Austin Lawyer, October 2017 by Austin Bar Association

austinbar.org OCTOBER 2017 | VOLUME 26, NUMBER 8

Celebrate Pro Bono Austin Bar Supports Pro Bono Efforts, Including Hurricane Harvey Disaster Relief

he Austin Bar Association is proud of the many pro bono programs it hosts and supports throughout the year, including the ongoing Self-Rep-

In response to the devastation caused by Hurricane Harvey, volunteers immediately stepped up to staff disaster-related legal services. resented Litigant Project at the Travis County Law Library and Self-Help Center. This project assists those who can’t afford the services of an attorney but don’t qualify for free legal aid. It provides assistance for self-represented litigants in the uncontested civil docket. The Free Legal Advice Clinic for Veterans, another ongoing pro bono project of the Austin Bar, is held monthly at the VA Hospital, with between 35–50

veterans attending each month. In the past year, more than 100 attorneys, along with more than 40 law students and paralegals, have either staffed the clinic or taken a pro bono case. In addition, Doug Lawrence, Austin Bar staff attorney and veterans clinic coordinator, takes phone calls daily from veterans seeking help and advice. Legal clinics are quickly arranged in response to various crises that arise in the commu-

nity. In the past, the Austin Bar has responded to the Bastrop fires and flooding in Wimberley, Blanco, and the Onion Creek area of Austin. In response to the devastation caused by Hurricane Harvey, volunteers immediately stepped up to staff disaster-related legal services including hotlines for the Lawyer Referral Service and the State Bar of Texas, and to assist Texas Rio Grande Legal Aid in providing legal advice at an Austin shelter housing hurricane victims. More clinics may be planned in the coming weeks as residents in

TOP LEFT: (from left) Lea Downey Gallatin, Jane Sarosdy, and Steve Foster answer questions related to Hurricane Harvey at a shelter on Montopolis Drive. TOP RIGHT: Doug Lawrence (left) looks on as Judge Lora Livingston presides over the first uncontested docket utilizing the help of the Self-Represented Litigant Project in October, 2015. BOTTOM RIGHT: Attorneys assisting veterans at the Free Legal Advice Clinic for Veterans at the VA Hospital in Austin.

Houston and the coastal areas fully realize the extent of their damage. Look for details about these effortsAUSTIN in Bar Code and on LAWYER AL AL the Austin Bar website.

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CONTENTS

AUSTINLAWYER OCTOBER 2017 | VOLUME 26, NUMBER 8 AL A L INSIDE FEATURED ARTICLES 1 Celebrate Pro Bono

5 6 7

DEPARTMENTS 8

Austin Bar Supports Pro Bono Efforts, Including Hurricane Harvey Disaster Relief

Opening Statement

Briefs

Hurricane Harvey Disaster Relief Funds Established

Minority Bar Spotlight

Texas Access to Justice Foundation and Texas Bar Foundation Provide Help

Third Court of Appeals Civil Update

Third Court of Appeals Criminal Update

Do the Write Thing Perfecting Texas Mechanic’s Liens Chapter 53 of the Property Code Governs Mechanic’s and Materialman’s Liens in Texas

Questioning Benefits of Cloud Services Versus Security Risks

Federal Criminal Court News

IOLTA Prime Partner Banks Bank on Justice

Federal Civil Court Update

Practice Pointers

AYLA

Ad Index

Going Above and Beyond to Fund Legal Aid 26

Corporate Sponsor: RPC Helps Determine Reasonable Medical Charges

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NEWS & ANNOUNCEMENTS

EVENTS & MORE

Austin Bar Hosts Two Free Legal Advice Clinics for Veterans in October

OCT 27 Members Only 4th Friday

Clinic to Feature Certified Therapy Dogs on October 2

2018 Jury Trial Schedule Set Travis County Releases Schedule of Jury and Non-Jury Weeks

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Amy Welborn ............................ President Adam Schramek ....................... President-Elect D. Todd Smith ............................ Secretary Kennon Wooten ...................... Treasurer Leslie Dippel .............................. Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION Austin Kaplan ............................ President Jorge Padilla .............................. President-Elect Sandy Bayne .............................. Treasurer David King .................................. Secretary Katie Fillmore ........................... Immediate Past President

EXECUTIVE OFFICES 816 Congress Ave., Suite 700 Austin, TX 78701-2665 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward........................... Executive Director Nancy Gray ................................ Managing Editor Debbie Kelly .............................. Director of AYLA Kennon Wooten ...................... Editor-in-Chief Kelli Horan ................................. Editorial Assistant Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District Federal Court and 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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Hurricane Harvey Disaster Relief Funds Established Texas Access to Justice Foundation and Texas Bar Foundation Provide Help

n the aftermath of Hurricane Harvey, many Texans are faced with legal issues including replacing important documents such as birth certificates, applying for and appealing denials of FEMA benefits, handling insurance claims, and making sure that landlords make repairs to housing damaged by the storm. Legal aid organizations throughout the state are preparing to offer legal services to help low-income victims of Hurricane Harvey for free. TEXAS ACCESS TO JUSTICE FOUNDATION

The Texas Access to Justice Foundation provides funding to various legal aid organizations that are preparing to do this work. The Foundation has established a Hurricane Harvey Legal Aid Fund to take in donations to support free legal services for victims of Hurricane Harvey. In this time of need, many private attorneys may want to help but lack the ability to provide pro bono assistance because of their location or work demands. Donating to the Hurricane Harvey Legal Aid Fund is an easy and important way to ensure that Texans get the

legal help they need during this difficult time. More information can be found at teajf.org.

The Texas Bar Foundation established the Hurricane Harvey Relief Fund to support the recovery efforts in Southeast Texas. TEXAS BAR FOUNDATION

The Texas Bar Foundation established the Hurricane Harvey Relief Fund to support the recovery efforts in Southeast Texas. The Foundation has also created an emergency Hurricane Harvey Relief Grant application which is located on its website, www.txbf.org. These emergency grants will be reviewed and funded on a weekly basis as resources allow. Special consideration will be given to legal aid organizations and Texas local bar associations and foundations assisting attorAUSTIN LAWYER AL AL neys affected by Harvey.

ABOVE: Neighborhood in the Houston area cleaning up in the days after Hurricane Harvey. Photos by Judge Jan Soiffer.

OCTOBER 2017 | AUSTINLAWYER

Do the Write Thing BY JUDGE ORLINDA NARANJO, 419TH DISTRICT COURT JUDGE AND CO-CHAIR OF TRAVIS COUNTY DO THE WRITE THING

C “

hing, chang, I like rice…ching, chang, I like rice” was the familiar taunt. It was usually followed by “Do you guys really eat dogs?” This barrage of taunts by fellow middle schoolers followed Vivian Pan, an eighth grader at Burnet Middle School in

were written by seventh and eighth graders on violence in their communities. The students were from 20 middle schools and five independent school districts. Many of these students were recognized locally at the annual Do The Write Thing (DTWT) Challenge Program on April 20, 2017, where more

The Travis County program has provided an opportunity for more than 50,000 middle school students to write about the impact of violence and to give them a forum in which their voices could be heard. Austin, throughout her first year of school in America. Pan was one of the students, along with classmate Rudolph Hardin, who wrote about animal abuse, to be recognized as a 2017 Student National Ambassador from Travis County by the National Campaign to Stop Violence in Washington, D.C. on July 25. This year, about 4,000 papers

than 200 parents, teachers, school administrators, and judges listened to the students as they read their papers on how violence has impacted them, giving voice to their pain and experiences. The top two student National Ambassadors along with one parent and their teacher, Mr. Ajani Harding, traveled to Washington, D.C.

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During their visit, they were able to attend the National Award ceremony, submit their writings to the Library of Congress, attend a dinner with the Kuwaiti Ambassador, and visit the U.S. Capitol to tell their congressmen and senators about DTWT. (from left) Rudolph Hardin and Vivian Pan, students DTWT is in its 15th at Burnet Middle School, at the U.S. Capitol during year in Travis County their visit to attend the National Campaign to Stop Violence awards ceremony. and in its 20th year nationally. The Travis County program has provided an opportunity for more Cliff Brown and Orlinda Naranthan 50,000 middle school stujo, along with Chris Mugica, an dents to write about the impact attorney with Jackson Walker. of violence and to give them DTWT also has many coma forum in which their voices munity supporters including could be heard. The program is Dell, the Greater Austin Crime designed to break the cycles of Commission, readers from the violence and encourage students UT Sociology Department, Dr. from across the country to beWilliam Kelly, and the Gregcome anti-violence ambassadors. ory Family—who owns Texas The program is overseen by Disposal Systems and who the Travis County Juvenile Profor many years has hosted the bation Department and Travis AUSTIN localLAWYER event at the Exotic Game AL AL County District Court Judges Ranch.

Perfecting Texas Mechanic’s Liens Chapter 53 of the Property Code Governs Mechanic’s and Materialman’s Liens in Texas BY J.D. HOLZHEAUSER

roadly speaking, a mechanic’s lien is a lien on private property to enforce payment for labor and/or materials provided to a private construction project. There are four important parties involved in mechanic’s liens: a) the owner, who owns the property where the construction project is built; b) the original contractor, who contracts directly with the owner; c) the first-tier subcontractor (or supplier), who contracts directly with the original contractor; and d) the second-tier subcontractor, who is essentially any subcontractor or supplier that is not a first-tier subcontractor. This article will discuss the steps required for each party to perfect a mechanic’s lien under Chapter 53. Please note that requirements for lien claims on retainage, specially fabricated materials, and residential construction projects do not lie within the scope of this article.

Second-Tier Subcontractors In order to understand the complexities of mechanic’s liens, it is best to begin with the requirements for second-tier subcontractors. A second-tier subcontractor is required to send “pre-lien” notice of claim letters for each month that it provides labor or material to the project for which payment is not received. A pre-lien notice must be sent to both the original contractor and to the owner. The pre-lien notice for the original contractor must be sent no later than the 15th day of the second month after the month in which the labor or materials were provided to the project, and the pre-lien notice for the owner must be sent no later than the 15th day of the third month after the month in which the labor or materials were provided to the project. For example, if a second-tier subcontractor provided materials to a project in January, a pre-lien notice must be sent to the original contractor on or before March 15th, and to the owner on or before April 15th. The notice must identify the project, the subcontractor who the second-tier subcontractor contracted with, the amount claimed, and the labor provided. It is also good practice to attach the unpaid payment applications or invoices to the notices. A second-tier subcontractor can file an affidavit claiming a lien

against the owner’s property for labor or materials provided for each month that it sent timely pre-lien notices to the original contractor and owner. The affidavit must be filed in the county where the subject property is located. The filing deadline is the 15th day of the fourth month after the last month in which a second-tier subcontractor provided labor or materials to the project. Therefore, if a second-tier subcontractor provided labor in the months February through June, and the required notices were timely sent, the lien filing deadline would be October 15. The second-tier subcontractor must also send notice of the affidavit and a copy of the affidavit to the owner and original contractor no later than five days after the affidavit was filed. If each of these steps is followed and the requirements satisfied, a second-tier subcontractor should have a perfected lien claim. The content of the affidavit is outlined in section 53.054 of the Property Code. First-Tier Subcontractors All the requirements for a second-tier subcontractor also apply to a first-tier subcontractor, except that pre-lien notices to the original contractor are not required of the first-tier subcontractor. Original Contractors An original contractor is not required to send any pre-lien notices. Instead, it must file a lien affidavit by the 15th day of the fourth month after the month in which the original contract with the owner was terminated in writing by the owner or original contractor, or was completed, finally settled, or abandoned. The affidavit content requirements are the same as those for

Construction attorney J.D. Holzheauser is an associate in the Austin office of Peckar & Abramson, P.C. He represents contractors, subcontractors, owners, developers, and suppliers on a diverse range of construction matters, including dispute resolution. He may be reached at jdholzheauser@pecklaw.com.

first- and second-tier contractors found in section 53.054 of the Property Code. In addition, an original contractor is afforded a constitutional mechanic’s lien pursuant to Article XVI, Section 37 of the Texas Constitution. The constitutional lien is automatically perfected, but should be included in the lien affidavit. The requirement and deadline for notifying the owner of the lien affidavit discussed above apply equally to an original contractor. Additional Tips Always send lien notices USPS Certified Mail Return Receipt Requested. Not only is it required, it provides evidence that notices sent were indeed received. Also, if the 15th day of a month falls on a weekend or official state holiday, the applicable deadline is the first preceding dayAUSTIN that is not a weekend LAWYER AL AL or official state holiday. OCTOBER 2017 | AUSTINLAWYER

OPENING STATEMENT

What Makes Legal Writing Weak? Nine Common Culprits That Weaken Your Prose BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

reader sent me this question: I have a colleague who often says, “Legal writing is weak.” He claims he’s not talking about grammar or about arguments, but beyond that he has never elaborated. I’m wondering what he means. What makes legal writing “weak”? Here’s my response. “Weak” is vague, but it’s typical of the way we describe writing. We feel that a piece of writing isn’t good or isn’t strong, but we aren’t always able to articulate why. We end up calling it weak. So I’ll try to be specific. When I read legal writing that strikes me as weak, here are the most likely causes—often several are present. In no particular order: Backing in. This means beginning a document, a section of a document, or a paragraph with background information or with the first event chronologically and then building up to the key point. Legal writing is usually better when front-loaded: Give the key point first and the background second. Forgetting topic sentences and transitions. Weak prose moves from topic to topic without cohesion, without signposts. So write an opening sentence that encapsulates the key point of the paragraph, then elaborate. Rely on your store of transition words: however, moreover, similarly, and finally. Try light connectors such as but, yet, thus, and what’s more. And don’t fear ordinals: first, second, third. Over-hedging. Sometimes we fail to come to a concrete conclusion or recommendation, or we overuse phrases like to 8

AUSTINLAWYER | OCTOBER 2017

some extent, it is likely that, in most circumstances, and it might be the case that. We might also overuse the stereotypical qualifying words: appears, basically, essentially, generally, might, maybe, perhaps, primarily, probably, seems, slightly, somewhat, and virtually. Over-nominalized writing. We often think conceptually, and those concepts become prominent in our prose. Since most concepts are nouns, we end up using the noun forms when the verb forms would be stronger. If I’m thinking of a payment, I write make a payment instead of pay. If I have an expectation about an objection, I write, My expec-

tation was that counsel would make an objection. That’s fine for the draft, but on the edit, revise to use verbs: I expected counsel to object. Over-formality. We often use big, formal words when small ones would do. We write, Cramer utilized the methodology reflected in the report instead of Cramer used the method shown in the report. Sometimes we use prior to for before, subsequent to for after, with regard to for about, and in connection with for for. Bigger, fancier words aren’t necessarily stronger. Often the short and vigorous words are better. Overuse of be verbs. Weak writing has too many sentences

Not every piece of legal writing can tell a story, but sometimes we pile information on information and law on law when structuring the content as a story would be more inviting and more compelling.

beginning with there is, there are, there were, it is, it was, and similar constructions. Reduce them to strengthen writing. The passive voice uses forms of be, so that’s next. Passive voice when active is better. We end up writing, The emails were deleted (by whom?) or The emails were deleted by Carroll. Why do we use the passive voice? Maybe the emails are the focus, or maybe we want to minimize Carroll’s responsibility. Fine. The passive voice isn’t wrong, but it obscures actors and is longer than the active voice. Obscure plus long equals weak. So unless you have a good reason, write Carroll deleted the emails. Over-intensifying. When we’re trying to persuade, we can overuse intensifiers: blatantly, clearly, completely, extremely, highly, obviously, plainly, substantially, totally, very, and wholly. The irony is that intensifiers tend to weaken our points, not intensify them. Missing chances to tell stories. Not every piece of legal writing can tell a story, but sometimes we pile information on information and law on law when structuring the content as a story would be more inviting and more compelling. Those are my top weak-writing culprits. As you edit, look forLAWYER them and revise for stronger AUSTIN AL AL prose.

ADAM LOEWY

LOEWY LAW FIRM

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Carlotta Lepingwell Paul Quinzi Lisa Blue

Garsson, Windham, Ruffner and Schoenbaum, and Hatchell

David Franco Jessica O’Connor Sandra Chidi-Nwagwu

AWARDS

Ross Spencer Garsson and Darrell R. Windham, attorneys at Dickson Wright, were included in The Best Lawyers in America® 2018. Garsson focuses on Patent Law, and Windham focuses on Corporate Law, Mergers and Acquisitions Law. Windham has also been recognized as a 2017 Texas Super Lawyer, along with Mark E. Scott, who specializes in Intellectual Property. Dykema Cox Smith has been chosen by Texas Appleseed’s Board of Directors as one of three law firms to receive the Pro Bono Leadership Award. The award is presented to pro bono partners of Texas Appleseed who have contributed excellent work. Four attorneys from Waller Lansden Dortch & Davis were included in The Best Lawyers in America© 2018. Eric J. Taube was named “Lawyer of the Year” for Litigation, Securities. Also recognized were Fletcher H. Brown, Health Care Law;

Kevin W. Brown, Commercial Litigation; and Richard W. Harrison, Commercial, Construction, IP, and Patent Litigation. NEW TO THE OFFICE

Jeffrey E. Farrell, formerly a partner in the Austin office of Martin, Disiere, Jefferson & Wisdom, has joined the General Litigation Division of the Office of the Attorney General. Mike Hatchell has joined Haynes and Boone as counsel in the firm’s Appellate Practice Group. Hatchell was previously at Locke Lord. Frank Ikard and Laurie Ratliff announce the opening of Ikard Ratliff P.C., a law firm specializing in fiduciary litigation, civil appellate law, and property tax. Adam Herron is an associate with the firm. The firm’s office is located at 2630 Exposition Blvd., Ste. 118.

have merged their practices to create a new firm, Ruffner Schoenbaum, PLLC. The firm, comprised of four attorneys, will specialize in Commercial Litigation, Business Law, and Estate Planning. Their office is located at 1201 Spyglass Dr, Ste 100. MOVING ON UP

The firm Brink Bennett Flaherty has added three new attorneys and is now operating as Brink Bennett Flaherty Golden. Alvin J. Golden, Jerry Frank Jones, and Katherine C. Akinc joined the newly renamed firm at the end of August 2017.

Eleanor Ruffner, previously of the Law Office of Eleanor Ruffner, PC, and Lauren Schoenbaum, previously of The Schoenbaum Firm, PLLC,

Austin Christian Legal Society Meeting Discussion, Debate and Discovery Seekers, Sinners, Cynics and Critics Welcome! The Wiewel Law Firm, 1601 Rio Grande, Suite 550

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The Expert’s Expert. Randall Wilhite is Board Certiﬁed in Family Law by the Texas Board of Legal Specialization. He is also a Fellow in the American Academy of Matrimonial Lawyers as well as the International Academy of Family Lawyers. As a Certiﬁed Public Accountant and an Adjunct Professor of Law at the University of Texas School of Law, Randy serves as trial counsel and co-counsel throughout the State of Texas on issues of business valuation, characterization of assets, premarital agreements, tracing, business distributions and trusts. Randy is also one of the most accomplished and experienced mediators and expert witnesses in the State. He is regarded as one of the most distinguished family law attorneys in Texas.

Randall Wilhite Senior Partner; Family Law; Litigation; Arbitration; Complex Asset Division; Business Valuation P: 512.610.2335 | E: rwilhite@fullenweider.com

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MINORITY BAR SPOTLIGHT

Sculpting the Future 2017 Austin LGBT Bar Association Scholarship Gala

oin the LGBT Bar Association for the Sculpting the Future Gala on October 18, 2017 at the UMLAUF Sculpture Garden. In addition to raising money for the Austin Bar Foundation and LGBT Bar Association’s Law Student Scholarships, the evening will include the recognition of three Courage Award winners. This year’s Courage Award honorees are Senator Kirk Watson, for vocally speaking up for LGBT people during the 85th Texas Legislative session; Representative Celia Israel, for promoting LGBT interests in the Texas House of Representatives; and local attorney Andy Hutton, who actively organized on

OCT 18 SCULPTING THE FUTURE GALA UMLAUF Sculpture Garden TICKETS: abit.ly/Sculpting TheFuture17

behalf of the transgender community in the Dripping Springs Independent School District. Event sponsorships are available at the levels of $250, $500, and $1,500. To find out more about sponsorship opportunities, contact Gary Schumann at gary@ssjmlaw.com. Tickets to the event can be purchased AUSTIN at http://bit.ly/ LAWYER AL AL SculptingTheFuture17.

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Keel Former District Judge

Mediator Arbitrator

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patrickkeel.com (512) 293-0300 OCTOBER 2017 | AUSTINLAWYER

THIRD COURT OF APPEALS CIVIL UPDATE

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 a partner at Ikard Ratliff P.C.

The following are summaries of selected Third Court of Appeals’ civil opinions issued during August 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of September 5, 2017.

BILL OF REVIEW: Official-mistake doctrine applies only to court employees. Bialaszewski v. Bialaszewski, No. 03-17-0046-CV (Tex. App.— Austin August 3, 2017, no pet. h.). A year after the trial court ordered father to pay more than $10k in child support arrearages,

mother filed a petition for bill of review, seeking to correct a miscalculation by the DRO to show an arrearage of more than $25k. The trial court granted mother’s petition. The court of appeals noted that a bill-ofreview plaintiff can support a petition with an “official mistake” in lieu of proving fraud, wrongful act, or accident. According to the court, the doctrine applies only to mistakes or wrongful acts of official court functionaries, such as clerks and other employees under court’s direct supervision. The court held that DRO employees were not under court supervision. The court reversed and rendered. MANDAMUS: Only final judgments can be corrected by nunc pro tunc. In re Brothers Oil & Equipment, Inc., No. 03-17-00349-CV (Tex. App.—Austin August 22, 2017, orig. proceeding) (on reh’g) (mem. op.). Ardent sought summary judgment against relators only on its trespass-to-try title claim. The trial court granted Ardent’s motion, but did not address Ardent’s claims against other parties or relators’ counterclaims. Ardent filed a notice of nonsuit, attempting to make the order final. The trial court concluded that the summary judgment was final, finding that relators’ counterclaims were untimely filed, and signed a nunc pro tunc to correct

the hearing date contained in the summary judgement order. The court of appeals observed that the nonsuit dropped defendants, but did not drop pending claims. The court held that the summary judgement was not final and thus could not be corrected by nunc pro tunc. The court granted mandamus relief.

not bar relator’s right to relief. Steele failed to show prejudice by the delay and relator reasonably explained the delay. The court granted mandamus relief.

MANDAMUS: Delay in filing did not bar mandamus relief. In re Murphy & Beane, Inc., No. 03-16-00690-CV (Tex. App.— Austin August 29, 2017, orig. proceeding) (mem. op.). Steele, a Texas resident, filed suit for DTP violations, fraud, and gross negligence against Viacom’s third-party administrator for mishandling her comp claim and filing her claim in California instead of Texas. Relator filed a plea to the jurisdiction, contending Steele failed to exhaust her administrative remedies before the TDI-Workers’ Compensation Division. The trial court denied relator’s motion for summary judgment that sought dismissal. The court of appeals rejected Steele’s claim that the alleged misrepresentations were made outside of the claims-handling process. The court held that the trial court lacked jurisdiction until Steele exhausted her administrative remedies. The court further held that the three-and-one-half-month delay in filing the mandamus did

FAMILY LAW: Negligence by bill-of-review petitioner barred relief. Wiegrefe v. Wiegrefe, No. 03-1600665-CV (Tex. App.—Austin August 29, 2017, no pet. h.) (mem. op.). Parties signed a mediated settlement agreement that awarded an investment account to Jennefer. Daniel’s attorney drafted the final decree that both parties signed. The decree mistakenly awarded the account to Daniel. After plenary power expired, Jennefer discovered the error and filed a petition for bill of review. The trial court granted the petition and signed a revised final decree awarding the account to Jennefer. The court of appeals concluded that Jennefer’s negligence contributed to the error: Jennefer reviewed and signed the erroneous decree and could have obtained a copy of the signed decree to timely file a motion for new trial or an appeal. Accordingly, the mistake was not unmixed with Jennefer’s negligence to support a bill of review. The court vacated the decree and reinstated the original decree. The dissent disagreed with the court’s “unmixed fault or AUSTINwith LAWYER AL AL negligence” analysis.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

The cases summarized are from March 2017 and subsequent histories are current as of September 1, 2017.

SELF-DEFENSE INSTRUCTION: Defendant was not entitled to instruction on self-defense because the evidence showed he acted not to defend himself but to protect his firearm. Grisham v. State, No. 03-1400137-CR (Tex. App.—Austin Mar. 23, 2017, no pet.) (mem. op., not designated for publication). Appellant was convicted of the offense of interference with public duties. The evidence presented at trial showed the arresting officer was dispatched in response to a 911 call reporting an armed man walking down a roadway. When the officer arrived at the scene, he observed appellant carrying a rifle in an “offensive-combat ready position.” The officer “began questioning appellant about his activities and his reason for having the weapon.” After determining the gun was loaded, the officer “moved to disarm appellant by releasing the clasp holding the firearm to the shoulder strap of appellant’s backpack.” In response, “appellant grabbed the weapon and told the officer not to disarm him.” The officer then attempted to arrest appellant, but appellant “repeatedly refused to comply with the officer’s instructions and ‘forcibly’ resisted the officer’s efforts to handcuff him.” At trial, appellant requested a self-defense instruction, which the trial court denied. The appellate court affirmed. The court first observed that “the right to use force against a police officer who is attempting to effect an arrest or search is limited” and that “there must be some evidence in the record to raise the issue of whether the peace officer used or attempted to use greater force than necessary in

attempting to arrest or search the defendant.” The court concluded the officer’s testimony tended to show he could have asked appellant to relinquish his weapon but instead chose to physically disarm him was insufficient. This testimony demonstrated only that the officer did not use appellant’s “preferred method” for disarming appellant, specifically, “a verbal request that [appellant] considered ‘less intrusive’ or ‘less invasive’ than physically taking the weapon.” The court also concluded that, even assuming the officer used excessive or greater than necessary force in physically disarming appellant, “there [was] no evidence that appellant reasonably believed his use of force against the officer was immediately necessary to protect himself.” “Instead, the evidence demonstrated that appellant acted as he did—impeding the officer’s efforts to disarm him by grabbing the weapon (the alleged conduct of the charged offense)—to protect his gun.” The court held that “[t]he evidence, viewed in the light most favorable to the requested instruction, reflects that appellant acted in defense of his weapon, not in defense of himself.” Consequently, “appellant was not entitled to a self-defense instruction.” SEARCH AND SEIZURE: Appellant voluntarily consented to search of vehicle following valid traffic stop, and detaining officer did not exceed scope of consent or unnecessarily prolong detention. Fernandez-Madrid v. State, No. 03-15-00796-CR (Tex. App.—Austin Mar. 1, 2017, no pet.) (mem. op., not designated for publication). Appellant was convicted of possession of cocaine with intent to deliver. The cocaine was found in his vehicle following a traffic stop. The search of the vehicle began on the roadway, continued at the

parking lot of a nearby restaurant, and concluded at an auto body shop, where the vehicle was subjected to a canine search and then disassembled. Prior to trial, appellant filed a motion to suppress, which the district court denied. The appellate court affirmed. After concluding that the traffic stop was supported by reasonable suspicion of narcotics activity, the court went on to conclude that appellant’s consent to search the vehicle was voluntary. The video of the traffic stop showed that the detaining officer: (1) obtained appellant’s consent to search “within about a minute” of the time he began questioning appellant about contraband; (2) did not threaten any force against appellant; (3) was able to converse with appellant “throughout the investigation and had only minor communication difficulties”; and (4) asked appellant “more than once whether he could search the vehicle, and [appellant] consistently agreed that he could.” The appellate court also concluded that appellant “consented to each additional phase of the investigation (i.e., the move to the restaurant parking lot and the move to the body shop) up until the time of the open-air dog sniff, which occurred only about a minute after [appellant] arrived at the body shop.” At that point, the court concluded, the officers developed probable cause to disassemble the vehicle. Thus, the search of the vehicle was legal and the district court did not abuse its discretion in denying the motion AUSTIN LAWYER AL AL to suppress.

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.

OCTOBER 2017 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Federal Criminal Court News Let’s be Civil: Ethical Pitfalls of Linking Civil and Criminal Settlements 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 is not at all uncommon for a criminal charge to arise out of a civil dispute, or vice versa. Divorce cases with contested custody issues (or large and disputed estates) are the most common civil disputes in which an allegation of child abuse or other domestic violence can arise; in fact, the alleged offense is often the reason for the divorce. Alleged employee theft sometimes leads to both a lawsuit to recover damages as well as a report to law enforcement, and an automobile or truck fatality or serious injury accidents can involve both civil and criminal issues. While civil cases are nearly always settled by one party paying money to the other in exchange for a non-suit, criminal restitution is usually just part of the resolution of a criminal matter in which economic damages can be proven. It is not at all uncommon for a party seeking to settle a civil matter to ask the other party to drop criminal charges as part of their settlement agreement. However, practitioners should be very careful about this. The Texas Penal Code makes

AUSTINLAWYER | OCTOBER 2017

offering or receiving a benefit (including money, of course), in exchange for asking for charges to be dismissed a criminal offense.1 The statute provides, in part: “A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a prospective witness (in a criminal case) . . . (1) to testify falsely, (2) to withhold any testimony, information, document or thing, (3) to elude (a subpoena), (4) to absent himself (after being served with a subpoena), or (5) to abstain from, discontinue, or delay the prosecution of another.”2 This does not mean that a civil settlement cannot contain an agreement for the plaintiff to ask the prosecuting agency to drop a criminal charge, but counsel should be very careful to stay within the language of the exception found in subsection (c): “It is a defense to prosecution . . . if the benefit was (1) reasonable restitution for damages suffered by the complaining witness as a result of the offense; and (2) a result of an agreement negotiated with the assistance or acquiescence of an attorney for the state . . . .”3 (emphasis added). Obviously, the requirement of the “agreement or acquiescence” of a prosecutor is the key element here. If you are representing a defendant in a civil matter who seeks to make such an agreement, it is necessary for the defendant’s criminal defense counsel to talk to the prosecutor about the possibility of such a settlement and have an agreement that the monies to be paid are, in fact, reasonable

restitution. Because this comes reasons: (1) it may subject all up so often in the context of parties involved, including the family law, it should be noted attorneys, to criminal liability, that an unequal division of the and (2) there is no guarantee marital estate is very unlikely that the prosecutor will, in fact, to be considered restitution honor the agreement if they were for specific offense conduct. not apprised of it beforehand. Obviously, payment of medical Since doing the right thing is bills, lost wages, or the like relatively easy, there’s really no could conceivably fall into that excuse for being sloppy about category, but giving one spouse this issue. If the state balks at the house, car, or children in the agreement, then perhaps exchange for an affidavit of the civil settlement is not worth non-prosecution is very unlikely what the parties thought it was. to pass the smell test. Better to find out before money When I am involved in such changes hands. Our bar cards matters, I provide very spe—and our freedom—are worth cific language to my client’s more LAWYER than getting any one case AUSTIN AL AL civil counsel to ensure that resolved. both parties warrant that the Footnotes: funds paid are, in fact, reason1. The offense of witness tampering as able restitution, and that the described herein is the same level as the offense involved in the original agreement was made with the charge, unless the underlying charge involvement of the prosecution involves family violence, in which case (which, of course, it always is if it is elevated to at least a third-degree felony. Tex. Penal Code § 36.05(e), I am representing the accused). (e-1). I am constantly surprised by 2. Tex. Penal Code § 36.05(a). the number of cases in which I 3. Id. § 36.05(c). see counsel failing to secure the agreement of the state before entering into a civil settlement, and instead presenting it to a prosecutor as a fait accompli. This is bad practice for two

FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued from the U.S. District Court for the Western District of Texas in August 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions.

EMPLOYMENT: To establish an unlawful retaliation claim, plaintiff must show that her employment was terminated because she reported to her employer behavior she believed to be unlawful. Almedia and Quinonez v. BioMedical Applications of Texas, No. 3:16-cv-00263 (WDTX [El Paso] Aug. 31, 2017): Plaintiffs, registered nurses, claimed they were retaliated against in violation of the Texas Occupations Code when Defendant terminated them for refusing to provide certain at-home training to a patient in New Mexico, a task they claimed they did not have the requisite experience to do. Defendant disciplined the nurses for failing to train the patient and issued each a subsequent write-up when Plaintiffs failed to complete tasks outlined in the first write-up. Defendant argued that Plaintiffs were terminated not for refusing to perform the training but instead for failing to follow the directives that were laid out in their write-ups. The Court found that Defendant rebutted the presumption of retaliation by showing that the patient was no longer available to train when Plaintiffs were given their second corrective action—meaning that Plaintiffs were no longer engaging in “protected activity” (refusing to complete allegedly illegal training). Plaintiffs therefore failed to establish “but-for” causation for their retaliation claims and summary judgment was granted in favor of the Defendant.

NEGLIGENCE: General contractor had a general duty to subcontractor—as an invitee—to maintain safe premises, although there was no contractual duty. Ochoa v. JE Dunn Construction Company, Cooper’s Steel Fabricators, No. 1:16-cv-00475 (WDTX [Austin] Aug. 21, 2017): Plaintiff, a subcontractor, was working on a construction project for JE Dunn, general contractor. Plaintiff sued after a steel beam fell on and injured his leg while working at the construction site. JE Dunn moved for summary judgment, arguing that a general contractor has no duty to ensure a subcontractor safely performs his work, and here, Plaintiff was under the control of other subcontractors. Plaintiff argued that a JE Dunn employee operating a crane caused or contributed to the beam falling on his leg. JE Dunn demonstrated that it had no contractual duty of care to Plaintiff under its agreement with its subcontractor. The Court held, however, that JE Dunn did owe a duty as a general contractor to Plaintiff as an invitee, to maintain safe premises, and therefore, Plaintiff had presented a fact issue regarding whether JE Dunn breached this duty; denying summary judgment. EMPLOYMENT: The close timing of Plaintiff’s termination to his protected activity, although sufficient to establish a causal connection, was not sufficient to show pretext. Joshua Salazar v. Texas Pride Fuels, LTD., 5:15-cv-1044 (WDTX [San Antonio] Aug. 10, 2017): The District Court granted an employer’s motion for summary judgment on Plaintiff’s claims alleging violations of the Texas Labor Code. A few years after Plaintiff was hired as a driver by Defendant, a supplier of fuel and oil to the energy industry, Plaintiff and his co-workers raised a complaint

to supervisors about a driver, Hyatt, using racial slurs against other drivers. Plaintiff alleges in response to this complaint, one of his supervisors began mistreating employees who reported the conduct. Plaintiff and his co-workers were interviewed by a manager regarding Hyatt’s conduct, and Plaintiff threatened that many of the drivers would leave if Hyatt’s conduct continued. Plaintiff then met with the company co-owners and indicated he was considering leaving. Plaintiff was terminated six days later for his negative attitude toward management and the company. The Court held Plaintiff failed to establish a prima facie case of race discrimination as he did not present evidence of a comparator outside his protected class who was treated more favorably than he was. The Court also held that although Plaintiff had established a prima facie case for retaliation, he failed to show Defendant’s legitimate, nondiscriminatory reason—his poor attitude—was pretext for discrimination. The close timing of Plaintiff’s termination to his protected activity was sufficient to establish a causal connection. That timing, however, was not enough to show pretext (nor were unsworn affidavits from Plaintiff’s co-workers saying that he had a positive and happy attitude). Therefore, Plaintiff failedAUSTIN to raiseLAWYER a fact issue on his AL AL retaliation claim.

Wilson Stoker is board certified in Labor and Employment Law by the Texas Board of Legal Specialization and senior vice president and managing attorney with Welter Law.

OCTOBER 2017 | AUSTINLAWYER

Questioning Benefits of Cloud Services Versus Security Risks BY SHAUN MURPHY, CEO OF SNDR.COM

awyers take many precautions to keep their clients’ information secure and confidential, but an action as simple as downloading a popular app to a smartphone or computer can create a major privacy breach. File-sharing services and other cloud-based software can improve workflow and make collaboration with colleagues and clients more convenient. It can also leave files open to be viewed or manipulated by third parties depending on how the software company encrypts and protects files on its servers. The cloud is the new normal for enterprise apps, with 70 percent of all organizations having at least one app in the cloud today, according to IDG’s Enterprise Cloud Computing Survey, 2016. While use of cloud services is not as prolific in the legal indus-

AUSTINLAWYER | OCTOBER 2017

try, the American Bar Association’s 2016 Legal Technology Survey Report found adoption of cloud services is increasing. The survey stated that after rates of cloud usage remained steady from 2013 through 2015, in 2016 they increased by 20 percent rising from 30 percent to 37 percent adoption. It is not surprising that more businesses and law firms are now using cloud services. The question that remains is: at what cost? Law firms are not immune to cyber attacks. A 2015 survey of 90,000 attorneys in private practice conducted by the ABA found that one in four law firms with at least 100 attorneys have experienced a breach because of hackers, website attacks, break-ins, or lost or stolen computers or smartphones. Cloud services increase the risk for a cyber attack. For start-

Even if a local encryption key is not an option, understanding what level of encryption your cloud provider does offer is essential. ers, consider this—if the cloud log-in process is simple for you, the user, it will also be easy for a hacker to replicate the steps. If all you need is a user name and password to access your content, that is all a hacker will need, too. If the cloud provider sends you an authentication email or asks you to enter a security code after you type in your password, that is better. But, employees at the cloud provider, or hackers who have breached the provider’s system, can bypass these secondary authentication measures. A cloud account that requires you to keep a local encryption key in addition to the above authentica-

tion items is ideal, but outside of a few messaging-type apps, there are not many cloud services that offer this next generation of protection. Even if a local encryption key is not an option, understanding what level of encryption your cloud provider does offer is essential. There are a few common types that services use, including in-transit, at-rest, and end-to-end. In-transit encryption means when you move a file to the cloud between your device and the service provider’s servers, your document is protected from intercept. But, once your file is on the service

HYBRID CLOUD SOLUTIONS Hybrid cloud solutions provide a way for internal teams to rapidly work on local content. If and when you’re ready to adopt the cloud, it will seamlessly integrate with your local environment.

provider’s network, anyone who has access to the network can look at the contents. Also consider that hackers who break into the network would also be able to freely read anything you have saved to the cloud. At-rest encryption means when the cloud provider saves your data to their storage devices it is encrypted such that if someone were to steal that storage device, they would not be able to access your content. However, the company itself, and anyone who hacks into the company, can still access this data.

Finally, end-to-end encryption means the content you share is protected from the device you send it from to the recipients’ devices with no way for the cloud service company or any outside threat to view it. Ideally, you want your cloud provider to implement all three types of encryption but, again, only some messaging apps do this. The most popular cloud storage providers typically only offer in-transit and maybe atrest encryption. Overall, as the use of cloud computing services continues

to increase, it will create more opportunities for cyber security problems. Law firms that are not ready or able to manage these risks can consider using a hybrid cloud solution. Hybrid cloud solutions provide a way for internal teams to rapidly work on local content. If and when you’re ready to adopt the cloud, it will seamlessly integrate with your local environment. Whether a hybrid or traditional cloud service is right for your law firm, the most important step in keeping data safe is to thoroughly research,

Shaun Murphy, one of the nation’s leading experts in communication security with over 20 years’ experience, has worked as a subject matter expert on high-level government communications software and hardware systems for numerous agencies. He is dedicated to developing technology solutions for the average consumer and creating a protected communications platform in a world where privacy has almost ceased to exist.

and understand, the terms of services and privacy policy of a serviceLAWYER before uploading any AUSTIN AL AL documents.

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

OCTOBER 2017 | AUSTINLAWYER

IOLTA Prime Partner Banks Bank on Justice Going Above and Beyond to Fund Legal Aid

he Texas Access to Justice Foundation (TAJF), created by the Supreme Court of Texas in 1984, is the largest state-based funding source for the provision of civil legal aid in Texas. The organization is committed to the vision that all Texans will have equal access to justice, regardless of their income. TAJF administers a

variety of funding sources, which are earmarked to assist nonprofit organizations in providing legal aid to more than 100,000 Texas families each year. TAJF works closely with Texas banks to ensure their participation in the Interest on Lawyers’ Trust Accounts (IOLTA) Program. Per Supreme Court of Texas rules, IOLTA accounts must be held at banks that pay

Prime Partner banks help mitigate the decline in revenue available to fund legal aid. interest rates comparable to similarly situated accounts. Prime Partner banks go above and beyond eligibility requirements for banks participating in the IOLTA program by paying, net of allowable reasonable fees, the higher of 1) 75 percent or

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more of the Fed Funds Target Rate; or 2) a minimum of 1 percent on IOLTA accounts. All attorneys who handle client funds are required to keep those funds in IOLTA accounts until they can be made available to a client. TAJF receives funding from the interest generated by these accounts and uses the money to distribute grants to legal aid providers throughout Texas. “Many Texans face serious legal issues, such as escaping situations of domestic violence or avoiding foreclosure, and simply do not have the resources to hire an attorney,” Richard L. Tate, chair of the board of directors for TAJF, said. “By paying higher interest rates on IOLTA accounts, these banks are helping ensure that low-income Texans have access to life-saving civil legal services.” Because of low interest rates, TAJF has seen a 75 percent decline in IOLTA revenue since 2007. As a result, more than $128 million in funding for free legal services for low-income and disadvantaged Texans has been lost. More than 5.3 million Texans qualify for legal aid and many are turned away simply because legal aid providers do not have the resources or funding to help everyone in need. Prime Partner banks help mitigate the decline in revenue available to fund legal aid. In Austin, IOLTA Prime Partner banks are Bank of the Ozarks, Commerce National Bank, First-Lockhart National Bank, Horizon Bank, Independent Bank, PlainsCapital Bank, RBank, and Southwestern AUSTIN LAWYER AL AL National Bank.

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PRACTICE POINTERS

Maintaining a Complex Caseload in a Small/Solo Practice BY STEFANIE SCOTT SHAH

here is an assumption that solo practitioners—who, by definition, work alone—can’t handle complex cases. I started my own firm confident and hopeful I could shatter that reality/perception. At my previous firm, my practice (for almost eight years) focused on complex commercial litigation, class/mass action employment litigation, and patent litigation. I loved the complexity of my caseload, and I was not ready to trade those factually and legally intensive cases for simpler matters, despite my desire to found Scott Shah Law. So, when I went off on my own, I refused to think of myself as a “solo”—not because there aren’t amazing solo practitioners (there are!)—but because of this misconception that solo practitioners are unqualified to handle complex cases. These are the rules/guidelines I’ve followed to maintain a complex caseload. Establish relationships

with other firms. The reality is that handling a patent litigation or a mass/class action employment litigation on your own is tough. You won’t have the manpower (or womanpower) to defend dozens of depositions over the course of a couple of months, and your case would benefit from a second or third set of eyes reviewing that Section 101 motion seeking to invalidate your client’s patents. But that doesn’t mean you can’t work on those complex cases. It just means you (and your client) benefit when you establish strong relationships with other attorneys and firms with whom you can co-counsel on resourceconsuming cases. Don’t accept everything that comes in your door. When you first start your practice, you may be tempted to draft up an engagement letter for any potential client who shows interest. Such an inclination is completely normal—particularly when thoughts of “any client

is better than no client” and “I need to draft a motion before I forget how!” are swirling through your head. Resist those thoughts. Taking on a case that is not interesting to you will not benefit your practice. It will distract you from developing business in areas of the law in which you are interested. Don’t be afraid to work on something you’ve never done before. The caveat to the above is that you shouldn’t turn down work simply because Stefanie Scott Shah is the founding memthe subject area is new to you. ber of Scott Shah Law PLLC. Her practice Offering a new practice area includes complex commercial, patent, and employment litigation. She also acts can be daunting. But it can as outside general counsel for growing offer a new set of complex legal businesses, handling all their legal needs. issues—satisfying your intellectual curiosity. Know when to invest in law exciting and fulfilling. resources. Obviously, as a Know when to ask for newly formed firm, you want help. People in general, and lawand need to keep overhead low. yers specifically, are often afraid But don’t be penny wise, pound to ask for help. We don’t want to foolish. For example, if you bother people, and we certainly are drafting a federal appellate don’t want to look like we aren’t brief, you likely don’t have time a fountain of knowledge on every to create the appendix or to put single legal subject. But the fact together a table of authorities. is, we’re not. I’m not. You’re not. Hire a company who specializes No one is an expert on everyin the preparation and filing of thing. And when you are involved appellate briefs. Outsourcing in complex cases, there will be these administrative tasks will issues you have not seen before. allow you to focus on drafting This is not the time to freak out and perfecting your brief. or to spend hundreds of hours Similarly, even if you don’t doing a Google search on “how have cases to work on, your to file a motion for multi-district time is better spent developing litigation” or “my client has been business (and planting seeds named a defendant in a class acfor future success) than creating tion, now what?” This is the time invoices by hand (instead, to ask for help from those who invest in time-keeping/invoicehave already lived through these generating software), designing a issues. Asking a peer or mentor logo (do you even have access to for advice—early on—will save Adobe Photoshop?), and/or filing you countless hours of research, your own taxes (hire a CPA). frustration, and (possibly literal) Your clients are paying for headache. your judgment and skills as All this is to say: don’t let a lawyer—never forget that. your desire for a complex caseIncidentally, it is the exercise of load prevent you from starting these legal (not administrative) AUSTIN yourLAWYER own practice. Dream (and L AL skills that makes the practice of do)Abig! OCTOBER 2017 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

Meet New Austin Bar and AYLA Partner Welcome YMCA Texas Youth and Government, a Youth Civics Education Program

ello from YMCA Texas Youth and Government! We are a civics education program that trains middle school and high school students throughout the state of Texas in the functioning of the executive, legislative, and judicial branches of government. We are thrilled to work in partnership with the Austin Bar Association and the Austin Young Lawyers Association for the upcoming year. We believe democracy must be learned by each generation in order to survive. Austin-area high school students learn the fundamentals of democracy by participating as elected officials, judges, attorneys, witnesses, lobbyists, and media delegates.

They show off their knowledge through mock legislative sessions, trials, press conferences, and elections during our District Conference (November 11, 2017) and State Conference (January 26 − 27, 2018). Our judicial section relies heavily on legal professionals, like those involved with the Austin Bar and AYLA, to volunteer as conference evaluators. Volunteer evaluators use a rubric provided by Youth and Government to judge delegate performances as attorneys, judges, and witnesses in mock Appellate, District, and County Court trials. We are excited to offer volunteer evaluator trainings to Austin Bar and AYLA members interested in helping with the conferences.

These trainings will ensure our volunteer evaluators feel comfortable with their roles and the scoring system. Our first volunteer evaluator training will be held on October 19 from 4:30 to 5:30 p.m. at Star Bar before Docket Call. Youth and Government staff will also be available during Docket Call to register volunteers and answer questions. A volunteer evaluator training will also be offered in January before the State Conference. If you are interested in volunteering, go to ymcatexaasyg. org, find the “Get Involved” tab, click on “Volunteer

ABOVE: (from left) Austin Kaplan, Angela Castilleja, and Andy Cates.

Opportunities,” and fill out the formLAWYER appropriate for each AUSTIN AL AL conference.

UPCOMING EVENTS MONDAY, OCTOBER 2 Bar & Grill Casting Call 6 p.m. Austin Bar Association, 816 Congress Ave., Suite 700 Contact Amanda Arriaga, missmanda01@gmail.com. THURSDAY, OCTOBER 19 YMCA Youth and Government Volunteer Student Evaluator Training 4:30 – 5:30 p.m. Star Bar, 600 W. 6th St. THURSDAY, OCTOBER 19 AYLA Docket Call 5:30 – 7 p.m. Star Bar, 600 W. 6th St. Sponsored by: Vertex SATURDAY, OCTOBER 21 AYLA Tailgate for a Cause Time: TBD Location: UT Austin Visit ayla.org for more information. FRIDAY, OCTOBER 27 AYLA CLE Bus to Treaty Oaks Brewery & Distillery 12 – 4:30 p.m. Contact Debbie Kelly, debbie@austinbar.org, for registration. 24

AUSTINLAWYER | OCTOBER 2017

AUSTIN YOUNG LAWYERS ASSOCIATION

Job Search Advice from the Dating World BY ANDY CATES

tell anyone who will listen that looking for a job is almost exactly like dating. It sounds just as trite in the professional world as in the dating world, but it’s 100 percent true—confidence is key. Take me, for instance. I got my bar results less than two months before the recession hit in 2008. Those were hard times … really hard times. I was doing big-law document review for 12 hours during the day and jail calls through the night just to make rent. I hated it. So, I scattershot my resume to as many potential employers as I could find for months on end. But when I did get the intermittent interview, how do you think I came across? Desper-

ate, needy, wholly unqualified, and without any real interest in the job or the employer specifically. Imagine someone coming to an interview and saying, “I’m willing to do anything you need. I just need a job, and I’ll take whatever you will pay me to do it.” Sound familiar? You hear it in TV shows and movies all the time when the protagonists work their way up from the mail room to the CEO desk. But, in real life, in a competitive job market, it comes off poorly. Coming off pitiful isn’t likely to gain you many dates, and it’s not going to get you many job offers either. So, what should you do? Again, it sounds trite, but you should do what makes you

happy and what makes you feel confident. If you played sports as a kid, join a social league in the evenings. If you were in band, play your instrument once in a while. If you like politics, volunteer for a campaign. I’ve always heard you should treat a job search like a fulltime job and put in the requisite hours of work per day. Sure, that’s still true, but it doesn’t mean that it has to consume every minute of your life. Think about it—when do most people feel their most relaxed and confident around someone they may want to date? When they’re focused on something else—their career, their pet project, whatever—and don’t have time to dwell on that person too much. The same concept applies to a job search. Just like with the dating advice, “Girls like guys with confidence,” all of this is much easier said than done. You won’t want to shut the job search out of your mind entirely, but if you can focus on yourself and the things you want to develop or make you feel more like you, and think less about finding a job all the time, you’ll be better for it. Ultimately, what you should strive for when you go to an inter-

Andy Cates is the general counsel and director of government affairs at the Texas Nurses Association and a member of the AYLA Board of Directors.

view is to be able to talk more about how you will enrich their environment than how much the job will mean to you. If you can be confident about who you are and the value you bring to the table, then you’ve got a better shot than most people out there. One parting piece of advice: Nobody gets to the top without a tremendous amount of help. Lean on your peers, your family, and your friends for support. AYLA is always here to help, too. And, someday when you get AUSTIN LAWYER AL AL the chance, pay it forward.

AYLA Bar Year Kick-off a Success

he first Docket Call of the 2017-2018 AYLA bar year was a resounding success! More than 50 young attorneys enjoyed cold drinks and great conversation at the Mean Eyed Cat on Thursday, August 17. Docket Calls are held monthly and are great opportunities to gather with peers for fun networking and to learn more about

AYLA and its many programs. Special thanks to EmployStats for sponsoring the happy hour. All AYLA members are encouraged to join us at our next Docket Call happy hour on Thursday, October 19 from 5:30 toAUSTIN 7 p.m. atLAWYER Star Bar. We hope to AL AL see you there! (from left) Cathy Garza, Monica Stallings, Blair Leake, and Katie Fillmore enjoying the first Docket Call of the AYLA bar year. OCTOBER 2017 | AUSTINLAWYER

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RPC Helps Determine Reasonable Medical Charges FIGURE 1: TEXAS WORKERS’ COMPENSATION MEDICARE PAYMENT ADJUSTMENT FACTORS Medicare Adjustment Amount 250% 200% 150% 100% 50%

*Non-Device Intensive; **Plus the device payment portion, ***2016, exclusive of facility-based surgeries. services of hospital outpatient departments and ambulatory surgery centers. CMS publishes Medicare Standard Analytical Files and Public Use Data Files for most medical services. RPC uses these data points to calculate the 80th percentile charges for specific services in specific Texas markets. Comparing the 80th percentile charge to a provider’s actual charge is a

reasonable basis for an opinion on the maximum reasonable charge. RPC medical bill analysis testimony on the reasonableness of charges has been accepted by courts in Texas and other states. White papers with more information on determining reasonable charges for medical services are on the RPC web site at rpcconsulting.com.

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Source: Texas Department of Insurance, Division of Workers’ Compensation. Medical and Facility Fee Guideline Information. Available at: http://www.tdi.texas.gov/wc/fee/index.html

Edward C. Fowler, CFA, ASA, MAFF (512) 476-8866 edward@financial-valuations.com www.financial-valuations.com

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stead, it has established a mediation process to resolve disputes when a person is treated by a provider with which his health plan does not have a negotiated rate. However, this mediation process is not designed for personal injury cases. The only Texas law to establish a maximum fee for medical services in the private sector is for workers’ compensation patients. In 2001, the legislature directed the Division of Workers Compensation to establish medical fee guidelines based on Medicare payment policies with a payment adjustment factor (PAF). Figure 1 shows the PAFs. Administrative rules define payment of a percentage of Medicare fees as fair and reasonable, but no Texas court has applied them in a medical lien or personal injury case. This does not mean courts could not do so. Data is available to calculate the 80th percentile charge for most health services for most Texas markets from the Department of State Health Services (DSHS) and from the Center for Medicare and Medicaid Services (CMS). DSHS publishes Public Use Data Files for hospital inpatient services and for selected

hat is a reasonable charge for a physician visit or a hospital admission? Answering that question has become important to Texas personal injury attorneys whether they represent plaintiffs or defendants. Plaintiff attorneys often must resolve medical liens before money can be distributed to the client and the attorney. Defense attorneys must decide whether to challenge affidavits medical providers file under Section 18001 asserting their charges are usual, customary and reasonable (UCR). Some states have decided what charges are reasonable for out of network medical providers. Presumably, the same upper bounds apply to medical services in personal injury cases. For example, New York sets this boundary as the lesser of the actual charge or the 80th percentile charge calculated by Fair Health. New York uses the UCR approach to set reasonable charges. UCR is only one of several approaches to determine the maximum reasonable amount a provider should be paid. Texas has not defined the upper bound of reasonable changes for out of network providers. In-

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