On Fox’s Immigration View blog, partner Alka Bahal provides a detailed exploration of the I-9 inspection process, in the wake of a recent surge in I-9 audits carried out by the U.S. Immigration and Customs Enforcement (ICE) agency. All employers in the United States are required to have a Form I-9 on file for all employees to verify their identity and authorization to work in the United States.

We invite you to read Alka’s information-packed post addressing concerns facing employers:

Employers Beware: ICE Is Ramping Up I-9 Audits to Record Levels

It happens to family lawyers all the time.  A new client comes in to meet with us for an initial consultation and tells us that his or her spouse controlled all of the money and assets.  The new client is panicked, because he or she has no idea what the parties own, what the parties’ liabilities are, or even where the majority of the parties’ accounts are held.

In the normal case, most Texas family lawyers know what to do – we ask the opposing party to fill out a sworn inventory and appraisement of all of the parties’ assets and liabilities.  We serve written discovery requests and, if necessary, we subpoena financial institutions to obtain account statements.

But Texas is consistently one of the fastest growing states in the nation with approximately 140,000 new domestic migrants and 82,000 international migrants moving here each year.[1]  Obtaining financial records is relatively straightforward when you are serving a subpoena on the local bank that holds your client’s accounts, but what happens when you learn that assets are held abroad?  From bank and brokerage accounts to business entities, it is increasingly likely that the family law practitioner will need to obtain discovery internationally.  So what do we do when we learn there are assets held in Mexico or the United Kingdom and the opposing party says they do not have documents regarding those assets in their possession, custody, or control?French bulldog with magnifying glass

The United States and sixty other nations are signatories to the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, more commonly referred to as the Hague Evidence Convention.[2]  The Convention’s stated purpose is to “improve mutual judicial cooperation in civil or commercial matters”[3] and to “enlarge the devices for the taking of evidence.”[4]  The Convention sets forth a process for obtaining pre-trial discovery from contracting nations – litigants can:  1) request the US Court submit a Letter of Request to obtain evidence located in a contracting state; and 2) use US diplomatic or consular agents located in the contracting state to take depositions (but not obtain documents) in the contracting state.

In the family law context, litigants are most likely to use Letters of Request to secure the production or inspection of documents or to obtain access to real or personal property so the property can be inspected.  In short, a litigant will ask the Court in the US to submit a Letter of Request setting forth the nature of the pending proceeding and describing the evidence requested.  The Letter of Request will then be transmitted to the designated central authority of the contracting state, who will execute the request in accordance with the laws of the contracting state.

The Hague Evidence Convention is not perfect – many signatories to the Convention signed with reservations that limit the types of pre-trial discovery that may be conducted – practitioners should be sure to determine whether the country where evidence is located entered into the Convention with reservations.  Obtaining evidence under the Convention can also be time consuming, and litigants will want to explore all avenues for obtaining the evidence to determine whether it may be secured using the liberal discovery rules of the US judicial system.  However, the Convention provides Texas lawyers with an additional and important tool for conducting discovery in an increasingly international and diverse state.

[1] https://www.census.gov/library/stories/2017/08/texas-population-trends.html.

[2] https://www.hcch.net/en/instruments/conventions/full-text/?cid=82.

[3] https://www.hcch.net/en/instruments/conventions/full-text/?cid=82.

[4] Ph. W. Amram, Explanatory Report on the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, https://assets.hcch.net/upload/expl20e.pdf.

There is much confusion in the public about the difference between a trade secret and a patent. Both are associated with innovation, and each constitute a business asset that should be vigorously protected. But why do some companies choose to patent their innovation while others choose to cloak it as a trade secret? The Uniform Trade Secrets Act defines a trade secret as information that: (1) derives economic value from not being generally known or readily ascertainable by proper means; and (2) is the subject of “reasonable efforts” under the circumstances to maintain its secrecy. A properly-guarded trade secret could potentially last forever, since it derives its legal protection from its inherent secret nature. On the other hand, patent protection only lasts for 20 years, and patents can only be protected through public disclosure. Specifically, patent protection is acquired through a public application process with the United States Patent and Trademark Office. On the surface, it would appear that trade secret protection is the preferred route due to the potential for perpetual protection. However, there is a risk with considering such an approach. Unlike with patents, it is perfectly legal to reverse engineer and copy a trade secret.  Once someone is able to successfully determine the components of a trade secret, the owner is without recourse and could instantly lose the peace of mind and protection that was enjoyed up to that point. However, with a patent an owner in effect has a “monopoly” for the duration of the patent, and it can exploit this powerful position by excluding all others who dare to manufacture a similar product. This is the case even if someone else independently came up with the same idea. Of course, a patent owner pays a price for this 20 year window of exclusivity. Once the patent expires, the once-protected idea enters the public domain and can then be manufactured and sold by anyone. Therefore, the patent owner’s goal will be to maximize the profits of their invention during this 20 year period.

Although trade secret owners can potentially enjoy profits indefinitely, they can be knocked off their perch at any moment if it is determined by a court of law that the idea does not qualify for trade secret protection (either because the information is readily ascertainable by other means, or because sufficient measures were not put in place to protect the idea). The trade secret owner can also lose the benefits of protection due to events beyond their control. For example, although most conscientious business owners will procure the requisite non-disclosure and confidentiality agreements from their employees, there is no accounting for a rogue or disgruntled employee beaming out these secrets to competitors. Even if an owner files a lawsuit to protect its trade secrets, there is an inherent tug-of-war between the secretive nature of the information at stake and the policy of open courts to the public. Although courts typically allow sealed filings and protective orders to be implemented in lawsuits, suing another party may require disclosure of trade secrets due to the burden of proof placed on plaintiffs.

Determining whether to seek patent protection or trade secret protection requires a realistic analysis based on the nature of the company as well as the type of invention at stake. Budget constraints should factor into this analysis, as well as a clear protocol on how the intellectual property of the business will be protected and enforced in the future. The following are some questions to consider when making this decision:

  • Is it possible for someone to reverse engineer the idea?
  • Is it possible for the invention to be independently discovered in the future?
  • Will the idea still be useful and profitable more than 20 years down the road?
  • Does the company have the monetary and legal resources to pursue patent protection?
  • Does the company have a revolving door of employees whereby adequate protection of the idea cannot be ensured?

Not everyone can be a Fortune 100 company, with their secrets locked in expensive vaults and with costly measures in place to ensure secrecy. The answer is not always clear, and the ultimate decision will be based on a sliding scale of risk that will be commensurate with the vision and goals of the company.

The Tax Cuts and Jobs Act of 2017 changes the income tax planning for all businesses, including for small business owners. It is now more important than ever for business owners to consult with their tax advisors before setting up new business entities, and to consider restructuring their existing business entities to take advantage of potentially significant tax benefits under the new law.

Prior tax laws favored structuring businesses as pass-through entities, such as limited liability companies and S corporations, to avoid the double layer of taxation faced by a traditional C corporation. Under a pass-through structure, taxes on business profits are not paid directly by the business entity, instead, they are passed through and paid by the business owner based on his or her individual tax rate. In contrast, taxes on business profits of a C corporation are paid both at the business entity level and then again when profits are paid to the business owner as dividends.

WHAT HAS CHANGED?

Two of the biggest changes affecting businesses under the new tax act are:

  • the significant reduction in tax rates for C corporations – – from 35% to 21%, and
  • a new 20% business income deduction for certain qualified business income from pass-through entities.

Many professional service businesses (such as doctors, lawyers, accountants, and financial advisors) are excluded from receiving the deduction unless the business owner(s) earns less than specific threshold amounts ($157,500 for a single taxpayer, and $315,000 for a joint return). The deduction is also subject to additional wage-based limitations. To further complicate matters, the tax rate reduction for C corporations is a permanent change, whereas the pass-through business deduction is set to expire after 2025 (unless extended). For additional discussion of the deduction, including more details on specifically excluded service businesses, how the deduction is calculated and the wage limitations, see a recent post by my Fox colleagues.

WHO SHOULD CONSIDER USING A C CORPORATION?

Under the new tax act, there are a couple of situations that would likely warrant using or converting to a C corporation:

  • businesses that retain significant profits for reinvestment, rather than distributing profits out to its owners; and
  • professional service businesses who do not qualify for the 20% pass-through business income deduction and whose owners make more than the income thresholds (at least to assess the possibility of restructuring into separate businesses).

There are also legal and accounting costs to consider and weigh against the potential tax savings. If a current business is structured as an LLC, converting to a C corporation may be as simple as making a new tax election and amending the current organizational documents, or may involve a more complicated process of filing a conversion and creating a new set of corporate organizational documents.

Finally, as with all new tax legislation, there are still a lot of unanswered questions requiring further guidance, particularly as to the calculation and application of the seemingly simple but complex limitations applicable to the 20% pass-through business deduction. Nevertheless, business owners should be consulting with their tax advisors on the best structure or restructure of their business entities.

Much like the actual “bike share” bikes themselves, the topic of bike share programs seems to pop up around every corner in Dallas. Let me start by going on record as being pro-bike share.

But not everyone is a fan. Complaints about the bikes seemingly ring from every neighborhood from Oak Cliff to Preston Hollow. Perhaps we have all forgotten how impossible it used to be to bike around Dallas just 10 years ago. Maybe we need to realize this is not our daddy’s Dallas.

Take a drive through Downtown or Uptown on a weekend or, better yet, take a ride on a bike share bike. Look around. There are people biking everywhere. It’s all so beautiful.

Well, except for the bike share bikes themselves.

There are supposedly more than 20,000 bike share bikes currently located in Dallas, more than twice as much as New York City. They are scattered along the sidewalks, often laying on their side and inching over the curb into the street. Head to White Rock Lake and find some drowning in the shallow water near the shore. Make your way to Klyde Warren Park and find them strewn about, turning into a makeshift obstacle course for visitors. Or head to Highland Park and find a dozen parked in the front yard of a luxury home, the hip new alternative to toilet papering houses.

Many argue the bikes have become a nuisance and every Dallasite’s favorite gripe. The residents are declaring war on the two-wheeled invaders clogging their streets and sidewalks. They want laws protecting their city, but no one really knows what those laws should be.

In January, Dallas City Manager T.C. Broadnax issued a letter to LimeBike, Ofo, VBikes, Spin, and Mobike giving a February deadline to clean up their messes. Broadnax threatened the city “may be left with no choice but to begin removing the bicycles in its rights of way, sidewalks, trails and/or trailheads that are identified as obstructions or hazards.” February came and went, and no laws were passed by the City of Dallas to rectify the problem. Instead, during a February 26, 2018 City Hall Meeting, attendees were informed regulations are coming, likely in the fall. So what is the holdup?

Perhaps the City is gauging the success of another major city that is attempting to solve their own bike share headaches.

After Seattle determined public bike share programs with required docking stations failed to encourage potential riders, it shut down its city-owned “Pronto” bike share system and opened its doors to privately owned dockless bike share programs like those in Dallas. Unlike Dallas, before allowing the companies to roll out their bikes, Seattle enacted regulations to govern how they could operate. The regulations require bikes be parked upright in areas of sidewalks with trees, poles, and other fixtures, or on a designated bicycle rack. On blocks without sidewalks, the bikes must be parked in a way that does not impede pedestrian or vehicle traffic. In addition, the bike share companies must provide a contact to the Seattle Department of Transportation (SDOT) to call for staff to relocate or rebalance bikes within the specified time limits (two hours on weekdays, ten hours on weekends and holidays). The city can assess penalties for their crews having to relocate or remove bikes from any prohibited locations.

Seattle’s regulations were introduced in 2017, and the city is currently reviewing data obtained through the bike share companies and analyzing the success of its current permitting requirements. However, the city has already conceded the parking issues remained the most obvious problem. SDOT spokesperson Mafara Hobson identified problems with holding riders responsible for parking the bikes in improper spots when it could not be proven whether the rider actually parked incorrectly or someone came along later and moved the bike. As of the publishing of this post, SDOT was reviewing its options, and hopeful to have its final parking and storage requirements in place by Summer 2018, coincidentally just before Dallas plans to unveil its plan.

Thus, it appears Dallasites will have to embrace the beauty of bikes scattered among their streets for the foreseeable future while they await their own set of rules and regulations. Perhaps if they squint hard enough, they can imagine the neon bikes as the bright lights of New York City or Las Vegas… both of which actually have bike share regulations.

In the age of social media, new platforms struggle to dethrone the reigning kings of Twitter, Facebook, and Instagram.  But one application, Vero, has gained traction in its attempt to replace Instagram.  Launched in 2015, Vero touts itself as a “true social” experience where users can share photos, links, music, movies, books, and location check-ins.  Although Vero launched in 2015, it shot to the top of Apple’s App Store (from #566 to #1) and Google Play seemingly overnight and currently boasts nearly three million users.  Its sudden surge in popularity is attributed to a change in Instagram’s algorithm regarding chronological order of posts and Vero’s initial promise that only the first million users would avoid paying a subscription fee (although, at the time of this publication, the application is still free until further notice).

With millions of users joining Vero in one short week, controversy quickly followed.  One of the largest complaints against Vero is its terms and conditions, which many argue as too broad and sweeping.  Specifically, many users refused to join or deleted their accounts after realizing they granted Vero “a limited, royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, translate, distribute, syndicate, publicly perform, publicly display, make derivative works of, or otherwise use your User Content.”  Royalty-free?  Irrevocable?  Sounds scary to the average user.

But if those terms are a concern, we caution you to inspect the terms and conditions of all your social media platforms; they each use similar language.

Every tweet grants Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content […]. This license authorizes us to make your Content available to the rest of the world and to let others do the same.”  Don’t be surprised if Facebook itself “likes” the video you posted of your adorable niece, because you granted them “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook.”  Posted a perfectly filtered photo of your brunch to Instagram?  In addition to giving them envy over your eggs Benedict, you also gave Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content.”

The use of these platforms themselves are an acceptance of their respective contractual terms, and like any contract, it is imperative to understand exactly to what you have agreed.  Ultimately, Vero’s terms and conditions are no broader or narrower than most platforms’ terms and conditions.  There are arguments for and against all social media platforms that go beyond their respective terms and conditions, but if your use is conditional on those terms, consider reevaluating your involvement with any social media platform.

 

 

Each day more and more women come forward to share their stories of abuse within the workplace and without. And people are actually listening.

In the not-so-distant past, the primary concern for some employers may have been the legal consequence of firing a worker after she internally reported sexual harassment. Now, as women become more emboldened to speak up and as the public becomes more receptive to listening, employers have more to worry about than just the legal repercussions. In the year 2018, merely an accusation could end a career, or even a business. Thus, it is more important now than ever for employers to implement workplace procedures for preventing harassment and properly handling accusations.

Addressing sexual harassment requires first understanding what it looks like. It might surprise you to know that harassment is likely much broader than you think. In general there are two types of sexual harassment—quid pro quo and hostile work environment. The hostile work environment cases are typically more difficult to prove because the question arises of just how hostile the environment must be.

Sexual harassment falls under the category of sex discrimination, which is impermissible under Title VII of the Civil Rights Act of 1964. To be actionable under Title VII, the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (internal quotations omitted). A worker need not suffer an adverse economic effect to meet this standard. And, the inquiry does not center on whether the sex-related (not sexual-related) conduct was voluntary, but rather focuses on the unwelcome nature of the behavior.

Thus, even conduct that appears to be tolerated by a subordinate or coworker may constitute sexual harassment if the advances are unwelcome. Considering that the courts struggle with the concept of unwelcome versus welcome conduct, employers and their supervisors should hesitate to assume that seemingly innocent behavior is ok with a female (or even a male) colleague.

When employers receive a complaint of sexual harassment, they must act. In the current climate, the public will not accept a company’s claim of ignorance. Sticking your head in the sand is no longer a viable option when a woman comes to you to say “me too.”

 

77064643 – online slap, the relationship of men and women

The Texas Citizens Participation Act (“TCPA”)[1], enacted in 2011, is the Texas version of an Anti-SLAPP[2] statute, which have been enacted by over 30 states around the country to protect free speech and the right of association of private citizens under the First Amendment from harassing and baseless litigation aimed at curtailing those rights.

Intended for a worthy and important goal, the statutes were shepherded by an interesting coalition of large media corporations, law professors and civil libertarians. The Texas statute was also passed unanimously by both the Texas House and Senate-indeed, seemingly, everyone can agree that the right of private citizens to exercise their First Amendment rights to free speech and free association should not be chilled by meritless lawsuits.

However, because the wording of the TCPA is so broad (and goes far beyond traditional protections of free speech,) and because the Texas Supreme Court, and various courts of appeal around the state, have not backed down from enforcing the statute, exactly as written, lawsuits one would never expect to infringe upon First Amendment Rights have been tossed out of court.

The result has been to create a tool that arguably has been used to shut down legitimate claims under the guise of protecting citizens’ First Amendment Rights. Practitioners and concerned citizens alike should be aware of the statute and the surprising ways in which it is applied.

The Statutory Provisions.

Some of the key definitions under the TCPA include:

“(2) ‘Exercise of the right of association’ means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

(3) ‘Exercise of the right of free speech’ means a communication made in connection with a matter of public concern.

. . .

(7) ‘Matter of public concern’ includes an issue related to:

(A) health or safety;

(B) environmental, economic, or community well-being;

(C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace.”[3]

Court Decisions and Unintended Consequences.

The Texas Supreme Court first set the example for interpreting the statute and enforcing it-exactly as written-in a seemingly surprising manner in the Coleman decision.[4]

In Coleman, a former employee sued ExxonMobil Pipeline for defamation, alleging that his employer had wrongfully accused him of falsifying records when terminating his employment.

ExxonMobil filed a motion to dismiss the suit under the TCPA. The Texas Supreme Court held the defamation action should be dismissed under the TCPA because the decision to terminate the employee was “related to health and safety, or the environmental, economic, or community well-being” and was a matter of public concern under the plain meaning of the statute, despite the communication of the reasoning for termination being transmitted solely between the management of the company and with Coleman himself.

According to his former employer, Coleman had failed to properly measure or report the correct measurement of petroleum products in a storage tank. That pedestrian reason for his dismissal was transformed into ExxonMobil Pipeline’s First Amendment right to free speech because, under the court’s reasoning and ExxonMobil’s argument, mismeasurement could have led to an accident-thus, meeting the statutory definition of a “matter of public concern” under the portion of the definition which includes the language, “an issue related to: health or safety . . . [or] environmental, economic, or community well-being . . .”

The Coleman decision laid down a marker for the courts of appeal around the state that the plain meaning of the statutory language must be enforced regardless of the impact on seemingly legitimate lawsuits or the original intent of the statute’s drafters.

Elite Autobody Decision.

The Third Court of Appeals at Austin has issued decisions containing possibly the most-extreme examples of the application of the Texas Supreme Court’s logic in interpreting the plain meaning of the TCPA, as laid out in Coleman.

In the Elite Autobody[5] decision, the Austin court of appeals applied Coleman to a TCPA motion to dismiss in a traditional, run of the mill, commercial trade secrets case between two competing Autobody repair shops in Austin, Texas.

Employees left Autocraft to work for Elite. Elite sued Autocraft claiming the employees had stolen trade secrets (typical internal company information including employee pay and personnel information, customer information and alleged compilations of proprietary technical data.) These type of suits generally turn on whether or not the alleged trade secrets actually deserve trade secret protection. However, Autocraft also filed a motion to dismiss under the TCPA.

The court held that the suit was properly dismissed because of the (broad and) plain meaning of the statute, the suit was found to infringe on the departed employees’ right of association because they were free to go to a new employer and their communication of their former employer’s company information was held to be a “communication between individuals” who were joining together to “pursue common interests.”

Despite the fact that the original proponents of the statute had the lofty goal of protecting citizens’ First Amendment rights from harassing and chilling lawsuits, the literal wording of the statute has lead Texas courts to apply it to-and dismiss-routine competition cases, and cases further far afield.

Out-of-Control Helicopter Parenting Condoned or Rendered Unactionable?

The Third Court of Appeals has recently handed down a more extreme example of this philosophy of statutory construction in its decision in Cavin v. Abbott.[6]

The Cavins were upset that their adult daughter, Kristin was dating Bill Abbott. The turn of events that followed is a harrowing reminder of the potential abuse of over-parenting-to say the least.[7] The decision itself demonstrates how far the “plain meaning” of the statute extends.

Kristin, in her mid-20’s was living in an apartment paid for by her parents while attending graduate school at the University of Texas. She met Bill Abbott through work and they began dating. Bill was older than Kristen and Kristen’s parents made it known, with increasing intensity that they did not want the couple to date-despite Kristin’s repeated protestations of her love and requests that they back-off.

Eventually, Kristin’s parents (allegedly) physically assaulted Kristin (on two separate occasions-one of which resulted in her mother’s arrest,) wrote scathing social media posts, and contacted both Bill’s and Kristen’s employers, accusing Bill of being a sociopath and using Marxist mind-control techniques to brainwash their daughter. When family members and friends wrote Kristin to side with her or give her encouragement, the Cavins sued them in lawsuits demanding damages of a million dollars, and more. A myriad of horrifying actions continued. Kristin eventually changed her last name and moved in with Bill, ultimately marrying him. But, Kristen’s parents apparently remained undeterred. The Cavins hired a private investigator and allegedly instructed him to “rattle” Bill by closely following him around, in an open and obvious manner. The Cavins had appeared at Kristin’s work to claim she had been kidnapped and was being held against her will. And, the Cavins recorded and posted a series of videos on the Internet and social media sites discussing the abusive-relationship narrative they were pushing in relation to Kristin and Bill.

Ultimately, Bill and Kristen hired a lawyer to file suit to try to stop Kristen’s parents from pursuing their campaign against the couple. The Abbotts sued the Cavins for conversion, defamation, tortious interference, abuse of process, assault, intrusion on seclusion/invasion of privacy and intentional infliction of emotional distress.

The Cavins filed a motion to dismiss under the TCPA.

The Austin court of appeals dismissed the case, except for the assault claim. The reasoning of the court followed the same logic laid out in Coleman. The court emphasized that the “exercise of the right of free speech” set forth in the statute, as to a matter of “public concern” “includes an issue related to . . . health or safety.” The court held that the communication need only be made “in connection with” an issue related to “health and safety.”

Citing the Coleman precedent, the Austin court stated the Texas Supreme Court has made it clear the TCPA must be enforced, exactly as written. Because the Cavins’ communications about their daughter’s relationship with Bill were literally made in connection with a matter related to their daughter’s health and safety, the TCPA applied and all of the claims had to be dismissed (with the exception of the assault charge relating to a physical altercation with Kristen’s father since the TCPA expressly excepts claims for assault.)

Legacy of Decisions Applying Coleman.

The Supreme Court has made it clear that he statute is to be applied exactly as written-damn the consequences.

Whether you believe the Third Court of Appeals at Austin is on a mission to prod the legislature to revise the TCPA and narrow its broad language, or that they are merely dutifully following Supreme Court precedent, it is also clear that the TCPA is here to stay unless and until it is revised. The TCPA must be incorporated into the litigator’s toolbox and considered very carefully in strategic planning for prosecution or defense of private lawsuits. Citizens in the State of Texas, in turn, should note the application of the courts’ literal interpretation of a well-intentioned law-and both the good and the ill effects, which have resulted.

[1] The Texas Citizens Participation Act, See Tex.Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011.

[2] SLAPP: Strategic Lawsuits Against Public Participation.

[3] See Tex.Civ. Prac. & Rem. Code Ann. §§ 27.001 (2), (3) and (7).

[4] ExxonMobil Pipeline Co. v. Coleman, 512 S.W. 3d 895 (2017).

[5] Elite Autobody LLC v. Autocraft Bodywerks, Inc.,

[6] Cavin v. Abbott, __S.W.3d __, 2017 WL 3044583 (Tex.App.—Austin 2017).

[7] Based upon the “facts” taken as true by the Third Court of Appeals in its decision.

During the last five years, the United States has seen a drastic increase in mass shootings.

On November 5, 2017, just after 11:00a.m., a gunman entered a church in Sutherland Springs, Texas and opened fire. That Sunday morning 26 church patrons were killed and another 20 were injured including men, women and children.

On October 1, 2017, a gunman opened fire on a crowd of concertgoers at a music festival in Las Vegas leaving 58 people dead and 851 injured.

On June 12, 2016, a 29-year-old security guard killed 49 people and wounded 58 others in a nightclub in Orlando, Florida.

On December 14, 2012, a man walked into an elementary school and killed 20 children between the ages of six and seven years old, as well as 6 adult staff members.

In the wake of some of the deadliest mass shootings in U.S. history, many businesses, schools and churches are asking themselves whether they should be doing more with regard to security. From a legal standpoint, the answer may be evolving. As mass shootings become more and more frequent in the United States, what should hosts of large groups be doing to protect their patrons from violence and themselves from liability exposure?

Unfortunately, the answer varies widely depending on the circumstances. Factors such as 1) crowd size, 2) location, 3) specific existing threats, 4) previous security problems and 5) the level of vulnerability of patrons are just some of the issues that should be considered. However, what we believe is reasonable and necessary when it comes to security is evolving rapidly. For example, many “soft targets” such as open venues, churches and schools that previously would not have been expected to have private armed security guards, may need to re-evaluate their security plan given the increase in mass shootings across the country.

While we hope we never reach the point where a jury of our peers is judging our security decisions in retrospect, when addressing security needs from a legal standpoint, consider what is reasonable and prudent given the current environment and substantial increase in mass shootings across the country.

The moral answer to this question is outside the scope of this article; however, from a legal standpoint, in a civil lawsuit alleging inadequate security, a jury would likely be asked to determine whether the Defendant was negligent. Negligence is defined as:

The failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances…

In an era where mass shootings are becoming commonplace, churches, schools and businesses should consider that what may have been reasonable (i.e. ordinary prudence) five years ago, is not necessarily reasonable today. At what point does it become negligent to fail to have professional armed security if you are hosting a large, vulnerable group of people? While the answer to this question will vary depending on the circumstances, in the context of a civil lawsuit, a jury will inevitably decide.

So you are a party to a new civil litigation case, which means you have either sued someone or just been sued.  Your lawyer sends you an email that the Court has just set your case for a non-jury trial for a date in the future.  In the same email, your lawyer asks if you want to pay the jury fee, which usually is nominal, and have the matter set for jury trial, or whether you prefer to have the case remain as a non-jury trial.  It is, after all, the client’s decision on whether to have a jury trial or a non-jury trial.  What do you do?

Both types of trials – jury and non-jury – have advantages and disadvantages.  A non-jury trial, also known as a bench trial or a trial before the Judge, generally is more informal than a jury trial,  shorter than a jury trial, and less expensive to prepare for and conduct.   For example, in a non-jury trial, the lawyers do not have to draft a jury charge (the questions the jury will answer, such as who was responsible for the accident, and the percentage of responsibility each party), or have a “charge conference” with the Judge where each side argues that its proposed jury questions should be included in the jury charge.  The charge conference is conducted outside of the presence of the jury, and can last from several hours to an entire day or more, depending on the case.  After the jury charge is finalized, the Judge will read the jury charge to the jury, the lawyers will make closing arguments, and then the jury will retire to the jury room to deliberate.

None of these time-consuming jury charge issues are present in a bench trial.  However, one of the disadvantages of a non-jury trial is that one person – the Judge – hears all the evidence, weighs the credibility of the witnesses, decides which facts are true and not true, rules on evidentiary issues and objections, applies the law to the facts, decides who should win, and the amount of damages awarded, if any.  In a jury trial, the jury hears the evidence, weighs the credibility of the witnesses, decides which facts are true and which are not, decides who should win, and whether any damages should be awarded.  In a jury trial, the Judge’s role is to preside over the trial, rule on evidentiary objections, and apply the law to the facts after the jury has answered the questions on a jury charge – but in most cases, the Judge does get to decide by his-or-herself which party should win.

There are lots of other issues to be considered in deciding whether to have a jury trial or a non-jury trial.  Additionally, a litigant does not always have a choice regarding which type of trial.  We will discuss the additional factors in upcoming posts in this series.