Austin Lawyer, March 2018 by Austin Bar Association

austinbar.org MARCH 2018 | VOLUME 27, NUMBER 2

Bench Bar Conference in San Antonio—April 13 and 14 Pushing Boundaries and Discovering New Ground

egister by March 30 to attend the 28th annual Bench Bar Conference at the Elian Resort in San Antonio on April 13 and 14. The conference, sponsored by the Austin Bar Association and the Austin Young Lawyers Association Foundation, will provide a unique opportunity for local attorneys and judges to interact outside the courtroom in a casual, discussion-oriented environment. By holding the conference out of town, attendees will have the opportunity to

build relationships with their fellow Bar members on an even deeper level while obtaining 7.5 hours of MCLE (including three hours of ethics). The weekend includes a trivia contest with members of the judiciary, plus dinner and casino games on Friday night. Optional activities on Saturday include yoga, spa services, golf, or tennis. The conference registration fee is $300 for members and $400 for non-members. Friday hotel rooms for single occupancy are $200, and $100 for double occupancy. Registration and hotel fees

include destination amenity fees, lunch, happy hour, and dinner on Friday, and a continental breakfast on Saturday. Additional fees apply for golf, tennis, and the spa.

Go to austinbar,org to register, pay, and obtain additional information, including the list of judgesLAWYER who plan to attend the AUSTIN AL AL conference.

Introducing Austin Bar’s 10 for 10 New Program to Connect 10 People during 10 Lunches Launching Soon

ant to meet new people in the Austin Bar in a small, casual, and intimate setting? The Austin Bar is launching a new program called “10 for 10” in which the first 10 people to claim their spots around a lunch table will be invited to join a member of the Austin Bar Board of Direc-

tors for lunch—on us! The only agenda is to get to know your fellow Bar members better, make new connections, and network with attorneys you may not have met yet. Each year, the goal is to schedule ten lunches for 10 people—hence, “10 for 10.” How does it work? A “10 for 10” announcement will run in Bar Code (the Austin Bar’s week-

ly enewsletter, emailed every Tuesday), and on the Austin Bar’s Facebook and Twitter accounts. If you’d like to attend, simply email 10for10@austinbar.org to let us know. The first 10 people to respond will be invited to have lunch, completely free of charge. Next month, a new lunch will be scheduled at a new location hosted by a different member of

the Austin Bar Board of Directors, and another announcement will run. Again, the first 10 people to respond will be able to attend. Once you’ve attended, you aren’t eligible to attend another one for three months in order to allow more people to participate. Watch for the date and location of the first “10 for 10” lunch to be AUSTIN LAWYER AL AL announced soon!

CONTENTS

AUSTINLAWYER MARCH 2018 | VOLUME 27, NUMBER 2 AL A L INSIDE FEATURED ARTICLES 1

Bench Bar Conference in San Antonio—April 13 and 14

Introducing Austin Bar’s 10 for 10

Trailblazing Women—Pathfinders Honored at TCWLA Luncheon

Celebrating 125 Years of the Austin Bar Association

Midnight in Miami—15th Annual Austin Bar Foundation Gala

Sam Sparks: Man, Myth, Mentor

Austin Bar/AYLA Leadership Academy Holds Opening Retreat

Austin Bar Members Run for State Bar Board of Directors

LRS Thanks LegalLine Volunteers

Travis County Gets New Court and New Judge

DEPARTMENTS 4 Kudos 5 Foundation Spotlight 13 Opening Statement 14 Briefs 18 Third Court of Appeals Civil Update 19 Third Court of Appeals Criminal Update 20 Federal Criminal Court News 21 Federal Civil Court Update 22 AYLA 24 Entre Nous 27 Practice Pointers

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NEWS & ANNOUNCEMENTS

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Law Day Poster and Essay Contests Open Through March 9

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KUDOS EDITOR’S NOTE: The Austin Bar Association is made up of many wonderful, hardworking attorneys who go above and beyond the call of duty daily for their clients, their profession, and their community. It’s rare, however, for us to receive a totally unsolicited letter praising one of our members for simply doing what they do. We felt it was appropriate to share this letter and applaud the good work of those mentioned in it. Kudos to Mr. Goldsmith and his team at Goldsmith & Bogisch for being an example we can all aspire to.

January 5, 2018 Austin Bar Association 816 Congress Ave., Ste. 700, Austin, TX 78701 RE: J. Robert Goldsmith, Jr., Goldsmith & Bogisch Ladies and Gentlemen: I have been fortunate enough to have had a long working experience with Mr. Goldsmith and his fellow attorneys (Karen Bogisch, Steven Lord, et al) of the Austin firm of Goldsmith & Bogisch. They are all fine attorneys—detailed in their work and thorough in their results. They are dedicated

to their clients and attentive to their needs. Having lawyers like Mr. Goldsmith and his colleagues at G&B who believe in their clients and leave no stone unturned in serving them is awe-inspiring to watch. Bob, Karen, and Steven along with the staff at G&B will be a group of people to whom I will be grateful for the rest of life [sic]. The Austin Bar can be very proud that the attorneys at G&B are members of their association. Sincerely, J.N. Long, CPL Vice PresidentAUSTIN and Property Manager LAWYER AL AL U.S. Trust, Bank of America

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Amy Welborn ............................ President Adam Schramek ....................... President-Elect D. Todd Smith ............................ Secretary Kennon Wooten ...................... Treasurer Leslie Dippel .............................. Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION Austin Kaplan ............................ President Jorge Padilla .............................. President-Elect Sandy Bayne .............................. Treasurer David King .................................. Secretary Katie Fillmore ........................... Immediate Past President

EXECUTIVE OFFICES 816 Congress Ave., Suite 700 Austin, TX 78701-2665 Email: 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 Kelli Horan ................................. Editorial Assistant Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District Federal Court and Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.

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Austin Tenants Council Produces Eviction Rights Video

well-informed tenant is the best first defense in a housing crisis. Eviction lawsuits are on the rise in Texas and tenants are too often on the losing side of those suits. Recognizing this, Austin Tenants Council (ATC) sought, and was awarded, a generous grant from the Austin Bar Foundation to produce “Tenants’ Rights and the Eviction Process in Texas,” a video educational reenactment of the eviction process. Through this video, ATC seeks to educate a broad Texas audience on the steps tenants should take to advocate for their rights during the difficult eviction process. According to a 2016 report initiated by Travis County Precinct 2 Commissioner Brigid Shea, in 2015 there were 7,745 eviction petitions filed in Travis County alone. Fifty-five percent

of those evictions resulted in judgments in favor of the landlord and 35 percent resulted in executed writs of possession. This number has only risen in the past three years, expediting the urgency for broader public awareness of the eviction process, an all-too-common experience for underrepresented populations. Daily, ATC housing specialists guide clients through stages in the eviction process. Whether they have just received a notice to vacate, or they are on the cusp of receiving a writ of possession, clients rely on ATC guidance to understand their rights and make sound decisions during a housing crisis. As Texas law does not require good cause for filing an eviction, tenants find themselves at an immediate disadvantage upon receiving a notice to vacate. Too

often, ATC housing specialists speak to clients who abandon their dwelling upon receiving the notice. Many do not realize that they have a legal right to remain in their dwelling. Others are simply given a false ultimatum by their landlord: “Surrender the apartment or I will call the cops.” “ATC is extremely grateful for the grant from the Austin Bar Foundation. The production of the video allows us to depict the eviction process in a meaningful way, using language and visuals common to the process. The aim is to give tenants a relatable narrative if they have the misfortune to find themselves on the receiving end of a notice to vacate or an eviction filing,” explained Juliana Gonzales, ATC executive director. In addition to the financial support of the Austin Bar Foundation, the video production was

made possible by the patient expertise of videographer Matthew Gossage, the acting services of activist Carmen Llanes, and the open-door policy of Justice of the Peace Judge Yvonne Michelle Williams, court administrator Kitzy Daniels, and staff. View “Tenants’ Rights and the Eviction Process in Texas” on ATC’s YouTube channel or at housing-rights.org. Advocates interested in working with ATC can contact JulianaAUSTIN Gonzales at Juliana@ LAWYER AL AL housing-rights.org.

MARCH 2018 | AUSTINLAWYER

Trailblazing Women—Pathfinders Honored at TCWLA Luncheon

he Travis County Women Lawyers’ Association recently honored three local attorneys with Pathfinder Awards. Judge Harriet Murphy, Christine Henry Andresen, and Sara Foskitt were recognized at a luncheon held on January 25, 2018, at the JW Marriott. Pathfinders are role models and trailblazers—local female attorneys who have made significant contributions to the legal community by forging a path for others to follow in their footsteps. Judge Murphy grew up and attended school in Georgia, where she received her undergraduate degree from Spellman College. She taught government at Prairie View A&M before arriving at UT School of Law in 1966. Discrimination at UT Law was unlike anything she had ever faced in Georgia. She was told by some she would not be allowed to graduate. When she did, she was told by those same people she would not pass the Bar exam. But the naysayers were wrong. Judge Murphy did graduate from UT Law and did pass the Texas Bar exam. Judge Murphy became the first African-American female judge appointed to the bench. She was appointed as a municipal judge in 1973, a position she held for more than 20 years, during which she served as presiding judge. She was a founding member of the

AUSTINLAWYER | MARCH 2018

Austin Urban League, the Black Lawyers Association, and the Travis County Women Lawyers Association. Judge Murphy’s life and career were recently highlighted on StoryCorps by KUT. Christine Henry Andresen has been on the forefront of cutting-edge family law, including assisted reproductive technology, surrogacy, and adoptions for straight, LGBT, and single persons desiring to become parents. She described using creative tactics in key cases, explaining how she sometimes has to “pound square pegs into round holes” when trying to convince judges to apply the law in favorable ways to her clients who are in novel situations. Andresen closed with encouragement to other attorneys to “be a nerd” about the areas of practice they are passionate in order to gain work and experience in those areas. Sara Foskitt was told she needed to go to community college. She ignored her guidance counselor’s advice and went directly to college and then to law school. Since she attended law school out of state, she knew it would be a challenge to start her career in Austin as a newcomer without alumni support and contacts. She took an unpaid internship at the Travis County District Court, which opened doors. Foskitt worked hard to network within the legal commu-

2018 TCWLA Pathfinder award winners (from left) Sara Foskitt, Judge Harriet Murphy, and Christine Henry Andresen.

Pathfinders are role models and trailblazers—local female attorneys who have made significant contributions to the legal community by forging a path for others to follow in their footsteps. nity and to become a mentor to younger attorneys, helping them create their own networks. She put into place a formal mentoring program with the Austin Bar Association in 2011. Interestingly (but not surprisingly), Foskitt was mentored during her career by three prior Pathfinders: Judge Darlene Byrne (2013), JoAnn Merica (2015), and Justice Cindy Olson Bourland (2004). Ever the

entrepreneur, Foskitt eventually opened a real estate brokerage firm of lawyers. Her husband, Dave Floyd, is also a part of that business—Floyd Real Estate. She still has a law practice and also runs a title office—she enjoys both the law and real estate. To younger attorneys, she advises: “Envision yourself at the pinnacleAUSTIN of your career and LAWYER AL AL make goals to get there.”

Celebrating 125 Years of the Austin Bar Association Pioneering Texas Women Lawyers In honor of the 125th anniversary of the Austin Bar, we are taking a look back at its history in each Austin Lawyer issue throughout the year. The following is an excerpt from “Austin Lawyers-A Legacy of Leadership and Service,” page 77.

he first women to graduate from the University of Texas School of Law were Irene Brown and Rose Zelosky, who both graduated in 1914. Anna Irene Sandbo was the first woman to receive a Masters of Law degree from the law school and the first to practice law in Austin. She worked as a teacher before marrying Austin attorney and Austin Bar member Anders O. Sando in 1911, and became interested in law during her marriage. She later told a newspaper reporter, “I said to myself, well, he practices law, why can’t I? I’m just as smart as he is. I’ve always had a good opinion of myself. You can’t go very far without that.” She graduated from law school in 1916 and entered her husband’s practice shortly thereafter. Sandbo took over her husband’s practice when he died in the 1920s, and became wellknown for running a “cram” course preparing University of Texas students for the state Bar exam, coaching hundreds of aspiring young lawyers including early black and women lawyers. Hortense Sparks Ward was a champion of women’s rights, a suffrage leader, and the first woman admitted to the Texas Bar. In 1908 she married Houston attorney William Henry Ward, who later became a county judge. In 1910, after passing the bar examination and being admitted to the Bar, she began practicing with her husband. Fearing that her appearance might prejudice all-male juries, she did not appear in court, and limited her work to writing briefs

125

years

1. Hortense Sparks Ward; 2. Rose Zelosky; 3. Irene Brown; 4. Anna Irene Sandbo. Photos courtesy of Tarlton Law Library. 5. “All-Woman Supreme Court,” 1925, featuring, left to right, Ruth Brazzil, Hortense Sparks Ward, and Hattie Henenberg. Photo courtesy of the State Bar of Texas Archives Department.

I said to myself, well, he practices law, why can’t I? I’m just as smart as he is. I’ve always had a good opinion of myself. You can’t go very far without that. — Anna Irene Sandbo and consultations. In 1915, she and her husband were admitted to practice before the U.S. Supreme Court. She became known as a champion of women’s rights, and personally lobbied for many social reform measures in the

early 1900s. She worked to get the Married Woman’s Property Law of 1913 passed by the Texas Legislature. She also campaigned for a 54-hour week for women in industry, a women’s division in the state department of labor,

a domestic relations court, and the right of women to serve as officers of corporations. An ardent prohibitionist who believed that alcohol was detrimental to a civilized society, she coauthored the state prohibition constitutional amendment in 1919. As president of the Houston Equal Suffrage Association in 1918, she was sent to Austin by the state suffrage organization to help lobby Governor William P. Hobby and the legislature on behalf of a bill allowing women to vote in state primary elections, which AUSTIN LAWYER AL AL passed in March 1918. MARCH 2018 | AUSTINLAWYER

Midnight in Miami—15th Annual Austin Bar Foundation Gala Annual Event Raises Money for Legal-Related Programs and Charities

ore than 550 members of Austin’s legal community attended the 15th annual Austin Bar Foundation Gala on Saturday, Jan. 20, 2018 at the JW Marriott in downtown Austin. The evening’s theme was “Midnight in Miami” and featured palm trees, a neon art

the Arts (TALA), Volunteer Legal Services, and many others. For more information on the many programs, scholarships, and grants provided by the Foundation, visit austinbar.org/ foundation/about. A special “Fund a Need” segment of the live auction raised almost $10,000 for the Justice Mack Kidd Fund. This fund,

The Gala raised approximately $80,000 for the Austin Bar Foundation, which supports and expands the provision of legal-related charitable and education programs in Central Texas.

TOP: Austin Bar president Amy Welborn with the evenings’ award winners. LOWER: Members of the Austin Bar enjoying the 15th annual Austin Bar Foundation Gala at the JW Marriott.

AUSTINLAWYER | MARCH 2018

deco backdrop of the Miami in cooperation with the Texas skyline, sleek modern furniture, Lawyer’s Assistance Program of and a photo booth complete with the State Bar of Texas, provides a life-sized cardboard standup financial assistance for counof Don Johnson. In addition seling and medical treatment to enjoying cocktails, dinner, on a short-term basis for Austin dancing, and casino games, atattorneys and UT law students tendees generously raised funds suffering from depression or by purchasing raffle tickets for a related illnesses. The fund is variety of exclusive gift baskets, completely confidential. For and bidding on luxurious live more information, or to make auction items including trips to a contribution, go to austinbar. locales such as Crested Butte, org/for-attorneys/assistance-proCO., Costa Rica, and Argentina. grams/justice-mack-kidd-fund. The Gala raised approximateDuring the evening, seven ly $80,000 for the Austin Bar outstanding attorneys were Foundation, which supports honored for their immense and expands the provision of contributions to Austin’s legal legal-related charitable and educommunity, and the community cation programs in Central Texat large. The awards and award as, including Austin Adoption recipients were as follows: Day, Free Legal Advice Clinics • Distinguished Lawyer for Veterans, the Self-RepresentAward – Clarke Heidrick, ed Litigant Project, the DiverJr., Rev. Joseph C. Parker, Jr., sity Fellowship Program, and and Betty Balli Torres; scholarships for Texas LGBT law • David H. Walter students, in conjunction with Community Excellence the Austin LGBT Bar AssociaAward - Randy Cubriel and tion. The Foundation also has Caitlin Haney Johnston; awarded more than $132,000 in • Larry F. York Mentoring grants to organizations in Central Award – Tracy Walters Texas such as CASA of Travis McCormack; and County, American Gateways, • Joseph C. Parker, Jr. Austin Tenants Council, Texas AUSTIN Diversity Award – Richard LAWYER AL AL Accountants and Lawyers for Peña.

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Sam Sparks: Man, Myth, Mentor BY NINA HESS HSU, KEITH HENNEKE, AND KATHERINE CHIARELLO

any articles have already been or will be written about the man, the myth, and the legend that is Judge Sam Sparks. As he transitions to senior status after 26 years of exemplary service as a United States District Judge, we have been asked to share a few words about Judge Sparks as his former law clerks. Judge Sparks hires most of his law clerks for two-year terms because, as he likes to remind us, it takes a year to become truly useful. Two years went by in a flash, and most of us acknowledge that it was the best legal job we will ever have. Although he has a reputation for being stern and demanding in his courtroom, in chambers he is kind and patient (yes, patient) while still expecting excellent work from his clerks. His great sense of humor made even the most difficult days more bearable.

(from left) Nina Hess Hsu, Judge Sam Sparks, Katherine Chiarello, and Keith Henneke

He also made a point of going over the juror questionnaires so that we learned how the jury viewed the proceedings, the evidence, and the lawyers.

A favorite and repeated lesson was about how to conduct ourselves with the Court and opposing counsel. He drilled into us that credibility is everything. He made sure we understood that it is never worth compromising your credibility with a judge or your peers for a victory. To us, Judge Sparks is a larger than life and incredibly wise mentor with a big heart. Judge Sparks taught his clerks how to be prepared before entering the courthouse, how to treat other lawyers and opposing counsel, and how to advocate zealously on behalf of our future clients. He taught us these lessons through his words and actions, but also by quizzing us in chambers about what the advocates did well or not so well that day. 10

AUSTINLAWYER | MARCH 2018

easily have been resolved if they had just taken the time to talk face to face over a cup of coffee or something a little stronger. He led by example in teaching us that no matter how bright you are, there is no substitute for hard work. No clerk ever worked harder than Judge Sparks himself, who could often be found at his desk on weekends. But he recognized the practice of law can overtake your personal life, so he taught us to, after working the long and hard hours, leave our work at work. Judge Sparks frequently astonished us with his uncanny ability to read people, especially juries. He instilled in us a belief that the ability to serve on a jury was one of our highest and best callings as Americans. He was fond of saying that, in all of his years of practice, he never saw a jury do an unreasonable thing. We, the former clerks, know how proud Judge Sparks is of us. To hear him tell it, each of us is the most talented lawyer in our respective areas of expertise. We think the same of him. For us, his former clerks, he has been

the best kind of role model, mentor, and proud champion for our careers. He has left his mark on all of us, and we are all better lawyers and, more importantly, better people because of him. We look forward to watching him enjoy lifeâ&#x20AC;&#x201D;both on and off the benchâ&#x20AC;&#x201D;as heAUSTIN begins this new LAWYER AL AL chapter as a senior judge.

Austin Bar/AYLA Leadership Academy Holds Opening Retreat Twenty-Five Class Members Begin 2018 Leadership Program

n January 18, 2018 the newly selected Austin Bar/Austin Young Lawyers Association Leadership Academy class members met for an opening retreat as they began their six-month leadership training program. The all-day retreat was held at the State Bar of Texas Law Center, where participants learned about the purpose of the Leadership Academy, networked with one another, and received a tour of the Texas Supreme Court guided by Justice Debra Lehrmann. Participants also learned about ways to become involved in the community from Leadership Academy co-founder David Courreges, Travis County Judge Eric Shepperd, State Bar of Texas President Tom Vick, State Bar of Texas Executive Director Trey Apffel, Austin

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Members of the 2018 Austin Bar/AYLA Leadership Academy Class with Justice Debra Lehrmann (seated center) at the Supreme Court of Texas.

Bar Association President Amy Welborn, and AYLA President Austin Kaplan. The 2018 class is made up of 25 incredibly diverse members with a variety of practice areas, firm sizes, firm types, and levels of experience. The Leadership

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Academy was established to Williams, Terria Hutchinson, help local lawyers find ways and Michael Roberts. to make a positive impact in Congratulations members of the community, serve in local the 2018 Austin Bar/AYLA bar associations, and develop Leadership Academy: professional leadership skills. Ryan Alter Following the opening retreat, James Brandon Barnes the Leadership Academy offers Ray Elliott Beck, Jr. a series of five monthly presenAlex Brown tations for participants to engage and network with local leaders Logan Bauerle Campbell in public policy, government, Kristina A. Chung the private sector, non-profit Salvador Davila organizations, and bar associSam Denton ations. Past presenters include Kristine Laudadio Devine Senator Kirk Watson, Mayor C. Daniel DiLizia Steve Adler, Travis County Civil Robert Carl Frazer District Judge Karin Crump, Sarah Tudor Glaser and Travis County Judge Sarah Eckhardt. Kristie J. Iatrou The Leadership Academy Lacey Kalbas includes a class project in which Wylie Emmett Kumler participants seek to have an Blair Jackson Leake impact on their community. The ant McLoughlin program culminates with a gradRyan Eric Meltzer uation ceremony at which local GrJenna Reblin bar leaders provide information Adrian Matthew Resendez on next steps for community involvement. For those interested Marshall Sales in applying to future Leadership Marshall A. Thompson Academy classes, applications Claire Vaho are typically accepted in NoScott Weatherford vember for the class beginning Taylor Ryan Yetter the following January. AUSTINLAWYER This yearâ&#x20AC;&#x2122;s organizing com- AL AL mittee includes co-chairs Emily Morris and Meghan Kempf, and members Margaret Chen Kercher, Jason Gorman, Ayeola MARCH 2018 | AUSTINLAWYER

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AUSTINLAWYER | MARCH 2018

OPENING STATEMENT

Improving Others’ Writing Be a Better Editor and Teacher BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

awyers are editors, and not only of our own work—we often edit others’ writing. An edit that improves the writing is great, but a good edit can also improve the writer. So lawyers are teachers, too. How are we doing? It’s mixed. In this column I’ll mention three recurring problems and some suggestions for improvement.

1. “I get no writing feedback.”

Lack of feedback is understandable. Lawyers are busy, and getting the document done is more important than helping junior lawyers improve their writing. And junior lawyers should be responsible for their own improvement, right? Yet without even minimal feedback, it’s hard to improve. There are no easy solutions to this recurring problem. As Bryan Garner noted, “The modern … well-managed law firm has more work to do than it can complete in a given time.”1 Sometimes what’s lost is teaching—including teaching writing. So granting that it will be difficult, I still urge junior lawyers to ask for feedback, and senior lawyers to try to give at least some. 2. “The writing feedback I get is wrong.”

I occasionally hear this from former students, and I’ve even written about it.2 It’s great that the senior lawyer is editing the document and offering feedback, but sometimes the junior lawyer disagrees with the edits or believes they’re bad writing. What to do? Junior lawyers, always do your best to meet your supervisor’s expectations, even if

you disagree with them. I often quote legal-writing expert Ken Bresler: “I teach legal writing. I don’t run a job-placement service. Write how they want you to write.”3 And before you assert that your boss is mistaken, look it up. Both younger and older lawyers often rely on rules and conventions they vaguely recall from high school or college. But there are several authoritative, comprehensive legal-style references available, and I’ve listed three good ones in the footnotes.4 Of course, in legal writing, a senior lawyer’s practical knowledge and insights can outweigh a technically correct writing choice, but consulting an authoritative reference promotes consistency and raises everyone’s writing IQ. 3. “The writing feedback I get is useless or mean.”

Given how busy lawyers are, it’s not surprising that editorial feedback is sometimes vague or unkind. Yes, junior lawyers should develop a thick skin and try to learn from the comments.

But senior lawyers can also be more helpful. Three suggestions: First, sending back a track-changes version in which you rewrote the document the way you like is better than no feedback at all, but not much. If that’s all you have time for, fine, but some level of feedback is desirable. (For a junior lawyer who isn’t getting feedback, finding the senior lawyer’s final version and preparing your own track-changes document is one way to learn.) Second, if you give feedback, try to avoid cryptic or vague comments and harsh or personal criticism. Cryptic comments are often abbreviations or vague descriptors: “nom.,” “BB,” “I can’t follow this,” or “Needs work.” They’re usually unhelpful. Harsh criticisms are often labels: “Terrible!” Or they address the writer, not the work, often assuming the writer is sloppy or lazy, not merely inexperienced: “Is this the best you can do?” or “Next time, run a spell check.” Third, if you can make the time, try these best practices for writing feedback: Provide

at least some positive comments so the writer knows what techniques work and can repeat them. Write comments that not only identify a concern but also suggest ways to address them. And if you have time, provide a short summary of the strengths and weaknesses in addition to line-by-line comments.5 Being an editor and a teacher takes effort—and time, which lawyers don’t always have. But tryAUSTIN these tips to avoid the bigLAWYER AL AL gest problems. Footnotes: 1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 533 (3d ed. 2011). 2. Wayne Schiess, What to Do When a Student Says, “My Boss Won’t Let Me Write Like That,” 11 Perspectives: Teaching Leg. Res. & Writing 113 (Spring 2003). 3. Ken Bresler, Pursuant to Partners’ Directive, I Learned to Obfuscate, 7 Scribes J. Legal Writing 29, 30 (2000). 4. Bryan A. Garner, The Redbook: A Manual on Legal Style (3d ed. 2013); Joan Ames Magat, The Lawyer’s Editing Manual (2008); Deborah E. Bouchoux, Aspen Handbook for Legal Writers (3d ed. 2013). 5. Anne Enquist, Critiquing Law Student’s Writing: What the Students Say Is Effective, 2 Legal Writing: J. Legal Writing Inst. 145 (1996).

MARCH 2018 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Jeffrey Connelly Candice Deterle ABOVE: Burton, Ciccone, Erwin, Houchin, Knight, Mangrum. LEFT: Phillips, Whellan

Andrew Gray Jason Howeth Taylor Pearson Leslie Reynolds Megan Turner

AWARDS

Governor Greg Abbott has appointed William Allensworth to the Texas Facilities Commission. The commission manages state government buildings and handles the sale of surplus property, including property donated to the state by federal programs. Congratulations to Jessica Mangrum of Thompson Coe Cousins & Irons, Bill Erwin of the Chapman Firm, and Tony Ciccone of Kiester Ciccone Boller for becoming board certified in Construction Law by the Texas Board of Legal Specialization. NEW TO THE OFFICE

Susan Burton has joined Austin-based labor and employment boutique Cornell

Smith Mierl Brutocao Burton. She represents employers and executives at the newly renamed firm.

including eDiscovery, motion practice, and complex multiparty disputes. Travis Phillips and Michael Whellen have joined Armbrust & Brown. Phillips is a transactional commercial real estate attorney and Whellan represents developers in landuse and business matters at the courthouse and before city and county government.

Ten lawyers have joined McGinnis Lochridge. The new lawyers include partners Ed McHorse, Cliff Ernst, Clark Lutz, Martin Lutz, Doug Jones, and Russell Booth, along with associates Alison Lenner, Shana McGirl, and Martha Todd, and Of Counsel Ali Gallagher. Alex Gonzales and Pierre J. Hubert have joined Duane Morris as partners in the firm’s Corporate and Intellectual Property practice groups, respectively. Karly A. Houchin has become an associate with Allensworth & Porter, an Austin-based construction law firm. She assists clients in litigation,

MOVING ON UP

S.W. “Whitney” Knight was promoted to partner at Allensworth & Porter. Knight has been with the firm since 2012, and her practice focuses on assisting design professionals and owners in contract drafting and negotiation, risk management, professional liability, and dispute resolution.

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AUSTINLAWYER | MARCH 2018

Austin Bar Members Run for State Bar Board of Directors

he State Bar of Texas is governed by a board of directors who volunteer their time and professional experience. The board’s expertise allows the State Bar to provide high-quality services and programs to members and the public. The board receives no monetary compensation and is elected by State Bar members. Ballots for district director elections will be mailed on April 2 and voting will continue

through May 1 at 5 p.m. District 9 currently holds three places with directors: Leslie Dippel, Place 1; Chris Oddo, Place 2; and Ann Greenberg, Place 3. Greenberg’s term is expiring and Austin Bar President Amy Welborn and Austin Bar member Jay Harvey are running to fill her place. Amy Welborn received her B.J. (public relations) and her B.A. (government) from the University of Texas, and her J.D. from the University of Texas School of Law. She is a partner at Haw-

kins, Parnell, Thackston & Young. A trial lawyer who litigates cases throughout the state of Texas, her practice areas include business litigaHarvey tion, personal injury defense, trucking law, construction law, intellectual property litigation, and administrative law. Welborn

Welborn

first became a director of the Austin Bar Association in 2002. She served as the president of the Austin Young Lawyers Association and currently serves as president of the Austin Bar. She has served as the chair of numerous Austin Bar and AYLA committees, including the Judicial, Bench Bar, Social, and Gala committees. She has served on the board of the Lawyer Referral Service, serving as chair in 2008. She served on the Young Leaders Committee of the Texas Association of Defense Counsel, and on the boards of the YMCA, Northwest Little League, and the Goodwill Ball. Welborn received the Outstanding Committee Chair award from AYLA and the Austin Bar in 2005 for her efforts in organizing the Bench Bar Conference, and the Outstanding Committee Chair Award in 2012 for her efforts with Disaster Relief. In 2012, she received the Pro Bono Award from the Travis County Women Lawyers Association. Welborn was the Austin Under 40 Legal Person of the Year in 2013, has been named a Super Lawyer Rising Star, and is AV rated Preeminent. When not practicing law or working on a bar project, Welborn can be found watching her two sons play baseball, soccer, football, lacrosse, basketball, golf, and tennis. Jay Harvey received his B.S. from West Texas State University and his J.D. from Texas Tech University. He is admitted to practice before the U.S. Court of Appeals, Fifth Circuit, U.S. continued on page 16 MARCH 2018 | AUSTINLAWYER

LRS Thanks LegalLine Volunteers

he Lawyer Referral Service of Central Texas would like to thank the LegalLine attorney volunteers who donated their time for the January and February events. The volunteers tended to more than 100 phone calls from the public and answered their legal questions. Great job! Thank you to: Andrew Bernick Hilton Moore

LRS would also like to recognize TacoDeli for their support of the community program through their donation of tacos for the February LegalLine attorney volunteers. Thank you, TacoDeli!

Troy Bolen Stephen Moss Jackson Gorski Matt Rueda Liliana Leon-Fores William Russell Jennifer MacGeorge Robert Vela LegalLine is a free community service that provides legal advice to the community via phone, free of charge, every

first Tuesday of each month. To learn more about how to become a member of LRS, email AUSTIN LAWYER AL AL referrals@austinlrs.org.

continued from page 15

District Court, Northern, Western and Southern Districts of Texas, United States Court of Federal Claims, and the Supreme Court of the United States. He is board certified in personal injury trial law by the Texas Board of Legal Specialization and practices in the areas of medical and legal malpractice, nursing home negligence, and personal injury. Harvey is a member of the American College of Trial Lawyers, International Academy of Trial Lawyers, American Association for Justice, American Trial Lawyers Association, American Board of Trial Advocates, Texas Trial Lawyers Association, and Capitol Area Trial Lawyers Association. He is a Fellow of the State Bar of Texas and is on the Supreme Court Task Force to Expand Legal Services Delivery. Harvey served on the State Bar of Texas Pattern Jury Charges Committee. He served as the President of Capital Area Trial Lawyers Association in 2003, and as the legislative chairman for the 79th Legislative session for the Texas Trial Lawyers Association. He served as president of Texas Trial Lawyers Association in 2007 and as president of the Austin Chapter of the American Board of Trial Advocates in 2013. He is listed in The Best Lawyers in America (2005-2017) and Texas Super AUSTIN LAWYER AL AL Lawyers (2003-2017). 16

AUSTINLAWYER | MARCH 2018

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Travis County Gets New Court and New Judge The Honorable Dustin Howell is Sworn in to the 459th District Court

n Jan. 12, 2018, the Honorable Dustin Howell was sworn in as the newest judge in Travis County. Appointed to the newly created 459th District Court by Gov. Greg Abbott, Judge Howell was welcomed to the bench during an investiture ceremony with a reception immediately following at the Heman Marion Sweatt Courthouse. The

St. David’s Episcopal Church. Following a welcome by Austin Bar President Amy Welborn, the Honorable Wallace B. Jefferson, former Chief Justice of the Supreme Court of Texas, administered the oath of office. Judge Howell remarked, “It was a great honor to share this ceremony with friends and family from all phases of my life. I’m excited about this opportunity to

It was a great honor to share this ceremony with friends and family from all phases of my life. I’m excited about this opportunity to serve, and I’m grateful to everyone who made it possible. Honorable Lora Livingston, of the 261st District Court, presided. An invocation was given by Rev. Chuck Treadwell, rector at

serve, and I’m grateful to everyone who made it possible.” Judge Howell most recently practiced appellate law at

Former Chief Justice of the Supreme Court of Texas, the Honorable Wallace B. Jefferson, delivers the oath of office to the Honorable Dustin M. Howell as his family and Judge Livingston look on on.

McKool Smith. Previously, he represented the State of Texas in appeals as an assistant solicitor general for the attorney general’s office. A graduate of Texas Tech

University Law School, he was a law clerk for former Chief Justice Jefferson, and served as board chair of theLAWYER Texas Young AUSTIN AL AL Lawyers Association.

Patrick

Keel Former District Judge

Mediator Arbitrator

patrickkeel.com (512) 293-0300 MARCH 2018 | AUSTINLAWYER

THIRD COURT OF APPEALS CIVIL UPDATE

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 a partner at Ikard Ratliff P.C.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during January 2018. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of February 5, 2018.

ENGINEER LIABILITY: Certificate-of-merit affidavit satisfies statutory standard. Jaster-Quintanilla & Assocs., Inc. v. Prouty, No. 03-16-00793CV (Tex. App.—Austin Jan. 12, 2018, no pet. h.). After sustaining a worksite injury, Prouty sued the firm that designed and engineered the structural components of an overhead can-

opy. Jaster challenged Prouty’s certificate-of-merit affidavit. The trial court denied the challenge. According to the court of appeals, the certificate-of-merit requirement obligates a plaintiff to obtain an affidavit from a third party attesting to defendant’s professional errors and the factual basis to demonstrate that the claims are not frivolous. Prouty’s expert opined that the anchorage system used to support the canopy had a deficient design detail and failed to achieve the necessary strength to support the connection of canopy to the concrete pier. The court concluded Prouty’s expert met the statutory requirement and affirmed. PROBATE: Court reverses trial court’s refusal to probate will as a muniment of title. Ramirez v. Galvan, No. 03-1700101-CV (Tex. App.—Austin Jan. 10, 2018, no pet. h.) (mem. op.). After his wife, Olivia, died, Ulises distributed her property pursuant to her will. The will left Olivia’s interest in their home to Ulises. Several years later when trying to sell the home, Ulises discovered that he could not transfer title without probating the will. The application was filed more than four years after her death. Olivia’s children by a prior marriage opposed the application. The trial court denied the application. The court of appeals

observed that Estates Code §256.003(a) allows a will to be probated as a muniment of title more than four years after death if the proponent has a reasonable excuse. A proponent’s belief that probate was unnecessary constitutes a sufficient excuse. According to the court, Ulises reasonably explained the delay. He believed he had carried out the terms of the will and only discovered the title problem when he tried to sell the house. The court reversed and remanded. ADMINISTRATIVE LAW: Untimely motion for rehearing bars lawsuit. Fisher v. Public Util. Comm’n, No. 03-16-00540-CV (Tex. App.—Austin Jan. 11, 2018, no pet. h.). Appellants sought judicial review of a PUC order that approved the transfer of a water-service area. Appellants received the PUC’s order on January 15, 2016, and filed a motion for rehearing on February 5. The trial court granted PUC’s plea to the jurisdiction, concluding the motion for rehearing was untimely. Appellants argued that the 2015 amendment to the APA that changed the motion-for-rehearing deadline from 20 to 25 days applied. According to the court of appeals, the amendment applied to administrative hearings that were set on or after September 1, 2015. The parties’ hearing was in July 2015.

The court of appeals rejected Appellants’ argument that the term “administrative hearing” included all proceedings, even the agency’s final order. The court affirmed. ORIGINAL PROCEEDING: Court reverses order modifying children’s primary residence. In re Coker, No. 03-17-00862CV (Tex. App.—Austin Jan. 23, 2018, orig. proceeding) (mem. op.). Diggs sought to modify the parties’ final decree and restrict Coker’s right to designate the primary residence of their three youngest children. Since the decree was signed, Coker moved the children to Amarillo. The trial court granted the modification. The court of appeals applied the “significant impairment” standard in reviewing the modification of the primary residence. The original decree gave Coker the exclusive right to determine the children’s residence without geographic restriction. The modification changed the parent who has the right to determine residency and changed the geographic area. According to the court, traveling difficulties and Coker’s alienation of the children from Diggs did not significantly impair the children’s health or emotional development. The court concluded that the trial court abused AUSTIN its discretion and LAWYER AL AL granted mandamus relief.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

The cases summarized are from July 2017 and subsequent histories are current as of February 1, 2018.

ATTENUATION DOCTRINE: Evidence seized during purportedly unlawful traffic stop should not have been suppressed because discovery of evidence was sufficiently attenuated from and independent of stop. State v. Worrell, No. 03-1600749-CR (Tex. App.—Austin Jul. 26, 2017, pet. ref’d) (mem. op., not designated for publication). According to the evidence presented at the suppression hearing, a sheriff’s deputy had observed a dump truck parked in an abandoned gas station that was known for illegal dumping activity. The deputy initiated a traffic stop on the truck after it left the premises, despite not having observed the truck dump anything onto the property. During the stop, the deputy learned that Worrell, the driver of the truck, had an active warrant. The deputy then detained Worrell and eventually arrested him. At some point following the arrest, the deputy discovered evidence of narcotics possession. Worrell filed a motion to suppress the evidence, which the trial court granted. The trial court concluded that the stop was not supported by reasonable suspicion, that “the discovery

of the warrant would not have occurred but for the police misconduct,” and that the intervening discovery of the warrant did not attenuate the illegality of the stop. The appellate court disagreed and reversed. The court focused its analysis on the federal attenuation doctrine, which provides that “evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.’” The court examined three factors: (1) the temporal proximity of the stop to the seizure of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. The court first observed that the narcotics were not discovered until approximately two hours after the traffic stop had been initiated, which weighed against suppression. The court also concluded that the deputy’s discovery of the outstanding arrest warrant weighed against suppression. The court explained that the search that yielded the narcotics “was conducted only after Worrell had been arrested for the outstanding warrant and was a result of that arrest, not a result of the traffic stop.” Finally, the

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court determined that there was nothing in the record to support the trial court’s finding that the deputy had engaged in any purposeful or flagrant misconduct in initiating the traffic stop. Concluding that all three attenuation factors weighed against suppression, the appellate court reversed the trial court’s suppression order. CUSTODIAL INTERROGATION: Police questioning of DWI suspect during roadside encounter did not rise to level of custodial interrogation; thus statements made during questioning should not have been suppressed. State v. Dewbre, No. 03-1500786-CR (Tex. App.—Austin July 31, 2017, pet. ref’d) (mem. op., not designated for publication). Prior to his trial for DWI, Dewbre filed a motion to suppress incriminating statements that he had made to police officers after police had found Dewbre unconscious in the driver’s seat of his parked vehicle. Dewbre claimed that the statements were made in response to custodial interrogation, and he had not been warned of his Miranda rights prior to making them. The trial court granted the motion to suppress, concluding that during the encounter, Dewbre “was more than simply detained, he was in custody.” The appellate court disagreed and reversed. The appellate court explained that none of the recognized custody situations was supported by the record. Instead, the evidence showed that “Dewbre was not deprived of his freedom of action by police beyond the extent necessary to conduct a brief investigation based on signs of intoxication, Dewbre was not transported from the scene, Dewbre was not told [prior to making the incriminating statements] that he was being charged with DWI, and [the arresting officer] informed Dewbre that he would be free to

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.

leave once [the officer] determined that he was safe to drive.” The trial court had placed significance on evidence tending to show that Dewbre’s vehicle had been immobilized by the police and emergency responders, that the police had seized the keys to Dewbre’s vehicle, and that police had “physically directed his movement away from his vehicle.” However, the appellate court determined that these and other circumstances were consistent with an investigative detention, not custody. For these and other reasons, the appellate court concluded that the record did not support the trial court’s determination that Dewbre was in custody, and thus his statements should not have been AUSTIN LAWYER AL AL suppressed.

MARCH 2018 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Where Have You Been? Questions at the Intersection of Technology and Privacy 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.

an the government obtain historical location data from a subject’s cellphone carrier without a warrant, using it to prove the subject’s location on a certain date? Does the average cellphone user have any expectation of privacy in that historical location data, even though it resides with the user’s carrier, rather than within the user’s own phone? The U.S. Supreme Court heard oral argument on these questions in November, with an opinion expected later this spring. The case, United States v. Carpenter1, involved an investigation into a string of armed robberies in Michigan and Ohio. The government obtained the records under the provisions of the Stored Communications Act, which allow access to such records upon a “disclosure order,” in which a judge can order disclosure of such records by finding only that the government “offers specific and articulable facts showing that 20

AUSTINLAWYER | MARCH 2018

there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.”2 In the Carpenter case, the records covered 127 days of the suspect’s cellphone use. The lower courts ruled that since the statute permitted the disclosure without a search warrant—which requires a judge to find probable cause that a crime has been committed and that relevant evidence will be discovered in a place that law enforcement seeks to search— the records were not the fruit of an illegal search. The defendant argues that the Fourth Amendment prohibits a warrantless search into this data, because a cellphone customer has a legitimate expectation of privacy in his or her historical location data, and that the statute is therefore unconstitutional to the extent that it imposes a lesser burden on the government.

argument, seemed sympathetic to the idea that geographic location data produced by cellphone use should be held to a higher standard of privacy, such as is applied to medical records.3 The Court has previously held that a warrant is required to search the contents of a cellphone,4 and that putting a GPS tracking device on a suspect’s vehicle without a

This type of evidence is being used more and more often in prosecutions for serious crimes, since being able to pinpoint the location of a defendant at or near the scene of a crime at a given time can be compelling evidence of guilt. In many similar cases, courts have held that a customer has no reasonable expectation of privacy in records held by a “third party,” but the lower courts in this case relied on 40-year-old precedent which may or may not still apply to the vast amount of digital data that users of modern communication devices create. Justice Ginsberg, in her questioning of the attorneys during oral

court order is a violation of the Fourth Amendment5, so there does appear to be a growing concern about the intersection of technology and privacy. This type of evidence is being used more and more often in prosecutions for serious crimes, since being able to pinpoint the location of a defendant at or near the scene of a crime at a given time can be compelling

evidence of guilt. Whether a warrant is required to access this data from a cellphone carrier will be important for trial courts to know as the volume of this type of evidence increases AUSTIN LAWYER AL AL in criminal cases. Footnotes: 1. 137 S. Ct. ___ (cert. granted June 5, 2017); decision below at 2013 WL 385838 (6th Cir. Apr. 13, 2016) 2. 18 U.S.C. § 2703(d) 3. Amy Howe, Argument analysis: Drawing a line on privacy for cellphone records, but where?, SCOTUSblog (Nov. 29, 2017, 2:43 PM), http:// www.scotusblog.com/2017/11/ argument-analysis-drawing-line-privacy-cellphone-records/ 4. Riley v. California, 134 S.Ct. 2473 (2014) 5. U.S. v. Jones, 123 S.Ct. 945 (2012)

FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued from the U.S. Court Of Appeals for the Fifth Circuit and U.S. District Court for the Western District of Texas. The summaries are intended as an overview; counsel are cautioned to review the complete opinions.

REMOVAL: The clock for the removal deadline began upon receipt of a deposition transcript, not the date of the actual deposition, because that was when defendant could first “ascertain” possible grounds for removal. Morgan v. Huntington Ingalls, Inc., No 17-30523 (5th Cir., Jan. 11, 2018): Defendants filed a notice of removal 30 days after receiving the transcript from Plaintiff’s deposition (and 38 days after the actual deposition), arguing that Plaintiff’s responses gave the Defendants grounds for removal under 28 U.S.C. § 1442, the federal officer removal statute. The district court held the removal was untimely and remanded the case. The Fifth Circuit on appeal applied the language of 28 U.S.C. § 1446(b) (3), the provision governing the timeliness of removals, and held that the receipt of a deposition transcript constituted the moment when the defendant could “ascertain” from “other paper” possible grounds for

removal. The Court also noted that requiring removal on the day of deposition could cause defendants to remove immediately, without having the chance to review the record and confirm whether they can remove. Depositions also might last several days, affecting whether a defendant could ultimately remove based on deposition testimony. Finally, the Court noted connecting the removal deadline to the receipt of the deposition transcript allows defendants to be able to submit concrete evidence to support removal. The Court therefore vacated the order of remand to state court. BANKRUPTCY: Chapter 13 debtors claiming federal exemptions under § 522 of the Bankruptcy Code can exempt 100 percent of their interest in an asset. Peake v. Ayobami, No. 16-20589 (5th Cir., Jan. 3, 2018): In the bankruptcy court, the parties requested certification regarding whether the debtor could claim 100% of the fair market value, up to the applicable statutory limit of certain assets. The bankruptcy trustee argued that allowing such an exemption effectively removes the entire asset from the bankruptcy estate. The bankruptcy court then certified a question for appeal to the Fifth Circuit regarding the scope of a Chapter 13 debtor’s claimed exemptions under § 522 of the Bankruptcy Code. The

Fifth Circuit held that a debtor may exempt up to 100 percent of the debtor’s interest in an asset in certain cases because the relevant provisions of § 522 only cap the value, not the percent interest, of the asset a debtor may exempt. The Fifth Circuit, however, explicitly did not decide the related issue of whether claiming an exemption of 100 percent interest in an asset allows the debtor to “walk away” with the asset itself (and perhaps benefit from future appreciation) as it was not part of the question certified. EMPLOYMENT: Plaintiff failed to rebut the employer’s evidence supporting its promotion decision and, therefore, failed to raise a fact issue regarding her Title VII race and sex discrimination claims. Haywood v. Miss. DOC, No. 1760489 (5th Cir., Jan. 15, 2018) (unpublished): Plaintiff, a black female, applied for a promotion to an open field officer supervisor position with the Mississippi Department of Corrections (MDOC). After an interview process, a white male received the promotion. During the application process, Plaintiff was interviewed by a panel, which consisted of a white female, two white males, and a black male. The interview process followed a standard procedure where the panel asked each applicant a set of predetermined questions, applicants were rated on their responses, and then the interviewers would assign a mutual score for each applicant. The white male who received the promotion received the highest interview score, while Plaintiff received the lowest score. An email was then sent asking candidates to re-interview, but no applicants were re-interviewed. The district court held MDOC established a legitimate reason for its promotion decision by providing evidence demonstrating how it scored

Wilson Stoker is board certified in Labor and Employment Law by the Texas Board of Legal Specialization and senior vice president and managing attorney with Welter Law.

applicants. Plaintiff attempted to rebut this reason in several ways, including by arguing that she had a better education, better work experience, and longer tenure than the individual who was promoted. The Fifth Circuit, in affirming the grant of summary judgment in favor of MDOC, held that this evidence alone was not sufficient to show she was “clearly better qualified” than the other individual andLAWYER therefore did AUSTIN AL AL not show pretext.

MARCH 2018 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN AUSTIN KAPLAN KAPLAN LAW FIRM

Let’s Talk Tech endar shows that you are available. The appointment appears on your calendar and theirs, and everyone gets automatic reminders. It’s like magic.

he time has come for SXSW Interactive to take over our downtown, so put on your laminated badge, grab a laptop with stickers on it, and let’s talk law technology. Your firm or organization may be looking to you, fellow young lawyer, for technology solutions. Or, maybe they should. In either case, the tech options to choose from can be overwhelming. So, here are some target areas and options to get started:1

CLIENT COMMUNICATION AND SCHEDULING

Want to improve communications with potential and current clients? You might try a live chat program. Ngage is a popular chat option.2 For a more hands-on experience that integrates with Slack, you might try Chatlio.3 We don’t have flying cars in 2018, but we do finally have functioning web-driven appointment scheduling. Try VCita, which includes some interesting CRM and email blast options.4 Or try Acuity, which has robust and easy-to-use form generation.5 Why try these? Either of these programs integrates with your work calendar, so you can send your clients a link and they can seamlessly book an appointment with you the next time your cal22

AUSTINLAWYER | MARCH 2018

INTERNAL COMMUNICATIONS

Email is probably the most used and least-effective tool for internal communications. Check out Stride (HipChat)6 or Slack for a refreshing alternative. E-SIGNATURES

Every lawyer should consider incorporating e-signatures into their practice. Two popular options are Adobe E-sign (a version of which is included with Adobe Pro DC) and DocuSign. TIME TRACKING

This is no one’s favorite part of practicing law. Good software can make this task somewhat less burdensome. Some modern options include Bill4time,7 TimeSlips, and TimeSolv. Consider whether you could use a practice management solution like Clio, Rocket Matter, MyCase, or PracticePanther to track time instead of a standalone solution. PAYMENT PROCESSING

It is 2018, so you need to accept bitcoin. Just kidding. But you should probably accept credit cards if your customers try to pay you with them. LawPay integrates with lots of other software and comes with intermittent emails containing pictures of Claude Ducloux free of charge. PayPal, Stripe, and Square are

options, but beware potential lurking trust accounting issues. SCANNER

I am always surprised to learn about firms that still rely on 100 percent paper files. Paper is great, but it is expensive to keep and review, and it limits where you can access your files. Migrating from paper to digital is harder than starting out digital. The first step towards migrating is scanning and categorizing new paper as it comes in. Any modern scanner and PDF creator should let you scan directly into searchable PDFs. For scanners, try a desktop model like the Fujitsu ScanSnap. For single page scans on the run, check out the Adobe Scan App or a similar app. CLOUD SERVER

Cloud file systems are now pretty reliable. Popular options include Dropbox, Box, Google Drive, and Microsoft OneDrive. Try them out and see which one fits best into your organization’s workflow. Be sure to have a backup plan in case the server is inaccessible, goes down, or gets taken over by hackers. One big advantage to the modern cloud server is it is fully search-

able. That means even if the only detail you remember about an old matter is that it involved a “Thomas R. ‘Big Tom’ Callahan, Jr.,” you can look that name up and find the probate matter you pursued in 1995. Another big advantage is the ability to share HIPPA-protected documents with clients and counsel by sharing a link to a directory instead of having to fax. NEWSLETTER

Newsletters or email blasts are great marketing tools for firms, non-profits, and everyone else. Try MailChimp or a similar app, and start writing one today. If you receive a newsletter about employment/civil rights from my firm, you’ll know I’m finally taking my own good advice! Try these apps out, look for me at RunwayAUSTIN For Justice, and LAWYER AL AL let me know what worked! Footnotes: 1. Disclaimer: I have only used some of the products mentioned in this article. 2. https://www.ngagelive.com/ 3. https://chatlio.com/ 4. https://www.vcita.com 5. https://acuityscheduling.com/ 6. https://www.stride.com/ 7. https://www.bill4time.com/

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Day of Service a Success

n Jan. 15, 2018, 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: • BookSpring • Austin Parks Foundation

• • • •

HELP Center of Austin Ronald McDonald House Community First! Village Austin Animal Center

AYLA’s participation in the 2018 National Day of Service was a big success, and the participants’ spirit of volunteerism made an impact across our community. Many thanks to the Day of Service Chair Jorge Padilla and the many committee members who helped coordinate this year’s events, including Blair Leake, Kelley Dwyer, and AUSTIN LAWYER AL AL Francesca Di Troia.

AYLA and Austin Bar members and their families and friends volunteering with the Austin Parks Foundation (top), HELP Center of Austin (left), and the Austin Animal Center (right).

AYLA Women’s Resource Fair UPCOMING EVENTS THURSDAY, MARCH 22 AYLA 4th Annual Runway for Justice 800 Congress Ave. 6 p.m. For tickets and sponsorships, visit ayla.org.

Volunteers and Donations Needed for May 5

YLA is organizing the 11th annual Women’s Resource Fair. The event is scheduled for Saturday, May 5, from 9 a.m. to 1 p.m. at the Schmidt-Jones Family Life Center located at 1300 Lavaca St. The Women’s Resource Fair provides hundreds of homeless and low-income women with all types of services, including legal advice, medical exams, haircuts, child care, and a chance to shop for clothing and shoes. Volunteers are needed to assist with setup, cleanup, registration, distributing gift bags, and general duties. If you have any questions or would like to volunteer, contact Jennifer Hopgood at womensresourcefair@ hotmail.com. We are also seeking volunteers to provide legal advice and assistance in the areas of family law, immigration, criminal law, estate planning, bankruptcy/collections, public benefits, landlord/tenant law, and consumer issues, among other matters.

MAY 5 AYLA WOMEN’S RESOURCE FAIR debbie@austinbar.org Donations Appreciated!

Also needed are attorneys who speak other languages or legal staff who can assist as interpreters. Two shifts are available: 1) 9 to 11 a.m. and 2) 11 a.m. to 1 p.m. Please contact Kara Batey at KBatey@branscombpc. com to sign up. Medical professionals (OB/ GYNs, family physicians, ER physicians, nurses, PAs) are needed to provide medical services. Please contact wrfmedical@gmail. com for more information. Donations of gently used women’s clothing of all types and sizes are being sought for inclusion in the clothing closet. Please contact Debbie Kelly at Debbie@austinbar.org if you AUSTIN LAWYER AL AL would like to make a donation. MARCH 2018 | AUSTINLAWYER

ENTRE NOUS

In Voir Dire Straits BY CLAUDE DUCLOUX

THE SCENE

Pat the Lawyer is conducting a voir dire examination of a modern jury panel in a business litigation case. PAT: “Good morning ladies and gentleman, I am Pat Earnest, the lawyer for Jack Folio, the plaintiff in this case. We are here today to choose a jury for a trial in which my client, Mr. Folio, seeks to recover payment for supplies tendered to a building under construction on South Broadway. The jury will be asked to total up unpaid invoices and award attorney fees. I’m sure both sides want this jury to be fair, reasonable and attentive during this trial which will likely take two days. Let me ask you some general questions. First, have any of you been in a trial? Yes, Juror #2?” JUROR #2: “I got a question. Is that guy there Mr. Folio? Or is he using a body double?” PAT: “What? No. This is my client, Mr. Folio.” JUROR #3:“He looks like that guy who operated the slave ring outta that pizza parlor.”

PAT: “Yes, you will use addition.”

Activists? The failing New York Times?”

PAT: “No, I assure you, my client is not involved in any such activity. He sells joists.

JUROR #21: “No way. Addition was invented by the Arabs to trick us.”

Moving on… Juror #5, did you have your hand up?”

PAT: “What?”

PAT: “No. No. They are business records. The judge will admit them when he is confident we provided the right proof.”

JUROR #5: “Joists are illegal in this state. They’ve been poisoned by Antifa. And I hear they’re much more potent than the joists kids smoked in the 70s.”

JUROR #26: “There’s going to be Arabs here? How many? Can we bring guns to court just in case?”

JUROR #15: “Are their emails involved?”

PAT: “No. We’re getting off topic. No guns.”

PAT: “I do expect several emails outlining communications will be produced for the jury to review.”

JUROR #10: “So, you’re saying you’re against the Second Amendment?”

JUROR #15: “Well, you can’t trust emails. Russians use them to deface bird habitats.”

JUROR #5: “Are they from China? Is Mr. Folio stealing our jobs?”

PAT: “This trial has NOTHING to do with the Second Amendment. There are no guns involved in this case.”

PAT: “Do what? No, the Judge will let you know. He’ll ADMIT them.”

PAT: “No. They’re made locally. Can we get back to my question of trial experience? Yes, Juror #21?”

JUROR #12: “ Maybe there should be. You say we’re going be facing Arabs with foreign invoices?”

JUROR #21: “How will we decide whether to award any money?”

Juror #11: (turning to Juror #12) “See, that’s why we need a wall!”

PAT: “Good question! You will listen to witnesses, and look at the written invoices, and if they haven’t been paid, you can add up those which you believe need to be paid.”

PAT: “No! No Arabs with foreign anything. This is about a building right here in town. The invoices show the value of the materials used which the defendant didn’t pay for.”

PAT: “Um… I really think…”

JUROR #21: “Add them up? Math?”

JUROR #17: “Who wrote those invoices?

JUROR #8: “So you’re saying there’s a

PAT: “Um… joists are structural elements of flooring and roofing, made offsite and brought to the job.”

AUSTINLAWYER | MARCH 2018

JUROR #15: “Well, if the judge admits writing them, why isn’t he a witness?” JUROR #31: “Excuse, me. Do we actually have to ADD the invoices? Because my life coach says I’m a kinesthetic learner, and math diminishes my spirit humors.” JUROR #8: “Will we get to indict anyone?” PAT: “No. No. No indictments. Absolutely not.”

cover-up?”

Can ANY of you do that?”

PAT: “No. This is simply the wrong kind of jury. You need a grand jury.”

JUROR #17: “Do we get to decide who’s telling the truth?”

JUROR #9: “So, you’re saying local juries are blocked from handling indictments. How much grander do we need to be? Do I need a tie or something?” PAT: “Not at all. Grand juries are completely different.” JUROR #2: “Probably due to voter ID laws, they don’t want my kind of people on important juries.” PAT: “Your type of people?” JUROR #2: “Yes, you know, triathletes.” PAT: “No. No. That’s ridicu… Look, I just need 12 people to listen to the evidence, add up invoices that the jury thinks need to be paid, and if the judge instructs you, consider adding attorney fees for my services?

PAT: “Finally, a relevant question! Yes, you are the sole judge of the credibility of the witnesses.” JUROR #17: “Good, ‘cause I’m really good at that. I can tell who’s lying just by looking. Especially if they’re from Eastern Europe.” JUROR #18: “Me, too. Like the lady in the green dress over there. She’s pretending like she’s not listening, but she’s sending the Russians everything that’s going on here!” PAT: “What? Who? That’s Ginger, the Court Reporter! She’s….” JURORS #17, #12, #9, and #21: “LOCK HER UP, LOCK HER UP!” PAT: “Your Honor, may we

approach the bench? (Counsel approach.) Your honor, I know you’re a brand new judicial appointee, but this is a highly unusual panel. May I ask for a new voir dire panel after lunch?” JUDGE: “ Okay, what do you want to do in the meantime?” PAT: “Perhaps you could hear my Daubert motion on the de-

fense expert.” JUDGE: “Okay, I’ll excuse this panel, and see if I can’t get you a grander jury this afternoon. And as for your Dogbert motion… Hmm… Does that involve real dogs? …because I’m allergic.” AUSTINLAWYER L AL Keep the A faith.

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.

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

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PRACTICE POINTERS

Law Firm Innovation BY RAD WOOD

t can be a difficult task to innovate a profession, like law, that has existed for millennia. When a profession is practiced for thousands of years, that practice begets certain norms. Those norms eventually become so common we forget to question them. Yet with recent advances in technology, many of the norms we took for granted just a decade ago must be re-examined, and in many cases, upended. At Vela Wood, we are constantly trying to reinvent how law firms function, taking the best parts of what has been practiced before and combining them with things to not only make us better attorneys, but make us happier and healthier people. In pursuing innovation, we constantly ask ourselves three

very simple questions: 1. How do we work? 2. Where do we work? 3. What do we work on? HOW DO WE WORK?

We relentlessly endeavor to improve our effectiveness—from how we practice law to how we bill for the work we perform. Technology is the main driver on this front. As technological advances continue, we continue to adopt them in order to cut down on the cost to clients and the amount of time and effort required by the attorney. Currently, we use jEugene to review our large transactional deal documents, Clerky to draft many of the documents that are a daily part of our practices, Carta to keep track of client ownership and equity

We relentlessly endeavor to improve our effectiveness—from how we practice law to how we bill for the work we perform.

incentive plans, NetDocuments as our cloud-based document management system, Slack for interoffice communications, and Clio for billing and recording important communications. In addition to the technologies that help us practice, we have also begun to explore different billing methods in an attempt to move away from the dreaded billable hour, including value pricing, and taking equity in startup clients as part of a reduced fee structure. WHERE DO WE WORK?

With cloud-based technologies that allow us to access our legal work at anytime from any location, we have adopted a remote-work policy that puts our attorneys first. Yes, we like to collaborate, and we have created an amazing office space filled with a ping pong table, giant bean bags, a kegerator, an arcade machine, and a podcast room that makes working from the office an interactive experience. But our generation thinks of FaceTime as an iPhone feature, not a corner-office partner’s draconian requirement. Indeed, we pay for our attorneys to work abroad for one month every two years. This gives those who want to integrate travel into their lives the flexibility to do so while remaining with the firm. Moreover, we encourage our attorneys to work remotely from time to time—including home, a co-work space, or a favorite coffee shop. We understand that attorneys are people with lives outside of their practices and we want to create a firm that supports this. WHAT DO WE WORK ON?

The law is as diverse and interesting as the people who practice it. Truly innovative

Rad Wood is graduate of the UT School of Law and a named partner at Vela Wood where he divides his practice between commercial litigation and general corporate matters, concentrating on corporate governance, venture financing, and contract negotiations.

practices are those that allow attorneys to work on things they care about. Whether it’s representing fantasy sports clients because the firm has its own league, or allowing attorneys to reduce their bills or time in order to work with an interesting startup the attorney cares about, it is important to put purpose into a law firm’s practice. This creates happier, more involved attorneys and, in the process, widens the scope of the firm’s practice area. In the end, all of these innovations have one thing in common: they seek to create better lives for attorneys. The practice of law is difficult. It is stressful. It involves long nights, long months, and longer years. At a minimum, we can allow attorneys to work more efficiently, on topics they care about, from places they want to be. Our goal is to blend the line between work and play as we inspire an environment that can foster a AUSTIN LAWYER AL AL fulfilling legal career. MARCH 2018 | AUSTINLAWYER

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