Austin Lawyer, May 2021

ADVANCING THE RULE OF LAW NOW The rule of law is the bedrock of American rights

austinbar.org

and liberties—in times of calm and unrest alike. The 2021 Law Day theme—Advancing the Rule of Law, Now—reminds all of us that we the people share

MAY 2021 | VOLUME 30, NUMBER 4

the responsibility to promote the rule of law, defend liberty, and pursue justice.

Law Day 2021: Advancing the Rule of Law Now

L

aw Day is held annually on May 1 to celebrate the role of law in our society and to cultivate a deeper understanding of the legal profession. Thousands of Law Day programs are conducted each year for youth and adults across the country. Also, the president of the United States has issued a Law Day proclamation recognizing the importance of the rule of law every year since Dwight D. Eisenhower made the first proclamation in 1958.

This year, the Austin Bar Association and the Austin Young Lawyers Association are proud to co-sponsor a virtual Law Day celebration at noon on Monday, May 3, 2021. The Dallas Bar is hosting the event. Register at austinbar.org to receive the Zoom link. For more information about the virtual Law Day celebration, contact Liz Hayden at lhayden@ dallasbar.org.

The virtual event is also being sponsored by the Dallas Bar Association, Bell County Bar Association, Collin County Bar Association, Dallas Association of Young Lawyers, El Paso Bar Association, Houston Bar Association, Jefferson County Bar Association, San Antonio Bar Association, and Tarrant County Bar Association.

The keynote speaker, Louis

2021 LAW DAYLOUIS CELEBRATION J. FREEH

Managing Director and Vice Chairman, AlixPartners J. Freeh, is acutely Former FBI Director 2021 LAW DAY CELEBRATION qualified to speak on this matter as the former director of the 2021 LAW DAY FBI. Freeh was born CELEBRATION in Jersey City, New Noon – 1 p.m.

ADVANCING THE RULE OF LAW NOW Jersey. He graduated The rule of law is the bedrock of American rights Register at austinbar.org Phi Beta Kappa from MONDAY, MAY 3 | NOON - 1:00 P.M. | HOSTED ZOOM | MCLE: 1.00 and liberties—in times ofON calm and unrest alike.

The Rutgers College in 2021 Law Day theme—Advancing the Rule of Law, 1971, received a J.D. SUPPORTED BY: Now—reminds all of us that we the people Bar Association Association of Young Lawyers Jefferson County Barshare Association undertaken by theDallas from Rutgers Law School Austin in 1974, Dallas Bar Association Santhe Antonio Association Austin Young Lawyers Association the responsibility to promote rule ofBar law, defend County Bar Association U.S. government. El Paso Bar Association and received an LL.M. in Bell criminal liberty, and pursue justice. Tarrant County Bar Association Collin County Bar Association After the investiga-Houston Bar Association law from New York University Law tion, Freeh oversaw School in 1984.

MONDAY, MAY 3, NOON - 1 PM a 14-month trial and Freeh served as an FBI special HOSTED ON ZOOM | MCLE: 1.00 won the conviction agent from 1975 to 1981 in the SUPPORTED LOUIS J.BY: FREEH of 16 of 17 co-defenNew York City field office and at Bar Association Austin Bar Association Managing Director and Vice Dallas Chairman, AlixPartners dants. The VANPAC FBI headquarters in Washington, El Paso Bar Association Austin Young Former FBI Lawyers Director Association Houston Bar Association case involved the D.C. in 1981, he joined the UnitBell County Bar Jefferson County Bar mail-bomb murders ed States Attorney’s Office for the Association Association Collin County Bar Association San Antonio Bar Association of federal Judge Southern District of New York as Dallas Association of Young Tarrant County Bar Association Robert Vance of an Assistant United States AttorLawyers Birmingham, Ala., ney. Subsequently, Freeh held the MAYrights 3 | NOON - 1:00 P.M. | HOSTED ON ZOOM | MCLE: 1.00 and civil titles of Chief of the Organized MONDAY, leader Crime Unit, Deputy United States SUPPORTED BY: Robert RobBar Association Dallas Association of Young Lawyers Jefferson County Bar Association and compliance issues related to inson of Savannah, Ga. Freeh was Attorney, and Associate United Austin Austin Young Lawyers Association Dallas Bar Association San Antonio Bar Association Bell County Bar Association special prosecutor El Paso Bar Association Tarrant County Bar Association the Foreign Corrupt Practices appointed by States Attorney.

Collin County Bar Association Houston Bar Association Act and similar anti-corruption the attorney general to oversee the While working for the United regulations. He was the founder investigation. After extensive invesStates Attorney’s Office, two of and chairman of Freeh Sporkin tigation, a suspect was apprehendFreeh’s most notable cases were and Sullivan and Freeh Group ed, prosecuted, and convicted. the “Pizza Connection” case and International Solutions from In July 1991, then-President the VANPAC case. The “Pizza 2007 to 2020.

George H.W. Bush appointed Freeh Connection” case involved Sicilian as United States District Court mobsters running an extensive During his career, Freeh has Judge for the Southern District of drug-trafficking operation through been recognized for his many New York. While serving in that capizza parlors as fronts for cash accomplishments. In 1987 and pacity, then-President Bill Clinton and heroin. At the time, it was the 1991, he received the Attorney nominated Freeh to be the director largest, most complex investigation General’s Award for Distinguished of the FBI in July 1993. He was Service, the second-highest confirmed by the Senate on Aug. 6, annual honor given by the De1993, and was sworn in as director partment of Justice. He has also of the FBI on Sept. 1, 1993. been the recipient of the John Since leaving government serMarshall Award for Preparation vice, Freeh has been appointed of Litigation, awarded annually by courts, corporate boards, and by the Attorney General, and governments to help the world’s the Federal Law Enforcement AUSTIN LAWYER largest companies navigate legal AL AL Officers Association Award.

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CONTENTS

AUSTINLAWYER MAY 2021 | VOLUME 30, NUMBER 4 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

CONNECTIONS

1

Law Day 2021: Advancing the Rule of Law Now

6

ONLINE austinbar.org

8

The History of the Austin Asian American Bar Association Diane Brown and Albert Li Planted the Seeds, Giving Austin’s Asian-American Lawyers a Voice

19 LGBT Law Student Scholarship

Applications Due June 4, 2021

23 American Inns of Court Now Accepting Applications

President's Column 10 Briefs 12 Be Well 13 Opening Statement 15 Third Court of Appeals

17 18 20 22

ONLINE

Civil Update

16 Third Court of Appeals

Criminal Update Federal Civil Court Update Criminal Court News AYLA Practice Pointers

Austin Bar Equity Summit - May 14, 2021 View Schedule and Register Today Fourteenth Annual Color of Justice Program Held on March 25, 2021 NAWJ and TCWLA Host Annual Event for Students

MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar

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NEWS & ANNOUNCEMENTS

EMAIL nancy@austinbar.org

UPCOMING EVENTS MAY 22 Cooking with the Judiciary

With Judges Judges Jan Soifer and

Raul Gonzalez

6 – 7 p.m.

Sponsored by the Lawyer Well-Being

Committee. RSVP at austinbar.org.

STREAM @AustinBarAssociation FOLLOW instagram.com/theaustinbar TEXT austinbar to 313131 for up-to-date news + info Message & data rates may apply.

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INTERESTED IN WRITING FOR AUSTIN LAWYER? Contributing authors sought for inclusion in Austin Lawyer. Articles on various legal-related topics are considered for publication monthly.

Please limit submissions to between 500 and 750 words. Send articles to Nancy Gray, Managing Editor, at nancy@austinbar.org.

Submission is not a guarantee of publication.

AUSTINLAWYER

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

Kennon Wooten ������������������ President David Courreges ������������������ President-Elect Amanda Arriaga ������������������� Secretary Justice Chari Kelly ��������������� Treasurer D. Todd Smith ����������������������� Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION

David King ���������������������������� President Rachael Jones ����������������������� President-Elect Blair Leake ����������������������������� Treasurer Sarah Harp ���������������������������� Secretary Sandy Bayne ������������������������� 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 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 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 of Texas Federal Court and the Texas 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.

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PRESIDENT'S COLUMN KENNON WOOTEN, SCOTT DOUGLASS & McCONNICO

Our State of Affairs: An Honest Assessment

A

s more and more people receive COVID-19 vaccines, a sense of hope is returning to communities across our nation. As we spend time (in person!) with our families and friends again, we rejoice in togetherness and remember how important social bonds are to our well-being. In addition, the development and distribution of vaccines have demonstrated our remarkable resourcefulness and resilience as human beings.

In short, there are sources of gratitude and inspiration all around us.

But the assessment of our state of affairs is incomplete if we do not address inequities highlighted by the pandemic.

Data tracking shows that people of color have been impacted disproportionately by COVID-19.

For example, as of March 7, 2021, data showed that nationwide Black people had “died at 1.4 times the rate of white people” and that death rates of other people of color (such as Indigenous and Latinx people) also far exceeded the death rate of white people.1 Why? According to the CDC, “[i]nequities in the social determinants of health, such as poverty and healthcare access, [are] affecting these groups” and impacting “a wide range of health and quality-of-life outcomes and risks.”2 The CDC has also acknowledged astutely that, “[t]o achieve health equity, barriers must be removed so that 6

AUSTINLAWYER | MAY 2021

everyone has a fair opportunity to be as healthy as possible.”3 Beyond highlighting existing inequities, the pandemic has fueled racism against Asian Americans and Pacific Islanders.

In 2020, reports of anti-Asian hate crimes rose nearly 150% in major U.S. cities, while overall hate crimes fell by 7%.4 Also on the rise are hate incidents, which the Department of Justice defines as “acts of prejudice that are not crimes and do not involve violence, threats, or property damage.”5 According to one report, nearly 3,800 hate incidents were reported against people in the AAPI community between March 2020 and February 2021 alone.6 Why are these hate crimes and incidents on the rise? I believe there are many reasons, including harmful rhetoric used by high-profile people to describe COVID-19, as well as a history of racism that makes people in the AAPI community more vulnerable to racism than they otherwise would be.

Whatever our respective beliefs may be in regard to the roots of and remedies for inequities and racism, one thing is clear: Words and actions have power. Dr. Maya Angelou captured the power of words well when she said: “Words are things. You must be careful—careful about calling people out of their names, using racial pejoratives and sexual pejoratives and all that ignorance. Don’t do that… . Someday we’ll be able to measure the power of words.

I think they are things. I think they get on the walls, they get in your wallpaper, they get in your rugs, in your upholstery, in your clothes. And, finally, into you.”

Words have stung us, and they have soothed us. They have united us, and they have divided us.

With hate crimes and incidents on the rise, we should all use our

I hope you will join us for the Equity Summit this month and in years to come.

I also welcome you to join the Austin Bar in our broader efforts “to lay down the burdens of hate and divisiveness, respect the dignity and worth of every human being, and move forward in our progress toward a more unified bar…” words with care. And whenever we see something that is not right, we should say something.7 This year, the Austin Bar has focused on words and actions relating to equity and racism. In June 2020, then-President D. Todd Smith and I issued a statement unequivocally condemning racism. In July 2020, the Austin Bar and AYLA issued a joint resolution and, in it, committed to actions such as providing anti-racism/implicit-bias training to our members. Also in July 2020, the Austin Bar introduced a new Equity Committee, which has contributed excellent content to this publication and has coordinated multiple events designed to heighten awareness and

advance equity in and beyond the legal profession. More recently, in March 2021, the Austin Bar board unanimously approved an Equitable and Inclusive Vendor Policy and an Equity Statement.

Later this month, on May 14, the Austin Bar will host its inaugural Equity Summit. To make this event equally accessible to all, including people who may not be vaccinated by May 14, the event will be remote (via Zoom) and will be free of charge. As Equity Committee member Craig Moore noted in last month’s issue of Austin Lawyer, the summit will focus on race this year. In years to come, the goal is to focus on other topics, such as intersectionality, gender, and sexual

good not just in parts, but on the orientation.

AUSTIN LAWYER AL AL whole.

I hope you will join us for the Equity Summit this month and Footnotes in years to come. I also welcome 1. The COVID Tracking Project, The you to join the Austin Bar in our COVID Racial Data Tracker, https:// broader efforts “to lay down the covidtracking.com/race (last visited Apr. 3, 2021). burdens of hate and divisiveness, 2. The Centers for Disease respect the dignity and worth Control and Prevention, of every human being, and Health Equity Considerations and Racial and Ethnic Minority move forward in our progress Groups, https://www.cdc.gov/ toward a more unified bar and an coronavirus/2019-ncov/community/ health-equity/race-ethnicity. equitable, just society that is at html#anchor_1595551043298 (last peace with itself.”8 Step by step, visited Apr. 3, 2021). and side by side, we can reach a 3. Id. point where our state of affairs is 4. Center for the Study of Hate &

Extremism, Anti-Asian Hate Crimes Reported to Police in America’s Largest Cities: 2020, https://www.csusb. edu/sites/default/files/FACT%20 SHEET-%20Anti-Asian%20Hate%20 2020%203.2.21.pdf (last visited Apr. 3, 2021).

4. U.S. Department of Justice, Learn About Hate Crimes, https://www. justice.gov/hatecrimes/learn-abouthate-crimes/chart (last visited Apr. 3, 2021).

5. Stop AAPI Hate, Stop AAPI Hate National Report, https:// secureservercdn.net/104.238.69.231/ a1w.90d.myftpupload.com/wpcontent/uploads/2021/03/210312Stop-AAPI-Hate-National-Report-.pdf (last visited Apr. 3, 2021).

7. Several reporting mechanisms are

available, including through (1) the Anti-Defamation League (https:// www.adl.org/reportincident), (2) Stop AAPI Hate (https://stopaapihate.org/), and (3) the Department of Homeland Security (https://www.dhs.gov/seesomething-say-something).

8. Austin Bar and AYLA, Joint Resolution, https://www.austinbar.org/2020/07/ austin-bar-association-and-austinyoung-lawyers-association-resolution/ (last visited Apr. 3, 2021).

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MAY 2021 | AUSTINLAWYER

7

The History of the Austin Asian American Bar Association Diane Brown and Albert Li Planted the Seeds, Giving Austin’s Asian American Lawyers a Voice This is the first in a series of articles sponsored by the Austin Bar Association’s History and Traditions Committee.

T

he year was 1990.

Diane Brown, a prosecutor in the Austin Municipal Court, was chatting with Jim Coronado, who at the time was a criminal court magistrate. Jim, who was active with a group of Mexican American attorneys that later became the Hispanic Bar Association of Austin, suggested to Diane that there should be a bar association for Asian American attorneys in Austin. The idea stuck in Diane’s head, and she eventually shared it with a few other Asian American lawyers she knew: Karen Lee, who worked with her at the Comptroller’s Office; Sheela Rai, who was working at the Attorney

8

AUSTINLAWYER | MAY 2021

General’s Office; and Cicy Wong, who was General Counsel for Ames Industries. The other lawyers liked the idea of giving Austin’s Asian American lawyers a voice and a presence.

The group met six times in 1992 and 1993, inviting a number of other Asian American lawyers to join them to discuss the details. In October 1993, the fruits of their efforts were realized, and the Asian American Bar Association of Austin was formally incorporated.

The organization was very small at first. During the planning stages, the group requested a printout from the State Bar of the lawyers who had self-identified as Asian American, and the dot matrix printout they were given listed only 15 lawyers.

Nevertheless, the energetic group met monthly, organized social gatherings and CLEs, and circulated a monthly, multi-page newsletter. Despite all efforts, however, by 1995 their membership roster only contained 20 lawyers. As anyone who has run a bar association knows, 100% participation is never possible.

When there are so few people doing all the heavy lifting, it can be difficult to keep up the pace.

Sometime in the late 1990s, the organization lost momentum, and it was formally dissolved in 1999.

Fast forward a little more than half a decade, and attorney Albert Li decided Austin again needed to have its own Asian American bar association.

By then, Austin had over 120 lawyers who identified as AAPI, almost a tenfold increase over the original list the founders had received in 1992. In 2006, Li organized a series of meetings at

The University of Texas School of Law for anyone interested in assisting with the re-incorporation of an Austin Asian American bar association. From these meetings emerged a council of 17 lawyers who agreed to launch the new organization, renamed the Austin Asian American Bar Association (AAABA). AAABA was formally incorporated in July 2006 and soon thereafter became the third Texas-based affiliate of the National Asian Pacific American Bar Association.

AAABA continues to operate as a thriving organization, now boasting about 80 members. Of those, about 50 have invested in lifetime memberships. AAABA supports its members by offering social and networking events, CLE, community service and pro bono opportunities, professional development and mentoring, and other opportunities to benefit its members.

Austin’s Asian American legal community has come a long way since Diane Brown's initial organizing efforts in 1990. Given the rapid growth of our city’s Asian American legal community in the ensuing 31LAWYER years, AAABA AUSTIN is likely here toAstay.

L AL

MAY 2021 | AUSTINLAWYER

9

BRIEFS NEW MEMBERS

NEW TO THE OFFICE

Katie Fillmore has joined Duane Morris as special counsel.

Fillmore practices in the area of health law. She has experience with matters involving legal and regulatory compliance issues and mass-tort pharmaceutical and medical device litigation.

The Austin Bar welcomes the following new members: Clara Betancourt Joseph Crawford Mitch Kreindler Marc Limsiaco

ABOVE: (from left): Baker, Fillmore, Villareal

Jennifer Pier Gary Wright

MOVING ON UP

Texas appellate firm Alexander Dubose & Jefferson announced the promotion of Anna Baker to partner. Based in the firm’s Austin office, Baker focuses her appellate practice on matters involving business disputes, personal injury litigation, breach of contract, large estate disputes, and discovery disputes.

Baker Botts announced that Gavin Villareal was named partner-in-charge of the firm’s Austin office. Villareal represents clients in a wide variety of complex business-related disputes in state and federal trial and appellate courts, as well as before the U.S. Securities and Exchange Commission and the Public Company Accounting Oversight Board.

IN THE NEWS

Lakeside Mediation Center announced it will be transitioning to an online platform for mediations while remaining available for in-person mediations at other locations when CDC guidelines support it. Lakeside Mediation Center will continue to receive mail at 3825 Lake Austin Blvd.

Suite 403, and can be reached at 512.477.9300 or at adr@ lakesidemediation.com.

SUBMIT A BRIEF If you are an Austin Bar member and you’ve moved, been promoted, hired an associate, taken on a partner, or received a promotion or award, we’d like to hear from you. Notices are printed at no cost, must be submitted in writing, and are subject to editing.

Announcements should include all pertinent information including firm name, address, and contact numbers. Send submissions along with a high-resolution head shot to Austin Lawyer Managing Editor Nancy Gray at Nancy@austinbar.org.

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BE WELL

Family Is Essential to Attorney Wellness

BY JORGE A. PADILLA

Jorge Padilla is a partner in Jackson Walker's trial section and handles a variety of business disputes for his clients.

When he’s not at the office, he enjoys spending as much time as possible with his wife and three daughters.

E

xperts say a supportive social and family life is crucial to overall wellness. We all need to make time to nurture our relationships with family and friends, because these connections help us achieve an overall healthy lifestyle.

This priority is just as, or more, important for lawyers, who can experience higher levels of stress than those working in most other professions, according to countless studies.

For me, time with family is a retreat from the grind of

the day-to-day stress of life as a lawyer. My wife is not concerned with the motion to dismiss I just filed. My three daughters don’t care about which case I cited in a footnote of my most recent brief. They certainly don’t care how many hours I billed (unless it means I spent too many hours away from home). They care more about whether I’ll take them to the park or out for ice cream. The joy on the face of my four-year old when I open the front door every night seems almost undeserved.

And in spite of this, I still find it difficult at times to separate my life at work from the one at home. More specifically, to turn off my lawyer brain and turn on my husband and dad heart. When we care about our work and our clients, it’s not so simple to flip a switch and avoid thinking about tomorrow’s hearing or the nasty email you received from opposing counsel (out of town, of course).

For many of us, working from home has magnified this problem over the past year.

A ROUTINE IS KEY In my experience, a few different tactics can help to combat this issue. First, I try to keep a routine that helps me shift from work mode to home mode. If I’m doing

Mediation.

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SCHEDULE INTENTIONAL WEEKEND ACTIVITIES The weekends offer the hope of a longer break from the grind of our daily lives, so long as we are intentional about how we use our time. Unfortunately, I know the feeling of arriving into the office on Monday morning with the dread of knowing I didn’t fully take advantage of my two days away from the office. To avoid that, our family tries to schedule activities that offer a change of pace to the monotony of work and school. It could be as simple as a family hike on the nearby Bull Creek greenbelt or a camping trip with friends. Sundays include church in the morning and, perhaps, a slower afternoon spent outdoors with family and friends.

What’s important is to learn to truly unplug from the monotony STAY OFF THE COMPUTER and stress of our work lives, even AND PHONE if only for a few hours at a time.

I do my best to put away my We all need a way to unwind phone and enjoy the time with from the demands of our legal my family. This can be a struggle, careers. Setting up a daily routine as sometimes urgent issues arise to unplug and focus deliberate after regular business hours. and intentional time with our But I’ve found that having a loved ones is well worth the dedicated home routine helps effort. Luckily, time with our me schedule the “off” time to families can be a great outlet to be present with my loved ones. escape our professional demands If there’s more work to be done and re-energize ourselves so we that day, it will simply wait until AUSTIN canLAWYER be happier—at work and at after they’ve gone to bed.

AL AL home.

it right, this begins on the drive home from the office (or at least as I’m pulling into the driveway), where I make a conscious decision to begin to focus on home life and responsibilities. It sounds cliché, but making an active decision to be present with your loved ones when you get home can really help focus your attention away from your work responsibilities.

The routine continues when I arrive home, as I know I have certain duties I’m relied upon to handle. Like most families, we’ve carved out certain tasks to help keep the household running smoothly. Mine include helping with bath and bedtime with the kids. If I’m not home in time for dinner, this is the best time for me to hear about their day and what they are learning about in school.

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Certified Mediator: Harvard Negotiation Program; Mediators and Arbitrators of America TEXAS SUPER LAWYER 2004, 2005, 2008, 2009

OPENING STATEMENT

Research on Persuasive Legal Writing Three Recent Projects

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

W

hen I first learned about persuasive legal writing, the advice was simple: avoid lying, follow the rules, reduce errors.

Today, we have science. Now, many authors are publishing research studies that try to define persuasive legal writing scientifically. I summarize three here.

READABILITY Brady Coleman and Quy Phung assembled a database of U.S. Supreme Court briefs filed from 1970 to 2004 and performed some calculations using the Flesch Reading Ease Scale, which assigns a readability score from zero (extremely difficult) to 100 (very easy). They also used the Flesch-Kincaid Grade Level, which assigns a number representing the years of education the reader would need to read the text comfortably (12 = high school graduate, 16 = college, etc.)

Their data show that U.S. Supreme Court briefs are becoming more readable. During the period of their study they found the following: • the Argument section’s readability increased from 33 to 39.

• the Argument section’s grade level moved from 15 to 12.

• the Statement of Facts grade level moved from 14 to 13.1

I’m not willing to believe that these briefs became “simpler” because the writers got dumber.

Instead, I think lawyers are learning that readable briefs are more persuasive.

In another study, Shaun Spencer and Adam Feldman reviewed 654 summary judgment motions—trial briefs.

They scored the briefs with 50 readability measures, assessing word difficulty as well as syllable,

Authors found that a brief’s readability was significantly correlated with success at summary judgment.

Meaning: the easier your brief is to read, the more likely it is that you’ll win.

letter, and sentence counts, and they produced a readability score for each brief.

After controlling for multiple factors, internal and external to the briefs, the authors found that a brief’s readability was significantly correlated with success at summary judgment. Meaning: the easier your brief is to read, the more likely it is that you’ll win. The correlation was even stronger in federal court than in state court.

Specifically, if the moving party’s brief was significantly less readable than nonmoving party’s brief, the moving party had only a 42% chance of winning. But if the moving party’s brief was significantly more readable than the nonmoving party’s brief, it had an 85% chance of winning.2 I should mention that you can assess the readability and grade

level of your own writing. In Microsoft Word, go to File and select Options and then Proofing. Check the box for “Show Readability Statistics.” Now, after a spell-check, you’ll see a display that includes your Reading Ease score and grade level.

STORYTELLING Finally, lawyers and legal-writing teachers have long believed that stories are persuasive, and now there’s evidence to prove it.

Legal-writing expert Kenneth Chestek sent briefs written for a fictional case to 95 judges, clerks, staff attorneys, practitioners, and law professors.

Each reviewer received two briefs. In one brief, the argument had a narrative component— characters who encounter an obstacle and seek to overcome it—plus the legal argument. The

other brief advocated for the same party but with only the legal argument; it had no narrative component. The author’s data showed that 64% found the narrative briefs more persuasive.3 That’s a solid, nearly two-thirds majority in favor of story.

You probably knew this already, but now there’s science: When you need to write persuasively, science tells you to write AUSTIN LAWYER AL AL readably and tell a story.

Footnotes 1. Brady Coleman & Quy Phung, The Language of Supreme Court Briefs: A Large-Scale Quantitative Investigation, 11 J. App. Prac. & Process 75, 98, 99 (2010).

2. Shaun B. Spencer & Adam Feldman, Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment Success, 22 J. Leg. Writing Inst. 61, 94 (2018).

3. Kenneth Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J. Assn. Legal Writing Directors 1, 19 (Fall 2010).

MAY 2021 | AUSTINLAWYER

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THIRD COURT OF APPEALS CIVIL UPDATE

>

The following are summaries of selected civil opinions issued by the Third Court of Appeals during March 2021.

The summaries are an overview; please review the entire opinions. Subsequent histories are current as of April 1, 2021.

ADMINISTRATIVE LAW: Court reverses claim for declaratory relief on immunity grounds.

Hegar v. Allen Sena, Inc., No. 0318-00043-CV (Tex. App.—Austin Mar. 10, 2021, no pet. h.) (mem. op.). After Comptroller imposed taxes against ASI, ASI exhausted its administrative remedies and sought injunctive and declaratory relief. ASI did not pay the taxes but instead filed an oath of inability to pay. Comptroller filed a plea to the jurisdiction asserting immunity because ASI failed to prepay the taxes and arguing that immunity also barred the declaratory judgment claim. The trial court overruled the plea.

The court of appeals concluded that the trial court lacked jurisdiction. According to the court, the statute waives immunity only for protests, injunctions, and refunds. Section 112.108 specifically bars declaratory judgments relating to assessment of taxes.

The court reversed and rendered judgment dismissing ASI’s declaratory claim.

OIL & GAS: Court concludes “subject-to” clause did not reserve a mineral interest.

Ross v. Flower, No. 03-19-00516CV (Tex. App.—Austin Mar. 10, 2021, no pet. h.) (mem. op.). The deed stated that the conveyance was “subject to any oil, gas and other minerals, including but not limited to building stone, limestone, caliche, surface shale, water, sand, gravel and lignite, iron and coal.” The trial court found that the deed did not reserve or except the mineral estate. The court of appeals observed that deeds are construed to confer upon the grantee the greatest estate that the instrument’s terms allow. The court concluded that because the subject-to clause referenced both “oil, gas and other minerals” and any existing encumbrances, the clause intended to avoid a breach of warranty and an over-conveyance problem; it did not reserve a mineral interest. The court affirmed.

TRIAL PROCEDURE: Court reverses default judgment for failure to comply with substitute-service order.

De La Garza v. Dunn, No. 03-1900849-CV (Tex. App.—Austin Mar. 31, 2021, no pet. h.) (mem. op.). Dunn sued De La Garza for breach of contract and obtained an order for substitute service.

Dunn later amended his petition to allege fraud and a request for exemplary damages and again obtained an order for substitute

service. The trial court signed a no-answer default judgment and awarded actual and exemplary damages. The court of appeals noted that a no-answer default judgment cannot stand if the defendant was not served in strict compliance with applicable service-of-process requirements.

Mistakes in an address prevent proper substitute service.

Here, the address in the order authorizing substitute service did not match the process server’s return. Accordingly, the court reversed the default judgment and remanded.

Laurie Ratliff, a former staff attorney with the Third Court of Appeals, is board certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.

FAMILY LAW: Court grants mandamus relief when trial court’s temporary orders changed parent with right to designate primary residence.

In re Barker, No. 03-21-00036CV (Tex. App.—Austin Mar. 4, 2021, orig. proceeding) (mem. op.). The parties’ divorce decree designated mother as the parent residence unless it is in the with the right to determine prichildren’s best interest and the mary residence of the children. change is necessary because the Father filed a motion to modify children’s present circumstances and sought temporary orders to would significantly impair their change the party with the right physical health or emotional to designate the children’s pridevelopment. According to the mary residence. Father alleged court, the statute requires evithat the children’s health was at dence of the children’s present, risk. The trial court signed temnot past, circumstances. The porary orders to allow father to court concluded that the record designate the primary residence. failed to show that the children’s On mandamus review, the court present circumstances would of appeals noted that Family impair their physical health.

Code § 156.006 bars a change in The court granted mandamus AUSTIN LAWYER the party to designate primary AL AL relief.

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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 following are summaries of selected criminal opinions issued by the Third Court of Appeals from October 2020.

The summaries are an overview; please review the entire opinions. Subsequent histories are current as of April 1, 2021.

CHARGE ISSUES – ARTICLE 38.23 INSTRUCTION: Trial court did not err by failing to include Article 38.23 instruction in jury charge.

Aguilar v. State, No. 03-19-00149CR (Tex. App.—Austin Oct. 7, 2020, no pet.) (mem. op., not designated for publication). Appellant was convicted of driving while intoxicated following a traffic stop for speeding. On appeal, among other issues, appellant argued that he was entitled to an instruction under Article 38.23(a) of the Code of Criminal Procedure, which provides that any evidence obtained illegally by law enforcement is inadmissible at trial and that, “[i]n any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.”

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AUSTINLAWYER | MAY 2021

Appellant asserted that he was entitled to this instruction because the arresting officer provided conflicting testimony regarding the role that appellant’s speeding played in the officer’s decision to extend the traffic stop for a DWI investigation. The appellate court disagreed. After summarizing the law regarding Article 38.23 instructions, the court explained that it perceived no “material factual dispute” in the case, only a dispute “with respect to the legal significance of what are, in essence, undisputed facts.” Even if the officer provided conflicting testimony regarding the role that speeding played in his decision, “there was no dispute that [appellant] committed the traffic offense and that [the officer] observed that offense.” A disagreement about “the legal consequences of” the traffic offense is a question of law for the trial court to decide. The appellate court further concluded that appellant’s speeding was not “material” to the lawfulness of the continued detention because there were additional facts that supported the officer’s decision to continue the detention. The officer smelled alcohol on appellant’s breath after appellant got out of his vehicle and appellant admitted to drinking multiple beers before the traffic stop. Thus, any disputed fact regarding speeding “was not essential to deciding the lawfulness of the continued detention because other undisputed facts were sufficient to support the lawfulness of the detention.”

CHARGE ISSUES – SELFDEFENSE INSTRUCTION: Trial court did not err by failing to charge jury on law of self-defense.

Taplin v. State, No. 03-19-00257CR (Tex. App.—Austin Oct. 15, 2020, pet. ref’d) (mem. op., not designated for publication).

Appellant was convicted of assault on a public servant. The incident occurred in the hallway outside appellant’s jail cell, when appellant threatened and then assaulted an officer at the jail. During

the charge conference, appellant argued that he was entitled to an instruction on self-defense because he “acted only after some type of force was used against him.” The trial court denied the request for an instruction. Appellant urged his argument again on appeal. He relied on evidence showing that (1) the officer might have initiated the physical contact with appellant and (2) appellant had been told by another inmate that the officer had previously assaulted appellant’s brother. The court disagreed that this evidence raised an issue as to self-defense.

The court explained, “[T]he evidence that another inmate told [appellant] that [the officer] had assaulted [appellant’s] brother at some unidentified time” would not support a rational inference that appellant’s “subjective state of mind was one of fear” when he assaulted the officer. Additionally, there had to be some evidence that appellant “reason-

ably believed his use of force was immediately necessary to protect himself against the use or attempted use of unlawful force.”

The officer “did not act unlawfully during the incident but within his job duties as an officer at the jail when, immediately after [appellant] threatened him and aggressively moved toward” the officer, the officer “placed his hands” on appellant and tried to gain control of appellant to “place him back in his cell.” The court concluded that appellant was not entitled to an instruction on self-defense and affirmed appellant’s conviction. The court’s decision was not unanimous. Justice Kelly dissented, writing that “[t]he governing standards allow for a weak, contradicted, impeached, or not credible interpretation of the evidence to suffice to raise self-defense. Every piece of evidence supporting self-defense here may suffer from those flaws.

AUSTIN LAWYER But the pieces are still here.”

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FEDERAL CIVIL COURT UPDATE

>

The following is a summary of a recent Supreme Court decision on personal jurisdiction. The summary is an overview; please review the entire opinion.

PERSONAL JURISDICTION: Plaintiff need not show causal link between defendant’s contacts with forum state and plaintiff’s injury to establish specific personal jurisdiction.

Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 141 S. Ct. 1017 (2021).This consolidated appeal involved two products liability suits brought against Ford Motor Company in two different state courts, one in Montana and one in Minnesota, by residents of the forum states. Both cases stemmed from accidents involving Ford vehicles that occurred in those forum states. In each case, Ford moved to dismiss for lack of personal jurisdiction on identical grounds.

According to Ford, a state court could exercise specific personal jurisdiction only if the company’s conduct in the state was a but-for cause of the plaintiff’s claims.

Ford argued that the causal link existed only if the company had designed or manufactured the particular vehicle involved in the accident in the state. In neither suit could the plaintiff make that showing. Instead, the vehicles only arrived in Montana and Michigan through subsequent resales and relocations by consumers. Ford argued that this meant that the courts of both those states could not exercise jurisdiction over Ford. Both state courts rejected Ford’s argument and exercised personal jurisdiction.

The Supreme Court affirmed.

The Fourteenth Amendment’s Due Process Clause limits a state court’s power to exercise jurisdiction over a defendant.

International Shoe Co. v. Washington, 326 U. S. 310 (1945) remains the guiding standard, in which the Court held a tribunal’s

authority depends on the defendant’s having such “contacts” with the forum state that “the maintenance of the suit” is “reasonable, in the context of our federal system of government,” and “does not offend traditional notions of fair play and substantial justice.” In making this determination, the Court focused on the nature and extent of the defendant’s relationship to the forum state. This creates two types of personal jurisdiction: general and specific jurisdiction.

The Ford case concerns application of specific jurisdiction.

For specific jurisdiction to apply, “there must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’”

Here, Ford conceded that it purposefully availed itself of the privilege of conducting activities within Montana and Minnesota.

Ford, however, argued that its activities in the forum state were not sufficiently connected to the suits because its forum conduct did not cause the plaintiffs’ claims. And Ford argued that its forum conduct did not cause plaintiffs’ claims because Ford did not manufacturer, design, or sell the relevant vehicles in the forum state. The Court rejected Ford’s causation-only approach.

The Court iterated that the specific-jurisdiction standard demands only that the suit “arise out of or relate to” the defendant’s contacts with the forum.

“The first half of that standard asks about causation; but the back half, after the ‘or,’ contemplates that some relationships will support jurisdiction without a causal showing.” Although the Court stated that there are limits to what relationships will support specific jurisdiction, the Court did not identify what those limits are.

Instead, the Court highlighted its decision in World-Wide Volkswagen Corp. v. Woodson, 444

Sameer Hashmi is an associate at Scott Douglass McConnico who practices complex commercial litigation across Texas and around the country.

David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.

U.S. 286, 293 (1980) to exemplify what relationships give rise to specific jurisdiction. There, the Court held that an Oklahoma court could not exercise specific jurisdiction over a New York car dealer just because it sold a car in New York that later caught fire in Oklahoma. However, the Court contrasted the dealer’s position with two other defendants in the case who did not contest jurisdiction, Audi (the manufacturer) and Volkswagen (the nationwide importer), stating: “[I]f the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in [several or all] other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.”

After all, a company purposefully availing itself to the Oklahoma auto market has clear notice of its exposure in that state to suits arising from local accidents involving its cars. Here, Ford marketed its vehicles, including Ford Explorers and Crown Victorias, in both forum states.

They were available for sale at

several dealerships in both states, and Ford sustains relationships with those dealers who maintain and repair Ford vehicles. Thus, Ford systematically served the market in Montana and Minnesota for the very vehicles that the plaintiffs allege malfunctioned and injured them in those states.

This created a “strong relationship among the defendant, the forum, and the litigation,” which supported specific jurisdiction.

For those reasons, the Court affirmed the state court's exercise AUSTIN LAWYER AL AL of personal jurisdiction.

MAY 2021 | AUSTINLAWYER

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CRIMINAL COURT NEWS

Picture This: Fifth Circuit Clarifies Rules for Searching Cell Phone Photos

BY DAN DWORIN

The case illustrates that the courts… consider cell phones as being similar to containers that hold lots of different things.

D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.

I

n an unusually favorable ruling for the defense, the Fifth Circuit Court of Appeals recently held that a search warrant affidavit with the standard verbiage about drug dealers’ use of their phones was insufficient to support the search of photographs on a phone seized from a suspect who possessed only personal-use quantities of drugs. United States v. Morton, 981 F.3d 421 (5th Cir. 2021).

The case arose out of a traffic stop, in which a DPS trooper pulled Brian Morton over for speeding near Palo Pinto, Texas.

The trooper gained Morton’s consent to search the car after smelling marijuana. Inside the car, the trooper found sixteen

ecstacy pills, one small bag of marijuana, and a glass pipe. The trooper also found children’s school supplies, a lollipop, and 100 pairs of women’s underwear.

The trooper arrested Morton for drug possession, but the arresting officers were also concerned that Morton might be a pedophile based on the other evidence.

The DPS trooper drafted a search warrant affidavit, in which he articulated his training, experience, and knowledge of the activities of drug dealers. The affidavit did not mention anything about the concerns raised by the other evidence. Part of the affidavit stated that drug dealers often have photographs of drugs, currency, and other evidence of their drug dealing on their phones. For this reason, the warrant granted permission to search the photos on Morton’s phone.

No evidence of drug dealing was found, but over 19,000 images of child pornography were recovered

after the phone was searched.

Morton moved to suppress the evidence, but the trial court denied the motion. On appeal, the Fifth Circuit held that the drug quantities Morton possessed did not support a finding that Morton was dealing drugs. Therefore, the language in the affidavit concerning the normal activities of drug dealers was inapplicable to Morton. The court held that a search of Morton’s text messages or other communications was reasonable, since such a search could help prove that Morton knowingly possessed the drugs found in his car. The court held, however, that the search of his photos was not reasonable in relation to activities of drug dealers. Consequently, the evidence of child pornography should have been suppressed.

The case illustrates that the courts, following the United States Supreme Court precedent articulated in Riley v. California,1 consider cell phones as being

similar to containers that hold lots of different things. Establishing probable cause to believe that each of the various things (communications, location data, photos, etc.) sought to be searched may contain evidence of a crime is crucial. Most surprisingly, the court also held that the federal “good-faith exception” did not save the search, as the court found that the officer’s reliance on the defective search warrant was not AUSTIN LAWYER AL AL “objectively reasonable.”

Footnote 1. 573 U.S. 373 (2014).

Helping clients manage significant wealth Matt Rappaport, CDFA®, CEPA® Financial Advisor 512-542-7507 matt.rappaport@ubs.com

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AUSTINLAWYER | MAY 2021

LGBT Law Student Scholarship Applications Due June 4, 2021

T

he Austin Bar Foundation and the LGBT Law Section of the Austin Bar Association are honored to announce the Foundation’s sixth annual LGBT Scholarship. The Foundation will award $3,000 scholarships to two current students (including 2021 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 located in the State of Texas, and must have demonstrated some commitment or contribution to the LGBT community or LGBT legal issues.

This criterion will be broadly construed to include activities consistent with the Austin Bar’s LGBT Law Section’s purposes of

JUNE 4 AUSTIN BAR FOUNDATION LGBT SCHOLARSHIP Applications Due Email: Denise.Hernandez@ TravisCountyTx.gov

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, educational debt burden, and financial need.

Applications and instructions on applying can be found at austinbar.org. Applications must be postmarked by June 4, 2021.

The Foundation will announce recipients in July. Contact Denise Hernandez with any questions at Denise.Hernandez@ AUSTIN LAWYER TravisCountyTx.gov.

AL AL

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19

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN DAVID KING, ARMBRUST & BROWN

What’s in Store for Young Lawyers?

N

ow a third of our way into 2021, there is good reason to be optimistic about the rest of the year. With the federal government predicting there will be enough vaccines to cover every American adult by the end of May, it’s not that hard to start picturing a brighter, post-pandemic world. The pent-up demand for the things we missed in 2020—travel, live music, movie theatres, etc.—is palpable. It’s no wonder that many are predicting that the economy—both in the United States and globally—will come roaring back as consumer spending increases.1 So what might be on the horizon for young lawyers? Here are some of my thoughts and predictions:

We’re going to be busy. This prediction isn't unique to young lawyers, but rather for everyone across legal fields. On the transactional side, a rebounding economy is going to mean more deals.

On the litigation side, disputes that have been percolating during (or perhaps because of) the pandemic are going to find their way into courts that are seating juries again. Public-service-oriented lawyers may be the busiest of all as they work to confront the backlog of legal issues faced by our most vulnerable populations during the pandemic. On a side note, please schedule time for some pro bono work! If you need help finding pro bono opportunities, contact me at dking@ abaustin.com, or Debbie Kelly at debbie@austinbar.org. Among other projects, AYLA is launching a new pro bono project in May in partnership with the Area Agency on Aging of the Capital Area, Texas Rio Grande Legal Aid, the Texas Legal Services Center, and the State Health Insurance Assistance Program. All AYLA members are invited to participate.

PATIENT

More solos. We learned during the pandemic that we can do our jobs remotely. I suspect many young lawyers also learned they can do their jobs autonomously.

Mentoring and training is, of course, critical to the development of young lawyers, but being forced to be “on their own” over the past year has led a number of young lawyers to gain more confidence in themselves and to consider what it would be like to hang their own shingle. For those who preferred more independence, I expect we’ll see a new batch of ambitious young lawyers striking out on their own in the coming years.

Back to normal? Here’s my most daring prediction of the year: The majority of lawyers will be back in the office by the end of 2021. This may sound crazy; in fact, it contradicts the predictions I made last summer when I envisioned a post-pandemic legal world in which law firms, realizing they could save money without reducing productivity, would renegotiate their leases and shrink their footprints dra-

PRACTICAL

matically. I’m not so sure about that anymore. Are we really ready to make remote working permanent—which means permanently blurring the line between home and work? Maybe so. But I think there is a countervailing pressure to get back to “normal”—the same pressure that is making us book our travel plans this summer and daydream about going to live concerts again. So, while remote working has its perks and could be here to stay, I’m going to go out on a limb and say it is not here to stay—at least, not for the majority of lawyers. Instead, we’re going to hit a “FOMO” tipping point where enough people are going into the office to make others think they need to be there, too.

As the old saying goes, “It is tough to make predictions, especially about the future.” But AUSTIN LAWYER it’s still fun toALtry! AL Footnote 1. See Peterson Institute for International Economics, Global Economic Prospects: Spring 2021, available at https://www.piie.com/ events/global-economic-prospectsspring-2021.

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AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Honors Award Winners

T

he AYLA board of directors has recognized members of our community for three prestigious awards. These local winners will be submitted to Texas Young Lawyers Association as nominees for the corresponding statewide awards.

The Outstanding Young Lawyer Award recognizes a young lawyer who has demonstrated professional proficiency, service to the profession, and service to the community. This year’s winner is Armin Salek.

The Mentor Award recognizes an attorney who has consistently demonstrated a commitment to

mentoring young lawyers in the legal community. This year’s winner is Ben Dower.

The Liberty Bell Award recognizes one outstanding non-lawyer in Texas who has made the most selfless contribution to his or her community to strengthen the effectiveness of the American system of justice by instilling better understanding and appreciation of the law. This year’s winner is Matthew Hinsley and his team from Austin Classical Guitar.

Thank you to everyone who submitted a nomination and to those who serve our community, whether you areAUSTIN loudly recogLAWYER nized or quietly appreciated.

AL AL

TOP LEFT: Armin Salek, 2020-21 AYLA Outstanding Young Lawyer honoree; RIGHT COMPOSITE: (clockwise) Matt Hinsley, Ciyadh Wells, Jeremy Osborne (with the guitar), and Travis Marcum—all part of the Austin Classical Guitar team.

BOTTOM LEFT: Ben Dower, 2020-21 AYLA Mentor Award honoree.

Recent AYLA Events Offer Fun and Fitness ZOOM YOGA On March 4, the AYLA Fitness Committee hosted its first Zoom yoga class. Led by Dallas-based attorney and former AYLA member Sireesha Chirala, it offered AYLA members a way to unwind. Chirala is a 500-hour registered yoga teacher who offers vinyasa, hatha-flow, yin/ restorative yoga, and meditation classes. The AYLA Fitness Committee hopes to put on more events like this in the future to help attorneys focus on

their mental and physical health outside of their law practices.

TRIVIA NIGHT On March 25, AYLA held another fun trivia night for its members, hosted by Floyd Real Estate.

Congratulations to winner Will Hailey, who received a Lowes gift card for his stellar trivia performance. Thanks to everyone who attended and, of course, special thanks to Dave Floyd for asking the tough questions and keeping AUSTIN LAWYER AL AL it real (not just the estate).

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MAY 2021 | AUSTINLAWYER

21

PRACTICE POINTERS

Zoom Mediations Are Effective and Here to Stay

BY PATRICK KEEL

Patrick Keel, a former state district judge, has been a full-time mediator and arbitrator for over 16 years, helping resolve thousands of disputes involving all areas of civil litigation. He is also an adjunct professor and frequent guest lecturer at the UT School of Law.

A

fter months of mediating cases

by Zoom, how do lawyers feel about the video format compared to traditional, in-person mediation? I was genuinely curious, so I asked all lawyers in my contacts list.

Over 300 shared their opinions by replying to an online survey.

The responses confirmed my suspicion: Lawyers believe that mediating by video conference has worked well. In fact, a huge majority of lawyers (75%) report that their effectiveness as advocates for their clients has been unchanged or even improved while using the video format. (See chart 1.)

Likewise, 70% of lawyers rate the effectiveness of mediators as unchanged or even better by video.

Moreover, the above responses reflect the opinions of experienced lawyers, not just young attorneys who might be expected to more easily adapt to mediating by video. Over 76% of the survey’s respondents have practiced law for more than 15 years; only about 2% have been 22

AUSTINLAWYER | MAY 2021

practicing for fewer than five years.

Many of the responding lawyers’ comments strike familiar themes: Mediating by video is different but manageable, eliminates the stress of travel and other logistical challenges, and minimizes “downtime” during mediation sessions.

What about the opportunity to reach a settlement by video compared to mediating in person? As with their views about mediators’ and their own effectiveness, the responding lawyers reported either no change or an improvement—59% said no change and 13% said that the video format actually improved the chances of striking a deal. (See chart 2.)

As one lawyer commented, “If a case is not going to settle live, it won’t settle by Zoom. If it likely would settle live, it’ll likely settle by Zoom.”

Finally, the above enthusiasm for mediating by video is also reflected in lawyers’ predictions about the future. When asked whether they are likely to consider using video for mediations after the pandemic is over, a whopping 69% said yes. Only 12% said no, with the remaining 19% saying maybe. (See chart 3.)

Among those who said they would consider mediating by video in the future, 44% said they would prefer to attend more than half of their mediations by video. (See chart 4.)

As one lawyer said, “Even after COVID, Zoom will have become the venue of choice for those who want to reduce travel time and expenses. Another predicted: “There still will be occasions when in-person interaction between the mediator and one or more parties will prove beneficial. In most instances, that will not be a factor.”

Here is a prediction of my own: Although many practices de-

veloped during the pandemic will carry over to our “return to normal,” there are plenty of things we used to do in person that we will still prefer to do in person.

Thus, I anticipate that some of my post-pandemic mediations will still be conducted by Zoom; but most, I expect, will return to the traditional, in-person format.

Why? Right or wrong, I believe the view is cemented among both lawyers and mediators that per-

CHART 1

CHART 2

CHART 3

CHART 4

sonal interaction is a big part of mediation’s usefulness in settling disputes. Although platforms like Zoom have rescued us from sitting idle during COVID-19 and perhaps will cause some mediation participants to question expenses like travel, the majority of mediations will still be done in person, the “old-fashioned” way.

Time will tell. Here’s to being flexible enough toLAWYER adapt to whatAUSTIN ever the future holds.

AL AL

American Inns of Court Now Accepting Applications

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he Austin chapters of American Inns of Court are accepting applications for the 2020-21 term. The American Inns of Court are designed to improve the skills, professionalism, and ethics of the bench and bar.

Information about the American Inns of Court can be found at www.innsofcourt.org. Each Inn meets monthly.

ROBERT W. CALVERT INN OF COURT

The Robert W. Calvert Inn of Court is the first Inn established in Austin and has been awarded Platinum recognition by the American Inns of Court.

Applications are welcome from any practicing attorney or judge in Travis County and contiguous counties. Membership is open to all licensed Texas attorneys without regard to area of practice or trial experience

BARBARA JORDAN INN OF COURT

bership is limited to the number of available openings.

The Barbara Jordan Inn of Court is accepting applications from any practicing litigation attorney or judge from Travis County or the contiguous counties. Austin’s newest Inn, it enjoys an enthusiastic and diverse community of members. The Inn strives to honor Barbara Jordan’s legacy of professionalism and integrity, and has been awarded Platinum recognition by the American Inns of Court. Membership is open to all licensed Texas attorneys without regard to area of practice or trial experience.

THE HONORABLE LEE YEAKEL INTELLECTUAL PROPERTY INN OF COURT

LLOYD C. LOCHRIDGE INN OF COURT

The Lochridge Inn fosters dialogue on legal issues, the art and science of trial advocacy, and high-profile cases. Applications are welcome from any practicing litigation attorney or judge. Mem-

The Honorable Lee Yeakel Intellectual Property Inn of Court focuses on intellectual property law. Membership is limited to the number of available openings.

For current Inn members whose terms expire in May, please re-apply by sending a statement of interest to Brian Nash and Travis Wimberly (emails found in sidebar on this page).

If you do not wish to re-apply, please also email so more spots may be opened to new members.

For Inn members who were removed due to the absence policy, please re-apply in the same manner. Provide an explanation of your absences along with the name of your previousAUSTIN group leaders and LAWYER L AL your contributions to theAInn.

APPLICATION INSTRUCTIONS FOR NEW MEMBERS All Inns of Court require the following: • Statement of interest • Résumé • Two letters of recommendation (preferably from members of the legal community)

WHERE TO SEND & DEADLINES CALVERT INN OF COURT Send to: Sherine Thomas at sherine.thomas@traviscountytx.gov Deadline: May 31, 2021 BARBARA JORDAN INN OF COURT Send to: Robyn Hargrove at rhargrove@scottdoug.com Deadline: May 31, 2021 LOCHRIDGE INN OF COURT Send to: Ryan Botkin at ryan@wittliffcutter.com. Questions? Contact Botkin by email or at 512.960.4730.

Deadline: May 28, 2021 LEE YEAKEL IP INN OF COURT Send to: Brian Nash at brian.nash@ pillsburylaw.com and Travis Wimberly at twimberly@pirkeybarber.com; CC Darla Thomas at dkthomas@wsgr.com.

Include "Lee Yeakel IP Inn of Court" in the subject line. Questions? Contact Nash or Wimberly.

Deadline: May 31, 2021

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Texas Lawyer Insurance Exchange . . . . . . . . . . . . . . . . . 3

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EQUITY SUMMIT Fri. May 14, 2021 10 a.m. – 3 p.m.

The Snell Law Firm, PLLC . . . . 9 Thomas Esparza, Jr. P.C. . . . . . 3 UBS Financial Services Inc. . . . 19 UT Austin Center for Professional Education . . . . . . 14

Hilltop Securities . . . . . . . . . . . 15 Judge Stephen Yelenosky . . . . 16 Knolle, Holcomb, Callahan & Taylor, P.C. . . . . . . . 8 Lakeside Mediation Center . . . 11 Law Office of Tim Whitten . . . 10

Register at austinbar.org to receive the Zoom link.

Registration is free. Open to the public.

All are invited to attend.

LawPay . . . . . . . . . . . . . . . . . . . 2 Loewy Law Firm . . . . . . . . . . . . 5 Noelke Maples St. Leger Bryant, LLP . . . . . . . . . . . . . . . . 7 Patrick Keel . . . . . . . . . . . . . . . . 19 Reed, Claymon, Meeker & Hargett, PLLC . . . . . . . . . . . . 20 Rose Resolution Group . . . . . . 12 MAY 2021 | AUSTINLAWYER

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