Austin Lawyer, November 2020 by Austin Bar Association

austinbar.org NOVEMBER 2020 | VOLUME 29, NUMBER 9

One Veteran's Story: How the Austin Bar’s Free Legal Advice Clinic for Veterans Saved Me from Homelessness

ince the inception of the Austin Bar Association’s Free Legal Advice Clinic for Veterans in 2010, the clinic has helped 4,470 veterans and their families with a wide variety of legal issues. In the past year alone, the clinic has utilized 137 volunteers to serve 500 veterans. Even in the midst of a worldwide pandemic, Austin Bar veteran’s legal assistance program staff attorney Doug Lawrence and program coordinator Isabel Salazar have worked tirelessly to ensure that veterans who need legal assistance will not go unaided. Clinics are normally held each month at the Austin VA Outpatient Clinic. In-person clinics were suspended until at least early 2021, necessitating the shift to an online format. Virtual phone clinics have been held monthly since June, with the next scheduled for Nov. 19, 2020. The final virtual phone clinic for the year will be held on Dec. 14, 2020. Every one of the veterans who seek help from these clinics has a story. And quite often, the plotline of the story is complicated by legal matters that seem overwhelming to a veteran unequipped to fight battles of a

Mr. LaMair has been a lifesaver and a Godsend to me. I am so thankful for this program that allowed me to receive the help I so desperately needed. I can’t imagine what I would have done without this program and Mr. LaMair. legal nature. Through the Free Legal Advice Clinic for Veterans, they get the help and support needed to resolve their issues. The volunteer attorneys provide knowledge and expertise to untangle the obstacles—sometime minor, sometimes life-threatening —that stand between them and a happy and productive life. One such veteran, with one such story, is U.S. Army Sergeant Gloria Gay Armke. And the hero of her story is Free Legal Advice Clinic for Veterans attorney volunteer Trey LaMair. LaMair began assisting Sgt. Armke in early 2019 with a lawsuit against the builder of her tiny home. In a letter to the Austin Bar, this is Sgt. Armke’s story, in her own words (edited for length): To Whom It May Concern: My name is Gloria Gay Armke. I’m writing to you in regards

to the Austin Bar’s Free Legal Advice Clinic for Veterans at the VA Outpatient Clinic. In the fall of 2017, I signed a contract with a builder in Goliad to build a tiny house for me. It was going to take between three to six months to build. I had no experience with builders in the past. I had always rented or lived on post, being a soldier and moving around. I was told that he could do anything I wanted, that it would be custom built! After 20 months, my house was still sitting there, unfinished. I had been going to see the progress off and on during this time. Finally, the last time my sister and I went, we drove into Goliad when we left the factory and talked to the JP, who directed me to the Constable about what I was going through with this builder. They looked into the problem and informed me that they had problems with this particular person in the past. Then, that following Monday, I walked into the VA and signed into the Free Legal Advice Clinic for Veterans. Surprisingly, I only waited about 10 minutes and was called in to meet with a contract lawyer,

Trey LaMair. We sat down and I told him my story and he explained what he could do for me. Little did I know how much help he would provide. This man took the bull by the horns and pursued the builder consistently by filing court documents and doing everything necessary for my case. He continues to do so still. My house was delivered to me in April 2019. It was not livable, but I had my house. I borrowed money to make it livable and moved in last August. Over the past year, Mr. LaMair has filed many court documents, taken the builder to court, and won my case. He continues to pursue him, when needed. The builder has been ordered to pay back a percentage of the money he took from me and for the mental and financial damage he caused to me by not being true to the contract we signed. Mr. LaMair has been a lifesaver and a Godsend to me. I continued on page 9

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CONTENTS

AUSTINLAWYER NOVEMBER 2020 | VOLUME 29, NUMBER 9 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

CONNECTIONS

President's Column

Briefs

ONLINE austinbar.org

One Veteran's Story: How the Austin Bar’s Free Legal Advice Clinic for Veterans Saved Me from Homelessness

13 Equity Committee Spotlight

Beginnings, Looks to Future

17 Third Court of Appeals

Academy

Civil Update

18 Third Court of Appeals

21 Robert Calvert Inn of Court Receives Award

Inn also Recognizes Members for Excellence and Service

26 Cooking with the Judiciary

MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Ste. 700 Austin, TX 78701-2665

15 Opening Statement

16 Apply Now for 2021 AYLA/Austin Bar Leadership

EMAIL nancy@austinbar.org

10 Be Well

14 Hispanic Bar Association of Austin Remembers

SOCIAL LIKE facebook.com/austinbar

Criminal Update

19 Federal Civil Court Update 20 Criminal Court News

Austin Bar’s Lawyer Well-Being Committee Sponsors Series

FOLLOW twitter.com/theaustinbar

22 AYLA 25 Practice Pointers

ONLINE

WATCH vimeo.com/austinbar STREAM @AustinBarAssociation

austinbar.org

NEWS & ANNOUNCEMENTS

UPCOMING EVENTS

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

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

AUSTIN YOUNG LAWYERS ASSOCIATION

David King �� President Rachael Jones �� President-Elect Blair Leake �� Treasurer Sarah Harp �� Secretary Sandy Bayne �� Immediate Past President

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District of Texas Federal Court and the Texas Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. 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 KENNON WOOTEN, SCOTT DOUGLASS & McCONNICO

We Have a Voice—Let’s Use It

s I write this article, early voting is underway for Election Day—Tuesday, Nov. 3, 2020. Millions of people have voted in the U.S., and many millions more will vote before we go to print. But, if the past is any indication of the future, many millions of eligible voters will not vote during the early-voting periods, and over one hundred million people who are among the voting-age population (VAP) in the U.S. will sit this presidential election out altogether.1 There are myriad reasons why people don’t vote in the U.S. Some don’t vote because election laws (or judicial interpretations of those laws) preclude them from voting. Others don’t vote because they can’t get time off from work to vote. For all of you who want to vote but can’t, I hope you experience a change in fortune soon and that, in the interim, you will use your voice to speak your truth and educate voters around you. For all of you who can vote, please do not sit this one out. Voting can be overwhelming, but it doesn’t have to be. In Travis County, for example, we are fortunate to have many resources to help us navigate the voting process. Here are a few of them: • the “Current Election” tab on the Travis County Clerk’s website (countyclerk.traviscountytx.gov/elections/current-election.html) – providing voting locations, voting periods, 6

AUSTINLAWYER | NOVEMBER 2020

sample ballots, wait times at voting locations, and many other sources of information; • League of Women Voters (Austin Area) website (lwvaustin.org/) – providing the Voters Guide, information about how to vote by mail and curbside, information for voters with disabilities, and many other sources of information; • VOTE411 (vote411.org) – enabling you to assess what will be on your personal ballot, explore voting information by state, and check registration status, among other things; • votetravis.com – an online resource provided as a cooperative effort between the Travis County Tax Office Voter Registration Division and Travis County Clerk Elections Division, providing information about voter registration status, your ballot, polling locations, voter ID requirements, an accessible sample ballot, and many other sources of information; and • City of Austin website (austintexas.gov/ MobilityElections2020) – providing a description of the mobility propositions that will be included on Austin residents’ ballots. Remember that we will not have straight-ticket voting in Texas this year. So, if you plan to vote on Election Day, keep in mind that the lines may be longer than usual and the voting process will take longer than usual if you used the straight-ticket approach in prior elections. When voting, all of us should go all the way down the ballot, but none of us should cast a single uninformed vote. Use resources, like the ones listed above, to get informed. If you don’t learn about certain bal-

For all of you who can vote, please do not sit this one out. lot items before Election Day, abstain from voting on those items. We have the power to shape our democracy, from the President all the way down to local candidates. Let’s use this power wisely. If you are a member of the State Bar of Texas, you get to participate in another important vote in a few months. Specifically, between Feb. 2, 2021 and March 4, 2021, you get to vote in a referendum on proposed amendments to the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure. The amendments pertain to a broad range of topics, including clients with diminished capacity, the disclosure of confidential information, conflicts of interest exceptions for nonprofit and limited pro bono legal services, lawyer advertising and solicitation, reporting of professional misconduct, the assignment of judges to hear disciplinary complaints, and the voluntary appointment of a custodian attorney for the cessation of practice. To review all of the proposed amendments, see Misc. Docket No. 20-9144 on

the Texas Supreme Court’s website (txcourts.gov/supreme/ administrative-orders/). We have time to analyze these amendments before we vote. Again, let’s get informed and use our power wisely. Last, but certainly not least, we have an opportunity to comment on proposed amendments to Texas Rules of Civil Procedure pertaining to expedited actions, discovery, and service of process. These amendments are set forth in Misc. Docket Nos. 20-9101 and 20-9103. The Texas Supreme Court is accepting public comments on these amendments through Dec. 1, 2020 and may change amendments in response to comments. So, if you dislike any of the amendments or simply think there is room for improvement, say something by LAWYER Dec. 1. AUSTIN AL it. AL We have a voice—let’s use Footnote 1. According to the Pew Research Center, 55.7% of the U.S. VAP voted in the 2016 presidential election, representing a slight uptick when compared with 2012 but a reduction when compared with 2008. See https://www.pewresearch.org/facttank/2018/05/21/u-s-voter-turnouttrails-most-developed-countries/ (last visited Oct. 10, 2020).

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Jaynie Badgett Henry Cosey Jackson Gayle Cori Hash Troy Hales Lauren Hayes Preston Hughes Kevin Keaney Siena Magallanes Kevin Nikman Mark Oppel Joshua Sanchez-Secor Alexandra Vargas

FROM LEFT: Badgett, Bast, Dippel, Falgoust, Garrett, Williams

AWARDS

Texas Lawyer has recognized Locke Lord partner Cynthia Bast as a 2020 Texas Trailblazer. She is featured in the publication’s October/November issue. Bast, a partner in the firm’s Austin office, has spent 29 years working in affordable housing law and is one of the leading practitioners in the state. The Texas District & County Attorneys Association presented the Gerald Summerford Civil Practitioner of the Year award to Austin Bar Past-President Leslie Dippel. Dippel is the director

of the Civil Litigation Division of the Travis County Attorney’s Office. A trial specialist with extensive experience in employment law, she has been a frequent TDCAA speaker and resource and a past chair of the TDCAA Civil Committee. Leadership Austin recently announced its Essential Class of 2021. The class includes Austin Bar members Neal Falgoust, Emma Garrett, and Drew Williams, along with 45 other diverse citizens from Austin. During the year, the Essential class meets monthly to discuss regional issues, enhance their

community leadership skills, and develop strong relationships to encourage innovative, collaborative solutions to the challenges facing our community. NEW TO THE OFFICE

Jaynie N. Badgett has joined Bollier Ciccone. Badgett is an experienced family law litigator. Powers & Kerr has moved its office to 6034 West Courtyard Drive, Suite 100, Austin, Texas 78703.

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

AUSTINLAWYER | NOVEMBER 2020

How the Free Legal Advice Clinic Saved Me from Homelessness continued from cover

am so thankful for this program that allowed me to receive the help I so desperately needed. I can’t imagine what I would have done without this program and Mr. LaMair. I know that he was sent to me for a purpose. I now am faced with many repairs and things that can be fixed. It is practically being rebuilt. Without Mr. LaMair, it would not have happened and my house would still be sitting there, rotting. The floors, kitchen counter, bathroom vanity and shower were taken out. All were built improperly and sitting on a rotten floor. Underneath the tile were rotten, moldy wet floor boards from the water damage that was caused from the builder leaving my house out in the elements and open for almost a year. The smell was unbelievable. I thought all along that something was wrong with the septic hookups. During this time, I had been very sick with vertigo, dizziness, joint soreness, and hearing loss to my right ear. I found out after doing research that the mold was causing my sickness. I’m so much better now—no more soreness. The smell is gone. I just recently started moving back into my home after one month of demolition and reconstruction at the cost of approximately $20,000. At one point, a plug had caught fire and caused one side of the house to be without electricity. Thank goodness I was home when it happened. The plumbing is still an issue. I will have to get that all redone eventually. My tiny house is still a work in progress. I have practically paid twice for my home by now. But, I will survive, and I am so grateful that I have a roof over my head. So much has happened since Mr. LaMair took the reins and I cannot tell you how grateful I am for this program. His assistance was more than a blessing, it was a miracle for me! I will always be indebted to him and will always brag about this program. Without

Trey LaMair

BEFORE

AFTER

BEFORE

AFTER

it and Mr. LaMair’s service, I would not have my house and I would be homeless. Thank you so much for having this program and allowing me to take advantage of these resources as a veteran. It’s been my pleasure to work with Mr. LaMair and I will continue to praise this program. God Bless You All! Sincerely yours, Sergeant Gloria Gay Armke U.S. Army The bottom line for Sgt. Armke is that LaMair’s service to the veterans clinic kept her from homelessness. For LaMair, it was a matter of just doing what he’s trained to do. Ultimately, he got the defendants to sign a settlement agreement providing for a $25,000 settlement. The defendants have paid $13,000 to date—but not without an almost monthly follow-up to threaten further collection efforts. This money is allowing Sgt. Armke to make needed repairs to her tiny house—her home. During the month of November, as we celebrate Veterans Day, won’t you consider volunteering to talk to a veteran about his or her legal needs? To you it might be a couple of hours of time, a few phone calls, a brief, or a motion. But to a veteran who is overwhelmed, about to be evicted, or struggling to make ends meet, it could mean the world. If you are interested in volunteering, please contact Isabel Salazar at isabel@ AUSTIN LAWYER AL AL austinbar.org.

Repairs in progress: After painting, but before windows were sealed.

NOVEMBER 2020 | AUSTINLAWYER

BE WELL

Managing Burnout in the Legal Profession & Making Health and Wellness a Priority BY THERESA GOLDE, BLAZIER, CHRISTENSEN, BROWDER & VIRR

Theresa Golde practices business law, business litigation, and administrative law. She currently serves as a member of the Austin Bar Association’s Lawyer Well-Being Committee.

came across the following quote once, and it has stuck with me: “If you don’t make time for health, you’ll have to make time for illness.” Life and work keep going, and it is easy to put our health on the backburner because at any given time, we are focused on our more immediate needs. I surely am guilty of this. While I will forever remember the words from this quote, I certainly have much to learn on prioritizing health and wellness in my own life. I sought the advice of Dr. Ilona Salmons, a Los Angeles-based psychotherapist and leadership consultant who has focused her career on attorney well-being. She has a Doctorate in Organizational Leadership from Pepperdine University, where she conducted her research on wellness in the legal profession and published her dissertation, Best Practices for Managing Burnout in Attorneys. Dr. Salmons chose to work with attorneys because she identified a need that was not being addressed. “The legal profession is notoriously challenging,” she said. “The long hours, high stakes, demanding clients, interpersonal adversity, and competing deadlines are characteristic of a career in the 10

AUSTINLAWYER | NOVEMBER 2020

law and put attorneys at a greater risk of developing burnout and other mental health symptoms.” She explained that attorneys often fail to get the support they need because many are concerned about appearing “weak” to their colleagues, firm partners, and opposing counsel. The World Health Organization defines burnout as “a syndrome that results from chronic workplace stress that has not been successfully managed.” Dr. Salmons explained that a person who is burned out may experience physical and mental exhaustion, feel cynical about work, and observe a noticeable decrease in their productivity. To manage burnout, Dr. Salmons recommends a three-tier approach, with prevention as the first crucial step. For instance, she explained that engaging in regular self-care practices can help us handle the demands of our profession. Rather than constantly telling ourselves we’ll just take a break later (e.g., next time we take a vacation), it is important that we incorporate self-care into our routine, including setting priorities and being realistic, learning to say “NO” (as difficult as that might be), planning ahead, being fair and kind to yourself and to others (e.g., giving yourself the same benefit of the doubt as you would your colleagues), getting enough sleep, eating healthy, and exercising. Dr. Salmons noted that she encourages her clients to “work hard, but self-care harder.” Managing burnout also involves creating a comfortable forum in our profession for attorneys to discuss openly feelings of burnout and to help reduce the stigma associated with mental health and seeking treatment. Dr.

Salmons explained that “recent studies have demonstrated that environmental factors play the largest causal role in burnout.” Thus, it is important for bar associations and law firms to be at the frontlines of prevention and promote mental health by having candid conversations, providing attorney-specific resources, incorporating wellness into the workplace culture, verbalizing their support, and normalizing the attorney experience. One resource the Austin Bar Association has created is its Lawyer Well-Being Committee. The goal of this committee is to help attorneys manage burnout and participate in activities that give us a mental/emotional break from daily challenges in our jobs.

es to facilitate the rehabilitation process, including offering confidential therapy sessions, reducing billable requirements without consequence, providing flexibility to control certain aspects of their job, and encouraging a collegial and collaborative environment that can counterbalance the negative effects of stress. I recognize that the challenges we face in the legal profession have been exacerbated by the current global pandemic. In addition to stress from work, there have been increased personal stresses for many people, whether it be virtual school for children, dependent care, or social distancing keeping us away from enjoying time with family and friends. As such, now more than ever, we

To manage burnout, Dr. Salmons recommends a three-tier approach, with prevention as the first crucial step. As a member of this committee, I want to relay that the committee works to provide programming that will help supplement one’s well-being practices, and it welcomes any suggestions on improving such programming. While prevention is key, early detection and rehabilitation (steps two and three of the three-tier approach) are also important. Early detection can start with an organization and its leaders. Dr. Salmons stated that “professional organizations and law firms can be proactive by providing specialized training for their attorneys and leaders to learn how to identify early warning signs and symptoms.” If burnout is suspected, organizations and law firms can provide attorneys with additional resourc-

should make health a priority. I certainly have been striving to implement the self-care practices Dr. Salmons recommends. For example, I have worked on setting priorities in both my personal and professional life, and being realistic about the time involved; I have a one-year-old baby, so I have learned to cut myself some slack with everything I am managing at home and at work; and I have made it a daily routine to go for a walk with my family. While it is easy to put these things off until later, I hope that you too will incorporate practices in your life that will make a difference in your well-being! Dr. Salmons is happy to be a resource should you have any questions. YouAUSTIN can email her at LAWYER AL AL ailona@ilonasalmons.com.

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EQUITY COMMITTEE SPOTLIGHT

Austin Bar Equity Committee Hosts Media Events Virtual Book Club Discussion Scheduled for Nov. 12, 2020

he Austin Bar’s Equity Committee has planned several multi-media participation events in the coming months, leading up to a day-long Equity Summit scheduled for May 14, 2021. The first was a Virtual Viewing Party held on Oct. 27. Participants gathered together on Zoom to watch the award-winning film “13th,” a thought-provoking documentary directed by Ava DuVernay about the criminalization of African Americans and the U.S. prison boom. A short discussion followed the film, facilitated by Drew Williams, a member of the Austin Bar’s Equity Committee leadership team

The Austin Bar’s Equity Committee has planned several multi-media participation events in the coming months, leading up to a day-long Equity Summit scheduled for May 14, 2021. On Thurs. Nov. 12 from 5:30 – 7:30 p.m., Mindy Gulati will host a Virtual Book Club discussion on “So You Want to Talk About Race” by Ijeoma Oluo. Please read the book on your own prior to the discussion. Visit austinbar.org to RSVP and receive the Zoom link to attend the Virtual Book Club discussion. On Jan. 6, 2021, join us for a joint AYLA/Austin Bar Virtual Book Club discussion on “How

NOV. 12 VIRTUAL BOOK CLUB DISCUSSION 5:30 – 7:30 p.m. RSVP: austinbar.org “So You Want to Talk About Race”

EQUITY COMMITTEE MEDIA RECOMMENDATIONS The following are recommended resources to help broaden our perspectives on issues of race and equity in our society. More recommendations can be found at austinbar.org/anti-racist-resources.

BOOKS “So You Want to Talk About Race” by Ijeoma Oluo (Join us for a virtual discussion of this book on Thur., Nov. 12. from 5:30 – 7:30 p.m. RSVP at austinbar.org) “How to Be an Anti-Racist” by Ibram X. Kendi (Join us for a virtual discussion of this book on Wed., Jan. 6, 2021.)

PODCASTS

to Be an Anti-Racist” by Ibram X. Kendi. Registration for this event will open after Thanksgiving. The last media event will be held on Thurs., March 11, 2021. The content for this event is TBD. Would you like to join the Equity Committee, or do you have questions for the committee? If so,AUSTIN contact LAWYER Nancy AL AL Gray at nancy@austinbar.org.

1619: Nikole Hannah-Jones was awarded the 2020 Pulitzer Prize for Commentary for The New York Times Magazine’s groundbreaking exploration of the legacy of Black Americans starting with the arrival of the first enslaved Africans in 1619. Code Switch: An NPR podcast about race and culture (particularly recommend the series on cross-racial friendships).

MOVIES/DOCUMENTARIES A Most Beautiful Thing: This documentary chronicles the first African-American high school rowing team in this country—made up of young men, many of whom were in rival gangs from the West Side of Chicago—all coming together to row in the same boat. 13th: In this award-winning documentary directed by Ava DuVernay, scholars, activists, and politicians analyze the criminalization of African Americans and the U.S. prison boom.

NOVEMBER 2020 | AUSTINLAWYER

Hispanic Bar Association of Austin Remembers Beginnings, Looks to Future BY LAURA DE LA GARZA

Research shows that descriptive representation in government, or seeing officials whose characteristics mirror that of the population, increases public trust in government and encourages participation.

Laura de la Garza is a legislative attorney and current secretary of the HBAA.

he Hispanic Bar Association of Austin, celebrating its 25th anniversary this year, met virtually in September and featured a panel discussion with the organization’s founding members, Jim Coronado, Tom Esparza, Xavier Medina, David Mendez, and Richard Peña. The panel was moderated by Judge Maya Guerra Gamble. In remembering the organization’s beginnings, the panelists shared their ideas about how to apply the founding principles—increasing diversity in the State Bar and serving minority communities—to our law practices today. The HBAA formally began in 1995, after a previous group of Mexican-American attorneys fractured over support for two members running for the same judicial office. As a result, the founding members created the organization with an emphasis on unity. They felt that Hispanic lawyers in Austin, and the Hispanic community in general, needed a voice in the legal profession. They met regularly over beer and tacos to discuss current issues and how they could help improve the situation for Hispanics. 14

AUSTINLAWYER | NOVEMBER 2020

The goals of the organization, then and now, have always been to provide equal justice for all and to help the State Bar reflect the diversity of our state. According to the State Bar, just 10% of attorneys in Texas are Hispanic, compared to almost 40% of the state’s population. Peña and Coronado recalled the day when they walked into the office of then-State Bar president Jim Parsons with a list of demands for the State Bar to increase diversity. These demands included items like creating an Office of Minority Affairs within the State Bar and tracking the number of Hispanics graduating from law school and being hired by law firms. To their amazement, Parsons agreed on all items and began to implement those changes. Coronado explained how, as a judge, he felt it was important for members of the Hispanic community coming before his court to see someone who looked like them presiding over their case. Research shows that descriptive representation in government, or seeing officials whose characteristics mirror that of the population, increases public trust in government and encourages participation. While the panelists recalled beginning their law practices against outright discrimination, they also described how they fought more subtle, even unintentional discrimination. Medina remembered how Hispanic attorneys were disproportionately

impacted by harsher sanctions from local grievance panels and, at the same time, underrepresented on those panels. At that time, the attorneys who were appointed to serve on the grievance panels were typically those who worked at big law firms, had lots of connections, and were mostly white. They gave more lenient sanctions to the attorneys they knew and worked with—other big law firm attorneys who were also white. Minority attorneys, many of whom worked for small firms or as solo practitioners, didn’t personally know anyone on the panel. As a result, they would receive a harsher punishment. Medina helped break this cycle by serving on a grievance panel himself, which led him to serve on other statewide committees. He, like the rest of the panelists, encouraged all attorneys to become involved with extracurricular activities like this. Even though we’re busy, it helps open the door for others. Today the HBAA carries on the founders’ mission by providing scholarships to Hispanic undergraduate and law students, many of whom are the first in their families to attend college or law school. The HBAA also participates in producing the Diversity Report Card, which compares diversity at specific law firms to the diversity of the greater Travis County attorney population. It gives a letter grade to the firms in an effort to encourage them to consider their own diversity and

inclusion practices when hiring. In addition, the HBAA participates in community service each holiday season by contributing Thanksgiving meals and Christmas presents to families in need. More information about each of these activities can be found on the organization’s website, hispanicbaraustin.com. The panelists agreed that attorneys, whether Hispanic or not, have an obligation to use their positions to create opportunities for minorities and help make the bar more diverse and reflective of the state’s population. We can do this any number of ways, such as teaching, mentoring, recruiting, fundraising, or serving on a board of directors. Racial and gender diversity are critically important in the legal profession, especially when Texas will soon become a majority-minority state. The Austin Bar Association has created an opportunity for all attorneys to work on attaining these goals by creating the Equity Committee. The committee will host an Austin Bar Equity Summit, lead media events, and facilitate discussions designed to increase understanding with the goal of bringing about inner change to inspire external results. The committee will also compile resources for people seeking guidance on issues of equity, diversity, and inclusion. We each have a duty to the Austin community and the legal profession to make the bar more diverse and inclusive, and to work together toLAWYER create substanAUSTIN AL AL tial, lasting change.

OPENING STATEMENT

Visuals in Briefs, Part II Overcoming Obstacles BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

ast month I discussed using visuals (graphics, charts, images, tables, and illustrations) in briefs. In my survey of practicing lawyers, 30% of those responding said they rarely or never use visuals in briefs. Although a strong majority do use them sometimes or frequently, here are the top three reasons for not using visuals: (1) My practice area doesn’t lend itself to visuals; (2) I’ve never heard a judge recommend visuals; and (3) Creating visuals is time-consuming and difficult. Let’s take these one at a time. (1) If your practice doesn’t lend itself to visuals, then you’re not avoiding them because they don’t work; you’re avoiding them because they don’t work for the cases and issues you handle. Declining to use visuals is therefore an exercise of editorial judgment. That’s what legal writers should be doing. The individual comments in the survey reflect the reality that good writers know their content, context, and audience and make decisions about visuals accordingly: • “I cannot see how visuals would meaningfully improve briefing in my case area (debt collection and debt defense).” • Most of my work involves dayto-day motion practice (e.g., motions to compel) that does not call for visuals.” • “The issues in my cases rarely lend themselves to persuasive visual display.” I’m inclined to trust these lawyers and their judgments about their own cases. (2) Actually, a few judges are recommending the use of visuals in briefs. The legal-writing expert Ross Guberman offers the

following unattributed quotations from judges: • “Sometimes a timeline is clearer than an essay format.” • “The use of pictures, maps, and diagrams not only breaks up what can be dry legal analysis; it also helps us better understand the case ….” • “When a case involves analysis of a map, graph, or picture, I would like to see attorneys include a copy of the picture within the analysis section of the brief.”1 Judge J. Nicholas Ranjan, of the United States District Court for the Western District of Pennsylvania, offers the following advice on his website: “Use visual devices and tools to make things easier on your reader. … [Use] charts and graphics and timelines. For example, in a case where the timing of events is critical or convoluted, consider creating a timeline in the fact section.”2 In addition to the supportive statements quoted here, after posting my survey about visuals, I received two email messages from judges saying that they appreciate the use of visuals in briefs and pointing out that they use them in their own opinions and orders. Still, there’s no large, loud chorus of judges calling for more visuals. Yet 46% of those who rarely or never use visuals said that they would be persuaded to use them if judges and other decision-makers recommended the practice. So if you’re a judge reading this, and you appreciate visuals, say so—publicly. Besides the recommendations of judges, at least one other factor would encourage more writers to use visuals in briefs. One third of the survey respondents said

In my survey of practicing lawyers, 30% of those responding said they rarely or never use visuals in briefs. they would be persuaded to use them if colleagues or leading practitioners recommended the practice. So if you’re a visuals-using writer reading this article, recommend the practice to others. (3) Finally, 9% of survey respondents who rarely or never use visuals in briefs gave as a reason that using them was difficult and time-consuming. Here are some of the individual comments: • “Limited software skills.” • “Need software training.” • “Software to make it easier for me to design the graphics.” • “A quicker way to get them done.” • “Need to be easy to create, format, and insert.” • “Greater technological easeof-use.”

and education on creating and using visuals, and invest in newer or better software. Besides, some of us might be thinking too grandly about “visuals.” Next month I’ll discuss some practical tips for using visuals in briefs, offer some simple ideas for creatingAUSTIN visuals, and recLAWYER AL AL ommend additional resources. Footnotes 1. Ross Guberman, Judges Speaking Softly, 44 Litigation 48, 49-50 (Summer 2018). 2. Judge J. Nicholas Ranjan, Judge Ranjan’s Brief-Writing Preferences, at 2, https://www.pawd.uscourts.gov/ sites/pawd/files/Ranjan_writing_tips. pdf.

This article can do little to remedy these problems, but I have some suggestions: assign visuals creation to others with the expertise, seek out training NOVEMBER 2020 | AUSTINLAWYER

Apply Now for 2021 AYLA/Austin Bar Leadership Academy

pplications for the 2021 AYLA/Austin Bar Leadership Academy class are now being accepted. The deadline to apply is Fri., Dec. 4, 2020. The Leadership Academy was established in 2012 to assist local young lawyers in making a difference in the greater Austin community, serving local bar associations, and promoting professional development. Each year, the program brings together a diverse group of approximately 30 attorneys from a variety of practice areas, firm sizes and types, and levels of experience. This year, due to COVID-19, the Leadership Academy will go virtual. While this is a big change from before, participants can expect the same quality programming and new opportunities for meaningful networking and engagement. The Leadership Academy will kick off with a virtual retreat on

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Jan. 8, 2021. Following the retreat, the program offers a series of five lunch 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 former 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 Senator Sarah Eckhardt in her past capacity as Travis County Judge. The Leadership Academy culminates with a class project in which participants seek to have an impact on their community. Past class projects include: • The 2020 class mastered the art of pivot in the midst of the COVID-19 pandemic to orga-

nize a remote pro bono effort, tallying over 270 pro bono hours with local non-profit organizations. • The 2019 class organized a PieFest at Hilgers House. The class raised almost $16,000 in support of the Austin Bar Foundation’s “Our Home on Judges Hill” capital campaign. • The 2018 class produced an educational video titled “Law: A Profession of Service,”

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The 2019 Leadership Academy class at PieFest.

AUSTINLAWYER | NOVEMBER 2020

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featuring interviews with many esteemed members of Austin's legal community. The program concludes with a graduation ceremony and happy hour, at which local bar leaders provide information on next steps for continued community involvement. For the application, visit austinbar.org/austin-bar-ayla-leadership-academy. Questions? AUSTINContact LAWYER AL AL ayeola.williams@capmetro.org.

THIRD COURT OF APPEALS CIVIL UPDATE

The following are summaries of selected civil opinions issued by the Third Court of Appeals during September 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Oct. 8, 2020. MANDAMUS: Court grants relief from a new-trial order. In re Gallup, No. 03-19-00313-CV (Tex. App.—Austin Sept. 10, 2020, orig. proceeding) (mem. op.). A jury found in favor of defendant in a car accident case. The trial court rendered judgment on the verdict but later granted a new trial, concluding that defendant’s receipt of a ticket for causing the wreck rendered the jury’s determination against the great weight of the evidence. According to the court of appeals, the jury could have disbelieved plaintiff, who denied being on her phone when phone records showed numerous calls and texts before and during the collision. Further, the court concluded that traffic tickets indicate violations of penal statutes, but do not establish negligence in a civil case. The court held that the jury’s determination was not against the great weight of the evidence and granted mandamus relief. ADMINISTRATIVE LAW: University lacks authority to revoke a degree.

University of Texas v. S.O., No. 03-19-00131-CV (Tex. App.—Austin Sept. 4, 2020, no pet. h.). After awarding S.O. a doctoral degree, UT investigated allegations of academic misconduct and scheduled a disciplinary hearing. S.O. sued to prohibit the proceeding, alleging such action was ultra vires. The trial court denied UT’s plea to the jurisdiction on immunity grounds. UT argued that it had authority to revoke a previously conferred degree and thus its conduct was not ultra vires and immunity applies. According to the court of appeals, Education Code § 65.31 does not mention revocation— only awarding—of degrees and, further, does not mention authority to discipline a former student. Thus, there was no express grant of authority to revoke a degree. The court held that S.O. alleged an ultra vires claim within the trial court’s jurisdiction and affirmed. The dissent concluded that Section 65.31 conferred broad powers, including authority to revoke a degree. TRIAL PROCEDURE: Court reverses in dispute over calculation of amount in controversy for jurisdictional purposes. Magnolia Christian Church v. Bowers, No. 03-19-00433-CV (Tex. App.—Austin Sept. 3, 2020, no pet. h.) (mem. op.). Bowers signed contracts to purchase property from Church. After Bowers tendered payment,

PATIENT

Church terminated the contracts. Bowers sued, seeking specific performance. Church filed a plea to the jurisdiction, contending the amount in controversy exceeded the $250,000 limit. The trial court denied the plea. A jury found for Bowers and awarded specific performance. According to the court of appeals, when a lawsuit is for an interest in real property, the value of the interest determines the amount in controversy. Bowers contracted to pay $434,500 for the properties. Thus, the amount in controversy exceeds the statutory limit. The court reversed and rendered. The dissent concluded that the amount-in-controversy determination is reduced by the price Bowers had to pay to receive title. PERSONAL INJURY: Court finds evidence legally insufficient to support a jury verdict. Builder Servs. Group, Inc. v. Taylor, No. 03-18-00710-CV (Tex. App.—Austin Sept. 17, 2020, no pet. h.) (mem. op.). The Taylors sued BSG for personal injuries and property damage from exposure to toxins in spray foam insulation. BSG challenged the legal sufficiency of the evidence to support the jury’s causation findings. The court of appeals concluded that the Taylors’ expert’s causation opinion was not based on sufficient information of the levels of isocyanate to which the plaintiffs were exposed. Further, the expert provided no support

PRACTICAL

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.

for the theory that exposure at any level could cause the Taylors’ medical conditions. According to the court, the expert’s opinion was mere conjecture and amounted to no evidence. The court further concluded that the Taylors failed to present expert testimony to support their property damage claim. The court reversed and rendered a take-nothing judgment. The dissent concluded that lay testimony could establish causation of property damages and that BSG failed AUSTIN to show the evidence was LAWYER AL AL legally insufficient.

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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 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Oct. 1, 2020.

> SUFFICIENCY OF THE EVIDENCE – “SHORT DISTANCE” KIDNAPPING: Evidence was sufficient to prove that appellant kidnapped victim by forcing her out of vehicle and restricting her movement. Zabaleta-Martinez v. State, No. 03-18-00512-CR (Tex. App.—Austin May 7, 2020, no pet.) (mem. op., not designated for publication). The victim encountered appellant, her ex-boyfriend, on her way home from a dance club. The victim was a passenger in her friend’s car. As they drove through the parking lot of the victim’s apartment complex, appellant pulled his truck in front of the car and stopped, blocking its path. The victim’s friend was able to drive around the truck and tried to exit the parking lot, but another car, containing appellant’s friends, blocked the exit. Appellant, his brother, and his friends then approached the car and proceeded to assault the 18

AUSTINLAWYER | NOVEMBER 2020

victim and her friend, pulling the victim out of the car and hitting her repeatedly. Eventually, appellant attempted to force the victim into his friends’ car but was unable to do so after neighbors intervened. Appellant was convicted of aggravated kidnapping and aggravated family-violence assault. On appeal, appellant asserted that the evidence was insufficient to show that he kidnapped the victim “because the movement or confinement involved was only for a short period of time over a short distance,” “at best, a mere matter of feet for a period of time less than five minutes.” The appellate court explained that “[n]othing in the kidnapping statute requires the State to prove that a defendant moved a victim a certain distance or held [her] for a specific length of time.” The court then summarized the evidence, which showed that the victim “was prevented from going home, trapped in a car, then forcibly removed from the car, beaten by multiple assailants, and dragged to another car.” The court concluded that this was sufficient to prove that appellant had “substantially interfered” with the victim’s liberty so as to support a kidnapping conviction. SUFFICIENCY OF THE EVIDENCE – INCONSISTENT VERDICTS: Evidence was sufficient to prove that appellant committed offense of aggravated assault, even though he was acquitted of other offenses. Harrell v. State, No. 03-18-00391CR (Tex. App.—Austin May 28, 2020, pet. ref’d) (mem. op., not designated for publication). Police officers suspected appellant of dealing drugs out of his parents’ house and executed a “no-knock” warrant at the residence. Once the officers were inside, appellant fired at the officers with a semi-automatic rifle, and one of the officers was shot. Appellant was charged with attempted capital murder and aggravated assault of a public servant, and the lesser-included offenses of attempted

murder and aggravated assault. The trial court instructed the jury on self-defense, defense of a third person, and defense of property. The jury convicted appellant of aggravated assault but acquitted him of the other offenses. On appeal, appellant challenged the sufficiency of the evidence to support the jury’s rejection of his defensive claims. His argument was that because the jury had acquitted him of attempted capital murder, attempted murder, and aggravated assault on a public servant, the jury must have concluded that appellant did not realize that the individuals entering the house were police officers. “Thus, according to appellant, the evidence was insufficient to reject his justification defenses because the evidence at trial showed that he was shooting at ‘armed intruders invading [his] home’ and that he was justified in doing so to protect himself, his mother, and his property.” In other

words, appellant believed that the jury acquitting him of the greater offenses was “inconsistent” with the jury convicting him of the lesser offense. The appellate court rejected this argument, observing that “the law does not bar inconsistent verdicts,” which “may simply result from a jury’s desire to be lenient or to grant its own form of executive clemency.” The court explained that when a multi-count verdict appears inconsistent, the court’s inquiry is “limited to a determination of whether the evidence is legally sufficient to support the count on which a conviction is returned.” Thus, in this case, “so long as the evidence supports the finding of guilt concerning aggravated assault and supports rejection of the justification defenses,” the conviction should be upheld. The court then summarized the evidence and concluded that itAUSTIN was sufficient to support the LAWYER AL AL jury’s verdict.

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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 an overview; please review the entire opinions. Subsequent histories are current as of October 1, 2020. SUBJECT MATTER JURISDICTION: Trial court lacked subject-matter jurisdiction because suit did not raise substantial federal issue and defendant was alter ego of the state and thus not a citizen of any state, as required for diversity jurisdiction. The Lamar Co., L.L.C. v. Miss. Transp. Comm’n, No. 20-60072, 2020 WL 5640673 (5th Cir. Sept. 22, 2020) The Lamar Company—a nationwide billboard advertiser—sent a proposal to the Mississippi Transportation Commission (MTC) seeking permission to change the height of a billboard. MTC disapproved of the modification because the sign would violate billboard height limitations set in a state statute enacted pursuant to the federal Highway Beautification Act, which requires states to enact laws regulating outdoor advertising or suffer a loss of federal highway funds. Lamar sued MTC in state court, asserting claims for, among other things, violation of the state’s takings clause. MTC removed the case to federal court based on federal-question jurisdiction, arguing the cause of action involved a tacit but unavoidable federal question and, alternatively, diversity jurisdiction existed. The court ultimately entered judgment against Lamar without further addressing subject matter jurisdiction. On appeal, several days before oral arguments, MTC moved to remand to state court, arguing that the federal courts lacked subject-matter jurisdiction. Although the court found the timing of MTC’s jurisdictional argument to be inopportune, the court

acknowledged that subject-matter jurisdiction can never be waived and concluded that both federal-question and diversity jurisdiction were also lacking. Regarding federal-question jurisdiction, the court considered whether Lamar’s state-law takings claim nevertheless raised a necessary, disputed, and substantial federal issue sufficient to support federal-question jurisdiction. The court concluded it did not. Although Mississippi may have enacted the statute to comply with the federal Highway Beautification Act, any takings suffered as a result of the statute would have been caused by the state. The court was similarly unpersuaded by the fact that the federal statutory scheme requires the federal government to bear 75 percent of the liability for any taking. For an embedded federal issue to give rise to federal-question jurisdiction, it must be significant to the federal system as a whole. Even if a taking occurred and there was a resulting draw on the federal treasury as compensation for a billboard, the court concluded, nothing of national consequence would have occurred. As for diversity jurisdiction, the court held that MTC was an alter ego of the state and, therefore, not a citizen of any state for purposes of diversity jurisdiction. ARBITRATION: Arbitrator’s nondisclosure of relationship to nonparty not a witness to arbitration proceedings and who had no stake in the outcome of the arbitration did not satisfy the “evident partiality” standard for vacatur under the Federal Arbitration Act. OOGC Am., L.L.C. v. Chesapeake Expl., L.L.C., No. 19-20002, 2020 WL 5511806 (5th Cir. Sept. 14, 2020) Chesapeake Exploration sold OOGC America partial interests in two oil and gas properties. A contract dispute arose of out several agreements between the two that governed their joint venture. The agreements provided that Chesapeake, as the operator,

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

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

would pay expenses up front and then charge the expenses to a joint account. Then Chesapeake would bill OOGC for its proportionate share of the costs. The agreements permitted Chesapeake to bill work performed by “affiliates” or “related parties” to the joint account but required that such work must be compensated at competitive rates not exceeding prevailing rates in the area. OOGC initiated arbitration against Chesapeake alleging that Chesapeake was overbilling OOGC by compensating affiliates and related parties at rates higher than the prevailing market rate. One of the companies whose rates OOGC challenged was an entity named FTS. The three-member arbitration panel unanimously determined that FTS was not an affiliate or a related party under the agreements. The panel also unanimously concluded that, even assuming arguendo that FTS was an affiliate or related party, Chesapeake still did not violate the agreements because Chesapeake did not compensate FTS above the market rate for the area. Ultimately, the panel concluded Chesapeake did not overbill the joint account for work performed by any affiliates or related parties. OOGC filed an action to vacate the panel’s awards under the Federal Arbitration

Act (FAA) because, according to OOGC, one of the arbitrators had an undisclosed relationship to FTS that showed “evident partiality.” The district court agreed and vacated the awards. On appeal, the Fifth Circuit reversed. The court explained that to satisfy the test for evident partiality under the FAA, a party challenging an award must produce specific facts from which a reasonable person would have to conclude that the arbitrator was partial to its opponent. Although OOGC offered reasons why the arbitrator’s connections to FTS may have incentivized him to rule in favor of Chesapeake, the court held that these reasons fell short of the “concrete, not speculative” showing of a significant, compromising connection to the parties required for vacatur under the FAA. Because the arbitration panel unanimously decided that even if FTS was an affiliate, Chesapeake did not pay FTS above the market rate, FTS had no stake in the outcome of the arbitration. Nor was FTS a witness to the arbitration. At most, OOGC’s claims related to FTS, if successful, would cause Chesapeake to pay damages, not FTS. Thus, the arbitrator’s alleged undisclosed connections to FTS failed AUSTIN to establish that he LAWYER AL AL was partial to Chesapeake. NOVEMBER 2020 | AUSTINLAWYER

CRIMINAL COURT NEWS

Here, Officer, Search This Please 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.

t’s well established that law enforcement typically cannot search the contents of a suspect’s electronic devices without a warrant. But what if someone to whom the owner gave the passcode unlocks the device and invites the police to find evidence? This question was recently answered by the San Antonio Court of Appeals in an case involving images of child sexual abuse that the defendant’s wife found on his iPad.1 Although the record was clear that Gonzalez’ wife was not

the owner of the iPad, the Court found that, since she had the passcode to unlock it, she could “frustrate” the expectation of privacy that ordinarily adheres to locked devices.2 In other words, by sharing the passcode, Gonzalez inadvertently authorized his wife to consent to a warrantless search of the device, which she undoubtedly did. The court reviewed the “private party doctrine,” which applies when a private citizen turns over evidence or contraband to law enforcement and is generally held not to be a “search” within the meaning of the Fourth Amendment.3 Although Gonzalez argued that his wife’s use of the passcode to access the device was akin to a trespass, the court reasoned that a better analogy would be that he handed her the keys to the house by giving her the passcode.4 Warrantless searches of electronic devices have been disallowed since at least 2014, when the U.S. Supreme Court held that the owner of a device has an expectation of privacy in its contents.5 Perhaps for this reason, law enforcement in the Gonzalez case was careful to apply for a warrant to search the iPad, although they of course had

already seen some of the images the defendant’s wife showed them. They carefully drafted a search warrant application which did not reflect that they had already seen some of the contents, probably to avoid any potential “fruit of the poisoned tree” argument from Gonzalez down the road in the event their first perusal of the contraband images was deemed unlawful. The warrant was granted, and the device was thoroughly searched.6 Gonzalez argued that his wife did not have authority to violate his expectation of privacy in the locked device. The court didn’t buy that argument, reasoning that he had shared the passcode with his spouse. He also argued that the police submitted a false

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application for the warrant by excluding the fact that they had actually already searched the device. That argument didn’t work either, the court held, because no false or misleading evidence was AUSTIN LAWYER AL AL presented in the affidavit. Footnotes 1. Gonzalez v. State, No. 04-19-00226CR, 2020 WL 4929793 (Tex. App.— San Antonio, July 29, 2020, pet. filed). 2. Id. 3. Id. 4. Id. 5. Riley v. California, 573 U.S. 373 (2014). 6. Gonzalez v. State, supra.

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AUSTINLAWYER | NOVEMBER 2020

Robert Calvert Inn of Court Receives Award Inn also Recognizes Members for Excellence and Service

he Robert Calvert Inn of Court was recognized for the Achieving Excellence Platinum designation during the 2019-20 Inn year by the national organization of the American Inns of Court. Achieving Excellence is a tiered achievement-based program that recognizes activities in which Inns are already involved and builds on an Inn’s successes. Platinum is the highest designation awarded. Justice of the Peace Raul

Achieving Excellence is a tiered achievementbased program that recognizes activities in which Inns are already involved and builds on an Inn’s successes. Gonzalez served as president of the Robert Calvert Inn of Court during the 2019-20 year. He awarded the President’s Excellentia Award to Sherine Thomas of the Travis County Attorney’s Office. Three board members and seven program team leaders were also recognized with a President’s Award for their invaluable service. Those recipients were Laura Merritt, Jeff Hobbs, Jane Atwood, Tara Kumph, Ryan Kercher, Danielle Ahlrich, Kelly Canavan, John Vacalis, Jordan Mullins, and Christine HenryAUSTIN LAWYER AL AL Andresen.

LEFT: Sherine Thomas (membership chair and Excellentia Awardee) and JP Raul Gonzalez. RIGHT: JP Gonzalez with team #6 leader Jordan Mullins.

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AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN DAVID KING, GRAVES DOUGHERTY HEARON & MOODY

Leadership Opportunities in Challenging Times instead, it is to humbly offer some thoughts on where and how young lawyers may discover leadership opportunities in this challenging environment.

long with tech and finance, the legal sector is one of the fortunate professions which has coped relatively well with the shift to working from home. One recent study places lawyers close to the top of the list of professions in the U.S. in which people are able to work remotely.1 The other side of the coin is that many professions are struggling, and this raises the troubling question of whether this dichotomy will lead to deepening inequality.2 But, setting aside that difficult issue, there are also differences within each profession—even the fortunate ones. Let’s take the legal profession and the challenges faced by young lawyers in this work-from-home environment. Yes, young lawyers are perhaps more capable of navigating the technological component of this shift, and yet they face their own unique struggles. One concerning issue—which has been frequently reported in the media3—is that young lawyers may be deprived of the training and mentorship they need to grow. A related issue is that a remote workplace also potentially limits young lawyers’ exposure to leadership opportunities—both inside and outside of work. This column’s aim is not to simply lament the hardships facing young lawyers today; 22

AUSTINLAWYER | NOVEMBER 2020

NONPROFIT BOARDS It is an extremely difficult time for many nonprofits and charities. Major fundraisers are being cancelled and donations are drying up, while the needs of the populations nonprofits serve are increasing along with the costs of providing those services in the midst of a pandemic.4 Yes, individual donations help a lot (and if you’d like a specific opportunity, you can support Coats for Kids by donating a coat to a child in need). But for young lawyers wanting to do more, now is a better time than ever to get involved in a nonprofit board. There are hundreds of nonprofits in Austin, many of which would welcome an eager attorney-board member with open arms. So what’s the first step to get involved? There are probably different answers to that question, but one way to start is by finding an issue that you are passionate about—whether it be education, housing, health, criminal justice, etc.—and then make a connection. Talk to an existing board member or attend an event. If you are inspired by the organization’s mission, find out how to apply to the board, and then do it! FIRM MANAGEMENT For those in private practice, as law firms struggle to adapt to a rapidly changing world, young lawyers certainly do not have it easy. But in the midst of chaos, there is also opportunity. For one, since we are in a unique

At a time when firms are considering whether and how to reinvent themselves, the fresh ideas of an inventive, young associate may be more impactful than ever. point in time when no one really knows what the future will hold, the playing field may become more level between junior and senior lawyers. Indeed, the playing field may not just become more level; law firms are, in some respects, having to write a completely new playbook. For young lawyers who want to be a part of that discussion—or start their own discussion—the barriers to entry are likely lower than they were seven months ago. At a time when firms are considering whether and how to reinvent themselves, the fresh ideas of an inventive, young associate may be more impactful than ever.

ecutive Director Debbie Kelly, or any one else on the board, and we’ll plug you in. You can find everything you need here: ayla.org. And, for those who are ready to take the next step, consider running for the AYLA board next spring!

AYLA AND THE AUSTIN BAR ASSOCIATION Well, this one is a no-brainer, right? As I mentioned in a previous column, AYLA is fertile ground for leadership opportunities—especially during the pandemic, as we work to modify and expand our programming. For young lawyers who want to increase their presence in the Austin legal community, what better way to do it than to take on a project (or design a new project) under the auspices of AYLA or the Austin Bar? Whether it is launching a community service project, organizing a fundraising event, or planning a CLE, our members (and not only board members) are leading new efforts every month. So get involved! Reach out to me, AYLA’s Ex-

Footnotes

*** It was President John F. Kennedy who said, “In a crisis, be aware of the danger—but recognize the opportunity.” We are living through a difficult time. It is also a time that calls for leadership in the face of unprecedented challenges. For young lawyers wanting to get engaged, it may be AUSTIN LAWYER ALso. AL the perfect time to do 1. Jonathan I. Dingel & Brent Neiman, “How Many Jobs Can be Done at Home?,” Becker Friedman Institute for Economics at the University of Chicago (June 2020), available at https://bfi.uchicago.edu/wp-content/ uploads/BFI_White-Paper_Dingel_ Neiman_3.2020.pdf. 2. See Megan Cassella, “A Tale of Two Recessions,” Politico.com (Sept. 7, 2020), available at https://www. politico.com/news/2020/09/07/ income-inequality-wealthgap-409234. 3. Kate Beioley, “Young Lawyers Weigh Career Effects of Kitchen Table Lockdown,” Financial Times (July 1, 2020), available at https://www. ft.com/content/68e395fa-7fd011ea-b0fb-13524ae1056b. 4. See Betsy Morris, “Nonprofits Face Bleak Future as Revenue Dries Up Amid Coronavirus,” The Wall Street Journal (May 11, 2020), available at https://www.wsj.com/ articles/nonprofits-face-bleakfuture-as-revenue-dries-up-amidcoronavirus-11589223487.

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Community Service Days Supports Austin ISD Crisis Support Fund

n November, the AYLA Community Service Days Committee will support AISD’s Crisis Support Fund. Please make your donation today at austinedfund.org/donate-to-the-crisis-support-fund/. Together with AISD, the Austin Ed Fund created the AISD Crisis Support Fund as an effort to support the school communities by supplementing access to the following programs and services: Back to School BASH: The fund, along with other partners, sponsored Back to School BASH

to provide 17,000 students with a backpack filled with back-toschool supplies. Meal Service: AISD’s Food Service Team continues to feed students and caregivers, providing up to 10,000 meals per day. With the help of the City of Austin and local restaurants, the fund supports the increased costs of this service, including the resumption of caregiver meals through early fall. Telehealth Medical Appointment Fees: The fund is providing fee vouchers for telehealth visits for families who

are uninsured and do not qualify for free/reduced meal benefits or Medicaid. Translation and Interpretation Services: The fund is increasing the district’s capacity for on-demand and rapid response translation and interpretation services for families who speak nearly 100 different languages. Support for Remote Learning: The fund is supporting costs for a district-wide license for Seesaw, an online learning platform for PreK-2nd grade students, and tablets for PreK-2nd grade students.

Teacher Support: The fund is making it possible for all 5,500 AISD teachers to receive Amazon gift vouchers to support their social and emotional health and needs for remote instruction. Support for AISD’s front-line workers: With the help of H-E-B, the fund delivered H-E-B gift cards to the AISD food services team, technology services team, AUSTINLAWYER AL AL and the AISD Police.

AYLA Member Spotlight: Will Shindler AYLA: Tell us a little bit about yourself and your law practice.

AYLA: What area of law do you practice?

Shindler: I grew up on a ranch outside of Bay City, about 20 minutes from the coast. I made my way to Austin and earned my undergraduate degree from The University of Texas. After my time at UT, I moved to Houston where I received my law degree from the University of Houston. In 2018, I returned to Austin to practice family law at CHA Law Group.

Shindler: I focus on family law— everything from divorce and child custody to adoption law, gestational law, and surrogacy law. CHA Law Group prides itself in welcoming traditional and non-traditional families, offering LGBTQ+/ Queer-specific legal services. Need to adopt your girlfriend’s baby that was grown from your egg through reciprocal IVF? We’re your firm.

UPCOMING EVENTS THURSDAY, NOVEMBER 19 AYLA Docket Call: Counselors & Cinema: Comedic Commentary Movie Night 5:30 p.m. Join AYLA for a night of movie mockery as our November Docket Call. Comedic hosts Ben Dower and Dave Floyd will provide live commentary of a film for our members to share and enjoy together from home. We look forward to presenting this first ever sociallydistanced night of laughter and hope you’ll join us! Visit ayla.org for more information and to sign-up.

Need to correct your gender identity on your driver’s license? I’ve got you covered. AYLA: What are some of the things you enjoy most about living in Austin? Shindler: I love Austin’s mix of urban culture and outdoor activities. I have really come to appreciate all that it has to offer, especially during the pandemic. At a time we are all trying to be safe and physically distanced from one another, I like to take advantage of the many hiking, biking, and running trails. AYLA: How long have you been involved in AYLA and what’s been your best AYLA experience so far? Shindler: I joined AYLA shortly after moving to Austin in 2018, and it has been a great way for me to network. I have been able to meet many dedicated and talented lawyers who I admire professionally and have served as mentors to me. I joined the AYLA board in 2019 as a liaison between AYLA and the Austin Bar’s LGBT Law

Will Shindler

Section and it has been the best experience. AYLA offers so many varying opportunities to get involved in the Austin community, whether it be through their networking events or the community service days. AYLA: What’s your favorite moment of your career so far? Shindler: I have so much appreciation for being able to witness my clients’ emotions after providing legal security to the way they have decided to live their lives—whether they are in a same-sex relationship raising a child, or a more traditional family AUSTIN LAWYER AL AL who have decided to adopt. NOVEMBER 2020 | AUSTINLAWYER

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PRACTICE POINTERS

As the Pandemic Continues, Refocus on Your “Why” BY MARY ANN EPIRITU

t is May 1, 2020, and I am at home on a video conference. In the virtual room are two Travis County judges and a handful of my esteemed peers. We are attending a segment of the Austin Bar Association’s Virtual Couch Bar event – Coffee with the Judiciary. Suddenly, a sneaker flies over my head and lands with a loud thud against the wall. I have a startled look on my face just as one judge ponders out loud the challenges that lawyers are facing as we practice law from our homes. I quickly mute my microphone and scold my dog for hurling my sneaker at me in her bid to be taken for yet another bathroom break. As I turn my attention back to my computer screen, the other sneaker flies past my face in full view of my webcam, crashes onto my desk, and knocks over the cup of coffee that I’m supposed to be enjoying with the judiciary. With that, I log off the video conference. Every aspect of the practice of law, from attending CLE events to appearing in court, has changed due to the pandemic. Much has been written about these pandemic changes, from chronicles reporting the human condition to how-to articles on virtual conferencing and virtual officing. These changes to our practice of law can come with isolation, loss of business, challenging home environments, new court procedures, and technology, the list goes on and on. As a criminal defense attorney, I was in court every morning. On Friday, March 13, 2020, the day started like every other day. I arrived at the office for our pre-docket meeting. My colleagues and I divided the docket among the four of us, and then we walked together to court and handled our respective docket assignments. One by one we each finished our docket assignments and returned to the office. On this day, I was the last

My “why” for becoming a lawyer IS my lawyer identity, and it will always be my lawyer identity—whether I’m dressed in my lucky blue suit and strutting in front of a jury box or I’m on a Zoom conference having sneakers hurled at me by my dog. to arrive back from court. I found everyone already assembled in our reception area, where my law partner had called a meeting. He announced that due to the pandemic, we would all be working from home, effective immediately. That was the last time we were all together as a firm. For almost two decades, my existence as a lawyer has revolved around appearing in court, seeing co-workers and colleagues daily, arguing case law before judges, trying cases to juries, and all other aspects of being in a court environment. When that existence suddenly stopped, it felt like I had been stripped of my identity as a lawyer. As the pandemic continued and the Travis County criminal courts began holding dockets via video conference, I realized that my existence as a lawyer, or at least a criminal defense lawyer, might never truly be the same. I did not know if I would ever again feel validated as a lawyer. This past week, I received an email from a young woman who was thinking about applying to law school, and she asked if I could answer a few questions. I agreed and she emailed her inquiries. While she had asked a dozen or so questions, each one revolved around my reasons for becoming a lawyer. As I thoughtfully wrote out my responses, I suddenly had a realization. My reasons—my “why”—for becoming a lawyer had nothing to do with driving to a law firm every day or appearing in court.

My “why” for becoming a lawyer IS my lawyer identity, and it will always be my lawyer identity— whether I’m dressed in my lucky blue suit and strutting in front of a jury box or I’m on a Zoom conference having sneakers hurled at me by my dog. As the pandemic continues, your practice of law may continue to evolve and change. Some of these changes may be for the better and some may not. Refocusing

Mary Ann Espiritu is a local criminal defense attorney and a partner at Roadman & Espiritu, Attorneys at Law. She is involved in community activism and lives in downtown Austin with her husband, Daniel, and their dog, Abby.

on your “why”—your reasons for becoming a lawyer—may give you the perspective you need to AUSTINLAWYER AL AL weather these changes.

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Cooking with the Judiciary Austin Bar’s Lawyer Well-Being Committee Sponsors Series Nothing beats stress like a good homecooked meal! Join us once a month from 6 – 7 p.m. for a cooking class led by two local judges via Zoom. Participants will cook “together” and socialize from the comfort of their own homes while making some of the judges’ favorite recipes.

OVID got you down and messing with your social plans? Nothing beats stress like a good home-cooked meal! Join us once a month from 6 – 7 p.m. for a cooking class led by two local judges via Zoom. Participants will cook “together” and socialize from the comfort of their own homes while making some of the judges’ favorite recipes. Recipes and grocery lists will be sent

AUSTINLAWYER | NOVEMBER 2020

out in advance of each session and attendance is limited to 20 participants. The first session occurred on Oct. 22 with Chief Justice Jeff Rose and Judge Lora Livingston. Registration will open within three weeks of each event. Visit austinbar.org for more details and to RSVP. Mark your calendars for these upcoming Cooking with the Judiciary events.

• Nov. 19, 2020 – Justice Chari Kelly and Judge Maya Guerra Gamble • Jan. 14, 2021 – Judges Karin Crump and Todd Wong • Feb. 25, 2021 – Associate Judge Ami Larson and Judge Kim Williams • March 25, 2021 – Judges Darlene Byrne and Leon Grizzard

• April 22, 2021 – Judge Amy Clark Meachum and JP Nicholas Chu • May 13, 2021 – Judge Jan Soifer and JP Raul Gonzalez Judges' schedules may vary slightly AUSTIN due to unforeseen LAWYER AL AL scheduling conflicts.

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Austin Lawyer, November 2020

Articles inside

As the Pandemic Continues, Refocus on Your “Why”

AYLA Community Service Days Supports Austin ISD Crisis Support Fund

AYLA Member Spotlight: Will Shindler

Leadership Opportunities in Challenging Times

Hispanic Bar Association of Austin Remembers Beginnings, Looks to Future

Austin Bar Equity Committee Hosts Media Events

Managing Burnout in the Legal Profession & Making Health and Wellness a Priority

We Have a Voice—Let’s Use It

Apply Now for 2021 AYLA/Austin Bar Leadership Academy