McCRORY LAW FIRM

business & real estate                   wills & Estates                  family law

McCRORY LAW  FIRM

8080 N.Central

    Expy., 

Ste. 1400

Dallas, TX. 75206

214 / 369-9918

ARTICLES                                                                                       

• ATTORNEY’S FEES (RECOVERING)

• INSURANCE POLICY BENEFICIARY

• Lawsuit Overview

• WHAT IS A PONZI SCHEME

• WILL UPDATE

              DEFINITIONS

• ACKNOWLEDGMENT, AFFIDAVIT or VERIFICATION

• at-Will Employment

• Common Law

• Damages

• Future Damages

• Injuries

• subpoena

(Click the Practice Areas above to go into them directly.)

    You or your business is injured or damaged and cannot obtain a settlement from the party causing your injury or damages. So, you have to go to court to obtain satisfaction. Can you recover your attorney’s fees that you have to pay to an attorney for representing you?

Well, sometimes yes and sometimes no!

    Generally, you are not able to recover your attorney’s fees. In fact, the only time that you can recover your attorney’s fees is when there is a specific statute which allows you to recover or if you have a contract and the opposing party breaches it, and in limited equitable situations.

    In Texas, in all cases of contract, provided that you win the case in court and meet other requirements, you can recover your reasonable attorney’s fees in addition to the other amounts you won. The amount of attorney’s fees that you are entitled to will be an amount as determined by a jury (if you have one) or the judge. The amount that the jury or judge awards will not necessarily be what your attorney charged you, however. The reason for that is that the judge or jury can determine what amount of fee they will permit in the context of the total verdict or judgment they wish to award. Theoretically, that determination must be based upon the testimony of other attorneys (or in the case of a judge, upon his experience) as to what a reasonable attorney’s fee would be based upon the type of case, type of fee - whether it was an hourly fee or contingent fee, the complexity of the case, the level of opposition by the other party - how much the opposing party obstructed or caused the amount of work to be done to bring the case to judgment - and the total amount involved in the case among other factors, some of which may be unique to that case. Some types of claims are created by statute and permit recovery of attorney’s fees as part of the claim. Examples of these would include claims involving Deceptive Trade Practices Act and discrimination cases. Recovery of attorney’s fees is also allowed under the Family Code, Probate Code and Property Code. Finally, in a limited number of cases equitable principles permit recovery of attorney’s fees. Examples of these would include lawsuits against insurance companies and breach of fiduciary duties by a partner, executor or trustee or where the attorney’s fees may constitute an element of damages incurred separately from the current lawsuit.

Can A Former Spouse Collect Life Insurance?

Insurance, Retirement Benefits

   Recently a client contacted me with an innocent inquiry. The client was the independent executor of the estate of a deceased and had been advised that the former spouse had filed a claim against a life insurance policy the deceased had acquired during their marriage. The client knew the deceased intended the proceeds to go to his children. Can anything be done? Yes.

    This is not an uncommon situation. Too often the person named as an independent executor of an estate is a friend or family member, but not necessarily a beneficiary. It is easy to not give the attention to settling the estate that should be given when one is just basically “helping out”. This client did the right thing-sought legal advice before it was too late.

    The Texas Family Code provides assistance. In summary, it provides that a former spouse is stripped of their right to inherit under a life insurance policy taken out prior to divorce unless after the divorce, the deceased renamed the ex as a beneficiary. 

    Still better, the Family Code makes the insurer liable to the alternate named beneficiary or, if none, the estate of the deceased, for paying the proceeds of the policy to the former spouse IF the insurer received written notice of this situation prior to the time that it paid out the proceeds of the policy . So, we sent the notice to the insurer who quickly replied and “flagged” the policy so as not to pay out the proceeds to the former spouse.  

ERISA Benefits

    Virtually all benefits provided through an employer fall under the federal Employee Retirement, Income Security Act (ERISA).  To the extent that it does so,  the federal law preempts the Texas Family Code.  Lawsuits over recovery of benefits under an ERISA plan may be brought in federal or state court.  The Texas Supreme Court, in a split decision, has adopted the view adopted by the majority of the federal courts which, in turn, essentially adopts the holding of the Texas Family Code or other similar states' law as federal common law, i.e., that the former spouse is not entitled to the ERISA benefits but have split over the theories under which they reach their decision. 

   Point of story is to be sure and delete former spouses as the beneficiary of your insurance policies or the proceeds of that policy or other employer benefits may not go where you expected!

Grievance Process

     A lawsuit is nothing more nor less than a means of resolving conflicts or grievances (claims) in a civilized manner. When one person is harmed by the acts or omissions of another, the judicial system provides a place where he/she can go to resolve those grievances (claims) if they cannot settle them between themselves. Courts provide a forum for those grievances to be aired and to let other citizens (jury) make a determination on those grievances (claims) as to whether the other party is responsible, in whole or part.

     The judicial system provides a process by which those claims are permitted to be aired and allow the person accused of causing the grievances to present any defense he/she might have. The Texas Rules of Civil Procedure (Court Rules) are the basic rules by which the lawsuit is controlled. They are the guidelines by which each party must play in order to assure each side has an even chance. This fairness of the process and the end result or final determination is referred to as "justice".

Parties

     The party who brings a lawsuit is called the "Plaintiff" (in family law "Petitioner"). The party against whom the lawsuit is brought is called the "Defendant" (in family law "Respondent").  Sometimes the Defendant has claims back against the Plaintiff. If the Defendant chooses to assert his/her claims back against the Plaintiff in the same lawsuit (Counterclaim), then the Defendant is also known as a "Counter Plaintiff" and, then, the Plaintiff, also, becomes known as the "Counter Defendant".

Phases

     Every lawsuit basically has 4 phases- service, discovery, mediation and trial. First, there is the "service" phase. Every lawsuit must follow and be handled in accordance with the Texas Rules of Civil Procedure (Court Rules). When the Plaintiff "files" a lawsuit that means they initiate the lawsuit process in accordance with the Texas Rules of Civil Procedure (Court Rules), hereinafter called the "Rules".

     A written statement ("petition") setting forth the claims made by the Plaintiff is filed with the clerk of the court. The Rules require that the person who got sued (Defendant) is entitled to have notice ("citation") of the lawsuit and an adequate time in which to obtain an attorney and to file a response to the lawsuit ("answer"). When the Plaintiff files a lawsuit in the office of the clerk of the court, a clerk opens a court file and prepares a citation. The citation advises the Defendant that attached to it is the statement of grievances (petition) and which court the lawsuit will be conducted in and when the Defendant must respond to the lawsuit. A copy of the petition is then physically attached to the citation and both are then personally delivered to ("served on") the Defendant by a constable, sheriff or process server.

     Once the Defendant is "served", the clock begins to tick on the time in which the Defendant has to respond (answer) to the lawsuit. The Defendant will then hire an attorney, sit down with his/her attorney and discuss and review the claims alleged ("allegations") in the petition and the facts involving those claims and, then, the Defendant’s attorney will file a response (answer) to the petition within the allotted time which is usually between 21- 28 days. If the Defendant fails to file an answer within the allotted time, the Plaintiff can go to court without the Defendant and the court will hear the case only from the Plaintiff. Most of the time the Plaintiff will win. This is known as taking a "default judgment". That is, the Defendant has failed to contest the lawsuit and has "defaulted".

If the Defendant files an answer, the lawsuit then enters the second phase of the lawsuit called the "discovery" phase. During this phase, the Defendant seeks to obtain as much information about the Plaintiffs claims (the facts and law on which the claims are based) as possible. The Plaintiff, on the other hand, seeks to obtain as much information as possible about any "defenses" (the facts and law on which the defenses are based) that the Defendant might have to the Plaintiff’s claims.

The Rules allow several "tools" to assist each party. In addition to interviewing witnesses that are not a party to the lawsuit, there are other means of compelling witnesses’ (parties and non-parties alike) assistance and participation. One party can compel the opposing party to respond to basic disclosures about the lawsuit facts by requesting "disclosures" (a set list of information) from the other side. These include the names and addresses of known witnesses by the other side who may have information of some type or another about the facts of the lawsuit.

It, also, requires each party to disclose who they will use as experts in the case, if any. Other information can also be inquired about such as whether each party is correctly named and whether any party knows of someone else who may also be responsible to the Plaintiff.

Another useful tool are interrogatories. These are written questions sent out by the attorney to the opposing party who must answer them under oath and return his answers within usually 30 days. These are limited to 25 questions and are used to obtain more basic information about the other party.

Each party can also obtain all documents from the other party which may be relevant to the claims of the Plaintiff or the defenses of the Defendant. These are called "Requests for Production". Another often used device to obtain records from third-parties (non-party witnesses) is the written deposition. In this case, the attorney for the party wanting to obtain the records, sends out a notice ahead of time of his/her intention to obtain the records. Then, a few days later, has a subpoena (a notice requiring participation by the witnesses) personally served on the witness together with a copy of the notice containing the questions to be asked, if any, and the documents to be produced by the witness, sent out earlier to the opposing attorney. At the subsequent appointed time, a court reporter appears at the witness’ business (usually) or other location as they agree, and the court reporter reads the questions and takes down the witness’ answers and takes the documents (usually copies) from the witness. The court reporter then types out the questions and answers and attaches the documents produced as exhibits and binds them in a folder.

Usually once these discovery devices have been used (and they may be used in any order or all at once), the parties usually take the "oral depositions" of the parties and other key witnesses in the lawsuit. The oral deposition is similar to the written deposition, except instead of sending questions to the witness ahead of time, the witness usually appears at the office of one of the attorneys in the lawsuit and answers questions asked by the attorney in person and the court reporter is present and takes down all questions and answers and attaches any documents brought as exhibits and then types it up and binds it in a folder. Once it is typed the court reporter provides a copy to the witness to read and make any changes or corrections the witness things are necessary to make their answers correct. Once this is done, the court reporter sends the original deposition transcript to the attorney who "took" the deposition (the one who sent out the notice or subpoena). The other attorney is entitled to a copy if they wish one. They can get one from the court reporter or require the other attorney to provide the original and copy it.

There are other "tools" also which can be used, but these are the most often used ones. Others frequently used involve experts reports and depositions and on-site inspections.

Once discovery is closed (as set by the Rules or otherwise set by the Court), the third phase is that of "mediation:. Here, the parties and their attorneys meet with a "mediator" who is most often an attorney. The mediator is a person either agreed upon by the parties or appointed by the Court. Most courts now require mediation. The mediator is a neutral party who listens to both sides’ case and attempts to get them to settle their case. If the parties reach an agreement, they sign an agreement that is enforceable as a contract. If not, they proceed to go to trial. This division often, in practice, overlaps the discovery phase. Mediation can reconvene any time that the parties deem it useful.

The fourth phase of a lawsuit is the "trial" phase. Here, the parties go to trial. There, the Plaintiff presents his/her case and then the Defendant presents his/he case to either a judge or a jury. The parties decide whether they want a jury or judge to decide the outcome. The decision of a jury is called a "verdict". Whether or not a jury is used, the final result or decision is expressed by the court in a "judgment". Sometimes, the Court may reconsider some or all of a jury’s verdict or the court’s decision in various "post-judgment" motions. If any changes are made they are documented in the revised judgment which then becomes the "final judgment" of the court.

If either party wishes to do so, they may "appeal" the court’s decision to the Court of Appeals. This is the "appeal phase". Here, usually a 3-judge panel reviews the law and facts of the trial court and determines whether there was any error committed by the trial court judge. If so, the Court of Appeals can either reverse the decision of the trial court (and jury) or reverse and remand (send back) the case to the trial court to either retry the entire case or some portion of it.

Then, either party may appeal further to the Texas Supreme Court if desired by a "petition for review" process.

     It seems as if we are forever hearing in the news of multitudes of people being cheated out of their life-savings. There have been articles within the last couple of months of people who thought they were investing only to learn too late they had been  swindled by a Ponzi-scheme! How does this happen? What is a Ponzi scheme?

    A “Ponzi”scheme is named after a criminal by the same name. The scheme can take many forms, but the basis for it is that the person who is operating the scheme lures people to give their money to him/her in the belief that they are “investing” that money with or through the operator, and for doing so will get much better than average returns or profits than they can get otherwise. It cannot work for the operator without the greed and/or naiveté of people (suckers).

    How it actually operates is very simple. You hear through a friend about all the money they have been making while everyone else is lamenting the recent stock market fall, for instance. Your friend tells you that he/she has been getting 15% return on their “investment” per month! Not per year, per month! Well, this sounds too good not to get involved, especially after you start paying attention for several weeks or a month and learn how much your friend has been getting back. So you ask him if he/she can get you “in” on the deal (whatever it is) so that you, too, can make these large returns. Maybe, you say to yourself, “I will just do it for a few weeks and then get out or just invest in one ‘deal’ and then get out.” So, your friend “arranges” for you to be able to get in on the investment. You give your friend your money or you may give it directly to the operator after meeting the operator (they are almost always very warm, outward appearing people that you would trust) and then you wait.

    You usually will receive reports that your money has been invested. This gives you (the sucker) a false sense of security and reinforces the honesty and integrity of the operator. Some give fairly detailed reports on your investment and how much money you are making. You will receive periodic payments (they may be called “profit”, “return”, “income”, “dividend” or any other name) that give you the impression or perception that you finally took a chance and it paid off!

    The next thing you know, an investigator from the securities and exchange commission or state securities department is contacting you to advise that the operator has been arrested and that you should hire a lawyer-quick! What happened?

    The operator probably took your money and either really never invested it at all or invested it in his/her name, not in your name. Usually, they do this with several people. So, when they receive money from a person, they take a portion of their money and send it to you and tell you it is profit or a return on your investment and send you a report showing how you made money. There it is - right there in black and white—it seems! But, in reality, you did not make anything. You were cheated. When you attempt to get your money back, you usually cannot get it back. Sometimes, the operator sends you a “dividend” from the money you sent to him/her in an attempt to stall you, but that is only a short-term attempt. In instances such as these, it is rare for an “investor” to ever even get a return of their money much less any profit.

    If you want to read about one of the largest Ponzi schemes ever perpetrated in Dallas, look at my website page “Press”, and then click on the story written by Tim Wyatt of the Dallas Morning News on “Ronald Cohen”.

WATCH OUT!

YES: IF-

you have new additions to the family

a beneficiary dies

your estate exceeds the tax exemption

a person you named as executor has died

you want to change the person named as trustee you want to add a beneficiary

you want to add a trust

    Any of these reasons, and more, could cause you to have to update your will in order to have it meet your current and foreseeable last wishes. Health changes, adjusted goals, family breakups, deaths and living arrangements make for will updates. There is no certain time to change a will and many wait too long to make changes they wish they had made– or their beneficiaries do!

    There are two ways to change a will. You can either do an amendment to your will called a “codicil” or make a completely new will. What you cannot do is make handwritten changes to your existing typed will. This will void the will at worst or not be recognized at best.

    A disadvantage to the codicil is that there are two documents to keep up with rather than just one, the will and the codicil. If the codicil becomes lost, the old will might get enforced, completely disregarding the true wishes of the maker. A new will usually will cost more-but not always. Major changes can be more difficult to make via a codicil than by making a new will.

(Includes case summaries from West’s Texas Cases)

Acknowledgment, Affidavit or Verification  

An acknowledgment is a written statement by a notary public to the effect that the signer of a document (attached) stated under oath (acknowledged) that the signature on the document is, in fact, that of the person and that the consideration (money, promise) expressed in the document was, in fact, the reason or basis for the transaction or event recited (shown) in the document. There are no factual statements sworn to as being true contained in it.

On the other hand, an affidavit is a written statement of facts contained in the affidavit itself sworn to and signed by that person before a notary public as being within the personal knowledge of that person true and correct. An affidavit need not be attached to another document. It is a document in and of itself, whereas an acknowledgment is always a part of another instrument.

A verification is a sworn statement that the contents of an attached document are true and correct and that the affiant (signer of the verification) has knowledge of their truth and correctness.

! Why do we record documents with the County Clerk?

The purpose of recording documents (like deeds and liens affecting real estate) is to give notice to others of the interest (ownership, financing, etc. ) in a particular property of the person doing the filing. It permits a prospective buyer to be certain that a seller of real estate owns the property to be sold and what, if any, outstanding claims (liens, judgments) exist against that property. A document cannot be filed with the county clerk in the general filing records unless it has an acknowledgment attached to it.

At-Will Employment- Texas is an “at-will” employment state. That means that an employer can fire an employee for any reason at all or for no reason at all with the general exception that an employer cannot fire an employee based upon a statutorily prohibited basis (e.g., sex, race, religion, national origin, for jury service, for filing a worker’s compensation claim, etc.) or if there is an employment contract or union agreement in place, or if the employee is in civil service.

Common Law-The common law still exists in Texas today. It is the body of law that has developed through court decisions in interpreting statutes and providing decisions where no statutory law exists. Statutory law controls over the common law in the event of a conflict. The tough part is that the legislature does not always entirely or expressly replace the common law. Thus, courts have to interpret the intent of the legislature in these instances and determine where to draw the line between the two.

Damages- can mean monetary loss (or its equivalent valued in terms of dollars) or physical loss and  frequently is used interchangeably with the term "injury" in that regard.  Usually, however, "injury" refers to the loss or destruction or physical manifestation suffered and "damages" refers to the monetary value of the injury or loss suffered and the amount to be paid in restitution.  When the loss is measurable strictly in terms of dollars, as in the case of a breach of contract, or property loss, where the measure of damages is the lost profit or replacement cost of the property, the term "damages" is an appropriate term to use as meaning both the injury and the damages.

Future Damages—”Reasonable probability” rule applies to calculate awards for future damages arising from personal injuries.

Injuries and “Damages” are synonymous terms and widely used interchangeably in law. Both terms include physical and mental injuries suffered by a person as well as physical injury to their property. Also, both are used to refer to monetary losses as measured by the cost of repair or replacement or future care. This can be confusing to jurors when they hear one term used sometimes and the other term used in the jury charge which they take back to the jury room with them to render their verdict.

Jurors often incorrectly think of “injuries” as being limited to the harm suffered by a person for physical and/or mental injuries and “damages” as being harm to a person’s property and business

Subpoena-If you are subpoenaed to appear as a witness in a state court, you do not have to attend unless there is attached to it $10.00 cash. The distance which you may be required to attend a court proceeding is up to150 miles!

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214/369-9918

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     We  would like to assist you with your legal matters in the areas of business and real estate, probate and family law. We will bring our years of legal experience and resources to your side of the issue backed by our team of medical, vocational, economic, business, engineering, accounting and property valuation consultants as may be of assistance in your case.  

     Call or email and let us help you with your case! 

*We provide free consultation sufficient to permit us to determine if we can be of assistance to you. There is no charge if we cannot assist you. Fees are charged if we accept your case.  We do not provide free legal advice, however.

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 McCroryLawFirm.com

214/369-9918

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Except as otherwise agreed, in contingent fee cases, there is no attorney’s fees unless you recover. Court costs and litigation expenses  are paid by the client.  Any medical costs are the sole responsibility of the client.  No contingent fees in Family Law Matters.    

Note:  Facts of each case are different.  A successful history is not necessarily indicative of future results.