Austin Lawyer, May 2022 by Austin Bar Association

austinbar.org MAY 2022 | VOLUME 31, NUMBER 4

Diversity, Equity, and Inclusion Take SXSW Local Bar Associations Promote Better Workplace Culture BY ROSWILL MEJIA

romoting a culture of diversity, equity, and inclusion (DEI) is a responsibility we all share. That’s the message shared at South by Southwest (SXSW), one of the largest entertainment festivals in the world, as the Austin Bar Association and LGBT Section of the Austin Bar served as co-sponsors of a DEI panel. The message was clear: The more firms and attorneys engage in the conversation, the better they will be in retaining staff and representing clients from diverse backgrounds. The “DEI-takesSXSW” event was a success, with thoughtful conversation about best practices to address the issue in the legal community. Panelists included Mindy Gulati, Austin Bar Association Equity Committee co-chair; Bismarck Myrick, a senior executive for the United States Patent and Trademark Office

(USPTO) currently overseeing the USPTO Office of Equal Employment Opportunity and Diversity in Alexandra, Virginia; and Demarron Berkley, an attorney from Google whose practice focuses on litigating through trial and appeal of intellectual property and complex commercial matters. The group identified ways to make DEI a call to action and not just a philosophy in the workplace: • Proactively engage in this work to see real change, especially those of us who are not in underrepresented groups. The burden should not always fall onto those who are marginalized; it is all our work. • Normalize sharing our unique stories and perspectives— celebrate our similarities AND differences.

When we all know the same things and think about them the same way, we limit our capacity for problem-solving and are blind to our gaps in understanding.

Panelists (from left): Demarron Berkley, Bismarck Myrick and Mindy Gulati. Moderator: Hope Shimabuku.

• Go beyond just hiring practices to ensure that those practices are creating diverse and inclusive environments: Who are you retaining, developing, and investing in? Who are you promoting? What groups have power in your organization (i.e., who’s represented at the decision-making level)? • Solicit feedback from those who identify as part of other groups when making decisions that affect all employees. • Provide mentorship opportunities to help promote inclusivity. Attorney and participant Roswill Mejia of the Hispanic Bar Association of Austin says the event serves as a great reminder of what’s important in the legal community.

“Diverse perspectives increase knowledge and innovation. When we all know the same things and think about them the same way, we limit our capacity for problem-solving and are blind to our gaps in understanding.” Event sponsors included the Austin Bar Association, Austin Asian American Bar Association, Austin Black Lawyers Association, Hispanic Bar Association of Austin, LGBT Law Section of the Austin Bar Association, South Asian Bar Association of Austin, and Travis County Women Lawyers’ AUSTIN LAWYER AL AL Association. Attorney Roswill Mejia focuses on alternative dispute resolution, and business, consumer, creditordebtor, and health care litigation. She is an active member of the Hispanic Bar Association.

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CONTENTS

AUSTINLAWYER MAY 2022 | VOLUME 31, NUMBER 4 AL A L INSIDE FEATURED ARTICLES

IN EVERY ISSUE

CONNECTIONS

1 5 8 10

18 Briefs

ONLINE austinbar.org

14 16 17 23 24

Diversity, Equity, and Inclusion Take SXSW Latinx Still Making Firsts in 2021 Austin Bar Foundation Announces 2022 Honorees Controlling the Control: JLB Builders, Scope of Liability, and Independent Contractors Suite Space, Sweet Place Robert W. Calvert American Inn of Court and the Austin Bar Welcome Back Austin Bar Contributor Lauded for Outstanding Effort Expand Your Horizons with the American Inns of Court

19 Third Court of Appeals Civil Update 20 Third Court of Appeals Criminal Update 22 Criminal Court News 26 AYLA

SOCIAL LIKE facebook.com/austinbar

Visit the new Austin Bar Association website at austinbar.org and read Austin Lawyer online at issuu.com/austinbar.

President's Column

25 Opening Statement 30 Practice Pointers

ONLINE

MAIL Sonta Henderson, Managing Editor Austin Bar Association 712 W. 16th Street Austin, TX 78701

21 Federal Civil Court Update

DEPARTMENTS 6

EMAIL sonta@austinbar.org

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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 Sonta Henderson, Managing Editor, at sonta@austinbar.org. Submission is not a guarantee of publication.

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AUSTINLAWYER OFFICIAL PUBLICATION ALOF THE A L AUSTIN BAR ASSOCIATION AUSTIN BAR ASSOCIATION

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Latinx Still Making Firsts in 2021 BY SR. JUDGE ORLINDA NARANJO AND JUDGE VICTOR VILLARREAL

ow in the third decade of the new century, persons of color continue to break barriers. Although Texas has the second highest Latinx population in the United States, prior to 2021, the state lacked a Latinx judge organization like those found in California, New York, and Illinois. That barrier was broken on May 5, 2021, through the creation of Texas Latinx Judges (TLJ)—the first association of its kind in Texas. TLJ is a nonpartisan nonprofit association focused on empowering current and future Latinx judges. It fosters a pipeline for future Latinx judges with the goal of enhancing diversity, inclusion, and excellence in the judiciary so that equal justice is provided to all. Another legal first in 2021, El Paso lawyer Sylvia Borunda Firth became the first Latina to be elected president of the State Bar of Texas. Firth’s experience as a former City Attorney and her service in different leadership roles with the State Bar helped her garner support from lawyers statewide. When elected, Firth stated, “It is an honor and a big responsibility to represent my culture and my gender … and bring more diversity to the State Bar.”

TOP ROW (from left): Former Judge Leslie Briones, TLJ president; Judge Victor Villareal, TLJ president-elect; Judge Maria SalasMendoza, TLJ board member and secretary; Chief Justice Dori Contreras, TLJ board member and treasurer; BOTTOM ROW (from left): Judge Antonia Arteaga, TLJ board member; Justice Gina M. Benavides, TLJ board member; and Sr. Judge Orlinda Naranjo, TLJ board member.

Force on Diversity, Equity, and Inclusion to address these issues in a solution-oriented manner. One solution was creating a pipeline for diverse lawyers to become involved with State Bar board leadership. TLJ is also committed to shaping the future of equal justice in Texas by increasing the

TLJ teaches students about the judiciary, shares distinct paths that individuals have taken to become jurists, and encourages students to consider the possibility that they too can be judges. Both President Firth and TLJ believe that the judiciary and the State Bar reflect the rich diversity of our state and the values of our society. As president-elect, Firth created a Task

advancement and the number of Latinx judges in Texas. TLJ encourages lawyers to join TLJ and demystifies the processes of being elected or appointed to a judicial position. TLJ also hosts

events for law students across the state. TLJ teaches students about the judiciary, shares distinct paths that individuals have taken to become jurists, and encourages students to consider the possibility that they too can be judges. TLJ’s founding officers and board of directors are diverse jurists from across the state of Texas: Judge Lesley Briones (president and former Harris County judge of County Court at Law No. 4); Judge Victor Villarreal (president elect and Webb County judge of County Court at Law No. 2); Judge Maria Salas-Mendoza (secretary and El Paso County 120th District Court judge); Chief Justice Dori Contreras (treasurer and Justice of the 13th Court of Appeals); and board members Justice Gina Benavides of the 13th Court of Appeals; Judge Antonia Arteaga, Bexar County

57th District Court; and Sr. Judge Orlinda Naranjo, former judge of Travis County 419th District Court (ret.). These legal firsts in 2021 will help AUSTIN shape justice in Texas for LAWYER AL AL decades to come.

MAY 2022 | AUSTINLAWYER

PRESIDENT'S COLUMN DAVID COURREGES, UNIVERSITY FEDERAL CREDIT UNION

My HOA Ate My Homework Tales From the World’s Worst Procrastinator

his is my eighth President’s Column, which means that it is the eighth time that I have promised our fantastic communications director, Sonta Henderson, that I will without a doubt turn my article in “on time.” I meant it. I really did! Now six ten days after the deadline, well…yeah. I do have a very good reason though—almost as good as “my dog ate my homework” (which really did happen on multiple occasions, by the way. Of course Mrs. Britt didn’t believe me, but that’s on her!). So here’s what happened: I was good. I budgeted an entire Sunday afternoon to write this article. It was on the family calendar and everything! I even asked my wife and daughter to remind me that I made a solemn

AUSTINLAWYER | MAY 2022

promise. Both dutifully obliged. I, of course, thanked them for the reminders each and every time. Then the adult equivalent of “my dog ate my homework” happened: I received a certified letter from my HOA. I’m paraphrasing, but this is what the letter said: “Trash cans are ugly, especially yours. They make us very sad. We don’t want to see your trash cans anymore! The failure to remove these abominations from our sight shall result in your eternal damnation, and a fine of $50. Oh, and this is your final warning, slacker!” Of all the things I am afraid of: snakes, heights, boy bands… eternal damnation is very high on that list! What is one to do!? Of course, I spent an hour or so trying to find my copy of the HOA rules, then another hour trying to find exactly where said rules state that trash cans are the devil, and yet another hour stewing that I was spending my time researching HOA rules, regulations, and guidelines. Guess what? It ain’t there! (Yes mom, I know “ain’t ain’t a word,” but it is today!) Nonetheless, the threat was

certified and in writing. If there’s one thing I’ve learned in my time as a lawyer, you absolutely do not ignore a strongly worded certified letter. I was compelled to take action, forced to betray my oath to Sonta; it was imperative that I became a handyman for the weekend. A mere three trips to Lowe’s later, because no home project can be complete with just one trip to the hardware store, I am now presumably back in the good graces of my HOA overlords—at least for now. The trash repositories are now secure, safe from the impressionable eyes of the neighborhood children. When I was planning my articles for this year, not only did I not intend to be perpetually late, I also did not intend on discussing the aesthetics of high-density polyethylene refuge receptacles. In reality, I intended to discuss my decision to transition from private practice to in-house counsel, but that will have to wait for another day. Now here’s the thing about magazines: They don’t just magically put themselves together. To publish a successful monthly

periodical requires a team of magicians. For instance, I have had some amazing English teachers and professors over the years, but none of them had the ability to fully eradicate my highly liberal and often incoherent use of punctuation, nor my insistence that ain’t is indeed a word. For the record, Merriam–Webster agrees with me. Who are these heroes that can undo the heinousness I continue to inflict upon the English language? That honor goes to our co-editors: Jennifer Hopgood and Rachael Jones. Jennifer and Rachael, thank you so much for your continued dedication not only to make me appear to have a basic understanding of writing, but also for consistently ensuring we have quality content to share with our members each and every month. Then, there are the wonderful professionals at Monarch Media & Consulting, who have been our publishing partners for more than a decade. Andrea Exter and Chellie Thompson have teamed together to create a wholly female-owned publishing company dedicated to support-

auslatwinyer Dec. 2012 / Jan. 2013 Volume 21, Number 10 www.AustinBar.org Features

............... 1 Austin Adoption Day ...................... .............. 3 U.S. Judge Addresses HBAA............. .............. 7 Thanks Outgoing Constable Extends Judge Earle ............. 9 National MADD Honors

Departments

................ 11 Opening Statement ...................... ....................... 13 3rd Court of Appeals Update ............... 15 Briefs ............................................ ............... 16 AYLA ............................................ ............................. 20 Entre Nous...................... ................................ 22 Calendar...................... ............................. 23 Classifieds ......................

APRIL 20

brates

Austin Adoption Day Cele 20 New Families

icking off November’s National Adoption Month, Austin Adoption Day no embraced the theme “There’s than 200 place like home.” More through friends and family crossed balloon arch to arrive in rainbow a with a the Land of Oz, complete the way yellow brick road leading for 28 children. to a “forever” family th event Now in its 11 year, the p is organized as a partnershi Associabetween the Austin Bar n, Foundatio Bar Austin the tion, and Texas Department of Family of Travis Protective Services, CASA Juvenile County, Travis County Coalition Probation, the Adoption Office of Texas, the Travis County and the of Child Representation, Protective Travis County Children’s Services Board. volunIn addition, numerous ted to collabora teers and donors make the day a huge success: the Austin Fred Helms, Chair of Probate Bar’s Estate Planning and to prooffered y generousl Section, including a vide a wills package — and mediwill, power of attorney, family. cal directives — for each

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definition of amazing in an era where the word amazing is awesomely overused. She has not yet been with us for a year, but has taken to her role as the Austin Bar’s communications director as though she has been working with us for decades. Not only has Sonta continued to encourage me, despite me repeatedly and blatantly turning all of my columns in ridiculously late with equally ridiculous excuses such as “my HOA ate my homework,” she brings a passion and professionalism to her role that is truly remarkable. If you haven’t yet had a chance to meet Sonta, prepare yourself. Your world is about to change for the better! To Sonta, Andrea, Chellie, Rachael and Jennifer, thank you for all that you do to make Austin Lawyer a success and for bringing timely and informative news to the members of the Austin Bar Association. Your time and contributions are truly appreciated and do not go unnoticed. You make a difference. To my HOA, thank you for dutifully doing whatever it is you do. I look forward to many more certified lettersAUSTIN in the future; LAWYER AL AL they let me know you care.

ender an ETH DU d Nonbina GG AN AN D RIC ry Clients K CO FER in the Cr ransgender iminal Jus tice System come from clients and all wha t we didn of life. 1 And walks ’t know. asked our We client to have a duty attorneys educate about his on the nee us identity. ds of clien to focus Sim his what doe ts. ply pron But asking oun pref s client-cen eren the way in practice tered mea for his will ce paved n when an ingness share his may not attorney to have stor y. in practice much experien With our ce— or in life— contacted client’s consent, transitio we ning or tran with the court them of to inform nonbina sgender our ry peo and name. Alth client’s preferre Gender iden ple? d ough cou promise rt and distinct tity is different staf f didn to honor ’t the clien preferen Gender iden from biological t’s ces, they sex. tity exists on app the head trum and a spec s-up. The reciated is next we knew, a man or not limited to bein the prosecut thing a wom g reaching der commun an. The tran or was out using sgenity include the preferred range of people who s a broad name. Whi client’s seem identity le se this gender like a may is not little time small step taking birth-assign aligned with thei , the ben r ed 2 efits for client were Recent pers sex. our significa onal expe he’d won nt: represen rience ting a small piec He felt personal tioning indi a 17-year-old tran e of his dignity siopportunity vidual was a lear At one poin back. ning for t, our us. mother shar clien Representin him was a lesson ed with us t’s g in the that was humility We asked an insight an and importa value of our clien of what it important reminde tening to nce of lismeans to a client. r his identi t to educ Our clien empathize with any charged ty. Simply ate t was clien with discriminat t who has face felt was driv an offense that preferen asking his us about d he ion we, as ce pave neys, mig against his en by discriminat the attorpronoun ht ion tran d the wa not have pers sgender willingn experien Adoption Day.From identity. onally y for his came to life for Austin ced. Our the beginni ess to sh Wizard of Oz characters client’s mot asked us engagem ng of our are his sto to her ent, we wer client—fe like to have imagine what it feels up front ry. els. with our e direct and clie and then our feelings hur our goal We have t, s in working nt about imagine develope expe not ing d that the follo know all with him riencing practice feeling ever wpointers y second asking que the answers—and working life. Tha for attorney of our with t is what stions to s her child—o about you learn mor gender, and transitioning, transr client—w e ur 12/11/12 9:52 PM nonbina a better ill make ry clients: attorney you Know whe in general ! Do not what you n to acknowledg assume. e do not kno If you do w. For some not attorney s, the tran gender iden know someone’s der and nonbina sgenry world pronoun tity or preferred unfamili is an s, then just ar place. This and liste to new con n. Listen simply ask versations, can lead to learn not to resp tions, and expectaand ond. List realities that the clien en to how may feel t refe uncomforta initially Do not shar rs to themselv the hum es. ility to adm ble. Having e a transgen nonbina it you do der or ry individu AL_Apr22. indd 1 al’s transitio continued on page n 22

Austin Lawyer has evolved in the last 20 years from a 16-page, two-color newsletter (above left is an issue from 2012) to a 32-page, four-color publication (above right is the April 2022 issue).

ing the distinctive needs of association communications in the unique not-for-profit market that is Austin, Texas. They are not only instrumental in putting physical copies of our favorite official publication of the Austin Bar Association in our hands, but also working with our wonderful advertisers to ensure their products and services are appropriately conveyed in the best and most authentic light to our membership. The folks at Monarch also led the way to help us enter the twenty-first century by making Austin Lawyer digital before digital was cool. Yes, there was such a time. Can you believe it? Austin Lawyer is also a success because of regular contributions

3/22/22

from folks like Laurie Ratliff, Zak Hall, David Shank, and Dan Dworin. Month in and month out, these experts in their respective fields provide us with valuable insight in the affairs of the Third Court of Appeals, the federal courts, and criminal courts. And our writing and ethics-comedy contributors Wayne Schiess and Claude Ducloux round out the excellent authorship. There’s also our executive director, DeLaine Ward; associate executive director, Debbie Kelly; as well as our entire staff who ensure we have the most up-to-date information to provide to you, our members. Finally, and never ever least, Sonta Henderson. Sonta Henderson is the true and literal

6:07 PM

CALLING ALL EDITORS! Austin Lawyer Seeks a Co-Editor Austin Lawyer is seeking applications for a co-editor. The editors of the Austin Lawyer solicit articles, edit copy, and contribute their own articles as space allows. The position of editor is a great opportunity to amplify diverse voices in the Austin Bar community and to encourage a wide variety of content for the 4,000+ readers of the monthly publication. Interested applicants, please send a statement of interest and a résumé to managing editor Sonta Henderson at sonta@ austinbar.org by Friday, May 27, 2022. The time commitment is approximately ten hours a month, editing copy for the following month’s issue and working with Sonta to solicit articles for upcoming issues. The ideal candidate will have a love of writing and editing, as well as keen attention to detail. The new co-editor will work closely with Sonta and returning co-editor Rachael Jones. After serving three years as co-editor, Jennifer Hopgood is rolling off to focus on her own writing. Please apply to be a part of a wonderful team serving our legal community! — Austin Lawyer Managing Editor and Co-Editors

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MAY 2022 | AUSTINLAWYER

Austin Bar Foundation Announces 2022 Honorees

uring the 19th Annual Austin Bar Foundation Gala, held April 22 at the Austin Country Club, distinguished lawyers and award winners were recognized for excellence in their field, and for contributions to the legal community and community at large.

Cumberbatch

Kennard

Sharp

Burratti

Sullivan

Wooten

DISTINGUISHED LAWYERS ASHTON CUMBERBATCH, JR.

Ashton Cumberbatch, Jr. is widely recognized for his commitment to healthcare issues and racial equity in the community. He is president and co-founder of Equidad ATX, a catalyst of holistic, equitable, and transformative neighborhood revitalization and the disruption of systemic poverty in Austin’s Eastern Crescent. Equidad, the Spanish word for “equity,” was founded in 2018 and envisions an Eastern Crescent full of thriving communities. To achieve its vision, Equidad utilizes worldclass education—cradle to career; mixed-income housing; and community health and wellness. Cumberbatch also serves as special counsel at McGinnis Lochridge. He was a partner at McGinnis Lochridge prior to his service as the Austin police monitor; the vice-president of advocacy and community engagement at Ascension Health; and a volunteer policy advisor for Austin Mayor Steve Adler. LAURA BELLEGIE SHARP Laura Bellegie Sharp possesses a deep concern about issues affecting the legal community and community at large. With over 30 years of experience as a trial attorney, Sharp has a reputation for providing compassionate representation for her clients. She devotes her practice to helping victims of medical negligence, dental malpractice, and serious personal injury. Nationally, she is a member of the American Bar Association Board of Governors. Sharp is not only a gifted trial lawyer but someone who gives back to the legal community. She is recognized for her ability to galvanize others and fundraising. Sharp has 8

AUSTINLAWYER | MAY 2022

served as president of the Austin Bar and served as chair for the first-ever Austin Bar Foundation Gala. She also chaired the Civil Litigation Section. Additionally, Sharp served as a director on the State Bar of Texas board of directors. KAREN KENNARD Karen Kennard is known for her investment into the community and ability to seamlessly navigate from government to big law firms. She’s the co-managing shareholder of the Austin office and a shareholder in the Government Law and Policy Group at Greenberg Traurig. Kennard focuses her practice on government law, policy, and regulatory matters with an emphasis on municipal local government issues. Her experience spans more than two decades and includes positions as city attorney for the City of Austin and general counsel for the Texas Municipal League. Kennard’s practice at Greenberg Traurig provides legal advice and counsel to individuals, local government entities, private businesses, and non-profits on a range of issues including procurement/government contracts, economic development, transportation, public infrastructure, land use, land development, and legislative advocacy. DAVID WALTER AWARD LEAH BHIMANI BURATTI

Leah Bhimani Buratti has a long-

standing history of supporting asylum seekers and low-income communities by providing pro bono legal services and considers it a meaningful aspect of her practice. Since 2014, Buratti has served on the board of directors of American Gateways, a nonprofit providing legal services to asylum seekers. Buratti possesses experience in technology-based legal issues in the tech industry. She is a partner at Wittliff Cutter. Buratti focuses on complex IP and commercial litigation. She has handled all phases of litigation— including four jury trials and an ITC hearing. She has extensive experience representing technology companies and has also represented clients in the oil and gas, telecom, and banking industries. Before joining Wittliff Cutter, Buratti practiced with McKool Smith for a decade, focusing on high-stakes patent infringement cases and other technology-related litigation. She previously served as a law clerk for the Honorable Carl E. Stewart, United States Court of Appeals for the Fifth Circuit, and the Honorable Jorge A. Solis, United States District Court for the Northern District of Texas. JOSEPH C. PARKER, JR. AWARD KENNON WOOTEN

Kennon Wooten shares a passion for community enrichment and matters of diversity and inclusion.

Her focus on ensuring equity for marginalized communities is paramount in her work. As Austin Bar president, Wooten spearheaded the resolution condemning racism for the Austin Bar and AYLA, created the Equity Committee, and was vital in bringing forth the first Equity Summit. She is a partner at Scott Douglass & McConnico. Wooten’s law practice focuses on general civil litigation and complex commercial litigation. She also handles appeals periodically and advises clients on rule-related matters, including ethical obligations. She has represented a broad range of clients, including governmental entities, businesses (foreign and domestic), lawyers, judges, and individuals. Wooten joined Scott Douglass & McConnico in 2011, after working as the rules attorney for the Supreme Court of Texas, an associate at Baker Botts, and a law clerk to former Chief Justice Wallace B. Jefferson of the Supreme Court of Texas. LARRY YORK MENTOR AWARD COLLEEN SULLIVAN

Colleen Sullivan believes mentorship makes a difference and serves as a mentor for the UT Law Mentoring Program. She has been on the Advisory Committee for the program since its inception in 2016. While at the Third Court of Appeals, she assisted former Chief Justice Jeff Rose with the court’s intern program. Sullivan is the mandamus attorney at the Supreme Court of Texas. She joined the Court in April 2021 after working as a staff attorney at the Third Court of Appeals in Austin for 11 years. Sullivan is board certified in civil appellate law by the Texas Board of Legal Specialization. She previously worked for Baker Botts in Austin in the trial section with Joe Greenhill, former Chief Justice of the Texas Supreme Court; Bob Shannon, former Chief Justice of the Third Court of Appeals; and Larry F. York, the office’s managing partner. Congratulations to all of this AUSTINLAWYER AL AL year’s award winners!

We Can Do More. CRIMINAL DEFENSE • FAMILY LAW • PERSONAL INJURY

RICK COFER • Criminal and Juvenile Defense • Former Travis County prosecutor • Board Member, Austin Bar Foundation • 90% of felonies dismissed or reduced in 2020 • 87% of misdemeanors dismissed in 2020 • 2021 Rising Star - Super Lawyers • DWI Scholar Award - TCDLA • 100+ Criminal Trials

JEFFREY CONNELLY • Family and Personal Injury • Focusing on complex, high net worth divorce cases: Marital torts, Property tracing, Business valuations • Licensed in Georgia and Texas • Texas Bar College Member • Former prosecutor

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MAY 2022 | AUSTINLAWYER

Controlling the Control: JLB Builders, Scope of Liability, and Independent Contractors BY TASHA BARNES

Tasha Barnes is an equity partner with the law firm of Thompson Coe, specializing in defending personal injury cases. Tasha has practiced in Austin for 26 years, defending general contractors and owners sued for injuries occurring on construction job sites.

common issue in construction jobsite injury cases is whether the owner and general contractor on the project can be held liable for injuries to an employee of a subcontractor. The well-established litmus test in determining liability involves whether the owner or general contractor exercised “control” over the injury-producing work being performed. In reviewing the issue of “control,” the pivotal issue is whether the owner and general contractor’s supervisory role includes control over the details of the contractor’s work, including the means and methods of how to perform it. The precise boundaries of the control a general contractor can exert without being held liable for the acts of its subcontractors have been debated by opposite sides of the bar in construction injury lawsuits. JLB Builders, LLC v. Hernandez In 2021, the Texas Supreme 10

AUSTINLAWYER | MAY 2022

Court provided significant guidance on the level of control that can be asserted by a general contractor over a subcontractor without facing liability for the negligence of the subcontractor. In JLB Builders, the Court established clear guidelines as to what type of control qualifies as those ordinarily within the scope of a general contractor role in overseeing the project versus crossing the line into controlling the details of the subcontractor’s work.1 While the overall opinion mainly restates a long-held bright line rule in construction law, the opinion also provides practitioners with parameters on the type of control a general contractor can exercise without assuming liability for the negligence of its subcontractors. The scope of appropriate measures taken by a general contractor in overseeing a project without stepping into liability has long been a minefield for owners and general contractors who wish to make sure they have safe job sites with quality work being performed but must balance their assertion of supervision with the risk of being held liable for the acts of independent contractors. Many summary judgments have been fought on whether a general contractor’s right to retain control over safety policies crosses the line into control sufficient enough to subject the general contractor to liability. The JLB Builders opinion takes a step forward in eliminating any confusion by specifically identifying specific acts of control that do not enter into the territory of controlling the details of the contractor’s work. JLB Builders arose from an accident in which Hernandez, an employee of a subcontractor, sustained injury during the course of a crane lift. JLB was the general contractor on a high-rise construction project in

Dallas. JLB subcontracted the concrete work to Capform, Inc., and Hernandez was a Capform employee. Hernandez was standing on a platform or a “rebar tower,” guiding the placement of a concrete column being hoisted by the crane. The tower was secured by wooden braces that were nailed to the ground. Either from wind or from the concrete form’s contact, the tower detached from the ground and fell, landing on Hernandez as he attempted to jump off. At the time of the incident, he was being supervised by a Capform employee. Hernandez sued JLB, asserting negligence and gross negligence, and alleging that JLB retained contractual and actual control over Capform’s work and therefore owed him a duty of care. JLB moved for traditional and no-evidence summary judgment, arguing that it did not owe a duty to Hernandez as it did not exercise actual control over the means, methods, or details of the subject work activity nor did it retain the contractual right to control the work. Additionally, JLB argued that it did not proximately cause Hernandez’s injuries. The trial court granted summary judgment in favor of JLB. Hernandez appealed on the negligence claim only. The court of appeals initially affirmed, finding that JLB owed Hernandez no duty because it did not control the manner, method, or means of Capform’s injury-causing work. However, on en banc reconsideration, a divided court of appeals vacated its decision and reversed the trial court’s summary judgment.2 The court found that fact issues existed regarding whether (1) JLB exercised actual control and thus owed Hernandez a duty, (2) JLB breached that duty, and (3) JLB’s breach proximately caused Hernandez’s injuries.3 The Texas Supreme Court grant-

ed JLB’s petition for review. On appeal, Hernandez argued multiple points to support his allegations that the general contractor, JLB, exercised control sufficient to subject it to liability. Specifically, Hernandez argued that the fact that JLB always had employees on the site, conducted safety inspections, inspected the work of subcontractors, had the authority to modify unsafe practices, and controlled the work schedule was demonstrative of actual control sufficient to subject JLB to liability.4 Furthermore, there was evidence from JLB that it was aware that Capform employees would be standing on rebar towers and knew that rebar towers could fall over if improperly braced, hit by a strong wind, or hit by a crane. At the outset, the Texas Supreme Court outlined the duty of a general contractor with respect to injuries to employees of its subcontractors and again emphasized the long-held doctrine that a general contractor owes no duty to an independent contractor to ensure that the independent contractor’s work is performed in a safe manner.5 Texas law is clear that in order for an owner or general contractor to be liable for its independent contractor’s purportedly negligent acts, it must retain or exercise the right to control the means, methods, or details of the independent contractor’s work.6 However, when the general contractor exercises some control over a subcontractor’s work, he may be liable unless he exercises reasonable care in supervising the subcontractor’s activity.7 Unanswered questions remained as to what was meant by “some control over a subcontractor’s work,” and the Court in JLB Builders provides some answers. Texas common law in this area holds that control may be proven

In 2021, the Texas Supreme Court provided guidance on the scope of control that a general contractor can exert over a subcontractor without facing liability for the negligence of the subcontractor. in two ways: (1) a contractual right of control retained by the general contractor; or (2) an exercise of actual control by the general contractor.8 Here, however, the Court clarified that not just any control rises to the level of the type of control that can result in liability of the general contractor for the subcontractor’s negligence. The Court held that, regardless of whether actual or contractual control is at issue, “the ‘control must relate to the condition or activity that caused the injury.’”9 Thus, controlling the details of one specific aspect of the construction project does not necessarily place the general contractor at risk for liability for a different aspect of the project. By way of example, if the general contractor somehow controls the details of one particular trade such as the drywall contractor by providing specific means and methods, this does not mean the general contractor is liable for the alleged negligence

of the ironworkers whose means and methods it did not control. The requisite control must relate specifically to the injury-causing event. Construction Clients and Control In analyzing the control issue, the Court relied upon several well-established points of law. The Court noted that JLB’s control of the general sequencing of work “merely indicates that JLB was performing the duties of a general contractor.”10 Because there was no evidence that JLB had dictated which specific tasks Capform’s employees performed at what time, the Court found that this was not sufficient to rise to the level of control necessary to give rise to a duty on the part of JLB.11 Further, the Court noted that testimony failed to show that instructions for how to perform the work at issue were provided by JLB, and, instead, instructions were given by the

foreman of Capform.12 The Court also disposed of the argument that JLB’s safety requirements gave rise to a general duty to ensure that Hernandez’s work was performed in a safe manner.13 Hernandez particularly focused upon JLB’s requirement that safety harnesses be worn. In disposing of the issue, the Court stated that “[a] general contractor that promulgates mandatory safety requirements and procedures owes only a narrow duty to ensure that those requirements and procedures generally do not ‘unreasonably increase, rather than decrease, the probability and severity of injury.’” The Court also noted that the presence of a general contractor’s safety personnel at a construction site is likewise insufficient give rise to duty argued by plaintiff.12 Likewise, the Court held that the relevant contracts between JLB and its subcontractors did not give rise to a duty to ensure subcontractors’ employees performed their work in a safe manner.14 In doing so, the Court focused on the language in the contract between JLB and Capform, specifically noting that the contract contained terms which dictated that Capform was “solely responsible for the acts and omissions of its employees,” and “that JLB had ‘no authority

to direct, supervise or control the means, manner or method of construction of the [w]ork’ and that Capform was ‘responsible for the manner and means of accomplishing the [w]ork.’”15 The Court held that the contractual scheduling authority retained by JLB “is precisely what does not constitute the kind of control over the means, methods, and details of a subcontractor’s work that gives rise to a duty of care” and is instead “consistent with the typical role of a general contractor.”16 The analysis of the facts and issues in JLB Builders indicate that “merely performing the duties of a general contractor” includes being onsite, setting general safety policies for the project, inspecting the work of subcontractors, modifying unsafe safety practices, as well as controlling scheduling. None of these factors will rise to the level of sufficient control to subject the general contractor to liability for the acts of its independent contractors in performing their work. Thus, a general contractor can conduct inspections of the work and even step in and correct an unsafe work practice or enforce a safety policy without fear of being held liable for the acts of its subcontractor. Given the clarity of the JLB Builders opinion on the issue of control, owners and general contractors can set general safety rules for the job site, have supervisors onsite to monitor and inspect for safety violations, and enforce the safety policies by correcting any unsafe work practices without much concern about potentially being liable for the negligence of their subcontractors. Implications for Contracts As for contracts, the terms should clearly identify which party is to oversee the means, methods, and details of how the work is performed. Construction contracts can be tricky; general contractors and owners may be tempted to retain control over the details of their subcontractors’ work to ensure that the quality of the work meets expectations. MAY 2022 | AUSTINLAWYER

However, if a owner or general contractor wishes to retain that right, it will potentially be liable for any injury-producing event caused by its subcontractors. Frequently, as in the case of JLB and Capform, contracts between a general contractor and subcontractor specifically state that subcontractors are responsible for their own means and methods and the details of how their work is to be performed. As

such, the general contractor does not retain the right of control over the details of either entity’s work, but retains only the right to direct the results achieved by the work. Therefore, because a contract does not assign the general contractor a right of control, that potential basis for liability is eliminated. Footnotes 1. See JLB Builders, LLC v. Hernandez, 622 S.W.3d 860, 863 (Tex. 2021).

2. 600 S.W.3d 485, 488, 498 (Tex. App.—Dallas 2020, pet. granted). 3. Id. at 497–98. 4. JLB Builders, 622 S.W.3d at 865-66. 5. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985). 6. Elliot-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999). 7. Dow Chem. Co., 89 S.W.3d at 606; Redinger, 689 S.W.2d 415. 8. Dow Chem. Co., 89 S.W.3d at 606. 9. JLB Builders, 622 S.W.3d at 865 (quoting Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997)).

10. Id. at 866. 11. Id. at 866-67. 12.Id. at 867. 13. Id. 14. Id. at 869-70. 15. Id. at 869. 16. Id. at 870.

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AUSTINLAWYER | MAY 2022

BE WELL

The Importance of a Good Night’s Sleep BY ERICA GRIGG

Put away your technological devices at least an hour before bedtime. If you did not already know, smart phones, laptops, and other electronic devices we use emit blue light. This blue light tricks our brain into thinking that it is still daytime.

After receiving her JD from The University of Texas School of Law and her law license in 2001, Erica Grigg has worked as a criminal prosecutor; general counsel in the Texas Legislature; special assistant to the Chancellor of Texas Tech University; and as a personal injury, civil rights, and wrongful death litigator at Spivey & Grigg, LLP. She has appeared on HLN and CNN for commentary regarding her involvement in high-profile civil rights cases. Grigg is presently pursuing a master’s degree in Clinical Mental Health, expected in 2022. She is currently the director of the Texas Lawyers’ Assistance Program (TLAP).

ow many times did we roll our eyes in our youth when our parents’ answer to just about any problem we were having was to get good night’s sleep? Well, as it turns out, they were onto something. Research shows that getting enough sleep and specifically having a consistent sleep routine can make all the difference in the world where our mental and physical health is concerned. We must be asleep for at least a few hours before our bodies are cued to release proteins and hormones into our bloodstream that help repair and restore us from the emotional and physical stresses of the previous day. These same proteins also help build our immune system and protect us from potential health-compromising ailments.

When we continue a pattern of skipping out on sleep, we prevent our bodies and minds from healing. This can be devastating on our overall health and wellness, exposing us to illness, burnout, anxiety, and depression. The good news is, there are simple strategies we can implement in our daily lives that can help us get an adequate amount of sleep (8-10 hours for an adult) and improve our sleep quality. Here are three suggestions you may want to implement to improve your sleeping habits. First, have a consistent wake time and bedtime. Our bodies love routine. If we consistently wake up and go to sleep around the same time daily, our internal clock notices this pattern and will begin to prime itself accordingly. Studies show that people who practice regular sleep schedules feel 56% more rested than those who do not. Second, create a pre-sleep ritual. Again, our bodies crave routine. Engaging in a relaxing activity right before bedtime can do wonders in getting us in the right frame of mind for a great sleep. Examples of pre-sleep activities: warm bath, knitting, gratitude journaling, or meditation. Research showing the positive correlation with gratitude journaling and sleep quality improvement is plentiful. One study reveals that 25% of its subjects who briefly recorded what they were grateful for before going to bed had an increase in

sleep quality. Because the study participants felt more rested, they made healthier choices throughout their day such as choosing to exercise. Getting a good night’s sleep can create a domino effect of positive healthier decisions. Lastly, put away your technological devices at least an hour before bedtime. If you did not already know, smart phones, laptops, and other electronic devices we use emit blue light. This blue light tricks our brain into thinking that it is still daytime. This prevents our bodies from releasing the hormone melatonin, which helps us to become sleepy. When we stop looking at our devices before bedtime, we enable our body to naturally ready itself for restorative sleep. Taking it a step further, try charging your devices away from your bedside table. It is so tempting when we

get up at night for a glass of water to check our devices. We see that an email has landed in our inbox and before long we find ourselves one hour into an email rabbit trail that has robbed us of necessary sleep and restoration. When I was a practicing attorney, sleep was the first thing I sacrificed when it came to making time for my busy professional and personal schedule. I was the one burning the midnight oil to meet a deadline or waking up hours before daylight to finish a project. Learning more about how critical getting an appropriate amount of sleep is to our overall well-being convinced me to change this toxic work pattern. I know it can be challenging and overwhelming with all the uncertainty that surrounds us during these unprecedented times to entertain starting new habits. I hope, however, the information regarding the importance of sleep to our overall wellness and the recommendations for sleep improvement strategies suggested above will encourage you to take care ofAUSTIN yourself.LAWYER You and your AL it. AL health are worth

MAY 2022 | AUSTINLAWYER

Suite Space, Sweet Place BY NIKKI G. MAPLES

Nikki G. Maples is a partner at Maples Jones, PLLC. She practices family law exclusively in Austin with a focus on divorces involving high net worth and complex property division. Nikki also shares a love and a passion for health and wellness within the legal profession and among her community.

eople seek out desirable situations and environments, including work environments. Let’s be honest, we’re all looking for ways to satisfy our basic human needs. Personally, I need and want to feel good in the physical spaces where I spend the most time—home and office. Environmental psychology is the study of the relationship between people and their surroundings, which fits squarely with an individual and their work environment. The trend of space design from isolation to collaboration and its relationship to psychology goes back to the publication of Psychological Types in 1921 by Swiss psychiatrist Carl Jung, who focused on four universal human cognitions: • Thinking abilities, logical processing, and progression • Emotional drives, response, and integration • Intuitive introspection, such as achieving belief and trust • Senses and their influence on interpreting the environment 14

AUSTINLAWYER | MAY 2022

The workplace has a responsibility to deliver results that accentuate the behavioral needs of people. In our case, the people we are serving are our clients— and they all have needs! So, back up the equation and start with your very own behavioral needs and those of your team members. Once a commitment is made to ensure that all firm members’ needs are met, then there will be freedom and bandwidth to manage the demands made by our clients. (Sound familiar? Put your oxygen mask on before helping the next person.) Workspaces should be designed to motivate and inspire productivity. In a perfect world, we could even design our workspace to create positivity—I mean, it’s not outside the realm of possibility, is it? At some point in our lives, we’ve all experienced the happy euphoria of a physical

Give your office a face lift —redecorate. I’m not talking about a new picture frame; I’m suggesting an entirely new you! Change out your furniture, select a color scheme that will keep you visually excited and invite you to live your best life during

Workspaces should be designed to motivate and inspire productivity. In a perfect world, we could even design our workspace to create positivity. place—a spa, beach, new car, hotel, or even just standing in the beaming sun. While we can’t (or shouldn’t) deliver mounds of sand to our office to create a beach-like setting, we can certainly tap into certain elements of the beach experience to trigger our happy senses. The beach is typically light, bright, and airy, so use this as a starting point. Let as much light into your workspace as possible. If you can change a dark wall color, revert to simplicity—any shade of white or light grey will make a space feel larger, cleaner, and crisper. If you are someone who needs color to trigger a creative or positive sense, then throw in some color with decor by finding those colors or patterns in pillows or art.

work hours. Does this come at a cost? You bet! If you don’t take the time to invest resources to stimulate you to make rain, then the fruits of your labor could be underwhelming. In addition to jazzing up your space and feeling a little happier and sharper, a sweet office space will undoubtedly leave an impression on your clientele. We don’t need to be subtle on this point. If someone needs a lawyer or legal team, they want to enter an office that sends the message: “We’ve got you.” Litigants are navigating through uncertainty, and they are relying on their legal team to have their back and to advocate for their best interest. So, walk the walk and spruce up the reception area of your office.

Eliminate or discard messy piles of paper, random tchotchke items and trinkets. Assess whether the art or wall decorations are visually appealing and decide whether they should be changed. Also, consider whether the receptionist’s office furniture sends a message: “We value our team members.” If the reception area furniture is more than a decade old and beat up, then it’s time to invest in some new items. In the end, follow the theme of “if you build it....” Loving the space that you are in will have a positive effect on how you feel, think, and act; whereas a work environment that feels dreary or boring will likely leave you dreaming of quitting your job and transitioning your career to selling friendship bracelets and coconut drinks on a remote beach somewhere (a career change that I would fully support). Oh…plants! Bring a little life into your office and help enhance the air quality. Also, nature just AUSTIN LAWYER AL AL simply does a body good. References A Little Bird, The Psychology of Workplace Design and Productivity (https://alittle-bird. com/the-psychology-of-workplace-designand-productivity/). Work Design Magazine, 4 Factors to Designing Workspaces for People’s Behaviors. (https://www.workdesign. com/2012/06/4-factors-to-designingworkspaces-for-peoples-behaviors/).

Robert W. Calvert American Inn of Court and the Austin Bar Third Annual Half-Day of Free Ethics CLE Honoring Professionalism and Civility BY LESLIE DIPPEL

The day will conclude with an all-star judicial panel on the importance of civility in and out of the courtroom.

Austin Bar board member Leslie Dippel serves as the director of the Civil Litigation Division at the Travis County Attorney’s Office.

n 1989, the Texas Supreme Court and the Court of Criminal Appeals promulgated the Texas

Lawyer’s Creed to renew the spirit of professionalism and support the spirit of civility in lawyer conduct. The Creed’s preamble includes these ideals: • The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. • In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system. • The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree

of ethical and professional conduct. Modeling ethical, professional, and civil practices are core principles of the Robert W. Calvert American Inn of Court and the Austin Bar Association. In that combined spirit, the two organizations are partnering to sponsor their third annual free half-day CLE (including three hours of ethics) on May 13, 2022, from 9 a.m. – 12 p.m. The event will be virtual and is open to all Austin-area attorneys on a first-to-register basis. Austin legal experts will present on ethics, professionalism, and civility as the foundation of a

MAY 13 THIRD ANNUAL HALF-DAY OF FREE ETHICS CLE Virtual, 9 a.m. – 12 noon Register at austinbar.org.

vibrant and successful practice. The day will conclude with an all-star judicial panel on the importance of civility in and out of the courtroom. The four presentation segments support, encourage, and celebrate true professionalism and civility. Registration information will be in an upcoming issue of Bar Code and on the Austin Bar AssociaAUSTIN LAWYER ALus! AL tion’s website. Please join

partners:

associate attorneys: Arielle Rosvall, Coleen Kinsler

AUSTINLAWYER | MAY 2022

Welcome Back In-Person Veterans Clinic Held in Caldwell County BY LESLIE SPATOLA

Leslie Spatola works with the Austin Bar Foundation’s Veterans Legal Assistance Program as the part-time Project Coordinator. Prior to this position, the 2008 graduate of Stephen F. Austin State University worked for the Nacogdoches County Attorney’s Office, the Upshur County District Attorney’s Office, and the 420th Judicial District Court.

ith the invaluable assistance of Dr. Al Dos Santos, the Veterans Service Officer of Caldwell County, and Hoppy Haden, the Caldwell County Judge, the Austin Bar Foundation’s Veterans Legal Advice Program was able to hold its first in-person clinic in

Texas’s Executive Director Annie Melendez; Texas RioGrande Legal Aid’s Robert Garza; and Texas Legal Services Center’s Kevin Dietz, Julian Honor, and Cecile Collins. The attorneys were able to provide advice to veterans to their legal questions involving eviction, divorce, probate, and deceptive trade practice/consumer protection. Members of the Austin Bar Association recognized a growing population of veterans in the Central Texas area who did not have access to legal advice or services when faced with a legal issue due to limited income. Thus, the Austin Bar Foundation established the Veterans Legal Assistance Program with the mission to organize and provide free legal advice clinics for qualified, low-income veterans, active-duty service members, and their families who reside in or have a civil legal issue in the jurisdictional areas of Bastrop, Blanco, Burnett, Caldwell, Gillespie, Hays, Travis, and Williamson counties. Our program has been able to provide advice and pro bono services to hundreds of individual veterans and their families with legal issues such as

The volunteers of this program know the significance of having access to reliable legal advice without the burden of finding the financial means to pay for legal services, which has provided many individuals peace of mind.

of finding the financial means to pay for legal services, which has provided many individuals peace of mind. Over the years, we have had noteworthy working

relationships with other legal aid providers in Central Texas—all with the common goal of helping AUSTIN LAWYER AL AL indigent Texas veterans.

Dates:

*All dates are subject to change to Virtual Clinics depending on COVID-19 circumstances.

    Time: Place:

Monday, May 9 Monday, June 13 Monday, July 11 Monday, August 8

1:30 p.m. to 4:00 p.m.

*Sign-in starts at 1:30 p.m. Please sign-in before 3:30 p.m.

Austin VA Outpatient Clinic 7901 Metropolis Drive, Austin, Texas, 78744

* Please check your email prior to the clinic or contact our office for confirmation of location and any changes or updates.

Complete the Intake Online Today!

25 months! The clinic had outstanding attendance from members of the Austin Bar Association (including Wayne Cavalier, Robert Meisel, Anthony Blazi, and Jami Hale) and received valuable assistance from Lawyer Referral Services of Central

estate planning advice and tools, aid in applying for disability claims, military discharge upgrades, financial assistance, and much more. The volunteers of this program know the significance of having access to reliable legal advice without the burden

To be placed on the Clinic List, you must fill out an application. Please scan the QR code or use this link to apply: https://memcentral.wufoo.com/forms/intake-form-veteran-legal-assistance-program/ *To best assist you, please bring any paperwork relevant to your case.

The Texas Access to Justice Foundation and Austin Bar Foundation provide support to this program. For any questions about the Legal Advice Clinic or Legal Assistance Program please contact the Austin Bar Association at 512-472-0279 x110.

MAY 2022 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Nicolas Aitches-Gavrizi Taylor Bell Sarah Best William Fowler Anna Fredrickson Iris Gonzalez Katherine Howard Taylor Kacir Travis Kelley Matthew Kirby Jordan M. Thomas Leslie Mason AnneMarie McComb Brian McGiverin Jacob Merkord Grover Peters Amber Petrig Jessica Prado Lynn Saarinen Kylie Shcherbakov William Stripling Michael Sullivan Kayley Viteo Alexander Zendeh

ABOVE: (from left) Davis and Whitehurst

IN MEMORIAM

Mike Davis, founding partner of Slack Davis Sanger, passed away on March 30, 2022. Davis was a graduate of The University of Texas, a distinguished law graduate of St. Mary’s Law School, and a briefing attorney for Justice Franklin Spears on the Texas Supreme Court. Davis was recognized for his expertise in vehicle crashworthiness. In 1993, Davis and his father Tom Davis, along with Mike Slack, founded Slack Davis Sanger. In the ensuing three decades, Davis and the firm litigated complex injury and death

cases nationwide. According to the press statement the firm issued after Davis’s longtime and valiant fight with cancer: “With Mike Davis’ significant contributions, the new firm was, from its inception, innovative. It broke from traditional notions of how plaintiffs law firms should be organized, structured, and managed. From its earliest days, Mike was instrumental in introducing the latest technologies for law firm use even when those products and services had not been developed for law firm usage.” The Austin Bar Association expresses its deepest condolences to Mike’s family. KUDOS

William “Bill” Whitehurst, Jr. of Austin was selected for one of the 2022 Texas Bar Foundation’s Outstanding 50 Year Lawyer Awards. The award

L A W

LLP

recognizes attorneys whose practice has spanned 50 years or more and who adhere to the highest principles and traditions of the legal profession and service to the public. Whitehurst, also a registered pharmacist, specializes in medical-legal litigation at Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham & Jacob, PLLC. He previously served four years in the USAF JAG Corp defending Air Force felony cases throughout the Pacific and earning the Meritorious Service Medal. Whitehurst has been president of the Texas Young Lawyers Association, the State Bar of Texas, and the Texas Trial Lawyers Association. He has also chaired both the Texas Bar Foundation Board of Trustees and the Texas Bar Foundation Fellows.

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AUSTINLAWYER | MAY 2022

THIRD COURT OF APPEALS CIVIL UPDATE

The following are summaries of selected civil opinions issued by the Third Court of Appeals during March 2022. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of April 4, 2022. TRIAL PROCEDURE: Court reverses trial-court order on adequacy of expert report. HMIH Cedar Crest, LLC v. Buentello, No. 03-20-00377-CV (Tex. App.—Austin, Mar. 4, 2020, no pet. h.) (mem. op.). Buentello sued for injuries sustained by her child D.B.J., who was assaulted by another patient while at Cedar Crest. The trial court overruled Cedar Crest’s objections to Buentello’s expert report. The court of appeals concluded that the expert report failed to: 1) provide a summary of the standard of care and Cedar Crest’s breach; 2) detail the actions Cedar Crest should have taken; and 3) describe causation. The report only vaguely described D.B.J.’s injuries caused by Cedar Crest but did not explain how those injuries were distinct from his injuries caused by the assault. The court reversed and remanded for the trial court to consider dismissal or an extension to cure. The dissent concluded that because the report properly set out the

standard of care, breach, and causation, the reviewing court should have deferred to the trial-court ruling. TTCA: Diligent service is not a statutory prerequisite under the TTCA. Tanner v. Texas State Univ., No. 03-21-001310-CV (Tex. App.— Austin Mar. 10, 2022, no pet. h.). Tanner sued TSU in 2016 but did not effect service until 2020. TSU filed a plea to the jurisdiction, contending that under Gov. Code § 311.034 diligent service is a jurisdictional statutory prerequisite to suit. The trial court granted the plea. The court of appeals observed that “diligent service” is not mentioned in CPRC § 16.003(a). The court further noted that diligent service is court-created and not based in the statute. Finally, the court observed that because service relates back to the date of filing suit, diligent service is not a requirement that must be met before filing suit. The court held that diligent service is not a statutory prerequisite to bringing a claim under the TTCA and reversed and remanded. TRIAL PROCEDURE: All facts surrounding a contract determine venue. Meeker v. Luminex Corp., No. 03-20-005680-CV (Tex. App.— Austin Mar. 17, 2022, no pet. h.) (mem. op.). Luminex, based

Mediation. Arbitration. Resolution.

in Austin, sued a customer, TDL, for breach of contract. TDL’s CEO, Meeker, resides in Tarrant County. After reaching a settlement agreement wherein another of Meeker’s companies would pay Luminex, Meeker signed a guarantee to pay any remaining unpaid balance. When Meeker refused to pay, Luminex sued in Travis County. The trial court denied Meeker’s motion to transfer venue to Tarrant County. The court of appeals noted that proper venue in contract disputes is based on all the facts: where the contract was made, performed, and breached. While the settlement negotiations and agreements occurred in Travis County, Meeker argued that his breach occurred in Tarrant County. The court held that the guarantee could not be considered in isolation from the settlement agreement. The court affirmed. TRADE SECRETS: No statutory violation where company took no steps to keep its information private. Scientific Machine & Welding, Inc. v. Rose, No. 03-20-00564CV (Tex. App.—Austin Mar. 23, 2022, no pet. h.) (mem. op.). Scientific sued Rose, a former employee, for claims under the Texas Uniform Trade Secrets Act, contending that he improperly released designs and proprietary information. The

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.

trial court granted summary judgment for Rose. The court of appeals concluded that Scientific failed to take any reasonable measures to keep its information secret as required by CPRC § 134A.002(6). The evidence established that Scientific’s projects were available to all employees without limitation, company information was given to third-party vendors without non-disclosure agreements, and the company did not limit employee access to customer lists. Accordingly, the court held that Scientific failed to keep its information secret so as to invoke protection the statute. The AUSTINfrom LAWYER AL AL court affirmed.

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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 2021. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of April 1, 2022.

JURY INSTRUCTIONS – CULPABLE MENTAL STATES: Trial court did not err in failing to instruct the jury regarding the culpable mental states applicable to the offense of possession of a controlled substance. Armstrong v. State, No. 03-1900748-CR (Tex. App.—Austin Oct. 15, 2021, no pet.) (mem. op., not designated for publication). Three “conduct elements” can be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. The statutory definitions of the culpable mental state in a jury charge must be tailored to the conduct elements of the offense, and a trial court errs when it fails to limit the definitions of the culpable mental states to the conduct element or elements involved in the offense. 20

AUSTINLAWYER | MAY 2022

Armstrong, who was convicted of possession of a controlled substance, argued on appeal that the charge erroneously included definitions of culpable mental states relating to result-oriented offenses or, alternatively, failed to tailor the applicable definitions to the nature and circumstances of the proscribed conduct. The appellate court disagreed. The court explained that “[t]here is no agreement among Texas courts regarding the classification of possession of a controlled substance by its constituent conduct elements,” and “[w]here the categorization of an offense is undecided, a trial court does not err by including the complete statutory definitions of ‘intentionally’ and ‘knowingly.’” Because there was no “definitive ruling” from the Court of Criminal Appeals on the conduct-elements classification of possession of a controlled substance, “the trial court did not err in including the definitions of ‘intentionally’ and ‘knowingly’ as they apply to result-oriented offenses.” JURY INSTRUCTIONS— PREDICATE OFFENSES FOR FELONY MURDER: Court’s charge erroneously allowed jury to convict defendant of felony murder based on predicate offense of reckless aggravated bodily-injury assault. Keen v. State, No. 03-19-00744CR (Tex. App.—Austin Oct. 15, 2021, pet. ref’d) (mem. op., not designated for publication). A person commits felony murder if he “commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.” Tex. Penal Code § 19.02(b) (3). Lesser-included offenses of manslaughter also cannot serve as the predicate offense for felony murder.

Keen, who was convicted of The charge alleged both valid felony murder after he shot and and invalid legal theories, and killed his girlfriend, argued on the court observed that “when appeal that his alleged comthe valid theory is supported by mission of reckless aggravated ‘overwhelming evidence,’ the bodily-injury assault was a defendant often has not been lesser-included offense of manegregiously harmed by submisslaughter and could not be used sion of the invalid theory.” That to convict him of murder. The was the case here. There was appellate court agreed. The court overwhelming evidence that explained that “to decide whethKeen had (1) knowingly caused er an offense is a lesser included the victim’s death, (2) intended offense of manslaughter for feloto cause her serious bodily injury ny murder’s statutory exclusion, and committed an act clearly danwe ‘look solely to the statutory gerous to human life that caused elements of manslaughter’ and her death, or (3) committed those of the purported lesser knowing aggravated assault and included offense and ignore the in the course of the commission indictment.” also committed an act clearly danThe statutory element at issue gerous to human life that caused here was the culpable mental her death. state. Generally, aggravated Additionally, the jury charge assault is not a lesser-included otherwise properly instructed the offense of manslaughter because jury on the circumstances under that offense is usually committed which it could convict Keen of intentionally or knowingly. Howmurder, and the prosecutors ever, reckless aggravated assault “downplayed” recklessness in is a lesser-included offense of their closing arguments and manslaughter, and therefore it instead argued that the evidence may not serve as the predicate was overwhelming that Keen had offense for felony murder. The AUSTIN knowingly caused the victim’s LAWYER AL AL court’s charge allowed for that death. possibility and thus was erroneous. However, the court also concluded that Keen was not egregiously harmed by the error.

FEDERAL CIVIL COURT UPDATE The following are summaries of opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are overviews of particular aspects of each opinion; please review the entire opinions.

> EMPLOYMENT: An employee’s allegation that a supervisor directly called him a racial epithet in the presence of other employees was alone sufficient to state a claim for hostile work environment. Woods v. Cantrell, No. 21-30150, 2022 WL 871885 (5th Cir. Mar. 24, 2022). Anthony Woods sued his prior employer for violating Title VII by discriminating against him on the basis of race or religion and subjecting him to a hostile work environment. The district court dismissed Woods’s complaint under Rule 12(b) (6). On appeal, the Fifth Circuit held that most of his claims were based on conclusory allegations and, thus, were properly dismissed, except one—his hostile work environment claim. For the hostile work environment claim, Woods’s complaint specifically alleged an instance in which his supervisor, in the presence of other employees, called him a racial epithet. The Court noted that one of its previous unpublished (and, thus, non-precedential) opinions

indicated that a single instance of a racial epithet does not, in itself, support a claim of hostile work environment. But the Court also pointed to precedent holding that, under the totality of the circumstances test, a single incident of harassment, if sufficiently severe, can give rise to a viable Title VII claim. The Court concluded that Woods had alleged such an incident. Echoing the holdings of other circuits, the Court observed that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet … by a supervisor in the presence of his subordinates.” The Court reversed and remanded this issue to the trial court. PRIVACY: Allegation that a defendant stored driver’s license information on “unsecured external servers” and that unauthorized users accessed that information did not plausibly state a claim that the defendant knowingly disclosed that information under the Driver’s Privacy Protection Act. Allen v. Vertafore, Inc., No. 2120404, 2022 WL 765001 (5th Cir. Mar. 11, 2022). Vertafore, Inc., a software company, announced in November 2020 that three data files “stored in an unsecured external storage

PATIENT

service” had been accessed without authorization sometime between March and August 2020. Those files contained the driver information of approximately 27.7 million people holding Texas driver’s licenses. The plaintiffs, Texas driver’s license holders, brought a putative class action against Vertafone for violating the Driver’s Privacy Protection Act (DPPA), which makes it unlawful for any person “knowingly to obtain of disclose personal information from a motor vehicle record” for an unpermitted use. The district court granted Vertafone’s motion to dismiss, holding that the plaintiffs failed to allege factual allegations amounting to a knowing disclosure of personal information. On the appeal, the Fifth Circuit affirmed. The DPPA does not define disclose, so the Court looked to the definition in Black’s Law Dictionary: “to bring into view by uncovering; to make known; to lay bare; to reveal to knowledge; to free from secrecy or ignorance, or make known.” Although the plaintiffs argued in their briefs that Vertafore disclosed their information by placing it onto a server that was “readily accessible to the public,” the plaintiffs did not actually allege public access in their complaint. Instead, the Court observed, the plaintiffs alleged only that Vertafore stored the information

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on “unsecured external servers” and that unauthorized users accessed the information. Those facts, the Court concluded, did not plausibly allege LAWYER a “discloAUSTIN AL AL sure” under the DPPA.

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CRIMINAL COURT NEWS

Fifth Circuit: Facebook May Be Watching You, But They Aren’t the Government BY DAN DWORIN

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

he Fifth Circuit has held that although Facebook turned over evidence of possible crimes discussed by users to the government, the social media giant is not a “government actor” for purposes of the Fourth Amendment. The case involved the defendant’s personal messages with an underage girl, which Facebook monitored and passed along to the National Center for Missing and Exploited Children (NCMEC), which in turn passed them along to law enforcement.1 Based on the nature of the messages and the age of the child,

local law enforcement obtained a search warrant for the defendant’s home, where images of child pornography were found.2 The defendant argued that although the “private search doctrine” allows the government to use information obtained by a private actor who may have violated the defendant’s privacy, the fact that federal law requires internet companies to report possible evidence of child abuse to NCMEC makes companies such as Facebook de facto agents of the government. The private search doctrine allows a non-government actor to conduct a search which would require a warrant were it performed by law enforcement.3 The Court made short work of this argument, holding that the statutory reporting requirement in 28 USC Sec. 2258A(a) does not convert the private company into a government agent. The Court noted that a defendant alleging that a private actor who searches the defendant’s home is a government agent bears the evidentiary burden of proving that, and that the defendant provided no evidence to support his argument.4

Further, the Court held that although federal law requires internet companies to report evidence of child abuse to NCMEC, it does not require them to search for that information. Facebook’s decision to monitor the content of the private messages between the defendant and the child was not mandated by the statute, the Court held.5 The Court also rejected the defendant’s argument that NCMEC—which is a private, nonprofit entity—also acted as a government agent and exceeded the scope of Facebook’s original “cyber tip.” Since all NCMEC

did was forward the information received from Facebook on to the Corpus Christi Police Department, and did not conduct any search of its own, the Court reasoned that even if it were to be considered a government actor it did not exceed theLAWYER scope of the AUSTIN AL 6 AL original private search. Footnotes 1. United States v. Meals, 21 F.4th 903 (5th Cir. 2021). 2. Id. 3. United States v. Runyan, 279 F.3d 449 (5th Cir. 2001). 4. Meals, 21 F.4th 903. 5. Id. 6. Id.

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Austin Bar Contributor Lauded for Outstanding Effort Claude Ducloux Receives Award

ustin Bar Association member Claude Ducloux is the winner of the 2022 Pat Nester Innovation in Professional Development Award for his dedication and contribution to the legal community in Central Texas. The award, established by the State Bar of Texas in 2017, honors individuals whose innovative contributions have substantially advanced continuing legal education in Texas. Ducloux certainly fits the mold. He is the co-creator of the State Bar of Texas Advanced Trial Strategies Course, which enables practitioners to interact with experts on pertinent issues in the field of trial advocacy, and has served as its course director every year since it debuted in 2012. Additionally, in the past six years, he has presented 514 CLE trainings to his peers, in all 50 states and in Canada.

“I’ve taken every opportunity to learn from the best lawyers and judges, and now, nothing gives me as much joy and satisfaction as giving back by helping lawyers.” Ducloux’s effort is also duly noted throughout the Austin Bar Association for decades of service. His popular humor-commentary column, Entre Nous, has appeared in 121 issues of Austin Lawyer, over the past 30 years and is wellregarded for its informative and comedic take on legal issues. Ducloux credits DeLaine Ward for first urging him to get involved in bar work almost 40 years ago—“when I think we were both in junior high,” he says. Since then, Ducloux has served as president of the Austin Bar and as chair of almost every bar-related entity from the

Board of Legal Specialization, the Texas Bar Foundation, the State Bar College, and the Texas Center for Legal Ethics, and received numerous awards. His continuous service to the Austin Bar is reflected by both receiving AYLA’s Outstanding Young Lawyer Award in 1987, and being honored as a “Distinguished Lawyer” in 2019. When asked about his commitand satisfaction as giving back by ment to the Austin Bar and the helping lawyers all over the counCentral Texas legal community, try to work, organize, improve, Ducloux replied, “I’ve taken evand thrive by passing on those ery opportunity to learn from the lessons in a meaningful way.” best lawyers and judges, and now, AUSTIN Congratulations, LAWYER Claude AL AL nothing gives me as much joy Ducloux!

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Expand Your Horizon with the American Inns of Court BY MATIAS GARCIA siastic and diverse community of members. The Inn strives to honor Barbara Jordan’s legacy of professionalism and integrity and was awarded Platinum recognition by the American Inns of Court. Membership is open to practicing litigators in Travis County or the contiguous counties. Contact rhargrove@ scottdoug.com for details. LLOYD LOCHRIDGE INN OF COURT The Lloyd Lochridge Inn of

Court 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. Membership is limited to the number of available openings. Email christie.emh@gmail. com for more information. THE HONORABLE LEE YEAKEL INTELLECTUAL PROPERTY INN OF COURT The Honorable Lee Yeakel Intellectual Property Inn of

Matias Garcia is a managing member of Barnet & Garcia, PLLC. He is also president of The Texas Creditors Bar Association and membership chair of the Calvert American Inn of Court.

he Austin chapters of the 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 innsofcourt.org. Each Inn meets monthly. The deadline to apply is May 31, 2022.

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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. Contact matt@barnettgarcia. com for more information. BARBARA JORDAN INN OF COURT 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 enthu-

Court focuses on intellectual property law. Applications are welcome from any practicing litigation attorney or judge. Membership is limited to the number of available openings. To apply, send a statement of interest, résumé, and two letters of recommendation to Brian Nash at bnash@mofo.com and Travis Wimberly at twimberly@ pirkeybarber.com, with a copy to Darla Thomas at dkthomas@wsgr. com. Include “Lee YeakelLAWYER IP Inn AUSTIN L AL of Court” in the subjectAline.

Appeals

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Troubled Legal Writing, Part V Writing Poorly BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

n this column, I’ve presented four previous reports on the troubling ways lawyers get into trouble for unethical legal writing: lying, attacking, rule-breaking, plagiarizing, and more. Here is part five in that series: writing poorly.

AT TRIAL A lawyer copied a form complaint from a practice manual but did not incorporate the facts and law of his own case. The judge was rightly exasperated by this lack of effort and asserted that “lawyers are not automatons. They are trained professionals who are expected to exercise independent judgment.” The judge ordered the lawyer to complete a course in federal practice and procedure and civil rights law and then file with the court an affidavit describing the course.1 Another lawyer submitted discovery objections that were, in the judge’s words, “boilerplate, obstructionist, frivolous, overbroad” and contrary to law. The judge further declared that “Rambo-style discovery tactics … have a virus-like potential to corrupt the fairness of our civil justice system.” Ultimately, the judge ordered the lawyer to write an article explaining why it was improper to assert the objections he had asserted in the case. Further, the judge ordered the lawyer to submit the article to two bar journals for publication.2

ON APPEAL In one case, the court chastised counsel for raising 17 issues on appeal—others on the same side had raised only three. What’s more, many of the issues were “incoherent, illogical, and inadequately briefed.” Given the number of issues raised and the poorly written arguments, the

court expressed concern that the brief unnecessarily burdened the opponent. After recommending that counsel review the rules of appellate procedure, the court imposed sanctions for a frivolous appeal.3 The attorney in another case submitted a brief that, appropriately, raised three main points— but none was supported by legal analysis. The court stated that it

for want of prosecution, the lawyer wrote a summary of the argument consisting of three abstract phrases. According to the court, “That isn’t a summary of argument or even the conclusion of an argument.” The legal argument itself was 1.5 pages, containing “a few platitudes, but does not attempt to show how the district judge erred.” And the statement of the standard of

concerns. The briefs contained the following problems: • were three to four pages in length; • were “completely devoid of relevant discussion”; • insulted opposing counsel; • made baseless accusation against the trial judge; • “seriously mischaracterized evidence”; and • failed to mention recent adverse authority. A $5,000 sanction by the trial judge was affirmed, and the court imposed an additional $5,000 sanction.6 It’s unlikely that anyone reading this will ever write as poorly as the lawyers described here, but I hope theseLAWYER examples serve AUSTIN L AL as cautionary A tales. Footnotes

would not consider those points: “[W]e are not a depository in which a party may dump the burden of argument and research.” The court was also dismayed that the brief included a three-page block quotation—followed by no analysis. Overall, the brief was extraordinarily deficient and burdensome. The court awarded attorney’s fees to opposing counsel and ordered that they be paid by the lawyer who wrote the brief.4 In an appellate brief trying to rescue an action dismissed

review was no such thing; it left the court musing, “it might be an effort to frame an issue….” Other words the court used for the brief were “wretched,” “frivolous,” and “sorry.” The lawyer was ordered to show cause why he should not be sanctioned.5

1. Clement v. Public Serv. Elec. & Gas Co., 198 F.R.D. 634, 635, 636 (D.N.J. 2001). 2. St. Paul Reinsurance Co. Ltd. v. Comm’l Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000). 3. Dillon v. Rosalie Dahl Estate Trust, No. 14–01–01240–CV, 2003 WL 1565959 at *8 (Tex. App.—Houston [14th Dist.] 2003 no pet.) (mem. op.). 4. Nipper v. Douglas, 90 P.3d 649, 652, 654 (Utah Ct. App. 2004). 5. Sambrano v. Mabus, 663 F.3d 879, 881 (7th Cir. 2011). 6. Nachbaur v. Am. Transit Ins. Co., 752 N.Y.S.2d 605, 607-08 (App. Div. 2002).

ON APPEAL FOR PROBLEMS AT TRIAL In this appeal, the attorney submitted two briefs. The opinion gives few specific details but generally describes a litany of legal, ethical, and writing MAY 2022 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

Inaugural Crawfish Boil Fundraiser Draws a Crowd!

he inaugural AYLA Crawfish Boil was held on Saturday, April 9 on the Hilgers House lawn. The sold-out event marked AYLA’s first in-person spring fundraiser in almost two years due to the COVID-19 pandemic, and the proceeds benefitted the AYLA Foundation. We had a great turnout of 125 attendees. People of all ages enjoyed delicious Louisiana Wild crawfish and trimmings, lots of sunshine, and live music from attorney-musicians the Bad Precedents. Thank you to everyone who attended and sponsored this successful event. Laissez les bons temps rouler! We hope to see you there next AUSTINLAWYER Ayear! L AL

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Thank you Sponsors! Crawfish PoBoy King Crawfish Leslie Boykin Kirker Davis David & Erin Courreges Graves Dougherty Wright & Greenhill Crawfish Gumbo Lloyd Gosselink Rochelle & Townsend Crawfish Étouffée Diggs & Sadler Eversheds Sutherland Floyd Real Estate Vaught Law Firm

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Crushing It at Orangetheory Fitness AYLA Promotes Wellness

he Austin Young Lawyers Health and Wellness Committee hosted a private Orangetheory class on March 26, 2022. Thirteen AYLA members joined for an hour-long, heart-rate-based workout that covered three different stations: treadmill, rower, and weight floor. The group burned a total of 8,270 calories together. This event was made possible by a grant from the Texas Young Lawyers Association. The AYLA Health and Wellness Committee was formed to promote opportunities for lawyers to so-

cialize outside of work and happy hours; to get access to, and be inspired by, a variety of different types of workouts; and receive some general encouragement and reminders to focus on their health and wellness―both physical and mental. The committee has future events planned, including rock wall climbing at Austin Bouldering Project in May (more details coming soon). Please contact Lena Proft at lena.proft@utexas.edu or Joseph Keeney at joseph.danielk@ gmail.com if LAWYER you are interested in AUSTIN AL AL getting involved.

AYLA members work out at Orangetheory.

AYLA Member Spotlight: Shivangi Mehta injured and work tirelessly to seek justice for them. AYLA: How long have you been involved in AYLA and what’s been your best AYLA experience so far?

AYLA: Tell us a little bit about yourself and your law practice. MEHTA: I am originally from New York and went to law school in Ohio, but I made my way down to Texas during the pandemic. I’m enjoying Texas and all it has to offer (and while I do not miss the snow, I do miss the New York style pizza). I work as a trial attorney with Zinda Law Group. Our main office is in Austin, but we practice all over the country. Our practice focuses on catastrophic personal injury. We represent people in the community who have been

MEHTA: I joined AYLA just last month, in March 2022, and everyone has been so welcoming! I attended the AYLA Orangetheory class that was put on by the fitness committee and enjoyed meeting the other members. I look forward to all the future events and can’t wait to get more involved! AYLA: What was your childhood dream job? MEHTA: A lawyer! True story, I wrote it in my fifth-grade yearbook. To be honest, I don’t think I truly understood what a lawyer did at the time, but I remember thinking it was a way to speak up for people who couldn’t always speak up for themselves and that seemed like the coolest job.

Put yourself out there and talk to everyone you can. Whether it’s an opportunity to observe a deposition, take one yourself, or meet with other local attorneys, do it! AYLA: What’s your favorite moment of your career so far? MEHTA: Attending my first hearing. I was extremely nervous and did not think I would know what to do or what to say. But I did my research, spoke with a senior attorney, and made sure I knew the file. I walked in confidently (more like sat down confidently since I was at home, and it was via Zoom) and advocated for my client. It was the best feeling, and I realized how important it is to get your reps in and that it gets more comfortable with time.

activities. I enjoy going to Zilker, walking around the Domain, and trying out different restaurants. The food is delicious (especially the tacos)! AYLA: What’s your best piece of advice for fellow young attorneys?

MEHTA: Put yourself out there and talk to everyone you can. Whether it’s an opportunity to observe a deposition, take one yourself, or meet with other local attorneys, do it! I’m new to the area but I’m finding that that has helped me grow as an attorney AYLA: What are some of the AUSTIN and explore Austin at the same LAWYER A L AL things you enjoy most about time. living in Austin? MEHTA: I love walking around the city. It has so many different areas with a bunch of different MAY 2022 | AUSTINLAWYER

PRACTICE POINTERS

How to Build a Successful and Meaningful Health-Law Practice BY HAL KATZ 1. What progress do partners want to see from an associate over time (skills, abilities, etc.)?

Hal Katz has focused his practice on the healthcare industry for more than 25 years, representing for-profit, nonprofit and governmental entities. He has been on the front line of healthcare evolution and innovation, witnessing firsthand successes and failures at both the industry and business levels. He has been with Husch Blackwell since 2013.

ecent conversations with associates at Husch Blackwell reminded me of my days as an associate. I recall wondering whether I was doing a good job, if more billable hours meant significantly more money, and what it would take to become a partner. The firm had a mentor program and associate reviews, but I still was unsure of the answers. Directly approaching a partner was intimidating. The partners who assigned me work were brilliant, important, and busy, and getting any of their time to answer questions on work assignments was tough. I also worried about coming across like I wasn’t ambitious, intelligent, or appreciative. Over the years, I’ve tried to mentor associates inside and outside the firm and create more comfortable opportunities for these kinds of discussions. I asked a handful of diverse associates to provide me with their career questions (anonymously), and I’m sharing the questions along with my answers. 30

AUSTINLAWYER | MAY 2022

Over the first couple of years, partners want to see you develop strong research and writing skills, and they want to know that you are reliable and conscientious. Next, partners want to see you establishing expertise in one or more substantive areas of the law, taking the initiative to follow-up on work assignments, and developing good relationships with colleagues and clients. They want to see you pursuing initiatives within the firm and leadership opportunities outside the firm that provide brand building and business development opportunities. 2. What should I be doing as an associate to develop business in the future? First, be patient. Business development is the product of many steps that happen over an extended period. It is a combination of legal skills, expertise, experience, communication skills, relationships, and marketing, but it is also about being visible. Some of the most straightforward business development is right inside your law firm, especially in the early years of your practice. During this time, you are developing your reputation with colleagues and initiating your marketing and brand-building. Next is building a reputation and brand outside your firm through interactions with clients, being visible on LinkedIn and Twitter, article and blog writing, presenting at conferences, and becoming active within trade and professional organizations. Before you know it, you will be generating business from lawyers within the firm, existing clients, and new clients.

3. When it comes to health-law expertise, in which essential areas do you think an associate should become competent? All health law associates should complete a health law fundamentals program. From there, I have found that having a general and ongoing understanding of fraud and abuse, privacy, and licensure issues all provide the necessary foundation for developing as a health lawyer. I would also recommend becoming familiar with standard business and legal matters with contract drafting. 4. How should I be marketing myself as a healthcare lawyer, and when should I start doing so? Marketing should start soon after becoming a lawyer. First, call yourself a health lawyer, and develop two sentences that describe your practice for when you meet people. Second, tailor your ﬁrm bio, LinkedIn page, and Twitter account (yes, I said Twitter account) to focus on the healthcare industry. Third, create content (which does not need to be long or legalese) that you can use on your website, blog, or social media accounts and with organizations with which you’re involved. Fourth, develop a social media strategy that includes following colleagues, clients, credible organizations, and

regularly “liking,” “sharing,” and posting content. 5. What are the “hot” areas or niches in healthcare law right now, and do you see a young associate having longevity in this field? Regulatory and business issues in the telehealth, digital health, and behavioral health sectors will likely be growing for the next several years. I also believe regulatory and business issues around the pandemic will continue to be an important area and opportunity for health lawyers. While I don’t necessarily suggest associates devote 100 percent of their time to this area, there is a lot of overlap with other operational and business issues, making it well worth cultivating and maintaining the expertise. 6. Is it as important to be involved in bar associations such as the Austin Bar Association and American Bar Association, as people say? Yes. Being involved in the Health Law Sections of both the Austin Bar Association and American Bar Association have been some of my most rewarding experiences as a health lawyer and the best investment of non-billable time. My ﬁrst leadership appointments in the Austin Bar Association

Business development is the product of many steps that happen over an extended period. It is a combination of legal skills, expertise, experience, communication skills, relationships, and marketing, but it is also about being visible. were to the AYLA-TCBA CLE Committee and the AYLA Community Service Committee, soon after becoming licensed as a lawyer. Being on the CLE Committee allowed me to get to know the local health law experts; keep up with the hottest legal topics and trends in the industry; develop relationships with other bar leaders; and organically build my brand in the community. Being on the Community Service Committee allowed me to explore

the different ways lawyers could contribute back to the community. And both provided me with career-long friendships that I still treasure today, just as much as family. 7. How do you manage a full workload, personal commitments, well-being, and business development? It deﬁnitely isn’t easy, and I don’t always do the best job of balancing. I have been very fortunate

to have strong time management and organizational skills, which have helped a great deal. I have also been very intentional with how I spend my time. My involvement in professional organizations, community service, and law ﬁrm initiatives supports my efforts to be a successful health lawyer. The professional organizations with which I am involved are within the healthcare industry. My community service roles are predominantly with healthcare organizations, and my involvement in the ﬁrm further supports my practice. This strategy ensures that almost everything I am doing is contributing to becoming a better health lawyer. 8. When thinking about the long-term development of an associate’s health law practice, is it better to cultivate a gener-

Patrick

Keel

alist practice or focus primarily on specific areas of health law? I think almost all health lawyers have struggled with this question. When I was an associate, I was overwhelmed with all there was to know, and desperately wanted the confidence from what I thought would come from focusing on a particular aspect of health law. However, over the years, I have realized that broader experience allows a lawyer to see other peripheral business and legal issues that likely would have been missed. It also helps develop judgment when assessing issues on the risk continuum and makes it much easier to cross-sell other business naturally. At some point, it may make sense to concentrate on a few specific areas of health law, but I wouldn’t feel the pressureAUSTIN to do so LAWYER within your first AL AL five years as a lawyer.

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Austin Lawyer, May 2022

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