Austin Lawyer, September 2016 by Austin Bar Association

austinbar.org SEPTEMBER 2016 | VOLUME 25, NUMBER 7

Join the Austin Bar Association for 2017 and Receive the Rest of 2016 for Free

e’re kicking off the 2016-2017 Bar year by sending this issue of the award-winning Austin Lawyer to all attorneys in the Austin area. If you aren’t already a member, now is the perfect time to join. In addition to receiving 10 issues of this magazine each year, you’ll receive other member benefits which provide a solid return on your membership investment, including: • many free and discounted CLE opportunities, including a monthly 4th Friday Free CLE with lunch included; • selected CLEs live streamed via Periscope and offered free online at austinbar.org; • online membership directory searchable by the public; • member discounts on a variety of services; • subscription to Bar Code, a weekly e-newsletter;

• participation in annual judicial preference and evaluation polls; • access to substantive law section membership; • Travis County Resources Guide (Bench Book) available online; • many opportunities to participate in community service; • networking opportunities through committee participation and social events; • 100 Club Membership, for firms with four or more attorneys who have 100 percent participation; • access to temporary office space at the Bar’s downtown office; • texts with Travis County Civil Court jury trial schedules (to opt in, text the keyword “Austinbar” to 313131); and • Career Center on website for employers and job seekers. There is a place to connect, or re-connect, at the Austin Bar— wherever your passions lie. Whether

your interest is in community service, judicial programs, education, or service to the profession, the Austin Bar offers a wide range of committees, programs, and activities.

Visit austinbar.org for more information and to join online. Questions? Contact Membership Director, Carol Tobias,AUSTIN at 512.472.0279, x106 or LAWYER carol@austinbar.org. AL AL

Join Austin Bar’s 100 Club for the 2016-2017 Bar Year

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.

New this year will be the Featured 100 Club Members of the Week. This rotating list will highlight several 100 Club Member firms each week in Bar Code, emailed weekly to about 4,000 Austin Bar members. Interested in becoming a 100 Club member? Contact Carol Tobias, membership director, at carol@austinbar.org. Special thanks to the following Austin law firms for supporting the programs and practices of the Austin Bar Association with 100 percent participation in 2015-2016. continued on page 5

CONTENTS

AUSTINLAWYER SEPTEMBER 2016 | VOLUME 25, NUMBER 7 AL A L INSIDE FEATURED ARTICLES 1

Join the Austin Bar Association Today Join for 2017 and Receive the Rest of 2016 for Free

Join Austin Bar’s 100 Club for the 2016-2017 Bar Year For Firms of Four or More with 100% Participation

Betty Blackwell Honored with Warren Burnett Award In Recognition of Her Tireless Commitment to Indigent Defense

Corporate Sponsor: Finding a Way Through the Mayhem HSSK Offers Keys to Survival for Oil and Gas Companies

When is Our Response Due? Local Rules and the Three-Day Extension Under Fed. R. Civ. P. 6(d)

ONLINE

DEPARTMENTS 6 President’s Column 12 Opening Statement 14 Briefs 17 Minority Bar Spotlight 18 Federal Court Update 19 3rd Court of Appeals Update 21 Legislative Update 22 AYLA 25 Social Media Savvy 26 Entre Nous 29 Developing Your Practice 31 Classifieds /Ad Index

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

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SEPTEMBER 2016 | AUSTINLAWYER

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

AUSTIN YOUNG LAWYERS ASSOCIATION Katie Fillmore ........................... President Austin Kaplan ............................ President-Elect Jorge Padilla .............................. Treasurer Drew Harris ............................... Secretary Chari Kelly .................................. Immediate Past President

EXECUTIVE OFFICES 816 Congress Ave., Suite 700 Austin, TX 78701-2665 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward........................... Executive Director Nancy Gray ................................ Managing Editor Debbie Kelly .............................. Director of AYLA Kennon Wooten ...................... Editor-in-Chief Kelli Horan ................................. Editorial Assistant Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the 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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Austin Bar’s 100 Club Members continued from cover

McDonald, Mackay & Weitz Allensworth & Porter McLean & Howard Almanza, Blackburn, Dickie & Mitchell Metcalfe Wolff Stuart & Williams Andrews Kurth Minton, Burton, Bassett & Collins Ausley, Algert, Robertson & Flores Munsch Hardt Kopf & Harr Barnes Lipscomb Stewart & Ott Noelke Maples St.Leger Bryant Barnett & Garcia Office of the Attorney General of the State of Texas Beck Redden Osborne, Helman, Knebel & Scott Blazier, Christensen, Browder & Virr Parsley Coffin Renner Booth, Ahrens & Werkenthin Pillsbury Winthrop Shaw Pittman Boulette Golden & Marin Piper Burnett Bracewell Pirkey Barber Branscomb Ratliff Law Firm Brink Bennett Flaherty Reed, Claymon, Meeker & Hargett Buchanan Dimasi Dancy Reeves & Brightwell & Grabouski Richards Rodriguez & Skeith Burns Anderson Jury & Brenner Savrick, Schumann, Johnson, Cain & Skarnulis McGarr, Kaminski & Shirley Cantilo & Bennett Scott Douglass & McConnico Chamberlain ♦ McHaney Shannon, Gracey, Ratliff & Miller City Of Austin Law Department Sharp & Cobos Coldwell | Bowes Shaw Cowart Constangy, Brooks, Smith Slack & Davis & Prophete Smith Law Group Davis & Wright Spivey & Grigg De Leon & Washburn Supreme Court of Texas Eichelbaum Wardell Hansen Taylor Dunham and Rodriguez Powell & Mehl Texas Comptroller of Public Friday Milner Lambert Turner Accounts George Brothers Kincaid & Horton Texas Department of Motor Vehicles Giordani, Swanger, Ripp & Phillips Texas Rio Grande Legal Aid Gjerset & Lorenz Texas Workforce Commission Graves, Dougherty, Hearon The Hay Legal Group & Moody Third Court of Appeals Greenberg Traurig Thompson & Knight Hanna & Plaut Thompson Salinas Rickers Hawkins Parnell Thackston & McDermott & Young Travis County Attorney’s Office Hays & Owens Travis County Civil Court Hendler Lyons Flores Travis County Court at Law Judges Hohmann, Brophy & Shelton Travis County Criminal Courts Hopper Mikeska Travis County District Attorney’s Hunton & Williams Office Ikard Golden Jones Travis County District Court Judges Ikard Wynne Travis County Probate Court Jackson Lewis Weisbart Springer Hayes Kelly Hart Whitehurst, Harkness, Brees, Kiester, Lockwood, Ciccone Cheng, Alsaffar & Higginbotham & Bollier Winstead Lippincott Phelan Veidt Womack McClish Wall & Foster Lloyd Gosselink Wright & Greenhill AUSTINLAWYER Locke Lord AL AL Martens,Todd, Leonard, Taylor & Ahlrich Martin, Disiere, Jefferson & Wisdom

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SEPTEMBER 2016 | AUSTINLAWYER

PRESIDENT’S COLUMN LESLIE DIPPEL, ASSISTANT TRAVIS COUNTY ATTORNEY

Texas Lawyers Creed: It’s About Who You Are, Not What You Do “I AM A LAWYER. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.” The preamble to the Texas Lawyers Creed is a powerful statement about how we are called to conduct ourselves as legal professionals. The first short declarative sentence, “I am a lawyer,” says to me the ideals in the Creed are more about who I am than what I do. When I was a young associate at Hilgers & Watkins (now Husch Blackwell), the lawyers attended weekly meetings at 7 a.m. each Friday where we generally talked about firm business and touched base with one another. It was a nice (though early!) tradition. I do not know if he remembers this, but in January at one of those meetings, Tom Watkins recommended we read the Texas Lawyers Creed at the beginning of every year. I have adopted his routine and attribute that great habit directly to Tom. As lawyers, we are called upon to be leaders in our community. We hear those words often, but the Creed mandates us—it uses the

AUSTINLAWYER | SEPTEMBER 2016

word “mandate”—to abide by the standards it lists “for no other reason than it is right.” The language of the preamble reminds us “what is right” is much more than avoiding violating the minimum standard. Tom taught me others will depend on me, others will look to me as an example. Therefore, I need to make sure the example I set is a good one. I will always remember him for that. Thank you, Tom, for your service to the Austin Bar Association, and for your mentorship to countless young attorneys in Austin. As we start the new Bar year, I encourage us all to open up the Texas Lawyers Creed. Read it over, and then choose one ideal to focus on this year. The Austin Bar Association

has many places to plug in and put your goals into practice. The goal I choose is to give back. Co-chaired by Jorge Padilla and Sam Colletti, the Mentoring Program provides a place for giving back and nurturing the careers of young attorneys who will one day be leaders in their profession and in this organization. Maybe that opportunity speaks to you, too. If you are not currently a member of the Austin Bar, now is the perfect time to pursue your goals with us. Join now and your 2017 membership will include the rest of 2016 for free. See page 1 for details on the many member benefits providing a solid return on your membership investment. AUSTINLAWYER Won’t you joinAme? L AL

Betty Blackwell Honored with Warren Burnett Award

ongtime Austin Bar member Betty Blackwell was awarded the 2016 State Bar of Texas Warren Burnett Award. The Legal Services to the Poor in Criminal Matters Committee created the award, named for the late legendary Texas attorney Warren Burnett, to recognize extraordinary contributions to improving the quality of criminal legal representation to indigents in Texas. The award honors either an individual or organization for their work in the courtroom, legislature, or in the public space. Blackwell won the Warren Burnet Award for her decades of tireless commitment to indigent defense culminating in her stellar leadership as President of the Board of Directors of the Capital Area Private Defender Service. A criminal law practitioner who is Board Certified in Criminal Law, Blackwell received a J.D. with honors from the University of Texas School of Law in 1980. She served as chair of the Commission for Lawyer Discipline from 2006-2011, as presiding director/

president of the Criminal Law Section of the State Bar of Texas, the Austin Criminal Defense Lawyers Association, and the Texas Criminal Defense Lawyer’s Association. She was appointed by Governor Ann Richards to the Texas Punishment Standards Commission that rewrote the Texas Penal Code, and by Governor George Bush to the committee that rewrote the Texas Code of Criminal Procedure. She served as an Adjunct Professor of Law at the University of Texas Criminal Defense Clinic, and oversees the Austin Criminal Defense Lawyers Association’s Annual Ethics Seminar each year. She has lectured at the Advanced Criminal Law Seminar for the State Bar of Texas and at the Rusty Duncan Advanced Criminal Law Seminar for more than 10 years. In addition, she and Judge Michael McCormick authored a three-volume treatise for West Publishing Company titled Texas Criminal Forms and Trial Manual. According to Kelli Bailey, president of the ACDLA, “Extraordinary. This is the word that springs to mind

when one thinks of Betty Blackwell. Her commitment to improving the quality of representation to the poor is only outdone by her ability to make it happen. Since 2012, Betty has selflessly given hundreds and hundreds and hundreds of hours of her time to the Capital Area Private Defender Service. She has never, never wavered in the mission of improving criminal defense for the poor. She told the world we could make a difference in the lives of our most vulnerable and we have.” When asked how it feels to receive the award, Blackwell responded, “I can’t tell you how much this means to me. I once drove 200 miles just to hear Warren Burnett speak at one of his last CLE presentations. He was inspirational, brilliant and well worth the effort to hear him. To receive an award named after such an incredible lawyer, is beyond my wildest expectations. I am so proud of the work done by the Capital Area Private Defender Service. Modeled after Lubbock’s private defender service, we are twice the size with a huge case load. Yet our three-person staff

Betty Blackwell has tackled the impossible job of supervising over 200 attorneys, verifying information when authorizing payments, taking and resolving client complaints and mentoring young lawyers, with the goal of improving the quality of court appointed counsel. As President of the Board of Directors, it has been my privilege to oversee this extraordinary experiment in a new method of providing counsel toLAWYER the most vulnerable of AUSTIN our citizens.” AL AL

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

SEPTEMBER 2016 | AUSTINLAWYER

CORPORATE SPONSOR

Finding a Way Through the Mayhem BY MARC SCHWARTZ AND JARED JORDAN OF HSSK, LLC

he term “financial forensics” conjures images of accountant-CSIs rooting out fraud, scams, and exotic criminal activities. But applying the same skills and investigative approaches to ordinary business operations may be the key to survival for many oil and gas companies. Oil prices and rig counts are down 60 percent. Revenues of upstream companies are plummeting between 60 percent and 70 percent. Producers will need to make themselves attractive to the next round of investors, by proving they can consistently produce positive cash flow in a tough environment that will extend for several years. In the pursuit of fresh capital, whether from current investors or new ones, a company must be able to show it can achieve “breakeven” at various oil price levels, $30, $40 or $45/boe. A persuasive demonstration that this will occur requires creating detailed dynamic models of the company’s operations, including modeling costs of production, overheads, and capex requirements.

START WITH REVENUE The process starts with revenue projections, and three factors play into this: Capacity, demand, and commodity price. To be credible, revenue projections must be based on quantifiable evidence of the company capacity, such as existing well decline curves. Current prices should be used for the base case, but alternative scenarios should also be built to demonstrate the effect of lower prices. The company should not assume prices and demand will return to a previous “normal” in a few months, or even a few years. The often-overlooked reality is constant dollar oil prices have never recovered to the level reached in 1980, while nominal oil prices took 23 years to recover to their 1980 level.

AUSTINLAWYER | SEPTEMBER 2016

Source: Energy Information Administration

THEN, COSTS The key is to determine how costs can be reduced both absolutely and per unit of production, and at what level of production the costs will increase stepwise. Over a given range of production, beyond the expense of finding and developing reserves, total costs will be a function of a cost per unit of effort, multiplied by those units of effort. Historical analyses of each of these components is necessary to determine not only the efficiency of the function, but also the unit cost associated with it, and whether the units are priced at current market levels or have become inflated over time.

CORE VS. NONCORE ASSETS Finally, operational and cash-flow assessments must be performed to identify the essential, productive elements of the company’s

HSSK is a professional services firm devoted to business valuation, litigation consulting, and financial restructuring.

business. Which assets are required to maintain a level of operations that can generate breakeven cash flow? Assets that are not required are noncore and should be sold to provide liquidity. The pathway to sustainability is to demonstrate the value of the company’s core assets and its viability at depressed oil prices over the next

several years. Regardless of whether the ultimate decision-making venue is a boardroom negotiation, a private equity investor’s office, or a bankruptcy court, when that day comes, it will be insufficient to have relied on assumptions that are not quantified or on industry rules of thumb to support a decision that will shape a AUSTIN LAWYER AL AL company’s future.

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WHEN IS OUR RESPONSE DUE? Local Rules and the Three-Day Extension Under Fed. R. Civ. P. 6(d) BY JAMES HUGHES, NORTON ROSE FULBRIGHT

n federal court, deadlines for motion practice are set at the local level, typically by operation of local rules (or standard scheduling orders). But determining a response or reply deadline is not as simple as glancing at the number of days listed in the local rules. This is because, depending on the precise wording of the rules or order, the three-day extension under Federal Rule of Civil Procedure 6(d) may—or may not—apply. And as it happens, the question is particularly thorny here in the Western District of Texas. Rule 6(d) states: “Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), three days are added after the period would otherwise expire under Rule 6(a).”1 The applicable forms of service under Rule 5(b)(2) include 10

AUSTINLAWYER | SEPTEMBER 2016

“electronic means if the person consented in writing,”2 which of course describes service via the CM/ECF system. Note that 6(d) applies only to response times that are stated as a “specified time after service.” This means that whether Rule 6(d) applies will depend on the wording of local rules. As a starting point, a local rule that sets response times from the date of service should fall under Rule 6(d), while a deadline running from date of filing should not (but see below). In some districts the rules are clear. For example, in the Northern District of California, the local rules expressly disallow applying Rule 6(d): “The opposition must be filed and served not more than 14 days after the motion was filed. Fed. R. Civ. P. 6(d) does not apply and thus does not extend this deadline.”3 Conversely, in the Middle District of Louisiana, responses to motions are due “within 22 days after service

. . . depending on the precise wording of the rules or order, the three-day extension under Federal Rule of Civil Procedure 6(d) may—or may not—apply. And as it happens, the question is particularly thorny here in the Western District of Texas. of the motion.”4 There is no disavowal of Rule 6(d), and because Rule 6(d) applies to calculating time from a date of service, it should apply under the Middle District’s rule. Reaching a similar result by a different tack, the Eastern District of Texas expressly incorporates a broadened version of Rule 6(d) into its local rules, providing for a three-day extension from the date of service, regardless of the method of service.5 What about our own Western District of Texas? In the Western

District, deadlines for motion responses and replies are set in Local Rule CV-7 by reference to the date of filing: “A response to a dispositive motion shall be filed not later than 14 days after the filing of the motion. A response to a nondispositive motion shall be filed not later than seven days after the filing of the motion. . . . A reply in support of a motion shall be filed not later than seven days after the filing of the response to the motion.”6 So on its face, Local Rule CV-7

appears to be drafted in a way that avoids Rule 6(d), with “14 days” meaning just that, 14 days. And indeed, there are countless Western District orders stating the response and reply deadlines under the local rules, with no mention of Rule 6(d). Most frequently, such statements are found in orders granting a motion as unopposed, when the time to respond is already well past.7 But wait—lurking on the Western District website are the Court’s “Administrative Policies and Procedures for Electronic Filing in Civil and Criminal Cases.”8 The Policies include the following: “For the purpose of computation of time, the three-day mailing provision found in Rule 6(d) . . . applies to service by electronic means.”9 In turn, the Polices and the Local Rules are clear that registration in the Court’s e-filing system (which is mandatory for attorneys), constitutes consent to receive electronic service, and that the CM/ECF notices the system generates are electronic service: “Registration as a Filing User constitutes consent to electronic service on all documents as provided both in these procedures and by Rule 5(b)(2)(E) . . .”10 “The NEF constitutes service of the unsealed electronically filed document on Filing Users.”11 Taken together, these provisions establish that filing via CM/ECF triggers the familiar NEF

email, and that the email constitutes electronic service under Rule 5(b) (2)(E). Hence, Rule 6(d)’s extension would seem to apply. Indeed, there are a handful of reported cases that conclude electronically filing a motion adds three days to the response deadline.12 However, these decisions predate the 2012 amendment to Local Rule CV7, which changed the reference of response times running from the date of “service” to the date of “filing.” At the same time, it appears the response deadline was changed from 11 days to 14 days. Hence, one could reasonably conclude that the Local Rules were changed in an attempt to bring clarity while reaching the same result: Responses to dispositive motions are due in 14 days. Is there a conflict between the Local Rules and Administrative Policies? If so, the Administrative Policies trump the Local Rules: “[I]n the event of a conflict with the Local Court Rules for the Western District of Texas (‘Local Court Rules’), these Electronic Filing Procedures govern.”13 Notably, the Administrative Policies were last revised in November 2013, well after the current version of the Local Rules. Of course, one could argue that since the Administrative Policies do not specifically address responsive deadlines, there is no “conflict” with the Local Rules.

So what is a practitioner to do? Respond in 14 or 17 days? Until a court opinion brings clarity, attorneys would be wise to file responses within 14 days of the date the CM/ECF email hits their inboxes (or seven days for responses to non-dispositive motions and replies). Prudence is always the better course when dealing with court deadlines. But if that response date is missed, attorneys will have a good argument that they can still timely file for up to three days later (or at least grounds to prevail on a motion for leave to do so). And if the Court disagrees and refuses leave? We might end up withAUSTIN some veryLAWYER clear guidance from the Fifth Circuit. AL AL

12 See, e.g., Santander Consumer USA, Inc. v. Manheim Auto. Fin. Servs., Inc., 652 F. Supp. 2d 805, 811 (W.D. Tex. 2009) (“[B]ecause [movant] served its motion for leave to amend on [respondent] electronically, [respondent] correctly notes that Fed. R. Civ. P. 6(d)’s ‘mailbox rule’ extends the eleven-day response time by three extra days.”); see also Lear Siegler Services v. Ensil Intern. Corp., No. SA-05-CV-679-XR, 2010 WL 2594872, at *1 (W.D. Tex. June 23, 2010); AT & T, Inc. v. Flores, No. SA-07-CV-343-XR, 2008 WL 3003480, at *1 (W.D. Tex. Aug. 1, 2008). 13 Administrative Policies § 3(b).

Footnotes: 1 Fed. R. Civ. P. 6(d). 2 Fed. R. Civ. P. 5(b)(2)(E). 3 N.D. Cal. Civil L.R. 7-3 (emphasis added). 4 M.D. La. LR7(f). 5 E.D. Tex. Local Rule CV-6(a). 6 CV-7(e), (f). 7 See, e.g., Jaimes v. Fed. Nat. Mortg. Ass’n, 930 F. Supp. 2d 692, 694 n.1 (W.D. Tex. 2013). 8 U.S. District Court, Western District of Texas, Administrative Policies and Procedures for Electronic Filing in Civil and Criminal Cases, available at http://txwd.uscourts.gov/USDC%20 Forms/CMECF/efileprocd.pdf. 9 Administrative Policies § 15(f). 10 Id. § 6(c). 11 Id. § 15(a).

James Hughes is an Austin-based commercial litigation associate with Norton Rose Fulbright. He represents commercial plaintiffs and defendants in federal courts in Texas, California, and elsewhere, and in state courts and arbitration. He has extensive experience with federal motions practice and federal procedure.

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SEPTEMBER 2016 | AUSTINLAWYER

OPENING STATEMENT

Microsoft Word Tips for Lawyers (PC) Part 1 BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

his month and next I’ll offer some advice for using Microsoft Word effectively and for making it do what you want. I welcome your suggestions here: wayne@ legalwriting.net 1. Turn off superscript ordinals. The Bluebook, and the general conventions of legal writing, call for ordinals to be written without superscripts. Not this: 1st, 5th But this: 1st, 5th

Yes, you can click “undo” or type control + z each time, but it’s better to change the default setting. You must do it twice: Go to File > Options > Proofing > AutoCorrect Options and click on the tab for AutoFormat As You Type. Under Replace As You Type, uncheck the box for “Ordinals (1st) with superscript.” Go to File > Options > Proofing > AutoCorrect Options and click on the tab for AutoFormat. Under Replace, uncheck the box for “Ordinals (1st) with superscript.” 2. Use a non-breaking space after section symbols. You can make Word keep a section symbol (or anything else, really) with the number that follows it and never leave the symbol alone at the right margin. Not this: “A person commits an offense if the person employs a child under 14 years of age.” Tex. Labor Code Ann. § 10.001(a) (West 2014). See the lonely section symbol at the right margin? But this: “A person commits an offense if the person employs a child under 14 years of age.” Tex. Labor Code Ann. § 10.001(a) (West 2014). Instead of putting a normal space after the symbol, hold down control + shift and press the space bar. You may also type alt + 0167 on the numeric keypad. You can use Find and Replace to make this change throughout. 12

AUSTINLAWYER | SEPTEMBER 2016

3. Insert the correct em dash. The dash is a useful punctuation mark, but MS Word’s default settings convert two hyphens into two different dashes with different meanings. To get the correct em dash rather than the shorter en dash, omit spaces around the hyphens. Not this: The lawsuit – despite being settled – was still expensive. But this: The lawsuit—despite being settled—was still expensive. The correct dash is longer, like the one used in Texas courts of appeals citations: (Tex. App.—Dallas 2002, pet denied). Type two hyphens but leave no spaces on either side. You can also insert the em dash directly with the Insert Symbols function or with these keystrokes: alt + 0151. 4. Use smart (curved) quotation marks. Although it’s a minor point, professional type uses curved (smart) quotation marks instead of “straight quotes.” Straight quotes are for feet and inches: 5' 11''. Not this: ''no'' But this: “yes”

It’s easy to change the default setting so you’ll always get the proper, curved quotation marks. Go to File > Options > Proofing > AutoCorrect Options and click on the tab for AutoFormat As You Type. Under “Replace as you type,” check the box for “Straight quotes” with “smart quotes.” 5. Strip the formatting of pasted text. If you don’t strip the formatting, you can end up with different fonts in your document or different colors or shades. Using the Paste function of MS Word (not control + v), choose “Keep Text Only.” Do not choose “Keep Source Formatting” or “Merge Formatting.” 6. Restart page numbering at 1. In some legal documents, you might need to number the initial pages separately—such as with a, b, c or with i, ii, iii—and then begin the body of the document with page 1. Go to the Page Layout tab, and in the Page Setup section, select Breaks. Click Next Page (“Insert

a section break and start the new section on the next page”). Now go to the Insert tab, and in the Header & Footer section, select Page Number > Format Page Numbers. In the dialog box, click the button for “Start at” and enter “1.” 7. Spell-check words in uppercase. By default, Word doesn’t spellcheck text in UPPERCASE. You shouldn’t use uppercase text (also called “ALL CAPS”) for body text, but it’s needed for initials and acronyms. No matter what, consider changing this default. Go to File > Options > Proofing and look for “When correcting spelling in Microsoft Office programs.” Now uncheck the box for “Ignore words in UPPERCASE.”

AUSTINLAWYER

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AV-RATED BY MARTINDALE-HUBBELL James Piper Michael Burnett Travis Turner

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Allison Akers Deke Bond Christi Koenig Brisky Randy Bruchmiller Casey Burack Jason Cairns Virginia Covarrubia Alexandra Crawley Catherine East Claudia Garnica Estrada Emmarie Foerster

TOP ROW: Anderson, Burack, Dashiell, DeLeon, Fitxhugh, Garsson BOTTOM ROW: Gunn Venditti, Harris, Morrison, Reneker, Rollo, Judge Shepperd

James Gibbs Lindsey Groos Trey Hebert Rhett Hoestenbach Matthew Kirby Renee Kolar Jared Livingston Christen Mason Thomas Mendez Dianna Muldrow Lauren Munselle Donna Peery Shea Place Meredith Sullivan Luke Thomas Betny Townsend Devin Vasquez

AWARDS Toya Cirica Bell was selected as the 2016 recipient of the Contribution to the Minority Community Award by the Travis County Women Lawyers Association and Foundation. Bell is the deputy chief ethics officer for the Texas Health and Human Services Commission. Stephen Nagle received the Scott Ozmun Trial Lawyer of the Year Award. Nagle is a personal injury trial law specialist. Munsch Hardt Kopf & Harr Shareholder Ronald Reneker was awarded the 2016 Significant Sig Award by Sigma Chi Fraternity’s Executive Committee for his achievements in the field of law that have brought honor and prestige to Sigma Chi. Jeannie Rollo was appointed to the Texas Access to Justice Commission. Rollo is the executive director of the Lawyer Referral Service of Central Texas in Austin, advocating for legal services for low-income Texans. Judge Eric Shepperd was appointed to the National Association of Bar President Executive Council at the ABA Annual Meeting in San Francisco.

NEW TO THE OFFICE Andrews Meyers hired T. Champe Fitzhugh and Andrew Harris to their Austin office. Fitzhugh joins as a shareholder in the firm’s Corporate Law practice group.

AUSTINLAWYER | SEPTEMBER 2016

Harris joins in the Construction Law practice group.

service providers in a wide range of sophisticated corporate transactions.

Buchanan DiMasi Dancy & Grabouski announced the addition of Donna Peery as a senior associate attorney. Peery is a commercial trial lawyer with a primary focus on business disputes including insurance coverage and bad faith litigation.

Amy Dashiell was appointed as a new member of the Texas Board of Legal Specialization Board of Directors. Dashiell has represented and advised clients in all areas of employment law, including discrimination, retaliation, wage and hour violations, compliance issues, and more.

Susan G. Morrison and Eva DeLeon joined the Chamberlain McHaney law firm. Morrison brings 30 years of employment and education law experience. DeLeon focuses on education law and employment litigation. Dickinson Wright hired Ross Spencer Garsson and K. Lance Anderson to the firm’s new Austin office. Garsson focuses on intellectual property litigation, patent prosecution, and intellectual property portfolio management. Anderson focuses on complex technology and intellectual property transactions. Casey Johnson Burack joined the Austin Office of Winstead PC. Burack’s background is in publicprivate partnership agreements and the procurement of toll highways, rail projects, transit, airport, and other major infrastructure.

MOVING ON UP Amanda K. Jester was elected to the board of directors at Waller Lansden Dortch & Davis. Jester represents private equity funds, surgery centers, home health agencies, physician practices, and specialized

Lorinda Holloway was appointed by Husch Blackwell as managing partner of its Austin office. Holloway represents healthcare clients in federal False Claim Act and state Medicaid fraud cases, as well as in business disputes and malpractice cases. Carey Gunn Venditti was invited to become an Advisory Council Member of the Real Estate Finance and Investment Center (REFIC) of the McCombs School of Business at The University of Texas at Austin. Venditti is a real estate shareholder at Greenberg Taurig in Austin. New officers have been elected for the Austin LGBT Bar Association board. The new officers are Robert Vela, president; Christine Andresen, vice-president; Marshall Eudy, secretary; Daniel Collins, treasurer, Stefanie Collins, membership chair and Ryan Malloy, social chair. To submit announcements for inclusion in the Briefs section of Austin Lawyer, email Kelli Horan at kelli@austinbar.org.

BAR YEAR 2015-2016

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MINORITY BAR SPOTLIGHT

AAABA’s 3rd Annual Attorneys in the Arts: Go Big, Go Bald, Go Brave BY CHRISTINE HOANG, AUSTIN ASIAN AMERICAN BAR ASSOCIATION

n July 28, 2016, at The Highball, the Austin Asian American Bar Association’s (AAABA) 3rd Annual Attorneys in the Arts (AIA) showcased attorneys performing as comedic storytellers and spoken word poets; pop, blues, and folk singers; and guitar, piano, and tabla (Indian hand drum) musicians. We even had our first magician! Our 2016 attorney artists were Cari Bernstein, Lawrence Chang, Christine Hoang, Ray Langenberg, Shiv Naimpally, Rob Ranco, Adam Schramek, Lee Simmons, and Jessica Vu. Last year at AIA, attorney artist Courtney Hunt Moore performed a moving storytelling piece about her family’s journey when her daughter Georgia was diagnosed with leukemia. We invited Courtney to return this year to shine light on this year’s AIA charitable focus—the St. Baldrick’s Foundation, a pediatric

ABOVE: AAABA members Lawrence Chang and Jessica Vu RIGHT: Courtney Hunt Moore and her daughter Georgia

Courtney on the AIA stage to show her strength and joy as a cancer survivor. Some very talented guest artists also joined the cause to perform at

We were all there to let out hair down and be ourselves, not to dispute issues or take sides of a case. It was fun, powerful, and magical. cancer charity funding the most promising research to find cures for kids with cancer. Georgia is now in remission, and she joined her mom

AIA including comedian Maggie Maye who made her television debut on “Conan.” Plus, the Fly Girls from the acclaimed Austin

LOU McCREARY

show “Doper Than Dope” (Makeda Easter, Christine Hoang, Leslie Lozana, Megan Mowry) performed a high-energy, 90s-inspired, hip-hop dance routine. Lastly, Austin comedian Vanessa Gonzalez perform her celebrated one-woman sketch comedy act “Pancake Demon.” “My favorite moments of the night (besides laughing so hard that my face and belly hurt) include seeing wonderful music, comedy, dance, writing, karaoke, and inspiring causes,” says attorney Julie Chen Allen. “We were all there to let our hair down and be ourselves, not to dispute issues or take sides of a case. It was fun,

powerful, and magical.” “As an attorney with no discernible talent outside of what I do during my day job,” says Brian Prewitt, a partner at Jackson Walker. “I was impressed with the level of artistry displayed by my fellow members of the bar, and with the commitment of the organizers who worked so hard to benefit such a worthy cause.” If you would like to donate or learn more about St. Baldrick’s Foundation, please go to stbaldricks.org/participants/ AUSTINLAWYER courtneymoore. AL AL

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FEDERAL COURT UPDATE

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ADMINISTRATIVE LAW: Failure to properly scrutinize VA disability rating was reversible error. Johnson v. Colvin, No. 3:15-CV00189-LS (W.D. Tex. July 20, 2016) (mem. op.). Department of Veterans Affairs (VA) determined Johnson was 90 percent disabled and awarded him benefits at a 100 percent rate because he was unemployable due to his service-connected disabilities. Johnson’s application for Social Security disability insurance benefits was denied. Upon reconsideration, administrative law judge (ALJ) determined Johnson was not disabled. ALJ stated that VA disability determination was considered but not given any weight because it was based on a different evaluation process than Social Security disability. Johnson appealed, claiming ALJ erred by rejecting his 90 percent VA disability determination without providing a valid explanation. The court held ALJ’s decision lacked meaningful discussion of VA disability rating and thus did not indicate proper scrutiny of VA disability determination. The court reversed and remanded for “sufficient consideration” of Johnson’s VA disability rating.

INTELLECTUAL PROPERTY LAW: Personal liability of corporate officers for direct patent infringement requires piercing corporate veil. Yeti Coolers, LLC v. RTIC Coolers, LLC, No. 1:16-CV-00264-RP [Doc. 33] (W.D. Tex. July 19, 2016). RTIC’s founders and owners, John and James Jacobsen, moved to dismiss Yeti’s claim for patent infringement against them individually. The court noted inconsistencies in Federal Circuit case law on whether piercing corporate veil was required for corporate officers to be held personally liable for direct patent infringement under 35 U.S.C. §271(a), ultimately concluding corporate veil would need to be pierced. Because Yeti’s complaint did not allege facts sufficient for piercing the veil, its claim for direct infringement failed. However, corporate officers could be held personally liable for induced infringement under section 271(b) without piercing the corporate veil, and facts supporting this claim were sufficient as alleged. The court denied the motion to dismiss in part, as to Yeti’s induced infringement claim,

CONSTITUTIONAL LAW: San Antonio legislative redistricting complied with U.S. Constitution and city charter. Kueber v. City of San Antonio, No. 5-15-CV-382-DAE (W.D. Tex. July 13, 2016). City charter required single-member city council districts to be redrawn to be as nearly equal in population as practicable. Kueber challenged redistricting plan adopted by City, claiming violation of charter and Equal Protection Clause of Fourteenth Amendment. Court noted equal protection standard applicable to local legislative districts is more flexible than standard for congressional districting and allows for “minor” deviations of less than 10 percent to accommodate other legitimate considerations. Maximum deviation of City’s plan was 9.8 percent and thus presumptively

L eGisla

and granted in part, dismissing the claim for direct infringement.

compliant, and Plaintiff produced no evidence to overcome presumption. Summary judgment granted in favor of City.

The following are summaries of selected civil opinions issued by the U.S. District Court for the Western District of Texas during July 2016. These summaries are intended as an overview only, and counsel are cautioned to review the complete opinions. Subsequent histories are current as of August 9, 2016.

AUSTINLAWYER | SEPTEMBER 2016

Rachael K. Jones is a litigation attorney at The Carlson Law Firm and a member of the AYLA Board of Directors

Editor’s Note: The summaries of civil opinions issued by the Federal Court-Western District are a new recurring feature in Austin Lawyer. We would also like to provide criminal court updates from both the Federal Court-Western District and the Third Court of Appeals. If you are interested in writing one of these criminal court updates on a recurring basis, please contact Nancy Gray at nancy@ austinbar.org.

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3 RD COURT OF APPEALS UPDATE

The following are summaries of selected Third Court of Appeals’ civil opinions issued during June and July 2016. The summaries are intended as an overview; counsel are cautioned to review the complete opinion. Subsequent histories are current as of August 9, 2016. TRIAL PROCEDURE: Court holds Rule 91a’s 45-day hearing requirement is not mandatory. Koening v. Blaylock, No. 03-1500705-CV (Tex. App.—Austin July 1, 2016, no pet. h.). Husband failed to comply with divorce decree relating to the parties’ former residence. In wife’s enforcement action, the trial court refused to order sale of the residence, but entered a money judgment against husband. Still unable to collect, wife then filed a partition suit. Husband filed a Rule 91a motion to dismiss. Because the motion was not heard until more than 45 days after it was filed as required in Rule 91a.3(c), the trial court denied husband’s motion and awarded wife attorney’s fees. The court of appeals concluded the 45day requirement in Rule 91a was not mandatory, but was merely directory. In its de novo review of the 91a motion, the court concluded wife was made whole by the money judgment and she had no right to the residence. Accordingly, the trial court erred in denying the motion. The court reversed and rendered, and remanded for attorney’s fees. APPELLATE PROCEDURE: Court dismisses intervenors’ appeal for lack of appellate standing. Texas Quarter Horse Assoc. v. American Legion Dep’t. of Texas, No. 0315-00118-CV (Tex. App.—Austin June 8, 2016, no pet. h.). Plaintiffs challenged certain Texas Racing Commission’s rules. Additional defendants intervened, supporting Commission’s rules. The trial court ordered that the challenged rules were invalid. Commission did not appeal, but intervening defendants did. Meanwhile, Commission repealed the challenged rules. Plaintiffs/appellees sought dismissal on mootness grounds. Appellants urged the court of appeals to vacate the trial-court judgment and dismiss the cause. According to the court of appeals, when a case becomes moot

on appeal, all orders are set aside and the case is dismissed. If the defect is a lack of appellate standing, the remedy is to dismiss the appeal. The proper remedy turns on whether appellants had standing to appeal. Appellants lacked any basis to compel Commission to maintain the challenged rules if the agency did not wish to do so. Thus, appellants lacked appellate standing. The court dismissed the appeal. TRIAL PROCEDURE: Parol evidence allowed to establish terms of a lost trust. Gause v. Gause, No. 03-13-00768CV (Tex. App.—Austin July 29, 2016, no pet. h.). The principal assets of a family trust were tracts of real property. The trust instrument specified ownership of the property upon the death of the trustee. The trust instrument was lost soon after father’s death. Several disputes arose over the ownership of the trust property. The trial court determined the terms of the trust based upon parol evidence. The court of appeals noted that a deed or other document is not made ineffective by its destruction or loss. Evidence Rule 1004(a) permits admission of other evidence of a document’s contents if the original is lost or destroyed. Property Code §112.004, however, provides that the statute of frauds requires one seeking to enforce a trust in real property to present “written evidence of the trust’s terms bearing signature of the seller.” The court concluded Property Code §112.004 does not remove trust instruments from the operation of general rules of proof of lost documents. Accordingly, the trial court properly considered parol evidence to establish the trust’s terms. The court affirmed. FAMILY LAW: Court reverses modification order that removed divorce decree’s international travel restriction. Wiese v. AlBakry, No. 03-14-00799CV (Tex. App.—Austin June 1, 2016, no pet. h.) (mem. op.). Divorce decree appointed parties joint managing conservators of their two children and granted father exclusive right to determine residence of children. The decree prohibited taking children outside of U.S. without consent or court order. The trial court later granted mother’s motion

to modify the decree’s international-travel restriction to allow international travel. The court of appeals concluded that there was no material and substantial change of circumstances. There was no evidence that the children could not learn about their culture by means other than international travel. The children’s ages and progress in school were not material and substantial changes in circumstances. The court concluded that potential benefit to the children through international travel did not support modification. The court reversed and rendered. ADMINISTRATIVE LAW: Lease to for-profit entity does not destroy exempt status. LCRA v. Burnet Cent. Appraisal Dist., No. 03-15-00724-CV (Tex. App.— Austin June 7, 2016, no pet. h.). At issue was the tax-exempt status of an LCRA-owned park leased to a private for-profit entity. The lease limited the use of the land to a pubic recreational facility. BCAD contended the park was not used exclusively for public purposes because it was leased to a for-profit entity. The court of appeals noted that the legislature has authorized LCRA to contract for the operation of its parks. The lease limited the park’s use to the public purposes authorized by statute. According to the court, even if the lessee makes a profit from managing the park, the use of the park remains the same—providing the public with recreational opportunities. The court concluded the park was used exclusively for public purposes and reversed. TRIAL PROCEDURE: Court rejects specific performance remedy in breach of contract case. Woody v. J. Black’s, No. 03-1500293-CV (Tex. App.—Austin July 7, 2016, no pet. h.) (mem. op.). A dispute arose regarding an option to extend a sublease. The trial court granted summary judgment that Woody breached the sublease by refusing to acknowledge J. Black’s extension of the lease. The trial court awarded specific performance and attorney’s fees. The Amarillo Court affirmed Woody’s breach, but reversed the award of specific performance and attorney’s fees and remanded. On remand, the trial court granted summary judgment for

Laurie Ratliff is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization and is a shareholder with Ikard Golden Jones. From 1998 through 2001, she was a staff attorney with the Third Court of Appeals.

J. Black’s for specific performance based on evidence that it was ready, willing, and able to comply with the lease. The court of appeals concluded specific performance was not a proper remedy. Specific performance cannot be awarded when present performance is not possible. Specific performance here could only be performed over years in the future. The court reversed and rendered. ADMINISTRATIVE LAW: Absence of lasting consequences of compliance-history rating rendered suit for judicial review moot. A. I. Divestitures, Inc. v. TCEQ, No. 03-15-00814-CV (Tex. App.—Austin June 2, 2016, no pet. h.) (mem. op.). A.I. challenged Commission’s “unsatisfactory” compliance-history rating for 2013. The sole basis for the rating was an agreed judgment that settled an enforcement action brought by Commission. The trial court granted a plea to the jurisdiction, concluding that the rating had been superseded by the subsequent year’s rating and thus mooted the dispute. A.I. argued that the “unsatisfactory” rating continues to have current, detrimental consequences. The court of appeals determined A.I. failed to show continuing detrimental consequences of the rating and concluded the case was moot. Further, the court concluded the exceptions to the mootness doctrine did not apply. The AUSTIN LAWYER court affirmed. AL AL SEPTEMBER 2016 | AUSTINLAWYER

LEGISLATIVE UPDATE

Texas Far Behind on Mental Health Services: Is Help on the Way? BY GREGG KNAUPE, CONGRESS AVENUE PARTNERS

he great State of Texas fares very well in the rankings for best places to live, best state to start a business, and more importantly, best tacos and BBQ! However, when it comes to access to mental health services, Texas ranks a deplorable 45th. The major contributing factors to this low ranking are a shortage of mental health care providers, lack of access to state mental health beds and preventative services, and lack of coverage for behavioral health conditions, often referred to as mental health parity. On top of these current challenges, Texas is a fast-growth state, and our mental health care delivery

system falls behind on a daily basis. How many Texans currently need access to these services? Let’s do the numbers: An estimated 1,000,000 adults, or 5 percent of the Texas adult population, have serious mental illness; 519,368 children and youth, ages 17 and younger, are diagnosed with severe emotional disturbance; and 1.7 million veterans in Texas may need

behavioral health treatment. Further, there are approximately 32,000 children in Department of Family and Protective Services conservatorship, and it is estimated that more than 50 percent of those children have a diagnosed mental illness. More challenges are created for an already strained system not only because Texas is growing at such a rapid pace, but also because it lacks adequate access to crises and inpatient services. Currently, Texas is a minimum of 1,400 state beds short of meeting demand, with an additional 60 beds needed per year to keep up with population growth. What’s the good news? Texas’ state and local leaders are begin-

ning to recognize that access to appropriate mental health services is one of the greatest, if not THE greatest, public health crisis in the state. The Texas Legislature has responded with major legislative initiatives in recent legislative sessions. They have increased funding for mental health services and passed workforce development legislation, including loan

repayment assistance for psychiatrists, psychologists, and other mental health care providers. In addition, during the last legislative session lawmakers directed 18 state agencies to work collaboratively to develop a five-year plan to address behavioral health and coordinate expenditures. The first part of that plan was recently released. It outlines the various behavioral health programs, gaps in services, and recommendations for how to better provide care in Texas. In an effort to prioritize the issues related to mental health care services, Texas House Speaker Joe Straus created the House Select Committee on Mental Health, which has been holding hearings on all things mental health, as well as behavioral health issues. Every practicing attorney knows the high demands of the legal profession. These demands, unfortunately, can lead to mental illness. While our elected officials work to improve access to critical mental health care services, please do not delay in seeking care from a mental health professional, should you find yourself suffering from depression or a related mental illness. There is help. There is hope. The Austin Bar and the State Bar of Texas offer several avenues for attorneys who need help. The Austin Lawyers Wellness Group is a confidential monthly education group for lawyers, judges, and law students seeking help while healing from depression, addiction, job stress, anxiety, and other mental health issues. The group meets on the first Monday of each month (except September) and features a 45-minute presentation by an expert in the mental health field, and 30 minutes of peer support discussion. For more information, contact Cameron Vann, cameron.vann@texasbar.com. The Texas Lawyers’ Assistance Program (TLAP) provides confidential help for those in the legal profession who have problems with substance abuse and/or mental health issues. Visit their website at

Congress Avenue Partners is comprised of principals Eric Woomer, Eric Wright, Buddy Garcia, and Gregg Knaupe (pictured above). The firm offers strategic legislative advice and political counsel. They are located next door to the Austin Bar Association on the 7th floor of 816 Congress.

texasbar.com/tlap for more information, or call 800.343.8527, any time of the day or night. The Austin Bar Foundation also offers the Justice Mack Kidd fund to provide financial assistance for counseling and medical treatment on a short-term basis for Austin attorneys suffering from depression or a related illness. The fund resides under the umbrella of the Austin Bar Foundation in cooperation with the Austin Bar Association and Texas Lawyers’ Assistance Program. You can download an application at austinbar.org/for-attorneys/assistance-programs. Applications are strictly confidential. Our profession has stepped up to recognize the importance of making these services available. It’s nice to see the Texas Legislature is working AUSTIN LAWYER to do the A same. L AL SEPTEMBER 2016 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN KATIE FILLMORE BOWMAN AND BROOKE

AYLA Leaders and Accomplishments: Past, Present, and Future

s I start off my year as AYLA president, I’ve been thinking back to the great success AYLA has had over the years.

THE IMPACT OF LEADING We’ve had some really impressive leaders who have used their AYLA involvement as a springboard into even greater accomplishments and leadership roles. I reached out to some past AYLA presidents to get their thoughts on their greatest accomplishments with AYLA and what they got out of their involvement.

Justice Cindy Olson Bourland Justice, Texas Third Court of Appeals; 2000-2001 AYLA President During my term as AYLA president, I am most proud of the first-place award of achievement we won, beating out Houston and Dallas! On a personal note, that year is etched in my memory because my mother and husband both died of cancer and the Bar (board, staff, volunteers, colleagues) was incredibly supportive and kind to me, even putting a memorial bench in Wooldridge Park. The kindness and professionalism I observed dispels every negative stereotype about lawyers and speaks to the caliber of our bar. Through my involvement with AYLA, I established lifetime friendships.

Judge Elisabeth Earle Presiding Judge, Travis County Court at Law #7; 2002-2003 AYLA President 22

AUSTINLAWYER | SEPTEMBER 2016

During my term, AYLA won first place from TYLA for putting together the Spanish version of the Family Law brochure and also received second place from TYLA for our Lawyers as Leaders program. In addition, we held the UT Networking program. I am very proud of all of these programs. I believe the greatest gifts I received because of my involvement in AYLA and the Austin Bar are the cherished lifelong friendships with the incredible staff and fellow board members.

The most rewarding part of my involvement is the many lasting friendships, plus leadership and service experience that proved to be helpful preparation for the future.

Justice Bob Pemberton

David Whittlesey

Justice, Texas Third Court of Appeals; 2003-2004 AYLA President

Partner, Andrews Kurth; 2004-2005 AYLA President

As AYLA president, I focused on encouraging and facilitating young lawyer service engagement in the larger community. Initiatives ranged from providing pathways to volunteer service opportunities with local nonprofits, to operating an after-school youth-mentorship program, to securing discounts for AYLA members with the various local arts support organizations for young professionals.

In my year as president we started two new awards from AYLA, the “Outstanding Alumnus Award” and the “Outstanding Mentor Award.” I recall vividly our first event where the awards were given out at a Texas Hold ’Em poker tournament to the inaugural recipients, Judge Lee Yeakel (Outstanding Alumnus) and David Sheppard (Outstanding Mentor). For the outstanding alumnus award, it

We’ve had some really impressive leaders who have used their AYLA involvement as a springboard into even greater accomplishments and leadership roles. was important to me and to our Board at the time to ensure the organization recognized those who had come before us who had helped form the organization into the Austin institution it has become, and to honor them for their accomplishments as alumni of the organization. And for the mentor award, we wanted to ensure that great mentors (like David Sheppard and others who received the award after him) were recognized for the important service they provide to our profession and specifically to our young lawyers in Austin. Through my AYLA involvement, I enjoyed the chance to give back to the community and to the legal profession, and all along the way I was making lifelong friends who remain my friends today.

AUSTIN YOUNG LAWYERS ASSOCIATION

Mike Golden Managing Partner, Boulette Golden & Marin; 2010-2011 AYLA President Thanks to the amazing work of Kristin Etter, the very first version of our Re-Entry Project booklet was published during my term. It was such a great project because it was a way to help people who had been involved in the legal system in a negative way and give them assistance in moving forward. The Re-Entry Project was later published in Spanish and then made into a video, so it is a project that has endured over the years. Through my involvement with AYLA, I met some great friends, learned a lot about the practice of law and service to the community, and had a lot of fun.

Adam Schramek Partner, Norton Rose Fulbright; 2011-2012 AYLA President AYLA’s greatest accomplishment during my term was bringing Bar & Grill back as a fundraising event for the AYLA Foundation. Bar & Grill is a wonderful Austin tradition

that now helps raise money to fund AYLA’s many nonprofit endeavors, like Holiday Baskets and the Women’s Resource Fair. AYLA helped me get connected with colleagues across Austin who I otherwise would never have met. It provided an important outlet for community and pro bono service.

Kennon L. Wooten Partner, Scott Douglass & McConnico; 2012-2013 AYLA President I value each AYLA event and program, including the ones implemented before and after my term as AYLA president. But the program nearest and dearest to my heart is AYLA Day of Service because it (a) brings so many members of our community together to do important work for people in need, (b) helps people to remember the important work and teachings of Martin Luther King, Jr., and (c) bridges social divides and, in the process of doing so, increases understanding and compassion. I have gotten many things out of AYLA involvement, including

a consistent source of meaningful community-service options, great friendships, and a firm commitment to strive to represent the State Bar of Texas in a way that will help people to understand the good things lawyers do to improve their communities.

David Courreges President, Courreges PC; 2013-2014 AYLA President AYLA’s greatest accomplishment during my term was starting the Leadership Academy. It was a collaborative effort between AYLA and the Austin Bar that has helped identify and bring together so many of our current and future Bar and community leaders. AYLA helped me further develop my love for the Austin community, and fostered my desire to be more involved.

INSPIRED TO SERVE? All of these past leaders have gone on to hold very impressive positions and continue as leaders in the community. I feel honored to be a part of such an impressive group.

While these are big shoes to fill, I hope to continue AYLA’s history of community service, rewarding programing, and meaningful networking opportunities. For those interested in holding a leadership role in AYLA, I encourage you to seek out those opportunities. We are currently looking for committee members for all of our committees. Additionally, participating in the Leadership Academy is another great way to learn more about the organization and find opportunities to get more involved. Look for Leadership Academy applications this fall. While each of our past leaders highlighted a variety of favorite projects, most all recognized the value of the friendships they developed through AYLA or the opportunities to help the community. I have to agree; AYLA involvement is a great way to establish a strong network in the legal community and give back through AYLA’s many philanthropic efforts. I hope readers will be reminded of the value of their own involvement in the organization and encourage AUSTIN LAWYERyoung lawyers to get involved. AL AL

AYLA Programs Awarded at Bar Leaders Conference

ongratulations to the Austin Young Lawyers Association for its outstanding programming during the 2015-2016 bar year. At the 2016 Bar Leaders Conference, AYLA received the following awards: • Third Place, Large City Best Service to the Public – Austin Reentry Ambassador Program; • Third Place, Large City Comprehensive – Overall excellence in serving the profession and community; and • Third Place, Large City Best Service to the Bar – Ethics CLE Bus. In addition, Lisa Rush, manager of the Travis County Law Library and Self-Help Center, and recipient of the AYLA Liberty Bell Award,

was awarded the statewide Liberty Bell Award. The Bar Leaders Conference is a two-day training program hosted by the State Bar of Texas, the Texas Young Lawyers Association, and the Texas Access to Justice Commission that joins leaders from the Texas Bar, TYLA, Access to Justice Initiatives, and local bar affiliates such as the Austin Bar and AYLA to coordinate, train, share best practices, and address common concerns for volunteer bar leaders. Thank you to AYLA President Katie Fillmore, President-Elect Austin Kaplan, and Directors Stacie Bennett, Erin Smith, and Tom Jacob for representing AYLA at the Bar Leaders AUSTIN LAWYER Conference. AL AL

ABOVE: (from left) Austin Kaplan, Stacie Bennett, Katie Fillmore, Erin Smith, and Tom Jacob accept awards at Bar Leaders Conference; RIGHT: (from left) Priscilla Camacho, TYLA chair, with Liberty Bell Award winner Lisa Rush, and Barrett Thomas, TYLA president

SEPTEMBER 2016 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

he Austin Young Lawyers Association organizes projects and events throughout the year. Join your fellow young attorneys in one or more of the following projects. Visit ayla.org and sign up for a committee today!

SERVICE TO THE PUBLIC Fall 2016: Holiday Programs: The Holiday Baskets project utilizes the resources of the legal community to provide special holiday groceries, as well as gifts and informative materials, to Austin-area families in need. Reindeer Games is an annual holiday celebration for foster, economically disadvantaged, and/or special-needs children. To maximize efficiency, these projects have been combined so that all families who receive holiday baskets will have their children invited to the Reindeer Games event and vice versa. Spring 2017: Women’s Resource Fair: This is a comprehensive, all-day event that provides homeless and battered women a variety of free resources and services, including legal assistance, medical services, job skills, educational counseling, social services, veterans’ assistance, shelter referrals, mental health counseling, spiritual care, child care, breakfast, lunch, and transportation. 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. The community service events provide an opportunity for lawyers to make a relatively small time commitment, usually just a few hours on a single day, while being exposed to various charitable organizations and meeting other members of the legal and non-legal communities.

AUSTINLAWYER | SEPTEMBER 2016

SERVICE TO THE BAR/ MEMBERS Fall 2016: Judicial Reception: This committee hosts a reception for AYLA members to interact with the Judiciary. Ongoing (monthly): Continuing Legal Education/ Judicial Program: This committee provides Continuing Legal Education for AYLA members. Docket Call: This committee hosts a monthly happy hour for AYLA members. This is the gateway event for many members, as nearly everyone’s first experience with AYLA is a Docket Call. Help is needed in securing sponsorships, checking in members at the door, and greeting guests. Membership Committee & AYLA Ambassadors Program: This committee promotes AYLA membership, grows the membership, and encourages membership renewal. The AYLA Ambassadors program will involve designated “hosts” at each AYLA event to give newcomers someone to talk to and inform them about AYLA programming.

FUNDRAISING Fall 2016: Bar & Grill: This committee presents an annual musical production featuring an all-lawyer cast. The show has been produced for more than 20 years! Committee members will work with the venue to reserve a date for the event, solicit donations, cast the parts, create the program for the show, organize the pre-show reception and cast dinner, and attend the show. Tailgate Fundraiser: This committee will plan and host the first AYLA tailgate. The hope is for this fundraiser to become an annual event. Spring 2017: Runway for Justice: A fashion show fundraiser showcasing lawyer and law student models, along with a silent auction. A portion of the proceeds go directly to the Women’s Resource Fair.

JOINT PROGRAMS Spring 2017: Bench Bar: Annual daylong CLE hosted by the Austin Bar and AYLA. Ongoing: Project Reentry Ambassadors: Help present and distribute the Project Reentry video in and around the community. AYLA re-

cently completed filming a Spanish version of the Project Reentry guide, which provides advice to people exiting the criminal justice system. Topics include job readiness, housing, and reuniting with family members when appropriate. While the production of the video was a great success, it has not been widely distributed advertised to AUSTINorLAWYER L AL those who need it A most.

UPCOMING EVENTS THURSDAY, SEPTEMBER 15 Judicial Reception 6 to 8 p.m. Four Seasons Hotel, 98 San Jacinto Blvd. MONDAY, SEPTEMBER 26 Bar & Grill Casting Call 6 p.m. Austin Bar, 816 Congress Ave., Suite 700 Are you a lawyer who has secret (or not so secret) singing, dancing or acting talents? Do you sit at your desk and think of all of the set designs you might build if you just had the opportunity? If so, come join us as part of the cast or crew of this year’s Bar & Grill show. Need any additional information or have any questions? Email Amanda Arriaga at missmanda01@gmail.com. THURSDAY, OCTOBER 20 AYLA Docket Call 5:30 to 7 p.m. Location TBD

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SOCIAL MEDIA SAVVY

How to Post Effectively BY RACHAEL K. JONES, THE CARLSON LAW FIRM, AND MEMBER OF THE AYLA BOARD OF DIRECTORS

Some may seem rather basic, but that’s really the point—these are simple strategies that don’t take much time or effort to implement, but the return on investment can be huge.

t’s no secret that social media is everywhere, and its impacts are undeniable. Yet survey results consistently indicate that attorneys lag woefully behind when it comes to fully leveraging the power of social media in the practice of law. This series will offer both general and platform-specific social media tips and tricks, identify some of the potential ethical issues associated with social media and what attorneys can do to avoid them, and provide insights on online presence and digital branding. Social media can be an excellent source for client development, case investigation, career development, and networking. It also has tremendous potential as an educational resource. According to the American Bar Association’s 2015 Legal Technology Survey, lawyers spend an average of 1.6 hours each week using social networking sites for professional purposes. So why not make the most of that time? Let’s start with some general social media posting tips that can be applied on virtually all platforms.

Be Slow and Steady. Make posts at regular intervals. You don’t have to post every single day— quality trumps quantity here. It is much better to keep your social media activity level limited but consistent. And if you’re like me and tend to work in spurts, you may want to look into a “social media management” tool, such as BufferApp or HootSuite, which allows you to write your content ahead of time and then schedule it to be posted automatically. Don’t Reinvent the Wheel. There’s no rule that says everything you post has to be brilliant and original. Don’t be afraid to take advantage of opportunities to repost content from others. As an added bonus, they may be inclined to return the favor later! Got a law-related blog, or “blawg?” Consider pushing your blog posts through your social media channels as well. Do you have questions related to lawyers and social media, or a particular topic you’d like to see addressed? Please feel free to share yourAUSTIN thoughts LAWYER by emailing rkjones983@gmail.com. AL AL

out—or call the State Bar’s Ethics Helpline at 1.800.532.3947.) And always reply to others’ comments on your posts! Provide Helpful Information. Don’t be fooled by the term “status

The most effective social media posts are those that provide relevant, timely information on a specific topic to which other social media users can relate. Engage in Conversation. One of the biggest adjustments for those just getting started in social media is that, unlike traditional distribution channels such as television, newspaper, or radio, social media is not a one-way street. Start a conversation about trending or emerging issues that are relevant to your practice and/or clients. Comment on related posts. Ask for people’s opinions. Share your own opinion if appropriate. (Note: Do NOT offer anything that could be construed as legal advice. If in doubt, leave it

update.” With few exceptions, social media posts that do little more than announce a lawyer or law firm’s most recent developments tend to be, well, uninteresting. The most effective social media posts are those that provide relevant, timely information on a specific topic to which other social media users can relate. Check Your Facts. One of the quickest ways to lose credibility on social media is by having poor content. Be sure the information you provide is useful, accurate, and up to date.

2017 MEMBERSHIP DIRECTORY COMING SOON A B A USTIN

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If you would like your photo included, send your headshot to Carol Tobias, carol@austinbar.org, by September 15. Photos must be at least 300 dpi for print.

ONLINE DIRECTORY The online membership 2014 Membership Dire ctory directory has recently been reformatted so the public may search for an attorney by practice category, zip code, name, or firm. Please let Carol know if you have any changes or updates for the online directory.

PRINT DIRECTORIES AVAILABLE IN EARLY 2017 SEPTEMBER 2016 | AUSTINLAWYER

ENTRE NOUS

“Louie, This is the END of a Beautiful Friendship” BY CLAUDE DUCLOUX I am in no way trying to make a political statement with these disclosures. I am baring my soul and lamenting the death of an ideal I have treasured. Something which kept me going in my nerdy past. I’ve arrived at the painful realization that my faith was misplaced. And it hurts.

hem. It’s hardly a shock to anyone who knows me when I reveal I was a nerd growing up. I was always the youngest in my class, short, playing Bach Inventions rather than baseball, but with a vaudevillian sense of mischief. A smart-aleck, class-clown who could perform dead-on impressions of every nun at my grammar school (Our Lady of Eternal Swelling). And that was just for starters. The complete repertoire of every gifted class clown included mimicry, a bit of ventriloquism (especially for bathroom noises), and fearless insults for the pompous, the air-heads, and the tattle-tales. Now, these entertaining talents resulted in numerous poundings

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AUSTINLAWYER | SEPTEMBER 2016

by the objects of my scorn. I had a knack for teasing the rich kids with their fancy Jack Purcell blue-tip tennis shoes1 and name-brand blue jeans (devoid of the iron-on knee patches which extended the life of mine). Two things kept me going: The laughter and delight of my classmates, and the thought that somehow, someday the world would even us up, thus respecting my Type-A determination for honest achievement, equality, and respect. You know—the Hollywood movie ending. But, clearly, in some respects, I was a complete Pollyanna. Enter Donald Trump. Obviously, this is the grown-up antagonist, the fulminated bully of every class nerd. The rich guy who really doesn’t need to know anything, who gets the girls, the fast cars, and the adulation—while skipping the final exam, and copying someone’s homework. This is Biff Tannen from Back to the Future running for president. He brags on everything he has and does—even his own “perfect” health (yet relying on some unknown foot ailment—he actually can’t remember which foot—to avoid military service). He’s made a career victimizing everyone, everything, avoiding honoring debts and commitments, changing positions faster than Texas weather, and yet receives adulation of the masses. Just when I believed that there must be some remaining politicians with the sheer force of character to refuse endorsement, I’m shocked to see them falling in behind him. No! How can this be? How does this locker-stuffer in Jack Purcells defy all that is decent

Two things kept me going: The laughter and delight of my classmates, and the thought that somehow, someday the world would even us up, thus respecting my Type-A determination for honest achievement, equality, and respect. You know—the Hollywood movie ending. and come out on top? How is “Biff” doing this? I’ve heard all the theories: the anger at the gridlock in Congress; Trump “tells it like it is”; we’re tired of politicians; a rebellion against political correctness. The problem is, we see time after time, that you can’t reason with a Trump supporter, they are at “Epistemic Closure”— when psychologists say no amount of reason or logic will affect their opinions. [See, Entre Nous – June 2015.] Even Ted Cruz, master debater, couldn’t sway Trump supporters in one dramatic confrontation, when he tried logic, and supporters simply kept screaming “Trump! Trump! Trump!” in Cruz’s face to block out any attempt at dialogue. So be it. But this changes my world. As a fan of the great American Hero in cinema, a place where it is noble, preferred, and expected to embrace the American Dream with a fist-pumping ending, this changes everything. So, I think we’ll need to shoot a ton of new footage to reflect the Trump Presidency. In addition to Biff Tannen owning Marty’s time-traveling DeLorean, these movies should be revised: Casablanca will now end with Captain Louis Renault turning over Rick, Ilsa, and Victor to the Nazis, where they are sent to die in prison camps. Capt. Renault explains: “Zey were all illegal immigrants.” The Longest Day will end with Roosevelt carpet-bombing Paris because he understands that “you have to do what you have to do to find Nazis, and there were plenty in Paris.” You’re welcome, France. Citizen Kane ends with Charles Foster Kane taking over the Rosebud sled company, and selling its

assets while building a new foreign factory in Austro-Hungary, where he met his fourth wife. Mr. Smith Goes to Washington has a more realistic ending when Claude Rains’ crooked Senator Joseph Paine convinces Jimmy Stewart’s bumpkin Senator Smith to dump the Boy Scout Camp in favor of Boss Taylor’s dam project (and casino) and Smith gets magnificently wealthy. Hey, Boy Scouts: You’re Fired! It’s a Wonderful Life ends with a scene of George Bailey’s wife, Mary, in bankruptcy court, after George drowns and Potter takes down the savings and loan. Potter wears an oddly shaggy orange toupee over his evil grin in the final scene. Oh yeah: John Wayne gets killed in every movie. Early. Okay, I’m ready now. Let’s just abandon the “Shining City on a Hill” speech by Reagan, and get ready to accept reality. Of course, it’s not all bad. I can’t wait to see that amazing wall. The Chinese are going to be sooo jealous. AUSTINLAWYER Keep the faith. I promise A I will. L AL Footnote: 1 Jack Purcell was a popular tennis player with one of the first “signature” athletic shoes in the early 1960s, notably identified by the durable thin blue line on the toe, ostensibly to protect against wear as you served your 100 mph aces. Their $11 cost was quite expensive in 1964.

Disclaimer: The views expressed in Entre Nous are intended to be humor and satire, and are not the views of the Austin Bar Association, it’s officers or Directors, or anyone with an open-carry permit, and are solely the views of the writer.

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AUSTINLAWYER | SEPTEMBER 2016

DEVELOPING YOUR PRACTICE

Setting Goals in Your Law Practice BY SAM COLLETTI, NOELKE MAPLES ST. LEGER BRYANT

his is the first article in a new series on Developing Your Practice. The series will explore topics relating to a) starting your firm; b) client relations and development; c) growing as a lawyer; and d) management. When I started my solo practice I had only one goal: Survival. I was only three years out of law school, I only kind of knew what I was doing, and the economy was careening down into the Great Recession. I had decided to start my own practice, but I had only a vague idea how to do it. My last day at my old job was a Friday. On Saturday I played volleyball all day. (Denial is weird). On Sunday I started calling a handful of lawyers I knew who had their own solo practices, telling them what I was up to, and asking for their advice. On Monday I leased an office, and on Tuesday I got my first client. I had a borrowed office chair, a borrowed folding plastic table, and a second-hand laptop. Everything happened really fast. I was in the black that first month and every month thereafter, due in large part to embarrassingly low overhead. That early success came not because of any sophisticated goal-setting process, but rather because I just jumped into it and didn’t overthink anything. That was all well and good at that point in my life. I was not yet married, no kids, no mortgage. I could

(and did) work ridiculous hours. I got bogged down in administrative work. I failed to recognize which things I needed to delegate. I made some bad business deals with certain clients. But none of these were fatal mistakes. Life progressed, expenses increased, the cases got harder, and the expectations got higher. I was about six years into my career when I began to see that “just showing up and working hard every day” would give me neither the professional success I wanted nor the work-life balance I needed. The turning point was when I began working with my business coach, Martha Lynn Mangum. She asked me to do something that I initially thought was quixotic—she asked me to write down, very specifically, what I wanted my life and my law practice to look like in 10 years. Coming up with a 10-years-ahead visualization was daunting. It carried with it a deep implication of responsibility, and it necessitated heavy and deliberate soul-searching. The magic comes from melding life-plan with work-plan. How many kids would I have in ten years? Would my wife work too? Which neighborhood would we live in? Would my kids go to public school? Where would we go on vacation? These seem like odd questions to ask in the context of setting goals for your law practice—and I certainly had to suspend my skepticism—but

they are exactly the kinds of questions you must start with because they create the bridge between abstract concepts (e.g. billed hours per month) and real life outcomes (e.g. buying that house in your ideal neighborhood). In other words, setting goals for your law practice starts with asking yourself “why.” When you put the time into figuring out exactly what you want your life to look like, it becomes far easier to define what you need from your law practice and develop the steps to get there. Here are six things to consider in setting goals for your practice: 1. To start your solo practice, hit the ground running. Very few mistakes are unfixable. Use existing resources like the State Bar’s Law Practice Management Program: texaslawpracticemanagement.com. 2. Think big. Start with the vision of your ideal practice. Find the connections between work goals and life goals. Involve your spouse. Begin 10 years out and work backwards from there. What does year nine need to look like? Year five? Year two? Next month? Next week? 3. Write down your goals. If they aren’t on paper, they don’t exist. Give yourself time to develop your goals. Allow yourself to edit them. Tell people about your goals. Saying it out loud to others makes it much more real. Get an accountability partner. 4. Remember that everything

Sam Colletti about the way you run your practice is a choice. Yes, the choices have consequences, but don’t assume you have to do something a certain way “just because.” On the other hand, don’t reinvent the wheel. If similarly-situated others have success with something, you probably will, too. 5. Once you have a goal, commit to it. If you stay the course and it’s just not working, try something else. You can always make course corrections. 6. Make your goals SMART: specific, measurable, action-based/ assignable, realistic/relevant, and time-sensitive. Finally, remember if you are doing any kind of legal work, you already have your own practice. So opening your own solo practice is more of an evolution than a revoluAUSTIN LAWYER tion. GoodAluck! L AL

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