LE GAL TREND S

Program Gives Civil Litigation Associates Valuable Courtroom Experience

By Da ne Schiller M ichael Bender’s first day volunteering for a new program created by Harris County District Attorney Kim Ogg left him stormbattered, sopping wet and barefoot in court.

The 27-year-old associate from Hunton Andrews Kurth LLP had been through three days of training and was ready to pick a jury as a temporary prosecutor in one of the county’s sixteen Justice of the Peace Courts. It would be a traffic offense—an otherwise stress-free experience for a veteran lawyer—but for a newly-licensed associate, handling that first trial can be incredibly taxing, as jurors would make their decision based on what he argued.

For Bender, the stress of preparing for his first trial was exacerbated by the dangerous stormy weather that preceded Tropical Storm Imelda. At the last minute before trial, the storm rolled into Houston and the court’s afternoon docket was cancelled. Before people could leave the courthouse on North Shepherd, the parking lot flooded. Bender pulled off his Cole Haans and socks, rolled up his slacks and started helping as people pushed cars to higher ground. They were stranded at the courthouse for hours.

Standing in the courtroom, soaking wet in his bare feet on what was supposed to be his first ever trial day, Bender kept thinking the same thought: “Yesterday I didn’t know any of these people, and now they’ve all seen my toes.”

Despite his difficult first day, Bender returned and eventually was able to go to trial. He and nine other young lawyers from four of Houston’s most prominent civil law firms are gaining courtroom experience in criminal cases because of the new initiative introduced under Ogg. The district attorney’s “pro bono attorney program” is a trend that premiered in Houston with a program that allowed civil litigation associates to try cases in municipal courts. The program has also been implemented in Chicago by Cook County State’s Attorney Kimberly Foxx.

“The program puts some of Houston’s best new lawyers in courtrooms to get trial experience while lightening the workload for prosecutors,” Ogg said. “Because the lawyers are employed by large law firms, there is no added cost for Harris County.”

It’s a win for the law firms, as well. Baker Botts, Bracewell, Hunton Andrews Kurth and Vinson & Elkins are participating.

“We appreciate any opportunity for our young lawyers to get in the courtroom,” said Tony Visage, a partner at Bracewell. “The Harris County DA program provides real world experience, including working with opposing counsel and interacting with the Court.”

Jason Powers, a partner at Vinson & Elkins, said “We’re excited about this program, both because of the experience it can provide our lawyers and because it is an honor to provide a public service like this here in our hometown.”

V&E associate Anna Johnson, who tried her first case as a volunteer prosecutor, agreed: “Being able to try a case before a jury as a first-year associate was an incredible opportunity.” Yvonne Taylor, chief of human resources, and Johanna Craft, chief of the justice court section, oversee the program. It allows civil attorneys, with the approval of their firm and under the authority of the district attorney, to volunteer as pro bono attorneys in the highvolume JP courts, generally once a week for six months.

The attorneys enhance their courtroom skills while helping the DA’s office with the thousands of Class C misdemeanor cases on the docket. To begin, they attend three day-long trainings: a trial skills day, a docket management day, and a day where they shadow a prosecutor.

“It’s important for the development of the young lawyers, not just for the advocacy skills, but also to expand their view of the community,” said Taylor, the HR chief. “It gives them an opportunity to give back, make the community safer, and help develop a sense of compassion for people in situations they might not see otherwise.”

Law firms interested in participating should contact Taylor at the DA’s office.

Craft, chief of the justice section, said she worried Bender and others wading in the water were going to get bitten by snakes

“We had to get a high-water vehicle to get us out.” Craft said. “The water came up to the windows of the cars in the parking lot. It was crazy how fast the water ‘‘ V&E associate Anna Johnson, who tried her first case as a volunteer prosecutor, agreed: ‘Being able to try a case before a jury as a first-year associate was an incredible opportunity.’”

came in.”

For Bender, it was a day that he’ll never forget.

“People who came before me always told me their ‘war stories’ about what they dealt with in court,” he said. “Now I’ve got my own.”

Dane Schiller is the Communications Director for the Harris County District Attorney’s Office.

Klocke v. Watson: Fifth Circuit Denies the TCPA’s Applicability in Federal Court Diversity Cases

By Liz Furlow I n August 2019, the Fifth Circuit Court of Appeals denied the availability of motions to dismiss under the Texas Citizens Participation Act (“TCPA”) in diversity cases in federal court. 1 The Texas Legislature enacted the TCPA in 2011 to “encourage public participation by citizens by protecting a person’s right to petition, right of free speech, and right of association from meritless lawsuits arising from actions taken in furtherance of those rights.” 2 In other words, the Legislature sought to curb perceived abuses in the legal system through antiSLAPP (Strategic Litigation Against Public Participation) legislation.

Through the TCPA, a party can seek early dismissal of any claim that, based on the movant’s preponderance of the evidence, infringes on a person’s right to free speech, right of association, or right to petition. If the movant meets that burden, the non-movant must prove each element of the claim with “clear and specific evidence.” 3 Even then, a movant can still obtain dismissal and a fee award if it shows, through a preponderance of the evidence, a valid defense to the nonmovant’s claim. A nonmovant who cannot meet its evidentiary burden, or whose claim is barred by a valid defense, is subject to mandatory dismissal and required to pay attorney’s fees and costs; the court may also impose sanctions. In addition to this burden-shifting framework and heighted evidentiary standards, the TCPA also sets specific deadlines for the TCPA motion, as well as deadlines for hearing and ruling on the motion. In Klocke v. Watson, Plaintiff-Appellant Wayne Klocke’s son, Thomas, was a student at the University of Texas at Arlington who killed himself after the University refused to let him graduate. He was allegedly falsely charged with “homophobic harassment” allegations for which the University administered punishment. Klocke sued the school, alleging defamation, and the University moved to dismiss Klocke’s defamation claims under the TCPA. After the district court granted the University’s motion for dismissal—disregarding Klocke’s procedural objections to the TCPA motion—it awarded attorney’s fees and costs to the movant, as well as a nominal sanction; Klocke subsequently appealed.

Ultimately, the Fifth Circuit found that the TCPA did not apply to diversity claims brought in federal court. The Court examined the statute through the Erielens—citing the reasoning that “substantive state law must be applied in federal courts in diversity cases... but state procedural law yields to the applicable Federal Rules.” 4 The Fifth Circuit reasoned that because the TCPA imposes evidentiary requirements that go beyond the pleading standards outlined in Federal Rules of Civil Procedure 8 and 12 and the evidentiary standards of Rule 56, the statute conflicts with federal law and cannot be applied to diversity cases in federal court.

Though the amended TCPA went into effect on September 1, 2019, the statute will likely still be inapplicable in federal diversity cases, as the amended statute removes the “preponderance of the evidence” standard for movants, but retains the “clear and specific evidence” standard for non-movants . Liz Furlow is an associate at Baker Botts LLP where she practices commercial litigation. She is on the editorial board of The Houston Lawyer. Endnotes 1. Klocke v. Watson, 936 F.3d 240, 242 (5th Cir. 2019), as revised (Aug. 29, 2019). 2. Texas Citizens Participation Act, H.B. 2973, 82nd Leg., 1st Called Sess. (codified as amended at TEX. CIV. PRAC. & REM. CODE ch. 27). 3. Id. at 27.005(c). 4. Klocke, 936 F.3d at 244. ‘‘ In Klocke v. Watson, Plaintiff-Appellant Wayne Klocke’s son, Thomas, was a student at the University of Texas at Arlington who killed himself after the University refused to let him graduate. He was allegedly falsely charged with ‘homophobic harassment’ allegations for which the University administered punishment.”

Banning Ban the Box Enforcement Guidance in the Fifth Circuit

By Na talie DeLuca I n 2012, the Equal Employment Opportunity Commission (“EEOC”) issued standing Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (“Guidance”). 1 In August 2019, the Fifth Circuit Court of Appeals issued an opinion in State of Texas v. Equal Opportunity Commission enjoining enforcement of that Guidance. 2 Based on the Court’s findings, attorneys may now need to reexamine prior advice on the Title VII liability associated with consideration of criminal conviction history in hiring and employers may revisit their hiring processes.

The EEOC’s 2012 Guidance followed on the heels of a national “Ban the Box” movement. 3 Standard job applications have historically asked the applicant to declare whether they have ever been convicted of a crime by checking either a “Yes” or “No” box. An affirmative answer to this question could be used as an easy hiring tool for employers to categorically screen out consideration of any applicant with any criminal history. For those with any criminal history, this purportedly presented a challenge to gainful employment because it precluded even preliminary consideration of their skills and experience and the chance to explain the particulars of their criminal past in an interview. Viewed as a civil rights issue by activists, the Ban the Box campaign first began petitioning public sector employers to altogether eliminate the criminal conviction question on employment applications. 4 However, Ban the Box never meant that an employer was expected to expose their operations to any applicant regardless of criminal history. Rather, it simply challenged employers to scrutinize criminal conviction history in a tailored way. That process was largely directed by the EEOC’s Guidance.

The Guidance asserted that consideration of criminal history could result in inadvertent discrimination against applicants in protected classes in violation of the Title VII of the Civil Rights Act of 1964, particularly with respect to race and national origin. 5 The Guidance therefore required that an employer’s consideration of arrest or conviction history must be related to the specific job sought and consistent with the employer’s business necessity. 6 No longer could arrest preclude employment because mere arrest, which is not proof of criminal conduct, could not be proven to be “job related” absent more. 7 The EEOC recommended that “employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.” 8 Essentially, the EEOC recommended banning the box.

The Guidance established two methods for an employer to show job relatedness and business necessity. As a first option, EEOC allowed for formal validation of employer screening processes per the Uniform Guidelines on Employee Selection Procedures. Validation, however, usually requires the assistance of paid social sciences experts, but even the EEOC acknowledged that validation studies linking a particular conviction to future work behaviors, traits, and conduct, were rare at the time of the Guidance. 9 This left employers to largely rely upon the EEOC’s second recommended method: individualized assessment of the nature and gravity of the criminal conduct, the time passed since the offense and/or completion of the sentence, and the nature of the job sought. 10 Unsurprisingly, this required employers to establish a substantially more complex application evaluation process than simply screening out all applicants with a conviction. The State of Texas, like many employers, maintained no-felon hiring policies as to certain positions such as, for instance, police officers, game wardens, teachers, and corrections officers. 11 In some cases, Texas’ policies were derived from state statutes addressing the hiring of those with certain convictions. 12 But, the Guidance had explicitly warned ‘‘ The EEOC’s 2012 Guidance followed on the heels of a national ‘Ban the Box’ movement. Standard job applications have historically asked the applicant to declare whether they have ever been convicted of a crime by checking either a ‘Yes’ or ‘No’ box.”

that when candidate exclusion was not proven to be job related, even compliance with a state exclusion law would not be an effective defense to Title VII because Title VII would preempt such a state law. 13 In 2014, the State of Texas challenged the EEOC Guidance, seeking an injunction of the EEOC’s allegedly unlawfully promulgated Guidance. 14 Further, Texas sought a declaration that notwithstanding the EEOC Guidance, it could lawfully per se exclude felons from state employment. 15 Texas asserted that the EEOC Guidance caused it to choose between violating the state’s blanket no-felon laws or following those laws and subsequently risking an EEOC enforcement action because of failure to conduct the EEOC-mandated individualized assessments. 16 Although initially dismissed by the trial court, the Fifth Circuit on appeal remanded the case for reconsideration in light of a new Supreme Court precedent addressing judicial review of final agency action under the Administrative Procedure Act (“APA”). 17 The trial court ultimately enjoined enforcement of the Guidance until such time as the EEOC complied with APA rulemaking requirements for a notice and public comment period. 18 But, on appeal, the Fifth Circuit enjoined the EEOC from enforcing the Guidance against Texas, regardless of whether eventual compliance with APA rulemaking processes was achieved. 19 The court found that the Guidance bound the EEOC to a specific legal position to such a degree that noncompliance with the guidance naturally risked legal consequences for employers. 20 It was, therefore, a final agency determination and a substantive rule implementing Title VII, which the EEOC lacked authority to promulgate at all, regardless of efforts at APA compliance. 21 Notwithstanding the court’s ruling, discrimination in hiring and neutral hiring policies that result in discriminatory impact are still unlawful pursuant to Title VII. Practically speaking, while the enforcement of the Guidance is now enjoined, it may have long ago served its primary purpose of changing employment applications, employer hiring processes, and the way employers think with respect to convicted applicants. Now, employers who, in response to the 2012 Guidance, banned the box in favor of a robust conviction analysis may be asking: what is the point of bringing back the box now?

Natalie DeLuca is in-house Legal Counsel at the Metropolitan Transit Authority of Harris County, Texas. She is board certified in Labor and Employment Law by the Texas Board of Legal Specialization.

Endnotes 1. EEOC Enforcement Guidance, U.S. EQUAL EMP’T COMM’N, https://www.eeoc.gov/laws/guidance/ arrest_conviction.cfm. 2. Texas v. Equal Emp’t Opportunity Comm’n, 933 F.3d 433 (5th Cir. 2019). 3. Ray Maurer, ‘Ban the Box’ Turns 20: What Employers Need to Know, SHRM (Nov. 12, 2018), https://www. shrm.org/resourcesandtools/hr-topics/talentacquisition/pages/ban-the-box-turns-20-whatemployers-need-to-know.aspx. 4. See Take the Fair Chance Pledge, BAN THE BOX, www.bantheboxcampaign.org (providing the general background and history of the Ban the Box Campaign). 5. See supra note 1 (noting how “African Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population.” sic.). 6. Id. 7. Id. 8. Id. 9. Id. 10. Id. 11. Texas, 933 F.3d at 439. 12. See e.g., TEX. EDUC. CODE §21.009 (requiring a pre-employment disclosure of charges, adjudications, or convictions for having inappropriate relationship with a minor). 13. Supra note 1. 14. Texas, 933 F.3d at 439–40. 15. Id. 16. Id. at 439. 17. Texas v. Equal Emp’t Opportunity Comm’n, 838 F.3d 511 (5th Cir. 2016) (citing U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. ___ (2016)). 18. Texas, 933 F.3d at 440. 19. Id. at 451. 20. Id. at 446. 21. Id. at 450–51.

ing to the wind blow through a spring wildscape. She and her husband are also establishing the Lauren and Iain Simpson Conservation Scholarship at the UH Law Center, which will be awarded to a current UH Law Center student demonstrating a significant interest in the conservation of wildlife, of natural areas, or of both.

In addition to her advocacy work in and out of the classroom, Professor Simpson is currently researching the legal paradigms affecting urban wildscapes. She hopes to find practical avenues for that research to advance wildscaping and wildlife conservation outside academia.

Liz Furlow is a a litigation associate at Baker Botts LLP. She is a member of The Houston Lawyer’s Editorial Board.

Endnotes 1. Professor Lauren Simpson is a Clinical Associate Professor of Lawyering Skills and Strategies at the University of Houston Law Center. 2. Matthew L. Forister et al., Declines in Insect Abundance and Diversity: We Know Enough to Act Now, CONSERVATION SCI. AND PRACTICE 1 (2019) (citing John Losey & Mace Vaughan, The Economic Value of Ecological Services Provided by Insects, 54 BIOSCIENCE 31 (2006)). 3. Indeed, when twenty-four entomologists from six continents were asked to rate the insect-abundance crisis on a scale of 0 to 10 (with 10 being the direst), none rated it below an 8, and some even rated it a 10. James Hance, The Great Insect Dying: A Global Look at a Deepening Crisis, MONGABAY NEWS (June 3, 2019), https://news.mongabay.com/2019/06/the-great-insectdying-a-global-look-at-a-deepening-crisis/. 4. See generally Forister, et al., supra note 3; see also DOUG W. TALLAMY, BRINGING NATURE HOME: HOW YOU CAN SUSTAIN WILDLIFE WITH NATIVE PLANTS (2009). 5. See Forister, et al., supra note 2 at 6 (citing Elizabeth E. Crone, et al., Faster Movement in Non-Habitat Matrix Promotes Range Shifts in Heterogeneous Landscapes, 100 ECOLOGY 1 (2019)). 6. The 2017 Report of the ABA’s National Task Force on Lawyer Well-Being concludes that law students and legal practitioners are in a well-being crisis. AM. BAR ASSOC., NATIONAL TASK FORCE ON LAWYER WELL-BEING, REPORT FROM THE NATIONAL TASK FORCE ON LAWYER WELL-BEING (2017), https://lawyerwellbeing.net/wp-content/uploads /2017/11/Lawyer-Wellbeing-Report.pdf. 7. See, e.g., Colin Capaldi, et al., The Relationship Between Nature Connectedness and Happiness: A Meta-Analysis, 5 FRONTIERS & PSYCHOLOGY (2014); Andrew J. Howell, et al., Nature Connectedness: Associations with Well-Being and Mindfulness, 51 PERSONALITY AND INDIVIDUAL DIFFERENCES 161–71 (2010).