BY JUDGE BRENDA P. KENNEDY, 403 rd DISTRICT COURT, TRAVIS COUNTY A s a person who has literally spent most of their adult life within the confines of the Travis County Courthouse, the thought of living a “normal” life outside its walls is quite daunting to say the least! I began my courthouse life at the Travis County Courthouse in 1982 as an assistant district attorney. I found my niche in trial advocacy, and enjoyed, practiced, and nurtured it until ascending to the bench in late 1987. My “insider’s” view of life, from the perspective of my ju dicial involvement, includes both positive and negative experiences. I have been able to observe and learn much about people from all walks of life and backgrounds, from a prime position with a “ringside seat,” observing many experiences that others might not imagine or believe possible. But, for those of us who have this level of involvement, it provides a truly unique life experience, whether it is good news or not. As an in tegral part of the criminal justice system, judges bear witness daily to the many factors, components, and nuances that not only affect decision-making, but also impact lives forever. Balancing the weight and equity of the decisions that must be made oftentimes carries quite a heavy burden. One thing that must be recognized is that the decisions made profound ly affect human lives, families, future, economics, and opportu nities for all affected—sometimes for generations to come. It is painfully clear that import ant strategies and decisions that might be made by counsel, the court, the accused, and others are impacted by various consid erations and affect each person differently depending on many factors which might include: socio-economic status and con dition; familial and community support systems; mental health treatment and availability; com munity impact and involvement; the historical circumstances that many might face in assessing risk levels and behaviors. The existing relationships and support be tween people and their respective communities, local law enforce ment practices and application, and lastly, but certainly not in the least, the heavy impact of po litical and legislative actions and agendas, affect the entirety of how and whether our system of justice functions effectively with the ability to address the critical concerns of our community. Throughout our state there are vast differences, depending on where you live, in govern mental involvement from a local, county, and state level, regarding many of these issues that must be addressed. These concerns are critical and inherent in our ability to achieve equity and fairness for all impacted. Obviously, budget concerns drive many decisions, some without respect to the economic and social status and/or capabilities of many of those involved. From my vantage point as a member of the judiciary, it has been quite a 35-year rollercoaster ride, and I have had the privilege and op portunity to have a ringside seat in observing intricacies involved in our system of government, as well as witnessing many peaks and highlights—the progress that can be made which brings us all a sense of pride. However, I also recognize the valleys that reach deep, causing great concerns and posing articulable challenges for the future success of our criminal justiceFromsystem.ahistorical standpoint, I never dreamed or really set my ambitions on becoming a judge. After graduation from the Univer sity of Texas at Austin, I wanted to pursue a career as a newscast er. After about six months of making coffee in the position of a new hire with dues to pay, I decided I did not want it badly enough to pursue! I then set my sights on law school, considering a career in civil rights. Upon en try to the UT School of Law and participation in various intern ships, I thought I would either pursue a career in oil and gas law, which I embraced and understood somehow, or, on the opposite end of the legal spectrum, in criminal Judge Brenda Kennedy has long presided over the 403rd District Court. The University of Texas Law School graduate has also worked in both the City Attorney’s and District Attorney’s offices. She is now approaching retirement after 35 years on the bench.
Embracing Life Beyond the Bench
continued on page 8
SEPTEMBERaustinbar.org2022 | VOLUME 31, NUMBER 7
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CONTENTS INSID E austinbar.orgONLINE AU ST INL AW Y ER AL AL SEPTEMBER 2022 | VOLUME 31, NUMBER 7 SEPTEMBER 2022 | AUSTINLAWYER 3 NEWS & ANNOUNCEMENTS 2023 Jury/Non-Jury Schedule Posted Travis County Civil District Courts Schedule Available LGBT Section: Law Student Scholarships Available! CONNECTIONS ONLINE austinbar.org EMAIL sonta@austinbar.org MAIL Sonta Austin,712AustinManagingHendersonEditorBarAssociationW.16thStreetTX78701 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar TEXT austinbar to 313131 for up-to-date news + info Message & data rates may apply. FOLLOW instagram.com/theaustinbar STREAM @AustinBarAssociation FEATURED ARTICLES 1 Embracing Life Beyond the Bench 6 Get Connected with the Austin Bar 6 Join the Austin Bar’s 100 Club for the 2022-23 Bar Year 12 Congratulations to Austin Bar Member Beryl P. Crowley 14 Congratulations to Austin Bar Member William Whitehurst, Jr. 20 Recognizing Challenges and Showing Support 21 Why I Still Love Being a Lawyer 22 Judge Karin Crump Wins State Bar Award 26 The Austin Bar Foundation is Amazing! SEPT 15 New Courthouse Update CLE Practice Tips and What to Expect Virtual, 7:30 - 8:30 a.m. UPCOMING EVENTS IN EVERY ISSUE 17 Be Well 24 Briefs 25 Allied Bar Update 28 Third Court of Appeals Civil Update 30 Third Court of Appeals Criminal Update 31 Federal Civil Court Update 32 Section Spotlight 34 AYLA DEPARTMENTS 10 President's Column 18 Member Spotlight 33 Opening Statement 38 Entre Nous RISK-TAKING CAN BE FUN... …BUT NOT WHEN IT’S A MALPRACTICE CLAIM. Personal Injury Claim* • Lawyer sued for allowing a default judgment taken against client • Damages of up to $4,000,000 sought ($200,000 policy limit) • TLIE settled case for $300,000 INSURED BY TLIE IF NOT INSURED Deductible $1,000 Defense costs $10,000 Amount over policy limit + $109,000 Settlement + $300,000 Total out-of-pocket = $110,000 Total out-of-pocket = $310,000 * Based on actual claim handled by TLIE. FIND OUT MORE: TLIE.ORG or (512) 480-9074 Since 2008, the Go-To Digital Forensics Firm in Texas Identify | Recover | Preserve Analyze | Testify (512) 895-9555 | www.r3forensics.comcontact@r3forensics.com
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Austin Lawyer (ISSN #10710353) is published monthly, ex cept for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Associa tion and the Austin Young Lawyers Association, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas.
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POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Associ ation. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors; legisla tion affecting Austin attorneys; and other issues impact ing lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District of Texas Federal Court and the Texas Third Court of Ap peals, CLE opportunities, members’ and committees’ ac complishments, and various community and association activities. The views, opinions, and content expressed in this pub lication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Aus tin 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 ad vertisement in this publication should not be construed as such an Contributionsendorsement.to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be pub lished. Please send all correspondence to the address listed above. For editorial guidelines, visit austinbar.org in the “About Us” tab.
AUSTIN BAR ASSOCIATION
Amanda Arriaga President Justice Chari Kelly President-Elect
Blair Leake President Sarah Harp President -Elect Emily Morris Treasurer Ciara Parks Secretary Rachael K. Jones Immediate Past President
OFFICIAL AUSTIN BAR
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• 100 Club “Members of the Week” listed on a rotating basis in Bar Code, emailed weekly to approximately 3,500 Austin Bar members.
Martin, Disiere, Jefferson & Wisdom, McGinnisL.L.P. Lochridge L.L.P.
Noelke Maples St.Leger Bryant, LLP Osborne, Helman, Knebel & Scott, LLP
BENEFITSMEMBER Free CLEs Discounted CLEs Online CLE Library Access Substantive Law Sections Facilitated Networking Pro Bono Programs Austin Lawyer magazine Weekly Bar Code newsletter Community Service Opportunities Committees and More!
TravisOffice County Office of Child Representation
Gjerset & Lorenz, L.L.P. GoransonBain Ausley Graves, Dougherty, Hearon & Moody Gray & Becker, P.C. Hanna & Plaut, L.L.P. Herring & Panzer, L.L.P. Hopper Mikeska, PLLC Howry, Breen & Herman LLP
The Supreme Court of Texas Third Court of Appeals
Kirker Davis Kuperman, Orr & Albers, P.C. Lloyd Gosselink Locke Martens,LordTodd
Firms with 100% Bar Membership Enjoy Special Recognition YOUR FIRM CONNECTED! P ut your firm at the forefront of what’s happening in the legal community by becom ing a member of our 100 Club. Firms of four or more lawyers with 100% attorney membership in the Austin Bar Association are eligible for membership in the 100 Club. Join now and get the visibility your firm deserves! Members of the Austin Bar 100 Club receive special recogni tion throughout the year in the following ways:
Texas Department of Motor Vehicles
Travis County District Attorney’s
Mitchell, Williams,Selig, Gates & Woodyard P.L.L.C. Munsch Hardt Kopf & Harr, P.C.
Soltero Sapire Murrell, PLLC
& Leonard
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Pillsbury Winthrop Shaw Pittman LLP
Become a 100 Club member today! Contact Membership Director Carol Tobias at carol@ austinbar.org to get started. Special thanks to the following Austin law firms for supporting the initiatives, programs, and practices of the Austin Bar Association with 100% attorney membership in 2022-23.
The Chapman Firm PLLC
Join the Austin Bar’s 100 Club for the 2022-23 Bar Year
Travis County Attorney’s Office
Travis County Civil Court
AUST INL AW Y ER AL AL 100
Coffin Renner LLP Coldwell Bowes L.L.P. Cook Brooks Johnson PLLC Cornell Smith Mierl Brutocao Burton, LLP Dalrymple, Shellhorse, Ellis & Diamond, L.L.P. Davis & Wright, P.C. DeShazo & Nesbitt L.L.P. DuBois, Bryant & Campbell LLP
City of Austin Law Department
• Firms featured on the mem bership page of the Austin Bar website, with links to the firms’ websites.
• Names of firms published an nually in the September issue of Austin Lawyer , distribut ed to every attorney in the Austin area.
AUST INL AW Y ER AL AL
Streusand, Landon, Ozburn & Lemmon, LLP
Texas Rio Grande Legal Aid
Boulette Golden & Marin L.L.P. Bracewell LLP Brim, Robinett Cantu & Brim Brink Bennett Pargaman Atkins & BurnettSanchezTurner, PLLC Burns Anderson Jury & Brenner L.L.P. Butler Snow LLP Cain & Skarnulis PLLC Cantilo & Bennett, L.L.P. Chamberlain McHaney
Jackson, Sjoberg & Townsend Kaplan Law Firm, PLLC Kelly Hart & Hallman LLP
Thompson Salinas & Londergan, LLP
Get Connected With the Austin Bar! Join Now and Receive the Rest of 2022 for FREE J oin the Austin Bar for 2023 and get full mem bership benefits for the rest of 2022 for FREE! Get information on discounted and free CLE, participation in the Austin Bar’s specialized law sections, facilitated networking with judges and other attorneys, news and information in Bar Code and the award-winning Austin Lawyer, community service opportunities, pro bono programs, and more. Your Time is NOW! To join, go to austinbar.org.
McKool Smith, P.C. McLean & Howard, L.L.P. Metcalfe Wolff Stuart & Williams, LLP
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Potts Blacklock Senterfitt, PLLC Reed, Claymon, Meeker & Hargett, ReevesPLLC & Brightwell, L.L.P. Richards Rodriguez & Skeith, LLP
Travis County Probate Court #1 Weisbart Springer Hayes, LLP
Texas Comptroller of Public Accounts
Minton, Burton, Bassett & Collins
Scott Douglass & McConnico Shearman & Sterling LLP Slack Davis Sanger L.L.P.
Texas Workforce Commission
Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham & Jacob WrightWinsteadP.L.L.C.PC&Greenhill, P.C.
“Fifty years in business is something few professional services firms achieve. This is a good time to pause to reflect on the path we have traveled and thank those who have contributed to our success. But more than that, it is a time to turn with excitement and anticipation toward the next phase of RPC’s growth. The future looks bright.” - Ron Luke, JD, PhD │ 512.371.8000
RPC assists personal injury and commercial litigators through all phases of litigation, from framing discovery requests to expert testimony at trial. The firm provides a broad range of litigation support services, including independent medical examinations, neuropsychological evaluations, life care plans, analysis of lost earning capacity, vocational evaluations, business valuations, and medical bill analysis. Its consultants have particular expertise in health care litigation.
RPC’s staff includes certified life care planners, economists, certified vocational evaluators, legal nurse consultants, and certified public accountants. RPC works with a panel of board-certified practicing physicians specializing in areas such as physical medicine and rehabilitation, pain management, neurology, psychiatry, orthopedics, prosthetics, neuropsychology, and anesthesiology. RPC expert testimony has been accepted in federal courts and by state courts and administrative agencies in several states.
Celebrating 50 Years of Providing Litigation Support to Personal Injury Attorneys
Research and Planning Consultants, LP (RPC), an Austin-based consulting firm, is celebrating its 50th anniversary. Its president, Ron Luke, JD, PhD, shared its history and growth and gave his thoughts on what lies ahead for the growing firm as it embarks on its second half-century.
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“This year is special for RPC because it marks our 50th year in business,” said Dr. Luke. “It took a lot of hard work and tenacity to reach this milestone. I think a major factor in our longevity has been our ability to continuously adapt to the evolving needs of our clients and to take advantage of new opportunities.”
Judge Kennedy (center) along with daughters Mallore Ahmad (left) and Pilar Caldwell (right).
I began the 403rd Youthful Offender Support Court docket in 2011. I felt that there was a need to assist youth on felony probation who had no support system or family.
8 AUSTINLAWYER | SEPTEMBER 2022
ony probation between the ages of 17 and 25, who were willing to come to court and interact with me on a weekly or bi-weekly basis depending on their progress in the program. Participation was limited to 25 felony offenders, at any one point in time, that could be active on this docket.
With the assistance of the Travis County Community Supervision and Corrections Department, and a financial grant award from a private donor interested in youth rehabilitation and providing opportunities for that specific population, I set about nurturing, mothering, interacting, and hav ing this special docket for those that were willing to put in the work and effort. My fellow felony court judges made referrals for participation in the program, and I was able to maintain and effectuate the Youthful Offender Program which served to benefit all involved. They had the benefit of a direct line of conversation with the judge, and over time be came comfortable in expressing their feelings, opinions, and chal lenges. In addition to financial rewards and other incentives, we were also able to shorten terms of probation, which allowed many to exit the criminal justice system
law. I enjoyed criminal law immensely, thanks to then-pro fessors George Dix and Bob Dawson. I worked every year of law school and managed to land some interesting internships and opportunities. Some of the expo sure I gained led me to believe I might have a knack for trial advocacy. Thus my movement, upon passing the bar, to a job at the City Attorney’s office, where I was clerking at the time. After three months there, I moved to the District Attorney’s office as an assistant district attorney. I loved the trial work and did not even consider the judiciary as a career, until my then boss, Ron nie Earle, convinced me that it was time—socially, politically, and from a community standpoint—to add some diversity to the Travis County judiciary. It was at a time when I enjoyed some name recog nition from the many trials I had participated in. So, now, here I am—35 years later, approaching retirement, and looking forward to what lies ahead!
I so enjoy the intricacies of the jury-trial process and, as a person who has a background in trial advocacy, find them to be not only interesting, but often times legally challenging. It is thought-provoking to witness the things that are important to our community members reflected in their decisions as jurors—a priceless experience! It can also be quite a valley in a few instanc es, when some important or critical decision might be made in a hasty or emotional manner that the affects the entire life of the person accused. Luckily, in Travis County, I have not had to observe this often, but it is a fact of life which makes for some real “low lows” in embracing and accepting the laws that apply in many instances. However, we all must realize that community standards and tolerance levels are what the criminal justice system is based on in every community. So, the recognition of the critical nature and importance of our jury-trial system should and will alwaysPersonally,exist! I have been fortu nate to have firsthand knowledge of how individuals can change their lives in a profound way, just by putting forth effort and recog nizing and embracing weaknesses which, in turn, makes them more receptive to want to change. I had the opportunity to preside over our Travis County Drug Court for many years. When asked about some of the highlights of my judicial career, that would most certainly be one of them! To see people physically and mentally change within a year’s time is a rainbow in a sometimes-cloudy pattern of events in our justice system! To be able to walk through the ups and downs of ad dictive behavior, and see change with your own eyes, is truly a re warding experience. I can say that there can be positive results even when many believe a situation is hopeless due to the addiction. My fondest memories are not comprised of the politics involved in becoming or remaining a judge; nor are they in the dayto-day docket responsibilities of overseeing hundreds of cases over many years, which only allowed for minimal superficial contact with those individuals coming in and out of the courtroom for brief appearances. The daily stresses involved in our judicial respon sibility handling court-assigned dockets are entirely different than the opportunity to set aside time and secure resources that might be able to assist in affecting change in some systematic con dition or behavior that has been observed, but not addressed. My most rewarding experienc es have been with those whom I have had the opportunity to interact with and get to know as individuals where I can assist or facilitate a means of affecting some change in their behaviors, if indeed the person really wants to embrace change, but just needs a little push or assistance. Some may call it “tough love,” which it truly is! By far the most memora ble conversations and successes were those where I have been able, in some way, to facilitate appropriate interventions and treatment avenues for them which allows me to see them grow and make progress. Many transform themselves beyond what I would have thought possible! To watch the mental, and obviously phys ical, changes occur in a person who is admittedly a drug addict or who exhibits criminogenic behavior patterns, yet who wants to change and is willing to go through the rigors of a program, is profound!Ibegan the 403rd thoseprogramareidentify,wereonbeinglowly,family.supporttionontothere2011.CourtOffenderYouthfulSupportdocketinIfeltthatwasaneedassistyouthfelonyprobawhohadnosystemorRealisticaltheyhadaveryprobabilityofsuccessfulprobation.Theynothardtoastheremany.Thisembracedplacedonfel
Embracing Life Beyond the Bench
continued from cover
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much quicker than the term they were originally assessed. We celebrated achievements, sobriety, and stints of drug-free and crime-free behavior, and provided varied incentives for milestones achieved, as well as sanctions in appropriate situa tions of non-compliance. I became knowledgeable about each participant on a personal level, as they would contact me about accomplishments, fears, thoughts of engaging in other criminal behavior, and the associated struggles, including family situations not conducive to as childbirths and other matters I would not normally have the opportunity to discuss with those who I see on my general daily docket. I can attest to the fact that once you know an individual and understand their struggles, roadblocks, and the efforts genuinely employed to overcome those negatives, you do become quite a bit more thoughtful and concerned about their ultimate outcome and success and try to do everything possible within legal parameters to assist them in avoiding incarceration and other negative outcomes.
Offender Program. However, we enjoyed a successful non-recidi vism rate for those who did grad uate from the program. I’m quite proud to say that there have been many graduates who have not been re-arrested and who have also made notable life achieve ments, including high school diplomas, GEDS, vocational licenses, regular employment, and even college participation—one graduated with an engineering degree from Texas State Universi ty. I am so proud of them and of the vision I undertook to provide that program for those who were willing to participate. I view these participants as a part of my extended family and to this date continue to enjoy conversations, contacts, and updates on their progress on a regular basis. Currently, the pandemic situa tion and its aftermath (hopefully), has provided some challenges that we would not have otherwise projected. It seems that individual attitudes, as well as work ethics, have changed to some degree. In addition to the lessening of the size of the dockets for community standards and health reasons, some seem to lack the motiva tion to do the tasks necessary to bring them out of their current situation. My hope is that as we get back to normal, we retain some of the efficient and effective electronic advances made to our operational system. We have learned how to do some things better, believe it or not! I also hope that we can co-exist with all members of every facet of the bar in a professional, respectful, and collegial manner which will allow us all to work for the betterment of the overall Travis County crimi nal justice system. It is with great fondness that I remember my service to Travis County! As I approach my upcoming retirement from the bench, I look forward to travel, embracing hobbies, and voluntarily engaging in legal and judicial work when that itch arises! Foremost, I really do hope that I can spend more meaning ful time with family and friends as I embark upon the next phase of my career and life! AUST INL By far the most memorable conversations and successes were those where I have been able, in some way, to facilitate appropriate interventions and treatment avenues for [individuals in the criminal justice system,] which allows me to see them grow and make progress.
AW Y ER AL AL SEPTEMBER 2022 | AUSTINLAWYER 9
PRESIDENT'S COLUMN Chris Andre New Vehicle Leasing / Pre-Owned Sales Domestics / Imports / Exotics Busy Schedule? Call me. Home or Office Viewing and Delivery Any Make. Any Model. Email | chris@appleleasing.com Phone | 512.653.3718 10 AUSTINLAWYER | SEPTEMBER 2022 we will have discussions, make presentations, and write articles in the spirit of trying to discover how we can ensure the Austin Bar is seen as an inclusive organization. I also want to remind you that we want your new ideas in our CLE programming and in Austin Lawyer articles. If you are interest ed, please respond to our call for presentations and proposals. We will give preference to those law yers who haven’t been speakers, presenters, or authors in the past two years. Contact me at amanda@ austinbar.org and let me know what your idea is. We may ask for you to present at Bench Bar or a First Friday CLE, or to submit an article for Austin Lawyer If you are interested in serving on any of the committees listed below, please contact Carol Tobi as, our membership director, at carol@austinbar.org and let her know what interests you.
This committee is a hybrid of the Diversity and Equity committees. The group will host discussions designed to increase understand ing and lead to inner and external change; promote networking focused on bridging social capital; compile resources for people seek ing guidance; and identify Aus tin Lawyer authors and topics highlighting Austin’s diversity and history. This committee will assist in the new “Council of Firsts” initiative. This committee may also assist in creating a DEI Roadmap for the Austin Bar. In addition, this committee oversees the Diversity Fellowship Program, which offers summer internships to minority law school students. Participants intern for Travis County District Judges and for a private law firm.
Family Friendly Events – New!
DEI – New!
This committee creates events targeted toward families. This may include a Puppy Parade, a Bar & Grill variety show, and a Holiday Decorating event.
2022-23 COMMITTEES
Major CLE Events – New! This committee, a hybrid of the Bench Bar and CLE Programs committee, plans the major CLE events that occur year-round, including Bench Bar, the First Friday CLEs, and the Equity Summit.
Austin Adoption Day This committee coordinates the annual Adoption Day event (scheduled this year on Nov. 10), including organizing stuffed animal and book drives and gath ering donations of food, balloons, and gift basket items. Interested committee members may also have the opportunity to handle a pro bono case. Communications This committee creates and reviews content for Bar Code, Austin Lawyer, the Austin Bar website, and social media. Fee Dispute This committee mediates and/or arbitrates fee disputes submitted by clients, attorneys, the courts, and the District 9 Grievance Committee. History & Traditions This committee identifies and conducts oral history interviews of Austin attorneys and judges to preserve the history of the Austin Bar, the Austin legal community, and significant legal events in the Austin area. The group will assist in the new “Council of Firsts” initiative.
It’s NEW for You! AMANDA ARRIAGA , TEXAS CASA More Committees and Opportunities for You to Support Initiatives
Hilgers House Preservation This committee performs duties to preserve Hilgers House, applies for preservation grants, researches A s the new Austin Bar year kicks off, I want to remind everyone about my goal for us to get fresh perspectives in the pipeline. Thus, we need some new committees, plus new committee leaders and members. Below is the list of Austin Bar committees for the 2022-23 bar year. Some committees have been around for years, some are new, and some are being refreshed. One new initiative is the “Council of Firsts.” I learned that I am the first Hispanic female president of the Austin Bar. I am the 13th female president and the 8th minority. I know that may not be interesting in and of itself, but it does make me wonder how, in a city with as many attorneys as we have, it could be the case that we are still having these “firsts.” I will be working with the other “Firsts” at the Austin Bar, and
Almanza, Blackburn, Dickie & Mitchell, LLP is pleased to announce that Julie K. Lane has been selected Chair-Elect of the Westlake Chamber of Commerce
Leadership Academy The Leadership Academy was established to assist lawyers to make a difference in our commu nity, serve the Bar, and promote professional development. Each year a class of approximately 20-30 members is selected from applications submitted by lawyers from all areas of practice, firm size, and levels of experience.
SEPTEMBER 2022 | AUSTINLAWYER 11
Gala This committee plans and produc es the Austin Bar’s biggest event, an annual gala, to raise money for the Austin Bar Foundation and all the charitable entities it supports.
The Law-Related Education commit tee also organizes the Law Day essay and poster contests.
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Julie grew up in West Lake Hills, attended Eanes schools, and graduated from Westlake High School well before the school was a 6A powerhouse. She graduated from the University of Texas, received her law degree from the University of Houston Law Center, returned to Austin to clerk as a Briefing Attorney for the Texas Court of Appeals and then went into private practice. She and her husband Rob Lane have two sons, James and Bobby who also graduated from Westlake.
is
the history of the house, and pro vides tours to the general public.
Julie is a 25-plus year trial lawyer representing clients in business disputes. Her practice includes general business litigation, residential and commercial real estate litigation, and franchise law. After serving as General Counsel for Keller Williams Realty, Inc. and returning to private practice in 2013, she joined the Westlake Chamber as a volunteer, participated in Leadership Westlake in 2019, and served as the Secretary/Governance Chair beginning in 2020.
Pro Bono This committee coordinates and plans Austin Bar pro bono pro grams and develops relationships with pro bono organizations in Austin such as VLS, American Gateways, and the Texas Civil Rights Project.
Lawyer Well-Being This committee aims to educate, support, and connect our legal community to achieve more bal anced, mindful, and joyful lives and practices.
AUST INL AW Y ER AL AL
This committee plans and implements various educational programs aimed at school-aged children and supports the Akins Early College High School legal program, which is the leading high school advocacy training program in the country.
Crowley was elected as a direc tor of TYLA in 1979, and even tually elected to the position of president-elect in 1983. This was quite the honor, as a female had never before been elected to any position in a statewide bar race. In 1988, Crowley joined the Texas Bar Foundation Board of Trustees. She became chairman of the board in 1990 and chairman of the Fellows in 1994. She has also served as a trustee of the Austin Bar Foundation. Crowley served as the executive director of the Texas Center for Legal Ethics for 12 years before retiring from that position. She opened her own firm in 2006, followed by a legal recruiting company in 2011. Through it all, she has served and supported the Austin Bar and Austin Bar Foundation. She is a 47year member of the Austin Bar.
ASSURED CIVIL PROCESS AGENCY Serving Statewide and Nationwide, we have helped more than 10,000 law firms. THE TROUBLE-FREE, WORRY-FREE SERVICE 5925 Balcones Dr., Suite 290, Austin, TX 78731 | assuredcivilprocessagency@yahoo.com Celebrating 35 years of Superior Service! 512/477-2681 KeelPatrickFormerDistrictJudgeMediatorArbitratorpatrickkeel.comAvailablebyvideoandinperson. 12 AUSTINLAWYER | SEPTEMBER 2022 Congratulations to Austin Bar Member Beryl P. Crowley Texas Bar Foundation Honors Crowley with Outstanding 50 Year Lawyer Award C ongratulations to Beryl P. Crowley! The Austin Bar Association proud ly salutes longtime member Crowley for being select ed as a recipient of the Texas Bar Foundation’s 2022 Outstanding 50 Year Lawyer Award. The award exemplifies Crowley’s dedication to her craft and commitment to serving the legal community. Crowley has a storied career that began as a real estate law associate in Brenham, Texas and ultimately led to running her own law firm and legal recruiting company, accumulating an impressive list of accomplishments along the way. In Brenham, Crowley served as president of the Washington County Bar Association and as a State Bar director. She moved from Brenham to Austin in 1974 and went to work for Small Craig
& Werkenthin, predecessor firm to the Austin office of Jackson Walk er. She was the first female hired as an associate and later became the firm’s first female partner. Firm partners Clint Small and Fred Werkenthin had both served as president of the Austin Bar’s predecessor, the Travis County Bar. Small also served as president of the State Bar and founded the Texas Bar Foundation in 1965, while Werkenthin was president of the Austin Bar and ran for pres ident of the State Bar in a close race in the early 80s. Crowley says her membership in the Austin Bar and AYLA dates back to 1975. Her involve ment began with AYLA, where she chaired several committees, and served under the leadership of Bill Whitehurst and Terry Scarborough, both of whom later became presidents of the Texas Young Lawyers Association (TYLA). She, along with John Joseph, chaired the first-of-its-kind CLE sponsored by AYLA—an allday CLE on consumer law, held at the Thompson Conference Center.
2022 Texas Bar OutstandingFoundation50YearLawyerAwardRecipient
AUST INL AW Y ER AL AL
COFER & CONNELLY Rick Cofer Jaynie Badgett Liz Duggan Jeffrey Connelly Geoffrey Puryear Megan Rue Mark Pryor AUSTIN H HILL COUNTRY H CENTRAL TEXAS PRINCIPAL OFFICE: 602 W. 11 TH ST., AUSTIN, TX 78701 • 512-200-3801 COFERCONNELLY.COM FAMILY LAW • CRIMINAL LAW • PERSONAL INJURY
Whitehurst is a registered pharmacist in both Oklahoma and Texas. He specializes in medical-legal litigation. He is also an instrument-rat ed pilot who has flown private aircraft for almost 40 years, and his practice also includes aviation and products liability law. Whitehurst is board certified as a Civil Trial Specialist by the
C AustinWhitehurst,toongratulationsWilliam“Bill”Jr.!TheBarAssociation
Whitehurst is a registered pharmacist, was a Fulbright Scholar, and served as a JAG officer, but these are just a few of his accomplishments. He now adds recipient of the Texas Bar Foundation’s Outstanding 50 Year Lawyer Award to the long list.
Texas Bar Foundation Honors Whitehurst with Outstanding 50 Year Lawyer Award
Whitehurst has achieved some of the largest-ever medical mal practice verdicts against the U.S. government, including verdicts of $44,717,681 and $32,676,410, ranking him among the nation’s top personal injury lawyers. He has been listed in Lawdragon’s 500 Leading Lawyers in Amer ica and The Best Lawyers in America publications since their inception. His court admissions include the U.S. District Courts for the Western and Southern dis tricts of Texas, the U.S. Court of Appeals for the Fifth Circuit, the U.S. Court of Military Appeals, and the U.S. Supreme Court. Halfway through his 50-year career as a lawyer, Whitehurst served four years as a JAG officer in the U.S. Air Force, where he was awarded the Meritorious Service Medal. He has also served as pres ident of the Texas Young Lawyers Association, president of the State Bar of Texas, chair of the Texas Bar Foundation Board of Trustees, chair of the Texas Bar Founda tion Fellows, president of the Texas Trial Lawyers Association, president of the Austin Young Lawyers Association, president of the International Academy of Trial Lawyers (IATL), presi dent of the IATL Foundation (twice), adjunct professor of Trial Advocacy at the University of Texas School of Law, and co-founder of a national organization, Bar Leaders for the Preservation of Legal Services for the Poor. Much of Whitehurst’s career has been dedicated to providing legal services to the poor and promoting public interest law. In addition to maintaining a pro bono docket and co-founding Bar Leaders for the Preservation of Legal Services for the Poor, he has served as chair of the American Bar Association’s standing commit tee on Legal Aid and Indigent Defendants and was instrumental in establishing the William Wayne Justice Center for Public Interest Law at the University of Texas School of Law. The Whitehurst family annually provides summer fellowships in public interest law for UT law students. AUST INL AW Y ER AL 2022 Texas Bar OutstandingFoundation50YearLawyerAwardRecipient
National Board of Trial Advocacy, board certified in Personal Injury Trial Law by the Texas Board of Legal Specialization, a member of the American Board of Trial Ad vocates, and a fellow of the Ameri can College of Trial Lawyers.
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14 AUSTINLAWYER | SEPTEMBER 2022
Congratulations to Austin Bar Member William Whitehurst, Jr.
proudly salutes longtime member Whitehurst for being selected as a recipient of the Texas Bar Foundation’s 2022 Outstanding 50 Year Lawyer Award.
Arielle Rosvall, Coleen Kinslerassociatepartners: attorneys: 16 AUSTINLAWYER | SEPTEMBER 2022
I suspect most of us would answer that question with things such as: getting a new job, a promotion, a raise, a new client, winning a case, buying a bigger house, finding a life partner, retiring, or starting a family. We face so many challenges in our world and in our individual lives that can really bring us down and we tend to look for exterior things that make us feel good. These are all great things that will positively impact our lives.
Create your best year by engaging in positive ways with the persons in your life. It can be with fam ilies, co-workers, neighbors, or even strangers. The connection doesn’t have to be long-term to be beneficial. We feel better even after a brief encounter when we show kindness to another person.
I challenge you to do this—to practice kindness and compas sion for others in your life. As with any change, it requires intention and commitment.
Researchers have established that when we connect in positive ways with others, we release a neurotransmitter into our brain called oxytocin. Psychologists call it “the love hormone.”
BY VIRGINIA SAMPSON W hat is one thing you changewouldin your life to make next year the best year to come?
When we form communities and connect with others, we tap into one of our most vital and basic human needs. Those connections feel emotionally and physically good. How do we know this besides through our own personal experience?
The release of oxytocin in our brains feels good. When oxytocin is released in our brains, it is also released in other parts of our bodies as a result of our powerful mind-body connection. Our emotional and physical selves are intimately connected. Oxytocin not only feels good, it also, among other things, reduces inflammation in our bodies. (We know that inflammation is the root cause of many illnesses.)
However, it doesn’t have to be time-consuming or difficult. You can start with a small change in the way you interact with others. You will begin to feel more positive about your life and the world. You can even feel more energized. Your physical and emotional health will improve. Forging positive connections by showing kindness and compas sion to others will make the next year and every year thereafter our best years to come. AUST INL AW Y ER AL AL Virginia Sampson currently practices in the areas of elder law, estate planning, probate, and business law. Over her long career she has also been a judge and a litigation attorney. She consults in the legal field, primarily with women, assisting them to excel and to find balance.
However, their positive impact is short-lived. Researchers have established that we easily adapt to new things, both good and bad. That is great news if something bad happens to you. Researchers have studied persons who expe rienced terrible, life-changing accidents and they discovered that after a fairly short period of time their happiness level was the same as it was before the accident. The same is true for good things that happen to us. If we are going to affect real change in our life, we have to dig a bit deeper. The real change I am speaking about is not difficult, but it does require intention and commitment.
Even simple acts of kindness have a significant impact on our mental, emotional, and physical well-being. ...
[R]esearchers have established that kindness and compassion benefit the giver as well as the receiver.
Something as simple as saying (and meaning) “please” and “thank you” can have a powerful positive effect on all of us.
What is the state of your social connections? Our social skills have definitely atrophied during the pandem ic, I fear. At least mine have. As a result of COVID-19, we were and still are more isolated from others in our workplaces, neighborhoods, and communities than we were pre-pandemic. But to be honest, isolation was the norm even before COVID-19. We are experiencing an epidemic of loneliness in this country and have been for quite some time. The number of persons in whom we can confide has dramatically decreased in recent years. To avoid or minimize loneliness, we need to start connecting with others in positive ways. Why are positive connections so important to our psychological and physical health? We are biologically programed to connect with other people. It is in our DNA. After all, in our de velopment as human beings, we formed rudimentary communi ties so we could join together for support and companionship. Our infants are vulnerable and need the support of their mothers, who need the support of others to provide for their needs while they care for an infant. While we have evolved, our need to con nect with others is still present and deeply rooted.
2022 is Almost Over—Plan Ahead for Our Best Year to Come
BE WELL SEPTEMBER 2022 | AUSTINLAWYER 17
Think about the last time someone offered to help you with a task. How did that make you feel? How did you feel about that person afterwards? Even simple acts of kindness have a significant impact on our mental, emotional, and physical well-being. Small actions, such as holding the door open for someone or asking a co-worker or a clerk in the store how they are and really listening, can have a huge benefit for both you and them. This is because researchers have established that kindness and compassion benefit the giver as well as the receiver. How do you create the best year ever?
Meet Austin Bar Miguel Aguilera
I wanted to use my new skills and platform to be an advocate for these citizens that are charged with crimes—especially those whose rights are violated at times by the justice system. Additionally, as a member of the LGBT community, there are not that many defense attorneys out there who LGBT members can turn to for help. So I’m grateful to be able to represent my community in this way and be someone they can seek for help. “ ”
AGUILERA: I am from Lompoc, Calif., I graduated high school at 17 and immediately joined the Marine Corps. I am the youngest of four children and the only boy. I completed my undergraduate degree in psychology while on active duty in the Marine Corps in 2006 and my master’s degree in public administration in 2015. I was a police officer for 12 years.
AUSTIN BAR: Tell us about your background.
Serving Others Comes Naturally for Aguilera
AGUILERA: I never had a desire per se of being a police officer. This opportunity presented itself as I was in my fourth year of active duty in the Marine Corps in Camp Pendleton, Calif. I was in the process of re-enlisting for another four years when the Contra Costa County Sheriff’s Office was recruiting on base and conducting fast-track interviews. At the time, the turnaround to get hired was around six months. My buddy was getting out and wanted me to accompany him and take their written test. I showed up and passed, then they rushed me into a panel of interviews where I was told I passed, and they rushed me to get set up for a polygraph and medical exam the next day. I never showed up to my polygraph exam. The polygraph examiner ended up being a major in the re serves while I was a sergeant. He called my boss and I was ordered to go take the polygraph exam. I passed the polygraph exam and then medical exam and was given a conditional offer of employment. I was convinced to take this new opportunity and still be affiliated with the military through the Reserves. I attended the police academy and was sworn in as a Deputy Sheriff with the Contra Costa County Sheriff’s Office in 2006 until my retirement in 2018 (12 years). I worked a variety of assignments, including investiga tions, custody, and patrol.
MEMBER SPOTLIGHT
AGUILERA: I currently am a criminal defense attorney with the Law Office of Jorge Vela PLLC, where I’ve been since January of 2022. As a peace officer of 12 years, I personally have been witness to some injustices against citizens. While I do believe a majority of peace officers take the job because they want to be public servants and protect the Meet Miguel Aguilera. Aguilera joined the Law Office of Jorge Vela, PLLC in January 2022. The California native is a Marine and continues to serve our country as a Commissioned Officer in the U.S. Marine Corps Reserves with over 20 years of service. Aguilera has also worked as a police officer in Northern California for 12 years, where he gained extensive experience in family violence, sexual assault cases, DWI investigations, and search warrants.
AUSTIN BAR: What was your “dream job” growing up?
AUSTIN BAR: What prompted your move to Austin?
AGUILERA: Being a U.S. citizen and son of two immigrant parents, I wanted to give back for all the opportunities this country afforded my family. I am still in the Marine Corps Reserves going on 21 years at the rank of major.
AUSTIN BAR: What made you decide to join the military?
AGUILERA: My dream job as a kid was always to become a vet erinarian because of my love for animals. It wasn’t until my teens that my shift in interest occurred.
18 AUSTINLAWYER | SEPTEMBER 2022
Member
AUSTIN BAR: Why did you want to become a police officer?
AUSTIN BAR: What is your current job? How long have you had it, and what do you enjoy most about it?
AGUILERA: I was activated for a deployment to South America during my last semester of law school in January of 2020. Luckily, my school allowed me to finish my last credits via independent study. However, the pandemic hit and put our deployment on hold. We were conducting military exercises from a stationary post within the United States throughout the year. While there, I decided to invest in a rental property which I now call home here in Austin. Prior to leaving on my deployment, I took the Uniform Bar Exam (UBE) as extra practice in preparation for the California bar exam. While on the deployment in May, I received news that I passed the UBE, which happened to transfer over to Texas. So when I graduated in June of 2020, I was already an attorney in the state of Texas. I figured I could get my initial experience in Texas and decided to call what was supposed to be my investment property my new home.
AGUILERA: I ride a Harley motorcycle. I never had a desire to ride. However, I was pressured by a friend to buy one. I don’t care how hot it is, you will see me in full safety gear (helmet, riding pants, and riding jacket with armored pads)!
AUSTIN BAR: Choose your favorite legal drama from television and tell us why: Law & Order, Night Court, LA Law, Perry Mason, or another?
AUSTIN BAR: Tell us some thing about you that people may be surprised to know.
AGUILERA: Judge Mathis. I know his story of being involved in the criminal justice system and turning his life around after a judge gave him a second chance. I think people like him who have lived through adversity are more reasonable in their decision-making processes.
AUSTIN BAR: Which television judge would you most prefer to go before on a case: Judge Mathis, Judge Judy, Judge Steve Harvey, or Judge Joe Brown?
AUST INL AW Y ER AL AL DavidToddLaw.com•EminentDomain•PersonalInjury 512 .472 .7799 You’re busy looking out for your clients’ needs. Who’s looking out for yours? Jim Kaighin, Jr., CFP Financial Professional ® 3305 Northland Dr., Suite 414 Austin, TX 78731 512-302-6051 kaighinjr@momentumin.com Member: FINRA/SIPC
AGUILERA: Law and Order: SVU was my favorite show. I loved the courtroom arguments and how well they display the persona of a police officer. I love Olivia Ben son’s passion for victim advocacy.
SEPTEMBER 2022 | AUSTINLAWYER 19
constitution and rights of citizens, there are some bad officers in any department. I wanted to use my new skills and platform to be an advocate for citizens who are charged with crimes—especially those whose rights are violated at times by the justice system. Additionally, as a member of the LGBT community, there are not that many defense attorneys out there who LGBT members can turn to for help. So I am grateful to be able to represent my community in this way and be someone they can seek for help.
BY DREW WILLIAMS M any of us remem ber those lean law school years when ramen and cold, leftover pizza fueled our all-nighters. Some of us remember juggling classes and the desperate search for a meaningful internship while working part-time jobs to make ends meet. Who remembers holding your breath until the loan funding cleared so you could pay rent or buy groceries? While these are common experiences for many law students, members of the LGBTQIA+ community sometimes face the additional challenge of estrangement from family, and thus lack the financial and emotional support some of their classmates enjoy.
Association of Counties
Drew Williams (he/him) is chair of the Austin Bar’s and an with the Texas (TAC). Before joining TAC, he worked at the Travis County Attorney’s Office for 12 years. Williams taught trial skills as an adjunct professor at The UT School of Law and is passionate about teaching, leadership, local government, and DEI work.
20 AUSTINLAWYER | SEPTEMBER 2022
ROSERESOLUTIONGROUP.COM jeff@roseresolutiongroup.com 512.637.0931
Eventgoers also heard from for mer scholarship recipients about how the scholarship impacted their lives and wellbeing. Through the magic of modern technolo gy like QR codes and real-time updates, generous sponsors and individual on-site donors saw the immediate impact of their collec tive efforts to fund scholarships that will promote education on issues relating to LGBTQIA+ law, raise the profile and acceptance of LGBTQIA+ individuals within the legal community, and promote LGBTQIA+ equality. Everyone left the event that night with the distinct buzz of be ing part of something bigger than themselves, and the hope that it just might mean the world is a kinder place for an LGBTQIA+ law student with big dreams and stocked pantry. Be sure to join in the fun in the Spring for the Second Annual Drag and Justice event! AUST INL AW Y ER AL AL
LGBT Section
Mediation. Arbitration. Resolution.
2009
Recognizing Challenges and Showing Support
Civil Trial Law Former: Chief Justice, 3rd Court of Appeals; District Judge; Deputy Attorney General Certified Mediator: Harvard Negotiation Program; Mediators and Arbitrators of America Mediation Arbitration Litigation Consulting Special Judge Proceedings
associate general counsel
Board Certified, Jeff Rose
LGBTQ people are more likely to experience food insecurity, poverty, unemployment, and homelessness. Economic dispar ities are especially pronounced for LGBTQ people of color and transgender people. The Williams Institute analyzed data from numerous studies and concluded that LGBTQ adults in Texas are more likely than other Texans to report having insufficient re sources to buy food or meet their healthcare needs.1 Approximately 30% percent of LGBTQ adults in Texas report having a household income below $24,000 annually.1 With these realities in mind and a steadfast refusal to sit idly by during this especially chal lenging time for the LGBTQIA+ community in Texas, the LGBT Section of the Austin Bar Asso ciation raised over $12,000 at its fun and fabulous inaugural Drag and Justice event in April 2022. This is the seventh year the Section has partnered with the Austin Bar Foundation to provide at least three scholarships to LGBTQIA+ law students enrolled in a Texas law school. A crowd of Austin Bar members and their friends packed Oil Can Harry’s for music and jaw-drop ping entertainment. The big event featured local drag professionals as well as the Section’s own past chair, Judge-Elect Denise Hernandez as “King Law-Tiffa.”
TEXAS SUPER LAWYER 2004, 2005, 2008,
Footnote 1. TX-State-of-Equality-Report.pdf.content/uploads/2019/02/2019-https://www.equalitytexas.org/wp-
Performer Natasha B. Capri wows the crowd during the Drag and Justice event.
LGBT Section Provides Scholarships to LGBTQIA+ Law Students
John Lione, of The Fowler Law Firm, PC, has practiced law for almost half a cen tury. The Georgetown University (1971) and UT School of Law (1974) graduate is a civil trial lawyer in the defense and prosecution of real estate-related disputes. Lione is also a board certified commercial real estate lawyer. I am moved by how quickly perfect strangers will turn to me, terrified, and share with me confidential information that is very sensitive, even embarrassing. I marvel at how much that perfect stranger respects the law and the attorney-client privilege to be able to do that with me, often in the first conference.
Why I Still Love Being a Lawyer
I wasWhyyounger.Istill love practicing law is obvious. Clients and colleagues often turn to me for help with legal questions that have never been addressed by the courts of Texas before. Most of my practice is in real estate and always has been. Often, there is no clear answer. The endless combinations of fact and law and the implica tions of those combinations make practicing law fascinating. But the second answer often surprises those who ask me this question. I don’t just still love practicing law; I enjoy practic ing law more than when I was younger, and here’s why: Even if I don’t have all the answers, I do know how to behave. Some of my cases are in the smaller counties, ones where I don’t know the judges and courthouse staff. I try to be extremely courteous and not act like an urban legend. I see lawyers, especially from big cities where the pace is a lot faster and more automated, who are im patient, even rude to courthouse staff. Guess what happens because of their behavior? Bad things! I counsel lawyers preparing for court in a county they do not nor mally practice in: “The judge may forgive you if you are rude to the judge; the judge will never forgive or forget if you were discourteous to their courthouse staff.” I could go on and on about what to do and why to do it in the trial of a case, but I think it is a stunning example that I witness frequently and one I observed firsthand only a few weeks ago when I tried a case, a bench trial, in a very old and beautiful court house in a nearby rural county. We had a very successful result, by the way, and the courthouse staff were extremely helpful, I think in some part because we showed them the respect and courtesy they deserve. In short, I do feel a lot more comfortable trying cases now than I did 50 years ago. I enjoy it. Even more gratifying, almost 50 years into law practice, is the
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SEPTEMBER 2022 | AUSTINLAWYER 21
BY JOHN LIONE O k, I admit. I am a little over the top when it comes to old Texas courthouses. When I take my family on vaca tion, we always go to the nearest old courthouse, sometimes sever al if it is a road trip. I even have a picture of myself outside the Supreme Court of Iceland. My law partners accuse me of having “obsessive compulsive court house disorder” even though they post pictures of me standing outside old Texas courthous es, usually because I have just appeared inside the courthouse. I am so
knowledge that people really do respect and turn to lawyers to solve their problems. I know co medians and others tell bad law yer jokes; commentators blame us for things we really are not guilty of. And yet, when a serious problem arises, I am moved by how quickly perfect strangers will turn to me, terrified, and share with me confidential information that is very sensitive, even em barrassing. I marvel at how much that perfect stranger respects the law and the attorney-client priv ilege to be able to do that with me, often in the first conference. That is something about practic ing law I find remarkable. I return phone calls after hours and on weekends, which surprises a lot of people. I have never had someone call me late or on a holiday for legal advice that did not really need help right then. People are respectful of my time and privacy. They turn to lawyers in those circumstances because they are very distressed. In just one phone call I relieve them, reassure them, often even empower them to go forward with more hope, less fear, and above all else—a plan of action. That’s what lawyers do! That is what makes me love practicing law after all these years—helping others when they really need help. So, as I approach my 50th year as a State Bar of Texas licensed member in good standing, I am looking forward to getting my total free-of-charge State Bar of Texas 50-year pin, and to practicing another 50 years, if life affords me that privilege.
ticingIlaw,ispractice,whyinvitedpracticelicensedSeriously,misunderstood!havingbeeninTexasandinactivesince1974,whenIwastosubmitanarticleona“seasoned”attorneylovesIhadtosaytheanswerintwoparts:1)WhyIstilllovepracticingand2)Why,almost50yearsafterwasfirstlicensed,Ienjoypraclawevenmorethanwhen
Local Bar JudgeCommitteeServicesnamedKarinCrump
winner of its 2022 Judge Sam Williams Award. The award honors an individual who demonstrates a commitment to fostering and maintaining the re lationship between the individu al’s local bar association and the State Bar of Texas.
250th District Court Judge Honored with Judge Sam Williams Award
22 AUSTINLAWYER | SEPTEMBER 2022
Judge Crump, however, not only stepped up to help lead the way, but was able to do so in a manner that will undoubtedly change the administration of our court sys tem long into the future. Despite the anecdotal predictions of nay sayers, she was a key facilitator in the implementation of virtual jury trials for the people of Travis County, which actually increased the size and participation of jury pools and the engagement of individual jurors. In addition, despite conventional wisdom, her efforts made the courts even more accessible to those of modest means than ever before. More impressive still, she helped countless paralegals, lawyers, and judges learn to navigate virtual trials through one-on-one inter action, published articles, and at least 14 CLE presentations, many of which she facilitated through the Austin Bar. In addition to her role as a champion of increased access to our courts, Judge Crump was and is the primary facilitator and “encourager” in re-engaging the Austin Bar’s commitment to celebrating Law Day. Unfortu nately, we had drifted away from celebrating this very important day. However, Judge Crump was determined to bring it back, and has done so quite successfully. In her own way (which she does so well), she brought the right people together, forged critical partnerships, and re-created something that we have been sorely missing in Austin for far too long. The result was our suc cessful participation in the State Bar’s Poster and Essay Contest, as well as the organization of our Law Day Celebration on May 1 at the UT School of Law, where 150 kids, primarily from East Austin schools, came together to engage, learn, and be inspired by Judge Crump and some other examples of the best legal minds Austin has to offer. Judge Crump stepped up again recently to enlist the Austin Bar and our members to create a program aimed at the reduc tion of the significant backlog of uncontested divorce cases currently awaiting processing. She once again brought the right people together to organize future pro bono clinics staffed by UT Law students and Austin Bar members to not only address the overwhelming need, but ensure swift processing and hearings for Travis County residents both now and into the future. Her efforts are already paying significant dividends. AUST INL AW Y ER AL AL
Judge Crump does just that! Over the past two years and well beyond, Judge Crump has had a great impact on the Austin legal community. In a profession where the emergence of leadership has become common— almost expected—Judge Crump has continued to prove herself mostWhatuncommon. JudgeCrump has done for the advancement of justice, the people of Travis County, and the state of Texas in the past two years is most admirable, but in no way surprising. Most importantly, she has shone as an innovator and facilitator of access to justice and legal education during a time when it has been needed the most, and she selflessly brought the Austin Bar Association along with her on the journey. She is the embodiment of integrity, and a leader and teacher for us all. What Judge Crump has meant to the Austin Bar during the course of the pandemic can be best exemplified by her tireless work to ensure that access to justice was not lost or forgotten during one of the most trying times in the history of our coun try. In the weeks and months following March 2020, countless people recognized the need to resume the operation of our judicial systems, but were “hand cuffed” by traditional notions of possibility —or impossibility.
Judge Karin Crump Wins State Bar Award
Judge Karin Crump (right) receiving the Judge Sam Williams Award from State Bar of Texas President Sylvia Borunda-Firth. [Judge Crump] was a key facilitator in the implementation of virtual jury trials for the people of Travis County, which actually increased the size and participation of jury pools and the engagement of individual jurors. In addition, despite conventional wisdom, her efforts made the courts even more accessible to those of modest means than ever before.
T he State Bar of Texas
SEPTEMBER 2022 | AUSTINLAWYER 23 Texas values. Global reach. This year, the teams at Houston-based firm Briggs & Veselka and its subsidiary, Pathway Forensics, joined Crowe LLP, a public accounting, consulting, and technology firm with offices around the world. Crowe offers a variety of services and solutions for legal departments and law firms. • Forensic accounting and litigation support • Business valuation • Family law forensic accounting • Digital forensics and incident response services • Legal management consulting Explore more on crowe.com. Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global. © 2022 Crowe LLP. MBV2301-001E Representing Attorneys Gaines West State Bar of Texas Grievance Oversight Committee Appointed by the Texas Supreme Court Chair, Member,2006-2010 2004-2010 Texas Board of Disciplinary Appeals Appointed by the Texas Supreme Court Chairman, 2001-2003 Vice Chairman, 1994-1996, 1998-2000 Member, 1992-1996, 1997-2003 State Bar of Texas Disciplinary Rules of Professional Conduct Committee Member, 1993-1996 ReviewDisciplinaryCommittee Member, 1991-1992 Texas Bar Foundation, Fellow State Bar of Texas, Member Brazos County Bar Association, Member Austin Bar Association, Member State-wide Practice Austinwestwebblaw.comPrincipalOce–979.694.70001515EmeraldPlaza•CollegeStation,TX77845–ByAppointment–512.501.36171012RioGrandeSt.•Austin,TX78701
KUDOS Bill Jones was named a Tex as A&M University Distinguished Alumnus for 2022. Jones, a class of 1981 graduate, was lauded for consistently rising to leadership positions. He has served in a variety of positions, from the commissioner of the Texas Parks and Wildlife Association to chair man emeritus of the A&M System Board of Regents.
Dirk Jordan Kristen Katz Coleen
MelissaArmstrongBalmer
The Austin Bar welcomes the following new members: Heath
BRIEFS 24 AUSTINLAWYER | SEPTEMBER 2022 NEW MEMBERS
D’AnthonyColeGrahamGumm
KellyDonaldsonFlanaganBiancaFlores
CalebEricHudgensHudson
Christian Vieira
Michael White Joel Whitney Tristan Younghaus
Adam Schramek was named Outstanding Third-Year Direc tor by the State Bar of Texas. Schramek, a partner at Norton Rose Fulbright, is a former pres ident of the Austin Bar Associa tion and Austin Young Lawyers Association.
David Courreges, immediate past president of the Austin Bar Association, was elected as the District 9, Place 2 director for the State Bar of Texas board of directors. He will serve a threeyear term. Courreges, chair of the Austin Bar Foundation, is the senior corporate counsel and di rector of legal and compliance for University Federal Credit Union and a graduate of St. Mary’s University School of Law.
MOVING ON UP Jonathan Buck joined De Leon Law PLLC after 10 fulfill ing years serving low-income Cen tral Texans in his role as General Law Staff Attorney for Volunteer Legal Services (VLS). Buck will work in an of-counsel role. Buck is thankful for the opportunity to have mentored and supported the Austin Bar members who generously volunteered their time to serve the most vulnerable members of our community. Caleb Armstrong joins the Austin Bar Association staff as the CLE, sections, and events manag er. He graduated from Texas A&M University in 2017 with a bach elor’s degree in animal science.
Madison
ABOVE: (from left) Armstrong, Buck, Courreges, Jones, Schramek.
Myra Dioquino
Molly Smith
Armstrong worked for the Texas Department of Health and Human Services as an investigator. He has overseen training and develop ment for other organizations.
Steven Swernofsky
MichaelMichaelZacharyKinslerLevickNoredSusanPhilipsTraceyReynaKyleRobbinsSingley
MollySusanVarroBuchananClarkeConway
Sarah Jaffery
ABLA On the Move
Austin Black Lawyers Association Provides Information and Resources BY CIARA PARKS T he Austin Black Lawyers Association (ABLA) has been on the move this year and there’s more to come, as ABLA continues providing information and resources to the legal com munity and those in marginalized communities. Here’s a look at what we’ve been up to in 2022. ABLA conducted a series entitled “Journey to the Bench,” where participants heard from African American judicial leaders like Judge Brenda Kennedy and Judge Lora Livingston and other elected officials about their polit ical journey and received advice on running for office. The in sightful events gave information and hope to those participating. For Juneteenth, ABLA heard from State Rep. Sheryl Cole (HD 46) with updates on the Texas
Ciara Parks is the general counsel for the Texas Board of Law Examiners, president of the Austin Black Lawyers Association, and secretary of the Austin Young Lawyers Association.
to be a
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ALLIED BAR UPDATE SEPTEMBER 2022 | AUSTINLAWYER 25
tionABLAyearendedacontinuesparamountcommunityaffectingabreastmunity. StayingAmericanthelationsessionlegislativeandlegisimpactingAfricancomofissuestheisandtobefocalpoint.ThegroupthefiscalwiththeFoundaVirgilC.
abreast of issues affecting
VIRGIL C. LOTT 2022 SCHOLARSHIP RECIPIENTS Reiko Andrews Tyler StevenAberiBlake Coleman Reece Ja’NiyaMitchellWelch
Staying the paramount and continues focal point.
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Lott Scholarship Fundraiser at Top Golf. Members and sup porters had an amazing time connecting in person and teeing off! What was even more amazing was being able to provide five scholarships to graduating high school students attending college. The scholarship honors Virgil C. Lott, who was the first African American to graduate from The University of Texas School of Law. The scholarship is awarded to graduating seniors in the Aus tin Independent School District and surrounding districts who exhibit community service, good scholastic standing, evidence of leadership, and extracurricular involvement. Recipients are awarded the scholarship upon ac ceptance to any junior college or university. This year’s recipients included Reiko Andrews, Tyler Aberi, Steven Blake Coleman, Re ece Mitchell, and Ja’Niya Welch. ABLA looks forward to kick ing off the year with an in-person meeting on Wednesday, Sept. 14, 2022 at 5:30 p.m. Join us at Graves Dougherty Hearon & Moody, located at 401 Congress Ave. #2700, Austin, TX 78701. AUST INL AW AL L Scholarship recipient Reiko Andrews (center) along with ABLA past president Ayeola Williams (left), and ABLA president Ciara Parks (right) and family.
26 AUSTINLAWYER | SEPTEMBER 2022
D
uring my time as a lawyer, I have learned a few truths about our profes sion. Here are three:
David Courreges, immediate past president of the Austin Bar Association and chair of the Austin Bar Foundation, is the senior corporate counsel and director of legal and compliance for University Federal Credit Union and a graduate of St. Mary’s University School of Law.
First, as a whole we do some amazing things. Now, I’m not talking about “amazing” as used in the context of your typical Insta Reel or TikTok, such as “OMG, that Original Petition was totes amazing!” I’m talking about “amazing” in the context of changing lives, transforming communities, and doing things for the greater good—things that would force the average Ins ta-phile to right-click and utilize the synonym feature of Word in an effort to express their level of astonishment and properly describe their truest feelings of bewilderment.Second,for all of the stu pendous acts of near-heroism performed by members of our community on a regular basis, we do so most often with the knowl edge and expectation that the accomplishment will be done in relative anonymity. Recognition appropriately goes to the client, mission, or the greater good for which we serve—and that is the way it should be.
BY DAVID COURREGES
The Austin Bar Foundation is Amazing! Supporting the Good in Our Community
The Austin Bar Foundation’s purpose is to “promote and encourage activities in the furtherance of justice and legal education through the sponsorship and encouragement of legal research, publications, institutes, forums and the establishment of scholarships.”
Third, in consideration of points one and two above, we are remarkably amazing at recogniz ing the exceptional within our community. The best part is that we do so most often in a way that further precipitates future good work.For an example, look no fur ther than the Austin Bar Founda tion and its purpose, which is to “promote and encourage activi ties in the furtherance of justice and legal education through the sponsorship and encouragement of legal research, publications, institutes, forums, and the establishment of scholarships.” Through two of its programs, the Fellowship Program and the Annual Bar Foundation Gala, we recognize the best of the best within the Austin legal commu nity and simultaneously raise money to further the purpose of the Austin Bar Foundation. The Austin Bar Foundation has been awarding grants to legal-related programs that serve the greater Austin community since 2012, and has nearly reached $200,000 in total giving. Last year’s grants sent 55 children to the YMCA’s Texas Youth and Government program, which aims to help students gain skill and confidence to succeed in college, career, and life in general. They also assisted Veci na’s Project ReUnite in expand ing the representation to help release children in immigration detention.Afewof you may be wondering what exactly the Austin Bar Foundation’s Fellows Program is. I am glad you asked! It is an honorary society of Austin-area attorneys, judges, and legal scholars who have demonstrated outstanding dedication to the highest principles of the legal profession and to the welfare of the Austin legal community. If you are interested in learning more about the Fellows program, go to: austinbar.org/?pg=fellows. If you’re wondering what a gala is, I can’t help you. What I can tell you is that more infor mation about the 2023 Austin Bar Foundation Gala will be available soon! We can’t wait to see you there as we honor some outstandingly amazing lawyers and raise money for an equally amazing cause! AUST INL AW Y ER AL AL
SEPTEMBER 2022 | AUSTINLAWYER 27 (512) 671-3200 • lauerman@aol.com Main Office: Austin, Texas Serving Travis County and the Federal Western District Licensed in the U.S. Supreme Court Licensed in the Federal Fifth Circuit Court of Appeals Licensed in the Federal Western District Licensed in all Texas Courts Former Chair, Austin Bar Criminal Law Section Member of NACDL, Bar Association of the Fifth Circuit, and the Federal Bar Association Former Judicial Candidate Over Sixty Felony Jury Trials including: Murder (multiple), Aggravated Assault, Robbery, Sex Assault, Manslaughter, Burglary and more. 40-Hour Basic Mediation Training February - April - June September - November CLE & HR Credits 30-Hour Family Mediation Training CLEJulyCredits We Mediate All Types of Civil Disputes Attorney-Mediators Available Se Habla Español (512-279-1905) Training Mediators since 1986 www.AustinDRC.org ● 512-371-0033 A Nonprofit Mediation Resource Since 1983 High-Quality Affordable ADR Services
APPELLATE PROCEDURE: Court affirms trial court’s or der setting appellate security.
The following are summaries of selected civil opinions issued by the Third Court of Appeals during June and July 2022. The summaries are an over view; please review the entire opinion. Subsequent histories are current as of Aug. 2, 2022.
WORKERS’ COMPENSATION: Court grants mandamus relief to allow suit for judicial review to proceed. In re Hellas Constr., Inc., No. 0321-00182-CV (Tex. App.—Austin July 28, 2022, orig. proceeding) (mem. op.). Bruno Martinez died while working on a construction site overseen by Hellas Con struction. Martinez’s family filed a wrongful death case against Hellas and did not file a claim for workers’ compensation benefits. Hellas’s insurance carrier initiated a dispute proceeding at the Divi sion of Workers’ Compensation (DWC) to determine Martinez’s employee status. Hellas sought to abate the wrongful death lawsuit pending the DWC proceeding.
The Martinez family contended the DWC lacked jurisdiction because the family did not file a claim for comp benefits. The DWC determined Martinez was a Hellas employee. Over Hellas’s objection, the trial court allowed the wrong ful-death case to proceed while the DWC decision was not final. In the suit for judicial review, the trial court rejected the family’s argument that there was no juris diction to review a void order and ordered the matter to proceed. According to the court of appeals, the DWC has exclusive jurisdiction to determine whether a claimant is entitled to comp benefits. The court observed that DWC rules refer to “issues” not “claims,” thus indicating that a filed claim is not required to invoke the DWC’s jurisdiction over a dispute. The court granted Hellas mandamus relief and ordered the trial court to abate the wrongful-death law suit until there is a final decision in the judicial review lawsuit chal lenging DWC’s determination that Martinez was a Hellas employee.
Mother sought to enforce father’s child support obligation and requested attorney fees. Mother put on evidence of the amount of the arrearage. The trial court found that father did not owe child support arrearages. Accord ing to the court of appeals, a trial court has no discretion to forgive or decrease past child-support obligations. Further, the calcula tion of arrearages must be based on evidence of payment history. Mother’s evidence of payment history established father’s ar rearage. The court held that the trial court abused its discretion in denying mother’s request. The court also noted that unless there is good cause to deny attorney fees, fees under Family Code 157.167 are mandatory. The court reversed and remanded.
AD VALOREM TAX: Court affirms application of res judicata in an administrative proceeding.
THIRD COURT OF APPEALS CIVIL UPDATE 28 AUSTINLAWYER | SEPTEMBER 2022
BREACH OF CONTRACT: Court reverses trial court’s JNOV. Pools Unlimited, Inc. v. Houchens, No. 03-21-00046-CV (Tex. App.—Austin June 3, 2022, no pet. h.) (mem. op.). Houchens sued Pools Unlimited, contending his pool was defective. Houchens refused to pay the remaining balance. Pools Unlimited ac knowledged the need for repairs but insisted on payment of the balance before making repairs. The jury found in favor of Pools Unlimited and awarded no damag es. The trial court signed a JNOV and awarded Houchens damages. Houchens argued there was no evidence to support a zero-damage finding and that his expert estab lished $58,500 in damages. The court of appeals observed that opinion testimony is not binding on the factfinder. The court held that the expert’s testimony did not conclusively establish the repair cost and that the trial court erred in awarding damages. The court further concluded that nothing in the record contradicted the need for repairs. Thus, the jury’s zero-damages finding was against the great weight of the evidence. The court affirmed in part and reversed and remanded.
J-W Power Co. v. Irion County Appraisal Dist., No. 03-21-00005CV (Tex. App.—Austin July 21, 2022, no pet. h.) (mem. op.). J-W owns natural-gas compressors that are leased to customers throughout Texas. When not under lease, the compressors are stored in Ector County. The Tax Code provides that a “dealer’s heavy equipment inventory” may be appraised only in the county where the inventory is based. ICAD appraised J-W’s compressors that were leased to customers in Irion County. The appraisal review board denied J-W’s Tax Code § 41.41 protests that challenged ICAD’s appraisal of the equipment; J-W did not Laurie Ratliff is a former staff attorney for the Third Court of Appeals. She is board certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.
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FAMILY LAW: Court reverses trial court’s denial of child support arrearages. White v. White, No. 03-21-00323CV (Tex. App.—Austin July 8, 2022, no pet. h.) (mem. op.).
ORIGINAL PROCEEDING: Court grants mandamus relief from joinder order. In re Austin Housing Fin. Corp., No. 03-22-00091-CV (Tex. App.—Austin July 27, 2022, orig. proceeding) (mem. op.). Plaintiffs sued to prevent AHFC’s construc tion of affordable single-family housing in the Brykerwoods subdivision. Plaintiffs contended that AHFC’s construction violated the minimum-lot-size provision in the neighborhood plat. The trial court concluded the other lot owners have a vested interest in the minimum-lot-size provision, enjoined construction, and ordered AHFC to join all lot owners in the subdivision and all lenders holding security interests as necessary parties. The court of appeals ob served that an abatement based on nonjoinder requires evidence that the alleged necessary parties have actual claimed interests in the ac tion. Plaintiffs offered only the plat as evidence. The court concluded that the plat suggests that other lot owners may potentially claim an interest; it did not establish an actual claimed interest. Further, no evidence established that any lend ers existed for the other lots. The court granted mandamus relief.
Crowder v. Sanger, No. 03-2100291-CV (Tex. App.—Austin June 24, 2022, no pet. h.) (mem. op.). To suspend enforcement of a money judgment, Crowder filed a cash deposit in lieu of a bond, claiming a negative net worth. The trial court sustained Sanger’s objections to Crowder’s net-worth affidavit, found that Crowder failed to provide detailed informa tion to determine his net worth, and set the deposit at the full amount of compensatory damages and costs. The court of appeals rejected Crowder’s argument that because he is prohibited from selling his stock shares by court order, the stock’s value was imma terial. According to the court, that Texas Rule of Appellate Procedure 24 authorizes an injunction to prohibit debtors from dissipating assets to avoid collection of a judg ment does not exclude such assets from the net-worth calculation. The court affirmed.
Non-parent
SEPTEMBER 2022 | AUSTINLAWYER 29 Me di a tor, Arbi t ra tor, Spe ci a l J udge a nd Li t i ga t i on Consult a nt
Accordingly, the court held that there was a binding arbitration agreement. The court rejected ap pellee’s argument that appellants’ failure to pay pursuant to the agreement rendered the agree ment unenforceable. The court reversed and remanded. AUST INL AW Y ER AL AL
Adoption
of Custody, Possession & Support
ARBITRATION: Court reverses trial court’s denial of motion to compel arbitration. Yu v. Lu, No. 03-22-00036-CV (Tex. App.—Austin June 8, 2022, no pet. h.) (mem. op.). Following a business dispute, Appellants sued appellee for fraud and negligent misrepresentation and sought to compel arbitration. The trial court denied the motion to compel. Appellants acknowledged that the purchase agreement did not contain an arbitration clause, but the parties’ operating agree ment did. The court of appeals concluded that when separate instruments are executed con temporaneously by the parties for the same transaction, courts con strue the agreements together.
Family Law Specialist
Divorce
Senior District Judge Stephen Yelenosky Collaborative Divorce. Helping couples problem solve their way through divorce. 7500 Rialto Blvd, Bldg One, Suite 250, Austin, Texas 78735 whitten-law.com | info@whitten-law.com | (512) 478-1011 Grandparent or Rights Collaborative Law High-Asset Modifications
Tim Whitten has practiced in family law since 1992. He has been certified as a Family Law Specialist by the Texas Board of Legal Specialization.
*Kimberly A. kim@whitten-law.comEdgington Specialization appeal the orders to district court. J-W subsequently filed motions to correct the appraisal roll under Tax Code § 25.25, contending that ICAD should have not appraised the compres sors, which the board denied. J-W appealed to district court. The trial court granted ICAD’s motion for summary judgment based in part on res judicata. J-W contended that res judicata did not apply because the orders de nying the § 41.41 protests were not on the same claims as the § 25.25 motion to correct. Ac cording to the court of appeals, to determine whether a later proceeding is based on the same claims resolved in an earlier final adjudication, courts compare the “basic nature” of the claims. The court observed that the protest and the motion to correct raised the same complaint. The court further noted that even if the two statutes provide different remedies, res judicata applies when the underlying claims are the same. The court affirmed.
Long v. State, No. 03-20-00070CR (Tex. App.—Austin Jan. 7, 2022, no pet.) (mem. op., not designated for publication).
Zak Hall is a staff attorney for the Third Court of Appeals. The summaries repre sent 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 following are summaries of selected criminal opinions issued by the Third Court of Appeals from January 2022. The summaries are an overview; review the entire opinions. Sub sequent histories are current as of Aug. 1, 2022.
JUROR DISCHARGE –BIASED JUROR: Trial court did not abuse its discretion in discharging juror who claimed to be biased.
Officers later executed a search warrant on the property and found “a half-eaten puppy in one of the cages,” evidence that the dogs had been eating rats for food and drinking water that “was so old that it had turned brown from dissolved leaves,” and “a significant number of an imal skeletons in a wooded area at the edge of the property.” One of the officers took photos of the property, the living dogs, and the skeletons. The animal control of ficers also seized fourteen skulls from the property. At trial, the district court admitted into evi dence the skulls and numerous photographs depicting animal re mains, over Long’s objection that this evidence was more prejudi cial than probative. On appeal, Long asserted that the trial court abused its discretion in admitting the evidence. The appellate court disagreed. The probative value of the evidence was high because the State had the burden to prove that appellant knowingly or recklessly committed the offense by either failing unreasonably to provide the dogs with necessary food, water, care, or shelter or by confining them in a cruel man ner. The photographs and skulls helped “establish that many dogs died on the property over a long period of time and that someone moved the remains,” which was probative of appellant’s mental state, an essential element of the charged offense. The court also disagreed that the photos were “unfairly” prejudicial: “Although the evidence might be termed gruesome, it reflects the reality of the dogs’ living conditions on appellant’s property.”
Jackson v. State, No. 03-2000085-CR (Tex. App.—Austin Jan. 28, 2022, pet. ref’d) (mem. op., not designated for publi cation). Jackson was convicted of murder. At the beginning of trial, after the jury was sworn but before testimony was presented, the trial court learned that one of the jurors had concerns that she knew someone connected to the case, specifically her former basketball coach. The prosecutor explained to the juror that he did not believe the coach would be a witness but that the coach “might be friendly with some witnesses.” The juror maintained that her relationship would im pair her ability to be a fair juror because the coach was a “men tor” to her. After discussing the matter with the parties, the trial court advised the juror that she was not required to return in the morning. The next day, defense counsel moved for a mistrial, ob jected to proceeding with eleven jurors, and argued that the juror in question was not disabled because “she just simply said she couldn’t be fair.” The trial court denied the motion for mistrial, advised the parties that the trial would proceed with eleven jurors, and found the juror in question disabled, emphasizing the juror’s use of the term “mentor” to describe her relationship with the coach. On appeal, Jackson argued that the juror was biased but not disabled and therefore not eligible for discharge after the trial had begun without con sent from the parties. See Tex. Code Crim. Proc. art. 36.29(a). The appellate court disagreed, noting that the Texas Court of Criminal Appeals has recognized that a juror’s bias constitutes a disability within the meaning of article 36.29 “if the effect of such bias ‘on a juror’s mental condition or emotional state’ inhibits the juror from ‘fully and fairly performing his functions as a juror.’” The court concluded that the juror’s description of her ex-coach as a “mentor” was suffi cient to support the trial court’s finding that the juror’s bias had affected her mental condition or emotional state to a degree that she was inhibited from fully or fairly performing her functions as a juror. INL AW Y ER A
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THIRD COURT OF APPEALS CRIMINAL UPDATE 30 AUSTINLAWYER | SEPTEMBER 2022
EVIDENCE ADMISSIBILITY – “GRUESOME” EVIDENCE: Animal skulls and photographs of animal remains were not more prejudicial than probative.
Long was convicted of cruelty to non-livestock animals. Ani mal-control officers had investi gated a report of loose dogs in the vicinity of Long’s property. They found two dogs lying in the street and chased the dogs onto Long’s property, where they discovered other dogs either on chains or running loose, outdoor kennels, a pile of dog food mixed with dirt and feces, and buckets containing algae-covered water.
AUST
Susannah A. Stinson | Leslie J. Bollier | Tony Ciccone | Rekha Roarty David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico, LLP.
SUBJECT-MATTER JURISDIC TION: An association that files suit on behalf of its members in federal court based on diversity jurisdiction may not satisfy the amount-in-controversy require ment by aggregating the claims of its members; instead, at least one member must allege an individual claim that exceeds the amount in controversy.
The following are summaries of opinions issued by the Fifth Circuit. The summaries are overviews of particular as pects of the opinions; please review the entire opinions.
EMPLOYMENT: A policy permitting men to have full weekends off, but not women, does not violate Title VII because, under existing Fifth Circuit precedent, only discrimination that leads to an ultimate employment decision— such as firing, promoting, or compensating—is actionable.
La. Indep. Pharmacies Assoc. v. Express Scripts, Inc., 41 F.4th 473 (5th Cir. 2022). Express Scripts, Inc. is a large pharmacy benefits manager that administers Medi care Plan D prescription benefit plans. Following an interpretation of federal and state law by the Louisiana Department of Insur ance, Express Scripts announced that it would not reimburse phar macists for certain fees charged on prescriptions covered by Part D plans. The Louisiana Independent Pharmacies Association (LIPA) sued Express Scripts on behalf of its members in federal court, seeking a declaratory judgment that certain Louisiana statutes are preempted by Medicare Part D. The only stated basis for jurisdiction in the complaint was federal-question jurisdiction. Express Scripts moved to dismiss the case for failure to state a claim. The district court denied the motion but certified the order for interlocutory appeal, which the Fifth Circuit accepted. On appeal, the Fifth Circuit did not address the merits of the preemption question, but instead raised the issue of subject matter jurisdiction sua sponte and dismissed the case on that basis. After concluding that there was no basis for federal-question jurisdiction on the face of LIPA’s complaint, the court considered diversity jurisdiction. LIPA did not originally plead diversity as a basis for jurisdiction and, therefore, did not allege facts necessary to support to support the amountin-controversy requirement. The court explained that this was not necessarily fatal because courts of appeal may remand cases lacking such allegations to the district court for amendment if there is “some reason to believe that jurisdictionAttemptingexists.”tomeet this standard, LIPA argued that if per mitted to amend, it could allege facts showing that its members, in the aggregate, would lose an amount well in excess of the $75,000 associations,lelthisrequirement.amount-in-controversyThecourtfoundinsufficient.Drawingaparaltostandingrequirementsforthecourtheldthat an association suing on behalf of its members must allege that at least one its members individual ly satisfies the amount-in-contro versy requirement. Because LIPA offered no such allegation, the court dismissed the case for lack of subject-matter jurisdiction.
Hamilton v. Dallas County, No. 21-10133, 2022 WL 3050078 (5th Cir. Aug. 3, 2022). Nine female detention service officers working at the Dallas County Jail sued Dallas County for discrimination under Title VII after the County instituted a gender-based schedul ing policy under which only male officers were given full weekends off whereas female officers were allowed two weekdays off or one weekday and one weekend day off. The County moved to dismiss for failure to state a claim. The Coun ty did not dispute that policy ap plied to all members of a protected class or its discriminatory intent. Instead, the County argued that, under Fifth Circuit precedent, the denial of weekends off does not constitute an adverse employ ment action, which is a required element of a Title VII claim. The district court agreed and granted the motion to dismiss. On appeal, the Fifth Circuit af firmed. The court recounted Title VII’s statutory text, which prohib its discrimination with respect to the terms, conditions, or privileg es of one’s employment because of one’s sex. The court observed that, given the generally accepted meanings of terms and condi tions, denying women but not men the right to have weekends off on the basis of sex constitutes discrimination with respect to the terms or conditions of those women’s employment. Citing the rule of orderliness, however, the court held that it was bound by existing circuit precedent under which a plaintiff must suffer an adverse employment action by the employer that amounts to an “ultimate employment decision” —such as firing, promoting, or altering compensation—to have a viable Title VII claim. The court therefore affirmed the dismissal but stated that the case present ed an ideal vehicle for en banc reconsideration of precedent on this issue.
The Bollier Ciccone team provides premium and personalized services to discerning clients seeking award-winning family and civil law a�orneys.
SEPTEMBER 2022 | AUSTINLAWYER 31
AUST INL AW Y ER AL AL >
FEDERAL CIVIL COURT UPDATE L A W F I R M LL P 1101 S. Capital of Texas Hwy Building G, Suite 200 Austin, TX 78746 512.477 5796 | BCLAWTX COM Family Law | Real Estate | Construction Law | Commercial Litigation
AUSTIN BAR: Why did you want to be an attorney?
AUSTIN BAR: Why is it important to you to be on the CAFA list?
SECTION SPOTLIGHT 32 AUSTINLAWYER | SEPTEMBER 2022
STRICTLY CONFIDENTIAL Featured in Being the chair of CAFA allows me the ability to bring this niche group of attorneys together and brainstorm ways to help families and children in Texas not only become better, but become an asset to society in general. “ ”
AUST INL AW Y ER AL AL Michael “Miz” Ludvik is an owner at Ludvik Law Group, PLLC, who primarily practices child welfare, family, and criminal law. His passion is representing children and being their legal voice in the courtroom. He also represents indigent clients and strives to maintain and empower all constitutional rights—most importantly; justice for all.
AUSTIN BAR: Why did you choose Texas Tech for law school?
LUDVIK: I grew up in East L.A. and, after high school, joined the Marines. After several tours, I applied to law school. I thought I could use my legal skills to help others in need at the highest level.
From LA to Lubbock: Meet Michael “Miz” Ludvik, Chair of CAFA
Learn About the Austin Bar’s Court Appointed Family Advocates (CAFA) Section
“Information is power, the not knowing is devastating.”
T he Court Appointed Family (CAFA)AdvocatesSectionis the Austin Bar Association section that provides CLE, train ing, and networking opportunities for lawyers who are on the Travis County CAFA appointment list. These are private attorneys who agree to represent children or par ents in Child Protective Services cases. To get on the appointment list, attorneys must take a mini mum of 30 hours of child welfare law-related CLE and then eight hours annually to stay on the list.
The Austin Bar met with Michael “Miz” Ludvik, the chair of CAFA, to learn how he came to be the chair and his plans for the section.
LUDVIK: I think I always wanted to lead in some aspect. Being the chair of CAFA allows me the ability to bring this niche group of attorneys together and brainstorm ways to help families and children in Texas not only become better, but become an asset to society in general. There aren’t many of us out there (child welfare attorneys), but in Travis County we have some of the best in the state, and we also have creative minds that come up with solutions to prob lems that our state has had for years. I want to use my position as chair to do all of those things.
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LUDVIK: The biggest plan is having meetings and socials in person. The new courthouse will be completed soon, so that is an exciting time as well. Some of the other big plans are getting the section more involved and interactive as a whole with the Austin Bar and State Bar. Want to learn more about CAFA, the Austin Bar’s CAFA Section, or being on the Travis County CAFA appointment list? Contact Mike Ludvik at m@ludviklaw.com.
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LUDVIK: I have always been interested in working with and protecting children. I was a CASA volunteer in law school and volunteered as a Big Brother for many years. Representing children who need a voice was the natural extension of that interest.
LUDVIK: I knew I wanted to be in Texas, and I wanted to go to a law school where I could start practicing in my third year and make a difference the day I passed the bar exam. Law school is an exercise in gatekeeping more than anything else, and I wanted to make sure that I spent my time in law school actually learning how to practice law. Texas Tech is known for its clini cal programs and providing that education to its students.
AUSTIN BAR: Why did you want to be the chair of CAFA?
AUSTIN BAR: What are your plans for CAFA this year?
Divorce and Child Custody Surveillance ~ and more Offices in Austin, Round Rock and Dallas
On this topic, I won’t offer recommendations for using shorter or simpler words in con tracts. Yes, doing so could make contracts more readable, but I’ll propose three reasons why doing so might not be ideal.
1. The studied contracts were commercial contracts entered by sophisticated parties represented by counsel. In my review of the contracts in the corpus, I didn’t see a single consumer contract: apartment lease, credit-card agreement, software-user agreement, car insurance. So, the studied contracts don’t necessarily need to be read and understood by someone without legal training. For the contracts in the corpus, those who need to read and understand the language are lawyers, and those lawyers—we hope—can explain the contract language to those who need to under stand it.
any lawyer and anyone who has read a contract could’ve told you that contracts use words that are rare in everyday English as well as words that have simpler or more-readable synonyms. But is that a problem?
Three More Findings—With Advice BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET T
his is part two of a series discussing the findings of a study, “Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language,”1 in which the authors compared contract language with everyday written English. Here are three more findings: Contract language has higher frequencies •of—center-embedded sentence structure, • words used rarely in everyday English, and • words with a higher-frequency synonym (fancy words that could’ve been simpler).
In the event that any payment or benefit by the Company (all such payments and benefits, including the payments and benefits under Section 3(a) hereof, being hereinafter referred to as the “Total Payments”), would be subject to excise tax, then the cash severance payments shall be Inreduced.2asentence of 47 words, placing another clause of 22 words in the middle makes for difficult reading. An easy fix is to place the embedded definition clause in a separate sentence: In the event that any payment or benefit by the Company would be subject to excise tax, then the cash severance payments shall be reduced. All such payments and benefits, including the payments and benefits under Section 3(a) hereof, are hereinafter referred to as the “Total Payments.” Now we approach a thornier topic: Even without this study,
Next month: My own findings based on the corpora from the study. AUST INL AW Y ER AL AL
Footnotes 1. Eric Martinez, Francis Mollica, & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, Cognition 224 (2022). 2. Id. at 1. 3. Benson Barr, George Hathaway, Nancy Omichinski, & Diana Pratt, Legalese and the Myth of Case Precedent, 64 Mich. Bar. J. 1136, 1137 (Oct. 1985). 4. Contract Assistant, Not Good: Average of 9 Percent of Contracts Result in Dispute, contractassistant.comhttps:///not-good9-percent-of-contracts-result-indispute/ (accessed June 23, 2022).
Readable Contracts Part 2
Center embedding means in serting a phrase or clause within another phrase or clause. Here’s an example from the authors:
But is that a problem?
OPENING STATEMENT SEPTEMBER 2022 | AUSTINLAWYER 33
2. Contracts contain some legal terms that either cannot or should not be simplified. Yes, contracts use words and phrases unique to legal language or with a different meaning from the every day-English meaning. But replacing those words and phrases to enhance readabil ity could introduce risk, or it could require the drafter to use even more words to explain what the legal term means.Butnote: The number of terms of art or unique legal terms is fairly small—smaller than some legal drafters claim. In one study, only 3% of the words found in a standard real estate-purchase agreement had ever been construed or defined by a court.3 3. Revising lengthy, complex contracts for readability might not be cost effective. Given that the commercial contracts in the study were prepared by, reviewed by, and could (I assume) be explained by transactional lawyers, how would we justify the cost of revising them? We’d need to replace rare words with everyday words and replace or explain legal terms. Who’s going to pay for Theseit?contracts were certainly based on forms or precedents from previous transactions, a practice that saves time and money. Add to that fact the reality that very few contracts result in “disputes” (as high as 9% according to one commercial source4) and that even fewer end up in litigation (fewer than 0.1% by one estimate5).
5. Id. Contracts use words that are rare in everyday English as well as words that have simpler or more-readable synonyms.
Sadly, the discourse has neces sarily changed as of late. Some of my colleagues seem far more con cerned with academic questions of substantive due process applica bility than about the stripping of their own long-held constitutional rights. The prior debates about what constitutes viability now seem almost genteel compared to the new reality of urgent debates about what constitutes a life-saving emergency—and who gets to make that decision in a setting where mere seconds of indecision could prove fatal. The notion of hospital lawyers making those decisions pre-emptively in standardized
forced childbirth upon rape victims, children, and women generally. It was previously unnecessary to focus public discourse on basic notions of bodily autonomy because Roe v. Wade and Casey stood as baseline pillars formally enshrining and protecting the same. Heretofore, bodily autonomy was simply a given, leaving the debate to focus on linedrawing and on non-legal personal questions of morality. Those pillars are gone. Without them, the discourse must change again. Debating half-measures and minor carveouts—such as exceptions for the health of the mother, and not punishing rape victims—falls short of bodily autonomy as a human right by a country mile. Politicians dangling the same as bargaining chips arguably risk losing entire swaths of voters if they refuse to provide those rights as a matter of course in the immediate future. The goal for us all should be to get back to framing the discourse around the explicit understanding that abortion is an issue between a woman and her doctor. Anything less constitutes bowing to and accepting the death knell of fifty years of progress on women’s rights—and thus human rights. AUST INL AW Y ER AL AL
Growing up, the discourse surrounding abortion always seemed to focus largely about whether using abortion as a form of birth control was moral, and thus whether a personal decision was moral. Legality was not even on the table. The legal debates instead focused on questions of what constitutes viability and un due burdens—and thus seeking to move the legal goalposts pursuant to Planned Parenthood v. Casey.
For Young Lawyers, the Potential Consequences of Dobbs Are Particularly Palpable
UPCOMING EVENTS
I am not the only person penning a column right now about the
AUSTIN YOUNG LAWYERS ASSOCIATION AYLA PRESIDENT’S COLUMN BLAIR LEAKE , WRIGHT & GREENHILL, P.C. 34 AUSTINLAWYER | SEPTEMBER 2022
The opinions expressed in this column are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.
edicts as opposed to treating doc tors who actually studied medicine should terrify everyone.
THURSDAY, SEPT. 22, 2022 AYLA Judicial Reception The Austin Club, 110 E. 9th St. 5:30 – 7:30 p.m. RSVP: ayla.org Visit ayla.org for a complete list of events and updates.
As I write this, my wife and I are currently expecting a daugh ter. The confluence of that timing with Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) and Texas’s abortion laws has produced personal fear levels that range from concerning to terrifying at any given moment— both in the short and long term. Suddenly, we as a family are faced with hypothetical questions such as whether any Texas doctors would even be willing to perform an abortion if my wife’s life depended on it. We are also faced with the depressing question of whether my soon-to-be-born daughter—a doesraisedTexan—wouldfifth-generationbebetteroffbeinginadifferentstatethatnotstatutorilyendorse
C.D.C. data reflects that 92% of abortions are performed in the first 13 weeks of pregnancy, how ever, and thus most viability de bates only touched on a tiny sliver of abortions being performed. The parameters for public discourse were all but set because we as a society had accepted the general proposition of bodily autonomy as a human right. Once that was established, the questions and discourse became more nuanced and questions of degree—or at the very least less intrusive on the understanding that bodily autonomy was the baseline. In that context, it seemed like an archaic impos sibility that our government could ever criminalize abortions performed for the health of the mother, for pregnancies brought about by rape or incest, or for fetal conditions such as triploidy. The unthinkable is suddenly nigh, however, as we stand at the precipice of just such a potential dystopian future depending on the state within which you reside.
membersouttivelyofprogress2022pingoforiginal,beCertainly,criminalizationsuddenofabortion.myiterationwillnotthemostcompelling,themostnorthemostwell-sourcedthebunch.However,thestripofwomen’srightsintheyearissuchanaffronttosocietalthatitdeservesasmuchourattentionaswecancollecbear.Itisworthpointingthatmost,ifnotall,ofAYLA’s had not even been born when the right for a woman to make her own reproductive medical decisions was first consti tutionally recognized. We do not know a world where such a right was not a foregone conclusion. Young lawyers are also more likely to face family planning decisions than are our more seasoned peers. Thus, perhaps a (not-all-that) young lawyer can add a different perspective to the cacophony of voices currently weighing in.
T
I s your practice suffering because of a personal crisis? Are you enduring tough times but don’t know where to turn? The Per sonal Crisis Assistance Program (PCAP) is here to help. PCAP was created in 1996 to support Austin-area attorneys who face an immediate need for tempo rary financial or practice assistance because of a personal crisis. The objective of the program, funded by the AYLA Foundation, is to serve as a protection for lawyers and their clients when personal emergencies harm a lawyer’s prac tice. PCAP is available to attorneys who work or reside in Travis Coun ty and who are eligible for regular membership in AYLA. PCAP includes two levels of short-term assistance:
• Practice-Related: Attorney vol unteers agree to handle profes sional matters for the affected lawyer during the crisis. To apply confidentially for as sistance, contact Debbie Kelly at 512.472.0279 x105 or debbie@ austinbar.org.Youhaveworked hard to build your career. PCAP is here to help you get back on your feet.
AYLA members enjoying events organized by the Health and Wellness committee ncluding a Day on the Lake, bouldering at the Austin Bouldering Project, a hot yoga class, and an Orange theory fitness session.
• Financial: PCAP provides limited grant funds of up to $1,500 to assist an attorney who is unable to fulfill certain prac tice-related financial obligations because of a personal crisis.
AYLA Health and Wellness Committee
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the faint of heart, as members completed a mid-level hot yoga session at Black Swan. Attorneys were able to find gratitude and calm with a guided meditation. They decided to keep the good vibes going and connect ed over smoothies after the class. The committee ended the year under the sun with a Day on Lake. Members relaxed, rowed, and fished on their kayaks and paddle boards. It ended up being a perfect day for keeping cool despite this sum mer’s record-hot temperatures. The committee would like to thank the Texas Young Lawyers Association (TYLA) for making the events this past year possible through its grant funding. Not only were members able to attend most events for free, but a few lucky members won prizes that enhanced their health and well-be ing. This could not have happened without the support of TYLA. Expect more opportunities for balance and health this upcom ing year, including outdoor events and even a cooking class. Next up, join the AYLA CASA 5K Team again at the 2022 Superhero Run. Join this great cause and register at andcancasatravis.org/team/429385https://give..Youalsoparticipatebydonatingcheeringontheteam.
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AUSTIN YOUNG LAWYERS ASSOCIATION SEPTEMBER 2022 | AUSTINLAWYER 35
his has been quite the active first year for the Austin Young Lawyers Association Health & Wellness Committee. Members of all fitness levels experienced a variety of ways to exercise while getting to know other young attorneys.The2021-22 bar year started with members running, walking, cheering, and raising money at the 2021 CASA Superhero Run. CASA is a non-profit organization that empowers community mem bers to advocate for children in the court system who have been abused or neglected. Once the weather cooled, attor neys hit the outdoors and hiked the Turkey Creek Trail. Hikers were able to enjoy nature with some cardio while exploring this intermediate-level trail. During the holiday season, attorneys ran and walked off the stuffing and yams by competing at the Turkey Trot. Runners participated both in person and virtually.InMarch, attorneys broke a sweat at a private complimentary Orangetheory class. Participants learned how to effectively raise and lower their heartrate while running, rowing, and working out on the weight floor. AYLA did not deprive mem bers of opportunities involving cardio. In April, attorneys con tinued their training and joined Team AYLA in more
wasYogatheattorneysanceexemplifiedDubbersteinmemberEastciders.Brewingandbrewscelebrateafterwardscamedale.ProjectBoulderingatfitsaboutmembersCapcheeringwalking,running,andatthe10K.InMay,learnedthebeneofboulderingtheAustin–SpringParticipantstogethertowithatFriendsAllies+AustinCommitteeRoslynbalinteachingatJuneAYLAClass.Thisnotaclassfor
AYLA is Here to Help!
DUBBERSTEIN: I got involved in AYLA about a year ago and I was on the committee for the first-ever Crawfish Boil fundraiser. It was an awesome opportunity to get to know fellow attorneys and contribute to the organization.
AYLA: What is your best advice for fellow young attorneys?
AYLA: Tell us a little bit about yourself and your law practice.
DUBBERSTEIN: I love the food, the people, and the endless list of things to do! I never get tired of driving over Town Lake and thinking “Wow, I get to live here.” I grew up in Oklahoma and spent some time in L.A. after college. Austin feels like the perfect hybrid of the comfort of home and the energy of a city.
Being a lawyer is inherently stressful, and the first few years of practicing law are arguably the most anxiety-inducing periods of your life (aside from 1L finals and the bar exam). As you enter the real world, you’ll learn very quickly that law school did not teach you how to actually practice law. But rest easy! Practicing law doesn’t have to be as terrifying as it seems. Below are some practical tips gathered from seasoned attorneys across the country from their years of experience (tips that they wished they’d learned in law school).
DUBBERSTEIN: I wanted to be on Broadway. But I also always wanted to be a teacher—every day after school I would come home, get out my whiteboard, and immediately play “school.”
1. Learn how to work a case from start to finish. From drafting a petition, to filing it, getting it served, actually trying the case, and clos ing out the file, you need to know how to work an entire file without any help or support. This usually means sitting with a senior paralegal and observing, asking as many questions as possible.
2. Your client’s problems are not your problems. It is easy to become emotionally invested in a case, especially in your first year of practice. CONTENT
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To preserve your sanity, you need to divorce yourself from the emotions of the case. Just because your client is going through a tough time does not mean you need to, as well.
3. Confirm everything with everyone via email. Did a partner give you a deadline for a project? Confirm it via email. Did opposing counsel confer with you over the phone about a discovery deadline? Confirm it via email. Email is your best friend, and will save you from many future headaches when people try to dispute events.
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AUSTIN YOUNG LAWYERS ASSOCIATION 36 AUSTINLAWYER | SEPTEMBER 2022 AYLA Member Spotlight – Roslyn Dubberstein
AYLA: What was your childhood dream job?
AYLA: What are some of the things you enjoy most about living in Austin?
4. Familiarize yourself with the most common objections and exceptions to hearsay. Actually trying a case in a courtroom is an anxiety-riddled adventure. You can make it a lot easier on yourself by memorizing the most common objections and exceptions to hearsay. Objection, non-re sponsive, and the hearsay exception of admission by the opposing party will become powerful tools in your kit.
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5. Every court has local rules - learn them. Don’t rely on the paralegals to know every rule of every court. Ultimately,It is your bar card on the line, and you bear the responsibility of blowing an arbitrary deadline imposed by the court. Pressure and drama go hand-in-hand with the practice of law, especially for your first few years. However, by utilizing some of the tips outlined above, you can hopefully alleviate stress and become a better attorney in the process. Just remember—every attorney goes through this period in their legal practice. Have grace with yourself, and remember that you are not alone. . Sign up by August 31, 2022 and pay no monthly fee until 2023!
Roslyn Dubberstein practices at Lloyd Gosselink Rochelle &Townsend, P.C. The SMU Dedman School of Law graduate works with the Energy and Utility practice group at the firm. She’s a self-described administrative-law nerd and enjoys being involved with AYLA activities.
DUBBERSTEIN: I graduated from SMU Dedman School of Law in 2020 and began my career as a staff attorney in the Litigation Division at the Texas Commission on Environmental Quality (TCEQ). After a year with TCEQ, I took an associate position in the Energy and Utility practice group at Lloyd Gosselink Rochelle & Townsend, P.C. We primarily represent cities before the Public Utility Commission and the Railroad Commission. I enjoy the work because I get to nerd out on administrative law and I have the opportunity to become specialized in a unique practice area. In the non-law hours of my life, I am usually cooking, hanging with my pup, Penny, or teaching yoga.
Learn more about LawPay at lawpay.com. Sign up by August 31, 2022 and pay no monthly fee until 2023!
AYLA: What has been your best AYLA experience so far?
DUBBERSTEIN: Your path is your own! During law school, it was easy to feel like there was a “right” way to do things. Being a practicing attorney has empow ered me to feel confident in forging my own individual career path. Also, stop for a deep breath every now and then and take breaks from technology.
Cornell Smith Mierl Brutocao Bur ton, LLP Bronze Munsch Hardt Kopf & Harr, P.C.
The Austin Bar Association/ AYLA Leadership Academy would like to extend a sincere thanks to the distinguished speakers who graced its meet ings, the outstanding sponsors, the amazing committee mem bers, this year’s incredible class, and the Academy’s remarkable full-time staff champion, Debbie Kelly. AUST INL AW Y ER AL AL
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The class’s fundraising was an outstanding success, as total proceeds from event sponsor ships, donations, and attendees exceeded the class’s goals and allowed them to complete all of their planned remodeling efforts of the victim-witness room. Class member Dondrai us Mayhew, who previously served as a juvenile prosecutor, noted that the room serves an extremely important purpose and needed updating. “It provides a private and safe space for victims, witnesses, and families to wait prior to and during court proceedings in which they will be called to testify.” Mayhew stated that the renovations “will help to provide a more comfort able environment for victims and witnesses during all stages of the criminal justice process.”
T he Austin celebratedLeadershipAssociation/AYLABarAcademytheclose of its official curriculum and the graduation of its tenth class on June 24, 2022. During the course of this year’s Academy, the class attended meetings at which they heard from more than a dozen distinguished speakers who provided insight on leadership and events in the local community, and highlight ed Austin Bar committees and other areas for future involve ment. Additionally, the class networked with each other in small groups called “triads,” and completed a capstone volunteer project aimed at helping the local legalClasscommunity.members, ranging from new attorneys to more experi enced lawyers, appreciated the networking opportunities and introduction to the Austin Bar. Class member Michelle King stated, “Especially as a firstyear attorney, the Leadership Academy was a great way to meet people and get involved with the Austin Bar. It was so fun to be able to collaborate with attorneys from all different backgrounds and practice areas.” Class member Kayna Levy opined, “A decade into practice I felt like I knew very few of my peers in the community. The monthly small group ‘triads’ and unique opportunities to work together in our committees were a great way to have extended time to connect with new folks.”
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The class hosted Lawlapa looza on June 11 at Hilgers House. According to King, “We could not have asked for a better location or setup, and the park offered plenty of room for the yard games and band, and provided some much-needed shade.” She noted that the event was designed to be kid-friendly.
McGinnis SavrickMichelleThompsonLochridgeCoeandTomHunterSchumannJohnson
This year’s class poured their efforts into a two-part project: They hosted a family-friendly carnival they titled “Lawlapaloo za” to raise funds, which they then devoted to remodeling the victim- witness room at the Gardner-Betts Juvenile Justice Center.
The class completed remodel ing efforts during the weekend of July 16. Mayhew stated that the renovations went even better than expected. Class member Carl Gurthrie confirmed that sentiment. According to Guth rie, the “renovation went really well. We got most of the work done the first morning, painted, and came back the next morning to move furniture into the painted room.” Levy noted that, in order to provide a calming and warm environment, the class painted the room in “colors from nature and introduced soft textures and lighting.”
“I think the yard games, snocones, and bounce house were all things that the kids (and adults!) really enjoyed.”
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AUSTIN YOUNG LAWYERS ASSOCIATION SEPTEMBER 2022 | AUSTINLAWYER 37
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The Perils of Riding the “Wayback Machine”
A
s kids in the early 1960s, my friends and I loved the often salty humor of the “Rocky & Bullwinkle Show.” Rocket J. Squirrel, a.k.a. “The Flying Squirrel,” and his dimwit ted moose friend (and comedic foil) Bullwinkle J. Moose, tackled humor in a very adult way. Quite often, even as children, we knew that the writers liberally sprin kled the scripts with social and political humor, clearly intended for adults. The episodic adven tures of the main characters were always terrorized by villains Boris Badenov1 and Natasha Fatale, parodies of bumbling Russian agents. We felt safer seeing them continually outsmarted by “Mousse and Skvare-ell”—as Boris called them. The show also had multiple serial cartoons: the melodramatic Dudley Do-Right of the Mount ies, the modernized “Fractured Fairy Tales” parodies (narrated by the distinctive voice of Edward Everett Horton—in my mind, clearly the model 25 years later for Frasier Crane), and of course, Professor Peabody (a genius be spectacled dog) and his assistant Sherman, who ventured into the past with the help of their “Wayback Machine.” Through out the show, laughs prevailed with short gags; features like Mr. Know-It-All, and Aesop & Son. Bad puns abounded throughout, and we squealed with delight at the divine silliness. As fun as that was, we un derstood then that going back in time is never a wise idea, in movies, books, or real life. And many times, the past belongs in the past. The inevitable arc of freedom and steady pursuit of fairness and equal rights has been a forward-marching hallmark of the American Experience. Until Peoplenow.who enjoyed an earlier, and much different, social order have spent decades now crafting a return to a past which is more to their liking. Careful, and often brilliant, efforts have been pursued to dismantle 50 years of social progress and civil rights. Slowly and step-by-step, we have eviscerated and abandoned the transformative investments in infrastructure, education, voting rights, consumer and environ mental protections, and ac knowledgement of constitutional rights in the area of privacy and self-determination.Gerrymandering in our dear Lone Star State now means that the party in power in the Texas House stays in power with as little as 43.9% of the vote. The opposing party must muster at least 56.2% to change that tide. Hmm… Do you think that’s what the revered Founding Fathers (the “FFs”) intended? Maybe the FFs didn’t think about that because the convention was con sumed with protecting the right to bear semi-automatic assault rifles and ensuring a woman’s right to self-determination. I’m sure those were mentioned some where in the Federalist Papers. KeepWhilelooking.every reliable poll shows that the majority of the United States population is in favor of having government stay out of the abortion decision, we now find ourselves uncomfortably riding in the Wayback Machine to a frighteningly dangerous time. Two forms of hypocrisy have dominated. First is the pretense that we don’t want activist judges, while fast-tracking judges with clear political loyalties and often non-existent judicial or trial experience. This has resulted in manifest reversals of precedent, gutting of the Voting Rights Act, and a full-out D-Day assault on individual rights. Stare decisis? It might as well be Elon Musk’s latest Tesla model. The second hypocrisy is any pretense of statesmanship—de fined as making policy which will improve the overall posterity of our citizens. Our politicians are simply team players: beholden to their sponsors and donors, and terrified to disappoint them. Our hypocrisy underlying the pretense of concern for human life is clearly on display. As of 2019, Texas ranked dead last in health coverage for women aged 19 to 64—double the national rate; 44th in school funding; 41st in child hunger; and 49th in prenatal care. Apparently, the Texas “miracle” hasn’t included mothers and children. In 2021, Texas not only voted down Medic aid expansion, but the legislature refused to even conduct a study. This leaves our state as only one of 12 which hasn’t expanded Medicaid, including such Way back promoters as Mississippi, Alabama, and Georgia.
The opinions expressed in Entre Nous are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.
Lawyers must help people understand the dangers of our fascination with the Wayback Machine, and how the erosion of rights gained over 150 years is fraught with peril.
ENTRE NOUS 38 AUSTINLAWYER | SEPTEMBER 2022
As for our decision to misin terpret the Second Amendment, as a board-certified appellate lawyer, I know that often, you must cherry-pick your best facts, and ignore—or somehow neu tralize—the bad facts. Returning to the Federalist Papers: In No. 29, Alexander Hamilton fully explores the need for a “wellregulated militia” (as a basis for bearing arms) rather than a large professional army, arguing that an “excessively large militia” can harm a nation’s work force, as people cannot leave their jobs to serve. But a smaller, and more well-trained militia (he even sug gests bi-annual trainings), is the
BY CLAUDE DUCLOUX
Board-Certified in Family Law and Civil Appellate Law by the Texas Board of Legal Specialization
AustinDivorceLawyer.com 512.605.0999 Attorney Erin Leake Board-Certified in Family Law by the Texas Board of Legal Specialization answer, and if properly managed they are not a danger to liberty. Now, equipped with Hamilton’s specific reasoning for the need to keep and bear arms, please explain why a modern country, with a professional army, can’t properly keep military weapons of mass murder out of the hands of those who are not part of a “well-regulated militia?” Well, we could if we wanted to—without any fear of offending the Second Amendment. But we’ll give murdered citizens “thoughts and prayers” rather than leadership. We can’t even attend a 4th of July parade because of these horren dous, Wayback decisions. Which brings me to the point of this article. Doctors are in the best position to make medical decisions, not politicians. Let people decide their own personal fates with the guidance of their own physicians. To be deprived of your right to control your own personal fate is an unthinkable abomination. Doesn’t the 13th Amendment prohibit that? Likewise, lawyers are society’s leaders in the areas of liberty, freedom, and public education. We need you. You—yes you, the person reading this—must assume leadership.Thatmay be by writing, by helping people understand the dangers of our fascination with the Wayback Machine, and how the erosion of rights gained over 150 years is fraught with peril. Remember also, when attempting to influence the opinions of oth ers, to follow the what the famous French philosopher Blaise Pascal taught: “To effectively persuade someone to change his mind, lead him to discover a counter point of his own accord.” Find agreements first, and then support argument withMoreover,facts. remember that the Rule of Law is more fragile now than it has ever been in our lifetimes. Promote the truth, and don’t let people lie in your presence. Stay informed, and lead. You have the power, and I say the duty, to make people’s lives better. Keep the faith. AUST INL AW Y ER AL AL
1. As a child living in an opera household, I fully understood the pun posed by the name “Badenov.” There is an opera by Mussorgsky about the Czar “Boris Gudunov” who reigned 1598-1605. I may have been the only 11-year-old who got the joke. Sadly, explaining that joke to other 11-year-olds was a fool’s errand.
Attorney Jillian French Board-Certified in Family Law by the Texas Board of Legal Specialization
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