Austin Lawyer, March 2023

MARCH 2023 | VOLUME 32, NUMBER 2

20th Annual Austin Bar Foundation Gala Raises $160,000 Funds

Raised Support Foundation’s Law-Related Programs, Projects, Grants

BY MARY-ELLEN KING, THOMPSON, COE, COUSINS & IRONS, LLP

Nearly 600 guests attended the masquerade-themed Austin Bar Foundation Gala on January 28, 2023. Members of the legal community, many arriving in beautifully adorned masquerade ball masks and their finest black tie attire, turned out for the event at the Austin Marriott Downtown. Guests enjoyed an elegant pre-event cocktail hour while bidding on a chance to win $10,000 or a gorgeous diamond pendant donated by Diamonds Direct.

During the seated dinner, guests were treated to a video presented by Austin Bar President Amanda Arriaga, where they learned more about the Foundation’s various programs and grants and were invited to continue donating. In addition, the video featured three 2023 Distinguished Lawyer Award recipients: Judge Lee Yeakel, Judge Lora Livingston, and Bobby Taylor, each of whom shared their story on the big screen.

The $160,000 raised for the Austin Bar Foundation is the most ever raised at an annual gala event and will be used to support many of the Foundation’s law-related programs and projects throughout the year, such as Austin Adoption Day; the CANLAW Clinic; the Veterans Assistance Programs; the Self-Represented Litigant Program; the Diversity Fellowship Program; scholarships for Texas LGBT law students; and the Justice Mack Kidd Fund. In addition, the Foundation has awarded over $200,000 in grants to law-related organizations. Past grant recipients include American Gateways, continued on page 8

Donate to the Austin Bar Foundation! Donations are still welcomed. Please use this QR code to make a donation that will support and expand the Foundation’s legal-related charitable and education programs in Central Texas.

TOP: Austin Bar President Amanda Arriaga (far right) and Austin Bar Foundation Chair David Courreges (far left) with Distinguished Lawyer Award recipients Judge Lee Yeakel (second from left), Judge Lora Livingston (center) and Bobby Taylor (second from right). MIDDLE: (from left to right) Eric Kennedy, Judge Lora Livingston, and St. Clair Theodore. BOTTOM: Paul Betori, Jo Ann Merica, Nikki Maples, Keith Maples, and Greg Hitt.

I’m not sure why I waited so long to get it set up.

FEATURED ARTICLES

1 20th Annual Austin Bar Foundation Gala Raises $160,000

14 Austin Bar Continues Commitment to Diversity, Equity, Inclusion

15 Nominate a Lawyer or Judge Today for Annual Recognition

24 TCWLA Recognizes Trailblazing Women Attorneys

26 Nuts and Bolts: Using the New Travis County Civil and Family Courts Facility

IN EVERY ISSUE

10 Be Well

18 AYLA

22 Third Court of Appeals Criminal Update

23 Federal Civil Court Update

DEPARTMENTS

6 President’s Column

16 Opening Statement

30 Entre Nous

CONNECTIONS

NEWS & ANNOUNCEMENTS

Law Related Education Committee Seeks Volunteers

The Austin Bar/AYLA Law Related Education committee and the YMCA of Austin invite you to volunteer! There are many upcoming events to choose from. For more information, please visit austinbar.org.

UPCOMING EVENTS

MARCH 20 Veterans’ Legal Advice Clinic 7901 Metropolis Dr. 1:30 p.m. Register to volunteer at austinbar.org.

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AUST INL AW Y ER AL AL

OFFICIAL PUBLICATION OF THE AUSTIN BAR ASSOCIATION

AUSTIN BAR ASSOCIATION

Amanda Arriaga President

Justice Chari Kelly President-Elect

Mary-Ellen King Secretary

Maitreya Tomlinson Treasurer

David Courreges Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION

Blair Leake President

Sarah Harp President-Elect

Emily Morris Treasurer

Ciara Parks Secretary

Rachael K. Jones Immediate Past President

Austin Lawyer

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 78701.

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Get Ready for Bench Bar 2023 on May 5!

This top-notch event features subject matter experts in the legal community at the Norris Conference Center.

will receive an inside tour of the new Civil and Family Courts Facility on May 4.

info to come and registration will open soon.

AMANDA ARRIAGA, TEXAS CASA

Add Your Voice, Perspective

When I became Bar president, I spoke with many people to ask them what they wanted from their bar association. One theme that was raised was that the Bar sometimes feels like a clique, and it’s hard to get plugged in if you aren’t already in that clique.

I took that feedback to heart. The best way to break that perception is to include a bigger variety of voices. That’s why leadership positions and committee chairs rotate each year.

The best way to serve our members is to make sure that we represent their various voices and points of view.

At each of our board meetings, I have posed a question and we have had a robust discussion in order to include as many voices as possible about that topic. We began with the question of, “What do we owe our members?” for two months, and then we moved on to our budget and our fiduciary duty to the organization.

I am proud of all we have accomplished and what we will continue

to accomplish. If you would like to add your voice and your perspective, I encourage you to join a committee or section, or consider running for a director position on the board of the Austin Bar. The best way to make a change is to be part of the discussion, and I encourage all of you to do so.

If you need help figuring out how to get involved, please email me at amanda@austinbar.org.

The best way to make a change is to be part of the discussion, and I encourage all of you to do so.

COFER & CONNELLY

Mark Pryor

Rick Cofer

Jaynie Badgett

Liz Duggan

Ramey Ko

Jeffrey Connelly

Geoffrey Puryear

Natalia Tsokos

continued from page 1

Volunteer Legal Services, Austin Community Law Center, Austin Classical Guitar’s Guitar and Juvenile Justice Program, CASA, and the Texas Fair Defense Fund, to name a few.

More than $17,000 was raised during the Fund-a-Need portion of the auction. Fund-a-Need proceeds will be used to benefit the Veterans’ Legal Advice Clinics and the Diversity Fellowship Program.

If you were unable to attend the event, you can still make a donation to the Foundation. Please scan the QR code on the cover of this publication to make a donation.

The event was chaired by Mary-Ellen King and Nadia Bettac.

Videos honoring all three Distinguished Lawyer Award winners along with photos and videos from the event can be viewed at austinbar.org. AL

The $160,000 raised during the Austin Bar Foundation Gala is the most ever raised at the annual event and will be used to support many of the Foundation’s law-related programs throughout the year.

Is Your Life in Balance?

Achieve Happiness by Balancing the Most Important Elements in Your Life

BY BRADLEY HOUSTON

Brad Houston practices personal injury and appellate law, with an emphasis on bicycling and trucking cases. He is also the founder of Gruppo VOP, an informal training group for cyclists.

The urban definition of a GOAT is the “greatest of all time.” Some examples are Muhammad Ali in boxing, William Shakespeare as a playwright, and Luciano Pavarotti as a tenor. Although there is room for debate, each is at least one of the greatest of all time. To achieve greatness at the level of a GOAT, it requires great sacrifice in one’s life, which may result in neglect in other areas of one’s life. Achieving GOAT status may require sacrifice in relationships, physical health, and/or spiritual health---consider the phrase “a pact with the devil.”

Although many of us envy the GOATs of our day, a close inspection of their lives may reveal a less attractive existence. Psychology studies suggest that true happiness is a complicated formula. In my last article for Austin Lawyer (in the August 2021 issue), I discussed achieving happiness by living a worthwhile life.

It is my belief that long-

term happiness is best achieved through balance. Happiness is like a chair or a table; it takes at least three legs to stand. What are the right elements for balance in your life? To determine those elements, you must first decide what is most important to you. Consider the following elements (besides work), although there are others:

(1) relationships, (2) health, and

(3) spirituality. All three are important. Let’s look at each, but not in any particular order.

Relationships are one of the most complicated elements, and difficult to get right. Humans, like other mammals, are “pack animals.” That is, we need to be around other beings for emotional health. The “pack” includes friendships, family, and other relationships, even a relationship with your dog or other pet. The first thing to understand is that relationships require effort, although the amount of effort depends on the particular type of relationship.

When I had been married about 20 years, I noticed that many of my contemporaries’ mar-

riages were ending in divorce, and some were on their second or third. Couples often put no effort into their marriage and expect the marriage to make them happy. The obvious fact is, what you get out of a marriage is a product of what you put into it.

To be the GOAT of boxing, Muhammad Ali worked on it almost every day for 15 years. To have a great marriage, you have to work on it almost every day.

I noticed a phenomenon in divorced people. After the divorce, the now-single people were working out, doing charity work, getting involved in more organizations, and otherwise putting effort into making themselves more attractive. They were trying to live their best life, presumably for their next spouse.

It occurred to me, what if married people worked on being that better person for their current spouse? Moreover, what if married people tried to be kinder to their current spouse? It is a good idea to communicate this idea and get an agreement that both spouses will endeavor to take this approach.

Just like a marriage, friendships, club work, and professional organizations require effort. You must put effort into every kind of relationship if you want to get the most out of them.

Next, let’s look at physical health. The formula to maximize good health is pretty simple: sleep + good diet + physical activity. Although not always, this formula gives you the best chance of enjoying good health. Don’t under-do it and don’t

Long-term happiness is best achieved through balance, including the elements of relationships, health, and spirituality.

overdo it (like I often did). The fact of the matter is a little exercise every day can make a tremendous difference in your health.

Park your car as far away from the store entrance when shopping (if it is safe). Take the stairs, not the escalator or elevator, whenever possible. Twenty to thirty minutes of walking a day will make a tremendous difference. Try five to ten sit-ups a day.

Finally, the last element of this trifecta of balance is spirituality. The first two questions men and women asked at the beginning of time were:

(1) What am I going to eat for dinner? and (2) Why am I here? The second question is the most difficult to answer. All the major religions have an answer, on which many of us rely. Others look to nature, or find the answer in non-religious organizations or other places.

One of the reasons spirituality is so important is because, if a person has no purpose or meaning in life greater than themselves, then when bad things happen, which we know they will, the person can become depressed and lose hope. People can find peace by remembering there is a greater purpose; problems don’t look as great.

Coming back full circle, you must work on all the elements of balance in your life. If you ignore the relationships in your life, you will end up alone. If you ignore your health, you may become too ill to function. If you ignore your need for spirituality, the problems in life will overwhelm you.

Keeping the balance is important to a happy life. How is your balance? AL

• Experienced legal talent for when quality matters

• Peer-to-peer client service experience

• Cost-efficient & flexible solutions

• Contract engagements, contract-to-hire & permanent placement

NEW MEMBERS

The Austin Bar welcomes the following new members:

Jeff Adams

Anselmo Aguirre

George Bloder

Anthony Brocato

Luiza Browning

Morgen Cuming

Zeke DeRose

Trevor Finster

Trevor Hance

Elizabeth Harris

Vanessa Jenray

Tyler Liser

Nisreen Mahesri

Anna Obek

Jessica Ogin

Jacob Petry

Erin Selvera

Samuel Solodar

Brian Tagtmeier

Cassandra Tigue

Veronikah Warms

Jaxon Welchman

Anna White

ON THE MOVE

g Emily Casey is now of counsel to The Snell Law Firm, PLLC.  Her practice will focus on litigation related to real estate, construction, shareholder or partner disputes, and business torts.

g Emi Lawson has joined litigation firm Cleveland Krist PLLC as an associate. Lawson is a trial lawyer who represents both plaintiffs and defendants in federal and state courts across the nation. A graduate of Columbia Law School, she joined the firm after spending two years with Susman Godfrey in Houston and serving as a law clerk for Judge Alia Moses of the United States District

Texas. Lawson also holds an LLM from the London School of Economics and Political Science.

MOVING ON UP

g Megan Kateff has become a partner at Allensworth. Since joining the firm in 2015, Kateff has developed a strong practice representing a diverse group of clients including owners, developers, contractors, subcontractors, architects and engineers in project administration, claims management, contract closeout, and dispute resolution. Kateff has represented clients in both litigation and arbitration that involve construction defects, delays, payment disputes and professional liability on various project types. She has a keen understanding of the current mechanics’ lien statutes, and often counsels clients on their rights and best practices with respect to lien and bond claims. Kateff also

tice, preparing briefs for cases in the Courts of Appeals in Texas as well as the Texas Supreme Court.

HAPPY ANNIVERSARY!

g The Austin office of Ogletree Deakins celebrated its 20th anniversary on February 17, 2023. When the office opened in 2003, it was the first employment law firm to break into the Austin market. Twenty years later, more than 40 attorneys and over 120 total employees serve employers in all areas of labor, employment, and business immigration law. The office is home to several influential members of the firm, including Bruce Griggs (co-founder and first office managing shareholder of Ogletree Deakins’ Austin office), Erika Leonard (current office managing shareholder), Shafeeqa Giarratani (member of the firm’s board of directors), and Caroline Tang (member of the firm’s Diversity and Inclusion Steering Committee).

(from left) Casey, Kateff, and Lawson.

Austin Bar Continues Commitment to Diversity, Equity, Inclusion

DEI Committee’s Recent CLE Presentation on Equity Available to Bar Members Online

The Austin Bar Association is continuing its commitment to Diversity, Equity, and Inclusion with several events and learning opportunities to learn from one another, lift each other up, and move us closer to true equity.

In January, the DEI committee hosted a CLE titled “Sex, Gender & Expression 101.”

The speaker was Drew Williams, who is the chair of the LGBTQ section of the Austin Bar and Associate General Counsel for the Texas Association of Counties.

Williams is a passionate and frequent speaker on this topic, and not only provided insight on the importance of respect and inclusion, but also discussed the history and provided personal insight on the reasons why inclusion is at

the very heart of equity.

He gave personal examples and practical tips to ensure we are using the most inclusive language possible, and we renewed with him our commitment to honor these important ideals. The DEI committee would like to thank Williams for always being an enthusiastic speaker and doing so with strength and vulnerability.

This presentation was recorded and is available for members to view on the Austin Bar Association’s website.

Please stay tuned for future DEI committee events, such as the DEI book club and the Equity Summit planned for May 25. If you are interested in working with the DEI committee, please contact co-chairs Leslie Dippel and Elliott Beck. AL

The Austin Bar and AYLA are teaming up for the Cap10K. If we get at least 35 people on our team, we get our own tent at the finish line area!

Established in 1978, the Statesman Capitol 10,000 has grown to become the largest 10K in Texas and sixth largest in the country. Each year, Austin’s iconic race teems with talent and personality. This year’s race beneficiary is the Mike & Sherry Project, which provides accessible mental health care to individuals working in the Austin restaurant and bar industry in partnership with Capital Area Counseling.

Register here:

https://venturesendurance.enmotive.com/events/register/ 2023-statesman-cap10k/

Use code “ATXMarathon23” for $5 off your registration! Participants can run or walk; it’s the same distance either way!

Nominate a Lawyer or Judge Today!

Austin Bar Seeking Nominations for Awards

The Austin Bar is currently accepting nominations for several awards. All awards will be presented at the annual Bench Bar conference, which will be held on May 5, 2023 at the Norris Conference Center. Please consider nominating a deserving colleague for one of the following awards:

Larry York Mentor Award

This award will honor a Central Texas lawyer or judge who has demonstrated exceptional skill and generosity in mentoring younger members of the bar. Must have practiced for at least 10 years.

David H. Walter Community Excellence Award

This award honors an Austin Bar member who has recently made a significant impact in the community and, at the same time, raised the profile of the bar.

Joseph C. Parker, Jr. Diversity Award

This award is given annually to a lawyer whom demonstrates excellence in promoting the ideals of Diversity, Equity, and Inclusion in the legal profession and community.

Professionalism Award

This is a joint award from the Austin Bar and the Texas Center for Legal Ethics and Professionalism. The recipient will be a lawyer whom best exemplifies, by conduct and character, truly professional traits, whom others in the bar seek to emulate, and who all in the Bar admire.

Regina Rogoff Award

This award recognizes outstanding public sector service and serves as a lasting tribute to the career achievements of Regina Rogoff, longtime executive director of Legal Aid of Central Texas.

Contact DeLaine Ward at delaine@ austinbar.org for more information. Nominations are due by March 22, 2023, and the form is at https:// forms.gle/y3L918NUXtZ1zM9f6.

APPLICATION FOR AWARDS

Email Requestor Name

Award Nominated for Nominee Name

Is the nominee a member of the Austin Bar Association? If so, please describe their contribution to the Austin Bar in detail.

For the Regina Rogoff award, please describe in detail the nominee’s “outstanding public sector service”.

For the Professionalism award, please describe in detail the professional traits that make this person “a role model for the bar, particularly younger or less experienced lawyers”.

While you may attach the nominee’s resume, responses must be made for all the questions listed above. Any applications that do not include responses to all questions may be immediately disqualified.

Nominations should be made online at https://forms.gle/y3L918NUXtZ1zM9f6

Shall Should You Use “Shall”?

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

In legal drafting, should you worry about using shall? Consider three examples:

• Subcontractor shall comply with all Contractor safety rules.

• “Seller” as used in this contract shall mean Oaker Services.

• Members of the panel shall be selected by the commissioner.

Although shall is generally harmless in those examples, taking more care when using shall would be a good thing for three reasons.

1. SHALL CAN BE AMBIGUOUS.

Courts have construed shall to mean both “must” (mandatory) and “may.” Here are two statements about the meaning of shall from the Texas Supreme Court:

• “We agree, of course, that ‘shall’ is mandatory language.” S.C. v. M.B., 650 S.W.3d 428, 443 (Tex. 2022).

• “The word ‘shall’ in a statute may be and often is held as merely directory and as having been used in the sense of ‘may.’” Thomas v. Groebl, 212 S.W.2d 625, 630 (Tex. 1948).

These conflicting meanings of shall have prompted scholarly criticism in articles like “The Many Misuses of Shall,” “Shall We Proceed?” and “Shall Must Go.”1

2. SHALL IS USED IN MULTIPLE

SENSES IN THE SAME DOCUMENT.

The preferred meaning of shall in legal drafting is to create a duty and to impose that duty on an actor:

Subcontractor shall comply with all Contractor safety rules.

• Here, shall imposes a duty on the Subcontractor.

But shall is also used to mean that something will or must occur or be treated or viewed in a certain way:

“Seller” as used in this contract shall mean Oaker Services.

• Here, shall is not imposing a duty; it is saying that the term “Seller” refers to Oaker Services.

Legal drafters shouldn’t use the same word to mean different things—no citation needed—and Black’s Law Dictionary gives five senses of shall in legal writing: has a duty to, should, may, will, and is entitled to.2 One leading expert on contract drafting, Kenneth Adams, says that as to being used with differing meanings, “the word most abused in that regard is shall.”3

3. SHALL IS ARCHAIC.

Shall is an outdated word that, in the U.S., is rare in written or spoken English. Bryan Garner explains that today shall is usually used in only two situations: “(1) interrogative sentences requesting permission … <shall we all go outside?>; and (2) legal documents ….”4

Recommendations

You could limit shall to one

meaning in documents by scrutinizing every shall to ensure that it imposes a duty on an actor. One good test: Try substituting the phrase “has a duty to” for shall 5 If it makes sense, you’ve used shall correctly: Subcontractor shall [has a duty to] comply with all Contractor safety rules.

• Correct use of shall.

“Seller” as used in this contract shall [has a duty to] mean Oaker Services.

• This usage doesn’t make sense.

• Drop shall: “Seller” as used in this contract means Oaker Services.

Members of the panel shall [have a duty to] be selected by the commissioner.

• This usage is not correct.

• “Will” works: Members of the panel will be selected by the commissioner.

• Active voice works: The commissioner shall [has a duty to] select members of the panel.

If scrutinizing every use of shall in your document would be too time-consuming and costly for

your client, you could reasonably decide to leave the shalls as they are—especially if you’re drafting contracts. Although there are hundreds of cases of courts construing shall, nearly all of them concern statutes, not contracts.6

Finally, if you’re drafting simple agreements for nonlawyers (residential leases, consumer notices, website disclaimers), steer away from shall. For those, you could simply use “agrees to,” and if “agrees to” doesn’t make sense in a certain sentence, then shall likely wouldn’t have been correct, either. AL

1 Joseph Kimble, The Many Misuses of Shall, 3 Scribes J. Legal Writing 61 (1992); Alex MacDonald, Shall We Proceed? Ebbs, Flows, and Futility in the Debate over Words of Authority, 20 Scribes J. Legal Writing 81 (2022); Michele Asprey, Shall Must Go, 3 Scribes J. Legal Writing 79 (1992).

2 Shall, Black’s Law Dictionary (11th ed. 2019).

3 Kenneth A. Adams, A Manual of Style for Contract Drafting 9 (2013).

4 Bryan A. Garner, Garner’s Modern English Usage 825 (4th ed. 2016).

5 Bryan A. Garner, Garner’s Dictionary of Legal Usage 952 (3d ed. 2011).

6 39 Words & Phrases 173-239 (2006).

The best way to learn is of course by doing. Nothing teaches about heat quite like the center of a frying pan. However, jumping into a frying pan without first having seen how others handle the heat is a good way to end up learning your lessons the hard way. Scheduled for June 30, the AYLA Trial Institute will offer a rare opportunity for lawyers to spend a day live and in person watching some of Texas’s best trial lawyers put on opening statements, direct, cross, and closings, all from the famous Ethel and Julius Rosenberg espionage trial.

Zoom notwithstanding, modern attorneys have had far fewer opportunities to learn by watching other attorneys try cases. It is not uncommon for a young attorney to show up to a courtroom and give an opening statement having never even seen an opening statement delivered in a real trial.

Ever-rising overhead and the inflation of civil discovery has incentivized partners toward pushing for associates to bill in the office rather than shadow in the courtroom. Often clients won’t pay for a second counsel. Government agencies so often fail to grow their legal departments as quickly as the populations they handle. Many stories of yesteryear—whether it be billing in quarter-hour increments or being told to spend a full week watching a fellow attorney from the pews—sound almost mythical to most young attorneys

BLAIR LEAKE , WRIGHT & GREENHILL, P.C.

Hone Your Trial Skills by Watching The Masters

AYLA

in the present day.

AYLA cannot fix those systemic realities, but this year’s inaugural AYLA Trial Institute does provide an opportunity to similarly learn by watching talented trial lawyers do what they do at trial—while providing a full day of CLE credit to boot.

To be clear, this is no remedial class. AYLA has teamed up with the American College of Trial Lawyers (ACTL), state & federal judges, and the Austin Bar’s Civil Litigation section to put on this year’s Trial Institute program. Each demonstration will be delivered by an ACTL member, which means each speaker will be eminently talented and widely respected for their courtroom craft. Each demonstration will be followed by a panel of equally talented attorneys and judges discussing the demonstration and respective trial skill at issue.

The trial demonstrations will all be based on the famous prosecution of the Rosenbergs, an American couple who handed over nuclear secrets to the Soviet Union. The end result will be a cohesive day of trial demonstrations and learning, allowing the attendees to rapturously follow along and even observe how the different trial skills play off one another.

The AYLA Trial Institute will be open to attorneys of all ages. The one and only requirement will be that all attendees must be AYLA members—which, through the Sustaining Membership category, is something that is likewise open to attorneys of all ages and experience levels. Join AYLA today, mark your calendars for June 30, and join us for a day of watching the masters at work. AL

Scheduled for June 30, the AYLA Trial Institute will offer a rare opportunity for lawyers to spend a day live and in person watching some of Texas’s best trial lawyers put on opening statements, direct, cross, and closings.

AYLA Members, Friends, Family Return to In-Person

Volunteering for 13th Annual MLK Day Of Service

After two years of adjusting to virtual or limited in-person volunteer opportunities, AYLA was able to get back to serving the community in person for the 13th annual AYLA MLK Day of Service. More than 70 volunteers donated their time throughout the day, serving at various non-profit locations around Austin. The committee chairs, Meghan Kempf, David Holmes, and Jenna Malsbary, along with the help of Morgan Shell and Myra Dioquino, set up and led volunteer group shifts on January 16 in honor of Dr. Martin Luther King, Jr.’s memory and dedication to service.

AYLA members volunteered with the Austin Animal Shelter, which provides shelter to thousands of animals annually and is a great resource for those interested in adopting. They happily rolled up their sleeves and helped clean puppy kennels and do laundry. Members also took large dogs on walks and provided care and comfort to those smaller dog breeds (and cats!) needing more attention.

At The SAFE Alliance warehouse, eight AYLA members and two awesome teenagers gathered to help organize donations by type (i.e., clothing, toys, and toiletries) and to prepare donations for pickup by SAFE clients. The SAFE Alliance exists to stop abuse for everyone by serving the survivors of child abuse, sexual assault, trafficking, and domestic violence. The warehouse provides items for families in transition as they set up new homes.

For the first time, volunteers met to help local nonprofit Inside Books Project review book requests from people who are incarcerated and put book bundles together based on the requests.

Inside Books Project is an Austin-based community service volunteer organization that sends free books and educational materials to prisoners in Texas. Inside Books is the only books-to-prison-

ers program in Texas, where over 120,000 people are incarcerated.

Inside Books Project works to promote reading, literacy, and education among incarcerated individuals and to educate the general public on issues of incarceration.

BookSpring welcomed AYLA back to help sort books as one of their most-needed volunteer activities. BookSpring builds early literacy in children and families through healthcare, education,

and the community.

At Hilgers House, there were several different ways to donate, volunteer, and support local nonprofits. This year was our most successful donation year yet to support Flo Code by collecting feminine hygiene products and putting together packets that are distributed to those in need around Austin.

AYLA also supported the Central Texas Food Bank, the Austin

Area Urban League, and The Other Ones Foundation.

The MLK Day of Service committee appreciates everyone who took the time to help make this year’s Day of Service such a success.

It is always an honor to serve together with members of the Austin Bar Association, AYLA, local affiliate associations, friends, and family. AL

Leadership Academy Hosts Orientation, First Class Meeting

Class Members Treated to Behind-the-Scenes Tour of Texas Supreme Court

The 2023 AYLA/Austin Bar Leadership Academy kicked off on January 13 with an orientation. The class had the privilege of hearing from Austin Bar President Amanda Arriaga, AYLA President Blair Leake, Justice Chari Kelly, Councilman Rudy Metayer, Judge Karin Crump, and Judge Eric Shepperd on their leadership experiences and how they have become leaders in the Austin legal community. The class got to know more about one another and their leadership styles through the Enneagram test. The class also had the opportunity to take a behind-the-scenes tour of the Texas Supreme Court, led by Justice Debra Lehrmann. The day was wrapped up with a happy hour at Scholz Garten.

This year’s Leadership Academy class is made up of 30 local attorneys from all different areas of practice, firm size, backgrounds, and levels of experience. The class will culminate with the organization of a class project. Be on the lookout for their project later this year!

On January 25, the class members held their first class meeting at the federal courthouse, where they got to hear from Nadia Bettac and Mary-Ellen King, the co-chairs of the Austin Bar Foundation Gala committee, on the im-

portance of getting involved with the Bar and how the funds raised from the Gala support our legal community and the Austin community as a whole. The class also heard from Judge Robert Pitman, who spoke about the importance

of a legal community, leading with character, and answering the call to leadership. He encouraged everyone to connect with other colleagues, support our peers and team members, and be modest about our work.

TOP: The 2023 Leadership Academy class includes 30 local attorneys from all different areas of practice, firm size, backgrounds and levels of experience.

BOTTOM: Leadership Academy members were treated to a tour of the Texas Supreme Court, led by Justice Debra Lehrmann.

AYLA Member Spotlight – Nicole Thacker

AYLA: Tell us a little bit about yourself and your law practice.

THACKER: I moved to Austin from China in 2016, and immediately fell into love with

the hills and creeks that Austin offers. After graduating from St. Mary’s University School of Law, I moved back to Austin and joined an Austin personal injury law firm.

AYLA: How long have you been involved in AYLA, and what has been your best AYLA experience so far?

THACKER: I interned for the Austin Bar Association before I went to law school. I worked for Doug [Lawrence] and Marissa [Lara-Arebalo] on the Veterans’ Legal Advice Clinic program under the Austin Bar Foundation. My best AYLA experience so far is the Austin Bar/AYLA Leadership Academy. We are only going into our second class, but we have already heard from a Texas appellate court justice, district court judges from both federal and state courts, and a city councilmember, who were all speakers for the class. More excitingly, our class is building a project that can benefit people in need of legal assistance.

AYLA: What was your childhood dream job?

THACKER: My childhood dream job was to become a teacher,

which I have already fulfilled. I taught part time for two years during graduate school and became a full-time college teacher for five years.

AYLA: What are some of the things you enjoy most about living in Austin?

THACKER: The thing I enjoy most about living in Austin are the hiking trials. My husband, Steven, and I take our puppy hiking almost every weekend.

AYLA: What’s your best piece of advice for fellow young attorneys?

THACKER: One thing I think I can share with my fellow young attorneys is thinking about getting involved in your local community and thinking about giving back to your community from day one. AL

3305 Northland Dr., Suite 414 Austin, TX 78731 512-302-6051 kaighinjr@momentumin.com

Member: FINRA/SIPC

The thing I enjoy most about living in Austin are the hiking trails. My husband, Steven, and I take our puppy hiking almost every weekend.

Nicole Thacker joined Sandoval and James Law Firm upon obtaining her Texas law license in 2022. Nicole works as an associate attorney in the personal injury litigation department. Nicole has a master’s degree in linguistics, speaks fluent Mandarin, and previously taught freshman English as a lecturer at a university in China. She moved to Texas from China and attended St. Mary’s University School of law, where she graduated cum laude

THIRD COURT OF APPEALS CRIMINAL UPDATE

CR (Tex. App.—Austin Sep. 28, 2022, no pet.) (mem. op., not designated for publication).

Mills was charged with cruelty to non-livestock animals, specifically her dog, based on allegations that the dog’s collar had become embedded in the dog’s neck, causing the dog serious bodily injury. Mills’s neighbor discovered the injury, removed the collar, took photos of the wound, and called the police. Officers arrived at the property and spoke to Mills, who admitted that the dog belonged to her and that she fed and cared for it at least once a day.

ing to properly adjust the size of the collar that was around the said dog’s neck and allowing said collar to become [e]mbedded into the neck of the said dog.”

The following is a summary of a selected criminal opinion issued by the Third Court of Appeals in September 2022. The summary is an overview; please review the entire opinion. The subsequent history is current as of February 1, 2023.

ANIMAL CRUELTY: Trial court did not abuse its discretion in admitting expert testimony regarding the length of time it took for a dog’s embedded-collar injury to develop, and evidence was sufficient to prove defendant’s culpable mental state in causing the dog’s injury.

Mills v. State, No. 03-21-00401-

Mills claimed that the injury might have been caused by either the dog getting “hung in the fence” or from a harness that the dog had been wearing, explanations that one of the officers did not consider credible. Mills told the officers that she had discovered the injury to the dog approximately two weeks earlier and that at that time, she began treating the wound with a spray used to treat small abrasions or minor wounds.

The officers seized the dog and transported it to a veterinarian, who testified that the injury was serious, that the dog required immediate veterinary care, and that the dog should have received appropriate care as soon as the wound was discovered.

At the conclusion of the bench trial, the trial court found Mills guilty of “intentionally, knowingly, or recklessly tortur[ing] or in a cruel manner caus[ing] serious bodily injury to [a dog] ... by fail-

In her first issue on appeal, Mills argued that the district court abused its discretion by allowing one of the officers to testify that the injury took “at least a couple of weeks” to develop. Specifically, Mills argued that the officer was not sufficiently qualified as an expert witness in dog-collar injuries to testify as to the length of time it took for the injury to occur. The appellate court disagreed. Summarizing the law on expert qualifications, the court explained that “[t]he specialized knowledge that qualifies a witness to offer an expert opinion may be derived from specialized education, practical experience, a study of technical works or a combination of these things” and that “[b]ecause the spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses appropriate qualifications as an expert on a specific topic in a particular case.” In this case, the officer testified that before she became a law-enforcement officer, she had worked as a veterinary technician for 13 to 14 years, received training from four different veterinarians, been present for both animal examinations and surgeries, and seen “approximately four” embedded-collar cases during her time working as a veterinary technician. “Given this training and experience,” the ap-

pellate court could not conclude that it was “outside the zone of reasonable disagreement” for the district court to find that the officer possessed “a sufficient background in animal injuries generally and embedded-collar cases specifically so as to be qualified to provide expert testimony on the approximate length of time that it took for the injury in this case to develop.”

In her second issue on appeal, Mills argued that that there was insufficient evidence to prove that she intentionally, knowingly, or recklessly injured the dog. The court disagreed, observing that the defendant’s mental state may be inferred from circumstantial evidence such as acts, words, and the conduct of the defendant before, during, and after the offense. The court concluded that the circumstantial evidence here, including the severity of the injury, the testimony of the veterinarian, and Mills’s admissions to the officers about her daily interactions with the dog, supported a finding that Mills at least was aware of but consciously disregarded the risk that her failure to properly adjust or remove the dog’s collar would cause it serious bodily injury and unwarranted pain and suffering. AL

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries represent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.

“Information is power, the not knowing is devastating.”

Anji Maddox

The following are summaries of opinions issued by the Fifth Circuit. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.

training and, along with a white classmate, started field training in the plant’s polypropylene unit. After four months of shadowing the unit’s operators, Rahman failed his final walkthrough. Exxon gave him two weeks to study more and try to pass a second time, but Rahman failed again. Rahman then sued Exxon for race discrimination under Title VII and Section 1981. Rahman alleged that Exxon purposely gave him inadequate training because he is black. Rahman pointed to white classmate’s qualification card, which showed that his classmate had received fifteen days of training on certain subjects. Rahman’s card, by contrast, reflected that he received only two days of training from his trainer on those subjects.

The district court granted summary judgment for Exxon because, among other reasons, inadequate training could not constitute an adverse employment action.

may deny class certification based on the pleadings.

Elson v. Black, 56 F.4th 1002 (5th Cir. 2023).

Plaintiffs from seven states filed a putative class action against Black and her companies, alleging false and deceptive marketing practices in connection with a massager device called the FasciaBlaster. Plaintiffs’ complaint asserted a claim under the federal Magnuson-Moss Warranty Act, claims under several statutes, and a claim for unjust enrichment. Plaintiffs sought to certify a nationwide class and seven subclasses representing the seven states in which the plaintiffs reside—Arizona, California, Florida, Louisiana, Nevada, New York, and Ohio. Defendants moved to strike plaintiffs’ class allegations and dismiss the complaint for failure to state a claim.

court failed to conduct the rigorous analysis required by Rule 23 and, therefore, overlooked the fact that reliance is not an element of many of the state statutes at issue. The Fifth Circuit disagreed and affirmed.

As an initial matter, the Fifth Circuit explained that an order striking class allegations is functionally equivalent to an order denying class certification, and that a court may deny class certification based on the pleadings and before discovery is complete when it is apparent from the complaint that the class action cannot be maintained. The court then identified two reasons why it was apparent from the complaint that plaintiffs could not satisfy the predominance requirement for class actions seeking damages.

EMPLOYMENT DISCRIMINATION:

Inadequate training may constitute an adverse employment action if it is directly tied to the worker’s job duties, compensation, or benefits.

Rahman v. Exxon Mobil Corp., 56 F.4th 1041 (5th Cir. 2023).

In 2017, Exxon hired Rahman and nine other individuals as operator trainees in its polyolefins plant in Baton Rouge, La. Exxon requires trainees to complete an extensive, multi-pronged training program before becoming operators. Trainees must first pass basic operator training, which consists of six weeks of classroom instruction followed by written tests. Trainees who pass basic operator training move on to field training. In field training, trainees are expected to shadow plant personnel every day and track their progress with a qualification card. After roughly four months, trainees must pass a test known as “final walkthrough.” If the trainee passes, he or she becomes an operator. If the trainee fails, he or she is fired.

Rahman passed basic operator

On appeal, the Fifth Circuit squarely held for the first time that inadequate training can constitute an adverse employment action if the training is directly tied to the worker’s job duties, compensation, or benefits—which it clearly was in Rahman’s case. Even so, the court explained that inadequate training gives rise to a claim for race discrimination only where the defendant failed to provide comparable training to the plaintiff; offering a plaintiff an equal opportunity to access the necessary components of a training program is enough to defeat an inadequate-training claim.

Applying that standard, a majority of the panel held that Exxon was entitled to summary judgment because Rahman was given the same opportunity to train that Exxon gave to his white classmate. Judge Haynes dissented, arguing that the evidence gave rise to a fact issue as to whether Rahman was actual provided a comparable opportunity to train.

CLASS ACTIONS: When it is apparent from a class-action complaint that common questions do not predominate individual issues, the district court

After a hearing and some limited discovery, the district court struck the class allegations. The district court reasoned that reliance “will be a key factor with every potential plaintiff” and “is intrinsically an individual determination.” The district court later dismissed the plaintiffs’ claims in their entirety. Plaintiffs appealed.

Regarding class certification, plaintiffs argued that the district

First, different state laws govern ed different plaintiffs’ claims, and the plaintiffs failed to show that such differences in state law would not predominate over common issues. Second, the court concluded that the plaintiffs’ allegations introduced numerous factual differences that “in no way comprise a coherent class.” In particular, the court noted that different plaintiffs complained about different alleged misrepresentations and claimed to have relied on different representations. AL

David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico, LLP.

TCWLA Recognizes Trailblazing Women Attorneys

Three Local Lawyers Honored at 23rd Annual Pathfinder Awards

On January 19, 2023, the Travis County Women Lawyers’ Association (TCWLA) hosted its 23rd annual Pathfinder Awards presentation at the UT Etter-Harbin Alumni Center.

This year’s Pathfinder Awards were given to three Austin-area attorneys: Judge Aurora Martinez Jones of the 126th District Court, Justice Chari Kelly of the Third Court of Appeals, and Kate Lincoln-Goldfinch of Lincoln-Goldfinch Law.

TCWLA is committed to recognizing trailblazing women attorneys. TCWLA Pathfinders are role models—local women with law degrees who are using, and have used, their degrees in a variety of ways and who represent a diversity of life and work experiences. This year’s three winners spoke movingly of their careers and achievements, and the program was thought-provoking and inspirational.

Hon. Aurora Martinez Jones is judge of the 126th District Court in Travis County. She presides over child welfare dockets, including Family Drug Treatment Court and Dual-Status Youth dockets, reviewing Travis County cases with foster children in the care of Child Protective Services (CPS). Judge Martinez Jones has dedicated her career to ensuring that the most fragile members of our community have fair access to justice.

Before being elected judge of the 126th District Court, Martinez Jones served as Travis County’s first associate judge appointed specifically for CPS dockets. She is a first-generation American and first-generation law-school graduate. While in college at The University of Texas at Austin, Martinez Jones established Minority Women Pursuing Law, an organization to connect and support other minority women planning to attend law school.

Judge Martinez Jones shared with the audience that one of the reasons she is where she is today is that she often said “yes” whenever a good opportunity presented itself. And she reminded us that sometimes you have to keep saying yes when you want to say no and try multiple times before getting where you want to be.

Justice Chari L. Kelly of the Third Court of Appeals is board certified in criminal law by both the Texas Board of Legal Specialization and the National Board of Trial Advocacy. She has served as both a defense attorney and a prosecutor and is also a seasoned civil litigator. Justice Kelly is a U.S. Army veteran and former paratrooper. Before her election to the Third Court, Justice Kelly served as an Assistant District Attorney for both Comal and Travis counties, handling all aspects of felony criminal prosecutions. She has tried more than 35 jury trials, including aggravated sexual assault of a child, attempted capital murder, and kidnapping.

Justice Kelly shared that despite many setbacks, the support of her friends and mentors have helped her reach the position she has today. The five life lessons she wove into her story were insightful and inspiring.

Kate Lincoln-Goldfinch is the managing partner of Lincoln-Goldfinch Law. Upon graduating from The University of Texas for college and law school, she received an Equal Justice Works Fellowship in 2008, which she completed at American Gateways. Her project served detained families seeking asylum. After her fellowship, she entered private immigration practice. Her firm offers family-based immigration, such as green cards and naturalization, deportation defense, and humanitarian cases such as asylum, U visas, and VAWA. Lin-

coln-Goldfinch shared with the audience that she has been supported by many women mentors throughout her life, including her mother, who was in attendance at the luncheon. She also shared how inspired she was by her clients, particularly the mothers who sacrifice so much for their families and persevere through

TCWLA’S MISSION:

great adversity.

A recurring theme among all three honorees was the influence of supportive mentors in their lives, and each pays it forward by mentoring young women attorneys.

Please join TCWLA in congratulating the 2023 Pathfinders! AL

• Foster communication among women lawyers.

• Strengthen the image and position of women lawyers in the community.

• Work toward the elimination of gender bias.

• Inform the public about legal issues affecting women.

• Work toward the enhancement of the public perception of the legal profession.

(From left to right) Kate Lincoln-Goldfinch, Justice Chari Kelly, and Judge Aurora Martinez Jones were honored at TCWLA’s 23rd annual Pathfinder Awards Luncheon.

CAROLINE HALL is the TCWLA president for the 2022-23 term.

Nuts and Bolts: Using the New Travis County Civil and Family Courts Facility

BY GLENN A. BROWN

The long-awaited Travis County Civil and Family Courts Facility (“CFCF”) has opened, and I was lucky enough to try the first jury trial held in the new building the week of February 6, 2023.

Since the new building just opened and recent bad weather prevented anyone from visiting before the start of trial to get some hands-on experience, we learned on the fly, and I thought

sharing what we learned would be helpful.

I was impressed with the new courthouse. Like any large project, there are going to be some bumps in the road and a learning curve, but everyone there went above and beyond to make sure we could try our case efficiently. Kudos to everyone who made the CFCF a reality!

The photos included here are from Judge Mangrum’s court-

room but the layout of the courts are basically the same.

There are four tables for counsel and parties, which provide plenty of room for boxes and support personnel. The acoustics are good; no one had to raise their voice to be heard (with one exception, noted later) and

I didn’t hear any extraneous noise (street traffic, HVAC, hallway) that would be distracting to the jury.

The main method of audio-visual presentation is via a projector above the jury box projecting onto a drop-down screen on the wall opposite the jury box. There is also

, LEIGHTON, MICHAUX, ADKINSON & BROWN, PLLC

PHOTOS 1 & 2: There are four tables for counsel and parties. PHOTO 3: The main method of audio-visual presentation is via a projector above the jury box projecting onto a drop-down screen on the wall opposite the jury box. PHOTO 4: The gallery consists of four rows and is right-sized for a standard size jury panel.

a TV that mirrors the drop-down screen and a monitor for the witness stand. The sound system was good and audio playback from video depositions was clear, without echo or dead spots.

The gallery consists of four rows and is right-sized for a

standard size jury panel. I understand there is a ceremonial courtroom that is larger and can accommodate a larger-size panel when needed. There are no microphones above the gallery so there were times when the court reporter had a difficult time hear-

ing the panel members during jury selection.

The first row of the gallery is inside the bar and can also be used for extra seating/storage during trial.

The jury box is large enough to seat two or more alternate jurors.

Also, the end wall panel of the jury box can be swung open.

The courtroom is well lit and is, in fact, very bright, which can wash out the projector. Luckily, the judge has fingertip control of the lights and can easily adjust

continued on page 28

PHOTO 5: The jury box is large enough to seat two or more alternate jurors. PHOTO 6: The courtroom is well lit and very bright, which can wash out the projector. PHOTO 7: Accessing the A/V system is straightforward. PHOTO 8: Each counsel table has two connection boxes. PHOTO 9: Note that if anyone else pushes their silver button while you are broadcasting, it will stop your broadcast and start theirs.

it as needed. The TV next to the drop-down screen swivels and although it is smaller than the dropdown screen, it can be easier to see from the jury box.

Accessing the A/V system is straightforward. Connect your device through the A/V podium and select the input using the Crestron touch screen or (even better) connect directly from counsel table. Note that the only way to connect at the podium or counsel table is via HDMI.

Each counsel table has two connection boxes. The box on the right is only for power via standard 3-prong power cords. The box on the left has a HDMI port and a silver button. Attach your computer via HDMI and when you press the silver button, the A/V system will start broadcasting your connection. There are no USB connections at counsel table. However, in the hallway outside the courtroom are very nice seating areas and tables with USB-A connections to power up devices.

A few things to note:

First, if anyone else pushes their silver button while you are broadcasting, it will stop your broadcast and start theirs.

Second, although pushing your silver button will start your broadcast, pushing it again won’t stop it. The easiest way I found to

stop broadcasting was to just turn around and push the silver button on the counsel table behind you. As long as nothing is connected to the HDMI port of the table behind you, the projector will go black. Of course, the judge can control what is being broadcast, too.

Note to Apple users: If you use a Mac or AppleTV to broadcast, you

need to make sure the courtroom is set up to broadcast using your equipment. Apparently, there is a special permission that must be set to use Apple products. If you connect to the court’s system and get nothing but a big red screen, you need to let IT services know. My understanding from Tobin McDowell with the IT department is that each

CFCF LOGISTICS

courtroom must be set up to use Apple products, although this issue may have been resolved by now. The anteroom into the courtroom has two separate spaces side by side that are large enough to meet with your clients. AL

If anyone has questions, contact me at glenn@lmablaw.com.

The CFCF is located at 1700 Guadalupe, seven blocks north of the Heman Marion Sweatt Courthouse. During the week of our trial, no parking was available at the courthouse itself, but there was plenty of street parking and a UT parking garage directly south of the courthouse. However, I don’t think the UT garage has any elevators.

The CFCF’s website is still under development at the time of this writing, but the following links provide useful information:

https://www.traviscountytx.gov/courts/civil/tccfc

Main landing page and has a link to the newly posted “E-Courtroom How-To Guide” and dates for upcoming E-Courtroom Technology Open Training.

https://www.traviscountytx.gov/courts/civil/tccfc/visit

A good page to have your clients review before they go to the courthouse.

https://www.traviscountytx.gov/courts/civil/tccfc/services

A list of departments located at the CFCF and which floors they are on (District Courts are on floors 8-12; County Courts at Law 1 and 2 are on floor 7).

https://www.traviscountytx.gov/courts/civil/tccfc/about Google map of Travis County court facilities.

PHOTO 10: The anteroom into the courtroom has two separate spaces. PHOTO 11: The podium can connect in two places (the black circles on the floor).

Susannah A. Stinson | Leslie J. Bollier | Tony Ciccone

My Interview with a Chat-Bot

BY CLAUDE DUCLOUX

The opinions expressed in Entre Nous are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.

If you need assistance (and who doesn’t?) from any of the zillions of websites where we engage in commerce or communication, you’ll acknowledge that, all too often, you are subjected to the latest triumph of artificial intelligence–the automated “chat-bot.” You are confronted with a pop-up window staffed by an anthropomorphic greeting offering to help you with your “problem.” Of course, the relative sophistication and scope of each firm’s chat-bot is as wide as the Grand Canyon. While a software company’s chat-bot may be trained in 100 different solutions, usually a bank’s chat-bot answers are limited to “Would You Like to Open a New Account” and “We Can Open a New Account.” Sadly, your inquiry on interest rates will never reveal that, despite inflation, your savings account interest rate remains at a dependable 1 dried raisin every 90 days.

Now, I have no issue with having my problem solved, whether it be by highly programmed machine or a heavily accented live attendant in a country that contains most of the letters of the English alphabet. But I do insist upon resolution. And chat-bots couldn’t care less if you’re satisfied. Here’s a typical exchange:

ChatBot: How can I help you?

ME: I need to see if a bill was paid.

ChatBot: The best pain medications are ibuprofen and acetaminophen.

ME: Not “pain,” I need to know the payment date of an invoice.

ChatBot: Invoice functions are in the finance software. Would you like a tutorial?

ME: No. Can you access my account?

ChatBot: Would you like to start a new account?

ME: No. No. Thank you

ChatBot: You’re welcome. Did I resolve your issue?

ME: No. So …where can I get that ibuprofen?

Now, clearly we should have seen this coming. Need I remind you of the grandfather of such spookiness: Microsoft’s “Clippy,” ,the animated paper clip with Groucho Marx eyes who “divined” what document you were drafting and offered help. “Hey, it looks like you’re drafting a letter. Want me to help?” No. “But, you can create macros with the insert function; want to learn how?” No! Go away! “Sure, but … for the record, that’s not how you spell subpoena.” Happily, “Clippy” met his digital doom when the public discovered he could be deleted with the code Control+Alt+DIECLIPPYDIE. But I digress.

I have an engineering friend, Dave, at the nearby headquarters of Acumacloud Software, which specializes in helping Gen X-ers understand plot devices in streaming series. I asked him

if their website had a “Bot.” He said they did, and he gave me the name and number of their head of AI engineering. I decided to give him a call.

ME: So, you’re Ryan? Are you the chat-bot guy?

RYAN: Who told you?

ME: Uh, Dave. Is that a problem?

RYAN: I guess not. Just didn’t expect anyone to call me.

ME: Well, I want to ask you, how long did it take you to develop your website’s chat-bot?

RYAN: Dave said I could tell you? I mean … the truth?

ME: Uh … sure.

RYAN: About a week.

ME: Only a week? One week?

RYAN: Sure, I wrote out about 50 common questions, and 50 evasive answers, and I just follow the script.

ME: What do you mean, “follow the script?”

RYAN: Well, there is no artificial intelligence component. It’s usually just me, sitting at my computer intercepting customer contacts. Sometimes I let my kids do it if I’m in bathroom or there’s a Cowboys game on.

ME: But doesn’t the chat-bot have to work 24 hours?

RYAN: Sure, but not in a row! Have you ever seen a chat-bot popup at 2 a.m.?

ME: I’m never online at 2 a.m.

RYAN: Bingo. Me either. Nobody really wants to talk to the bot, so no one misses it.

ME: But isn’t it hard to answer all the questions?

RYAN: Not after the 30-minute training. The secret is the three“As” of “Botting”

ME: Three “As”?

RYAN: Yeah … Answer, Avoid, and Abandon.

ME: Doesn’t sound very effective in resolving questions.

RYAN: Thanks. I think we nailed it.

ME: Well, do you think you’ll actually build a real effective chatbot?

RYAN: If we did, we’d be the first. Look, chat-bots are a diversion, intended to give the false impression that a machine can solve your problem, and their evasion will outlast any human being’s tolerance for waiting. Sometimes they get lucky, and a random answer works, but mostly it just

prompts the customer to discover the real way to get live customer service.

ME: So, chat-bots serve an intermediary process?

RYAN: Yeah. Like diverting kids with shiny stuff, or saying the words “Hunter Biden’s Laptop” to conservative news watchers. They’ll watch for hours.

ME: So, I must ask: How did you come up with this plan? This device of diversion and deceit?

RYAN: Well, just watch the news. Nobody checks the truth of anything anymore. And when they do check, it takes so long that no one even cares when the truth comes out. By that time, we’ve moved on to new diversions. You know, even reality has become virtual. Go figure.

Well, you know, Ryan has a point, and that point directly relates to our duties of truth and candor that we owe to each other and our clients. When we’re asked a question, we need to listen to the actual question, and, unless the answer is protected by confidentiality, give an honest answer. We are not the hired guns and junkyard dogs that some clients desire. And being one will never make your client happy.

Case in point: The former president and his lawyer were, jointly and severally, sanctioned to the tune of $937,989 as costs for filing baseless claims. In the inevitable conversation between that lawyer and her client, undoubtedly, she will try to confirm that HE will pay those sanctions, as all she did was what he asked her to do. He undoubtedly (if history is any guide) will reply, “Me pay? You’re the lawyer who filed that junk. Never should have happened! I’m suing you to indemnify me!” And you know what? He’s right. That lawyer should never have filed those baseless claims.

The moral: Our jobs as lawyers are to be skilled guides and problem solvers. To do that, we must answer questions honestly and advise our clients of our duty to follow the rules. If you don’t, perhaps you can find work as a chat-bot.

Keep the faith. AL

Attorney Erin Leake Board-Certified in Family Law by the Texas Board of Legal Specialization

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