Austin Lawyer, June 2017 by Austin Bar Association

austinbar.org JUNE 2017 | VOLUME 26, NUMBER 5

Award Winners Honored at Bench Bar Conference Luncheon Austin Bar and AYLA Present Annual Awards

n May 12, 2017, more than 240 attorneys and 30 judges attended the annual Bench Bar Conference held at the Austin Country Club. The day-long conference, titled “Bench Bar Beyond,” explored topics and David M. González Jeannie Rollo current trends in the legal profession that will impact the fuService, serves on the executive ture of lawyers. During the event’s committee of the Lloyd Lochridge luncheon, the Professionalism Inn of Court, and is legislative and Regina Rogoff awards were counsel to the Texas Criminal presented by Austin Bar President Defense Lawyers Association. He Leslie Dippel. has served as a special prosecutor PROFESSIONALISM AWARD for Travis County, Kendall CounThe Austin Bar Association, in ty, Panola County, and the City partnership with the Texas Center of Cibolo. González is a member for Legal Ethics, annually presof the Disciplinary Committee ents this award to honor an Austin of the U.S. District Court for the attorney who best exemplifies, Western District of Texas, and he by conduct and character, truly served on the District 9 grievance professional traits; who others in committee of the State Bar of the bar seek to emulate; and who Texas from 2012–2015. He was all in the bar admire. appointed to the Board of DisThis year, the award was ciplinary Appeals by the Texas presented to David M. González, Supreme Court in 2015. a partner at Sumpter & González. REGINA ROGOFF AWARD He is board certified in criminal This annual award from the law and serves as an adjunct Austin Bar Association recognizes professor in the Trial Advocacy outstanding public sector service Program at the University of and serves as a lasting tribute to Texas School of Law. González the career achievements of Regina sits on the board of directors of Rogoff, former executive director the Capital Area Private Defender

Laura de la Garza

Gregorio Casar

of Legal Aid of Central Texas. The 2017 recipient of the award is Jeannie Rollo. Rollo is retiring this year after serving for 19 years as executive director of the Lawyer Referral Service of Central Texas. She was on the board of American Gateways for six years, serving as president for four of those years. In 2010, American Gateways awarded her the Leading Voice Award for providing outstanding leadership to the immigration and legal communities in Austin. Rollo worked with the Texas Access to Justice Commission (TAJC) on the Self-Represented Litigant Subcommittee, and the Limited Scope Representation Subcommittee, and is a member of the State Bar of Texas Legal Access Division Pro Bono Workgroup. She served on the State Bar of Texas Lawyer Referral and Information Service Standing Committee from 1998 to 2006. Last year, the Supreme Court of Texas appointed Rollo to the TAJC. She currently volunteers with the American Bar Association Lawyer Referral and Information Service Program of Assistance and Review, providing best practices consulting to referral services across the country. She is a frequent presenter at

Judge Eric Shepperd

the ABA Lawyer Referral and Information Service National Workshop. Also presenting awards at the Bench Bar luncheon was AYLA President Katie Fillmore who honored the recipients of the Outstanding Young Lawyer Award, the Liberty Bell Award, and the Mentor Award. OUTSTANDING YOUNG LAWYER AWARD The Outstanding Young Lawyer Award recognizes one young lawyer who has demonstrated professional excellence, service to the profession, and service to the community. Laura de la Garza, Texas Legislative Council, is the 2017 recipient of this award. De la Garza drafts legislation and advises members of the Texas Legislature, and she specializes in the areas of health and human services, insurance, and civil litigation. She is involved in the Austin legal community as a member of the Robert W. Calvert Inn of Court, an active member of AYLA, and a graduate of the 2016 AYLA/Austin Bar Leadership Academy. She serves the Austin community as a leader of the St. Austin’s young continued on page 5

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CONTENTS

AUSTINLAWYER JUNE 2017 | VOLUME 26, NUMBER 5 AL A L INSIDE FEATURED ARTICLES 1

Award Winners Honored at Bench Bar Conference Luncheon Austin Bar and AYLA Present Annual Awards

Trivia Night Raises Funds for Foundation

Austin Bar Foundation Announces 2017 Grant Recipients

Texas Proclaims April 4, 2017 Texas Women Judges’ Day

2017 Law Day The 14th Amendment: Transforming American Democracy

The Value of Equality 2017 Law Day Winning Essay

Corporate Sponsor: Expert’s Corner—Preparing Experts for Trial

ONLINE

DEPARTMENTS 6 President’s Column 10 Opening Statement 12 Briefs 14 Third Court of Appeals Civil Update 15 Third Court of Appeals Criminal Update 16 Federal Criminal Court News 18 Entre Nous 20 AYLA 23 Classifieds/Ad Index

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

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NEWS & ANNOUNCEMENTS

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TAJF Announces New Endowment Joe Jamail Endowment for Veterans Legal Services Honors Texas Legal Giant

Robert Calvert Inn of Court Focuses on Mentorship Matt Garcia, Chair of Mentoring Committee, Highlights Inn’s Robust Program

Litigation Section of State Bar of Texas Inducts Texas Legal Legends Lloyd and Pat Lochridge Inducted in Ceremony at UT School of Law

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JUNE 29 Trivia Night 6:30 – 9:30 p.m. The Tavern 922 W. 12th St. Proceeds benefit the Austin Bar Foundation

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Trivia Night Raises Funds for Foundation

ongratulations to the winning Austin Lawyer Trivia team, “Beyond a Reasonable Stout!” The team was made up of Francesca Di Troia, Jason Katims, Rebekah Mata, Ethan Ranis, Will Chambers, Trey Hebert, and Christie Mason. Hosted by Dave Floyd and Sara Foskitt, the event raised more than $1,600 for the Austin Bar Foundation. The next Austin Lawyer Trivia Night will be held on Thursday, June 29, 2017 at The Tavern at 6:30 p.m. To sponsor, or for more information, contact Sara Foskitt at sara@foskittlaw.com.

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DeLaine Ward........................... Executive Director Nancy Gray ................................ Managing Editor Debbie Kelly .............................. Director of AYLA Kennon Wooten ...................... Editor-in-Chief Kelli Horan ................................. Editorial Assistant Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 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 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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Austin Bar Foundation Announces 2017 Grant Recipients More than $29,000 Awarded to Legal-Related Programs in Central Texas

he Austin Bar Foundation recently announced its grant recipients for 2017. Seven organizations working to provide legal-related services to members of the Central Texas community were awarded $29,846. The Foundation has given $132,098 worth of grants to date. These grants are made possible by the generosity of the Austin Bar Foundation Fellows and by funds raised at the Foundation’s annual Gala. Thank you to the Fellows and to all who contributed to the Gala. Your pledges supported the following grants in 2017. Austin Tenants Council, $4,500. Eviction Advocacy Project:

To produce a resource video in both English and Spanish. The video will educate the public about the eviction process, including the rights and responsibilities of tenants and landlords throughout the process, and how to prepare for and navigate an eviction filing after receiving notice. Texas Accountants and Lawyers for the Arts, $5,000. Austin Educational Programming for Low-Income Artists: To produce ten educational seminars for Austin artists. The seminars will provide business skills for entrepreneurial artists and small arts nonprofit organizations. American Gateways, $3,000. Immigrant Survivors Detention Pro

Bono Representation Project: To create a new pro bono training in which attorneys assist asylum seekers who had a complete-credible-fear interview pro se before the asylum office and were given a negative determination in a review hearing before an immigration judge. Volunteer Legal Services of Central Texas, $4,000. Debtors Prison Program: To enable VLS to provide assistance to low-income Texans who are being imprisoned for the non-payment of fines and fees related to Class C misdemeanors. Austin Classical Guitar, $4,000. Classical Guitar Engagement for Court-Involved Youth: To support an after-school

program that offers classroom-based, classical guitar instruction to court-involved youth as part of their mandated case plans. CASA of Travis County, $4,000. Knowing Who You Are – A Specialized Training to Prepare CASA Volunteers to Help Youth in Care to Develop a Healthy Racial and Ethnic Identity: To support specialized trainings for volunteer advocates so they can better advocate for children who have been abused or neglected. Emergency Grant to Equal Justice Center, $5,346. To provide 12 clinics to the public regarding theAUSTIN immigration execuLAWYER tive order and their rights. AL AL

Austin Bar and AYLA Honor Outstanding Members at Bench Bar Luncheon continued from cover

professionals group, a graduate of the 2016 Diocese of Austin’s Emerging Leaders Program, and a member of her church choir. LIBERTY BELL AWARD The Liberty Bell Award recognizes an outstanding non-lawyer who has strengthened the effectiveness of the justice system by instilling better understanding and appreciation of the law. This year, the award went to Gregorio “Greg” Casar. He is a native

Texan, the son of Mexican immigrants, and an Austin City Council member representing District 4 for his second term. Casar’s priorities include social equity, shared prosperity, affordability, criminal justice reform, environmental stewardship, and public safety for all. MENTOR AWARD The Mentor Award is given to an attorney or judge who has consistently demonstrated a commitment to mentoring young attorneys in the legal community. The 2017 recipient of the Men-

of the Austin Bar Foundation, tor Award is Judge Eric Shepperd. past-president of the Austin Bar Judge Shepperd has been a part Association, a lecturer for the UT of the Austin legal community for School of Law’s Trial Advocacy more than 30 years. Shortly after Program, and a professor for graduating from UT School of Austin Community College’s Law, he became an assistant attorparalegal program, teaching ney general in what is now known advanced litigation. In the past, as the Law Enforcement Defense he has had the honor of serving Division. He went on to become as president/chair of the Austin the director of civil litigation Black Lawyers Association, Texas for the Travis County Attorney’s Organized Professionals, Red Office until his election for County Cross of Central Texas, Austin Court Judge in 2006. Habitat for Humanity, Leadership Judge Shepperd is an active Austin, and Texas Center for the mentor in the legal communiAUSTIN LAWYER Judiciary. ty. He is the current president AL AL

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PRESIDENT’S COLUMN LESLIE DIPPEL, ASSISTANT TRAVIS COUNTY ATTORNEY

Living the Lawyer’s Creed Raise the Bar

he desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct.” In this last column studying the Lawyer’s Creed, the statement above, from the Texas Supreme Court Order adopting the creed, accurately summarizes my thoughts on it. The longer I have practiced the more I have thought about how I want to be known. I want to be known as someone you can trust. I want to be known as someone you can rely on. I want to be known as someone who openly admits mistakes and tries hard to correct them, even though I know I am not perfect. In order to be known as someone with those qualities, I have to be someone

“

AUSTINLAWYER | JUNE 2017

who practices those qualities. If we all approach our daily practice of law with a “desire for respect and confidence from the public,” the necessary end-product will be a profession we can be proud of—one that will conform to the principles of the Lawyer’s Creed. What an incredible year of opportunity we have had putting these principles into practice in the expanded role of service to the Austin Bar Association. Throughout the year, I have tried to highlight some of the meaningful work the leaders of the Austin Bar have completed, but I’ve only touched the surface. I have always considered it a personal goal to sing for the unsung heroes. Here are a few notes to add that chorus: Eleanor Ruffner, Laura Merritt, and Mike Johnson kept us up-todate on everything we needed to know as co-chairs of the CLE Committee. There is now an ever-expanding library of free CLE videos available online for members of the Austin Bar. Eleanor raised the bar when she put together a packed house CLE on immigration law that received positive press coverage and continued the important conversation about immigration rights. Denise Hyde has chaired the

Adoption Day event for as long as I can remember, and she raises the bar every year. If you have not watched this ceremony before, look for it in Noentire staff of the Austin Bar Asvember. It is a powerful and sociation. They each have unique touching expression of the work gifts that make it easier for us to many agencies perform throughout raise the bar, and together, they the year to help children find their are a force. And they always do it forever homes. with warm smiles that never seem Leslie Boykin and David Courto fade. If you see them at the reges co-chair the Law Related Ednext Austin Bar event, will you ucation Committee. They literally please help me thank them? represent the best of the profession Lastly friends, I want to thank to the next generation. That is you. It has been a fun year, and raising the bar from the inside. you are the reason why. In my first It has been a privilege to work column last October, I challenged with them and the many other each of us to choose an ideal from professionals who carry out the the Creed and focus on it. Mine Austin Bar’s many projects every was mentorship. While I may not year. Every member of the Board have completed all that I hoped, of Directors has been active and I did a lot. If I had completed involved. Together, we tackled all that I set out to do, perhaps I tough topics, and they raised the didn’t set the bar high enough! I bar each time. I am humbled to hope you continue to pull out the be a part of the work of this entire Lawyer’s Creed each year and group of dedicated volunteers. I aspire to live by its tenets. want to thank them for their trust, Thank you for your friendship their advice, and their service. I and LAWYER leadership—and keep raising want to personally thank DeLaine AUSTIN theAbar! Ward and Nancy Gray and the L AL

Texas Proclaims April 4, 2017 Texas Women Judges’ Day BY JUDGE ORLINDA NARANJO, NATIONAL ASSOCIATION OF WOMEN JUDGES DISTRICT 11 STATE CHAIR

n April 4, 2017 women judges at all levels throughout the state of Texas were recognized at the state Capitol for their judicial achievements and dedication to public service. More than 150 female judges attended this historic event sponsored by Senator Royce West of Dallas and Senator Joan Huffman of Houston. Senate Resolution No. 563 was read in the Senate chamber proclaiming the day “Texas Women Judges’ Day.” The first Texas Women Judges’ Day was held on April 13, 2015. In 1925, Texas had the first all-female court in the nation, when Governor Pat Neff appointed three female attorneys to serve as Texas Supreme Court Justices on a particular case when all sitting justices recused themselves. In 1935, the first female, Sarah Hughes, was appointed to the 14th District Court in Dallas. Judge Hughes is best known as the

federal judge who swore in Lyndon B. Johnson aboard Air Force One after the assassination of President John F. Kennedy. Today, more than 1,100 women preside over courts throughout the state, including six on the highest Texas Courts: Justices Eva Guzman, Sharon Keller, Debra Lehrmann, Barbara Hervey, Elsa

Alcala, and Mary Lou Keel. Several of these justices attended this historic event. Afterwards, National Association of Women Judges (NAWJ) District 11 Director, Judge Karen Sage of the 299th District Court, and NAWJ Texas State Chair, Judge Orlinda Naranjo of the 419th District Court, held a

reception at the Judicial Conference Room in the Tom C. Clark Building. Many NAWJ members were in attendance, including Judges Elisabeth Earle, Rhonda Hurley, Gisela Triana, Rebecca Martinez, and NAWJLAWYER South Texas AUSTIN Chair, Rebecca Palomo. AL AL

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2017 Law Day The 14th Amendment: Transforming American Democracy

he Austin Bar commemorated Law Day 2017 with essay and poster contests to engage students and help them better understand how the rule of law impacts their lives, and to develop the knowledge and skills necessary to participate in a democracy. The theme for Law Day 2017 was “The 14th Amendment: Transforming American Democracy.” The theme provided the opportunity to explore the many ways that the 14th Amendment has reshaped American law and society. Through its citizenship, due process, and equal protection clauses, this transformative amendment advanced the rights of all Americans. It also played a pivotal role in extending the reach of the Bill of Rights to the states. Ratified during Reconstruction a century and a half ago, the 14th Amendment serves as the cornerstone of landmark civil rights legislation, the foundation for numerous federal court decisions protecting fundamental rights, and a source of inspiration for all those who advocate for equal justice under the law. The first-place winners in each category were submitted to the State Bar of Texas for the statewide contest. The Austin Bar’s Law-Related Education Committee representatives David Courreges and Rudy Metayer visited each winning student’s school

to present the awards. The firstplace essay winner was presented with her award at the Bench Bar Conference luncheon in May.

3RD PLACE: Abigail Scharf, 1st grade, Northwest Elementary School, AUSTIN LAWYER AL AL Pflugerville

WINNERS OF THE AUSTIN BAR 2017 LAW DAY CONTESTS: ESSAY CONTEST (9TH – 12TH) 1ST PLACE: Tiffany Souza, 11th grade, homeschooled, Cedar Park

2ND PLACE: Hanna Dole, 11th grade, Bowie High School, Austin 3RD PLACE: Summer Fullwood, 11th grade, Rouse High School, Leander POSTER CONTEST (6TH – 8TH) 1ST PLACE: Faith Cooper, 7th grade, Walsh Middle School, Cedar Park

2ND PLACE: Emma Hurley, 8th grade, Brentwood Christian, Austin

3RD PLACE: Hannah Cukierman, 7th grade, Kealing Middle School, Austin

POSTER CONTEST (3RD – 5TH) 1ST PLACE: Katie Oddo, 4th grade, St. Andrew’s Episcopal School, Austin

2ND PLACE: Alyssa Miller, 5th grade, Northwest Elementary School, Pflugerville

3RD PLACE: Alisha Coffman, 5th grade, Northwest Elementary School, Pflugerville

POSTER CONTEST (K – 2ND) 1ST PLACE: Arielyn Metayer, 2nd grade, Highland Park Elementary, Pflugerville

2ND PLACE: Harper Gholston, kindergarten, Northwest Elementary School, Pflugerville

CLOCKWISE FROM TOP LEFT: David Courreges congratulates Katie Oddo on her winning poster; Winning poster in 3rd-5th grade category, by Katie Oddo; Winning poster in 6th-8th grade category, by Faith Cooper; Winning poster in Kinder-2nd grade category, by Arielyn Metayer; Rudy Metayer and his daughter, Arielyn, with her 1st place poster.

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The Value of Equality BY TIFFANY SOUZA ONE OF THE MOST prominent stipulations in modern law is the equal protection clause of the 14th Amendment. Brought about in response to the controversy surrounding the Civil War and Reconstruction Era, it’s originally narrow purpose of protecting the rights of African Americans has been expanded to protecting people in almost every aspect today. Discrimination plays a significant part in our society and as a result, the equal protection clause is cited in more court cases than any other. It is important that all people receive “equal protection of the laws” because only through upholding the standard outlined in the 14th Amendment will the nation’s values be truly conveyed. The United States of America stands apart from the other nations of the world in that she was founded on firm principles that prevent the unjust treatment of the very thing that makes her special—her people. From the very beginning, the Declaration of Independence stated that “all men are created equal, that they

are endowed by their Creator with certain unalienable rights…” and that “to secure these rights, Governments are instituted among men…” leaving no question that our forefathers understood the importance of equality and strove to leave the generations to come with a standard for proper American democracy. Unfortunately, the tendency through the years has been to make exceptions and violate the rights of those in minority groups, creating the need for the 14th Amendment, which gave all people equal protection of the laws. The need for equal protection cannot be over-emphasized. The government and general public insist on classifying people for various reasons and often the criteria by which they group others is discriminating and unconstitutional. On a daily basis, citizens are judged by their race, religion, alienage, gender, age, income, and disabilities which can lead to the infringement of their rights if they are not protected. The equal protection clause enhances the probability of equal opportunity in

education and employment, voting rights, and execution of the law. In view of the Constitution, there is no hierarchy of classes among citizens, which, in a perfect world, would mean the equal treatment of everyone. However, the lack of perfect equality has allowed America to realize the importance of her people and that her job is to protect them. Alexis de Tocqueville stated in his book “Democracy in America,” “America is great because America is good. If America ceases to be good, America will cease to be great.” Because our nation’s government has resolved to uphold the equal treatment of all within her borders, her influence can be spread across the world.

Tiffany Souza is an 11th grade homeschool student in Cedar Park. Her essay won first place in the Austin Bar 2017 Law Day Essay Contest.

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Collective Nouns—Singular or Plural? BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

collective noun refers to a group of people or things. Group, for example, is a collective noun. Legal writers often have to deal with collective nouns. Here are some of the most common: board, council, court, faculty, government, jury, majority, panel, staff, and team. When using collective nouns, writers occasionally face questions of subject-verb agreement and pronoun agreement. This column addresses both. SUBJECT-VERB AGREEMENT The key question is whether to treat collective nouns as singular or plural. Should we write the jury is or the jury are? Although a jury, like all collective nouns, is a group of individuals, the better practice is to treat collective nouns as singular and to write the jury is, as well as the council decides, the panel hears, and so on. But the experts agree that it’s not always that simple. According to Bryan Garner, in the United States, we usually treat collective nouns as a singular unit and use the singular verb. “But if the emphasis is on the individuals in the group, the plural verb form is best.”1 The editors of Merriam-Webster’s English Usage Dictionary agree: “[W]hen the group is considered as a unit, the singular verb is used; when it is thought of as a collection of individuals, the plural verb is used.”2 By the way, British English is different, and I won’t address it here except to say that when I watch a football match (soccer game) with British commentators, it’s always jarring to hear them say, “Chelsea’s team are very talented.” So in the Unites States, if you’re writing about faculty, you might write this: a. The faculty [as a singular entity] gratefully acknowledges the assistance of volunteer judges. 10

AUSTINLAWYER | JUNE 2017

Or this: b. The faculty [individually] are of different minds on the subject of pass-fail courses. Another example: c. The consultant studies how the staff [as a singular entity] in rural hospitals gathers and evaluates the performance of doctors with clinical privileges. But then this: d. Thus, staff [individually] in each hospital create performance-assessment processes, policies, and documents. As you can see, it can be tricky to decide if you’re thinking of a collective noun singularly or individually, and even more tricky to decide how your reader will perceive it. That’s why the safest practice is to treat collective nouns as singular entities that take singular verbs and to do so consistently within any one document. A frequent and widely recommended work-around is to use “members” or “members of,” which clarifies the proper verb. So The jury was seated in the hallway becomes The members of the jury were seated in the hallway. And The board meets on the first Thursday becomes The board members meet on the first Thursday. This work-around is useful even if it results in a small loss of concision. PRONOUN AGREEMENT If collective nouns are generally singular, they should take the pronouns it and its, not they, them, or their. Wrong: The council needed to review the transcript before they could vote. Right: The council needed to review the transcript before it could vote. Treating a court as plural is a fairly common error among novice legal writers: Wrong: The court must first determine whether they have

A frequent and widely recommended workaround is to use “members” or “members of,” which clarifies the proper verb. jurisdiction. Right: The court must first determine whether it has jurisdiction. This error might arise from the perception that intermediate appellate courts often hear cases in panels of three and that highest courts often hear cases as a body of nine. Yet the court is a singular entity, no matter how many judges make it up. If the writer is thinking of the judges individually, it would be better to write this: The judges must first determine if they have jurisdiction. Collective nouns are generally singular and take singular verbs

and pronouns. If you think you have an exception, go ahead, but use your bestAUSTIN editorialLAWYER judgment and get a second opinion. AL AL Footnotes 1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 172 (3d ed. 2011). 2. Merriam-Webster’s Dictionary of English Usage 257 (1994).

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AWARDS Chris Gunter has been inducted into the American College of Trial Lawyers. Gunter has been board certified in criminal law since 1985 and is the founding shareholder of Gunter, Bennett & Anthes. Paul Parsons received a “Standing Ovation” award from the staff of the Continuing Legal Education Division for being one of six volunteer lawyers in Texas recognized for extraordinary dedication and commitment to the continuing education of peers. DeLaine Ward, executive director of the Austin Bar Association, was recently elected

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to the Board of Directors for the Downtown Austin Alliance. NEW TO THE OFFICE CHA Law Group hired Alexandra Gullet as a new junior associate attorney. Gullet’s practice includes family law with a focus on divorce, child conservationship, CPS, and LGBT cases. Danielle Hatchitt joined the Austin office of Weisbart Springer Hayes. Hatchitt focuses on commercial disputes involving real estate, employment, fraud, trademark infringement, trade secrets, and non-competition agreements. Holland & Knight announced that Jacob J. Lawler has

joined the firm as an associate in the Austin office. Lawler focuses on electric utility matters, including rate cases, applications for generation or transmission certificates of convenience and necessity, sale or merger applications, and more. MOVING ON UP Michelle Rosenblatt, Chris Whitt, and Andrew York were elected as members of Armbrust & Brown. Rosenblatt focuses on business, estate planning, and taxation. Whitt focuses on real estate and development. York focuses on real estate and commercial litigation.

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THIRD COURT OF APPEALS CIVIL UPDATE sensibilities; and 3) the matter is of no legitimate public concern. The court noted that whether a matter is highly offensive is a mixed question of law and fact. AG failed to conclusively negate the “highly intimate or embarrassing” element of the common-law right to privacy. The court reversed and remanded.

Laurie Ratliff is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization and is a shareholder with Ikard Golden Jones. From 1998 through 2001, she was a staff attorney with the Third Court of Appeals.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during April 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of May 9, 2017.

PUBLIC INFORMATION ACT: Names of participants in research study confidential. The Univ. of Tex. Sys. v. Paxton, No. 03-14-00801-CV (Tex. App.—Austin April 7, 2017, no pet. h.) (mem. op.). UT withheld names of participants in a research study on national security issues. The trial court granted summary judgment for AG that the information was not protected. UT argued that the information was protected by the common-law right to privacy. A tort claim for public disclosure of embarrassing private facts requires: 1) publicity of matters concerning an individual’s personal life; 2) that would be highly offensive to a person of ordinary 14

AUSTINLAWYER | JUNE 2017

TRIAL PROCEDURE: Court reverses based on erroneous summary-judgment evidentiary rulings. Lopez v. Bucholz, No. 03-1500034-CV (Tex. App.—Austin April 7, 2017, no pet. h.) (mem. op.). In this contract dispute, the court of appeals addressed several sustained objections to summary-judgment affidavits. The trial court excluded statements referring to a payment made by check on the ground that no checks were produced in discovery. The court explained that the check may be excluded under TRCP 193.6(a), but not testimony about payment. The trial court excluded statements that Lopez performed work at Bucholz’s request and instruction, and that Bucholz approved the work. The court concluded that these statements were not conclusory, but were easily controvertible facts. According to the court, the erroneously excluded affidavit testimony probably caused the rendition of an improper judgment. The court affirmed in part and reversed in part. IMMUNITY: County’s intervention in lawsuit did not waive immunity. Hughes v. Tom Green County, No. 03-16-00132-CV (Tex. App.— Austin April 20, 2017, no pet. h.) (mem. op.). Hughes’s uncle left mineral interests to SMU to establish an endowed chair and left his home, book collection, and residuary estate to County. Litigation ensued after the endowed chair was funded. County intervened and claimed it was entitled to the excess funds as part of the residuary estate. Hughes contended County’s residual gift had lapsed. Hughes and County

entered a mutual assignment agreement to split any proceeds. County further agreed to name a new library after Hughes’s uncle. When County failed to do so, Hughes sued County for breaching the agreement. The trial court granted County’s plea to the jurisdiction. According to the court of appeals, County did not waive immunity by intervening in the SMU litigation. Hughes and County did not seek relief against each other in the SMU litigation, and thus there were no claims to settle. The court affirmed. ARBITRATION: Court reverses attorney’s fees awarded in arbitration confirmation. Gordon v. Nickerson, No. 03-1600071-CV (Tex. App.—Austin April 27, 2017, no pet. h.) (mem. op.). The parties signed a mediated settlement agreement to resolve their dispute about the use of a water well. The MSA contained an arbitration clause. Disputes arose post-settlement

that an arbitrator resolved. After a bench trial that confirmed the MSA and arbitration awards, the trial court awarded Nickerson attorney’s fees. The court of appeals concluded that the attorney’s fees award was an improper modification of the arbitration award. The court noted that if an arbitration award includes attorney’s fees, a trial court may not award additional attorney’s fees for enforcing or appealing the confirmation of the award unless the arbitration agreement provides otherwise. The arbitration agreement did not provide for additional fees. LAWYER The court AUSTIN modified and affirmed. AL AL

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THIRD COURT OF APPEALS CRIMINAL UPDATE

The cases summarized are from December 2016 and subsequent histories are current as of May 1, 2017.

OUTCRY WITNESSES: Trial court did not abuse its discretion in granting motion for new trial on ground that improper outcry witness had been designated. State v. Akteyarlee, No. 03-160299-CR (Tex. App.—Austin Dec. 7, 2016, pet. ref’d) (mem. op., not designated for publication). Following his conviction for the offense of “super” aggravated assault of a child, appellant filed a motion for new trial, which the trial court granted following a hearing. One of the grounds asserted in the motion, and the one that the appellate court found to be dispositive, was that the trial court had designated an improper outcry witness. The outcry-witness statute, article 38.072 of the Code of Criminal Procedure, creates a hearsay exception for out-of-court statements made by the child to the first adult, other than the defendant, to whom the child described the alleged offense. In this case, the designated outcry witness was Marisa DuBose, a forensic interviewer who had interviewed the child after the offense had been reported to the police. However, the record reflected that, before the child had been interviewed by DuBose, the child had described the offense in detail to her mother. Thus, according to the appellate court,

the mother was “the only outcry witness to whom article 38.072’s hearsay exception would apply,” and the trial court did not abuse its discretion in concluding that DuBose was an improper outcry witness. In contending otherwise, the State argued that the child had described a different instance of abuse to DuBose, thus making her a proper outcry witness for that event. However, the appellate court concluded that the record supported a finding by the trial court that the child’s statements to DuBose “related to the same alleged conduct as her statements to [her mother].” The appellate court also rejected the State’s argument that the mother was unavailable to testify, concluding that “the State has not demonstrated that it took all reasonable steps to ensure that [the mother] would be available to testify at trial.” The appellate court further concluded that the trial court did not abuse its discretion in finding that the error affected appellant’s substantial rights. The child had failed to testify at trial that appellant had sexually abused her, and the only evidence supporting the conviction was the testimony of the improper outcry witness. Accordingly, the appellate court concluded that the trial court did not abuse its discretion in granting appellant a new trial. RIGHT TO COUNSEL: Defendant knowingly and intelligently waived his right to counsel prior to trial.

Montgomery v. State, No. 0315-00203-CR (Tex. App.—Austin Dec. 7, 2016, pet. dism’d, untimely filed) (mem. op., not designated for publication). Appellant was convicted of the offense of evading arrest. At trial, appellant represented himself with the assistance of standby counsel, after signing a written waiver of his right to counsel. On appeal, appellant asserted that he was entitled to a new trial because there was nothing in the record to show that he had been properly admonished of the dangers of self-representation, as required by Faretta v. California, 422 U.S. 806 (1975). The appellate court disagreed. Although there was no record of a separate Faretta hearing in which the trial court had warned appellant of the dangers of self-representation, the court concluded that other portions of the record established that appellant had been properly admonished. Specifically, the record reflected that on the day of jury selection, the trial court reminded appellant that it had previously and “extensively” discussed the dangers of self-representation with appellant, explained to appellant that standby counsel was available only for consultation purposes, and instructed appellant that only he could question witnesses and conduct his defense. Additionally, the record reflected that appellant told the trial court at that time, “I want to represent myself” and acknowledged that he understood that “hybrid representation”

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.

would not be permitted and that appellant would be held to the “same standard” as a lawyer during trial. The appellate court also observed that even after appellant had filed his written waiver of counsel, the trial court appointed standby counsel to assist appellant and that standby counsel had “consulted with appellant throughout the trial and actively participated in portions of the trial, including questioning appellant while appellant was on the witness stand and urging objections and arguments during bench conferences.” Thus, on this record, the appellate court concluded that appellant had been properly admonished and that his decision to waive counsel “was made with his eyes wide open”LAWYER to the conseAUSTIN AL AL quences of that choice.

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FEDERAL CRIMINAL COURT NEWS

More On Immigration Prosecutions: Focus, Honduras BY DAVID PETERSON AND ELIZABETH COOK

few months ago, I wrote about the most-prosecuted federal charges: illegal entry and illegal reentry after deportation. Here, I will focus on criminal prosecutions of Honduran immigrants who are fleeing persecution and may be eligible for protection under United States asylum laws, and the international treaty obligations we have taken on. Many of the people prosecuted for illegal entry and illegal reentry are from Honduras. Entry and reentry are crimes under federal law, but as lawyers, we know that circumstances and context “in the world” are often more important to our clients and to judges. Thus, there are two important perspectives to consider when looking at prosecution of immigrants from Honduras: 1) understanding the

factors that are driving the current large-scale migration; and 2) understanding the international human rights law perspective. Large-scale Honduran migration is a relatively new phenomenon. More than half of Honduran immigrants living in the United States arrived here in 2000 or later; a quarter came between 2006 and 2012.1 They came for a number of reasons, including extreme poverty and severe violence affecting safety and security in their home country.2 The poverty in Honduras is extreme—second only to Haiti in Latin America.3 Others note that inequality, as distinct from poverty, is an urgent problem in Honduras—the poorest 20 percent of Hondurans earn just 2.02 percent of the income.4 But in recent years, violence has also been a high motivator for those leaving the country.

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enriches the debate and brings In 2013, Honduras won the back into focus the human beings always-unwanted award of having whose lives federal immigration the highest murder rate in the prosecution affects most: in this world.5 The same institute comcase, all too often poor immigrants piling the murder rate described fleeing violence in their home corruption, abuse, and an ineffec- AUSTIN LAWYER AL AL country. tive police and judiciary. The U.S. State Department acknowledges Footnotes: that Honduras is plagued by 1. National Statistics Institute, murder, extortion, kidnapping, Honduras. Executive Summary, torture, human trafficking, and 44th Permanent Multipurpose intimidation of journalists, womHousehold Survey, May 2013. en, and human rights defenders.6 2. Inter-American Commission on Drug interdiction efforts by the Human Rights. Situation of human rights in Honduras, Organization United States and Colombia of American States, December caused cartels to reroute their 2015. shipments through Honduras. By 3. The World Bank. Poverty headone estimate, almost 80 percent count ratio at national poverty of U.S.-bound cocaine now passes lines. Global Poverty Working Group, 2012. through Honduras.7 4. Rashida Manjoo. Report of the International human rights Special Rapporteur on violence organizations have expressed against women, its causes and serious concern with using Amerconsequences, United Nations, ican criminal law to prosecute March 2015. asylum seekers fleeing their 5. Observatory of Violence of the UNAH, Boletín Nacional No. 40, countries seeking safety. Human February 2016. Rights Watch and 170 other 6. Human Rights Watch. World civil rights, human rights, and report 2017: Honduras. faith-based organizations wrote 7. Rodolfo Acuna. U.S. Latino Issues former United States Attorney 2nd Edition, ABC-CLIO, LLC, General Loretta Lynch arguing January 2017 p. 289. that “criminal prosecution is the 8. Joint letter to Attorney General wrong response to immigration at Lynch calling for end to illegal entry/reentry prosecutions at our southern border.”8 In its 2013 the border, available at: www. report, “Turning Migrants Into hrw.org/news/2015/07/28/ Criminals,” Human Rights Watch joint-letter-attorney-generalnoted the explosion of criminal lynch-calling-end-illegal-entry/ reentry-prosecutions. prosecution of illegal entrants in 9. HRW, Turning Migrants Into the previous 10 years. As an inCriminals, at 7. Available at: ternational human rights question, www.hrw.org/sites/default/ the report urged—among many files/reports/us0513_ other reforms—for there to be ForUpload_2.pdf. guidelines in place recommending against prosecution of illegal entry and reentry when the migrant has close family ties or fears violence and persecution abroad.9 Lawyers often love to debate the interpretation of law; another useful debate is how and on David Peterson is an Assistant Federal Public Defender for the Western District whom criminal law is applied in of Texas. Any views expressed are his practice. Federal prosecutors have views only and not that of the Office of broad discretion as to where to the Federal Public Defender. Elizabeth focus their significant resources. Cook is an intern with the federal Talking about the reasons undefenders and will receive her Masters derlying mass migration, as well in Social Work in May of 2017. She will attend law school beginning in the Fall. as the human rights perspective,

ENTRE NOUS

The Slow, Tragic Death of the “Swearing Match” BY CLAUDE DUCLOUX

h, the good old days! Nothing provided more riveting theater than the exposition of a lawyer’s skill in catching a trial witness in a lie and carving the truth out of him like a dermatologist in a freckle factory. Perry Mason (my dad loved Perry Mason) had witnesses relieving their consciences of the truth at the top of their lungs, an inexorable result of Perry’s patient, spot-on deadly cross-examination: “All right! I did it! I had to do it! I couldn’t take it anymore!! (sob…sob…).” And we loved it. Nothing scratches our itch for justice better than catching a liar. Often, I’d sit back in the rattan chair in the “TV Room” (as we called it—the sanctuary of our beloved black and white Admiral TV), and even at age 11, tearfully think about how I might get that chance someday. The tears, of course, were from the circulating blue smoke of my dad’s Winston cigarettes, which undoubtedly stunted my growth. Such courtroom skill is what every lawyer aspires to! Trap a witness in a lie, and shove it down his throat in front of the jury. “Your witness, Mr. Burger!” Perry would snort to the gape-mouthed District Attorney. But now this courtroom drama is on the wane, especially in big civil trials. Such confrontation always depends on two conflicting versions of facts or conversations, and the individual credibility of the witnesses. Body language. Eye contact. Involuntary sweating. Yeah, you can see the bum is lying. The swearing match was often thrown to the jury, as no supporting documentation was ever available. Aye, there’s the rub. Now, our most privileged secrets are revealed by electronic snitches. To me, the most un-fun development in our civil trial toolkit is not the prevalence of trial appliances, animations, and 18

AUSTINLAWYER | JUNE 2017

other presentation tools, but the necessity to learn “E-Discovery.” Clearly, this is the castor oil of our profession. Yuck. But in this digital society, we are told there is always an email, text, or other digital message relevant to every factual dispute, as we create billions of digital footprints. They say that during 2016, 150 million emails were sent every minute. You see the problem, right? Lawyers are supposed to be able to cull through and find relevant missives as evidence. Double yuck. I hate it. Nevertheless, in my role as the beacon of modern practice, I think I owe it to you to give you a primer on the skillful use of Electronic Discovery. So, pay attention as I teach you the basics. Having skimmed at least three CLE articles, I will do my best. The steps you must take to competently pursue E-Discovery include: Preservation of Evidence. If your client has a passing thought that he might want to sue someone, you must bolt into action immediately. Using a serious font (I’m thinking Bodoni Bold), you send a letter to the oblivious wrongdoer, asking him to save every document which has ever come into his possession since birth. This should include books, letters, emails, Twitter feeds, Kleenex, hard drives, soft drives, drives in the country, high school yearbooks, warning tags on pillows, varsity letters, and, of course, ledgers. We can’t ever have enough ledgers. Financial ledgers, sales ledgers, and Heath Ledgers. See? The other side is already exhausted and wants to settle. The technical name for

this missive is a “spoliation” demand letter. If written properly, it spoliates the underwear of the recipient. Don’t pay to convert your ESI: Converting your ESI is a rookie mistake. Or so I’m told. I’m pretty sure that it has something to do with Episcopal Spanish Italics. I could be wrong. Choose your Platform: This is how you view your data. I think you’d want it pretty sturdy for all the boxes of stuff you’ll E-Discover. I’m advised by the terrific articles of Craig Ball (www.craigball.com) that three well-known search assistants are called Relativity, Concordance, and Summation. Curiously, those are also the names of his children. Coincidence? Be prepared to handle Metadata: Metadata is extremely important, but few lawyers really want to mess with it because it is very high in cholesterol. Wear gloves and goggles when handling metadata. Never try to quash metadata without sufficient metrics. You can buy metrics at TIFF’s Treats. Know your Keywords: Keyword searches trigger results, but, as Ball advises, you must tailor your keyword searches as carefully as possible. Avoid words which will trigger too many unrelated emails and messag-

es. Personally, I avoid using the words “lipsauce” and “merlot” in my searches. That one rule speeds things up immensely. Always ask for Native Files: Very simply, you want native files because they are the original electronic evidence. And never settle for alien files. They will be subject to deportation. Final Advice: Whenever you can, you should incorporate de-duplication. Enable rudimentary redaction. Especially for curse words. No one wants to see curse words. And use a computer later than Apple II. Of course, if you follow this simple, easy-to-understand checklist, you will certainly find the electronic evidence which supports truth and credibility. So, just between us, be careful what you ask for. As for me, I’ll miss the exhilaration of those Perry Mason moments. With lying so popular now, it seems a shame to let those skillsLAWYER go fallow. AUSTIN Keep the A faith. L AL

JUNE 2017 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN KATIE FILLMORE BUTLER SNOW

Year in Review

s my term ends, I’ve been reflecting on some of the things we’ve accomplished this year. AYLA has a long, impressive history and the leaders before me left big shoes to fill. My primary goal was to continue the great programming AYLA is known for. Other goals included having a greater social media presence, increasing communication with members, and incorporating member feedback and suggestions into AYLA’s programming. I think we succeeded and had one of the best years yet. The year began with the Annual Judicial Reception held in September. More than 175 lawyers and judges attended. The first-ever tailgate fundraiser was held at the UT vs. Baylor football game and raised $770. During early voting for the November

presidential election, AYLA held a nonpartisan young professionals mixer at City Hall with Mayor Steve Adler, thanks in part to a grant from TYLA. The purpose was to get young professionals out to an early voting location and promote networking across various professions. AYLA’s annual fall fundraiser, Bar and Grill, was outstanding as always. It had more than 200 attendees and raised $6,000. The calendar year ended with the annual Reindeer Games holiday event for low-income families and children. The event provided a holiday celebration, gifts, and gift cards for a holiday meal to 65 families and 172 children. In January, AYLA hosted the annual day of service on Martin Luther King Jr. Day. Fifty attorneys volunteered at three local organizations: Austin Children’s Shelter, BookSpring, and Austin Animal Center. Also in January, AYLA launched the fifth annual Leadership Academy in conjunction with the Austin Bar Association. In February, AYLA held a speed networking event to provide members with networking techniques and an opportunity to practice new skills. In March, AYLA

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presented its third annual Runway for Justice fundraiser fashion show, which was bigger than ever before. Twenty fantastic models drew a crowd of more than 200 people and raised approximately $12,000. The money was put to good use at the 10th Annual Women’s Resource Fair, which served 244 low-income women and 125 children in April. AYLA teamed up with UT Law School to host a Diversity Career Panel. Six AYLA member panelists spoke to the law students about how to find a job in Austin. More than 50 students attended, and the event was such a success the law school has requested the panel be held annually. Over the year, AYLA had four fantastic CLE programs: the Ethics CLE Bus traveled to Deep Eddy Vodka Distillery, a Wills and Estates Basics CLE, and two Federal Court CLEs featuring presentations by Judges Yeakel and Sparks. Monthly Docket Call Member Happy Hours were held and will continue through the summer.

I’m blown away by how much we’ve accomplished this year, thanks to the hard work and generosity of so many. I am grateful for the outstanding work of our officers and board members: President-Elect Austin Kaplan, Treasurer Jorge Padilla, Secretary Drew Harris, Past-President Chari Kelly, and Directors Sandy Bayne, Stacie Bennett, David King, Andrea Rose, Andy Cates, Franklin Hopkins, Rachael Jones, Erin Smith, and Tom Jacob. Thank you also to Travis Plummer for chairing our Leadership Academy and to Lauren Downey and Liz Branch for chairing our Women’s Resource Fair. Last but not least, thank you so much to Debbie Kelly, our outstanding executive director, who makes all of this possible. It has been an honor and privilege to lead this organization. Thank you! I’m turning the reins over to Austin Kaplan, who I know will make a fantastic president. I can’t wait to LAWYER see what the future AUSTIN holds for AYLA. AL AL

UPCOMING EVENTS FRIDAY, JUNE 9 AYLA Federal Court CLE lunch featuring Judge Sparks 11 a.m. to 1 p.m. Federal Court House, 501 W 5th St. Free 1 hour CLE and lunch for AYLA members RSVP to debbie@austinbar.org Lunch sponsored by Norton Rose Fulbright THURSDAY, JUNE 15 AYLA Docket Call – Member Happy Hour 5:30 to 7 p.m. Vince Young Steakhouse, 301 San Jacinto Blvd. Free for AYLA members Sponsored by Lexbe

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA’s 10th Annual Women’s Resource Fair

n Saturday, April 8, 2017, AYLA hosted its 10th annual Women’s Resource Fair at the Schmidt-Jones Family Life Center in Austin. For 10 years, the Women’s Resource Fair has brought together various members of the Austin community to provide much-needed free resources to women who are homeless, low-income, and survivors of domestic violence, along with their children. Throughout the day, attorney volunteers provided legal assistance in a variety of areas, including criminal law, family law, child custody, domestic violence, public benefit programs, immigration, consumer issues, and estate planning. Attendees in need of long-term assistance will be served through Texas RioGrande Legal Aid and Volunteer Legal Services of Central Texas. Medical service providers worked nonstop to provide a

multitude of medical services, including well-woman exams to approximately 60 women. They also administered 20 mammograms, 40 primary care visits, 130 vaccines, and comprehensive blood work for more than 40 women. Attendees had access to mental health services, debtor and credit counseling, and job skills and educational counseling. More than 45 social service providers provided information about services available in the Austin community. In addition, attendees were able to shop from a substantial clothing closet and receive new haircuts. For the women to take full advantage of the available services, the Fair provided childcare. The kids enjoyed a magic show, yoga, balloon animals, and more. Special thanks to Liz Branch and Lauren Downey, the Women’s Resource Fair Committee co-chairs; Mishell Kneeland, the medical chair; and the hundreds

of volunteers who contributed. Also, a heartfelt thanks to the numerous, generous sponsors who donated their time, money, and facilities toAUSTIN ensure aLAWYER positive experience for all attending. AL AL BENEFACTOR $5000 + CPL Laboratories Whole Foods

PLATINUM $1000 + Civil Litigation Section of the Austin Bar Association Daryl Flood Relocation and Logistics Graves Dougherty Hearon & Moody Women Partners in Health

GOLD $750+ Constangy, Brooks, Smith & Prophete Chuy’s Jackson Walker Madcaps Salon Marquee Rents Serrano’s

SILVER $500+ Dirty Work Services Freebirds World Burrito KIND

Lawyer Referral Service of Central Texas Matt’s El Rancho Watts Guerra

BRONZE $250+ Foodheads Café & Catering Google Hanna & Plaut Jo’s Hot Coffee – Good Food Mitscoots Taco Deli TCWLA

SPECIAL THANKS TO BB Imaging CenTex OB/ GYN CommUnityCare First United Methodist Church HOPES Thrift Store Kendra Scott Paul Mitchell The School Austin South Austin Medical Clinic Texas Oil and Gas Association Texas Rio Grande Legal Aid Texas Trial Lawyers Association Travis County Constable. Pct. 5 Travis County Medical Society Volunteers Health Clinic Volunteer Legal Services of Central Texas

JUNE 2017 | AUSTINLAWYER

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Expert’s Corner—Preparing Experts for Trial BY JARED JORDAN AND TRAVIS CASNER

e have seen the good, the bad, and the ugly in expert testimony over the last year, ranging from well-executed direct testimony involving interactive demonstratives to unprepared and arrogant experts who fail to connect with the jury. Whether you are working with a damages or technical expert, the dos and don’ts below will serve you well when preparing experts for trial. We value your help! Do… help your experts tell the story. Experts are often tasked with explaining complex issues and analyses and walk a fine line between demonstrating the required knowledge, experience, and command of the subject matter, and putting the jury into a zombie trance. Boiling down what could be gigabytes of data, pages and pages of written work product, and hours of deposition testimony to simple, digestible bites of information that are consistent with trial themes is paramount. Do… ensure your experts connect with the jury. Help your expert by making the direct examination conversational in nature rather than a question-and-answer session you would experience in a formal interview process. Also encourage your experts to address the jury and use terminology the jury can understand. Jurors will connect with your expert as a result. Do… say it with pictures… especially on the key points. Charts and graphs are better than data tables and financial summaries but anything is better than nothing. Encourage your experts to utilize demonstratives. Let the jury not only hear, but also see, the critical takeaways. Do… practice, practice, practice. Ensure your experts are ready for their direct examination by rehearsing in person even the most basic questions including those focused on the expert’s background and

HSSK, LLC provides valuation, dispute advisory NS forensics and financial advisory services to attorneys and their clients including companies and individuals. Mr. Jordan, jjordan@hssk.com, and Mr. Casner, tcasner@hssk.com, can be reached at the firm’s Austin office at 512.355.1120. For more information visit hssk.com.

scope of work. These can be taken for granted and are often some of the first expert testimony the jury hears. First impressions can be lasting. Don’t… let your experts be arrogant—confident, yes—but not arrogant. While the analysis and opinions are important, the presentation and delivery is as important, and in some cases even more important. Not many things put off a jury more than an arrogant expert. Don’t… let your expert be blindsided. This covers many things from pre-trial rulings to new or different testimony and evidence. Often times experts are relying upon documents, fact witnesses, and other experts to form the basis for their assumptions and ultimately, their opinions. Don’t let your expert find out on the stand that one of their assumptions is no longer LAWYER valid or accurate. That can be a credibility killer in the AUSTIN eyes of theAjury. L AL

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