Austin Lawyer, March 2019 by Austin Bar Association

austinbar.org MARCH 2019 | VOLUME 28, NUMBER 2

A Place to Call Home Five Reasons to Support Our Home on Judges Hill

he Austin Bar Association has been located at 816 Congress Ave. since 2003. We’ve increased our budget to cover rising rents for 16 years. But when our lease is up in 2020, our rent will nearly double, costing an additional $200,000 per year. That would require us to raise membership fees and reduce community initiatives, grants, and scholarships. That’s not acceptable. So, efforts are underway to pull up stakes and put down roots a few blocks north, at 712 West 16th Street. We’ll be owners instead of renters. We’ll be able to devote resources to access-to-justice programs rather than rent. We’ll be investing in our future, our programs, and our community. After 126 years, we’ll finally have a place to call home—Our Home on Judges Hill. See Adam Schramek’s President’s Column on page 6, or visit ourhomeonjudgeshill.com, for more details about this exciting new chapter in the history of the Austin Bar.

PROVIDES A LASTING HOME FOR GENERATIONS TO COME • Buying this house gives us a chance to invest in the future of the Austin Bar. This iconic, historic house will become synonymous with our organization and its mission. And we’ll be part of the historic Judges Hill neighborhood, which has been affiliated with the legal profession since its founding. INCREASES OUR VISIBILITY IN THE COMMUNITY • Austin Bar programs have a track record of service that’s impressive—but often unknown outside the legal community. A permanent location with street-level visibility will change that. ENABLES US TO BUDGET SMARTER • Raising membership dues to offset the higher cost of rent would be a necessity if we stay downtown. With a stable mortgage, the real estate market will never drive dues increases, and more money can be allocated for legal-related programs. MEETS THE NEEDS OF OUR MEMBERS • The new house has space for staff offices, small and medium-sized

By purchasing this historic piece of Austin’s past, our roots grow deeper and stronger in the community, building on our record of success and flourishing for years to come. group meetings, and lovely social gatherings. It is located just four blocks from the planned Family and Civil Courts Complex which will have ideal meeting rooms for larger gatherings and ample parking. MOVES THE AUSTIN BAR OUT OF AUSTIN’S ESCALATING DOWNTOWN REAL ESTATE MARKET • The rent in our current location will nearly double in 2020. We’ll be spending $200,000 more every year for office space—instead of on programs that provide value to our members and the community. Our bar gives vulnerable people across the community access to the legal system through programs such as Austin Adoption Day, the Veterans Assistance Programs, the Self-Represented Litigant Project, and the CANLAW Clinic. That’s where we want to focus AUSTIN LAWYER L AL our investment: on people and our community—notArent.

CONTENTS

AUSTINLAWYER MARCH 2019 | VOLUME 28, NUMBER 2 AL A L INSIDE FEATURED ARTICLES 1

A Place to Call Home

President’s Column

Briefs

Pro Bono Spotlight

Opening Statement

The New Year Kicks Off with New Faces on the Bench

Third Court of Appeals Criminal Update

Austin Bar/AYLA Leadership Academy Holds Opening Retreat

Federal Civil Court Update

Federal Criminal Court News

AYLA

Entre Nous

Five Reasons to Support Our Home on Judges Hill

Honoring Professionalism and Civility

Free Ethics CLE Hosted by the Robert W. Calvert American Inn of Court and the Austin Bar Association

Physical Obstacles, Legal Obstacles: E-Scooters in Austin

Austin Bar Hosts Investiture Ceremonies

Thirty-One Class Members Begin 2019 Leadership Program

11 Travis County Women Lawyers’ Association Hosts

Annual Pathfinder Awards Luncheon

Albright, Judge Earle, and Representative Hinojosa Honored

17 Vineyards and Visas: Immigration Options for Winemaking

CONNECTIONS

DEPARTMENTS

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18 Raising Money for the Austin Bar Foundation At the 16th Annual Austin Bar Foundation Gala

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NEWS & ANNOUNCEMENTS

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2019 Judicial Evaluation Poll Results

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Honoring Professionalism and Civility Free Ethics CLE Hosted by the Robert W. Calvert American Inn of Court and the Austin Bar Association

AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION

he Robert W. Calvert American Inn of Court and the Austin Bar Association are planning a FREE half-day CLE and applying for three hours of ethics. The event will be held at the Austin Bar’s offices on Friday, April 12, 2019, from 9 a.m. to 12 p.m. The CLE is open to all Austin-area attorneys, on a first-to-register basis. Patrick Keel will present on Mediation Ethics. Claude Ducloux will present on Creating Strong and Effective Client Relationships: The Art of Collaboration and Communication. An all-star panel will then complete the third hour of freeLAWYER ethics CLE. AUSTIN AL AL Register today at austinbar.org.

Adam Schramek........................ President D. Todd Smith............................. President-Elect Kennon Wooten....................... Secretary David Courreges...................... Treasurer Amy Welborn �� Immediate Past President

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Jorge Padilla............................... President Sandy Bayne............................... President-Elect David King................................... Treasurer Rachael Jones............................ Secretary Austin Kaplan............................. Immediate Past President

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District 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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Physical Obstacles, Legal Obstacles: E-Scooters in Austin BY KELLY CANAVAN, DAVIS CLARK, AND JEANNIE RICKETTS ROBERT W. CALVERT INN OF COURT

n December, our pupilage team from the Robert W. Calvert Inn of Court offered a presentation on legal issues surrounding dockless electronic scooter companies, their customers, and the cities in which they operate. We quickly learned that opinions are strong, emotions run high, and scooters appear to be here for the long-haul. Many people have asked us how e-scooters got here, what our city is doing about them, and whether this new mode of transportation is something we as lawyers should be concerned about. We sought out the answers.

THE SCOOTER BUSINESS MODEL

Disruptive transportation companies, like electronic scooter operators, mark their business approach with two hallmarks: sudden entry and rapid expansion. Take the two biggest scooter companies, Bird and Lime. Since launching around mid-2017, Bird and Lime have expanded their operations to over 100 cities globally and have amassed valuations of $2 billion and $1 billion, respectively. Locally, Austin first saw scooters when Bird nested here in April 2018. Less than a year later, over 11,000 scooters from nine licensed companies park their products on our pavement. Scooter companies have created value through a simple service: provide an inexpensive, convenient transportation option for short trips in urban areas. This service has created dedicated user bases across the country. In Austin alone, users took 275,300 trips for a total distance of 264,300 miles as of November 2018. But cities have pushed back against scooter demand out of concerns about inadequate regulation

and rider safety, especially in light of the growing data on scooter-related injuries and deaths. To handle these concerns, many cities have taken aggressive measures, ranging from temporary moratoriums to complete bans in city limits. AUSTIN CITY REGULATIONS

When scooters came to Austin, our city— much like every other city—lacked specific rules to regulate either scooter companies or their riders. The City of Austin Transportation Department quickly responded by publishing temporary emergency rules in May 2018. The City adopted new, permanent rules last November. The rules require dockless mobility units to be equipped with a brake, front and rear taillights, and an on-board GPS unit to facilitate both the company’s and the city’s monitoring of the units. The city also maintains a dockless mobility website about scooters and electronic bikes at austintexas.gov/docklessmobility. There, users can find a scooter code of ethics and infographic encouraging scooter users to park respectfully, wear helmets, and ride in the bicycle lane or vehicle lane. Austin regulates the number of scooters in circulation by limiting the number of scooter vendors doing business in the city and the number of scooters per vendor. Scooter companies must obtain permits to operate within the city limits; the associated permit fees fund the city’s costs for impounding broken, damaged, and incorrectly parked scooters. On November 27, 2018, the City took its first significant enforcement action when it reduced Lime’s scooter fleet by 1,000 units for 30 days or more after Lime exceeded its deployment limit.

The authors and their teammates at their presentation to the Calvert Inn of Court.

Cities have pushed back against scooter demand out of concerns about inadequate regulation and rider safety, especially in light of the growing data on scooterrelated injuries and deaths. LITIGATION

As scooter companies descend on cities across America, lawsuits have quickly followed. The lack of precedent related to this new technology raises the question of who bears responsibility for injuries and inconvenience caused by scooters. Scooter companies have been the target of claims from riders, pedestrians, and motor vehicle drivers alike. But e-scooter riders will face significant challenges recovering due to the broad assumption-of-risk and waiver clauses in the user agreements they sign. Texas law protects freedom of contract, and Texas courts generally enforce pre-injury waivers as an absolute bar to a wide range of claims. Several courts of appeals have even upheld pre-injury waivers of gross negligence. Potential liability for riders (and their insurance providers, assuming coverage exists) may include civil suits involving

bodily injury or property damage due to negligent scootering. Criminal liability may also result (scootering while intoxicated, anyone?). And, even if they are not sued personally, riders may still have responsibility for damages due to user agreement indemnity provisions. The legal waters surrounding use of e-scooters remain unchartered, and new developments will continue to bob up. As with any new technology, businesses, consumers, and regulators will have to be patient as we work together to find balance, at least until the next new technology disrupts us again. For more information about the Robert W. Calvert Inn, please visit the American Inns AUSTIN LAWYER AL AL of Court website.

MARCH 2019 | AUSTINLAWYER

PRESIDENT’S COLUMN ADAM SCHRAMEK, PARTNER, NORTON ROSE FULBRIGHT

Will You Be a Part of Our Home on Judges Hill?

t is a very exciting time to be a member of the Austin Bar Association. We are in the process of purchasing a new headquarters in the Judges Hill neighborhood that will provide a historic and iconic home for our bar association. Our bar is over 125 years old and for the longest time did not have any office space. Then in 1977, we rented the Brizendine House, which is a historic home in downtown Austin. We next moved to the Chase Tower, and then to our current space at 816 Congress. During our entire history, we have been renters. We have never owned our own property. As most lawyers know, downtown rents have been skyrocketing in the past few years. We have been lucky to have a long-term lease at below-mar-

ket rates. However, our lease expires soon. In order for us to stay in our current location, we would have to pay an additional $200,000 per year starting next year. That translates into an additional $50 per member in annual dues. That’s why, for the past two years, we have been searching for a property that we would be proud to own and call our home. A few months ago, we found it. The historic home at the corner of 16th and West is perfect for the Austin Bar. It is about four blocks from where the new Civil and Family Courts Complex is being built at 17th and Guadalupe. The property is ideal for an association like ours. The beautiful historic home was meticulously restored a few years ago. There is ample space for our staff and meeting space in both the main house and nearby carriage house. By owning our home and not having to pay downtown rent, we will be able to use more of our dues towards our programming and projects. We will be able to expand our pro bono offerings, community activities, and professional offerings like CLEs.

Our Home on Judges Hill at 712 W. 16th St.

The property makes perfect financial sense. We have kicked off a capital campaign to raise the funds necessary to purchase our home and complete minor renovations. The Lola Wright Foundation was our first significant contributor, providing a $100,000 gift in honor of its long-time board member and Austin Bar Past-President, Bill Hilgers. The Foundation will also match up to an additional $100,000 over the next year. We are very honored by this gift and will be calling our new home the Hilgers House.

I hope every Austin attorney is as excited as I am about Hilgers House. It will be more than a headquarters. It will be more than a place to gather for professional and social gatherings. It will be more than a place to stop in before or after court to catch up with friends and colleagues. It will be our home. Our home on Judges Hill. I hope you will join me in contributing to our capital campaign. Together, we will provide a lasting home for generations to come. Visit ourhomeonjudgeshill. AUSTINLAWYER AL AL com to learn more and donate.

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Austin Bar Hosts Investiture Ceremonies The New Year Kicks Off with New Faces on the Bench

he Austin Bar Association hosted investiture ceremonies in January for four new Travis County judges and four new justices on the Third Court of Appeals. On Thursday, Jan. 3, 2019, Judge Brenda Kennedy of the 403rd District Court presided over a ceremony for Judges Chantal Eldridge and Sylvia Holmes. Judge Brad Urrutia of the 450th District Court administered the oath of office to Judge Eldridge of the 331st District Court and Judge Holmes, Justice of the Peace Precinct 3. A reception was held immediately following the ceremony, hosted by the Austin Bar. Judges Maya Guerra Gamble and Catherine Mauzy were sworn in on Friday, Jan. 4, 2019 in a ceremony presided over by Judge Lora Livingston of the 261st District Court. Judge Jan Soifer of the 345th District Court delivered the oath of office to Judge Guerra Gamble of the 459th District Court while the recently retired Hon. Orlinda Naranjo delivered the oath of office to Judge Mauzy who is replacing Naranjo on the 419th District Court. A reception was held at the Highland Lounge hosted by the Austin Bar and the Maya Guerra Gamble and Catherine Mauzy campaigns. The Austin Central Library Special Event Center provided the setting for the investiture ceremony of four new justices on the Third Court of Appeals on Monday, Jan. 7, 2019. The Hon. Jeff Rose, Chief Justice of the Third Court of Appeals presided. Following an invocation by the Rev. Joseph C. Parker Jr., a presentation of the colors by the UT Naval ROTC, and the national anthem sung by the Bar and Grill Singers,

“Being sworn in as a judge is a monumental moment in a lawyer’s life. I’m very thankful to the Austin Bar for the wonderful investiture ceremony they held for us. I will never forget it.” —JUSTICE CHARI KELLY

1. Judge Chantal Eldridge; 2. Judge Maya Guerra Gamble; 3. Judge Catherine Mauzy; 4. Judge Sylvia Holmes; 5. New justices on the Third Court of Appeals (from left) Justice Thomas Baker, Justice Chari Kelly, Justice Gisela Triana, and Justice Edward Smith.

Austin Bar President Adam Schramek welcomed the crowd. The Hon. Woodie Jones, retired Chief Justice of the Third Court of Appeals conducted the oath of office for Justices Chari Kelly and Edward Smith. The Hon. Jimmy Carroll, retired Chief Justice of the Third Court of Appeals, swore in Justices Thomas Baker and Gisela Triana. The ceremony

concluded with remarks by the Hon. Marilyn Aboussie, retired Chief Justice of the Third Court of Appeals. Being sworn in as a judge is a monumental moment in a lawyer’s life,” said Justice Kelly, one of the four new justices being sworn in to the Third Court. “I’m very thankful to the Austin Bar for the wonderful investiture ceremony they held

for us. I will never forget it.” The reception following the ceremony was hosted by the Austin Bar and the AustinLAWYER Bar’s AUSTIN AL AL Civil Appellate Law Section.

MARCH 2019 | AUSTINLAWYER

Austin Bar/AYLA Leadership Academy Holds Opening Retreat Thirty-One Class Members Begin 2019 Leadership Program

n January 8, 2019, 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 heard from Travis County District Judge and Leadership Academy co-founder, Karin Crump; Third Court of Appeals Justice and former Leadership Academy member, Chari Kelly; AYLA Past-President, Austin Kaplan; State Bar of Texas

Texas Supreme Court Justice Debra Lehrmann at the Texas Supreme Court with the 2019 Leadership Academy Class.

Executive Director, Trey Apffel; and State Bar of Texas President Joe Longley. The 2019 class is made up of 31 diverse members representing a variety of practice areas, firm sizes, firm types, and levels of experience. The Leadership Academy was established to help local lawyers find ways to make a positive impact in

2016-PRESENT

AUSTINLAWYER | MARCH 2019

the community, serve in local bar associations, and develop professional leadership skills. Following the opening retreat, the Leadership Academy offers a series of five monthly presentations for participants to engage and network with local leaders in public policy, government, the private sector, non-profit organizations, and bar associations. United States District Judge Robert Pitman kicked off this year’s presentations with inspiring remarks and a thoughtful question-and-answer time with the class. Past presenters include Senator Kirk Watson, Mayor Steve Adler, and Travis County Judge Sarah Eckhardt. This year’s Leadership Academy’s class project will help fundraise for the Austin Bar’s new home, which is described on pages 1 and 6 of this publication. The program culminates with a graduation ceremony at which local bar leaders provide information on next steps for community involvement. For those interested in applying to future Leadership Academy classes, applications are typically accepted in November for the class beginning the following January. This year’s organizing committee includes co-chairs Emily Morris and Michael Roberts, and members Elliott Beck, Sam Denton, Lindsay Drake, Ayeola

Williams, and Eric Nelson, along with advice and assistance from immediate committee past -chair Meghan Kempf. Congratulations to members of the 2019 Austin Bar/AYLA Leadership Academy: Letty Aguilar Leslie Boykin Jason Bramow Kieran Buck Brook Bulcha Benjamin Dower Haley Downing Ryan Ellis Devin Falck Abigail Fowler Claire Galley Elizabeth Haley Alisa Holahan David Holmes Meagan Jones Tychanika Kimbrough Erin Leake Nicole LeFave Lucy Lyford Roswill Mejia Kerry O’Brien Ciara Parks Jeffrey Peek Michael Quirke Adrienne Redinger Justin Rosas Morgan Shell Emily Willis Jessica Witte Gracie Wood AUSTIN LAWYER L AL MitchellAZoll

Travis County Women Lawyers’ Association Hosts Annual Pathfinder Awards Luncheon Alex Wilson Albright, Judge Elisabeth Earle, and Representative Gina Hinojosa Honored

n Jan. 23, 2019, the Travis County Women Lawyers’ Association hosted its 19th annual Pathfinder Awards luncheon at the JW Marriott, recognizing three outstanding Travis County trailblazing attorneys. TCWLA President Tracy McCreight and President-Elect Sarah Glaser recognized the award winners for being role models and pioneers who are shattering stereotypes and blazing trails for female attorneys. Every year, TCWLA makes an effort to select and honor a panel of Pathfinders who represent a diversity of life and work experiences, often resulting in a highly thought-provoking and inspirational program. This year was no exception. TCWLA enjoyed record attendance at the event, in no small part due to the legal community’s support and admiration of these esteemed honorees: Alex Wilson Albright, partner at Alexander Dubose Jefferson & Townsend and former faculty member at the UT School of Law Albright is a full-time partner with Alexander Dubose Jefferson & Townsend. However, until last year, and for the 29 years prior, she served dual roles as a practicing attorney and as a member of the faculty and an Associate Dean of the UT School of Law. Albright is well known as an expert in the rules of trial and appellate procedure and is board certified in civil appellate law. In addition to her impressive credentials, she has long been a mentor and role model for law students. The Honorable Elisabeth Earle, Travis County County Court at Law #7

Albright

Earle

TCWLA President Tracy McCreight and President-Elect Sarah Glaser recognized the award winners for being role models and pioneers who are shattering stereotypes and blazing trails for female attorneys.

ABOVE: (from left) TCWLA President-elect Sarah Glaser, 2019 award winners Alex Wilson Albright, Representative Gina Hinojosa, the Honorable Elisabeth Earle, and TCWLA President Tracy McCreight.

Judge Earle has been a champion for collaboration and innovation in our courts and our community, including her participation in the institution of the Downtown Austin Communi-

Hinojosa

nearly every leadership role including serving as president of both AYLA and the Austin Bar Association. Gina Hinojosa, Texas House Representative, District 49. Representative Hinojosa is a civil rights attorney and Democratic member of the Texas House of Representatives, representing District 49. Hinojosa began her political career with the AISD School Board and has since led successful efforts on workers’ and students’ rights and safety, advocated and testified at the Legislature in support of increased funding for public education, and secured millions in additional funding for students. Since her election in 2016, Hinojosa continues to work to support education, as well as gun safety initiatives, and women’s reproductive rights. She was at the forefront of a wave of women running for political office in recent years and continues to inspire others to stand up for their beliefs and AUSTIN LAWYER AL AL work to effect change.

ty Court in 1999 and the Travis County DWI Court in 2008. In addition to her work on the bench, Judge Earle has been active in local bar associations since 1995 and has served in MARCH 2019 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Denis Abercrombie Guillermo Alarcon ABOVE: Alarcón, Cowan, Ellis, Evans, Nichols, Rodgers LEFT: Shank, Taylor, Thompson

Lauren Cabral Kate Davy Heather De La Garza Marc Druck Jerel Ehlert Lola Fender Christopher Garibian

NEW TO THE OFFICE

Christopher Hildreth

Five attorneys have joined Butler Snow’s Austin office: Christopher R. Cowan, Cedric E. Evans, Eric J.R. Nichols, Amanda G. Taylor, and Karson K. Thompson. Cowan, Nichols, Taylor and Thompson will practice with the firm’s commercial litigation group, while Evans will practice with the firm’s pharmaceutical, medical device, and health care litigation group.

Ifeoma Ibekwe Jameson Joyce Allison Kalis Maria Korzendorfer Jason Krellenstein Ryan Lammert David Mathew Matthew Talley Blake Wilson Bradley Wurster Timothy Zeiger

Graves Dougherty is proud to welcome Kate Davy and Guillermo Alarcón as associates. Davy is joining the firm’s real estate practice focusing on commercial real estate transactions. Alarcón will be entering the firm’s civil litigation practice, focusing on civil litigation and representing clients in various dispute matters. M. Shannon Kackley will join the Municipal Operations

Division for the City of Austin Law Department. Kackley has worked for several law firms where he advised municipalities and other public entities in the areas of real estate, contracts, procurement, and economic development. Leslie Padilla has joined the Utilities and Regulatory Division of the City of Austin Law Department. Padilla has most recently represented electric utilities and pipeline companies in regulatory matters. Laurie Ratliff announces the opening of Laurie Ratliff LLC at P.O. Box 5010, Austin, TX 78763. Ratliff will continue her appellate and trial court support practice at her new firm. MOVING ON UP

John Ellis has been promoted to partner in Scott Douglass & McConnico. Ellis’s trial litigation practice focuses in the energy,

medical device/pharmaceutical, and financial services sectors. He is routinely involved with disputes concerning product liability, breach of contract, fraud, securities, and various other consumer-protection statutes. Reeves & Brightwell is pleased to announce Mansi Rodgers as its newest partner. Rodgers has significant experience representing clients in complex commercial disputes in state and federal court. She has an active pro bono practice, representing individuals in business disputes and immigration-related matters. Scott Douglass & McConnico has also promoted David Shank to partner. Shank is a seasoned trial lawyer handling high-stakes business related disputes including those involving trade-secret misappropriation, securities fraud, class actions, and even rare and valuable art.

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PRO BONO SPOTLIGHT

Courthouse Mediation Project BY SARA E. SALTMARSH

Sara E. Saltmarsh is board certified in family law and practices family law, collaborative law, and mediation. She is an adjunct professor at the UT School of Law, and is chair of the ADR Section and member of the Pro Bono Committee of the Austin Bar Association.

he Alternative Dispute Resolution (ADR) Section of the Austin Bar Association piloted its Courthouse Mediation Project in January 2019. It is a public service project, with mediation services offered free of charge to attorneys and members of the public. This free mediation project

will initially be for a trial period of three months, in order for the judges and volunteer mediators to determine whether the service is useful to litigants and their counsel. If the pilot project is successful, the ADR Section will consider continuing it or expanding the project on a longer-term basis. The ADR Section will have volunteer mediators available at the 8:30 a.m. Family Law Docket (called by an Associate Judge) on two Fridays per month from January through March 2019. Remaining dates are: • March 8, 2019; and • March 29, 2019. The mediation services will be free to any interested attorneys and parties with cases on the Family Law Docket that day. Although we are calling this program a “pilot project,” the concept is not new. At one time in the early 90s, when emergency family law matters were set almost entirely on Friday mornings, there were volunteer mediators available during that time. The free service operated on a first-come, first-served basis, but eventually died off. The ADR Section will be pro-

Anji Maddox

AUSTINLAWYER | MARCH 2019

viding free mediation services for multiple purposes: • to assist with crowded court dockets; • to offer an alternative to litigation; • to help with the large number of pro se litigants; • to gain exposure for the mediation process with the general public; and • to help attorneys and litigants settle disputes when their cases are on stand-by and may not be reached. The Associate Judges will announce that volunteer mediators are available on the dates listed above, and mediators will be available outside the courtroom after the docket call. The Court Administrator’s office will assist in finding necessary space for mediation sessions. We hope you will take advantage of this mediation service project and help make it a success. Experienced mediators will be available to help resolve a single issue or your whole case, at no cost to your clients. As with any mediation, the process will be confidential. Jennifer Hastedt, an attorney who recently used the Courthouse Mediation Project

to resolve temporary orders in a difficult family law case, provided the following feedback: “It was great. We were able to resolve what was going to be a three-hour hearing. It was awesome that we did not have to use the child to confer with the judge, which we really didn’t want to do. Mediation helps with future interactions between the parties, and clients are more likely to follow an agreement they’ve reached themselves.” If you are interested in serving as a volunteer mediator for remaining dates, you need to have completed your basic and advanced mediation training and be a member of the ADR Section of the Austin Bar. (There is still plenty of time to join the ADR Section for the 2019 Bar year.) We welcome input about our pilot project and ideas about other dockets mediation services which might be useful. Please send commentsAUSTIN to Sara Saltmarsh, LAWYER sara@ AL AL saltmarshlaw.com.

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OPENING STATEMENT

Think Before You Block Considerations for Block Quotations BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

survey of the advice on block quotations shows that it’s almost all negative: Don’t do it unless you must, say judges, legal-writing teachers, and experienced lawyers. So we should block block quotations? Why? Two main reasons. Readers skip them. These readers include judges and their clerks. Admit it—you often skip block quotations when you read, too, so why would your readers be any different? If you put something important in a block quotation, you risk that it won’t be read. They smack of laziness. Instead of paraphrasing, instead of summarizing, you used a block quotation—you copied and pasted. That’s the impression block quotations give, especially if you overuse them, and that perceived laziness turns readers off. Despite these concerns, many well-written memos and briefs contain at least one block quotation and sometimes more. So the point is not to ban block quotations but to use them sparingly and effectively. Here are some recommendations. First, anything you blockquote must be vital. If statutory language is at issue or is crucial to your analysis, a block quotation is appropriate. And sometimes, block-quoting key statutory text can allow readers to get re-anchored in the relevant language by flipping or scrolling back to it without having to consult an appendix. Likewise, if a binding case contains language of more than 50 words that is directly relevant to your argument or powerfully persuasive for your position, a block quotation is appropriate.

But if you harbor doubts about how vital the quotation is, you probably shouldn’t use a block quotation. Even after you decide you need that quotation, try to shorten it to fewer than 50 words—just so you can avoid a block quotation. Yes, an embedded quotation of 49 words is still off-putting, but it’s more likely to be read because it isn’t a block. Now, if the text is 50 words or longer and you’re certain you need it, edit it again so that when block-quoted, it’s not too long. No page-length block quotations, please. One thing more annoying than a block quotation is a long block quotation. As you edit, show your alterations and omissions per Bluebook rules, but remember: heavy alteration or omission suggests that the quotation might be taken out of context, so go easy. One lawyer recommends that if you’ve heavily edited the block quotation, drop a footnote that contains the full text so readers can check your work.1 As a last step, write an inviting, persuasive lead-in to the block quotation. The lead-in needs to show why the quotation is important or assert something the quotation will prove. In fact, it’s acceptable to paraphrase the quotation’s key point and use that paraphrase as a lead-in. Think of it like this: The lead-in should make the reader think, “Hmm. Is that so? Well maybe I should read this block quotation to be sure.” (Introducing quotations was addressed in this column in April 2018.) A colleague suggested to me that the text after the block quotation might assert the key point, too.

Readers who skip the block will still get the point—twice. Finally, are you going to strictly follow The Bluebook’s rule on length? In rule 5.2, The Bluebook says you must block only quotations of 50 words or more. But I say you can treat that rule as a recommendation, not binding authority. If you have a shorter quotation you’d like to highlight, you may set it off as a block if you wish. Ultimately, you’re in charge of your block quotations, soLAWYER use AUSTIN AL AL them sparingly but effectively. Footnote 1. Maureen Johnson, To Quote or Not to Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda, 56 S. Tex. L. Rev. 283, 306 (2014).

Wayne Schiess’s Austin Lawyer columns are collected in a book available on Amazon.com: Legal Writing Nerd: Be One. MARCH 2019 | AUSTINLAWYER

CONSIDERING SELLING YOUR HOME? Most home sales in Austin happen between March and July. Now is the time to prepare. Contact me for a market evaluation. ZIP CODE

# OF MEDIAN SALES SALES PRICE

MEDIAN SALES $ PER SF

MEDIAN DAYS ON MKT

78701*

257

$459,000

$170,881,505

$533

78702

516

$420,000

$227,799,948

$346

78703

232

$1,050,000

$294,041,252

$441

78704

465

$651,000

$348,966,287

$398

78705*

253

$273,000

$81,279,842

$346

78731

336

$758,250

$308,889,224

$294

78733

120

$717,500

$101,365,255

$226

78735

241

$595,000

$224,557,678

$241

78746

358

$1,037,375

$457,659,204

$326

78751

146

$504,500

$81,302,815

$355

78757

398

$462,625

$198,369,388

$317

*Includes condo sales. ABOR 2018 MLS data. 16

$ VOLUME OF SALES

AUSTINLAWYER | MARCH 2019

ANDREW H. WARE, JD REALTORÂ®

512.484.3409 c andrew@moreland.com

Vineyards and Visas: Immigration Options for Winemaking BY JEFF THOMAS

Jeff Thomas is an attorney at Foster LLP.

he annual economic impact of Texas winemaking is about $13.1 billion, with the industry employing over 60,000 state-wide vineyard, winery, and related workers. In this important industry, many Texas employers are finding the skilled and experienced employees they need by recruiting workers abroad. In employing French winemakers, Chilean vineyard managers, and Mexican harvest teams, U.S. immigration law provides different visa types for each class of worker. Below is a guide for overseas recruitment efforts.

SPECIALTY WORKERS

U.S. law provides six-year H-1B work visas for certain vineyard and winery professionals as long as the offered position requires at least a bachelor’s degree or twelve years of progressive experience to perform. For highskilled positions, the H-1B visa can help employers fill managerial, viticulturist, winemaker, enologist, and related winemaking occupations with specialized talent from abroad. The U.S. government issues 85,000 H-1B visas at the start of each fiscal year, October 1, and U.S. employers must petition for

individual foreign workers starting on April 1. In filing H-1B visa petitions many months before the visas can be issued, employers should plan to recruit candidates and start the petition process well before April 1, and should expect a start date no earlier than October 1 of the same year. Because the number of H-1B visas issued each year is limited, visa demand can exceed visa supply, leading to a randomized lottery for allocating quota-cap H-1B visas to U.S. employers. For each H-1B petition placed in the annual lottery, U.S. employers pay separate filing fees for each petition involving one worker in one specialty position. Total fees can vary based on the size of the employer, and employers can file as many petitions as necessary, but only one petition per worker. COUNTRY-SPECIFIC VISAS

In addition to the H-1B visa, U.S. law provides specialty work visas for Mexican, Chilean, Singaporean, and Australian workers who have the necessary education and work experience for specialized employment. Employers can apply for and receive these visas in a few weeks, and filing fees can be lower than the H-1B visa, making some country-specific visas more attractive for foreign workers. AGRICULTURAL WORKERS IN THE VINEYARD

For lower-skilled workers in positions that do not normally require a bachelor’s degree or progressive work experience, U.S. law provides temporary agricultural visas valid for the duration of the vineyard’s growing and harvest seasons. These H-2A visas can boost a vineyard’s workforce during agricultural seasons with workers returning abroad after the

season ends. H-2A visa workers may only perform lower-skilled work related to grape growth and harvest and should not perform other winemaking tasks. U.S. employers must notify the Texas Workforce Commission (TWC) of available seasonal work no more than 75 days before the agricultural season starts. TWC and the employer must then advertise the seasonal work to U.S. workers before pursuing H-2A visas for their agricultural workers. With required recruitment before visa petition filing, employers should plan at least four months before the agricultural season to have located workers abroad and start the visa petition process. Employers can include multiple workers on one petition. Filing fees vary with the number of sponsored workers. Employers must provide free housing, international transportation, and in some cases meals to sponsored H-2A workers. These requirements often make H-2A visa petitions for multiple workers more economical than petitions for individual workers. WORKERS OUTSIDE THE VINEYARD

For non-agricultural work that follows a seasonal pattern of needing additional workers, U.S. law provides short-term visas valid for the duration of the temporary labor need. These H-2B visas can provide a short-term workforce during periods when the vineyard, winery, or tasting rooms need additional workers. In determining short-term need, U.S. employers can designate the start and end dates of the temporary period requiring additional workers as long as the employer can justify this period based on seasonal, intermittent, or peak load needs for seasonal workers.

The U.S. government issues 33,000 H-2B visas on October 1 and 33,000 on April 1 each year, and employers must notify TWC and the U.S. Department of Labor (DOL) of needed temporary workers between 75 and 90 days before the intended start date. Because employers must advertise seasonal positions to U.S. workers with a wage provided by the DOL before pursuing H-2B visas, employers should plan at least six months before the intended start date to have located workers abroad and start the visa petition process. With more than thirty-times the user demand compared to last year on January 1, 2018, employers should be aware of the unprecedented high demand of H-2B visas. Employers pay filing fees for each group of workers and can include multiple workers on one petition. Filing fees vary with the number of sponsored workers. Like the H-2A visa, petitions involving multiple workers can be more economical. For vineyard and winery positions, visa options exist for skilled and experienced workers. With international expertise, Texas winemaking can AUSTIN LAWYER L AL continue its globalArise. MARCH 2019 | AUSTINLAWYER

Raising Money for the Austin Bar Foundation At the 16th Annual Austin Bar Foundation Gala

lmost 600 members of Austin’s legal community converged on the Fairmont Austin for a Fly Me to the Moon-themed gala on Saturday, Jan. 26, 2019. The lighting and decorations, along with music provided by modern big band Vintage 15, provided a sophisticated Rat Pack-inspired backdrop to the evening. A pre-party reception and awards ceremony were held to thank the Austin Bar Foundation Fellows, Life Fellows, and Sustaining Fellows for their ongoing support of the Austin Bar Foundation. Several leaders in the community were honored with awards at this reception. Austin Bar Foundation Chair Amy Welborn presented the David H. Walter Community Excellence Award to Fred Sultan, Patrick Keel presented the Larry F. York Mentoring Award to Jeff Civins, and Leslie Dippel presented the Joseph C. Parker Jr. Diversity Award to Toya Cirica Bell. During the cocktail party featuring an ice sculpture martini

luge, guests were able to purchase Kendra Scott jewelry gift bags and buy raffle tickets for a variety of exclusive gift baskets valued at more than $500 each. As guests sat down to dinner, a game of Heads or Tails played for a Yeti cooler kicked off the live auction. The auction was led by the Siren Sisters, Austin’s very own sister auctioneer duo specializing in philanthropic fundraising events. Live auction items included four weekends of stay-cation fun in Austin, a Texas Two Step with trips to Marfa and South Padre Island, a dove hunt in Argentina, a weekend in Las Vegas with Lady Gaga concert tickets, a trip to Costa Rica, and a beach vacation for 10 in Port Aransas. The evening concluded with dancing to music by the Vintage 15 and casino games. The event raised more than $70,000 for the Austin Bar Foundation in support of the many legal-related programs and projects it funds throughout the year such as Austin Adoption Day, the CANLAW Clinic, Veterans Assistance Programs,

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AUSTINLAWYER | MARCH 2019

OPPOSITE PAGE: The evening’s award winners, (from left) Jo Ann Merica, Claude Ducloux, Toya Cirica Bell, Judge Sam Sparks, Jeff Civins, and Fred Sultan. ABOVE: Members of the Austin Bar enjoying the 16th Annual Austin Bar Foundation Gala at the Fairmont. TOP RIGHT: Austin President Adam Schramek with the Siren Sisters Auctioneers.

the Self-Represented Litigant Project, the Diversity Fellowship Program, scholarships for Texas LGBTQ law students, and the Justice Mack Kidd fund. In addition, the Foundation has awarded more than $168,500 in grants to legal-related organizations including 2018 grant recipients American Gateways, Volunteer Legal Services, Austin Community Law Center, Austin Classical Guitar’s Guitar and Juvenile Justice Program, and the Texas Fair Defense Fund. In a dedicated Fund-A-Need auction, a record-breaking total of $18,500 was raised specifically for the Veterans Assistance Programs. This money will help continue the monthly Free-Legal Advice Clinic for Veterans held at the VA Outpatient Clinic.

Since June of 2010, Austin Bar attorneys have helped more than 3,650 veterans with a wide variety of legal issues through these clinics. Clinics are also held in Gillespie and Williamson counties thanks to a grant by the Texas Access to Justice Foundation. The Austin Bar’s staff attorney Doug Lawrence also provides free legal assistance over the phone to eligible veterans to assist with minor legal issues in between clinics. After the auction, three esteemed attorneys—Claude Ducloux, Jo Ann Merica, and Judge Sam Sparks—were presented with Distinguished Lawyer Awards. Videos honoring all three award winners, along with photos from the event, can be AUSTIN LAWYER AL AL seen at austinbar.org.

MARCH 2019 | AUSTINLAWYER

THIRD COURT OF APPEALS CRIMINAL UPDATE

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries represent the views of the author alone and do not reflect the views of the Court or any of the individual Justices on the Court.

The cases summarized are from July 2018 and subsequent histories are current as of February 1, 2019.

COURT COSTS: Assessment of court costs against indigent criminal defendant proper and did not violate equal protection. Osuna v. State, No. 03-1800239-CR (Tex. App.—Austin July 3, 2018, no pet.) (mem. op., not designated for publication). Appellant was convicted of burglary of a habitation and sentenced to 25 years’ imprisonment. Additionally, the trial court ordered appellant to pay $291 in court costs. Appellant asserted that costs should not have been assessed against him

because (1) he was indigent and (2) the assessment of costs against an indigent defendant violated equal protection. The appellate court disagreed with both arguments. The court observed that under the Code of Criminal Procedure, the imposition of court costs is mandatory upon conviction, and “a defendant’s ability to pay is not relevant to the imposition of legislatively mandated court costs.” Moreover, unlike indigent civil litigants, indigent criminal defendants do not face financial barriers to accessing justice. The court also concluded that assessing costs against indigent defendants did not violate equal protection because costs were assessed against all criminal defendants, regardless of income, and criminal defendants were not similarly situated to civil litigants. INEFFECTIVE ASSISTANCE OF COUNSEL: Appellant failed to prove that counsel had “affirmatively misadvised” him of the immigration consequences of his guilty plea. Simon v. State, No. 03-1700215-CR (Tex. App.—Austin July 19, 2018, no pet.) (mem. op., not designated for publication). Appellant, an undocumented immigrant, pleaded guilty to attempted possession of a controlled substance and was placed on community supervision for a period of two years. He was later arrested by ICE, detained without bond, and subjected to removal proceedings because of his

Under the Code of Criminal Procedure, the imposition of court costs is mandatory upon conviction, and “a defendant’s ability to pay is not relevant to the imposition of legislatively mandated court costs.” 20

AUSTINLAWYER | MARCH 2019

THIRD COURT OF APPEALS CIVIL COURT UPDATE The Third Court of Appeals Civil Court Update is on hiatus this month, but it will return in the April issue of Austin Lawyer.

conviction. Appellant subsequently filed an application for writ of habeas corpus, asserting that he had received ineffective assistance of counsel prior to pleading guilty. The trial court denied relief, and the appellate court affirmed. Appellant’s specific complaint on appeal was that his trial counsel had “affirmatively misadvised” him of the immigration consequences of his guilty plea, which could give rise to a cognizable claim of ineffective assistance of counsel. The basis of such a claim is that when an attorney provides immigration advice that he has no obligation to render, he has a duty to state the law correctly. Stating the law incorrectly constitutes “affirmative misadvice.” The appellate court concluded, however, that there was no evidence in the record that trial counsel had misadvised appellant as to any immigration matters. Even though counsel had advised appellant “that it was all going to work out,” that and other statements in the record were ambiguous and could have been a reference to something other than immigration. INSANITY: Evidence was factually sufficient to support jury’s rejection of defendant’s insanity defense. Whitcomb v. State, No. 03-1800248-CR (Tex. App.—Austin July 31, 2018, pet. ref’d) (mem. op., not designated for publication). Appellant was convicted of murdering his mother and stepfather. His defense at trial was that he was insane at the time he committed the offenses, and he presented some evidence to that effect. He had exhibited bizarre (but not

violent) behavior before and after the murders and had been diagnosed with a serious brain injury. He also presented expert medical testimony supporting his defensive theory. Nevertheless, the jury rejected appellant’s insanity defense, and the appellate court affirmed his conviction. The court observed that “[a] criminal defendant is presumed to be sane and to intend the natural consequences of his acts absent proof by a preponderance of the evidence that he is insane.” Moreover, the court explained, “[w]here the parties present conflicting evidence on the issue of insanity, determinations regarding the weight and credibility of that evidence should be resolved by the finder of fact, and the reviewing court should defer to those decisions because the finder of fact had the benefit of observing the witnesses’ actions and demeanor.” The court added that “[t]he issue of insanity is not strictly medical; it also invokes both legal and ethical considerations,” and “only the jury can join the non-medical components that must be considered in deciding the ultimate issue” of insanity. The court concluded that the jury reasonably could have resolved the conflicting evidence regarding insanity against appellant, and the court refused to “second-guess” the jury’s AUSTINLAWYER AL AL finding on that issue.

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FEDERAL CIVIL COURT UPDATE

Wilson Stoker is board certified in labor and employment law by the Texas Board of Legal Specialization and senior counsel with Cokinos | Young.

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

APPELLATE JURISDICTION: Under the collateral order doctrine, an appellate court can determine whether the district court abused its discretion in ordering certain confidential business documents belonging to a non-litigant to be unsealed. Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr. v. Humana Health Benefit Plan of La., Inc., No. 17-30867 (5th Cir., Jan. 9, 2019). Appellant, Humana, was not a party to the underlying antitrust action. After a motion to compel was granted, Humana produced 50 documents pursuant to a Rule 45 subpoena in relation to an alleged agreement between it and Defendant. The district court ruled that Humana’s 50 documents were not to be sealed and instead should be redacted to protect information that revealed certain information. Humana appealed. 22

AUSTINLAWYER | MARCH 2019

Joining other circuits, the Fifth Circuit held that sealing and unsealing orders are reviewable on interlocutory appeal as exceptions to the final judgment rule under the collateral order doctrine. A decision to unseal a document cannot be undone. The order is reviewable because it is effectively unreviewable on appeal from a final judgment and a third party has no power to control the litigation’s course or ability to appeal. The decision to seal documents is made on a case-by-case basis, and the individualized decision is best left to the sound discretion of the trial court. Two scenarios exist where the court abuses its discretion—failure to identify and apply the proper legal standards, or failure to provide sufficient reasons for its decision to enable appellate review. Neither scenario existed here. Further, Humana could not articulate a specific harm that would be caused by disclosure. The documents not placed into the record remained subject to the protective order, and the produced documents were redacted. The district court did not abuse its discretion and provided ample opportunity for Humana to defend the confidentiality of its documents and protect its needs by redacting information. EVIDENCE: Deposition testimony is an acceptable substitute for oral testimony in trial only when an in-court observation of the witness is “extremely difficult or virtually impossible.” Swearingen v. Gillar Home Health Care, L.P., No. 17-20600 (5th Cir., Jan. 11, 2019). Plaintiff sued her former employer, Gillar, under the Rehabilitation Act of 1973. At trial, liability turned on whether or not Plaintiff sent her supervisor (who terminated her) a doctor’s note to corroborate a medical-related absence or if she instead failed to report to work. During discovery, the supervisor

record,” and “only through live stopped working for Gillar and cross-examination can the jury had to be subpoenaed for a depofully appreciate the strength or sition. Gillar filed a motion to weakness of the witness’s testiuse the supervisor’s deposition at mony by closely observing the trial under Rule 32(a)(4), which witness’s demeanor, expressions, allows a deposition to be used and intonations.” The court when “exceptional circumstances reversed and remanded for a make it desirable” to do so. The new trial. district court granted the motion. The order was clear, however, DEBT COLLECTION: that plaintiff could subpoena Law firm did not qualify as debt the supervisor at trial. At trial, a collector under Fair Debt Colsignificant portion of the depolection Practices Act (“FDCPA”) sition transcript was read to the because it did not “regularly” enjury. The jury returned a defense gage in consumer debt collection. verdict finding that Gillar did not wrongfully terminate or fail to Reyes v. Steeg Law, L.L.C., No. accommodate Plaintiff. 17-30849 (5th Cir., Jan. 17, Plaintiff appealed, arguing 2019). FDCPA imposes civil the district court abused its liability on “debt collectors” for discretion in allowing the readcertain prohibited debt collection ing of a deposition transcript practices. 14 USC § 1692. “Atinstead of requiring the witness torneys qualify as debt collectors to testify in person. for purposes of the FDCPA when One exception to the requirethey regularly engage in consumment to present testimony “in er debt collection, including but open court” is found in Rule not limited to litigation on behalf 32(a)(4), which lists circumof a creditor client.” There is no stances under which a witness bright line rule in the Fifth Ciris unavailable and deposition cuit for when a law firm is a debt testimony may be used instead. collector. Issues are resolved on Gillar argued this exception a case-by-case basis. applied and deposition testimony Here, Defendant Steeg Law should be admitted because the sent only 36 letters related to 34 supervisor lived 95.5 miles from liens in the year before Plaintiff the courthouse, would miss work, filed her complaint. This work and as a former employee was did not represent a large part of not within Gillar’s control. the firm’s overall practice. During Gillar failed to demonstrate the three years before Reyes filed that the deposition testimony her complaint, less than 1.3% of was an acceptable substitute for overall revenue and 1.5% of the oral testimony. An in-court obfirm’s billable hours were attribservation of the witness was not utable to fees accrued through “extremely difficult or virtually the representation of condominiimpossible.” Further, the admisum associations in perfecting and sion of the deposition testimony enforcing liens, and recovering caused acute harm because delinquent balances. Even liability hinged on competing adopting an expansive definition credibility. of “debt collection activity” The Fifth Circuit held that the this activity constituted less district court abused its discrethan 3.5% of the 1.5% billable tion in allowing the reading of hours. Although other decisions the deposition transcript instead have found less can amount to of requiring the witness to ap“regularly,” the individualized pear for live testimony. Credibilanalysis of Steeg Law does not. ity determinations are sensitive The district court did not err matters and witness credibility in ruling Steeg Law was not a “is not readily discernable by AUSTIN debt LAWYER collector as defined by the one who merely reads a cold AL AL FDCPA.

Former District Judge

patrickkeel.com

MARCH 2019 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Step 2 on the “First Step Act” BY DAN DWORIN

s my colleague and co-columnist David Peterson told you in this column last month, criminal-justice reform advocates celebrated a rare victory at the end of 2018 when President Trump signed a bill making a series of small improvements in federal sentencing law (commonly referred to as the “First Step Act”). This month, I will address a few additional points about that legislation, with a goal of pointing out what has not yet been fixed. Although the First Step Act does make a few modifications to certain rarely used enhancements, the basic framework of mandatory minimum sentences in drug cases remains

unchanged. For many drug offenses, the statutory sentencing scheme imposes a mandatory minimum sentence of either five or 10 years for possession or distribution of drugs above a certain quantity.1 This means that, regardless of the advisory sentencing guideline range, or the judge’s own determination of what a reasonable sentence would be for a particular offender, the court cannot sentence the defendant to less than the mandatory minimum. This has two major consequences. First, it discourages defendants from taking a drug case to trial, particularly if the prosecutor is willing to allow them to plead guilty to a non-specific quantity of drugs to avoid the mandatory minimum (often referred to as

Senior District Judge

syelenosky.com

512-444-2226

sy@syelenosky.com

“charge bargaining”). It also strongly incentivizes “cooperation” (otherwise known as “snitching,” or, in the presidential vernacular, “flipping”). That is because a judge can usually only sentence a defendant to below the mandatory minimum on motion of the government, based on a defendant’s willingness to provide useful information and/ or testimony.2 As with nearly every aspect of federal sentencing, this puts even more power into the hands of the government, as the defendant cannot ask the judge to go below the mandatory minimum (except in rare cases in which the so-called “safety valve” exception for a very limited set of circumstances applies).3 One positive change brought about by the First Step Act is to expand the “safety valve” provision to allow offenders with some limited criminal history—rather than only true first offenders—to qualify.4 It’s worth noting that, although the “safety valve” does not require a defendant to provide useful information or testify against others, it does require that the defendant “has truthfully provided to the Government all information and evidence the defendant has concerning the offense,” so in all likelihood will rarely come into play in a case in which the defendant is convicted after a trial.5 The practical effect of mandatory minimums is to strengthen the negotiating leverage of the government, while offering no significant benefit to society. The Constitution affords appointed and confirmed federal judges lifetime tenure and Congress has refused to allow jury sentencing in non-capital federal criminal cases. Since the framers apparently trusted our judges enough to give them a job for life,

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.

perhaps those judges could also be trusted to craft appropriate sentences without interference from the LAWYER criminal-justice experts AUSTIN AL AL in Congress. Footnotes 1. 21 USC § 841(b)(1)(A), (B). 2. 18 USC § 3553(e); USSG § 5K1.1. 3. 18 USC § 3553(f) (currently requiring the defendant to have no felony criminal history, no firearm use in the offense, no organizer or leader role in the offense, and that the offense did not result in death or serious bodily injury to another). 4. S. 578 § 402 (allowing the provision to apply to offenders with four or fewer criminal history points, and no prior penitentiary sentences. The other limitations of the prior provision still apply). 5. 18 USC § 3553(f). Note also that, under the sentencing guidelines, a defendant cannot qualify for relief under the “safety valve” unless he qualifies for “acceptance of responsibility” under USSG § 3E1.1, which requires that he plead guilty in a timely manner.

MARCH 2019 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN JORGE PADILLA, JACKSON WALKER

Tips for Spring Cleaning Your Practice and Career

s winter turns to spring, the time is ripe for getting to some of those long-neglected tasks that we sometimes put off when “real life” gets in the way. You know, the ones that deep down we know we should be keeping up with, but we don’t get around to because of the deposition prep or the closing that needs to get done now. But it’s not too late to catch up on your to-do list and give yourself some peace of mind while you’re at it. Think of this as a spring cleaning for your practice and career. TIDY UP YOUR INBOX

Most lawyers make a habit of keeping up with email on a daily basis. Indeed, it’s necessary to stay in touch with clients, colleagues, and opposing counsel. However, that doesn’t keep the inbox from piling up. It’s simply not possible to immediately respond to each email we receive. Take the time to go through your inbox and clear the junk mail that doesn’t require a response. And unsubscribe to any email lists that you no longer care to receive. I’ve come to realize it’s quite satisfying to rid myself of unnecessary email. As you cleared the junk, you probably found some emails 26

AUSTINLAWYER | MARCH 2019

that—while not a high priority—still require a response. There are different strategies for dealing with these. I like to mark them as unread emails because I know doing so will force me to get back to them. Others recommend placing them in a “to-do” folder. Regardless of your approach, just remember your obligation to communicate with your clients. It’s often reported that most attorney grievances are filed by clients due to a lack of communication from their attorneys. CHECK IN WITH CLIENTS

Speaking of clients, don’t forget to check in even if you aren’t currently working on a matter for them. Remember, these people have already entrusted you with their legal matters in the past; that should give you a head start on other work when it comes up. On several occasions I’ve received additional work from a client after checking in by phone or in person. Sometimes the trick is as simple as just staying top of mind. If your clients tend to be individuals who may not be repeat clients, then you can still aim to stay top of mind with your referral sources. GET MOVING

As we all know, the practice of law can be demanding and stressful. We’ve all seen the reports stating lawyers are more likely than others to suffer from depression or substance abuse issues. Regular exercise can help reduce stress levels and ward off depression, according to the Centers for Disease Control and Prevention. If you have trouble

fitting exercise into your daily routine, try starting small. Aim for just ten minutes of activity to get started, and you might find yourself doing more. If you want to get some exercise with other AYLA members, join us for Race Judicata, our inaugural .5K fun run/walk this fall. Participants will walk from the Texas Capitol to the Austin Bar office on Congress, and will receive a .5K medal, finisher tee-shirt, and a nifty “0.5K” sticker to display your proud accomplishment! Proceeds from the event will go to fund AYLA’s legal clinic and resource fair at Community First! Village. (Please note this event is only in the planning stages and is a .5K—as in one-half of a kilometer—so you should probably work in some other exercise as well!) EXPAND YOUR NETWORK

Building a network is key to a vibrant practice. It can lead to new clients, referral sources, or even job opportunities. This is especially important for attor-

neys in their first few years of practice. You’ll want to cultivate relationships in a meaningful way early in your career, before you may actually need them. If you’ve put this off for some time, don’t worry. It’s usually simple to get involved by finding a way to help. Find an organization whose mission you support and offer to serve on a committee or help with an event. Early in my career, I became a member of the Young Men’s Business League of Austin and made great relationships while serving the Austin Sunshine Camps. Several other organizations cater to young professionals, such as Young Women’s Alliance, Austin Young Chamber, and Friends of the House, a young professional arm of the Ronald McDonald House Charities of Central Texas. Of course, you can easily grow your connections by attending AYLA events as well. Don’t miss this year’s Runway for Justice on Wednesday, MarchLAWYER 27, 2019. I AUSTIN AL AL hope to see you there!

UPCOMING EVENTS THURSDAY, MARCH 21 AYLA Speed Networking The Infinite Monkey Theorem 121 Pickle Rd. 6 – 8 p.m. WEDNESDAY, MARCH 27 AYLA’s 5th Annual Runway for Justice 800 Congress Ave. 6 – 9 p.m. For tickets, visit www.ayla.org.

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA MLK Day of Service a Success

n Jan. 21, 2019 more than 50 young lawyers, friends, and family participated in AYLA’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 fanned out across the city, assisting local non-profit organizations including: • Austin Animal Center; • Austin Parks Foundation; • BookSpring; • Community First! Village; • Ronald McDonald House; and

AYLA and Austin Bar members and their families and friends volunteering with the Austin Animal Center, Austin Parks Foundation, BookSpring, Community First! Village, and the SAFE Alliance.

• SAFE Alliance. AYLA’s participation in the 2019 National Day of Service was a big success, and the participants’ spirit of volunteerism made anAUSTIN impact LAWYER across our AL AL community and beyond.

Member Spotlight: Franklin Hopkins

ntroducing Franklin Hopkins, Principal at Germer Beaman & Brown. AYLA: How long have you been involved in AYLA and what’s been your best AYLA experience so far? Hopkins: I became involved in AYLA in 2011. I had returned to Austin from a deployment in Iraq in February. I was commuting to San Antonio for my last year on active duty in the Army JAG Corps. I only knew a handful of young attorneys in Austin. My best AYLA experience is the people. If I had to choose one word to describe AYLA, it would be inclusive. The Austin legal market can be scary and intimidating. The AYLA officers I met those first years were mentors who made me feel welcome and helped me navigate what could have been an overwhelming experience. AYLA: What was your childhood dream job? Hopkins: My childhood dream job was to become an attorney. One of my mother’s

cousins was an attorney. I always admired how he was his own boss, fought for his clients, and did things his way no matter what others thought of him. Meanwhile, I also aspired to serve my country through military service, as I felt it was a duty as an American. As I began high school, I realized I wanted to combine these paths and that is how my dream of being in the JAG Corps originated. I consider myself blessed to have been able to live that dream for the last 11 years through active duty, the Army Reserves, and now the Texas Army National Guard. AYLA: What’s your favorite moment of your career so far? Hopkins: My favorite career moment was my first court-martial in 2009 as a new trial counsel at Fort Hood. The charges included burglary, conspiracy to commit burglary, and assault. My supervisor at the time did not like me, rarely offered constructive criticism, and told me I was incompetent. She was already telling her boss how we were going to lose the

case. I had faith in the manner in which my co-counsel and I were preparing for the case, but her criticism made me doubt myself. Thus, I had a decision to make: Allow that negative criticism to control me, or control that negative criticism. I used it as motivation to trust myself. After my co-counsel and I obtained a conviction, I realized that at the end of the day, the person who has to have the most faith in you, is you. Even if everyone supports you, or even if they don’t—and as cliché as it sounds—neither matter if you don’t believe in yourself. AYLA: What are some of the things you enjoy most about living in Austin? Hopkins: Tailgating for Longhorn football games has to be my favorite pastime. I also enjoy Austin for the open-mindedness of the people. There is a unique level of respect and non-judgement here. AYLA: What’s your best piece of advice for fellow young attorneys? Hopkins: My best piece of

Hopkins

advice for young attorneys is twofold—do what you want and do it your way. Do what you want: I feel you have to be happy with your law practice. Questions such as “do I like working for the government or in private practice,” are questions only you can answer. That said, I respect the journey. Do it your way: Many young attorneys think there is only one path to being a lawyer, and they aren’t happy because they are practicing in a manner that isn’t true to themselves. Don’t be scared to practice in a manner different than everyone else. At the end of day, you have to like what and how you’re LAWYER pracAUSTIN AL AL ticing or you won’t be happy. MARCH 2019 | AUSTINLAWYER

ENTRE NOUS

Lost In Translation… Again BY CLAUDE DUCLOUX

ur journey as lawyers is fraught with the incessant requirement to learn new terminology. Our quest to serve clients requires nothing less than the constant absorption of changing lexicons, popping up as barriers to challenge the problem-solving tasks we strive to complete. Lawyers are involuntarily burdened with a barrage of new terms which we alternatively embrace, mangle, misuse, and simply throw out like wet spaghetti, trying to sound impressive, clever, or competent. Of course, complex words have always been part of our profession’s toolkit. Expressing concepts in obtuse terms (especially in ancient languages) has set us apart from the pitiful plebeians. Our first year of law school taught us the sine qua nons of the professions, which in my day, still included wingtips and suit vests. Those de rigueur signs of professionalism didn’t last, but need I say— res ipsa loquitur? Our stilted use of impenetrable old Latin maxims was mocked in the famous story of the English Barrister, appearing to defend the damages awarded to his client, a peasant blacksmith from Shrewsbury, whose shop was lost to a fire when a horse he was shoeing kicked over his forge. One of the judges, implying that perhaps his client was contributorily negligent, asked the Barrister, “Surely your client is aware of the concept of volenti non fit injuria?” Without batting an eye, the Barrister replied, “My Lord, I assure you, in Shrewsbury, they speak of little else.” The famous J. Harris Morgan, late of Greenville, who for decades advised Texas lawyers on the skills involved in 28

AUSTINLAWYER | MARCH 2019

The irrepressible march of technology has required lawyers, often kicking and screaming (usually at their support staff and younger associates), to modernize. No one ever thought 25 years ago we would be staring at computer screens all day long, keeping client files up in some cloud, and fighting viruses that don’t respond to medication. managing law offices, regularly reminded lawyers that their failure to update to new technology would inevitably doom their practices. He reminded us that for example, in the late 1950s, “No self-respecting lawyer could survive without a secretary skilled at shorthand. Yet, when dictaphones became affordable around 1960, lawyers who refused to adapt were, like the dinosaurs, dead to the profession.” He noted for us the same extinction for lawyers who preferred carbon paper to photocopies, and those who eschewed new-fangled ideas like word processing and women lawyers. I will always remember that in 1991, to the gasps of lawyers in the audience, he calmly predicted, “The next transformative change in the practice of law will be our freedom from the duty to air-condition and heat

our law libraries. In a few years, you will be doing everything on a computer, and paper law libraries will not be a regular part of a typical law office.” The scoffing of disbelief was muffled by the sound of several hundred jaws hitting the floor. Of course, he was prescient. That was exactly the time when all lawyers were dragged into the world of computers. Oh, the horrors. Those of you my age will remember that simply pulling up a document in 1990 required us all to learn a system called “DOS” (the disk operating system), more monstrous and intimidating to lawyers than making their own coffee. You had to get to the right screen, then put in a puzzling series of letters, numbers and backslashes which defied resolution. For example, to access a letter to Mr. Jones you’d

have to enter c:/client/jones/54/ rototiller/cofefe. If done right, the letter appeared on the screen, prompting involuntary screams of joy—and often tears. But DOS was just the beginning of our modern odyssey. Now, the irrepressible march of technology has required lawyers, often kicking and screaming (usually at their support staff and younger associates), to modernize. No one ever thought 25 years ago we would be staring at computer screens all day long, keeping client files up in some cloud, and fighting viruses that don’t respond to medication. But our increasing comfort with technology has brought other changes. Software hawkers have replaced book salesmen, e-discovery has replaced the banker boxes of evidence (except, apparently, for family lawyers—some of whom I sus-

pect like having those “props” in court to show how hard they worked to get that extra 2 percent of the community estate). After the past 30 years from DOS to Dropbox, what is the next change? Here’s a clue: it won’t be machinery, equipment, and appliances. We already accept that digital communication has replaced the certified letter, and e-filing has made the locomotive-sized copy machines obsolete, thus threatening the Dunder-Mifflin’s of the

The biggest transformative change our profession is undergoing is the incessant learning curve to harness processes, procedures, and communications to deliver legal services quickly and inexpensively. country who made fuel for them. But the biggest transformative change our profession is undergoing is the incessant learning curve to harness processes, procedures, and communications to deliver legal services quickly and inexpensively. This leads

me back to the arcane language of technology that infiltrates our daily lives. As a frequent speaker, I examine how tech companies entice lawyers to sign on to webcasts, as well as the credentials of the speaker. In late

January I received a webinar invitation to teach me how to get more business. The speaker, a non-lawyer, was impressively presented as: “the Enterprise Channel Manager at [tech co], a marketing company that helps businesses generate positive reviews and improve their online reputations… [and] is responsible for driving strategic engagement via integrations and partnerships. [He] works to help industries build an automated ecosystem of real reviews by real clients (user-generated content).” Sigh… I’m back in 6th grade. I have no idea how to “build automated ecosystems.” Heck, I have trouble with parking meters. And I’m almost positive that “driving strategic engagements” will probably sprain something or prevent me from driving for Uber. Faced with this indecipherable techno-babble, let’s go back to what lawyers REALLY do best: Communicate. We help our clients diagnose the issues we need to resolve, and then communicate with each other, our clients, and the courts in careful and considered terms. That’s our superpower. Sure, we need to keep up with technology because if there is a better process to deliver legal services, we had better learn it. I don’t know about you, but I definitely don’t want to be one of Harris Morgan’s dinosaurs. I love thisAUSTIN job. LAWYER L AL —Keep the A faith.

MARCH 2019 | AUSTINLAWYER

Slack Davis Sanger Turns 25 Years Old

ationally and internationally recognized, Slack Davis Sanger is celebrating its 25th anniversary. The law firm, which has fought and won numerous significant personal injury and air crash cases, and is devoted to community involvement, marked the achievement by hosting its 17th Oktoberfest in late October at the Four Seasons Hotel. Friends and colleagues

and the firm’s new name were celebrated. The event featured German-style beer and cuisine along with authentic German music from the Walburg Boys. The event has evolved to become the premier networking event for attorneys, regularly attracting nearly 500 attendees annually. Slack Davis Sanger is actively involved in the community and supports local nonprofit organi(from left) Ladd Sanger, managing partner, Dallas office; Mike Davis, partner and co-founder; and Mike Slack, managing partner and co-founder, celebrating the 25th anniversary of Slack Davis Sanger at the Four Seasons Hotel in October.

zations. In addition, the firm’s attorneys and staff volunteer their time and experience by sitting on boards, providing legal representation, and donating to charities through their corporate AUSTIN LAWYER AL AL giving program.

TexasEasyLien.com

AUSTINLAWYER | MARCH 2019

Slack Davis Sanger, which has fought and won numerous significant personal injury and air crash cases, and is devoted to community involvement, marked the achievement by hosting its 17th Oktoberfest.

Edward C. Fowler, CFA, ASA, MAFF (512) 476-8866 edward@financial-valuations.com www.financial-valuations.com

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