austinbar.org JULY/AUGUST 2020 | VOLUME 29, NUMBER 6
Statement from the Austin Bar Association June 3, 2020 A s we are enduring a pandemic that exposes inequity, we are witnessing racism’s poisonous persistence in and beyond our community. When we look back on these times, we will either lament our inaction or assess the work we did to acknowledge, confront, and combat injustice— including racial injustice. The Austin Bar Association unequivocally condemns racism in all forms. Consistent with our mission, we are committed to enhancing our community through concerted efforts to create a new normal, in which we eliminate injustice and relate as equals across our human differences. In the words of Austin Bar Past-President Rev. Joseph C. Parker, Jr.,
“The reason there are visible and vocal protests is that we still have hope. We are protesting because we believe that something can be done.” It is in this spirit of hope that the Austin Bar pledges to lead our legal community in the pursuit of justice for all people. D. Todd Smith
Kennon Wooten
Austin Bar Association President
Austin Bar Association President-Elect
Won’t You Be My Neighbor? BY KENNON WOOTEN
In a moment of time like this one, the Austin Bar Association is called upon to stand up, be a good neighbor, and help our community heal by doing our part to increase access to justice and stamp out injustice.
W
hat if we reimagined our relationship with one another, and—with eyes wide open about where we’ve been and where we are as a society—we began to see and treat one another as
neighbors? Would we be kinder to each other? Would we be more giving and less judgmental? Would we realize that all of our lives, actions, and reactions are interrelated? I’d like to think so. This neighbor concept is not novel. I heard about it as a kid, while watching Mister Rogers’ Neighborhood. I heard about it again recently while listening to a discussion between Ezra Klein and Ta-Nehisi Coates—the author of Between the World and Me. Among other things, they talked about Patrick Skinner, a police officer who does his job with a
“neighbor mindset,” believing “we all matter or none of us do” and treating everyone he encounters accordingly. The neighbor mindset is similar to a sentiment Dr. Maya Angelou referenced years ago when talking about what she continued on page 6
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CONTENTS
AUSTINLAWYER JULY/AUGUST 2020 | VOLUME 29, NUMBER 6 AL A L INSIDE FEATURED ARTICLES
DEPARTMENTS
1
Statement from the Austin Bar Association
8
1
Won’t You Be My Neighbor?
10 Be Well
7
ONLINE austinbar.org
Briefs
EMAIL nancy@austinbar.org
15 Opening Statement
Meet President Kennon Wooten
18 Third Court of Appeals
12 Seedlings Foundation Needs Mentors
MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Ste. 700 Austin, TX 78701-2665
Criminal Update
19 Federal Civil Court Update
17 Austin Bar Board of Directors Award Winners
Announced
20 Federal Criminal Court News
26 Keynote Speaker Announced for the Texas Supreme
CONNECTIONS
Court Historical Society’s 25th Annual Hemphill Dinner
SOCIAL LIKE facebook.com/austinbar
22 AYLA 24 Practice Pointers
FOLLOW twitter.com/theaustinbar
ONLINE
WATCH vimeo.com/austinbar
austinbar.org
NEWS & ANNOUNCEMENTS
UPCOMING EVENTS
Austin Bar/AYLA Anti-Racism Resources
AUG 28
Visit austinbar.org to see a list of resources related to anti-racism.
Austin Bar/AYLA Updates on COVID-19
Visit austinbar.org for news, updates, and resources related to COVID-19.
STREAM @AustinBarAssociation FOLLOW instagram.com/theaustinbar
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The rescheduled date is dependent on the re-opening of the venue and the status of COVID-19 regulations. More details will be provided at austinbar.org, in Bar Code, and by email as the date approaches.
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INTERESTED IN WRITING FOR AUSTIN LAWYER? Contributing authors sought for inclusion in Austin Lawyer. Articles on various legal-related topics are considered for publication monthly. Please limit submissions to between 500 and 750 words. Send articles to Nancy Gray, Managing Editor, at nancy@austinbar.org. Submission is not a guarantee of publication.
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Kennon Wooten ������������������ President David Courreges ������������������ President-Elect Amanda Arriaga ������������������� Secretary Justice Chari Kelly ��������������� Treasurer D. Todd Smith ����������������������� Immediate Past President
AUSTIN YOUNG LAWYERS ASSOCIATION
David King ���������������������������� President Rachael Jones ����������������������� President-Elect Blair Leake ����������������������������� Treasurer Sarah Harp ���������������������������� Secretary Sandy Bayne ������������������������� Immediate Past President
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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, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Ste. 700, Austin, Texas 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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Won’t You Be My Neighbor? continued from cover
had learned in life. Translating a statement by Terence (a Roman African playwright), Dr. Angelou said: “I am a human being. Nothing human can be alien to me.” Then, she said something that stuck like glue to my neural pathways: If you can internalize our shared humanity, you’ll never be able to say you couldn’t do what another human has done because you’ll understand you have within you all components that are in other humans. This is true for the negative and the positive. After acknowledging that reality, Dr. Angelou encouraged her listeners to stretch themselves and use their energy constructively instead of destructively. So, here we are. We are enduring a pandemic that exposes inequity and threatens our sense of security. Within a matter of months, we’ve lost over 117,000 people in our country alone, and existing data indicates that communities of color are being hit disproportionally hard. We’ve seen unemployment rates skyrocket throughout our country, including in Texas. We are bracing for spikes in legal-aid needs, right as we observe dramatic dips in legal-aid funding. Meanwhile, we are observing the poisonous persistence of racism against people of color in our country. Two overt examples, among many, are the treatment of Asian people in the wake of COVID-19 and the murder of Black
6
In a moment of time like this one, the Austin Bar Association is called upon to stand up, be a good neighbor, and help our community heal by doing our part to increase access to justice and stamp out injustice. people at the hands of people who are supposed to be our protectors. When experiencing the combined effects of a deadly virus and dehumanization, it is natural to feel frightened and frustrated. But—if we acknowledge everything happening around us, including the good things—we will see examples of what former President Jimmy Carter has described as “the bonds of our common humanity” overcoming “the divisiveness of our fears and prejudices.” People are stepping up to help other people in need and to amplify the voices decrying racism. In a moment of time like this one, the Austin Bar Association is called upon to stand up, be a good neighbor, and help our community heal by doing our part to increase access to justice and stamp out injustice. To that end, we are expanding our existing programming in two noteworthy ways. First, to increase access to justice, we will offer additional free CLE focused (in part) on areas where we anticipate spikes in legal-aid needs, and we will
AUSTINLAWYER | JULY/AUGUST 2020
form targeted subcommittees of our Pro Bono Committee. We anticipate the subcommittees focusing on spikes in legal-aid needs in the civil-justice system, as well as on criminal-justice needs, like helping people expunge or seal criminal records that might otherwise hinder their ability to succeed. We are very fortunate to have Caitlin Haney Johnston and Bill Christian serve as co-chairs of this year’s Pro Bono Committee. Under their leadership, I hope we’ll all do our part to reduce the justice gap through pro bono work. Second, we are forming an Equity Committee. A committee of this nature has been contemplated for about a year—in other words, it is not reactionary to recent, overt acts of racism. But those acts—coupled with the increased support of the Black Lives Matter movement—make it particularly important to focus on equity now. The Equity Committee will be led by Judge Maya Guerra Gamble, Judge George C. Thomas, Mindy Gulati, Craig Moore, Ayeola Williams, Drew Williams, Cathy Garza, and
former Justice Craig T. Enoch. This incredible team will accomplish things I cannot anticipate. Committee efforts will include assisting with an Austin Bar Equity Summit, book clubs focused on books and discussions designed to increase understanding and lead to inner and external change, networking focused on bridging social capital, compiling resources for people seeking guidance, and identifying Austin Lawyer authors and topics highlighting Austin’s diversity and history. The Austin Bar also intends to make its home (Hilgers House) available for future Truth, Racial Healing & Transformation discussions. If you want to help the Pro Bono Committee, the Equity Committee, or any other Austin Bar committee, please contact DeLaine Ward at delaine@ autinbar.org for guidance. If you want to receive more information about the Pro Bono Committee or Equity Committee, or provide input, as plans become more concrete, please email me at kwooten@scottdoug.com. If you want COVID-19 resources or anti-racism resources, please visit the Austin Bar’s website (austinbar.org). We have our work cut out for us in the bar year ahead. Whatever happens, you can rest assured that I consider every single one of you my neighbor and will AUSTIN LAWYER AL AL treat you accordingly.
Austin Bar President Kennon Wooten with her husband Louie Riesch and daughter Linden.
MEET PRESIDENT KENNON WOOTEN Kennon Wooten was raised in Austin by parents who play and love music. She passed many hours at music festivals during her childhood and still has a deep appreciation for music. Wooten graduated from LBJ High School and went to UT for undergrad and law school. In undergrad, she was on the first varsity women’s rowing team, created as a result of Title IX litigation relating to discriminatory treatment of women’s athletic programs at UT. Before entering the legal
field, she managed a nutrition clinic and spent six months in Costa Rica, volunteering as an ESL teacher and working as a substitute teacher. While in law school, she interned for Justice Mack Kidd at the Third Court of Appeals. Directly after law school, Wooten clerked for former Chief Justice Wallace B. Jefferson of the Texas Supreme Court. She then worked at Baker Botts (Austin) for a few years before returning to the Texas Supreme Court to serve as the Rules
Attorney. In 2011, she began working for Scott Douglass & McConnico, where she is now a partner. She is a civil litigator and has handled a broad array of cases, both at trial and on appeal. Wooten is a frequent planner of, and speaker for, Continuing Legal Education courses. She is also a published author of books and articles on discovery practices in Texas. In addition to her roles with the Austin Bar, she has served as a member of the Texas
Commission to Expand Civil Legal Services, a member of the Supreme Court of Texas Task Force for Rules in Expedited Actions, the president of the Austin Young Lawyers Association, the chair of the State Bar Court Rules Committee, the editor-in-chief for Austin Lawyer, and a board member for Texas Folklife and Austin Friends of Traditional Music. She currently serves as the secretary of the Texas Legal Service Center and as a member of the Travis County Women Lawyers Association, the Blue Action Democrats’ Social and Service Committee, and the Board of Directors for the Capital Area Democratic Women. She is also a member of the American Law Institute, Supreme Court Advisory Committee, Editorial Board for The Advocate, and State Bar Court Rules Committee. Wooten’s husband, Louie, is a school nurse at Travis Heights Elementary School. Their daughter, Linden, is a student at Travis Heights Elementary School. She is seven yearsAUSTIN old, andLAWYER she is full AL AL of imagination and spunk.
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7
BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Kelly Benzon Alexa Cedillo Ryan Chowdhury Robert Clark
Kyle, Pittman, Westendorf-Boyd
Chris Hamblin David Jewett Michael Ludvik Amy Mendez Lane Prickett Alicia Romero Lisa Thorsen Maria-Theresa Servillon Sigua Martha Swanger
AWARDS
MOVING ON UP
Coats Rose is pleased to announce that Lisa L. Pittman has been appointed as a Nonresident Fellow at Rice University’s Baker Institute for Public Policy as a part of the Drug Policy Program. Pittman is based in Austin and serves as co-chair of the firm’s Cannabis Business Law practice. In this two-year fellowship, Pittman will focus on legal issues regarding medical marijuana and the hemp industry.
Chamberlain McHaney is proud to announce that Cathy Kyle and Erin Westendorf-Boyd have been named partners at the firm. Kyle has spent over twenty years in an active litigation practice, representing employers, governmental entities, corporations and individuals in a wide variety of commercial and civil matters. Westendorf-Boyd handles a wide range of litigation while focusing primarily on insurance defense,
We’ve moved! Please note our new address. We look forward to seeing you at Hilgers House soon!
712 WEST 16TH ST. AUSTIN, TX 78701
512.472.0279 • austinbar.org 8
AUSTINLAWYER | JULY/AUGUST 2020
HILGERS HOUSE
defending insured individuals in construction cases, workplace injuries, premises liability, medical malpractice and general negligence cases, as well as defending insurance companies in bad-faith cases and prosecuting subrogation cases.
BE WELL
Help Yourself by Helping Others BY JUDGE KARIN CRUMP, 250TH TRAVIS COUNTY DISTRICT COURT
Judge Karin Crump, 250th Travis County District Court, is a former TYLA president and member of the State Bar Board of Directors. She is an AYLA Mentor Award recipient and co-founder of the Austin Bar/AYLA Leadership Academy.
W
e are in the midst of the most sad, stressful, and unsettling days of an entire generation. A staggering percentage of our community members are suffering from the financial fallout from COVID-19, some are experiencing physical illness related to the pandemic, while others are being crushed by the emotional trauma that has resulted from the senseless deaths of George Floyd, Ahmaud Arbery, and countless other people of color. Our nation is in a crisis but we, as lawyers, are uniquely positioned to help our communities get through this turbulent time. And serving our community when the world seems completely upside down may actually be the best way for us to heal our own emotional pain. Although it is unlikely that you have been on a plane recently, you probably recall, from prior flights, the message that you must first adjust your own mask before helping others. Are you emotionally stable, sober, eating well, exercising, and getting enough rest and fresh air? Have you managed to ensure that your 10
own kids are safe and finding some semblance of an education despite school and camp closures? If your own mask is secure, it may be time to take a look outward and, in doing so, find personal satisfaction and unexpected physiological benefits of helping others. In fact, researchers at the Mayo Clinic have scientifically proven that volunteering lowers stress, decreases the risk of depression, and may help you live longer.1 You don’t wear scrubs and you are not likely to be hailed as a hero, but you have all the tools needed to make a significant difference in the lives of those around you. Your legal education empowers you to advocate for the oppressed. Your law license permits you to represent those who are trapped in abusive relationships or dangerous surroundings. Your networks open doors for the unemployed to find jobs. Your confident voice on the phone allows you to negotiate rental payment delays and the settlement of claims. Your writing skills persuade employers to pay earned wages. You have the ability, complete with license from the State of Texas, to lift others up and out of misery with the power of your signature. I challenge you to do exactly that. You may just find that helping others is the secret to helping yourself and enjoying the practice of law—even during these hard and stressful days.
20 WAYS TO MAKE A DIFFERENCE IN YOUR COMMUNITY RIGHT NOW 1. Take a pro bono case through Volunteer Legal Services of Central Texas. vlsoct.org/volunteer 2. Serve as the voice for a child as a court appointed special advocate. casatravis.org/ volunteer
AUSTINLAWYER | JULY/AUGUST 2020
You have the ability, complete with license from the State of Texas, to lift others up and out of misery with the power of your signature. I challenge you to do exactly that. You may just find that helping others is the secret to helping yourself and enjoying the practice of law—even during these hard and stressful days. 3. Advocate for voting rights and criminal justice reform. txcivilrights.org/take-action/ pro-bono-network
7. Teach music to a child in foster care. kidsinanewgroove.org/ volunteer
4. Hand out food for Central Texans who are hungry. centraltexasfoodbank.org/ get-involved/volunteer
8. Teach English as a second language or financial stability to those in need. foundcom.org/get-involved/ volunteer
5. Serve lunch or prepare hygiene kits from home for people experiencing homelessness. caritasofaustin.org/ get-involved/volunteer 6. Deliver meals to our older neighbors as a regular or substitute driver. mealsonwheelscentraltexas. org/get-involved/ current-needs
9. Flex your muscles by volunteering in the Austin Diaper Bank warehouse. austindiapers.org/ volunteer.html 10. Be an advocate for literacy by sharing your opinions on literary content that inspires you without leaving the comfort of home. bookspring.org/volunteer
Photos courtesy of Central Texas Food Bank.
11. Serve as a mentor to newly arrived refugees from the Congo, Syria, Afghanistan, or Cuba. Contact Marissa at mmelnikov@rstx.org. 12. Mentor a veteran with resume or interview prep. merivis.org/volunteer 13. Provide compassionate legal advice by phone to sexual assault victims for two hours per week. texasadvocacyproject.org/ volunteer 14. Partner with an experienced immigration specialist to handle your first
immigration case for an asylum seeker stuck at the Southern border (Laredo). vecina.org/get-involved/ volunteer-opportunities 15. Lead a project to enrich the lives of kids in foster care. fostervillageaustin.org/ takeaction 16. Serve as a remote translator on the RAICES translation team. raicestexas.org/ take-action/volunteer/ remote-volunteer-activities 17. Inspire incarcerated women as a guest speaker on a Talking
Empowerment Group Zoom conference call. truth-be-told.org/volunteeropportunities/beyond-bars 18. Mentor a child with an incarcerated parent. seedlingmentors.org/mentorapplication 19. Help other lawyers recover from addiction by sharing your experience with recovery. tlaphelps.org
delivering baked goods and necessities to our neighbors experiencing homelessness. toofound. org/community-builders Footnotes: 1. Helping people, changing lives: The 6 health benefits of volunteering, May 18, 2017, https://www. mayoclinichealthsystem.org/ hometown-health/speaking-ofhealth/helping-people-changinglives-the-6-health-benefits-ofvolunteering.
20. Join Austin Bar President Kennon Wooten, and Bar members Pooja Sethi and Margaret Chen Kercher, who have been
Available by video and in person
JULY/AUGUST 2020 | AUSTINLAWYER
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Seedling Foundation Needs Mentors
F
or a child who has an incarcerated parent, a Seedling Foundation mentor can be the impetus to transform a childhood of worry, sadness, and insecurity to one of hope—giving the child the bravery and confidence to reach his or her highest potential. Now more than ever, the Seedling Foundation needs mentors to connect with children. Seedling’s mission is to support children challenged by parental incarceration with innovative, research-driven, schoolbased mentoring. But they can’t do it alone! Over 680 children were served this past school year through a well-trained and supported force of volunteers. With a staff of 13, the volunteers were recruited, trained, and matched to bring hope and resilience through one-on-one weekly visits during a student’s school lunch period. Local professionals on Seedling’s roster of volunteers include a range of diverse individuals from every walk of life— from doctors, lawyers, judges, and engineers to housewives, government employees, restaurant owners, and retirees. Judge Darlene Byrne, 126th Travis County Civil District
12
“I can tell you, as a judge who presides over foster kids, how much joy it gives me when I know they have a Seedling mentor to stand with them. Building trust, confidence, and self-esteem is so important when kids have felt abandoned and left alone.” –JUDGE DARLENE BYRNE Court and Seedling Foundation Advisory Council member, had this to say to the mentors: “I just want to take a moment to thank you [mentors] for showing up for kids. I can tell you, as a judge who presides over foster kids, how much joy it gives me when I know they have a Seedling mentor to stand with them. Building
AUSTINLAWYER | JULY/AUGUST 2020
With COVID-19 confining us to our homes, Seedling worked nonstop to reconnect mentors with the children. Seedling’s staff worked hand-in-hand with school faculty at over 150 public and charter schools to help locate children missing from the rosters of elementary, middle, and high-schools in the greater Central Texas area. trust, confidence, and self-esteem is so important when kids have felt abandoned and left alone. Their school has changed time after time and yet their Seedling mentor shows up tirelessly every week just because they matter.” With COVID-19 confining us to our homes, Seedling worked nonstop to reconnect mentors with the children. Seedling’s staff worked hand-in-hand with school faculty at over 150 public and charter schools to help locate children missing from the rosters of elementary, middle, and high-schools in the greater Central Texas area. Additionally, as schools were forced to move to a digital format of online lessons and classes, Seedling focused on supporting its mentors with weekly videos and words of encouragement and appreciation for their dedication to their mentees. In the midst of all the chaos of school closures, and thanks to school contacts working closely with Seedling mentor directors, 275 children served before COVID-19 were reconnected with their mentors. With the hope that August brings wellness, the welcome return of students to their schools, and reunions of mentors with mentees, Seedling is planning business as usual: A reconnection of children to professionals willing to spend one 30-minute lunch a week with the child of an incarcerated parent. But in case that scenario doesn’t play out,
Seedling is preparing alternative ways to build connections outside of the brick-and-mortar classroom. A virtual info session is being planned for members of the Austin Bar Association to learn more about how they can help. Stay tuned for information on how to attend the virtual info session, to be held in late August or early September. There are many ways to help Seedling through these troubling times. The need for mentors will always be first and foremost. The upcoming info session will address how to become a mentor and, for those who have schedules that don’t permit a weekly 30-minute commitment as a mentor, other opportunities such as becoming an ambassador, serving on a committee, or contributing financially to the organization will be discussed. To learn more about Seedling, visit seedlingmentors.org or email Linda Thompson AUSTINatLAWYER AL AL Linda@seedlingmentors.org.
JULY/AUGUST 2020 | AUSTINLAWYER
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OPENING STATEMENT
Never Say Never The Best Writing Advice Is Rarely Absolute BY WAYNE SCHIESS
I
recently read some writing advice offered to new attorneys. The advice was offered in absolute terms, and I thought it was oversimplified. Here’s the advice, with my own take.
1. “Never use adverbs.” Legal writers can’t follow this advice literally; It’s not reasonable to write a memo or motion or brief and never use an adverb. (What if the standard of review is “clearly erroneous”?) Based on the examples presented, what the person giving the advice probably meant was something more like “avoid over-using adverbs.” But for a sophisticated legal writer, even that advice is too simple. I’d offer something more like “before using intensifiers to bolster your point, consider other options.” I’ve written about intensifiers in this column before: Intensifiers: Are You Blatantly Bolstering?, Austin Lawyer 11 (Feb. 2017), and my view is that often, although not always, you can drop the intensifier, replace it, or specify instead: • The witness testified that the package was very heavy. • The witness testified that the package was massive. • The witness testified that the package weighed 210 pounds. Good legal writing relies on more nuanced advice, and implementing that nuanced advice is harder than abiding by absolute bans. Here’s another example.
2. “Never use pronouns.” Again, you can’t follow this advice literally. It’s not possible to write a memo or motion or brief and never use a pronoun. Well, maybe it’s possible, but you’d end up with awful, stilted-sounding prose. Take, for example, this
sentence (four pronouns, including one possessive pronoun): • Kessler argues that under section 101.001, she is entitled to reinstatement to her former position, to the wages she lost, and to reinstatement of the seniority rights she had earned. The sentence would have to be re-written like this (no pronouns): • Kessler argues that under section 101.001, Kessler is entitled to reinstatement to Kessler’s former position, to the wages Kessler lost, and to reinstatement of the seniority rights Kessler had earned. No one should write like that. Based on the examples presented, what the person giving the advice probably meant was something more like “watch your pronouns.” But careless pronouns can create two problems: vagueness and ambiguity. So I’d offer something more like “ensure that each pronoun has a clear and unambiguous referent (antecedent).” In the following example, the pronoun this is vague: • The court held that section 103 does not apply. This means Kessler cannot rely on section 103.
Good legal writing relies on more nuanced advice, and implementing that nuanced advice is harder than abiding by absolute bans. In the second sentence, we can’t be certain what “this” refers to—it’s vague. We can clarify by adding a noun that the word this points to (this, that, these, and those are demonstrative pronouns, which some experts call “pointing words”1): • The court held that section 103 does not apply. This holding means Kessler cannot rely on section 103. In the following example, the pronoun she is ambiguous: • Ms. Gilmer and Officer Kara Lopez arranged a meeting to discuss the case, but when the time for the meeting arrived, she did not show up. “She” could refer to Ms. Gilmer or to Officer Kara Lopez or an unnamed third person. To fix the problem, we can replace the pronoun with a proper noun: • Ms. Gilmer and Officer Kara Lopez arranged a meeting to discuss the case, but when
the time for the meeting arrived, Officer Lopez did not show up. Or, we can rewrite the sentence to avoid ambiguity: • Ms. Gilmer did not show up for a meeting she had arranged with Officer Kara Lopez to discuss the case. Now we’ve eliminated the ambiguity and used the pronoun sensibly. Absolute prohibitions have their place in legal writing: “Never misspell the client’s name.” “Never plagiarize.” But as to the advice discussed here, my view is that for good-quality legal writing, absolute prohibitions typically aren’t the best advice. Inform yourself about the topic of the advice, consider your audience and AUSTIN purpose, LAWYER and exercise AL AL your editorial judgment. Footnote: 1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 260 (3d ed. 2011).
JULY/AUGUST 2020 | AUSTINLAWYER
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AUSTINLAWYER | JULY/AUGUST 2020
Austin Bar Board of Directors Award Winners Announced
T
he final Austin Bar Association board of directors meeting under the leadership of President D. Todd Smith was held via Zoom on May 27, 2020. Under normal circumstances, the final meeting of the bar year takes the form of a reception in which the outgoing president thanks the board members for their service and presents a number of awards
Since nothing about this year has so far been normal, Smith announced the following award winners during the Zoom board meeting. to those who went above and beyond to serve the Austin Bar during the previous year. Since nothing about this year has so far been normal, Smith announced the following award winners during the Zoom board meeting. An actual awards presentation will be held once large gatherings are deemed safe again. Congratulations goes
Mary Ellen King
Ashley Presson
Jesse Moore
Danielle Ahlrich
Amanda Arriaga
to these dedicated board members and committee chairs. OUTSTANDING DIRECTOR Mary Ellen King was named Outstanding Director for her exemplary work on the auction at the 2019 “Boots and Bourbon” Austin Bar Foundation Gala. OUTSTANDING COMMITTEE CHAIRS Ashley Presson and Jesse Moore were named Outstanding Committee Chairs for their important, but largely thankless, work on the Hilgers House Preservation Committee. PRESIDENT’S AWARDS Danielle Ahlrich received a President’s Award for reinvigorating the Lawyer WellBeing Committee and for her leadership in supporting the
chosen focus of Smith’s term on the important topic of lawyer well-being. Amanda Arriaga also received a President’s Award for her leadership as chair of the Austin Bar Foundation Gala and for her creativity and leadership during the pandemic by organizing and facilitating the LAWYER day-long Couch AUSTIN AL AL Bar CLE program.
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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.
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The following are summaries of selected criminal opinions issued by the Third Court of Appeals during February 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of June 2, 2020. SEXUAL ASSAULT: Explanation of “without consent”: Jury charge definition of “without consent” was not erroneous and evidence was sufficient to prove lack of consent. Limonta-Diaz v. State, 593 S.W.3d 447 (Tex. App.— Austin 2020, pet. filed). Appellant, a rideshare driver, was convicted of sexually assaulting an intoxicated customer while she was inside
the driver’s vehicle. A person commits sexual assault if he “intentionally or knowingly causes the penetration of the . . . sexual organ of another person by any means, without that person’s consent.” The trial court instructed the jury that “[a] sexual assault is without the consent of the other person if: (1) the actor compels the other person to submit or participate by the use of physical force or violence; or (2) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist; [or] (3) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring.” On appeal, the driver asserted that the latter two definitions should not have been submitted to the jury because they were not supported by the evidence. He claimed there was no evidence showing that the victim was unconscious or physically unable to resist appellant and no evidence showing that the victim was unaware she was engaging in a sexual act with appellant. The appellate court disagreed. The court explained that the plain meaning of “unconscious” or “unaware” “connotes a lack of awareness, knowledge, or perception.” The court then summarized the evidence supporting a finding that the victim was unconscious or unaware during the assault, including her intoxication, a lack of injuries that suggested an
inability to resist, and her “lapses in awareness, perception, and knowledge throughout the rideshare, which resulted in memory gaps.” The driver also asserted that the evidence was insufficient to prove that he penetrated the victim’s sexual organ without her consent. Again, the appellate court disagreed. The court described the evidence in detail, including the victim’s statements on the night of the assault, her testimony in court, and her physical appearance and demeanor immediately after the assault. Court affirmed conviction. SEXUAL ASSAULT: SANE testimony: Testimony of sexual assault nurse examiners was admissible expert testimony and did not violate Confrontation Clause. Murray v. State, 597 S.W.3d 964 (Tex. App.—Austin 2020, pet. ref’d). Murray was convicted of sexual assault. The victim died before trial, and the district court admitted into evidence the testimony of two sexual assault nurse examiners (SANEs) to whom the victim had made statements describing the assault. On appeal, Murray argued that the evidence was inadmissible for various reasons. First, he asserted that the evidence violated Rule of Evidence 702, which governs the admissibility of expert testimony. Specifically, Murray argued that the evidence would not assist the factfinder in resolving the disputed issue of consent. The appellate court disagreed. The SANEs testified about blood stains
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found in the victim’s underwear, explaining that the blood could have come from a traumatic event. They explained to the jury, based on their specialized knowledge, why the blood stains suggested that a traumatic event had happened to the victim. Moreover, consent was not the only disputed issue in the case. The State was required to prove penetration, and the SANE testimony assisted the trier of fact in determining that issue. Next, Murray claimed that the SANE testimony was inadmissible hearsay, but he did not raise this complaint in the court below and thus failed to preserve error. Finally, Murray argued that the admission of the victim’s statements to the SANEs violated his right of confrontation. The Confrontation Clause prohibits the admission of out-of-court statements offered against the accused that are “testimonial” in nature. Murray argued that the statements were testimonial because the SANE exam took place two days after the victim was admitted to the hospital, suggesting the lack of any emergency medical need for the exam, and because the victim was admitted to the hospital for a reason unrelated to the assault. However, the court concluded that the statements were not testimonial. Rather, they were made primarily for the purpose of medical diagnosis and treatment, and the lack of an “emergency” AUSTIN was not dispositive. LAWYER AL AL Court affirmed conviction.
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AUSTINLAWYER | JULY/AUGUST 2020
FEDERAL CIVIL COURT UPDATE concluded that Eastus did not fit within the exemption’s catch-all because she was not actually engaged in the movement of goods in interstate commerce. The court reasoned that even if goods includes the items that most airline passengers carry with them in their backpacks, purses, or pockets, Eastus’s role as a ticketing- and gate-agent supervisor preceded the movement of the passengers and their goods in interstate commerce.
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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 June 5, 2020. ARBITRATION: Federal Arbitration Act’s residual exemption for “any other class of workers engaged in foreign or interstate commerce” applies only to workers actually engaged in movement of goods in interstate commerce. Eastus v. ISS Facility Servs., Inc., No. 19-20258 (5th Cir. May 27, 2020). Heidi Eastus worked for ISS Facility Services as an account manager for one of its clients, Lufthansa German Airlines. In her job, Eastus supervised ticketing and gate agents at Bush Intercontinental Airport in Houston. Eastus brought employment-discrimination and retaliation claims against ISS and Lufthansa. The defendants filed a motion to compel arbitration based on the arbitration provision in Eastus’s employment contract with ISS. The district court granted the motion. Eastus appealed. Section 2 of the Federal Arbitration Act (“FAA”), as interpreted by the Fifth Circuit, generally makes arbitration provisions in employment agreement valid, irrevocable, and enforceable to the same extent as any other contract. But section 2 exempts from the FAA’s coverage “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Eastus argued that she fit within in the exemption’s catch-all covering “any other class workers engaged in foreign or interstate commerce.” The Fifth Circuit, like the district court, disagreed. Relying on its prior decision in Rojas v. TK Commc’ns, (5th Cir. 1996), the Fifth Circuit
FINALITY OF JUDGMENTS: In cases with multiple defendants, district court retains authority to enter partial final judgment under Rule 54(b) even after plaintiff litigated claims to conclusion against some defendants and then voluntarily dismissed claims against all other defendants without prejudice under Rule 41(a).
“finality trap” in which it cannot obtain a final decision. Here, two plaintiffs sued twenty-four defendants after their father died of mesothelioma. Several defendants obtained summary judgment. The plaintiffs subsequently moved to voluntarily dismiss their claims against the remaining defendants under FRCP 41(a). The district court granted the motion but did not state whether the dismissal was with or without prejudice. On initial appeal of the summary-judgement motions, the Fifth Circuit held that the voluntary dismissal was without prejudice and, therefore, dismissed the appeal for want of a “final decision.” Back before the district court, the plaintiffs sought and obtained a partial final judgment against various defendants under Rule 54(b), which permits
On rehearing en banc, the Fifth Circuit vacated the panel’s decision and held that Rule 54(b) authorizes a district court to enter partial final judgment following voluntary dismissal of remaining defendants under Rule 41(a). Williams v. Seidenbach, 958 F.3d 341 (5th Cir. 2020) (en banc). Under 28 U.S.C. § 1291, courts of appeals may review only “final decisions” of district courts. Fifth Circuit precedent holds that there is no final decision as to a defendant who the plaintiff voluntarily dismisses without prejudice. Further, in a suit against multiple defendants, there is no final decision as to one defendant unless there is a final decision as to all defendants, absent an order to the contrary. FRCP 54(b). As a result, when a plaintiff sues multiple defendants, litigates to conclusion against some defendants, and then voluntarily dismisses the remaining defendants, the plaintiff may fall into a so-called
district courts to “direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” The plaintiffs again appealed. A court panel held that the district court lacked the power to enter partial final judgment under Rule 54(b) because the case against the previously dismissed defendants was no longer before the district court. On rehearing en banc, the Fifth Circuit vacated the panel’s decision and held that Rule 54(b) authorizes a district court to enter partial final judgment following voluntary dismissal of remaining defendants under Rule 41(a). The en banc court saw “no reason
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why the order of events should alter the court’s power under Rule 54(b)” to “direct entry of a final judgment as to one or more, but fewer than all, claims or parties…if the court expressly determines that there is no just reason for delay.” By resolving the case in this way, the en banc court avoided the need to resolve other questions related to the finality-trap problem, such as whether a voluntary dismissal without prejudice is a final decision for purposes of appeal. The en banc court remanded the case back to the panel to decide the meritsLAWYER of the summary-judgAUSTIN AL AL ment appeal.
JULY/AUGUST 2020 | AUSTINLAWYER
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FEDERAL CRIMINAL COURT NEWS
Irregular Regularity Any Limits on Federal Prosecutorial Discretion? 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
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hallmark of the separation-of-powers doctrine, as it plays out in federal criminal cases, is that the courts are to apply a “presumption of regularity” to the actions of the government-as-prosecutor and not second-guess choices that could fall under the heading of “prosecutorial discretion.” Such prosecutorial choices include which charges to bring, whether to seek sentencing enhancements, the nature and structure of plea agreements, and whether to seek a government motion to dismiss a case. The U.S. Department of Justice’s unprecedented, and seemingly bizarre, handling of its case against former National Security Advisor Michael Flynn has raised more than eyebrows. Flynn plead guilty and re-affirmed his guilt under oath in front of two different judges, but then sought to withdraw his plea and received the gift of a motion to dismiss his case regardless of his prior affirmations of his guilt. In dueling filings, the government and the 20
trial court are currently arguing over the extent to which a trial court may question the reasons behind a prosecutor’s motion to dismiss a criminal case.1 The government may move to dismiss a criminal case at any time before the start of trial, “with leave of court.” FRCP 48(a). The question is, what is the role of the trial court in granting leave to dismiss a prosecution? This battle is playing out in a mandamus petition filed by the Justice Department, asking the Court of Appeals for the District of Columbia Circuit to order Judge Emmet Sullivan, the trial judge in Flynn’s case, to grant the government’s motion to dismiss, which is obviously not opposed by Flynn. Instead of granting the motion, Judge Sullivan appointed a retired judge to serve as amicus, to argue against the motion to dismiss and to explore whether Flynn had committed perjury or contempt of court by disavowing his pleas. Judge Sullivan has yet to rule on the motion to dismiss, but Flynn sought mandamus relief to force him to grant it, and now the Justice Department has joined in that argument. The government, and Flynn, argue that under DC Circuit precedent, the role of a trial court in granting “leave” to dismiss a case is limited to ensuring that the government is not using dismissal as a method of prosecutorial harassment, in dismissing and then re-indicting cases against a defendant.2 The reasoning of the Fokker court is largely based on the premise that the government is in a better position than the court to make prosecutorial judgments (which is clearly true), and that a “presumption of regularity” should attach to prosecutorial decisions (a premise which, given the government’s conduct
AUSTINLAWYER | JULY/AUGUST 2020
in the Flynn case, including the withdrawal of the lead prosecutor the day the motion to dismiss was signed by different counsel, strains credulity). Regardless of how the Flynn case ultimately plays out (a presidential pardon likely awaits Flynn in the unlikely event the courts balk at the dismissal), the behavior of the government in this particular case certainly raises questions about just how strong a presumption of regularity should
be, and whether a court has any meaningful role whatsoever in ensuringAUSTIN that a prosecutorial LAWYER AL AL dismissal is justified. 1. “DOJ urges appeals court to force dismissal of Flynn case,” K. Cheney and J. Gerstein, Politico, June 1, 2020, https://www.politico.com/ news/2020/06/01/judge-questionsunusual-justice-department-filing-inflynn-case-294330. 2. United States v. Fokker Services B.V., 818 F.3d 733 (DC Cir. 2016).
MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS
2016-PRESENT
JULY/AUGUST 2020 | AUSTINLAWYER
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AUSTIN YOUNG LAWYERS ASSOCIATION
AY LA PRESIDENT’S COLUMN DAVID KING, GRAVES DOUGHERTY HEARON & MOODY
Meet AYLA President David King King Serves as AYLA President for the 2020-21 Bar Year ritual—thank goodness frozen margaritas can be included in pick-up orders.) I also love all of the greater-Austin-area parks and trails—Wild Basin, Bull Creek, Pedernales, McKinney Falls, Palmetto State Park, Inks Lake, etc. AYLA: Let’s start with everyone’s favorite question: Would you tell us a little about yourself? KING: I was born and raised in Boston, Massachusetts. I went to UT-Austin for college and then moved back to the East Coast for a few years to work on policy and politics in Washington, D.C., before going to law school at the University of Virginia. I couldn’t resist Austin’s gravitational pull (my wife, Kacey, whom I met in college, is a native Austinite), so I moved back to town after law school. I clerked with Judge Benavides on the Fifth Circuit for a year before going to work for Graves Dougherty Hearon & Moody, where I practice civil litigation focusing on business and other commercial disputes. Kacey and I have two kids—four and seven—and, like everyone else, we are trying to make it work in this post-COVID world. AYLA: What are some of your Austin-area favorites? KING: First, I want to highlight a former favorite—Hut’s Hamburgers. Our family will miss 2-for-1 burger night on Wednesday nights. Current food favorites include many of the fine Tex-Mex establishments we all know and love. (Even during the pandemic, we have managed to preserve our Friday night Tex-Mex 22
AYLA: Why did you first get involved with AYLA? KING: I am fortunate to be at an Austin law firm that really encourages and celebrates participation in the Bar and in the larger community. In my first few years of practice, I heard over and over again (and it turns out to be true!) that AYLA is a wonderful way for young lawyers to get involved and to get to know others in the Austin legal community. AYLA: What are your goals for AYLA this year? KING: First and foremost, my goal this year is to ensure that AYLA is still serving its membership despite the disruptions caused by COVID-19. That will mean changing our long-standing programs to fit our new reality— and also creating new programs which serve the unique needs of our current time. AYLA is a social organization which thrives on person-to-person interactions, so this will be a challenge. But, whether it is by Zoom or other forms of social distancing, the show will go on. AYLA: If you could impart one piece of wisdom on the firstyear lawyer and make it stick, what would it be? KING: It may sound clichéd (which is difficult to avoid when picking “one piece of wisdom”),
AUSTINLAWYER | JULY/AUGUST 2020
but I’d say that first impressions matter. I think this is especially true for first-year lawyers. Especially in Austin, which is chock-full of excellent lawyers, it is tough to stand out. To do that, I think it helps—and may even be critical—to start out on the right foot with as many people as you can in your early career. AYLA: What has been your most rewarding AYLA experience so far? KING: It’s difficult to pick one experience, but AYLA’s holiday program holds a special place in my heart. Each holiday season (for many years now), we fundraise to provide gifts to economically disadvantaged families in Austin, and all of the families are invited to a kid-friendly holiday party with Santa, a magic show, and other games and activities. It’s such a fun event. AYLA: What is an interesting fact about you that people probably don’t know? KING: I lived in Germany for a year in high school and, although I could use some practice, I can still carry a conversation in German. (Thanks, Netflix, for all of the German series.) AYLA: What changes do you anticipate to the manner in which AYLA puts on events or programming based on the need to maintain social distancing? KING: We don’t have to anticipate the changes; we are already seeing them. AYLA, like so many other organizations, has had to postpone its large, signature
events like Runway for Justice. In place of these events (which we do aim to resume when it is safe to do so), we are developing new programming. For example, in place of our typical “Docket Call” happy hour, we just had a virtual Docket Call Trivia Night. We also introduced “Coffee with the Judiciary,” which is a periodic event in which we invite a local state or federal judge to join a Zoom call with a small group of AYLA members. AYLA: How do you believe AYLA can do a better job identifying and meeting the needs of its membership during these unprecedented times? KING: These are truly unprecedented times. While the country is reeling from the devastation caused by COVID-19—both in terms of the staggering loss of life and the economic fallout— we are also seeing anger and frustration over racial injustice expressed through nationwide protests. AYLA will be doing more than simply sitting on the sidelines during this challenging time. AYLA is, at its core, a service organization, and we will strive to continue serving the Austin community. Working to increase access to justice is a meaningful part of that service, and we look forward to working with the Austin Bar on LAWYER its newly AUSTIN AL AL formed Equity Committee.
AUSTIN YOUNG LAWYERS ASSOCIATION
Lawyers Only Play De Minimis Pursuit AYLA leaders are excelling in finding ways to connect virtually, have fun together, and deepen relationships during this time.
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ustin Young Lawyers Association leaders are excelling in finding ways to connect virtually, have fun together, and deepen relationships during this time. O n June 4, 2020, AYLA hosted a night of (remote) trivia. The questions were carefully curated and the competition fierce as the lawyer-teams valiantly resisted the temptation to Google the answers. (Alas, no ethics CLE could be awarded, even to those who succeeded in relying on
their collective memories alone.) Thanks to everyone who participated, and special thanks to the tireless efforts of David Floyd, who wrote the questions and served as emcee, and Sarah Harp, who organized the event and judged the teams’ submissions. Competitors included: • Tequila Mockingbird: Peter Strenkowski, Leila Melhem, Eric White, Ari Cuenin, and Kathleen Hunker • Quarantoneds: Ben Dower, Shana Horton, Ethan Ranis, and Francesca di Troia
• Pandemic! At the Disco: Rachael Jones , Johnathan Stone, Emily Morris, Jenna Malsbary, and Meghan Kempf • I Zoom Therefore I Drink: Jessica MacCarty
NNN AAAAAAAAA
• Matt is Alone: Matt Rappaport • Home Aloners: Brittani Miller and Caitlin Haney Johnston • Go Team Go: Josh Crowley, Lena Proft, Matthew AUSTINMyers, LAWYER AL AL and Caroline Hall Nelson
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Stephen Yelensoky
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PRACTICE POINTERS
Tips from the State and Federal Courts BY MEGAN JOHNSON, STAFF ATTORNEY FOR 353RD TRAVIS COUNTY DISTRICT COURT; JENNY BRANNEN, STAFF ATTORNEY FOR THIRD COURT OF APPEALS; AND KATIE CARMONA, LAW CLERK FOR U.S. DISTRICT JUDGE LEE YEAKEL
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ttorneys are taught that practicing before the court requires candor, civility, and preparedness. Candor and civility may be universally understood, but how does an attorney prepare to practice before the court? The following list of practice tips from career clerks in the state district court (TC), state appellate court (CA), and federal district court (FC) in Texas provide some insight into the steps attorneys can take to ensure that they are prepared and effective in court, even during a pandemic. PROPER COMMUNICATION WITH THE COURT TC: Court staff welcomes non-substantive, non-ex parte, communications by phone or e-mail.
CA: Call the Clerk’s office for procedural questions or to give advance warning of emergency filings. Please call back if you decide not to file your emergency. Consider informing the court and moving to abate the appeal if you are mediating your case to avoid wasting the court’s resources on preparation of an unnecessary opinion. If mediation is unsuccessful, you can move to reinstate the case. FC: Every federal judge is different, although most allow their law clerks to answer an attorney’s question, so long as it is procedural in nature. If you require immediate action by the court, please call chambers. Also call chambers if you resolve your case, especially if there are any pending motions before the court or if your case is nearing trial. EFFECTIVE WRITTEN SUBMISSIONS
TC: Identify the specific issue, relief requested, and the most rel24
evant facts or procedural posture at the beginning of the motion in an executive summary. This sets the foundation for the remainder of the pleading. Keep your writing specific, to-the-point, and concise. Use headings to map the arguments. Summary judgments are most effective when made only on a few strong grounds (rather than multiple less-certain grounds). Jury charges should comply with the Texas Pattern Jury Charge, unless exigent and persuasive circumstances exist. CA: Pick your best arguments; keep it to case-dispositive issues. Present and address threshold issues first (e.g., jurisdiction, applicability of statute). State relief requested clearly and concisely, including any alternative relief requested. Include live pleadings in the appendix or identify each by name in the brief or motion, especially when the record is large. Bookmark briefs and motions carefully. Make it easy to click on key sections and any important documents when reading electronically. Explain terms of art—not everyone who works on your appeal will be as familiar with the industry or area of law involved in your case as you are. FC: Be mindful of the Local Rules regarding page length and formatting requirements. Although the court may grant an unopposed motion to exceed the page limit, additional pages rarely translate into a more effective argument. If you file a motion or response with a large appendix, please call chambers to ask if the judge would like a bound and tabbed courtesy copy. HEARINGS AND OTHER ORAL ARGUMENTS
TC: Judges try to read your motion(s) before the hearing, but because cases are assigned within
AUSTINLAWYER | JULY/AUGUST 2020
Be aware—the courtrooms have microphones and cameras that allow staff to hear what is going on in court from chambers. PowerPoints and visual aids are effective only if used to aid argument rather than read out loud in court, which is a distraction. minutes before the setting, be prepared to orient the court to the type of motion(s) set, the specific issue(s) presented, the specific relief requested, and a brief outline of the relevant facts and procedural posture. Providing a written one-page executive summary to hand to the judge can be quite helpful. Be prepared with a proposed order, allowing the judge to understand exactly what relief you are asking from the court. Be aware—the courtrooms have microphones and cameras that allow staff to hear what is going on in court from chambers. PowerPoints and visual aids are effective only if used to aid argument rather than
read out loud in court, which is a distraction. CA: Know your weakest arguments and be prepared to address them. If the outcome of your appeal could have wider application, be prepared to address that broader effect. FC: Assume the judge has read your written submissions and understands the case. Do not begin by reciting the facts of your case unless the court asks for more background information about the case. Be ready to answer the judge’s questions. If you do not know the answer, ask the court if you may supplement your argument by written
submission after the hearing is concluded. POST-SUBMISSION FILINGS
All Courts: If new authority becomes available after written submission or hearing, file a motion for leave to supplement. Avoid filing motions for rehearing. They slow down the court’s proceedings and are rarely granted. EMERGENCY MOTIONS AND ORIGINAL PROCEEDINGS
Clearly identify any filing as an emergency in the title of the submission, and call chambers as soon as the emergency motion has been filed. Do not assume that the court will be notified that your filing requires immediate attention. attack that occurred on May 8, as well as issues related to the pandemic, the court issued a blanket order on May 20 to extend the
time for parties to file briefs in certain pending cases until June 30. Check the court’s website for the most current orders and pro-
cedures, and contact the clerk’s office if you have any procedural questions. FC: Check the court’s website for any special rules and procedures issued in response to COVID-19. Some judges have rendered orders in each of their cases with specific procedural changes. If you still have questions regarding how to proceed in your case, please call LAWYER the judge’s chambers AUSTIN AL AL for assistance.
TC: Follow the Local Rules on emergency matters and contact the Duty Court for court-specific requirements. CA: Bold any imminent deadlines and mention them as early as possible in your emergency motion. If not an emergency, say so early in the mandamus petition (preferably in bold type). Provide the court as much time as possible to resolve any emergency filing. FC: Clearly identify any filing as an emergency in the title of the submission, and call chambers as soon as the emergency motion has been filed. Do not assume that the court will be notified that your filing requires immediate attention. It is your responsibility to make sure the court is made aware of an emergency as soon as possible.
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TC: Under the modified COVID-19 procedures, most matters are determined on written submissions. However, at the judge’s discretion, an oral hearing may occur via Zoom, so be familiar with that application. Any relevant order will be available on the courts’ website. CA: The court is currently conducting all hearings remotely via Zoom because of the ongoing COVID-19 pandemic. Due to the unprecedented computer-network outage caused by a ransomware
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Keynote Speaker Announced for the Texas Supreme Court Historical Society’s 25th Annual Hemphill Dinner
T
he Texas Supreme Court Historical Society is excited to announce that the Chief Judge of the U.S. Court of Appeals for the Fifth Circuit, former Texas Supreme Court Justice Priscilla R. Owen, will keynote the Society’s 25th Annual Hemphill Dinner, to be held at 7 p.m. on Friday, Sept. 11, 2020. For the first time ever, the Hemphill Dinner will be held virtually in light of concerns surrounding COVID-19. More details regarding accessing the dinner broadcast will be released closer to the event. Prior to her confirmation to the federal bench in 2005, Chief Judge Owen served with distinction for a decade on the Texas Supreme Court. First elected in 1994, she was just the second female Justice to be elected to the court in its history. On the Fifth Circuit, she succeeded former
For the first time ever, the Hemphill Dinner will be held virtually in light of concerns surrounding COVID-19. More details regarding accessing the dinner broadcast will be released closer to the event. Texas Supreme Court Justice, Judge William Garwood, in the seat he had held since 1981. Alongside the late Judge Garwood, Tom Reavley, Sam Johnson, and current Fifth Circuit Judge Don Willett, Chief Judge Owen is one of five former Texas Supreme Court Justices to serve on the Fifth Circuit. In addition, Chief Judge Owen is the first and only former Texas Supreme Court Justice to serve as Chief Judge of not only the
Fifth Circuit, but any U.S. circuit court of appeals. Elevated to Chief Judge in October 2019, Owen will Hon. Priscilla R. Owen serve in the post until 2024. She is the first Chief Judge of the Fifth Circuit to be degrees from Baylor University, based in Austin. and was the high-scorer on the A native of Palacios, Chief Texas BarLAWYER Exam the year she AUSTIN AL AL Judge Owen received both her was licensed. undergraduate and juris doctor
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Sage Settlement Consulting . . 3
Lakeside Mediation Center . . . 14 Law Office of Tim Whitten . . . 26
Texas Lawyer Insurance Exchange . . . . . . . . . . . . . . . . . 3
LawPay . . . . . . . . . . . . . . . . . . . 2
The Gottfried Firm, P.C. . . . . . 16
Loewy Law Firm . . . . . . . . . . . . 5
The Snell Law Firm, PLLC . . . . 9
Noelke Maples St. Leger Bryant, LLP . . . . . . . . . . . . . . . . 21
Thomas Esparza, Jr. P.C. . . . . . 23
Armbrust & Brown, PLLC . . . . 21 Briggs & Veselka Co. . . . . . . . . 14 Broadway Bank . . . . . . . . . . . . 28 Foster, LLP . . . . . . . . . . . . . . . . 4 Hargett Mediation . . . . . . . . . . 16 Hilltop Securities . . . . . . . . . . . 17
Seed Property Group . . . . . . . . 18
UT Austin Center for Professional Education . . . 11 Vaught Law Firm . . . . . . . . . . . 25
JULY/AUGUST 2020 | AUSTINLAWYER
27
W E A LT H MANAGEMENT
Your financial future is our only priority. Your financial plan should be built to secure your financial independence. It should also be tailored to fit your unique needs, not developed or controlled by outside opinions. At Broadway Bank Wealth Management, we’ve built a business focused solely on serving our clients with no hidden agendas. Our team of highly credentialed advisors are held to the Fiduciary Standard – that means we will always put your interests above ours. Let us help you secure your financial future. In person, over the phone or online. W E A LT H M A N A G E M E N T
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B R O A D W A Y . B A N K / W E A LT H
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(512) 465-7801
INVESTMENT PRODUCTS ARE: NOT FDIC INSURED • NOT A DEPOSIT • NOT INSURED BY A FEDERAL GOVERNMENT AGENCY • NOT GUARANTEED BY THE BANK • MAY LOSE VALUE Rev. 06/20 / #439927588
