Austin Lawyer, May 2018 by Austin Bar Association

austinbar.org MAY 2018 | VOLUME 27, NUMBER 4

Celebrating 125 Years of the Austin Bar A History of Homes

ounded in 1893, the Austin Bar Association formally changed its name to the Travis County Bar Association in 1926. But it wasn’t until 1977 that it hired its first staff, resulting in the need for office space. The first permanent office of the Travis County Bar Association, the Brizendine House, is an Austin historic landmark that still stands nestled in the heart of the Blackwell-Thurman Justice Center. The modest limestone house was built by John Brizendine more than a century ago. In 1972, Travis

cal Committee and the Austin Heritage Society, persuaded the county commissioners not to destroy the landmark, thus saving a piece of Austin’s history. The Travis County Bar received permission to lease the house for office use in 1977, and stayed in the Brizendine House for more than a decade. In 1990, the Travis County Bar moved to the Chase Bank building, now owned by Travis County, at 700 Lavaca St. In Jan. 2003, the Travis County Bar formally changed its name back to the Austin Bar Association and moved into its present

for a new place to call home. With a history spanning 125 years, the Austin Bar—the heart of Austin’s legal community—is looking forward to finding a new home for the 21st century, and beyond. (Excerpts from “Austin Lawyers—A of AUSTINLegacy LAWYER AL AL Leadership and Service.”)

The first permanent office of the Travis County Bar Association, the Brizendine House, is an Austin historic landmark that still stands nestled in the heart of the Blackwell-Thurman Justice Center. County acquired the house, and in 1973, the Commissioners Court opted to raze the structure to make room for three additional parking spaces for the new courthouse annex. However, Austin citizens, led by the Travis County Histori-

location at 816 Congress Ave., Suite 700. The lease at 816 Congress will be up for renewal in 2020. The rising costs of commercial real estate in downtown Austin have made it necessary for the Austin Bar to begin searching

The original home of the Austin Bar Association, the Brizendine House, was built in 1870 and is located at 507 W 11th St. The building was listed in the National Register of Historic Places on July 22, 1974 and designated a Recorded Texas Historic Landmark the same year.

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CONTENTS

AUSTINLAWYER MAY 2018 | VOLUME 27, NUMBER 4 AL A L INSIDE FEATURED ARTICLES 1

Celebrating 125 Years of the Austin Bar

DEPARTMENTS 13 Opening Statement

2018 Law Day

Briefs

2018 Law Day Essay Contest Winner

Three Local American Inns of Court Accepting Applications

Third Court of Appeals Civil Update

Update on Robert W. Calvert Inn of Court

Third Court of Appeals Criminal Update

Federal Criminal Court News

15 Austin Attorney to Lead Texas RioGrande Legal Aid

AYLA

22 CanLaw Clinic Helps Cancer Patients with Estate Planning

Practice Pointers

11 Austin Bar Foundation and LBGT Bar Association

Now Accepting Scholarship Applications

ONLINE

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

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NEWS & ANNOUNCEMENTS Lawyers Should Spend More Time Defending Their Health Than Defending Their Clients Health Blog by Attorney Nikki Maples Makes Its Debut

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Topic: Collateral Consequences of Criminal Convictions Speaker: David Gonzalez Noon - 1 p.m. Last chance to vote in AYLA officer elections.

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

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DeLaine Ward........................... Executive Director Nancy Gray................................. Managing Editor Debbie Kelly............................... Director of AYLA Kennon Wooten....................... Editor-in-Chief Kelli Horan.................................. Editorial Assistant Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the 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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2018 Law Day Separation of Powers: The Framework for Freedom

ach year, Law Day is celebrated nationally on May 1 to honor the rule of law. Law Day underscores how law and the legal process contribute to the freedoms that all Americans share. Law Day also provides an opportunity to recognize the role of courts in this democracy and the importance of jury service to maintaining the integrity of the courts. Law Day programs help people understand how law keeps us free and how our legal system strives to achieve justice. The Austin Bar Association celebrates the importance of law

The Law Day 2018 theme enables us to reflect on the separation of powers as fundamental to our constitutional purpose and to consider how our governmental system is working for ourselves and our posterity. and its impact on our nation and local communities by hosting poster and essay contests based on the American Bar Association’s annual Law Day theme. Students may enter a poster contest in one of three age categories: 1) Kindergarten–2nd

TOP: 1st place in poster contest grades 3rd-5th: Addison Sayers, 3rd grade, Highland Park Elementary, Pflugerville, TX; BOTTOM: 1st place in poster contest grades 6th-8th, and 3rd place in State Bar of Texas’ poster contest, Faith Cooper, 8th grade, Cedar Valley Middle School, Cedar Park, TX 6

AUSTINLAWYER | MAY 2018

grades; 2) 3rd–5th grades; and 3) 6th–8th grades. The essay contest is for high school students in 9th–12th grades. The winner in each category is submitted to the State Bar of Texas, which sponsors statewide editorial and photo contests and co-sponsors the statewide poster contests with the Texas Young Lawyers Association. This year, Faith Cooper, the winner of the Austin Bar poster contest in the 6th–8th grade category, placed 3rd in the State Bar’s poster contest. The theme for the 60th Anniversary of the American Bar Association’s Law Day was “Separation of Powers: Framework for Freedom.” The U.S. Constitution sets out a system of government with distinct and independent branches—Congress, the Presidency, and a Supreme Court. It also defines legislative, executive, and judicial powers and outlines how they interact. These three separate branches share power, and each branch serves as a check on the power of the others. “Ambition must be made to counteract ambition,” James Madison explained in Federalist 51. Why? Madison believed that the Constitution’s principles of separation of powers and checks and balances preserve political liberty. They provide a framework for freedom. Yet, this framework is not self-executing. We, the people, must continually act to ensure that our constitutional democracy endures, preserving our liberties, and advancing our rights. The

Law Day 2018 theme enables us to reflect on the separation of powers as fundamental to our constitutional purpose and to consider how our governmental system is working for ourselves and our posterity. Congratulations to the winners of the 2018 Austin Bar Law Day contests. ESSAY CONTEST

• 1st place: Syeda Vasiqua, 11th grade, International Leadership of Texas, Garland High School, Garland, TX • 2nd place: Aricia Amaro, 12th grade, Akins High School, Austin, TX • 3rd place: Mackenzie Cords, 11th grade, Akins High School, Austin, TX POSTER CONTEST, GRADES 3RD – 5TH

• 1st place: Addison Sayers, 3rd grade, Highland Park Elementary, Pflugerville, TX • 2nd place: Stephen Murphy, 3rd grade, Highland Park Elementary, Pflugerville, TX • 3rd place: Natasha Hunter, 3rd grade, Highland Park Elementary, Pflugerville, TX POSTER CONTEST, GRADES 6TH – 8TH

• 1st place: Faith Cooper, 8th grade, Cedar Valley Middle School, Cedar Park, TX (Also placed 3rd in the State Bar of Texas’ contest) • 2nd place: Adele Bosma, 6th grade, BenoldLAWYER Middle School, AUSTIN ALTX AL Georgetown,

2018 Law Day Essay Contest Winner Separation Of Power Prevents Tyranny BY SYEDA VASIQUA

eparation of power was coined to prevent tyranny. In 1776, Americans were becoming dissatisfied with British leadership. After the French and Indian War, King George III raised taxes in the colonies, which increased starvation and unemployment. To avoid this, the framers of the constitution used the idea of separation of power from French philosopher, Baron de Montesquieu who originated the saying “separation of powers” in his treatise The Spirit of the Laws. In his treatise, Montesquieu discussed how political power could be distributed among three separate branches of a legislative body, in order to create a type of government that was not controlled by a single monarch or ruler. The United States government consists of three individual branches: the Executive, Legislative, and Judicial- each charged with its own authority, assignments, and obligations via constitution. Each branch is driven by differ-

ent leaders to avert tyranny. The U.S. Constitution guards us from tyranny by using checks and balances. It is a principle that was incorporated to ensure that each branch of government can limit the others. It is intended to keep one individual or group from usurping control. Each branch exercises specific measures of control over its counterparts. A case of checks and balances, is the President’s power to veto a law that Congress has passed. However, Congress would then be able to abrogate the President’s veto by getting a 66 percent vote in both the Senate and the House of Representatives. In the landmark Supreme Court case, U.S. v. Nixon, a grand jury returned arraignments against seven of President Richard Nixon’s nearest helpers in the Watergate affair. The prosecutor selected by Nixon and the litigants looked for audio tapes of discussions recorded by Nixon in the Oval Office. Nixon attested that he

was insusceptible from the subpoena asserting “executive privilege,” which is the right to withhold data from other government branches to save private interchanges inside the executive branch or to secure the national intrigue. The question that arose was, is the President’s entitlement to Syeda Vasiqua is an 11th grade student protect certain data, utilizing his at International Leadership of Texas, “executive privilege” confidentiGarland High School, Garland, TX. ality power, altogether safe from judicial review? The Court held that neither Another great example in the doctrine of separation of modern times would be, when powers, nor the summed up President Trump wanted to requirement for privacy of repeal Obamacare, but the abnormal state interchanges, Senate outlawed the bill because without additional, can susObamacare provides health care tain an absolute, unqualified, to people who can’t supply for presidential privilege. The Court themselves in an inexpensive way. allowed that there was a limited Conclusively, Separation of executive privilege in zones of power alludes to the division of military or diplomatic affairs, government duties into distinct however offered inclination to branches to restrict any one “the fundamental demands of branch from practicing the core due process of law in the fair adfunctions of another. The aim ministration of justice.” Hence, is to keep the centralization of the president must comply with AUSTIN powerLAWYER and provide checks and AL AL the subpoena. balances.

MAY 2018 | AUSTINLAWYER

Three Local American Inns of Court Accepting Applications Apply Now for the 2018 – 2019 Term

hree local Inns of Court are accepting applications for the 2018-2019 term. Applications are welcome from any practicing attorney or judge. Applicants should submit a letter stating their interest in joining the Inn, a résumé, and two letters of recommendation from the legal community. Recommendations from Inn members are preferable.

LLOYD C. LOCHRIDGE INN OF COURT

The Lloyd C. Lochridge Inn of Court meets monthly from September-April for dinner to foster dialogue on legal issues and trends, the art and science of trial advocacy, and in-depth discussion about high-profile cases that affect the profession. Applications are welcome from any practicing litigation attorney or judge. Email application documents to Ryan Botkin at ryan@

be submitted to Sherine Thomas at sherine.thomas@traviscountytx.gov. Application deadline is May 31, 2018. BARBARA JORDAN AMERICAN INN OF COURT

Membership is open to all licensed Texas attorneys, with a particular focus on diversity and on those who have not had prior Inn experience. Application documents should be submitted to barbarajordaninnofcourt@ gmail.com. The application deadline is June 1, 2018. The American Inns of Court, composed of more than 30,000 members in 48 states and the District of Columbia, examines issues related to ethics and professional conduct in the field of law. Each chapter, known as an Inn, has members ranging from law students to lawyers and judges with varying degrees of legal experience. Currently, there are more than 350 Inns of

Applications are welcome from any practicing attorney or judge. Applicants should submit a letter stating their interest in joining the Inn, a résumé, and two letters of recommendation from the legal community. Recommendations from Inn members are preferable. wittliffcutter.com. Please do not fax or mail your application. If you have any questions, please contact Botkin at 512.960.4730, or by email. The application deadline is May 25, 2018. ROBERT W. CALVERT INN OF COURT

Founded in 1989, the Robert W. Calvert Inn of Court, Austin’s first Inn, is currently more than 100 members strong and meets monthly at the Headliners Club. Application documents should 8

AUSTINLAWYER | MAY 2018

Court throughout the U.S., each dedicated to enhancing ethics, professionalism, and civility within the legal profession. Membership is limited and the number of admissions is based upon available openings. Successful applicants are admitted as associates (licensed less than nine years), barristers (licensed 10-19 years), or masters (licensed 20 years or more). Visit the American Inns LAWYER of AUSTIN AL AL Court website for more details.

Update on Robert W. Calvert Inn of Court I N THE PAST YEAR, members of the Calvert Inn of Court participated in a number of networking, education, and mentoring opportunities designed to inspire its members to advance the rule of law by achieving the highest level of professionalism through example, education, and mentoring. Inn president, Judge Tim Sulak, launched a successful new initiative called “Lunch with a Judge” for members, known as associates, who have been licensed for less than nine years. Associates were divided into groups of two or three people and assigned a local judge for a brown-bag lunch held in the judge’s chambers. The goal was to connect new attorneys with the local judiciary. Other recent activities held by the Calvert Inn of Court include: LARRY YORK MENTORING LUNCHEONS

Each month, the Calvert Inn of Court participates in the Larry York Mentoring Lunch. Although each lunch has a topic and a speaker, the speaker’s role is to engage the audience and facilitate a free exchange of ideas around a given topic. Named after its original founder, Larry York, the luncheons are spearheaded by representatives of Calvert, Lloyd Lochridge, and Barbara Jordan Inns of Court.

“Lunch with a Judge” participants Sarah Lacy, Laura de la Garza, Robin Harris, and Maitreya Tomlinson with Associate Judge Aurora Martinez Jones.

SQUADS

The Robert Calvert Mentoring Committee facilitates opportunities for individualized mentoring and provides spaces for members to freely ask questions. The Inn places members into small groups, or squads, which are encouraged to meet every other month. Squads allow members to discuss problems or ask questions in a comfortable and safe environment. MENTORING A STUDENT

Expanding mentoring beyond their own membership, the Calvert Inn of Court takes their message to high school students. Founded by Judge Orlinda Naranjo, Mentoring a Student (MAS) connects Inn members with students from Travis High School. The student population at Travis High School is 96 percent minority and 85 percent economically disadvantaged. Inn members meet monthly with students who are in a principles AUSTIN LAWYER AL AL of law/criminal justice class.

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MINORITY BAR SPOTLIGHT

Austin Bar Foundation and LGBT Bar Association Now Accepting Scholarship Applications

he Austin Bar Foundation and the Austin LGBT Bar Association are honored to announce the third annual LGBT Scholarship. Two $3,000 scholarships will be awarded to two current law students,

including 2018 graduates, enrolled at a Texas law school. The award is intended to help defray expenses of pursuing a law-school education. Eligible students must be enrolled at a public or private law school physically locat-

ed in Texas and must have demonstrated some commitment or contribution to the LGBT community or LGBT legal issues. The latter criterion will be construed broadly to include activities consistent with the Austin LGBT Bar Association’s purposes of promoting education on issues relating to LGBT law, raising the profile and acceptance of LGBT individuals within the legal community, and promoting LGBT equality. The selection committee will also consider each applicant’s academic record and educational debt burden/financial need. Application forms can be found at austinbar.org. Please complete the form and submit it, along with current copy of a transcript (official or unofficial), résumé, statement of financial

need, and, most importantly, a statement of commitment or contribution to the LGBT community or LGBT legal issues to: Attn: LGBT Scholarship Selection Committee Austin Bar Foundation 816 Congress Ave., Suite 700 Austin, Texas 78701 Applications must be postmarked by May 31, 2018. The Foundation and Austin LGBT Bar Association will announce scholarship recipients in June, 2018. Winners will be honored in person at the State Bar of Texas’ Annual Meeting to be held June 22, 2018 in Houston. Applicants should be prepared to attend the Annual Meeting. For more information, contact Stefanie Collins, president, Austin LGBTAUSTIN Bar Association, at LAWYER AL AL stefanie@drivelegaltx.com.

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OPENING STATEMENT

Priming in Persuasive Legal Writing, Part 1 The Power of a Preliminary Statement BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

esearch and study are proving the cliché that in persuasive legal writing, first impressions matter. Specifically, we’re learning that priming the reader of a motion or brief with a preliminary statement can nudge the decision-maker. This month, part one discusses some of the research; next month, part two will offer writing advice. Here’s a definition of priming: “use of a stimulus, or prime, to alter audience members’ perceptions of subsequent information.”1 Some priming is accidental, as seen in a study in Arizona: Voters whose polling locations were inside schools were more likely to vote for increased school funding than those who voted elsewhere.2 Priming can be replicated in the lab. Professor Kathryn Stanchi of Temple Law described a study in which subjects (think “judges”) had to decide whether a single mother would get an increase in government aid. First, the subjects were “primed” by having them read unrelated vignettes designed to elicit either anger or sadness. Later, when they had to decide the case, subjects primed for anger were less likely to increase aid; they tended to blame the mother for her situation. Subjects primed for sadness were more likely to increase aid; they tended to see her situation as caused by external factors.3 For persuasive legal writing, one priming technique would be writing a preliminary statement in a way that predisposes a reader to respond favorably to the later presentation of

facts and law. In a recent study that assessed legal writing and judicial readers, Prof. Kenneth Chestek of Wyoming Law tested whether a negative preliminary statement or a positive one would affect judicial decision-making. His results showed that priming through a preliminary statement did affect judges’ decisions—especially for the party perceived to be weaker. In his study, Chestek recruited 163 real judges from all levels and from around the United States. The judges took a pre-survey questionnaire that would enable Chestek to control for pre-existing biases in his results. The judges then read an excerpt from a brief for summary judgment, pitting a small business against a federal agency. Each brief contained the same statement of facts and summary of the law, but they had nine different versions of the preliminary statement— four negative-themed, four positive-themed, and one neutral. Thus, the preliminary statement was the only thing that differed in the briefs. Yet judges who read a preliminary statement that favored the small business tended to view the case more favorably to the small business than those who read the neutral preliminary statement. Judges who read a preliminary statement that favored a federal agency “were mixed, but were uniformly less favorable to the small business.”4 And, Chestek points out, given that the facts and the law were exactly the same, “all of this persuasion occurred in the Preliminary Statement: a brief glimpse at the theme that the brief writer

has chosen for the rest of the brief.”5 So priming can make a difference in persuasive legal writing: it can “help influence the decision maker’s feel for the entire case.”6 Next month: advice for “priming” in a preliminary AUSTIN LAWYER AL AL statement.

Footnotes 1. Michael J. Higdon, Something Judicious This Way Comes . . . the Use of Foreshadowing As a Persuasive Device in Judicial Narrative, 44 U. Rich. L. Rev. 1213, 1229 (2010). 2. Daniel Kahneman, Thinking, Fast and Slow 58 (2011). 3. Kathryn M. Stanchi, The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 328 (2010).

4. Kenneth D. Chestek, Fear and Loathing in Persuasive Writing: An Empirical Study of the Effects of the Negativity Bias, 14 Legal Comm. & Rhetoric: JALWD 1, 28 (2017). 5. Id. 6. Stanchi, at 350.

MAY 2018 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Drew Bell Denise Gilman Logan Harrell Taylor Herpin Zena McMinn Jared Pace Lianna Smith Michael Springer

Hadley, Heidrick, McFarland, Stoker, and Wooten

AWARDS

TexasBar CLE gave Standing Ovation Awards to six attorneys and one justice for their exceptional contributions in 2017 to the State Bar of Texas’ continuing legal education efforts. Among those honored was Austin Bar Association’s treasurer, Kennon Wooten, of Scott Douglass & McConnico. NEW TO THE OFFICE

McGinnis Lochridge welcomes Clarke Heidrick as a new partner in the firm. Heidrick brings more than 40 years of expertise to the corporate section of McGinnis Lochridge, with extensive experience in mergers

and acquisitions, corporate securities, commercial transactions, and banking. Wilson Stoker has joined Cokinos’ Austin office. Stoker is board certified in labor and employment law by the Texas Board of Legal Specialization. MOVING ON UP

The board of directors of Graves Dougherty Hearon & Moody appointed John McFarland as its new president. Also joining the board are new members Mary Keeney, Peter Cesaro, and Matt Powers. Associate Natasha Martin has been named as an advisor to the board.

Greenberg Traurig has elevated Elizabeth Ross Hadley to shareholder. Hadley focuses her practice on governmental law and policy litigation matters. Slack & Davis announces the inclusion of Ladd Sanger, managing partner of the Dallas office, as name partner, resulting in the firm’s name change to Slack Davis Sanger. Sanger, an FAA-licensed commercial airplane and helicopter pilot, focuses his practice on air crash litigation and has litigated cases in multiple states and federal courts around the U.S. He has been with the firm since 2003.

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

AUSTINLAWYER | MAY 2018

Austin Attorney to Lead Texas RioGrande Legal Aid Robert Doggett Named TRLA Executive Director BY D’ANN JOHNSON OF TRLA

obert Doggett has succeeded David Hall as the executive director of Texas RioGrande Legal Aid, the third largest federally funded legal services provider in the nation. TRLA serves thousands of low-income clients a year throughout its main service area of 68 southwest Texas counties, including central Texas. Doggett has spent 27 years litigating a variety of cases for TRLA and other non-profit entities. “We are fortunate to have someone like Robert take on leadership of TRLA,” Hall said. “He has been a

With the poverty rate above 20 percent in most of TRLA’s main service area and facing ever-looming budget threats, Doggett recognizes the challenges in providing quality legal services to those who lack the means to pay. Because current funding levels provide one legal-aid lawyer for every 20,000 eligible clients, Doggett is always

looking for new ideas. “TRLA cannot solve this problem alone and we hope to develop more opportunities to work with the bar, community organizations, policymakers, and the courts, to make a real difference in the lives of low-income Texans who need LAWYER our help the most,” AUSTIN L AL Doggett A said.

Doggett

[Doggett] has been a powerful, tireless advocate for low-income Texans, acting as counsel or cocounsel in many cases that have benefited not only our individual clients, but also their larger communities. powerful, tireless advocate for low-income Texans, acting as counsel or co-counsel in many cases that have benefited not only our individual clients, but also their larger communities. Under his leadership, TRLA will continue its trajectory as an aggressive defender of the people often least able to defend themselves.” MAY 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 March 2018. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of April 9, 2018.

TEXAS CITIZENS PARTICIPATION ACT (TCPA): Request for sanctions is a “legal action” under the TCPA. Hawxhurst v. Austin’s Boat Tours, No. 03-17-00288-CV (Tex. App.—Austin March 22, 2018, no pet. h.). Hawxhurst sued ABT for damages to his boat. ABT filed a counterclaim for sanctions, alleging the lawsuit was frivolous. Hawxhurst filed a motion to

dismiss the counterclaim under the TCPA. The trial court denied Hawxhurst’s motion. The court of appeals rejected ABT’s argument that the TCPA only applies to communications that are in the public interest and concluded that ABT’s counterclaim fell within the TCPA’s definition of “legal action.” Thus, Hawxhurst met his burden to establish the TCPA’s application. ABT failed to establish a prima facie case that Hawxhurst’s lawsuit was frivolous. Accordingly, the trial court erred in denying Hawxhurst’s motion to dismiss. The court reversed and remanded for a determination of attorney’s fees and sanctions. According to the dissent, ABT’s counterclaim for sanctions was not a “legal action” under the TCPA. ADMINISTRATIVE LAW: Foundation not a political subdivision for limitations purposes. Veigel v. Texas Boll Weevil Eradication Found., Inc., No. 03-16-00353-CV (Tex. App.— Austin March 29, 2018, no. pet. h.). Foundation collects assessments from cotton growers to operate its programs. Foundation sued Veigel Farms for unpaid assessments in 1999 and 2001 and obtained default judgments in 2001 and 2004. In 2010, Foundation sued Veigel personally to collect the debt. The trial court granted summary judgment for Foundation. Veigel

argued that Foundation’s debt claims were barred by limitations. Foundation argued that, as a political subdivision, it was exempt from limitations under CPRC §16.061. The court of appeals observed that legislation creating Foundation did not define it as a political subdivision for purposes of exempting it from limitations. Accordingly, Foundation’s claims were barred by limitations. The court reversed and rendered. ARBITRATION: Non-signatory to contract could not be compelled to arbitrate. Cardon Healthcare Network, Inc. v. Goldberg, No. 03-17-00474CV (Tex. App.—Austin March 2, 2018, no pet. h.) (mem. op.). Goldberg’s health insurance paid hospital for her care following an automobile accident according to hospital’s reduced fee structure. Goldberg’s car insurance then paid her PIP benefits to hospital. Hospital returned Blue Cross’s payment and billed Goldberg for the full amount. Goldberg sued hospital for fraud. The trial court denied hospital’s motion to compel arbitration under its agreement with Blue Cross. According to the court of appeals, if a non-signatory’s claims can stand independently of the contract, then arbitration cannot be compelled. The court concluded that Goldberg’s claims arose from her status as a con-

sumer, an insured, and an owner of personal property; her claims did not arise from the terms of the hospital-Blue Cross contract. Thus, Goldberg was not bound by the arbitration agreement. The court affirmed. REAL PROPERTY: Intervening owner does not destroy implied warranties. Maroney v. Chip Buerger Custom Homes, Inc., No. 03-17-00355CV (Tex. App.—Austin March 22, 2018, no pet. h.) (mem. op.). Subsequent buyers of a home sued builder for defects in construction. Before buying the home, seller provided buyers with an engineering report on the home. Builder alleged lack of capacity to sue and that limitations barred suit. The trial court granted summary judgment for builder. The court of appeals reversed builder’s limitations affirmative defense to repairs that were not mentioned in the engineering report. The court further noted that a subsequent home buyer may maintain a cause of action for breach of implied warranties of habitability and good workmanship. The existence of an intervening owner does not destroy these implied warranties. Accordingly, the trial court erred in granting builder’s summary judgment on the implied warranty claims. The court affirmed in LAWYER part, reversed in part, AUSTIN AL AL and remanded.

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

Thorough and Supportable Business Valuations Since 1996 16

AUSTINLAWYER | MAY 2018

THIRD COURT OF APPEALS CRIMINAL UPDATE

The cases summarized are from September and October 2017 and subsequent histories are current as of April 1, 2018.

COMMITMENT PROCEEDINGS: Writ of habeas corpus not available to enforce trial court’s commitment order. Ex parte McVade, No. 03-1700207-CR (Tex. App.—Austin Sept. 28, 2017, no pet.) (mem. op., not designated for publication). Appellant charged with multiple offenses was found incompetent to stand trial and committed to a mental-health facility for competency restoration. While awaiting transfer to that facility, appellant was confined in the Travis County Jail. Appellant subsequently filed an application for writ of habeas corpus, contending that his confinement in jail violated due process. The trial court denied relief and the appellate court affirmed. The appellate court observed that “[t]he purpose of a writ of habeas corpus is to provide a vehicle by which a confined person may challenge and receive relief from his unlawful confinement or restraint.” Here, however, appellant was not seeking release from confinement or restraint. Instead, appellant sought “compliance with the commitment order.” The court explained, “While counsel included a few cursory mentions of release at some points during

his argument, the thrust of appellant’s argument at the writ hearing was that the Department of State Health Services is disobeying the trial court’s commitment order.” The court also observed that appellant did not challenge the validity of the commitment order that imposed the confinement and restraint or the statutory provisions that authorized the confinement and restraint. Thus, a writ of habeas corpus was “not the appropriate vehicle for the remedy appellant seeks.” RIGHT TO SPEEDY TRIAL: Appellant’s right to speedy trial not violated by delay following the appellate court’s reversal of appellant’s murder conviction. State v. Davis, No. 03-15-00620CR (Tex. App.—Austin Oct. 12, 2017, no pet.) (op.). Appellant was convicted of murder in a cold case from the 1980s. The appellate court reversed his conviction and remanded for a new trial, concluding that appellant had received ineffective assistance of counsel. Several events occurred following remand that delayed appellant’s re-trial, including the filing of a motion for DNA testing by the defense and a motion for continuance by the State. After the DNA testing had been completed, appellant filed a motion to set aside the indictment for failure to afford appellant his right to a speedy trial. The trial court granted

the motion and dismissed the indictment. The appellate court reversed, concluding that the factors articulated in Barker v. Wingo, 407 U.S. 514 (1972), “weigh[ed] against a determination that Davis was denied his right to a speedy trial.” As an initial matter, the court observed that the length of the delay— more than six years since the date of the indictment—was more than sufficient to trigger the Barker inquiry. The court also concluded that appellant proved that he was prejudiced by the delay. However, the court found that the reasons for the delay were not attributable to the State and that appellant had failed to assert his right to a speedy trial, “acquiesc[ing] to the delay from the prolonged wait for results of DNA testing that he initiated.” In a concurring opinion, Justice Goodwin disagreed with the majority opinion in some respects, including the majority’s analysis of the length of the delay, but agreed with the majority’s conclusion that appellant’s right to a speedy trial had not been violated. PHOTOGRAPHIC EVIDENCE OF PRIOR ASSAULT: Photos of injuries sustained by assault victim during previous assault by appellant were admissible. McCleery v. State, No. 03-1700154-CR (Tex. App.—Austin Oct. 20, 2017, no pet.) (mem. op., not designated for publication). Appellant was charged with assaulting his wife by choking her. During trial, the State offered into evidence four photographs of injuries that the wife had allegedly sustained during a prior assault. The trial court admitted the photographs into evidence over appellant’s objections. On appeal, appellant argued that the photos violated Rules of Evidence 403 and 404(b) and article 38.371 of the Code of Criminal Procedure, a recently enacted statute that

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.

provides that in prosecutions of certain family-violence offenses, “each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense.” The appellate court was unable to conclude that the trial court abused its discretion in determining that the photographs were admissible to rebut the defensive theory that the wife had fabricated the allegations and that they were not more prejudicial than probative. As for article 38.371, the court concluded that the photographs were admissible, at a minimum, as “evidence regarding the nature of the relationship between” appellant AUSTINLAWYER L AL and his A wife.

MAY 2018 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Changes to Austin Federal Criminal Practice BY DAN DWORIN Also, the Austin Division judges have signed an order adopting a uniform Criminal Justice Act (CJA) indigent defense plan, which will cover the entire Western District of Texas. If approved by the Fifth Circuit Judicial Council, the plan will create an application process for attorneys seeking appointment

to represent indigent clients in federal court. This will hopefully provide more consistency and availability of appointed counsel to handle cases in which the Federal Public Defender has a conflict (as is often the case in the type of multi-defendant cases brought in federal court). More information about how

to apply to be on the CJA panel will be provided once the plan is approved and the review committee is formed. For civil practitioners in the Austin Division, the days of living in fear of a criminal AUSTINappointment LAWYER are L AL coming to anAend.

Guided by COMPASSION. Driven by RESULTS.

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.

here have been a number of changes, and more still in the works, that will affect criminal practitioners in the Austin Division of the Western District of Texas. First, longtime Judge Sam Sparks has taken senior status effective in January, and is now handling a much smaller number of civil and criminal cases. All new Austin Division criminal filings are being assigned to Judges Lee Yeakel and Robert Pitman. Judge Pitman, since his confirmation in 2016, had been primarily handling the Waco Division docket because of issues with former Judge Walter Smith. Smith has since retired, and although Judge Pitman continues to hear cases in Waco as needed, Austin lawyer and former U.S. Magistrate Alan Albright has been nominated by President Trump to fill the Waco vacancy. Once confirmed by the U.S. Senate, Albright will handle the Waco Division docket and the Austin division caseload will be almost entirely handled by Judges Yeakel and Pitman. 18

AUSTINLAWYER | MAY 2018

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AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN AUSTIN KAPLAN, KAPLAN LAW FIRM

Find Your Balance!

ith long hours at work, stressful deadlines, professional association responsibilities, marketing, pro bono, conferences, and a seemingly unlimited task list, how can we make time for family, friends, and just regular old “me” time to keep from getting overwhelmed? Have you ever caught a cold and wondered if staying home for a single workday will usher in the beginning of the end of your career? Congratulations, you are in good company and this column is for you. If balancing life in the law

and regular old life was easy, I’m sure I would do a better job of it myself. If finding balance were like a corporate deal or appellate brief, we could just work hard on it for a set period, and then, for better or worse, we’d be done. Balanced! But that’s not the way it goes. In my experience, staying in balance is a continual work in progress. What makes this especially difficult for young lawyers is that we often have little control over our work schedule. So, we need to focus on optimizing the time we can control when we’re not working. Here are some tips: SCHEDULE FAMILY TIME

Are you the kind of lawyer who is goal-oriented? Deadline driven? Perfect. Try this: Set a goal of spending time with your family and put that time on your calendar. Schedule date nights with your significant other. Set a reminder to call your mom, uncle, or whomever. Have you calendared to take

your kid to the Renaissance Faire? Me too. It may seem ridiculous or obnoxious at first, but you may also find that if you calendar things they will actually happen. Also, if you’re the type of person who tends to say “yes,” these calendar entries create conflicts and will help you know when to pump the breaks before taking on new responsibilities.

der. He picks out a ton of candy, and because he’s a great kid, he even shares some with me! It’s a special time for us to chat and enjoy a father-son moment. Disconnecting doesn’t have to involve kids—for you it may be a poker night or a book club. Whatever it is, find something you love to do with others that makes you put your phone away, and make the time to keep it up!

ACTIVELY DE-STRESS

GET HELP

After a particularly stressful time, my wife, Liz, and I put together a written plan for active de-stressing. This includes time for physical activity to help shake off the stress. Try whatever gets your blood flowing and forces you to forget your deadlines for a little while.

There is no question that as a profession, we struggle with issues of stress, depression, and substance abuse. Always remember that you are not alone and that help is available. Don’t ever hesitate to reach out for help or to call the Texas Lawyers Assistance Program: www.tlaphelps.org.

DISCONNECT & HAVE FUN!

FOLLOW-UP

It seems silly to say, but don’t forget to disconnect and have some unplanned fun. One of my favorite spur-of-the-moment things to do is take a walk to the candy store with my son Alexan-

Try these balance tips. Add your own ideas, then try them again. Once you succeed and are totally balanced, look for me at the next Docket Call and let me LAWYER know AUSTIN AL it! AL what worked so I can try

AYLA Teams Up With Green Corn Project

n March 24, AYLA Project include numerous Austin Community Service elementary schools, nonprofits, Day volunteers low-income and elderly individteamed up with uals, and residents of Habitat for the Green Corn Project to help Humanity homes. clear, aerate, build, and plant a The AYLA Community Servegetable garden for a family in vice Days Committee provides east Austin. Founded in 1998, monthly opportunities for the Green Corn Project regularAustin lawyers, along with their ly assists hundreds of Central friends and family members, to Texans with building and mainvolunteer together to help local taining their own organic food nonprofits. Future opportunities gardens so they can have access include volunteering for AYLA’s to nutritious, affordable food. The AUSTIN Women’s Resource Fair on May LAWYER AL AL beneficiaries of the Green Corn 5, 2018. 20

AUSTINLAWYER | MAY 2018

UPCOMING EVENTS SATURDAY, MAY 5 Women’s Resource Fair 1300 Lavaca St. 9 a.m. – 1 p.m. FRIDAY, MAY 11 AYLA Officer Elections Begin Watch for your email ballot.

THURSDAY, MAY 17 AYLA Docket Call 5:30 – 7 p.m. Mean Eyed Cat 1621 W. 5th St. Sponsored by Michael Best

AUSTIN YOUNG LAWYERS ASSOCIATION

Lawyers and Judges in Fashion AYLA’s 4th Annual Runway for Justice

he Austin Young Lawyers Association held its 4th Annual Runway for Justice Fashion Show fundraiser on Thursday, March 22, 2018. More than 175 people, including attorneys and judges, attended the fashion-forward downtown event, with attorneys modeling spring fashions from local boutiques. Brittany Stanford, of Fasken Oil, worked with Estilo Boutique, Amberleaf, Z Couture, William Murray Golf, Criquet Shirts, Matte Grey, Ross Bennett, and Capra & Cavelli, selecting outfits to showcase casual and day-to-night looks that would “pop” on the runway. Proceeds for the event benefit the AYLA Foundation for projects throughout the year, including the 11th Annual Women’s Resource Fair. Thank you to our event chair, Sandy Bayne, and to AYLA’s Runway for Justice sponsors:

IN-KIND SPONSORS 800 Congress, Estilo Boutique, Z Couture, Ruby & Violet, Ritual Salon, Blast Blow Bar, Amberleaf, Embellish Nails and Boutique, Alite Laser, Love Cycling Studio, Robin Jackson Photography, Kendra Scott, The Boston

Beer Company, Hey Gorgeous, Fixe, Omni Austin Downtown Hotel, Sukha Yoga, Pure Barre, Tequila Sheela, Mia Tia, Austonian Spirits, The Sh!t Vodka, Azar Taleghany, Jessica Green Lashes, Ashley Babineaux, Criquet Shirts, William Murray, Maria Victoria, Dancers Shape, Go Dance, Sikara, Judge John Lipscombe & Judge Jan Breland, Ross Bennett, Pampered Chef, Access ATX’s Twisted Texas, MIA Tapas & Wine Bar, Punch Bowl Social, Thriving Botanicals, Stephanie Strain Art. Katie Conley Creative, UFCU, Erin’s Magically Ever After Travel, ToddPilates & Barre, My ITPros, The Finance Plan, Diamonds Direct, 360 Press Solutions, LeverCraft, David Garza, Austin Catering, Jenny Mason, Leslie Hunt, and Jeana Patel.

TITLE SPONSOR 800 Congress

GLITTERATI SPONSORS 1836 Realty & Property Management Civil Litigation Section Husch Blackwell Pirkey Barber Scott Douglass & McConnico

FASHIONISTA SPONSORS

Erin & Brent Bennett Dudley Law Graves Dougherty Hearon & Moody Law office of Nikki G. Maples Nadia & Chad Bettac Stinson Moyle AUSTINLAWYER Velva Price TRENDSETTER SPONSORS Germer Beaman & Brown Lloyd Gosselink Rochelle & Townsend Norton Rose Fulbright Rainmaker Stanford Ranch, LLC BayneLaw Byrd Davis Alden & Henrichson Daniella Lyttle Attorney & Counselor at Law

Austin lawyers rock the runway at the 4th annual Runway for Justice event. (CLOCKWISE FROM TOP) Toya Cirica Bell, Adam Schramek, Shannon Meroney, and Dicky Grigg.

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CanLaw Clinic Helps Cancer Patients With Estate Planning

nother successful CanLaw Clinic was held on March 24, 2018 at the Lakeside Mediation Center on Lake Austin Blvd. Approximately 12 clients, mostly stage 4 cancer patients, attended and were given access to pro bono estate planning services. The clinics, organized by Caitlin Haney Johnston and Randy Cubriel, are sponsored by the Austin Bar Foundation. The next clinic will be held on June 23, 2018. Thank you to the volunteers who made CanLaw Clinic possible:

Terry Garrett Alexandra Gullett Hailey Hobren Michelle Kwan Jared Livingston Lynn Latombe Melissa Stone Myers Nancy Nemer Carrie Puccia Chuck Ruesink Cassie Stinson Ketan Kharod Jim Wiginton Jo Wiginton OTHER VOLUNTEERS

Lindsey Bentley Michele Bondy Sandra Bonham ATTORNEY VOLUNTEERS Carli Collins Bailey Aprile Erin Crump Byran Brashears Alice Duerr Kristina Chung Amber Haney Brenda Collier Barry Holtz Elana Einhorn Drew Johnston Claudia Garnica Estrada Brittany Posadas AUSTIN LAWYER AL AL Joseph Gagen Geoff Van Olden

TOP: (from left) Stephanie Whitehurst, Susan Haney, and Vicki Touchet greet clients as they arrive at the CanLaw Clinic. RIGHT: Caitlin Haney Johnston conducts a free CLE training for CanLaw attorney volunteers. BOTTOM: Johnston talks with a client at the CanLaw Clinic.

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PRACTICE POINTERS

Preparing for Appellate Oral Argument BY STEFANIE SCOTT SHAH, SCOTT SHAH LAW

f you are preparing for an appellate oral argument, you’re already aware that you need to know the record, know your arguments, and know the case law. You don’t need me (or anyone) to tell you that. Rather, this article provides strategic, practical, and logical tips to help prepare you to argue your case on appeal.

RESEARCH MORE THAN THE LAW

You’ve already researched the legal arguments of your case (most likely years ago when the case was briefed and argued before the trial court; possibly more recently, if relevant cases have been decided). Now is the time to research the court in which your case will be heard and the potential panel members who may question you during appellate argument. Although you cannot choose your panel, you can be prepared for the types of questions various judges may ask. To do this, download audio files of recent oral arguments. Listen to these arguments, taking notes on what types of questions judges ask. Some judges repeatedly ask for citations to the record; some focus on minute details of the appeal; some ask broad-picture

questions; some ask the parties to distinguish specific cases. You might not know your panel ahead of time, but listening to previous arguments will help you anticipate the types of questions you might be expected to answer. PRACTICE MAKES PERFECT

Okay, maybe not perfect. But practice makes you a lot more comfortable with your argument and helps you predict and craft answers to questions you will be asked at oral argument. To be clear, now is not the time to print out your outline and talk to yourself in the mirror for hours. That might help you solidify your argument, but it’s not going to help you prepare for the inevitable question-and-answer session with the judges. Now is the time to call in your peers and mentors. Ask them to review the briefing and be prepared to ask you difficult questions. Now is the time to thoroughly moot the case. Multiple times. With as many different attorneys as possible. And preferably with those who have a strong grasp on the subject matter of your case. (I’m sure your family law friend would love to help out, but he/she might not be the best asset if you are arguing about patent invalidation in front of the Federal Circuit. In this situation,

you want someone who is familiar with the two-part test set forth in Mayo/Alice and applied in subsequent cases. If that’s the general topic of your appeal, feel free to give me a call.) As a side note, if you are a young lawyer who has aspirations of arguing at the appellate level, be proactive and try to get some experience in those courts. Your law firm and clients might not be ready to take a leap of faith and let you argue an appeal, but a pro bono client won’t be opposed to your help. The more experience you have arguing before appellate courts in pro bono cases, the more comfortable you will feel arguing for a paying client your first go-round. BE REALISTIC

First of all, your time in front of the panel is incredibly limited (at the federal level, you only have 15 minutes). Second, many appellate judges won’t allow you more than a sentence before interrupting you with questions. Does that mean that you shouldn’t prepare a 15-minute presentation? No. That process can be helpful in organizing your thoughts and honing in on your key arguments. But know that you likely won’t be presenting your argument in the way you have prepared. Additionally, accept that there is no way to know every citation to the record or every case that is cited by either party. You obviously need to know your record and the case law backward and forward. But you are a human. You are not a computer. If you go into appellate argument preparation with the expectation that you must and will know absolutely everything, at some point, you are going to realize this is an impossible task. Save yourself this frustration and

Stefanie Scott Shah is the founding member of Scott Shah Law. Her practice includes complex commercial, patent, and employment litigation. She also acts as outside general counsel for growing businesses, handling all their legal needs.

approach this process through a more realistic lens: focusing on the major cases at issue, the major issues/arguments, the major facts, etc. THE JUDGES ARE NOT YOUR ADVERSARIES

Judges are not opposing counsel. They might ask difficult questions. They might have views that are contrary to the arguments set forth in your appeal. But, ultimately, they are questioning you in order to better understand your arguments. Listen carefully to the questions asked and directly answer those questions—all the while weaving your best arguments into those answers. This Q&A gives you the unique ability to partner with the judges to help them further appreciate the intricacies of those arguments. Treat it as an opportunity, not an obligation. Above all else, have fun. Not all attorneys are lucky enough to discuss complex legal issues with some of this country’s greatest legal minds—in such AUSTINLAWYER L AL an intimate setting, noAless. MAY 2018 | AUSTINLAWYER

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