller-town law practice, because you were not only the lawyer for the base and wing commander, you were the airmen’s lawyer, you were the officers’ lawyer, there was a lot of counseling. Of course, you had courts martial. 
There were 10 to 15 Air Force JAGs that were sent back [to Washington] every year, and most of the time they studied at George Washington University in D.C. I was turned down the first year. But because I am relentless and not to be dissuaded, I applied the next year and got it. Had I gotten the appointment the year before, there would have been no openings on the Judge Advocate General’s staff in Washington for my skill set. So in 1973 I went to Washington as the Air Force’s tax lawyer. As I was driving up I-95 to report for duty in June 1973, it was the first day John Dean gave his testimony to the Senate Watergate Committee.

Cowles: The only way I could get through school was to be in the Naval ROTC, which led me to active duty in the Navy for a period of time. I was a gunnery officer and an assistant legal officer. I came back from the Navy; my wife and I had settled down in Austin; I’m back in law school. I looked on the board at the law school, and there was this notice about this law firm in downtown Austin that was looking for a law clerk. That was the job that I had all the way through and for a year after I graduated. That was luck—I looked up at that board and there it was. Now, what you do with it may be something a little more than luck. You can do nothing with it, [be] average, or you can really work at it. That’s what I did.

Susman: In January of 1976, I joined a small maritime personal injury firm, Mandell & Wright. In 1977, just as a matter of dumb luck, the corrugated-box antitrust case got transferred to Houston and I got elected by the plaintiff’s lawyers to be chair of the plaintiff’s steering committee. That was the first major class-action case tried in the country. It was a price-fixing case. There was a big fight between the lawyers on the plaintiff’s side—those in Chicago and those in New York and Philadelphia. They chose me so that none of them would get the honor. And then, lucky thing, all this was happening at a time when the legal news industry was getting going. The American Lawyer and the National Law Journal were very interested in this guy, Steve Susman, who had the chutzpah to leave a large firm and go out and be a plaintiff’s lawyer. That was unheard of at the time.

Branson: I was very fortunate to have worked from 1970 to 1978 with John B. Wilson, who was an outstanding workers’ comp trial lawyer and my mentor. One of the best things that happened to my practice is my wife, Debbie Dudley Branson, joined the firm in the early 1980s. She went back and got a master’s degree in psychology, and since the mid-1980s, she’s done our jury consulting work as well as trying the cases.

Beck: My second year, second semester, it was pretty clear that I wasn’t going to have enough money to finish. I went to the then-dean, Page Keeton, and said, “Dean, I just wanted you to know that I probably am going to be leaving next week. …  I’ve run out of money.” He said, “How much money do you need to finish the semester?” I said, “$750.” He looked at me and said, “I’ll give you $650.” And I said, “$700.” He shook my hand, wrote me a check for $700, never made me sign anything. I claim that’s where I learned the art of negotiation. I was giving the commencement address at UT law school some years ago and Page Keeton was still alive; he was in a wheelchair and sitting in the front row, and I told that story. I said, “Thank you, Dean.” And he just grinned.

And the cases that have stayed with them….
Cowles: Back [in the 1970s], there was an individual who captured some deputy sheriffs, took them down in the Trinity River bottom, bound their hands behind them, made them kneel on the ground, and shot them behind the head. Word came that he was in a little house back of an apartment building. Police, the FBI, the sheriff—everybody got together an enormous force. They announced their presence in English and Spanish, and asked them to open the door; they had to break it down. One of the people inside had a pistol and shot at the police. They fired back with shotguns and took part of the shoulder off the individual who was shooting. [He] brought a lawsuit in federal court against the police chief, captain of police, the sheriff. The city asked me if I would defend at least the police chief and the captain of police. 
It turned out that the [suspect] wasn’t in the house; he was in the apartment building right in front. They did capture him. We tried it a week or so in federal court. It was on TV and in the paper every day. We won the case. The city of Dallas and the police department decided they would make me an honorary police officer, which I am to this day.

Susman: When I was starting out on my own, I ended up representing the state of Arkansas, hired by Bill Clinton when he was attorney general of Arkansas, which was suing the dairies because they were fixing the pricing of milk. That’s when I became good friends and worked very closely with Bill Clinton. At some point in there, I represented the speaker of the House, Jim Wright. It was a short representation but nationwide visibility. 

Reasoner: I was very proud of the fact that our firm was willing to try Hopwood v. Texas, which we did pro bono. Giving minorities access to our best universities—I don’t think that happens without affirmative action. I was very proud that we played a role. We continue to support the University of Texas and others in their affirmative action struggles.

Beck: A lawyer out in West Texas asked me if I could help a man in Houston [who had been] an officer in the Vietnamese Rangers. He was trying to learn English and support his wife and children, and he was a manager of a 7-Eleven. He made the mistake of selling a six-pack of beer to a young man who came in and had a fake ID and looked older than 21. It wasn’t 10 minutes later, the Texas Alcoholic Beverage Commission came in and arrested him. So my friend in West Texas says, “Can you represent him? And they don’t have any money.” It was bad enough that he was arrested and taken to jail, but he was absolutely mortified and embarrassed about what happened in front of his family and friends. I’ll never forget walking out of that courtroom [after the case was dismissed], and his wife and children were there. They started bowing, and the woman wanted to kiss my hand, and I said, “No, no, this is the way our system works.” When I was nominated, two years later, to be a candidate for state Bar president, I get a call from my client’s wife. She said, “I want you to know that our daughter will come to your office two days a week after school to help you on your campaign. She’ll stuff envelopes, whatever you need, she will do it.” I said, “No, she doesn’t have to do anything.” And she said, “The family has decided this.” That’s one of the experiences you cherish. You don’t make any money, but the money’s not why most lawyers do this. 

So what is it that keeps them coming to work every day?
Bourland: If all that was involved was income tax rates, I would probably retire—just try to reinvent myself. [It’s] because of the people. In my law practice, we have a finite number of tools—great tools, but it’s a finite number. But you have an infinite number of people, attitudes, histories, baggage, goals, objectives for clients. 

Cowles: I love the law and I love the trial work—the competitiveness that you have with the opposing counsel and with the witnesses and everything else. Trying to outthink ’em and get the results you want is, for me, intriguing. I have enjoyed to no end my life as a lawyer. So I don’t care how you change the legal industry, you don’t change it for me.

Branson: My father was a football coach and I was a football player, and it was a thrill to me to take the football and run with it. Trying lawsuits is still something that excites me [like that]. And if I can make [people’s] lives better, it’s personally enjoyable. 

Reasoner: I’ve devoted a lot of time to the Texas Access to Justice Commission and I’ve found that to be very rewarding. Ironically, as our society’s grown more legally complicated, people need lawyers desperately, but it’s harder and harder for poor people—and for middle-class people—to afford lawyers. 

Susman: The great thing about my whole career is there have been different chapters. I had the big-firm chapter, seven years. And then for the next 30 years, I created [Susman Godfrey] with offices in Houston, Dallas, L.A. and Seattle. We had 75 to 80 lawyers. And then in 2006, when I turned 65, I called around and all my buddies in Houston were going to play golf. I didn’t want to do that. I said to my wife, I’d like to spend a little more time in New York, where we have three grandchildren. She agreed and we went to New York; and in October 2006, I opened a little office in the IBM building—1,000 square feet of space for me and a secretary on a six-month lease. I’ve now got 20 lawyers and we’re just moving into new office space there that will give us room to grow to 40 lawyers. And now, at age 75, I’m on the next 10-year plan. The whole goal is to try to save trials with the Civil Jury Project. It has energized the hell out of me. I’m going around the country, and I’m making progress. That’s my story. 




In Legal Malpractice Case, Dallas Appellate Lawyer Gives Client Shot at Exemplary Damages

, Texas Lawyer

Michael Jung
Michael Jung

Michael Jung's commercial real estate client got revenge against a Dallas law firm in a legal malpractice lawsuit, only to have its $4.6 million verdict wiped away by a trial court's take-nothing judgment.
But Jung recently convinced an appellate court to not only give his client a new legal malpractice trial, but also allow them to pursue gross negligence exemplary damages against their former lawyers for allegedly botching their defense in a fraud case.
The background to the Dallas Fifth Court of Appeals decision in Henry S. Miller Commercial Co. v. Newsom, Terry & Newsom is as follows.
Henry S. Miller Commercial Co. (HSM) and its former employee Steven Defterios were sued by a group of commercial property owners for fraud relating to several unsuccessful real estate deals. James Flaven, a prospective real estate buyer put forward by HSM and Defterios, held himself out as the beneficiary of a large trust fund when in fact, Flaven was a truck driver with no trust fund and the deals never closed.
The properties were sold at a loss and the prospective sellers sued HSM and Defterios, but not Flaven. Newsom, Terry & Newsom and Steven K. Terry represented HSM and Defterios in the fraud suit, which resulted in an $8.9 million jury verdict against HSM and Defterios.
HSM and Defterios, in turn, later sued their former lawyers in a Dallas state district court for numerous malpractice claims, including allegations that the attorneys were grossly negligent for failing to designate Flaven as a responsible third party in the case. Before the legal malpractice trial, Defterios nonsuited his claims against the lawyers and is no longer a party to the case.
The trial court also dismissed HSM's gross negligence claims after determining the defendant lawyers should not be subjected to exemplary damages in the case because they were dealt a "very, very bad set of facts."
A jury later returned a plaintiff's verdict in the malpractice case, assigning 50 percent of the negligence in the case to the lawyers and 10 percent to HSM—the remaining 40 percent was assigned to Defterios. The jury ultimately awarded $4.6 million to HSM—the amount of the judgment that would have been rendered but for the negligence of the lawyers.
The judge, however, issued a take-nothing judgment after applying a $6 million settlement credit to HSM after it sued its insurer for previously refusing to cover the malpractice award.
HSM and the lawyers both appealed the trial court's judgment to the Fifth Court.
HSM's chief argument on appeal was that the trial court had erred by dismissing a gross negligence claim against the lawyers for failing to designate Flaven as a responsible third party in the case.
And in a Sept. 14 decision, the Fifth Court agreed with HSM's arguments that the trial court erred when it dismissed the gross negligence claim and remanded the case to the trial court for a new trial.
The lawyers argued that if they attempted to find and designate Flaven as a responsible third party, they would have proved the plaintiff's underlying fraud case. But the Fifth Court disagreed with the lawyers' call.
"The underlying plaintiffs brought suit when Flaven did not purchase their properties as he had agreed to do so. There was ample evidence of the proposed transaction, its failure, and Flaven's identity as the defaulting buyer," wrote Justice David Bridges. "The lawyers could have relied on this evidence in arguing that Flaven was responsible for at least some of the damages for the failure to close the transactions even in the absence of any fraud by HSM or Defterios."



An image reporting that all living ex-presidents have warned Americans to not vote for Donald Trump is not quite accurate.


Cops caught pepper-spraying handcuffed 15-year-old girl after she was hit by a car (VIDEO)


The Hagerstown Police Department is under heavy fire after a video went viral of officers spraying pepper spray into the back of a police cruiser where a biracial teenage girl was handcuffed, according to Herald-Mail Media.
The 15-year-old girl was struck by a car on Sunday while riding her bike, after which she hit her head and passed out for half a minute. Ambulances were called, but the girl said she didn’t want to go to a hospital.
Police officers grabbed her off her bike as she tried to ride away and slammed her face into a nearby windowsill, eventually cuffing her hands.
Panicked, the girl resisted officers as they attempted to push her into the back of the cruiser. She can be heard in the video repeatedly requesting for the presence of a black officer named “Zach.”
“All we want to do is make sure she’s OK,” one officer tells a bystander, explaining that the girl might have lingering brain damage from the collision. Not even a minute later, an officer can be heard telling the girl to “put your feet in the car, OK, or you’re going to get sprayed.”
When the frightened girl does not immediately comply, the officers close the door and then spray out their canisters into a crack in the window. The girl can then be heard shrieking in pain, saying “I can’t breathe” multiple times.
Hagerstown Police Capt. Tom Langston only said on Wednesday that the department is still investigating. “We’re reviewing the body camera footage,” he said.
Police have since charged the girl with failure to obey a traffic device, possession of marijuana, two counts of second-degree assault, and disorderly conduct. The girl is reportedly on the honor roll at school and before this incident has never had a criminal record.
“The only treatment she got (from police) was slamming, abuse and Mace,” said the girl’s family attorney, Robin Ficker. According to Ficker, the pepper spray was not flushed out of her eyes for over three hours, and police requested that hospital staff refrain from taking pictures of her injuries during her stay.
The full video of the pepper spraying incident can be found here:
Nathan Wellman is a Los Angeles-based journalist, author, and playwright. Follow him on Twitter: @LightningWOW



A police officer on Wednesday outside First American Fried Chicken in Elizabeth, N.J., which is owned by Ahmad Khan Rahami's family. Mr. Rahami's travel history has come under scrutiny.
Flagged Two Times in 2014, Ahmad Rahami Passed Scrutiny


Mr. Rahami, accused of carrying out bombings in New York and New Jersey last weekend, had drawn federal attention after he traveled to Pakistan and his father reported concerns.


The State Rests




Beat him until he was a quadriplegic and he died shortly later. Court rules 2 minutes is enough time to comply with cops lawful order to exit vehicle, so you die. Next case. Nothing to see here. And be sure you stand during the anthem.

Sullivan v. City of Round Rock, Texas No. 15-51204

Before KING, SMITH, and COSTA, Circuit Judges.

REVERSED and REMANDED. (September 14, 2016).

Judge KING concurred in the judgment only.

Posted in Civil Rights, Constitutional Rights, Excessive Force, Fourth Amendment, Qualified Immunity

Three officers forcibly removed William Sullivan from his pickup truck after he refused to comply with their lawful commands to exit the vehicle. In the process, Sullivan, who was heavily intoxicated, morbidly obese, and handicapped, suffered a serious injury that rendered him a quadriplegic. A few months later, he died. In the ensuing civil lawsuit, the officers moved for summary judgment based on qualified immunity, which the District Court denied, finding that there were genuine disputes of material facts. The Fifth Circuit decides that the District Court erred because, even on plaintiffs' version of the tragic facts, the officers did not violate Sullivan's Constitutional rights. The Court reasons that the excessive-force claim under the Fourth Amendment cannot succeed because the force used by the officers was objectively reasonable in light of the circumstances confronting them. The Court determines that the approximately two minutes that the officers spent negotiating with Sullivan before resorting to force was not objectively unreasonable, especially in light of, inter alia, Sullivan's explicit and repeated refusal to comply with the officers' requests to exit his pickup truck, and the possibility that Sullivan might have had access to a weapon, or could have used his vehicle as a dangerous weapon.

On Appeal from the United States District Court for the Western District of Texas (Lee Yeakel)
Attorney for Appellant - Mike Thompson Jr., Austin, TX
Attorney for Appellee - Kurt Howard Kuhn, Austin, TX

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