austinbar.org OCTOBER 2020 | VOLUME 29, NUMBER 8
Pro Bono in a Pandemic Get Involved in National Celebration of Pro Bono Week BY BILL CHRISTIAN ings is likely to hit our local court system all at once. As a result, many Central Texans who have lost their jobs are also in danger of losing their homes and unable to afford the services of a lawyer to represent them. Volunteer Legal Services has created a COVID-19 eviction task force to help address this problem, seeking to recruit attorneys to provide advice over the phone or to take eviction cases with the help of a mentor attorney experienced in landlord-tenant law. Other areas of increased need for pro bono legal services as a result of the COVID-19 pandemic include claims for unemployment benefits; family law, such as divorce and child-custody proceedings; and guardianships. VLS needs volunteer lawyers to help in these areas as well. Many other opportunities exist for lawyers to put their skills to use in their specialty area or to help in a new area of the law with support from online resources and attorney mentors. The Austin Bar Association needs attorney volunteers for its monthly free legal advice clinic for veterans. Texas C-Bar matches transactional attorneys
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here is no better time to volunteer your services as a lawyer than now. The COVID-19 pandemic has left many Central Texans, who lack access to an attorney, facing immediate needs for legal help. Each year, the American Bar Association celebrates pro bono during the last week in October. This year’s National Celebration of Pro Bono week is Oct. 25-31. It is a time both to celebrate the contributions of legal professionals who serve the poor and vulnerable in our community and to encourage all of us to do more to further access to justice. We lawyers should all use this opportunity to find new and different ways to give back to our community during this crisis. One area of particular need is landlord-tenant law. Beginning in March, residential eviction proceedings have been suspended or limited by a combination of provisions of the CARES Act, orders from the Texas Supreme Court, and executive decrees by local governments. But those various restrictions either have or will expire soon. Once they do, a wave of delayed eviction proceed-
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The COVID-19 pandemic has left many Central Texans, who lack access to an attorney, facing immediate needs for legal help. with nonprofits needing legal assistance. And many other local organizations are recruiting new attorney volunteers to further their missions. The State Bar maintains a website at probonotexas.org, a “one-stop hub” for helping Texas attorneys find volunteer organizations across the state to fit their experience and interest. Getting involved in pro bono—even as most of us continue to work remotely—has never been easier, thanks to resources like these. As the preamble to the Texas Disciplinary Rules of Professional Conduct states: “Every lawyer, regardless of professional prominence or professional workload,
should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the profession generally.” National Celebration of Pro Bono week is a time to remind us of that obligation and the role we, as lawyers, can play in helping our community overcome the many challenges it is facing AUSTIN LAWYER during this crisis. AL AL Bill Christian is a shareholder at Graves, Dougherty, Hearon & Moody, and is co-chair of the Austin Bar’s Pro Bono Committee.
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CONTENTS
AUSTINLAWYER OCTOBER 2020 | VOLUME 29, NUMBER 8 AL A L INSIDE FEATURED ARTICLES
DEPARTMENTS
1
Pro Bono in a Pandemic
6
Equity Committee Spotlight
Get Involved in National Celebration of Pro Bono Week
8
Briefs
10 Be Well 15 Opening Statement 16 Third Court of Appeals
Civil Update
18 Third Court of Appeals
12 Effective Allyship in the Workplace
19 Federal Civil Court Update
Edited transcript of the allyship panel moderated by Dominique McLeggan-Brown of The Sisters in Law and Christie Hebert of League of Lady Lawyers
20 Criminal Court News 22 AYLA
21 Veterans Legal Assistance Program Thanks
25 Practice Pointers
Its Many Volunteers
ONLINE
Criminal Update
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
UPCOMING EVENTS
Texas Access to Justice Foundation Sponsors Five Equal Justice Works Fellows
OCT 8
The Austin Bar's Equity Committee Kicks Off Several Multi-Media Events
Oct. 27 Virtual Viewing Party of Award-Winning Documentary, "13th"
CONNECTIONS
Practice Pointers Workshop Series: Setting Boundaries
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12 – 1 p.m. presented by the Lawyer Well Being Committee
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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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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION
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AUSTIN YOUNG LAWYERS ASSOCIATION
David King ���������������������������� President Rachael Jones ����������������������� President-Elect Blair Leake ����������������������������� Treasurer Sarah Harp ���������������������������� Secretary Sandy Bayne ������������������������� Immediate Past President
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EQUITY COMMITTEE SPOTLIGHT
21 Things You Didn’t Know About Hispanic Heritage Month BY CATHY GARZA HISPANIC HERITAGE MONTH GENERALLY 1. National Hispanic Heritage Month is celebrated from Sept. 15 through Oct. 15 and started as Hispanic Heritage Week.
2. Representative Edward Roybal of Los Angeles sponsored legislation to establish Hispanic Heritage Week, which was signed into law by President Lyndon B. Johnson in 1968. Cathy Garza is an associate at Eversheds Sutherland. She advises clients on commercial and regulatory litigation matters before state and federal courts and the Public Utility Commission of Texas. Garza is a member of the Austin Bar Equity Committee's leadership team and the AYLA Board of Directors.
Every other month, space normally used for the Austin Bar President’s Column will be dedicated to content chosen by the Austin Bar’s Equity Committee.
H
ispanic Heritage Month is a national celebration to honor the history, culture, and overall contributions Hispanics have made to the United States.
3. In 1988, legislation expanding the week into a month was signed into law by President Ronald Reagan. 4. Hispanic Heritage Month begins on Sept. 15 because it is the anniversary of the independence of five Hispanic countries—Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua—which declared their independence in 1821. 5. Mexico celebrates its independence day on Sept. 16 (not Cinco de Mayo!), and Chile’s independence day is on Sept. 18. HISPANIC/LATINO(A)/ LATINX 6. While many people use Hispanic or Latino(a)
According to the U.S. Census Bureau, as of July 1, 2019, the Hispanic population constitutes the largest ethnic or racial minority in the United States, making up 18% of the nation’s population. interchangeably, the terms have different meanings. 7. Hispanic is a linguistic division and includes people who speak Spanish or whose ancestors come from a Spanish-speaking country. 8. Latino(a) is a geographic division and includes people from or whose ancestors come from Latin America. For example, Brazilians would be considered Latinos, but not Hispanics, because they speak Portuguese. 9. Latinx is a gender-neutral alternative to Latino(a). HISPANIC POPULATION TODAY 10. According to the U.S. Census Bureau, as of July 1, 2019, the Hispanic population constitutes the largest ethnic or racial minority in the United States, making up 18% of the nation’s population.
11. As of 2019, there are 12 states with a population of 1 million or more Hispanic residents: Arizona, California, Colorado, Florida, Georgia, Illinois, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, and Texas. 12. Spanish is the second most spoken language in the United States. MEXICAN-AMERICAN WAR (1846–1848) 13. On May 13, 1846, at President James Polk's request, Congress voted to declare war on Mexico in a territorial dispute over Texas.
14. The Mexican-American War officially ended with the signing of the Treaty of Guadalupe Hidalgo on Feb. 2, 1848. 15. The treaty added 525,000 square miles to the United States, including land that
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makes up Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming. Mexico also gave up its claims to Texas, recognizing the Rio Grande River as the United States’ southern boundary. NOTABLE HISPANICS
16. In 1993, Dr. Ellen Ochoa was the first Hispanic woman astronaut to go into space. 17. Carlos Santana was the first Hispanic to be inducted into the Rock & Roll Hall of Fame in 1998. He has won over 10 Grammy Awards during his career. 18. In 2009, Sonia Maria Sotomayor became the first Latina Supreme Court Justice. NOTABLE SUPREME COURT CASES 19. In 1954, the U.S. Supreme Court extended constitutional rights under the Fourteenth Amendment to Mexican Americans in the landmark case Hernandez v. Texas. In 1950, Pete Hernandez was charged with murder and found guilty by an all-white jury in Jackson County, Texas. Gustavo “Gus” Garcia, a Mexican American civil rights attorney, appealed to the U.S. Supreme Court, arguing that the Fourteenth Amendment guaranteed protection on the basis of
race and class. While Mexican Americans were classified as white, Garcia and his legal team demonstrated that Texas had unreasonably singled out Mexican Americans as “a class apart” when they were excluded from jury duty, depriving the defendant of equal protection. In a unanimous decision delivered by Chief Justice Earl Warren, the Supreme Court extended constitutional protection to racial and ethnic groups facing discrimination. 20. On June 18, 2020, the U.S. Supreme Court issued a decision holding that the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (“DACA”) was improper and in violation of the Administrative Procedures Act. DACA provides “Dreamers”—immigrants brought to the United States as children—“deferred action,” a status that allows them to obtain work visas and protects them from deportation. DACA recipients are required to pass an extensive background check and renew their application every two years to remain in the program. While it was an important victory for Dreamers and immigration advocates, the administration could attempt to rescind the program again.
Sonia Maria Sotomayor, the first Latina Supreme Court Justice
In 1954, the U.S. Supreme Court extended constitutional rights under the Fourteenth Amendment to Mexican Americans in the landmark case Hernandez v. Texas. HISPANIC BAR ASSOCIATION OF AUSTIN 21. Last year, the Hispanic Bar Association of Austin (HBAA) raised over $80,000 for scholarships for Hispanic college students, law students, and prospective law students. Donations to the
HBAA Charitable Foundation can be made year-round at hispanicbaraustin.com/hbaaAUSTIN LAWYER AL AL foundation.
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BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: William Boisvert Jack Holtzman Stephanie Hon
ABOVE: Banaszak, Cain, Heath, Martinez Jones, Salek LEFT: Garsson, Schoenbaum
AWARDS Bickerstaff Heath Delgado Acosta, one of the largest firms in Texas devoted extensively to the practice of state and local government law, celebrates 40 years of legal service. Originally known as Bickerstaff Heath, the firm was founded in Austin on Sept.1, 1980 by Robert S. “Steve” Bickerstaff, Jr. and C. Robert “Bob” Heath. BHDA has grown since by adding senior-level attorneys with practices in litigation, corporate law, water law, and real estate. The firm has also expanded its presence in Texas with the addition of office locations in El Paso and Houston.
Randy C. Cain received the 2020 “Lawyer of the Year” recognition for Government Relations Practice in Austin. He has been continuously recognized by Best Lawyers in America® in the area of government relations since 2007.
PATIENT
Ross Spencer Garsson of Dickinson Wright has been included in Best Lawyers in America® 2021 edition. Garsson specializes in patent law. Attorney Armin Salek, who teaches the Akins Early College High School program, has been awarded the 2020 Rather Prize for his Legal Eagles high school law clinic in Austin. Salek teaches career and technical education criminal justice. The award will help to expand the Legal Eagles program and to serve as a model to other schools in Texas and nationwide. The Rather Prize is a $10,000 cash prize that goes to the student, teacher, or administrator in Texas who provides the best idea to improve Texas education. Congratulations to two Austin Bar members for their Austin Under 40 Awards. The winner in the Civic, Government and
PRACTICAL
Public Affairs category is Travis County Associate Judge Aurora Martinez Jones, and in the Legal category is Lauren Schoenbaum, managing partner at Ruffner Schoenbaum. NEW TO THE OFFICE Nikki G. Maples and Meagan M. Jones are pleased to announce their new firm: Maples Jones. The firm specializes in family law matters. The new firm is located at 3101 Bee Caves Rd., Suite 260. Austin, TX 78746.
Ruffner Schoenbaum is pleased to announce new partner Leigh Banaszak has joined the firm to lead its estate planning and probate practice. Banaszak’s expertise allows the firm to expand its estate planning practice by adding probate, guardianship, and trust administration, while continuing to support family and business estate planning.
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BE WELL
Pushing the Reset Button When Life Feels Out of Control BY SAM COLLETTI
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ast week was a hard week. I had a trial set for Monday. I worked most of the weekend. I came to the office Monday not knowing when or if the court would reach us. We ended up rescheduling. I was tired and frustrated. I stayed at the office and tried to work on other cases. There’s still plenty of other work to do, I told myself. You’re already here, might as well work. You need more hours for the month. Ugh. So I half-heartedly “worked” the rest of the day, unfocused, not getting any “deep work” done. I went home irritated and not feeling like I’d accomplished much of anything. I didn’t sleep well. I went to work Tuesday not feeling great. I stared at my now-blank calendar for the day. The dreaded blank calendar—brimming with possibility but laced with anxiety. I better prioritize this day correctly. Didn’t bill much yesterday, really need more hours today. Can’t spend too much time prioritizing, just need to get the clock running on something. Another unfocused day unfolds. The week is not getting better. Worse yet, I’m taking it home with me. I’m not fully present with my kids and my wife. I’m irritable. I’m beating myself up about “not having a good week” and that internal narrative is keeping me from truly engaging with my family. Then the weekend comes and the real work begins—taking care of three kids (ages 7, 3, and 1) all weekend, with all the restrictions the pandemic has forced upon all of us. I have to get my mental/ emotional wagon out of the ditch—but how? I need to push the reset button—get out of my own head and out of the negative thought-pattern. I find that changing my physical state changes my mental state. I’ll go for a run or walk 10
AUSTINLAWYER | OCTOBER 2020
outside, by myself, as deep into nature as is possible, with no expectation about time or distance. I focus on regulating my breathing and noticing my immediate environment. If I can’t do that, I might just do a quick workout and stretch in the driveway. The hard part for me has been letting go of expectations of what exercise should look like. I remind myself that I exercise for three reasons: (1) for sleep quality; (2) for mental focus; and (3) for emotional resilience. The peace that comes from immersion in nature and mild-to-moderate physical exertion helps me hear what is going on inside me. Then it’s time to put some thoughts on paper. If I had any good insights during my exercise, I write those down. Then I just start writing down positive thoughts. It might be things I’m thankful for, things I’m excited about or looking forward to, or things that turned out better than I expected. Also I might text a few friends and just let them know I’m thinking about them. Once I do these things—nature, exercise, gratitude, connection—I am calmer and ready to process the stress appropriately. I do that by being curious (but not dismissive or critical) about the feelings I was having before. I wonder what this [anxiety, anger, sadness, etc.] is about? Without fail, that line of questioning leads me to my self-constructed fear contagion. For example, I’m afraid that if I don’t win this hearing the client will lose faith in me and the judge will think I’m an idiot and pretty soon the whole world will know I’m a terrible lawyer (and so forth into oblivion)… Then I play the “is that really true?” game and examine each step in the fear contagion. (Note: it is not a fun game, but it is the path out of that darkness.) The answer, of course, is no, none of
The peace that comes from immersion in nature and mild-to-moderate physical exertion helps me hear what is going on inside me. those things are really true. They are just stories my mind thinks up that are based on some fear or insecurity. Sometimes with a particularly thorny negative thought, it helps me to write out a worst-case scenario. Writing it down takes the sting out of it, and allows me to make a plan rather than stay paralyzed in fear. Let me be clear: None of this comes naturally to me. I had to be taught these things, and I have to continually practice them.
None of us can argue ourselves out of feeling a certain way. But we can, and must, get ourselves grounded and then do the work of compassionately examining our feelings. And next LAWYER time, I’ll do it AUSTIN AL AL on Monday afternoon! Sam Colletti is a partner at Noelke Maples St. Leger Bryant. He is board certified in family law and is a member of the Austin Bar’s Lawyer Well-Being Committee.
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Effective Allyship in the Workplace BY DOMINIQUE MCLEGGAN-BROWN, ESQ., FOUNDER, THE SISTERS IN LAW
Dominique McLeggan-Brown serves as a staff attorney for the Office of Public Interest Counsel within TCEQ. She is the founder and creator of The Sisters in Law, an online platform for minority women in the law which focuses on encouraging and empowering attorneys through shared stories and professional development. Visit thesistersinlaw.com for more information.
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n Aug. 11, 2020, The Sisters in Law and League of Lady Lawyers partnered to host a virtual conversation on effective allyship in the workplace. It was the first event in a three-part series on diversity, inclusion, and retention. The goal of the series is to provide an opportunity for candid dialogue and a chance to reflect on the work against racism in our profession. For Part 1 of the series, the panelists included Ayeola Williams, Dr. Priscilla Bowens, and Maria Cantú Hexsel. Each panelist provided insight on how allies play a key role in moving our profession towards equity and inclusion. Most notably, the panelists discussed not only what effective allyship looks like, but also how to detect counterproductive allyship at work. The first discussion had more than 40 participants. The Sisters in Law and League of Lady Lawyers look forward to
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AUSTINLAWYER | OCTOBER 2020
continuing these conversations to spark both reflection and action. The second and third parts of the series will be held in the coming months. To receive invitations to these and other events, sign up at thesistersinlaw.com or join the League of Lady Lawyers Facebook group. The following is a transcript of the allyship panel moderated by Dominique McLeggan-Brown of The Sisters in Law and Christie Hebert of League of Lady Lawyers. Some of the responses have been edited for brevity and clarity.
allyship include: vocally supporting the work of your Black, Indigenous, and People of Color (BIPOC) colleagues in meetings; recommending these colleagues for billable, substantive assignments; and advocating for BIPOCs as keynote speakers. An effective ally will listen to their colleagues’ work experiences and remain open to feedback even if it is negative. Cantú Hexsel: An effective ally recognizes their position as a
What does effective allyship mean and what are the attributes of an effective ally? Williams: An effective ally is an individual who uses their privilege and power to advocate and advance the rights for underrepresented people in the workplace. An ally needs to be intentional and willing to get uncomfortable. A few ways to exercise effective
RECOMMENDED READING Caste by Isabel Wilkerson You Don’t Look Like a Lawyer: Black Women and Systemic Gendered Racism by Tsedale Melaku The Memo by Minda Harts The New Jim Crow by Michelle Alexander
gatekeeper. Everyone is a gatekeeper. Everyone has a role as a gatekeeper in creating diversity and inclusion to bring equity. An effective ally also recognizes their place on the spectrum, whether that is color, sexual orientation, etc. I recognize my place on the spectrum because it’s not all the same. This is not to diminish my own experiences [with racism or sexism], but recognizing that [as a non-Black minority] it is different for my
Statistically, women of color have more higher education degrees than other groups, but women of color are under-represented in leadership positions—e.g., as CEOs, heads of agencies, etc. Why is that? Black colleagues. We all need to learn more on this issue. Dr. Bowens: An effective ally will see us, which is necessary because we don’t feel like we are being seen. Statistically, women of color have more higher education degrees than other groups, but women of color are under-represented in leadership positions--e.g., as CEOs, heads of agencies, etc. Why is that? Additionally, an effective ally will acknowledge us and engage in conversation to learn more about us. Lastly, an effective ally will elevate us by using their influence to modify the makeup of board rooms, leadership, and wage gaps for women of color. What is counterproductive allyship? According to our panelists, counterproductive allyship consists of, but is not limited to, the following: inaction, lack of authenticity, and performative statements and actions. Dr. Bowens: You may say, “I support you, but I don’t know how to help you.” However, not doing anything is counterproductive because we need you, and we are asking for your help. Your voice matters. Your voice carries weight. As an ally, speak up for your colleagues of color. Cantú Hexsel: Be authentic. Start from a place of authenticity because if you’re not at that place you’re never going to get to that point of understanding structural inequities. Lack of authenticity is counterproductive.
posting a hashtag, “How am I really effecting change? What steps have I taken to equalize wages, promotions, etc.?” What would you like people to take away from today’s conversation on allyship? Dr. Bowens: Educate yourself. Learn more. When you learn more about anything in life, you can ask better questions. We are the future, and we can change what’s been going on in our profession by taking steps towards change. Show up to diversity and inclusion events, affinity groups, etc. Showing up actually speaks volumes. Cantú Hexsel: If you work on inclusion and equity, you will get diversity. If all you’re doing is just trying to get diversity, that won’t fix the issue. Don’t be afraid to show up, speak out, and educate yourself. When you’re coming from a place of authenticity, we BIPOC know and we are anxious and excited to build those connections and relationships with you.
Available by video and in person
Williams: Create measurable, achievable, personal goals for yourself when it comes to allyship. When you can measure this goal, it gets done and becomes real. I also echo the importance of education. Continue to have these conversations.
It is easy to think that you can’t do anything, or you don’t feel comfortable putting yourself out there, but remember—ally is a verb. To ally is to act, to lead, to push for change. Effective allyship takes action, and particularWilliams: Performative allyship ly, it takes an advocate. Who are is counterproductive allyship. better positioned to do this than AUSTIN LAWYER Effective allies should focus on AL lawyers? A L concrete actions that advance inclusion in the workplace. When OCTOBER 2020 | AUSTINLAWYER
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OPENING STATEMENT
Visuals in Briefs, Part I A Valuable Tool for Persuasion BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET
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egal writers should use visuals as persuasive tools in their documents, and it’s already happening. In my survey of 133 lawyers, 70% said they frequently or sometimes use visuals in briefs. The survey targeted writers of persuasive documents at an initial-dispute stage: trials, administrative hearings, arbitrations, and others. This column displays a simple pie chart showing the answers to survey question 2: “In writing briefs or other persuasive documents, do you ever use visuals: graphics, images, charts, tables, illustrations, and so on?” In part one of this series, I'll discuss the recommendations from experts and practicing lawyers in favor of visuals. As the survey results show, many legal writers are already using visuals in briefs. That only makes sense because those who research and write about using visuals have been recommending the practice for several years. Here are two experienced practitioners in 2019: “Using images in briefs can be an effective tool for both catching and keeping the attention of a ‘wired’ judge or clerk and for increasing the persuasive force of your legal argument.”1 Here’s a 25-year in-house lawyer, writing in 2013: “Well-crafted images—charts, diagrams, photographs—can make your briefs more interesting and persuasive ….”2 No, the written word isn’t dead, said two legal-writing professors in 2015, but “[a]s legal writing moves toward a more digital medium, it is time for lawyers to incorporate visual persuasion into their documents.… [Visuals users] are advancing legal writing in a positive direction.”3
My survey produced some supporting recommendations as well. In responding, writers could choose from a list of the potential benefits of visuals, and here are the top three responses: 1. Sometimes visuals can convey concepts that text cannot; 2. Sometimes using visuals is easier than describing something in the text; and 3. Visuals add persuasive force to the document. Survey respondents could also add comments, and there were several strong endorsements: • “Using graphics, charts, etc. can be very helpful to a brief and the judge’s understanding of the issues.” • “I use tables and charts as often as it makes sense. When I was clerking, I found graphics in briefs to be generally helpful. One table compared specific allegations in the complaint with what the plaintiff had ultimately presented on that point after discovery. The discrepancies were already glaring, but the table really nailed it.” • “I use tables and charts when they help organize the information: with multiple parties and I’m trying to display the differing facts about each one, in discovery disputes—breaking down the disputed-information categories, for financial information, and in timelines.” • “In a case with multiple claims and multiple defendants, I created a table in which each row was a specific claim against a specific defendant. In the columns, I briefly explained why that claim failed and cited a key case.” To these endorsements we can add the obvious point that lawyers have used visuals for
Use of Visuals in Briefs Frequently 24%
Never 8% Rarely 22%
Sometimes 49%
live trials and hearings for many years. It’s taken for granted that photos, maps, charts, and other visuals have a strong persuasive impact on judges and juries. So it’s not surprising that the same is true for briefs. Yet 30% of my survey respondents said that they rarely or never use graphics in briefs. Why not? I’ll address that in the next AUSTIN LAWYER AL AL part of this series.
Footnotes 1. Emily Hamm Huseth & Michael F. Rafferty, A Picture Can Save a Thousand Words: The Case for Using Images in Appellate Briefs, For the Defense 22, 23 (Feb. 2019). 2. Adam L. Rosman, Visualizing the Law: Using Charts, Diagrams, and Other Images to Improve Legal Briefs, 63 J. Leg. Educ. 70, 70 (Aug. 2013). 3. Steve Johansen & Ruth Anne Robbins, Art-iculating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 J. of the Leg. Writing Inst. 57, 59, 60 (2015).
OCTOBER 2020 | AUSTINLAWYER
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THIRD COURT OF APPEALS CIVIL UPDATE The trial court denied the request. The court of appeals noted that Family Code § 45.004(a) permits a name change if in the best interest of the child. Cases hold that the change should only occur when the substantial welfare of the child requires it.
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.
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The following are summaries of selected civil opinions issued by the Third Court of Appeals during July and August 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Sept. 4, 2020.
maiden name. The trial court denied the request. The court of appeals noted that Family Code § 45.004(a) permits a name change if in the best interest of the child. Cases hold that the change should only occur when the substantial welfare of the child requires it. Mother testified that the children had used her maiden name for years, that the children were close to her family, and that her family name was well known and respected in the county. Further, children’s father had been out of their lives for several years because of allegations of child abuse. Both children testified to their desire for the name change. The court of appeals found no abuse of discretion in the trial court’s refusal to grant the name-change request and affirmed.
FAMILY LAW: Court affirms trial court’s refusal to change children’s names from abusive father’s name to mother’s maiden name. Simmons v. Erickson, No. 0319-00649-CV (Tex. App.—Austin Aug. 13, 2020, no pet. h.) (mem. op.). Mother sought to change children’s last name to her
TCPA: Court reverses attorney’s fee award. Campone v. Kline, No. 03-1900908-CV (Tex. App.—Austin Aug. 13, 2020, no pet. h.) (mem.
op.). The trial court granted summary judgment for the Klines on their affirmative defense of limitations and awarded fees. Campone challenged the trial court’s fee award for failure to properly segregate. The court of appeals noted that attorney’s fees cannot be awarded by summary judgment unless there is no fact issue on the amount of fees. The Klines’ attorney’s affidavit supported the fee award. Campone’s attorney’s affidavit opined that the fees were not properly segregated. The court concluded that Campone’s attorney’s affidavit raised a fact issue. The court reversed and remanded the fee award and affirmed the remainder of the summary judgment.
IMMUNITY: Court holds failure to use vehicle’s safety equipment can constitute a use of motordriven equipment. City of Austin v. Anam, No. 0319-00294-CV (Tex. App.—Austin July 30, 2020, no pet. h.) (mem. op.). Anan sued the City for the damages arising from an incident that resulted in his son’s death. Suspected of shoplifting, police handcuffed and placed Zachary Anam in a patrol car. Zachary managed to release the seatbelt and shot himself. The trial court denied City’s plea to the jurisdiction on immunity grounds. The court of appeals concluded that improper use or failure to use a vehicle’s safety equipment can constitute a use of a motor vehicle and held that the failure to secure the seatbelt constituted a use or operation of a vehicle. The court further held that Anan raised a fact issue on whether the death was foreseeable. The court affirmed. The dissent concluded that Anan failed to allege facts demonstrating foreseeabiliAUSTIN LAWYER ty and would have reversed. AL AL
The court of appeals noted that attorney’s fees cannot be awarded by summary judgment unless there is no fact issue on the amount of fees.
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THIRD COURT OF APPEALS CRIMINAL UPDATE late court disagreed, concluding that the record reflected that counsel questioned the venireperson as to her bias and elicited responses from the venireperson indicating that she could be fair and impartial.
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.
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The following are summaries of selected criminal opinions issued by the Third Court of Appeals during April 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Aug. 31, 2020. INEFFECTIVE ASSISTANCE OF COUNSEL – BIASED JURORS: Counsel was not ineffective for failing to challenge juror who indicated that she was biased against defendant. Herrera v. State, No. 03-1900045-CR (Tex. App.—Austin Apr. 22, 2020, no pet.) (mem. op., not designated for publication). Herrera was convicted of capital murder based on evidence that he had sexually assaulted the victim during the murder. During jury selection, a member of the venire indicated that that she had been the victim of a sexual assault and told the prosecutor that she was “definitely biased” for that reason. Defense counsel failed to challenge her for cause, and she was seated on the jury. On appeal, Herrera claimed that this failure constituted ineffective assistance of counsel. The appel18
AUSTINLAWYER | OCTOBER 2020
TRAFFIC STOPS – LENGTH OF DETENTION, OFFICER MICROPHONES, AND VIDEO EVIDENCE SHOWING DEFENDANT IN HANDCUFFS: Trial court did not abuse its discretion in admitting evidence obtained during traffic stop. Dunlap v. State, No. 03-19-00226CR (Tex. App.—Austin Apr. 24, 2020, no pet.) (mem. op., not designated for publication). Dunlap was convicted of driving while intoxicated. Prior to trial, Dunlap filed a motion to suppress, asserting that the length of the traffic stop was unreasonable and that the detaining officer committed a criminal offense by turning off his microphone during the stop. The trial court denied the motion to suppress and the appellate court affirmed. The appellate court concluded that the length of the detention was reasonable. Although Dunlap had been stopped for speeding, the detaining officer suspected him of driving while intoxicated once he smelled a strong odor of alcohol on Dunlap’s person. This necessitated further investigation, and the appellate court concluded that the approximately fifteen to sixteen minutes that the officer spent conducting the DWI investigation was reasonable under the circumstances. The second issue was whether the evidence should have been suppressed because the detaining officer turned off his microphone during the investigation, which Dunlap asserted was illegal. The appellate court disagreed. Although the officer admitted at the suppression hearing that he turned off his microphone even though he knew an investigation was underway, no evidence was presented during the hearing
that he turned off the microphone “with the intent to impair the verity, legibility, or availability of the recording as an item of evidence.” Without such intent, the officer’s action in turning off the microphone was not a crime, and the trial court did not abuse its discretion in denying the motion to suppress for that reason.
Apr. 29, 2020, no pet.) (mem. op., not designated for publication). Macias was convicted of aggravated assault with a deadly weapon and sentenced to forty years’ imprisonment. Macias challenged his sentence on appeal, asserting that he did not plead to two enhancement paragraphs in the indictment and
Although the officer admitted at the suppression hearing that he turned off his microphone even though he knew an investigation was underway, no evidence was presented during the hearing that he turned off the microphone “with the intent to impair the verity, legibility, or availability of the recording as an item of evidence.” At trial, video recordings showing that the district court erred by Dunlap in handcuffs during the instructing the jury to find both traffic stop were admitted into enhancement paragraphs true. evidence. Dunlap argued that The appellate court rejected both admitting the recordings without contentions. Although Macias did redacting the portions showing not enter a plea to the enhancehim in handcuffs infringed on ment paragraphs, he stipulated to his constitutional right to a both enhancement paragraphs in presumption of innocence. The the indictment as “true,” which appellate court assumed without constituted judicial admissions deciding that this was error and to the prior convictions alleged proceeded to a harm analysis. in the enhancement paragraphs. The court concluded that the erConsequently, no proof of those ror was harmless because the jury prior convictions was required. could have reasonably expected Similarly, because Macias to see Dunlap in handcuffs stipulated to both enhancement paragraphs, the district court did following his arrest; the recordnot err in instructing the jury to ings were cumulative of other the enhancement paragraphs evidence that Dunlap had beenAUSTINfind LAWYER Atrue. L AL placed in handcuffs; the State did not emphasize the evidence; and there was overwhelming evidence of Dunlap’s guilt. SENTENCING – ENHANCEMENT PARAGRAPHS: Defendant’s failure to plead to enhancement paragraphs was not reversible error. Macias v. State, No. 03-1900098-CR (Tex. App.—Austin
FEDERAL CIVIL COURT UPDATE
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The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Sept. 9, 2020. SEC ENFORCEMENT ACTIONS: Statutory review scheme for Securities and Exchange Commission (SEC) administrative enforcement actions is exclusive path for asserting constitutional challenge to SEC enforcement proceedings, and parties may not circumvent that scheme by filing suit in federal district court before proceeding ends. Cochran v. SEC, No. 19-10396, 2020 WL 4593226 (5th Cir. Aug. 11, 2020). The SEC brought an enforcement action against Michelle Cochran, a CPA, alleging she failed to comply with auditing standards in violation of the Securities Exchange Act. Under the Act, the SEC can initiate enforcement proceedings in district court, before the Commission itself, or before an administrative law judge (ALJ). The SEC elected to proceed before an ALJ. Cochran filed suit in district court seeking to enjoin the enforcement action based on constitutional challenges. The ALJs enjoy multiple layers of “for cause” removal protection, which Cochran contended violated the Separation of Powers clause of the Constitution. Cochran also alleged a due process violation on the ground that ALJs do not follow SEC rules and procedures. The district court dismissed for lack of subject jurisdiction, concluding that the Act’s statutory review provision, which permits a person aggrieved by a final Commission order to obtain review in the circuit court where he or she resides, provides the exclusive means for asserting these constitutional claims before an Article III court. The Fifth Circuit affirmed.
The general federal question jurisdiction statute, 18 U.S.C. § 1331, allows district courts to hear cases “arising under the constitution.” Congress, however, may strip federal courts of jurisdiction explicitly or implicitly. The court held that the statutory review provision for SEC enforcement actions displaces the general federal question jurisdiction statute and strips the district court of subject matter jurisdiction over suits raising constitutional challenges to enforcement actions. The court then held that, based on its prior decision in Bank of Louisiana v. FDIC, 919 F.3d 916 (5th Cir. 2019), Cochran’s constitutional claims were the types of claims Congress intended to funnel through the statutory review scheme. In Bank of Louisiana, the court held that a similar statutory review scheme for FDIC actions divested a district court of jurisdiction to hear a constitutional challenge claim related to the authority of an ALJ. Bound by precedent, the court held that Congress intended to funnel claims like Cochran’s constitutional claims through the SEC statutory review scheme. FIRST AMENDMENT: Under Reed v. Town of Gilbert, 576 U.S. 155 (2015), a law regulating speech by drawing distinctions based on idea or message communicated, is facially content-based and thus subject to strict scrutiny, even if the law defines regulated speech by function or purpose and is justified without regard to content of the speech, abrogating Asgeirsson v. Abbott, 696 F.3d 454 (5th Cir. 2012). Reagan Nat’l Advert. of Austin, Inc. v. City of Austin, No. 19-50354, 2020 WL 5015455 (5th Cir. Aug. 25, 2020). The City of Austin Sign Code (Code) permitted existing “on-premises” non-digital signs to be digitized but prohibited existing “off-premises” non-digital signs to be digitized. The Code defined an “off-premises sign”
Sameer Hashmi is an associate at Scott Douglass McConnico who practices complex commercial litigation across Texas and around the country.
David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.
as “a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site.” Two outdoor billboard companies, Reagan and Lamar, filed suit for declaratory judgment, arguing that prohibition of digitization of off-premises signs violates the First Amendment. After a bench trial, the district court denied Reagan’s and Lamar’s claim, ruling that the Code did not violate the First Amendment because it was content-neutral and satisfied intermediate scrutiny. The court of appeals reversed. The court held that the Code provisions at issue were facially content-based and, therefore, subject to strict scrutiny. The court explained that under Reed, a law is content-based when it “target[s] speech based on its communicative content,” or in other words, when it “applies to particular speech because of the topic discussed or the idea or message expressed.” This is so regardless of whether the law resulted from a benign motive, has a content-neutral justification, or is not based on animus toward the ideas contained in the speech. Thus, the court determined that Reed abrogated its previous decision in Asgeirsson. Applying this new
understanding of content-based speech, the court reasoned that the Code was content-based because one must look to what a sign says to determine whether it is “off-premises,” i.e., whether it advertises products or services offered somewhere other than the sign’s location. The court then considered whether the Code provisions regulate commercial speech. Under long-standing Supreme Court precedent, commercial speech is given lesser protection than other constitutionally guaranteed expression and is therefore subject to intermediate-scrutiny review. The Court, however, concluded the exception did not apply because the provisions in question apply with equal force to commercial and non-commercial speech, and the fact that most billboards display commercial messages does not change that. As a result, the court assessed the Sign Code provisions under strict scrutiny and held that the provisions not AUSTINdid LAWYER meet that exacting standard. AL AL
OCTOBER 2020 | AUSTINLAWYER
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CRIMINAL COURT NEWS
Defund the Police, or End the Drug War? BY DAN DWORIN
D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.
C
riminal justice advocates, spurred to action by a series of apparently unjustified killings of Black citizens by law enforcement, have been calling for police department budgets to be slashed and the money spent on social services, particularly mental health care and efforts to end homelessness. One might assume that calls to re-allocate resources away from traditional law enforcement should include an analysis of where cuts could most easily be
made. However, because a lion’s share of arrests in the United States are for drug possession— indeed, a study released in 2016 showed that more people were arrested for marijuana possession than for all categories of violent crime combined—changing the legal approach to possession of drugs seems like an obvious place to start.1 According to the American Civil Liberties Union, Black Americans are more than three times as likely to be arrested for marijuana possession as white Americans, despite a similar frequency of marijuana use among the races.2 Obviously, if most arrests are made for marijuana possession, and Black citizens are far more likely to be arrested, decriminalizing or legalizing marijuana possession would, it seems, drastically reduce the number of Black Americans being arrested. Because most negative police-citizen encounters involve arrests or detentions, this decriminalization would decrease the potential for instances of violence. Similarly, the amount of law enforcement resources currently dedicated to marijuana prohibition could clearly be used elsewhere. Although Texas state law still prohibits the possession of a “usable quantity” of marijuana,
as of July 2020, the Austin Police Department, as a matter of policy, no longer arrests or cites violators for possession of small amount of marijuana.3 In January 2020, the Austin City Council passed a resolution barring the use of city funds for testing marijuana for THC concentration, effectively telling APD to stop using resources for this offense.4 Although Austin Police Chief Brian Manley initially said APD would continue to make marijuana arrests, he eventually changed his position.5 The Travis County Attorney and District Attorney have been rejecting marijuana cases since July 2019, when the Legislature created confusion by legalizing hemp (marijuana with a THC concentration of less than 0.3 percent), leaving prosecutors scrambling to find labs that could test a suspected substance for THC concentration.6 It will take time to ascertain whether these policy changes result in the lowered detention, arrest, and prosecution of Black Travis County residents. But it seems as though such a simple policy change, and the related reduction in arrests, would be an effective means to reducing the overallAUSTIN presence, and cost, of the LAWYER L AL police in our A lives.
Leslie Breeland Realtor, JD, GRI, CLHMS SEED Property Group 512.826.8430 leslie@seedpropertygroup.com seedpropertygroup.com
Footnotes 1. Human Rights Watch, Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, Oct. 12, 2016, https://www. hrw.org/report/2016/10/12/ every-25-seconds/human-tollcriminalizing-drug-use-united-states. 2. ACLU, Extreme Racial Disparities Persist in Marijuana Arrests, https:// graphics.aclu.org/marijuana-arrestreport/. 3. The Texas Tribune, Austin police will no longer cite or arrest people for possessing small amounts of marijuana, July 2, 2020, https:// www.texastribune.org/2020/07/02/ austin-police-marijuanadecriminalization/. 4. The Texas Tribune, Austin police will stop arrests, tickets in most low-level marijuana cases after unanimous City Council vote, Jan. 23, 2020, https:// www.texastribune.org/2020/01/23/ austin-texas-will-stop-arreststickets-low-level-marijuana-cases/. 5. The Texas Tribune, Austin police will no longer cite or arrest people for possessing small amounts of marijuana, July 2, 2020, https:// www.texastribune.org/2020/07/02/ austin-police-marijuanadecriminalization/. 6. Austin Monitor, New Texas law has Travis County dismissing marijuana cases, July 5, 2019, https://www.austinmonitor.com/ stories/2019/07/new-texas-lawhas-travis-county-dismissingmarijuana-cases/.
Helping you navigate the central Texas real estate market during these surreal times.
Leslie Breeland is a real estate agent affiliated with Compass. Compass is a licensed real estate broker and abides by federal, state and local laws. Equal Housing Opportunity.
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AUSTINLAWYER | OCTOBER 2020
Veterans Legal Assistance Program Thanks Its Many Volunteers
T
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. From January to March, 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. After the pandemic caused the face-to-face clinics to be cancelled, there was a switch to virtual phone clinics. Staff prescreened the veteran applicants who were then matched with lawyer volunteers who called the veterans to discuss their cases. In addition, a special “thank you” goes to the following orga-
nizations 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 isabel@austinbar.org. AL AL
AUSTIN BAR FREE LEGAL ADVICE CLINICS FOR VETERANS Upcoming Dates 2020 Free Legal Advice Clinics Monday - October 19 (Virtual) Monday - November 9* Monday - December 14* 1:00 p.m. to 4:00 p.m. To be placed on the Virtual Clinic List, you must fill out the application at this link: https://www.austinbar.org/for-the-public/legal-resources/veterans/veteran-intake-form/
*Subject to change to virtual clinics depending on COVID-19 circumstances. For any questions about the Free Legal Advice Clinic or Legal Assistance Program please contact the Austin Bar Association at 512.472.0279 x110.
The Texas Access to Justice Foundation and the Austin Bar Foundation provide support to this program.
ATTORNEY VOLUNTEERS Alan Bickerstaff Kerry Bloodsaw Mallory Carlberg Wayne Cavalier Robert Chestnutt Tony Ciccone Sean Condron Claudia Crocker Kevin Dietz Lindsey Drake Mary Ann Espiritu Jillian French Phil Friday Robert Garza Ronald Greening Kristine Gregg Fred Helms Julian Honor Leslie Hume Shannon Hutcheson Frank King Michelle Kwan Alicia Lackey Chris Lavorato Grace Lei Stephanie Louie Matt Lyons Katherine Macaulay Vivian Mahlab Karl Mattlage Robert Meisel Jessica Mendoza Jo Ann Merica Todd Musick Jared Nicholson Janet Reinarz Bill Rossick Kathryn Ryle Joshua Seda Michael Shippey Crii Spears-De Leo David Tate David Whittlesey Adam Wyma PARALEGALS: Pat Dennis Valerie Dennis Annie Melendez LAW STUDENTS: Argyll Reid Kira Richards Rhea Shahane Seth Smitherman Hannah Thai SUMMER INTERNS: Michelle King Isabella Roberts OCTOBER 2020 | AUSTINLAWYER
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AUSTIN YOUNG LAWYERS ASSOCIATION
AY LA PRESIDENT’S COLUMN DAVID KING, GRAVES DOUGHERTY HEARON & MOODY
Finding the Bright Spots outlets for civic activism. In this month’s column, I’m taking it a step further. Without further ado, here are my top three bright spots of the 2020 pandemic:
I
n August, AYLA’s board of directors held its first (and perhaps last) completely virtual board retreat. Was it the same as an in-person board retreat? No. Was it as fun? I guess that depends on how much one can tolerate three hours of Zoom, but I will venture to guess most on our board would say no. But did we make it work? I sure think so. Thanks to substantial and creative use of breakout rooms (shout-out to our executive director, Debbie Kelly, for ably handling the virtual shuffling), we came out of our retreat with a plan for the year. We also came out with a variety of new, interesting programming ideas for the post-COVID world. Those new programming ideas will, I hope, be the subject matter of a future column; that will depend on execution, which is the hardest part, of course. But one thing is for sure. If I had been asked in February if I thought AYLA could thrive—or even function—without in-person events, like our board retreat, I would have been skeptical. My skepticism is fading, along with many of my other pre-pandemic conceptions of what we are capable of accomplishing and through what means. In last month’s column, I mentioned that one positive thing to come out of the pandemic has been an eagerness to find 22
AUSTINLAWYER | OCTOBER 2020
1. LAW PRACTICE AT HOME In February, I would have been the last person to think a law firm could stay in business without a physical office. We’re lawyers, after all! According to the old adage attributed to Justice Joseph Story, the law is a jealous lover, right? We need our offices so we can become completely immersed in our practice without distraction! Well, it turns out I was wrong. The jealous lover can reside right in the comfort of our own homes (which may mean it’s not a lover anymore, but I’ll just stop with that problematic metaphor now). To be sure, I miss working in an office with my law partners, but the tradeoff is worth recognizing: Now, instead of having lunch with my colleagues, I can have lunch with my family. That’s something I will miss if and when we head back to the office in 2021. 2. QUESTIONING NORMS The previous example is part of what I think is a larger pattern of thought happening across business and society. When dramatic change is forced upon us (as the pandemic has certainly done), we inevitably find out that some, and perhaps many, of our fears associated with that change were not justified. For example, we now know that having lawyers work virtually does not spell the end of law practice. So, what other misconceptions are we operating under? What other ways can we fundamentally change the
As we struggle to adapt to the change forced upon us, I expect this upheaval will also open the door to other important changes which are deliberate, rather than forced. way we live and work, without any of the dire consequences that we assume would follow? As we struggle to adapt to the change forced upon us, I expect this upheaval will also open the door to other important changes which are deliberate, rather than forced. 3. DEEPER PERSONAL CONTACT Yes, even though the pandemic has taken away so much in terms of social interaction, I believe it has also increased our appreciation of and even our contact with those we love. Deprived of our daily social interaction, and without the easy option of hopping on a plane to visit loved ones and friends, I expect, like me, others have spent a lot more time on the phone connecting
with those loved ones and friends. In the words of Joni Mitchell, “You don’t know what you’ve got ‘til it’s gone.” Maybe when we get back to “normal,” we’ll be able to hold on to some of that appreciation we’ve gained for those we miss. All of that said, there is nothing good about COVID-19. The loss of life and economic disruption is heartbreaking. And yet, in this time of hardship, it’s important—at least it is for me—to take stock of the things that are not as bad as they could be, and the things that are better than we thought they would be. Let’s hope, as we work through 2020, the brightLAWYER spots become clearer AUSTIN AL AL and brighter.
UPCOMING EVENTS THURSDAY, OCT. 15 AYLA Virtual Mixology Class Docket Call 5:30 p.m. Register at ayla.org Please check the website at ayla.org for event information and updates as they become available.
AUSTIN YOUNG LAWYERS ASSOCIATION
AYLA Community Service Days Project: Coats for Kids Drive
H
elp! The annual Coats for Kids drive in Austin—which provides 30,000 coats every year to Central Texas children in need—is expecting potential setbacks this year due to COVID-19 and the resulting economic downturn. AYLA’s Community Service Days group is asking the Austin legal community to join them in October to help make sure at-risk children in our community still get the help and warmth they need this year. AYLA will soon release an Amazon wish list that will allow Austin lawyers and others to easily order and ship new coats specifically requested by Coats for Kids. Simply add the item from the wish list to your Amazon cart and complete the purchase to have the coat shipped directly to Coats for Kids in Austin. More
The annual Coats for Kids drive in Austin— which provides 30,000 coats every year to Central Texas children in need—is expecting potential setbacks this year due to COVID-19 and the economic downturn. information on how to participate in the October AYLA coat drive will be announced soon in upcoming email newsletters and social media posts from AYLA and the AUSTIN LAWYER AL AL Austin Bar Association.
OCTOBER 2020 | AUSTINLAWYER
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L A W
MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS
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2016-PRESENT
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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PRACTICE POINTERS
Advice I Would Give My Younger Self (and New-ish Attorneys) BY STEFANIE SCOTT SHAH
Your mock trial partner might be the trial judge in a career-making case. Right now your peers are young associates, just like you. But in ten or twenty years, they—like you—will be in higher-level positions with the power and connections. So keep in contact.
Stefanie Scott Shah is the founding member of Scott Shah Law. Her practice includes complex commercial, patent, and employment litigation. Additionally, Shah acts as outside general counsel for growing businesses, handling all their legal needs. Contact her at stefanie@ scottshah.com.
W
ith over a dozen years of legal experience, I have recently started reflecting on my career path and the successes/obstacles I have had along the way. Below are a few pieces of advice I would give my younger self—things I know now that I wish I had known then. Build your foundation. Many people consider the early parts of their careers to be stepping stones or rungs on a ladder, moving off one to reach the next. However, I recommend thinking of the early years as the foundation upon which the house of your future professional and personal satisfaction will be built. Find great mentors ASAP. There are at least three kinds of mentors to seek out. • Those who teach you how to be a lawyer. From these attorneys, you will learn how to write briefs, take depositions, present oral arguments, draft and negotiate contracts, etc.
You will most likely meet and interact with these mentors on the job, but you could get similar mentorship by, for example, working on a pro bono project with an attorney from another organization. Quick tip: Always review tracked changes provided by these attorneys. By analyzing these changes and incorporating the concepts into future drafts, you are becoming a better attorney. • Those who help you build a career. You will go to these mentors for advice on what jobs to take, what activities to participate in, how to negotiate your salary, get introductions to other interesting people, etc. This person does not have to be an attorney. He/she could be someone whose career path you admire and who generally gives good career advice. • Those who teach you how to balance your work and career. These mentors will help you maintain happiness at home and in the office. Your work/life balance will look much different early in your career (when you might be single and sans kids) than mid-career (when you might be married with young children). It is helpful to have someone to turn to when you are trying to navigate through these various stages of your life. This is not to say you need exactly three mentors. You could
certainly have more or less. The important thing is to build strong relationships with a handful of people who can guide you in these areas—and that you lay the foundation for these relationships early on in your career. Become active in the legal community. Early in my career, business lunches and happy hours seemed impossibly time-consuming. It was not until I started to office downtown that I really became active in the Austin legal community. I soon realized the impact community involvement can have on one’s career. Had I known, I would have made a greater effort to become more active immediately after graduation. Quick tip: If you only have time for one after-work activity, join an Inn of Court. Never stop learning. Lawyers should never stop learning. The fact patterns in your cases and matters will never be exactly the same, and the law constantly changes. Even after practicing twenty years, you might need to conduct research to answer a client question. But this keeps the job interesting! Start your own firm— it's scary but worth it. I thought about starting my own firm for three years before finally taking the leap. Fortunately, at the time, I had no kids and a
husband with a salary. It was the perfect time to take the risk. If you are considering starting your own firm, do it. It will require planning, hard work, wearing many “hats,” countless business lunches, and wading outside your comfort zone. But, if you put in the effort, you will not regret it. Stay connected with law school friends. The overachiever in your Civil Procedure class might be the future general counsel of a successful technology company. Your “bar review” buddy might become a partner at an AmLaw 100 firm. Your mock trial partner might be the trial judge in a career-making case. Right now your peers are young associates, just like you. But in ten or twenty years, they—like you—will be in higher-level positions with the power and connections. So keep in contact. Because the people who drank champagne with you on graduation day eventually could become your clients/ co-counsel/opposing counsel/ biggest referral sources/judges/ etc. And, of course, maintaining friendships is important for your personal life! Share these lessons. I am lucky that—even though I was never specifically given this advice—I somehow managed to follow some of it. I kept in contact with law school classmates; I had great mentors from the beginning; those mentors convinced me to start my own firm; etc. That being said, I would have benefited from a letter outlining this advice. So I share it with those of you early in your career, with the hope that this advice will help you and others build a great foundation for your future success as a lawyer and happiness AUSTIN LAWYER as a person. AL AL
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