Austin Lawyer, October 2019 by Austin Bar Association

austinbar.org OCTOBER 2019 | VOLUME 28, NUMBER 8

Celebrate Pro Bono Week with the Austin Bar Association A Pro Bono Committee Update and Invitation BY CAITLIN HANEY-JOHNSTON

or over a year, the Austin Bar Association’s Pro Bono Committee has brought together pro bono stakeholders throughout the Central Texas community. The committee, led last year by Austin Kaplan, connected organizations and groups to improve the experiences of pro bono clients. As this year’s committee chair, I am committed to helping the group reach even more people. It is amazing to see how collaborations among the committee members allow each project to serve an even larger number of clients. Whether it’s by connecting existing projects with the Capital Area Paralegal Association to bring notaries to clinics, sharing physical spaces, or making organizations aware of grant opportunities, we are all stronger when we work together. As lawyers, we are equipped with a unique set of skills. Those skills can help right wrongs, provide pathways to citizenship, and help people obtain the documents and licenses necessary to provide for their families. As the stewards of those skills, attorneys have an ethical obligation to share them with the community.

And the opportunities to give back are voluminous. The Austin Bar has several projects, including the CANLAW Clinic for cancer patients, the Veterans Assistance Program, and the Self-Represented Litigant Project at the Travis County Law Library and Self-Help Center, that allow you to help a community to which you relate. Or, you could volunteer with Volunteer Legal Services or Texas Rio Grande Legal Aid to serve the neediest members of our community. You also have the option of volunteering through your substantive law section, such as the Alternative Dispute Resolution Section, which provides free family law mediations at the courthouse. If there are no existing projects that interest you, you can always start your own. In 2016, Randy Cubriel and I saw a need for estate planning in the cancer community. Through the support of the Austin Bar Association and

AUSTIN BAR PRO BONO WEEK ACTIVITIES TUES., OCT. 22

WED., OCT. 23

SAT., OCT. 26

Pro Bono Celebration

Free Legal Advice Clinic for Veterans

CANLAW Clinic

5:30 – 7:30 p.m. Hilgers House,

1:30 – 4 p.m. VA Outpatient Clinic

712 W. 16th St. RSVP at austinbar.org

To volunteer, email isabel@austinbar.org

9 a.m. – 2 p.m. Akins High School To volunteer, email info@cancerlawclinic.org

TOP: Austin lawyers volunteering at AYLA’s quarterly legal clinic, October 2018. Pro bono efforts by our legal community last year resulted in completing almost 100 critical end-of-life documents for the neighbors at Community First! Village.

Foundation, community partners, and dozens of volunteers, we have provided free estate-planning services to more than 130 cancer survivors and their spouses. The clinic started as an idea, and today it is a valuable asset to the cancer community. To the hundreds of volunteer attorneys in the Austin community: Your work is truly changing lives. We invite you to join us at a Pro Bono Celebration during national Pro Bono Week on Oct. 22 from 5:30 to 7:30 p.m. at Hilgers House—the Austin Bar’s new home on Judges Hill.

The event is open to any attorney or paralegal who provided pro bono services in 2019. We will honor an outstanding attorney, paralegal, and judge who have made significant pro bono contributions throughout the year. There will also be a karaoke competition where the winner receives a golden microphone! We hope to see everyone on Oct. 22 as we celebrate the power of pro bono. If you have any questions or want to get involved in the Austin Bar’s Pro Bono Committee, pleaseAUSTIN email me at LAWYER AL AL caitlin@thehaneylawfirm.com.

CONTENTS

AUSTINLAWYER OCTOBER 2019 | VOLUME 28, NUMBER 8 AL A L INSIDE FEATURED ARTICLES 1

Celebrate Pro Bono Week with the Austin Bar Association

President’s Column

A Pro Bono Committee Update and Invitation

Briefs

Veterans Legal Assistance Program Thanks Its Many Volunteers

Be Well

Opening Statement

Third Court of Appeals Civil Update

11 Laura Bellegie Sharp Elected to ABA Board of Governors 11 News from Your State Bar Directors Leslie Dippel, Adam Schramek, and Amy Welborn Report on McDonald v. Sorrels

Third Court of Appeals Criminal Update

ONLINE austinbar.org EMAIL nancy@austinbar.org

19 22 To Write or Not to Write: Handwritten Wills

Federal Civil Court Update

Federal Criminal Court News

26 2019 Texas Appellate Hall of Fame Inductees

AYLA

ONLINE

CONNECTIONS

DEPARTMENTS

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

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NEWS & ANNOUNCEMENTS

EVENTS & MORE

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Oct 17 Austin Bar’s LGBT Law Section

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Our Home on Judges Hill Capital Campaign Recognizes and Thanks Its Donors

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INTERESTED IN WRITING FOR AUSTIN LAWYER? Contributing authors sought for inclusion in Austin Lawyer. Articles on various legal-related topics are considered for publication monthly. Please limit submissions to between 500 and 750 words. Send articles to Nancy Gray, Managing Editor, at nancy@austinbar.org. Submission is not a guarantee of publication.

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District of Texas Federal Court and the Texas Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.

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Veterans Legal Assistance Program Thanks Its Many Volunteers

he Austin Bar Foundation and the Austin Bar Association would like to thank all the attorneys, paralegals, and law students who have volunteered with the Veterans Legal Assistance Program since the beginning of this year. The attorneys met face-to-face with veterans and gave them advice on a wide variety of legal topics, 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 Drive. If you are interested in volunteering, please contact Isabel Salazar, program AUSTINcoordinator, LAWYER at AL AL isabel@austinbar.org. ATTORNEY VOLUNTEERS Art Alvarez Evan Atkinson Joe Babb Bill Biggs Lauren Cabral Wayne Cavalier Chantelle Clarke Sean Condron

Charlie Cooper Claudia Crocker Russ Denton Lindsey Drake Ron De La Rosa Roseanne Easton Phil Friday Timothy Gasaway Robert Garza April Griffin Karl Guthrie Alexandra Gullett Robin Harris Mary Haught Sarah Harp Fred Helms Eric Hulin Leslie Hume Allison Kalis Austin Kaplan Frank King Cody Kirkland

FREE LEGAL CLINIC FOR VETERANS Wed. Oct. 23, 2019 Tues. Nov.12, 2019 Mon. Dec. 9, 2019

1:30 p.m. to 4:00 p.m.

Sign-in starts at 1:30 p.m. Please sign in before 3:30 p.m. Austin VA Outpatient Clinic

7901 Metropolis Dr. Austin, Texas, 78744

Volunteer attorneys will provide brief legal advice for 10 to 15 minutes in the following areas: Divorce l Child Support | Custody l Consumer Contracts l Criminal | Wills | Estate Planning l Guardianship Probate l Housing | Landlord/Tenant l Bankruptcy No appointment or reservations necessary. To best assist you, please bring any paperwork relevant to your case. Need Help Now? For any questions about the Legal Advice Clinic or Legal Assistance Program please contact the Austin Bar Association at 512-472-0279. The Texas Access to Justice Foundation and Austin Bar Foundation provide support to this program.

Alicia Lackey Chris Lavorato Trey Lamair Grace Lei Matt Lyons Nikki Maples Karl Mattlage Michael McGovern Sarah McClean Robert Meisel Jessica Mendoza Jo Ann Merica Dennis Moore Todd Musick Jerad Nicholson Russell Parrish Mark Pierce Tyra Perkins Harold Phillips Janet Reinarz Mark Roach Bill Rossick Sara Saltmarsh Georgia Santos Marshal Sales Adam Schramek Cory Scanlon Kayla Shell Eric Torberson Paul Trahan Jennifer Ward Montana Ware David Whittlesey Alan Winogard LAW STUDENTS Patrick Aana Christopher Belmarez Ashley Bergfield Jacob Bishop Amy Das Sara Beth Delay Christopher Egan Carlotta Garza Lana Levin Gabriel Lozano Caleb Ray Isabella Roberts Jordan Young PARALEGALS Jonathan Concepcion Cindi Deviney Amber Haney Frank Maldonado Garrett Meyer Nicole Thacker Sarah Vahle Annie Melendez Jennifer Larose OCTOBER 2019 | AUSTINLAWYER

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

Something’s in the Air—Can You Feel It?

t’s October, and in my house, that means fall has arrived. We’re well into the football and marching band schedules, and we’ve (hopefully) had a break from the summer heat that tends to carry into the early part of the school year. October means the bar year is getting into full swing too. And what a year we have in store! Watch for the weekly Bar Code e-newsletter to stay up to date on our various networking and service opportunities. I’d like to mention three events in particular. The Lawyer Well-Being Committee will get things going with an event you won’t want to miss. On Oct. 3, the Well-Being Committee will host a Bar Year Kick-Off Ethics CLE and Mixer at Hilgers House, 712 W. 16th St. At 4 p.m., our colleagues from the Texas Lawyers Assistance Program, committee members

Chris Ritter and Erica Grigg, will present “10 Tips for Lawyer Well-Being,” a talk that will earn attendees one hour of ethics CLE credit. At 5 p.m., we’ll transition to a networking mixer featuring alcohol-free cocktails from Sans Bar, plus some traditional fare. This will be a great opportunity to spend time together at the beautiful place the Austin Bar will soon call home. (Editors note: At print, this event was almost at full capacity. Please RSVP at austinbar.org to ensure there is still space available.) The new calendar year will bring the annual Austin Bar Foundation Gala, which is set for Jan. 25, 2020 at the Omni Barton Creek Resort & Spa. This year’s theme—“Boots and Bourbon”— befits the newly renovated venue, which features scenic Hill Country views and superb amenities. Come support the Foundation’s important work, bid on some auction items, enjoy some casino games, and plan on making a weekend of it. As for the theme, I’ll go on record now as saying that boots are optional, but highly encouraged. We will cap off the bar year’s showcase events on May 1, 2020 with the 30th Annual Bench Bar Conference, to be held at Austin Country Club. Bench Bar is a ter-

A cultural shift toward embracing lawyer well-being will require leadership at all levels and in all segments of the bar. rific opportunity for our members to hear from and visit with the local judiciary in an intimate, informal setting. And it’s a great chance to earn CLE credit while getting practical tips you can implement into your practice right away. MIXED SIGNALS? Having noted what I expect to be some major highlights, I’d like to address a question some of you may be asking: Is the Austin Bar sending mixed signals by emphasizing lawyer well-being and continuing to hold events where alcohol is served (or, in the case of its flagship event, included in the name)? I understand the perception, but it’s not necessarily true. However, as someone I respect recently pointed out, lawyer well-being initiatives cite problem drinking as one of the reasons we need to pay more attention to well-being in our profession. But that’s only part of the equation. Other big drivers include mental illnesses such as depression, along with substance abuse, workaholism, perfectionism, and other conditions potentially independent

of alcohol consumption. The biggest obstacle to lawyer well-being on a broad scale is the stigma associated with these kinds of conditions, primarily those requiring professional treatment or medication to overcome. The first task of any well-being initiative, including the Austin Bar’s, is to help break that stigma by getting these issues out in the open and connecting people to support networks to help work through them. That’s what the Lawyer Well-Being Committee is setting out to do. For better or worse, alcohol is embedded in our professional culture. That culture may change over time, but it will take a more developed concept of what lawyer well-being looks like and a more unified effort across organizations to make it happen. Meanwhile, the Austin Bar’s role is not to try and take away anyone’s free will or to impose rules on alcohol consumption at an organizational level. A cultural shift toward embracing lawyer well-being will require leadership at all levels and in all segments of LAWYER the bar. AUSTIN AL AL We’re just getting started.

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HOSTED BY PRO BONO TEXAS AND TOJI

Texas Legal Answers eClinic 10.23.19

In observance of National Pro Bono Week, we are gathering the Austin Area legal community to nosh and participate in a civil legal advice eClinic.

TEXAS LAW CENTER - ROOM 101 1414 COLORADO ST | AUSTIN | 78701

4:00pm 4:45pm 5:00pm 7:00pm

Pro Bono Texas & Texas Legal Answers Training

*CLE ACCREDITED Dinner eClinic starts eClinic ends

RSVP: BIT.LY/PBTXOCT23 QUESTIONS?

PROBONOTX@TEXASBAR.COM OCTOBER 2019 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Carlos Castaneda Russell Scott Fraley Michael Gainer Jennifer Little James McClenny Jennifer McGrew Robin Miserlian Meredith Parekh

Diffen, Metayer, Porter, Rudman, Suggs

James Sands Carrie Ward

AWARDS

NEW TO THE OFFICE

Rudy Metayer was honored as an outstanding alumnus of the University of Texas LBJ School of Public Affairs during the LBJ School Alumni Weekend, held Sept. 20-22, 2019. The Rising Leader Award winner practices law at Chamberlain McHaney, and is a Pflugerville city councilmember, a State Bar of Texas board member, and a community advocate.

Graves Dougherty is proud to welcome Hailey Suggs as an associate to the firm’s civil litigation practice. Suggs’ practice focuses on civil litigation as well as administrative and regulatory litigation. Husch Blackwell is pleased to announce that Jody Rudman has joined the firm as a partner

in its Austin office. Rudman will practice as part of the firm’s Healthcare, Life Sciences & Education industry group, and the Government Compliance, Investigations & Litigation team. Norton Rose Fulbright has expanded its focus on renewable energy with the addition of partner Becky Diffen and senior counsel Sam Porter to the global law firm’s Austin office.

SUBMIT A BRIEF If you are an Austin Bar member and you’ve moved, been promoted, hired an associate, taken on a partner, or received a promotion or award, we’d like to hear from you. Notices are printed at no cost, must be submitted in writing, and are subject to editing.

MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

2016-PRESENT

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Announcements should include all pertinent information including firm name, address, and contact numbers. Send submissions along with a high-resolution head shot to Austin Lawyer Managing Editor Nancy Gray at Nancy@austinbar.org.

BE WELL

Combatting Compassion Fatigue Practical Ways to Deal with the Cost of Caring BY JANET VANDERZANDEN

Janet VanderZanden is no stranger to compassion fatigue. She currently works as a staff attorney at the Travis County Office of Parental Representation, where she represents parents in termination of parental rights cases. Prior to her work in child welfare law, she practiced post-conviction capital defense in both Texas and California, representing clients on death row.

he practice of law is unique in that it allows us as lawyers the opportunity to have a direct impact on the lives of our clients. For those of us working in the arena of public-interest law, the stakes can be especially high. The populations we serve are often disenfranchised and illequipped to navigate our complex and unforgiving legal system. The challenges and issues our

or a struggling parent), the goal is to get the result the client wants and needs. That is our job. However, in the pursuit of that goal, we—as the professionals— have to be extraordinarily aware of how to protect our own interests… and sanity. Compassion fatigue is a real thing and can be an occupational hazard in the legal field. It is not only physical and emotional exhaustion, but an actual decrease in our ability to empathize and feel compassion professionally and personally. It can impact our ability to connect not only with clients, but also with co-workers, friends, and even family. It is secondary trauma caused by the repeated exposure to the trauma that our clients face. The physical and psychological impact of being in the trenches of someone else’s traumatic life can result in depression, anxiety, detachment, disinterest, and even the physical symptoms of post-traumatic stress disorder (PTSD).

Compassion fatigue is secondary trauma caused by the repeated exposure to the trauma that our clients face. clients face can be overwhelming. And as the person trying to make sense of the chaos, the responsibility for their well-being can similarly feel overwhelming. Over the past month alone, I navigated a client’s unsuccessful discharge from her residential drug treatment program, supported a client through the travails that come with her chronic homelessness, and faced the reality of a client’s devastating suicide. It is intense and at times, unrelenting. Law is a helping profession, and no matter who the client is (be it a corporation, a criminal defendant, 10

AUSTINLAWYER | OCTOBER 2019

Preventing compassion fatigue (or dealing with it, if it is already happening to you), is hard and strikes a different balance for each individual. It is a matter of identifying if and when you are at risk, and finding what works for you personally to make it better. That being said, consider the following: Set boundaries. In my own practice, my job is to prevent my clients’ parental rights from being terminated by the State. A big part of that effort is helping them find the tools to address the issues that brought their children into care in the first place. That

means tackling heavy issues like drug addiction, mental illness, poverty, domestic violence, and child abuse. Our job is to provide effective legal representation, and the challenge is to remain supportive without taking on the emotional burden of our clients’ pain or the responsibility for their decisions. It is paramount to find that human connection while respecting that we, as professionals, are independent people with needs of our own. Focus on physical health. This is so much easier said than done. But eating a clean diet, exercising, and getting a decent amount of sleep have a tremendous impact on our ability to effectively separate emotion from legal advocacy, and to focus on the task at hand. Do not go it alone. If you are lucky enough to have colleagues (and even luckier to have colleagues you respect and adore), use them. Use them to vent, to collaborate, and to strategize. And if you are a solo practitioner—FIND colleagues. Join bar associations, mentoring groups, and professional organizations. The internet has opened a whole new world for

collaboration. There are dozens of Facebook groups dedicated to specific practice areas, which provide a unique way to connect with people doing similar work. Find an outlet. We all need something outside of work to fill us up. This has to be more than sporadic “self-care,” but instead something tangible that feeds your soul. For me, it is active involvement with my kids, their school, and extracurricular activities. For others, it might be a robust social life or dedication to a meaningful hobby. We all need an outlet outside of work that brings our life meaning, satisfaction, and joy. The practice of law is a rewarding and meaningful way to contribute to the community and the greater good. But it is also really hard work and can be physically and emotionally exhausting. Recognizing these issues and taking the time to identify avenues of self-care and kindness are incredibly important and critical to both personal and professional satisfaction. When we make ourselves a priority, the quality of representation we give our clients can onlyAUSTIN get better. Be LAWYER AL it. AL kind to yourself—you deserve

Laura Bellegie Sharp Elected to ABA Board of Governors

aura Bellegie Sharp, a partner at The Sharp Firm in Austin, was elected to the American Bar Association (ABA) Board of Governors at the 2019 ABA Annual Meeting in San Francisco, California in August 2019. She was elected from District 8, representing Texas and Florida attorneys,

and will serve for a three-year term. Sharp, a former president of the Austin Bar Association, a former State Bar of Texas director, and a former trustee for the National Conference of Bar Foundations, is on the board of directors for the Texas Board of Legal Specialization and is treasurer of the Austin Bar Foundation.

In her role as an ABA Governor, Sharp will help oversee the general operations of the ABA and develop specific plans of action. The 44-member Board of Governors has the authority to act and speak for the ABA, consistent with previous actions of the House ofAUSTIN Delegates, when LAWYER AL AL the House is not in session.

News from Your State Bar Directors Leslie Dippel, Adam Schramek, and Amy Welborn Report on McDonald v. Sorrels

our State Bar directors want to keep you informed of the various happenings at the state level. This month, we bring you an update on the status of McDonald v. Sorrels—the lawsuit making a constitutional challenge to the Texas’s mandatory bar. In March 2019, three Texas lawyers sued the State Bar of Texas, claiming that under Janus v.

AFSCME, No. 16-1466, 585 U.S. (2018), it is unconstitutional for an attorney to be required to join the State Bar of Texas in order to practice law. The plaintiffs also challenge certain State Bar programs they claim exceed the Bar’s “core regulatory functions.” The State Bar’s position is that mandatory membership in a state bar and payment of compulsory fees are constitutional. Under

U.S. Supreme Court precedent, the state has an interest in regulating the legal profession and improving the quality of legal services. All State Bar of Texas programs further the state’s interests in regulating the legal profession or improving the quality of legal services. Through these activities, the State Bar protects the public, serves its members, and supports the administration

of the legal system. The State Bar has filed a motion to dismiss and U.S. District Judge Lee Yeakel heard oral arguments on Aug. 1, 2019. At print, the motion remains pending. To read all of the filings in McDonald v. Sorrels, and other related information on this and similar lawsuits, visitLAWYER texasbar. AUSTIN AL AL com/mcdonaldvsorrels.

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OPENING STATEMENT

Nominalizations: Or, When Verbs Become Nouns BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

ome legal writing contains nouns that could have been verbs. These nouns wanted to be verbs—they really did. But lawyerly habits and the default patterns of legal writing often tempt us to use the noun form instead. Nouns that could’ve been verbs are called nominalizations. (That’s a big word, and experts have coined other, catchier names: hidden verbs, buried verbs, zombie nouns.) Here’s what they look like: • The prosecutor’s expectation was that defense counsel would make an objection. That sentence contains two nominalizations: expectation and objection. Let’s revise the sentence by turning those nouns back into verbs: • The prosecutor expected defense counsel to object. This example shows two benefits of using verbs in place of nouns. (1) By using verbs instead of nouns, you save words: this example went from 11 words to 7. Sometimes when you shorten a sentence, you lose some meaning or some key content, but not here. Fixing nominalizations almost always allows you to retain the meaning but use fewer words. That’s concision. (2) By using verbs instead of nouns, you invigorate the text: the verbs in the original were was and make. Nothing wrong with those verbs, of course, but they’re not forceful or vigorous. The revision uses stronger verbs: expect and object. Nominalizations aren’t wrong or grammatically incorrect, but they’re overused in legal writing. As a result, legal-writing experts often single them out for comment: “Watch for and replace nouns

created from stronger verbs.”1 “Use base verbs, not nominalizations.”2 “Nominalizing is one of the most serious afflictions of legal prose, draining a sentence of vitality.”3 “Nominalizations are large and clunky, and they serve only to confuse the reader by weighing down sentences.”4 Here are some of the most common nominalizations in legal writing. Think of the verb form you could use instead: • be in violation of • bring suit against • come to a resolution • conduct an analysis • enter into a settlement • give notice to • make a payment • make a recommendation • make an argument • perform an examination • place emphasis on • provide an explanation • take into consideration Why do legal writers over-use nominalizations? I have two theories. First, nominalizations are typically longer, bigger words, and they sound formal. Sometimes we legal writers want to sound formal, serious, or even heavy. Although there’s nothing wrong with sounding formal, a less-formal tone is usually more reader-friendly. Second, we often think conceptually—we think of things, of nouns. Returning to our first example, if I’m the writer, I’m thinking about an expectation, and the expectation is about an objection. So I naturally end up writing a sentence with the nouns expectation and objection. Again, there’s nothing wrong with thinking of concepts and then writing those concepts down. But on the edit, check for nominalizations

“Nominalizations are large and clunky, and they serve only to confuse the reader by weighing down sentences.” and see if you can shorten and invigorate your prose. Here’s one more example. Spot the two nominalizations in this sentence: The insurer had no authorization to make a distinction between existing patients and new patients. The two nominalizations are authorization and distinction. By using their verb forms instead, we cut the weak verbs had and make, we enliven the text by focusing on actions rather than things, and we shorten it from 15 words to 12: The insurer was not authorized

to distinguish existing patients from new patients. So when you edit, look for nominalizations—nouns that could have been verbs—and when you can, return them to their AUSTIN LAWYER AL AL livelier form.

Footnotes 1. Terri LeClercq, Guide to Legal Writing Style 58 (4th ed. 2007). 2. Richard Wydick, Plain English for Lawyers 23 (5th ed. 2006). 3. Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well 129 (2d ed. 2002). 4. Charles N. Insler, Kill Nominalizations, Breathe Life Back into Briefs, 59 No. 10 DRI for Def. 99 (Oct. 2017). OCTOBER 2019 | AUSTINLAWYER

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THIRD COURT OF APPEALS CIVIL UPDATE

The following are summaries of selected civil opinions issued by the Third Court of Appeals during July and August 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of September 6, 2019.

CONTRACTS: Fraudulent misrepresentation negates “as-is” provision in contract. Ivy v. Garcia, No. 03-18-00545CV (Tex. App.—Austin Aug. 9, 2019, no pet. h.) (mem. op.). Ivy purchased Garcia’s home “as is.” Ivy later sued for DTPA and fraud contending Garcia failed to disclose facts about the property. The trial court granted summary judgment for Garcia. Garcia claimed the as-is provision barred Ivy’s claims. Ivy argued that Garcia fraudulently induced her into the contract. According to the court of appeals, a seller cannot assure the buyer of the property’s condition to obtain the buyer’s agreement to an as-is provision and then disavow the assurances that procured the agreement. Thus, Ivy was not bound by the as-is clause if Garcia induced her into the contract through fraudulent misrepresentations on which Ivy relied. The court held that Ivy raised a fact issue on the application of the as-is provision and reversed and remanded. CONTRACTS: Residential lease with purchase option not an executory contract. Brooks v. Acosta, No. 03-1800535-CV (Tex. App.—Austin Aug. 14, 2019, no pet. h.). Brooks signed a lease with Acosta that included a “lease to purchase” provision. Eventually, Acosta requested Brooks to vacate for failure to pay rent. Brooks sued when Acosta refused to return the security deposit and the money attributable to the lease-purchase down payment. The trial court granted summary judgment for Acosta. The court of appeals observed

that Property Code § 5.062(a) (2) provides that a lease with an “option to purchase” is an executory contract. An “option to purchase” gives another the right to buy property at a fixed priced within a certain time. Here, the “lease to purchase” provision did not state a price or how it would be determined. According to the court, the provision was not an option to purchase, and thus there was no executory contract. The court affirmed. MANDAMUS: Court grants mandamus in ballot-language challenge. In re Linder, No. 03-19-00553-CV (Tex. App.—Austin Aug. 22, 2019) (orig. proceeding) (mem. op.). Linder obtained the required signatures for a citizen-initiative petition proposing an ordinance relating to City’s use of hotel-occupancy taxes. Linder challenged City Council’s proposed ballot language as misleading. The court of appeals noted that ballot language must “substantially submit the measure with definiteness and certainty.” The court concluded that City Council’s language misrepresented future election costs associated with the proposed ordinance and omitted a primary feature of the ordinance—that City must prioritize spending of hotel-occupancy tax revenue on arts and historical preservation to the exclusion of other allowable uses. Because the ballot language did not substantially submit the proposed ordinance with definiteness and certainty that would not mislead voters, City Council abused its discretion. The court granted mandamus relief. PUBLIC INFORMATION ACT: Failure to timely submit request to AG barred judicial review. San Jacinto River Auth.v Paxton, No. 03-18-00547-CV (Tex. App.— Austin Aug. 22, 2019, no pet. h.) (mem. op.). SJRA sought an AG opinion regarding disclosure of communications about water pre-releases. AG determined

SJRA failed to timely submit its request and thus the information had to be disclosed. Relying on information from the Open Records Division, SJRA sought reconsideration. Two months later, AG sent a letter informing SJRA that governmental bodies cannot seek reconsideration. The trial court granted AG’s plea to the jurisdiction for SJRA’s failure to timely file suit. The court of appeals noted that the deadline for seeking judicial review is jurisdictional. The court rejected SJRA’s argument that its deadline ran from AG’s letter and not from the original order. The court also rejected SJRA’s argument that AG should be estopped from raising a jurisdictional challenge. The court affirmed. ARBITRATION: Court holds third-party non-signatory bound by arbitration clause. Cielo Prop. Group, LLC v. Mulcahy, No. 03-18-00587-CV (Tex. App.—Austin July 11, 2019, no pet. h.) (mem. op.). After Cielo terminated his employment, Mulcahy sued Cielo for breach of contract, seeking unpaid compensation and interests in properties under development. Cielo sought to invoke the arbitration clause in Mulcahy’s employment agreement with G&A Partners, a non-party to the lawsuit. The trial court refused to compel arbitration. The arbitration clause provided that all disputes between “you and G&A or between you and all Clients to which you are assigned” shall be arbitrated. Mulcahy argued that as a third-party non-signatory, Cielo could not avail itself of the arbitration clause in his employment agreement with G&A. The employment contract stated that G&A clients were co-employers and third-party beneficiaries of the contract. Thus, Cielo was bound by the arbitration clause. The court reversed and remanded.

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

Hamlin, No. 03-18-00754-CV (Tex. App.—Austin July 11, 2019, no pet. h.) (mem.op.). On behalf of their debt-collector client, Appellants domesticated a foreign judgment against Hamlin. Appellants later filed a release of judgment. Despite the release, Hamlin sued Appellants, contending that domesticating the judgment was fraudulent. Appellants’ motion to dismiss under the TCPA was overruled by operation of law. The court of appeals first concluded that the TCPA applied to Appellants’ communications in the domestication-of-judgment action filed on behalf of their client. The court further concluded that attorney immunity entitled Appellants to a dismissal. According to the court, attorneys are immune from liability to nonclients for conduct within the scope of the attorney’s representations of her clients. Appellants domesticated the judgment in the course of representing their client. Thus, Appellants met their burden of proving immunity. The court reversed and remanded for an AUSTIN LAWYER L AL award of attorney’sAfees.

TCPA: Attorneys entitled to dismissal based on affirmative defense of attorney immunity. Smith Robertson, L.L.P. v. OCTOBER 2019 | AUSTINLAWYER

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.

Cases summarized are from April 2019 and subsequent histories are current as of Sept. 1, 2019.

TRIAL COURT COMMENTS DURING PLEA DISCUSSION: Defendant’s due-process rights not violated by trial court’s comments during plea discussion. Foth v. State, No. 03-18-00085CR (Tex. App.—Austin Apr. 4, 2019, no pet.) (mem. op., not designated for publication). Foth was convicted of aggravated robbery, aggravated kidnapping, and aggravated sexual assault. On appeal, Foth asserted that the district court’s allegedly improper involvement in the plea-bargain process violated his due-process rights. Prior to trial, the district court had informed Foth that “it was plea deadline day,” inquired into the terms of the State’s plea offer, and asked Foth if he had discussed the plea offer with his attorney. According to Foth, the district court’s comments “implied that a plea would be preferred,” and the court engaged in “scare tactics” by suggesting that Foth’s punishments might be “stacked” if the case went to trial. In Foth’s view, by giving “specific examples of negative results” that could happen during sentencing, the district court “showed a preference for a plea” and displayed “partiality 16

AUSTINLAWYER | OCTOBER 2019

by preferring the State’s offer over going to trial.” The appellate court disagreed, concluding that “the district court did not express a preference that Foth accept the plea offer, encourage Foth to accept the offer, indicate that he would be found guilty or given a harsh sentence if he were found guilty, attempt to alter any term of the plea offer, or demonstrate any bias against Foth.” The court added, “Although the exchange in this case regarding the terms of the plea offer and the possibility of consecutive sentences occurred before Foth formally rejected the State’s offer, we believe that the record in this case shows that the district court was not involved in the plea negotiations and did not develop any interest in the negotiations that could have affected its impartiality.” Instead, “the record reveals that the district court wanted to clarify for the record that Foth understood the terms of the plea offer and the punishment options should he elect to reject the plea offer and proceed to trial and to document whether Foth elected to accept or reject the offer.” The appellate court also concluded that Foth was not harmed by the district court’s comments because there was nothing in the record to indicate that Foth’s rejection of the plea offer had resulted in any unfavorable treatment. STATE’S READINESS FOR TRIAL: Record supported trial court’s finding that State was ready for trial within 90 days from the commencement of defendant’s detention. Ex parte Jackson, No. 03-1800494-CR (Tex. App.—Austin Apr. 24, 2019, no pet.) (mem. op., not designated for publication). On September 21, 2017, Jackson was arrested for the offense of aggravated assault on a public servant. The State indicted Jackson for that offense on December 6, 2017. On April 30, 2018, Jackson filed an application for writ of habeas corpus, seeking relief under article 17.151 of the Texas Code

of Criminal Procedure, asserting that he was entitled to have his bond reduced to an amount that he could afford because he had been detained on felony charges more than 90 days and the State was not ready for trial. The trial court denied relief. The appellate court affirmed, observing that “the State’s readiness for trial refers to the prosecution’s preparedness for trial,” and “the existence of a charging instrument is an element of State preparedness.” Here, the indictment had been returned 76 days following Jackson’s arrest, and the prosecutor stated that the delay in going to trial was the result of the defense seeking more time for

discovery. Thus, the record supported the trial court’s finding that the State had met its initial burden to show that it was ready for trial. The burden then shifted to Jackson to rebut the showing of readiness, but Jackson “made no showing—through the presentation of evidence—that the State ‘did not have the material that was needed to proceed,’ that any unavailable evidence was so vital that the State was not ready for trial without it, or that the State had previously indicated that it was not ready for trial during the relevant time period.” Thus, the appellate court concluded that the trial court AUSTIN had not abused its LAWYER AL AL discretion in denying relief.

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FEDERAL CIVIL COURT UPDATE The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of Sept. 6, 2019.

> ARBITRATION: If an arbitration provision includes a carveout for certain types of action (e.g., actions seeking injunctive relief), a federal court may decide whether a case is within the scope of the carve-out even though the parties’ agreement delegates gateway questions of arbitrability to the arbitrator, provided the delegation clause is itself subject to the carve-out. Archer & White Sales, Inc. v. Henry Schein, Inc., No. 16-41674, 2019 WL 3812352 (5th Cir. Aug. 14, 2019). Archer and White Sales, Inc. sued several defendants (“Defendants”) in federal court seeking injunctive relief and damages for alleged antitrust violations. Defendants moved to compel arbitration based on a contract provision stating, in relevant part, “Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief …), shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association [ (AAA) ].” Archer argued its suit was not subject to arbitration because it was an “action[] seeking injunctive relief.” The parties disagreed about not only the ultimate answer to that question but also who must decide it, the court or the arbitrator. Although generally courts decide whether a particular dispute is arbitrable, parties to an arbitration agreement can agree to delegate to the arbitrator the power to decide such questions of arbitrability. Court do not assume the parties agreed to delegate arbitrability unless there is “clear

and unmistakable” evidence that they did so. Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 79 (2010). The Fifth Circuit has long held that an arbitration provision that incorporates the AAA’s rules—which state that the arbitrator has the power to rule on the arbitrability of any claim—can constitute such clear and unmistakable evidence of delegation. Defendants therefore argued that the arbitrator must decide the question because the parties’ agreement incorporates the AAA rules. The district court denied Defendants’ motion to compel arbitration, holding that it could decide the threshold arbitrability question and concluding that Archer’s action fell squarely within the carve-out for actions seeking injunctive relief. On remand from the U.S. Supreme Court, the Fifth Circuit affirmed. Consistent with its precedent, the court held that the parties’ incorporation of the AAA rules clearly and unmistakably delegated threshold questions of arbitrability for at least some category of cases. But because the clause incorporating the AAA rules was itself subject to the carve-out for actions seeking injunctive relief, the parties’ agreement to delegate questions of arbitrability applied only to cases that fall outside the carve-out. That being so, the court concluded that the clause incorporating the AAA rules did not constitute clear and unmistakable evidence that the parties agreed to delegate to the arbitrator whether a particular action is subject to the carve-out. The court affirmed. JURISDICTION: Allegations of an individual’s residence, even if admitted, are insufficient to establish an individual’s citizenship for diversity jurisdiction. Instead, one must plead the individual’s citizenship to establish diversity jurisdiction. MidCap Media Finance, L.L.C. v. Pathway Data, Inc., 929 F.3d 310 (5th Cir. 2019).

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

Sameer Hashmi is an associate at Scott Douglass McConnico.

MidCap Media Finance, L.L.C. sued Pathway Data, Inc. and Pathway’s CEO, David Coulter, for breach of a loan contract. After a bench trial, the district court found Pathway liable for breach of contract but concluded that Coulter was not personally liable for Pathway’s breach. Pathway appealed and MidCap cross-appealed. Although the parties agreed the trial court had

Cir. 2008). Although MidCap alleged that Coulter was a resident of California, its pleadings contained no allegations as to whether Coulter was a citizen of California. As for MidCap’s own citizenship, it alleged that it is organized under the laws of Texas and has its principal place of business in Texas, but said nothing about the citizenship of its members.

Allegations of an individual’s residence, even if admitted, are insufficient to establish an individual’s citizenship for diversity jurisdiction. On both counts, the court held diversity jurisdiction, the Fifth MidCap’s allegations were insufCircuit assessed its jurisdiction ficient. The court also held that sua sponte and found no proper the parties could not cure the deallegations or evidence of diverfective jurisdictional allegations sity of citizenship. The court under 28 U.S.C. § 1653, which emphasized that residency and allows parties to amend defective citizenship are not synonymous. jurisdictional allegations when Robertson v. Cease, 97 U.S. 646, evidence exists in the record 648 (1878). For individuals (like demonstrating diversity. Rather Coulter), citizenship requires than dismiss the case, however, not only residence in fact but the court remanded the case to also the intent to make the place the trial court to allow the parof residence one’s home. Texas ties to amend their jurisdictional v. Florida, 306 U.S. 398, 424 allegations and supplement the (1939). The citizenship of LLCs record with evidence of citizen(like MidCap) is determined by AUSTIN LAWYER A L AL ship. the citizenship of all its members. See Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th OCTOBER 2019 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Confidential Informants and the Confrontation Clause

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.

n federal (as well as state) criminal prosecutions, confidential informants are regularly used to provide information. Use of such confidentially obtained information usually results in a search warrant of a suspect’s home, place of business, or other property. In most cases, the government is not required to disclose the identity of its confidential informant.

ing on the defendant by offering evidence on the background of the investigation. This could include testimony that confidential informants were used. What the informant said, if they are not called to testify and be subject to cross examination, is another matter. In a recent Fifth Circuit case, a Confrontation Clause violation led to reversal of a conviction in which a federal agent testified— over a defense objection—that a confidential informant had told him the defendant had recently completed a drug deal, in response to the prosecutor’s questions about why police were following the defendant’s vehicle.2 The trial court gave a limiting instruction, telling the jury that they could consider information provided by the informant “only to explain why law enforcement was conducting various surveillance operations,” and that the informant’s testimony could not be used “as evidence the defendant, or anyone else, actually

When a case involving a confidential informant goes to trial, the prosecution may wish to let the jury know something about why law enforcement was focusing on the defendant by offering evidence on the background of the investigation. If the informant is going to testify in a trial, however, then the Sixth Amendment’s Confrontation Clause requires disclosure of the informant’s identity and the defense must be allowed to cross-examine the informant.1 When a case involving a confidential informant goes to trial, the prosecution may wish to let the jury know something about why law enforcement was focus20

AUSTINLAWYER | OCTOBER 2019

engaged in a drug transaction.”3 However, the appellate court noted that the testimony directly implicated the defendant of the offense with which he was charged—drug possession—and thus went well beyond the permitted scope of such testimony. Texas courts have reached similar conclusions about “background” testimony, which is offered to provide context for

police investigative behavior. The Texas Court of Criminal Appeals has held that testimony from an officer about what an informant told the officer about the occupants of a house and their drug-dealing activities, which included a reference to the defendant, violated the defendant’s Confrontation Clause right to confront her accuser.4 Because the probity of “background” evidence is fairly limited, the prospect of inadmissible hearsay—which violates the Confrontation Clause—being discussed is high. This potential constitutional violation is especially likely when officers are allowed to testify about sources of information. Allowing a prosecution witness to testify about the substance of any statement made by an out-of-court declarant, without a clearly-established hearsay and Confrontation Clause exception, risks a reversal if the defendant AUSTIN LAWYERmakes a timely AL AL objection.

Footnotes 1. The Sixth Amendment to the U.S. Constitution states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 2. United States v. Jones, 930 F.3d 366 (5th Cir. 2019). 3. Id. 4. Langham v. State, 305 S.W.3d 568, 579-80 (Tex. Crim. App. 2010) (remanding to court of appeals for a harm analysis and finding “harmless error” based on the weight of other admitted evidence); Langham v. State, 331 S.W.3d 87 (Tex. App.—Eastland 2010, pet. ref’d) (holding on remand that Confrontation Clause error in admitting detective’s testimony regarding the content of information received from confidential informant was harmless beyond a reasonable doubt).

OCTOBER 2019 | AUSTINLAWYER

To Write or Not to Write: Handwritten Wills BY ANN LUMLEY AND BRAD WIEWEL

Ann Lumley is Director of Estate Administration and Brad Wiewel is founding member of The Wiewel Law Firm. Wiewel is board certified in estate planning and probate law by the Texas Board of Legal Specialization.

t is not unusual for someone to approach a lawyer at a social event and ask if a handwritten will “will work.” While all Texas lawyers know that holographic (handwritten) wills can be valid

in Texas, not all wills are created equally. Some, especially handwritten ones, can be downright dangerous or even completely ineffective. So, before you give an answer to that question, let’s look at common problems that

can exist with handwritten wills— which, although done with the best intentions, should really be avoided. Even if a holographic will meets the legal requirements to be valid, there are several potential problems that may not be obvious. Handwritten wills are often missing the “magic words” needed for an efficient administration in Texas. Many fail to even name an Executor, much less designate the Executor as “independent.” Without “independent” expressly in the will, ALL of the distributees have to agree to allow the Executor to serve without court supervision. If no Executor is named, they ALL have to agree on who will act as the Executor. These can be insurmountable tasks, especially in the context of a blended or factious family. Many holographic wills also neglect to waive bond for the

Executor or to address Executor powers. New legislation will allow ALL the distributees to waive bond if it is not waived in the will, but without this unanimous agreement, an Executor’s ability to serve could be thwarted if the bond qualification requirements cannot be met. Not granting directly in the will the Executor the power to sell estate property could require otherwise unnecessary and costly court proceedings. Even if ALL distributees agree to grant the Executor the power to sell, additional legal work is required, which still adds time and cost to the administration. Another concern is that holographic wills do not always dispose of the entire estate. Some neglect to have a residuary clause directing where the “rest of the property” goes after the Testator has made specific distributions. This can result in the

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Although legal in Texas, handwritten wills can be dangerous or even completely ineffective.

decedent dying with a “partial intestacy” requiring a potentially expensive heirship determination. The property could easily end up in the hands of unintended, remote family members. Furthermore, while handwritten wills can be valid in Texas, many states do not recognize them. This could be problematic if the deceased died while residing in one of those states or owned real property there. Even if a holographic will does include all of the “magic words” and a residuary clause, it still must be proven that the will is entirely

in the deceased’s handwriting. This requires additional witness testimony, which may always be challenged. Holographic wills are not often self-proved, so testimony as to the competency of the Testator at the time the will was written must also be provided. There are other problems not often addressed by handwritten wills. First, they may include dispositions to minors or to beneficiaries with special needs. Rarely do holographic wills include testamentary trust provisions. Contingent testamentary trusts would allow for the

management of a minor’s properpass by beneficiary designation, ty until a specified age, and allow as is the case for 401ks, IRAs, a beneficiary with special needs, and life insurance. Accounts who is or may become eligible for with right-of-survivorship or Medicaid or other government pay-on-death designations also benefits, to receive an inheripass outside of a will. Failure to tance without affecting eligibility carefully coordinate these assets for government assistance. with the overall estate distribution Second, most holographic wills plan can lead to surprising and are not written in association unhappy results. with any disability planning for With handwritten wills, the Testator. Usually only the will things are not as simple as they is written, and there is no duramay seem. Without realizing it, ble power of attorney, medical people may actually be creating power of attorney, living will, or an unnecessary, complex, and HIPPA release. The lack of these expensive administrative mess. important documents can wreak With proper planning, adminhavoc on those trying to care for istration nightmares can be the will-writer when he or she avoided. So, your best answer to becomes incapacitated. the question asked at the social Last, but not least, not function is NOT the typical, everyone understands that many “It depends.” Your best answer assets do not flow through a will. AUSTIN is: “DO NOT TRY THIS AT LAWYER A large part of an estate can AL AL HOME!”

OCTOBER 2019 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

Professional Use of Social Media: Part I Tips for Success from an AYLA Panel INTRODUCING THE PANEL Hannah (Hembree) Bell is a solo practitioner offering family law, estate planning, and general counsel legal services for families in the greater Austin and San Antonio areas. Her firm is the Hembree Bell Law Firm, located in northwest Austin. Lisa Marie Bustos is a solo practitioner based in Austin practicing family law within the Central Texas region. Her firm, Bustos Family Law, handles family law litigation in all stages of the case, but her practice primarily focuses on divorce and child custody cases. Tycha Kimbrough is a solo practitioner at Kimbrough Legal, a compassionate and dedicated family, criminal, and expunction law firm that cares deeply about the Austin community. QUESTIONS & ANSWERS 1. Which social media platforms do you use to communicate with the public in your professional capacity, and is there a particular platform that you favor? Bell: I use Facebook and LinkedIn professionally. LinkedIn is my favorite platform for business, hands-down. People have no problem connecting with strangers on LinkedIn, whereas they are more selective with accepting “friends” on Facebook. This allows a much greater reach on LinkedIn. Further, LinkedIn is the “professional” social media platform, so no one is annoyed with you for posting about your work/business all the time. Bustos: I use Buffer to pre-schedule all of my social media posts across my firm’s Instagram, LinkedIn, Twitter, and Facebook accounts. However, once your audience starts to reach out to you across those plat24

AUSTINLAWYER | OCTOBER 2019

Hannah (Hembree) Bell

forms, you really start noticing each platform’s interface. I have found that Facebook is the easiest to post and interact on. It’s also easy to see how many people are viewing my posts and analyze which are the most impactful. Kimbrough: I use Facebook and Instagram to connect with the public. I favor Facebook because the demographics of its users vary widely compared to Instagram users. I also love that Facebook allows visitors to share posts and write reviews. In addition to maintaining a website, Facebook is a powerful tool for a lawyer and firm to use to build one’s brand. Despite me being a millennial and heavily using social media, I have not jumped on the Twitter bandwagon for my practice. 2. What type of content do you post in your professional capacity? For example, do you post exclusively about your (or your firm’s) work or do you also provide general information about the law? Do you ever post non-legal content (whether it be personal, political, cultural, or just fun “memes”)? Bell: My general strategy in posting is to provide content I believe my target audience would be interested in while keeping it mostly relevant to the legal space. I typically post short video clips of

Lisa Marie Bustos

Tycha Kimbrough

“My general strategy in posting is to provide content I believe my target audience would be interested in while keeping it mostly relevant to the legal space.” — Hannah (Hembree) Bell a few types: “Pro-Tip” videos offer practical advice to people getting divorced; “ALERT” videos point to a specific legal development that could have a real-life impact on my clients, referral sources, or PNCs; and “Family Law Musings” share insight into the more emotional/personal development lessons one learns in the divorce process. In addition to the videos, I share selfie (or selfie-adjacent) photos of me out there, doing this legal thing (think posting from a pro-bono clinic, outside a courthouse, etc.). Occasionally I’ll share a funny meme or video related to being divorced/being a parent/the legal field. Bustos: Audiences tend to appreciate mixing up the type of content that’s posted. Family law brings in a very diverse clientele. Some members of my audience appreciate parenting articles with the latest food for thought. Other audience members are more focused on how a marriage might impact their finances. Posting news articles that are related to your

area of law—while not giving legal advice—helps people understand that you are aware of the problems that they face on a daily basis. We also regularly post funny memes or lawyer-related jokes at least once a week. Life is hard, but laughter is still a common language that can bring everyone together. Kimbrough: I post a variety of content on Kimbrough Legal’s social media pages. I primarily post about events I attend, laws that directly affect my family and criminal law clients, Kimbrough Legal’s services, and motivational quotes. I also use the story features on Instagram and Facebook, which allows me to post informational videos and occasionally silly memes. I aim to be my authentic self on social media, and I create content that will interest and educate my audience. 3. How do you decide when to upload content? Do you set aside time every week or do you update it sporadically? What

AUSTIN YOUNG LAWYERS ASSOCIATION

Tickets on Sale for Law Miserables 27th Annual Bar & Grill Show at Scottish Rite Theater

hat if Austin finally took a stand to keep us weird and keep those pesky drifters out— you know, those hipsters and Californians. Law Miserables explores what would happen if Austin built a barricade to protect all we hold dear, including scooters and high rises. Don’t miss this hilarious parody of everyone’s favorite oh-so-depressing musical, featuring songs like “ATX” (One Day More), “Contract Lawyers” (Lovely Ladies), and “Last Breath” (Donna Summer’s Last Dance… wait, what?). Don’t miss Bar & Grill’s 27th annual production on Saturday,

OCT 26 27TH ANNUAL AYLA BAR & GRILL SHOW SCOTTISH RITE THEATER Doors open: 6:30 p.m. Show: 7:30 p.m.

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Oct. 26, 2019 at the Scottish Rite Theater. Doors open at 6:30 p.m. and the show starts at 7:30 p.m. (There’s an open bar, so come early!) Proceeds go towards AYLA programs such as the annual holiday program benefitting underprivileged families in our community. Tickets are available AUSTIN LAWYER AL AL at ayla.org.

formal or intuitive criteria guide alerts that hit target keywords your selection of what to upload? for my area of law. I spend about Bell: Mostly when the mood five to ten minutes reviewing the strikes, and I try to make sure alerts I receive and bookmarking that’s at least once a week and content that I like. I then send it no more than two to three times to my marketing contractor who per week. I go based on feel, not preschedules posts on Buffer. on a formal “posting” metric. I It takes me about half an hour should be better about assessing a week to find content and my the correlation between the time marketing person about an hour of day that I post and the amount a week to coordinate posts. of reach/feedback I receive. I Kimbrough: I am a planner recently posted late afternoon and I set aside time at the beginon the Friday before Labor Day ning of each month to schedule weekend and expected little to posts on Facebook and Instano response. I was surprised to gram. I post on Facebook and see my little photo do as well as Instagram at least once a week. most of my other posts. I am sure I do not have any formal criteria someone smarter than me can that determines my selection on point to the best days/times to what to post, but each month I post to get the best ROI. For me, generally post a legal question whether I make and post a video and answer, a holiday greeting or is often tied to whether I look motivational quote, information more like a lawyer or a soccer about a legal or community event mom that day. (Working for yourI recently attended or that is self has its perks!) upcoming, and information about Bustos: I work closely with a AUSTIN legal services Kimbrough Legal LAWYER AL AL marketing contractor who helps provides. me coordinate and post the (Look for Part II of this article in an content that I find applicable to upcoming issue of Austin Lawyer.) my audience. I have daily Google

Bar & Grill presents

Law Miserables

10.26.19 Scottish Rite Theater, 207 West 18th Street

UPCOMING EVENTS THURSDAY, OCT. 17 AYLA Docket Call Mean Eyed Cat, 1621 W. 5th St. 5:30 – 7 p.m. Sponsored by Veritext and Exponent SATURDAY, OCT. 26 Bar & Grill Scottish Rite Theater, 207 W. 18th St. Doors open at 6:30 p.m. Show starts at 7:30 p.m. Tickets at ayla.org TUESDAY, OCT. 29 Community Service Day Hell Yes! Project: CTFB Volun-BEER Night 6500 Metropolis Dr. Register at ayla.org OCTOBER 2019 | AUSTINLAWYER

2019 Texas Appellate Hall of Fame Inductees

ylan O. Drummond, president of the Texas Supreme Court Historical Society, and Supreme Court Justice J. Brett Busby, chair of the Appellate Section of the State Bar of Texas, announced the most recent inductees to the Texas Appellate Hall of Fame. The four chief justices in the 2019 class were posthumously honored for their trailblazing marks on Texas legal history. They were inducted at a ceremony held in conjunction with the Advanced Civil Appellate Seminar at the Four Seasons hotel in Austin on Thursday, Sept. 5, 2019. Among the chief justices honored were the first chief justice to preside over the Republic of Texas Supreme Court and the chief justice who presided over the first all-woman state supreme court in U.S. history. The 2019 inductees are:

THOMAS J. RUSK Although technically the third chief justice of the Republic, Thomas Rusk was the first to preside over a Supreme Court session. He also authored the Court’s first opinion in 1840. Earlier a signatory to both the Texas Declaration of Independence and its first constitution, Rusk later served as the Republic’s secretary of war. After overseeing the burial of Colonel James Fannin and his garrison killed at Goliad under orders from Mexican President Santa Anna, Rusk

ensured Santa Anna’s defeat at San Jacinto a few weeks later by leading the final charge after Sam Houston was wounded. HORTENSE SPARKS WARD In 1910, Hortense Sparks Ward became the first woman to pass the Texas bar exam. She later became the first female Texan to be licensed to practice before the U.S. Supreme Court. After the all-male Texas Supreme Court was forced to recuse from hearing a cause involving a trustee of a fraternal order in which each

Among the chief justices honored were the first chief justice to preside over the Republic of Texas Supreme Court and the chief justice who presided over the first all-woman state supreme court in U.S. history.

Hortense Sparks W

ard

1925 — Hortense

ed over Ward presid oman the first all-w court e state suprem y in U.S. histor

AUSTINLAWYER | OCTOBER 2019

Justice was a member, Governor Pat Neff appointed Ward as Special Chief Justice—along with two other women—to preside over the case. Appointed on January 1, 1925, this all-woman Supreme Court was the first state high court in the nation composed entirely of women, and Ward was the country’s first woman chief justice. The Court heard oral argument in the case a week later, on January 8, and issued its opinion later that year in May. The decision has been cited numerous times by the federal Fifth Circuit Court of Appeals and several Texas appellate courts. JOHN L. HILL JR. Before being elected chief justice of the Supreme Court in 1984, John Hill served as both Texas secretary of state and attorney general. While attorney general, Hill argued before the U.S. Supreme Court five times. He resigned from the Court in 1988 to lead an effort to abolish the popular election of judges in Texas. In 1997, Chief Justice Hill was awarded a lifetime achievement award by his alma mater, the University of Texas School of Law. In 2004, the law school established the John L. Hill Trial Advocacy Center in his honor. AUSTIN McCLOUD Austin McCloud first took the bench after being appointed to the 32nd District Court in Sweetwater, Texas. In 1970, he was elected chief justice of the Eleventh Court of Appeals at Eastland, Texas. There he served for the next twenty-four years until his retirement in 1994. That same year, Chief Justice McCloud was named Outstanding Jurist of Texas. During his tenure on the appellate bench, Chief Justice McCloud served as president of the Council of Chief Judges of Courts of Appeals of the United States, as well as president of the Council of Chief Justices of Texas AUSTIN LAWYER AL AL Courts of Appeals.

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Austin Lawyer, October 2019

Articles inside

Professional Use of Social Media: Part I

Combatting Compassion Fatigue

2019 Texas Appellate Hall of Fame Inductees

Celebrate Pro Bono Week with the Austin Bar Association