Manor Independent School Board

I am running for Manor Independent School Board: I officially launched my campaign for Manor ISD's Board of Trustees. The election is in May of 2009. I have simultaneously filed an application for appointment to one of the two current vacancies on the Board which, if appointed, I will have to run for election to in May 2009.

Although I have not launched an official campaign website yet I have launched a political page on Facebook that I encourage you to become a supporter of (just search for "Bradley B. Clark") even if you do not live in the Manor school district.

I look forward to the opportunity to serve the District and work with the administration, faculty, staff, parents and students to continue the positive physical and academic growth the District has achieved thus far. I am also extremely excited about the recognition MISD has received recently which proves that Manor ISD is a leader in innovating a dynamic curriculum and learning environment that has and continues to serve as a model for school districts across the United States.

Straight-Ticket Voting

More people are voting and voter-turnout was at an all-time high for the 2008 Presidential election. Most would agree that higher voter turnout is a good thing and good news. Some however, would disagree with me that straight-ticket voting in Texas should be abolished as it has been in many other states.

Today's Austin American Statesman discusses a bill by Sen. Wentworth of San Antonio to try again at getting rid of the straight-ticket option in Texas.

But in the legislative session starting Jan. 13, Republican state Sen. Jeff Wentworth of San Antonio plans a second run at deleting the straight-ticket option from Texas ballots. His repeal proposal didn't advance in 2007 .

"Both political parties need to stop being quite so partisan," Wentworth said.

He said that if a voter wants to favor every Republican or Democrat running, "that's fine with me; I'm not trying to tell them how to vote. I'm just saying they ought to be more informed by seeing the name. "

Nationally, 16 states offer the straight-ticket option, which has been repealed in five states since 1994 , though voters may still favor a single party's candidates by voting one by one. ... Wentworth said his proposal "has nothing to do with trying to give an advantage to either political party. It's an effort to bring us into the mainstream of the 34 other states that don't allow it."

Although the major parties seem to like the ability to vote straight-ticket in an election year like 2004 or 2008 it hurts well qualified local candidates. But then I guess those informed voters on the local races may not vote straight-ticket regardless. We'll see how this issue shakes out but at first blush I'm with Sen. Whentworth on this issue.

Clean up the books!

Eric Dexheimer with the Austin American Statesman has a great article in today's paper regarding old and odd laws that remain "on the books" in Texas. The article can be accessed here or I have posted it below:

LEGAL ODDITIES:

Many Texas laws old, in the way

Statutes dealing with topics from telegraphs to communism hang around for decades after they're out of date, sometimes causing problems.

By Eric Dexheimer
AMERICAN-STATESMAN STAFF
Friday, December 26, 2008

In 1954, Allan Shivers, anticipating a difficult campaign for his third term as Texas governor, proposed that membership in the Communist Party be made punishable by death. More moderate lawmakers voted to make it punishable by a mere 20 years in prison instead. Such McCarthy-era restrictions have since been cleansed from state statutes.

Most of them, anyway. A citizen cannot work for the state government if his supervisor has "reasonable grounds to believe that the person is a communist," says Chapter 557 of the current Texas Government Code.

"We don't have any communists," insisted Andy Homer, director of government relations for the Texas Public Employees Association. But, he said, "I'm not sure about the Texas State Employees Union," a rival organization.

The prohibition against communists is one of hundreds of laws still on the books despite being outdated, unenforceable or — like Article 4413 of Vernon's Texas Civil Statutes — meaningless: "A person may not conduct blasting, rock quarry operations, or another activity that causes ground motion in excess of one micron in frequencies of five hertz or less as measured at an interaction region of the super collider."

That would be the superconducting supercollider, the vast atom-smashing project near Waxahachie that the federal government canceled 15 years ago.

Texas laws prohibit the sale of baby formula and contact lenses at flea markets, selling an armadillo or tripping a horse. On the other hand, since 1997 residents can legally cast a vote from space. Ten Texans have, according to NASA.

Such minor laws see irregular enforcement. The state's Business and Commerce Code requires companies advertising a going-out-of-business sale to "file an original inventory with the chief appraiser of the appraisal district in which the person's principal place of business is located." The permit costs $20.

"If we get two a year, it's a banner year for going-out-of-business-sale permits," admitted Ron Melton, director of the Travis Central Appraisal District's personal property division.

That's a better track record than offenses related to secondhand watches. The Business and Commerce Code still identifies as an outlaw anyone who sells used watches not labeled as such "in letters larger than any other letters on the invoice." Austin Curry, owner of Austin Watch and Jewelry, said the old laws are "kind of a sticky deal" — a vestige from the time when not-always welcome immigrants used their jewelry as currency. It was passed in the 1940s "out of fear," he said.

Though still valid, today it's a rule flouted thousands of times daily on Craigslist and at pawn shops across the state. "We don't enforce that," Austin Police Department spokeswoman Veneza Agui?aga said.

"I'm not familiar with that statute," Travis County Attorney David Escamilla said.

Sometimes, leaving outdated laws on the books is simply a matter of lack of momentum .

Senate Bill 387, which will be considered when the 81st Legislature convenes in mid-January, would update the Code of Criminal Procedure to include the use of "secure electronic means" to transmit an arrest warrant. Yet references to telegraphs — Article 15 outlines the duties of a telegraph officer — remain embedded in the same statute. And much of the section being considered for revision has been irrelevant since a 1967 law gave police authority to arrest someone without a warrant in hand.

Rep. Bill Callegari, R-Katy, has been trying to clean up the state's outdated laws for years, said Jeremy Mazur, his chief of staff. Last year, he managed to repeal the Texas Centennial Commission's authority to condemn land — about 70 years after the state celebrated its 100th anniversary.

"When they're still on the books, these old laws can be live wires," Mazur said.

Prosecutors say so-called boutique laws can cause serious headaches. Criminal defendants must be charged under the most specific law possible. Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association, said it's not unheard of for a prosecutor unaware of a new or little-known statute to earn a conviction using a more general law, only to have it appealed because of the incorrect charge.

Outdated laws that stubbornly remain on the books can also reveal social fissures.

Federal courts have long since deemed flag-burning and homosexual conduct to be legal. But Texas legislators have been unwilling to officially erase the laws against them for fear of alienating an ambivalent public.

The last time the lawmakers contemplated removing flag-burning, "nobody really wanted to go on record as repealing it because it's a symbolic statute important to much of the public," Williamson County District Attorney John Bradley said.

The Texas Legislative Council periodically rewrites the codes to make them more reader-friendly and streamlined. It last sand-blasted the Texas penal code in 1993. In 2000, a university law review identified Texas as having one of the clearest codes in the country.

But that was four legislative sessions ago. Since then, state lawmakers have been busy creating new offenses — despite pleas to show restraint.

The district and county attorneys association used to give legislators a pamphlet at the start of each session outlining the pitfalls of cramming the penal code with nit-picky laws. "New legislation, although well-meaning, may inject unnecessary confusion into the system," it said.

The association stopped several years ago, however, after noticing that no one was paying attention. "You get a special interest that wants its own law, so they hire lobbyists to get it done," Edmonds said.

The 2003 and 2005 legislative sessions created 70 new violations, according to the association. The more recent session created four dozen more.

Texans can now be arrested, fined or both for shining a laser pointer at an airplane (unless it's an emergency distress signal), recklessly moving feral swine or attempting to drive over a railroad crossing in a car with insufficient undercarriage clearance.

The specialized laws can be more catharsis than serious public policy enhancement.

Last session, Sen. Jeff Wentworth, R-San Antonio, heard of an incident in which a father and son were driving home from a hunting trip. The father asked his son, who had a learner's permit, to drive while he napped. A few miles from home, the boy crashed; a child in another car died.

After hearing that no laws had been broken, Wentworth pushed through Senate Bill 153, making it illegal for an adult supervising a probationary driver to fall asleep, or be intoxicated or otherwise distracted.

"I don't know of any other case like that," Wentworth said. "But clearly it's something that needed to be fixed in the law."

Is a deposition a public record?

A Houston lawyer recently posted an edited excerpt of a videotaped deposition on You Tube. The issue that came of the posting became the subject of local and national news and was the cover story in a recent edition of the Texas Lawyer.

The ultimate issue at the hearing was whether a deposition is a public record. The Court held that it was not a public record unless it is filed with the court (in the old, old days, discovery responses, including depositions, were filed with the clerk of the court). Today, discovery responses are only filed with the clerk of the court if they are attached to a pleading. The Court ordered the lawyer to remove the video excerpt from You Tube.

I have a hard time accepting the Court's ruling in this matter on the sole issue of whether a deposition is a public record. I believe that it is a public record and I believe that members of the Texas Bar treat them as such irrespective of whether they are ever filed with the court. For example, I routinely receive phone calls from lawyers in other cases asking for a copy of a deposition transcript of a person who I previously deposed. I routinely make the same request of other lawyers and we freely exchange these transcripts. Additionally, expert witness depositions are available on websites such as Westlaw and Lexis.

I think the Court's ruling had more to do with the factual circumstances surrounding the posting on You Tube which I do not get into in this post than it did with whether it is a public record.

Nevertheless, I think the bench begins to set a very dangerous precedent when, and if, they start ruling the depositions are not public records (or any discovery response for that matter) and that such responses cannot, in appropriate circumstances, be posted online on websites such as You Tube. The issue, in my mind, once it is determined that it is a public record is whether such a posting can be done during the litigation of the case and/or after the litigation of the case.

You Tube has plenty of video deposition excerpts (mostly outrageous) posted on its site and a few are from Texas. Additionally, every month in the Texas Bar Journal (a magazine that is distributed to all members of the Texas Bar Association) includes a humor column written and edited by Judge Jerry Buchmeyer that includes written excerpts from depositions.

If depositions are not public records than it follows that it would be impermissible for Judge Buchmeyer to use these excerpts as part of his blog Say What?. I don't think any member of either the Texas Bench or Bar would argue that Judge Buchmeyer's use of deposition excerpts is improper because the depositions themselves may not be public records.

There is, I will admit, an enormous difference in the way Judge Buchmeyer uses the deposition excerpts and they way the Plaintiff's lawyer in the Houston case used his deposition excerpt. Unfortunately, there is no rule regarding the proper and improper use of deposition excerpts during litigation or after. With the advancement of technology this is an issue that the Texas Supreme Court Rules Committee and the State Bar needs to address.

Update:

A few cases have found that depositions are public records.

See 1989 WL 22992 (holding that a deposition is a public record under FRE 902); see also 1992 WL 205226 and 2002 WL 31973299 (same case, two separate appeals, affirmed trial court that depositions are public records under a Tennessee statute).

Innovating the practice of law.

A colleague of mine is a solo appellate lawyer who is making a very decent living with essentially a virtual law practice. The idea of a virtual law firm has been around for a long time but I think the profession is finally starting to enter a time when not only is it technologically possible but financially practical for both the customer and the lawyer. Most courts have also made it possible for the success of virtual law firms by accepting electronic filing and providing electronic notice of filings.

Virtual law firms will benefit consumers in the long term and de-commoditize the practice of law. Historically, lawyers billed for "services rendered" at the conclusion of the matter. The customer received one invoice for an amount that the lawyer believed the value of the service provided. Today, the practice of law has been commoditized and lawyers bill for increments of time. This practice does not benefit the customer.

It is often said, the client may control the hourly rate but the lawyer controls the number of hours. It bothers me immensely that this mentality is out there among some of my colleagues. Many of the large firms require an associate to bill more than 2000 hours per year. Several studies have shown that this is virtually impossible. Based on my own experience I reach the same conclusion. I am physically in the office 10-12 hours per day and on a good day will bill between 50-75% of that time. There is a lot of lost time working on administrative matters that cannot be billed for or that do not meet the "reasonableness" standard for the fee charged. Just because it took a lawyer 4 hours to draft a one page letter does not necessarily mean that the lawyer should bill the entire 4 hours at $200 per hour (an $800 one page letter!) if doing so would not be reasonable.

A lawyer's hourly rate is a function of his or her salary, firm overhead, and equity partner profit. Even law firms that operate as an economy of scale commoditize the practice of law based on an hourly rate. When a lawyer has a virtual law practice his or her hourly rate will be substantially less then if he or she was at a firm. First, and most importantly, the virtual law firm will have substantially less overhead than that of a physical law firm. Second, the virtual law firm will have less equity partner profit as long as the virtual law firm is not composed of multiple equity partners. Finally, the virtual lawyer can offer a lower rate or, more importantly, value price his or her service based on the low costs of operating virtually.

Many traditional law firms pass through the following expenses to clients: faxing documents, receiving documents by fax, copying documents, travel, deliveries by runners, postage, long distance and other expenses. In a virtual law firm many of these expenses are unnecessary because the service is not necessary. For example, in a virtual law firm, documents are emailed rather than faxed, documents are scanned rather than copied (where necessary copies will obviously have to be made), deliveries are not necessary because of electronic communication, postage is not necessary because of electronic communication, and long distance charges are unnecessary with VOIP technology which is consistently improving.

My health insurance company has recently ceased mailing me my EOBs and instead sends me an email and link to my EOB. I can check the status of pending claims and paid claims online. In much the same way a virtual law firm can send a client an email when something has been filed or on his or her behalf with a secure link to the document. Additionally, customers are already
communicating with their lawyers by email as well as sharing and editing documents in .pdf format. The technology is already present for secure online document sharing and storage so that clients can upload documents for the lawyer and the lawyer can upload documents for the client.

Several websites that have explored virtual law firms have also written about the use of paralegals and others overseas who can provide services at a reduced price and at a faster turnaround. For example, if a virtual lawyer received a set of electronic documents from his or her client at the end of the business day and wanted a summary prepared of the documents the lawyer could contract with an overseas paralegal to summarize the documents for him or her at a substantially reduced cost than the American work force. In many situations, the lawyer can assign the work to the paralegal overseas at the close of business and when the lawyer returns to work the next morning the paralegal's summary of the documents provided less than 12 hours before are summarized and sitting in the lawyer's email in-box.

I could probably write a small book about this topic. I think it is the future of the practice of law. Innovation is what separates companies that succeed from those that fail and the same will be true of law firms. Law firms appear to be the most reluctant of all professional service firm to accept technological innovation. Firms that due innovate will succeed whereas those that don't will fail.

I would like to next explore the costs of setting up and maintaining a virtual law practice. If you have a virtual law practice or otherwise have suggestions on the costs of setting up and maintaining a virtual law practice please be sure to email me your thoughts.

Competition vs. Cooperation

I posted this on Texas Business 411 today and thought it was worth posting here as well because I believe that the future success of a law firm depends on its ability to create customer (not "client") teams that develop a deep knowledge of the customer, its business model, and its market so that the team (and therefore the firm) can provide more value to the customer than can currently be done profitably on an hourly-rate billing model.

Here is the post:

I am currently reading a book I should have read years ago: The Seven Habits of Highly Effective People by Stephen R. Covey. It is on the shelf in this blog's Reading Room which you can access here. One of the stories told by Mr. Covey is about the president of a corporation who was "trying to get the fruits of cooperation from a paradigm of competition."

The goal of the company was to work together for the good of the company but in realty what was set up was a competition among the people who worked for the company. At the end of the year the person with the best numbers won a free trip to a tropical paradise. This "reward" did not foster a spirit of cooperation among the president's employees but rather a fierce competition. This created a lose-lose situation for the company and its customers.

Unfortunately, I see this in a large number of businesses that I represent as well as a large number of businesses that I patronize. Rather than sharing information and working together to increase the value proposition of the company the employees tear the fabric of the company because the paradigm is flawed. To address the problem, Mr. Covey created a paradigm that rewarded cooperation rather than competition.

Many professional service firms are starting to understand the importance of this paradigm shift as well. In order to create more value for customers professional service firms are increasing the value of the firm to their customers by creating a paradigm of cooperation by creating customer teams.

Customer teams are slowly becoming recognized by professional service firms as a way to increase the value to their customers. Accountants are doing a much better job than law firms at this but I believe the future of law firms depends on the ability to do the same. That would necessarily require a shifting from hourly-rate billing to value billing - which accountants are doing a better job than lawyers at as well. Value billing and shifting to a team approach to solving customer problems is the future of law firm success.

The fact that professional service firms can and are employing internal cooperation rather than internal competition is proof that Covey is right. If your business is still using a paradigm that awards competition and not cooperation (for example, among your sales representatives) than your company is sure to be left behind by those that are.

The central point is that by creating a paradigm of cooperation rather than competition is a win-win for both the company and it's customers.

Submissions and Design Suggestions Welcomed

The Texas Law Blog will take on a category-based organization much like 411 Media's other law blogs: Texas Business 411 and Texas Divorce 411.

We would love to have input from our readers on suggested categories, topics, and features. The primary purpose of the Texas Law Blog is to provide content for the Texas Bench and Bar. The secondary purpose is to provide the general public with information on Texas law and legal issues.

A few of the new features we would like to include on the new site include podcasts and written interviews with judges and attorneys from across the State on significant legal issues and other causes important to our State's judicial system and the particular judge or attorney. A legislative section would also be an important component of the new site.

We also encourage submissions, however brief or verbose, from our readers for possible publication here on the Texas Law Blog.

Getting closer

It is 1:35 a.m. and I have been racking my brain trying to figure out the coding issues with Blogger. Since my new blogs all use Word Press and I have long since updated this blog it has taken me a good amount of time to get this far tonight. I am still missing a few pieces of the puzzle but I wanted to leave the blog online. Many people still come across this blog from search engines but of course my goal is to regrow the blog organically with a different focus and mission. Unfortunately, my contacts have fogged up and I have done all I can do tonight and a brief to the Texas Supreme Court awaits me on my desk in less than 6 hours (a 9 month old will wake me up in less than 3.5 hours). I better hit the sack but before that get the coffee pot set to automatically brew about 6 cups.

Anticipated Re-Launch:

I have been receiving many emails this morning from individuals and friends who still subscribe to the Texas Law Blog asking lots of questions including when the official re-launch of the website will be. I am looking at moving the blog to a wordpress theme and having it hosted on its own domain name. Someone already locked up www.texaslawblog.com so I'm currently looking at domain name options. I would anticipate that I will have the new domain, template, and website up and running by early to mid November.

New Blogs: Please visit my new blog at www.texasdivorce411.com or www.austinfamilylawguide.com. I will also add another 411 blog to the mix in the very near future.

New Blogs: Please visit my new blog at www.texasdivorce411.com or www.austinfamilylawguide.com. I will also add another 411 blog to the mix in the very near future.

Texas Property Code § 5.085: Have you litigated a case under this section of the Texas Property Code which requires a seller under an executory contract to maintain fee simple title to the real property? If so, I would like to talk to you (please e-mail me).

Texas Blog: Please visit E-Everything for Bankruptcy Lawyers..., a bankruptcy blog by my friend Lee Barrett at Forshey & Prostok, LLP.

Consumer and Commercial Law: TexasBarCLE is hosting the 2007 Consumer and Commercial Law CLE in Houston this September 2oth and 21st. I will be presenting a 15 minute mini-topic on proper legal citation form and the effect improper form has on a lawyer's credibility. If you are attending the CLE on Friday be sure to say hello.

Texas Collection Law: Please visit my friends over at Carry Lippincott, PLLC who have started the Texas Collection Law Blog.