Austin Lawyer, November 2022

Breaking New Ground

Finding Joy (and Keeping It) in the Practice of Law

BY LEE SMITH

Recently, I was asked by a friend: “Why do you still love being a lawyer?” I pointed out that question was presumptuous, but in truth, I do still love being a lawyer. I certainly did not start out in a family of well-educated lawyers like many successful law yers of my generation did. I grew up in one of the poor historic neighborhoods in South Dallas, at a time when in Dallas there was a very strict racial divide. My parents were wonderful, loving people who tried in every way possible to give me everything they could. I attended public schools in my neighborhood until I was accepted to and graduated from St. Mark’s Preparatory School of Dallas. I was St. Mark’s first Black student graduate. I earned a Baccalaureate degree at Harvard University in 1969 and served as the first Black

managing editor of the Harvard Yearbook. I then was accepted to the University of Washington Law School, where I earned a JD. I spearheaded litigation against the Washington State Bar Asso ciation that led to an exponential increase in Black lawyers being eligible to practice in Washington state. Of that I am very proud.

I returned to Texas and was ap pointed chief regional civil rights attorney for the U.S. Department of Health and Human Services enforcing civil laws, important laws that helped many economi cally disadvantaged people to get what they had an absolute right to receive. Then, I led a litigation team that filed suit against The University of Texas and Texas A&M to strike down the Texas Constitutional provisions that de clared education related to many services as separate but equal. This directly led to a portion of

the multi-billion-dollar Permanent University Fund to be perpetually allocated to the historically Black college and university (HBCU) then called Prairie View A&M University. Even though the suit was against The University of Texas as a defendant and I was representing the plaintiffs, I guess things turned out OK because I was then offered a job with The University of Texas, where I spent the next 31 years in the legal department, retiring as associate

TOP LEFT: Lee Smith covering the 1967 Dow Chemical sit-in protest in Harvard’s Mallinckrodt Hall; TOP RIGHT: A young Smith as a student activist and managing editor of Harvard Yearbook in 1969; BOTTOM LEFT: Smith sharing his photo of a young Guatemalan girl, Gabrielle, with her mother, Ruth, and other Mayan women in Antigua, Guatemala; BOTTOM RIGHT: Smith at his induction to the alumni wall of honor at James Madison High School, the segregated Black high school in Dallas he attended before he integrated to St. Mark’s Preparatory School.

vice president for business affairs and associate vice president for legal affairs in 2017.

Recently, St. Mark’s declared my name as the ongoing name of its prestigious award: the “St.

I spearheaded litigation against the Washington State Bar Association that lead to an exponential increase in Black lawyers being eligible to practice in Washington state. Of that I am very proud.

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AUST INL AW Y ER AL AL

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Breaking New Ground

Mark’s School for Texas Lee. S. Smith ’65 Courage and Honor Distinguished Alumni Award. What I was able to do because I became a lawyer, probably had a lot to do with why they gave me that honor. Because I developed extensive knowledge and experi ence in information technology systems, security, and forensics, my lifelong passion as a photog rapher and my skill as a lawyer are combined. What I mean by this is that I know what to do to protect my work and I know what to do to help artists and others who create text or images or other creative works to protect their work. That gives me a great deal of satisfaction. Some of my work is displayed at my website , TravelerSmith (imagesofmorocco. com), and lawyers in Austin display my work even though the framed art has nothing to do with law practice. Also, through the Harvard Hutchins Center for Afri can and Afro American Research

and Harvard Archives, I continue to be a resource for documenting the history and origins of black studies at Harvard.

I love what I do. I have always loved what I do. I love it even more now as I approach my 50th year as a licensed attorney. With that said, frankly the most amaz ing thing about being a lawyer is all the fascinating people who seem to literally fall out of the stars. Not just the wealthy and

powerful, of whom there are many in Austin now; but the humble and the hard-working, who with the help of a seasoned attorney can achieve so much more than they likely could ever hope to accomplish alone. Help ing others, a hand up when they need it, without any expectation of return, is something that rich ly rewards any lawyer who gives of his time and resources. To me, that kind of giving is the purest

Lee Smith is a University of Wash ington Law School graduate with an undergraduate degree from Harvard University. He was the first Black man aging editor of the Harvard Yearbook. He retired from The University of Texas as associate vice president for business affairs and legal affairs.

form of joy. So yes, at the ripe age of 75, licensed as an attorney since 1974, I still love being a lawyer. The feeling grows. AUST INL AW Y ER AL AL

Arielle Rosvall, Coleen Kinsler

partners: associate attorneys:

The most amazing thing about being a lawyer is all the fascinating people who seem to literally fall out of the stars. Not just the wealthy and powerful, of whom there are many in Austin now; but the humble and the hard-working, who with the help of a seasoned attorney can achieve so much more than they likely could ever hope to accomplish alone.

Underserved, Unrepresented, and Eventually Unhoused

BY KARINA GARZA

are even aware that they are meant to attend docket, but that is neither here nor there.)

Karina Garza is the development and communications coordinator for Volunteer Legal Services of Central Texas. Well versed in government and nonprofit arenas, she has worked for the Department of Veterans Affairs and the Migrant and Community Action Project in St. Louis, Mo.

Volunteer Legal Services of Central Texas (VLS)’s Eviction Task Force provides life-changing representation to tenants who appear at court expecting to lose their homes.

THE NUMBERS

Over 90% of tenants facing eviction arrive to their hearing unrepresented.1 Their fate is often decided within 10 minutes or less.2 Even the term “unrepre sented” seems to suggest that the norm in eviction hearings is that tenants have legal counsel.3 (This also assumes that our neighbors

According to the Child Poverty Action Lab, eviction cases were decided in favor of the landlord in 80% of cases and in favor of the tenant in 2% of cases.4 While this data is for Dallas counties, VLS’s own data here in Travis County seems to suggest a similar night mare. When we look at statistics compiled by the Texas Access to Justice Foundation, we see that “there is approximately one legal aid lawyer for every 7,000 Texans who qualify.”5

How did we get here? How is it possible that an attorney simply being present during a Zoom hearing or physically at court means that eviction cases no longer favor landlords? Mark Melton out of Dallas asks how the legal system can even call this “constitutionally sufficient due process.”6 Short answer: It isn’t. Many in the legal community here in Texas are working to fix this injustice at the systemic level, guaranteeing that due process is the norm for tenants, regardless of socioeconomic status. But that is not enough. Systemic change is slow and arduous. Who will ad vocate for the folks being evicted today, tomorrow, next week?

ACTION ITEMS

VLS’s Eviction Task Force is in its infancy, existing only since 2021, yet the program has

already seen an 80% success rate. Jackson Walker partner and VLS board member Marilyn Brown shared that “the impact on the individual people we have been able to represent cannot be overstated. ... The VLS Eviction Taskforce also encourages all landlords to ensure they are following the appropriate steps before seeking to evict someone from their home.”

A rigged and losing game seems less so when all persons—especially underserved, underpaid, and unrepresented persons—have an advocate. “People are more willing to stand up for their rights when they have a professional on their side,” observed Scott W. Weatherford, partner at Jackson Walker. You can be that advocate. Your firm can be an assembly of advocates. We know that housing costs will continue to exponentially outpace wages, and that affordable housing waitlists will never shorten. Will you, today, personally ensure that our Central Texan neighbors have access to equal justice during the most challenging periods of their lives?

THE NITTY GRITTY OF EVICTION DOCKET

You’re fired up and ready to help. How do you join the Task Force?

1. Sign up for a docket shift at VLS’s volunteer portal, Volunteer Hub. Sign up or log in at vls.volunteerhub.com

Current docket schedule as of September 2022:

• JP5: Mondays, 8:30 a.m. via Zoom

• JP2: Wednesdays, 9 a.m. via Zoom

• JP1: Thursdays, 10 a.m. in person

2. Appear at docket! In total, you will appear for 90 to 120 minutes. VLS handles intake, eligibility requirements, and the Professional Service Agreement (PSA).

3. Hold an attorney/client meeting.

4. Request a continuance, if pos sible. You’ve met your client 30 minutes ago—most judges will grant this request.

5. Settle or prep for trial—no more than 5-10 attorney hours.

Your firm can be an assembly of advocates. We know that housing costs will continue to exponentially outpace wages, and that affordable housing waitlists will never shorten.

Jackson Walker attorneys shared their experiences with me—these anecdotes range from the very first days of the task force to the present, as Jackson Walker was the first firm to commit to regular docket ap pearances. As associate Lindsay Killeen explains, “You are able to make a huge impact on the case right away and are empowered by VLS to hit the ground running.” Brown adds, “It’s a short fuse to get the immediately necessary papers filed but VLS has fantastic forms and a robust intake process. ... The time commitment is low and the clients are so appreciative.”

Have a group of colleagues fired up and ready to help? Your firm can “sponsor” a docket day. The firms and organizations listed later in this article have already committed. Will your firm join them?

THE BENEFITS FOR YOU

• Incredible trial experience.

• Face time with judges in

court.

• Camaraderie with colleagues.

• 80% of the time, you are keeping a community member housed.

At the very least, you are en suring due process by providing a person with their day in court.

Hear more about the benefits to firms and individual attorneys from Jackson Walker attorneys:

“You are working directly with the client, running hearings and getting great experience.

I got to try a case for the VLS eviction docket as a third-year lawyer.” – Lindsay Killeen

“In a practice area where cases may take many months or even years to resolve, it is very satisfying to have such an immediate and tangible impact on a client’s life.”

– Marilyn Brown

“Volunteering for the dock et has been good for getting our younger attorneys experi ence in front of local judges and has been a nice thing

personally to give back to the community in a tangible way… but getting the firm involved in the eviction docket has also been a nice reality check to see how many people in our litigation section are willing to step up and help people in need.”– Jack Skaggs, partner

FIGHT THE GOOD FIGHT Advocate with VLS and keep our neighbors housed together, as a firm or organization.

NOW is the time to join the assembly of Austin’s top law firms and organizations that have already committed to our Eviction Task Force:

• Jackson Walker, LLP

• Austin Corporate Counsel

• Dell, Inc.

• DLA Piper

• Holland & Knight, LLP

• Pirkey Barber PLLC

Contact VLS’s Director of Pro Bono Services, Hollie Toups, at htoups@vlsoct.org today.

Visit our Volunteer Hub portal at vls.volunteerhub.com or scan the above QR code:

Footnotes

1. Matthew Desmond, “Unaffordable America: Poverty, Housing, and Eviction,” Fast Focus 22 (2015): 1–6, available at www.irp.wisc.edu/ publications/fastfocus/pdfs/FF222015.pdf.

2. Anna Blackburne-Rigsby and Nathan Hecht, “It Should Take More than 10 Minutes to Evict Someone.” The New York Times, 13 Jan. 2022, available at www.nytimes.com/2022/01/13/ opinion/housing-eviction.html.

3. National Self-Represented Litigants Project, “Name-Calling Aside: The Problem with the ‘Unrepresented’ vs. ‘Self-Represented’ Distinction.” Slaw, 20 Nov. 2020, available at www.slaw. ca/2020/12/08/name-calling-asidethe-problem-with-the-unrepresentedvs-self-represented-distinction/.

4. Child Poverty Action Lab, Dallas Court Observation Project, Spring/Summer 2021 Pilot Summary (2021), 1-4, available at childpovertyactionlab.org/resources.

5. Texas Access to Justice Foundation (TAJF), “Recent News.” TAJFStatistics, (2022), available at www. teajf.org/news/statistics.aspx.

6. Mark Melton, (presented August 23, 2022). Injustice of the Peace, [PowerPoint slides], Dallas Eviction Advocacy Center. AUST INL AW Y ER

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At the last Austin Bar Association board meeting, we talked about how the board has not historically operated as a team, with each of us handling our own projects and reporting in. Just like all of you, we all have busy lives pulling us in different directions. In order to keep the spirit and camaraderie of the Association alive, we want to encourage you

ARRIAGA , TEXAS CASA

a Part of Our Team!

join us as an active member of the team . Below are the upcoming events we have scheduled through the rest of the bar year (that we know of as of this issue). Put them on your calendar and come join us!

If you aren’t a part of a com mittee, there is still time to join. Whether you are a conventional ly “young” lawyer or not, you are invited to AYLA’s events as well.

As a graduate of AYLA, I know they are happy to have more sustaining members.

Our committees and events are open to you whether you practice at the courthouse, in front of SOAH judges, lead non-profits, or don’t traditionally use your law license at all. For more information about these events, visit austinbar.org.

• Adoption Day – Thursday, Nov. 10, 2022

• AYLA Tailgate Fundraiser Saturday, Nov. 12, 2022

• Family-Friendly Holiday Event – Saturday, Dec. 3, 2022

• AYLA YMCA Holiday Event –Sunday, Dec. 11, 2022

• AYLA Holiday Docket Call

Thursday, Dec. 15, 2022

• AYLA MLK Day Of ServiceMonday, Jan. 16, 2023

• AYLA Docket Call

Thursday, Jan. 19, 2023

• Austin Bar Foundation Gala – Saturday, Jan. 28, 2023

• AYLA Docket Call –Thursday, Feb. 16, 2023

• AYLA Diversity Bar Mixer

Thursday, March 23, 2023

• Law Day – Friday, March 24, 2023

• Easter Egg Hunt – Saturday, April 1, 2023

• AYLA Crawfish Boil –Tentative Saturday, April 15, 2023

• AYLA Docket Call –Thursday, April 20, 2023

• Bench Bar – Tentative April 28, 2023

• AYLA Docket Call –Thursday, May 18, 2023

There’s a lot to look forward to this year and next. I hope you’ll find time to join us for some of these events and initiatives. AUST INL AW Y ER

Veterans Legal Assistance Program Celebrates TAJF’s Texas Veterans Legal Aid Week

BY LESLIE SPATOLA

In honor of Veterans Day, special legal events and clinics are being held across the state. The Texas Veterans Legal Aid Coalition, a project of the Texas Access to Justice Foundation (TAJF), coor dinates the annual Texas Veterans Legal Aid Week (TvLAW), a state wide effort in honor of Veterans Day during the week of Nov. 7 to 11, to highlight the legal services available to veterans. The Texas Veterans Legal Aid Coalition is comprised of multiple legal aid programs, local bar associations, law schools, and pro bono private lawyers who provide a variety of civil legal services to qualified Texas veterans in various loca tions throughout the state.

The Austin Bar Foundation’s Veterans Legal Assistance Pro gram and the Caldwell County Veterans Service Office will cohost an in-person outreach event for veterans residing in Central Texas on Nov. 10 at the Caldwell County Justice Center.

TvLAW programs and events are scheduled throughout Texas during the week of Nov. 7 to 11. For more information, please visit texaslawhelp.org

Texas has the second-highest population of veterans in the nation. Our efforts and respon sibility to serve those who have

served their country does not end with Veterans Day. Every day, legal aid and pro bono programs assist veterans and others in need of civil legal assistance. Veterans in need of legal help can call their local legal aid program or the statewide hotline for veteran legal issues at 1-800-622-2520, option 2.

Are you a veteran in crisis or concerned about one?

You’re not alone—the Veterans Crisis Line is here for you! You don’t have to be enrolled in VA benefits or healthcare to call.

Access free, confiden tial support 24/7, 365 days a year, via phone, text, or online chat. To receive crisis assis tance, please contact the Veterans Crisis Line now!

Please dial 988, then press 1 to be con nected to a specialist by phone. Unable to call? Send a text to 838255 to begin messaging with

a specialist. Those wishing to chat with an online specialist virtually may do so by going to

Lessons Learned on the Path to Wellness

Meet the New Lawyer Well-Being Committee Chair

BY RACHEL M c KENNA

docket with an emphasis in real estate, property law, and probate. I absolutely love my job, the people with whom I work, and the cases. But this job, as many of you know, is not one for the faint of heart. The very nature of litigation is stressful, and while I both enjoy and feed off the energy of working a case, I often feel like I’m hurtling on a runaway train towards a steep cliff’s edge.

Hello everyone. I am this year’s committee chair for the Austin Bar’s Lawyer Well-Being Committee. I will be honest: The thought of writing this column (my first ever) stressed me out! The more I thought about it, however, the more I realized my own path to wellness highlights exactly why this committee’s work is so important.

First, a little about me. I am a sixth-year attorney at Almanza, Blackburn, Dickie & Mitchell, LLP. I work a heavy civil litigation

I am also a wife and mother of two young children under five. We have two older dogs and, because I must have lost my mind this summer, a five-month-old puppy. My personal life is BUSY. The constant balance between work and home is overwhelming and I often feel I’m failing at one or both.

Since becoming a lawyer, I’ve dealt with crippling anxiety, im poster syndrome, and postpartum depression (twice). Because of this, though, I’ve also learned the following important lessons on how to maintain control and ease myself back into a physically and mentally healthy state.

BE KIND TO YOURSELF

We are our own worst critics. My friends and I call it the “evil hamster that lives in my brain.”

The hamster runs on his wheel and tells me all the ways I am not good enough. When I start to reach my limits or feel my anxiety levels rise, I try to remember to silence that good-for-nothing hamster and remind myself that I am all the things the hamster is telling me I am not. And even though I am not perfect, I try hard, I have people who love me, and I am worthy of my own love as well.

FIND YOUR CHEERLEADERS

Having a good support network, whether professionally, person ally, or both, is key to improved mental health. Whether it’s a romantic partner you can lean on or office friends who take you to coffee when you’re having an off day, relying on others for support gives you the strength to look at things in the positive.

THERAPY IS A GOOD THING I fought going to therapy for years. When I finally decided to give it a try, I didn’t connect well with my first therapist. I took a break, and when things got rough again, I tried again with a new therapist who taught me skills on how to be in the moment and look at my feelings from other angles.

EXERCISE WHEN YOU CAN (BUT DON’T FOCUS ON IT SO HARD THAT IT GIVES YOU MORE STRESS!)

Everyone loves to say, “just make more time for you and your physical health,” as if I can just make more time in the day to get in a workout. When I realized that forcing myself to find time to get in specific exercise was hurting more than helping, I learned to find joy in just getting outside and being active with my family by hiking, swimming, or even just throwing a frisbee in the backyard. The movement makes me feel better, as do the interactions with my loved ones.

LIFE IS SHORT AND BEAUTIFUL

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This life is precious, and we only get one shot at it. Find the things that bring you joy and leave the things that don’t. I’ve noticed that a lot of lawyers (myself included) are terrible at saying no and often get over-involved and over-extended. Remember, you don’t have to do ALL the things at once. If it isn’t helping you emotionally, personally, or profes sionally, then don’t do it! Focus on what you enjoy and remember it’s OK to step away from things you don’t.

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Rachel McKenna is an attorney at Almanza, Blackburn, Dickie & Mitchell, LLP, specializing

Ready for Primetime

Austin Bar President Goes LIVE on Television

Austin Bar Association President Amanda Arriaga was featured on NBC affiliate KXAN News 36 in October for Hispanic Heritage Month. Arriaga is the first Hispanic female to lead the Austin Bar, and the eighth minority. During the news segment, Arriaga discussed her “Council of Firsts” initiative, in which she will seek other “firsts” in their fields to find ways of engaging others and promoting inclusion in the organization. She noted the importance of ensuring our efforts are reflective of all members and the community.

Arriaga also discussed many of the Austin Bar programs and events such as the annual gala, Adoption Day, the Veterans Legal Assistance Program, and more. Her involvement with the organi zation through membership and volunteerism is longstanding. She previously served as president

of the Austin Young Lawyers Association during the 2014-15 bar year.

ABOVE: KXAN news anchor Jennifer Sanders (left) and Austin Bar president Amanda Arriaga (right) set for the live news broadcast; LEFT: Sanders and Arriaga discussing Arriaga’s “Council of Firsts” initiative.

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Arriaga is the first Hispanic female to lead the Austin Bar, and the eighth minority.

NEW MEMBERS

The Austin Bar welcomes the following new members:

Janel Austin Benjamin Behrendt Rachel Behrendt Elizabeth Boateng

Kamela Bridges Richard Cahan Karolyne Carloss Maria Castro Alejandra Chavira Cody Coll Andreea Cruz Patricia Goddard Janis Hampton Matthew Harriger Lauren Johnson Robert Kiesling Maxwell Lewis Sonya Maharaj Kimberly Miers

Samantha Miller Bach Norwood Daniel O’Leary Alexander Oliver Melinda Pettengill Shad Robinson Alejandra Rodriguez Grace Santana Ramsey Schultz Rachel Seshan Alexander Sheppard Neil Sicarelli Lee Smith

Aimee Snow Taylor Trinh Helen Tschurr Luke Wallace Jackie Waneck

Brianna Weiner

Paige Williams

MOVING ON UP

 Nicole Olvera Cook has been promoted to partner at Locke Lord in Austin. She focuses her practice on com mercial real estate transactions and financing. Olvera Cook has extensive experience represent ing banks in financing secured by commercial real estate, such as retail, office, multifamily, in dustrial, and affordable housing projects. She regularly advises clients with respect to loan orig inations as well as loan modifica tion, workouts, assumptions, and enforcement proceedings.

 Steve Toland now leads the Austin office of the FBFK law firm. He focuses on federal and state criminal defense, with an emphasis on federal white-collar defense and investigations.

Toland represents individuals and companies in all phases of investigation and criminal prosecution, with particular focus on advising and counseling those facing a governmental investigation with the goal of preventing prosecution. Prior to joining FBFK, Toland was a founding and managing partner at Austin-based Peek and Toland.

 Daniel Durell has been pro moted to partner at Locke Lord in Austin. He has broad litigation experience, including putative class-action defense, covering all stages of litigation from pre-trial matters through appeal and post-judgment collection. Durell represents both plaintiffs and defendants in disputes related to consumer-protection statutes, breach of contract, breach of warranty, real estate transactions,

mortgage lending and servicing practices, partition rights, business divorces, and leasehold disputes.

 Ashley Wheelock has been promoted to partner at Locke Lord in Austin. She concentrates her practice on transactional and regulatory healthcare matters.

Wheelock is adept in mergers, acquisitions, joint ventures, reorganizations, and formations of new professional entities. Her practice also includes advising healthcare providers and organi zations on day-to-day operational issues and dealings involving state and federal compliance, telemedicine and telehealth, Medicare and Medicaid en rollments, state licensing, and enforcement issues.

ABOVE: (from left) Cook, Durell, Toland, Wheelock.

Grants Awarded to Veterans Legal Assistance Program

Funds Received Will Assist Veterans

BY DOUG LAWRENCE AND LESLIE SPATOLA

With the backing of the Austin Bar Association and Austin Bar Foundation board of directors and members, the staff of the Veterans Legal Assistance Program has applied for several grant funding opportunities from organizations that aim to assist veterans. Doug Lawrence, managing attorney of the program, is pleased to announce that the following foun dations have graciously agreed to support this deserving project in its mission to expand the provision of charitable legal aid services and educational programs to our local veteran community:

• The Greater Round Rock Community Foundation: $5,000 donated to assist the veteran residents of Williamson County who would otherwise be considered ineligible for legal aid services;

• The State Bar of Texas Litigation Section: $5,500 donated to hire a summer law student intern; and

• The Austin Community Foundation: $1,000 donated to update program equipment.

The Austin Bar Foundation’s Veterans Legal Assistance Program organizes and provides monthly free legal advice clinics for qualified, low-income veterans, active-duty, and reserve-duty servicemembers, as well as their families, who reside in or have a civil legal issue in the jurisdic tional areas of Bastrop, Blanco, Burnett, Caldwell, Gillespie, Hays, Travis, and Williamson counties. In addition to program staff, the Austin Bar Association’s board and members, along with other local attorneys and students from The University of Texas School of Law volunteer at our monthly civil legal aid clinics to provide help and advice to a much-underserved community. Through partnerships with Bar members, other local

legal aid programs, and veteran resource offices, the Veterans Le gal Assistance Program improves the justice system by connecting volunteer attorneys who provide

pro bono legal advice and/or direct services to members of the veteran community who may otherwise be unable to access it. Since Jan. 1, 2022, this small but

necessary program has proudly or ganized eleven legal clinics, which were held in Austin, Lockhart, and Fredericksburg. The Veterans Legal Assistance Program staff and volunteers are ecstatic to have gained new support from the generous organizations above, and look forward to the opportunity to continue serving veterans and their families at the remaining legal clinics scheduled this year.

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LAW

Divorce Custody Same-Sex Marriage Appeals Modifications

LAW FIRM, P.C. Mediations Arbitrations

Client-Centered Approach to Family Law

Here. We’re Open. We’re Ready to Help. Video Conferencing and In-person Social Distancing Now Available

Attorney Jimmy Vaught, Board-Certified in Family Law and Civil Appellate Law by the Texas Board of Legal Specialization

Attorney Jillian French Board-Certified in Family Law by the Texas Board of Legal Specialization

Attorney Erin Leake Board-Certified in Family Law by the Texas Board of Legal Specialization

The Veterans Legal Assistance Program staff and volunteers are ecstatic to have gained new support from three generous organizations.

Austin and Travis County Celebrate National Adoption Month

Austin Bar Association Continues Supporting Forever Families

BY CALEB ARMSTRONG, AUSTIN BAR CLE, SECTIONS, AND EVENTS MANAGER

Austin Adoption Day is set to take place on Nov. 10 as part of National Adoption Month. Each year, the Austin Bar serves as a sponsor for Adop tion Day in Travis County. This year, 17 families will change forever as children and their adoptive families meet at the Gardner-Betts Juvenile Justice Center to finalize the process. The event will be in-person this year, too! It was changed to vir tual during recent years because of the pandemic.

This year 17 families will change forever as children and their adoptive families meet at the Gardner-Betts Juvenile Justice Center to finalize the process.

Adoption Day is a labor of love for Austin Bar members who work alongside employees of the Texas Department of Family and Protective Services (DFPS) and Court Appointed Special Advocates (CASA) to change the lives of children and the families they’re joining. From coordinating with judges to work on the adoption cases, to volunteering their legal ex pertise, free estate planning, securing toys through donation drives, making gift baskets, and more, members are dedicated to this cause.

Events like this will take place across Texas during the month of November, celebrating families of all sizes. DFPS is always searching for adoptive

ABOVE: Looking forward to celebrating in-person once again, we look back at volunteers dressed as characters from The Wizard of Oz, who brightened the day of families at Adoption Day in 2018; MIDDLE LEFT: Adoption Day Committee Chair Denise Hyde addressing Adoption Day families vir tually in 2021; BOTTOM LEFT: 126th District Court Judge Aurora Martinez Jones enjoying the presentation along with the virtual audience in 2021.

parents and those willing to open their homes to children in need. If you’re interested in becoming a foster-to-adopt parent, you can check out this website: adoptchildren.org You’ll find details on children available for adoption, adoption meetings, requirements, and more. UST INL AW Y ER

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Mark Pryor

Rick Cofer

Jaynie Badgett

Liz Duggan

Ramey Ko

Jeffrey Connelly

Geoffrey Puryear

Megan Rue

Natalia Tsokos

The Long Road to Law

Meet Austin Bar Member Wesley West Who’s Travelled the World and Landed In a Perfect Position

Wesley West practices civil litigation at O’Connell West, PLLC. The native Texan uses his law expertise to serve clients and the military. He attended The Judge Advocate General’s Legal Center and School in Charlottesville, Va. and South Texas College of Law in Houston. West enjoys giving back to his commu nity. He has had many titles, and one of his favorite is the title of “Grandpa.”

AUSTIN BAR: Tell us about your background.

WEST: Born in Comanche, Texas, my family moved to Bastrop in 1981, where my father worked at the Texas Army Na tional Guard (TXARNG) Training Center at Camp Swift. I gradu ated from South Texas College of Law in 2005, and sat for the bar during the summer of 2005. After graduation, I started my legal career with the TXARNG and eventually became a judge advocate in 2007. I worked fulltime for the TXARNG as a legal advisor to military commanders until 2021. In my last assignment with the TXARNG, I served as the deputy staff judge advocate for the 36th Infantry Division in Camp Arifjan, Kuwait. I have since transferred to the U.S. Army Reserve, where I serve as the chief of administrative law for

the 63rd Readiness Division in Mountainview, Calif.

I am married to the absolute love of my life, Kristy. I have a son, Reid, who will likely be president one day. I have two bonus kids, Logan and Karleigh, whom we love dearly; mostly because they have rewarded us with three grandbabies—Greysen (10), Brodie (5), and Charlotte (9 months). I mean, the kids are ok, but the grandkids take the cake.

AUSTIN BAR: What was your idea of a “dream job” growing up? What profession did you picture for yourself?

WEST: I wanted to be a veterinarian, then a truck driver, then a race car driver—failed at achieving any of these dreams. After high school, I wanted to be an architect. After discovering I have no artistic talent, I retreated to business and discovered that

practicing law might be fun. Boy, was I right.

AUSTIN BAR: What’s a favor ite thing to do or place to go in Austin?

WEST: My favorite place in Austin…I have so many. I love a walk or run around Town Lake. I like to take in the grounds at the capital, or fling a frisbee in Zilker Park. My favorite places are the Broken Spoke and the Saxon Pub. I used to love eating brunch at Green Pastures and shopping all the junk stores on South Congress. Many of my favorite places have disappeared from the landscape. I love Mongers and Iron Works BBQ, too!

AUSTIN BAR: What is your current job, how long have you had it, and what do you enjoy most about it?

WEST: I am currently a partner with Doug O’Connell at O’Con nell West, PLLC. I manage the civil litigation side of our practice while Doug, well, we all know what Doug does!

AUSTIN BAR: Tell us a hobby or something about you people may be surprised to know?

WEST: I am fairly predictable, so everyone that knows me knows I love to fish in Texas bays. I call it salt water therapy. Not surprising, but I do love to serve my community. I am on the board of trustees for Thrall Independent School District and a member of the Taylor Rodeo Association. I am an avid supporter and sponsor of Thrall’s

Future Farmers of America (FFA) booster club. Watching kids work with animals and seeing their accomplishments gives me great hope for our future. They learn independence, problem solving and compassion. I LOVE baseball, and I am a huge Astros fan—Go ‘Stros!

AUSTIN BAR: Choose your favorite legal drama from television and tell us why: Law & Order, Night Court, LA Law, Perry Mason, or another?

WEST: Boston Legal—many probably do not even remember, but I loved William Shatner as Denny Crane! In fact, our security platoon leader coined my call-sign as “Denny Crane” on our deploy ment to Afghanistan in 2008.

AUSTIN BAR: Which tele vision judge would you most rather go before on a case: Judge Mathis, Judge Judy, Judge Steve Harvey, Judge Joe Brown, or any other?

WEST: Steve Harvey any day— just so I can get up close and personal to that ‘stache!

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“ ” After high school, I wanted to be an architect. After discovering I have no artistic talent, I retreated to business and discovered that practicing law might be fun. Boy, was I right.

Wesley West and his wife, Kristy.

Readable Contracts Part 4

Archaic Legalese

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

This is part 4 of a series based on the study, “Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language,”1 in which the authors compared contract language with everyday written English. The series concludes with my comments on a few words found in a 1.1 million-word corpus of commercial contracts. But first, I’ll acknowledge reality.

Lawyers prepare commercial contracts using forms and templates, and that saves time and money. It also provides assurance—risk avoidance. Sup pose the form contract has been used in 20 or 30 or 50 other transactions, all of which closed and were performed without litigation. By relying on that form, you avoid risk, reassuring yourself and your client that this transaction, too, will be per formed without serious problems. So retaining and re-using forms is a good practice, even if the forms use some archaic legalese.

But may I offer a few suggestions?

The following words are unnecessary because there are everyday equivalents, and some of them cause problems—albeit rarely—so I recommend deleting and replacing them. Parentheses show the number of appearances in the contracts corpus.

AFOREMENTIONED (15), AFORESAID (49)

The main problem with afore mentioned is not that it’s a mul tisyllabic monster; the problem is that it’s vague. As I said of aforementioned in 2008: “Why use this outdated word when its shorter cousin, aforesaid, is available? I’m kidding. Eliminate them both and specify what you’re referring to.”2 In addition,

the meaning of aforesaid has been construed in reported appellate decisions at least five times.3

HEREIN (1093), HEREINABOVE (7), HEREINBEFORE (10), HEREINAFTER (120)

Again, the problem is vagueness. As the legal-language expert David Mellinkoff put it, “Where? This sentence, this paragraph, this contract, this statute? Herein is the start of a treasure hunt rather than a helpful reference. The traditional additives are equally vague: hereinabove hereinbefore hereinafter ….”4

Also, herein’s meaning has been litigated in at least 11 reported cases.5

SAID (214)

When used as a demonstrative pronoun or “pointing word,” said adds no precision, only a legalistic tone. As the con tract-drafting expert Tina Stark

says, “Said and such are pointing words. They refer to something previously stated. Replace them with the, a, that, or those.”6 And if “that party” is vague, changing it to “said party” won’t clear it up. And said’s meaning has been litigated 30 times.7

WHEREAS (224)

This word appears in the formal, archaic recitals that proceed with a series of paragraphs beginning with “WHEREAS” and conclude with “NOW THEREFORE …”

But Kenneth Adams, a leading expert on contract language, doesn’t like whereas: “The recit als serve a storytelling function. They’re the one part of a contract that calls for simple narrative prose. So don’t begin recitals with whereas, as this meaning of whereas—‘in view of the fact that; seeing that’—is archaic.”8

WITNESSETH (21)

At first, I found only 8

occurrences of witnesseth in the contracts corpus, and I was surprised but happy to think that its use was declining. Then I searched for it with a space between each letter: W I T N E S S E T H, and found 13 more. I think it needs to go, and so does the legal-language expert Bryan Garner: “This archaism is a traditional but worthless flourish.

… There’s absolutely no reason to retain witnesseth. It’s best deleted in modern contracts.”9 Ultimately, retaining these words is probably harmless, but removing them is, too.

Footnotes

1. Eric Martinez, Francis Mollica, & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, Cognition 224 (2022).

2. Wayne Schiess, Ten Legal Words We Can Do Without, Austin Lawyer 6 (May 2008).

3. 2D Words & Phrases 294 (2020).

4. David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage 283 (1992).

5. 19A Words & Phrases 36-37 (2007 & Supp. 2021).

6. Tina L. Stark, Drafting Contracts: How and Why Lawyers Do What They Do 257 (2d ed. 2014).

7. 38 Words & Phrases 29-31 (2002 & Supp. 2021).

8. Kenneth A. Adams, A Manual of Style for Contract Drafting 20 (3d ed. 2013).

9. Bryan A. Garner, Garner’s Guidelines for Drafting & Editing Contracts 454 (2019). AUST INL AW Y ER AL AL

Lawyers prepare commercial contracts using forms and templates, and that saves time and money. It also provides assurance—risk avoidance.

AYLA PRESIDENT’S COLUMN

BLAIR LEAKE , WRIGHT & GREENHILL, P.C.

Building a Better Law Firm By Giving Grace

A Case for Paid Parental Leave

have never—and will never—expe rience such financial ease when it comes to living and raising a fami ly in Austin as did our colleagues from earlier generations.

The opinions expressed in Entre Nous are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.

Parental leave is one of the most important ben efits law firms offer—or, if we are being honest, that we so often fail to meaning fully offer—in terms of attracting and retaining talented young employees. If there is ever a time in someone’s life that you owe it to the world to show them grace and support, it usually coincides with a birth or a death. As to the former, many of you know the exhausting toll of raising a newborn. Some of you know that toll tenfold because you did so while suddenly experi encing little or no cash flow—as if raising children wasn’t expensive enough as it is.

There are also many of you who really don’t know that toll, because (i) your spouse did most—or all—of the heavy lifting, and/or (ii) your spouse did not work outside the home, and thus your income did not temporarily plummet when your children were born. If you are in the first category, you should give your spouse the sincerest of hugs and beg forgiveness. If you are in the second category, you should thank your lucky stars you were born in a generation where that was possible. Younger attorneys

Before we get into why parental leave is so important for child de velopment—and thus for building a healthier, smarter, and more mentally stable citizenry—let’s first talk about why it makes financial sense for your law firm. A 2017 Ernst & Young survey found that more than 90% of companies with paid leave policies said their policy had a positive or neutral impact on profitability, productivity, and morale. A 2016 Deloitte study found that 77% of workers said paid leave offerings impacted their decision about where to work. A 2012 analysis from the Center for American Progress found that replacing an employ ee—which is inevitable when a law firm drives a new parent to quit because the law firm refuses to provide paid time to engage in sufficient early childhood parental care—can cost an employer about one-fifth of that worker’s annual salary. Rest assured, the talented paralegal or attorney you drive away because you are withholding pay when they are at their most vulnerable will not be returning to work for you when they re-enter the workforce. In contrast, the employees you take care of and treat like family during times of need will be loyal, hardworking employees once their leave ends. Do not let anecdotal exceptions make the rule.

If none of the above moves the needle for you, perhaps building a better citizenry long-term might do so—especially in an era when mass shootings, political violence,

and uncertain times only seem to be getting worse. According to Harvard University’s Center on the Developing Child, newborn brains form one million new neural connections per second through experience, interaction with adult caregivers, and envi ronmental stimuli. “All [brain] de velopment builds on what comes before, so when children experi ence stable, nurturing relation ships, it fosters the development of healthy circuitry,” per Harvard professor Jack P. Shonkoff, M.D., “and when children experience uncertainty or instability, or abu sive or neglectful relationships, it literally disrupts the circuitry in the brain’s architecture as it is being built.” A 2021 study published by the peer-reviewed Infancy journal found children of mothers who received paid maternity leave had significantly higher language scores years later as toddlers. A 2022 study performed by NYU professors found that infants with increased activity of higher-frequency brain waves were 7.39 times more likely to have mothers who had been provided paid maternity leave. These results are ostensibly either because paid leave gave the moth er the financial ability to serve as a one-on-one caretaker longer and thus afford the child more

individualized attention, and/ or because the lowered financial stress resulted in less burnout and correspondingly fewer instances of neglectful interactions between parent and child.

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Disgracefully, the United States is one of only eight coun tries in the world that does not provide some form of mandated paid maternity leave, and the only high-income country that still miserly and unconscionably refuses to do so. A 2016 Pew Re search Center survey found that “older adults, particularly older men, are the least supportive of fathers taking time off from work after the birth or adoption of a child,” which perhaps explains why an industry historically run by older men so often callously neglects to offer paid parental leave—especially paternity leave. Many of the politicians who preach family values as a societal panacea are the same politicians who hypocritically vote against mandated paid maternity leave. Attorneys who believe in the im portance of strong family bonds should likewise put their money where their mouths are and make those bonds financially feasible for their employees—and improve both their law firms’ profitability and our society as a whole while they are at it.

AYLA Member Spotlight: Kirpal Singh

AYLA: Tell us about your background.

SINGH: Before joining Michael Best, I worked for a specialty bar association. I managed their political program and amicus work.

My firm works with companies in all kinds of industries, as well as trade associations, nonprof its, educational institutions, governments, family trusts, and high-net-worth individuals.

AYLA: How long have you been involved in AYLA, and what’s been your best AYLA experi ence so far?

SINGH: I’ve been a member for

the last four years. It has been a great way for me to meet others in the Austin legal community.

AYLA: What was your child hood dream job?

SINGH: My brother and I penned a letter to President Reagan when we were very young. We asked him to force NASA to bring us on as the first child astronauts. Sadly, we never received a reply. As you can tell, I really wanted to be an astronaut.

AYLA: What are some of the things you enjoy most about living in Austin?

SINGH: I split time between

AYLA’s 23rd Annual Judicial Reception

“Judging” By the Turnout, a Huge Success

For the first time since the Covid-19 pandemic, on Thursday, Sept. 22, 2022, the Austin Young Lawyers Association held its 23rd annual Evening with the Judiciary at The Austin Club.

This reception provides AYLA members with an opportunity to share an evening of great food and even better conversation with local, state, and federal judges. We welcomed one of our largest turnouts of both attorney attendees and judges.

AYLA members who took advantage of this opportunity were treated to an entertaining evening with judges from courts of all levels.

AYLA extends a special thank you to all of the judges who at tended and to all event sponsors for making this successful event possible.

For more information about other outstanding AYLA events, please visit ayla.org.

Austin and Denver. Over the years, what I have really enjoyed about Austin are the people. It is a great mix of the nation’s well-educated and creatives. It creates a sensory feel I don’t really get in Denver.

AYLA: What is your best piece of advice for fellow young attorneys?

SINGH: Find a great mentor and a sponsor—someone who is willing to share with you their experiences in the profession—to help you learn and grow. It’s also very important to have someone who will vouch for you.

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1. Emma Hilbert, Justice Chari Kelly, and Bev Bass; 2. Blair Leake, Sarah Harp, Maff Caponi, Ryan Estes, Drew Harris, Austin Kaplan, Katie Fillmore, Judge Raul Gonzalez, and Caitlyn Haney Johnston; 3. Justice Thomas Baker, Justice Gisela Triana, Judge Aurora Martinez Jones, and Josh Crowley; 4. Justice Debra Lehrmann, Judge Jan Soifer, Judge Lee Yeakel, Judge Aurora Martinez Jones, Judge Karin Crump, and Judge Todd Wong; 5. Judge Tom Ruffner, Sam Denton, Judge Dustin Howell, and Blair Leake.

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Kirpal Singh works as director of market research at Michael Best. He splits his time between Denver, Colo. and Austin.

The following summaries are of opinions issued by the Third Court of Appeals during September 2022. The summa ries provide an overview; please review the entire opinions. Sub sequent histories are current as of Oct. 4, 2022.

ADMINISTRATIVE LAW: Court reverses trial court and reinstates agency’s denial of benefits.

ERS of Tex. v. Walker, No. 0321-00321-CV (Tex. App.—Austin Sept. 14, 2022, no pet. h.) (mem. op.).

Walker sought recovery of ben efits under her accidental-death insurance policy following her husband’s death. Husband was struck by five cars and killed while attempting to cross a Dallas freeway on foot. Husband was a dependent and insured under Walker’s policy. ERS denied the claim, concluding benefits were excluded because husband’s death resulted from, or was substantially contributed to by, drug use or intoxication. The trial court reversed ERS’s decision. The court of appeals noted that the toxicology reports showed high levels of meth and cocaine in husband’s blood. The autopsy and police report listed blunt force

injuries as the immediate cause of death without identifying any other condition contributing to death. A forensic toxicologist opined that husband’s intoxica tion substantially contributed to his ill-advised decision to cross the busy highway and to his death. Walker failed to establish either that her husband was not intoxicated, that his intoxication did not substantially contribute to his decision to cross the freeway, or that his drug use did not impair his mental faculties. The court reversed and rendered.

MANDAMUS: Court grants relief from erroneous transfer to district court.

In re YCUL, LLC, No. 03-22-00358CV (Tex. App.—Austin Sept. 29, 2022, orig. proceeding) (mem. op.).

Relator filed suit in JP court for forcible detainer against occu pants of a property. JP rendered judgment for Relator. Occupants appealed to county court. Real

party in interest intervened, disputing ownership of title, and requested a transfer to district court. The county court trans ferred the matter to district court. The court of appeals observed that JP and county courts have exclusive jurisdiction over forcible detainer suits; district courts lack jurisdiction over such suits. The court held that even a pending title dispute does not expand the district court’s jurisdiction to hear forcible detainer disputes. Accordingly, the county court abused its discretion. The court further concluded that Relator lacks an adequate remedy by appeal because the speedy and inexpensive procedure provided in forcible-detainer actions would be undermined by proceeding in district court that lacks jurisdiction. The court granted mandamus relief. AUST INL AW Y ER AL AL

to the Austin Bar Association

Annual Sponsors!

Annual sponsors receive benefits such as social media mentions, a marketing email to the Austin Bar membership and much more.

complete information visit the sponsorship page at www.AustinBar.org or call 512.293.9277.

Senior District Judge

Stephen Yelenosky

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

4 Key Performance Indicators Any Law Firm Can Use to Measure Success

Indicators (KPIs) may sound like noth ing but jargon, it essentially refers to the business metrics that evaluate a company’s performance. Tracking KPIs takes time and effort, but the rewards are worth it when you see a big difference in your revenue and client acquisition processes. Law firm KPIs should be measurable, specific, and targeted to the particular goals of your business to give you relevant data and information. We believe your firm can use four specific metrics to gauge and build on its success.

1. Client and matter development KPIs

What is your approach to developing a relationship with a client? How efficiently are you resolving their cases? Tracking these client develop ment KPIs will help you gain a deeper understanding of your client base:

3. Financial KPIs

Every law firm strives to maintain healthy finances and profitability. You don’t need an accounting degree to strategically assess financial per formance to improve your decision-making. Keep these KPIs in mind to ensure your business meets its financial goals:

2. Marketing KPIs

Marketing your firm will help you to generate leads and capture interest from your target audience. If you’re spending money to acquire as many new clients as possible, you’ll want to track your effort to ensure that you’re not simply throwing cash at a strategy that isn’t creating optimal results. Here are some law firm marketing metrics to keep a close eye on:

4. Lead Analysis KPIs

Acquiring new clients is crucial to your law firm’s success, but finding them can be challenging. Check which channels bring the highest num ber of leads by recording how visitors or prospective clients find your firm.

Hopefully, you now have a better understanding of KPIs and why you should be tracking them for your law firm. However you measure success, LawPay has the tools to help you achieve it.

The following is a summary of an opinion issued by the Fifth Circuit. The summary is an overview of particular aspects of the opinion; please review the entire opinion.

Craig Wells, and Amy Wells (collectively, “BACE defendants” or “signatories”). The agreement also included a forum-selection clause consenting to jurisdiction in Texas.

Approximately two years later, Bradley Morton—Amy Wells’s son and Craig Wells’s stepson, who had been a manager at BACE but not a signatory to the franchise agreement, left BACE to become a branch manager at JTL, a competing staffing business that operates in the same territory as the BACE franchise. Craig Wells began soliciting Link’s former BACE clients to JTL. Further, Craig and Amy Wells had begun operating another competing staffing company, PayDay, and were diverting and soliciting former Link clients to it. This led Link to formally terminate the franchise agreement. Additionally, Link sent a cease and desist letter to JTL, which informed JTL of the BACE fran chise agreement. JTL refused to comply with the cease and desist demand, saying it was not a signatory to the agreement.

FORUM-SELECTION

CLAUSES: In a matter of first impression in the Fifth Circuit, a non-signatory to a forum-selection clause may nevertheless be bound by the clause if, in light of a number of factors, the non-signatory is so closely related to the dispute or another signatory that it becomes foreseeable that the non-signatory will be bound.

Franlink Inc. v. BACE Servs., Inc., No. 21-20316, 2022 WL 4533725 (5th Cir. Sept. 28, 2022).

Amy and Craig Wells entered into a franchise agreement with Franlink Incorporated (“Link”) in 2007, which they renewed in 2017, allowing the Wellses to operate a franchise staffing company, BACE Services (“BACE”), in Jacksonville, Fla. The franchise agreement included a covenant not to compete and a non-solicitation provision that applied to BACE,

Link filed a complaint in the Southern District of Texas based on the forum selection provision of the franchise agreement. It named BACE, Craig and Amy Wells, Morton, JTL, and Pay Day—all non-Texas residents—as defendants. The non-signatories to the franchise agreement (Morton, JTL, and PayDay) filed a motion to dismiss for lack of personal jurisdiction, arguing the agreement’s forum selection clause did not apply to them; and that without the forum selection clause, the district court lacked jurisdiction over these out-ofstate residents. The district court denied their motion, holding that

the agreement’s forum selection clause applied to the non-sig natories because they were “so closely related” to the signatories that it was “foreseeable” they would be bound to the forum-se lection clause. The district court then proceeded to a bench trial, after which it awarded Link $378,562.22 in damages, injunctive relief, and more than $840,000 in attorney fees and costs. The defendants appealed. On appeal, the non-signatories argued that they were not bound by the franchise agreement’s forum-selection clause, among other provisions, because they did not sign it. As a matter of first impression, the Fifth Circuit adopted the so-called closely-re lated doctrine, under which non-signatories may be bound to a forum-selection clause if they have a sufficiently close relation ship to the signatories and the dispute. Although the court not ed “good reason to be dubious of the doctrine,” it followed all other circuits that considered it in adopting the doctrine. Under the formulation adopted by the court, a few fundamental factors determine whether non-signa tories are sufficiently related to be bound by a forum-selection clause: (1) common ownership between the signatory and the non-signatory, (2) direct benefits obtained from the contract at issue, (3) knowledge of the agreement generally, and (4) awareness of the forum-selection clause particularly.

Applying those factors to the case at hand, the court held that Morton and JTL were not bound by the forum-selection clause but PayDay was. Neither Morton nor JTL, the court determined, shared common ownership or

control with the signatories. They likewise did not enjoy any direct benefits from the franchise agreement. And there was no evidence that either was aware of the franchise agreement’s forum-selection clause. PayDay, by contrast, was owned by the Wellses, who were signatories and also owned BACE, also a signatory. The Wellses enjoyed a direct economic benefit from the franchise agreement and, at least in part, transferred that benefit to PayDay. And, finally, PayDay, through its owners, the Wellses, was aware of the franchise agreement’s terms, including the forum-selection clause. PayDay was thus bound by the forum-se lection clause.

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

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Under the formulations adopted by the court, a few fundamental factors determine where non-signatories are sufficiently related to be bound by a forum-selection clause.

Apply Now for the Next Leadership Academy Class

Applications for the 2023 AYLA/Austin Bar Leadership Academy are Open

The Austin Young Lawyers Association/ Austin Bar Leader ship Academy assists Austin-area lawyers in making a difference in our community and in service to the Austin Bar. A class of approximately 30 mem bers of the Austin Bar and AYLA will be selected from applications submitted by lawyers of all areas of practice, firm size, and levels of experience.

ABOUT THE ACADEMY

The Academy will begin with a retreat on Jan. 13, 2023,

followed by a series of mid-day or happy-hour presentations during which participants will network with, and enjoy presentations by, leaders in various areas of practice and leaders in the community. The course will culminate with the organization of a class project.

The enrollment fee for government employees and public-interest attorneys is $300; for all other attorneys the fee is $400. The fee covers the retreat, meals, and materials. If selected, payment must be made in full by

Dec. 2, 2022. Scholarships may be available to those who need assistance.

APPLICATION DEADLINE Friday, Nov. 18, 2022.

QUESTIONS?

Please direct any questions to the Leadership Academy co-chairs: Sam Denton (samuel. denton@gmail.com) and Gracie Wood Shepherd ( gwshepherd@ fmltlaw.com).

APPLY TODAY

more details and to apply, scan the QR code below.

The following are summaries of selected criminal opinions issued by the Third Court of Appeals from March and April 2022. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Oct. 1, 2022.

drove their patrol car to where Lamb’s car was parked, and parked the patrol car, with its headlights and overhead lights on, close to and facing Lamb’s car. The officers got out of the car and approached Lamb’s vehi cle, with one officer approaching the driver’s side and the other officer approaching the passen ger’s side. Both officers shined their flashlights on Lamb, asked Lamb to display her hands, asked for her identification and keys, and asked her to exit the vehicle.

Lamb was engaged in criminal activity, and their detention of her was illegal.

SEARCH AND SEIZURE – INVESTIGATIVE DETENTIONS AND REASONABLE SUSPICION:

Police-citizen interaction in parking lot was not consensual encounter, and officers lacked reasonable suspicion to detain defendant.

State v. Lamb, No. 03-20-00552CR (Tex. App.—Austin Mar. 24, 2022, no pet.) (mem. op., not designated for publication).

Lamb was charged with driv ing while intoxicated following an encounter with police officers in the driveway of a parking lot at a drug store. Lamb had been parked in her car with the headlights off, watching a DWI traffic stop of her friend’s vehicle on the other side of the road. It was around midnight and the drug store was closed. Two police officers who had been involved in the stop saw Lamb’s vehicle,

Neither officer told Lamb that she was free to leave. At the end of the encounter, Lamb was arrested for DWI. Prior to trial, Lamb filed a motion to suppress, arguing that she was subjected to an illegal search and seizure. The trial court granted the motion to suppress, and the appellate court affirmed. The court first rejected the State’s contention that the police interaction with Lamb was a consensual encounter. The evidence at the suppression hearing showed that the officers were in uniform, they parked their patrol car close to and di rectly facing the front of Lamb’s car, and the service weapon of one of the officers appeared to be visible. Further, the patrol car’s headlights and overhead lights were shining on Lamb’s car, and the officers were shining their flashlights on Lamb as they approached. The court concluded that given this evidence, the trial court reasonably found that the officers’ conduct “would lead a reasonable person to feel they were not free to leave.” The court next rejected the State’s contention that the officers had reasonable suspicion to detain Lamb. There was no evidence that the officers had witnessed Lamb operating her car without its headlights, and, as one of the officers acknowledged, it was not a traffic offense to sit in a parked vehicle without the headlights on in a closed business’s parking lot, nor was it a crime to watch a traffic stop. Thus, the officers had no reason to suspect that

SEARCH AND SEIZURE – DRIVING WHILE INTOXICATED IN “PUBLIC PLACE”: Definition of “public place” for purposes of DWI statute included residential parking garage with limited access.

State v. Vaughn, No. 03-2100300-CR (Tex. App.—Austin Apr. 5, 2022, pet. ref’d) (mem. op., not designated for publication).

Vaughn was arrested for driving while intoxicated in the parking garage of an apartment complex in downtown Austin. Prior to trial, Vaughn filed a motion to suppress, arguing that the officers did not have reasonable suspicion or probable cause to believe that she had committed the offense of DWI, which requires operating a motor vehicle in a “public place.” The trial court granted the motion to suppress, concluding that the garage was not public because of various features that prevented access by non-residents. The appellate court reversed. The court observed that the statutory definition of “public place” was “any place to which the public or a substantial group of the public has access and includes … the common areas of … apartment houses.” The court had held in previous cases that parking lots of apartment complexes were public places, and it applied that reasoning to the garage in this case. The court concluded, “Even if there may be some circumstances in which an apartment parking garage is not a public place, under the circum stances of this case—regardless of whether we term it a “garage”

or “lot”—the [complex’s] parking structure is a ‘common area’ of an apartment house and there fore falls under the definition of ‘public place’ ‘to which the public or a substantial group of the public has access.’”

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Zak Hall is a staff attorney for the Third Court of Appeals. The summaries repre sent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.

It was not a traffic offense to sit in a parked vehicle without the headlights on in a closed business’s parking lot, nor was it a crime to watch a traffic stop.

Austin Bar Foundation Recognizes New Fellows

The Austin Bar Association is excited to announce the newest Life Fellows of the Austin Bar Foundation for 2022. These fellows proudly support our charitable work through dedicat ed service and donations to the foundation. We are thankful for their commitment to the Austin Bar Foundation.

NEW LIFE FELLOWS FOR 2022:

Kenneth L. Owens, Texas Health and Human Services Commission Wesley C. Watts, Gunderson Dettmer

Support from fellows plays a huge role in the continuation of Austin Bar initiatives, programs, and events. Are you interested in becoming an Austin Bar Foundation Fellow? Learn more about your opportunities with the Austin Bar Foundation.

FELLOWS

Attorneys who contribute to the Austin Bar Foundation through yearly donations of $200 for ten years.

LIFE FELLOWS

Attorneys who complete a $2,000 contribution to the Austin Bar Foundation.

SUSTAINING FELLOWS

Attorneys who have made it to Life Fellow status and continue contrib uting to the Austin Bar Foundation each year.

We are welcoming new fellows. Get started today! Contact Marissa Lara-Arebalo at marissa@austinbar.org.

Anji

Is My Client Really a Veteran?

Insight for Attorneys on Cases with Veterans

BY DOUG O’CONNELL

Doug O’Connell is a partner at O’Con nell West, PLLC in Austin and Killeen. He served 30 years in the Army and Army National Guard with deployments to Iraq, Afghanistan and Northwest Africa, and retired in 2017 at the rank of Colonel.

even among prior servicemembers as to who is a veteran. Simplified, the term “veteran” means anyone who served on active duty in one of the branches of the military, who received a discharge that was something other than a dishonor able discharge.2 This is the oper able definition used to determine if the veteran is eligible to receive benefits from the Department of Veterans Affairs (VA). Under this legal definition, servicemembers in the National Guard or Reserve components who are never called to active duty (initial entry train ing and other active-duty tours for training do not count) are not technically “veterans”; however, they are commonly considered veterans and are still eligible for many other benefits related to their service. Foreign service or combat duty is not a consideration when determining veteran status.

The U.S. Department of Veterans Affairs estimates there are 19 million living veterans in the United States, with 1,567,233 residing in Texas.

Of those veterans, the largest chunk is “Gulf War era” veterans, defined as those who served from August 1990 to the present.1 As a result, it’s possible that you will encounter a client who is, or claims to be, a veteran. Since vet eran status can be an important factor in many different practice areas, this article is designed to help you understand what exactly makes someone a veteran and how you can be sure.

WHAT IS A VETERAN?

You may have heard different terms to describe veterans, such as “combat veteran” as distinguished from a “peacetime veteran.”

There is significant confusion,

Under Texas state law, a veteran is someone who served in the Army, Navy, Air Force, Coast Guard, or Marine Corps; the Unit ed States Public Health Service; the Texas Military Forces (National Guard & State Guard); or the reserves of one of those branches, and who received an honorable discharge.3 Interestingly, under a strict reading of the current law, honorable service in the U.S. Space Force would not render someone a veteran under Texas law.

Under either definition, the type of discharge and more spe cifically the characterization of service is important to determin ing veteran status.

MILITARY DISCHARGES

Generally, there are eight types of military discharges:

• Honorable Discharge

• General: Under Honorable Conditions Discharge

• General: Other Than Honorable Discharge

• Bad Conduct Discharge

• Dishonorable Discharge

The characterization of the service can be from most desirable to least desirable (1) Honorable; (2) General, Under Honorable Conditions; (3) General, Other than Honorable Conditions; (4) Bad Conduct; and (5) Dishonorable.

A general discharge, wheth er honorable or other than honorable, is a lesser discharge resulting from infractions of regulations or misconduct that did not result in a court martial.

The last two discharge types are punitive in nature, and this generally means your client was charged and convicted of a military criminal offense. A Bad Conduct discharge means your client is ineligible for virtually all veterans benefits, and a Dishonor able discharge results in forfeiture of all VA benefits. In addition, under federal law it is a criminal offense for someone dishonorably discharged from the military to receive, transport, or possess firearms and ammunition.4

You may also encounter what’s called an Entry Level Discharge. This means your client was dis charged before completing at least 180 days of service. This type of discharge normally occurs for medical or administrative reasons, but would likely prevent the client from being classified as a veteran under state or federal law.

Certificate of Release or Discharge from Active Duty

To understand your client’s dis charge, you will want to examine his or her discharge paperwork on Defense Department Form 214 (DD-214). On the form, at the bottom, box number 23 will describe the type of discharge, for example medical discharge. Box number 24 will describe how the discharge is characterized. The characterization can be Hon orable, General, Bad Conduct or Dishonorable.

Obtaining Discharge Records

Every veteran and their next of kin are entitled to receive free

copies of military discharge records. If the client is not in possession of these records, there may be some bureaucratic hurdles to get the discharge paperwork. The federal govern ment maintains 14 different depositories of military records, depending on the branch and type of record you’re seeking. In theory, all discharge records are located at the National Personnel Records Center (NPRC). Howev er, this is not always the case, es pecially for those discharged after 1995. You can start with sending a Standard Form 180 (SF180)

request to the NPRC at archives gov/personnel-records-center/ about-ompfs

The Travis County Veterans Service Office may also be able to assist your client in obtaining military records. The Veterans Service Office exists to help veterans process disability claims. Since validating veteran status is the first step in the claims process, they can likely help your client, and possibly help him or her obtain a disability rating and compensation.

To obtain Texas National Guard and Texas State Guard

records see: tmd.texas.gov/Data/ Sites/1/media/records/2019/ feb/agtx74changeoct2018.pdf

For those unwilling or unable to fight through the bureaucracy, a commercial vendor can gener ally obtain records more rapidly. DD-214 Direct provides a feebased service to obtain discharge papers. Visit dd214direct.com or call 800.891.9285.

SUMMARY

Under the prevailing legal structure, not every former servicemember is automatically a “veteran,” and depending on

the legal definition you’re using, the characterization of service could be an important factor. The definitive answer is found in the DD-214.

Footnotes

1. www.va.gov/vetdata/veteran_ population.asp

2. 38 U.S.C. § 101(2), The term “veteran” means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable.

3. Texas Government Code § 2308.251.

4. 18 U.S.C. § 922(g)(6).

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