Crazy Mow’s Manacures wanted to keep the soil wet around its landscaping plants this winter to keep them from freezing. However, when its automatic sprinkler system at the corner of Main and the Interstate Highway came on this morning at 4:00 a.m. the overspray showered the street just the other side of Crazy Mow’s fence. Plummeting temperatures created a large ice patch on Crazy Mow’s driveway and the adjacent street intersection. The police reported that Picabo Street, a downhill skier from Idaho, was hospitalized in critical condition after she hit the icy patch in front of Crazy Mow’s and careened into a tree. Following a minor crash at the same location last week Crazy Mow’s was verbally warned by police about turning off the sprinklers in freezing conditions. Although the sprinklers were not running when officers arrived they followed the icy trail caused by the runoff to Crazy Mow’s Manacures. This time Crazy Mow’s received a citation because city ordinance bars sprinklers from running once the temperature drops below 35 degrees. Is a city citation all that Crazy Mow’s needs to worry about?

No. In addition to the relatively minor city citation, Crazy Mow’s Manacures has a real risk of being sued by Picabo Street. Particularly after having been warned the week before, Crazy Mow’s was, most probably, negligent in failing to turn off its automatic sprinkler system. A person or company can be negligent if it fails to use the care that a reasonably prudent and careful person would under the same or similar circumstances. Crazy Mow’s knew of the possible problem, was warned, and failed to act. Unless Picabo did something to contribute to the accident and her injuries, Crazy Mow’s Manacures stands to share at least some responsibility for her injuries and the damage to her car. Of course, Crazy Mow’s may have unsuccessfully tried to turn off its automatic sprinklers as the City of Dallas did this month. Some cities require sprinkler systems to be equipped with freeze gauges that turn off the water in cold weather.

Tilting the Scales in Your Favor. 

Have your lawn irrigation service find out if there are city ordinances affecting sprinkler systems in freezing temperatures. Turn off your sprinkler when freezing conditions are expected, or at the very least, make sure that there is no overspray on city streets and sidewalks. Finally, check your comprehensive general liability policy insurance policy. You may well have insurance coverage for such claims.

After downing vodka gimlets at a friend’s Super Bowl bash, Al Coholic gets behind the wheel of his shiny bimmer and carefully winds his way up Central Expressway.  Al travels a few miles before he notices flashing red lights in his rear view mirror and realizes that a police officer is pulling him over.  Al pulls to the side of the road and Officer Miranda Wright approaches his car and asks for his driver’s license and insurance.  After running Al’s information through the computer, Officer Wright returns and asks if Al has been drinking.  Al responds that he has had a “couple.”  Officer Wright then requests Al to take a roadside breathalyzer test.  Al is not sure what to do.  He is not sure if he has had too much to drink.  He is not sure if the breathalyzer test is accurate.  And, he is not sure what will happen if he refuses to blow.  Al asks if he can speak with his attorney and he is told “no.”  What should Al do? 

In Texas, a person is driving while intoxicated (DWI) if they have a blood alcohol content of .08% or higher.  (The term drinking under the influence or DUI is typically reserved for minors.)  The legal definition of intoxication can also be met if alcohol causes the loss of the normal use of one’s mental or physical faculties.  In Al’s situation, he is probably better off refusing to blow.  Al does not have the right to an attorney in deciding whether to take a breath or blood test, but does have the right to refuse the test.  Roadside breathalyzers are notoriously unreliable and inaccurate in measuring alcohol concentration and can provide abnormally high results.  If Al takes the test and it comes back at .08% or higher, the prosecution of his case has been made much easier.  Refusing to blow, however, will have consequences for Al.  Not only will the judge or jury be made aware of the refusal, but Al’s license can be automatically suspended for 180 days.    Under Texas law, Al may contest the automatic suspension within 15 days of his arrest.  If a hearing is requested within this time frame, Al may keep his license until a judge orders that it be suspended.

Tilting the Scales in Your Favor

Although we are not criminal attorneys, we are often asked “what should I do if I get pulled over after having a few beers?”  Obviously the best advice is to not drink and drive.  If you are going to drink, do so responsibly.  If you do get pulled over after drinking, it is probably best to avoid the breathalyzer as well as the physical and mental gymnastics that the officer would have you attempt (e.g. reciting portions of the alphabet backwards or forwards, one-leg stand).  Many of these exercises would be challenging to complete without a drop of alcohol.  Punishment for DWI varies depending on the number of convictions.  If Al is convicted for his first offense, he can expect a fine of up to $2,000, jail time of 3 days to six months and a suspended license for 90 days to 1 year.

Pat McCann, a famous 26-year-old super model, was traveling to New York for a lingerie catalogue photo shoot. While standing in line at airport security, Pat overheard a TSA employee tell another passenger that their new full-body scanner was one of 400 recently deployed around the country. Affectionately dubbed a “virtual strip search,” the new scanners silhouette the passenger’s nude body. Because McCann refused to submit to the “virtual strip search” scanner, she was given the only alternative. TSA had an “enhanced” pat-down procedure (by someone who just claimed to be one of her biggest fans!) that includes a security worker touching the inside of her legs and along the cheek of the buttocks, as well as the breast and genital areas. McCann protested that their demands to touch her “junk” were searches that violate her Fourth Amendment Constitutional rights against searches without probable cause. Is she right?

Probably not. The Fourth Amendment protects Americans from unreasonable search and seizure by the government and provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The operative word is “reasonable.” With such a murky standard, passionate debate thrives. In a post 9-11 world, courts are forced to balance the personal privacy of the individual versus public safety of the crowd. Given that terrorists now hide bombs in or on their bodies undiscovered through less invasive means, the courts typically find that airports are “special needs” places where safety requirements override the “usual” constitutional guarantees, opining that the guarantee of individual rights cannot permit the constitution to become a “suicide pact.” Although one might argue that the TSA has super-constitutional authority to search without probable cause, the enhanced security measures are probably not so “unreasonable” as to create a Fourth Amendment problem. Moreover, while Americans may have a “Constitutional” right to privacy, there is no constitutional right to fly. McCann can still travel by means other than by air. However, when she buys her airplane ticket, she consents (some say “acquiesces” would be a better word) to these types of searches.

One final note … if you just can’t bear the thought of being ogled through TSA’s superman x-ray glasses, enterprising businesses have created underwear on which the Fourth Amendment or word “pervert” are emblazoned with metallic ink which your scanner operator will be able to easily read. See http://www.geek.com/articles/geek-cetera/protest-full-body-airport-scans-with-4th-amendment-underclothes-20101127.

Popeye Church, a budding chef, wanted to revive “country cooking,” with fried chicken as his signature dish. However after many tries, he failed to create a great recipe and became obsessed with cracking the code of the best-kept culinary secret in the fried chicken industry – the inimitable 11 herbs and spices of Pennsylvania Fried Chicken. Popeye tried bribing PFC employees for the receipt and even hired a chemist to unlock the secret ingredients. At wit’s end, Popeye went undercover as a janitor of PFC. Late one night he discovered the secret safe open and snatched a copy of the recipe. However, Popeye’s plans for “country cooking” stardom ran afoul when his investors would not fund his restaurant since his signature dish was stolen from a competitor. Frustrated, Popeye explained to a friend how he got the recipe. Eager to make some money, his friend offered to publish the recipe in his upcoming book, “Original Clone Recipes of America’s Favorite Foods.” Does PFC have a claim against Popeye or his friend who published the book?

“Trade Secrets.” In Texas and most states, if the owner of a “trade secret,” takes reasonable steps to preserve its secrecy, and a third party uses or discloses the trade secret (i) in violation of a confidential or contractual relationship with the owner, (ii) after acquiring it by improper means, or (iii) after acquiring it with notice that the disclosure was improper, then the owner can protect his “trade secret” by injunction and for damages suffered. Popeye, like any other ambitious cook, was free to hire a chemist and to experiment at will to duplicate the secret herbs and spices. When Popeye became an employee of PFC, his search for the recipe crossed the line. PFC has a legal claim against Popeye and his friend.

Wiki Leaks. The parallels between government “trade” secrets released by Julian Assange and his company WikiLeaks, with PFC’s trade secrets are many. In both, their protected information is confidential or “secret;” the “trade secret” owner took reasonable steps to preserve secrecy, and a third party disclosed the secrets. Popeye wanted “country cooking” fame and money; probable leaky source Pfc. Bradley Manning undoubtedly sought something other than money. Both are answerable to their boss. Popeye faces a civil court; Manning may well be facing the Uniform Code of Military Justice. Assange probably violated the Espionage Act of 1917. [See http://lrmlawblog.com/emedialaw/wikileaks-disclosure-of-diplomatic-cables-is-that-legal/] The readers, in both cases, are free to read and use the information as they please. Once published to the world, the “secrecy” is gone.

Tilting the Scales in Your Favor. If you have a trade secret, identify it specifically, in writing, with a confidentiality, nondisclosure or other similar agreement. Beware of using a “boilerplate” form off the internet because only certain kinds of information and subject matter qualify for protection. Overly broad or insufficient language describing the proprietary information can make the agreement unenforceable.

Three may keep a secret, if two of them are dead. Benjamin Franklin (1706-1790).

“Biscuits” and “Gravy” are two regular, ole “toms” who represent the 45 million turkeys “condemned” to be Thanksgiving dinner this week. Specially selected for their beauty, Biscuits and Gravy were coddled, cared for, flattered and fed by the Tomfool Wattle Eco-Foods Farms for their “judgment” day. Unlike their fellow toms, Biscuits, as the representative of the condemned, and Gravy, his first alternate, will be presented to the President of the United States to be “pardoned” from their Thanksgiving dinner judgment. Then he will be swept off to spend the balance of his days at Frying Pan Park. Should the excitement of being pardoned be too great for Biscuits, then Gravy will be his stand in for the Presidential pardon.

Background. Since 1947 the National Turkey Federation and the Poultry and Egg National board give a turkey to the President of the United States at a White House ceremony. Except in 1963 when President Kennedy said about his turkey, “Let’s just keep him,” Presidents were more likely to eat the turkey than grant it a reprieve. It was not until Thanksgiving 1989 that a turkey was officially pardoned by a United States President (George H.W. Bush).

Authority. Article 2, section 2 of the United States Constitution provides “[T]he President …shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” To fully understand what a pardon does, first consider that when a person is convicted of a felony, in addition to facing incarceration, he loses his civil liberties – the right to vote, to serve on a jury, to own a firearm. In Texas, conviction of a felony may also prevent that person from: holding public office or any office of profit or trust, serving as the executor or administrator of an estate, holding an occupational license, receiving a Texas tuition assistance grant, or operating a currency exchange business. Living without certain rights is referred to as civil disability. A full pardon places the legal and civil status of the convicted back to where it was before the crime was committed – it’s as if the crime never took place, as far as the law is concerned.

Pardon me, too. Notable Presidential pardons include: Andrew Johnson pardoned soldiers who fought for the Confederacy during the Civil War, subject to some conditions; Patty Hearst was pardoned by Jimmy Carter for bank robberies committed while being kidnapped by the Symbionese Liberation Army; Iva Ikoku Toguri better known as “Tokyo Rose”, an American citizen convicted of treason after World War II, served 10 years in prison before a reporter exposed trumped up charges and she was pardoned by Gerald Ford; tax evader Marc Rich best known for leaving his 1040 blank to the tune of $50 million was pardoned by Bill Clinton; and Caspar Weinberger convicted of illegally conducting arms sales with Iran to fund the Contra rebel guerilla army in Nicaragua, was pardoned by George H.W. Bush.

Sources:

The good news is, Ty Coon is a billionaire. The bad news is, Ty Coon recently turned 98-years-old and is sick…very sick. In his younger years, Coon amassed a billion dollar fortune as the owner of an international Mexican fast food chain. While Coon always found time for tacos, he never had time for sophisticated estate planning and just assumed that upon his death his entire estate would go to Owen Cash — Coon’s adopted son and only living relative. In late December 2010, Coon slips into a coma after complications developed from a long bout with pneumonia. The doctors place Coon on life support and tell Cash that there is little chance of recovery and that the decision to “pull the plug” will be left to Cash. Is there a tax benefit to Coon dying in 2010 rather than 2011?

Yes. In 2001, Congress voted to gradually raise the federal estate tax (the tax on the estate of a deceased person) exemption while cutting income tax rates. The exemption culminated in a complete repeal of the estate tax in 2010. So, 2010 is an excellent year to die and Koon’s estate (as will the estates of New York Yankee’s owner George Steinbrenner and Taco Bell founder Glen Bell) will likely pay no estate taxes. So what happens if Coon dies on January 1, 2011? Unless Congress acts, the estate tax will be back with a vengeance in 2011, taxing estates valued at more than $1 million at a rate of up to 55%! Incredibly, for the Coon estate, the difference between dying at 11:59 p.m. on December 31, 2010 and dying at 12:01 on January 1, 2011 could be the difference between paying nothing in taxes or hundreds of millions.

Tilting the Scales in Your Favor

Legislators are trying to agree to a more lenient 2011 federal estate tax than the one currently slated. There has even been speculation that the estate tax might be made retroactive to January 2010. Individuals with estates in excess of $1 million (this includes home, IRA, 401(k), etc.) should consult with their attorney and financial advisor about available estate planning strategies.

Norma Leigh Lucid is a competitor in the 2010 Punkin Chunkin Competition [1]. With just two weeks before the big event, Lucid was still fine tuning her thirty foot, artillery-grade air cannon capable of launching a 9 lb. pumpkin nearly one mile at over 600 mph. Early Sunday morning, Lucid test fired a pumpkin from her Highland Park residence directly east. She anticipated the pumpkin would land harmlessly in the middle of White Rock Lake. Unfortunately for Lucid, her calculations were wrong. The pumpkin struck and killed Bea Minor, a mother of two and accomplished opera singer who was jogging around the lake. Minor’s estate sued Lucid for compensatory damages and exemplary damages. Exactly what are exemplary damages and would they be awarded in this kind of case against Lucid?

Compensatory or actual damages repay a victim’s family for losses suffered because of the victim’s death (like lost wages). Texas is among a handful of states which allow recovery of exemplary damages (sometimes called punitive damages) in cases such as wrongful death. Exemplary damages are essentially a public policy means to punish a defendant and to warn others not to engage in similar reckless conduct. To collect exemplary damages, Norma Leigh Lucid’s conduct must have been either malicious or grossly negligent. Based upon the facts presented, it is highly probable that a jury would determine Lucid’s actions were grossly negligent, In other words, Lucid’s firing her pumpkin canon into a residential neighborhood necessarily involved an extreme degree of risk given the likelihood that serious injury could be inflicted. Moreover, Lucid had actual, subjective awareness of the risk involved in firing her canon but she knowingly proceeded with a conscious indifference to the safety of others. Factors that assist the jury in determining exactly how much Minor’s estate will receive in punitive damages include Lucid’s personal wealth (how much money in punitive damages is necessary to penalize Lucid), the nature of her conduct and any laws that limit the amount of punitive damages that can be awarded.

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[1] For the uninitiated, The Punkin Chunkin Competition is an annual contest held in Delaware in November where participants try to launch a pumpkin as far as possible using various contraptions like catapults, air cannons and trebuchets. Visit http://www.punkinchunkin.com to sign up!

Alice B. (“Babette”) Toklas has a new pastry catering business which she operates from her home. The only delicious delectable pastry, and best seller, that Babette sells is her special, knock you over brownies with their “secret ingredient.” Babette’s husband Douglas is a writer. While Douglas and Babette rely upon the income from Toklas Tasties to cover household expenses between Douglas’s successful writings, Douglas is not much of a cook and lets Babette run the catering business. Douglas’s latest novel made it to the New York Times best seller list. Because of the swings in the Toklas income, Owen Moore, their accountant, assists them in filing their joint income tax return each year. Ignoring Owen’s advice, Babette and Douglas do not report income from the catering business to the Internal Revenue Service. The Toklas just received notice of an audit of their last year’s joint return. If asked by a revenue agent, must Owen disclose the income from Toklas Tasties, or is there an accountant-client privilege? If Babette is ever prosecuted for Toklas Tasties, can she prevent Douglas from disclosing what she told him, including that the “secret ingredient” in her delicious delectable brownies is marijuana?

Accountant-client privilege. Generally, under Texas law a communication made by a client to an accountant or employee of the accountant in connection with services provided to the client is confidential and not discoverable. But, under federal law, no accountant-client privilege is recognized. Therefore, Owen would be forced to disclose his files and knowledge of the source of the income received by Toklas Tasties to agents from the United States Internal Revenue Service.

Husband-wife-communication privilege. The purpose of the husband-wife-communication privilege is to preserve the integrity of the marital relationship. Generally, private communications that are only between spouses and are not intended for disclosure are privileged and are not subject to discovery. If prosecuted for Toklas Tasties, it is likely that Babette can prevent Douglas from disclosing what she told him about her “secret ingredient.”

Tilting the Scales in Your Favor:
Even if the source of the income is arguably a criminal matter, the United States Internal Revenue Service is primarily tasked with, among other things, identifying and collecting taxes upon unreported income. Babette and Douglas would have been better off taking Owen’s advice and reporting the income from Toklas Tasties on their tax return.

Paige Turner works at a small bookstore in El Paso, Texas directly on the U.S./Mexico border. As a result of a string of armed robberies in the same shopping center, Paige wants to carry a handgun while at work. After weeks of research, Paige finally settles on a Glock 9 mm, attends a concealed handgun class, and becomes licensed to carry (a CHL license). Thereafter, she brings the gun to work where she keeps it in her purse. One day at lunch, Paige mentions to her boss, Rita Booke, that she is armed and not afraid to use the gun should the opportunity present itself. Rita, who is terrified of guns, tells Paige that “guns are scary” and that Paige is not permitted to bring the gun to work, despite the fact that she has a CHL. Must Paige comply?

Yes. With proper licensing, a person may carry a handgun so long as it remains concealed. As you might imagine, there are a number of common sense places where the legislature has stated you may not bring your gun. These include, among others, a government court, a bar (a business that derives more than 51% of its income from the alcohol sales), a school, a place of religious worship, a polling place or a secured area of an airport. While license holders are free to carry almost anywhere else, Section 411.203 of the Texas Government Code maintains that a CHL does not prevent or limit the right of a public or private employer from prohibiting CHL’s from carrying a handgun on the premises of the business. Accordingly, Rita’s request must be honored.

Tilting the Scales in Your Favor:

Employers who wish to prohibit firearms at their place of business must take into account both their employees and customers. Employees can be advised of the prohibition through an employee handbook. To prohibit customers from bringing firearms into your business, state law requires owners to post a sign that says: “Pursuant to Section 30.06, Penal Code (trespass by holder of a license to carry a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (concealed handgun law), may not enter this property with a concealed handgun.” The sign must be written in both English and Spanish in contrasting block letters at least one inch in height, and must be displayed in a conspicuous manner, clearly visible to the public.

More on Texas Guns:

There is neither a waiting period (under normal situations) nor a state registration program relating to the purchase of firearms in Texas. Effective September 1, 2007, a person need not have a CHL to carry a handgun in a motor vehicle (including a recreational vehicle with living quarters). However, the firearm must be concealed, the person may not be engaged in criminal activity, and may not be a member of a “criminal street gang.” The person may also carry the handgun to and from his vehicle without a license.

Oyle E. Driller’s rig caught fire in the Gulf of Mexico last summer, and he has been scrambling ever since. Almost too late, Oyle allowed his corporate communications department to hire the public relations firm of Frank Lee Madear and his partner Gemma Damm who specializes in crisis management-public relations. To report current information and company stories consistent with the facts as they developed, Madear and Damm had access to the same internal information and analyses as to the cause and extent of the damages as was available to Oyle’s external legal defense team. Much of the information was very sensitive and, as one might expect, reflected an evolving understanding of the cause and solution to the leaking well. Yesterday, Frank and Gemma received subpoenas for all their files on the Oyle E. Driller catastrophe. Are their files privileged from discovery by the plaintiffs’ lawyers?

No. Attorney-client privilege is the right of clients to refuse to disclose confidential communications with their lawyers, or to refuse to allow their lawyers to disclose the confidential communications. Madear was neither the client nor the lawyer. So, information provided to or created by Madear may be reviewed by the plaintiffs’ lawyers. The attorney-client privilege is the bedrock of a client’s constitutionally based right to effective assistance of counsel. Practically speaking, it plays a key role in helping clients, including companies, to act legally by permitting them to seek guidance on what the law allows and requires, and how to conform their conduct to the law. In addition, the privilege allows companies to investigate actions by its corporate officers and employees to identify shortcomings, evaluate and remedy problems, including undertaking accident investigation in anticipation of litigation. A related concept, the work product doctrine protects our adversarial justice system. The work product doctrine allows lawyers to prepare for litigation without risking that their intellectual effort, work product and mental impressions will be revealed to court adversaries, undermining their client’s legal position.

Tilting the Scales in Your Favor.

If you anticipate that a catastrophe or other crisis may end up at the courthouse, retain an outside law firm to hire all outside personnel, including your public relations firm or similar crisis management team. The crisis management team then becomes a part of the team of consulting experts, just like the accident investigation team, the well, fire and ecosystem experts, and the like. Even if your crisis communications are generated in-house, you may be well advised to consider having outside counsel manage the accident investigation for the same reasons.

More on Privileged Communications. In certain circumstances the State of Texas recognizes other communications as being privileged from disclosure in a legal proceeding. More on those next month.