Official Publication of the San Antonio Bar Association
BEXAR COUNTY PROBATE COURTS Judges Oscar J. Kazen & Veronica Vasquez
November–December 2020
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contents ON THE COVER 5 Oscar J. Kazen and Veronica Vasquez Models of Civility
By Amy E. Bitter
FEATURES 8 Overhaul of the Cash Bail Bond System
By Stephen H. Gordon
10 The Trial Lawyer Nation Podcast: A Cycle of Learning and Sharing
By Michael Cowen
14 “I Didn’t Know How to Get Sober.” Drug Treatment Courts Are Changing the Way Bexar County Views Justice
5
By Claire Treu and Steven Treu
16 Military Pension Division Discrepancy: Points v. Time
By Rachel Smith
Judges Veronica Vasquez & Oscar J. Kazen photographed for San Antonio Lawyer by Martha Istueta
DEPARTMENTS
BAR BUSINESS
21 Fourth Court Update
24 SABA Proud San Antonio Bar Association By the Numbers
By Justice Liza A. Rodriguez
By SABA Staff
22 Federal Court Update
By Soledad Valenciano, Melanie Fry, and Charles Carter
November–December 2020
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San Antonio Lawyer 3
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Directors Steve Chiscano Grant McFarland Patricia "Patty" Rouse Vargas Jaime Vasquez Charla Davies Charlie Deacon Loraine Efron Nick Guinn Executive Director June Moynihan
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OSCAR J. KAZEN AND VERONICA VASQUEZ MODELS OF CIVILITY By Amy E. Bitter
photos by Martha Istueta
J
anuary 1, 2019, ushered in a new generation of probate judges in Probate Courts No. 1 and 2 of Bexar County, Texas. Both courts have historically had long-standing judges who have retired (the Honorable Polly Jackson Spencer, the Honorable Sandee Bryan Marion, and the Honorable Thomas E. Rickhoff, respectively) and left a legacy of care, compassion, and dedication. Oscar J. Kazen and Veronica Vasquez are following in some big footsteps and are hoping to lead by example for the rest of the legal community. When asked what impression they would like to leave with the people who appear before them in the probate courts, they immediately agreed that they want to be “guides”— leading people through the toughest part of their lives. As Judge Kazen states, “No one chooses to appear in probate court—it is never because of something they have done.” The cases come through either the death of a loved one or, in the case of a guardianship, because of an incapacity issue—whether intellectual disability, dementia, mental health challenges, age/minority issues, or the like. Judges Kazen and Vasquez are two community-minded individuals, with a great deal of respect for each other and the population that they serve. They agree that civility is absolutely necessary in their courtrooms. According to both of them, there is no reason that the atmosphere in the probate courts should become discourteous or rude, and they expect the behavior of those appearing before them to be respectful. Judge Kazen, the presiding judge of Probate Court No. 1, earned his Bachelor of Arts from the University of Texas, followed by his law degree from Thurgood Marshall School of Law in 1993. He proudly served in the United States Marine Corps. Professionally, he has served as a Family Law Master and as presiding judge of Bexar County Court at Law No. 9. Additionally, he was a managing partner of Kazen & Robberson while in private practice. In 2007, he was appointed to serve as the Associate Probate Judge for Probate Court No. 1 under Judge Polly Jackson Spencer. Prior to his present position, he presided over more than 100 jury trials without reversal or remand, and over more than 30,000 non-trial case dispositions without reversal or remand. While serving as the Associate Probate Judge, he realized his passion for helping individuals in the justice system with mental illness. He created and oversaw the implementation of the first fully operational civil Assisted Outpatient Treatment (AOT) court in Texas, which addresses the intersection between the law and treatment of individuals with serious mental illness. The program serves an area covering fifty-two counties. This court is a national model, saving lives and lessening the suffering of those with severe mental illness by offering an alternative to hospitalization. Judge Kazen is a frequent speaker across the United States to help bring this model court to other states. He is also designated as a subject matter expert in mental health courts. Judge Vasquez, the presiding judge of Probate Court No. 2, was born in Houston, Texas, to hardworking, lower middle-class parents who brought their children up to respect and serve others, while guided by a strong November–December 2020
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San Antonio Lawyer 5
serving as Director of the Guardianship and Probate Department, which provides legal aid to low-income families in the San Antonio Clearly, these two dedicated, compassionate Community. judges are working hard to better the lives of Together, Judge Vasquez and Judge Kazen preside over all cases that involve the probating of wills, will contests, intestate estates, our vulnerable populations, including those guardianships, eminent domain issues, and mental health commitments. with mental health issues, the elderly, and Further, they preside over Adult Protective Services (APS) removals, which include removal of individuals from circumstances that are children. Together, they are working toward validated to put the individual at risk of being exploited, neglected, or the creation of a third probate court for Bexar abused. While they each have developed a particular focus on those areas County, in order to better serve these growing of probate law about which they are most passionate, they agree that working together in a respectful atmosphere is absolutely essential. They populations. have the same view of humanity, respect for each other, and the public that they serve. Even when they disagree, they agree to work together to find appropriate solutions. They agree they do not have all of the moral compass. She has dedicated much of her career to serving the answers, but their power is in bringing together the people who have the community. While attending college at the University of Texas, she ideas and in looking to what the community needs. interned at the Texas Civil Rights Project (TCRP) and experienced In addition to creating the national model for mental health courts, how crucial legal advocacy is for everyday Americans. This life-changing Judge Kazen is working with Child Protective Services to assist with the experience sparked her desire to serve others and influenced her decision cases involving children who are aging out of the CPS system and are to become a lawyer. She earned her law degree from the University of transitioning to guardianships. He is also working to provide mental health Texas School of Law in 2008, while working in the office of a Texas treatment on a long-term basis for children who are often overlooked. state senator. Upon her graduation, she moved to New York for a year Judge Kazen, along with Judge Vasquez, is working to change policies in and interned for New York Legal Assistance Group’s Total Life Choices. dealing with individuals with mental illness. Rather than sending them While there, she worked on drafting wills and powers of attorney and to jail for “criminal behavior,” they are trying to lead the “system” away dealt with other estate-related issues for low-income individuals. This from incarceration and toward appropriate treatment. For example, by experience lead to a passion for elder law and probate matters. working with the San Antonio Police and Fire Departments, they are Upon returning from New York, Judge Vasquez was offered a job hopeful that more people will receive the mental health assistance they at Perdue, Brandon, Fielder, Collins & Mott, LLP. She opened their need. This job became more difficult recently with the loss of mental San Antonio office and became an equity partner within four years. health unit beds as a result of the Nix Hospital System’s closure, so they Five years later she left the firm to serve as a Hearing Examiner (an are actively seeking to develop new solutions. administrative judge) appointed by the Harris County Commissioner’s At the same time, Judge Vasquez is spearheading, as co-chair with Court. Although she loved the work, she longed for the satisfaction of State Senator Jose Menendez, an Elder Abuse and Exploitation Task Force helping people with probate matters. She returned to private practice, dedicated to ensuring prosecution of perpetrators who abuse, neglect, both in her own office and then with Catholic Charities, ultimately or exploit the incapacitated—some of the society’s most vulnerable members. The purpose of the Task Force is to: (a) determine why we are not more consistent as a City/County in prosecuting crimes against the elderly; (b) look at communication gaps Trying To Manage Too Much? between local agencies addressing elder fraud and exploitation; and (c) propose workable LeT us heLp. solutions for closing some of these gaps, more you fiLe iT and we do The resT! successfully prosecuting perpetrators against the elderly, and educating the public about Nationwide Process Serving ways to protect our senior citizens. Clearly, these two dedicated, compassionate Skip Tracing judges are working hard to better the lives of Court Filings our vulnerable populations, including those Online Repository with mental health issues, the elderly, and and much more children. Together, they are working toward the creation of a third probate court for Bexar County, in order to better serve these growing populations. As the fourth mostpopulated county in Texas, we are at a distinct disadvantage. For example, Tarrant County (which is closest to Bexar County in size) has Office@ProntoProcess.com 210-226-7192 two probate courts with associate judges and www.ProntoProcess.com twice the staff. Travis County, which is less than two-thirds the size of Bexar County, has the same amount of staff. El Paso County, 6 San Antonio Lawyer | sabar.org
which is less than one-half the size of Bexar County, has one less staff member than Bexar County. Judges Vasquez and Kazen are hopeful that Bexar County can add a new court and additional staff to accommodate the present and ever-increasing need for assistance to those most vulnerable. Outside of the probate courts and their daily jobs, both Judge Vasquez and Judge Kazen have worked on various community projects, ranging from serving as co-chair for the Community Justice Program (Judge Vasquez), to the board of the Rape Crisis Center (Judge Kazen), and other outreach programs, all while also enjoying time with their families. They have shown a sincere dedication to the work before them and have created an environment in their courts—polite, considerate, and courteous—that should serve the community well. As a practitioner before them, I believe their predecessors would be proud.
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San Antonio Lawyer 7
OVERHAUL OF THE
CA$H BAIL BOND SYSTEM By Stephen H. Gordon
A
person charged with a crime is typically arrested and taken to jail. The accused will sit in jail until the case is resolved unless he or she is able to make bail. In most situations, the defendant must raise a sum of money to pay the bail amount or pay a bail bond company to put up the money. This type of system is referred to as the “cash bail” system. According to the Bureau of Justice Statistics, each year police make on average over 10 million arrests.1 Approximately 555,000 of those arrested people will be stuck in jail awaiting trial because they lack the financial resources to post bail.2 Most of these arrests are for nonviolent crimes.3 Arrests related to drug abuse constitute the single largest category of arrests.4 The system for determining how to release arrested people dates back to medieval times.5 Reformers say it is time to update it for the twenty-first century. Little by little, states are starting to institute bail reform, and in some cases do away with cash bail altogether.6 New York, New Jersey, California, and Alaska have led the way.7 Illinois, Indiana, Nebraska, Ohio, Wisconsin, and several other states have followed suit.8 The cash bail system discriminates against the poor and favors the rich. Statistics demonstrate that access to money is the primary determinant of whether a person is released from jail while awaiting trial. This factor is actually more influential than the severity of the alleged crime. Critics of the cash bail system argue that the main focus should be on the alleged crime and the person’s likelihood to show up for court, rather than the ability to pay a specific bail amount. Recently, a group of detainees who had been denied release from jail for failure to pay their bond amounts sued Harris County, Texas, in federal court.9 They alleged that the county’s current bail system was 8 San Antonio Lawyer | sabar.org
The cash bail system discriminates against the poor and favors the rich. unconstitutional and violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses.10 The district court held a hearing and made several key findings about the link between being poor and being stuck in jail, rather than having the chance to bond out. The court noted that “under the County’s risk-assessment point system used by Pretrial Services, poverty indicators (such as not owning a car) receive the same point value as prior criminal violations or prior failures to appear in court. Thus, an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.”11 The detainees won their case at the district court level, but Harris County subsequently appealed.12 In ruling in the detainees’ favor, the district court stated that “imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.”13 The United States Court of Appeals for the Fifth Circuit affirmed the ruling, with some modifications.14 Eventually, the parties settled. Harris County agreed to pay $97 million in damages and to institute permanent bail reforms.15 These reforms have resulted in the release of mostly low-level misdemeanor defendants from jail without their having to pay any money out of their own pockets. The local pretrial services offices have developed new ways of ensuring that a defendant shows up for court, instead of relying on the potential forfeiture of bond money as the main incentive.
The most common alternative to cash bail is to release the person on their own “personal recognizance,” meaning that the person is released upon a promise to appear in court, as long as he or she agrees to fulfill certain conditions. This type of release is commonly referred to as a “PR bond.” It already exists in several jurisdictions, including here in Bexar County.16 This type of bond is typically only available in non-violent misdemeanor cases. The PR bond option recently became the subject of some controversy when Governor Greg Abbott issued an executive order prohibiting judges from releasing on a PR bond anyone who had any type of violent charges in his or her criminal history.17 Criminal defense attorneys complained that this rule was overbroad and would prevent the release of defendants who have a twenty-year-old assault case on their record, although their current arrest concerns a minor crime, like shoplifting. Accordingly, the Texas Criminal Defense Lawyers Association (TCDLA), along with sixteen Houston judges, filed suit in Harris County challenging the constitutionality of the Governor’s order.18 At first, the TCDLA and the judges were successful, obtaining a temporary restraining order at the district court level.19 However, the case ultimately made its way to the Supreme Court of Texas, where the restraining order was lifted and the case dismissed for lack of standing.20 In doing so, the Court noted that the proper party to challenge such an order would be a defendant whose request for release has been denied because of the governor’s order.21 There has also been criticism of the use of PR bonds in connection with the recent jailing of police reform protesters. Some protesters in Chicago were released shortly after they were booked into the jail without being required to put up money for bond.22 Critics claim that some of the people who engaged in vandalism and looting were able to get out of jail and return to the same location to commit the same crimes within a matter of hours.23 Defenders of the policy retort that a person who has been arrested is presumed innocent until found guilty. Therefore, it is not yet proper to characterize such a person as guilty of vandalism in the first place. Critics of the current system have also faced backlash from antireform groups who fear that crime will increase if the courts let more people out on bail. So far, the statistics do not seem to support this position.24 However, these reforms are in the relatively early stages and do need to be balanced with a number of other factors to provide an accurate statistical analysis. Advocates for reform cite a number of other protections that can be put into place to protect society from those released without posting a cash bond. The most common practice is the use of a monitoring device, such as an ankle bracelet, that tracks movement. Other restrictions are designed to prevent the potential recurrence of specific alleged crimes, like the use of an ignition interlock device on the vehicles of those accused of DWI. A court may also order the released defendant to obtain counseling to deal with mental health issues, or substance abuse problems—factors that often contribute to the crimes with which they have been charged. Not surprisingly, the bail bond industry has pushed back against bail reform.25 There are over 25,000 bail bond companies around the country.26 These companies typically charge 10% of the overall bond amount to the defendant, in order to bond the defendant out of jail. Collectively, they stand to lose billions of dollars around the country if the current cash bail system is modified or eliminated.27 Making a defendant’s release contingent upon complying with requirements that help promote public safety is a much better approach than basing release on money. Statistics show that people arrested for crimes are typically less wealthy to begin with, and they more often belong to a minority class of citizens.28 Basing a person’s release upon how much money he or she has is neither equitable, nor helpful for
keeping our overcrowded jail population in check. These reforms should remain an integral part of the larger effort for comprehensive criminal justice reform. Stephen H. Gordon is the founder of The Gordon Law Firm, P.C. The Firm’s practice focuses on Bankruptcy, Criminal Law, Family Law, Personal Injury, and Wills, Estate & Probate Cases.
ENDNOTES U.S. Dep’t of Justice, Jail Inmates in 2018: Summary (Mar. 2020) https://www. bjs.gov/content/pub/pdf/ji18_sum.pdf. 2 Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (March 24, 2020) https://www.prisonpolicy.org/reports/ pie2020.html; Nat’l P’ship for Pretrial Justice https://www.pretrialpartnership.org/ (last visited Sept. 22, 2020). 3 Fed. Bureau of Investigation, https://ucr.fbi.gov/crime-in-the-u.s/2016/crimein-the-u.s.-2016/topic-pages/tables/table-21 (last visited Sept. 22, 2020). 4 Id. 5 Angel Jackson, The Evolution of Money Bail Throughout History, The W. Haywood Burns Institute for Fairness Justice & Equity (April 18, 2016) https://www.burnsinstitute.org/blog/the-evolution-of-money-bail-throughout-history/. 6 Mitch Arvidson, Time to Bail on Cash Bail? A Growing Number of States Are Scrutinizing Current Systems, And Exploring Alternatives Such as Use of Risk-Assessment Tools, Council of State Gov’ts (May 2, 2019) https://knowledgecenter.csg.org/ kc/content/time-bail-cash-bail-growing-number-states-are-scrutinizing-currentsystems-and-exploring (hereinafter “Arvidson”). 7 Louis Casiano, These States Recently Enacted Bail Reform Laws, Fox News (Feb. 22, 2020) https://www.foxnews.com/politics/these-states-recently-enacted-bailreform-laws. 8 Arvidson, supra n.6. 9 O’Donnell v. Harris Cty., 251 F. Supp. 3d 1052, 1166-68 (S.D. Tex. 2017), aff’d as modified, 892 F.3d 147 (5th Cir. 2018). 10 U.S. Const. Amend XIV. 11 O’Donnell, 251 F. Supp. 3d at 1166-68. 12 Id. 13 Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978). 14 O’Donnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018). 15 O’Donnell v. Harris Cty., 4:16-cv-01414 (S.D. Tex.), Consent Decree (Doc. 708) available at https://cdn.buttercms.com/tp3B1dAWT5y3k0nHmHJk (last visited September 22, 2020). 16 Bexar County, Texas, PR Bonds, https://www.bexar.org/3090/PR-Bonds. 17 Gov. Greg Abbott, Exec. Order No. GA-13 (Mar. 29, 2020). 18 TCDLA et. al v. Greg Abbott, GN-20-002034, Harris County Dist. Ct. (July 10, 2020). 19 Id. 20 Id. 21 Id. at 8. 22 Cassandra Bretl, Protesters Arrested On Friday Released After Bond, Continue to Protest on Saturday, WREX (Aug. 1, 2020) https://wrex.com/2020/08/01/protesters-arrested-on-friday-released-after-bond-continue-to-protest-on-saturday/. 23 Id. 24 New Jersey Judiciary, January 1 – December 31, 2018 Report to the Governor and the Legislature, https://njcourts.gov/courts/assets/criminal/2018cjrannual. pdf. 25 Brian Chasnoff, Commissioner: Judge Has a Conflict of Interest in Bail Reform, San Antonio Express News (Jan. 26, 2020) https://www.expressnews.com/news/ local/politics/article/Bail-bond-companies-at-the-table-for-bail-15002831.php. 26 Amer. Civil Liberties Union, Selling Off Our Freedom: How Insurance Corporations Have Taken Over Our Bail System (May 2017) https://www.aclu.org/sites/ default/files/field_document/059_bail_report_2_1.pdf at 6. 27 Amer. Civil Liberties Union, https://www.aclu.org/report/selling-our-freedomhow-insurance-corporations-have-taken-over-our-bail-system?redirect=SellingFreedom (last visited Sept. 22, 2020). 28 Zhen Zeng, Jail Inmates in 2020, Bureau of Justice Statistics (March 2020) https://www.bjs.gov/content/pub/pdf/ji18.pdf at 4. 1
November–December 2020
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San Antonio Lawyer 9
The Trial Lawyer Nation Podcast: A Cycle of Learning and Sharing
By Michael Cowen
I
started the Trial Lawyer Nation podcast back in January 2018. Since then, I have had the pleasure of interviewing some of the best minds in the legal world, including David Ball, Nick Rowley, and Keith Mitnik. It has been a great opportunity for growth on my end, and its reach has extended far beyond what I expected. When the COVID-19 pandemic hit in March, it became clear I had to shift my focus. This pandemic has affected almost everything we do as lawyers, and I felt an immediate need to use my podcast as a resource. Our episodes have covered topics our legal industry is discussing regularly; and reaching six months of social distancing guidelines, the conversation has now turned to the virtual, partially virtual, or socially distanced with PPE jury trial (which my firm has agreed to do in two cases) and research into the changes in juror mindset because of this.
Working Remote and Staying Afloat Right after the initial stay-at-home orders for San Antonio hit on March 23rd, I recorded an episode with fellow trial lawyer Jacob Leibowitz, titled “COVID-19: Working Remote & Staying Afloat.” The episode focused on adapting a law firm to function in an ever-changing crisis situation. We talked about technology, remote work, cash flow, and employee morale—all aspects that we had to figure out quickly. Looking back on that episode now, we really had no idea what the extent of this pandemic would be, but we knew we had to find a way to 10 San Antonio Lawyer | sabar.org
keep moving our cases—and that’s what we did. Jacob was kind enough to create guides for how to use Zoom for depositions and mediations. My firm put together video tutorials for clients and employees to learn the technology, and we shared these videos with law firms across Texas. Jacob and I discussed the pros and cons of Zoom, and how to ease the concerns of mediators and defense counsel who originally resisted the idea of remote mediations, so that cases would keep progressing. Shifting our firm of thirty employees to a completely remote workforce in a matter of days was no easy task. We had to purchase company laptops for employees who did not already have a laptop, while mitigating the challenges of server capacity and cloud migration. We discussed the hurdles of working from home and how we had been adapting at that point. Jacob’s message still holds true, “You need to go full force into this because you’re going to end up learning a whole lot, and you need to.” In March, no one knew how long this would last, but lawyers needed to adjust rapidly to protect their clients’ interests and sustain cash flow. My initial method for maintaining employee morale was relatively simple—overcommunicate. Before the pandemic hit, we could pop into each other’s offices or bounce ideas off each other in the hallway. Overnight, these options were eliminated. To combat this, we started holding daily, weekly, and monthly Zoom meetings with our teams. While we are all suffering from serious Zoom fatigue now, these meetings continue to be an integral part of our remote work strategy
and have helped us maintain both our professional and social bonds. Jacob and I ended this episode by discussing our biggest “takeaways” from COVID-19. Though it is a bit nostalgic to look back on these early stages of the pandemic, our primary points remain true. This is an opportunity to gain skills to better your practice (true), spend more time with your family (almost TOO true), and push your abilities as a lawyer (even more true than we realized). But most importantly, we all needed to step up and be leaders.
Technology, Road Blocks, and Creative Solutions After practicing with the technology and working remotely for about a month, I recorded a podcast episode with my law partner Sonia Rodriguez. We covered many of the same topics I had discussed with Jacob, but from a lens of newfound experience—one of those experiences being a frustrating amount of delay. Sonia explained that, prior to depositions, she likes to set out a clear, transparent proposal for the technology to be used. This worked well when people were acting in good faith. With those not acting in good faith and intentionally stalling proceedings, however, Sonia encouraged attorneys to file a Motion to Compel Deposition. We then discussed how we overcame the common issue of our clients not having a laptop or a stable internet connection by sending them a tablet with a wireless hotspot to use for depositions, hearings, etc. There was also a heavy emphasis on initial technology training. But there were some clients with minimal technology savvy who simply refused to participate in remote proceedings. We also noted a rapid increase in people’s technological literacy. The world had already changed in a major way just one month into the initial shutdown, which led me to expand upon a much larger point: “You only have a given amount of energy to spend in the day.” While it is easy to get caught up in things outside of your control, it is crucial to not allow these things to suck up your energy. Instead, focus your energy on what YOU CAN control. Sonia added that, as trial lawyers, we are wired to be creative and tackle the unexpected in our cases and in the courtroom. She compared a Zoom screen share malfunction to an Elmo projector going out on you in trial—you pick up, and you move on. After sharing our early predictions on the effect of the pandemic on jury attitudes, we concluded the episode by re-emphasizing our priority, which has remained true throughout these past months—safety. There is no amount of money that is worth risking someone’s health.
Discovering Our Why With all this fresh on my mind, I went into the month of May with a renewed sense of purpose and motivation. What could I focus on? What was still within my control? What could I do to better my firm right now? I found the answer in the book The Advantage: Why Organizational Health Trumps Everything Else in Business by Patrick Lencioni. One of his recommendations is to have a two-day management retreat where you take a “deep dive” into your firm’s core values, focus, and goals. I was sold. We booked a hotel conference room big enough for 50, so my management team of 5 could socially distance ourselves around the room. The results of this retreat were discussed in a podcast episode with my other law partner, Malorie Peacock. We started with a deceptively simple question: Why does our law firm exist? It sounds like a simple question, but you would be surprised at how complex the question really is when you try to answer it. What is the purpose of our being here, together, at this firm? Why don’t we all go get jobs at another law firm? Next, we defined our purpose and core values. With those in mind, we endeavored to decide on one actionable, attainable goal for our firm to focus on for the coming year. Why just one? If you have read The
One Thing by Gary W. Keller, you should know. In the past, we have had meetings where we tried to come up with a list of goals we wanted to accomplish. But the problem with a list of goals is that it is daunting and not realistically attainable. If your goal is to do everything, then you have no goals. Once we decided on a single goal that the entire firm could focus on, we implemented a strategy to achieve it. The firm now conducts mandatory weekly training for all lawyers and paralegals regarding our overarching goal.
Jury Trial Via Zoom By early May, the question of whether jury trials were the future of litigation was looming large. At that point, Zoom jury trials had not been attempted yet, and I had serious questions about whether they were feasible. Between the lack of nonverbal communication, the multitude of distractions for jurors in their homes, and the loss of group dynamics in the jury, I was already concerned. But my biggest fear was the inability to obtain a representative jury pool by excluding citizens without adequate internet or access to childcare. Malorie added more concerns, mainly the lack of mobility when presenting a case virtually. You can’t have witnesses act things out, do demonstrations, or have multiple ways of showing exhibits. We concluded that if this continues for years, we will eventually have to adapt. I even offered to try one of my podcast fans’ cases virtually with him to get some practice. At the time, I didn’t realize our firm would offer to do this for more than one of our cases. Cue Matthew Pearson, my guest on the following episode. Matthew was the plaintiff’s lawyer in the highly publicized first Zoom jury trial in the country. We discussed the trial in detail, starting with how his case was selected. His case involved a commercial building in Collin County, Texas, that was hit by a hailstorm. The insurance company did not want to pay out the claim. As part of Collin County’s ADR process, the parties must hold a summary jury trial before they are allowed a full trial (the goal being to settle in mediation after the summary trial). Matthew’s summary jury trial was originally set for July, but he was “asked” (or as he says, “volun-told”) to move it forward to May 18th and conduct it virtually. While a summary jury trial is non-binding, Matthew was still nervous. This was all new, not just for him but for everybody. And once the court noticed the national publicity the trial was receiving, it changed some of the normal procedures. Typically, in a summary jury trial, there is no voir dire. The mediator simply selects the jury and only dismisses jurors “on the fringe” of either side. In this case, the court decided to give each side fifteen minutes to conduct voir dire (on the Friday evening before the Monday trial). Out of curiosity, I asked Matthew how a Zoom jury would do simple things like raise their hands when asked a group question, which Matthew described as “The Brady Bunch on steroids.” Digging in further, I wanted to know if Matthew presented his case differently than he would for an in-person trial. He chose to go about it as much like a regular trial as possible, using PowerPoint for the opening and using Trial Director software to talk the client through evidence. He instructed his expert to use PowerPoint to present key documents, and the expert used a digital pen to circle key points and blew up pictures as he presented. I wanted to know more about how the group dynamic issue played out. Jurors could not eat lunch together, and at the end of the day, they just turned off their computers without interacting with the rest of the jury. Strong group dynamics or not, in Matthew’s case the jury deliberated for thirty minutes and reached a unanimous verdict. November–December 2020
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Now for the big question: Would Matthew do a Zoom trial if the result were binding? He wasn’t sure he would. This experience went smoothly, but it was only a one-day experiment. If this had been a fullblown trial, it would have gone on for much longer, and he was not confident that the results could be replicated for such a large endeavor. Could a jury realistically go through that much evidence and make a decision based on the evidence virtually? We discussed possible solutions, but in the end, neither of us felt confident about this.
COVID-19’s Impact on Juror Attitudes How do you even start to become confident with something so new? Well, you research it. A month after Matthew Pearson’s experimental trial, my guest was attorney, law professor, and founder of Empirical Jury, John Campbell. He uses big data methods to research individual cases for lawyers and has recently been using his methods to research the effects of COVID-19 on jury attitudes. John describes his research process as working like a “gig economy.” He’ll share an ad along the lines of, “be a mock juror and get paid to do it,” and is able to recruit hundreds of workers in one day. I asked him how representative the jury pool could be, figuring it would be mostly underemployed twenty-somethings. He explained that many people take online surveys for fun, like playing Sudoku, so his group is much more diverse than you would think. His participants range between eighteen to eighty years old, very conservative to very liberal, and some earn up to $150,000 a year. John’s research on COVID-19’s effect on juror attitudes included a survey of 1,500 jurors containing questions about COVID-19 and trial options. He listed a number of shocking statistics and concluded that to seat a jury today, one would have to account for a loss of 50% of jurors before asking a single voir dire question unrelated to COVID-19. Knowing this information, another vital question remained—do the remaining 50% of jurors skew towards the defense or the plaintiff? John explained that the answer is more complicated than most people think, but he went on to share some in-depth findings which have huge implications on the future of jury trials. This was all very interesting, but one of my biggest concerns remained—could a jury award a big damage verdict without attending 12 San Antonio Lawyer | sabar.org
the trial in person? Based on his success in predicting case results using his research methods, John thinks a jury could. He explained that if evidence (such as day-in-the-life videos) is impactful in the courtroom, it remains impactful on a remote platform. He analogized this to watching a movie and crying.
Adapting to the New Jury Trial So, how do you change a presentation to make it engaging for a Zoom jury trial? I have spent years honing my presentation skills for the courtroom, but presenting a case virtually is a whole different beast. How do you keep the jury engaged? Do you think of it more like a television show production? And how do you keep your energy up while sitting in front of a camera for that long? Well, on August 13th I had some great practice. Every year, I host a trucking seminar called Cowen’s Big Rig Boot Camp, and it is truly one of my favorite days of the year. When Governor Abbott prohibited groups larger than ten, we knew we had to adapt the event to a virtual format. As the only speaker in a full-day webinar, I had to change my presentation style to keep the event engaging for the virtual audience. My marketing department had to visually and technically prepare our webinar as if it were a live news broadcast. After the webinar, I sat down with my partner Malorie Peacock again to discuss the lessons we learned from hosting this virtual seminar and how those lessons tie into a virtual jury trial. First, we decided to hire a professional AV crew with multiple cameras, which made a big difference. For one, it allowed me to stand up and use hand gestures naturally. Malorie and I agreed we’d like to set up an area so we can stand up for virtual hearings. By hiring an AV crew to film the seminar I was able to use multiple camera angles and switch between them seamlessly. I first heard about this concept from Mark Lanier, who uses a three-camera setup for his depositions. When showing deposition footage in trial, he will only show the same camera angle for seven seconds. This is done in the news media to keep the audience engaged and can likewise be used to produce a dynamic virtual experience that holds the jurors’ attention. Malorie asked how I maintained my energy for such a long
presentation, without a room filled with lawyers, while speaking into a camera. I’ve been working on energy management for years and have learned the key is to have a range of highs and lows. If you are “high” all the time, you come off frantic and stress out your audience. I also purposefully chose a variety of slides to assist with this—some had large quotes where I could be low energy, while others had just a phrase or two to remind the audience of what I was speaking on. These needed to be higher energy to remain engaging. These principles apply equally in the courtroom. Malorie and I agree that, most of the time, a simpler graphic is better than a complicated, expensive one. Basically, if you have to explain the graphic, you are losing the audience. While these past months have undoubtedly been some of the most testing of our careers, we have all had to adapt and learn new methods to keep our cases moving and our firms running. I’ve been fortunate to use my Trial Lawyer Nation podcast to learn, grow, and share knowledge along the way. And with our firm agreeing to do trials in person with social distancing and PPE in October and November in two separate cases, every bit of information helps us sharpen our sword and prepare. My upcoming guests include Chris Madeksho, who led the first COVID-era inperson civil jury trial in Washington state and was awarded $13,966,000.00 for his client. The other is Brendan Lupetin, who led the first inperson civil jury trial in the state of Pennsylvania and was awarded $10,083,000.00 for his client. Both of these trial lawyers have paved the way for justice to continue. Providing a platform for them to share their stories has been an honor, in addition to helping me organize two cases for trial in the coming weeks. Nobody has all the answers, but if we can come together, support each other, and share what we know, we will come out of this as better lawyers. Michael Cowen is the founding partner of Cowen | Rodriguez | Peacock in San Antonio, Texas, and is a Board Certified attorney in personal injury trial and truck accident law. He created the podcast Trial Lawyer Nation to share industry knowledge with trial lawyers.
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“I Didn’t Know How to Get Sober.” * Drug Treatment Courts Are Changing the Way Bexar County Views Justice By Claire Treu and Steven Treu
Cherie Reed’s booking photo from the start of her Drug Court treatment (left). Photo courtesy of Court Manager Roberto Ruiz. Cherie Reed, with her new smile, after completing the Drug Court program (right). Photo courtesy of Cherie Reed.
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herie Reed did not even know what getting sober was. As she saw it, addiction was “just how life was going to be.” That was true until she met Judge Tommy Stolhandske and his Bexar County Drug Treatment Court in 2018. Over ten years of narcotic use, life in and out of homelessness, and isolation from her family and children kept her hopeless. However, “through drug court,” Reed says, “I learned how to literally live life as a person in society.” Drug courts are relatively new. They were developed in Miami in the 1980s and were implemented in Bexar County in the early 2000s by Judge Alfonso Alonso. Drug courts are different from the regular court system because of their specific focus on populations struggling with chemical addiction. “It’s a program of choice. It’s a program of learning, and it helps you grow if you’re willing to take the tools that they give you,” Reed explains. In traditional probation, the treatment provider never talks to the judge, but in the drug court, the treatment provider is a part of the staff. Judge Stolhandske sees the provider every two weeks, and the two keep regular contact. “What I saw as a judge,” Stolhandske says, “is that the same people were coming back, and we weren’t really helping them, just kind of processing them through the system.” In drug courts, though, the role of the judge is different. Stolhandske does not wear a robe and stands right across from where participants speak as they have a conversation. “When I saw him [Stolhandske] just in normal clothes and talking to us like we were normal people, and we were laughing, I was like, this is awkward, this is weird, but I liked it,” Reed recalls about her first Drug Court review. Bexar County Drug Treatment Courts treat substance abusing offenders in the community, rather than convicting and incarcerating them over and over again. For an addict, gelled in the realities of addiction, the reward of using easily outweighs jail time, according to Stolhandske. Drug courts, though, focus on the needs of their target population, rather than on the strictures of the law. They offer treatment forward, including frequent substance testing, intensive supervision, regular contact with the supervising judge, individualized sanctions and, most importantly, rewards. They target high-risk, high-need individuals—in other words, people who are not responding to the “don’t-do-that-again-or-else” model of the traditional justice system. Stolhandske argues that drug courts reduce recidivism rates, give individuals tools to change their lives, and save taxpayers money. The statistics prove him right. “We know that drug courts outperform virtually all other strategies that have been attempted for drug-involved offenders,” wrote Douglas Marlowe, David DeMatteo, and David Festinger for the VERA Institute of Justice in 2003.1 The value of drug courts is seen in their success in reducing recidivism enormously.2 In 2006, for instance, Marc Levin found that offenders completing drug court programs in Texas had a 28.5% re-arrest rate, as compared to 58.5% for those who did not complete a drug court program.3 “The best drug courts reduce crime by as much as 45% over other dispositions,” Huddleston and Marlowe note.4 Judge Tommy Stolhandske (middle, grey suit) with graduates of the Treatment Recovery Accountability Court A, team members and the Therapeutic Court Mentors at the 2019 Winter Commencement. Photo courtesy of Court Manager Roberto Ruiz.
Beyond the effectiveness of individual restoration, many scholars, lawyers, and judges claim that drug treatment courts also save taxpayers money. A drug court program typically costs between $2,500 and $4,000 annually for each offender.5 By comparison, the annual cost per Texas prison inmate is more than $16,000, writes Levin.6 In 2008, the Urban Institute concluded that, nationally speaking, drug courts produced an average of $2.21 for every $1 invested, and when services were targeted toward more serious, higher-risk drug offenders, the return on investment was $3.36 for every $1 invested.7 These savings are attributable to reduced re-arrests, fewer law enforcement contacts, fewer court hearings, and decreased demand for jail or prison beds.8 Reliance on substance is often coupled with a sense of lost control, mental illness, or trauma. When the reliance turns criminal, the initial societal response is to punish, not heal, which ineffectively strips the addict of all control and re-traumatizes him or her. Drug courts take a restorative justice approach of repairing harm from crime, as opposed to the contemporary retributive justice approach of punishing crime. When it comes to drug related offenses, the retributive justice approach moves offenders from one kind of prison to another. Individuals go from being imprisoned by their addictions, to being imprisoned by their states, without any real reform occurring. The restorative justice approach, though, changes the way offenders are treated and sees certain drug crimes as a response to one’s addiction. The way to solve those sorts of crimes is to address the substance dependence, not to lock the person up. “Drug courts are not soft on crime. Instead of isolating an offender in prison, they force participants to confront their addiction and repair the damage they have done to themselves, their families, and their communities,” Marc Levin writes in a 2006 article for the Texas Public Policy Foundation.9 Cherie Reed has been sober since May 25, 2018, with the support of Judge Stolhandske and his Drug Treatment Court. She is now employed and was asked to work at the same sober house she used to live in. Reed completed her GED and talks to her children every day. Having to remove essentially all of her teeth as a result of her drug use, Haven for Hope helped Reed replace her smile. “I never thought I would smile with my teeth ever again,” Reed said, “and I get to do that today.” Claire M. Treu is a 2020 graduate and winner of the Paul Delp Award in Peace Studies from Chapman University. For the past three years she was a frequent writer on local Southern California news.
Steve Treu is a Shareholder in Langley & Banack, Inc.’s San Antonio office. His practice focuses on Civil Litigation, Commercial Litigation, Real Estate Litigation, Collections Law, Extraordinary Remedies, Landlord-Tenant, Construction Disputes, and Liens & Bonding Law.
ENDNOTES Douglas B. Marlowe, David S. DeMatteo, & David S. Festinger, A Sober Assessment of Drug Courts, 16 Fed. Sent’g Rep., 93, 153-57 (December 2003). 2 Id. 3 Marc Levin, Drug Courts the Right Prescription for Texas, Tex. Pub. Pol’y Found. (February 2003) https://www.texaspolicy.com/drug-courts-the-right-prescription-for-texas/ (last visited Oct. 1, 2020). 1
Cherie Reed says she attends “pro-social” events - like the kickball game above - as a mentor to help current Drug Court participants the way she was helped. Judge Tommy Stolhanske (far right in blue cubs t-shirt) attends to support the group. Photo courtesy of Court Manager Roberto Ruiz.
West Huddleston & Douglas B. Marlowe, J.D., Ph.D., Painting the Current Picture: A National Report on Drug Courts and Other Problem-Solving Court Programs in the United States, Nat’l Drug Court Inst. (July 2011) https://www.ndci.org/sites/default/files/nadcp/PCP%20Report%20FINAL.PDF (last visited Oct. 1, 2020). 5 See Levin, supra n.3. 6 Id.; see also Prison Spending in 2015, Vera Inst. of Justice (2017) https://www.vera. org/publications/price-of-prisons-2015-state-spending-trends/price-of-prisons2015-state-spending-trends/price-of-prisons-2015-state-spending-trendsprison-spending#:~:text=In%202015%2C%20among%20the%2045,was%20 just%20under%20%2443%20billion (last visited Sept. 23, 2020). 7 Avinash Singh Bhati, John K. Roman, & Aaron Chalfin, To Treat Or Not To Treat: Evidence on the Prospects of Expanding Treatment to Drug-Involved Offenders, Urban Institute Justice Policy Center (April 2008) https://www.ncjrs.gov/pdffiles1/nij/ grants/222908.pdf (last visited Oct. 1, 2020). 8 See Huddleston, supra n.4. 9 See Levin, supra n.3. 4
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November–December 2020
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Military Pension Division Discrepancy: Points v. Time By Rachel Smith
K
nowing how to value and calculate the division of military pensions can be a minefield fraught with frustration and confusion. As with the valuation and division of any retirement plan, but even more so with a military pension, it is essential to keep records and do the proper research to understand how a military pension is calculated, as well as the rights and options of each spouse (both the non-servicemember spouse and the servicemember spouse). This article explains the difference in the evaluation, calculation, and division of a military pension when the servicemember spouse is active duty (time), as opposed to a reservist or in the National Guard (points). Dividing a traditional military pension in a divorce is a specific process. Calculating how much the non-servicemember spouse receives from the military pension can be a time-consuming and meticulous process. Last, but not least, there are particular requirements in order for the non-servicemember spouse to receive direct payments from Defense Finance and Accounting Services (DFAS), which administers finances and payments to servicemembers and veterans.
Military Basics The United States Armed Forces has has six branches of service: Army, Navy, Air Force, Marine Corps, Coast Guard, and Space Force. It is important to be aware that what a servicemember is called depends 16 San Antonio Lawyer | sabar.org
The traditional military pension under the legacy system is one that provides a servicemember with a lifetime pension after he or she has served in the military for a required number of years, usually twenty active-duty years. upon the branch of service in which the servicemember served. For instance, a servicemember in the Army is a soldier; in the Navy is a sailor; in the Air Force is an airman; and in the Marines is a marine. The term “servicemember” is a broad term that applies to all branches of service. The next distinction is the status of the servicemember in the Uniformed Service: active-duty, reservist, or National Guard. The National Guard is the reserve component of the United States Armed Forces from each state and the territories of Guam, the Virgin Islands, Puerto Rico, and the District of Columbia. As a result, there are fifty-four separate organizations of the National Guard. The National Guard can be deployed or mobilized for federal and domestic missions. An active-
duty servicemember serves “full time” in the military, which means that serving in the military is his or her day-to-day job (i.e., he or she reports for duty every day). Reservists and members of the National Guard are “part-time” servicemembers, which means they are required to appear for their military duties only at certain times throughout the year. Knowing the servicemember’s rank can also be important because it is used to calculate how much the servicemember spouse earned at the time of retirement. The additional distinctions, terms, and acronyms are never-ending and will not be addressed in this article. However, it is important to at least be aware of the most basic terms and distinctions. If the practitioner uses the wrong term, it is possible to insult the servicemember. With only about 1% of the American population serving in the Uniformed Service, few people are familiar with the terms, practices, customs, and rules governing those in uniform. As a civilian, but more importantly, as someone who is in a profession that prides itself on being detail-oriented, the practitioner must know at least the basic details.
What is a Military Pension? The traditional military pension under the legacy system is one that provides a servicemember with a lifetime pension after he or she has served in the military for a required number of years, usually twenty active-duty years. This is a defined-benefit plan, as opposed to a defined contribution plan such as a 401(K). In other words, a servicemember is not eligible for a pension unless he or she serves the required time. Translation: there is no marital portion for the non-servicemember spouse to be entitled to, and the non-servicemember spouse is not eligible to receive anything from the marital portion of the pension unless the servicemember spouse serves the necessary time of at least twenty active-duty years. A servicemember who is a reservist/guard is also eligible for a pension. Many servicemembers serve their entire military career as a reservist or in the National Guard. If a reservist/guard serves his or her entire military career as a reservist/guard, the servicemember is eligible for a pension based on a calculation of points, not time/active duty years. Servicemembers may also save for retirement on their own initiative, in a Thrift Savings Plan (TSP). Federal employees, including military servicemembers, are eligible to save money in TSPs, which are retirement plans similar to 401(K) plans. Since TSPs are not the same as the military pension and can be considered a marital asset, they will not be addressed in this article. In today’s society in which people are increasingly less likely to stay with one company or remain in one profession for an entire lifetime, it is common to find servicemembers who have a combination of active duty years in the military and reservist/guard time. In those specific situations, calculating whether a servicemember is eligible to receive a pension is based on a combination of calculating time (i.e., active duty years) and points.
Jurisdictional Requirements Servicemembers Civil Relief Act. Because the military is a federal entity, its servicemembers are stationed across the country and throughout the world in places where they are not legal residents. The Servicemembers Civil Relief Act (SCRA), in pertinent part, ensures that servicemembers receive due process in lawsuits filed in jurisdictions where the servicemember is not physically present. The most significant portion of the SCRA that intersects with the Uniformed Services Former Spouses’ Protection Act (discussed below) is when there is a default judgment against the servicemember.1 The SCRA dictates that an active-duty servicemember spouse must make an appearance in a legal proceeding
In today’s society in which people are increasingly less likely to stay with one company or remain in one profession for an entire lifetime, it is common to find servicemembers who have a combination of active duty years in the military and reservist/ guard time. In those specific situations, calculating whether a servicemember is eligible to receive a pension is based on a combination of calculating time (i.e., active duty years) and points. in order for the court order to be enforceable against the servicemember. Generally, this is done by the servicemember hiring an attorney. Uniformed Services Former Spouses’ Protection Act. Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) in 1982 to allow state courts to treat military pensions as community or marital property and divide them through the state divorce process. Given the mobile nature of the military, the USFSPA requires that certain SCRA provisions be met before a state court exercises jurisdiction to enter an order dividing a military pension. First, a servicemember can consent to jurisdiction of the state court. Service of court documents is not conclusive as to consent. The servicemember must take affirmative steps showing consent to jurisdiction, such as filing court papers as a pro se litigant or hiring an attorney to represent him or her in the legal proceeding.2 Second, a servicemember can be a resident of the state at the time of the divorce proceeding, owing his or her residence to a reason beside the servicemember’s military assignment. For example, a servicemember can be stationed in New Jersey but live in Maryland to be near family. In that circumstance, Maryland can exercise jurisdiction over the servicemember.3 Third, jurisdiction is based on the servicemember’s domicile (i.e., his or her state of legal residence). For example, a servicemember may be stationed at Ft. Bragg, North Carolina, but maintain legal residence/ domicile in the state of Pennsylvania. Pennsylvania is the servicemember’s domicile and the divorce case may proceed there.4 The 10/10 rule. In order for the non-servicemember spouse to receive direct payments of the military pension from DFAS, the couple must meet the 10/10 rule. The non-servicemember spouse and the servicemember must have been married for at least ten years, during which time the servicemember served at least ten years of service creditable toward the pension. In other words, ten years of marriage must overlap with ten years of creditable service in the military. DFAS cannot make any payments of the military pension to the former spouse unless the 10/10 rule is met.5 A judge can make a court order as to the division of a military pension. The parties can also come to an agreement as to how a military pension will be divided. Regardless of any court order or agreement between the parties as to how the military pension is divided, DFAS will not enforce any order unless the 10/10 rule is met. In situations where DFAS cannot make payments to the non-servicemember spouse, the servicemember may need to make direct payments to the non-servicemember spouse (now former spouse). If the parties do not meet the 10/10 rule, another method for the servicemember spouse November–December 2020
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to pay the former spouse is through a spousal support order in the divorce decree. A statement that the 10/10 requirement has been met must be in the court order for DFAS to process the direct payment to the former spouse. For example, the court order might recite, “The parties were married for ten years while the member performed twenty years of military service creditable for retirement purposes.”
How to Calculate a Military Pension The two most basic methods in calculating a military pension are based on time served (i.e., active-duty years) or points earned (used when a servicemember is not active-duty; i.e., reservist/guard). Both of these methods are further elaborated in this article. Additionally, it is significant to be aware that DFAS will not assume any information not included in the court order dividing the military pension.
Language of the Military Pension Division Order Fixed Dollar Amount. The most basic and straightforward option is formulating the language for the former spouse to receive a specific dollar amount per month. However, this language does not entitle the former spouse to receive any Cost of Living Adjustment (COLA). A COLA can increase the value of the pension over time.6 This consequence makes it important for the practitioner to be aware that this type of language is rare in a military-pension-division order. However, DFAS will honor the language and the award so long as the prerequisites are met. As this is increasingly rare in military pension division orders, this option will not be addressed further. The Time Rule. The time rule is similar to the coverture fraction used in other jurisdictions—the numerator is the number of months the parties were married during the servicemember spouse’s time in service divided by the denominator, which is the number of the servicemember’s total months in the service. The marital fraction is usually, but not always, multiplied by ½ or 50% for the former spouse (i.e., the non-servicemember spouse). The denominator—the number of months DFAS will supply the denominator, which is the number of months of the servicemember’s 18 San Antonio Lawyer | sabar.org
creditable military service. The court order does not need to include the denominator.7 Generally, the Time Rule language will be used in cases where the servicemember has accrued twenty active duty years of service creditable toward the pension. In a Time Rule formula, the award will automatically include a cost of living adjustment (COLA), which can be beneficial to the nonservicemember spouse. For example, John Doe has served twentyfive years on active duty in the military. Jane Doe was married to John Doe for ten years. The ten years of marriage coincided with John’s military service. The Time Rule formula language would be the following: “The former spouse/alternate payee is awarded a percentage of the member’s military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is 120 months of marriage during the member’s creditable military service, and the denominator of which is the member’s total number of months of creditable military service.”8 Points. Any time a servicemember serves as a reservist or in the National Guard, the calculation toward earning a military pension is based on an accumulation of points. The points are then “converted” to active-duty service. In other words, the number of points accumulated by the servicemember must be equivalent to twenty years of active-duty service in order for the servicemember to receive a military pension. Reservists/Guard serve “part-time” in the military. They are required to pass the tests to qualify and join the military. However, because they serve part-time, reservists/guard do not show up for their military duties every day as do active duty servicemembers (unless the reservist/guard is activated). Consequently, the times they are required to and do show up for their military duties are the times when they accumulate points that count toward being eligible for and earning a pension. The military has a system that assigns how many points a servicemember will earn for exactly which duties that count toward pension eligibility. A servicemember receives one retirement point per day of active service.9 For example, servicemembers can earn points for funeral-honors duty. There is a list and breakdown as to exactly the types of activities servicemembers can earn points for and how many points each type of activity is worth. Whether or not a servicemember’s points are correctly calculated is another matter that will not be addressed in this article. What is essential is that in order to be eligible and, therefore, to receive a military pension, the servicemember spouse must have accumulated enough points. For example, John Doe has served his entire military career as a reservist, which is the equivalent of twenty years active duty. The points language would be the following: “The former spouse/alternate payee is awarded a percentage of the member’s military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which
is the number of Reserve retirement points acquired during the marriage prior to the date of separation (reserve retirement points earned during the period of marriage), divided by the member’s total number of reserve retirement points earned.”10
Calculating a Military Pension Based on Military Service of Time and Points
military service with a combination of active-duty and reservist/guard service, the servicemember has to serve more than twenty years in order to be eligible for the military pension. The servicemember now has to accumulate a certain number of points that is equivalent to at least twenty active-duty years, even though the servicemember is in the military for more than twenty years. When a servicemember serves as a reservist/guard, the military pension is based on the nature and frequency of service in the military. The military pension is based on a calculation of the balance of points, not time. Accordingly, the marital portion also has to be calculated and based on points, not time.
It is increasingly likely for servicemembers to have a combination of both forms of military service—active-duty years and time as a reservist/ guard. In this situation, it is easy to improperly assume that calculating the marital portion of the military pension is applying the Time Rule formula. For example, a servicemember spouse served ten years of active-duty service and then became a reservist and then went to the National Guard. The servicemember married five years after he enlisted in the military (i.e., ATTORNEYS WITH CONTINGENCY FEE he was married during the latter five years of AGREEMENTS ARE ELIGIBLE TO DEFER THEIR his active-duty service). The servicemember was married for a total of thirteen years, FEES INTO FUTURE TAX YEARS -which means he was married another eight years while he was a reservist and guard. The servicemember retired from the National TAX LAWYER RECIPE FOR SUCCESS: Guard with a total of twenty-eight years in the If every contingent fee lawyer structured a military and earned a total number of points that made him eligible for the pension (i.e., percentage of every fee, they would have achieved an equivalent of twenty active-duty years). retirement income, estate planning and tax The servicemember was married while he was deferral that most people - even most lawyers active-duty and divorced before he retired cannot achieve. from the military. Because the servicemember was married and divorced while he was in the Carola M. Davis, CFS military, it is easy to presume that calculation of the marital portion of the military pension Investing pre-tax dollars, tax deferred growth, no money management is based on time (i.e., the 10/10 rule of the fees, and a ‘creditor proof’ product with the strongest life companies number of years he was married while he was yields a plan for success with structured settlements for your firm’s in service). overhead, your children’s college plans or your retirement. That assumption is incorrect. Case law throughout the country dictates that No limit on amount that can be deferred. determining the marital portion of a servicemember’s military pension is determined Depending on cooperation with defendant, there are new options for investing with portfolios offered through your own investment advisor. on points, not time, when a servicemember has a military career that is a combination of active-duty and reservist/guard time.11 Why? Consider Structured Settlement Annuities for: When a servicemember is in the military as an Personal Injury Employment Disability active-duty, every day of military service counts Product Liability Sexual Harassment Construction towards the pension. When a servicemember Medical Malpractice Attorney Fees Business Buy-Outs is in the military as a reservist/guard, he or she Legal Malpractice Punitive Damages Transactional Litigation has to accumulate the requisite number of total Breach of Contract Environmental Family Law points to be eligible for the pension. Thirty Structured Attorney fees payable to the attorney or the law firm produce healthy rates of return with tax days of service as an active-duty servicemember deferral that are protected from creditors (attorneys can structure their fees even if the client does not). equals thirty points to the military pension. Thirty days of service as a reservist/guard might equal no points or some points to the military pension, because it is completely The Attorney’s Indispensible Partner in Settlement Planning dependent on whether the servicemember performs qualifying military duties that earn Carola M. Davis, CFS points toward the military pension. Time does 830.609.5555 not equal the same contribution to a military cmdavis388@gmail.com pension for the active-duty servicemember as www.DavisSettlementPartners.com compared to the reservist/guard. Consequently, when a servicemember has
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R achel Smith is licensed in North Carolina, Pennsylvania, and California, and in the Supreme Court of the United States. She works with QDRO Solutions, LLC, providing valuations and drafting qualified domestic relations orders in family law cases. She also educates legal professionals about the intersection of military law and benefits with the civilian judicial system. She can be reached at rachel@ myqdrosolutions.com and at (301) 327-1396.
The Blended Retirement System As the military has evolved, so has its retirement system. The military retirement system has now transitioned to a Blended Retirement System (BRS), which is similar to a 401(K). The new system and the intricacies of the BRS will not be addressed in this article, but practitioners should take note of this change. Servicemembers who joined on or after January 1, 2018, were automatically enrolled in BRS. Servicemembers who joined the Uniformed Service on or before December 31, 2017, were grandfathered into the legacy pension system detailed in this article. The opt-in period for the majority of servicemembers closed December 31, 2018. Active-duty servicemembers with fewer than twelve years of service as of December 31, 2017, or members of the National Guard or Reserve in a paid status who had accrued fewer than 4,320 retirement points as of December 31, 2017, had a choice of opting into the BRS or remaining grandfathered under the legacy retirement system. While it is important to be aware of and recognize how the military retirement system has evolved, it is equally significant to be aware that the traditional military pension under the legacy system still remains. Consequently, practitioners should be careful to distinguish the retirement system under which the servicemember is entitled.
Conclusion Calculating the division of military retirement benefits can be quite complicated. Understanding the rules governing the entitlement to pension benefits and how a marital portion is calculated can have a significant impact on how—and how much—the non-servicemember spouse is paid after a divorce.
ENDNOTES 50 U.S.C. § 3931, formerly 50 App. U.S.C. § 521. Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408 (c)(4). 3 Id. 4 Id. 5 10 U.S.C. § 1408(b)(1)(D); Baka v. United States, 74 Fed. Cl. 692, 298 (2006); see also DoDFMR, Vol. 7B, § 290604.B. 6 DoDFMR, Vol. 7B, § 290601.C. 7 DoDFMR, Vol. 7B, § 290607.B. 8 10 U.S.C. § 1408(a)(2)(C). 9 10 U.S.C. § 101. 10 DoDFMR, Vol. 7B, § 290607.B. 11 Courts across the country have held that when determining the marital portion of a service member’s retirement from active-duty and reserve, the calculation is based on points, not time. The value of the retirement is not directly related to the employment, such as when retirement benefits will be determined by points. See Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002); In re Poppe, 158 Cal. Rptr. 500 (Cal. App. 4th 1979); Bojarski v. Bojarski, 41 A.3d 544 (Maine 2012); Felton v. Felton, 2019 WL 3986324 (N.J. Super. Aug. 23, 2019); Hasselback v. Hasselback, 2007 WL 549461 (Ohio App. 10th, Feb. 22, 2007). 1 2
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Fourth Court Update
Remote Internships: Another “First” for the Fourth Court By Justice Liza A. Rodriguez
B
y now most of us in the legal community (as well as our kids) have become well acquainted with some variety of “virtual” communication platform Most popular among these is Zoom, although our kids are also using Google Meets as well as a host of others. There have been innumerable online help sessions offered by various bar organizations, as well as the courts, in order to give everyone the opportunity to function effectively in this new virtual world. We’ve learned to use the allimportant “mute” and “stop video” buttons, and have figured out how to use the chat box to communicate with other meeting participants without disrupting the speaker. The Fourth Court is no exception. Like many, for the first time beginning in March, we were forced to begin working remotely, and although the court was also hit by a ransomware attack in May, we forged on negotiating this virtual world. With the help of exceptional staff, the court was able to continue functioning without skipping a beat. Also in May, the court held its first-ever remote oral argument. Along with the regular business of the court, another consideration was the court’s long-running and robust internship program. The Fourth Court’s popular internship program gives exceptional second and third-year law students an opportunity to work in a justice’s chambers alongside the staff attorneys and the justice. These internships are highly coveted positions. Some former interns have gone on to become briefing attorneys, staff attorneys, and even justices at the Fourth Court! Among all the other moving parts, the justices had to decide whether and how we could continue our internship program remotely. Initially, we considered placing the program on hold until we were all back at the courthouse, but ultimately, we left it to the students to decide whether they would like to participate in a remote internship during the summer, or delay their internship until the Fall.
“Working remotely presents a unique set of challenges and distractions that you would not have in the office. However, because of this virtual internship, I was able to learn how to work under those unique challenges.” —Rachel Garza 3L, St. Mary’s Law School
“Interning remotely, collaborating with my partner, meeting with our supervisors, and reporting back to Justice Rodriguez taught me how to conduct and produce meaningful work product, all while working from home.” —Kam Culbreth 3L, St. Mary’s Law School Over the summer, at least six brave law students elected to participate in the first-ever Fourth Court fully remote internship program. It is with great pride that I share the news that the court has now made history by operating 100% remotely, holding virtual oral argument, and successfully hosting a fully remote internship program. With the goal of ensuring the students’ time with the court was as fulfilling as possible, each chambers tasked their interns with reviewing publicly accessible documents and researching specific legal issues pertinent to the court’s docket. The interns participated in virtual meetings with staff attorneys as well as the justices at least twice a week. Although historically interns benefit from a variety of interactions with the justices, including coffee, lunch, and attendance at bar events, this summer the court instead held a virtual welcome for all the interns, in which all were able to introduce themselves. Although a far cry from our normal, we have discovered that remote internships, as with many things during this time of necessary change, present a new, viable, and perhaps preferable, option for future interns. These experiences have helped us to recognize that “in the middle of difficulty lies opportunity.” J ustice Liza A. Rodriguez was elected to serve on the Fourth Court of Appeals effective January 1, 2019. Justice Rodriguez has been licensed since 1997, is a graduate of St. Mary’s University, former Bexar County Assistant District Attorney, and Criminal Defense and Family Law Practitioner, and she served as Presiding Judge of County Court at Law #8 and Bexar County’s first DWI Court.
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Federal Court Update
Western District of Texas Court Summaries By Soledad Valenciano, Melanie Fry, and Charles Carter
If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano (svalenciano@svtxlaw.com, 210-787-4654) or Melanie Fry (mfry@dykema.com, 210-554-5500) with the style and cause number of the case, and the entry date and docket number of the order.
First Amendment; Free Speech; Due Process Muniz v. City of San Antonio, No. SA-18-CV-01002-OLG (Garcia, O., August 5, 2020). Plaintiff, a traveling evangelist who hands out religious literature near large events, challenged the City of San Antonio’s enforcement of its “clean zone ordinance” around the Alamodome during the 2018 Final Four Tournament. The City previously used similar ordinances for other large events. The ordinances, in relevant part, generally prohibit the sale or distribution of any material within a given geographic area during a large event—including free items. While individuals may apply for a license to sell or distribute items in the designated area, doing so without a license is a class C misdemeanor subject to a fine. The City’s justification for the ordinance is that it promotes general health and safety and is “primarily” meant to control unauthorized ticket scalping, vending, and nonlicensed merchandise sales. Plaintiff distributed his non-commercial religious literature inside of the designated “clean zone” during the Final Four without a license. A San Antonio police officer asked plaintiff to cease distributing the materials and issued plaintiff a citation for violating the ordinance. Although the citation was dismissed, plaintiff filed suit against the City and the officer who issued the citation, asserting that the enforcement violated his First and Fourteenth Amendment rights. The parties each moved for summary judgment. The court determined that the ordinance violated plaintiff’s Fourteenth Amendment rights because the ordinance was unconstitutionally vague and did not provide adequate notice of the
22 San Antonio Lawyer | sabar.org
prohibition on distributing non-commercial, religious literature. Accordingly, the court granted summary judgment in favor of plaintiff on his Fourteenth Amendment claims because the ordinance was unconstitutionally vague on its face and as applied. However, due to qualified immunity, the court denied plaintiff’s request for damages from the individual officer. The court enjoined the City from applying or enforcing any ordinance with identical language.
Business Interruption Insurance; COVID-19 Response Diesel Barbershop, LLC v. State Farm Lloyds, No. 5:20-CV-461-DAE (Ezra, D., August 13, 2020). Plaintiffs operate several barbershops in the San Antonio area. In March and April 2020, Bexar County and the State of Texas each issued executive orders closing “non-essential” businesses—including plaintiffs’ barbershops. Plaintiffs filed an insurance claim with State Farm in March 2020, seeking coverage for business interruption caused by the closures. State Farm denied the claim on the basis that the “policy specifically excludes loss caused by enforcement of ordinance or law, virus, and consequential losses” and there was no physical damage within one mile of the insured property that could have caused the alleged loss. Plaintiffs argued that the damage caused by COVID-19 is more like coverage cases involving noxious fumes in which some courts have found direct physical loss without any physical damage. The court rejected that argument because the loss had nothing to do with the distinct property insured and determined that plaintiffs failed to plead a direct physical loss. Plaintiffs’ policies
also contained an anti-concurrent causation clause (also referred to as the “virus exclusion”), which states that State Farm will not insure for a loss regardless of “whether other causes acted concurrently or in any sequence within the excluded event to produce the loss.” The court determined that the “presence of COVID-19 in Bexar County and in Texas” primarily caused the temporary closure of plaintiffs’ businesses and determined that the virus exclusion clause bars plaintiffs’ claims. Accordingly, the court granted defendant’s motion to dismiss.
Personal Injury; Mental Anguish White v. United States, SA-19-CV-01291XR (Consolidated into SA-18-CV-00555XR) (Rodriguez, X., July 7, 2020). Plaintiff’s mother-in-law was killed in the massacre at First Baptist Church in Sutherland Springs, Texas. Plaintiff and her husband were at home at the time of the shooting but received word of the event at their loved one’s church, and plaintiff’s husband watched the television coverage for several hours before and after his mother’s death was confirmed by his sister. Plaintiff’s husband brought an administrative claim against the US Air Force for failing to report a prior conviction of the alleged shooter, which would have prevented the shooter from purchasing firearms. After filing the claim, the husband died. Following her husband’s death, plaintiff maintained the instant suit as the representative of her husband’s estate, alleging various claims sounding in negligence and bystander claims. Plaintiff sought damages against the United States under the Federal Tort Claims Act. The Government moved to dismiss plaintiff’s suit on two grounds: (1) that plaintiff’s husband did not have a valid
bystander claim under Texas law; and (2) that plaintiff’s husband’s wrongful death damages did not survive his death. The court held that, during the hearing on the Government’s motion to dismiss, plaintiff had conceded the Government’s argument regarding wrongful death damages and had abandoned her claims for everything other than her husband’s mental anguish damages. Although Texas does not recognize a general tort of negligent infliction of mental anguish, plaintiff could have recovered if her husband had qualified under Texas bystander law or if his damages had arisen from a “knowing violation of a statute.” The court determined that plaintiff did not qualify under the bystander doctrine because he was not physically present and because the images he observed on the television did not qualify as a “contemporaneous and sensory observance” of the events. The court also held that the “knowing statutory violation” theory for emotional anguish recovery does not apply to plaintiff’s claims brought under common law negligence theories.
Summary Judgment; Disability Discrimination Rodriguez v. Dollar Gen. Corp., No. SA-18-CV-00713-JKP (Pulliam, J., July 30, 2020). Court denied employer’s motion for summary judgment on employee’s disability discrimination claim. On the issue of whether the employee was disabled, a jury could infer that employee’s foot pain was related to his diabetes and caused a substantial limitation on his major life activity of walking, or it could equally infer that the pain was unrelated to his diabetes and any limitation to walking was too minor to meet the definition of “substantially limits” in the amended ADA. A fact issue existed as to whether employee could perform the essential functions of his job, with or without reasonable accommodations, such as the use of a scooter to move around the warehouse or “sitting breaks” to accomplish other work. Fact issues also existed as to whether employer engaged in the interactive process in good faith, whether employer provided the employee with any reasonable accommodation, and whether employee’s proposed accommodation (unfettered use of a scooter) would have caused undue hardship to employer. Finally, employee stated that employer’s human resources representative told him that the employer would not accommodate any restrictions—and
therefore required him to exhaust personal, short term, and long-term leave—and then fired him. Employer’s evidence corroborated the timeline, doctor’s restrictions, and use of leave. The court found that the employee demonstrated genuine issues of material fact as to whether the employer’s legitimate, nondiscriminatory reason for his termination was pretextual or whether his disability was a motivating factor in the termination.
Subpoena Compliance Flynn v. Sanchez Oil & Gas Corp., SA-19-CV-00867-JKP (Chestney, E., July 29, 2020). Defendant filed a motion to compel nonparties to comply with subpoenas that sought the contact information of all oilfield operators who provided services to defendant and the third parties. The contact information was sought in order to effect notice of the instant FLSA collective action pursuant to a stipulation between the plaintiff and defendant. The non-parties were reluctant to provide the information because they were concerned that the plaintiff and defendant could collude and cause the plaintiff to bring claims against these third parties with the defendant escaping liability altogether. One resisting a subpoena must demonstrate that compliance would be unreasonable and oppressive. Royal Dutch Petroleum provides a six-factor test to determine undue burden to the resisting party, and if the resisting party is a non-party, a court may also consider the expense and inconvenience associated with complying. Rather than excusing compliance, the court addressed the non-parties’ concerns by issuing a protective order that limited receipt of the information to only defendant and its thirdparty administrators and attorneys.
“pierced the pleadings” to determine whether the individual defendant that the plaintiff insisted was a claims adjuster was, in fact, an adjuster and whether she made misrepresentations regarding coverage in an email. Chapter 541 of the Texas Insurance Code, and by tie in, the Texas Deceptive Trade Practices Act, allows for recovery against adjusters. An affidavit from the individual showed she had never worked as an adjuster, underwriter, or agent for the insurer. Additional uncontroverted evidence showed that an email referenced in the petition had neither been written nor sent by the individual. Accordingly, that individual was improperly joined, and the claims against her were dismissed. In 444 Utopia Lane, plaintiff sued an underwriter and an insurance company. Prior to the lawsuit’s filing, the insurance company twice notified the plaintiff in writing that it had elected to accept the liability of several named entities and “any other agent or representative” of the insurance company pursuant to Tex. Ins. Code § 542A.006. The insurance company asked that the court “pierce the pleadings.” In doing so, the court confirmed that by using the term “any agent” in its election, such election extended to the insurance company’s unnamed agent, the defendant underwriter. The insurer may not revoke, and the court may not nullify, an insurer’s 542A election. Further, both presuit and post-suit 542A elections are sufficient to establish improper joinder. Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC.
Melanie Fry practices commercial litigation and appellate law with Dykema Gossett PLLC.
Improper Joinder; Insurance Finger Oil & Gas, Inc. v. Mid-Continent Cas. Co., SA-20-CV-0712-XR (Rodriguez, X., Aug. 5, 2020); 444 Utopia Lane, LLC v. Peleus Ins. Co., SA-20-CV-0716-XR (Rodriguez, X., Aug. 11, 2020). In two opinions, the court examined the issue of improper joinder in the context of requested remand of a removed case. To establish improper joinder, the removing party must show “an inability of the plaintiff to establish a cause of action against the nondiverse party in state court.” Both decisions relied on the court’s “piercing the pleadings.” In Finger Oil, the court November–December 2020
Charles Carter practices commercial litigation with Dykema Gossett PLLC.
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bar business
SABAProud
San Antonio Bar Association By the Numbers
3,634
Attorneys connected through a CLE, networking or social event.
145
Court Orders and Procedure notices shared with SABA members since March.
42
of Pro Bono services provided through 732 Hours LRS from January 1 to September 30.
52
Members participate in SABA Online Communities.
SABA connects members in specialty practice through
CLE hours offered to date in 2020 with a March pivot to virtual education.
a Laywer events provided to the 15 Ask community by volunteer attorneys.
17 sections.
service committees staffed by 16 SABA volunteer members.
4
SABA informs members through news sources SanAntonioBar.org, SABA Weekly, Subpoena and San Antonio Lawyer.
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