Austin Lawyer, February 2021 by Austin Bar Association

austinbar.org FEBRUARY 2021 | VOLUME 30, NUMBER 1

Celebrating Our History BY AYEOLA WILLIAMS “Everything that I’ve done, I’ve been blessed by the people who have come before me.” – Pflugerville Councilmember Rudy Metayer

lack history is American history. However, unlike other Americans, Black Americans have experienced unique structural and societal barriers to success. Black Americans suffered, among other things, chattel slavery; racial violence; Jim Crow laws; segregation; redlining practices; over-policing; discriminatory practices in education, housing, criminal justice, and employment; and inadequate and unequal access to quality healthcare. These policies were not accidental. They were intentional and had the effect of decimating Black communities. Among the Black Americans who overcame, a small number have been able to achieve remarkable success—against all odds. Each February at the Andrea Pair Bryant Legacy Luncheon, the Austin Black Lawyers Association (ABLA) celebrates the legacy of Black attorneys who have made significant contributions to the Black community, the Austin legal community, and to ABLA. In years past, the Legacy Luncheon was held at the Chateau Bellevue

in downtown Austin and attended by members of the judiciary, council members, and members and friends of ABLA. This February, while we cannot gather, let us still reflect and honor some of the local trailblazers who broke down barriers in the Austin legal community. • In 1883, 38 years after Texas was annexed to the United States, John N. Johnson became the first Black attorney in Austin as well as the first Black admitted to practice before the Supreme Court of Texas. Johnson is remembered in history as a social justice warrior, filing what may have been the earliest civil rights lawsuits in Texas. • Because of the post-Reconstruction backlash and Jim Crow laws, for the next two or so generations Black Americans were largely excluded from the legal apprenticeship system, legal academic training programs, and legal and judgeship opportunities. According to the late Marquette University Law School Professor J. Gordon Hylton, there were

TOP: Rev. and Mrs. Joseph C. Parker, Jr. and Judge (ret.) and Mrs. Wilford Flowers. BOTTOM LEFT: Judge Lora Livingston being presented with the Joseph C. Parker, Jr. Diversity Award by Judge Eric Shepperd in 2016. BOTTOM RIGHT: Judge Wilford Flowers (ret.) with Austin Bar Executive Director DeLaine Ward.

only 20 Black lawyers in the entire state of Texas in 1930.1 • In 1969, Judge Harriet Murphy (ret.) graduated from the University of Texas School of Law—still the only Black student in her class despite the Supreme Court’s decision in Sweatt v. Painter, 339 U.S. 629 (1950), overturning the separate but equal doctrine in public education by requiring graduate and profession-

al schools to admit Black students. Murphy went on to become the first Black female lawyer appointed to a regular judgeship in Texas (1973) and served on the City of Austin Municipal Court for 20 years. • Recipient of the 2011 Austin Bar Association’s Distinguished Lawyer Award, Judge Wilford Flowers (ret.)—Port Arthur born and UT Law educated continued on page 8

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CONTENTS

AUSTINLAWYER FEBRUARY 2021 | VOLUME 30, NUMBER 1 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

CONNECTIONS

Celebrating Our History

Call for Austin Bar Board Nominations Consider a Leadership Position in 2021

ONLINE austinbar.org

Austin Attorneys Provide #mealsforheroes

10 16 17

15 Update: Hon. Lee Yeakel IP Inn

Inn of Court Achieves Excellence

21 ABOTA Honors Judge Sulak with Prestigious Award

Legal Services

27 2021 Judicial Evaluation Poll

Poll Conducted In Early February

ONLINE

26 Austin Bar Family Law Section Helps Volunteer

Equity Committee Spotlight Briefs Be Well Opening Statement Third Court of Appeals Civil Update Third Court of Appeals Criminal Update Federal Civil Court Update Criminal Court News AYLA Practice Pointers

EMAIL nancy@austinbar.org MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar

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NEWS & ANNOUNCEMENTS History of Equity in the Austin Bar — So Much Progress … So Much to be Done Join the Equity Committee for a panel discussion on Feb. 19, 2021. Visit austinbar.org to RSVP. Oops! I Made a Mistake! Dismantling the Myth of Lawyer Perfectionism Join the Lawyer Well-Being Committee for a panel discussion on Feb. 26, 2021. Visit austinbar.org to RSVP.

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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. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District of Texas Federal Court and the Texas Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.

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Call for Austin Bar Board Nominations Consider a Leadership Position in 2021

ustin Bar Association members are leaders in their firms, their communities, and their world. They work to make a difference and care deeply about the law, while juggling family commitments and responsibilities to multiple civic groups, nonprofits, and faith organizations. This is especially true of those who serve in leadership positions. The dedicated, passionate, and talented lawyers who serve as directors and officers on the Austin Bar board of directors, along with those who chair its committees and lead its sections, are in the unique position of significantly impacting the Austin legal profession and the community at large.

If you’ve been active in the Austin Bar and would like to join this dynamic leadership team, now is the time. If you’ve been active in the Austin Bar and would like to join this dynamic leadership team, now is the time. If you are interested in running for a position as a director or officer, please send a resume, along with an indication of the position for which you desire to run, by Fri., Feb. 26 to: Austin Bar Association, ATTN: Nominating Committee, 712 W. 16th St., Austin TX 78701, or email Austin Bar Executive Director DeLaine Ward at delaine@austinbar.org. Officer positions are one-year

terms; director positions are for two years. Nominees for the office of president-elect shall have served at least two years on the board of directors prior to assuming office. The Nominating Committee’s decisions will be announced on or before Mon., March 15. The number of candidates to be nominated for each position shall be left to the discretion of a majority of the Nominating Committee. Any qualified member not receiving the nomination of the committee may be included

FEB. 26 AUSTIN BAR BOARD NOMINATIONS DUE NOMINATIONS COMMITTEE

712 W. 16TH ST., 78701 Email: delaine@austinbar.org

on the ballot by submitting a written petition signed by 75 members of the Austin Bar. Such written petitions must be submitted by Thurs., April 8. Voting shall be conducted via electronic ballot. If you have questions about the nomination or election process, contact DeLaine Ward at AUSTIN LAWYER AL AL delaine@austinbar.org.

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EQUITY COMMITTEE SPOTLIGHT

Celebrating Our History continued from cover

Presiding Judge for the Criminal Courts. Prior to Kennedy, Judge Joel Bennett was the first judge to run the Travis County Drug Court and sat on its bench for 19 years.

Ayeola Williams is staff attorney at Capital Metro, immediate past-president of the Austin Black Lawyers Association, co-chair of the Austin Bar/AYLA 2021 Leadership Academy, and a member of the leadership team for the Austin Bar’s Equity Committee.

(’76)—broke many barriers in his legal career in Austin. Flowers was the first Black person to be appointed as an assistant district attorney, the first Black person to serve as a Travis County Court at Law judge, and the first Black person to serve as District Court judge. • In 1988, Judge Brenda Kennedy became the first Black woman to be elected in a contested countywide race as County Court at Law Judge. In 2002, Kennedy was elected to her current position as judge of the 403rd District Court and now serves as the

• Rev. Joseph C. Parker, Jr., son of a civil rights advocate who had a personal relationship with Martin Luther King, Jr., was the first Black person elected as president of the Austin Bar Association (known then as the Travis County Bar Association) and served from 1996 to 1997. The Austin Bar’s Joseph C. Parker, Jr. Diversity Award is named in his honor. Rev. Parker received the Distinguished Lawyer Award from the Austin Bar in 2018. • In 1998, Judge Lora J. Livingston was elected to serve as District Court judge, becoming the first Black woman to preside over a Travis County District Court. Livingston was also the first Black Associate Judge before being elected as District Judge. A former Reggie Fellow, Livingston has received numerous awards for her leadership and community service, including the American Bar Association’s 2020 Spirit of Excellence Award. In 2016, she was the first recipient of the Joseph C. Parker, Jr. Diversity Award from the Austin Bar.

(from left) Judge Harriet Murphy (ret.), Gary Cobb, Judge Aurora Martinez Jones, and Craig Moore.

• On Jan. 1, 2021, in a historic event, Judge Livingston swore in Judge Aurora Martinez Jones as the first Afro-Latina elected to the Texas 126th District Court, with remarks provided by Judge Eric Shepperd, the first Black male Civil County Court at Law judge and Presiding Civil County Court at Law judge in Travis County. Martinez Jones is the most recent recipient of the Austin Bar’s Joseph C. Parker, Jr. Diversity Award. Judge Shepperd established the award during his term as Austin Bar president from 2015-16. • In 2000, Judge Samuel Biscoe became the first Black Travis County Commissioners Court Judge—serving in the role for more than 15 years. Biscoe

returned to the position in May of 2020 to serve as interim County Judge, leading the Austin area through some of the most challenging days of the COVID-19 pandemic. • Velva Price, Travis County District Clerk, was the first Black female president of the Austin Bar Association and the first Black person to serve as District Clerk. To all of our local trailblazers, named and unnamed, we thank you and LAWYER honor you, in February AUSTIN AL AL and beyond. Footnote 1. J. Gordon Hylton, Black Lawyers in the 1930s, https://law.marquette. edu/facultyblog/2012/05/blacklawyers-in-the-1930s/ (last visited Jan. 13, 2021).

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Austin Attorneys Provide #mealsforheroes BY DANIELLA LYTTLE

here is no question that COVID-19 has had an impact on everyone. At the time this article went to press, Travis County had almost 60,000 confirmed COVID cases, sending Austinites to the ICU in massive numbers and putting a tremendous strain on our medical community. Nurses, doctors, hospitalists, and medical staff have struggled with their dual roles as health care providers and caregivers to their own families. Many have increased their work hours to cover the greater needs of the

Austin community, often while experiencing a reduction in pay. In addition, many with children are struggling to find childcare or help with monitoring virtual school. Working from home was never an option for the medical community, and, as first responders, Austin depends on them now more than ever before. At the beginning of the pandemic, medical professionals had to worry about securing enough personal protective equipment (PPE) and witnessed firsthand the impact of the novel virus and what it was doing to the community. Once PPE equipment

sanitizing system, the masks are sanitized and reused to stretch the supply. Austin Bar member Daniella Lyttle recognized the hardships facing the medical community early on and began driving around Austin collecting N95-rated masks from willing donors and delivering them to local hospitals. As the pandemic continued to drag on, Lyttle became aware that many hospitals had to shut down the food lounges providing hot meals for medical professionals. This is when she started delivering packaged meals randomly to hospitals in the Seton system,

As the pandemic continued to drag on, Lyttle became aware that many hospitals had to shut down the food lounges providing hot meals for medical professionals. This is when she started delivering packaged meals randomly to hospitals…. During one of those deliveries, she posted pictures of her meal delivery on social media, and #mealsforheroes was born. became more readily available, the medical community continued working long shifts wearing uncomfortable gear. In addition to their normal protective gear, medical professionals are wearing N95-rated masks, with a surgical mask on top, followed by a face shield or goggles. On top of all this gear, medical professionals are wearing a hood with a blower that creates positive pressure inside the hood, a surgical isolation gown, surgical booties, and double or triple gloves. The typical shift at the hospital is 10 to 12 hours long with the gear making deep and painful dents on the skin and causing difficulty with normal breathing functions for even the most experienced professionals. Currently, N95-rated masks are still in short supply. Austin medical professionals do not have the supply to have disposable N95-rated masks. Using a UV-C

Daniella Lyttle is the managing partner of Lyttle Law Firm. Her firm focuses exclusively on family law and immigration law matters and has been serving Austin since 2010. Lyttle is also a member of the Austin Bar.

Hertel, court reporter to Judge Hathcock, and local dentists Dr. Khosravian and Dr. Bemanesh. Multiple meals have been served throughout the Seton network of hospitals with enough funding to carry #mealsforheroes through March of 2021. with the simple hope that getting Austin lawyers have suffered a hot meal would make somefrom disrupted schedules, stress, one’s day a little brighter during and isolation from friends a long shift at the hospital. and family, while watching During one of those deliveries, colleagues, friends, and family she posted pictures of her meal struggle with the unknowns of delivery on social media, and COVID-19. It has caused many #mealsforheroes was born. There to dig deep for inspiration and was an overwhelmingly positive hope. Despite all that, the legal response from local attorneys community is here, present, and who sympathized with the hardwilling to acknowledge the sacriships of the medical community fices local medical professionals and commented that they, too, are making daily for Austin. wanted to help. There’s no better way to start Thanks to the contributions of 2021! ’Tis the season to bring Austin attorneys Jake Gilbreath, smiles and hot meals to the heKeiko Anderson, Patricia Dixon, roes in the medical community, Dorothy Lawrence, Gabrielle Schto say thank you, and to take care reiber, Caroline Badinelli, Holly of them while they continue to Davis, Margaret Kercher, Audrey give so much back. Blair, Ilana Tanner, Eileen LawIf you’re interested in helping rence, Melissa Ward, and Claire with #mealsforheros, you may Carter, with Lyttle’s commitment email Lyttle at ddl@lyttlelaw.com. AUSTINLAWYER to match, dollar-for-dollar, those AL AL first contributions, $3,000 has been collected to date. Additional contributors were Angie FEBRUARY 2021 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Robert Derner Lauren Ditty James Feigen

ABOVE: (from left) Allen, Ayala, Cole, Evans, Laura Fowler, Griffin

Mark Fenner Arnold Foerster Alana Goycochea

LEFT: Honey Johnson, King, Peña

Hunter Hudson Wesley Hunnell Thomas Just Sean King Rebecca O'Connor Maximilian Raileanu Elizabeth Scherer Anthony Woolstrom

AWARDS The Fowler Law Firm has been named 2020 Member of the Year by the Austin LGBT Chamber Business Awards. NEW TO THE OFFICE Elizabeth J. Ayala joined Bollier Ciccone’s family law practice. Ayala specializes in custody cases, protective orders, and cases involving mental health experts.

Megan Honey Johnson accepted a position as a judge at the State Office of Administrative Hearings.

AUSTINLAWYER | FEBRUARY 2021

Richie & Gueringer announces their newest attorney, Mary Ellen King. King brings valuable trial and litigation experience to the firm and will focus her practice on business litigation. MOVING ON UP McGinnis Lochridge is pleased to announce that the firm has elected Mary H. Allen and Zachariah T. Evans to partner.

V. Blayre Peña announces the opening of her new (virtual)

law firm VBPena Law. The firm will focus on business and construction litigation and appeals. Joining Peña as of counsel is her longtime partner, Terry Scarborough. Quinn Emanuel Urquhart & Sullivan, a business ligation firm based in Los Angeles, has opened an office in Austin. Scott L. Cole and Asher B. Griffin joined the firm as partners. Slack Davis Sanger announced that it combined with Dallas-based Guajardo & Marks, effective Jan. 1, 2021. The combination will form one of the top personal injury trial law firms in Texas with expanded capabilities in Dallas and Austin. The firm will continue as Slack Davis Sanger.

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BE WELL

Stress in the Digital Age Using Tech to Impact the Stress It Can Cause BY ERIC S. KNUSTROM

Eric S. Knustrom is a principal member at Texas Star Alliance, an integrated public affairs firm, and a member of the Austin Bar’s Lawyer Well-Being Committee.

t probably won’t shock you that this article was completed at the last minute. I’m guessing stress has led every attorney to push deadlines to the limit or miss them completely. We chose a stressful profession. Each year the American Psychology Association (APA) conducts a survey of Americans about stress. It is no surprise that in 2020 their survey showed unprecedented levels of stress driven by the COVID-19 pandemic and other traditional sources of stress.1 This article is a brief discussion of how stress is tied to technology and technology to stress, and what we as professionals can do about it using technology. The term stress was borrowed from the field of physics by one of the fathers of stress research, Hans Selye. In physics, stress describes the force that produces strain on a physical body.2 In psychological terms, stress is also the tangible impact that forces have on our body, both mentally and physically. While the hormones that stress releases can be initially helpful (think fight or flight) 12

AUSTINLAWYER | FEBRUARY 2021

over time they can have negative effects on our overall health. It is ironic then that much of the technology we create to eliminate stress and labor ends up causing the most stress in our lives. According to the APA, the majority of technology-induced stress comes from the omnipresent smart phones we all carry.3 Paradoxically, the technology we create to alleviate stress causes much of our stress. So which came first, the chicken or the egg? Researchers from Carnegie Mellon University analyzed data from 1983, 2006 and 2009, and found people’s self-reported stress levels have increased 1030% in the last three decades.4 Despite this increase, nothing has created more stress faster than the COVID-19 pandemic. In comments regarding the 2020 APA stress survey, Arthur C. Evans Jr., PhD, APA’s chief executive officer, said, “This survey confirms what many mental health experts have been saying since the start of the pandemic: Our mental health is suffering from the compounding stressors in our lives[.] This compounding stress will have serious health and social consequences if we don’t act now to reduce it.”5 It is important to give credit to the role that videoconferencing tools have played in coping with the pandemic. Zoom, Skype, etc. have allowed for face-to-face interactions ranging from business meetings, where they were the norm, to happy hours, worship services, and fitness classes. Therapy has even moved online, with the majority of visits with healthcare professionals being conducted through telemedicine. Technology like social media and text-based communication have allowed us to stay connected to family and friends, but they can

According to the American Psychology Association, the majority of technologyinduced stress comes from the omnipresent smart phones we all carry. Paradoxically, the technology we create to alleviate stress CAUSES much of our stress. 3

cause envy, miscommunication, FOMO (fear of missing out), bullying, and feelings of being ignored or excluded. Not to mention things like perpetual distraction, sleep dysregulation, loss of work/ life balance, and amplification of negative emotions that can come from overusing these tools. The response from technology companies has been to design in safeguards to help users manage the negative effects. An example of technology that can “help you over the hump” can be found on Reviewed.com’s list of the 10

best apps to block social media.6 These apps allow you to provide yourself an allowance of time to spend engaging with technology. For example, the app “OFFTIME” allows you to block the specific things that distract you the most—social media, games, and even text messages—by allowing you to set schedules for specific activities, e.g., Work, Family, or Me Time. Silicon Valley has seen a market for tools to help you meditate, organize, declutter, break habits, get therapy, or just journal. These

tools include everything from free resources to platforms that require a subscription. In the appendix I provide links to a few of the best lists of available apps. The key to success in these efforts, as in any endeavor, is to decide in advance what kind of relationship you want to have with technology, put rules in place for yourself (which the technology can help you stick to), create obstacles that give you pause before you deviate from your rules, and stick to your intentions. The key is finding what works for you. A simple search for “wellness” or “mental health” in the app store on your device will provide you with a list of relevant apps that you can sort based upon price, popularity, or subjective reviews by experts. If you’ve made it this far, you’re likely a little stressed out. Take a second, lean back, take a deep breath, and then find five

minutes later in the day when you can make a plan to consider your relationship with technology and stress. It might mean using one or more of the apps available to manage your stress or it might just mean planning to unplug from everything and sit quietly focusing on your feelings each day. Right now, for me, it is going to be taking my four-legged friend out for a brisk walk in the unseasonably cold air . . . and leaving my phone at home. Always remember for larger issues, TLAP is a resource you can always turn to for help. Visit AUSTIN LAWYER AL AL tlaphelps.org. Footnotes 1. Stress in America 2020TM: A National Mental Health Crisis, Am. Psychological Ass’n, https://www. apa.org/news/press/releases/ stress/2020/sia-mental-healthcrises.pdf. 2. Hans Selye, Stress Without Distress (1974). 3. Supra note 1. 4. Who's Stressed? Distributions of

Psychological Stress in the United States in Probability Samples from 1983, 2006, and 2009, Sheldon Cohen & Denise Janicki-Deverts, J. Appl. Soc. Psychology (2012), https://onlinelibrary.wiley. com/doi/abs/10.1111/j.15591816.2012.00900.x. 5. Stress in America 2020 Survey Signals a Growing National Mental Health Crisis, Am. Psychological Ass’n (Oct. 20, 2020), apa.org/press/ releases/2020/10. 6. Courtney Campbell, 10 Apps That Block Social Media So You Can Stay Focused and Be More Productive, Aug. 28, 2019, Reviewed, https:// www.reviewed.com/smartphones/ features/10-apps-that-block-socialmedia-so-you-can-stay-focusedand-be-more-productive.

Appendix A Review of Meditation Apps for Adults https://www.apaservices.org/practice/ business/technology/tech-column/appstools-psychologists. Top Mental Health Apps: An Effective Alternative for When You Can’t Afford Therapy? https://www.psycom.net/25-best-mentalhealth-apps. ADAA Reviewed Mental Health Apps https://adaa.org/finding-help/mobileapps.

FEBRUARY 2021 | AUSTINLAWYER

Update: Hon. Lee Yeakel IP Inn

Save the Date

Inn of Court Achieves Excellence

he Honorable Lee interactive and engaging gameYeakel Intellectual show format, this program Property Inn of covered non-meritorious IP Court was awardclaims and the various ways that ed Platinum level status—the the judicial system identifies highest level possible—for the and addresses these claims. 2019-20 year. The status was Presenters Clark Oberembt, granted for excellence and Joshua Graham, Ben Ediger, significant contributions in five and Matt Melancon challenged areas: Administration, CommuInn members to provide answers nications, Programs, Mentoring, in the form of questions to and Outreach. queries about recent cases that The organization had an were resolved early (e.g., on a administrative meeting to kick motion to dismiss or a motion off the 2020-21 year, which for summary judgment). After required Inn members to adjust polling users for their answers, to virtual meetings due to the a discussion of relevant cases ongoing pandemic. pertaining to the question was AUSTIN LAWYER AL AL The first CLE-approved provided. presentation was on Oct. 15, 2020 and featured a videoconferenced presentation by the Inn’s first pupilage team under team leader Aashish Kapadia. Presented in an

EQUITY SUMMIT Fri. May 14, 2021 10 a.m. – 3 p.m.

Don’t miss this free, virtual event sponsored by the Austin Bar’s Equity Committee. Join us, and be a part of shaping our continued focus on equity in future bar years. More details about speakers, topics, and registration will be available soon.

L A W

F I R M

LLP

FEBRUARY 2021 | AUSTINLAWYER

OPENING STATEMENT

A Flowing Statement of Facts Using Topic Sentences and Headings BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

any lawyers write memos, trial and appellate briefs, or briefs in administrative matters, and those documents contain a section called the Statement of Facts. Naturally, a Statement of Facts should be credible, ethical, and persuasive, but it should also flow—guiding the reader through the events in an easy-to-follow, coherent way. To accomplish those goals, legal writers can use two basic yet effective tools: topic sentences and headings. DATES AREN’T TOPICS I’ve seen Statements of Facts in which the first sentences of a series of paragraphs all begin with a date. The practice sometimes continues for three, four, or five paragraphs in a row. For example, three consecutive paragraphs might begin like this: • On September 30, 2019, … • On December 17, 2019, … • On February 22, 2020, …

Two problems: First, it’s common advice to omit a flurry of dates. “Avoid over-chronicling—most dates are clutter,” says Judge Mark Painter. “We don’t know what … if any, dates we should remember.”1 Second, even when dates are relevant, they’re usually not important enough to justify giving them primary placement. When you begin a paragraph with a date, you’re implying that the date is important—topical. That’s usually not true. So write a topic sentence that encapsulates the main idea of the paragraph. If you need chronology, work the date in later or use relative-time references: • BK Events catered a successful party for Mesa, Inc. in September 2019…. • Three months later, Mesa 16

AUSTINLAWYER | FEBRUARY 2021

contracted with BK to cater another party in May 2020…. • Ultimately, in light of the Covid-19 pandemic, Mesa sought to cancel the contract on February 22, 2020…. WITNESSES AREN’T TOPICS I’ve seen Statements of Facts in which the first sentences of a series of paragraphs all begin with a name—often that of a witness. In a brief responding to a claim for benefits, three consecutive paragraphs might begin like this: • Dr. Cynthia Rao examined the claimant and testified that … • Dr. Robert Eaton, a psychiatrist, examined the claimant on … • Chris Serna, a vocational expert, interviewed the claimant …

Again, two problems: It’s good advice to avoid presenting the facts by witness. “Never include the deadly witness-by-witness summaries of testimony that some brief-writers favor,” says Judge William Whitbeck.2 More to the point, the witnesses are rarely the topics you’re writing about, and if they aren’t, they don’t deserve primary placement. Rather than giving witness names prominence in the opening sentence, create true topic sentences. Here, you could use the impairments that the claimant alleges, and other topics as appropriate. It might look like this: • The claimant asserted a physical impairment based on lumbar spinal stenosis…. • A second alleged impairment, based a depressive disorder, relied on the testimony of psychiatrist Dr. Robert Eaton…. • Yet a vocational expert testified that reasonable opportunities for work existed in the national economy….

Naturally, a Statement of Facts should be credible, ethical, and persuasive, but it should also flow—guiding the reader through the events in an easy-to-follow, coherent way. For readability and flow, topic sentences often work better than focusing on dates and names.

rebuts the claimant’s asserted impairment based on a depressive disorder.

Both techniques, topic TRY HEADINGS sentences and headings, require If the Statement of Facts is long thought and effort by the writer, or complex, you can aid the but they pay off with a more readreader and improve the flow able and persuasive Statement of AUSTIN LAWYER with headings. After all, few of AL AL Facts. us want to read long, unbroken blocks of text. You can use short Footnotes topic headings with boldface 1. Judge Mark Painter, The Legal Writer: 40 Rules for the Art of Legal Writing text, initial capitals, and no 33 (2d ed. 2003). punctuation: 2. Quoted in Bryan A. Garner, Judges on • Background Briefing: A National Survey, 8 Scribes J. Legal Writing 1, 26 (2002). • Previous Claims • Alleged Impairments You can use point headings, too—typically boldface assertions using sentence case and ending with a period: • The psychiatrist’s testimony

THIRD COURT OF APPEALS CIVIL UPDATE The following are summaries of selected civil opinions issued by the Third Court of Appeals during November and December 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Jan. 4, 2021.

> IMMUNITY: Placing patient on exam table without guardrails constitutes a use of property within TTCA’s waiver. Univ. of Tex. v. Moses, No. 0319-00465-CV (Tex. App.—Austin Nov. 4, 2020, no pet. h.) (mem. op.). After informing medical staff that she often fainted when getting shots, a nurse gave Moses a shot and left her unattended on an exam table without guardrails. Moses rolled off the table and broke her jaw. The trial court denied UT’s plea to the jurisdiction. UT contended that Moses’s claims were not within the TTCA’s waiver because her injuries were caused by errors in medical judgment, not by use of the exam table. According to the court of appeals, even if the use of property was preceded by medical judgment, it does not transform Moses’s complaint to one based solely on medical judgment. The court affirmed. The dissent disagreed that immunity was waived for Moses’s alternative claim that leaving a

patient unattended constituted a use of the table. MANDAMUS: Court grants mandamus relief when trial court abated State’s condemnation proceeding. In re State of Tex., 03-20-00447CV (Tex. App.—Austin Dec. 2, 2020, orig. proceeding). State sought to condemn property owned by Taylor and on which Patterson held an easement. State’s condemnation would landlock Patterson’s property. The trial court granted Patterson’s plea in abatement based on State’s failure to make him an offer. State argued that it was only required to make an offer to the owner, not to an easement holder. Noting the distinction in Property Code chapter 21 between “property owner” and one holding a “property interest,” the court held that the statute only required State to make an offer to the fee simple owner. As an easement holder, Patterson was entitled to participate in the condemnation proceeding and share in the award. The court granted mandamus relief. MANDAMUS: Court grants mandamus relief when trial court refused to transfer an uncontroverted venue challenge. In re Mathes, No. 03-20-00379CV (Tex. App.—Austin Dec. 3, 2020, orig. proceeding) (mem. op.). Divorce decree awarded

mother the right to designate children’s primary residence. Decree also provided that the parties would not change venue from Bell County. Mother later sought to transfer the proceeding to Rusk County, where children had lived for over a year. Father sought modification to allow him to designate the primary residence. The trial court did not transfer the proceeding and awarded father the right to designate the children’s residence. According to the court of appeals, a trial court shall transfer venue if, as here, an opposing party fails to file a controverting affidavit. The court observed that mandatory venue statutes cannot be waived by agreement. Thus, the trial court abused its discretion, and the court granted mandamus relief. MANDAMUS: Court grants mandamus relief in insurance valuation dispute. In re USAA, No. 03-19-00292CV (Tex. App.—Austin Dec. 23, 2020, orig. proceeding) (mem. op). After their home was extensively damaged by fire and disagreements arose over carrier’s decision to repair versus replace certain items, owners sued. Months later, USAA invoked the policy’s appraisal clause. The trial court denied the motion to compel appraisal. The court of appeals concluded that USAA had not waived the appraisal

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clause by delay. Owners also failed to show any prejudice by the delay. The court further concluded that the appraisal clause covered the carrier’s decision to repair and not replace items. According to the court, whether to repair or replace is an “amount of loss” question for an appraiser. The court further concluded that the alternative living expense dispute was also within the scope of the appraisal clause. The court granted manAUSTIN LAWYER AL AL damus relief.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

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.

The following are summaries of selected criminal opinions issued by the Third Court of Appeals during July 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Jan. 1, 2021.

> CONSTITUTIONAL CHALLENGE TO STATUTE — ONLINE SOLICITATION OF MINOR: Definition of “minor” in statute is not unconstitutionally vague. Ex parte Vazquez, 605 S.W.3d 248 (Tex. App.—Austin 2020, pet. ref’d). The State charged Vazquez with the offense of online solicitation of a minor. Vazquez filed a pretrial application for writ of habeas corpus, asserting that the statute defining the offense is void for vagueness and thus facially unconstitutional. The district court denied relief, and the appellate court affirmed. The basis of Vazquez’s challenge was the statute’s definition of “minor” as “an individual who is younger than 17 years of age” or “an individual whom the actor believes to be younger than 17 years of age.” The statute does not define the term “believes,” which, according to Vazquez, rendered the statute 18

AUSTINLAWYER | FEBRUARY 2021

unconstitutionally vague. In Vazquez’s view, the statute provided no standard for determining whether the defendant “believes” the person with whom he is communicating is a minor. The appellate court rejected this argument, explaining that “due process does not demand that a statute provide ‘perfect clarity and precise guidance’ but only ‘fair notice of what is prohibited.’” Following another case that had considered the meaning of “believes” in a different statute, the court concluded that “‘[b]elieves’ is a term that readily can be understood by a person of common intelligence” and that “a person of common intelligence can determine with reasonable precision what conduct this statute prohibits.” Moreover, the term was not subjective: “A defendant’s belief as to a person’s age is a ‘clear question of fact’ that requires a ‘true or false determination.’ Such a determination may be made by considering all the facts and circumstances in the case, including but not limited to the defendant’s words and conduct.” The court added that “[t]o the extent that there may be ‘close cases’ in which it is difficult to determine the defendant’s belief, such cases are addressed by the due-process requirement that the State prove its case beyond a reasonable doubt.” TRAFFIC STOPS — LENGTH OF DELAY DURING STOP: Traffic stop was not prolonged unreasonably by officer’s questioning of driver and passenger during stop. Villarreal v. State, No. 03-1900454-CR (Tex. App.—Austin July 30, 2020, no pet.) (mem. op., not designated for publication). During a traffic stop, drugs were found in the vehicle that Villarreal was driving, and he was charged with possession of a controlled substance. Before he pleaded guilty, Villarreal filed a motion to suppress, asserting that the arresting officer prolonged the stop unreasonably before searching the vehicle. The evidence at the

suppression hearing showed that approximately seventeen minutes elapsed between the officer’s initiation of the traffic stop (for failing to signal a turn) and Villarreal providing the officer with consent to search the vehicle. During that time, the officer had Villarreal exit the vehicle, questioned both Villarreal and the passenger of the vehicle about their whereabouts prior to the stop, and waited for Villarreal to pull up his insurance information for the vehicle on his phone. The proof of insurance did not list Villarreal as the owner of the vehicle. Additionally, the officer observed that the vehicle did not have an ignition interlock device. The officer knew, based on a previous traffic stop of Villarreal, that Villarreal was on parole for felony DWI and that as a condition of his parole, he was required to have an ignition interlock device installed on any vehicle that he operated. The district court denied the motion to suppress,

and the appellate court affirmed. The court explained that the delay during the first eight minutes of the stop was attributable to Villarreal – he took five minutes to pull up his insurance information and an additional three minutes to explain to the officer why he was not listed on the insurance. The additional nine-minute delay was spent questioning Villarreal and the passenger, but the court concluded that the questioning was reasonable under the totality of the circumstances, which included the absence of an ignition interlock device on Villarreal’s vehicle, Villarreal’s inability to provide the officer with the identity and contact information of his parole officer, Villarreal’s inability to provide proof of insurance or other documentation demonstrating his financial responsibility for the vehicle, and discrepancies between Villarreal’s and the passenger’s accountsAUSTIN of what had occurred LAWYER L AL before the trafficAstop.

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FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Dec. 31, 2020. SUBJECT MATTER JURISDICTION: Federal court lacked subject-matter jurisdiction in suit against Indian tribe because complaint did not allege any federal claims and, as matter of first impression, tribe is stateless entity for purposes of diversity jurisdiction. Mitchell v. Bailey, No. 19-51123, 2020 WL 7329219 (5th Cir. Dec. 14, 2020). The Hoopa Valley Tribe, a federally recognized Indian tribe, created an AmeriCorps disaster response team. Hoopa Valley’s response team deployed to Wimberly, Texas following severe floods that led to a federal disaster declaration. Plaintiff Mitchell was injured while participating in the Wimberly disaster-relief efforts. Plaintiff’s injuries were allegedly caused by the negligence of Bailey, a California citizen who was acting in his capacity as a member of the Hoopa Tribe’s disaster response team. Mitchell alleged violations of state tort and contract law. Defendants moved to dismiss based on sovereign immunity and to substitute the United States as the proper defendant. The district court dismissed Mitchell’s claims with prejudice for lack of jurisdiction based on sovereign immunity. Mitchell appealed. Hoopa Valley argued on appeal that the district court lacked original jurisdiction. The court agreed and held that the district court lacked original jurisdiction. In doing so, the Fifth Circuit considered and rejected all potential bases for original jurisdiction. Plaintiff’s complaint did not assert any federal claims. And although the

defense of sovereign immunity involves questions of federal law, the court reiterated that the prospect of a federal defense does not, in and of itself, give rise to federal-question jurisdiction. In denying Plaintiff’s claim of original jurisdiction under the Westfall Act, the court noted that although defendants moved to have the United States substituted under the Westfall Act, the Attorney General never granted certification. As for diversity jurisdiction, the court held that the tribe is a stateless entity and the presence of a single stateless entity as a party to a suit destroys complete diversity.

ing the default judgment under Rule 60(b) but instead timely appealed to the Fifth Circuit. On appeal, Stelly argued that Durio could not appeal the default judgment because he failed to first file a motion to set aside the default judgment in the district court. The court had previously noted a circuit split on that issue, with two circuits holding that challenges to default judgments must first be brought in the trial court and the Second Circuit holding that challenges to a default judgment may first be brought in the court of appeals. The court had previously sided with the Second Circuit in an unpublished opinion. In resolving DEFAULT JUDGMENT: the issue, the court sided with Defaulting party’s failure to the Second Circuit and held that file motion to set aside default Duriso could appeal the default judgment does not prevent judgment without first challengparty from appealing that ingLAWYER the judgment in the district AUSTIN AL AL judgment. court. Stelly v. Duriso, No. 19-20160, 2020 WL 7294545 (5th Cir. Dec. 11, 2020). Stelly, a longshoreman affiliated with local unions of the International Longshoremen’s Association (ILA) alleged that Duriso, a board member of both local unions, began sexually harassing Stelly shortly after she started coming to the unions’ hiring halls. Although Stelly filed a complaint with one of the local unions and with the West Gulf Maritime Association (WGMA), the harassment allegedly continued. Stelly then sued the WGMA, both local unions, and Duriso in federal court, asserting federal employment discrimination claims against the WGMA and the local unions, and brought a state law claim for intentional infliction of emotional distress against Duriso. Duriso evaded service, and the district court entered a default judgment on the IIED claim and awarded Stelly damages. Stelly also prevailed on her claims against one of the local unions after trial. Before that trial was held, the district court certified the judgment against Duriso as a final judgment. Duriso did not file a motion challeng-

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CRIMINAL COURT NEWS

Another Nail in the Coffin for “Trial by Zoom” BY DAN DWORIN

D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.

he Texas Court of Criminal Appeals recently held that the testimony of a witness by teleconference violated the defendant’s Sixth Amendment right to confront the witnesses against him, further strengthening the argument that Texas criminal trials cannot be held without in-person testimony. Haggard v. State, No. PD-0635-19, -- S.W.3d -- (Tex. Crim. App. Dec. 9, 2020). In Haggard, the Liberty County trial court allowed a Sexual Assault Nurse Examiner (SANE), who had examined the child alleged to have been a victim of sexual abuse but who had subsequently moved out of state, to testify by videoconference after she

informed the State that she was not willing to return to Texas for the trial. The defense objected to her live testimony as a violation of the Sixth Amendment’s guarantee of the defendant’s right to confront witnesses for the State. The witness, who was not under subpoena as she had previously told the State she did not need one, told the prosecutors at the last minute that she had changed her mind and was not willing to travel, explaining that she could not afford to travel to Texas for the hearing, and that appearing in person would be both personally and financially burdensome. The problem presented for the State was that this witness had collected various DNA samples from the child; and without her testimony proving the chain of custody, the results of the DNA testing, which inculpated the defendant, would not be admissible. The State then moved the court to allow the witness to testify via FaceTime, a videoconferencing application that would allow the witness and the attorneys asking questions to see each other and allow for cross-examination by the defense. The witness’s image was broadcast onto monitors at counsel table as well as shown to the jury on a 60-inch television monitor. The

PATIENT

Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt it is sufficient to protect real ones.” – U.S. Supreme Court Justice Antonin Scalia judge allowed this testimony over the defense’s objection. The Court of Criminal Appeals held that this broadcast testimony was a violation of the defendant’s right to confront witnesses and that, absent some showing of necessity in cases involving child victims, videoconferencing technology, no matter how sophisticated, did not satisfy the Confrontation Clause. The dissent noted that the Court’s ruling was out of step with “the realities of the world we live in today,” to which Judge Hervey, writing for the majority, replied that the only appreciable difference between

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the world today and the world in which the long line of cases requiring in-person testimony were decided was that now “there are more televisions and their screens are bigger.” The late U.S. Supreme Court Justice Antonin Scalia was given the last word by the majority, quoting at length from his opinion concerning the adequacy of videoconferencing as a replacement for live confrontation: “Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt it is sufficient to protect real ones.” Order ofAUSTIN the Supreme Court, 207 LAWYER AL AL F.R.D. 89, 91 (2002).

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ABOTA Honors Judge Sulak with Prestigious Award

n the evening of Dec. 2, 2020, the Austin Chapter of the American Board of Trial Advocates (ABOTA) awarded Judge Tim Sulak with the Richard T. McCarroll Award for Professionalism and Civility. This award is reserved for practitioners and judges who exemplify the highest levels of professionalism and civility in their work and personal lives, and is named in memory of Richard T. McCarroll. More than 70 members of

The Austin Chapter of the American Board of Trial Advocates awarded Judge Tim Sulak with the Richard T. McCarroll Award for Professionalism and Civility. the Austin Chapter of ABOTA attended the event, held virtually on Zoom due to the pandemic. Judge Sulak’s entire career has exemplified professionalism and civility. He practiced law for

30 years with the firm of Morris, Craven & Sulak. He served as president of the Austin Bar Association and was recognized as an outstanding director for the State Bar of Texas. Judge Sulak has served with distinction for 10 years as the presiding judge over the 353rd District Court in Travis County, consistently receiving the highest ratings possible by the lawyers who practiced in his court.

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The Richard T. McCarroll Award for Professionalism and Civility is not given out annually. Rather, it is only given by the Austin Chapter of ABOTA when there is someone truly deserving of the award. Consequently, the list of past recipients is a short one: Richard McCarroll, Steve McConnico. Broadus Spivey, Mary Dietz, Dicky Grigg —and now, joining their esteemed AUSTIN LAWYER AL AL ranks—Judge Sulak.

FEBRUARY 2021 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN DAVID KING, GRAVES DOUGHERTY HEARON & MOODY

AYLA Mid-Bar Year Update

ongratulations! We’re halfway through the 2020-21 bar year. Six months ago, I wrote that the year was going to be very different for AYLA—just as it has been for everyone. I also wrote that, with so many of its signature programs disrupted by the pandemic, AYLA would need to innovate in order to keep its members engaged and fulfill its mission of justice through service to the profession and the community. Well, how have we been doing? I’m not exactly an impartial observer, but I’d say we’ve done pretty well so far, thanks to an awesome and engaged board (and, of course, the unwavering dedication of AYLA's director, Debbie Kelly). Here are some of the highlights of the past six months:

Docket Call: This was a tough one. How do you continue AYLA’s monthly, open-bar happy hours when you are in the middle of a pandemic? The answer is, you can’t. But what we did—thanks to the leadership of our Docket Call Committee (shout-out to Sarah Harp)—was to come up with a variety of different virtual events, like trivia night, movie night, and a mixology class with the general manager of Star Bar. Will we go back to our traditional happy hours after the vaccine rollout? Yes, we’re all counting the days. But, in the meantime, it’s been a lot of fun to see these monthly events come together. Equity Committee: AYLA has welcomed the opportunity to support and contribute to the Austin Bar’s Equity Committee. Special thanks go to AYLA board members and Equity Committee leadership team members Cathy Garza and Jenna Malsbary for their work, including, most recently, their virtual book club discussion on How to Be an Anti-Racist by Ibram X. Kendi.

MLK Day of Service/ Community Service Days: This is one we miss a lot and which is difficult to replicate virtually. But our community-service committees have done a great job of providing opportunities for our members to safely give back. As I write this column, over 30 spots have been filled by volunteers for our MLK Day of Service, which will benefit 11 Austin non-profits. I’m particularly happy to see all of those who signed up to give blood at the We Are Blood mobile blood drive at Hilgers House on Jan. 18, 2021. CLE Programming: This is the area that was probably the most adaptable to the Zoom era. AYLA took advantage of this by increasing its CLE programming. We collaborated with the Austin Bar on large CLE programs, including the Couch Bar conference and the Government Law Symposium. In partnership with the UT Law School Board of Advocates, we hosted a CLE on Zoom Court Proceedings with Judge Crump and Judge Cantú Hexsel. And we also partnered with VLS to host a

CLE to prepare attorneys to volunteer for VLS’s newly implemented phone clinic. Fundraising efforts: The pandemic forced AYLA to postpone one of its most popular events last year, Runway for Justice, which also serves as a major fundraising event for the organization. Luckily, our board members had some great ideas for other ways to keep AYLA’s members engaged, and also raise some money for the organization. One great event was the virtual cooking class hosted by Bramwell Tripp, former pitmaster at Loro Asian Smokehouse & Bar. Another fundraiser we held was Race Judicata, a virtual 5K. Thanks to everyone who participated and contributed! Evening with the Judiciary and Holiday Program: Please see page 23 for more details. Here at AYLA, we’re making the most of a unique bar year. Thank you to everyone who has been a part of it. And, if you haven’t come to one of our events yet, please join us!AUSTIN We’re excited LAWYER AL AL about what’s to come in 2021.

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UPCOMING EVENTS THUR., FEB. 18 AYLA Docket Call Virtual Happy Hour 6 p.m. Visit ayla.org to register.

AUSTINLAWYER | FEBRUARY 2021

n Dec. 10, 2020, AYLA hosted a virtual cooking class. Bramwell Tripp, a professionally trained chef, led the class on how to cook the perfect steak in a cast iron skillet. The meal also included oven-roasted scalloped potatoes and a healthy green salad. Special guest Justice Chari Kelly demonstrated how to make a cosmopolitan cocktail and shared a couple of her favorite wines. Attendees were able to fol-

low along with the instructors and ask questions from the comfort of their own homes. The first ten registrants to sign up won free steaks from Lone Star Meats. The proceeds from the event went to the AYLA Foundation. This event was made possible by the Texas Young Lawyers Association (TYLA), which generously provided a grant. Thank you to TYLA for your continuous support of AYLA and the AYLA AUSTIN LAWYER AL AL Foundation.

AUSTIN YOUNG LAWYERS ASSOCIATION

Evening with the Judiciary

YLA kicked off the holiday season with its annual Evening with the Judiciary reception on Dec. 3, 2020. Like so many other events this past year, the Evening with the Judiciary was held virtually, but it gave judges and lawyers alike a chance to show off their new Zoom skills acquired over the last year. There was a fantastic showing from all levels of the judiciary—from justices of the peace to Justices on the Supreme Court of Texas. Likewise, young lawyers from across Austin turned out to connect with judges and each other. The participants met and conversed in a series of randomized breakout rooms throughout the event. As always, the evening gave

young lawyers a chance to get to get to know our wonderful judiciary in an informal, unintimidating setting. This year’s virtual reception gave everyone a chance to showcase their holiday spirit and personality. From festive backgrounds to witty repartee in the main Zoom holding room, this year’s event was different, but underscored the camaraderie within the Austin Bar. AYLA would like to thank all the judges who attended this year’s reception. We are hopeful that next year’s Evening with the Judiciary can safely take place in person. This year’s Evening with the Judiciary was possible thanks to our generous sponsors and a grant from Texas Young Lawyers AUSTIN LAWYER AL AL Association.

From festive backgrounds to witty repartee in the main Zoom holding room, this year’s event was different, but underscored the camaraderie within the Austin Bar.

AYLA Holiday Program

he annual AYLA Holiday Program looked a little different this year, just like everything else in 2020. Even though we were not able to come together for our regular holiday festival, we were still proud to partner with the YMCA to raise money and collect gift donations for families who have been hit especially hard by the COVID-19 pandemic. Thanks to the many generous donors throughout the Austin legal community, AYLA was able collect every single toy from more than 30 children’s wish lists, plus additional gift cards for their parents. AYLA members wrapped and hand-delivered the gifts to families across Austin and the

Thanks to the many generous donors throughout the Austin legal community, AYLA was able collect every single toy from over 30 children’s wish lists plus additional gift cards for their parents. surrounding areas just in time for the holidays. AYLA would like to give a special thanks to the Texas Young Lawyers Association for providing us the grant money to purchase gift cards for the parents, their holiday a AUSTINmaking LAWYER AL AL little merrier.

FEBRUARY 2021 | AUSTINLAWYER

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PRACTICE POINTERS

A Pandemic Pivot Demystifying the Criminal Justice Process for Clients BY MARY ANN ESPIRITU

n criminal defense and, I suspect, every area of law, clients come to us filled with stress, anxiety, and fear. It can be frustrating when a client is unresponsive due to that fear, and destructive when a client does not show up in court due to fear. Clients don’t fear their situation because it is particularly threatening, but simply because their situation is unknown. My law partner, Charlie Roadman, and I recognize that clients’ fears can hinder our ability to represent them in a manner able to produce favorable outcomes, so we have taken great strides to alleviate as much stress, anxiety, and fear as we can by demystifying the criminal justice process. While I have taken a one-on-one approach of teaching our clients about the criminal justice system during consultations, Charlie uses his creative talent to produce informational videos demonstrating what a client should expect with any aspect of the criminal justice system. While I spend time with a client drawing diagrams on a whiteboard and explaining legal concepts in a way easy to comprehend, Charlie voluntarily installed an ignition interlock device on his own vehicle and produced a video showing his own experience with the device. He even authored a book inspired by our clients’ fears and anxiety and our desire to calm them. In his book, The Defendant’s Guide to Defense: How to Help Your Lawyer Get the Best Result, Charlie describes “the stages of a criminal case, the characters involved, the nuances of negotiating with the prosecutor and what [a client] can do to help [us] during the progression of the case.” Our collective efforts inform our clients and alleviate their fears, resulting in a better, more productive relationship.

While the court and attorneys appear virtually, clients charged with certain offenses must appear in person when entering their plea. Charlie [walked] through the new procedures of an inperson court appearance … so he could see the process through a client’s perspective. Mary Ann Espiritu and Charlie Roadman, Roadman & Espiritu, Attorneys at Law.

When the COVID-19 pandemic began, it added to our clients’ existing stress, anxiety, and fear. A lot of information we gave to them about the criminal justice process no longer applied, specifically regarding court appearances and court-ordered classes. So Charlie and I quickly pivoted. The court dockets are now held via Zoom and broadcast on YouTube. While the court and attorneys appear virtually, clients charged with certain offenses must appear in person when entering their plea. Charlie took it upon himself to walk through the new procedures of an in-person court appearance at the Blackwell-Thurman Criminal Justice Center so he could see the process through a client’s perspective. As a result, we now have a step-bystep guide on our website where clients can view a picture of the court’s waiting area with an arrow

pointing to where they will need to check-in. Our guide also has a picture of the attorney conference room where clients can meet privately with their attorney who appears virtually on Zoom. Our guide even includes a picture of the courtroom and the computer screen where the judge, court staff, prosecutor, and client’s attorney will appear virtually while the client makes their in-person court appearance with a bailiff standing by to assist, if necessary. While Charlie experienced the client’s pandemic court appearance, I attended the mandatory classes that had moved to online classrooms. Two common classes that our DWI clients need to take are the Mothers Against Drunk Driving Victim Impact Panel and the 12-hour DWI Education class. Pre-pandemic, these classes were only offered in a live classroom and our website already had

detailed explanations of what to expect at each in-person class. But when the pandemic hit, the classes moved online and that created new stress, fear, and anxiety in our clients. I signed up for both online classes so I would be able to tell clients about my experience with each class. Being able to advise our clients about online classes has made a tremendous difference in their overall outlook during this process. One client wrote, “Thank you for the intel! It was exactly the way you described it. I was a bit apprehensive about the required watching, I know they make those things brutal. I was glad to know that [the instructor] was chill and empathetic and he tells you what you need to know.” Once we were able to advise our clients of the changes that the pandemic brought about in the criminal justice process, we noticed a shift in the overall stress level of our clients. When we meet potential clients, we see the weight of the world on their shoulders. The pandemic now adds an extra layer of weight. But by pivoting our practice and continuing to remove the fear of the unknown, we give our clients someAUSTIN clarity, peace of mind, and LAWYER AL AL maybe even hope. FEBRUARY 2021 | AUSTINLAWYER

Austin Bar Family Law Section Helps Volunteer Legal Services

ocal law firm Friday Milner Lambert Turner has hosted a chili cook-off for the past three years to raise money for Volunteer Legal Services. The first event raised $4,000, the second raised $16,000, and

the third raised about $30,000. Due to COVID-19, the firm knew an in-person chili cook-off was out of the question. Not to be deterred, the firm approached the Austin Bar’s Family Law Section for help. In just under two weeks, through a simple email

campaign, the Family Law Section raised more than $100,000 for VLS. The Family Law Section then sent a challenge to other sections of the Austin Bar to see if their members could match their contribution. That challenge campaign is ongoing.

Congratulations to the Family Law Section for stepping up so quickly and so generously. Their efforts, in conjunction with Friday Milner Lambert Turner, helped to provide much-needed support VLS during this AUSTINtoLAWYER L AL critical A time.

MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

Appeals and Trial Court Support

2016-PRESENT

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2021 Judicial Evaluation Poll

FEB. 1–15

Poll Conducted In Early February

he Austin Bar Association’s biennial Judicial Evaluation Poll will be available for members Feb. 1 – 15, 2021. Austin Bar members will receive an email from Ballot Box Online with a link to the online evaluation poll. Dues payments must be current to ensure active membership status in order to participate in the poll. Contact

Membership Director Carol Tobias at carol@austinbar.org if you are unsure of your membership status. The Austin Bar has conducted its Judicial Evaluation Poll since 1978. In 2005, the policy of conducting the poll every two years was established. The poll gives Travis County attorneys an opportunity to evaluate the performance of area judges—

AUSTIN BAR JUDICIAL EVALUATION POLL

from justices of the peace to federal district judges—with the results released to the public as a community service. Please look for the email sent on Feb. 1 and take a few minutes to complete the survey before the Feb. 15 deadline. The email will be sent from noreply@ballotboxonline.com. Please make sure to whitelist this email address to ensure it is not

BALLOT BOX ONLINE noreply@ballotboxonline.com

Questions: carol@austinbar.org

blocked by your spam filter. If you didn’t get the email, please check your junk mail folder. If you still can’t find it, contact the Austin Bar office to verify your membership status and request AUSTIN LAWYER L AL another email be sent toAyou.

Family Law Specialist

Edgington Whitten has practiced in family law since 1992. *Kimberly A.Tim kim@whitten-law.com He has been certified as a Family Law Specialist by

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Austin Lawyer, February 2021

Articles inside

Another Nail in the Coffin for “Trial by Zoom”

AYLA Looks Back and Forward

AYLA Mid-Bar Year Update

A Pandemic Pivot

Stress in the Digital Age

Austin Attorneys Provide #mealsforheroes

Celebrating Our History