Austin Lawyer, October 2018 by Austin Bar Association

austinbar.org OCTOBER 2018 | VOLUME 27, NUMBER 8

The Austin Bar Celebrates Pro Bono Week Celebration Includes Hosting Free Ethics CLE, “The Power of Pro Bono,” with Volunteer Legal Services

s part of the American Bar Association’s “Celebrate Pro Bono Week,” the Austin Bar Association and Volunteer Legal Services of Central Texas (VLS) will host a CLE training and happy hour for the Austin Affinity Bar Associations. This training is free to attorneys who volunteer at an Austin Bar or VLS legal clinic. “The Power of Pro Bono” will be held on Thursday, Oct. 25, from 3:30 – 5 p.m. and will provide 1.5 hours of ethics credit. The CLE will be held at Silicon Labs, 400 W. Cesar Chavez St., 6th floor and will

VLS could not advance its access-to-justice mission without the support of dedicated attorneys who donate their time and expertise.

National Pro Bono Celebration October 21 – 27, 2018

OCT 25 THE POWER OF PRO BONO SILICON LABS 3:30 – 6 p.m. RSVP: austinbar.org

be followed by a free happy hour from 5 – 6 p.m. VLS could not advance its access-to-justice mission without the support of dedicated attorneys who donate their time and expertise to provide civil legal services. These services include protecting victims of domestic violence, helping families fight wrongful evictions/foreclosures, and supporting children, seniors, and veterans who have been denied access to benefits.

AUSTIN BAR’S PRO BONO EFFORTS Austin Adoption Day CANLAW Clinic Disaster Relief Clinics (Hurricane Harvey; Bastrop fires; Blanco, Onion Creek, and Wimberley floods) Free Legal Advice Clinic for Veterans Immigrant Crisis Response Self-Represented Litigant Project at the Travis County Law Library and Self-Help Center The Austin Bar is made up of more than 4,300 attorneys within the Austin area. The Austin Bar prides itself on a long-standing commitment to providing attorneys with continuing legal education, networking, and social opportunities, as well as providing

service to the community. If you have an interest in volunteering with VLS or the Austin Bar, attend this training to learn more about the various pro bono volunteer opportunities and resources available. To register, please visitLAWYER AUSTIN AL AL vlsoct.org/eventscalendar.

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CONTENTS

AUSTINLAWYER OCTOBER 2018 | VOLUME 27, NUMBER 8 AL A L INSIDE FEATURED ARTICLES 1

The Austin Bar Celebrates Pro Bono Week

Celebration Includes Hosting Free Ethics CLE, “The Power of Pro Bono,” with Volunteer Legal Services

Get Engaged: Community Engagement Committee Debuts

Introducing the Austin Bar Pro Bono Committee

10 Reaching Out to Those in Need—

The Lawyer Referral Service of Central Texas

11 Pro Bono Week is Good for Your Health Tips to Lawyer Resilience 14 Celebrating 125 Years of the Austin Bar Association 16 Lawyers for Heart Health 28 The Veterans Legal Assistance Program Thanks Volunteers 29 Law—A Tradition of Service Video Premiers at Austin Bar’s 125th Birthday Celebration

ONLINE

CONNECTIONS

DEPARTMENTS 6 President’s Column 7 Pro Bono Spotlight 12 Briefs 19 Opening Statement 20 Third Court of Appeals Civil Update 22 Third Court of Appeals Criminal Update 23 Federal Criminal Court News 25 Federal Civil Court Update 26 AYLA 30 Practice Pointers

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

austinbar.org

NEWS & ANNOUNCEMENTS

EVENTS & MORE

Social Bonds

OCT. 24 Pro Bono Celebration Wed. Oct. 24, 5 – 7 p.m. The Highball, 1120 S. Lamar Blvd. RSVP at austinbar.org

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN LAWYER SEEKS VOLUNTEER EDITOR-IN-CHIEF Austin Lawyer is published 10 times each year by the Austin Bar Association. The editor-in-chief proofreads and edits each issue in collaboration with the managing editor, maintaining a structured layout, print, and distribution schedule. The editor-in-chief also serves as a member of the Austin Bar’s Communications Committee that provides input on content and layout. Those interested in the position should contact current editor-in-chief, Kennon Wooten, at Kwooten@scottdoug.com or 512.495.6341 for more details. Names of prospective candidates will be collected through the end of 2018, with a trial editing run to be conducted in the spring of 2019. The new editor-in-chief would begin service in June 2019 for the July/August issue of Austin Lawyer.

AUSTIN BAR ASSOCIATION Adam Schramek........................ President D. Todd Smith............................. President-Elect Kennon Wooten....................... Secretary David Courreges...................... Treasurer Amy Welborn �� Immediate Past President

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

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

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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., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District 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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Get Engaged: Community Engagement Committee Debuts BY BLAIR DANCY

re you interested in getting more involved and meeting passionate people, all while proudly representing the Austin Bar Association? If so, the Community Engagement Committee is for you! Our goal is to raise the profile of lawyers and the Austin Bar within the community, to promote the rule of law, to encourage civil and informed discourse, and to support the people and ideas that make Austin (and our state and country) a great place to work and call home. We are planning to participate in parades, volunteer opportunities, arts and culture, and discussions about the issues that affect all of us. The committee is non-partisan. Why do this, you might ask? Because we can do better. In a 2013 survey about which professions contribute most to society’s well-being, attorneys lagged behind the military, teachers, medical doctors, scientists, engineers, clergy, artists, journalists, and even business executives. At the same time, society has become more polarized in the last 25 years, with some of the blame being placed on the distance social media allows us to maintain between each other. Meanwhile, Austin ranks behind Dallas in terms of volunteerism and behind Dallas, Houston, and San Antonio for charitable giving. Our history is peppered with attorneys. At least seven lawyers fought at the Alamo. Of the framers of the United States Constitution, 32 of the 55 were lawyers. But lawyer engagement has dwindled, and our reputation remains poor. In the mid-1800s, almost 80 percent of members of Congress were lawyers, falling to under 60 percent by the 1960s, and just under 36 percent currently. Enter the Austin Bar’s Community Engagement Committee.

We won’t be attending any constitutional conventions or fighting Santa Anna’s armies, but we can still make a difference. That difference starts with showing up: Through community events, articles, volunteerism, and other opportunities that our committee members identify. Our next meeting will be at the Austin Bar office on Oct. 24 at noon. Please RSVP to Nancy

Gray at nancy@austinbar.org. The theme of this year’s November 12 Veterans’ Day parade is World War I, the putative war to end all wars. We will talk about that parade and others; the arts and creative community, long under siege by Austin’s phenomenal growth and economic success; public interest groups and volunteer opportunities; increasing the

quality of political engagement and discourse through targeted and non-partisan articles and engagements; and other opportunities that are of interest to you, our members. The ultimate question is this: As a lawyer, how do you want to make Austin a better place? Come join the Community Engagement Committee asLAWYER we work AUSTIN AL AL together to find the answer.

OCTOBER 2018 | AUSTINLAWYER

PRESIDENT’S COLUMN ADAM SCHRAMEK, PARTNER, NORTON ROSE FULBRIGHT

Join Us for a Pro Bono Celebration

ational Pro Bono Week is October 2127, and the Austin Bar is celebrating it by honoring those who step up and step out by doing pro bono work in our community. The Pro Bono Committee and Social Committee are joining forces for a Pro Bono Celebration on Wednesday, October 24, from 5 to 7 p.m. at The Highball, located at 1120 S. Lamar Blvd. Our guests of honor at the celebration will be every Austin Bar member who has handled at least one pro bono matter during 2018, including volunteering at a legal advice clinic. Many of you have worked on pro bono matters through your firms, through Austin Bar programs, or with other local pro bono organizations. Many have done pro bono work that

has gone unreported. We want to celebrate you all. Please RSVP for the Pro Bono Celebration at austinbar.org. Haven’t done any pro bono yet this year? Don’t worry; there’s still time to become a guest of honor by taking on a pro bono matter. In fact, you can become a guest of honor the night before the Pro Bono Celebration by attending AYLA’s pro bono event at the Community First Village (see the AYLA President’s Column on page 26 for more details). We lawyers are at our best when we are doing pro bono work. I know I’ll never forget the time the immigrant family I represented found out that each member of the family had been granted asylum. In their home country, they had fought against local corruption and gang violence. One day, they came home to find several relatives murdered. With no place left to turn, they packed the few belongings they had and headed north, to the home of the free and the land of the brave. When the family learned they had been granted asylum and could now make a new life in America, the mother turned to me and

At the Pro Bono Celebration, we’ll hear stories about how pro bono representation has made a significant impact on both lawyers’ and clients’ lives. said “we prayed and prayed for this, thank God for you.” At the Pro Bono Celebration, we’ll hear stories about how pro bono representation has made a significant impact on both lawyers’ and clients’ lives. We’ll have a special toast to our guests of honor for their pro bono service. And it would not be a celebration at The

Highball without full access to the karaoke rooms. So get your go-to karaoke songs ready (sorry folks, “Sweet Caroline” is already taken). I hope you’ll join me at the Pro Bono Celebration, where we can share our stories, celebrate our achievements, and commit ourselves to AUSTIN continuing to do LAWYER AL AL this very important work.

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PRO BONO SPOTLIGHT

The Texas Civil Rights Project

his summer brought the eyes of the world on Texas. The Trump administration’s zero-tolerance policy meant that thousands of people fleeing their home countries would now be prosecuted in federal courts along the border. In addition, people who entered with their minor children would face prolonged separation for an unspecified amount of time. As lawyers and advocates in Texas, the Texas Civil Rights Project (TCRP) worked around the clock to document hundreds of cases of children taken from their parents since mid-May. Each morning since May 2018, with the support of dozens of pro bono volunteers, their team went to the federal courthouse in McAllen, seven miles from the Mexican border. They arrived no later than 7:45 a.m., passed the metal detectors at the security check, and made sure to get to the eighth floor by 8 a.m. They documented 382 cases of separation in the McAllen courthouse alone. With this information, TCRP successfully brought a petition

lighted two things the TCRP knows to be true in its work: Texas is at the center of the biggest challenges to civil rights in the country, and TCRP cannot fight back without the support and partnership of pro bono partners. While family separation, rightfully, captured the indignation of the world, TCRP knows that many other communities in our state continue to suffer from a regression of hard-won civil rights. According to TCRP, Texas remains at the bottom of both voter registration and turnout rates, because of a regime of voting rules and restrictions that have been described as “straight out of the Jim Crow playbook.” In TCRP’s view, Texas treats voter registration like a criminal offense and makes it as difficult as possible to do. Indeed, many nonpartisan voter registration groups have scaled back their efforts because of fear of making a mistake. Just as importantly, thousands of people in Texas prisons continue to face almost daily violations of their civil rights. In one of the hottest summers

Texas is at the center of the biggest challenges to civil rights in the country, and TCRP cannot fight back without the support and partnership of pro bono partners. to the Inter-American Commission for Human Rights, which demanded that the Trump administration reunite families. Additionally, their pro bono volunteers went even further and took on more than 100 of these immigration cases to represent each of the separated families through their immigration process. This flurry of activity high-

on record, the vast majority of state prisons still do not have air conditioning—creating conditions where cell temperatures can reach well over 105 degrees. These cell-ovens have been linked to numerous deaths attributed to heat-related illnesses during the past 20 years. A recent settlement between Edwards Law and TCRP with the Texas Department of

ABOVE: Pro bono attorneys from Haynes & Boone at the TCRP office in south Texas. The group successfully represented a mother who had been separated from her 12-year-old daughter. RIGHT: (from left) Laura Peña, staff attorney at TCRP and Georgina Guzman, paralegal at TCRP, in south Texas with a father and his eight -year-old daughter who had just been reunited.

Criminal Justice brought heat relief to the Wallace Pack Unit in Navasota, but much work still remains. This includes answering the fundamental question: How are Texas prisons rehabilitating individuals to re-enter our communities? These challenges are not insurmountable. From advancing voting rights, reforming the criminal justice system, and protecting the rights of immigrants, TCRP fundamentally believes that legal advocacy and litigation are critical tools to protect and advance the civil rights of everyone in Texas. TCRP also believes that by serving the rising social justice movement in Texas with excellent legal representation and bold strategies, it can fight back and win. But, the TCRP cannot do the work that needs to be done

without the partnership of dozens of pro bono attorneys from across the state. In this time of increased attacks on the civil rights of vulnerable Texans, TCRP is proud to receive the support of their community members. Attorneys interested in joining the TCRP’s pro bono network can sign up at www.texascivilrightsproject.org. TCRP’s pro bono opportunities are diverse, ranging from research projects to civil rights trials to appellate work. Past and current pro bono counsel represent all faces of the legal community. TCRP is a 501(c)(3) nonpartisan and non-profit organization with offices in Austin, Alamo, Dallas, and Houston. Pro bono opportunities exist in all of these cities and attorneys are invited to partner with TCRP AUSTIN as it continues LAWYER AL AL its important work in Texas. OCTOBER 2018 | AUSTINLAWYER

Introducing the Austin Bar Pro Bono Committee

o further Austin Bar Association President Adam Schramek’s “Stepping Up and Stepping Out” pro bono initiative which seeks to engage Austin Bar members to provide more pro bono service in the community, the Austin Bar has formed a new Pro Bono Committee, chaired by AYLA Past-President Austin Kaplan. Kaplan recently answered a few questions about the newly formed group. AL: What is the Austin Bar Pro Bono Committee? AK: The vision for the committee is to bring pro bono stakeholders together to meet, plan, and collectively come up with the best ideas to help those who need it most. This work is especially crucial now, with so many in our community in need. AL: What are the goals of the committee? AK: The goals are to expand pro bono participation by supporting, incentivizing, and recognizing pro bono efforts. In the support role, we will be looking for gaps in the pro bono system and identifying potential solutions. One example might be how to address low-income clients who apply for services with grant-funded providers but who exceed those providers’

income requirements. These clients still need legal help and need to find another organization who can assist on a pro bono or low bono basis. Another example would be matching a great pro bono project that needs attorney resources with firms or groups of attorneys seeking to get involved with pro bono projects. Additionally, we are coordinating with the State Bar of Texas’ initiative, www. probonotexas.org, and hope to create a shared pro bono calendar. To incentivize and recognize pro bono efforts, we are considering lots of options. We are working with the Austin Bar’s Social Committee to plan the upcoming Pro Bono Celebration at The Highball, where attorneys who have done pro bono work this year will be recognized and honored. All are invited to attend. Please RSVP at austinbar.org. To be recognized as a guest of honor, indicate on the RSVP whether or not you have handled a pro bono matter in 2018. We will also launch a social media campaign to encourage attorneys to do pro bono cases and share their successes. We know that our community of attorneys is doing great work, and one of our goals is to better feature that. If you know of

The vision for the committee is to bring pro bono stakeholders together to meet, plan, and collectively come up with the best ideas to help those who need it most. someone who deserves a shoutout for pro bono work they’ve done, email us at probono@ austinbar.org and let us know. We are always looking for pro bono rock stars! AL: What events are coming up?

someone who you think should be on this new committee, please let us know. AL: When and where does the committee meet? AK: We meet monthly at noon in the Austin Bar’s board room. Our next meeting is scheduled for Monday, Oct. 15. We will also have a call-in or video conference option for those who can’t make it in person. Please email probono@austinbar.org if you plan to attend so we can order enough food.

AK: We have several events scheduled during the American Bar Association’s “Celebrate Pro Bono Week.” We hope everyone will participate in at least one of the following: • Oct. 23 – AYLA’s Community First! Village Legal Clinic; AL: Should I encourage • Oct. 24 – Stepping Up and my friends and colleagues to Stepping Out: A Pro Bono get involved? Celebration at The Highball; and AK: Most definitely. If we end • Oct. 25 –“Power of Pro Bono” up forming the largest pro bono free ethics CLE and happy committee in the state and need hour, sponsored by VLS and to find a bigger room to meet, the Austin Bar. that’sLAWYER a problem we would love AUSTIN AL AL to have! AL: How can someone get involved? AK: Email probono@ austinbar.org, or sign up at the Celebrate Pro Bono party at The Highball. Similarly, if you know

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Reaching Out to Those in Need— The Lawyer Referral Service of Central Texas BY ANNIE MELENDEZ, EXECUTIVE DIRECTOR OF LRS

n excellent local resource that may be able and successful to resolve the issues. Referral public service clients end their call with a has a foundation sense of community engagement of great customer service. At because LRS helps them navithe Lawyer Referral Service gate through their dire situation. of Central Texas (LRS), we are Simply put, LRS staff and its dedicated to serving our local members care. attorney members by sending In 2017, LRS answered more them potential clients. We also than 18,000 public calls and serve our local community referred approximately 5,700 of by referring them to vetted those calls to our LRS members. attorneys. This is what sets How did all of those people in LRS apart from other means the community find LRS? Other of finding a lawyer, such as than word of mouth, they found internet directories, online legal LRS through local lawyers and document creation sites, and law firms who sent them our other legal advertising. way—a confirmation that our At LRS, we provide a live mission of simultaneously servperson to speak with. Our intake ing the community and attorneys counselors are knowledgeable is supported by our local legal in different areas of law and community. are empathetic to the person LRS wishes to thank its curseeking legal direction. We help rent and past members who have the potential legal clients sort supported our public service through their situations and and who have provided great help determine whether they AUSTIN customer service to our legal LAWYER AL AL need a lawyer referral or another clients.

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“An excellent lawyer, I couldn’t be more satisfied. I want to thank the Lawyer Referral Service team for your help.”

“Your service was amazing. Very responsive, and very high on customer service. Everyone I spoke with seemed genuinely concerned that I got the help I needed. Thank you.”

Pro Bono Work is Good for Your Health Tips to Lawyer Resilience BY CHRIS RITTER (The following is an excerpt from a paper, “Tips to Lawyer Resilience: Five Evidence-Based Strategies,” which can be found at austinbar.org/lawyer-wellness.) WHY SERVICE WORK?

Service work may sound like just one more thing to add to the list of things you do not have time for, but it is definitely helpful for you, so really consider making time to do it. Obviously, until you secure your oxygen mask, you should not attempt to rescue others. But lawyers have been found to gain “intense satisfaction” from doing service work,1 and studies show it helps improve mental health and happiness.2 Evidence suggests that service work can help offset the effects of stress that lawyers face. In a major study of 30,000 people, those who were employed in high-stress jobs had a 43 percent higher rate of death over a 10-year period;3 however, in a related study of those who regularly performed service work to give others help, the rate of death was completely normal despite having high-stress jobs.4 Therefore, doing service work

is absolutely a strategy that can offset the harmful effects of stress in your practice. A researcher named Dr. Martin Seligman showed how this kind of work can also increase happiness. In an experiment called “Philanthropy versus Fun,” Seligman divided his psychology students into two groups. The first group partook in pleasurable pastimes such as eating delicious food and going to the movies. The second group participated in philanthropic activities—volunteering to feed the homeless or assist the physically handicapped. What Seligman found was the satisfaction and happiness that resulted from volunteering was far more lasting than the fleeting reward of food or entertainment.5 Even if you feel that it is being done for your own selfish gain, try it anyway. Before long you will experience a heightened sense of peace, joy, and satisfaction in life. When I was in a particularly flat period in my litigation practice, I was asked to serve on a board and I happily accepted. I later learned that Mealson-Wheels required its board

If one life lost to suicide is too many, imagine the cost of not preventing the suicide of our next Abraham Lincoln, who may, right now, be attending law school.

members to serve, and despite my full schedule, I made the time. It was life-changing for me. I will never forget the tears in my eyes after a visit with one of the first ladies for whom I provided a meal. When I asked her how she was doing that day, she choked up and joyfully thanked me for asking. She said the person the day before had just put the food down and left. She hadn’t spoken to anyone and she appreciated my kindness. My worries about my earlier botched deposition melted away in that moment. Lawyers can do service work for each other, as well. This is illustrated particularly well by one famous lawyer’s powerful story: Some may recall a little-known member of the Illinois bar, a lawyer who suffered from suicidal depressions as a young man. After losing his true love to an early death, he became so despondent he told others he felt like killing himself. Recognizing his despair, his friends and colleagues in the bar rallied to his support, took away his pistols and knives, spent time with him, and even locked him up to protect him from himself. Abraham Lincoln thus survived his suicidal crisis and learned to live with and gain insights from the depressions that revisited him throughout his life. If one life lost to suicide is too many, imagine the cost of not preventing the suicide of our next Abraham Lincoln, who may, right now, be attending law school.6 SCHEDULE SERVICE WORK

While you may have good intentions and believe in the research that shows how much helping others can improve your life, it means nothing unless you take action. But lawyers rarely take action unless it gets on the

Chris Ritter is an attorney for Texas Lawyer Assistance Program (TLAP) and co-chair of the Austin Bar’s Health and Wellness Committee.

calendar. Therefore, decide upon a cause you care about such as Meals-on-Wheels, Big Brothers Big Sisters, the local food bank, a shelter, or any other helping program that matters to you. Sign up for service a couple of times per month. Try AUSTIN it and seeLAWYER how AL AL your quality of life changes. Footnotes 1. See Lawrence S. Krieger and Kennon M. Sheldon, What Makes Lawyers Happy? Transcending the Anecdotes with Data from 6200 Lawyers . Geo. Wash. U. L. Rev. 83 (2015 Forthcoming), FSU College of Law, Public Law Research Paper No. 667(2014) (citing Bruno Frey & Alois Stutzer, HAPPINESS AND ECONOMICS: HOW THE ECONOMY AND INSTITUTIONS AFFECT HUMAN WELL-BEING at 105 (2002)). 2. See also the following video of Dr. Charles Raison, the Assistant Professor of the Department of Psychiatry and the Director of the Mind/Body Program at Emory University, in which Dr. Raison talks about happiness and what causes it: http://www.youtube.com/ watch?v=0orvsH07zeg. 3. A. Keller et al., Does the Perception that Stress Affects Health Matter? The Association with Health and Mortality. Health Psychology, 31(5), p. 677-684 (2012). 4. M.J. Poulin et al., Giving to Others and the Association Between Stress and Mortality. American Journal of Public Health, 103(9), p. 1649-1655 (2013). 5. See Karen Salmansohn, The Bounce Back Book (Workman Publ’g 2008), partially available online at http:// www.psychologytoday.com/blog/ bouncing-back/201003/the-worldtaking-it-outta-you-seligman-studyshows-how-you-can-cheer-givin. See also Martin E. P. Seligman, Authentic Happiness (Simon & Schuster 2002). 6. See Simpson, S., & Quinnett, P. (2008). Preventing Suicide – A Challenge to the Legal Profession. GP Solo, 25(7), 60-1 (Story used with express permission). OCTOBER 2018 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Steve Aragon Ard Ardalan Gregory Arnold Evan Atkinson Jason Casey Richard Ellis Victor Erbring Margaret Friess James Holian Tricia Jackson Justin Krawitz Allison Lowry Darin Moore Erik Moskowitz Colleen Murphey Raul Sandoval Andrew Scott Alessandro Serra Elizabeth Waldman Meghan Weller

Graham, Kelly, McDonald, Nelson, Scott, and Springer.

AWARDS

Best Lawyers has named partner Brian Graham from the Austin office of global law firm K&L Gates as the 2018 Immigration Law Lawyer of the Year in Austin. The Lawyer of the Year distinction is awarded to a single attorney with the highest overall peer feedback in each practice area and location. Mothers Against Drunk Driving (MADD) has presented Chari Kelly, a felony prosecutor, with its Prosecutor of the Year Award for 2018. The award was handed out on September 14 at the Annual Travis County Law Enforcement Recognition Luncheon.

Jeff McDonald, a partner with McDonald, Mackay, Porter & Weitz, was recently awarded a Meritorious Service Award for his 21 years as the field representative for the Impaired Physician Committee of the Texas Osteopathic Medical Association. Dickinson Wright is pleased to announce that John R. Nelson and Mark E. Scott of the firm’s Austin office have been named 2018 Texas Super Lawyers. Nelson practices business litigation, and Scott practices intellectual property law. Julie A. Springer, a founding partner of the Austin-based commercial litigation firm

Weisbart Springer Hayes, has been accepted into the American Board of Trial Advocates (ABOTA). IN MEMORIUM

Judge John F. “Jack” Onion, Jr. passed away at the age of 93 on September 2, 2018. Onion was elected to the Court of Criminal Appeals in 1966 and became Texas’ first elected presiding judge in 1970. He served on the court for 22 years. After retiring, he served another 22 years as a visiting judge and ended his judicial career at the age of 85.

Family Law Specialist

*Kimberly A. Edgington Tim Whitten has practiced in family law since 1992. He has been certified kim@whitten-law.com as a Family Law Specialist by the Texas Board of Legal Specialization.

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AUSTINLAWYER | OCTOBER 2018

Celebrating 125 Years of the Austin Bar Association

he Austin Central Library’s special event center provided the perfect backdrop for the Austin Bar Association’s 125th anniversary party. The cocktail reception was held on August 29, 2018—a date proclaimed by both the City of Austin and Travis County as “Austin Bar Association Day”—in honor of the organization’s quasquicentennial anniversary. Around 400 guests were serenaded by a string quartet from Austin High School under the direction of Ana Solis-Herrara. The event allowed attendees to reminisce by viewing a slideshow of old photos, a scrapbook, and a photo album compiled of pictures taken throughout the years. A large gathering of the Austin Bar’s past-presidents provided a perfect photo opportunity, and many longtime friends of the Austin Bar joined in the celebration. Many newer Austin Bar members had the rare chance to mix and mingle with those who are now retired from active participation. The cross-generational

nature of the gathering was almost like a family reunion, with younger children meeting the family elders for the first time. According to Randy Howry, who was president of the Austin Bar from 2005-06, “The great camaraderie of the Austin Bar was on full display at the 125th celebration. While we are so fortunate to live and practice law in this wonderful city, the talent and dedication of the members of our Bar, past and present, is what separates us from all the rest. It was truly inspiring to attend the celebration and be reminded of the historical accomplishments of our Bar. There is no doubt that the seeds of success of our Bar, planted 125 years ago, will continue to grow long into the future.” Another long-time Austin Bar member and the first woman president of the Texas Young Lawyers Association, Berry Crowley, commented, “It’s nearly impossible for me to separate my personal history in Austin from my history in the Austin Bar, as the two are similar and go hand in hand. When I

It was truly inspiring to attend the celebration and be reminded of the historical accomplishments of our Bar. There is no doubt that the seeds of success of our Bar, planted 125 years ago, will continue to grow long into the future. moved to Austin in 1974, I was already an old ‘bar hand’ from Brenham where I was president of the Washington County Bar Association as a second-year lawyer. It seemed only natural to immediately join the Travis County Bar Association (as the Austin Bar was then called) and the Austin Junior Bar Association (now AYLA). I cannot separate my personal life from my professional life as they have been so inextricably intertwined for my entire career, including my marriage to Mike Crowley, himself a past-president of the Austin Bar and a leader in both the State Bar of Texas and the American Bar Association.” The highlight of the evening was the presentation of two

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awards. The Regina Rogoff Award recognizes outstanding public sector service as a tribute to the career and achievements of Regina Rogoff, former executive director of Legal Aid of Central Texas. This year’s recipient was Travis County Assistant District Attorney Craig Moore. Moore has been prosecuting felonies for Travis County since 2008. Before that, he was an assistant county attorney prosecuting misdemeanors. He’s chaired the award-winning AYLA Re-entry Project and currently chairs the Austin Bar’s CLE Committee. He’s also on the board of directors for the new Sobering Center, which provides a safe environment for publicly intoxicated individuals to sober up and to initiate recovery.

The Professionalism Award is given in partnership with the Texas Center for Legal Ethics and honors an Austin attorney who best exemplifies, by conduct or character, truly professional traits; who others in the bar seek to emulate; and who all in the bar admire. The Professionalism Award was presented to Patrick Keel, former district judge and current mediator and arbitrator. He has served on the Professional Ethics Committee of the State Bar of Texas since 2009, by virtue of a Texas Supreme Court appointment. He is also a member of the Texas Chapter of National Academy of Distinguished Neutrals and is a speaker on mediation, arbitration, and professional ethics. In 2017, he received the UT School of Law Alumni Association’s award for Mentor of the Year. He is also a member emeritus and former president of the Robert W. Calvert Inn of Court. Also honored for her 34 years as executive director of the Austin Bar was DeLaine Ward. “For the past 34 years, our great association has had someone

“To our rich history and those who came before us; to our bright future, and those who will follow. To the practice of law, and our never ending pursuit of a better, stronger, and more just society, with lawyers, the legal profession, and our bar association leading the way.” —PRESIDENT ADAM SCHRAMEK

be its institutional memory, its spokesperson, its administrator, its fearless leader, and its greatest advocate,” said President Adam Schramek as he presented her with a gift to thank her for her service. The evening ended with a toast to the Austin Bar, given by Schramek, “To our rich history and those who came before us; to our bright future, and those who will follow. To the practice of law, and our never ending pursuit of a better, stronger, and more just society, with lawyers,

the legal profession, and our bar association leading the way.” The Austin Bar is just getting warmed up after 125 years of serving Austin’s legal commu-

nity. The 125th Celebration was a wonderful occasion to look back as we leap forward towards a new and even brighter future. AUSTIN LAWYER AL AL The best is yet to come!

1. A number of Austin Bar past-presidents gathered before the party began. 2. (L-R) Judge Karin Crump and Kennon Wooten celebrate a toast. 3. (L-R) Austin Bar President-Elect Todd Smith with Executive Director DeLaine Ward and President Adam Schramek. 4. (L-R) Award winners Craig Moore (L) and Patrick Keel (R) with Austin Bar President Adam Schramek. 5. Austin Bar members enjoy the evening. 6. (L-R) Ann Greenberg and her son, Rudy Metayer, Adam Schramek and David Courreges. 7. Friends, old and new, mixed and mingled at the event. 8. (L-R) Randy Howry with Chief Justice of the Third Court of Appeals Jeff Rose. 9. Terry Bray, past-president of the Austin Bar 1989-90. 10. (L-R) Marc Chavez, Berry Crowley, and Priscilla Cortez, executive director of Volunteer Legal Services. Photos by Alia Alsaffar Photography.

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10 OCTOBER 2018 | AUSTINLAWYER

Lawyers for Heart Health BY BARBARA ELLIS

or more than five years I have been fundraising and leading teams in support of the Austin Heart and Stroke Walk. Why? The American Heart Association says “Life is Why.” For me, it is very personal. I lost my father to a sudden heart attack when I was 30 years old—37 years ago. It meant he saw my daughter only once and he never met my son, his namesake. He missed so much that has happened in our lives since 1981, including my lawschool career that began at age 40 followed by my many years of successful law practice. This year, the Austin Heart and Stroke Walk is on October 20, 2018. There will be both a onemile and a 5K course. In addition to the walk, there will be a 5K run. Teams are forming now. My team is called “Friends of Barbara Ellis.” I, along with Michelle

Cheng and others, fundraise under the umbrella of the Austin Bar Association and its Community Engagement Committee. I would love to see individual lawyers, legal assistants, law office staff, and other lawyer groups participate as part of the Austin Bar team. There is no fundraising requirement, except for the $40 entry fee for the 5K run. Simply go to to the 2018 Austin Heart & Stroke Walk website, and select “Austin Bar Association” as your team. As a lawyer, I know what it is like to experience extreme stress and periods of depression. Both are known causes of heart disease, the leading killer of Americans. We have all seen colleagues and friends succumb to heart attack and stroke that might have been prevented, or effectively treated, if they had known more about the causes and symptoms of cardiovascular disease. The American Heart Association’s

“Friends of Barbara Ellis” team at the 2017 Austin Heart and Stroke Walk.

goal is to improve the cardiovascular health of all Americans by 20 percent and to reduce deaths from cardiovascular disease and stroke by 20 percent by the year 2020. Our participation in the 2018 Austin Heart and Stroke Walk will help fulfill this ambitious goal by providing necessary private funding for research, education, and treatment. Last October, a dear friend of mine was awaiting a heart transplant. Several months earlier,

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she had been in Colorado feeling short of breath and experiencing dull pain across her back. She attributed her issues to high altitude. No. She was having a heart attack. By the time she sought help, her heart was fatally damaged. We carried a sign in the 2017 Heart Walk to “Give Chris a Heart” and three days later she had her successful transplant. Miracles do happen. Please join the Austin Bar Association Heart AUSTINLAWYER AL AL and Stroke Walk team today.

OCTOBER 2018 | AUSTINLAWYER

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OPENING STATEMENT

Somewhat Qualified, Part 1 Don’t Overuse Qualifiers in Stating Facts BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

egal writing deals with concepts that often require qualification, so legal writers occasionally use qualifiers. (I used two in that sentence: often and occasionally.) In this column I define qualifiers and discuss the experts’ advice for using them when writing about facts. I then offer two recommendations. Next month I’ll discuss using qualifiers when writing about legal standards and stating conclusions. A qualifier is a word or phrase, especially an adverb or adjective, that clarifies or modifies another word. We use qualifiers to soften or limit, and intensifiers (discussed in this column in February 2017) to strengthen and bolster. It’s the difference between “the cleaning solution was somewhat defective” (qualifier) and “the cleaning solution was highly defective” (intensifier). The most common fact qualifiers in legal writing relate to frequency and quantity. Here’s a representative list: • generally • often • occasionally • probably • usually • slightly • sometimes • somewhat • typically • virtually Advice from the experts is uniform: qualifiers applied to facts are undesirable in legal writing. In fact, Garner’s Dictionary of Legal Usage contains an entry on qualifiers called Weasel Words, and Garner says these words “have the effect of rendering uncertain or tooth-

less the statements in which they appear.”1 New York trial judge Gerald Lebovits says that instead of using words like typically or usually, legal writers should “resort to the exact figure … or rethink your decision to resort to the qualifier in the first place.”2 Steven Stark, a trial lawyer and the author of Writing to Win, says, “Opinions can be qualified, but facts should not be.”3 He advises, “If you don’t know a fact, don’t hedge—find it out or somehow write around it.”4 And one of my colleagues, also an experienced trial lawyer, “views a qualifier as a red flag—either the attorney hasn’t nailed this fact down yet or it’s maybe not true.” That’s all good advice, and I’ll add only one comment. You can’t eliminate all qualifiers. They’re occasionally (qualifier) necessary, and sometimes (qualifier) harmless. For example, there’s no flaw in this sentence: “About half the time, Crosby, not the supervisor, gave the instructions.” The qualifier (about) serves only to soften the possible implication that the half was exact—precisely 50 percent. That’s harmless. So rather than banishing qualifiers, the better practice (as with all legal-writing tips) is to inform yourself of their effects and exercise your editorial judgment as to keeping or cutting. Now the tips. 1. DROP THE QUALIFIER.

Your fact statement might be better without the qualifier, and it’ll certainly be more concise. So instead of “the cleaning solution was somewhat defective,” you can write, “the cleaning solution was defective.”

A qualifier may be viewed as a red flag— either the attorney hasn’t nailed this fact down yet or it’s maybe not true. Here’s another example: “The average person usually waits three months before seeing a doctor.” The idea is already qualified by the “average person,” so we can omit usually: “The average person waits three months before seeing a doctor.” 2. QUANTIFY OR SPECIFY INSTEAD.

Another tip is to replace the qualifier with specifics. For example, here the writer uses virtually to make a general statement: “There is virtually no seismic data on the Freda Turk Ranch.” If there’s no data, we can apply tip number 1 and write, “There is no seismic data on the Freda Turk Ranch.” But if there’s some data, it’s better

to specify: “There were two seismic surveys completed 22 years ago on only a portion of the Freda Turk Ranch.” So be somewhat bold when you write about facts, and you’ll generally be more credible. Next month, qualifiers legal AUSTINin LAWYER AL AL standards and conclusions. Footnotes 1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 938 (3d ed. 2011). 2. Gerald Lebovits, The Worst Mistakes in Legal Writing, Part 4, N.Y. State B. Assoc. J. 60, 63 (June 2018). 3. Steven D. Stark, Writing to Win: The Legal Writer 45 (2d ed. 2012). 4. Id. at 46.

JULY/AUGUST 2018 | 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 civil opinions issued by the Third Court of Appeals during August 2018. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of September 6, 2018.

ADMINISTRATIVE LAW: Commissioner may not narrow availability of right to appeal. Texas Comm’r of Educ. v. Mission CISD, No. 03-18-00245CV (Tex. App.—Austin Aug. 22, 2018, no pet. h.). Solis filed a grievance when her one-year

contract with school district was not renewed. She eventually petitioned for review with the commissioner, who dismissed for failure to exhaust administrative remedies. The trial court reversed and remanded. The court of appeals noted that the commissioner has jurisdiction to hear appeals of any person aggrieved by action of any school board of trustees that violates school laws. That Solis changed her arguments from the initial grievance to her petition to the commissioner did not amount to a failure to exhaust administrative remedies. Solis alleged that she was not given notice of nonrenewal as required by the statute. Thus, the failure to give notice constituted an election to continue her employment. The commissioner had jurisdiction to consider her claim that the district violated school law by not acknowledging her continued employment. The court affirmed. ADMINISTRATIVE LAW: Court rejects due-course-of-law claim. Texas Dep’t of Motor Vehicles v. Fry Auto Servs., No. 03-1700034-CV (Tex. App.—Austin, Aug. 10, 2018, no pet. h.). Appellees are private companies deputized by local tax assessor-collectors to collect vehicle title and registration fees. DMV adopted rules that

restricted the fees that appellees could charge for their services. Appellees challenged the rules on due-course-of-law grounds. The trial court denied DMV’s plea to the jurisdiction. The court of appeals concluded that appellees do not possess a constitutionally protected right to a particular profit realized from performing a public service on the government’s behalf. Unlike Patel, appellees’ “lawful calling” is wholly a governmental creation and is not protected. Here, appellees had only a unilateral expectation, not a claim of entitlement. Accordingly, the trial court lacked jurisdiction. The court reversed and rendered and affirmed in part. MANDAMUS: Court grants mandamus relief in discovery dispute over cell phone records. In re Padilla, No. 03-18-00477CV (Tex. App.—Austin Aug. 28, 2018, orig. proceeding) (mem. op.). Following a car accident, plaintiff sued alleging negligence, negligent entrustment, gross negligence, and failure to keep a look out. Plaintiff sought discovery of driver’s and company’s cell phone records to support her gross negligence claim and to show a repeated pattern of unsafe cell phone use. The trial court ordered production but for a smaller time period than requested. The court of appeals noted that while dis-

covery is broad, there are limits. A discovery request must show a reasonable expectation of obtaining information that will aid in resolution of the dispute. Plaintiff did not plead that cell phone usage had anything to do with the accident. Accordingly, the discovery request was overly broad in time and scope. The court granted mandamus relief. ESTATE ADMINISTRATION: Without express language, will did not revoke trust. In re Estate of Kuyamjian, No. 03-18-00257-CV (Tex. App.— Austin Aug. 8, 2018, no pet. h.) (mem. op.). Decedent put his house in a revocable trust. Appellant was the sole beneficiary and successor trustee of the trust. Decedent later executed a will that gave his house to his neighbors without mentioning the trust. After decedent’s death, appellant transferred the house to herself. The trial court granted declaratory judgment that the house was part of decedent’s estate and passed according to his will. The court of appeals observed that the trust agreement required revocation of the trust to be in writing. Decedent’s will did not mention the trust and had no language purporting to revoke it. Accordingly, the house was not part of the probate estate and passed according to the terms of the trust. The AUSTIN LAWYER AL AL court reversed and rendered.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

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

The cases summarized are from March 2018 and subsequent histories are current as of August 31, 2018.

PRESERVATION OF BRADY VIOLATION: Appellant’s failure to request continuance waived complaint on appeal that State withheld exculpatory evidence. Boyd v. State, No. 03-17-00353CR (Tex. App.—Austin Mar. 13, 2018, no pet.) (mem. op., not designated for publication). Appellant was convicted of the offense of unlawful possession of a firearm by a felon. During trial, the State informed defense counsel and the trial court that it intended to play a recorded call made by appellant from jail. In the recording, appellant described the firearm that was found in his possession to a friend. After the recording was played for the jury, appellant moved for a mistrial, arguing that he did not receive adequate notice of the call, which had been made months prior to trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963). According to appellant, the evidence was exculpatory Brady material because it tended to 22

AUSTINLAWYER | OCTOBER 2018

show that he was not the owner of the firearm. The trial court denied the motion for mistrial. The appellate court affirmed. The court explained that “to preserve a complaint about a Brady violation, the defendant must request a continuance when the prosecution discloses the evidence; otherwise, the defendant waives the Brady complaint.” In this case, the court observed, appellant failed to request a continuance when the State disclosed the jail call. In his brief, appellant argued that his motion for mistrial should be construed broadly as “a plea for time to study the evidence, a continuance if you will.” However, the court had rejected a similar argument in a prior case, and it followed that holding here. ADMISSIBILITY OF GANG-RELATED EVIDENCE: Trial court did not abuse its discretion in admitting evidence of appellant’s gang affiliation and the gang’s criminal activities. Pina v. State, No. 03-17-00129CR (Tex. App.—Austin Mar. 30, 2018, no pet.) (mem. op., not designated for publication). Appellant was convicted of the offense of firearm smuggling. During an interview with police prior to his arrest, appellant admitted that he was a member of a criminal street gang. This interview and other evidence establishing that the gang was known to law enforcement for its involvement in illegal gun trafficking, was admitted into evidence at trial over appellant’s Rule 401, 403, and 404(b) objections. The appellate court affirmed. The court first explained that the evidence was relevant because it had “some tendency to prove two key elements of the offense,” specifically, that appellant had knowledge that the firearms were stolen and that appellant had traded the firearms “for profit or any

other form of remuneration.” The court also concluded that the evidence was not offered for character-conformity purposes but was instead offered to establish the elements of the offense and to rebut appellant’s defensive theory of accident or mistake. Finally, the court concluded that the evidence was not unfairly prejudicial. The court explained that the probative value of the evidence was high, because it “directly concerned the circumstances surrounding the gun trade at issue.” Therefore, “whatever prejudicial effect the gang related evidence might have,” the effect would not “substantially outweigh” the probative force of that evidence. ADMISSIBILITY OF EXTRANEOUS SEXUAL ASSAULT: Trial court did not abuse its discretion in admitting evidence that appellant charged with sexual assault had sexually assaulted another woman on a prior occasion. McRee v. State, No. 03-1700021-CR (Tex. App.—Austin Mar. 30, 2018, pet. ref’d) (mem. op., not designated for publication). Appellant was convicted of the offenses of aggravated sexual assault and aggravated assault causing serious bodily injury. According to the evidence presented at trial, appellant met the complainant on an online dating site. On their first date, he brought a bottle of wine

to the complainant’s apartment and poured her a glass of wine while she was changing in the other room. The complainant testified that after she drank the wine, she had trouble breathing and began hallucinating. During this time, appellant had sex with the complainant. The complainant continued having health issues days later and was eventually taken to a hospital, where doctors determined that she had suffered a heart attack and “had a high amount of methamphetamine[] in [her] system.” Appellant was subsequently charged with sexual assault. During trial, another woman testified, over objection, that appellant had sexually assaulted her in a similar manner. The appellate court affirmed, concluding that there were enough similarities between the assaults so as to support findings by the trial court that the evidence was probative of critical issues such as consent and thatAUSTIN the evidence was not LAWYER AL AL unfairly prejudicial.

FEDERAL CRIMINAL COURT NEWS

I Know All About Flippers BY DAN DWORIN

“

lipping” a co-defendant, or unindicted co-conspirator, to testify against (hopefully) more culpable parties by offering immunity or a reduced sentence, is a timehonored practice, particularly in federal criminal cases. Cooperation, as it is more politely known, is generally the best way to ensure more lenient treatment by federal prosecutors and the sentencing judge. It is so common, in fact, that there is both a statutory framework and provisions in the United States Sentencing Guidelines which formalize the practice of rewarding cooperating defendants. We can start with the Sentencing Guidelines, which,

The government can file a motion asking the sentencing judge to depart down from the otherwise applicable sentencing guideline range based on the defendant’s “substantial assistance.” while no longer mandatory, must at least be considered by the sentencing court. Since most federal sentences still fall within the guidelines, they remain of extreme importance. The guidelines contain an entire chapter devoted to “flippers.”1 Under these provisions, the government can file a motion asking the sentencing judge to depart down from the otherwise applicable sentencing guideline

Patrick

Keel Former District Judge

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Mediator Arbitrator

range based on the defendant’s “substantial assistance.” In addition, a defendant who provides useful information after sentencing can also be rewarded by a motion for sentence reduction under Federal Rule of Criminal Procedure 35. While full immunity from prosecution is always the goal of a defense lawyer representing a client in an ongoing investigation, it is rarely granted. More commonly, a federal prosecutor will enter into a “proffer agreement” with a defendant, in which the government agrees not to use information provided by the defendant/witness against that particular defendant, so long as he or she is providing truthful information. Since agreements of this kind are usually entered into by defendants hoping to receive a break at sentencing, and are often part of a plea agreement, the use of the statements against the cooperator is generally barred by the terms of the agreement. In addition to motions for downward departure, a prosecutor may offer a “charge bargain,” or plea agreement, in which the defendant is allowed to plead guilty to a charge for which the maximum punishment is less than what was possible under the indictment (or potential indictment in the case of a “flipper” who is not already formally charged). It is a very rare federal criminal case that does not involve cooperating defendants, or other

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.

types of “flippers.” Cross-examination of such witnesses often involves having them make detailed admissions of the extent of their criminal liability, as well as the benefit they are receiving as a result of their deal. Their credibility is for the jury to decide, but the practice of offering sentence leniency in exchange AUSTIN LAWYER L AL for testimony is hardlyAnew. Footnote 1. USSG sec. 5k1.1

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FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued from the U.S. Court Of Appeals for the Fifth Circuit. The summaries are intended as an overview; counsel are cautioned to review the complete opinions.

JURISDICTION: A decision reached by a state administrative agency is not final for the purposes of administrative exhaustion in Texas until the time to seek substantial-evidence review expires or a party who seeks judicial review exhausts the substantial-evidence review avenues. Autobahn Imports, L.P., v. Jaguar Land Rover North America, LLC, No. 17-10737 (5th Cir. July 13, 2018). Autobahn sought a declaration from the Board of the Texas Department of Motor Vehicles that Jaguar’s efforts to chargeback some $300,000 in incentive payments violated the Texas Occupations Code. The Board referred the case to an administrative law judge, and the Board adopted the ALJ’s findings, issuing a “final order” invalidating and rescinding the chargebacks. Jaguar appealed. While the appeal was pending, Autobahn brought suit for breach of contract and violations of the Texas Deceptive Trade Practices Consumer Protection Act (“DTPA”). Autobahn sought summary judgment based on the findings of the Board. In response, Jaguar argued the action was premature because Autobahn had not yet exhausted its administrative remedies. The district court granted Autobahn’s motion and Jaguar appealed. In the interim, the Texas Court of Appeals affirmed the Board’s order. Federal courts must apply state law on the administrativeexhaustion question. The Fifth Circuit drew heavily from Subaru of America v. David McDavid Nissan, 84 S.W.3d 212 (Tex.

2002), as “the most thorough explication of exhaustion and the Board’s jurisdiction.” The Court highlighted the Texas Supreme Court’s explanation of the two forms of jurisdiction enjoyed by Texas agencies: “primary” and “exclusive.” Where the jurisdiction is exclusive, a party must exhaust administrative remedies before a trial court has subject matter jurisdiction over a dispute. The Texas Motor Vehicle Commission Code gives the Board exclusive jurisdiction over claims and issues governed by the Code, including the claims raised by Autobahn. The Court also opined that the Board’s decision would become “final” (and thus administrative remedies exhausted) only when either the opportunity to seek substantial-evidence review has expired or such review has been exhausted. The Fifth Circuit thus concluded that Autobahn had not exhausted its administrative remedies until the Board’s order was affirmed, leaving the district court without the jurisdiction to decide the matter when it did. ARBITRATION: The principle that arbitration clauses should be read broadly should not serve to stretch an arbitrator’s authority beyond the scope intended by the parties. Hebbronville Lone Star Rentals, LLC, et al. v. Sunbelt Rentals Industrial Services, LLC , No. 17-50613 (5th Cir. Aug. 6, 2018). Lone Star Rentals was purchased by Sunbelt Rentals. As part of the sale, Sunbelt promised an incentive payment “earnout” to Lone Star’s CEO if he could maintain or increase revenue from Lone Star’s premerger customers. A dispute arose regarding the calculation of the revenue figure, and the parties submitted the question to an arbitrator. The arbitrator resolved the issue but also reformed the contract to correct what the arbitrator determined to be a mutual mistake.

The authority of an arbitrator is a matter of contract. Where parties enter into an arbitration agreement, there is a presumption that the clause covers a dispute in accordance with public policy. Unambiguous language controls where the issue is the scope of an arbitrator’s power. The agreement between the parties consistently referred to the dispute-resolution procedures as relating to any proposed adjustments to revenue calculations. The agreement did not, however, apply to the underlying calculations used in the original contract or the power to reform the original contract. The Fifth Circuit referred to a recent Sixth Circuit decision which similarly concluded that an arbitration agreement to resolve disputes regarding earnout calculations did not constitute an agreement to arbitrate all disputes between the parties that may affect earnout payments. Smith v. Altisource Sols., 726 F. App’x 384, 391 (6th Cir. 2018). The Court therefore upheld the arbitrator’s determination of the calculation of revenues and the district court’s vacation of the contract reformation, and remanded for the district court to consider the question of mutual mistake. CIVIL PROCEDURE: When the deficiencies in the non-movant’s case are insurmountable, the movant’s failure to specify the laws and facts that entitle a movant to a Rule 50 judgment does not impair the Court in granting such a judgment. Kelso v. Butler, No. 15-30169 (5th Cir. Aug. 13, 2018). Kelso, representing himself at trial, asserted breach of contract claims against Butler, her family, and a number of entities created to manage the Butlers’ property. Kelso called two witnesses, one being Butler, and rested his case. Butler orally sought a Rule 50 judgment as a matter of law in a brief exchange with the judge, which was granted after a

Wilson Stoker is board certified in labor and employment law by the Texas Board of Legal Specialization and senior counsel with Cokinos | Young.

recess. Kelso appealed. Federal Rule of Evidence 50(a) requires that motions for judgment as a matter of law specify the judgment sought and the law and facts that entitle the movant to the judgment. Even assuming Butler’s motion was insufficiently specific, however, under a plain error review, Kelso must demonstrate that the district court’s error was clear or obvious and affected Kelso’s substantial rights. The Fifth Circuit determined that according to uncontroverted trial testimony, Kelso sought to recover missed payments on an open account under Louisiana law, and the prescriptive period to recover payments elapsed years before he brought suit. The Court disagreed with Kelso’s legal interpretations regarding mineral interests in a purchase option contract. In fact, the Court denied Kelso’s argument that he had presented evidence for a breach of the mineral development contract, as his evidence has demonstrated the opposite under Louisiana law. Thus, the Fifth Circuit affirmed the Rule 50 motion because Kelso could not have presented legally sufficient evidence to AUSTIN LAWYER AL AL support any of his claims. OCTOBER 2018 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN JORGE PADILLA, JACKSON WALKER

AYLA to Hold Legal Clinic During Pro Bono Week

n the year before beginning my term as president of AYLA, I spent quite a bit of time thinking about which programs I wanted to implement for our organization. Time after time, I kept coming back to a speech I heard given by Alan Graham, the founder and president of Mobile Loaves and Fishes. If you don’t know, Mobile Loaves and Fishes’ food truck teams provide Austin’s homeless and working poor with food, clothing, hygiene products, and other life-sustaining items seven days a week, 365 days a year. As I heard in his talk, Graham and his volunteers do more than just provide food and personal items, they also build relationships. They aim to provide dignity and respect to a community that is often cast aside. I experienced first-hand the tremendous benefits provided by Mobile Loaves and Fishes when I volunteered to do a food truck run on Christmas morning. Along with two of my daughters, we spent the morning handing out breakfast biscuits, coffee, and warm clothing. But we also spent time talking, shaking hands, and getting to know these neighbors who, for one reason or another, found themselves in a difficult time. Around the same time, I discovered Graham and Mobile

AUSTINLAWYER | OCTOBER 2018

Loaves and Fishes had founded Community First! Village, a 27acre master-planned community in east Austin that provides affordable, permanent housing and support for the disabled and chronically homeless community. I coordinated with its staff for Community First! to be one of AYLA’s volunteer opportunities in our annual MLK Day of Service last January. After spending the morning at Community First!, I was inspired by the community, the creative use of tiny homes and trailers, as well as the many on-site employment opportunities provided for the residents. Among many other benefits, Community First! Village provides its residents with health care screenings, places for worship, an outdoor movie theater, and a community market. After several discussions with their staff, I learned there was a real need for legal services at Community First!. I’m excited to announce that AYLA will provide quarterly pro bono legal clinics to Community First! residents. The clinics will initially focus on assisting the residents with key life documents, including medical powers of attorney, directives to physicians, HIPAA release forms, and statutory powers of attorney, to name a few. However, volunteer attorneys will also assist with other legal issues. The first AYLA/Community First! Village Pro Bono Clinic will be held during Pro Bono Week, on Tuesday, October 23, from 5:30 – 8:30 p.m. AYLA will also coordinate a resource fair to be held at Community First! in the spring of 2019, which will bring together several social

AYLA members working at Community First! Village on MLK Day of Service, 2018.

service organizations to provide benefits to the Community First! residents. If you are interested in serving on the committee for our Community First! Village Pro Bono Clinics and Resource Fair, contact chairs Erin Bennett at erinelenabennett@gmail.com, or Jennifer Hopgood at jennifer. hopgood@oag.texas.gov.

I hope you will consider donating your time to help at AYLA’s Community First! legal clinic in October. If you do, you will be amazed at the incredible work going on there and will leave knowing you made a difference in the lives of people who have often felt ignored in AUSTIN LAWYER AL AL our society.

UPCOMING EVENTS THURSDAY, OCTOBER 18 AYLA Docket Call Mean Eyed Cat, 1621 W. 5th St. 5:30 – 7 p.m. TUESDAY, OCTOBER 23 AYLA/Community First! Village Legal Clinic 9301 Hog Eye Rd. 5:30 – 8:30 p.m. Contact debbie@austinbar.org to volunteer. TUESDAY, OCTOBER 30 AYLA Community Services Day Volunbeer Night Central Texas Food Bank, 6500 Metropolis Dr. 6 – 9 p.m. Visit www.ayla.org to register.

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Member Spotlight: Jenna Reblin

yla introduces Jenna Reblin through our new member spotlight column. AYLA: T ell us about yourself. JR: I graduated from UT Austin in 2008 with a major in government and specialization in children and public policy. I interned and clerked with the Travis County District Attorney’s Office throughout undergrad and law school at St. Mary’s University. After law school, I worked as a juvenile and felony prosecutor with the Bexar County District Attorney’s office. Currently, I work as a staff attorney at the Texas Juvenile Justice Department (TJJD). I also travel to Haiti on mission trips each year with a nonprofit I helped start that focuses on providing educational assistance for children in Haiti. AYLA: How long have you been involved in AYLA?

What’s been your best AYLA experience so far? JR: I got involved in AYLA in 2009 while still in law school. I was active in the Student Bar Association and helped coordinate student/alumni events. I moved back to Austin and got involved with AYLA again in 2017. My best AYLA experience so far was volunteering at the Women’s Resource Fair. The first year, I volunteered to assist with the legal assistance tables. The second year, I got to seek sponsors for the food that was passed out to volunteers and attendees. The Women’s Resource Fair is an amazing event that gives back and provides necessities to women who may not have access to them. Being a part of this event is what encouraged me to get more involved with AYLA and other organizations in Austin.

AYLA: What was your childhood dream job? JR: When I was a child, I wanted to be a fighter pilot or a professional athlete. AYLA: What’s your favorite moment of your career so far? JR: My favorite moment of my career was finding a job that I love and meets my interests with the TJJD. I knew in undergrad that I wanted to pursue a career in public service, specifically a legal career in public policy that was focused on children and youth. As a staff attorney with TJJD, every day I get to work on and discuss juvenile policy and law. AYLA: What are some of the things you enjoy most about living in Austin? JR: The thing I enjoy most about living in Austin is the Lady Bird Lake trail. I can run or bike to downtown or to Zilker Park, stop at a food truck, or hop in

Reblin

Barton Springs. There is always something to do in Austin. AYLA: What’s your advice for fellow young attorneys? JR: Don’t be intimidated or discouraged by thinking that you do not have time to serve or volunteer. There are always opportunities to serve, big or small. You never know who you will meet at one of the volunteer events or the opportunities that AUSTINLAWYER AL AL can grow from serving others.

26th Annual Bar & Grill—The Greatest Law Firm Join Us on November 10, 2018

ar & Grill is a theatre troupe of attorneys in the Austin area dedicated to producing an annual musical satire. The Bar & Grill show returns for its 26th year on November 10, 2018 at the Scottish Rite Theater, raising fun and funds for Austin Young Lawyers Association projects. Please join us as a company member, audience member, fundraiser, or sponsor (or all of the above). For more information on how to get involved, email bgmanagers@hotmail.com. This year’s show will be “The Greatest Law Firm” (based on “The Greatest Showman”). Mark your calendars and buy your tickets, because you will not AUSTIN LAWYER AL AL want to miss this year’s show!

ABOVE: Cast members of 2017’s 25th anniversary show, “Guardians of Democracy,” time-traveled back to 1992 to fix the problems of 2017. Photo by Antony Ng. LEFT: Poster for The “Greatest Law Firm” coming Nov. 10, 2018.

OCTOBER 2018 | AUSTINLAWYER

The Veterans Legal Assistance Program Thanks Volunteers

he Austin Bar Foundation and the Austin Bar Association would like to thank all the attorneys, paralegals, and law students who volunteered with the Veterans Legal Assistance Program since the beginning of this year. The attorneys met face-to-face with the veterans and gave them advice on a wide variety of legal issues, including real estate, family, consumer, probate, and landlord-tenant issues. The paralegals and law students assisted the attorneys, staff, and veterans to ensure a smoothly run clinic. In addition, a special “thank you” goes to the following organizations for their participation in the Austin Bar’s Free Legal Advice Clinics for Veterans: Texas Rio Grande Legal Aid, Texas Legal Services Center, Lawyer Referral Service of Central Texas, Travis County Law Library and Self-Help Center,

and the VA Outpatient Clinic on Metropolis Dr. If you are interested in volunteering, please contact Isabel Salazar, program coordinator, at isabel@austinbar.org. ATTORNEY VOLUNTEERS

Peter Ayers Bill Biggs Devin Black Wayne Cavalier Kristina Chung Chantelle Clarke Lindsey Drake Claude Ducloux Kelley Dwyer Ron De La Rosa Phil Friday Chase Gall Timothy Gasaway Phillip Glasser Ethan Glenn April Griffin Will Hale Neal Hardin Robin Harris Jessica Hartman Mary Haught

Fred Helms Eric Hiduke Tom Hoekstra Kristie Iatrou Chris Lavorato Nikki Maples Karl Mattlage Michael McGovern Robert Meisel Jessica Mendoza Jo Ann Merica Todd Musick Jerad Nicholson Russell Parish Tyra Perkins Harold Phillips Gilbert Prudhomme Michael Quirke Janet Reinarz Marshall Sales Adam Schramek Russell Sloan Julie Stone Henry Ten Brink Paul Trahan Renee Trevino LAW STUDENTS

Alexander Clark

Attorney volunteers assist veterans at the Austin Bar’s monthly Free Legal Advice Clinic for Veterans.

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Law—A Tradition of Service Video Premiers at Austin Bar Association’s 125th Birthday Celebration

ach year, a small • Senator Kirk Watson; • Dr. Sarah Weddington; group of Austin • Berry Crowley; and lawyers are admitted • Dirk Jordan. to the Austin Bar/ AYLA Leadership Academy The video premiered at the and tasked with a law-related Austin Bar’s Celebrating 125 community service project. The Years event held on August 29, 2018 class created a short docu2018 and is now available for mentary titled Law: A Tradition use by the public. To view or of Service. This video docudownload a copy, visit the Ausments and preserves landmark tin Bar’s Vimeo page at Vimeo. legal and societal contributions com/austinbar. of various Central Texas lawyers The video will be given to with the goal of inspiring young the Austin Bar’s History and people to participate in the Traditions Committee to further practice of law and increase preserve our community’s contheir civil engagement. The vidtributions to the legal world in eo shows one-on-one interviews a way that only oral history and with inspiring attorneys, judges, storytelling can. and community leaders such as: The members of the 2018 • The Honorable Robert Pitman; Austin Bar/AYLA Leadership • Former Chief Justice Wallace Academy class would like to Jefferson; thank the sponsors who so • The Honorable Lora generously funded this docuAUSTIN LAWYER Livingston; AL AL mentary.

2017-2018 Sustainability Society Members Volunteer Legal Services of Central Texas would like to thank this year's Sustainability Society members: Alexandra Albright Douglas Alexander Kris Algert Jim & Debbie Alsup Shelley Austin Myrna Salinas Baumann Becky Beaver Marilyn Montano Brown Judith Bryant Susan Burton Molly Cagle Kelly Capps Dr. Alejandra Carrasco William Christian Jeff Civins Elliot Clark Sara Wilder Clark Brenda Clayton Kari Commagere Michele Connors Hon. Suzanne Covington Jim Cowden Brandon Crisp Brendan Day Ben De Leon Juliet Mitchell Dirba Ray Donley Kelly Eakin Barbara Ellis

John W. Fainter, Jr. Edward Fernandes Heather Flanagan Philip C. Friday, Jr. Efren Garcia Mark Garrett Eric Groten Paula Heyman Janet Himmel Hon. Scott Jenkins Scott Kearns Patrick Keel Lowell Keig Susan Kidwell Joseph Knight Paula Knippa Puneet Kohli Jeffrey G. Korn Bruce LaBoon Seth Lindner Marla Maeder Keith Maples Catherine Mauzy Terry McElroy Mayor Roxanne McKee Mary Evelyn McNamara Hon. Amy Clark Meachum Kevin Meek Barbara J. Meyers Jennifer Nall

Jim Noffke Brian Oaks Judy Osborn Beth Collum Ozmun David Parker Clint Parsley Louis Pirkey Scott Powers Pierre Riou Catherine Robb Richard Rothberg Mark Rozman Chris Ryan Jack Sampson Margaret Sampson Michael Slack Jordan Smith Stephen Stout Paul Trahan Gavin Villareal Marc Vockell Bailey Morgan Watkins Charles “Skip” Watson David Weaver Fred I. Williams John Williams Paulina Williams Hon. Todd Wong Evan Young

The Sustainability Society helps ensure the long-term viability of Volunteer Legal Services. To learn about membership benefits or make a pledge, contact Cara McConnell at (512) 640-7746 or visit www.vlsoct.org

OCTOBER 2018 | AUSTINLAWYER

PRACTICE POINTERS

Motions Practice in Federal Court BY MATT POWERS ly! You will have the battle half won if you incorporate into your writing: (1) strong introductions, (2) claims that you can support, (3) attention to detail, and (4) common sense. EFFECTIVE USE OF INTRODUCTIONS

Matt Powers is a shareholder at Graves, Dougherty, Hearon & Moody, and he enjoys practicing law in both state and federal court.

ederal court has an undeserved reputation among many practitioners as a strange and worrisome place, filled with traps for the unwary. Although it is true that written advocacy plays a bigger part of effective lawyering in federal district court than perhaps in state district court, the reality is the same basic rules apply to federal-court practice as those that apply to good lawyering in any context: Know the rules, know your audience, and work hard. Here are some practice pointers for those who are just getting started with branching out into a federal-court practice or who have been meaning to do so but need a nudge to feel ready to take the plunge. Unlike state court, central docket-driven hearings—in which you may have the opportunity to win over your judge before he or she has had the chance to see either side’s briefs—your written work will always be the judge’s introduction to your case and your position on any issue in federal court. Use the opportunity wise-

AUSTINLAWYER | OCTOBER 2018

Make sure to include a brief but compelling introduction in whatever you submit to the court. You want the judge to know— with clarity—what you are asking him or her to do, and you want to provide a succinct statement of why the court should rule in your client’s favor. Make it punchy; spend no more than half a page to one full page. You will have the remainder of your 10- or 20-page limit to get into all the whys and wherefores. The introduction is your chance to make an impact. DON’T OVERCLAIM YOUR CASES OR YOUR EVIDENCE

If you spend any time attending judge-led CLE presentations, you will have heard the reminder that credibility is among a lawyer’s most important and precious assets. Though we are zealous advocates, we are also officers of the court, and we are duty bound to accurately represent the facts and the law when writing briefs. Also, from a practical perspective, overclaiming a case, a document, or a line of testimony rarely works. Remember that even if you manage to find an opponent that misses something, the federal judges and their staffs in Austin are notoriously good at checking the record and the caselaw when reviewing the claims the lawyers make in their briefs. You will inspire confidence in your readers if you stay true to the record and the caselaw.

Your written work will always be the judge’s introduction to your case and your position on any issue in federal court. Use the opportunity wisely! ATTENTION TO DETAIL

USE COMMON SENSE

When filing a motion or response in federal court, there are numerous boxes to check, so always consult the local rules when preparing a filing. For example, in the Western District of Texas, the vast majority of motions require a certificate of conference so the court will know whether the motion is opposed or unopposed. Particularly when it comes to discovery motions, the judges are fond of reminding lawyers that the certificate needs to say not only that an agreement was not reached, but the reasons why no agreement could be reached. The judges want lawyers to truly work to see whether such non-merits matters can be resolved without the need for court intervention. Do the judge in your case (and yourself) a favor, and make sure to confer before filing any motion in federal court. Other details that sometimes go overlooked are the need to include a proposed order with either a motion or a response brief, the use of 12-point font and 1-inch margins, assiduous citation form, etc., etc. Remember that among those reading your work are docketing clerks that have a checklist to compare your work against, and law clerks who have more (and more recent) experience with bluebooking than many will ever have. Before you call the brief done, think about all the different sets of eyes that will pass over it once you hit “submit.”

Lastly, while the most important factors driving who wins or loses on any issue are the merits of the underlying facts and law, using common sense as lawyers can help us avoid unnecessary defeats and improve our odds of winning on any given issue. For example, when filing a summary judgment motion, consider how spare you can make your appendix, lest your judge say (as our Austin federal judges here are wont to do) that “With an appendix that big, there must be a fact issue in there somewhere!” If filing a motion to dismiss, consider whether you are giving the judge a realistic opportunity to end the case, or just educating your opponent on what the next amended pleading should look like. Remember that no judge likes discovery motions, so be sure you have exhausted all other avenues before heading down that road. By using common sense, you can make sure to file only the motions you need to file, shape your briefs in a way that makes them as persuasive as possible, and always present your client’s AUSTIN LAWYER L AL case in its best possible A light.

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OCTOBER 2018 | AUSTINLAWYER