Click here to download the form I have prepared in response to the amendment of Tex. R. Evid. 902(10) on business record affidavits. In my last edition, I attached a link to a draft version of the rule, rather than the official version of this new rule, which became effective on September 1, 2014. I thank Russ Burwell for pointing out that error and I direct you this time to the correct, official, final order adopting this new rule approved August 19, 2014. Please note, this new rule applies to cases filed on or after September 1, 2014, which means the prior rule requiring affidavits and records to be filed with the clerk, still applies to pending cases. Parties can and should agree in writing not to file the actual records in the pending cases. Just to be sure, here is the full text of the final rule we now have to comply with: RULE 902. SELF-AUTHENTICATION The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity ... Read More >
Illegal Electronic Evidence and Family Law Part 1: Attorney Beware!
Lawyers can be sued, arrested and sent to prison and disbarred for mishandling illegal electronic evidence, such as recordings, e-mails and text messages. This article is the first in a series on what makes electronic evidence illegal, the many ways that electronic evidence is being obtained illegally these days, how law firms and clients can safeguard their computers and phones and what can happen to clients and lawyers who break the law. This first article focuses on what attorneys should never do with illegally obtained evidence.An attorney can face personal, criminal and civil liability for using or disclosing an illegal recording or illegally intercepted electronic communication (e-mail or text message) provided to the attorney by a client. For example, the following can be separate and independent federal and state wiretap act violations: (1) a client's disclosure to an attorney of an illegally obtained e-mail, (2) the attorney's disclosure to his staff, co-counsel or expert ... Read More >
Modification default reversed because mother failed to present any evidence of changed circumstances.
This case shows that even in a default situation, counsel must still put on some minimal evidence that supports the requested modification. In the Interest of A.T.A.L., No. 05-11-01666-Cv (Tex. app. - Dallas 5/8/2013). ... Read More >
A party can do his own tracing of separate property!
This case stands for the proposition that a party (in this case, the husband) can do his own tracing of financial accounts to prove how much is separate property. In this case, the husband was an attorney and a CPA. There was no objection to his qualifications made to the trial court. The court of appeals reviewed some very complex financial account tracing and approved what the husband calculated. It certainly seems logical that if we allow a party to testify about the value of his house without being a real estate appraiser, that we should allow a party to testify about tracing as long as the methodology is explained and is proper. Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013. Another case decided this month by the San Antonio Court of Appeals is another example of a party tracing (or trying to trace) his own separate property. Unfortunately, this is also a great example of how not to trace and what evidence is insufficient to prove separate ... Read More >