Austin Lawyer, September 2018 by Austin Bar Association

austinbar.org SEPTEMBER 2018 | VOLUME 27, NUMBER 7

Austin Bar Association—Stepping Up and Stepping Out Now Offering Special Rates for New Members

oin the Austin Bar Association for 2019 and get full member benefits for the rest of 2018 for free. If you aren’t already a member of the Austin Bar, now is the perfect time to join. See President Adam Schramek’s column on page six to learn how the Austin Bar will be stepping up and stepping out in the coming year to serve the Austin community.

If you aren’t already a member of the Austin Bar, now is the perfect time to join. MEMBER BENEFITS Members receive a host of member benefits that provide a solid return on their investment, including many free and discounted CLE opportunities, access to 24 substantive law sections, a brand new expanded online membership directory, and much more.

COMMITTEES The Austin Bar’s 14 committees give members an opportunity to get involved with both the legal and non-legal communities. Whether your passion is teaching students about the law, helping plan CLE courses, health and wellness, providing pro bono services, preserving the history of Austin’s legal community, or mentoring young

lawyers, the Austin Bar has the perfect committee for you. Visit austinbar.org for more information about member benefits and committees and to join online. For questions, contact Membership AUSTIN Director Carol TobiLAWYER AL AL as at carol@austinbar.org.

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CONTENTS

AUSTINLAWYER SEPTEMBER 2018 | VOLUME 27, NUMBER 7 AL A L INSIDE FEATURED ARTICLES 1 7 8

11 12

13 14 15 16 20

21 38

Austin Bar Association—Stepping Up and Stepping Out TAJF Establishes the Randy Chapman Fellowship Celebrating 125 Years of the Austin Bar—Travis County Courthouses Then and Now The Austin Bar Steps Up to Respond to Zero-Tolerance Policy Austin Bar Association Partners with Austin.Law to Enhance Online Member Directory Texas Board of Legal Specialization Announces New Board Chair Austin Law Firms: Join Austin Bar’s 100 Club Robert W. Calvert Inn Celebrates Five Years of Mentoring LRS Works to Increase Presence in the Community Third Court of Appeals has Best Record of any Court of Appeals in Texas Austin Bar Wins State and National Awards How to Stand Out From the Pile Among Piles

ONLINE

DEPARTMENTS 6 President’s Column 10

Pro Bono Spotlight

Opening Statement

Briefs

Third Court of Appeals Civil Update

Third Court of Appeals Criminal Update

Federal Criminal Court News

Federal Civil Court Update

AYLA

Entre Nous

Practice Pointers

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

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A Year of Stepping Up and Stepping Out

nsiders versus outsiders. Liberals versus conservatives. Big firms versus smaller ones. Prosecutors versus defense attorneys. Us versus them. It is all too easy to draw lines and surround yourself with only like-minded people. And technology has made it simpler than ever. Don’t like people with certain points of view? Block them. Don’t like comments your friends made? Maybe just “hide” their posts for a month. And we’re not just drawing lines and insulating ourselves on social media. How many of us spend most days in our office, not venturing more than a block or two to grab lunch? And when we do venture out into the community, how many of us are lost in our phones and social media feeds? July 1, 2018 marked the beginning of a new Austin Bar Association year, and this year we’re focused on erasing the lines that divide us, uniting our profession, and advancing the common good. We call it “Stepping Up and Stepping Out.” That’s right, we are doubling our efforts this year to get Austin lawyers out of their offices (and their comfort zones) and into the community. We’re focusing on expanding live, in-person social networks, bringing together lawyers in different practice areas, expanding much-needed pro bono

AUSTINLAWYER | SEPTEMBER 2018

work, and becoming more active in community events. So how can you step up and step out? One way is to join the new Pro Bono Committee, which will focus on coordinating efforts and projects among the many nonprofit, pro bono organizations in town, such as American Gateways, Volunteer Legal Services, and the Texas Civil Rights Project. The Pro Bono Committee will work to identify gaps in current access-to-justice programs and coordinate the Austin Bar’s response to unexpected pro bono needs, such as the recent familyseparation crisis. Or perhaps you’d rather join the new Community Engagement Committee, which will plan the Austin Bar’s participation in community events. Whether it’s helping a nonprofit find volunteers for a day of service, coordinating behind-thescenes opportunities with local arts organizations, or planning our participation in a parade or festival, the Community Engagement Committee will work to increase the Austin Bar’s presence in the community. You could also help plan the annual Bench Bar Conference, our day-long CLE (which this year will include civil and criminal programming) that brings together attorneys and judges. Or perhaps you just want to volunteer at one of our monthly Free Legal Advice Clinics for Veterans. Then again, we will need a lot of help planning “Fly Me To the Moon,” our big band-themed annual fundraising gala that will be held at the new Fairmont hotel on January 26, 2019. Whatever your interest, the Austin Bar has an opportunity for you to step up and step out. And if we do not have it,

& STEPPING UP

STEPPING OUT This year we’re focused on erasing the lines that divide us, uniting our profession, and advancing the common good. We call it “Stepping Up and Stepping Out.” we will help you create it. Just Don’t get me wrong, I like ask Caitlin Haney and Randy my phone as much as the next Cubriel, who came to the Austin person. My Facebook feed leans Bar about two years ago with an liberal, and I admit I’ve blocked idea about how they could step a person or two over the years. up and step out. They wanted But together, we can find that to start a pro bono clinic that common ground. Together, we would write wills for terminal can pursue the common good, cancer patients. The Austin advance our profession, and Bar Foundation supported improve our community. and funded the project, which AUSTIN Together, we can step up and LAWYER became known as the CANLAW L AL stepAout. Clinic. This year, the CANLAW Clinic was not only recognized by the State Bar of Texas as one of the best new programs in the state, but it was recognized by the National Conference of Bar Foundations as one of the best new programs in the country.

TAJF Establishes the Randy Chapman Fellowship to Impact Legal Aid in Texas

he Texas Access to Justice Foundation (TAJF) announced the creation of the Randy Chapman Fellowship program for legal-aid lawyers. The announcement was made on June 20, 2018 at an event recognizing the recent retirement of Chapman as the executive director of Texas Legal Services Center.

serves the elderly, veterans, sexual assault survivors, and other disadvantaged Texans. Chapman is credited with creating partnerships and collaborations that have led to new statewide funding streams for civil legal services in the state. Prior to coming to Texas, he worked with legal-aid organizations in Pennsylvania to provide legal aid to people in rural areas, focusing

This fellowship will encourage new ideas and creative approaches to the delivery of legal services as a lasting reminder of Randy’s work for those in need of legal help. “Randy Chapman has a on safe and affordable housing deep commitment and passion laws and mental health law. He for the cause of justice, and is announced his retirement in uniquely known for his cre2017 after more than 43 years ative approaches to legal aid of providing access to justice for challenges,” Richard L. Tate, the poor. chair of the board of directors TAJF will fund and adminisfor TAJF, said. “This fellowship ter a four-year fellowship for a will encourage new ideas and lawyer at Texas Legal Services creative approaches to the delivCenter to continue to provide ery of legal services as a lasting creative approaches to civil reminder of Randy’s work for legal services in Texas. Program those in need of legal help.” details and eligibility guidelines Since 1985, Chapman has are currently being developed served as the executive director AUSTIN and will be available at www. LAWYER AL AL of Texas Legal Services Center, teajf.org. a nonprofit organization that

Photo: (from left) Karen Miller, new executive director of Texas Legal Services Center, and Randy Chapman at his retirement reception on June 20, 2018.

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Celebrating 125 Years of the Austin Bar Travis County Courthouses—Then and Now

o honor the 125th anniversary of the Austin Bar Association, we are taking a look back at its history, and the history of Austin’s legal community, in each Austin Lawyer issue this year. Courthouses have always been a tough sell in Travis County. The county has had three official courthouses in its history, all of which served its citizens for decades. Each time the county outgrew the space in a courthouse, it was a hardfought battle to gain approval to build a new one. The county’s first courthouse was built in 1855 and was located at what is now a parking lot at 4th and Guadalupe, near Republic Square Park. The two-story stone building served as a courthouse until 1876, when the county gathered bond money to build a new one. The building lasted 51 years and was demolished in 1906.

courthouse. Two years later, money was approved to build a courthouse near Wooldridge Park at 10th and Guadalupe Streets. The seven-story Travis County Courthouse was completed in 1931 and cost $917,000 to build, including $115,000 for the building site. The Travis County jail occupied the sixth and seventh floors. The building underwent renovations in 1958, 1962, and 1964 to increase its capacity. In 2005, it was renamed after Heman Marion Sweatt, whose 1950 U.S. Supreme Court case ended segregation at the University of Texas. The building has been stretched beyond its capacity for many years, and the problems associated with it are legion, including rats, other vermin, and leaks. In 2015, Austin voters narrowly rejected a bond proposal to

A new courthouse will house the county’s civil courts except its four probate courts, which are relocating to the old U. S. courthouse. The county’s next courthouse served its citizens for 55 years, from 1876 to 1931. It was monumental, elegant, and ornate—with ironwork cresting, decorative dormers, and Mansard roofs—and was located on the corner of 11th Street and Congress Avenue, directly across from the Texas State Capital Building. By the early 1900s, the building was being referred to as the “bat roost.” By 1927 it had become so infested with rats, bats, pigeons, and other vermin that it needed to be replaced. However, that same year voters went to the polls and elected not to fund a new 8

AUSTINLAWYER | SEPTEMBER 2018

125

years

TOP: The Heman Marion Sweatt Courthouse built in 1931. BOTTOM: The Travis County Courthouse built in 1876.

build a new courthouse on the county-owned lot at the same location of the very first Travis County courthouse. According to Travis County Judge Sarah Eckhardt, “The bond failed, but the need continued.” After another three years of study and analysis, Judge Eckhardt announced in July that the county had signed an exclusive negotiation agreement for a development team to build a new Civil and Family Courts Complex at 17th and Guadalupe Streets. The 1.46 acre site includes two surface parking lots and used to be the home of the original Dog & Duck Pub.

A new courthouse will house the county’s civil courts except its four probate courts, which are relocating to the old U. S. courthouse at 200 W. Eighth St. A team comprised of Hunt Development Group LLC, CGL Companies, Chameleon Companies, Hensel Phelps Construction Co., and Gensler plan to design, develop, and construct the new courthouse. Agreements for the property’s purchase and development should come in early 2019. The roughly 433,000-square-foot

facility is expected to be comAUSTIN LAWYER AL AL pleted by 2023. Sources: Travis County Archives: www.traviscountyhistory.org/the-courthouse Woods, Julia; Craddock Ashely; Brown, Regan Marie. “Austin Lawyers a Legacy of Leadership and Service.” Birmingham: Association Publishing Co., 2005. Print. Weber, Andrew. “A History of Travis County’s Again Courthouses.” KUT, Moody College of Communications at the University of Texas. Nov. 4, 2015. Salazar, Daniel. “Travis County Identifies New Courthouse Location, Developer.” Austin Business Journal, July 10, 2018

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PRO BONO SPOTLIGHT

American Gateways

he Trump Administration’s “zero tolerance” policy and consequent family separations hit Central Texas hard this summer, and Austin attorneys stepped up to respond through American Gateways and the Austin Bar Association. The overwhelming pro bono response had a huge impact on the lives of many desperate asylum seekers, but more help is needed every day. This June, dozens of mothers seeking asylum were separated from their children at the border and then transferred to the T. Don Hutto detention center in Taylor. There, the mothers were expected to proceed with the “credible fear” interview process—a threshold determination of whether they will be released and allowed to proceed with their asylum claims before an immigration judge—with very little information about their children or their rights. The outcome of this process plays a decisive role in determining who will be able to leave the facility to be reunited with their children and who will face deportation without judicial review. Osiri was one of the fortunate women to get legal help. Pro bono attorneys stepped up to

where they were. She eventually learned her daughters had been released to her husband, who had been living in the United States. But she remained detained at Hutto for more than two months, where she failed the first step of her asylum process, her credible fear interview. Fortunately, pro bono attorneys Cristina Cigarroa and Graciela Cigarroa stepped in to help Osiri during her hearing before an immigration judge. The judge vacated Osiri’s negative credible fear determination, giving her the chance to fight her asylum case in immigration court. She has now been released on bond and reunited with her family. American Gateways has been working with the detained women at Hutto for years, providing information on the legal process, assisting women through pro se workshops, and finding pro

Attorneys with just a few hours to spare can make a huge impact in a woman’s life by volunteering to help an asylum seeker prepare for her credible fear interview. help her through the process after she was separated from her children and sent to the Hutto detention center. Osiri and her two young daughters had fled persecution in Honduras. Shortly after they entered the United States, immigration authorities separated her from her children. For days, she did not know 10

AUSTINLAWYER | SEPTEMBER 2018

bono representation for asylum seekers. Through a strong, concerted effort, led in part by the UT School of Law Immigration Clinic and Austin Bar member Kate Lincoln-Goldfinch, all the mothers who had been separated from their children at Hutto have secured legal assistance for the first part of their asylum process.

American Gateways’ client, Osiri, with her family.

Throughout the summer, American Gateways staff has worked overtime to take advantage of an unprecedented outpouring of volunteer support from both attorneys and non-attorneys. Between mid-June and midJuly, they matched more than 90 individual clients at Hutto with volunteer attorneys. However, hundreds of women seeking asylum continue to arrive at Hutto every month. Each one desperately needs legal help to navigate the complex, often overwhelming, legal process. The majority of women detained there have strong claims for asylum, fleeing gender-based violence or gang violence in their home countries, but they face enormous obstacles to prevailing in their requests for asylum without counsel. This is particularly true in light of the recent decision issued by Attorney General Jeff Sessions in Matter of AB, which makes pursuing some asylum claims more difficult. To address this need, American Gateways launched a new program in August to match pro bono attorneys with clients at Hutto. Attorneys with just a few hours to spare can make a huge impact in a woman’s life by

volunteering to help an asylum seeker prepare for her credible fear interview. This new program compliments American Gateway’s existing program of placing full cases with pro bono attorneys. Now, even those attorneys who are not in a position to take on a full case can step in and help. American Gateways has long been honored to partner with pro bono attorneys in Austin. In this time of increased need, we are proud once again to have the strong support from the Austin Bar. We invite more attorneys to join with us. American Gateways is an Austin-based 501(c)(3) nonprofit with offices in San Antonio and Waco. Offering pro bono and low-cost immigration legal services to the Central Texas immigrant community, its mission is to champion the dignity and human rights of immigrants, refugees, and survivors of persecution, torture, conflict, and human trafficking through exceptional legal services, education, and advocacy. Attorneys interested in volunteering can sign up at Americangateways.org, or contact Robert Painter at RobertP@ AUSTIN LAWYER AL AL americangateways.org.

The Austin Bar Steps Up and Responds to Zero-Tolerance Policy

ow can we help? This was the theme of an overwhelming number of phone calls made to the Austin Bar Association by its members earlier this summer. They, like the rest of the country, were watching the news and seeing the images of children being separated from their families at the border. What can we do? As is typical of the members of the Austin Bar, they immediately stepped up and stepped out to make a difference in the lives of the families separated at the border. On June 25, 2018, the Austin Bar’s Civil Rights and Immigration Section, in partnership with American Gateways, offered a CLE training session called “Responding to Zero-Tolerance: Credible Fear and Immigration Bond Hearing Training.” The training was provided by UT School of Law immigration clinic professors Barbara Hines, Denise Gilman, and Elissa Steglich, along with immigration attorney Kate Lincoln-Goldfinch. The purpose of the training was to teach attorneys from all practice areas how to guide the detained families through the very first part of the asylum request process—the credible fear interviews and bond

REALTORS

hearings. The faster the parents could move through this process, the faster they could be potentially be reunited with their children. Within 48 hours of publicizing the training to the members of the Austin Bar, the CLE was at capacity and a wait list was formed. The standing-room-only training was attended by more than 100 attorneys with reporters from seven local news-media outlets present. The CLE was livestreamed via Periscope and had 330 people viewing from all across the country. The training was videotaped. Since being posted on the Austin Bar website, it has had more than 1,100 plays. Of those who watched the training, either in person, via Periscope, or by video, 310 have asked to be placed on an email list to remain updated on ways to volunteer. These trained volunteers are now being connected to American Gateways, RAICES, and other organizations that are working in the Hutto Detention Center in Taylor, the South Texas Family Residential Center in Dilley, and the Karnes County Residential Center in Karnes City. The Austin Bar’s attorney training caught the attention of attorneys and press from all

Austin Bar’s seminar room was filled to capacity at the June 25 CLE hosted by the Civil Rights and Immigration Section.

across the country. Attorneys in Houston, Dallas, Washington, D.C., Chicago, San Francisco, and many other cities throughout the U.S., called to say they had watched the training— many gathering in their firms’ conference rooms to view as a group. They wanted to know what they could do next, some offering to get on a plane to fly to south Texas. Media calls were received from the NY Times, Washington Post, CNN, NBC, NPR, Buzzfeed, Scary Mommy Blog, WBA/Pacifica Radio in New York, plus local affiliates for the Statesman, Telemundo, Univision, KEYE, KXAN, KVUE, Spectrum, and Fox. All wanted to talk to attorneys who were working on the front lines

to get the legal perspective on what was happening. They were all connected with Austin Bar attorneys who provided them with both professional and personal observations from the front lines. Plans are underway for the Austin Bar to begin staffing regular visits by its members to detention centers in Dilley and Karnes City, where many families are still being detained. Check Bar Code for details. You can also contact Austin Kaplan, the Pro Bono Committee chair, at akaplan@kaplanlawatx.com. Visit austinbar.org/volunteer to watch the CLE training video and to see a list of organizations that need help alongLAWYER with other AUSTIN AL AL volunteer opportunities.

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Austin Bar Association Partners with Austin.Law to Enhance Online Member Directory Newest Benefit Helps Attorneys Better Connect with Clients and Each Other

he Austin Bar is pleased to announce its newest member benefit—an enhanced online membership directory hosted by Austin.Law. The upgraded online membership directory features a number of new capabilities. It can quickly and easily be searched and sorted by name, area of practice, and firm name, allowing members of the public to sort and find a lawyer best suited to meet their needs. Found on the Austin Bar’s website at austinbar.org, this directory of Austin Bar members is not only a tool for the public, but also for attorneys to find each other for referrals and networking. The new directory allows members to log in directly to make individual updates as needed. Every member of the Austin Bar will have access to the free basic listing and will be a part of the directory on the Austin Bar website.

at an additional fee and are perfect for solo and small-firm attorneys and any other attorneys who wish to maintain just one booking calendar and intake process. These services can be easily integrated with other websites. All Austin attorneys will have the ability to be a part of Austin.Law, but Austin Bar members will be noted with a special Austin Bar member logo, setting them apart from the rest. Features available at Austin. Law are: • Clear Online Directory Clients are empowered with the information they need to make an informed decision, thanks to the simplicity of the design. • Advanced Filters Clients can instantly sort and filter to find the lawyer right for their needs. This ensures each client who books with you is looking for an attorney in your practice area, reducing client churn, and

Found on the Austin Bar’s website at austinbar.org, this directory of Austin Bar members is not only a tool for the public, but also for attorneys to find each other for referrals and networking.

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their offices or homes. HOW TO GET STARTED

The Austin Bar membership directory found at austinbar. org is just one piece of a larger Austin lawyer-focused website called Austin.Law that brings many new capabilities and offerings to the Austin Bar membership. Via this new system, members can claim their profiles and best represent themselves, including their education, expertise, published papers, case history, areas of expertise, and much more. The optional services that are offered 12

AUSTINLAWYER | SEPTEMBER 2018

increasing conversions. • Scheduling Solutions Austin.Law offers advanced scheduling technology that is well-suited for the legal industry. Sync your Google, Apple, or Outlook calendar once, and watch as empty hours are populated with new and existing clients meetings. • Secure Video Chat Secure video-conferencing technology enables clients and attorneys to conveniently connect from the comfort of

If you haven’t already done so, claim your profile at https://Austin.Law. The default selection is free, with additional features available for a monthly fee. Once your profile has been claimed, you can edit and customize the information as needed and utilize the features to best suit your needs. You can also access your profile under Find a Lawyer at austinbar. org. Questions? Please contact Austin.Law atAUSTIN https://austin.law/ LAWYER AL AL contact, or 512.900.2428.

Texas Board of Legal Specialization Announces New Board Chair Three New Board Members Appointed

he Texas Board of Legal Specialization (TBLS) announced the appointment of William Frank Carroll as board chair. Carroll will lead the TBLS board, which is responsible for overseeing the administration of the board certification program, including the organization’s finances, enhancing the value of board certification, and increasing public awareness of TBLS. “As a board member and previous chair of our Civil Trial Exam Commission, Frank has been instrumental to the success and growth of TBLS in recent years,” said Leo Figueroa, executive director of TBLS. “We are excited for the years ahead in his new role as he not only brings 20-plus years of board-certification experience, but he has also led various commissions and associations across the state and country.

His diverse leadership background and member experience will provide us with valuable insights that will help us continue to expand our organization and roll out new programs and resources for our attorneys and paralegals.” Carroll is an adjunct law professor at Southern Methodist University and a regular faculty member for the NITA Trial Skills and Deposition Skills programs. TBLS also announced the appointment of three new board members: Tina Amberboy, of Austin, along with Diane Dillard

and Lisa Balgley Brown, both of Houston. Amberboy is executive director of the Children’s Commission, a Supreme Court of Texas permanent judicial commission for children, youth, and families. She is co-founder of the Austin Bar Association’s Court Appointed Family Attorneys

section, and is a member of the American Bar Association Center on Children and the Law, the National Association of Counsel for Children, and the National Council of Juvenile and Family Court Judges. She also serves on the Department of Family and Protective Services PublicPrivate Partnership. The TBLS Board Certification program is administered by a 12-member board appointed by the president of the State Bar of Texas. All members are appointed to three-year staggered terms of office, and are eligible for reappointment AUSTIN LAWYER for one addiAL AL tional term.

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whitten-law.com | info@whitten-law.com | (512) 478-1011 SEPTEMBER 2018 | AUSTINLAWYER

Austin Law Firms: Join Austin Bar’s 100 Club

he 100 Club is comprised of firms of four or more attorneys with 100 percent participation in the Austin Bar Association. The 100 Club list is published annually in the September issue of Austin Lawyer and distributed to every attorney in the Austin area. The firms are also featured on the membership page of the Austin Bar website with links to the firms’ websites, and featured 100 Club Members of the Week are listed on a rotating basis each week in Bar Code, emailed weekly to about 4,000 Austin Bar members. Interested in becoming a 100 Club member? Contact Carol Tobias at carol@austinbar.org. Special thanks to the following Austin law firms for supporting the programs and practices of the Austin Bar with 100 percent participation in 2017-2018. Allensworth & Porter Almanza, Blackburn, Dickie & Mitchell Andrews Myers Barnes, Lipscomb, Stewart & Ott Barnett & Garcia Beck Redden Blazier Christensen Browder & Virr Boulette Golden & Marin Bracewell Branscomb Brim, Robinett, Cantu & Brim Brink Bennett Flaherty Golden Burnett Turner Burns Anderson Jury & Brenner Cain & Skarnulis Cantilo & Bennett Chamberlain  McHaney City of Austin Law Department Coffin Renner Coldwell Bowes Cook Brooks Johnson Davis & Wright Deats, Durst & Owen DeShazo & Nesbitt Dickinson Wright DuBois Bryant & Campbell

AUSTINLAWYER | SEPTEMBER 2018

Eichelbaum Wardell Hansen Powell & Mehl Enoch Kever Erkskine and Blackburn Friday Milner Lambert Turner George Brothers Kincaid & Horton Giordani Swanger Ripp & Jetel Gjerset & Lorenz Goranson Bain Ausley Graves Dougherty Hearon & Moody Hanna & Plaut Hawkins Parnell Thackston & Young Herring & Panzer Hopper Mikeska Howry Breen & Herman Hunton Andrews Kurth Ikard Wynne Jackson Sjoberg & Townsend Kelly Hart Kiester Ciccone Bollier Kirker Davis Kuperman Orr & Albers Littler Mendelson PC Lloyd Gosselink Rochelle & Townsend Locke Lord Martens Todd Leonard Taylor Ahlrich McDonald Mackay Porter & Weitz McKool Smith PC McLean & Howard Metcalfe Wolff Stuart & Williams Munsch Hardt Kopf & Harr Noelke Maples St. Leger Bryant Norton Rose Fulbright Office of the Attorney General Osborne Helman Knebel & Scott Pirkey Barber Potts Blacklock Senterfitt Reed Claymon Meeker & Hargett Reeves & Brightwell Richards Rodriquez & Skeith Richie & Gueringer Scott Douglass & McConnico Sharp & Cobos Shaw Cowart Shearman & Sterling Slack Davis Sanger SledgeLaw Group Smith Haley Nobles Spivey & Grigg

Travis County District Court Streusand Landon Ozburn Lemmon Judges Supreme Court of Texas Travis County Probate Court Taylor Dunham & Rodriguez Weisbart Springer Hayes Texas Comptroller of Public Whitehurst Harkness Brees Accounts Cheng Alsaffar & Higginbotham Texas Department of Motor Winstead Vehicles Wright & Greenhill AUSTINLAWYER AL AL Texas Rio Grande Legal Aid Texas Workforce Commission The Blum Firm The Chapman Firm The Hay Legal Group Third Court of Appeals Thompson & Knight Thompson Salinas & Londergan Travis County Attorney’s Office Travis County Civil Court Travis County Court at Law Judges Travis County Criminal Courts Travis County District Attorney’s Office

Robert W. Calvert Inn Celebrates Five Years of Mentoring High School Students BY PAULA PIERCE

he Robert W. Calvert Inn recently completed its fifth year of the Mentoring a Student (MAS) program at Travis High School. Founded by Hon. Orlinda Naranjo, judge of Travis County’s 419th Civil District Court, MAS pairs Inn members with the school’s criminal-justice class. Hon. Raul Gonzalez, justice of the peace of Travis County Precinct

5, helps lead the project. Inn members meet with students monthly to discuss topics such as—DACA, police shootings, and “Now That You Are 18”— designed to inspire and encourage students to pursue careers in the justice system. The year culminated with a mock trial on dating violence. Inn members coached student attorneys and witnesses. Judge Naranjo presided over the trial TOP: Judges Raul Gonzalez and Orlinda Naranjo, with Anthony Chavez, criminal justice teacher at Travis High School, and student participants in the MAS Program.

Inn members meet with students monthly to discuss topics such as DACA, police shootings, and “Now That You Are 18” designed to inspire and encourage students to pursue careers in the justice system. Representing Attorneys

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ABOVE: (from left) MAS scholarship recipients, Daniel Limas, Paola Rodriquez and Tha Nung with Judge Orlinda Naranjo (second from right).

with middle-school students serving as jurors. Student attorneys presented opening arguments, examined and cross-examined witnesses, handled evidence, made objections, and presented closing arguments. Then, the jury rendered a verdict. After the trial, Judge Naranjo and staff of SafePlace, the local family violence shelter program, treated participants to a presentation and in-depth discussion of dating violence. MAS serves students from economically disadvantaged families. Many are undocumented, and several students this year were Dreamers. The Inn funded three scholarships to students who are the first of their families to attend college. Scholarship recipient Tha Nung endured extreme hardship to make a life in Texas after leaving Myanmar. Learning

English while attending middle school was a huge obstacle for him. His mantra “never give up” has paid off: Tha will attend college in the fall. Travis High School teacher Anthony Chavez says his students become more engaged and enthusiastic about pursuing legal careers because of MAS. Student comments underscore the importance of the program. Scholarship recipient Paola Rodriquez stated, “I wanted to thank you for the opportunity (and for) helping me and encouraging me. . . to pursue a further career in law. I am forever thankful and will do great things in the future—this is not the last time you will hear my name.” Paola, we have no doubt that we will be hearing your name! Perhaps in a few years you will AUSTIN LAWYER L AL be joining anAInn.

SEPTEMBER 2018 | AUSTINLAWYER

Lawyer Referral Service Works to Increase Presence in the Community

new initiative for the Lawyer Referral Service of Central Texas (LRS) this year has been to increase its presence in the local community. Along with an aggressive social media strategy to increase online engagement, LRS has worked with organizations in the community to promote its physical presence. In the last six months alone, LRS has been involved in the following outreach events: 1. The All Immigrant Resource Fair, hosted by the Consulado General de Mexico en Austin and Lincoln-Goldfinch Law; 2. The Health and Community Resource Fair at AISD’s Wooten Elementary School; 3. The Parent’s Resource Fair at AISD’s Paredes Middle School;

4. AGE of Central Texas’s Senior Resource Fair; and 5. AISD’s Back to School Bash at the Parmer Events Center. LRS plans to have a table at the Austin Police Department’s National Night Out Kickoff Event at Reagan High School in late September. Along with attending these outreach events, LRS enjoys volunteering time to assist its referral partners serving the local community. This year, it volunteered and donated reusable bags to AYLA’s Women’s Resource Fair. LRS also assisted with intake at the Austin Bar’s monthly Free Legal Advice Clinic for Veterans. And, it has recently added a “bat phone” in the Travis County Law Library that allows patrons who need further legal assistance to dial LRS directly. A special “thank you” goes

out to Lisa Rush—LRS board member and Travis County Law Librarian—for assisting with the bat-phone project. LRS would also like to thank Mighty Fine Burgers and Fries for supplying burgers on July 3 for its Legal-

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AUSTINLAWYER | SEPTEMBER 2018

Line session volunteers. If you would like to become a member of LRS, please visit AustlinLRS.org or email LRS Executive Director Annie MelenAUSTIN LAWYER AL AL dez at annie@austinlrs.org.

OPENING STATEMENT

Troubled Legal Writing, Part 4 It’s a Mistake to Attack the Judge BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

ere’s the latest in a series of columns about troubled legal writing— legal writing that can get you in trouble. Previous columns addressed lawyers who submitted poorly written documents, lawyers who broke the rules that applied to their documents, and lawyers who plagiarized in trial and appellate briefs. This column describes four appellate cases in which lawyers attacked the trial judge. Attacking a trial judge is never a good idea for three reasons: (1) appellate courts prefer to focus on the legal issues, not on your opinion of the trial judge; (2) attacking the trial judge implies that you don’t have a good legal argument; and (3) your attack may trigger monetary sanctions and rebuke. Here are the cases. If you’re sure the trial judge erred, then craft an argument that shows why, and don’t do what was done in Allen v. Seidman, a Title VII class action against the FDIC in the Northern District of Illinois. On appeal to the Seventh Circuit, the FDIC’s lawyer appended the trial judge’s opinion to his brief. But the copy of the opinion contained scribbled handwritten comments, including the word “WRONG” next to several of the trial judge’s findings. The court of appeals considered this “indecorous and unprofessional conduct,” and decided to “remark publicly today in the hope it will not recur.”1 If you believe the trial judge favored your opponent, you must nevertheless restrain yourself from saying so bluntly. The lawyer in Catellier v. Depco failed. On appeal from a contract action in Indiana county court,

the lawyer wrote in his brief that “the trial court seemed determined to enter judgment in favor of Depco.” He continued, asserting that the trial court “was doing everything it could to fashion a judgment in favor of Depco, straining credulity in the process and fabricating legal theories and stretching legal concepts beyond any reason.” In response, the Indiana Court of Appeals ordered the lawyer to pay the opposing lawyer’s attorney’s fees.2 Maybe you think the trial judge was not only biased but incompetent. Again, though, Don’t risk being sanctioned and you must argue the merits and embarrassed, fined and chastised. Attack avoid name-calling. In Shortes v. Hill, a Florida mortgage-forethe merits, not the judge. closure case, counsel for the foreclosed-property owner asked this question in his brief: of Law.” He asserted that the “Was this [case] the pursuit of bankruptcy judge applied madness to a friendly court?” “double standards,” that the He added, “It is submitted that decision was “utterly absurd,” something far off and out of line and “transcends the bounds of had to be involved to block what an ordinary error, as evincing should have been a clear and fundamental ignorance.” The obvious decision.” The lawlawyer then asserted that the yer further wrote that the trial sale at issue in the case was judge’s ruling was “cockeyed “judicially sanctioned grand and absurd” and demonstrated a larceny.” For these personal attacks on the bankruptcy judge, “most startling absence of legal the court imposed a sanction of knowledge.” For those attacks, $5,000.4 the court of appeals referred him Don’t risk being sanctioned to the state bar.3 And sometimes you might and embarrassed, fined, and be so angry you’re on the verge chastised. Attack the merits, not AUSTIN LAWYER AL AL of losing control. Still, never the judge. engage in the kind of personFootnotes: al attacks—and rantings and 1. Allen v. Seidman, 881 F.2d 375, 381 ravings—found in In re 60 E. (7th Cir. 1989). 80th St. Equities, a bankruptcy 2. Catellier v. Depco, Inc., 696 N.E.2d 75, 79-80 (Ind. Ct. App. 1998). case appealed to the Second 3. Shortes v. Hill, 860 So. 2d 1, 3 (Fla. Circuit. The debtor’s lawyer was Dist. Ct. App. 2003). mad. He was outraged. In his 4. In re 60 E. 80th St. Equities, Inc., 218 F.3d 109, 113, 121 (2d Cir. 2000). brief on appeal, he accused the bankruptcy judge of favoring the opponent by engaging in “impermissible advocacy of a litigant’s cause by a Court JULY/AUGUST 2018 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Susan Benton Kieran Buck Brooke Goodlett Jared Greathouse Carol Gustin Hannah Hembree Georgia Jolink William Lachowsky Heather Liberman Annelies Lottmann

THIS PAGE TOP ROW: Anderson, Barrow, Bell, Dalrymple, Diamond, Amanda Ellis, and Ryan Ellis BOTTOM ROW: Oakes, Phillippi, Reinstra, Shellhorse, and Toth

Pierce MacGuire Caryn McGraw John Runde Heather Schafer Robert Shannon Nell Smith

AWARDS

Randy Howry, of Howry Breen & Herman, was recently inducted into the International Academy of Trial Lawyers (IATL) at their mid-year meeting held in July in Colorado Springs, CO. Foley Gardere has been recognized as “Best Law Firm for Women” for the sixth consecutive year by Working Mother magazine. The ranking highlights the top 60 law firms that define and implement best practices in retaining and promoting women lawyers. Firms are measured by female representation in the workforce; time-off and leaves; child care; flexibility; leadership, compensation, and advancement of women; and development and retention of women. The National Council of Juvenile and Family Court Judges has elected Judge Aurora Martinez Jones, associate judge for Travis County, to the NCJFCJ board of directors.

AUSTINLAWYER | SEPTEMBER 2018

Garsson specializes in patent law, and Windham in corporate law, and mergers and acquisitions law. NEW TO THE OFFICE

Kathleen Barrow has joined the Austin office of Constangy, Brooks, Smith and Prophete as a partner. She brings more than 20 years of experience representing clients in counseling and litigation matters relating to ERISA benefits, employment-related tax matters, and executive compensation. Howry Breen & Herman is proud to announce the addition of Ryan D. Ellis to the firm. Previously, Ellis worked closely with legendary trial lawyer Mark Lanier in Houston. Ellis has substantial experience in civil litigation matters with a focus on business disputes, product defect, and catastrophic personal injury matters.

Mission Capital is proud to announce Toya Cirica Bell as the 2018 Libby Malone Community Leader of Year.

Dickinson Wright is pleased to announce that John R. Nelson has joined the firm’s Austin office. Nelson’s experience includes traditional disputes such as construction, personal injury, and product liability.

Ross Spencer Garsson and Darrell R. Windham of the Austin office of Dickinson Wright have been included in Best Lawyers in America 2019.

Michael Saunders has joined Dickinson Wright’s Austin office as of counsel. Saunders has nearly a decade of experience in helping clients

efficiently address challenging intellectual property cases, business disputes, and intellectual property-related transactions. Dykema Cox Smith’s Austin office announced the addition of Michael C. Toth to its commercial litigation practice group as senior counsel. Toth joins the firm after serving as special counsel to the first assistant attorney general in the Texas Office of Attorney General in Austin. MOVING ON UP

After ten years as Carls, McDonald & Dalrymple, the firm has changed its name to Dalrymple, Shellhorse, Ellis & Diamond. Kenda Dalrymple, Nancy Shellhorse, Amanda Ellis, and Laura Diamond are the firm’s partners. They are pleased to welcome Matthew Rienstra as of counsel to the firm. The firm practices administrative law and health law, with a focus on occupational license defense, regulatory compliance, litigation and related criminal, civil, and administrative enforcement actions. Dickinson Wright has named K. Lance Anderson practice group chair for the pharmaceuticals and biotechnology group of the intellectual property division. Anderson represents

ABOVE: Ryan Ellis, Garsson, Howry, King, Martinez, Martinez Jones

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.

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

Guided by COMPASSION. Driven by RESULTS.

clients within the innovation and research enterprise. Graves Dougherty has elected David A. King to shareholder. David focuses his practice on civil litigation and construction law. Mark Oakes has been appointed partner-in-charge of Norton Rose Fulbright’s Austin office. Oakes focuses his practice on commercial and securities litigation. He succeeds Stacey Martinez as partnerin-charge in Austin. The firm recently appointed Martinez as global head of life sciences and healthcare. McCoy’s Building Supply recently announced the appointment of Bane Phillippi as vice president and general counsel. Phillippi has served as the company’s general counsel since August 2017.

Partners, left to right: Michael Burnett, Travis L. Turner

The Family Law Firm for Austin. At BurnettTurner, family law is all we do — and our approach has been recognized BurnettTurner, PLLC 6034 W. Courtyard Dr., Ste. 140 Austin, Texas 78730 512.472.5060 burnettturner.com

with such accolades as Super Lawyers, Best Lawyers, and Best Law Firms. If you want an attorney who empathetically listens to your concerns while fearlessly fighting to protect your interests, call us to arrange an initial consultation. BurnettTurner. Your Professional Advocate. Your Personal Ally.

BOARD CERTIFIED – FAMILY LAW

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AV-RATED BY MARTINDALE-HUBBELL

Michael Burnett Travis Turner Becca Kennedy Cade Aaron Jobe

Michael Burnett (Family Law, 2015-2018, Commercial Litigation, 2016-2018) Travis Turner (Family Law, 2015-2018)

Michael Burnett (2011-2018) Michael Burnett (2016-2017 Texas Top 100) Michael Burnett (2015-2018 Top 50 Central/West Texas Super Lawyers) Travis Turner (2017-2018)

Travis Turner (2009, 2012Michael Burnett 2017) Travis Turner Travis Turner (2017, Up-AndComing 100: Texas Rising Star) Becca Kennedy (2010-2011) Cade Aaron Jobe (2017)

SEPTEMBER 2018 | AUSTINLAWYER

Third Court of Appeals has Best Record of Any Court of Appeals in Texas

ccording to a June 5, 2018 article in Law360, Austin’s Third Court of Appeals had slightly more than half of its cases reversed by the Texas Supreme Court in the past five terms, the lowest percent-

the size and complexity of our docket.” Rose also stated that the Third Court has shown a high level of efficiency as demonstrated in the performance measures tracked by the Office of Court Administration statistical

The Third Court has had a clearance rate (cases filed v. cases resolved) of over 100 percent. age of reversals of any court of appeals in the state. Nearly half of the 40 cases originating in the Third Court that were decided by the Texas Supreme Court in the past five terms were affirmed, also the highest rate in Texas. According to Chief Justice Jeff Rose, the court “takes great pride in this, especially given

reports. In the past five years: • The Third Court has had a clearance rate (cases filed v. cases resolved) of more than 100 percent; • The Third Court has shortened the average time it takes a case from filing to disposition by nearly two months, from nearly 10 months to slightly more than eight months; and

Justices, attorneys, and support staff of the Third Court of Appeals.

• The Third Court has completely eliminated the docket of cases which have been on file for more than two years. “The Third Court’s success is the result of a lot of hard work by our judges and support staff,” said Rose. “The Third Court has led all other appellate courts in

Texas three of the last five years in average number of opinions written per justice. We have also had three or more judges rank among the top 10 most productive appellate judges in the state for each of the past five years, with AUSTIN five judges ranking in the LAWYER AL AL top ten in 2016.”

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

AUSTINLAWYER | SEPTEMBER 2018

Austin Bar Wins State and National Awards STATE BAR OF TEXAS AWARDS

he Austin Bar Association received multiple Stars of Texas Bars awards from the State Bar of Texas at the State Bar’s annual meeting held at the Marriott Marquis hotel in Houston in June 2018. Awards are given in four divisions according to size of bar member-

ning CANLAW Clinic, created by Austin Bar members Caitlin Haney Johnston and Randy Cubriel, provides free estate-planning services to cancer survivors and their caregivers. Through a one-stop-shop clinic, a will, medical power of attorney, statutory durable power of attorney, advanced directive, and HIPAA release are provided during the clinic hours. The purpose is to

The Star of Achievement winning CANLAW Clinic, created by Austin Bar members Caitlin Haney Johnston and Randy Cubriel, provides free estateplanning services to cancer survivors and their caregivers. ship. The Austin Bar won the following awards in Division III for local bars with 901 to 5,000 members: • Award of Merit for best overall programming and projects; • Star of Achievement Award for the CANLAW Clinic; • Outstanding Partnership Award for Dr. Seuss Reading Days; and • Publication Awards to Austin Lawyer: 1. Best Feature/Human Interest Story, for an article in the May 2017 issue “Honoring Former Texas Supreme Court Chief Justice, Jack Pope” by Osler McCarthy, staff attorney for public information, Supreme Court of Texas; and 2. Best Series of Articles − Feature/General Interest, for the Foundation Spotlight series, highlighting the work of the legal-related organizations that received Austin Bar Foundation grants in 2017. The Star of Achievement win-

serve the cancer community by providing professional skills to assist clients who are going through an already difficult time. The mission is to minimize the many barriers, including financial, time, and emotional, that keep cancer patients from planning for the future. The Austin Bar’s Law-Related Education Committee partnered with Literacy First and Lawyers for Literacy to sponsor Dr. Seuss Reading Day which earned the Partnership Award. A record-setting number of almost 100 attorneys and judges went to underprivileged schools in Austin to read to children on Dr. Seuss Day on March 2, 2018. NATIONAL CONFERENCE OF BAR FOUNDATIONS AWARD

In early August, the Austin Bar’s CANLAW Clinic was presented with the 2018 LexisNexis Partnerships for Success award from the National Conference of Bar Foundations (NCBF) at the 2018 American Bar Association’s annual meeting in Chicago. The award, given in

partnership between LexisNexis and the NCBF, honors bar foundation initiatives that make a significant impact in their community on issues for which lawyers are uniquely positioned to lead. An underlying goal of this foundation initiative is to establish new partnership opportunities, or leverage existing ones, through the meaningful involvement and support from an affiliated bar association and other allied members of the legal community. The winning program is recognized at the joint annual meeting luncheon of NCBF, the National Conference of Bar Presidents, and the National Association of Bar Executives. A presentation about the program and its impact was also featured at the NCBF members meeting. The Austin Bar Foundation will receive $1,500 in unrestricted funds generously donated by LexisNexis forLAWYER their winning AUSTIN AL AL CANLAW Clinic.

TOP: Caitlin Haney Johnston, Austin Bar Past-President Amy Welborn, executive director of the State Bar of Texas, Trey Apffel, and Randy Cubriel at the State Bar of Texas annual meeting. BOTTOM: Austin Bar President Adam Schramek accepts the 2018 NCBJ Partnerships for Success award from (L-R) Leslie Barineau, NCBF board member and Afsoon McClellan of LexisNexis at the American Bar Association’s 2018 annual meeting in Chicago.

SEPTEMBER 2018 | AUSTINLAWYER

THIRD COURT OF APPEALS CIVIL UPDATE

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

The following are summaries of selected civil opinions issued by the Third Court of Appeals during June and July 2018. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of August 6, 2018.

DISCOVERY: Court grants mandamus relief in discovery dispute over financial information. In re Catherine Tower, LLC, No. 03-17-00735-CV (Tex. App.— Austin June 20, 2018, orig. proceeding). Owner sued TCAD under the unequal appraisal statute, contending that TCAD discriminated against it relative

to other properties. TCAD filed discovery requests on owner’s lender to obtain the financing appraisal file on the property. The trial court granted TCAD’s requests over owner’s objections. The court of appeals acknowledged that the rules of discovery are broad but not without limits. According to the court, an unequal-appraisal challenge does not involve a determination of a market value. Instead, an unequal-appraisal challenge compares other properties’ appraised values as they appear on the tax rolls, without independent market-value appraisals. Thus, a financial appraisal is irrelevant to an unequal-appraisal challenge. The court granted mandamus relief. EMPLOYMENT: Deadline to file discrimination complaint is jurisdictional. Free v. Granite Publications, L.L.C., No. 03-17-00521-CV (Tex. App.—Austin July 25, 2018, no pet. h.). Granite terminated Free in January 2015. Free filed a charge of discrimination with the EEOC in September of 2015, and then sued Granite for age discrimination in May 2016. Granite filed a plea to the jurisdiction, seeking dismissal for Free’s failure to exhaust her administrative remedies by failing to file her charge of discrimination within 180 days as required by

TCHRA § 21.202(a). The trial court granted Granite’s plea and dismissed. On appeal, Free contended that the 180-day deadline was not jurisdictional. The court of appeals noted that there is uncertainty about whether the failure to exhaust administrative remedies under the TCHRA is jurisdictional. The court detailed the history of jurisdictional prerequisites and noted that the 180-day deadline remains jurisdictional for suits involving private litigants. The court affirmed. ATTORNEY’S FEES: Court reverses attorney’s fees award for insufficient evidence. Green v. Willis, No. 03-1600686-CV (Tex. App.—Austin June 7, 2018, no. pet. h.) (mem. op.). Attorney sued former client for unpaid fees following successful representation in a lawsuit. The trial court rendered judgment for attorney. The trial court concluded that the amount requested was a reasonable and necessary fee. Client appealed, contending there was no or insufficient evidence to support the fee award. The court of appeals noted that a trial court lacks authority to adjudicate the reasonableness of a fee based on judicial knowledge without evidence. Attorney failed to offer the fee statements into evidence. Further, the court noted that an attorney fee contract is not

evidence of the reasonableness of the fee. The court held that attorney’s general statements that the fees sought were reasonable and necessary was not sufficient to support reasonableness. According to the court, there should be some evidence of the time spent, the nature of the preparation, complexity of the case, the attorney’s experience, and the prevailing hourly rates. The court reversed and rendered. TRIAL PROCEDURE: Court holds service on secretary of state invalid. Comal & Co., LLC v. Mays, No. 03-17-00746-CV (Tex. App.— Austin June 12, 2018, no pet. h.) (mem. op.). Comal appeals a default judgment for lack of proper service. Mays unsuccessfully attempted to serve Comal personally and through its registered agent by certified mail. Mays then attempted service through the secretary of state, but the process was returned unclaimed. The trial court found that substituted service was accomplished by serving the secretary of state. The court of appeals noted that in a restricted appeal, there are no presumptions in favor of valid service. According to the court, the secretary of state is an agent for service only if the registered agent cannot be found with reasonable diligence. A

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default judgment using service on the secretary of state must be supported by a showing of reasonable diligence in seeking service on the registered agent at the entity’s registered office. Mays’s process server used the wrong address and failed to offer evidence of reasonable diligence in attempting to locate Comal’s registered agent. Thus, service was invalid. The court vacated the default judgment. RESTRICTED APPEAL: Lack of reporter’s record constitutes error to overturn default. Arbogust v. Graham, No. 03-1700800-CV (Tex. App.—Austin June 28, 2018, no pet. h.) (mem. op.). Husband challenged a no-answer default in a divorce proceeding, contending that because there was no record of the hearing, there was no evidence to support the default. The court of appeals explained that in a restricted appeal, there must be error apparent on the face of the record, which consists of all papers on file and the reporter’s record. Wife contended that the parties waived making a record with consent of the trial court. According to the court, when a party does not appear, the making of a record cannot be waived. The court held that the absence of a reporter’s record constitutes error apparent on the fact of the record as a mat-

ter of law. The court reversed and remanded. WRONGFUL DEATH: Court affirms child’s standing to bring a wrongful death suit. City of Austin v. Lopez, No. 03-18-00107-CV (Tex. App.— Austin July 3, 2018, no pet. h.) (mem. op.). Membreno died while working on a construction site after coming in contact with City’s power lines. Mother of Membreno’s child filed a wrongful death and survival suit, seeking damages for the child. City filed a plea to the jurisdiction, alleging that child was illegitimate and thus lacked standing to sue. City alleged that mother failed to establish a father-child relationship under Family Code § 160.201(b). The trial court denied the plea. The court of appeals observed that the Family Code legitimation requirements do not apply to wrongful death claims. The court further rejected City’s claim that mother failed to prove that child was decedent’s biological son. Mother produced DNA and other evidence of paternity. The court affirmed. TRIAL PROCEDURE: Finality language cannot be removed from judgment by nunc pro tunc. Hammer v. Morgan, No. 03-1800042-Cv (Tex. App.—Austin

July 12, 2018, no pet. h.) (mem. op.). Hammer sued defendants following foreclosure on real property. The trial court granted summary judgment for certain defendants. In an earlier opinion, the court of appeals concluded that Hammer’s appeal of the summary judgment was untimely. Hammer then obtained a nunc pro tunc that removed the finality language from the summary judgment. The court of appeals observed that errors in entering judgment are clerical; errors in rendering judgment are judicial. Correction of judicial errors must be made during plenary power, whereas clerical errors can be corrected after plenary power expires. The court concluded that inclusion of finality language is part of judgment rendition that cannot be corrected by nunc pro tunc. Accordingly, the nunc pro tunc was void. The court vacated the order.

court ordered husband to pay wife her proportional share as awarded in the parties’ divorce decree. On appeal, husband contended that he received no retirement pay. The dispute centered on whether wife was entitled to her share of payments that husband waived in order to receive other military benefits. Here, husband chose to receive disability retirement rather than retirement for time served. The court of appeals held that divorce decree unambiguously awarded wife any benefits that husband received attributable to his separation from military AUSTIN LAWYER AL AL service. The court affirmed.

FAMILY LAW: Court affirms dispute over military retirement benefits. Rudolph v. Jamison, No. 03-1700693-CV (Tex. App.—Austin June 5, 2018, no pet. h.) (mem. op.). Divorce decree awarded wife a portion of husband’s military retirement. Years after the divorce, wife filed a petition to enforce, contending husband failed to pay her share of his retirement benefits. The trial

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

Thorough and Supportable Business Valuations Since 1996 SEPTEMBER 2018 | 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.

The cases summarized are from February 2018 and subsequent histories are current as of August 1, 2018.

CONSTITUTIONALITY OF DWI STATUTE: Statutory definition of intoxication did not violate appellant’s equal-protection rights. Friesenhahn v. State, No. 03-1600582-CR (Tex. App.—Austin Feb. 9, 2018, no pet.) (mem. op., not designated for publication). Appellant was charged with felony DWI. Prior to trial, he filed a motion to quash the indictment, asserting that the statutory definition of “intoxicated” as “having an alcohol concentration of 0.08 or more” violated his equal-protection rights “because it unfairly discriminates against alcoholics.” The district court denied the motion to quash, and the appellate court affirmed. The appellate court observed that the DWI statute provided two alternative definitions of intoxicated, including one that involved the loss of the normal use of a person’s mental or physical faculties and made no mention of alcohol concentration. Because the alternative 24

AUSTINLAWYER | SEPTEMBER 2018

definitions were presented disjunctively, “only one must be satisfied to establish that a person is legally intoxicated.” Moreover, the court explained, “these alternative definitions apply to all persons charged with an intoxication offense under Chapter 49,” “whether the defendant is an alcoholic or not.” The court explained that “in essence,” appellant was arguing that alcoholics should be treated differently than non-alcoholics. Such an argument, the court concluded, “fails to establish an equal-protection violation.” PRETRIAL HABEAS— COGNIZABILITY: Appellant’s claims that enhancement provision in aggravated-assault statute was unconstitutionally vague and violated equal protection were not cognizable on pretrial habeas. Ex parte Mandola, No. 03-1600223-CR (Tex. App.—Austin Feb. 14, 2018, pet. ref’d) (mem. op., not designated for publication). Appellant was charged with the offense of aggravated assault. The indictment also contained an enhancement paragraph alleging that appellant was acting “in retaliation against or on account of the service of [the complainant] as a person, as a witness, prospective witness and who had reported the occurrence of a crime.” Prior to trial, appellant filed a motion to quash the indictment and an application for writ of habeas corpus, both of which the district court denied. Appellant filed an interlocutory appeal challenging the denial of his habeas application. The appellate court affirmed, concluding that appellant’s claims were not cognizable on pretrial habeas. Appellant’s first contention was that the retaliation provision of the statute was unconstitutionally vague because it failed to expressly allege a culpable mental state. This complaint, the court concluded, was “in reality

simply an attack on the charging instrument,” which also omitted a culpable mental state. Appellant also complained that the statute failed to define the terms “witness,” “prospective witness,” and person “who has reported the occurrence of a crime.” The court concluded that it was not permitted to construe the meaning of those statutory terms on pretrial habeas. Finally, appellant claimed that the retaliation provision violated equal protection. This claim was also not cognizable, the court concluded, because even if it was resolved in appellant’s favor, it would not result in his immediate release. In other words, “[t]he portion of the indictment alleging retaliation would be declared void, but the indictment charging Mandola with aggravated assault, minus the enhancement allegation, would remain.” INEFFECTIVE ASSISTANCE OF COUNSEL – MENTAL-HEALTH INVESTIGATION: Appellant did not satisfy burden to prove that trial counsel was ineffective for failing to investigate appellant’s mental health. Edwards v. State, No. 03-1700309-CR (Tex. App.—Austin Feb. 28, 2018, no pet.) (mem. op., not designated for publication). Appellant was convicted of the offenses of burglary of a habitation, criminal mischief,

and retaliation against a public servant. On appeal, appellant asserted that his trial counsel was ineffective for failing “to investigate, develop, and present mitigating evidence concerning [Edward]’s degenerating mental health.” According to appellant, there was evidence presented during trial that his mental health had been “declining,” including testimony from various witnesses tending to show that appellant was paranoid, suicidal, and had threatened violence against others. In light of this evidence, appellant claimed, counsel should have “fully investigated” his mental health and presented evidence from mental-health professionals as to appellant’s state of mind. The court concluded that appellant failed to prove that counsel had been ineffective. The court observed that counsel had not been given an opportunity to explain what, if any, investigation he had performed regarding appellant’s mental health. The court also noted that the record supported a finding that appellant had been competent to stand trial. Finally, the court explained that “in the absence of any evidence in the record indicating what the results of an investigation of Edwards’s mental health might have revealed or what the testimony from the additional witnesses would have been,” appellant’s claim was AUSTINLAWYER AL AL entirely speculative.

FEDERAL CRIMINAL COURT NEWS

A Win For Justice Federal Sentencing Law and Appealing an Unobjected-to Error BY DAVID PETERSON

n February, I wrote an article here about a mistake I had made. In that article I wrote about the importance of lawyers (and particularly criminal defense attorneys) acknowledging our errors. I also wrote that I still held hope that the Supreme Court would correct the error. I am glad to report that they did so. While the February column was about ethics and practice, this one is about federal sentencing law and what can be done when an unobjected-to error below is being appealed. The decision is Rosales-Mireles v. United States, 138 S.Ct. 1897 (June 18, 2018). My colleague, Kristin Davidson, did a brilliant job briefing and arguing before the Court. Under federal law, if the party appealing did not object to an order below, the claimed error is (with certain exceptions) subject to “plain error” review under Federal Rule of Criminal Procedure 52(b). First lesson: review the guidelines calculation and carefully object. If not, on appeal you will have to start by proving (1) the error was not “intentionally relinquished or abandoned,” (2) the error is plain, and (3) the error “affected the defendant’s substantial rights.” In many cases, an error in calculating the sentencing guidelines will meet these three prongs. Recently, however, the Fifth Circuit had begun saying that the “fourth prong” of the plain error standard wasn’t met, which is that “the court of appeals should exercise its discretion to correct the forfeited error if the error ‘seriously affects the fairness, integrity or public reputation of the judicial proceedings.’”

AUSTINLAWYER | SEPTEMBER 2018

In Rosales-Mireles, the first three prongs were met, according to the Fifth Circuit, so the case was about what kind of error seriously affects the fairness, integrity, or public reputation of the judicial proceedings. The Fifth Circuit had held that to remand for resentencing, any error had to “shock the conscience.” The Supreme Court disagreed. It ruled that when someone may have gotten a longer prison sentence due to the error, that usually will be enough for resentencing. The error doesn’t need to be a “powerful indictment” of the system, nor does correcting it call into question the sentencing judge’s “competence or integrity.” Instead, an error

The win was one for common sense notions of justice: People shouldn’t face even a possibility that an error below in calculating the sentencing guidelines range resulted in a higher sentence. resulting in a higher range than the guidelines provide “usually establishes a reasonable probability that a defendant will serve a prison sentence greater than necessary” to fulfill the purposes of incarceration, and that is enough to send the case back to fix the error. The risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation because guidelines miscalculations result from judicial error, as a court is charged with ensuring the guidelines range it considers is correct. The Court also noted that—unlike a remand for a new trial—a remand for resentencing is

relatively inexpensive. The win was one for common sense notions of justice: People shouldn’t face even a possibility that an error below in calculating the sentencing guidelines range resulted in a higher sentence. Justice Sotomayor, a former federal prosecutor, wrote the decision.LAWYER Only Thomas and Alito AUSTIN AL AL dissented. David Peterson is an assistant federal public defender for the Western District of Texas. Any views expressed are his views only and not that of the Office of the Federal Public Defender.

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FEDERAL CIVIL COURT UPDATE

Federal Civil Court Update Three Years Later A Look At The Impact Of Rule 26’s Amended Proportionality Standard BY WILSON STOKER

t has now been almost three years since the amendments to Federal Rule of Civil Procedure 26 were put into effect, which, on their face, created an altered “proportionality standard” with an obligation for litigants to narrowly tailor discovery. In response, many practitioners have changed their approach to federal court discovery, by taking actions such as (hopefully) removing forever “reasonably calculated to lead to the discovery of admissible evidence” objections. It is still unclear how the renewed emphasis on proportionality changes the scope of federal court discovery—if at all. It is clear, however, that no matter the situation, parties on both sides undoubtedly have a shared responsibility to consider the proportionality factors in serving and responding to discovery requests, and that they must be prepared to make substantive proportionality arguments if they wish to prevail in discovery disputes. Comments to the amended rule establish that implementing the proportionality test and erasing the “reasonably calculated” language in Rule 26(b)(1) was designed to curb costly discovery and protect against fishing expeditions and obstructive tactics. See, e.g., 2015 Advisory Committee Notes to Rule 26(b)(1). Courts have recognized that the change to Rule 26(b)(1) was to reiterate to attorneys that proportionality is the gold standard in determining whether a discovery request should be enforced. See, e.g., Sibley v. Choice Hotels Int’l, No. CV 14-634 (JS)(AYS), 2015 WL 9413101, at *2–3 (E.D. N.Y. Dec. 22, 2015). Indeed, the U.S. District Court for the Western District of Texas has recognized

this purpose of the amendment. See, e.g., Maes v. Lowe’s Home Ctrs. LLC, No. EP-17-CV-00107FM, 2018 WL 3603113, at *5–6 (W.D. Tex. Feb. 9, 2018) (“The 2015 Amendments “reflect agreement among a diverse spectrum of stakeholders that the high costs and burdens of discovery… are skewing the U.S. civil justice system.” Accordingly, the proportionality analysis was adopted to make discovery more “focused,” in a “manner [that] benefits both plaintiffs and defendants by reducing the cost and duration of litigation.”). A review of Rule 26 proportionality decisions from U.S. District Courts in Texas shows that parties must have carefully crafted and targeted discovery requests and explanatory objections to such requests, focusing on the six proportionality factors: (1) “the importance of the issues at stake in the action,” (2) “the amount in controversy,” (3) “the parties’ relative access to relevant information,” (4) “the parties’ resources,” (5) “the importance of the discovery in resolving the issues,” and (6) “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b); see, e.g., Parrish v. Premier Directional Drilling, L.P., No. SA-16-CA-00417-DAE, 2017 WL 8774230 (W.D. Tex. Mar. 1, 2017); Wallace v. Tesoro Corp., No. SA-11-CA-00099-FB, 2017 WL 6406609 (W.D. Tex. Feb. 13, 2017); Samsung Elecs. Am., Inc. v. Chung, 321 F.R.D. 250 (N.D. Tex. 2017); Areizaga v. ADW Corp., No. 3:14-cv-2899, 2016 WL 1305065 (N.D. Tex. Apr. 4, 2016). Thus, it is the extent of the parties’ burden—not the burden itself—that has evolved with the

amendments’ renewed emphasis on proportionality. To prevail on a motion to compel or resist a motion for protective order, the party seeking discovery needs to make its own showing of many or all of the proportionality factors set out in Rule 26(b)(1), and there is no longer any question that the resisting party must show that the discovery fails the proportionality calculation required by Rule 26(b). A party resisting discovery still bears the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by Rule 26(b) by coming forward with specific information to address the factors enumerated in Rule 26(b)(1). See Parrish, 2017 WL 8774230, at *4; Wallace, 2017 WL 6406609, at *2; Areizaga, 2016 WL 1305065, at *1. In Areizaga, the district court explained “the burden [remains] on the party resisting discovery to [ ] specifically object and show that the requested discovery does not fall within Rule 26(b)(1)’s scope of relevance (as now amended) or that a discovery request would impose an undue burden or expense or is otherwise objectionable.” Id. at *5. Based on this principal, the court rejected the plaintiff’s “conclusory” objections, such as information was “in the defendant’s control” and “easily accessible through other means,” because those objections provided no basis for the defendant or the court to assess the proportionality factors, and “know what responsive documents [the plaintiff] has in his possession, custody, or control that he is withholding or that he contends that he should not be required to produce.” Id. at *6. In sum, although the scope

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

of discovery has not substantially changed as a result of the amendments, one simple rule can be derived from the courts’ interpretation of the amended Rule 26 language—it is imperative that attorneys support their proportionality positions with substantive arguments and facts. Success on motions to compel requires evidence applicable to the relevant proportionality factors. State Auto. Mut. Ins. Co. v. Freehold Mgmt., Inc., No. 3:16-CV-2255-L, 2018 WL 3548866 (N.D. Tex. July 24, 2018). Furthermore, failing to address these proportionality factors can lead to sanctions or admonishment by the court. See Fulton v. Livingston Fin. LLC, No. C15-0574JLR, 2016 WL 3976558, at *7 (W.D. Wash. July 25, 2016) (sanctioning a party in part for citing case law that analyzed Federal Rule of Civil Procedure 26 before the 2015 amendments); see also Sharbaugh v. Beaudry, No. 3:16CV126/MCR/EMT, 2017 WL 5988221, at *3 (N.D. Fla. May 5, 2017); Oracle Am., Inc. v. Google, Inc., No. 10-cv03561-WHA (DMR), 2015 WL 7775243, at *2 (N.D. Cal. Dec. 3, 2015) (admonishing parties for not addressing the proporAUSTIN LAWYER AL AL tionality factors). SEPTEMBER 2018 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN JORGE PADILLA, JACKSON WALKER

Volunteer with AYLA—Just Sign Up and Show Up

YLA has something to offer just about everyone. Early on for me, it was sports. When I learned as a young associate that AYLA held a charity softball tournament, I was eager to help my firm organize a team. Although I didn’t have much involvement in AYLA at the time, I was always willing to help out with the tournament. Admittedly, my contributions were small: trying to secure a few sponsors and

show up early on the day of the tournament to help set up. But those small efforts helped open the door to the rest of AYLA. Eventually, I discovered that AYLA organized a judicial reception so young lawyers could have a chance to interact with our local judges. I learned that the group raised funds for its annual Holiday Baskets and Reindeer Games, providing gifts and a visit from Santa for some of Austin’s low-income kids. Later, I learned that the Women’s Resource Fair, which connected hundreds of women with vital social-service resources, including medical, dental, legal, and employment counseling, was also organized by AYLA. Do you enjoy the performing arts? Then you’ll be pleased to learn that AYLA members organize Bar & Grill, a highly enter-

taining lawyer-themed musical (casting is now open for this fall’s show). And I’d be remiss if I didn’t mention one of AYLA’s most popular events, Runway for Justice, which raises funds for our AYLA Foundation and provides a platform to show the world just how stylish lawyers can be. Add in the MLK Day of Service, several CLE lunches, community service opportunities, our Docket Calls, and a leadership academy, and the opportunities are plentiful for every young lawyer to find a way to help and interact with other lawyers in our city. This year, I’m proud to say AYLA plans to continue many of the great programs I’ve described above, and implement a few new ones as well. But these programs aren’t possible without help from our membership. While the AYLA board is responsible for organizing and overseeing these programs, we welcome help from all our members for our programs. You may be reading this with interest in joining one of our several AYLA committees, but you don’t know if you have the right experience. That’s okay. Just sign up

and show up with the intention of making a small effort. You don’t need to organize a huge fundraiser or event to make a real difference—although those options are certainly available. Instead, AYLA provides our members with the chance to help—even a little bit—toward a greater good. Of course, if you do show up and help, it helps to be a member of AYLA. If you’ve never been an AYLA member, or your membership has lapsed, joining and renewing is easy. And for the remainder of the year, you can join for half off of regular dues. If you aren’t sure of your membership status, email AYLA Director Debbie Kelly at debbie@austinbar.org to find out. I hope to see you at one (or several) of our events over the next year. Unfortunately, we don’t organize the softball tournament anymore; however, I will make sure we reconsider if I receive a petition to bring it back. Regardless, I hope you find the event that inspires you to make that effort—whether small or big—to engage with your fellow attorneys in making a positive AUSTIN LAWYER L AL impact in ourAcity.

UPCOMING EVENTS THURSDAY, SEPTEMBER 20 AYLA Judicial Reception 5:30 – 7:30 p.m. The Austin Club, 110 E. 9th St.

AUSTINLAWYER | SEPTEMBER 2018

AUSTIN YOUNG LAWYERS ASSOCIATION

he Austin Young Lawyers Association organizes projects and events throughout the year in service to the community and the Bar. Join your fellow young attorneys on one or more of the following committees and play an important role in the development of these projects and events. Visit ayla.org and sign up today!

SERVICE TO THE PUBLIC

Fall 2018 Holiday Programs This committee organizes the Holiday Baskets project which galvanizes the resources of the legal community to provide special holiday groceries, as well as gifts and informative materials, to Austin-area families in need. The baskets are distributed at Reindeer Games, an annual holiday celebration that includes games and activities for children and a legal clinic for parents.

Ongoing Community First! Village Programs This new committee will work with Community First! Village to assist the community’s formerly homeless residents with their legal needs at several clinics throughout the year. The committee will also identify other ways to engage attorneys in service to the community. Ongoing Community Service Days This committee provides lawyers and non-lawyers with periodic opportunities to volunteer for nonprofit organizations, including coordinating multiple community service events on MLK Day in honor of Dr. Martin Luther King, Jr. Ongoing YMCA Youth & Government This committee works with YMCA Youth and Government program to train attorney volunteers as student evaluators for district and state conferences.

SERVICE TO THE BAR/ MEMBERS

Fall 2018 Judicial Reception This committee hosts an annual reception for AYLA members to interact with members of the judiciary. This year’s reception will be held on Thursday, September 20 at the Austin Club. Ongoing Continuing Legal Education This committee organizes Continuing Legal Education programs for AYLA members. Ongoing Docket Call This committee hosts a monthly happy hour for AYLA members. Ongoing Membership This committee welcomes new AYLA members, promotes AYLA membership, and encourages membership renewal.

FUNDRAISING

Fall 2018 Bar & Grill This committee presents an annual musical production featuring an all-lawyer cast. The show has been produced for more than 20 years! Fall 2018 Tailgate Fundraiser This committee plans and hosts the annual AYLA tailgate prior to a UT home football game. Spring 2019 Runway for Justice This committee organizes a fashion show fundraiser showcasing lawyer and law-student models and includes a silent auction. JOINT PROGRAMS

Spring 2019 Bench Bar This committee works with the Austin Bar to host an annual day-long CLE. This year’s event will take AUSTIN place on LAWYER May 3 at the AL AL Austin Country Club.

AYLA Community Service Days Committee

he AYLA Community Service Days committee is kicking off the new Bar year with a fantastic lineup of upcoming monthly volunteer opportunities for Austin lawyers starting in September. Several times a year, the Community Service Days committee will participate in the aptly named “Hell Yes Volunbeer Night,” which is an event that involves Austin lawyers spending a few hours lending a hand at the Central Texas Food Bank warehouse followed by good conversation and free ABGB beer. The Community Service Days committee is open to all Austin attorneys and their guests. As

a rule, the committee’s projects are meant to give local attorneys the chance to switch off their attorney brains and spend time putting in some elbow grease to help the local community. In addition to helping the Central Texas Food Bank, future upcoming events include volunteering with the Green Corn Project, the Austin Parks Foundation, Habitat for Humanity, Community First! Village, and other charities across Austin. For more information and to help with future Community Service Day events, keep an eye out for sign-up announcements in the AYLA and Austin Bar newsletters to learn or go to www.ayla.org AUSTIN LAWYER AL AL more about upcoming events.

Austin attorneys had one of the highest turnouts ever at the April Volunbeer Night supporting the Central Texas Food Bank.

SEPTEMBER 2018 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

College-to-Career Prelaw Program Connects College Students and AYLA Members

Oâ&#x20AC;&#x160;

n Thursday, July 26, AYLA hosted a reception to connect young lawyers and students in the College-to-Career Prelaw Program. More than 50 attorneys and students enjoyed cocktails and conversation on The Terrace at 816 Congress Ave.

ship between The University of Texas at Austin and Huston-Tillotson University to bridge the gap between first-generation college students and the legal community. Participating students are exposed to a variety of careers in the law and have the opportunity to connect with and be mentored by law students and practicing attorneys. This summer reception was made possible by a generous grant from the Texas Young AUSTIN LAWYER AL AL Lawyers Association.

C2C Law bridges the gap between first-generation college students and the legal community.

TOP LEFT: AYLA board member Ben Dower visiting with Huston-Tillotson University students. TOP RIGHT: AYLA board members Eric Nelson, Michael Choate, and Brittani Miller enjoying the reception. RIGHT: Rudy Metayer welcomes the attorneys and students at the C2C Law reception.

The College-to-Career Prelaw Program (C2C Law) is a partner-

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Bar & Grill Casting Call

an you sing, act, dance, build props, or do you just really like attention and supporting AYLA projects? If so, come to the Bar & Grill casting call on Monday, October 1, 2018 at 6 p.m. at the Austin Bar offices, located at 816 Congress Ave., Suite 700. If you have not been part of a Bar & Grill show before, you will be asked to read a few lines from the script, sing a song of your choice (if you want to sing in the show), and show off some of your dance moves. If you have been in the show before, you need not attend the casting call. Contact Amanda Arriaga at missmanda01@gmail.com if you have questions or need more AUSTIN LAWYER AL AL information.

OCT 1 2018 BAR & GRILL CASTING CALL 6 p.m. Austin Bar Offices 816 Congress Ave., Suite 700

The 2017 cast of Bar & Grill having fun onstage performing “Guardians of Democracy.”

SEPTEMBER 2018 | AUSTINLAWYER

ENTRE NOUS

What Ever Happened to the Sharp-Dressed Man? BY CLAUDE DUCLOUX

“

hey come runnin’ just as fast as they can, ‘Cause every girl crazy ‘bout a sharp-dressed man.” — ZZ Top, 1983 Hollywood created the image that all lawyers aspired to present: male lawyers of cinematic history always wore tailored suits, complete with pocket squares, cufflinks, and tie clips. Remember those shirt barrettes your grandfather used to keep his tie from falling into the Thanksgiving gravy? I inherited my dad’s tie clips, which inhabit the depths of a lonely jewelry box, where they surely continue to increase in worth along with my “Hopalong Cassidy” cufflinks. But I digress. The truth was, lawyers were always presented as the essence of elegance. Did you ever see Perry Mason work in shirtsleeves? No! Even Paul Drake, his unbearably classy investigator, never unbuttoned his double breasted white suit. In the olden days, cinematic women of the law always dressed up, too, in high-collared prim suits, equipped with shoulder pads and somber expressions. Law was a serious business, after all, especially if you did it in heels. And think about summer in Mayfield, AL. While Boo Radley’s overalls had more sweat stains than an NFL laundry bag, Atticus Finch could remain cool in a seersucker suit without ever dreaming of taking off his coat. So, the message was obvious. Success meant looking sharp. And so should we, if we expected to excel in this profession. But there’s the rub. The good duds were expensive, those high thread count wool suits (with vests, OF COURSE) did not come cheap. But my student generation wore 34

AUSTINLAWYER | SEPTEMBER 2018

cut-offs, not cutaways. Few of us were clothes horses—we more closely resembled clothes frogs. The distinguished gentlemen at Reynolds-Penland (arguably the galactic center of sartorial splendor and advice) never knew me by name. Luckily, my generation was rescued by the magic of polyester blends, mimicking the luxury of the natural fiber on the cheap. The only caveat to the wearer was to stay away from open flame, to avoid the likelihood of personal immolation. Yes, our 1970s suits burned with a ferocity which made the Hindenburg disaster look like a wienie roast. Ah, but who can forget those wide lapels, the exotic plaids displayed nightly by celebrities like Johnny Carson, topped off with a tie wide enough to double as a spinnaker for a racing sloop. And again, the ‘70s were the final heyday of vests as an expectation rather than an option. The problem was that lawyers routinely bought these costumes right out of law school, and several years later, the higher-calorie post-law school diet usually created an ugly, noticeable strain on the vest buttons. Too many lawyers insisted, “its fine. No one will notice.” Uh… yes, we did. Now, remember: We dressed well because it served as a visual badge of our professionalism. I honestly do not remember ever seeing any male lawyer without a tie in the offices where I worked for the first 10 years of my practice. But, now, clearly that bubble has been popped. Maybe it is just a general cultural sign of a re-direction of priorities. Accomplishing the job has clear priority over doing it while well-dressed. Frankly, I regret not figuring this out sooner. As counsel to the District 9

Accomplishing the job has clear priority over doing it while well-dressed. Frankly, I regret not figuring this out sooner.

Grievance Committee, 40 years ago, I was expected to wear a tie to bi-weekly Saturday morning grievance meetings as a representative of the State Bar. I’m pretty sure I could have done the job in shorts and topsiders (as a young committee member named Tommy Jacks proved). But the argument was, as their counsel, I needed to “look professional.” Like most of the angry old lawyers rambling about how easy “you kids have it nowadays,” you’d think I’d have the same temptation to shake a fist at today’s youngsters and start a lecture with a reprimand which begins with, “…why, in MY day…” But then I stop and ask myself, “would I want to be a young lawyer today?” Nope. And I haven’t spoken to any man or woman my age who wants to start over, either. Let’s review how incredibly lucky we were. We slipped through law school on tuition which reflected a dedication and investment by government in our education. That very important priority is clearly dead. Law school tuition is almost exactly 50 times as expensive as 40 years ago. Yet, the Consumer Price Index has only gone up 4.18 times in that same 40 years. None of us had the type of student debt we see today, or the angst of having to start life in the red. Most of us found jobs working for firms, prosecutors, or state agencies, and we learned our craft under the daily guidance of mentors. Very few of us had to hang a shingle for lack of a job. And our years of investing, experience, and wisdom were not threatened by artificial intelligence, and resolution systems which will soon do much of the final reasoning for us, depriving young lawyers of trial experience. So, if I had to wear a cravat around my pencil-neck to get

the terrific benefits of a legal career, it was worth every knot. But along with those benefits, we owe it to the next generation of lawyers to do whatever we can to mentor, assist, and enhance the career opportunities for them. All of us should fill in every opportunity to preserve that sacred principle we call “The Rule of Law.” We must impress on every member of our profession that individual’s calling to ensure we, as a profession,

follow the right professional and ethical path. As for the ties and the shoulder pads, here’s a final thought. It likely increases your personal credibility to look professional when meeting or engaging with new clients. But I have no problem if you leave the vest and tie (or those Jimmy Choos) at home if you don’t have some working purpose for them. Do good work instead. And call us older lawyers for help, for forms,

and for advice. The phone is still the best research tool in our profession (and its one of the only devices that I’m pretty sure everyone my age knows how to operate). As for me, Hollywood still tells me I should wear a tie. So I will. But sadly, I have no more use for Jimmy Stewart’s Brylcreem. Dang it. AUSTIN LAWYER L AL Keep the A faith.

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PRACTICE POINTERS

Legal Fees: Staying Grounded in the Basics in an Ever-Changing Environment BY SUE AYERS AND NOAH GALTON

n a legal landscape where clients are routinely requesting less traditional fee arrangements and lawyers are doing their best to reach reasonable accommodations, it remains vitally important not to lose sight of the basics. This is for the protection of lawyers and their clients, alike. Since 2017 alone, appellate courts across Texas have wrestled with several age-old issues concerning fee disputes. From just a handful of those cases, numerous helpful reminders emerge.

REMINDER NUMBER 1

Know Your Client, and Make Sure Your Engagement Is Actually With That Person Or Entity. A recent case out of the Austin Court of Appeals serves as a reminder to always stay apprised of a client’s legal identity, as extenuating circumstances—including death —can augment prior relationships. See Law Offices of John S. Young, P.C. v. Deadman, No. 03-17-00148-CV, 2017 WL 6273258, at *3 (Tex. App.— Austin Dec. 5, 2017, no pet.). In Deadman, a lawyer entered into a contingent fee contract with his client. Before the conclusion of the matter, the client died. After the client’s death, the trial court rendered a judgment involving a recovery by his estate. Had the client still been alive, the lawyer may have received his contingency fee. However, since the attorney-client relationship terminated upon death, and because the lawyer never entered into a new contingent fee contract with the client’s estate (technically, a new and different legal entity), the lawyer was not entitled to a fee.

REMINDER NUMBER 2

If Using a Contingent Fee Contract, Make Sure It Is Enforceable. Before drafting a contingent fee contract—or simply using an old form—make sure you have reviewed the relevant rules to ensure the contract will be enforceable. For instance, Rule 1.04(d) of the Texas Disciplinary Rules of Professional Conduct includes several mandates for such contracts, including: (a) The contract must be in writing; (b) the contract must state the method by which the fee is to be determined; and (c) the contract must state the litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. REMINDER NUMBER 3

If Taking Over Representation from a Lawyer Terminated Under a Contingent Fee Contract, Determine Whether the Contingent Fee Contract Survives. Recent opinions out of the Dallas Court of Appeals and Beaumont Court of Appeals serve as reminders that, in some circumstances, contingent fee contracts can survive a lawyer’s termination. See Josephine Douglas-Peters v. Cho, Choe & Holen, P.C., No. 05-15-01538-CV, 2017 WL 836848 (Tex. App.—Dallas Mar. 3, 2017, no pet.); Sewell v. Guillory, No. 09-16-00078CV, 2017 WL 6521067, at *5 (Tex. App.—Beaumont Dec. 21, 2017, pet. filed). For instance, “if an attorney hired on a contingent fee basis is discharged without good cause before the representation is completed, the attorney may seek compensation

Sue Ayers is a trial partner in the Austin office of Jackson Walker LLP. She helps condemning authorities acquire property rights for public projects, such as electric transmission lines, railroads, and highways.

Noah Galton is an associate in the Austin office of Jackson Walker LLP. Noah’s practice focuses on commercial litigation in both state and federal court, including eminent domain, real estate litigation, and general business litigation.

from his client under either the contract or in quantum meruit.” See Sewell, 2017 WL 6521067, at *5. These cases should serve as a cautionary tale for lawyers and clients involved in contingent fee relationships, as well as unsuspecting practitioners who may take over representation in a case where such a relationship still exists.

was upheld in light of the lawyer’s violation of Rule 1.14(a). See De Los Santos v. Comm’n for Lawyer Discipline, No. 04-1600065-CV, 2017 WL 2124510, at *5 (Tex. App.—San Antonio May 17, 2017, pet. denied). While this may seem like an obvious reminder, the handling of client funds may prove more complicated when dealing with multiple representations of a client over a long period of time, as in the aforementioned case.

REMINDER NUMBER 4

Do Not Commingle Lawyer and Client Funds. Rule 1.14(a) of the Texas Disciplinary Rules of Professional Conduct is unambiguous: “A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.” Such funds shall be kept in a separate account designated as a “trust” or “escrow” account. In a recent decision rendered by the San Antonio Court of Appeals, a trial court’s suspension of a lawyer from the practice of law for 18 months

REMINDER NUMBER 5

Keep Clear Records of Client Accounts. To help avoid any pitfalls relating to the commingling of lawyer and client funds, it is imperative to not only keep separate accounts, but also to keep clear records ofLAWYER each account. See AUSTIN AL AL Rule 1.14(a).

SEPTEMBER 2018 | AUSTINLAWYER

How to Stand Out From the Pile Among Piles Insight from a Law Clerk’s Desk BY CHRISTIE MASON HEBERT be unfamiliar with your case or the applicable law, a summary provides an important introductory framework. That introduction can be a roadmap the law clerk uses to understand the rest of your pleading.

Christie Hebert is in the final weeks of a two-year clerkship with the Honorable Sam Sparks of the United States District Court for the Western District of Texas. Following her clerkship, Christie will complete the Pegasus Scholarship in the United Kingdom and will join Johns & Counsel PLLC, an Austin-based firm, in December.

law clerk is often the initial—and potentially the only—reader of federal district court pleadings. During two years of clerking for Judge Sam Sparks and learning from other judges in the Western District of Texas, I observed simple strategies that can make a pleading more approachable and therefore more effective. I offer some of these insights as low-hanging fruit. And, if you follow these five tips, the law clerk on your case will thank you. 1. Start with a summary. On the first page of your pleading, immediately following the title, include a paragraph summarizing the relief you are requesting and why you are entitled to it. Perhaps it comes as a shock, but the court may not read an entire motion in one sitting. A summary paragraph helps the court quickly understand the status of your case and what your client seeks. Especially for a law clerk who may 38

AUSTINLAWYER | SEPTEMBER 2018

2. Prioritize your arguments. Your initial arguments receive the most attention. Structure your argument section so your most persuasive points are first. As one judge likes to say, “Rarely do arguments raised on page 18 warrant relief!” 3. Mind the facts. The pleading with a clear description of the facts and supporting evidence is more likely to become a law clerk’s guide to understanding a case or ruling on a motion. As a court’s ruling on a motion should generally flow from an application of the law to the facts, avoid leaving the court to puzzle out the details of your case. It is particularly helpful when the parties quote or paste a key piece of evidence in the fact section itself rather than citing to an exhibit the law clerk must then consult. 4. Index your exhibits. Failure to provide a list of exhibits and the order in which to find them increases the chance a law clerk will misunderstand the nature of an exhibit or overlook it. An index, placed in the initial pages of your pleading or immediately following the conclusion, offers a map of your evidence. 5. Request specific relief. Parties frequently neglect to name the relief they seek in their haste to ask the court to grant or deny a motion. In requesting relief, think about the language you would like to see in the court’s order (yes, we

A summary paragraph can be a roadmap the law clerk uses to understand the rest of your pleading. look at the proposed order). For example, in asking for a temporary restraining order, be precise about the activities and parties you seek to enjoin. Similarly, indicate what the court should do if your summary judgment motion is granted: should the court enter a judgment on behalf of your client or merely dismiss your case? Without such information, a law clerk is forced to interpret what you seek. BONUS: Review the court’s prior orders. A court’s prior orders on a type of motion offer clues into how the court applies a motion’s standard, what arguments are persuasive,AUSTIN and whatLAWYER type of AL AL evidence is compelling.

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