New on The McTexLaw Business Owner's Resource Center:

Can the Blind Read Your Website?

Most likely the answer to that question is an obvious "no", followed by "why do you ask?" Well, because several disability groups have and continue to file lawsuits against companies that have websites unusable by the blind. They base these suits on the Americans With Disability Act ("ADA"), also known as the "Lawyers Employment Act of 1990," which prohibits discrimination in the workplace against disabled persons. Access Now, a Miami-based disability group, has filed hundreds of these cases, recently including that bastion of Texas friendliness known as Southwest Airlines, trying to force Southwest to redesign its website to accommodate the blind. Click the headline to read who was successful and why.

New on The McTexLaw Commercial Real Estate Resource Center:

Hunting Leases in Texas

Hunting is big business in the Lone Star state, to the tune of $2.6 billion per year. But with all those bucks floating around, both green and white tailed, is there a chance for more? Can landowners be liable to hunters and their guests for injury? You bet. Texas has a statutory scheme of liability for landowners who lease hunting rights on their land. And so the question this hunting season is, is your hunting lease form up to date? Is it a trophy or a just a feral hog? Click on the headline for a quick guide to landowner liability to hunters and a list of common hunting lease provisions.

COCKTAIL PARTY TALK FROM A LAWYER

'Tis the season, y'all, yet again. Holiday parties of every sort magically appear on our calendars. If only we had the antidote to make them go away. But, alas, few of us have such luck. These parties carry special risk for us lawyers. These are the events where we hear "you're a lawyer-you'll know the answer to this...." Well, yes we are, but most likely no, we won't.

We've come a long way from the Ten Commandments, and most of us can't even remember all of those. So, with this in mind, the Texas Bar Journal put together a very practical article listing some of the more common cocktail party questions, and providing us lawyers suggested answers. I thought this information would be appropriate to pass along to you now. Hopefully this will discharge my "duty" to engage in such banter and, should we meet at a party this season, will free us up to talk about more important things, like the family, the BCS college football ranking system, and NASCAR tailgating strategies.

First, the disclaimer. I may not be your lawyer. At this moment as I write this article, I assure you the only person's backside I'm thinking about is my own, so I am not giving any particular advice to any particular person to be used in any particular circumstance. These questions lie outside my area of expertise. I am merely trying to help educate people about the law and the legal process by passing through to you legal information I have read, without double-checking anyone's accuracy. With this in mind, here are the Top 10 Cocktail Party Questions:

1. Do I have to let them search me at the airport?

Well, it depends on whether you want to get on the plane. Walking you through a magnetometer (metal detector) and running your bags through an x-ray machine are constitutionally permitted searches. And, if these initial screenings indicate a possible problem, or if you fit a "profile", the screeners have the power to search you further. Just keep telling yourself it's for your own safety. I've even invested in my very own GameBoy Advance for the delays occasioned by all these added security measures. And as a side benefit, I can now have actual conversations with my kids.

2. Do I have three days to change my mind after I buy a car?

Nope. The so-called "buyer's remorse" law is a big myth. When you sign a contract to buy a car, you're stuck with that contract, unless the seller has misled or deceived you into signing. You can't just change your mind. Now, you can try to negotiate a three day return provision, but I wouldn't hold out much hope-the economy isn't this bad yet.

3. My neighbor's tree hangs over my roof. Can I cut it back to the property line?

Sounds simple enough, but this is bad news waiting to happen. While your neighbor doesn't have the legal right to let the branches hang over your yard and could be liable to you for damages, you must proceed with caution. If you were to cut the branches back and the tree died, you may end up sued by the neighbor. The best approach is to communicate with the neighbor about the problem. See if he'll prune the tree back himself or give you permission to do it (get it in writing). If not, see a lawyer to document things right (i.e. set up the lawsuit against the neighbor) and take it from there. You'd be amazed what can be accomplished with a letter on law firm letterhead.

4. If I get arrested and only have one call, who should I call? What if I get voicemail?

You actually have the right to make two phone calls within four hours according to the rules of the Texas Commission on Jail Standards. You may want to make that first call to someone who will follow through on getting you out of jail. Let that person call the lawyer, the bondsman, your mom, or whomever, to make the arrangements. Trying to be rational and composed during those first few hours of being booked isn't as easy as it looks. Just know where your Palm is at all times and make sure you remember to keep your clean underwear clean.

5. If I'm driving home from a party and get stopped by the police, should I blow into the breathalyzer?

DWI intoxication is when a person loses their normal mental or physical faculties, or has a 0.08 blood alcohol level. I know some DWI lawyers who print a chart on the back of their business cards that show probable blood alcohol levels given a certain weight and number of drinks. Problem is, the user has to (1) be honest about their weight, and (2) remember how many drinks they've had, and (3) act responsibly based on the result. But for those who get asked to take a breathalyzer, remember this argument.

It is scientific fact that you can't lose physical faculties until you first lose mental faculties. Therefore, if you have no normal loss of faculties, then logically you can't have a 0.08 blood alcohol level. If you understand that the machine destroys breath and breath cannot be re-tested, doesn't work the same for everyone, may not be warranted fit for human testing, and that you may get sick blowing into a community breath tube, and if you refuse to take the breathalyzer for these reasons, you have demonstrated good mental faculties/judgment and, by logical conclusion, must be sober. Please note that if the officer can't understand what you're saying because you're slurring, this whole plan of action won't work no matter how good your memory.

6. If somebody has a few drinks at my house, gets in a wreck while driving home and hurts somebody, am I liable?

In 1993 the Texas Supreme Court held that there is no common law social host liability for serving adults. Subsequently, the Texas Supremes extended this finding to guests between 18 and 20, and then to guests under 18. The Dram Shop Act doesn't apply to social hosts; it only applies to commercial providers, that provide alcohol to an obviously intoxicated person, who later causes injury to another.

7. Can I serve alcohol to minors at a party at my house?

NO. Furnishing alcohol to minors (a person under age 21) through criminal negligence is a Class A misdemeanor, punishable by up to one year in jail and a fine not to exceed $4,000. There is an exception. A visibly present parent, guardian or custodian may serve their minor alcohol, but none others. That's about it.

8. As an employer, can I ask potential employees if they have ever been convicted of a felony and refuse to hire them if they have?

Many if not most employment applications ask "Have you ever been convicted of a felony?" and this is a legal question. So continuing the thought, "ever" means "ever," with the result that no matter how old the conviction, the applicant must list it. But the Equal Employment Opportunity Commission has stated that employers may not use criminal convictions as an absolute bar to employment. The refusal to hire an applicant based on criminal history must be justified by business necessity, after considering the job applied for, the nature of the offense, and the time elapsed since the offense.

9. Can cities and homeowners associations legally prohibit yard signs?

Maybe, bordering on probably, if the restriction is in the form of deed restrictions or homeowners association rules. In these cases the homeowners association may have the right to get a court injunction prohibiting the sign. If not, it depends on the local ordinance, and the purpose of the ordinance (safety, sight lines, etc.). Sometimes a free speech argument can be made (for campaign signs and such), but rarely if it's a business sign because commercial speech has much less protection.

10. How do I avoid jury duty?

People do crazy things to avoid jury duty, so much so that I have a totally separate article about it. But the short answer is "you don't." Texas courts are becoming more strict about attendance and your failure to appear could result in a fine or an appearance before the judge to explain why you shouldn't be held in contempt.

Now, you non-lawyers can use these questions as an antidote when you get stuck having to talk to a lawyer at an otherwise enjoyable party. Study them, memorize them, ask them, and then demonstrate a better knowledge of the answer. Right about then that lawyer should run for cover, never to bother you again for the evening. Happy Holidays, indeed.

CREATIVE WAYS TO AVOID JURY DUTY

The American Bar Association's journal recently asked practicing lawyers to tell the craziest ways they have seen people try to get out of jury duty. Here's a sampling of their true stories and one of my own:

In a real estate fraud case, after selection of the 12 person jury plus one alternate, one juror said "those defendants are the same people who cheated me last summer." Since this was said in open court, the whole jury panel was dismissed, and a new one had to be selected from the start. Bonus points here for getting the whole panel out of jury duty.

Said one potential juror, "My wife is ovulating, and I'd like to be there." In a similar vein, another said "because my wife is about to become pregnant."

When the judge asked "Does anyone have any difficulties with vision or hearing that would make it difficult for them to follow the proceedings?", one prospective juror squinted back and shouted, "WHAT?"

In a civil trial, one potential juror said "I have served on four juries. This experience has given me great respect for the judicial system. However, I now detest large companies-and the lawyers they hire to represent them." It worked.

Personally, about two years ago I sat on a Collin County jury panel for nearly the whole day. You want to see a lawyer near tears? Try putting one that bills in the hundreds of dollars an hour and put him in a jury box on a normal workday, which pays a whopping $6 for the entire day. The judge asked, "Is there anyone here that feels they need to tell the Court or these lawyers here something that hasn't been asked yet, which you feel disqualifies you from serving on this jury?",as a softball, last gap question, the end-all-be-all. One lady behind me who hadn't said a word all day raised her hand and said something to the effect that "I'm a woman and don't think I could consider the full range of punishment for the defendant if he was found guilty of sexual assault. I think he should get jail time if convicted." So far so good, very thoughtful, well reasoned even. But then she sank her own ship: "Being a lawyer I know that's wrong, but that's the way I feel as a woman." Said the now angry judge "you mean to tell the Court that you can't enforce the law you swore to uphold when you took your oath to become a lawyer?" Ouch.

And the winner for "most creative":

As the lawyers were going through the jury pool in a personal injury case, they asked each potential juror whether they owned stock in any casualty insurance company. During the break, one juror called his broker and placed an order to purchase shares of a casualty insurance company. He was only too happy to point this out when it came his time to be questioned.

NOTE: we are not suggesting that anyone attempt to avoid jury duty. To the contrary, we strongly encourage everyone to comply with the laws requiring it. Jury duty is not to be taken lightly, and is required for our nation's concept of justice to be carried out. We can't all fight terrorism, but your jury service can serve and protect the American way of life.

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