austinbar.org JUNE 2020 | VOLUME 29, NUMBER 5
What Do You Get When Bench Bar Meets a Global Pandemic?
Couch Bar 2020
O
ne of the Austin Bar Association’s longtime annual events is its Bench Bar Conference, a day-long CLE program with opportunities for interaction between lawyers and judges. Due to COVID-19 restrictions, the traditional Bench Bar was tentatively rescheduled for Aug. 28, 2020 at the Austin Country Club. However, because we all miss interactions with our Austin Bar family, Austin Bar Treasurer Amanda Arriaga and board member Justice Chari Kelly hosted what will hopefully be a once-ina-lifetime event: Couch Bar. The successful virtual event with new and innovative programming provided by Austin Bar leaders was held on May 1, 2020—the date originally planned for Bench Bar. The Austin Bar’s Zoom account allows for a maximum of 500 participants. With 450
groups of attendees. Next, Kim Miers of Littler Mendelson gave a presentation about compliance, challenges, and strategies for addressing COVID-19 in the workplace. Kelley Dwyer, chair of the Austin Bar’s Animal Law Section, spoke about the importance of animal law. Dwyer invited all attendees to have their pet(s) join them on screen and share their tales (tails) of rescue and adoption. Even for those without pets, this was a highlight of the event! Members of the Entertainment Law Section, including Rachel Luna (Luna Law); Buck McKinney (McKinney Firm); Amy E. Mitchell (Amy E. Mitchell PLLC); Gwendolyn Seale (Mike Tolleson and Associates); and Alyce Zawacki (Alyce Zawacki Law), participated in a panel discussion about entertainment industry disputes happening due to COVID-19. During the Couch Bar lunch
Thank you to the Couch Bar presenters, to the members of the judiciary who participated in coffee and cocktails, and to those who attended. registered and more than 400 in attendance, the account was utilized to the fullest. Some of the 400 stayed for the whole day, while others came and went as their schedules allowed. Couch Bar began at 8:30 a.m. with “Coffee with the Judiciary.” Close to 20 judges were split into seven breakout rooms to share stories and coffee with small
break, a Law Day CLE sponsored by the Texas metro bars (Austin, Dallas, Houston, San Antonio, and Tarrant County bar associations) was hosted by the San Antonio Bar. “The Cure for Divisiveness: Mindfulness and the Pursuit of Happiness in the Era of COVID-19” was presented virtually by Dallas lawyer Lisa Blue, 2020 president of the
National Trial Lawyers Association. The Couch Bar afternoon session began with a panel consisting of UT School of Law Professor Tracy W. McCormack, Hon. Lora Livingston, Karl Bayer and Sherrie Wirth of The Exhibit Co. The panel discussed how to continue a courtroom practice from your living room. Then, Austin Bar Foundation Chair Adam Schramek provided an overview of the new “Open Texas” guidelines as well as two important legal doctrines—force majeure and material adverse effect clauses—about which many clients are asking as a result of COVID-19. Melissa Lorber, Chair of the Austin Bar Civil Appellate Section, moderated a discussion with Third Court of Appeals Chief Justice Jeff Rose and Supreme Court Clerk Blake Hawthorne on how the appellate courts and the Supreme Court are handling
their business during COVID-19. The attendees were treated to a live session of the weekly podcast, “The National Security Law Podcast,” hosted by Professors Bobby Chesney and Steve Vladeck from the UT School of Law. Marking the transition from CLE to happy hour was the world premiere of a Bar & Grill music video, “Part of the World.” If you haven’t had a chance to see it yet, click here. It will make you smile. Finally, Couch Bar ended with “Cocktails and Conversation.” Attendees received demonstrations from guest mixologists, including Justices Melissa Goodwin and Chari Kelly, and Judges Jan Soifer, Maya Guerra Gamble, and Dustin Howell. The judges kindly shared their recipes, found on page 7. A big thank you to the Couch Bar presenters, to the members of the judiciary who participated continued on page 7
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CONTENTS
AUSTINLAWYER JUNE 2020 | VOLUME 29, NUMBER 5 AL A L INSIDE FEATURED ARTICLES
DEPARTMENTS
1
6
President’s Column
8
Briefs
What Do You Get When Bench Bar Meets a Global Pandemic? Couch Bar 2020
10 Be Well 11 State Bar Board of Directors’
Corner
13 Opening Statement 15 Third Court of Appeals
Civil Update
16 Third Court of Appeals
Criminal Update
17 Federal Civil Court Update 12 State Law Library and Harris County Law Library
Launch Partnership to Expand Digital Services
18 Federal Criminal Court News 20 AYLA 22 Entre Nous 24 Practice Pointers
CONNECTIONS ONLINE austinbar.org EMAIL nancy@austinbar.org MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar STREAM @AustinBarAssociation FOLLOW instagram.com/theaustinbar
ONLINE
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READ ONLINE. Due to the COVID-19 pandemic, the May and June 2020 issues of Austin Lawyer are available on Issuu in digital format only. Both print and digital versions will be available beginning with the combined July/August issue.
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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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AUSTIN YOUNG LAWYERS ASSOCIATION
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PRESIDENT’S COLUMN D. TODD SMITH, SMITH LAW GROUP
A Different Kind of Bar Year With any luck, by the time the next Austin Lawyer is published, we will officially call Hilgers House home.
A
ustin Bar Association presidents often use their last column of the bar year to recap their presidency and all the great things the Austin Bar has accomplished since they took office. I could follow that formula, but that wouldn’t leave space for the list of things I really want to highlight, all of which involve a view to the future. HILGERS HOUSE The year began with a sense of excitement about our new home, Hilgers House. We celebrated a successful capital campaign, which positioned us to complete some necessary improvements to the property in a financially responsible way. Although we were able to use the house for events, we looked forward to completing our transition into using the space full time. Obtaining the necessary permits and approvals after rezoning proved more challenging than we could have imagined. Every time we thought we were getting close, the goal line would move. On March 16, we checked off the last requirement when the City of Austin issued our certificate of occupancy. By then, however, the COVID-19 pandemic had taken hold, and moving became impossible. It was clear we’d have to wait a while longer. As I write this column, some COVID-19 restrictions have been lifted, and the move is now scheduled for the first week of June. 6
AUSTINLAWYER | JUNE 2020
LAWYER WELL-BEING COMMITTEE This new committee hit the ground running by co-sponsoring a Sober Tailgate with the Texas Lawyers Assistance Program and has offered regular programming throughout the year. Committee events featured presentations from Erica Grigg, Amber Anderson Mostyn, Nik Sallie, and Sanieh Morgan. The committee also sponsored a Veloway bike ride, after which Claude Ducloux gave one of his famous ethics CLE talks. The committee’s work also included a regular “Be Well” column in Austin Lawyer, kicked off by co-chair Danielle Ahlrich. Topics included compassion fatigue, self-care as an ethical responsibility, dealing with depression, judicial mental health, and practices for increasing the quality of one’s professional life. Eileen Lawrence wrote an especially powerful piece about depression and suicide. Openness and support for lawyer well-being has taken root in our association’s culture. With the uncertainty we all face going forward, well-being in our profession is more important than ever. COVID-19 RESPONSE We made sure our staff was set up to work remotely before remote work became mandatory. Our business has carried on successfully as a result. We created a COVID-19 updates page on our website shortly after news about the pandemic broke. New information—including links to the latest emergency court orders—is added to the page regularly. The page also
May we all make the most of the opportunities we’ve been given to better ourselves, enhance our profession, and fulfill our role of assisting those in need. connects lawyers with pro bono 2011 Bastrop fires. Among other opportunities, contains links things, we quickly mobilized a helpful to law practices, provides response team and regularly sent well-being resources, and lists volunteer attorneys to meet with COVID-19-related CLE programs local residents in a clinic-like and webinars. CLICK HERE to setting. The biggest difference view the page. between the two crises is that the We have successfully adopted pandemic has no ground zero. Zoom videoconferencing as a We can’t meet people where they way to stay connected and bring are and offer pro bono services programming to our members. right then and there. But we A great team effort has resulted can prepare ourselves for the in expanded CLE offerings being opportunities and challenges that made available for free to memlie ahead. bers and nonmembers alike. This has been a different kind We can expect an increased of bar year. It started like many need for pro bono services relatbefore it, but it’s ending like ing to domestic violence, foreno other. May we all make the closure, landlord-tenant issues, most of the opportunities we’ve estate planning, and bankruptcy, been given to better ourselves, among other areas. Special CLE enhance our profession, and programs are focusing on these fulfill our role of assisting those issues so lawyers are better prein need. And may we rise to pared to address them when the AUSTIN meet the challenges the future LAWYER AL AL world starts to open and the need brings. becomes more pronounced. I’m reminded of how the Austin Bar responded to the
Couch Bar 2020 a Success continued from cover
in coffee and cocktails, and to those who attended. Several of the Couch Bar CLE sessions were recorded with their presenters’ permission and can be viewed, along with a library of other CLE provided on topics pertaining to COVID-19, on the COVID-19 Resources page at austinbar.org. As a service to the community, this library is free and available to all, regardless of Austin Bar membership. For Austin Bar members wishing to receive CLE credit, the CLE videos related to COVID-19 are also found in the Austin Bar’s Online CLE Library, along
For Austin Bar members, the CLE videos related to COVID-19 can be found in the Austin Bar’s Online CLE Library. with more than 80 additional hours of free CLE. Austin Bar members should use the password ABarCLE2020 to view this library,LAWYER which is available to AUSTIN L AL members A only.
Can I get you something
from the Bar? Justice Goodwin’s Gin & Tonic 1 part gin 3 parts tonic water Splash of grapefruit juice Slice of jalapeño Twist of lime
Add a slice or two of jalapeño over ice. Pour one part gin and three parts tonic water over the ice and jalapeño. Add a splash of grapefruit juice and top it off with a twist of lime. Stir and enjoy!
Justice Kelly’s “I Wish I Were in Manhattan” Manhattan 2 ounces rye whiskey 1 ounce sweet vermouth (Antica Formula) 2 dashes Angostura bitters 1 brandied Amarena cherry
Fill a coupe or martini glass with ice and water to chill your glass and set aside. Pour the whiskey, sweet vermouth, and bitters into a mixing glass filled with ice. Stir until outside of shaker is very cold to touch. Empty the water from your chilled glass and place the Amarena cherry in the glass. Strain the contents of the shaker over cherry and serve immediately.
Judge Guerra Gamble’s Moscow Mule 2 ounces Tito’s vodka 1/2 ounce (1 tbsp) fresh-squeezed lime juice, plus a wedge to decorate 1/2 cup spiciest ginger beer Mint leaves Lots of ice
Put the ice in your glass first, then the remaining ingredients in order. Stir and enjoy!
Judge Howell’s Piña Colada 1 and 1/2 ounces light rum 2 ounces pineapple juice 2 ounces coconut milk
Combine ingredients with ice in shaker and shake well. Strain into a glass with fresh ice and garnish with a maraschino cherry and pineapple wedge. Or, blend for a frozen drink. For a lighter version, combine equal parts rum and pineapple juice in glass with ice and top with coconut-flavored La Croix (aka, a piña Croix-lada). Best served in a hurricane glass while wearing a Hawaiian shirt.
Judge Soifer’s Dirty Martini 2 ounces chilled vodka Dash of dry vermouth 1/4–1/2 ounce olive juice (to taste) Garnish: 1 or 3 olives
In a mixing glass filled with ice, pour the vodka, dry vermouth, and olive juice and shake sharply. Strain into a chilled martini glass with olives.
CLOCKWISE FROM TOP: A screenshot of Austin Bar members participating in a Couch Bar session. Judge Jan Soifer mixing a dirty martini. Judge Dustin Howell sharing his piña colada recipe. Justice Chari Kelly stirring up the perfect Manhattan.
JUNE 2020 | AUSTINLAWYER
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BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Chelsea Allen Karen Bennett Kristy Blurton Caitriana Corkill Jacob Dannen Katie Daolan-Galaviz Meghan Frkuska
TOP: Allen, Cofer, Connelly, Davis, Rowan, Scott BOTTOM: Ukani
Cristina Garcia-Chappell Samuel Garrison Alexandria Gonzalez Elizabeth Graham Susan Graham Meredythe Heaton Vincent Paladini Melissa Reyes Pooja Sethi Brandon Spaur Susan Sprouse Alfred Trudeau Katherine Wempe
NEW TO THE OFFICE
Bollier Ciccone announces attorneys Saira Ukani and Chelsea E. Allen have joined their growing family law practice as associates. Partners Rick Cofer, Jeffrey Connelly, and Barbara Rowan have joined together to start Cofer & Connelly, a boutique law practice focused on criminal defense, family law, and personal injury. Cofer, Connelly, and Rowan together
have tried more than 300 cases to a judge and jury. Derry W. Swanger, formerly a partner at Giordani Swanger Ripp, and C. Lane Prickett, principal of Lane Prickett & Associates, are partners in the newly formed Swanger Prickett, 505-B West Lynn St., Austin, TX 78703. Robert A. Clark is an associate and Marty Vollers Swanger is of counsel. MOVING ON UP
Slack Davis Sanger has promoted John R. Davis to partner. Based in the Austin office, Davis leads the firm’s class action and whistleblower litigation practice areas, with a particular emphasis on consumer fraud, healthcare fraud, antitrust, environmental
and insurance matters. Davis is the youngest attorney to be elected partner in the firm’s 27year history. AWARDS
Dickinson Wright announced that Mark Scott has been listed as a “2020 IP Star” by Managing Intellectual Property. The “2020 IP Stars” is the most comprehensive and authoritative guide to leading IP firms and lawyers. Managing Intellectual Property’s researchers in London, New York, and Hong Kong collected market information, analyzed it, and ranked firms in tiers, based on the feedback received from thousands of practitioners.
Ken Davison Greg Bourgeois Eric Galton David Moore Kim Kovach Fred Hawkins Ben Cunningham Lynn Rubinett Lucious Bunton
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AUSTINLAWYER | JUNE 2020
BE WELL
Compassion Fatigue Among Lawyers BY DIANA REINHART, LMFT, JD in the legal industry—is different. Burnout refers to the exhaustion that results from workplace conditions like too many tasks and not enough resources. Compassion fatigue deals with an attorney’s response to clients’ stories and experiences.
Diana Reinhart, LMFT, JD, is a therapist in private practice in Austin. Learn more about her at embarkcounselingcenter.com.
A
few months ago, Pam noticed she stopped sleeping well. A busy estate planning attorney, she was working extra hard with a high caseload. But what was keeping her up at night was something else, something more specific. She couldn’t get a particular case out of her head—one involving a young mother who died in a gruesome car accident, leaving her husband and two children behind. Pam thought of the husband’s face at night. She wondered whether it could happen to her family. When she went to work in the mornings, more clients shared sad stories, and she left the office feeling drained. Pam was struggling with compassion fatigue, the profound emotional and physical exhaustion that helping professionals and caregivers can develop. Over time, she stopped enjoying her job and dreaded going to work. Compassion fatigue might sound like a mushy term reserved for nurses, social workers, and priests, but attorneys suffer from it as well. It is most common in practice areas where clients routinely share their pain, fear, and suffering. Burnout—a more familiar term 10
AUSTINLAWYER | JUNE 2020
WHAT ARE THE SIGNS OF COMPASSION FATIGUE? The symptoms of compassion fatigue fall into three categories: emotional, cognitive, and physical. Emotional symptoms. These symptoms include fear and anxiety, feeling overwhelmed and depleted, inexplicable guilt and shame, self-doubt, powerlessness, numbness, and irritability and anger. Cognitive symptoms. Our brains function differently because anxiety and fatigue compromise our higher-order thinking skills. Cognitive markers include difficulty concentrating, confusion, preoccupation with external stressors that cannot be controlled, rumination on client stories and problems, and loss of a sense of direction or purpose. Physical symptoms. Physical symptoms result from the release of stress hormones. These can include changes in breathing and heart rate, difficulty falling or staying asleep, problems with appetite or digestion, headaches, decreased libido, chronic pain, and immune problems. Certain things can make an attorney more susceptible, too. These include being highly conscientious and self-giving, perfectionism, low social support, high personal stress, and not prioritizing self-care. Many attorneys lament that some of these qualities—such as conscientiousness—are exactly what they believe make them good lawyers in the first place. WHAT CAN LAWYERS DO? Here are some suggestions for prevention and treatment:
Cultivate a life outside work. Having a healthy social network outside of the office is important, and also hobbies that are not work-related. These things give the overworked parts of your brain a rest and broaden your life. Accept and turn toward feelings. Don’t stuff your feelings down. Notice the anxiety and emotions and ask yourself why they are there, and what they are trying to tell you. Talk about it with a friend or mental health professional. Ensure that your expectations are reasonable. You can help your client, but you cannot save your client. You cannot take away all of your client’s pain. Check in with what you are expecting of yourself. Is it reasonable? Take time away that involves a change of scenery. Changing scenery forces other parts of your brain online, particularly if you combine it with exposure to nature, creativity, other people, or sports. Set boundaries. Take a look at your caseload. Is it too much? Are there things you could delegate or resources you could
take advantage of? Search for the places where you can set some limits. Tap into love. Connect with your partner, kids, other loved ones, and pets. Do something with them that feels positive. When we tap into our hearts, our nervous systems tend to relax and we feel less anxious. Create a workplace culture of collaboration. Promote collaboration rather than a work culture of “lone rangers.” There is less of a risk of compassion fatigue when attorneys feel they can debrief with and feel supported by their colleagues. Don’t forget the self-care. Self-care—such as exercise, a regular sleep schedule, and self-soothing activities such as deep breathing—helps. Consider scheduling activities with a friend and putting them on your calendar to keep you on track. If you need someone to talk with now, call the Texas Lawyers’ Assistance Program (TLAP) at 1.800.343.TLAP. The service is confidential and can connect you with mental health professionals AUSTIN LAWYER AL AL and other resources.
STATE BAR BOARD OF DIRECTORS’ CORNER
Update on Second Quarterly Meeting of 2020 BY LESLIE DIPPEL, ADAM SCHRAMEK, AND AMY WELBORN
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the board for 2020-21. Ginn is a trial lawyer from McKinney. He is an asset to the board and will be a strong and caring leader.
you informed of activities of the State Bar of Texas. In April, we held our quarterly board meeting remotely via Zoom, certainly a first for the State Bar. We conducted important business while modeling social distancing. The board also held its firstever remote election for the position of chair of the board. Charlie Ginn was elected as the chair of
The board heard from Justice Debra Lehrmann about the Texas Supreme Court’s response to COVID-19. CLICK HERE to visit the Supreme Court’s website for a collection of all of the orders the Court has entered since the start of the pandemic. Also, a portal is open and available on the State Bar’s website for an attorney to designate an attor-
our representatives on the State Bar Board of Directors think it is important to keep
There are many benefits provided to lawyers in response to the pandemic. New benefits are being considered, including discounted Zoom memberships. ney custodian to assist in winding down the attorney’s practice when the attorney is no longer able to practice and has clients with pending matters. CLICK HERE for detailed information. Finally, there are many benefits provided to lawyers in response to the pandemic. New benefits are being considered,
including discounted Zoom memberships. CLICK HERE to find information on the many member benefits offered on the State Bar’s website Feel free to contact any of your State Bar directors with questions about the board meeting or any other StateLAWYER Bar issue. We are AUSTIN L AL here to serveAyou.
NOW AVAILABLE BY VIDEO CONFERENCE
Many choose TLIE over the competition. Including the State Bar. #StateBarPreferred
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(512) 480-9074
JUNE 2020 | AUSTINLAWYER
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State Law Library and Harris County Law Library Launch Partnership to Expand Digital Services
T
he Texas State Law Library and Harris County Law Library announced a new partnership to expand digital services for all Texans. Beginning on Law Day, May 1, 2020, law librarians from both institutions began working together to offer expanded chat services in English and Spanish. Anyone who needs assistance with legal research can contact a law librarian through either library’s website to access expansive collections of digital resources. “We are excited to expand access to legal information with our partners at the State Law Library,” Harris County Law Library Director Mariann Sears said. “Each library has unique resources to support self-represented litigants, attorneys, and the judiciary. Through this partnership, we can make more of those resources available to help ensure
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AUSTINLAWYER | JUNE 2020
continued access to justice as we stay home and work safe.” Following guidance from the Supreme Court of Texas and public health officials, both law libraries suspended in-person services in March and expanded virtual services to support remote work by attorneys, judges, and self-represented litigants. Expansion of real-time chat services will further assist the legal community to work remotely following the Supreme Court’s extension of its emergency order through June 1, 2020, allowing Texas courts to postpone hearings and encourage remote participation in proceedings. “This partnership is a great opportunity for the State Law Library to serve more Texans, especially in Harris County,” Texas State Law Library Assistant Director Amy Small said. “With a third of the Texas legal community and the state’s busiest courts, the Houston metro area has the most
potential users of the State Law Library’s expansive digital collections. Working with law librarians at the Harris County Law Library and drawing on their expertise will help us connect more Texans with needed legal resources.” CHAT REFERENCE SERVICES Law librarians at the Texas State Law Library and Harris County Law Library will offer real-time reference services in English and Spanish, Monday through Friday, from 1:30 p.m. to 4:30 p.m., beginning on Friday, May 1, 2020. Visit either library’s website to access the chat interface and to learn more about digital services. ABOUT THE TEXAS STATE LAW LIBRARY The Texas State Law Library is a public law library that serves the legal research needs of the Texas Supreme Court, the Court of Criminal Appeals, the Office of
the Attorney General, other state agencies and commissions, and the citizens of the state. Located in Austin, Texas, the State Law Library offers services and digital collections to all Texans through its website. For more information, call 512.463.1722. ABOUT THE HARRIS COUNTY LAW LIBRARY The Harris County Law Library opened in 1915 and has continued to serve Harris County’s legal information needs for more than a century. After joining the Office of Vince Ryan, Harris County Attorney, in 2011, the Law Library greatly expanded its technology offerings and services to the public. Today, the Law Library receives more than 60,000 visitors each year, 90% of whom are not lawyers. To learn more about services and digital collections, visit the Harris AUSTIN County Law Library LAWYER AL AL Virtual Reference Desk.
OPENING STATEMENT
Emotional Language in Briefs You Can’t Avoid It, But Try to Reduce It BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET
I
t’s common sense that overtly emotional language is ineffective in persuading judges. The experts say so: “Judges are innately skeptical about appeals to emotion.”1 “Do not use emotional rhetoric…”.2 It typically won’t “play well” to engage in “a blatant appeal to sympathy or other emotions…. Before judges, such an appeal should be avoided.”3 A recent research article supports that advice. The authors, three linguists and a lawyer, assert that judges “respond to briefs that are less emotional … because they convey more credibility.”4 The article, “The Role of Emotional Language in Briefs Before the U.S. Supreme Court,” was published in 2016. In it, the authors calculated the rates of “emotional language” in the briefs and “analyzed how each Supreme Court Justice voted in 1,677 orally argued cases decided during the Court’s 1984-2007 terms, … focus[ing] on cases that included only a single initial merits brief submitted by each party.”5 In calculating the rates, the authors relied on a list of 919 word and word stems that experts deem “emotional.” To ensure that the results weren’t driven by other variables, they also attempted to control for the existence of lower-court dissenting opinions, the briefs’ use of legal authority, the quality of the attorneys writing the briefs, the parties’ status and resources, the presence of amicus briefs, the potential for “ideological congruence” between one party and a justice, and more. The results aren’t surprising. The lower the rate of emotional language, the more likely the brief would get a justice’s vote: “For petitioners, using mini-
mal emotional language is associated with a 29 percent increase in their probability of capturing a justice’s vote. For respondents, … using minimal emotional language is associated with a 100% increase in their probability of winning a justice’s vote.”6 The authors don’t make strong causal claims, but the correlations offer significant support. Applying the wisdom learned from this article can be tricky, though, and it’s because of the 919 words and word stems that are deemed “emotional.” I’ll show some examples of the listed words and then offer some advice. Not every word in the list is overtly emotional. The following listed words are deemed “emotional” but are routine enough that they could easily appear in many persuasive legal documents: • active • advantage • alone • appreciate • assure On the other hand, some listed words carry obvious emotional impact and are the kind legal writers might reduce or avoid in persuasive writing: • agony • appalling • arrogant • awesome • awful Meanwhile, some words on the list have particular meanings within the law and could be difficult to avoid. Here at least five examples with a parenthetical filling out a common legal phrase: • abuse (of discretion) • accept (an offer) • adverse (party) • agree (to purchase) • award (damages)
In general, judges prefer writing that uses fewer emotional words. Replace or delete those that are the most obviously emotional but keep the routine and necessary legal terms. And these examples are only from the letter A. Get the picture? You can’t simply adopt the authors’ list and systematically exclude those 919 words. Besides, the authors themselves acknowledge that not all emotional language can or should be eliminated.7 So my advice is to exercise editorial judgment. When you edit your persuasive writing, you know the topic you’re addressing and the stakes; you probably also have a sense of the judge’s temperament. Given that—in general, judges prefer writing that uses fewer emotional words. Replace or delete those that are the most obviously emotional but keep theLAWYER routine and necessary AUSTIN AL AL legal terms.
Footnotes 1. Stephen V. Armstrong & Timothy P. Terrel, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 289 (3d ed. 2009). 2. Tessa L. Dysart, Hon. Leslie H. Southwick, & Hon. Ruggero J. Aldisert, Winning on Appeal 29 (3d ed. 2017). 3. Antonin Scalia & Brian A. Garner, Making Your Case: The Art of Persuading Judges 31 (2008). 4. Ryan C. Black, Matthew E.K. Hall, Ryan J. Owens, & Eve M. Ringsmuth, The Role of Emotional Language in Briefs before the U.S. Supreme Court, J. of Law and Courts 377, 384 (Fall 2016). 5. Id. 6. Id. at 378. 7. Id.
JUNE 2020 | AUSTINLAWYER
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THE LITIGATION, CO-COUNSEL TRIAL TEAM FOR SOLO AND SMALL FIRM PRACTITIONERS
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AUSTINLAWYER | JUNE 2020
THIRD COURT OF APPEALS CIVIL UPDATE
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The following are summaries of selected civil opinions issued by the Third Court of Appeals during April 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 6, 2020. MANDAMUS: Court grants relief in attorney disqualification challenge. In re Elusive Holdings, Inc., No. 03-19-00809-CV (Tex. App.—Austin Apr. 15, 2020, orig. proceeding) (mem. op.). Elusive sued White, its former COO, for breach of contract. White sought to dismiss Elusive’s attorney, Tom Murphy, on the ground that he represented Elusive as its general counsel. The trial court granted White’s motion to disqualify, despite White presenting no evidence at the hearing. According to the court of appeals, White had the burden to prove a prior attorney-client relationship with Murphy that involved facts so related to the present case to create a threat that privileged confidences will be divulged. White failed to establish any relevant confidential information that he had given to Murphy that might be related to the current lawsuit. Accordingly, the trial court abused its discretion. The court granted mandamus relief.
MANDAMUS: Court grants relief for invalid new-trial order. In re Cash, No. 03-20-00062-CV (Tex. App.—Austin Apr. 16, 2020, orig. proceeding) (mem. op.). Relators challenged the specificity of an order granting a new trial. The trial court’s order stated that the jury’s answers were against the great weight of the evidence and manifestly unjust. The court of appeals noted that appellate review of new-trial orders is limited to void orders or when a trial court erroneously concludes jury answers are irreconcilably in conflict. Thus, without mandamus review, Relator had no appellate review of the order. According to the court of appeals, new-trial orders must provide reasonably specific explanations, not boilerplate standards. The court held that the order lacked the requisite specificity and granted mandamus relief. Because the order failed to include any rationale, the court declined to review the merits of the motion for new trial. HEALTH CARE LIABILITY: Court reverses order denying motion to dismiss. Gentle Touch Dentistry v. Wolbrueck, No. 03-19-00524-CV (Tex. App.—Austin Apr. 17, 2020, no pet. h.) (mem. op.). Wolbrueck sued defendants for damages to her retainer that occurred during a teeth-cleaning procedure. Defendants denied the allegations
and asserted the claim was a health care liability claim. When Wolbrueck failed to provide an expert report, defendants sought dismissal. Wolbrueck did not respond to the motion. The trial court denied defendants’ motion to dismiss. The court of appeals noted that the TMLA creates a rebuttable presumption that a claim is a health care liability claim if it is against a health care provider and implicates the defendant’s conduct during patient treatment. Wolbrueck’s claim was based on a dental hygienist’s conduct during a cleaning. Thus, the claim is presumed to be a health care liability claim. Accordingly, the trial court erred in denying the motion to dismiss for failure to serve an expert report. The court reversed and dismissed. PREMISES LIABILITY: No duty to warn of conditions of which invitee is aware. Kennedy v. Wal-Mart Stores Texas, LLC, No. 03-19-00587-CV (Tex. App.—Austin Apr. 23, 2020, no pet. h.) (mem. op.). Kennedy sued Wal-Mart for damages when a wine bottle rolled off the carousel onto her foot. Kennedy contended that bagging the bottle on its side constituted an unreasonably dangerous condition. The trial court granted summary judgment for Wal-Mart. The court of appeals noted that a landowner’s duty to an invitee is
Laurie Ratliff, a former staff attorney with the Third Court of Appeals, is board certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.
to make safe or warn against concealed unreasonably dangerous conditions of which the landowner is aware, and the invitee is not. Defects that are obvious or known to an invitee are outside the duty to warn. Kennedy saw the bottle’s placement in the bag before she spun the carousel towards her. Thus, she was aware of the condition. The court also rejected Kennedy’s reliance on the “necessary exception. AUSTINuse” LAWYER AL AL The court affirmed.
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15
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 issues by the Third Court of Appeals during January 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 12, 2020. EXTRANEOUS-OFFENSE EVIDENCE – CRIME SPREE: Trial court did not abuse its discretion in admitting evidence of extraneous offenses. Clark v. State, No. 03-18-00727CR (Tex. App.—Austin Jan. 15, 2020, pet. ref’d) (mem. op., not designated for publication). Clark was charged with five counts of engaging in organized criminal ac-
tivity, based on a series of armed robberies and other offenses that were committed between Nov. 17 and Dec. 6, 2015. During trial, the district court admitted evidence relating to two extraneous offenses—a traffic stop that occurred on Dec. 9 and a robbery of a gas station committed on Nov. 30. During the traffic stop, evidence related to the robberies was seen in plain view inside the vehicle occupied by Clark and two other individuals. Thus, the State argued that evidence of the traffic stop was admissible to show how the three occupants became suspects in the robberies. Clark contended that the evidence was irrelevant, impermissible character evidence, and inadmissible as an exception under Rule 404(b) because the evidence was not background information necessary for the jury’s consideration. The appellate court disagreed with Clark. First, the court observed that the State presented evidence that the vehicle was stopped because the driver committed minor traffic offenses. The real reason for the stop, i.e., that the officers already suspected that the vehicle was involved in the robberies, was not mentioned to the jury. This diminished the prejudicial impact of the evidence. “Moreover, although the evidence pertaining to the traffic stop may not itself have been relevant to elements of the alleged offenses, the evidence did help to establish
how the police linked Clark and the occupants to the charged offenses.” Accordingly, the district court did not abuse its discretion in concluding that the evidence was admissible as background contextual evidence. Regarding the uncharged robbery, the State argued that this evidence was admissible to prove identity. Clark asserted that he did not make identity an issue during trial, but the appellate court disagreed, observing that Clark discussed identity in his opening statement and during his cross-examination of the State’s witnesses. Moreover, there were similarities and “common characteristics” between the charged robberies and the uncharged robbery. Thus, the trial court would not have abused its discretion in concluding that the uncharged robbery was admissible as evidence of Clark’s modus operandi. The court affirmed the judgements of conviction. HEARSAY – OUTCRYWITNESS TESTIMONY: Trial court abused its discretion in admitting testimony of multiple outcry witnesses for single act of abuse. Gibson v. State, No. 03-18-00655CR (Tex. App.—Austin Jan. 29, 2020, no pet.). Gibson was charged in a four-count indictment with the offenses of aggravated sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure, all arising
out of a single incident. During trial, the State argued that the child’s mother, another adult relative, and a forensic interviewer all qualified as outcry witnesses because the child made “partial outcries” to the mother and the adult relative and a “more complete outcry” to the forensic interviewer. The district court allowed all three individuals to testify as outcry witnesses, reasoning that the indictment contained four counts and that “each outcry witness alluded to different parts of the indictment.” On appeal, the appellate court held that allowing the multiple testimony was improper. The court explained that “[t]here may be only one outcry witness per event.” Here, the outcry witnesses all testified to the child’s statements concerning a single event. The State did not allege that the offense occurred on multiple dates or that Gibson had committed additional sexual offenses against the child on other occasions. Although the indictment contained four counts, each count was alleged in the alternative and concerned the same event. Thus, “only one outcry witness should have testified to the child’s statements.” However, the court could not conclude that Gibson was harmed by this error because the child testified to the same or similar statements made by the improper outcry witnesses and a copy of the recording of the child’s forensic interview was admitted into evidence without AUSTIN LAWYER AL AL objection.
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AUSTINLAWYER | JUNE 2020
STRICTLY CONFIDENTIAL Anji Maddox
Offices in Austin, Round Rock and Dallas
FEDERAL CIVIL COURT UPDATE
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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 May 11, 2020. FAIR LABOR STANDARDS ACT: Under Fair Labor Standards Act (“FLSA”), employee paid “daily” rate rather than “weekly” rate is not paid on a “salary basis.” Hewitt v. Helix Energy Sols. Grp., Inc., No. 19-20023, 2020 WL 1915124 (5th Cir. Apr. 20, 2020). Hewitt worked for Helix Energy on an offshore oil rig. Each job lasted around a month, and Helix paid Hewitt biweekly based on a set amount for each day he worked. Hewitt’s weekly pay, therefore, varied by the amount of days he worked in any given week. Hewitt worked more than forty hours a week and contended that he was entitled to overtime under the FLSA. Helix argued that Hewitt was not entitled to overtime pay under the FLSA because he was either an exempt “executive” or “highly compensated employee.” For either exemption to apply, the employer must pay the employee on a “salary basis.” See 29 C.F.R. § 541.602(a). Hewitt argued that because his pay was calculated on a daily, rather than weekly, rate, Helix did not pay him on a “salary basis.” Helix contended, however, that because Hewitt’s daily rate was greater than the weekly salary requirement under Labor Department regulations, he would receive more than the weekly salary requirement as long as he worked a single day in a week. Therefore, Helix argued that Hewitt was paid on a “salary basis.” The district court agreed with Helix and granted summary judgment in its favor. On appeal, the Fifth Circuit addressed the issue of whether an
employee paid on a daily rate can be paid on a “salary basis.” The court held that an employee who is paid a daily rate is not paid on a “salary basis” under 29 C.F.R. § 541.602(a).The relevant Labor Department regulation states that an employee is considered to be paid on a “salary basis” if the employee “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount.” 29 C.F.R. § 541.602(a). Based on this language, the court concluded that “[t]he salary basis test requires that an employee know the amount of his compensation for each weekly (or less frequent) pay period during which he works, before he works.” Hewitt’s compensation did not meet this test because Hewitt could not know his pay in any given week until after he worked. As a result, he did not receive a “predetermined amount” “on a weekly, or less frequent basis” and was not paid on a “salary basis.” The court reversed and remanded. REMOVAL: Forum-defendant rule does not preclude removal until forum defendant has been properly served under state law. Tex. Brine Co., L.L.C. v. Am. Arbitration Ass’n, Inc., 955 F.3d 482 (5th Cir. 2020). Texas Brine Company was involved in a lengthy arbitration conducted under the rules of the American Arbitration Association (“AAA”). Anthony DiLeo, Charles Minyard, and Denise Pilie were selected as arbitrators. DiLeo and Minyard failed to disclose potential conflicts of interest. Although the AAA denied Texas Brine’s motion to remove DiLeo and Minyard as arbitrators on this basis, it later removed Minyard from the arbitration panel based on an offensive comment he made about Texas Brine’s counsel. Texas Brine reurged the removal of DiLeo, and both DiLeo and Pilie resigned shortly after. On Texas Brine’s motion, a Louisiana state district court then vacated all the panel’s
David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.
rulings on contested issues. Texas Brine then sued AAA, DiLeo, and Minyard in Louisiana state court, alleging that they engaged in intentional and wrongful fraudulent conduct in connection with the arbitration proceedings. Texas Brine served AAA with the complaint before serving DiLeo and Minyard, both of whom are citizens of Louisiana. AAA promptly removed the case before either DiLeo and Minyard were served. Texas Brine moved to remand the case to state court, arguing that because DiLeo and Minyard are citizens of Louisiana, removal violated the forum-defendant rule, which precludes removal on diversity jurisdiction grounds if any defendant is a citizen of the forum State. The trial court denied Texas Brine’s motion to remand. In a matter of first impression, the Fifth Circuit affirmed the denial of Texas Brine’s motion to remand, holding that the removal statute does not bar so-called “snap removals,” which occur when a non-forum defendant removes a case when a not-yetserved defendant is a citizen of the forum state. The court noted that the removal statute provides that a case which is otherwise removable based on diversity of citizenship may not be removed
Sameer Hashmi is an associate at Scott Douglass McConnico who practices complex commercial litigation across Texas and around the country.
if “any of the parties in interest properly joined and served is a citizen of the [forum] State.” 28 U.S.C. § 1441(a) (emphases added). Under the statute’s plain language, then, an unserved home-state defendant does not preclude removal. Although Texas Brine accepted that the plain language of the statute permits snap removal, it nevertheless argued that such an interpretation leads to an absurd result and defeats Congress’s intent. The court disagreed, noting that “[i]n statutory interpretation, an absurdity is not mere oddity” but instead requires a result that “no reasonable person could intend.” Snap removal, the court concluded, was at least rational and, therefore does not meet the high bar of absurdity necessary to override the statute’s plain language. The court affirmedLAWYER the denial of the motion AUSTIN AL AL to remand.
JUNE 2020 | AUSTINLAWYER
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FEDERAL CRIMINAL COURT NEWS
I’d Like My “Flynn Discovery Packet,” Please 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
I
n a decision, widely derided in legal circles, to dismiss charges against former National Security Advisor Michael Flynn, the Justice Department may have handed a powerful tool for discovery to defense attorneys. Flynn pled guilty to a single count of lying to federal investigators regarding a telephone conversation Flynn had with a high-ranking member of the Russian government prior to Donald Trump taking office in January 2017. Despite the fact that the call was recorded by U.S.
intelligence agents, Flynn falsely asserted that he had not urged the Russians to hold off on any response to the Obama administration’s sanctions for interference in the 2016 presidential election.1 The Office of Special Counsel secured an indictment against Flynn for lying about the Russian contact, as well as for failing to disclose his lobbying ties with the government of Turkey. Flynn pled guilty. Flynn later changed attorneys and moved to withdraw his guilty plea, alleging that the prosecution team had not provided all relevant information. His new defense team filed a flurry of motions requesting internal documents that could be exculpatory or mitigating. After Special Counsel Robert Mueller ended his inquiry into interference in the 2016 presidential election, career prosecutors in the Department of Justice prosecuted the case against Flynn. They urged the trial court to reject Flynn’s request for documents and denied any misconduct— despite Flynn reaffirming his guilt in open court on more than one occasion.2 Judge Emmet G. Sullivan, in a motion to dismiss the prosecution based on alleged prosecutorial misconduct, found that communications between
two FBI agents concerning their notes of Flynn’s interview did not show misconduct and that “Flynn made multiple false statements.”3 In most cases, a request to withdrew a guilty plea would have ended here—a judge denies a motion to withdraw a guilty plea and sentences the defendant. But this was clearly not an ordinary case. On May 7, 2020, the Justice Department filed a motion to dismiss the case, stating that Flynn’s misstatements were not material, despite the grand jury having found otherwise. Notably, one of the lead career prosecutors on the Flynn case moved to withdraw from the case the same day the dismissal motion was filed.4 In its motion to dismiss, the Justice Department lawyers now argue that internal communications between agents prior to Flynn’s interview show that the initial national security investigation into his Russian contacts had ended. These records were provided to the defense by U.S. Attorney Jeff Jensen of St. Louis, who was specially appointed by Attorney General William Barr to “investigate the investigators” of the Russia probe. These materials were covered by various privileges, including investigative and attorney work-product, and would never be disclosed to a defendant
Leslie Breeland Realtor, JD, GRI, CLHMS SEED Property Group 512.826.8430 leslie@seedpropertygroup.com seedpropertygroup.com
in a normal case.5 The motion to dismiss posits that since there was no basis for an interview of Flynn, his false statements were not “material.” It is impossible to imagine a defense based on that argument working in front of a jury. One question for practitioners going forward is, shouldn’t the government always disclose its internal communications regarding investigations that result in prosecution? Because the government turned over privileged information for Flynn, shouldn’t my client be afforded the same? Perhaps requesting a “Flynn Packet” should be part of the standard discovery motion practice in federal courts going forward, at least under this AUSTIN LAWYER AL AL administration. Footnotes 1. https://www.lawfareblog.com/flynnredux-what-those-fbi-documentsreally-show. 2. Id. 3. United States v. Flynn, Cause No. 1-17-CR-00232-EGS (D.D.C. Dec. 19, 2019, mem. order). 4. U.S. Drops Michael Flynn, in Move Backed by Trump, NY Times, May 7, 2020. https://www.nytimes. com/2020/05/07/us/politics/ michael-flynn-case-dropped.html. 5. ‘Never Seen Anything Like This’: Experts Question Dropping of Flynn Prosecution, NY Times, May 7, 2020. https://www.nytimes. com/2020/05/07/us/politics/ michael-flynn-case.html.
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AUSTINLAWYER | JUNE 2020
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JUNE 2020 | AUSTINLAWYER
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AUSTIN YOUNG LAWYERS ASSOCIATION
AY LA PRESIDENT’S COLUMN SANDY BAYNE, BAYNE LAW
Together, We’ve Made it a Great Year
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s another bar year comes to a close, I want to express my utmost gratitude to our board of directors, staff (Debbie Kelly, I’m talking to you!) and all of our members for completing a successful year. I am in awe of the generosity, dedication, tenacity, and passion of our board members. We are so fortunate to have such a hard-working team, dedicated to the service of our community. We have had a lot of laughs, great Docket Calls, informative CLEs, inspiring board meetings, and impactful community service events. Undoubtedly, this year will be remembered for the global pandemic and the interruption it caused around the world. Despite the difficult challenges that closing down the world posed, many of our leaders have risen to the occasion. Most importantly, our community has, for the most part, performed in solidarity the asks and measures recommended by the experts to help mitigate the expanse of this disaster. In our effort to do our part in battling COVID-19, many of AYLA’s seminal events and our most successful fundraisers had to be postponed. However, thanks to the creativity of Austin Bar Treasurer Amanda Arriaga and Justice Chari Kelly, we were able to conceive and create 20
AUSTINLAWYER | JUNE 2020
“Couch Bar” with the Austin Bar Association. Surprisingly, we had our highest attendance ever, albeit online, with over 400 attorneys and judges attending. Our ability to quickly pivot and engage our members in such a novel and successful way demonstrates our resilience and resolve. Prior to the pandemic, AYLA was able to provide a tremendous amount of community service. Thanks to our generous sponsors and altruistic members, we spent hours volunteering this year at the following organizations: The Green Corn Project, Austin Pets Alive, BookSpring, The SAFE Alliance, Center for Child Protection, Kids in a (CLOCKWISE FROM TOP) AYLA Day of Service volunteers gathered to make birthday boxes for the Center for Child Protection. AYLA President Sandy Bayne and AYLA board member Johnathan Stone New Groove, Central Texas Food Bank, Coats at the Fresh Start Initiative: Juvenile Record Sealing Legal Clinic. Attorneys attending the Fresh Start Initiative: Juvenile Record Sealing Training CLE. for Kids, Community First Village, and the YMCA of East Austin. was provided by AYLA and while Hilgers House, we have not yet Our annual tailgate, chaired the children were being enterbeen able to move in due to the by Franklin Hopkins and his tained, their loved ones were able pandemic. However, I am hopeful dedicated committee, was more to select a gift for each child, and excited for many memories successful than ever, raising over while AYLA volunteers wrapped to come in our new home. $10,000. These funds were used the gifts in festive paper. I look forward to staying very to buy toys for over 200 children It is so delightful to witness involved with my AYLA family for our holiday program and to the excitement and gratitude of and to seeing our organization purchase birthday boxes for the the children and their parents at thrive. It has been nothing Center for Child Protection. this event. I must give an enorless than an honor to serve as At our holiday program, the mous thanks to our volunteers president this year. I look forward children participated in fun activand donors who are so loyal in to the year ahead and with our ities including face painting, holtheir support to AYLA and our incoming president, David King, iday crafts, a bounce house, and projects. We are eternally grateful inAUSTIN charge. ILAWYER know AYLA will be AL AL even a magic show performed by for your generosity. in great hands. Austin Bar Past-President Adam While we are thrilled to finally Schramek and his assistant, have the City of Austin’s approval Justice Chari Kelly. A “toy store” to move into our new home at
AUSTIN YOUNG LAWYERS ASSOCIATION
The Fresh Start Initiative Juvenile Record Sealing Training and Legal Clinic
T
he Fresh Start Initiative: Juvenile Record Sealing Training and Legal Clinic was a great success. More than 50 attorneys trained to seal both juvenile offense records and adult arrest records, and 300 people were assisted in a pro bono clinic held on Feb. 29, 2020 at the Mt. Zion Baptist Church. The Fresh Start Initiative was created to help former juvenile offenders seal their juvenile records and to train attorneys so they can offer this service in their practices and pro bono services independently of the clinic. AYLA’s partners in this project were the Travis County District
The Fresh Start Initiative was created to help former juvenile offenders seal their juvenile records and to train attorneys so they can offer this service. Clerk’s Office, Travis County Law Library, Juvenile Public Defender’s office, District Attorney’s office, Juvenile Probation
Board, Lawyer Referral Service of Central Texas, and Volunteer Legal Services of Central Texas. This project was made possible
by a grant from the Texas Young AUSTIN LAWYER AL AL Lawyers Association.
Virtual Coffee with the Judiciary
A
YLA’s remote “Coffee with the Judiciary” events have been a huge success. The conversations between lawyers and judges have been fantastic and the casual online setting has helped the world feel a little smaller and a little less scary. It is a tribute to our local judges that, in some respects, even in this era of social distancing, they have never been more accessible. AYLA is grateful to the members of the local judiciary for supporting young lawyers and advocating practicing law with the utmost congeniality and professionalism during this unprecedented time. Special thanks to Judges Tim Sulak, Eric Shepperd, and LAWYER Robert AUSTIN AL AL Pitman for their participation.
JUNE 2020 | AUSTINLAWYER
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ENTRE NOUS
DOOM, GLOOM, and ZOOM Lessons from the Shadows of COVID-19 BY CLAUDE DUCLOUX
M
ythology explains that the common English directive, “May you live in interesting times,” is actually a translation of a Chinese curse. We should, instead, be most happy with uninteresting times. Clearly true. And now you know why wine snobs relay this cryptic insult: “Hmm. This wine is…. ‘interesting.’” So, how was your last ten weeks? The question, of course, is rhetorical. It’s challenging at best for most of us to express the panoply of emotions that life under the pandemic has aroused. And I fully understand that everyone’s experience is unique, so generalities are useless. We know that those who had a family member suffer through this disease, or who themselves suffered massive financial loss, may continue to suffer grief and despair long after those of us more fortunate reach for the optimism of recovery. As I write this in late April, we are six weeks into our shelter-in-place/social distancing orders, and it looks like most of us understand that safety and liberty are not incompatible. Truly, safety is a “condition precedent” to future liberty, rather than an impediment. Unless of course, you are watching those numbskulls who want you to be the first on your block to “save the economy.” And I agree that having the wherewithal to actually stay at home is a wonderful privilege. Many cannot and they are, all too often, the heroes of this journey. As with most challenging situations, we learn unforgettable lessons, we make mistakes, we appreciate, we despair, we worry, and we find ways to stay mentally healthy. And if we’re 22
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lucky—we’re resilient. We handle it, and, if given the opportunity, we lead, we assist, and we grow. Our final opportunity to improve the world comes if we can pass the best lessons on to those who come after us in a way which makes sense, resonates, and if possible, entertains. So, here is my attempt to do just that. I love what I’ve done with the place! Most of us re-discovered we have wonderfully equipped, cozy, and secure places to live. Being home more often allows us to look around and say, “I’m a pretty lucky person.” Look out the window. Look at your neat stuff. Enjoy! I love my stuff (especially my piano). I have wonderful friends and neighbors. People will surprise
you in wonderful ways. One of our neighbors brought us a huge box of fresh vegetables. We are offering each other help and guidance to fix, resolve, or complete unfamiliar tasks. We go on walks—at safe distances, of course. We know we’ll tell these stories later, and it will make us smile. Fear also brings out the “mean and bossy” in others. Sadly, we meet the enemy everywhere. Often in line at HEB, when they confront you because you had two packages of cheese rather than one (true story). And they are strident in their jerkiness. While lambasting you in line for not having a COVID-19-compliant mask, they then spend ten minutes
writing a check. No, make that two checks (messed up the first), while we all suffer in line behind them. I call them the modern Pharisees: They’re better than you, and they want to make sure you know it. Take my wife—please! That, of course, is the most famous one-liner of the late Borscht-belt comedian Henny Youngman. But sheltering-in-place knows no gender. Wives and domestic partners have likewise discovered, to their chagrin, how unfortunate it is to spend too much time around their mates. My mother used to tease my father, “I married you for better or worse… but not for lunch.” Too much together-time may result in a boom for family lawyers.
Hey, that wasn’t so hard. Learning the new technology of Zoom and doing online meetings is fun, useful, and will forever change the options for how we meet. [But you can do it wrong. See how in my tips. You’re welcome.] While I certainly prefer to speak to a live audience whenever I can, the widespread ability to use Zoom, GoToWebinar, GoToMeeting, Freestone. and other platforms has provided me unending opportunities to speak to huge audiences. In one week in April, I had presentations in New York on Monday, Chicago on Tuesday, and nationwide on Wednesday, without even changing my underwear (that’s on Thursdays). We will not fully grasp the gravity and discover the truth of this incredible experience, nor its long-term effects, for many years. But we must, as a profession, continue to demand that our leaders move us forward and fully follow the principles of the rule of law. Giving us honest
direction and a safe and secure way forward is far more important than placing blame (we already know where it belongs) or fostering identity politics or divisive arguments. Most importantly, we, the guardians of the rule of law, must lead this nation to preserve those true liberties which we espouse for all. Preserve individual rights and provide access to health care, legal services, and the voting booth. Our magic law licenses mean we can help solve problems. We can make people’s lives better. Moving on means rejecting any and every attempt to demonize anyone—any race, culture, religion, and socio- economic group. All of us, every person in this nation, should ask, “What can I do to help?” How the legal profession acts right now may be the difference in whether this 250-year experiment in democracy survives. Without your help, it looks iffy. AUSTIN LAWYER AL AL Keep the faith.
CLAUDE’S SIX TIPS
TO RUIN YOUR ZOOM CONFERENCE POSITIONING
BACKGROUND
Make sure your face is far ABOVE the camera, so that your nostrils look like Italian train tunnels exiting the Alps.
Scout around for the darkest hallway in your home. Make sure a visible bathroom door is in constant use.
LIGHTING
ANIMAL ASSISTANCE
Always have a 150-watt ceiling fixture or fan behind you in the camera frame, so that your face will be darkened like a member of the Witness Protection Program.
Make sure your pets are on full display. If possible, show them meticulously washing their most intimate body parts. You’ll be a meme.
APPEARANCE Just roll out of bed wearing your favorite “I’m with Stupid” T-shirt. Nothing inspires professional confidence like food stains and eye boogers.
MUTING Make sure to never mute your microphone. We love hearing people gargle and spit.
JUNE 2020 | AUSTINLAWYER
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PRACTICE POINTERS
Work Smarter: How to Fully Utilize Your Smart Phone BY BONNIE C. FRAASE
Bonnie C. Fraase is a law clerk at the Texas Supreme Court. She is a graduate of Virginia Law (J.D., 2019) and Baylor University (B.A., 2015).
I
n the sixth grade, I wanted two things: A Franklin Covey planner and a cell phone. The planner would organize my daily life, from math quizzes to basketball practices and pizza parties. A cell phone would open the world of T-9 texting—a stunning advance beyond the landline phone call. These days, the planner and the cell phone are one and the same, and the cell phone has come a long way from T-9 texting. Today, with work-from-home measures in place, smart phone utilization is not only convenient, it is necessary. But many lawyers underutilize their phones. In the frantic dash to respond to partners’ emails, clients’ calls, and friends’ text messages, the smartphone’s functionality is reduced to basic communication. By taking a few minutes to manage her phone’s storage and settings, a lawyer can maximize her smart phone utilization. First, take a look at your phone storage. Oftentimes, we don’t notice our phone storage is at capacity until it is time to save a large file. Do not be caught 24
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in the lurch! Take a moment to audit your phone storage before it is a problem. On an iPhone, navigate to Settings/General/ iPhone Storage. Notice (1) how much storage is available and (2) where most of your storage is spent. Looking at the numbers, it may be difficult to assess the size of a single photo or message. Managing gigabytes is like baking a cake with measurements in grams and liters—the scale is not intuitive. To avoid confusion, focus on the proportional share of data storage attributed to different uses. Oftentimes, the lion’s share of your phone storage goes to apps, photos, and text message attachments. Consider: how many apps do you use daily? Weekly? Monthly? If you haven’t used an app this month, delete it. Then, review your large attachments. Save what you want and delete the rest. Like cleaning out a closet or a sock drawer, clearing out your phone storage can create a moment of clarity and catharsis. In deleting old photos and messages, you let go of unnecessary clutter and take hold of forgotten memories. All that, and you ensure you can download the critical discovery document when necessary! Second, organize apps and download new ones. With the newfound storage space, you have capacity to download new apps. Did you know that both Westlaw and Lexis have apps? Cell phones are a long way from slip copies, but both apps are user-friendly—though, admittedly, not as friendly as a law librarian! If you are a solo practitioner or small-firm practitioner seeking a timekeeper, consider Harvest. Harvest allows you to track billable hours on your phone or your computer, so your timekeeping is both convenient and consistent. Those looking to build a more
Like cleaning out a closet or a sock drawer, clearing out your phone storage can create a moment of clarity and catharsis. collaborative office culture may consider Slack. Slack allows you to communicate with coworkers outside of your inbox—preventing a three-hour chat from generating a 300-message email thread. You may also download companion apps for frequently used computer software like Microsoft Word or Dropbox. Third, manage your notifications. Now that you have the proper content on your phone, make the most of it. How often do you dismiss unwanted notifications from otherwise useful apps? (Think: receiving airline notifications when not traveling.) To manage such situations on an iPhone, navigate to Settings/ Notifications. Scroll through the apps and tap on the frequent-notification offenders. Turn the notifications completely off or customize their appearance to your liking. By eliminating unwanted notifications, you can more easily spot and reply
to important alerts. And, when you really need to complete a motion or brief, flick on “Do Not Disturb” mode and enjoy distraction-free focus without any notifications. Finally, don’t forget to recharge. The ultimate goal of optimizing phone usage is to reduce time spent on your phone. Constant connectivity is advantageous, but eventually your phone battery needs to charge and your mind needs a break, too. On the first day of my Texas Supreme Court clerkship, my judge whipped out a flip phone and sent a T-9 text, letting his family know when he would be home. Sometimes, the simplest message AUSTIN LAWYER AL AL is the most important.
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