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Recent Blog Posts
Spotting Yelp Review Laundering (Houston's MGA Garage Door)
The left torsion spring on our garage door broke, so I looked for a replacement part.
I called MGA Garage Door in Houston, and was told that they don't sell parts, but would send out a service guy to give me an estimate.
It turns out that the companies advertising "garage door parts" don't sell them. They're service companies. And they've got you over a barrel because if your garage door has broken there's a 50% chance your car is on the inside, and a greater chance that you want your car on the other side than it's on.
So $70 to get the part from Amazon, plus a week with the garage door mostly out of commission; or more to pay someone to fix the garage door today.
Fair enough. I made an appointment for an estimate with MGA Garage Door. I asked them how much, and they said "$65 and up for the spring, and $45 and up for the service." This last made me a bit suspicious-I know what the service is (replace and adjust both torsion springs) and what the parts are (245 X 2 X 29 springs). A reputable garage-door company should be able give an estimate based on that information (and, as it turns out, a reputable garage-door company can-two companies gave me quotes of $250 and $270).
… I Hate People
This weekend my kid and I took a machining class, learning the basics of running a milling machine. The instructor, a Greenfield-grade curmudgeon, had several stories of people using his machines incompetently and breaking things. The stories all ended, "and that's why I hate people."
Last Friday the Vermont Supreme Court in State v. Vanburen held that state's revenge-porn statute constitutional. Eric Goldman has a good first analysis of the opinion.
The court found, correctly, "that ‘revenge porn' does not fallwithin an established categorical exception to full First Amendment protection," and declined, correctly, "to predict that the U.S. Supreme Court would recognize a new category." So the statute is unconstitutional, right?
Please Explain this Scam
Every month or so for about the last year I've received an email purportedly marketing "estimators," "estimating services," or "material take-offs."
Emails have been from:
"Luke Shaw" of "International Estimating, LLC," 14 East, 4th Street, Suite 405, New York City, NY 10012;
"David Jackson" of "International Estimating, LLC," 14 East, New York City, NY;
"Jacky Lee" of "International Estimating, LLC," 14 East, 4th Street, Suite 405, New York City, NY 10012;
"David Jackson," again, of "International Estimating, LLC," 14 East, New York City, NY; and
"Jack Haber" of "Intl MEP Estimating, LLC," 2701 Ponce De Leon Blvd, Suite 201, Coral Gables, FL 33134.
International Estimating, LLC has a houzz.com page written in Indian English:
Dear Sir/Madam, We are providing reliable and comprehensible Takeoffs/cost estimates to our clients through information & knowledge developed over one and a half decade in the business.We claim 98% accuracy in all trades/scope take-offs because we are utilizing certified software and a team of experienced estimators and civil engineers is working on them.We provide estimates with detailed line items and we follow CSI divisions for client's convenience.Currently we are offering lowest rates in the market.Send over the plans so we can give you a quotation for price and turnaround time. Please let me know if you have any questions.ThanksKind Regards,Mark HenrySenior Business Development ManagerINTERNATIONAL ESTIMATING, LLC14 East, 4th Street, Suite 405, New York City, NY 10012Tel: (718)-450-9282Email: mh@internationalestimating.comAlt Email: markhennryie@gmail.comWeb: internationalestimating.comServices ProvidedCost Estimation, Quantities take-off & Material take-offAreas ServedALL STATE OF USA & CANADA
Are Jury Trials Alive and Well in Texas?
And I think it's obvious that >95% of criminal convictions-including people who later turn out to be incontrovertibly innocent-being obtained through guilty pleas is deeply concerning. If you don't-and I still can't tell because you won't say-then we'll have to agree to disagree.- Clark Neily (@ConLawWarrior) August 11, 2018
I wrote on this topic some years ago, here. My sense then was that the slow death of the jury trial in federal criminal cases did not reflect what was happening here in Texas:
Closer to earth, where most criminal prosecutions actually take place, the dynamic can be quite different.
In our discussion on Twitter, Clark mixed two ideas: Type I errors in the criminal justice system, and too-common jury-trial waivers. Errors in the criminal-justice system-actually innocent people being found guilty-are deeply concerning. But such errors happen both through guilty pleas and through jury trials. (Every incontrovertibly innocent person sent to death row was sent there by a jury.)
The State's Embarrassing Revenge-Porn Briefs
(b) A person commits an offense if:(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;(3) the disclosure of the visual material causes harm to the depicted person; and(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:(A) any accompanying or subsequent information or material related to the visual material; or(B) information or material provided by a third party in response to the disclosure of the visual material.
The State Prosecuting Attorney, the Attorney General, and now the Galveston County District Attorney have all argued that the Tyler Court of Appeals in Jones should have interpreted subsection (b)(2) of section 21.16 of the Texas Penal Code to mean that a person commits an offense if
Free Speech: It's Not That Complicated.
"The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs."
The legislature must strike a balance between sexual-privacy rights and the First Amendment.
Because revenge porn does not fall within one of the enumerated categories of unprotected speech under the jurisprudence of the United States Supreme Court, legislators must narrowly craft statutes to avoid infringing on important First Amendment rights.
Applying the analysis of [Thompson], revenge porn likely constitutes protected speech because nonconsensual photography and visual recordings are inherently expressive, and the First Amendment protects their distribution.... This conundrum means that in order to pass constitutional muster, states must draft statutes using the least-restrictive means to achieve the purpose of safeguarding privacy interests and ensure that the statute does not prohibit a substantial amount of protected speech for overbreadth-doctrine purposes.
Two Wins to Sandwich that Loss
I wrote yesterday about a loss, so I hope you'll indulge me in talking about two recent wins, one before the loss and one after.
A couple of weeks ago I described my bizarre oral-argument experience in Tyler, where the prosecutor (bless his heart) melted down in front of the court. I wrote:
When you're arguing with the court about how big you're going to win, it's a pretty good day.
Here is the argument, for you appeal junkies. It's not my best work-I get off to a rough start-but the prosecutor's meltdown, and his subsequent concession that the statute is overbroad, are well worth it.
And indeed, it turned out to be a very good day. I didn't win as big as I hoped, but I won big: the Tyler Court of Appeals held unconstitutional Texas's revenge-porn statute, which I had been calling unconstitutional since before it was passed.
Add 43.262 to The List
This is a truly bizarre law. It presumes that there is "an interest in sex" that is not prurient. We are not sure what kind of interest that is. We are also left guessing at who gets to determine whether an image has sex appeal....What the "prurient interest in sex" means is anyone's guess. It would also be interesting to learn who the legislature believes should determine whether an image's artistic value is "serious."
Said dude is talking about the new Texas Possession or Promotion of Lewd Visual Material Depicting Child statute, section 43.262 of the Texas Penal Code:
(a) In this section:(1) "Promote" and "sexual conduct" have the meanings assigned by Section 43.25.(2) "Visual material" has the meaning assigned by Section 43.26.(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:(1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;(2) appeals to the prurient interest in sex; and(3) has no serious literary, artistic, political, or scientific value.(c) An offense under this section is a state jail felony, except that the offense is:(1) a felony of the third degree if it is shown on the trial of the offense that the person has been previously convicted one time of an offense under this section or Section 43.26; and(2) a felony of the second degree if it is shown on the trial of the offense that the person has been previously convicted two or more times of an offense under this section or Section 43.26.(d) It is not a defense to prosecution under this section that the depicted child consented to the creation of the visual material.
Randy Sorrels for State Bar President
I don't think I've ever voted in a State Bar election. I've certainly never endorsed a candidate.
But I feel compelled to endorse a candidate in this year's election for State Bar President.
Randy Sorrels is running on a platform of 12 Ideas (12! Like jurors! Or apostles! Or months!) most of which will make life better for us without making life worse for our clients. The few that I don't care for ("Texas Lawyers' Briefcase"?) at least won't do any harm.
Randy's opponent is running on negative campaigning and robocalls. (You want me to vote against you? Robocall me!)
If you're a Texas lawyer and are at best apathetic about who runs the State Bar, it's not too late to give Randy your vote. He is a gentleman, a scholar, and a true lawyer's lawyer.
And if you think I'm wrong, please leave a comment below.
A Loss
I had argued to the jury that criminal court is the wrong place for common sense. The argument did not go over well-I got feedback that I seemed to think I was smarter than the jurors.
In deliberation jurors used their common sense, which flew in the face of the expert testimony in the trial.
Specifically, they said after the verdict that my client's BAC at the time of driving "must have been" higher than 80 minutes later, despite expert testimony that it was impossible to say what the BAC at the time of driving was from the blood test 80 minutes later. I hadn't presented the expert testimony well enough for the jurors to absorb it. I should have nailed it down better.
"Common sense" is not intelligence, reason, or even common knowledge. It's what we use to justify decisions that we can't (or can't be bothered to) explain in terms of intelligence, reason, and knowledge. So "don't fall back on common sense" is not meant as "you're not smart enough, but rather as "you're too smart for that."
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