Austin Lawyer, November 2019

austinbar.org NOVEMBER 2019 | VOLUME 28, NUMBER 9

Austin Bar Salutes Our Veterans

T

VETERANS DAY PARADE he Austin Bar Association’s Community Engagement Committee invites you to march with them in the Austin Veterans Day Parade on Monday, Nov. 11, 2019. All Austin Bar members, especially those who are veterans or who work or volunteer with veterans, are invited to join the parade and show their support for our vets.

Look for Community Engagement Committee Chair Blair Dancy near the bat sculpture located at Barton Springs Road and South Congress between 8:30 and 9 a.m. The parade begins at 9:30 a.m. at the Ann Richards Bridge on Congress Avenue and will proceed up Congress Avenue to the Capitol Building.

A memorial ceremony will begin at 10:30 a.m. on the South Steps of the Capitol and will conclude at noon. For more information, contact Blair Dancy at bdancy@ cstrial.com.

AUSTIN BAR VETERANS ASSISTANCE PROGRAMS In addition to monthly Free Legal Advice Clinics for Veterans, the Austin Bar also provides free legal advice over the phone to eligible veterans in Travis and surrounding counties to assist

Austin Bar members showed their support for veterans at the 2018 Veterans Day Parade.

them with minor legal issues.

Applicants must complete an intake to see if they qualify for these services. These programs are funded by the Texas Access to Justice Foundation and the Austin Bar Foundation.

Douglas Lawrence is the managing director of the Veterans Legal Assistance Programs for the Austin Bar. Lawrence has

made a career in public service, representing the homeless in all manner of civil and criminal cases when he began his career in Cleveland, Ohio. After moving to Texas, he worked at non-profit agencies representing children along with the poor and the elderly. For the past 10 years, he was the lead attorney with Volunteer Legal Services, where he supervised countless legal clinics, helping low-income families with a broad range of legal issues.

According to Lawrence, “We will go where the veterans are.

We’ll set up clinics, give advice and take cases. We will meet face-to-face with every veteran

NOV. 11 VETERANS DAY PARADE MARCH WITH THE AUSTIN BAR ASSOCIATION Contact: Blair Dancy bdancy@cstrial.com

who needs legal assistance. We’ll do whatever we can to help.”

HOW CAN ATTORNEYS HELP? The Veterans Assistance Programs consist of free legal advice clinics and pro bono representation. There is a waitlist of veterans seeking legal assistance. continued on page 7

CONTENTS

AUSTINLAWYER NOVEMBER 2019 | VOLUME 28, NUMBER 9 AL A L INSIDE FEATURED ARTICLES 1

Austin Bar Salutes Our Veterans

12 You Made It Happen!

6 8 10

12 Volunteering with VLS Just Got an Upgrade!

15

13 Apply Now for 2020 AYLA/Austin Bar Leadership Academy

19

13 News from Your State Bar Directors

20

16 Professional Use of Social Media: Part II

Tips for Success from an AYLA Panel—

Continued from Oct. 2019 Issue

23 24 26 30

ONLINE

CONNECTIONS

DEPARTMENTS President’s Column Briefs Be Well Opening Statement Third Court of Appeals Civil Update Third Court of Appeals Criminal Update Federal Civil Court Update Federal Criminal Court News AYLA Practice Pointers

NEWS & ANNOUNCEMENTS

EVENTS & MORE

Support Texas Lawyers for Texas Veterans

Nov. 7

2020 Jury Trial Schedule Released

by Travis County Civil District Courts

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

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

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

Submission is not a guarantee of publication.

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION D. Todd Smith ���������������������������� President Kennon Wooten ���������������������� President-Elect David Courreges ��������������������� Secretary Amanda Arriaga ����������������������� Treasurer Adam Schramek ����������������������� Immediate Past-President

AUSTIN YOUNG LAWYERS ASSOCIATION Sandy Bayne ������������������������������ President David King ���������������������������������� President-Elect Rachael Jones ��������������������������� Treasurer Blair Leake ���������������������������������� Secretary Jorge Padilla ������������������������������ Immediate Past-President

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EXECUTIVE OFFICES 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward........................... Executive Director Nancy Gray................................. Managing Editor Debbie Kelly............................... Director of AYLA Jennifer Hopgood.................... Editor-in-Chief Rachael Jones............................ Copy Editor

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Ste. 700, Austin, Texas 78701.

Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District of Texas Federal Court and the Texas Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities.

The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement.

Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published.

Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.

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PRESIDENT’S COLUMN D. TODD SMITH, SMITH LAW GROUP

Practicing Gratitude

T

hanksgiving has always been one of my favorite holidays.

As the year winds down, we’re encouraged to spend time with our loved ones without the commercial pressure other holidays bring. It’s an opportunity to take a deep breath and focus on some of life’s great joys: food, family, fellowship, and football.

In my family, like many others, we have a tradition when we’re together for a Thanksgiving meal: We go around the table and each person expresses one or two things they’re thankful for. It’s a brief but significant opportunity to pause and reflect on what matters most in our lives.

As lawyers, we have many reasons to be thankful. It’s easy to lose sight of that in the midst of the daily grind.

We practice a great profession.

Society depends on us to main-

tain its basic order. We speak for those who can’t speak for themselves. We have the power and resolve to make a difference in our clients’ lives. We pursue justice. And we have the opportunity to earn a very good living in the process.

We have the freedom to practice in a setting that’s right for us. Our law licenses allow us to create our own firms and to control our own destinies. We can turn away clients who don’t respect our boundaries or whose values don’t align with ours.

But we don’t have to wait for Thanksgiving to express thankfulness and gratitude—and we shouldn’t.

Think about the people who helped you get where you are today. Sure, your hard work and dedication before, during, and since law school made a difference, but no one succeeds alone.

Somewhere along the way, someone did something that created an opportunity or opened a door for you. Take a moment to thank the people who encouraged you or went out of their way for you.

I bet you’ll spark a little gratitude in return.

Some people treat expressing gratitude as its own discipline.

Search for the phrase “gratitude

Expressing gratitude gives us perspective.

It increases health, happiness, and life satisfaction. It helps us celebrate the good times and makes us more resilient when the going gets tough. journal,” and you’ll see what I mean. There’s substance behind the practice of writing down what you’re grateful for. Studies have shown the positive impact regularly expressing gratitude can have on us. Expressing gratitude gives us perspective. It increases health, happiness, and life satisfaction. It helps us celebrate the good times and makes us more resilient when the going gets tough. It helps us cultivate

an abundance mindset.

What are you grateful for? How might you express that gratitude this Thanksgiving and beyond?

Practicing gratitude need not be regimented or complicated.

There’s no one “right” way to do it. But the benefits can be huge.

It’s a great way to stay grounded, maintain perspective, and encourage balance. Those are benefitsLAWYER we can all stand to gain AUSTIN year-round.

AL AL

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AUSTINLAWYER | NOVEMBER 2019

Austin Bar Salutes Our Veterans continued from cover

The programs cannot be successful without the help of attorney volunteers. If you would like to volunteer, please contact Lawrence at doug@austinbar.org.

PRO BONO SERVICES The Austin Bar provides limited pro bono services for veterans.

However, we are unable to offer these services without the help of attorney volunteers.

FREE LEGAL ADVICE CLINICS The Austin Bar Foundation has been sponsoring these clinics in Travis County for more than five years. Approximately 2,565 veterans have received assistance at the clinics since they began.

On average, Austin Bar attorneys assist 45 veterans at each clinic.

While the veteran population has decreased on a national level, Texas has seen an increase.

There are over 130,000 veterans in Travis and the surrounding

counties. The goal of the clinics is to provide high-quality legal assistance to low-income veterans and their families to remove the barriers that keep veterans at or below the poverty level.

Veterans seeking legal advice do not have to make an appointment or reservation to attend the clinics. Attorney volunteers provide 10 to 15 minutes of brief legal advice. Veterans most

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The goal of the clinics is to provide highquality legal assistance to low-income veterans and their families to remove the barriers that keep veterans at or below the poverty level. often seek legal advice in the following areas: divorce, child support, custody, consumer, contracts, criminal, wills, estate planning, guardianship, probate, housing, landlord/tenant, and bankruptcy.

Monthly legal advice clinics are held at the Austin VA Outpatient Clinic located at 7901 Metropolis Drive from 1:30 to 4 p.m. The next clinics are scheduled on Tues. Nov. 12 and Mon. Dec. 9, 2019. Occasionally, legal advice clinics are also held in surrounding counties. Watch the weekly e-newsletter, Bar Code, for announcements about future clinic dates and locations.

HOW CAN PARALEGALS & LAW STUDENTS HELP? The Austin Bar receives hundreds of calls from veterans seeking legal assistance. Paralegals and law students interested in honing their intake skills are encouraged to volunteer. Help is also needed with managing and updating our database. Interested paralegals and law students may send theirAUSTIN resumes LAWYER to Lawrence AL AL at doug@austinbar.org.

NOVEMBER 2019 | AUSTINLAWYER

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BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Caroline Alonzo Rafic Bittar Aubrey Brick Miguel Bustilloz Michaella Dietrich David Hsu Kevin Koronka Gabriella McDonald Karis Parnham Michael Saunders Ryan Wood

TOP: Anderson, Black, Earle, Livingston, Long LEFT: Thorne, Ward

AWARDS

Dickinson Wright announced K. Lance Anderson was named to the National Law Journal’s list of Texas Trailblazers. Lance is a member of the firm’s management group and is a registered patent attorney.

Travis County Court at Law Judge Elisabeth Earle was elected last week at the Texas Center for the Judiciary 2019 Annual Judicial Education Conference to the State Bar of Texas Judicial Section Board of Directors Place 9.

Travis County District Judge Lora Livingston and Austin Bar Executive Director DeLaine Ward were recently named among the Top Ten Central Texas Diversity Champions by the Austin Black Business Journal. They will be honored at the Diversity Champions Awards dinner on

PATIENT

Sat. Nov. 23 at the J.W. Marriott.

This inaugural annual award was established to recognize and celebrate the accomplishments of executives who are leading the charge for equality in Central Texas.

Haynes and Boone partners Leslie Thorne and Emily Westridge Black were honored as Attorneys of the Year by Texas Lawyer for their successful work on behalf of a Honduran woman seeking asylum. The duo achieved one of the first and most impactful court victories in family-separation litigation in a federal suit, which they filed in Houston last year. They were recognized at an awards ceremony at the Belo Mansion in Dallas on Sept. 18, 2019 as part of Texas Lawyer’s Professional Excellence Awards.

PRACTICAL

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AUSTINLAWYER | NOVEMBER 2019

BE WELL

Depressed? You Are Not Alone

BY DIANA REINHART, LMFT, JD

Diana Reinhart is a therapist in private practice in Austin. Learn more about her at www.embarkcounselingcenter.com.

I

f you are an attorney struggling with depression, you are not alone.

In a 2016 survey of nearly 13,000 attorneys nationwide, 28 percent reported symptoms of depression, and 19 percent said they struggled with anxiety.

Why is this the case? There are many general causes of depression—and then there are the particular challenges that attorneys face.

Genetics and hormones can play a role. So can chronic stress, lack of social support, and difficult childhoods. Traumatic events, losses (deaths and losses of friendships, pets, homes, social status, marriages, etc.), betrayals, and public humiliations often contribute, too.

As a therapist who works with many lawyers, I can tell you other factors I hear about on a daily basis: toxic interactions with opposing counsel, including being personally attacked in motions before the court; competition within firms; clients who email around the clock; billable hours and financial pressures. There are many others.

HOW DO YOU KNOW IF YOU ARE DEPRESSED? The official symptoms include depressed mood (feeling sad, empty, hopeless, etc.); losing interest in activities; changes in weight or 10

AUSTINLAWYER | NOVEMBER 2019

appetite; sleep problems; fatigue; feeling worthless or guilty; difficulty concentrating or indecisiveness; and thoughts of death.

It’s also common to feel angry and irritated. You might snap at the people around you—your coworkers and even your family.

You remember being happier and more pleasant, maybe even easy-going and happy-go-lucky.

“What happened?” you ask. You wonder who this new person is—it doesn’t feel like you.

These symptoms often play off each other. Bad sleep, for example, puts you in a bad mood and makes it harder to concentrate.

You can’t focus at work, which makes you anxious and can lead to a dip in performance—which leads to more anxiety and more bad sleep, and more snapping at your partner and kids at home. It becomes a vicious cycle.

So, what can you do if you suspect you are depressed?

Here are some tips. The suggestions regarding lifestyle are also good preventative measures.

TAKE IT SERIOUSLY Depression can become a chronic disease. The chances of relapse increase with each episode. If you suspect you are depressed, find a therapist and start making lifestyle changes.

EXERCISE Some studies show that consistent exercise is as effective as taking an anti-depressant. Exercise also reduces anxiety and improves sleep. Strive for 150 minutes of cardio a week.

SLEEP Quality sleep elevates mood, lowers stress, and improves memory. Prioritize sleep and practice good sleep hygiene. If you wake up worrying, write down your worries and the next day’s to-do list before bed.

Being depressed means you have a negative lens on the world. Making lists of things you are grateful for, even if they are small, helps you notice what’s positive in

your life.

WATCH THE BOOZE Alcohol is a depressant and disrupts sleep. If you drink too much, you are probably going to feel worse.

MAKE DECISIONS It’s easy to go into avoidance with depression. Dilemmas that hang over you too long, however, can take a toll. Weigh your options and take swift action whenever possible. Things almost immediately feel more manageable.

SET GOALS Set achievable goals in line with your values. Your brain releases dopamine each time you take a step forward and when you reach your objective. Feeling directionless, or having poorly defined goals, makes you feel down.

notice depressing events more than happy ones, and you record more negative memories. Making lists of things you are grateful for, even if they are small, helps you notice what’s positive in your life.

WATCH YOUR BODY LANGUAGE It sounds too easy to be true, but watch your posture. Are you slouching and frowning?

Standing up straight with an open chest makes you feel more confident. Smiling and relaxing your face helps you feel better.

Taking slow deep breaths reduces anxiety. There is a lot you can do with your body to help.

START SMALL Many times with depression it feels impossible to do anything.

Start small with your changes, and they will build over time. If you GET OUT OF THE HOUSE can’t go on a 30-minute jog, for (OR OFFICE) example, walk around the block.

Depressed people tend to isolate.

And give yourself credit for it. It’s Putting on a happy face is okay to start where you can. difficult, and there is often a lot Typically, depression lifts of shame about being depressed. through a combination of changThe tendency is to keep it secret. AUSTIN es. There is hope. And a way LAWYER Isolating, however, makes it AL AL forward. worse. We heal with the love and support of others.

Do you or someone you PRACTICE GRATITUDE Being depressed means you have a negative lens on the world. You

know need help?

24-hour Suicide/Depression Hotline: 512.472.4357 TLAP: 1.800.343.8527

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www.LaurieRatliffLaw.com 512-422-3946 laurie@laurieratlifflaw.com

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NOVEMBER 2019 | AUSTINLAWYER

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more good news!

You Made It Happen!

OURHOMEONJUDGESHILL.COM

W

hen the Austin Bar Association made the decision to purchase 712 West 16th Street last November, we knew we were facing a number of challenges.

We needed to convince the Judges Hill Neighborhood Association to sign off on our request to change the property’s zoning.

We had to work with neighboring businesses and organizations to secure additional parking.

And we needed to raise at least $200,000 in donations to qualify for a $100,000 matching grant from the Lola Wright Foundation. Actually, we estimated that we’d need at least $500,000 in donations to make the property ADA-compliant and usable as an office and meeting space.

2019 OUR HOME

ON JUDGES HILL

CAPITAL CAMPAIGN INSIDE

5 Reasons to Support Our Home on Judges Hill Floorplan Neighborhood Map Recognition Opportunities About William Hilgers Why I Support...

CC19-5Reasons.indd 2

Luminary Award Recipient

A PLACE TO CALL HOME 712 WEST 16TH STREET, AUSTIN THE AUSTIN BAR FOUNDATION is purchasing a 4,500 sq. ft. historic property at the corner of 16th Street and West Ave. in the historic Judges Hill neighborhood.

The Our Home on Judges Hill marketing campaign received a Luminary Award from the National Association of Bar Executives at their annual Communications Section conference in Cleveland, Ohio.

Since our founding in 1893, the Austin Bar Association has never had a permanent home.

Finally, with a one-time investment, we will have a home for the Austin Bar—a home for the legal community—our home.

Thanks to the generosity of the Lola Wright Foundation, the new Austin Bar headquarters will be named the William B. Hilgers House on Judges Hill, or simply: Hilgers House.

2/14/19 5:28 PM

We turned to you, the members of the Austin Bar. And you stepped up.

The Lola Wright Foundation gave us a full year to meet the matching grant challenge. But thanks to your generosity, we reached it within three months.

We revised our original $500,000 goal to $750,000 … and then revised it again, to a stretch goal of $1 million.

Yes, we named everything we could think of—from the Justice

Kelly Powder Room to the Sharp Mobile Bar! Those names—your names—will forever be part of Our Home on Judges Hill.

As of today, thanks to your generosity, the campaign has raised more than $950,000.

Those funds are enabling us to complete the modifications needed to convert a house into office space, purchase furniture, and take on less debt as property

owners. You’ve made an investment in the future of the Austin Bar. Thank you!

While we’ve been hosting special events at the house for the past several months, we’re still in a holding pattern—waiting on a City of Austin Occupancy Permit—before we can officially move our business offices to Hilgers House.

Stay tuned for AUSTIN LAWYER our official move-in Adate.

L AL

Volunteering with VLS Just Got an Upgrade!

V

olunteer Legal Services announces VolunteerHub, a new cloud-based volunteer management software that will help VLS better serve YOU, their volunteers. With VolunteerHub, anyone interested in pro bono opportunities can now easily apply and register to serve as a mentor, or as a volunteer 12

AUSTINLAWYER | NOVEMBER 2019

and provide legal advice, direct representation, interpretation/ translation services, and/or general assistance at VLS’s 175 clinics held every year.

VolunteerHub allows individuals, law firms, attorneys, paralegals, businesses, and organizations to customize their engagement with VLS. Features include:

• A simple online application for new volunteers to register; • A simple online interface for existing volunteers; • A comprehensive listing and calendar of pro bono volunteer opportunities, including free CLE; • An online scheduling/calendaring tool; and • Tools to track your volunteer

hours, impact, and personal goals!

If you are interested in volunteering or have questions about getting started with VolunteerHub, please contact VLS Pro Bono Volunteer Coordinator Kate HannaherAUSTIN at 512.640.7743, or LAWYER AL AL khannaher@vlsoct.org.

Apply Now for 2020 AYLA/Austin Bar Leadership Academy

A

pplications for the 2020 Austin Young Lawyers Association/ Austin Bar Leadership Academy class are now being accepted. The deadline to apply is Friday, Nov. 22, 2019. The Leadership Academy was established to assist local lawyers with making a difference and impacting the Austin community, serving local bar associations, and promoting professional development. The program brings together a diverse group of attorneys from a variety of practice areas, firm sizes and types, and levels of experience.

The Leadership Academy kicks off with an all-day retreat in January 2020. Participants will learn more about the Leadership Academy’s purpose and plans for the upcoming sessions. They will spend the day networking with one another and meeting with AYLA and Austin Bar leaders.

Following the retreat, the program offers a series of five lunch

NOV. 22 LEADERSHIP ACADEMY APPLICATIONS DUE APPLY AT AUSTINBAR.ORG Questions: Michael Roberts amroberts@jw.com

or evening presentations where participants engage and network with local leaders involved in public policy, government, private sector, non-profits, and bar associations. Past presenters have included Senator Kirk Watson, Mayor Steve Adler, Federal District Judge Robert Pitman, Third Court of Appeals Justice Chari Kelly, State District Judge Karin Crump, State Representative Eddie Rodriguez, Army Futures Command Judge Advocate Col. Michael Wong, and Travis County Judge Sarah Eckhardt.

The Leadership Academy also

Members of the 2019 AYLA/Austin Bar Leadership Academy at closing graduation ceremony and happy hour in June, 2019.

includes a class project in which participants seek to have an impact on their community. The 2019 class planned, advertised, and held Pie Fest at Hilgers House, the Austin Bar’s new home. The class raised almost $16,000 in support of the Austin Bar Foundation’s “Our Home on Judges Hill” capital campaign.

The program culminates with a

graduation ceremony and happy hour, at which local bar leaders provide information on next steps for community involvement.

To access the application please visit the Leadership Academy page found under AYLA’s projects at austinbar.org. Questions?

Contact Michael Roberts at AUSTIN LAWYER mroberts@jw.com.

AL AL

News from Your State Bar Directors

Y

our representatives on the State Bar Board of Directors think it is important to keep you informed of activities of the bar at the state level. This month, we share news from the State Bar Board of Directors meeting held on Sept. 20, 2019 in Corpus Christi.

The board approved the Nominations and Elections Subcommittee’s recommendation of Pablo Almaguer of Edinburg and Sylvia Borunda Firth of El Paso as candidates for 2020-2021 State Bar President-Elect. The candidates will appear on the ballot in April 2020. Potential petition candidates have until March 1, 2020 to submit nominating petitions to the State Bar for certification.

President Randy Sorrels discussed launching a new program to connect lawyers wanting temporary contract work with

Find more benefits information at the State Bar’s website by visiting texasbar.com/memberbenefits, or by accessing the website through the QR code pictured at right. lawyers who have that need. More information on this program will be available soon.

The board appointed El Paso lawyer Steve Fischer to the State Commission on Judicial Conduct, and Houston lawyer Lynne Liberato to the Texas Commission on Judicial Selection. The board also added seven people to its Social Media Engagement Team, which is part of the State Bar’s effort to better communicate with members through social media.

Finally, if you are interested in learning about insurance options through the State Bar, there are

many new options available to provide more service to members—including $10,000 of basic accidental death and dismemberment coverage at no cost to you, and a group plan for solo practitioners with at least one employee. Open Enrollment is active now, from Nov. 1 through Dec. 15, 2020. There are also many non-insurance benefits available to members and more are being added. You can find information on the State Bar’s website by visiting texasbar.com/memberbenefits, or by accessing the website through the QR code pictured above.

Feel free to contact any of us with questions about the board meeting or any other State Bar issue.

We are here to serve you.

• Leslie Dippel, leslie.dippel@ traviscountytx.gov; • Adam Schramek, adam.schramek@ nortonrosefulbright.com; • Amy Welborn, awelborn@ AUSTIN LAWYER AL AL hpylaw.com.

NOVEMBER 2019 | AUSTINLAWYER

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OPENING STATEMENT

The Passive Voice … Is Used by Lawyers

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

T

he passive voice is frequently censured and widely condemned. Why is so much bad press received by the passive voice? Oops. Why does the passive voice receive so much bad press?

Lawyers overuse it, and its overuse makes for wordy, dull writing.

Quick review: The passive voice relies on a be verb (most commonly was, were, and been) plus a past-tense verb (technically past participle). All the following are in the passive voice (be verb and past-tense verb in italics): • Mistakes were made.

• The contract was signed.

• The DNA has been collected.

By the way, a sentence like The statute is applicable might be undesirable (I’d prefer The statute applies), but it’s not in the passive voice. Yes, it has a be verb (is), but applicable isn’t a past-tense verb.

In the examples, we can see a key feature of the passive voice: The doer of the verb is not the subject of the sentence. In fact, the doer of the verb is missing from the sentence entirely.

Mistakes were made. Who made them? We don’t know.

We can put the doer of the verb into a passive-voice sentence, but we have to attach the doer with a prepositional phrase at the end: • Mistakes were made by my staff.

• The contract was signed by Christina Duran.

• The DNA has been collected

by Officer Kiser.

In the active voice, these sentences would be more vigorous and more concise: • My staff made mistakes.

• Christina Duran signed the contract.

• Officer Kiser has collected the DNA.

When we overuse the passive voice in legal writing, we produce dull prose two ways: We rob the writing of doers, of actors, of action. Stuff just happens—no one does it. Or we name the doers, but they’re tacked on at the end— something was done by someone.

Now we can explain the bad press. When we overuse the passive voice in legal writing, we produce dull prose two ways: We rob the writing of doers, of actors, of action. Stuff just happens—no one does it. Or we name the doers, but they’re tacked on

“Generally, prefer the active voice over the passive voice for several reasons: It is more concise .… It uses a more vigorous verb.”3 But we don’t forbid all passive-voice constructions; the passive voice has legitimate uses, and here are three.

So the passive voice isn’t wrong; it has legitimate uses in legal writing. It’s overused by lawyers (passive). Lawyers overuse it (active). So when you edit your writing, check for passive-voice constructions—maybe do a search for was and were. at the end—something was done by someone. That’s wordy.

Hiding the doer and producing wordy prose can be bad things in legal writing, and the experts agree: “The passive voice results in a wordier sentence … and often obscures the actor.”1 “The passive voice creates two problems. It uses more words than active voice, and it risks creating ambiguity.”2

1. The doer of the action is unknown or irrelevant. The police were notified. We don’t know or care who notified the police; we’re just saying they were notified.

2. The focus is on the recipient of the action, and the doer of the action is unimportant.

Treyco’s account was frozen, not Mercury’s account. This sentence focuses on which account was frozen, not on

who did the freezing.

3. The appearance of responsibility is being avoided. The emails have been deleted.

This sentence hides the one who did the deleting.

Avoiding the appearance of responsibility is occasionally useful in legal writing. But if you use the passive voice to avoid responsibility a lot, your readers will figure it out.

So the passive voice isn’t wrong; it has legitimate uses in legal writing. It’s overused by lawyers (passive). Lawyers overuse it (active). So when you edit your writing, check for passive-voice constructions—maybe do a search for was and were.

When you spot the passive voice, ask yourself, “Do I need the passive voice here?” If you don’t, the activeAUSTIN voice willLAWYER be more vigorous AL AL and more concise.

Footnotes 1 Bryan A. Garner, Garner’s Dictionary of Legal Usage 659 (3d ed. 2011).

2 Richard C. Wydick & Amy E. Sloan, Plain English for Lawyers 29 (6th ed.

2019).

3 Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 514-15 (5th ed. 2010).

NOVEMBER 2019 | AUSTINLAWYER

15

Professional Use of Social Media: Part II Tips for Success from an AYLA Panel—Continued from the Oct. 2019 Issue

I

n Part II of the exploration of social media practices for the legal community, our panel tackles questions about comments and public exchanges on social media, redirection to a website, and ethics issues. In addition, panelists provide insights, advice, and lessons learned.

OUR AYLA PANEL Hannah (Hembree) Bell is a solo practitioner offering family law, estate planning, and general counsel legal services for families in the greater Austin and San Antonio areas. Her firm is the Hembree Bell Law Firm, located in northwest Austin.

Lisa Marie Bustos is a solo practitioner based in Austin practicing family law within the Central Texas region. Her firm, Bustos Family Law, handles family law litigation in all stages of the case, but her practice primarily focuses on divorce and child custody cases.

Tycha Kimbrough is a solo practitioner at Kimbrough Legal, a compassionate and dedicated family, criminal, and expunction law firm that cares deeply about the Austin community.

QUESTIONS & ANSWERS 4. How do you handle comments or other exchanges of information with the public on your social media? Do you respond to comments/tweets/ posts? Do you ever have to police the content based on unwelcome interactions?

Bell: This is a sticky one, and I am not sure I have the right answer. They say you are supposed to comment and interact with people in order to catch the attention of the platforms’ algorithms.

I always comment and/or like the nice ones, and the comments generally are nice…but some of them are not. I get some real crazy stuff since I am a divorce lawyer “doing the devil’s work” (among other things they say). My website guy tried a few paid Facebook videos 16

AUSTINLAWYER | NOVEMBER 2019

Hannah (Hembree) Bell

he spruced up with a graphic and some text. I still get crazy, mean, ugly posts on those for whatever reason. I let the negative reactions reach a critical mass and then, if the comments are centered on a particular theme, I post one thing to address them all. Otherwise, I think of a really clever, snarky reply in my head…and do nothing with it. But for the nice ones, I interact as much as possible but try hard not to cross the line to awkward.

Bustos: Since I am a solo attorney, it is difficult to respond to every direct message and inquiry for services. There are many times that I am personally unable to monitor our page interactions in real time. If that is the case, another member of my team will respond per our firm’s policy and procedure manual. We have developed scripts that can be adapted to fit different situations.

It’s a constantly evolving model, and we make improvements as our audience’s needs arise.

Kimbrough: I respond to all comments and posts that are made on my firm’s social media pages. When someone takes time out of their schedule to interact with my firm, I want him/her to know they are valued, and I respond as soon as possible. Fortunately, I receive positive comments in response to my posts, but if you ever encounter negative and unwelcomed interactions and choose to respond, be sure to be professional, as required by the Texas Disciplinary Rules of Professional Conduct.

5. Do you have a firm (or prac-

Lisa Marie Bustos

titioner) website? If so, how do you compare your use of social media to a firm website or attorney webpage? Do you try to redirect people to your website or “meet them where they are” on the social media platform?

Bell: I have a website, sure, but to me it is there to legitimize my practice and for people to do research on me after they find me via social media. I think you should start with social, direct them to your website without being obnoxious, and then have your phone number real big on the website so that they will call you. The goal for me is to get people on the phone so that I can

Tycha Kimbrough

learn more about their case.

Sometimes, people will directly message us through our social media websites to ask us for legal advice. We are very careful not to post or give legal advice in any capacity. Instead, we let potential clients know we can discuss their questions with them after they have scheduled an initial consultation and we have performed a conflict check. So far, our audience has been receptive to this response.

Kimbrough: Yes, Kimbrough Legal has an innovative website (KimbroughLegal.com) that is user friendly. I highly recommend that all firms create web-

“My goal is to educate the general public, but I, of course, have to ensure I am presenting information in an appropriate manner. I highly encourage everyone to read the Advertising Review Rules prior to disseminating information online. The rules can be found at texasbar.com.”

– Tycha Kimbrough convert them into a new client (or send them to another lawyer who would be the right fit for them).

Bustos: Yes, we do have a firm website that serves as the anchor to all of our firm’s online marketing efforts. If someone finds me or my firm on social media, they’re also directed to my website. Once at my website, people can learn more about the firm and schedule an appointment to

sites to build their brands and connect with the public. Visitors are able to learn more about my firm, schedule consultations, send the firm a quick note, and clients are able to log in to their client portals. I do not redirect people from social media to my website. Visitors are able to message my firm using social media, and I generally respond to all messages within 24 hours.

6. Have you encountered any lawyer ethics issues in your use of social media, for example, client privacy issues or advertising restrictions in the Texas Disciplinary Rules of Professional Conduct? If so, what advice do you have in approaching those issues?

Bell: Not yet.

Bustos: We are mindful of the Texas Disciplinary Rules of Professional Conduct in posting or making content. If you find yourself unknowingly in violation of those rules, make changes as soon as possible to comply with the rules.

Kimbrough: I have not encountered any lawyer ethics issues in my use of social media nor my website. Prior to disseminating information on my website, I obtained approval from the State Bar’s Advertising Review Department to ensure that I am complying with the advertising rules. I also ensure that my social media posts follow the advertising and ethics rules. My goal is to educate the general public, but I, of course, have to ensure I am presenting information in an appropriate manner. I highly encourage everyone to read the Advertising Review Rules prior to disseminating information online. The rules can be found at texasbar.com.

particular area of the law, but that will not develop loyalty or interest in you specifically. Let some of the flaws show. None of my videos are perfect—I say “um” and flub and have little asides. But, I leave those “whoopsies” in on purpose.

I think it makes me seem more authentic and less rehearsed. If you watch one of them, you will know that I did not spend all day rehearsing lines to get it “just right.” I hope the feel is, instead, that I am just a person, who

happens to be a lawyer, doing my best to help people navigate the tumultuous waters of divorce and custody disputes while adding some levity and poignancy to lighten the load.

Bustos: Set a schedule for posts and try to find a way to automate it. The first month of posts took several hours to plan and find our voice. It can be overwhelming to the point of discouragement. Once we found our rhythm, however, we were able to streamline the pro-

cess so my team’s total time takes less than five hours a month. I’m also finding that my firm’s marketing costs decline each month.

Kimbrough: I advise lawyers and firms who are looking to improve their use of social media to (1) plan the content they intend to post; (2) be authentic in posts, ensure the posts reflect the lawyers’ and/or firms’ values; and (3) have fun, do not be afraid to share memes orLAWYER videos on your AUSTIN social media pages.

AL AL

7. What advice do you have for a lawyer or firm looking to improve their use of social media? What works well (or does not work well) and what pitfalls should be avoided?

Bell: I think the key to social media is to show your authentic self. You catch people’s attention by being a real person, not a polished lawyer robot—they get that on TV commercials. Add some of your unique flavor/ humor/background/tics to your posts. Your target audience should feel like they know you a little bit after watching one of your videos or reading one of your posts.

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THIRD COURT OF APPEALS CIVIL UPDATE

>

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

2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Oct. 7, 2019.

WHISTLEBLOWER: Time gap between report and termination negated causation.

THHSC v. Carrizal, No. 03-1800605-CV (Tex. App.—Austin Sept.

10, 2019, no pet. h.) (mem. op.).

By letter, Carrizal detailed his concerns about Commission’s poor case management. After providing the letter, Carrizal received a promotion and pay raises. Carrizal contended that he experienced retaliation. Seventeen months after submitting the letter, Commission terminated Carrizal for inappropriate conduct during a meeting. Carrizal sued under the Whistleblower Act. The trial court denied Commission’s plea to the jurisdiction.

The court of appeals noted that Carrizal must establish “but for” causation between his letter and his termination. According to the court, the seventeen-month gap between Carrizal’s letter and his termination negated causation.

Temporal proximity is measured from the date of the report; it does not restart because the report is made again. The court reversed and rendered judgment, dismiss-

ing Carrizal’s lawsuit.

ESTATE LITIGATION: Trial court not bound by expert testimony on authenticity of testator’s signature.

Austin v. Austin, No. 03-1800678-CV (Tex. App.—Austin Sept. 12, 2019, no pet. h.) (mem. op.). Daughters and widow sought to probate conflicting wills signed by Morris in 2016.

The trial court admitted the Dec. 2016 will, which made widow the sole beneficiary. Daughters argued that Morris did not sign the December will. Two witnesses at the will signing testified that Morris signed the will. Daughter’s forensic document examiner compared Morris’s signature on the will with sixty-seven examples of Morris’s handwriting and with eight samples of widow’s handwriting and concluded that widow had signed Morris’ name.

According to the court of appeals, uncontroverted expert testimony does not bind a factfinder unless the matter is exclusively for experts. Authentication of handwriting is not solely for experts. The court concluded that it was not unreasonable for the trial court to disregard the expert’s testimony.

The court affirmed.

TCPA: Act does not apply to hypothetical communications.

Mulcahy v. Cielo Property Group, LLC, No. 03-19-00117-CV (Tex. App.—Austin Sept. 13, 2019, no pet. h.) (mem. op.). Cielo sued

Mulcahy for trade secret misappropriation, alleging that Mulcahy withheld a hard drive in violation of his employment contract. The trial court denied Mulcahy’s TCPA motion to dismiss and denied Cielo’s attorney’s fees.

The court of appeals concluded that Cielo’s claims did not arise from the exercise of Mulcahy’s right of free speech. Cielo did not allege that Mulcahy engaged in any kind of communication.

The court further concluded that Cielo’s claims did not arise from Mulcahy’s right to petition. Cielo’s claims arose from Mulcahy’s termination, not from any legal action. Accordingly, Mulcahy failed to show that the TCPA applied. Because Mulcahy’s motion was not frivolous, the trial court did not abuse its discretion in denying Cielo’s attorney’s fees. The court affirmed. The concurring and dissenting opinion concluded that Cielo’s claims were based on Mulcahy’s pending lawsuit against Cielo and thus related to Mulcahy’s right to petition.

IMMUNITY: Lawsuit against government barred subsequent action against employees.

Johnson v. Boehnke, No. 03-1900200-CV (Tex. App.—Austin Sept. 18, 2019, no pet. h.) (mem. op.). Johnson sued an appraisal district for denying his open-space exemption and subsequently amended to sue district employees for fraud and official oppression.

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.

The trial court granted employees’ plea to the jurisdiction on immunity grounds. The court of appeals noted that TTCA § 101.106(a) provides that filing suit against a governmental unit constitutes an irrevocable election and bars suit or recovery against governmental employees regarding the same subject matter. The section forces plaintiffs to decide at the outset whether an employee acted independently and is thus solely liable or acted within the scope of employment and the governmental unit is vicariously liable. Because Johnson sued the appraisal district first, he was barred from later raising allegations against district employees.

AUSTIN LAWYER The 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 during May 2019. The summaries are an overview; please review the entire opinions.

Subsequent histories are current as of Oct. 1, 2019.

ONLINE IMPERSONATION: Statute prohibiting online impersonation not facially unconstitutional.

Ex parte Hall, No. 03-18-00731-CR (Tex. App.—Austin May 1, 2019, pet. ref’d) (mem. op., not designated for publication). Hall was charged with engaging in online harassment against an Austin business by allegedly using the names of others without their consent to post or send messages through social networking sites or through the business’s Google page. Hall’s con-

duct allegedly violated Texas Penal Code § 33.07(a)(2), which prohibits a person from using the name or persona of another person to post or send one or more messages on or through a commercial social networking site or other Internet website, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person. Hall filed a pretrial application for writ of habeas corpus, asserting that the statute was unconstitutionally overbroad in violation of the First Amendment. The trial court denied the application. On appeal, Hall argued that the statute should be subject to strict scrutiny because it “regulates speech by its subject matter” and makes distinctions “based on the intended effect of the message’s content.” Hall further asserted that the statute fails strict scrutiny because it was “substantially overbroad.” The appellate court rejected these arguments and affirmed the trial court’s order, concluding that the regulation is “facially content neutral” and that the purpose and justification for the statute are not based on the content of the speech.

Therefore, the statute was subject to intermediate scrutiny, which it survived by promoting a “significant governmental interest” using means that “are not substantially broader than needed.”

CIGARETTE DISPOSAL AS JUSTIFICATION FOR TRAFFIC STOP: Trial court abused its discretion in granting

Anji Maddox

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AUSTINLAWYER | NOVEMBER 2019

motion to suppress evidence obtained following defendant’s traffic stop for throwing cigarette out car window.

State v. Wood, No. 03-18-00839CR (Tex. App.—Austin May 23, 2019, pet. ref’d) (op., designated for publication). A police officer initiated a traffic stop on Wood’s vehicle when he observed “a lit cigarette come out of the driver[’s] window” of the vehicle that Wood was driving and then “fall to the street” without starting a fire.

Following the stop, Wood was arrested for driving while intoxicated. Wood filed a motion to suppress, asserting that the officer did not have reasonable suspicion to initiate the stop because Wood’s act of throwing a cigarette out of his car window did not constitute a criminal offense. The trial court granted the motion, placing significance on the fact that the cigarette did not start a fire when it was thrown out the window, which was a requirement under a recent amendment to the cigarette-disposal statute. The appellate court reversed, observing that under the littering statute, throwing a cigarette out of a car window and onto a public roadway is an offense even if the cigarette does not start a fire. Moreover, for reasonable suspicion to exist, it was not necessary for an offense to have occurred; it was only necessary for the officer to have reasonably believed that an offense occurred.

Here, when the officer observed Wood throw a lit cigarette out of

his window, he had reasonable suspicion to believe the offense of littering had occurred.

CUSTODIAL INTERROGATION DURING TRAFFIC STOP: Defendant not in custody during traffic stop, despite police placing him in handcuffs and transporting him from one location to another.

Chavez v. State, No. 03-1700637-CR (Tex. App.—Austin May 30, 2019, no pet.) (mem. op., not designated for publication). Following a traffic stop, Chavez was arrested for driving while intoxicated. Chavez filed a motion to suppress, which the trial court denied. Among other grounds, Chavez asserted that statements made during the traffic stop were the product of custodial interrogation and thus were inadmissible because the officer had failed to provide the requisite constitutional and statutory warnings. The appellate court affirmed, concluding that Chavez was not in custody when the statements were made. In its comprehensive analysis, the court determined that “the degree of appellant’s restraint was no more than necessary to effect the traffic stop and maintain the status quo in order to safely conduct the ensuing investigation while assuring appellant’s presence during the period of investigation.” Thus, Chavez’s freedom of movement, although restricted, was not restrainedAUSTIN to the degree associated LAWYER with a formal arrest.

AL AL

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FEDERAL CIVIL COURT UPDATE

>

The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of Sept. 30, 2019.

EMPLOYMENT LAW: Under the McDonnell Douglas framework, a plaintiff need only show a “causal connection” between a protected activity and an adverse employment action to satisfy the initial burden to establish a prima facie case, and the plaintiff can do so simply by showing close enough timing between the events.

Garcia v. Prof’l Contract Servs., Inc., No. 18-50144, 2019 WL 4283577 (5th Cir. Sept. 11, 2019). Esteban Garcia worked for Professional Contract Services, Inc.—a nonprofit company that provides custodial and grounds maintenance services to the federal government—as an operations manager and, later, a senior operations manager. Garcia received mostly positive reviews during his tenure, but the company terminated him in June 2013, citing unsatisfactory oversight of two different jobs. Garcia claimed he was fired for a different reason: reporting that the company was billing the government for work it did not perform. Garcia sued the company for wrongful retaliation and termination in violation of the False Claims Act, 31 U.S.C. § 3730(h).

The district court granted the company’s motion for summary judgment, holding that Garcia failed to establish a prima facie case under the McDonnell Douglas framework and, in any event, failed to show that the company’s stated non-retaliatory purpose was a pretext. On appeal, the parties disputed what causation standard applied at various steps in the McDonnell Douglas framework. The company argued that the Supreme

Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013)—in which the Court made clear that Title VII retaliation claims must be proven according to traditional principles of but-for causation—means that a plaintiff must show but-for causation at the initial prima facie stage. Garcia argued that the prima facie case requires only a “causal connection,” and that a plaintiff need not show but-for causation until the final pretext stage.

in federal court.

Klocke v. Watson, No. 17-11320, 2019 WL 3977545 (5th Cir. Aug. 23, 2019), as revised (Aug. 29, 2019). Wayne Klocke sued Nicholas Watson in federal court for defamation. Watson moved to dismiss the defamation claim under the TCPA. The then-effective version of the TCPA required courts to dismiss any legal action that is based on, related to, or in response to the exercise of statutorily defined rights unless the nonmovant establishes by

Texas’s anti-SLAPP law, the Texas Citizens Participation Act (“TCPA”), does not apply in diversity suits in federal court.

The Fifth Circuit agreed with Garcia. Although the court noted the existence of a circuit split on the issue, it held that the Fifth Circuit had already picked a side in binding decisions both before and after Nassar. To the extent other unpublished decisions from the court introduced murkiness into the case law on that issue, the court resolved it by clearly stating that “Nassar’s heightened but-for causation requirement applies only at the third step (the pretext step) of the McDonnell Douglas framework.”

The court went on to hold that Garcia satisfied the causal connection requirement at the prima facie stage simply by showing that the adverse employment action occurred only two and a half months after the protected activity. The court also held that Garcia satisfied the heightened but-for standard at the pretext step by offering evidence that a similarly situated employee was not terminated for the same conduct on which the company purportedly based Garcia’s termination. The court reversed and remanded.

CIVIL PROCEDURE: Texas’s anti-SLAPP law, the Texas Citizens Participation Act (“TCPA”), does not apply in diversity suits

“clear and specific evidence” a prima facie case on each essential element of his or her claims.

Citizens Participation Act, 82nd Leg., R.S., ch. 341 (H.B. 2973), § 2, sec. 27.005, 2011 Tex. Gen. Laws 961 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code §§ 27.001–.011).

Even if the nonmovant meets this burden, the court must dismiss the action if the movant establishes a valid defense to the challenged claim by a preponderance of the evidence.

Klocke argued that the TCPA does not apply in federal court because it is a procedural statute that conflicts with the Federal Rules of Civil Procedure. The district court disagreed and held that the TCPA does apply in federal court and granted Watson’s motion.

The Fifth Circuit reversed. The court observed that “[t]he Erie line of authorities holds that substantive state law must be applied in federal courts in diversity cases like this one, but state procedural law yields to the applicable Federal Rules.” The court concluded that Federal Rules of Civil Procedure 12 and 56 (governing motions to dismiss and summary judgment, respectively) answered the same question as anti-SLAPP statutes like the TCPA: What are

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

the circumstances under which a court must dismiss a case before trial? Further, the court determined that the TCPA imposes additional requirements beyond those in Rules 12 and 56. Whereas neither federal rule permits the court to weigh evidence, the court concluded that the then-effective version of the TCPA demands it. Because the Federal Rules answered the same question and conflicted with the TCPA, the court held that the TCPA does not apply in federal court.

The court addressed the apparent contradiction between this holding and Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164, 169 (5th Cir. 2009), which held that Louisiana’s “nominally procedural” anti-SLAPP statute applies in federal court under Erie. The court explained that Henry did not discuss the potential conflict between state law and federal rules. The court also noted that the conflict between the TCPA and the federal rules is manifest, while the comparable conflict between the federal rules and the Louisiana statute in Henry was less obvious. The court therefore concluded, that “this panel is not bound by a non-argued, undecided issue in another case interpreting another state’s dissimilar statute.”

The court reversed and AUSTIN LAWYER remanded.

AL AL NOVEMBER 2019 | AUSTINLAWYER

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FEDERAL CRIMINAL COURT NEWS

No Super-Deference in the Fifth Circuit

BY DAVID PETERSON The views and opinions expressed are those of the author alone and do not reflect the views or opinions of the Austin Bar Association, its board of directors, or its members.

David Peterson is an assistant federal public defender for the Western District of Texas.

U

nited States v. Aguilar-Alonzo, 936 F.3d 278 (5th Cir. Aug. 27, 2019) presents a classic issue in federal criminal law: Did the district court err by enhancing a sentence based on facts present in the case?

From the defense perspective, the many enhancements for “specific offense characteristics” feel like rungs on a one-way ladder.

For example, the drug guidelines contain 16 formal ways for the sentence to be increased from the base level. In contrast, there are two narrow fact scenarios in which

24

AUSTINLAWYER | NOVEMBER 2019

the sentence can be decreased.

The particular enhancement at issue in Aguilar-Alonzo was a subsection that calls for an enhancement if “the defendant used fear, impulse, friendship, affection, or some combination thereof to involve another individual” in the drug offense. Leaving aside the fact that “impulse” appears to be a meaningless term, this enhancement offers a number of ways to increase a defendant’s sentence.

There is no corresponding decrease if someone else used any of these things to involve the defendant.

The probation officer argued that Aguilar merited the enhancement because (1) he was in a relationship with co-defendant Chavez, (2) he was aware that she was pregnant with his child, and (3) she agreed to help him because she feared that if she did not, he would break up with her. The district court explicitly found that (2) did not apply: Aguilar

did not know Chavez was pregnant with his child. The Court nonetheless imposed the enhancement, arguing that it was “apparent from the facts … that [Aguilar] used fear, impulse, friendship, affection, or some combination thereof to involve Chavez.” The enhancement increased Aguilar’s sentencing range from 60 to 63 months up to 63-78 months.

The Fifth Circuit reversed, in an opinion by Judge Elrod. She wrote that there was not relevant and sufficiently reliable evidence, to prove that Aguilar “used” love, etc. to involve Chavez. Whether Chavez subjectively believed that he might break up with her, there was no evidence that he ever said or did anything to say or even imply this.

The majority opinion is straightforward. Judge Smith’s dissent comes close to suggesting circuit courts should never reverse factual findings by district judges. He

argued from a policy perspective: “The dynamics of federal sentencing are unique. Especially in venues such as Pecos, Texas, where this case is sited, scores of criminal defendants queue up for sentencing hearings on a routine day… The evidentiary standards are relaxed for good reason, given the caseload.”

The U.S. incarcerates more people per capita and total than any other country in the world.

The idea that the number of criminal cases in a particular court should have some impact on the appellate court’s review for error is disturbing, even if voiced only in a dissent. It is hard to imagine a sentence that Judge Smith wouldn’t uphold under his standard, since he argues that the district court’s finding need only be “conceivably true” to the reviewing court.

Fortunately, the majority was unwilling to applyLAWYER such super-defAUSTIN erence and reversed.

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NOVEMBER 2019 | AUSTINLAWYER

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AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN SANDY BAYNE, BAYNE LAW

Time to SLOW Down “Many of us have been running all our lives. Practice stopping.” –Thich Nhat Hanh

W

hat, me? Slow down?? Impossible! Yes, I know we can’t slow down…we have deadlines, overflowing inboxes, and calendars full of conflicting obligations from 7 a.m. until we fall asleep. If we slow down everything will fall apart, so we have to go, go, GO! Inevitably, this cadence leads to mistakes, inefficiency, stress, and ultimately, breakdown.

I am thrilled that Austin Bar President, D. Todd Smith, has implemented the Austin Bar Lawyer Well-Being Committee. In his most recent President’s Column, Todd mentions that 1/3 of lawyers 30 years and younger have a drinking problem. I recently read an ABA Journal article that mentioned two character traits—perfectionism and pessimism—that are prevalent among lawyers and may make them prone to anxiety.1 “Perfectionism helps lawyers succeed in practice because the profession is excessively detail-oriented.”2 A 1990 Johns Hopkins University study examined more than 100 occupations for anxiety-related issues and found that lawyers suffer from depression at a rate 3.6 times that of the other professions studied.3 Looks like we’re in a bit of trouble. So, I thought it would be useful to discuss our well-being and what we can do to improve it, without sacrificing our ambitious work ethic.

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AUSTINLAWYER | NOVEMBER 2019

One way of slowing down is to exercise. Try and wake up an hour earlier to hit a fun spin class you have wanted to try. I have found an amazing community of supportive friends at my spin studios.

Chances are, you’ll bump into several attorneys at one of these classes. I love spin class because I get to zone out for 45 minutes— thinking about nothing other than wondering if I will survive the intense workout! Bonus—no cell phones allowed in the room! When I leave, I have more energy and am noticeably calm all day. There are countless studies relating being outdoors to lowering anxiety, stress, and depression. If spinning is not your thing, a walk or jog around the lake while listening to a podcast is another great way to escape the stress of work for a bit.

Luckily, we live in a city were getting outdoors for a walk or a hike is an easy thing to do. Because endorphins and other neurotransmitters are released when we exercise, active people generally have lower rates of depression.

Some other favorite activities that are guaranteed stress relief are boxing (try E+E Fitness for a 45-minute kickboxing class. You can pretend that bag is anyone you wish!); yoga (I love Sukha, Yoga Vida, and Breath & Body).

Some classes offer yoga followed by meditation. Grab hold and try rock climbing (can’t beat Austin Bouldering or Crux) or rowing.

Have no fear. If you’re not big into exercising, other things that raise endorphins are meditation, laughing, and eating chocolate.4

NOV. 8 LAWYER WELL-BEING: MINDFULNESS SCOTT DOUGLASS & MCCONNICO

12 – 1 p.m.

RSVP: austinbar.org

constant is change, especially in Slowing down also means staythe practice of law. Slowing down ing present. Mindfulness and medenables us to regroup, take a itation teach us to stop panicking step back, and look at the bigger about what can go wrong in the fupicture. When we slow down, we ture. With mindfulness, we learn acknowledge that we must take to be present—no judgment, no time away from our desk to focus stories, no attachments—without on our wellness. trying to change anything. It’s a The Austin Bar’s Lawyer very peaceful way to go about life.

Well-Being Committee is hosting The practice of staying present an event on Nov. 8 that I am so and not unraveling into the fear excited about—a free lunch-hour of the unknown future is a great session about mindfulness-based coping mechanism for stress and stress reduction for the workplace anxiety, and a lifelong tool. Don’t and beyond. Sanieh Morgan, know where to start? HeadSpace who is leading the discussion, is is a great app you can download to a wonderful yoga and meditation your phone that offers meditations instructor. Don’t panic—no yoga as short as one minute. Even apps poses are required at this event! like Spotify offer guided meditaLunch will be provided at Scott tion sessions of varying lengths.

Douglass & McConnico. Space is To me, wellness is a lifestyle. limited, so please RSVP at austinBalancing work, play, and rest is AUSTIN LAWYER AL AL bar.org. critical. I think at times we have the tendency to become attached Footnotes to how things “should be.” We 1. http://www.abajournal.com/ have strong expectations of exactly magazine/article/how_lawyers_can_ how our work-life is supposed to avoid_burnout_and_debilitating_ anxiety unfold. If anything falls out of line 2. Id. with our expectation/attachment/ 3. Id. preference of how things “should 4. https://www.wellandgood.com/goodbe,” we fall apart. I think it’s sweat/endorphins-and-exercise/ crucial to appreciate that the only

UPCOMING EVENTS THURSDAY, NOV. 21 AYLA Docket Call Star Bar, 600 W. 6th St. 5:30 – 7 p.m.

Sponsored by Weaver

AUSTIN YOUNG LAWYERS ASSOCIATION

Austin Young Lawyers Celebrate Judiciary

T

state, local, and administrative he Austin Young Lawjudges, before whom many will yers Association held practice throughout their careers. its 21st Annual EveAYLA extends a special thanks ning with the Judiciary to all of the judges who attended Thursday, Sept. 19, at the Austin and to all of the event sponsors Club. This year’s event was anfor making this successful event other great success, introducing AUSTIN LAWYER AL AL possible.

Austin’s young lawyers to federal,

AT LEFT, TOP: (from left) Judge Amy Clark Meachum, AYLA President Sandy Bayne, Judge Karin Crump, Drew Harris, and Vasu Behara. BOTTOM: (from left) Jason Snell, Austin Bar President-Elect Kennon Wooten, Judge Tim Sulak, and Sarah Sulak.

AYLA Tailgate for a Cause—Coming Soon

T

he Austin Young Lawyers Association’s 4th Annual Tailgate for a Cause will be held on Saturday, Nov. 9, when the Kansas State Wildcats come to town to take on the Texas Longhorns. Brisket, sausage links, hamburgers, snacks, and other refreshments will be available.

Admission is FREE but a $20 donation per person is encouraged. The tailgate will get started

approximately 3 hours before kickoff and will be held at Lot 92 in front of the Speedway Garage (corner of Speedway & E. 27th St.). Proceeds from this year’s event will benefit AYLA’s annual kids’ holiday party with the YMCA, serving underprivileged families in the Austin area. For more information, or to sponsor this year’s tailgate, contact Franklin Hopkins at 512.750.8020 or AUSTINLAWYER AL AL fhopkins@germer-austin.com.

AYLA and Austin Bar Association members enjoying the 2018 Tailgate for a Cause.

NOVEMBER 2019 | AUSTINLAWYER

27

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78720-0850 names addresses the individual If owned by a partnership or other unincorporated firm, give its name and address as well as those of 816 Congress Ave.,If mailing Ste. 700, Austin, TXbyTravis County, 78701-2665 each individual owner. the publication is published a nonprofit organization, give its name and address.)

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700, Austin TX 78701-2665

Managing Editor (Name and complete mailing address)

Monarch Media & Consulting, Inc. Nancy Gray P.O. Box 20085, Austin, TX 78720-0850 Austin TX 78701-2665

816 Congress Ave., Ste. 700, Editor (Name and complete mailing address)

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If owned by a partnership or other unincorporated firm, give its name and address as well as those of each individual owner. If the publication is published by a nonprofit organization, give its name and address.)

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MEDIATORS AND ARBITRATORS OF AMERICA

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Mediations & Arbitrations CLE Classes Basic, Advanced, CPS Sensitivity Training 512-966-9222 Mediatorsandarbitratorsofamerica.com

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15. Extent and Nature of Circulation

Average No. Copies No. Copies of Single Each Issue During Issue Published Distributed to members of the Austin Bar Association Preceding 12 Months Nearest to Filing Date 12. Tax Status (For completion by nonprofit organizations authorized to mail at nonprofit rates) (Check one) and nonprofit status of this organization and the exempt status for federal income2,949 tax purposes: a. The Totalpurpose, Numberfunction, of Copies (Net press run) 2,928 X Has Not Changed During Preceding 12 Months Has Changed During Preceding 12 Months (Publisher must submit explanation of change with this statement) (1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541 (Include paid 135on www.usps.com. distribution above nominal rate, advertiser’s proof copies, and exchange copies) 127 See our privacy policy PS Form 3526, July 2014 [Page 1 of 4 (see instructions page 4)] PSN: 7530-01-000-9931 PRIVACY NOTICE: b. Paid Circulation (2) Mailed In-County Paid Subscriptions Stated on PS Form 3541 (Include paid distribution above nominal rate, advertiser’s proof copies, and exchange copies) (By Mail 12. Tax Status (For completion by nonprofit organizations authorized to mail at nonprofit rates) (Check one) 2,769 and purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes: The Outside Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, XtheHas During Preceding 12 Months (3) Mail)Not Changed Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS® 0 Has Changed During Preceding 12 Months (Publisher must submit explanation of change with this statement) PS Form 3526, July 2014 [Page 1 of 4 (see instructions page 4)] Through PSN: 7530-01-000-9931 Paid Distribution

by Other Classes of Mail the USPS (4) (e.g., First-Class Mail®)

2,738 0

PRIVACY NOTICE: See our privacy policy on www.usps.com.

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c. Total Paid Distribution [Sum of 15b (1), (2), (3), and (4)]

0

2,873

2.896

d. Free or (1) Free or Nominal Rate Outside-County Copies included on PS Form 3541 Nominal Rate Distribution (2) Free or Nominal Rate In-County Copies Included on PS Form 3541 (By Mail and Free or Nominal Rate Copies Mailed at Other Classes Through the USPS Outside (3) (e.g., First-Class Mail) the Mail) (4)

MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

0

0

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e. Total Free or Nominal Rate Distribution (Sum of 15d (1), (2), (3) and (4))

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100% Statement of Ownership, Management, and100% Circulation * If you are claiming electronic copies, go to line 16 onPeriodicals page 3. If you are not claiming electronic copies, skip to line 17 on page 3. Publications) Except Requester POSTl1LSERVICE® (All Publications

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16. Electronic Copy Circulation

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► ► ► ►

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No. Copies of Single Issue Published Nearest to Filing Date

0

0

2,896

2,873

2,896

2,873 100%

100%

2016-PRESENT

;g:J I certify that 50% of all my distributed copies (electronic and print) are paid above a nominal price.

17. Publication of Statement of Ownership PS Form 3526, July 2014 (Page 2 of 4) If the publication is a general publication, publication of this statement is required. Will be printed

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in.the Nov

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2019 issue of this publication.

18. Signature and Title of Editor, Publisher, Business Manager, or Owner

Date

9/20/19 I certify that all informi ion furnished o thi form is true and comp! e. I understand that anyone who furnishes false or misleading information on this form or who omits material r information re uested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).

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29

PRACTICE POINTERS

Getting Back into the Groove Tips for Adjusting to Life After Maternity Leave

BY STEFANIE SCOTT SHAH

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

In addition to representing clients, Shah is always happy to provide guidance, advice, and/or a lending ear to new mothers returning from maternity leave. She can be contacted at stefanie@scottshah.com.

R

eturning to work after maternity leave is daunting. Here are a few tips that should ease the transition.

FOR THOSE RETURNING FROM MATERNITY LEAVE

1. Find a mentor who has walked a mile in your [insert name of super-comfortable footwear] shoes.

Sometimes it is just nice to know that you are not alone. You are not the first attorney to ask a male judge for a recess so you can breastfeed your child. (I have a mentor who beat you to that awkward conversation.) You are not the first to ask for special accommodations at a conference so you have a place to pump. (I have a mentor who helped me with that situation, too.) You are not the first to take a conference call while pumping. You are not 30

AUSTINLAWYER | NOVEMBER 2019

the first to feel a sense of shame when you miss bedtime because you had to work late. You are not the first to put the baby to sleep, pull out the laptop to work for a couple of hours, only to put it back down again when the baby wakes up for another feeding. You are not the first to feel frustrated that your work was interrupted by said hungry baby. And you would not be the first to ask for help.

Luckily, most working moms want to help other working moms. They have been in your situation and have learned tips and tricks along the way. Seek out their advice.

2. This might not be your “Year of Yes.” I get it. You want to prove that you are still worthy of working at your firm/company, so you might feel pressured to accept every challenge and opportunity that comes your way. But the one thing that is worse than declining a work trip or office happy hour is over-burdening yourself to the point of failure. It is better to be discerning about the work/projects you accept and the organizations you join, than to spread yourself too thin.

Don’t read this to mean this is your “Year of No.” It is important to rebuild your professional life, but be realistic and temper your expectations. To the extent you are able, find a couple of projects (e.g., clients, work trips, conferences, memberships, etc.) you are passionate about, and focus your energy on achieving quality over quantity.

3. You’ve got this.

“Mommy brain” is a thing. I don’t know if it is due to hormones, sleep deprivation, lack of two-sided conversations, or a combination of the above. But it is real, and it is frustrating.

Fortunately, it is not here to stay.

Neither are the emotions, anxiety, lack of confidence, etc. you feel the first days/weeks/months after returning to work. All of these sensations are normal, and all will eventually disappear. As hard as it is, your best bet is to be patient with yourself. You will eventually find the balance.

FOR THOSE WITH COLLEAGUES/EMPLOYEES RETURNING FROM MATERNITY LEAVE If you, personally, are not pregnant or on maternity leave, I would not fault you for overlooking the first part of this article.

But I would urge you to read it, as it provides a bit of context into the mindset of mothers who are returning from maternity leave.

In addition, you might find the recommendations below to be helpful.

1. Suggest a mentor.

As previously mentioned, a mentor can make the transition back to work much smoother. If you cannot provide this mentorship, suggest someone who can.

2. Be flexible.

As you can imagine, new mothers

are juggling childcare, feedings, pumping schedules, doctor’s appointments, and emotions—in addition to all the expectations associated with returning to work. If possible, give returning mothers some leeway. Allow them to come in late, leave for mid-day appointments, return home early, etc. This flexibility does not mean they will work less. They will just work different. Most working moms boot up their computer after the baby is asleep, and work well into the night. Additionally, studies have shown that women with children are the most efficient employees—because they have to be.

3. Don’t assume the answer is “no.”

Yes, women who are returning from maternity leave have a lot on their plates. But this does not mean they do not want to be approached with opportunities to, e.g., be first chair on a case, depose a key witness, travel to London to meet with a new client, be promoted to partner, etc. Ask—and give the working motherLAWYER the opportunity to accept AUSTIN AL AL or decline.

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