Over the past decade, youth sport concussions have generated a high profile and public interest.  Reports of youth concussions spiked 71 percent between 2010 and 2015, according to a study of nearly 937,000 health insurance claims gathered by Blue Cross and Blue Shield.

Historically, concussions were not considered to be a serious health issue and athletes were told to shrug it off and return to play.  Recognizing such injuries and being proactive are crucial to the safety of young athletes.  It is important that coaches, athletes and parents recognize the symptoms of a concussion and seek treatment.  Early detection can prevent further damage to the brain.

What are signs of a concussion?

Signs of Concussion Immediately after Incident:

• Appears dazed or stunned.
• Loses consciousness (even briefly).
• Can’t recall events prior to or after a hit.
• Moves clumsily.
• Answers questions slowly.
• Shows mood, behavior, or personality changes.

Symptoms of Concussion Reported by Athlete:

• Headache or “pressure” in head.
• Nausea or vomiting.
• Balance problems.
• Dizziness, double or blurry vision.
• Bothered by light or noise
• Feeling sluggish or groggy
• Confusion, or concentration or memory problems
• Depression

Sports are an important part of many young lives.  However, the education of identifying, evaluating, and managing a concussion is a vital necessity for a young athlete’s brain and long-term happiness.  No game is more important than the health of the athlete.

Posted in Blog | No Comments »

A trustee who administers a trust in Texas has certain responsibilities and duties. These duties are commonly known as “fiduciary duties,” and they require a trustee to go “above and beyond” the exercise of ordinary care while carrying out tasks and responsibilities related to the trust.

A trustee’s duties can be grouped broadly into four categories, one of which is the duty of loyalty. The duty of loyalty demands that the trustee put the beneficiary’s interests above his or her own. In other words, if the trustee has a choice between two courses of action, he or she must choose the one that brings the greatest benefit to the beneficiary.

Some trustees find the duty of loyalty helpful as a “tie-breaker” in a situation in which a close call must be made. Others find themselves frustrated by what appears to be a demand for mind-reading. How is it possible to know, for instance, that choosing Investment A over Investment B will offer a better payout, when that payout could be years or even decades in the future?

Texas law does not require trustees to predict the future when they make decisions regarding the trust. However, Texas Trust Code Section 117.007 does require trustees to consider only the best interests of the beneficiary when making investment decisions.

But what if a trust has multiple beneficiaries? In this situation, the trustee may find himself or herself pulled between the conflicting interests of two or more beneficiaries. Section 117.008 of the Texas Trust Code states that in this type of situation, the trustee must act “impartially,” doing his or her best to balance the beneficiaries’ different interests in order to achieve a result that offers the most benefit.

A trustee who uses or takes trust property to benefit himself or herself, instead of handling it for the beneficiary’s benefit, is said to be engaging in “self-dealing.” If concerns about self-dealing arise, the court presumes that the fiduciary was acting unfairly (this is known as the “presumption of unfairness”). It becomes the responsibility of the trustee to prove that his or her actions were fair to the beneficiary – not the beneficiary’s responsibility to prove that they were unfair.

Posted in Blog | No Comments »

Halloween can be a fun-filled evening of frolicking, costumes, and treats.  Unfortunately, it can become a nightmare for your family if your child has an accident.

Children are twice as likely to be killed by a car while walking on Halloween night compared to any other night, according to the Safe Kids WorldWide.  So what can you do this Halloween to keep your kids safe?

Here are a few safety tips to consider:

• Use reflective tape and stickers. Put them on costumes or coats and treat bags.
• Make sure each child has a flashlight or glow stick.
• If possible, choose makeup over masks. It is less likely to impair your child’s vision.
• Kids, and the parents who are supervising them, should stay off the phone and should not text while out trick or treating. If you absolutely must talk or text, stop walking and find a safe place where you won’t be impeding traffic, including other trick-or-treaters on foot.
• If travelling by car, kids should get out on the curb side of the vehicle, not on the street side.
• Good sturdy shoes that fit properly are a must, even if they don’t match the costume.
• Only go to houses with the porch light on. Turning the porch light off is the universal signal that trick-or-treaters are not welcome.
• Follow safe practices for crossing the street. Always look both ways before crossing and never dart out into the road unexpectedly.
• Kids should only accept candy that is commercially wrapped, and should wait to eat their candy until parents can inspect it.

It is easy, due to the excitement and chaos of this holiday, to become distracted and let your guard down.  Teaching your kids about Halloween safety might end up saving them and your family from experiencing a tragic event.  Have a safe and happy Halloween!

Posted in Blog | No Comments »

If you are seeking to protest your property taxes in Texas, you may want to considering the following timetable to ensure you do not miss any paperwork or deadlines.

Jan. 1

Your home’s appraised value for the year is based on its condition – and what the property could sell for – on January 1st of each year. The appraisal district arrives at an appraised value figure by calculating the market value of your property. Your home’s condition on Jan. 1 is all that matters as you look at factors that may affect the value. If your home had significant repair needs on Jan. 1 that were cured by say, March of that year, the house should still be valued as per its January 1 condition.  Likewise, any damage or improvements after this date – say, a tree that falls on your roof in March, or the new bathroom you added in May – won’t affect the taxable value of your home until January 1 of the following year.

Late April/early May

Around this time you should receive a letter from the appraisal district telling you the value of your home for tax purposes. Examine the numbers carefully. If your property is not described correctly or if the value looks out of whack, you can protest it.

May 31

This is the deadline for filing a “Notice of Protest” of your appraised value. You have a couple of options as to how to file. One, you can use the form on the back of the “Notice of Appraised Value” that you received from the appraisal district, since it already has your account information printed on it. Or you may be able to file your protest online at your appraisal district’s website, depending on your county. A benefit of online protesting is that appraisal district staffers can review your information and decide whether to offer you a settlement, potentially without you having to attend a hearing at all.  A downside may be that you could waive your right to an informal hearing, again depending on your county.

As you’re filling out the Notice of Protest, pay particular attention to the step in which you check off the box or boxes stating the reason for your protest. Your choices here will affect what kind of evidence you can present later on. If the district listed the wrong square footage for your home, for instance, be sure to check “property description is incorrect.” If you think your value is out of step with similar homes, make sure to mark “Value is unequal compared with other properties.”

For typical homeowners challenging their appraisal, the Texas Comptroller’s office suggests checking “Value is over market value” and “Value is unequal compared with other properties.” That will “allow you to present the widest types of evidence and preserve your full appeal rights,” the agency says in its handout on “Property Taxpayers Remedies”.

June

Once you’ve filed your “Notice of Protest,” the appraisal district will send you a letter with two dates: an informal meeting with an appraisal staffer and your formal hearing date with the ARB, a group of independent residents appointed to hear these challenges. Bring all of your documentation: Information on comparable homes (records may be available on the appraisal district’s website), perhaps an independent appraisal if you recently refinanced your house, or photos, repair estimates and other records showing damage that may devalue your home. Once you and a staffer have hashed it out, the district may offer to reduce your value by a certain amount. If you’re satisfied, you can accept it.

If not, you can keep your date with the ARB, or technically, with a three-member panel of ARB members. Before that hearing, you have a right to see all of the information the district appraisers plan to present, so be sure to contact the appraisal district to request those documents.

Typically about two weeks pass between the informal meeting with staff and the ARB hearing. Here, the same process applies: If you’re satisfied with the outcome after meeting with the staffer, you can forego the ARB hearing.

If you take your case to the ARB, come prepared and expect a rapid-fire proceeding. The entire hearing will likely take 15 to 30 minutes. In that time you will be placed under oath and given a chance to present any evidence or witnesses supporting your case. You must conclude by stating the figure you believe your property is worth. Someone from the appraisal district will likely question you and provide additional evidence. Then you can question the appraiser or any witnesses presented by the appraisal district. Members of the ARB can ask clarifying questions, too. Finally, each side gets to make a closing statement, so once again you’ll want to reiterate what you believe your property is worth and why. The three-member panel will discuss the case and reach a recommended value.

The full ARB will review the recommendation of the three-person panel and approve your final assessed value. You’ll get a certified letter in the mail with the decision.

August

Protest hearings typically wrap up by now. But you still have recourse if you’re not satisfied with the ARB decision. If your property is valued at less than $1 million, or if it’s your homestead, regardless of value, you can take your case to binding arbitration. You’ll need to file that within 45 days of receiving the ARB decision, and it’ll currently cost you $500. All but $50 of that will be refunded if you prevail.

There are two alternatives to arbitration. You can take your appeal to state district court (that challenge must be filed within 60 days of receiving the ARB decision, and you’ll likely need an attorney’s help). Or for properties valued over $ 1 million, you can file an appeal with the State Office of Administrative Hearings (that challenge must be filed within 30 days of receiving the ARB decision).

Some helpful hints:

• DON’T: Complain about how you can’t afford your taxes. The appraisal district doesn’t set the tax rate; they only decide what your home is worth for tax purposes.
• DO: Come armed with a specific value you believe your home is worth, and the documentation to support that figure.
• DON’T: Give a long, rambling presentation filled with generalizations.
• DO: Request in advance the documentation the appraisal district compiled to calculate its appraisal of your property. Examine the comparable homes used to determine your property’s value. See whether differences in property size, home upgrades or proximity to a busy road, for instance, might make those properties a poor comparison for your home.

Posted in Blog | No Comments »

In Texas, a will may not be considered valid if it was made under “undue influence.” This is because the undue influence may have changed the will-maker’s true wishes, plans, or intent so that they are unrecognizable – and certain beneficiaries or heirs may be harmed as a result.

Texas uses a three-element test to determine these a will was created under undue influence. The three core questions are:

1. Did an influence exist, and was it exerted on the will’s creator (the “testator”)?
2. Did the influence “subvert or overpower the mind of the testator” when the will was executed?
3. Would the testator have executed the will if he or she had not been under this influence?

To prove that an undue influence occurred, it is not enough to prove merely that someone had influence or used it. The court must also find that the influence overpowered the testator’s ability to freely decide what the will should contain, so that the will contains the wishes of the person with influence, not the person to whom the will belongs.

How Can I Show That Someone Used Undue Influence?

The burden of proof for demonstrating undue influence is on the person who brings the claim to court. Since such a claim hinges on subtleties of thought, desire, and personal relationships, it can be difficult to prove.

Texas courts consider several factors when trying to determine whether an influence existed and was used on the testator. These factors include:

• The circumstances surrounding the execution of the will;
• The relationship between the person who made the will and the will’s beneficiaries;
• The motive, character, and conduct of the beneficiaries listed in the will;
• The words and actions of everyone who was present when the will was executed;
• The testator’s physical and mental condition when the will was executed – including the testator’s age, weakness, infirmity, and whether or not he or she was dependent on or controlled by the person who is believed to have exercised undue influence; and
• Whether the results in the will are unjust, unreasonable, or unnatural (for instance, if the will completely cuts off the testator’s children in favor of an unrelated person).

Posted in Blog | No Comments »

When you become a trustee of a trust in Texas, your job is to administer the trust, following the rules laid out in the trust and in the Texas Trust Code – and, if there are no rules in the trust or the Trust Code that apply, the rules created by Texas common law.

In addition to keeping the trust’s specific instructions in mind, a trustee must also fulfill a number of duties. Generally speaking, these duties fall into one of four categories:

• Duty of loyalty,
• Duty of competence,
• Duty to reasonably exercise discretion, and
• Duty of full disclosure.

These duties, collectively, are sometimes known as “fiduciary duties.” A “fiduciary” is a person who has a special responsibility to another – one that goes “above and beyond” the ordinary duty of care that every person is expected to follow when they interact with others. As U.S. Supreme Court Justice Benjamin Cardozo wrote in 1928, “Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior” when one acts as a fiduciary.

A trustee has a fiduciary relationship with the beneficiaries of the trust, but these duties play out differently in different contexts, depending on the demands of the trust and the specific circumstances involved. To that end, strongly consider consulting with a qualified lawyer if you are confused about a particular step to take while administering a trust.

Many trustees find the list of duties to be a helpful guide when they encounter challenging and unexpected obstacles. For example, the duty of loyalty demands, among other things, that the trustee put the beneficiary’s interests first. If the trustee is “stuck” trying to decide between Plan A, which benefits the trustee, Plan B, which has neutral effects on everyone, or Plan C, which is the best plan for the beneficiary, the duty of loyalty makes the choice clear: the trustee should go with Plan C. The other duties also help guide the trustee’s decision making and planning in similar ways.

Posted in Blog | No Comments »

What You Need to Know About Business Disparagement Claims

Negative reviews of products or services can hurt businesses, but when they are honest, these reviews can also provide key insights into how to improve. When a review or other claim is false, however, it’s a cloud with no silver lining – just damage.

False claims that harm an individual’s reputation, and the damages that result, can often be addressed by filing a civil lawsuit for defamation. When the entity harmed is a business, a similar claim can be filed: one for “business disparagement.”

Like a defamation claim against a public individual, a business disparagement claim must establish that:

• The statement made was false,
• The statement was “disparaging,”
• “Actual malice” was involved in making the statement,
• The business suffered damages as a result, and
• The person who made the statement had no protective privilege to do so.

Unlike a defamation claim involving an individual, however, the focus of the argument is not on the business’s reputation. Rather, it is on the economic losses to the business as a result of the false claim.

As in certain other types of defamation claims, in a business disparagement claim, the statement at issue must have been made with “actual malice.”  Despite the name, “actual malice” doesn’t involve hatred or revenge. Instead, “actual malice” occurs when a person makes a claim despite either knowing the claim is false or recklessly disregarding the chance that the statement is false.

A business disparagement claim may be defeated, however, if the person who made the statement enjoys an absolute or conditional privilege that protects the speaker or the statement.

“Absolute” privileges fall into only a handful of categories. For instance, statements made during a legislative or judicial proceeding typically enjoy absolute privilege. “Conditional” privileges are broader, and they are often incident-specific. In other words, whether a conditional privilege exists depends on what was said, who said it, why they said it, and where, when, and how the statement was made.

Not every negative business review offers grounds for a business disparagement claim. But when negative, false rumors start to spread for no other purpose than to harm your business, talk to the attorneys at Shaw Cowart. We can help you with your claim.

Posted in Business Litigation | No Comments »

Will Contests in Texas

When someone who is affected by a will believes that there is something wrong with the will, he or she may “contest” the will in court. This type of case is also known as a “will contest.” Since wills in Texas must follow strict legal guidelines to be considered valid, any failure to meet these requirements may become grounds for a will contest.

Some of the more common grounds for contesting a will under Texas law include:

• Lack of capacity or intent. If the person who wrote the will (the “testator”) did not have the capacity to understand what the will was or what it did, a will contest may be brought to test whether the person had “testamentary capacity.” If the answer is yes, the will may be found valid.
• Influence or duress. In some situations, a person changes his or her will under improper influence or duress from another. A will that is created or changed under influence or duress will not be considered valid, because the decisions in it were not made freely.
• Outdated wills. A will that leaves out children or fails to account for a divorce or a remarriage can often be challenged, because it may fail to protect those closest to the deceased person.
• Fraud or forgery. If a will can be proven to be fraudulent or forged, it will not be considered valid.
• Fails to meet other requirements of Texas law. A will that is not witnessed or signed properly – or one that does not meet other legal requirements – may be considered invalid.

To contest a will in Texas, consider working with a qualified attorney. You also must bring the will contest within the time limits set by Texas law. A lawsuit to contest a will must be filed within two years of the date the will is admitted to probate, according to the Texas Probate Code.

There are only two exceptions to this rule. The first is a case in which the will is a forgery or a fraud. The second is a situation in which the will contest is brought on behalf of a person who did not have legal capacity to contest the will during the two-year period but who later gained that capacity.

Posted in Blog | No Comments »

With Hunting season starting, Shaw Cowart wanted to remind everyone of the Hunter Safety regulations effective in Texas.

Every hunter (including out-of-state hunters) born on or after Sept. 2, 1971, must successfully complete a hunter education training course. Proof of certification or deferral is required to be on your person while hunting. Minimum age of certification is 9 years. Single-day in-person course cost is $15. persons 17 years of age and older have the option of taking the course in person or online. the cost of an approved online course varies by provider.

If you were born on or after Sept. 2, 1971, and you are:

• Under 9 years of age: You must be accompanied. Accompanied means: By a person (resident or non-resident) who is at least 17, who is licensed to hunt in Texas, who has passed hunter education or is exempt (born before Sept. 2, 1971), and you must be within normal voice control.
• Age 9 through 16: You must successfully complete a hunter education course or be accompanied.
• Age 17 and over: You must successfully complete a hunter education course; or purchase a “Hunter Education Deferral” and be accompanied.*

*”Accompanied” means: by a person (resident or non-resident) who is at least 17, who is licensed to hunt in Texas, who has passed hunter education or is exempt (born before Sept. 2, 1971), and you must be within normal voice control.

Proof of certification or deferral is required to be on your person while hunting. Certification is not required to purchase a hunting license.

Hunter Education Deferral- allows a person 17 years of age or older who has not completed a hunter education program to defer completion for up to one year. A deferral may only be obtained once and is only valid until the end of the current license year. A person who has been convicted or has received deferred adjudication for violation of the mandatory hunter education requirement is prohibited from applying for a deferral.

Have fun and stay safe!

Posted in Blog | No Comments »

We are pleased to announce after a lengthy and thorough application process, our firm has been selected for membership in the International Society of Primerus Law Firms.  This network consists of over 200 remarkable law firms around the globe that share our commitment to client service excellence, integrity and legal skill.

Our membership expands our ability to clients and referral sources. We can now connect you with effective attorneys to address virtually any issue you face – lawyers whose values align with those you have come to expect when dealing with Shaw Cowart.

The Stringent Primerus Membership Criteria

Primerus member firms in the United States must be rated “AV” by Martindale-Hubbell®, the respected law firm directory with a 150-year history of evaluating the strengths and ethics of lawyers. To evaluate its international members, Primerus looks to the Legal 500®, EMEA®, the IFLR 1000®, the Chambers Global Guide® and other trusted organizations.

The network thoroughly vets all prospective members based on rigorous criteria, known as the Six Pillars of Primerus. These include:

• Integrity
• Excellence of Work Product
• Reasonable Fee Structure
• Continuing Legal Education
• Civility to Bench and Bar
• Community Service

Primerus screens candidates carefully. It canvases current and past clients, judges, other attorneys, bar associations and insurers and uses this 360-degree feedback to guide decisions. Primerus also monitors its members, using regular audits and other due diligence processes to make sure that they continue to deliver elite performance per the Six Pillar metrics.

Posted in Blog | No Comments »