Austin Lawyer, March 2016 by Austin Bar Association

AUSTINLAWYER AL AL

OFFICIAL PUBLICATION OF THE AUSTIN BAR ASSOCIATION

austinbar.org

MARCH 2016 | VOLUME 25, NUMBER 2

2016 Austin Bar Foundation Gala — Fire and Ice

ots of fire, a little ice, and the funky Motown sounds of The All Nights helped make the 2016 Austin Bar Foundation Gala especially memorable. With half of the Four Seasons Hotel ballroom decked out in fiery red and the other half in icy turquoise, more than 500 people attended this year’s event on Jan. 30, 2016. In its 13th year, the Foundation Gala is an annual tradition, but it never comes without a new twist. This year, the Austin Bar added a new award, the Joseph C. Parker Jr. Diversity Award, which went to Judge Lora J. Livingston. The new

Travis County, has done quite well. “I think Judge Livingston’s greatest asset is her compassion towards her fellow man,” said Tony Nelson, Assistant County Attorney with the Travis County Attorney’s office. “I can’t think of someone who demonstrates that more so in how they live and contribute to the community. She’s one of those judges who I look to as an example of what a judge should be.” Founding partner of Ausley, Algert, Robertson & Flores, Thomas L. Ausley received the 2nd annual Larry F. York Mentoring Award. Established in 2015, the award is given to a local lawyer or judge who

Blazing a trail of diversity in Austin’s legal community is what the inaugural diversity award is all about, and that’s something Judge Livingston, the first African-American woman to serve as a District Court judge in Travis County, has done quite well. award is named after Joseph C. Parker Jr., who served as the first African-American president of the Austin Bar from 1996-1997. Blazing a trail of diversity in Austin’s legal community is what the inaugural diversity award is all about, and that’s something Judge Livingston, the first African-American woman to serve as a District Court judge in

has practiced law at least ten years, while demonstrating generosity in mentoring younger members of the bar. In addition to the two newer awards, Judge Orlinda Naranjo received the 2016 David H. Walter Community Excellence Award for her continued service within the

continued on page 8

CLOCKWISE FROM TOP: (from left) Judge Orlinda Naranjo, Tom Ausley, Karen R. Johnson, Judge Eric Shepperd, David Sheppard, Judge Lora Livingston. Photo by Korey Howell Photography; Valinda Bolton and Judge Andy Hathcock; Judge Lora Livingston (left) with Susan and Claude Ducloux; Gala Committee Chair, Jodi Lazar; Jeff Clark and Judge Elisabeth Earle; (from left) Mike Golden, Christine Sahliyeh, Phil and Adam Loewy. Photos by Carol Smith.

CONTENTS

AUSTINLAWYER MARCH 2016 | VOLUME 25, NUMBER 2 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

CONNECTIONS

2016 Austin Bar Foundation Gala—Fire and Ice

Letters to the Editor

Texas Lawyer Assistance Program Announces Results of New Study

President’s Spotlight

ONLINE austinbar.org

Opening Statement

Nominations Now Accepted for 2016 Regina Rogoff and Professionalism Awards

3 Court of Appeals Update

Briefs

Law Day 2016: Miranda—More than Words

AYLA

“Reasonably Calculated” Doesn’t Work in Federal Court

Entre Nous

Welcome Congress Avenue Partners

Classifieds /Ad Index

ONLINE

NEWS & ANNOUNCEMENTS

EVENTS & MORE

TCWLA Honors Legal Trailblazers at Annual Pathfinders Luncheon

MAR 2

Lawyers for Literacy on Dr. Seuss Day

Read to local kids in celebration of literacy. Sign up at austinbar.org

Suicide Prevention Tips from TLAP and Free ABA Webinar, March 21 Suicide kills three times as many Americans as AIDS, and lawyers are at greater risk than the general population. Here’s how you can help.

Registration Open for Texas Student Loan Repayment Assistance Program March 25 is the deadline for eligible attorneys to apply for TAJF’s 12th annual Student Loan Repayment Assistance Program.

MAIL Nancy Gray Managing Editor Austin Bar Association 816 Congress Ave., Suite 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar

austinbar.org

Find out which local women attorneys TCWLA honored for blazing trails and leading inspiring careers.

EMAIL Nancy@austinbar.org

MAR 23 Members Only CLE View from the Federal Bench/Practice Pointers with Judge Lee Yeakel, US District Judge for Western District of Texas

FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar TEXT austinbar to 313131 for up-to-date news + info Message & data rates may apply.

MAR 29 Austin Bar & Minority

Bars CLE

Rising Up: How to Elevate Your Law Practice 8:30 a.m. – 1 p.m.

MARCH 2016 | AUSTINLAWYER

AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Judge Eric Shepperd ............. President Leslie Dippel .............................. President-Elect Amy Welborn ............................ Secretary Adam Schramek ....................... Treasurer Judge Elisabeth Earle ........... Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION Chari Kelly .................................. President Katie Fillmore ........................... President-Elect Jorge Padilla .............................. Secretary Austin Kaplan ............................ Treasurer Amanda Arriaga ....................... Immediate Past President

EXECUTIVE OFFICES 816 Congress Ave., Suite 700 Austin, TX 78701-2665 E-mail: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward........................... Executive Director Nancy Gray ................................ Managing Editor Debbie Kelly .............................. Director of AYLA Kennon Wooten ...................... Editor-in-Chief 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.

PUBLISHED BY Monarch Media & Consulting, Inc. Ph: 512.680.3989 | Fax: 866.328.7199 monarchmediainc.com Advertising inquiries call 512.293.9277.

AUSTINLAWYER | MARCH 2016

LETTERS TO THE EDITOR

An Open Letter to the Austin Bar Association

ON BEHALF OF ALL THE CIVIL COURTS, all the hard working judges and staff members who work in the Heman Marion Sweatt Courthouse, and all the children and adults whose business is conducted in this 80 plus year old building, I express my deepest gratitude to the Austin Bar Association for its unwavering support of the efforts to build a new civil and

family courthouse in Travis County. THANK YOU! Thank you for your hard work, for your contributions of time, talent and treasure and for your dedication to the rule of law. Our first challenge was to educate policy makers and the public about the dire need for a new courthouse. When some folks questioned the need for a new building, you made the case simply and clearly. Many of you told your stories and shared your experiences and you turned out to be great expert witnesses. Because of your efforts, we have overcome that obstacle and rarely does anyone question the need for a new courthouse. You know all too well why we need a new courthouse and your efforts to raise awareness of this great need are sincerely appreciated. Our next challenge was the bond election. While we were ultimately unsuccessful, we could not have garnered as much support as we did without your outstanding effort. It was a very tight race, and we are

I express my deepest gratitude to the Austin Bar Association for its unwavering support of the efforts to build a new civil and family courthouse in Travis County. except to “convictions of honor confident that future efforts will and good sense.” So with your help succeed. Plans are underway to and determination, we will see a explore new options, and our efforts new courthouse in Travis County to bring this community a dignified Courthouse because honor and court facility will continue. We look good sense demand it! Thank you forward to your continued support AUSTIN LAWYER again. as we work together to achieve the AL AL goal of building the courthouse the citizens of Travis County need and Sincerely, deserve. Lora J. Livingston I was recently reminded of Local Administrative Judge remarks made by Winston Churchill Travis County Courts in the face of certain challenges: “You cannot tell from appearances how things will go. Sometimes imagination makes things out far worse than they are: yet without imagination not much can be done.” He admonished that the people should never give in and never yield

KenDavison Greg Bourgeois Eric Galton David Moore Kim Kovach Fred Hawkins Ben Cunningham Lynn Rubinett Lucious Bunton

MARCH 2016 | AUSTINLAWYER

PRESIDENTâ&#x20AC;&#x2122;S SPOTLIGHT JUDGE ERIC SHEPPERD, COUNTY COURT OF LAW #2

American Gateways wanting a better life and a better future for themselves and for their children. American Gateways is an organization that helps immigrants and refugees coming to America today who are facing great hardships and struggles. The legal services they provide shine a light, much like that of Lady Liberty, and illuminate the path of those who are simply seeking the dignity of a life worth living for themselves and their children. American Gateways needs your help. Be a torch. Be the light.

IN NEW YORK HARBOR stands Lady Liberty, torch held high, beckoning to those from far beyond her shores. She adorns Ellis Island, opened in 1892, where for more than 60 years, millions of newly arrived immigrants passed under the light of her strong and steadfast gaze. She has become the symbol of freedom, democracy, and immigration to the world. While our politicians spend much time and energy hotly debating immigration issues, we must remember that immigration, at its heart, is about people. People

American Gateways Provides Indispensable Legal Services

merican Gateways is one of the oldest and most well-established immigration legal service providers in the state of Texas. Their mission is to champion the dignity and human rights of refugees and immigrant survivors of persecution, torture, conflict, and human trafficking through exceptional immigration legal services at no or low cost, education, and advocacy. In 1987, a concerned group of community leaders founded the agency so that indigent members of the immigrant community could access the Immigration Court and Immigration Service in the same manner as individuals who were able to afford private legal representation. Over the following 29 years, American Gateways has grown to become an indispensable legal services provider for low-income immigrants in Central Texas and is considered one of the most effective and efficient providers of immigration legal services in the nation. They are also the only non-profit in Texas to serve four

Our emphasis on full representation means that pro bono attorneys can expect opportunities to hone their legal writing skills, practice interviewing techniques, litigate cases in administrative proceedings, work with survivors of trauma, and build meaningful relationships with clients.

American Gateways mission is to provide exceptional immigration legal services at no or low cost, education and advocacy. major detention centers, including the T. Don Hutto Residential Center in Taylor, the South Texas Detention Complex in Pearsall, the Karnes County Residential Center 6

AUSTINLAWYER | MARCH 2016

in Karnes City, and the South Texas Family Residential Center in Dilley. There, they provide at least weekly legal orientations, KnowYour-Rights presentations, pro

se workshops, and pro bono legal representation. American Gateways benefits greatly from the volunteer model, which leverages the experience and skills of local attorney and non-attorney volunteers to the benefit of their clients. Our emphasis on full representation means that pro bono attorneys can expect opportunities to hone their legal writing skills, practice interviewing techniques,

litigate cases in administrative proceedings, work with survivors of trauma, and build meaningful relationships with clients. They offer regular trainings for pro bono volunteers as well as consistent mentorship for anyone interested in taking on a pro bono case. Attorneys interested in getting involved should contact Robert Painter at robertp@americangateways.org AUSTINLAWYER or 512.478.0546 A x213. L AL

presented by the Austin Bar Association & AYLA Foundation

26th annual

SAVE THE DATE

BENCH BAR CONFERENCE

FRIDAY, APRIL 15 Sonesta Bee Cave 12525 Bee Cave Parkway Bee Cave, TX 78738

Look for more details coming soon for this full-day of CLE programs, bringing together members of the Bar and the judiciary for a day of networking, learning, and fun.

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

w tion

Creative Solutions to Family Law We help people resolve their family law issues in a way that protects their interests and preserves their family relationships. Most family law cases can be difficult both from an emotional and financial perspective. We believe in reducing the emotional and financial stress by offering our clients alternative options to resolve their disputes, such as collaborative law, mediation and limited scope representation. Our firm also believe that clients reach better results when they resolve disputes cooperatively. However, when that isnâ&#x20AC;&#x2122;t possible, we commit ourselves to the ethical resolution of adversarial litigation.

Service Options for Varied Clientele We provide a variety of services to clients of all backgrounds. Two of our lawyers charge different hourly rates, accommodating people with differing financial needs. We also offer full scope and limited scope representation, so that our clients can choose the way they want to allocate their resources.

Adoption

Grandparent or Non-parent Rights

Collaborative Law

High-Asset Divorce

Modifications of Custody, Possession & Support

812 San Antonio Street, Suite 401, Austin, TX 78701

whitten-law.com | info@whitten-law.com | (512) 478-1011

MICHAEL G. BURK

BUSINESS LITIGATION MEDIATOR Creative Solutions For Common and Complex Disputes: Business | Ownership | Management WWW. LITIGATIONMEDIATOR. COM

| (512) 306-1181 TRIAL PRACTICE: WWW. BURKLAW. COM | (512) 306-9828 MARCH 2016 | AUSTINLAWYER

Fire and Ice, Awards and Fun — The 2016 Gala continued from cover Austin legal community. Karen R. Johnson and David A. Sheppard both took home the Distinguished Lawyer Award. Both Johnson and Sheppard have practiced law for more than 30 years, while making significant contributions to the legal profession and the Austin community. Generosity reached its peak during both a live and silent auction, with the Austin Bar Foundation raising approximately $60,000. This includes the Fund A Need portion of the program, which helped raise $8,950 for the Free Legal Advice Clinic for Veterans and the Foundation’s newest project, the Austin Bar in Action’s Self-Represented Litigant Project, which helps citizens in the Travis County Self Help clinic who can’t afford an attorney, but who are unable to qualify for free legal aid. Plans are already in the works for Gala 2017. If you would like to serve on the committee for the next event, please contact Debbie Kelly, Debbie@ AUSTIN LAWYER AL AL austinbar.org.

The Austin Bar Foundation raised approximately $60,000, including the Fund A Need portion of the program, which helped raise $8,950 for the Free Legal Advice Clinic for Veterans and the Foundation’s newest project, the Austin Bar in Action’s Self-Represented Litigant Project...

THE AUSTIN BAR FOUNDATION thanks

FOUNDATION SPONSOR Howry Breen & Herman

TABLE SPONSORS ACDLA

Estate Planning & Probate Section

Administrative Law Section

Evans Family Law Group

Ausley, Algert, Robertson & Flores

Graves Dougherty Hearon & Moody

Law Office of Becky Beaver

HSSK

Boulette Golden & Marin Bracewell

Norton Rose Fulbright Scott Douglass & McConnico

Judge Orlinda Naranjo

Susan & David Sheppard

Karen R. Johnson

Tom & Robbie Ausley

Kelly Hart

Vaught Law Firm

McCullar Gilbreath

Vinson & Elkins

Lazar Law

Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higginbotham

Cokinos, Bosien & Young Davis & Wright

Noelke Maples St. Leger Bryant

Jackson Walker

Chamberlain McHaney Civil Litigation Section

Loewy Law Firm McGinnis Lochridge

Lloyd Gosselink

HALF TABLE SPONSORS Alexander Dubose Jefferson & Townsend Byrd Davis Furman & Alden

Hunton Williams

Pirkey Barber

Haynes & Boone

The Sharp Firm

ABOVE LEFT:: Gala guests having fun in the photo booth. Photos by Korey Howell Photography. ABOVE RIGHT: The Austin Bar Foundation wishes to thank the 2016 Gala sponsors who made the event possible.

AUSTINLAWYER | MARCH 2016

State Bar of Texas

Texas Lawyer Assistance Program Announces Results of New Study Study Reveals the Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys—Especially Among Young Attorneys BY BREE BUCHANON, DIRECTOR, TLAP

or the first time since 1990, a study has been published regarding the rates of substance abuse and mental health problems among lawyers. Over 15,000 lawyers across 19 states were surveyed. Never before has such an extensive and in-depth study been completed. In this collaboration between the American Bar Association’s Commission on Lawyers Assistance Program and the Hazelden-Betty Ford Foundation, researchers learned that 21 percent of lawyers responding to the survey qualified as problem drinkers, 28 percent struggled with depression, and 19 percent experienced anxiety. The numbers are disturbing, but not entirely surprising, given findings in limited studies of the past, coupled with anecdotal information. Most troubling, and startling, is the revelation that younger lawyers experience these problems at a markedly higher rate than older lawyers. Prior studies had indicated the inverse, resulting in the belief that substance abuse and mental health tended to deteriorate over time in the profession. Respondents identifying as 30 years old or younger had a 32 percent rate of “problem drinking” (defined as hazardous and potentially dependent consumption), compared to 20 percent for the 51 and above group. Researchers made the definitive statement that being in “the early stages of a legal career is strongly correlated with a heightened risk of developing an alcohol use disorder.” The study, called “The Prevalence of Substance Use and Other Mental Health Concerns among American Attorneys,” was published in the February edition of the Journal of Addiction Medicine. It revealed that many of the lawyers experiencing problems with substance abuse or their mental health did not seek treatment because they feared that someone would find out they had a problem. They also held back from seeking help from lawyers’ assistance programs due to the

mistaken fear that these services were not truly confidential. If you are a lawyer or law student and are concerned about your drinking or mental health, you can reach out to the Texas Lawyers Assistance Program for help at any time of the day or night. All communications are confidential by statute, records are not retained, and nothing is relayed to disci-

Support Group, a confidential monthly education support group for members of the legal profession seeking help or support while healing from depression, addiction, job stress, anxiety, or other mental health issues. Meetings are held monthly on the first Monday of each month. Contact Cameron Vann, Cameron.vann@texasbar.com, for more information.

The Justice Mack Kidd Fund provides financial assistance for counseling and medical treatment on a short-term basis for Austin attorneys suffering from depression or related illness. plinary bodies. In fact, requests for assistance can be made anonymously. To find out more about TLAP, go to texasbar.com/tlap, or call 800.343.8527. The Austin Bar Association also provides an Austin Lawyers

Bar Foundation in cooperation with the Austin Bar Association and Texas Lawyers’ Assistance Program in the State Bar of Texas. Fund application and more information can be found at austinbar.org/for-attorAUSTINLAWYER neys/assistance-programs. AL AL

ONLINE texasbar.com/tlap PHONE 800.343.8527 AUSTIN BAR SUPPORT GROUP Cameron.vann@texasbar.com FINANCIAL ASSISTANCE austinbar.org/for-attorneys/ assistance-programs MARCH 2016 | AUSTINLAWYER

We are pleased to announce our new name and the addition of Molly Mitchell as a name partner. We are also proud to welcome Matthew Neill as a new associate with the firm.

512-474-9486

www.abdmlaw.com

PATRICK KEEL M e d i a t o r â&#x20AC;˘ A r b i t ra t o r Fo r m e r D i st r i c t J u d ge

Maitreya Tomlinson

Brandy Wingate Voss

D. Todd Smith

Laura P. Haley

Smith Law Group was founded by appellate specialist D. Todd Smith, a member of the Austin Bar Association Board of Directors and a Life Fellow of the Austin Bar Foundation.

Handling Civil Appeals and Supporting Trial Counsel Statewide office 512 476-5212

mobile 512 293-0300

www.patrickkeel.com

AUSTINLAWYER | MARCH 2016

512.439.3230 W W W. A P P E A L S P L U S .C O M

OPENING STATEMENT

Writing Advice for New Lawyers BY WAYNE SCHIESS, LEGALWRITING.NET

re you in your first year of law practice? Are you surprised at how much writing you’re doing? The amount was certainly a surprise to me. So for new lawyers and those who work with them, here’s some advice.

1. GET DRAFTS DONE EARLY. Although this advice may be hard to apply in a busy law practice, you’d be wise to begin a draft of any serious writing project as soon as you feel comfortable with the content and sources. If you get drafts done early, you’ll see two benefits: First, you’ll learn as you write. Writing engages the mind in a different way from researching. You’ll notice gaps, and you’ll stumble on new ideas, and because you started early, you’ll have time to make changes. Second, you’ll have time to set the project aside, which will improve your editing because you’ll be less familiar with what you’ve written and less wedded to your own prose. And if you’re less blind to the weakness of what you’ve written, you’ll be better able to edit effectively. Now...

2. COMMIT TO EDITING. Are you a one-draft wonder? See Coughlin et al, A Lawyer Writes 11 (2d ed. 2013). The nickname refers to someone who can produce a quality written product in just one draft. It worked in college, right? You wrote the paper the night before it was due, checked it once for glaring errors, and turned it in. And you probably got an A, or at least a B+. But guess what. One-draft wonders are rare in law, and you’re not one. Bad legal writing becomes good, and good legal writing becomes great, only through editing. On every serious writing project, build in time for multiple edits, and develop your own system for editing thoroughly and carefully. See Schiess & Einhorn, “A Five-Pass Edit,” Austin Lawyer 13 (Dec. 2014/Jan. 2015).

3. BE READER ORIENTED. Yes, edit ruthlessly—but not mindlessly. Try to minimize “the curse of knowledge,” the normal

Find out who is viewed as a great legal writer in your office or your practice area, and study that person’s writing in detail. Try to understand how it works, and consider whether those methods could work for you. —Jennifer Romig, Emory University and common mistake of forgetting or ignoring that others don’t know what you know. Steven Pinker, The Sense of Style 59 (2014). So as you edit, take on the mindset of a skeptical reader—one who doesn’t know the case or the law as well as you do. Ask yourself: What will the reader want to know and when? In that regard, my colleague Elana Einhorn, an appellate specialist, encourages new lawyers to work at “providing concise context.” Asking a friend or colleague who’s unfamiliar with your case to read your writing and give you comments can help.

that person to lunch or coffee and have a conversation about writing.” You might find a writing mentor, someone whose experience and habits you can learn from and emulate.

5. RAISE YOUR WRITING IQ.

This one’s mine, of course, and it’s a theme of my writing and teaching. You’re a lawyer, and like it or not, lawyers are professional writers. We ought to act like it. My main recommendation is this: Look 4. IDENTIFY WRITING things up. The Internet is better MENTORS. than nothing (most of the time), and I like Purdue University’s Online This advice comes from Jennifer Writing Lab (OWL) and Grammar Romig, a legal-writing teacher at Girl, though there are other good Emory University. “Find out who sites. But I think you should have is viewed as a great legal writer in some references, some books. Here your office or your practice area, are a few: Magat, The Lawyer’s and study that person’s writing in Editing Manual; Garner, The Reddetail. Try to understand how it book; Texas Law Review, Manual works, and consider whether those on Usage & Style; and Enquist methods could work for you.” This & Oates, Just Writing: Grammar, effort could test your commitment to Punctuation, and Style for the becoming a great legal writer—after Legal Writer. all, you’ve got your own writing to Now use them. New lawyer or do, and now you’ll have to make old, it’s not too late to improve or time to read someone else’s stuff. re-commit to improving your legal LAWYER But the payoff can be worth it. Next,AUSTIN AL AL writing. Professor Romig suggests, “Take FEBRUARY 2016 | AUSTINLAWYER

Nominations Now Accepted for 2016 Regina Rogoff and Professionalism Awards Winners to be Honored at Law Day, May 3

he Austin Bar Association is looking for the best and brightest of the Travis County legal community. These attorneys will be honored with the Regina Rogoff Award and the Professionalism Award at the 2016 Law Day Reception, held in lieu of a luncheon, on Tuesday, May 3, from 6 – 8 p.m. on the Terrace at 816 Congress. The Regina Rogoff Award is given annually to an attorney in Travis County who has shown outstanding service in the public/non-profit sector. The award is meant to be a lasting tribute to the career achievements of Regina Rogoff, who joined Legal Aid in 1973 and held the Executive Director position for 19 years. Past recipients of the Regina Rogoff Award include Berry Crowley, Betti Balli Torres, Bree Buchanan, Fred Fuchs, Garth Corbett, Rod Nelson, Jeana Lungwitz, Ann Forman, Trish McAllister, Lori Duke, Ann Foster, and most recently, David Escamilla. The Professionalism Award is presented by both the Austin Bar

MAR 11 LAW DAY AWARD NOMINATIONS DUE SEND NOMINATIONS TO: DeLaine@austinbar.org

Association and Texas Center for Professionalism. The award honors a lawyer who demonstrates in conduct and character the highest level of personal traits. Recipients of the award are those who lead by example, whose actions others emulate, and who are greatly admired by the Bar. Past recipients of the Professionalism Award include Chuck Herring, Xavier Medina, Steve Zager, Larry Langley, Mina Brees, Mike McKetta, Claude Ducloux, Tim Sulak, Jeff Jury, Phil Friday, David Sheppard, Chip Brees, Susan Burton, and most recently, Martha Dickie. Please send nominations by Friday, March 11, to DeLaine Ward AUSTIN LAWYER at DeLaine@austinbar.org. AL AL

Nominations to join the ranks of PAST REGINA ROGOFF AWARD RECIPIENTS Berry Crowley Betti Balli Torres Bree Buchanan Fred Fuchs Garth Corbett Rod Nelson

Jeana Lungwitz Ann Forman Trish McAllister Lori Duke Ann Foster David Escamilla

PAST PROFESSIONALISM AWARD RECIPIENTS Chuck Herring Xavier Medina Steve Zager Larry Langley Mina Brees Mike McKetta Claude Ducloux

Tim Sulak Jeff Jury Phil Friday David Sheppard Chip Brees Susan Burton Martha Dickie

TLIExceptional Because of our exceptional coverage, Texas Lawyers’ Insurance Exchange has been voted best professional liability insurance company in Texas four years in a row by Texas Lawyer magazine. That same exceptional coverage and over 36 years in the business has also made TLIE a Preferred Provider of the State Bar of Texas. Not to mention, we have returned over $41,550,000 to our policyholders. See why exceptional coverage makes the difference.

512.480.9074 / 1.800.252.9332 INFO@TLIE.ORG / WWW.TLIE.ORG

Edward Solis, Assistant Director of Member Services

AUSTINLAWYER | MARCH 2016

@TLIE_

facebook.com/TLIE01

MAY 3 AUSTIN BAR LAW DAY RECEPTION TERRACE AT 816 CONGRESS 6 – 8 p.m.

Law Day 2016: Miranda — More than Words

he theme for Law Day 2016 is Miranda – More than Words. Law Day is held nationally on May 1 to celebrate the role of law in our society and to cultivate a deeper understanding of the legal profession. President Dwight Eisenhower established the first Law Day in 1958 to mark the nation’s commitment to the rule of law. In 1961, Congress issued a joint resolution designating May 1 as the official date for celebrating Law Day, which is subsequently codified (U.S. Code, Title 36, Section 113). Every president since then has issued a

Law Day proclamation on May 1 to celebrate the nation’s commitment to the rule of law. The Austin Bar Association will celebrate Law Day with a Law Day Reception on Tuesday, May 3, from 6 – 8 p.m. on the Terrace at 816 Congress.

ESSAY & POSTER CONTESTS The Austin Bar is once again sponsoring a poster contest for children in kindergarten through 8th grade, with three judging categories: K-2nd, 3rd-5th, and 6th–8th. An essay contest is open to students in 9th–12th grades. Posters and

Every president since 1961 has issued a Law Day proclamation on May 1 to celebrate the nation’s commitment to the rule of law. is Friday, March 11. Winners will essays must respond to the prompt, be awarded prizes, honored at the “Why should all people be treated Law Day Reception, and entered fairly even if they are suspected in theLAWYER State Bar poster and essay of wrongdoing?” If you know of a AUSTIN AL AL contests. student or a teacher who might like to participate, please contact the Austin Bar office for a flyer and more information. The deadline for submitting posters or essays

CIVILIZED DIVORCE. NOT AN OXYMORON. civil discourse for a civil proceeding

JENNIFER JOHNSON LEGAL, PLLC Jennifer Piskun Johnson Family Law

1717 West Sixth Street • Suite 315 • Austin, TX 78703 T 512.617.3958 • F 512.617.3959 jenniferjohnsonlegal.com

MARCH 2016 | AUSTINLAWYER

“Reasonably Calculated” Doesn’t Work in Federal Court Amendments to the Federal Rules BY RICHARD YEOMANS

ven though your discovery is reasonably calculated to lead to discovery of admissible evidence, it may no longer be allowed. Eleven of the federal rules of civil procedure were recently amended, effective Dec. 1, 2015. But the Supreme Court Order adopting the amendments makes them applicable to pending cases “insofar as just and practicable.” What does this mean to the practitioner? First, some amendments are minor. For example, a plaintiff must now serve his complaint within 90, rather than 120, days, and a scheduling order must usually issue within 90, rather than 120, days after service. But some are substantive. The scope of discovery under Rule 26 has been tinkered with over the years. Relevance was narrowed from “relevant to the subject matter” in the pending action to “relevant to any party’s claims or defenses.” The recent amendments to Rule 26 have gone further. A two-part standard used to apply to discovery. Discovery was permitted of non-privileged matter that was relevant to a party’s claims or defenses. Relevant information didn’t need to be admissible, so long as the discovery appeared reasonably calculated to lead to discovery of admissible evidence (similar to Tex.R.Civ.P. 192.3(a)). Who hasn’t heard opposing counsel cite the “reasonably calculated” standard in an effort to justify the most onerous discovery requests?

is proportional to the needs of the case. Proportionality is determined considering the importance of the issues at stake, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving issues, and whether the burden or expense of the discovery outweighs its likely benefit. The earlier “reasonably calculated” language has been deleted (Rule 26(b)(1)). But how do these proportionality factors work in practice? Are parties in a plain vanilla breach of contract case entitled to less discovery than in a civil rights case? Does an indigent defendant have fewer discovery obligations than a wellheeled defendant? And how does a court go about weighing the likely benefit of discovery that hasn’t yet taken place? It’s worth noting that all but one of the proportionality factors (the parties’ relative access to relevant information) were in former Rule 26. But the burden under former Rule 26 was on the party receiving the discovery to raise these factors by motion. (The court could also raise the factors sua sponte.) That is, after receiving plaintiff’s request for production of ten years of electronically stored information, defendant could move to limit the request arguing, for example, that the expense of compliance outweighed the likely benefit of the discovery (Rule 26(b) (2)(C)(iii)). Under new Rule 26, the proportionality factors are no longer a limitation on discovery; they

Discovery under new Rule 26 is permitted of non-privileged matter relevant to a party’s claims or defenses that is proportional to the needs of the case. Now a three-part standard applies to discovery. Discovery under new Rule 26 is permitted of non-privileged matter relevant to a party’s claims or defenses that 14

AUSTINLAWYER | MARCH 2016

are instead incorporated into the definition of discovery. Rather than seeking relief by motion, the recipient of discovery can now object that it is not proportional to the needs of

the case. As new Rule 26 appears to increase a requesting party’s burden to justify discovery, some claim the amendment is anti-plaintiff. Others disagree. New Rule 26 impacts other discovery rules concerning interrogatories, requests for admissions, and requests for production. New Rule 34 now also requires that objections to requests for production state whether materials are being withheld based on the objection (which may lessen use of the boiler-plate objection that documents

may be withheld “to the extent the request is inconsistent with the rules of procedure”). And new Rule 37(e) now specifically addresses a party’s failure to preserve electronically stored information, when the information should have been preserved in the anticipation or conduct of litigation, and the party failed to take reasonable steps to preserve it. The timeworn advice still applies: Know your judge! And read the Rules! The rulesAUSTIN may be different LAWYER from when you last read A them. L AL Richard Yeomans is a shareholder and trial lawyer at Graves Dougherty Hearon & Moody, PC. Yeomans has a wide range of experience in business and commercial litigation of all types. He has tried jury and non-jury cases, and has pursued and defended appeals in state and federal courts. He has also arbitrated many cases. Yeomans makes a point of helping clients realistically assess the likelihood of success at each stage of litigation so that informed business decisions can be made.

Welcome Congress Avenue Partners Thank you, Mike Kennedy, for Your Outstanding Partnership and Support

ike Kennedy, Principal and Managing Director of Avison Young Commercial Real Estate and longtime Austin Bar Association member, was instrumental in helping find new tenants to fill the Austin Barâ&#x20AC;&#x2122;s office space vacated by Volunteer Legal Services and the Lawyer Referral Service last fall. He also negotiated a new five-year lease for the Austin Bar with 816 Congress. Kennedy specializes in locating and negotiating business space on behalf of legal, financial, technology, and corporate office space users. Proving that Kennedy goes way above and beyond in terms of customer service, his firm recently made a generous donation to the Austin Bar Association. The Austin Bar is very grateful for his support and his continued partnership. In January, the Austin Bar welcomed new tenants, Congress Avenue Partners, to the 7th floor of 816 Congress. Congress Avenue PartnersÂ is a government relations

In January, the Austin Bar welcomed new tenants, Congress Avenue Partners, to the 7th floor of 816 Congress. and public affairs firm offering strategic advice, political counsel, and effective public policy solutions for corporations, coalitions, and associations seeking to successfully navigate the complex legislative and regulatory environment in Texas. The firm, made up of Eric Wright, Eric Woomer, Buddy Garcia, and Austin Bar member Gregg Knaupe, bring together the power of experienced lobbyists for industry leaders seeking a competitive advantage in Texas. For more information, visit their website at AUSTINLAWYER captexas.com. AL AL

Congress Avenue Partners (from left): Gregg Knaupe, Eric Woomer, Eric Wright and Buddy Garcia

CELEBRATING 20 YEARS

Thorough and Supportable Business Valuations Since 1996 www.financial-valuations.com MARCH 2016 | AUSTINLAWYER

DEPARTMENT

The following are summaries of selected civil opinions issued by the Third Court of Appeals during January 2016. The summaries are intended as an overview; counsel are cautioned to review the complete opinion. Subsequent histories are current as of February 4, 2016.

Administrative law: Commission has broad discretion in grant application process. Machete’s Chop Shop, Inc. v. The Texas Film Comm’n, No. 0314-00098-CV (Tex. App.—Austin Jan. 29, 2016, no pet. h.). Commission administers a grant program for companies producing films in Texas. By statute, Commission is not required to act on any application, may deny an application based on content, and may revoke eligibility after the project is completed. Commission initially approved Machete for acceptance into the program, but after review of the post-production final content, concluded Machete did not qualify for a grant based on the film’s content. Machete challenged Commission’s handling of its grant application. The trial court granted Commission’s plea to the jurisdiction. The court of appeals rejected Machete’s ultra vires challenge. The statute’s plain language granted Commission discretion to award or deny a grant application throughout the entire process. Further, the court concluded that estoppel and reliance do not apply against the state. The court affirmed.

3 RD COURT OF APPEALS UPDATE Original proceeding: Court grants mandamus relief based on forum-selection clause. In re Dunbar Armored, Inc., No. 03-15-00694-CV (Tex. App.—Austin Jan. 6, 2016, orig. proceeding) (mem. op.). Dunbar provided support services for bank’s ATMs. When contract ended, bank alleged Dunbar failed to account for $40,000 of bank’s funds. Bank sued Dunbar in Texas. The trial court denied Dunbar’s motion to dismiss. Bank contended that the parties’ contract’s forum-selection clause was ambiguous and did not apply to its claim. The clause provided, “this Contract and all claims hereunder will be governed by the laws of the State of Maryland, and all claims, suits, or proceedings brought against DUNBAR to recover for loss or damage must be brought in a court within the jurisdiction of the State of Maryland.” The court concluded bank’s claims were for “loss or damage” within the forum-selection clause and must be brought in Maryland. The court granted mandamus relief. Trial procedure: Court reverses default judgment based on defective service. Cancino v. Cancino, No. 03-1400115-CV (Tex. App.—Austin Jan. 13, 2016, no h. pet.) (mem.op.). The trial court granted a no-answer default divorce in favor of husband. Wife appealed, alleging improper service. The court of appeals concluded service was defective. After they separated, wife moved to Poland. Husband filed for divorce but

never attempted personal service on wife in Poland, despite knowing her address. During a brief visit to Texas, husband attempted to serve wife by leaving the petition at a friend’s house. The substituted service location, however, was not wife’s usual place of abode as required by Rule 106(b). Finally, that wife had actual knowledge of the lawsuit did not rectify the defective service. The court reversed and remanded. Family law: Fiduciary’s misconduct inherently undiscoverable. Simmons v. Simmons, No. 03-1500008-CV (Tex. App.—Austin Jan. 14, 2016, no pet. h.) (mem. op.). The parties’ 1987 divorce decree awarded wife a portion of husband’s retirement benefits to be paid if, as, and when received. Husband retired in 2004 and cashed out his retirement benefits without paying wife her portion. Eight years later, wife discovered husband’s actions. The trial court granted wife’s petition for enforcement. Husband argued on appeal that wife’s injury was not inherently undiscoverable and was thus barred by limitations. The court of appeals noted that Family Code § 9.011 creates a fiduciary relationship when property is awarded to a non-owning party. Further, there is a presumption that a fiduciary’s misconduct is inherently undiscoverable. Husband’s argument that wife should have known where he was did notAUSTIN overcome the presumpLAWYER tion. The court affirmed. AL AL

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 LITIGATION, CO-COUNSEL TRIAL TEAM FOR SOLO AND SMALL FIRM PRACTITIONERS

Negotiate With Confidence - Our Trial Team Has Your Back Meghan Alexander | David M. Gottfried | Michael Jurgens | Tara Gillespie

AUSTINLAWYER | MARCH 2016

BRIEFS

NEW MEMBERS The Austin Bar welcomes the following new members: Lee Bukstein Mary Byars Leslie Coleman Julie Davis Patrica de la Pena Simi Denson Matthew Duchamp Brent Farley Evan Hall Alexander Hammond Steven Hardt Victoria Keith Jeff Maufrais Kelly Bailey Krawczyk Sarah Lancaster Christopher Lavorato Joseph Loiacono Kathleen Manchin Margaret Moore Kevin Mosley Brett Nuttall Rebecca Snyder Clayton Suitt Aimee Velez David Ward

ABOVE: Baker, Janes, Loughran, Redinger, and Smith

IN THE NEWS Tanya DeMent and Stephen Garrett have both received Board Certification in Labor & Employment Law from the Texas Board of Legal Specialization. Both DeMent and Garrett currently practice as Associate Attorneys with Boulette Golden & Marin. Divorce and Family Law attorneys Janet McCullar and Jake Gilbreath have joined together to form the firm McCullar Gilbreath. The firm will focus on high-end divorce cases, including child custody, property division, family violence, and same-sex relationships. Robert F. Loughran published an article in ERC’s Mobility Magazine titled “Refugees are Not a Threat … They are a Staffing Opportunity” on the potential benefits of employing Syrian refugees. The article also discusses best-practice procedures employers should follow when hiring refugees. Eric Robertson of Ausley, Algert, Robertson & Flores has become licensed to practice law in New Mexico. Law firm, Kemp Smith, has celebrated its 150th anniversary. Kemp Smith was founded in 1866 in Bryan, Texas, but now has law offices in Austin, El Paso, and Las Cruces.

Taube Summers and Waller have joined together to operate under the Waller name. Waller is happy to welcome the following Austin Bar members from Taube Summers: Eric J. Taube, Rick Harrison, Mark C. Taylor, B. Neal Meinzer, Kevin Brown, S. Alex King, Paul Matula, Jamie McGonigal, Morris D. Weiss, Christopher G. Bradley, Cleveland R. Burke, Rola Daaboul, and Andrew Preston Vickers.

MOVING ON UP Steven D. Baker is now a partner at Giordani, Swanger, Ripp & Phillips. Baker practices primarily in estate planning and probate law. Sara Janes has been promoted to partner at Weisbart Springer Hayes. Janes has experience in complex employment, commercial and technology disputes. Peter Smith has been promoted to partner at Norton Rose Fulbright. Smith focuses his practice on tax aspects of public finance transactions. Davis & Wright has elected Adrienne Redinger as shareholder. 5113 Southwest Parkway, Suite 115, Austin, Texas 78735.

NEW TO THE OFFICE Elizabeth Beyer has re-joined The Fowler Law Firm as an associate. Beyer focuses her practice

mainly on family law and probate and estate planning. Justin Long has joined Norton Rose Fulbright as a partner. Long is a corporate and regulatory banking lawyer. Michelle Rosenblatt has joined the firm of Armbrust & Brown as Senior Counsel. Her practice focuses on U.S. and international tax, estate, and wealth preservation planning. Munsch Hardt Kopf & Harr has hired Peyton Smith as a shareholder in the Business Litigation and Labor & Employment practices. Jennifer Smith has joined the legal and public affairs team at Sledge Law & Public Strategies. Smith previously worked as an environmental attorney for the Texas Commission on Environmental Quality and as communications director for a large non-profit organization. Winstead has hired Peter Strenkowski to its commercial litigation practice group. Strenkowski focuses on insurance coverage litigation and insurance defense. Both Gary E. Zausmer and Emily R. Jolly have joined Enoch Kever as members. Also new to the firm, are Lisa Kinzer and Brett Nuttall, who have been hired as associates.

MARCH 2016 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN CHARI L. KELLY OFFICE OF THE TRAVIS COUNTY DISTRICT ATTORNEY

The Making of a Mixture: Recent Texas DNA Problems Demystified

n August of 2015, the Texas Forensic Science Commission released a statement about statistics in DNA mixture cases that caused a lot of buzz in Texas criminal law community. The statement covered two issues: FBI Database Errors and Mixture Interpretation. You may have received it, your may have even read it—but did you understand it? Here is a simplified breakdown of the two issues.

FBI DATABASE ERRORS Labs across the country use the FBI’s Short Tandem Repeat (STR) frequency data to calculate DNA statistics. You most commonly see this data reflected as a Combined Probability of Inclusion/Exclusion (“CPI/CPE”) calculation in a lab report. For example, “The probability of selecting an unrelated person at random is approximately one in 2.6 billion for Caucasians…” is powerful evidence that is persuasive and often seemingly irrefutable. What is the issue with this testing? Last year, the FBI notified all labs it had identified minor discrepancies in its STR Population Database. The FBI attributed the discrepancies to human error and technological limitations and provided corrected data to all labs. However, DNA mixtures that were interpreted with FBI data from 1999-2015 may have incorrect CPI/ CPE calculations. You can request that a Texas Department of Safety (TXDPS) lab do a statistical recalculation of any sample they tested 18

AUSTINLAWYER | MARCH 2016

during that time if you feel that an error may have an impact on the outcome of a case. Note that if you request a statistical recalculation, the DNA will not be retested or re-interpreted; simply a new statistical recalculation of the CPI/CPE with the corrected FBI database data will be performed. The turn around time is about two weeks and requires a written request to your TXDPS lab.

MIXTURE INTERPRETATION Additionally, new interpretation guidelines for DNA mixture profiles went into effect on Aug. 11, 2015 for TXDPS labs. In essence the method for interpretating a DNA mixture profile became more conservative, i.e. more difficult to say that a particular sample matched a particular person. As result of the change of both the FBI statistics AND the new mixture interpretation guidelines, some cases had significant changes in their CPI/ CPE statistical results. As the Texas Forensic Science Commission noted, these cases involved complex DNA mixtures, usually with difficult evidentiary samples such as gun swabs, steering wheel swabs, items of clothing, or other examples of “touch DNA” where multiple people may have contributed DNA to the sample. What does this mean to you? If you have lab report from TXDPS with a “partial” DNA profile OR a DNA mixture profile with no “source attribution” statement (“to a reasonable degree of scientific certainty [X] is the source of this profile”) tested before August 2015, you may want it reinterpreted. If you are unsure, you can contact TXDPS about whether reinterpreting your DNA mixture case would be helpful. TXDPS is currently prioritizing

As result of the change of both the FBI statistics AND the new mixture interpretation guidelines, some cases had significant changes in their CPI/CPE statistical results. requests for reinterpretation in death row cases and cases that are currently set for trial.

THE FUTURE The silver lining is that TXDPS labs will be using probablistic genotyping software in the near future, which is now considered the gold standard. This testing is scheduled to begin in March of 2016. The TX-

DPS mixture interpretation guidelines have also been updated again and will go into effect February of 2016 to allow for reinterpretation of data not able to be analyzed AUSTINusing LAWYER AL AL probabilistic genotyping software. Many thanks to Jody Koehler, DNA Section Manager of the Austin lab of the TXDPS laboratory, for her help in preparing this article.

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Day of Service

n Jan. 18, 2016, more than 50 young lawyers, friends, and family participated in the Austin Young Lawyers Association’s annual National Day of Service as part of a nationwide celebration of the life and teachings of Dr. Martin Luther King, Jr. Volunteers from AYLA and the Austin Bar Association fanned out across the city, assisting a variety of local non-profit organizations, including: • Austin Children’s Services Emergency Shelter, • BookSpring, • Austin Animal Center, • Austin Parks Cleanup, and • Austin Sunshine Camps. AYLA’s participation in the 2016 National Day of Service was a big success, and the members’ spirit of volunteerism made an impact across the community. Many thanks to the Day of Service

Volunteers from AYLA and the Austin Bar Association fanned out across the city, assisting a variety of local non-profit organizations Co-Chairs Jorge A. Padilla and Andrea Rose and the many committee members who helped coordinate this year’s events, including David Courreges, Jessica Maloney Cathey, and Franklin Hopkins. If you are interested in learning more about AYLA’s volunteer oppor-

(from left) Attorneys Rudy Metayer, Dave Floyd, Ann Greenberg, Najwa Sharpe and Franklin Hopkins are joined by family and friends at the Austin Parks Cleanup.

tunities throughout the year, including Day of Service, please contact Andrea Rose, chair of AYLA’s Community Service Days Committee, at AUSTIN LAWYER adschrag@gmail.com. AL AL

UPCOMING EVENTS THURSDAY, MARCH 17 AYLA Docket Call 5:30 to 7 p.m. Mean Eyed Cat, 1621 W. 5th St. Mingle with your AYLA friends at our monthly happy hour. Sponsored by Robson Forensic

FRIDAY, MARCH 18 Free AYLA CLE: Selecting and Vetting Technical Experts Noon 816 Congress Ave. Ste. 320 RSVP: Debbie@austinbar.org Sponsored by Robson Forensic

WEDNESDAY, MARCH 23 AYLA’s Runway for Justice 6:30 p.m. Mercury Hall, 615 Cardinal Ln. Please join AYLA for their 2nd Annual fashion show fundraiser. Runway for Justice will showcase male and female lawyer models wearing casual, business and evening looks. The show will bring together more than 100 local attorneys and their friends for a fabulous fashion-forward fundraiser benefiting the AYLA Foundation. Champagne, cocktails, and hors d’oeuvres will be served. All guests will receive a swag bag. VIP tickets – $80 General Admission – $60 Pack of 4 VIP tickets – $275 Purchase tickets at ayla.org.

MARCH 2016 | AUSTINLAWYER

ENTRE NOUS

Adieu, Sweet Surety: The Goodbye Letter BY CLAUDE DUCLOUX

Dear Amalgamated State and Farm Goodhands Insurance Company:

his is the hardest letter I have ever written. My hands tremble—I almost don’t know how to start. We both know this has been coming for a long time. For years now, we’ve been drifting apart, you’ve been avoiding my gaze... and my emails. I never want you to think that my love wasn’t real. I will always remember our wonderful, incredible collaborations. You brought me joy, admiration and German automobiles. You will always have a place in my heart. I will never forget the good times. Who can forget the sheer and mutual joy of buying you legislation and legislators? The brilliant slogans we developed, condemning the scourge of “runaway juries” and “frivolous lawsuits.” The public “information” campaigns designed to misinform and deceive, like the breathtaking promise to reduce premiums if you got your way. The genius of creating additional consumer hurdles to recovery, like the Residential Construction Commission which prevented homeowners from suing their builders, or indecipherably complex standards for pre-trial expert medical reports. I can barely write this through my tears of pride. I smile, remembering our nights with the lobbyists, and the long, cleansing showers afterwards. Have you forgotten? I haven’t, which makes this even more painful. Sure, the signs were there. But I loved you, believed in you—no, believed in us so much that I accepted your excuses willingly. When you redlined neighborhoods and declined coverage months after accepting premiums, when the first claim came in, I convinced myself it was a necessary protection. The sheer courage of yanking medical coverage for an appendectomy four months into the coverage year because the insured hadn’t disclosed his cedar allergy. I blinked, but 20

AUSTINLAWYER | MARCH 2016

convinced myself it was just prudent business. The public would understand. Sure they would. No matter what, I would defend you to the last writ. Your victories were my victories. I started winning cases, getting my name in the press. The prejudice against consumer lawyers was palpable. How could I not blush with pride and enjoy the bravado? During those many years, I know I gave you my best. You inspired me to work for 31 percent less than my standard billing rate. But you trusted me. When I came home after depositions, you always paid

much will it cost? Why are you charging me for document review?” Nothing I do escapes your scrutiny. “Don’t file that motion without permission. Stay within the litigation budget. Your rate is too high. Give the file to someone cheaper, or reduce your rate.” You have minions who peruse my bill

You’re spoiled. The things we fought for now come easily to you. You think I should be working cheaper, at a pace and a cost dictated by you, not me. my bill—and I knew you appreciated my choices of experts and case strategies. But no longer. The trust and confidence you had in me has slowly eroded like the ice cubes in my Glenlivet. I was a fool. My euphoria resulting from finally beating adversaries with the intricacies of HB4 had inexorably dulled my senses. I simply must say this: You’re spoiled. The things we fought for now come easily to you. You think I should be working cheaper, at a pace and a cost dictated by you, not me. Now, instead of “Go git ‘em!” I get inquiries confirming your increasing suspicion: “Why do you need to take that deposition? How

for you, looking for errors the size of pinholes. You don’t even let me bill monthly. It’s as if you don’t want to hear from me. And my quarterly bill is rejected unless these insane computer codes are all correct. When I travel to a small county for a hearing, you question my motives like an angry lover. I hope you’re happy now. My Porsche is gone. My wine list is… domestic. We’ve downsized to a Class B building. My car sits all day in an uncovered parking lot. Now, with tears dropping on my timesheets, I realize I’ve been had. You really don’t want to help people. And now I see myself as

your accomplice. My confidence is broken, the bridge is burning, and I look back like a Dallas Cowboy fan remembering better years, hoping to reclaim my dignity and, dare I say, glory. So, I am closing the file on you. Withdrawing from representation. Don’t worry, I know you’ll find some young, hot, law graduate desperate for your limited affections who will fall for your promise of undying faithfulness. You’ll burn through that graduate like a habanero pepper in a nursing home. Don’t worry about me. I’ve got a few good years left. I’ve decided to seek the comfort of a client who will never turn its back on my best interests, or on anyone. An association who appreciates me for my persuasion and class, as well as my unfailing influence in Congress and law enforcement. That’s right, I’m moving on to a nobler and more stable position. I will be the top consiglieri for the Gambino family. AUSTIN LAWYER Ciao,A baby. L AL

Help your clients help themselves

Chris St. Clair, CPCC St. Clair Coaching

Chris@StClairCoaching.com www.StClairCoaching.com 512 329 8860 (O) 512 423 0402 (C)

AUSTIN BAR LAW DAY RECEPTION – MAY 3, 2016

  

DIVORCE TRANSFORMATION COACHING Create specific & forward-focused goals Improve decision making skills Help distinguish between things clients can & cannot control

Leveraging proven techniques by best-selling author Honoree Corder

TERRACE AT 816 CONGRESS, 6 – 8 p.m.

ROBERT M. CAIN, MD Board Certified Neurologist 42 Years in Austin

EXPERT WITNESS Fair. Dependable. Accurate.

neurologyaustin@juno.com (512) 458 - 8900 TRAUMATIC BRAIN INJURY & SPINE References Available Upon Request

Why do advertisers turn to

AUSTIN LAWYER? #1. A Well Defined, Supportive Readership of 4100+ Attorneys. Reserve your ad space today and see a return on your investment! CONTACT: Chellie Thompson Monarch Media & Consulting, Inc.

4100+ AUSTIN BAR MEMBERS 10x YEAR

chellie@monarchmediainc.com • 512.293.9277

austin lawyer

MARCH 2016 | AUSTINLAWYER

CLASSIFIEDS

ADVERTISERS OFFICE SPACE Premier Class A office sublease space available at the Mira Vista office complex, 2705 Bee Caves Road. Great access to Mopac, downtown and the airport. Up to 3,000 square feet of sublease space available with reserved parking. Reception, IT support and other office support services available to subtenant. Available now. Single law firm subtenant preferred but will consider subleasing to multiple lawyers. Contact Derek Lewis with

Lincoln Property at 512.656.5624 for further information.

WANTED Sell me your practice! Are you retiring within two years? I am looking to purchase a niche practice, reasonably “turnkey,” with established referral sources and/or effective targeted marketing. North or Central Austin required. Phone Anthony 203.241.4677 or email attorney.seeking.practice@ gmail.com.

Classified advertising is available in Austin Lawyer to provide added resources for our members and related professionals. For Austin Lawyer classified advertisement pricing, reservation deadlines, and placement details, please contact Chellie Thompson at Monarch Media & Consulting, 512.293.9277, or Chellie@ monarchmediainc.com.

ADVERTISER . . . . . . . . . . . . . . PAGE

Almanza, Blackburn, Dickie, & Mitchell . . . . . . . . . 10 Apple Leasing . . . . . . . . . . . . . 3 Broadway Bank . . . . . . . . . . . 24 Child Support Wizard. . . . . 12 David M. Gottfried – Mediator . . . . . . . . . . . . . . . . . . 16 Financial Valuation Services . . . . . . . . . . . . . . . . . . . 15 Foster . . . . . . . . . . . . . . . . . . . . . 22 Jennifer Johnson Legal . . . 13 Lakeside Mediation Center . . . . . . . . . . . . . . . . . . . . 5 Law Office of Tim Whitten . . . . . . . . . . . . . . 7

Responsive. Experienced. Professional. Your Austin source for reliable U.S. and Global Immigration expertise.

LawPay. . . . . . . . . . . . . . . . . . . . 2 Lawyers for Lloyd . . . . . . . . . 10 Lexis Nexis . . . . . . . . . . . . . . . . 4 Lowey Law Firm . . . . . . . . . . 23

EMPLOYERS

INVESTORS & STARTUPS

INDIVIDUALS & FAMILIES

Foster delivers a full suite of immigration enterprise solutions customized to meet the needs of your organization.

We are experienced in resolving complex immigration problems while taking into account the realities of investors, start-ups and entrepreneurs.

At Foster, we’re proud of our long history of service and advocacy on behalf of individuals and families.

Request a consultation: +1 512.852.4142

Moreland Properties . . . . . 21 Noelke Maples St. Leger Bryant. . . . . . . . . . . . . . . . . . . . . 21 Patrick Keel . . . . . . . . . . . . . . . 10 Robert M. Cain, MD, PA. . . 21 Smith Law Group . . . . . . . . . 10 St. Clair Coaching. . . . . . . . . 21 Texas Lawyers Insurance Exchange. . . . . . . . . . . . . . . . . . 12 The Burk Law Firm . . . . . . . 7 Thomas Esparza, Jr. . . . . . . 13

www.fosterglobal.com

AUSTINLAWYER | MARCH 2016

Serving Austin since 1999. 912 S Capital of Texas Hwy, Suite 450 Austin, TX 78746

LOEWY LAW FIRM

Injured?

We Can Help. (512) 280-0800

FREE CASE REVIEW Adam Loewy loewyfirm.com

GOOD IS a bank that is high-tech and high-touch. Broadway Bank has spent the past 75 years perfecting the art of giving customers what they want. Thatâ&#x20AC;&#x2122;s why we offer both high-tech and high-touch banking to cater to all customers. We have all of the modern conveniences to make banking easier, and we also deliver the same personalized service we always have. Thatâ&#x20AC;&#x2122;s something that will never change. CELEBRATING