Austin Lawyer, February 2017

austinbar.org FEBRUARY 2017 | VOLUME 26, NUMBER 1

Investiture Ceremonies Held in Travis County

T

ravis County gained a new district attorney and several new judges during the first week of January 2017.

THE HONORABLE MARGARET MOORE Margaret Moore was sworn in as Travis County District Attorney on Tuesday, January 3, 2017 after winning the November 8 election against Maura Phelan. Moore has spent almost all of her legal career in public service. A graduate of the University of Texas School of Law, she was licensed in 1973. Moore brings to the job years of experience serving as a Travis County Juvenile Public Defender, Travis County Assistant District Attorney, Travis County Attorney, and Assistant Texas Attorney General in the Civil Medicaid Fraud Division, where she was lead counsel in one of the top jury verdicts of 2011.

In addition to prosecuting felony, misdemeanor, and civil fraud cases, Moore was Precinct 3 Travis County Commissioner twice, appointed by the County Judge to serve unexpired terms in the late 1990s and early 2000s.

As a county commissioner, she was instrumental in securing additional county funding for emergency services and expanding the Balcones Canyonlands Preserve.

While county attorney, she instituted the use of videos to enhance DWI evidence, the first deferred prosecution program in Travis County, and new programs for offenses like theft by check to increase collections and reduce recidivism. Moore also chaired the Travis County Child Welfare Board and served on the Emergency Services District #9 Board of Commissioners.

THE HONORABLE TAMARA NEEDLES AND THE HONORABLE BRAD URRUTIA A joint investiture ceremony took place later the same day for the Honorable Tamara Needles, 427th District Criminal Court, and the Honorable Brad Urrutia, 450th District Criminal Court.

Needles won the seat in the primary election, defeating incumbent Judge Jim Coronado. She was unopposed in the November 8 election.

She received her undergraduate degree in 1992 and her law degree in 1997 from Texas Tech University. After completing law school, she practiced criminal and family law as a solo practitioner in Lubbock. During the past 16 years, Needles has been an Austin-area criminal defense attorney. For 15 of those years, she maintained her own private practice representing persons charged with crimes of the most serious nature, including murder, sexual assault, and gun possession. Over the span of her practice, she has represented hundreds of persons charged with felonies and tried more than 35 felony jury trials. Long committed to community service, she has dedicated the majority of her practice to indigent defense.

Urrutia ran uncontested in the general election to fill the seat formerly held by Judge Don Clemmer, who was appointed to the bench

by Gov. Greg Abbott. After being admitted to the bar in 1996, Urrutia focused his practice on criminal defense. He tried many high-profile cases during his career, including five capital murder cases. In the past five years, he had more felony jury trials than any other criminal defense lawyer in the county. Urrutia has been committed to representing indigent clients charged with the most serious crimes and represented many undocumented, Spanish-speaking defendants.

An Army veteran, Urratia hopes to expand the Travis County Veterans Court to the District Court level so more veterans suffering from PTSD can have greater access to

The Honorable Wilford Flowers swears in the Honorable Brad Urrutia of the 450th District Court.

services and an opportunity to avoid a felony conviction. He supports expanding the Felony Pretrial Diversion and Youthful Offender programs. He is passionate about helping youthful offenders and believes criminal justice reform begins at the local level with a judge willing to give non-violent offenders a second chance.

THE HONORABLE JAN SOIFER The Honorable Jan Soifer also ran uncontested in the November election for a seat on the 345th District Civil Court. Soifer’s investiture ceremony took place on Friday, January 6, 2017. After graduating from Yale in 1979, Soifer moved to Austin to enter the UT School of Law, graduating with a J.D. in 1982. She served for three years as Deputy Chief of the Texas Attorney General’s Consumer Protection Division, and has been a partner in both large and mid-sized law firms.

She was an adjunct faculty member at the UT School of Law from 1992 - 2008, teaching trial advocacy while practicing law full-time.

Soifer has practiced law for the past eight years with her husband, Pat O’Connell, at O’Connell & Soifer. Recent accomplishments include successfully representing a same-gender couple against the Hood County Clerk who refused to issue them a marriage license after Obergefell, and successfully representing Whole Woman’s Health in its lawsuit against continued on page 5

CONTENTS

AUSTINLAWYER FEBRUARY 2017 | VOLUME 26, NUMBER 1 AL A L INSIDE FEATURED ARTICLES 1

Investiture Ceremonies Held in Travis County District Attorney and Three Judges Sworn In

9

Lawsuit?...But I Was a Volunteer!

Limiting Liability for Volunteers in Texas

10

Austin Bar Foundation in Action Foundation Grant Recipient Update

13

New Executive Director Hired at Volunteer Legal Services Priscilla Cortez Takes the Helm

22

Call for Austin Bar Board Nominations Consider a Leadership Position in 2017

ONLINE

DEPARTMENTS 6 President’s Column 11 Opening Statement 12 Briefs 14 Third Court of Appeals Civil Update 15 Third Court of Appeals Criminal Update 16 Federal Criminal Court News 17 Federal Civil Court Update 18 AYLA 21 Legislative Update 22 Ad Index 23 Developing Your Practice

NEWS & ANNOUNCEMENTS

EVENTS & MORE

Austin Bar Honors Retiring Judges Coronado and Yelenosky

FEB 1

ABOTA Honors Dicky Grigg at Judicial Appreciation Dinner Group Announces Officers for 2017-2019

Is Your Membership Current?

Only Active Austin Bar Members Can Participate in Judicial Evaluation Poll

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

austinbar.org

Judicial Portraits Hung in Courthouse

CONNECTIONS

Judicial Evaluation Poll Ballots emailed from Austinbar@BallotBoxonline All current Austin Bar members are eligible to vote Voting ends Feb. 15.

STREAM @AustinBarAssociation FOLLOW instagram.com/theaustinbar TEXT austinbar to 313131 for up-to-date news + info Message & data rates may apply.

P RECISE N EUROLOGIC O PINIONS Multiple Legal Cases in Past 30 months Excellently Written Comprehensive Consults Well Prepared Deposition or Trial Defense or Plaintiff

neurologyaustin@juno.com (512) 458-8900 NEUROLOGY BRAIN & SPINE References Available Upon Request

FEBRUARY 2017 | AUSTINLAWYER

3

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

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

Austin Lawyer ©2017 Austin Bar Association; Austin Young Lawyers Association

EXECUTIVE OFFICES 816 Congress Ave., Suite 700 Austin, TX 78701-2665 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward........................... Executive Director Nancy Gray ................................ Managing Editor Debbie Kelly .............................. Director of AYLA Kennon Wooten ...................... Editor-in-Chief Kelli Horan ................................. Editorial Assistant Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 700, Austin, Texas 78701.

Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities.

The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement.

Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published.

Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.

PUBLISHED BY Monarch Media & Consulting, Inc. Ph: 512.680.3989 | Fax: 866.328.7199 monarchmediainc.com Advertising inquiries call 512.293.9277.

4

AUSTINLAWYER | FEBRUARY 2017

Travis County Holds Four Investiture Ceremonies continued from cover

the State of Texas challenging restrictive provisions of HB2 in the U.S. Supreme Court, the most significant women’s health decision since Roe v. Wade.

A former president of the Austin Bar and the AYLA, and a former director of the State Bar of Texas, Soifer has received multiple professional honors, including being named Outstanding Young Lawyer in Texas by TYLA in 1991 and Outstanding AYLA Alumnus in 2012. A past president of Volunteer Legal Services of Central Texas, Soifer received the 1995 J. Chrys Dougherty Award for exemplary dedicationAUSTIN and commitment to the LAWYER ALall. AL principle of access to justice for

ABOVE LEFT: The Honorable Tamara Needles, 427th District Court at her investiture ceremony. ABOVE RIGHT: The Honorable Wilford Flowers administers the oath of office to District Attorney Margaret Moore.

Your full-service legal technology partner.

Judge for yourself.

Please visit us at www.innovativecomp.com

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

FEBRUARY 2017 | AUSTINLAWYER

5

PRESIDENT’S COLUMN LESLIE DIPPEL, ASSISTANT TRAVIS COUNTY ATTORNEY

Living the Lawyer’s Creed Let Us Disagree Without Being Disagreeable

IN JANUARY, I read the Texas Lawyer’s Creed after attending several swearing-in ceremonies of newly elected officials. The meaningfulness of those ceremonies really spoke to me as I noticed these words in the Creed: “I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.”

The first sentence alone beautifully describes the Austin legal community. What a pleasure it is to live and practice law in a town where we treat each other with professionalism and courtesy.

We understand there is not a conflict between being a zealous advocate and being courteous and professional. This is true for both

6

AUSTINLAWYER | FEBRUARY 2017

the civil and criminal sides of the practice of law. One of my goals as president of the Austin Bar this year is to bring those two sides of the bar together because we can learn so much from each other.

One of the swearing-in ceremonies I attended was for Judge Brad Urrutia. Judge Urrutia presides over the 450th Travis County District Court. I have known Judge Urrutia for a very long time.

We first met in college (Eat ’Em Up, Cats!) and quickly became friends. It has been such a thrill to watch him become a successful criminal defense lawyer and now to preside over the 450th. What strikes me the most about him is his ability to “disagree without being disagreeable.” He has mastered the balance of being a zealous advocate while maintaining the utmost decorum and professionalism. Many agree he is an incredibly nice and thoughtful man, but no one would say he is not a tough opponent.

It is important for us to identify how we can achieve that balance so we can prioritize and preserve it. Maybe spending time with one another outside of pending cases would help us build and maintain camaraderie and trust with one another. Have you paid

We understand there is not a conflict between being a zealous advocate and being courteous and professional. share the same goal—to represent attention to the Austin Bar’s our clients well. We can achieve Bar Code which is emailed out that goal without being disagreeeach Tuesday? There are many able. “I can disagree without being opportunities for us to spend time disagreeable.” That is a sentence with our brothers and sisters of the I’m going to write down and tape to bar. Some involve service to the my computer as a reminder. Those legal community while others are words should guide all of my interjust fun gatherings. The Austin actions with my colleagues, and I Bar’s Social Committee is chaired should expect the same in return.

by President-Elect Amy Welborn.

Thank you, Judge Urrutia, for She and the committee plan a setting the bar high and keeping it variety of fun events for us to high. We hope you hold us to the enjoy together. Stay on the lookout same standard as you preside over for the next one. When we spend AUSTIN LAWYER the 450th. time together, we remember we all AL AL

Foskitt Law Office, P.L.L.C. Fee Attorney for Capstone Title

MEDIATION & ADR SERVICES

MARK L. HAWKINS MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

Refinancing? You can choose us as title, and we can close the loan at your home or office.

Selling? You can choose us as title, and we can close the sale at your home or office.

Real Estate Closings, Escrow, Title Insurance - Residential & Commercial

Sara Foskitt, Escrow Officer & Attorney Dave Floyd, Business Development & Attorney Katie Fry, Escrow Assistant www.foskittlaw.com sara@foskittlaw.com (512) 917-2939

THE BEST LAWYERS IN AMERICA®

COMMERCIAL LITIGATION 2012–PRESENT

TEXAS SUPER LAWYERS®

THE BEST LAWYERS IN AMERICA®

2016

2012–PRESENT

BUSINESS LITIGATION

REAL ESTATE LAW

Armbrust & Brown, PLLC 100 CONGRESS AVE., SUITE 1300 • AUSTIN, TEXAS 78701 512-435-2300 • FAX 512-435-2360 mhawkins@abaustin.com

FEBRUARY 2017 | AUSTINLAWYER

7

Lawsuit?...But I Was a Volunteer!

Limiting Liability for Volunteers in Texas

BY JOHN L. THOMPSON Article first appeared in the Dallas Bar Association’s publication, Headnotes.

O

pportunities to volunteer abound in our community. But no volunteer wants to be subjected to civil liability as a reward for their altruistic efforts.

With this in mind, the Legislature enacted the Texas Charitable Immunity and Liability Act of 1987, Tex. Civ. Prac. & Rem. Code, § 84.001, et seq. (“TCILA”).

The TCILA provides volunteers broad protection from liability for negligence. Specifically, a “volunteer” of a “charitable organization” is immune from civil liability for any act or omission resulting in death, damage, or injury, if he was acting in the course and scope of his duties. This immunity does not extend to any act or omission that is intentional, willfully negligent, or done with conscious indifference or reckless disregard for the safety of others.

Also, there is no immunity for acts or omissions arising from the operation of motor-driven equipment, to the extent insurance coverage is required by state law and to the extent there is any other applicable insurance coverage.

A “volunteer” means a person rendering services for a charitable organization, who does not receive compensation beyond expense reimbursements. Generally, a “charitable organization” includes any organization—whether a tax-exempt § 501(c)(3)-(c)(4) organization or not—organized and operated exclusively for permissible purposes, such as charitable, religious, educational, prevention of cruelty to children or animals, and youth sports, or organized and operated exclusively for the promotion of social welfare by being primarily engaged in promoting the common good and general welfare of the people in a community. A non § 501(c)(3)-(c)

(4) organization must also satisfy six factors ensuring the organization is focused on social welfare, not politics or profit. Additionally, if certain criteria are met, homeowners associations, volunteer centers (as defined by statute), local chambers of commerce, and wildfire mitigation organizations may also qualify.

The TCILA does not modify the duties and liabilities owed by officers and directors to the organization, nor does it limit the organization’s potential liability for acts or omissions of its employees and volunteers. Non-hospital charitable organizations can, however, limit their exposure to $500,000/person and $1 million/ occurrence for bodily injury or death and $100,000/occurrence for property damage, by maintaining insurance in these amounts (or a $1 million bodily injury and property damage combined single limit policy) covering the organization and its employees.

Volunteers also benefit from the Volunteer Protection Act of 1997, 42 U.S.C. § 14501, et seq. (“VPA”), which Congress enacted to establish a nationwide baseline for protecting volunteers. The VPA preempts inconsistent state laws, except to the extent a state law affords broader protections, which the TCILA generally does.

The VPA provides that a “volunteer” of a “nonprofit organization” shall not be liable for “harm” caused by a volunteer’s act or omission on behalf of the organization, if the volunteer: (1) was acting within the scope of his responsibilities; (2) was properly licensed, if applicable; (3) did not cause the harm by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed; and (4) did not cause the harm while operating a vehicle requiring an operator’s license or insurance. There is no

A Texas volunteer member of a Catholic Charities Disaster Response Team talks with a Central American refugee at the Sacred Heart Catholic Church, the epicenter of the McAllen refugee assistance effort in July of 2014. Photo courtesy of iStock.

protection afforded volunteers for misconduct involving certain criminal activity or occurring while under the influence of drugs or alcohol.

Generally, “nonprofit organization” means any tax-exempt 501(c)(3) organization and any nonprofit organization organized for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes. “Volunteer” means an individual performing services for a nonprofit organization who does not receive compensation exceeding $500 per year, excluding expense reimbursements. “Harm” includes any economic and noneconomic losses.

Beyond precluding liability for negligence, the VPA limits liability for noneconomic losses in circumstances of heightened culpability. First, in multi-defendant cases, there is no joint and several liability for non-economic losses.

Rather, a jury determines each defendant’s percentage responsibility for the plaintiff’s harm, then liability for noneconomic losses are allocated pro-rata. Second, punitive damages are available only for willful or criminal misconduct or a conscious, flagrant indifference to the rights or safety

of the individual harmed. The VPA, however, neither creates a cause of action for punitive damages nor expands any state or federal law that further limits punitive damage availability.

These statutes cannot prevent a lawsuit. Likewise, a good faith allegation that misconduct involved heightened culpability means the culpability determination and, thus, the volunteer’s entitlement to any protection at all, may require a jury verdict. Nevertheless, these statutes essentially eliminate a volunteer’s personal liability for damages from mere negliAUSTINarising LAWYER gent conduct.

AL AL

John L. Thompson is a shareholder at Bernard A. Guerrini. He can be reached at jlt@erisaltd.com.

FEBRUARY 2017 | AUSTINLAWYER

9

Austin Bar Foundation in Action Foundation Grant Recipient Update

L

ast spring, the Austin Bar Foundation awarded grants totaling $16,000 to area organizations, furthering its mission to improve public awareness of the legal system, the administration of justice, and the delivery of legal services. The Foundation has

the Foundation to create volunteer training videos to assist the organization with its mission of promoting and protecting the best interest of children who have been abused or neglected, by training volunteers to advocate for them in courts, in schools, and in the community, and to help them find safe, permanent,

“The online courses and training videos have been very successful. They provide trainees with important information available to them 24 hours a day...”

— CASA Training Director Lydia Garcia

given $102,253 in grants since it began its grants program in 2012.

One of last year’s grant recipients was Court Appointed Special Advocates (CASA) of Travis County. CASA received $5,000 from

and loving homes.

In 2015, 213 CASA volunteers went through a course of 12 training sessions. In 2016, four of those session were replaced with the online training videos. As a result,

in 2016, over 260 people were trained as CASA volunteers. CASA reports the videos have allowed volunteers to learn about and hear directly from Child Protective Services caseworkers, attorneys, the Honorable Darlene Byrne, and active CASA volunteers.

CASA Training Director Lydia Garcia said, “The online courses and training videos have been very successful. They provide trainees with important information available to them 24 hours a day instead of only in one particular in-person class. Trainees have commented that they enjoy the flexibility of the [online] option and they like being able to access these resources even after they finish the initial training and start advocating

for children on their cases. We’ve had several current volunteers contact us to make sure they can still access their online courses to reference different topics.”

The Austin Bar has another opportunity to support CASA of Travis County by attending the upcoming CASAblanca Gala on Saturday, February 4, at the JW Marriott Austin. Guests will rub shoulders with Austin’s most glamorous and generous, be moved by the powerful stories of children and their CASA volunteers, win big in the casino, enjoy fabulous live and silent auctions, and pick out the best swag bags outside of the Oscars. For more information or to purchase tickets, visit casatravis.

AUSTIN LAWYER org/events, or call 512.539.2677.

AL AL

PATRICK KEEL M e d i a t o r • A r b i t ra t o r Former District Judge

Maitreya Tomlinson

D. Todd Smith

Laura P. Haley

Smith Law Group was founded by appellate specialist D. Todd Smith, Treasurer of the Austin Bar Association for 2016-2017 and a Life Fellow of the Austin Bar Foundation.

Handling Civil Appeals and Supporting Trial Counsel Statewide office 512 476-5212 mobile 512 293-0300 www.patrickkeel.com

10

AUSTINLAWYER | FEBRUARY 2017

512.439.3230 W W W. A P P E A L S P L U S .C O M

OPENING STATEMENT

Intensifiers: Are You Blatantly Bolstering?

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

A

s legal writers, we might be tempted to use intensifiers to bolster our points— to persuade. What’s an intensifier?

It’s a “linguistic element used to give emphasis or additional strength to another word or statement.”1 Intensifiers can be various parts of speech: adverbs (clearly), adjectives (blatant), participles (raving), and more.

Intensifiers get a lot of bad press, and clearly is king: • Clearly is so overused in legal writing that one has to wonder if it has any meaning left.2 • Doctrinaire adverbs such as clearly and obviously are perceived as signaling overcompensation for a weak argument.3 • When most people read a sentence that begins with something like obviously, undoubtedly … and so on, they reflexively think the opposite.4 One article on intensifiers in legal writing suggests that overusing intensifiers is bad—or very bad.

In a study of U.S. Supreme Court briefs, the authors found that increased intensifier use was correlated with losing, especially for appellants.5 The authors allege no causal connection—they couldn’t prove it was the intensifiers that lost the case—but the correlation is interesting.

So what should we do instead of overusing intensifiers? Three suggestions.

DROP IT. Often, a sentence gets stronger without the intensifier. Which of these is more forceful?

1. Clearly, an attorney is not an expert on what is a “Doberman,” and there is no showing in the affidavit that Squires is an expert on Dobermans. It clearly is a fact issue for the trier of fact.

1a. An attorney is not an expert on what is a “Doberman,” and there is no showing in

the affidavit that Squires is an expert on Dobermans. It is a fact issue for the trier of fact.

Dropping intensifiers doesn’t always work, and we can’t completely banish them. Some legal standards require them: clearly erroneous, highly offensive. Legal writing entails some qualifying, but good legal writers develop a sense for when they’re appropriately qualifying and when they’re blatantly bolstering.

REPLACE IT. With some thought, you can delete an intensifier-plus-verb or intensifier-plus-noun construction and replace it with a single, forceful word. So— • completely wrong > inaccurate, incorrect, mistaken, unsound • extremely smart > brilliant • highly capable > accomplished, proficient • quickly went > hustled, sped, rushed • very sure > certain Again, develop an editorial sense. Replacements don’t always work; sometimes a single-word option is loaded. If instead of “very bad” you write “terrible” or “dreadful,” you might interject undesired subjectivity or emotion.

SPECIFY. Rather than rely on a vague intensifier, legal writers can use details to emphasize. Here’s a classic example: 2. It was very hot.

2a. It was 103 degrees in the shade.

trend. So even if you’re willing to say, in casual conversation, “My boss is so impatient, I’m literally walking a tightrope,” please don’t use this trendy sense of literally in AUSTIN LAWYER legal writing.

AL AL

Here’s another example of specifying, with two more persuasion techniques: a dash and a sentence that ends with key words: 3. The transaction at issue obviously did not take place at Eason’s residence.

3a. Lubbock detectives set up a controlled purchase with a cooperating defendant at Jay’s Auto Body. It was there that Eason handed over a bag of methamphetamine—not at Eason’s residence.

1 Merriam-Webster’s Dictionary of English Usage 555-56 (1994).

2 Anne Enquist & Laurel Currie Oates, Just Writing 123 (3d ed.

2009).

3 Bryan A. Garner, The Winning Brief 523 (3d ed. 2014).

4 Joseph M. Williams, Style: Lessons in Clarity and Grace 123 (9th ed.

2007).

5 Lance N. Long & William F. Christensen, Clearly, Using Intensifiers Is Very Bad—Or Is It? 45 Idaho L. Rev. 171, 180 (2008).

Footnotes:

As you can see, specifying takes more words, and so, as with all writing, exercise editorial judgment. Weigh the longer, specific description against the shorter, vaguer (and weaker) one.

And a final note: Linguists and others who study language agree: In speech, the word literally is becoming an all-purpose intensifier like highly, clearly, and extremely.

But in legal writing, which values precision, we shouldn’t follow this FEBRUARY 2017 | AUSTINLAWYER

11

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: James Blake Jonathan Bloom Coleson Bruce

Botkin, Chiarello, Courreges, Frey, Jewart, and Taylor

Kristina Chung Tyler Cotton

AWARDS

Ashley Croswell

Ketan Kharod of the Kharod Law Firm was elected to the Sunset Valley City Council. Kharod is the first Indian-American man to win any contested election in Travis County.

David Dyer John Garza Jeff Guidry Steven Hare John C. Hernandez

Eleanor Chote Jewart was named as one of the 2016 Top Women in Energy by Texas Lawyer magazine. Jewart is a partner at Husch Blackwell and has been practicing transactional law for 16 years and renewable energy development and real estate for the last five to seven years.

Alisa Holahan Allison Lennar Melissa MacNeil William (Trip) Nix Liane Noble Jennifer Nogalski Janus Pan Sara Plaisance

Adam J. Richie

Tim Taylor, a partner at Jackson Walker, was presented the Distinguished Citizen Award by the Capitol Area Council of Boy Scouts of America.

Mark Sessums

NEW TO THE OFFICE

Curt Profilet Robert Rex Timothy Ribelin

James Tinley

University Federal Credit Union has hired David Courreges

Wade Wilson

TLIExperience Because of our 36 years in the business, Texas Lawyers’ Insurance Exchange has been voted best professional liability insurance company in Texas four years in a row by Texas Lawyer magazine. That same experience and our exceptional employees are why TLIE is also a Preferred Provider of the State Bar of Texas. Not to mention, we have returned over $41,550,000 to our policyholders. See why experience makes the difference.

512.480.9074 / 1.800.252.9332 INFO@TLIE.ORG / WWW.TLIE.ORG

Jeffrey Hobkirk, Underwriter

12

AUSTINLAWYER | FEBRUARY 2017

@TLIE_

facebook.com/TLIE01

as its new Senior Corporate Counsel. Courreges has more than a decade of experience in areas such as governmental affairs, corporate, association, and administrative law.

Bertolino Law Firm has hired Maggie R. Simoneaux-Cuaso as a senior associate attorney.

Simoneaux-Cuaso has focused on civil litigation representing clients in ERISA, personal injury, wrongful death, medical malpractice, and family law cases.

Dickinson Wright has hired attorney Alison D. Frey for the firm’s Austin office. Frey focuses on intellectual property law where she regularly advises clients on trademark matters, including trademark clearance and protection, policing, rebranding, licensing, and global brand protection strategies.

Wittliff Cutter Austin has hired Ryan Botkin and Katherine Chiarello as partners. Botkin

focuses on business disputes, including technology and IP licensing, corporate governance, e-commerce, and more. Chiarello focuses on both small and large business in a wide variety of industries, including online retailers, print and digital media, financial services, artificial turf, and insurance.

Richards Rodriguez & Skeith announced the hire of Daniel Riegel and Adriana Lopez-Ortiz as partners. Riegel focuses on commercial litigation and employment law. Lopez-Ortiz focuses on general business counsel, including entity formations, contract and lease negotiations, and commercial real estate issues.

MOVING ON UP Jackson Gilmour & Dobbs announced its merger with Kelley Drye & Warren, an international law firm.

PROBATE REAL ESTATE SALES

A H. W, JD REALTOR ®

512.484.3409 mobile 512.480.0848 ofc

andrew@moreland.com email • Courtroom experience • Market knowledge • Fast, accurate, complementary property evaluation • Coordination of pre-sale services A   A     moreland.com

New Executive Director Hired at Volunteer Legal Services

V

olunteer Legal Services of Central Texas (VLS) recently found a permanent executive director to help lead the organization. Priscilla Cortez brings more than 15 years of experience in both law and nonprofit work to the position.

Cortez earned her law degree from St. Mary’s University after earning a master’s degree in education from the University of Texas at Austin and a bachelor’s degree from Texas A&M University. Her work experience ranges from being an associate at Bacon Lee & Associates, to serving as executive director of Philanthropy for Strategic Priorities at the University of Texas System.

Coming from a large family, Cortez is accustomed to being asked for legal help. Because of this, she feels she understands the need that VLS helps to address.

“Because of my personal experience, I understand the

...as income inequality and segregation deepen and access to legal help becomes more difficult, VLS programs and services, and its partnerships with the judiciary and organizations like Texas Rio Grande Legal Aid and the Austin Bar Association, are critical to the Central Texas community. importance of organizations like VLS and the impact providing trusted legal assistance can have in helping people solve difficult problems,” said Cortez.

Building on what Interim Executive Director Rebecca Lightsey began, Cortez looks to craft a strategic plan for the next five to 10 years for the organization. Her goal is to work with stakeholders to find ways of removing barriers to civil justice as well as narrowing the gap between the need for pro bono legal services and its availability.

“She has a demonstrated passion for our mission of helping low-income people with their legal needs, extensive experience with nonprofit leadership, especially development, and a great reputation in the Austin community,” said Bill Christian, president of the board for VLS. Since 1981, VLS has helped low-income individuals have increased accessibility to the civil justice system for those needing legal services or advice. Last year, VLS volunteer attorneys and staff provided more than 8,000 clients with

Cortez

15,074 hours of free legal services.

“Now more than ever, as income inequality and segregation deepen and access to legal help becomes more difficult, VLS programs and services, and its partnerships with the judiciary and organizations like Texas Rio Grande Legal Aid and the Austin Bar Association, are critical to the Central Texas community,” AUSTIN LAWYER said Cortez.

AL AL

Family Law Specialist Tim Whitten has practiced in family law since 1992. He has been certified *Kimberly A. Edgington as a Family Law Specialist by the Texas Board of Legal Specialization. kim@whitten-law.com

ion

Creative Solutions to Family Law We help people resolve their family law issues in a way that protects their interests and preserves their family relationships. Most family law cases can be difficult both from an emotional and financial perspective. We believe in reducing the emotional and financial stress by offering our clients alternative options to resolve their disputes, such as collaborative law, mediation and limited scope representation.

Our firm also believe that clients reach better results when they resolve disputes cooperatively. However, when that isn’t possible, we commit ourselves to the ethical resolution of adversarial litigation.

Adoption

Grandparent or Non-parent Rights

Collaborative Law

High-Asset Divorce

Modifications of Custody, Possession & Support

812 San Antonio Street, Suite 401, Austin, TX 78701

whitten-law.com | info@whitten-law.com | (512) 478-1011 FEBRUARY 2017 | AUSTINLAWYER

13

THIRD COURT OF APPEALS CIVIL UPDATE

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

>

The following are summaries of selected civil opinions issued by the Third Court of Appeals during November and December 2016. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of January 4, 2017.

ADMINISTRATIVE LAW: City failed to exhaust administrative remedies in challenge petition.

City of Austin v. Travis Cent.

Appraisal Dist., No. 03-16000038-CV (Tex. App.—Austin Nov. 10, 2016, no pet. h.). City filed a challenge petition with the appraisal review board on the level of appraisal for certain commercial properties. In response to City’s and TCAD’s agreed motion, the board denied the challenge. City sued for judicial review. Several property owners challenged the trial court’s jurisdiction. The trial court dismissed for lack of jurisdiction.

According to the court of appeals, City was required to exhaust its administrative remedies before filing suit. City offered no evidence or argument in support of its challenge petition at the board hearing. Accordingly, City deprived the board of any opportunity to decide the merits of the challenge. Thus, City failed to exhaust its administrative remedies. The court affirmed.

CONTRACTS: Ward’s incapacity voided contract.

Oak Crest Manor Nursing Home, LLC v. Barba, No. 03-16-00514CV (Tex. App.—Austin Dec. 1, 2016, no pet. h.) (mem. op.).

Guardian sued Oak Crest for injuries of a ward who left the facility through a window and jumped from an overpass. Oak Crest sought to enforce the arbitration provision in the admission contract signed by the ward. Guardian contended the ward lacked the mental capacity to execute a contract and thus the agreement was void. The probate

court denied the motion to compel arbitration. The court of appeals observed that to establish mental capacity to execute a contract, a party must have sufficient mind and memory to understand the nature and effect of her act. In light of conflicting evidence, the court relied on evidence after the ward signed the agreement as probative of the ward’s incapacity at the time of the contract’s execution. The court further concluded that a party’s incapacity to contract renders it non-existent and void. The court affirmed.

ARBITRATION: Subsequent purchaser not bound by arbitration clause in original contract.

Toll Austin, TX, LLC v. Dusing, No. 03-16-00621-CV (Tex. App.—Austin Dec. 7, 2016, no. pet. h.) (mem. op.). The court addressed whether subsequent purchasers of a home are bound by an arbitration agreement in the original sales contract. After purchasing a home from a third party, the Dusings sued Toll for faulty construction. Toll moved for arbitration, citing the original sales contract. The trial court denied the request to arbitrate.

The court of appeals concluded that a subsequent purchaser is not a successor to the original homeowner with whom a builder had an arbitration agreement. The court further concluded that the Dusings did not impliedly assume the original contract. The original contract provided that the original

buyer could not assign the agreement. The court affirmed.

TRIAL PROCEDURE: Court upholds default judgment in lackof-notice case.

Lewis v. Housing Auth. of Austin, No. 03-15-00800-CV (Tex. App.—Austin Dec. 7, 2016 no pet. h.) (mem. op.). HACA filed a forcible detainer action against Lewis for nonpayment of rent.

HACA sent Lewis notice of the trial setting by first-class and certified mail. The first-class letter was not returned; the certified letter was unclaimed. Lewis did not appear for trial and the trial court entered a default judgment and denied Lewis’s motion to set aside the default. According to the court of appeals, HACA’s certificate of service created a presumption that Lewis was served. Because Lewis did not appear at trial, she did not rebut the presumption. Lewis rebutted the presumption of service by testifying to non-receipt.

Rebutting the presumption of service, however, did not establish lack of service. Instead, denial of receipt only presents a fact issue.

Lewis failed to object to HACA’s attorney’s unsworn statements regarding mailing of the setting, which constituted evidence.

Accordingly, Lewis failed to prove her failure to appear was not inAUSTIN LAWYER tentional. The court affirmed.

AL AL

2017 Judicial Evaluation Poll Conducted in Early February

T

he Austin Bar Association’s biennial Judicial Evaluation Poll will be available for members Feb. 1 – 15, 2017. Austin Bar members will receive an email from Ballot Box Online with a link to the online evaluation poll. Dues payments must be current to ensure active membership status in order to participate in the poll. Contact Membership Director Carol Tobias at carol@austinbar.org if you are unsure of your membership status.

The Austin Bar has conducted its Judicial Evaluation Poll since 1978.

In 2005, the policy of conducting the poll every two years was established.

The poll gives Travis County attorneys an opportunity to evaluate the performance of area judges—from justices of the peace to federal district 14

AUSTINLAWYER | FEBRUARY 2017

The poll gives Travis County attorneys an opportunity to evaluate the performance of area judges... judges—with the results released to the public as a community service.

Please look for the email on Feb. 1 and take a few minutes to complete the survey before the Feb. 15 deadline. The email will be sent from AustinBar@BallotBoxOnline.com. Please makeAUSTIN sure to whitelist this LAWYER L AL email address to ensure it is not blocked by your spam A filter.

THIRD COURT OF APPEALS CRIMINAL UPDATE

>

The cases summarized are from August 2016 and subsequent histories are current as of December 30, 2016. The summaries represent the views of the author alone and do not relect the views of the Court or any of the individual Justices on the Court.

SEVERANCE: Defendant failed to show unfair prejudice from joint trial of two sexual-assault cases.

Hodge v. State, 500 S.W.3d 612 (Tex. App.—Austin 2016, no pet.).

Hodge was charged with multiple counts of aggravated sexual assault and indecency with a child in two separate causes consolidated for trial. Each of the causes involved a different victim, although both victims were Hodge’s daughters. Prior to trial, Hodge sought to sever the causes, contending that each victim was abused in separate geographic locations and that the “sheer amount” of evidence pertaining to one of the victims would cause the jury to believe that Hodge had also abused the other victim. The trial court denied the motion to sever and the appellate court affirmed, explaining that “[t]he conduct alleged in the indictments specified that Hodge abused his two daughters in similar ways over the same two-year period and sometimes while the daughters were in the presence of one another.” Accordingly, “the district court could have reasonably concluded that the conduct fell within the definition of a ‘criminal episode,’” and, therefore,

that the causes could be joined for trial. Additionally, the court observed that “even if the district court had granted Hodge’s motion to sever, it is likely that all of the evidence [involving both daughters] would have been introduced . . . in both trials anyway under Rule 404 [of the Rules of Evidence] or article 38.37 [of the Code of Criminal Procedure]” as admissible extraneous-offense evidence.

that had been announced in June 2012, two months prior to Martinez’s plea—did not rise to that level.

Moreover, the court added, Martinez had also failed to show that, if counsel had advised him of the eligibility requirements of DACA, Martinez would have insisted on going to trial.

On this record, the appellate court could not conclude that the trial court had abused its discretion in denying habeas relief.

INEFFECTIVE ASSISTANCE OF COUNSEL: Counsel not ineffective for failing to advise client that pleading guilty would make client ineligible for Deferred Action for Childhood Arrivals program (DACA).

Ex parte Martinez, No. 03-1500334-CR (Tex. App.—Austin Aug. 31, 2016, no pet.) (mem. op., not designated for publication). Martinez pleaded guilty to driving while intoxicated and later filed an application for writ of habeas corpus, alleging that trial counsel had failed to warn him of the immigration consequences of his guilty plea, specifically his ineligibility for DACA. The trial court denied relief and the appellate court affirmed, concluding that DACA was not “well considered and clearly defined” at the time Martinez had pleaded guilty. The court explained that only “ignorance of well-defined general laws, statutes, and legal propositions . . . may lead to a finding of constitutionally deficient assistance,” and ignorance of DACA—which was a federal “directive” of “deferred action” on the enforcement of immigration laws

DISORDERLY CONDUCT— DISPLAY OF FIREARM: Defendant not entitled to defensive instructions on necessity and self-defense.

Penning v. State, No. 03-1400579-CR (Tex. App.—Austin Aug. 31, 2016, no pet.) (mem. op., not designated for publication).

During a “roadway encounter” between two motorists on a highway, Penning got out of his vehicle, approached the other motorist, and began yelling. The other motorist reached for his cell phone, which prompted Penning to reach for a gun that he was carrying on a holster attached to his hip. Upon seeing the gun, the other motorist stopped reaching for his phone and drove away. Penning proceeded to follow the other motorist in his vehicle. Eventually, Penning stopped following the other motorist and pulled into a convenience store, where he was apprehended by police. At trial, Penning requested and was denied instructions on the “confession-and-avoidance” defenses of necessity and self-defense. The

Zak Hall is a staff attorney for the Third Court of Appeals.

appellate court affirmed, concluding that Penning had failed to admit to “displaying a firearm” as alleged. On appeal, Penning argued that “display,” as used in the disorderly-conduct statute, should be “broadly interpreted” to mean “manifesting the presence of a gun and/or making a fraction of the gun visible.” The appellate court disagreed, concluding that the plain meaning of “display,” as used in the statute, “requires making the weapon itself visible, not merely demonstrating the presence or existence of the weapon.” The court explained that Penning had, throughout his testimony, “repeatedly den[ied] that he displayed his weapon” and “consistently and adamantly denied any intent to display his weapon.” Consequently, the court concluded, Penning had failed to confess to all of the elements of the offense and thus was not entitled to the defensive AUSTIN LAWYER AL AL instructions.

Vincent Harding, Realtor® & Attorney Lisa Miriam, LEED AP, Realtor® & Attorney Sara Foskitt, Broker, Owner & Attorney REALTORS

Dave Floyd, Owner & General Counsel

ATTORNEYS

www.floydre.com (512) 917-2939

Your Attorney Colleagues For All Your Real Estate Needs.

Floyd Real Estate, L.L.C., Sara Foskitt, Designated Broker, Lic. 0598363

FEBRUARY 2017 | AUSTINLAWYER

15

FEDERAL CRIMINAL COURT NEWS

The Times They Are A-Changin’ Travis County Swears In District Attorney and Two Criminal District Judges

BY DAN DWORIN

Dan Dworin is a criminal defense attorney who has practiced in Central Texas since 1995, and has been licensed in the Western District of Texas since 1997.

He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. dworinlaw.com.

O

n Jan. 3, 2017, a new Travis County District Attorney and two new criminal district judges were sworn in to service after an unusually large number of competitive races for criminal justice positions in the recent election cycle.

Since 1977, the office of Travis County District Attorney has been held by Ronnie Earle or his longtime first assistant, Rosemary Lehmberg. With Margaret Moore’s swearing in, the most sweeping series of personnel changes and office reorganization in decades is underway.

Moore, who served as an assistant district attorney under Earle

from 1977 to 1980, is hardly an unknown in Travis County, having served on the Commissioner’s Court and as county attorney.

However, she worked for the Texas Attorney General’s Office for about 10 years before retiring in 2014, so she was not a regular at the Travis County courthouse when she entered the race. She defeated longtime Earle/Lehmberg assistant Gary Cobb in the Democratic primary, then dispatched former prosecutor Maura Phelan in the general election.

At her swearing-in ceremony, Moore addressed what she said was a lack of trust between the community and law enforcement, pledging to help restore it by creating a Civil Rights Division to review allegations of police misconduct, including use of force. Longtime defense attorney Dexter Gilford will head that division. Moore also laid out plans to work collaboratively with the Travis County Attorney’s Office, which prosecutes misdemeanors, to increase efficiency and ensure effective resolution of family and domestic violence cases.

Many of Moore’s hires for top positions have many years of criminal defense experience in addition to having served as

...Moore addressed what she said was a lack of trust between the community and law enforcement, pledging to help restore it by creating a Civil Rights Division to review allegations of police misconduct, including use of force. bent Jim Coronado in a very rare prosecutors. This certainly has not Democratic primary challenge, been the case in Travis County now presides over the 427th for the past 20 years. Her First District Court. Judge Brad Urrutia Assistant, Mindy Montford, was defeated Don Clemmer, who was in private practice from 2008 appointed by Gov. Greg Abbott until taking office in January, to lead the newly-created 450th although she previously served District Court in 2015. Clemmer as an assistant district attorney in has been hired by Moore to head Travis and Harris counties. Trial the Special Prosecutions Division, division co-chiefs Guillermo Gonwhich includes the formerly zales and Rickey Jones both have state-funded Public Integrity Unit. significant experience defending Public Integrity funding became a accused citizens as well, with political football when then-Gov. Gonzales representing “Yogurt Rick Perry used a line-item veto Shop” defendant Maurice Pierce to cut state funding to the division in 2003, and Jones recently deafter then-DA Lehmberg refused fending SXSW intoxication-manPerry’s call to resign after Lehmslaughter defendant Rashad berg’s 2013 DWI arrest.

Owens in his 2015 trial.

The state of flux in a part Voters also chose attorneys of county government where who have had long and successchange can usually be measured ful criminal defense careers in in geologic terms has been, and Central Texas to lead two criminal willLAWYER continue to be, interesting to district courts. Judge Tamara AUSTIN watch.

Needles, who defeated incumAL AL

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

Thorough and Supportable Business Valuations Since 1996 16

AUSTINLAWYER | FEBRUARY 2017

FEDERAL CIVIL COURT UPDATE

>

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

CIVIL PROCEDURE: Plaintiffs cannot avoid federal jurisdiction by affirmatively pleading for damages less than $75,000 or by filing post-removal stipulation.

Avila v. Allstate Texas Lloyd’s, No. EP-16-CV-00321-DCG (W.D. Tex. [El Paso] Nov. 23, 2016) (mem. op.) (identical opinions filed in Nos. EP-16-CV-00341-DCG, EP-16-CV-00313-DCG, EP-16CV-00318-DCG, EP-16-CV00334-DCG, EP-16-CV-00336DCG, EP-16-CV-00337-DCG, EP-16-CV-00328-DCG, EP-16CV-00314-DCG, EP-16-CV00324-DCG, EP-16-CV-00332DCG). Plaintiffs moved to remand to state court, claiming amount in controversy was less than $75,000. Plaintiffs’ petition unambiguously stated that Plaintiffs sought relief in an amount “less than $75,000,” and Plaintiffs filed a stipulation to limit their damages to an amount under $75,000 after the case was removed to federal court. The Court held that Plaintiffs failed to meet their burden of establishing with “legal certainty” that the amount in

controversy was less than $75,000 at the time of removal. The Court also determined that the statement regarding damages in the petition constituted bad faith, as “less than $75,000” was not among the pre-defined damage ranges allowed by Texas Rule of Civil Procedure 47 and appeared to be included solely for the purpose of evading federal jurisdiction. The Court found that the post-removal stipulation could not be considered because the amount in controversy was not ambiguous at the time of removal and that Plaintiffs had failed to identify any state law that would prevent recovery of damages in an amount greater than requested in the petition. However, the Court noted that Plaintiffs could have properly bound themselves to a recovery of less than $75,000 (and thereby precluded federal jurisdiction) by attaching a damage-limiting stipulation to their petition. Plaintiffs’ motion to remand was denied.

CONTRACT LAW: Incorporation of terms and conditions containing arbitration clause into unsigned purchase orders did not constitute agreement to arbitrate.

Int’l Corrugated and Packing Supplies, Inc. v. Lear Corp, No. EP15-CV-00405-DCG (W.D. Tex. [El Paso] Dec. 21, 2016) (mem. op.).

Defendants purchased packaging materials from Plaintiff. Defendants’ purchase orders included a statement that the Terms and Conditions found on Defendants’ website were incorporated by

reference. Defendants moved to compel arbitration based on the arbitration clause contained in the Terms and Conditions. The Court held that Defendants had failed to establish the existence of an agreement to arbitrate, as the doctrine of incorporation by reference only applies when the contract purporting to incorporate an unsigned document is a signed, enforceable contract.

The Court found that Defendants had failed to establish sufficient details about the formation of the underlying contracts, and that the evidence indicated that (1) Plaintiff did not receive the purchase orders until after the agreements to purchase goods had been made and Plaintiff had already shipped the goods to Defendants, and (2) the purchase orders did not contain any acknowledgement or signature by any employee of Plaintiff. Defendants’ motion to compel arbitration and to dismiss or, in theAUSTIN alternative, stay proLAWYER ceedings was denied.

AL AL

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

Representing Attorneys

Gaines West

State-wide Practice State Bar of Texas

Grievance Oversight Committee Appointed by the Texas Supreme Court Chair, 2006-2010 Member, 2004-2010

Texas Board of Disciplinary Appeals

Appointed by the Texas Supreme Court

Chairman, 2001-2003 Vice Chairman, 1994-1996, 1998-2000 Member, 1992-1996, 1997-2003

State Bar of Texas

Disciplinary Rules of Professional Conduct Committee

Member, 1993-1996

Disciplinary Review Committee Member, 1991-1992

INTERESTED IN WRITING FOR AUSTIN LAWYER? Contributing authors sought for inclusion in Austin Lawyer.

Articles on various legal-related topics are considered for publication monthly. Please limit submissions to between 500 and 750 words. Send articles to Nancy Gray, Managing Editor, at nancy@austinbar.org.

Submission is not a guarantee of publication.

Texas Bar Foundation, Fellow State Bar of Texas, Member Brazos County Bar Association, Member Austin Bar Association, Member

Principal Office – 979.694.7000 1515 Emerald Plaza • College Station, TX 77845

Austin – By Appointment – 512.501.3617 1012 Rio Grande St. • Austin, TX 78701

westwebblaw.com FEBRUARY 2017 | AUSTINLAWYER

17

AUSTIN YOUNG LAWYERS ASSOCIATION

Holiday Baskets and Reindeer Games a Great Success

O

n Sunday, Dec. 11, 2016 the Austin Young Lawyers Association presented its annual Holiday Baskets Project and Reindeer Games event. This year’s event served 65 families and 175 children. Once again, the Austin legal community came out strong in terms of donating time and money.

The project raised more than $15,000, with all proceeds going to serve these families. Children were able to decorate ornaments, get their faces painted, and take pictures with Santa. Thank you to allAUSTIN our volunteers who made this LAWYER AL AL event possible.

SILVER ($280-499) Austin Bar ADR Section Amanda Arriaga Fleur Christensen James Cowden Mollie Duckworth Michael & Christine Golden Frank King

FAMILY ($140) Donna Brown Mark Hanna JD Head Scott Herlihy William Johnson Ketan Kharod

PLATINUM ($1000)

Gregg Knaupe

Buchanan Dimasi Dancy & Grabouski

Mishell Kneeland

Graves, Dougherty Hearon & Moody

Jessica Mangrum

Karen & Stanley Wang

Judge John H Lipscombe Patricia McAllister Jorge Padilla

GOLD ($500 – 999)

Beverly Reeves

Austin Bar Administrative Law Section

Peter Ruggero

Cantilo & Bennett Gjerset & Lorenz Loiacono Law Group, PLLC Norton Rose Fulbright

Susan Salch Rae Ann Shanley Erin Smith Peter Stokes

Abigail Ryan

Maitreya Tomlinson

Austin Bar Solo/Small Firm Section

Hannah Wilchar Kennon Wooten

UPCOMING EVENTS TOP: AYLA volunteers pose together at the 2016 Holiday Baskets and Reindeer Games event held at Parque Zaragoza.

BOTTOM: Adam Schramek performs a little holiday magic for the children in attendance.

18

AUSTINLAWYER | FEBRUARY 2017

THURSDAY, FEB. 16 AYLA Docket Call 5:30 to 7 p.m.

The Ginger Man, 301 Lavaca St. Sponsored by Crane Engineering

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA’s Runway for Justice Returns Third Annual Event Benefits the AYLA Foundation and the Women’s Resource Fair

F

or the third year in a row, the Austin Young Lawyers Association’s fashion show, Runway AYLA RUNWAY for Justice, will return. This year’s FOR JUSTICE show will be on Thursday, March 800 CONGRESS AVE. 23, 2017 at 800 Congress Ave. 6 p.m.

The show will feature both male TICKETS: ayla.org and female attorney models strutting their stuff to highlight local designers, jewelry, and accessories on behalf of the AYLA Foundation and the Women’s Resource Fair. Attendees will enjoy complimentary drinks and hors d’oeuvres and receive a swag bag filled with goodies.

Tickets go on sale soon. If you would like to sponsor or be involved AUSTIN LAWYER AL AL with the show, please contact Debbie Kelly at debbie@austinbar.org.

MAR 23

Interested in Serving on the 2017–2018 AYLA Board?

A

YLA is seeking attorneys interested in serving on its board of directors for the 2017-2018 Bar year. To be eligible for a board position, you must be a current AYLA member and be 40 years of age or under as of July 1, 2017. If you would

like to be placed on the ballot, submit a nomination form signed by 10 current AYLA members to Debbie Kelly at debbie@austinbar.org or fax to 512.473.2720.

Ballots can be found at ayla.org. Nominations are AUSTIN LAWYER AL AL due Friday, March 3, 2017.

FEBRUARY 2017 | AUSTINLAWYER

19

Experience Hyde Park VISIT AND FIND YOUR NEW SCHOOL HOME Elementary Tours Tuesdays at 1:00pm

Middle School Tours Wednesdays at 8:30am

High School Tours

“Constable 5: your eFile service experts.” ~ Constable Carlos B. Lopez Request Constable 5 for eFile process service (more info at constable5.com) Convenient online Service Check, 24/7 All-inclusive fee includes Rush, SkipTrace, Research, and exclusive access to law enforcement databases Daily delivery to State of Texas offices Delivery throughout Travis County and to surrounding counties

Thursdays at 1:00pm

The Courthouse Constable VISIT AND APPLY HP-SCHOOLS.ORG/VISIT

Constable Carlos B. Lopez 1003 Guadalupe Austin, TX 78701 www.Constable5.com Office 512.854.9100 Fax 512.854.4228

20

AUSTINLAWYER | FEBRUARY 2017

LEGISLATIVE UPDATE

Hulk Hogan and Gawker Expose Many to Litigation Finance

BY ERIC WOOMER, CONGRESS AVE PARTNERS

L

ast year was an interesting year for litigation finance.

From Peter Thiel’s funding of Hulk Hogan’s sex tape case that brought down the blog Gawker, to the merger of the largest commercial funders in the game—Gerchen Keller and Burford Capital—2016 introduced the general public to a part of the legal system few have been familiar with, besides practicing corporate attorneys.

Many laud litigation finance as the stone that can help David slay Goliath, like in the Miller UK Ltd v. Caterpillar trade secrets case. Others fear outside funders entering cases as a form of retribution, like with Gawker. Either way, 2017 is poised to be another engaging year in this national debate, and Texas is no exception.

So, it’s important to understand and differentiate the types of legal finance resources being used—the most prevalent being commercial litigation finance and consumer legal funding.

Litigation finance, essentially an investment in the outcome of a legal claim, has been around since the early stages of the legal system. But commercial litigation finance, where funders invest in a case to help with the cost of litigation and are repaid on a contingent basis, only really started to take off in the early 2000s.

Texas played a big role early in the case law with its ruling on Anglo-Dutch Petrolum v. Haskell in 2006, when the Texas appellate court upheld a ruling affirming litigation funding agreements as valid, and, importantly, not considered a loan.

Most commercial litigation financing is used for big corporations to sue other big corporations—offloading the cost of litigation. But in recent years, smaller companies have used it as a tool to

take on big corporations, too.

In Miller UK Ltd v. Caterpillar, with the help of outside funding, a relatively small family-owned business successfully sued Caterpillar for misappropriating trade secrets. And smaller outfits are getting into the funding game as well. Earlier this year, a startup out of Silicon Valley called Legalist began funding litigation based on a proprietary algorithm.

Consumer legal funding is another legal finance resource that provides money to one of the litigants. But here’s where it differs from commercial litigation finance: the money goes to everyday people to meet basic living expenses, not to fund any litigation or pay legal bills. Funding is provided on a contingent basis, like with litigation finance, and can help plaintiffs see their day in court even if they don’t have oil money.

Most people who use it are pursuing a fair claim settlement from an insurance company after a car accident, and are out of work due to their injuries. With 76 percent of Americans living paycheck to paycheck, many have found it hard to make ends meet while letting the legal process work. Funding is provided by one of a couple national firms or small regional companies.

Legal scholar Jeremy Kidd wrote about different legal finance resources in a recent Law 360 article, urging thought leaders and regulators to look at them differently and weigh their individual risks when structuring regulatory schema.

Some critics will rail against all legal finance resources, alleging that funding of cases will increase litigation, encourage frivolous lawsuits, and hurt the economy.

Yet, these assertions conflict heavily with Kidd’s 2015 research.

Regarding consumer legal funding, Kidd concluded that “when

legitimate claims are brought and justice served, it can actually benefit the economy by deterring bad and inefficient behavior.”

The Texas appellate court agreed. As part of the aforementioned Anglo-Dutch Petrolum v.

Haskell ruling, it opined “it is not readily apparent that these types of agreements necessarily increase or prolong litigation….

An investor would be unlikely to invest funds in a frivolous lawsuit, when its only chance of recovery is contingent upon the success of the lawsuit.”

Any way you cut it, 2017 is poised to be another intriguing year as legal finance providers continue to establish legitimacy and increase funding prevalence.

Whether it’s the stone that can help David slay Goliath, or just a rock ready to be put in a sling, these different resources are certainly giving companies, firms, and consumers more options as AUSTIN LAWYER they battle cases out in court.

AL AL

Congress Avenue Partners is comprised of principals Eric Wright, Eric Woomer (pictured above), Buddy Garcia, and Gregg Knaupe. The firm offers strategic legislative advice and political counsel.

The views and opinions expressed are those of the author and do not necessarily reflect the views or opinions of the Austin Bar Association.

FEBRUARY 2017 | AUSTINLAWYER

21

Call for Austin Bar Board Nominations Consider a Leadership Position in 2017

A

ustin Bar Association members are leaders. They work to make a difference and care deeply about the law, while juggling family commitments and responsibilities to multiple civic groups, non-profits, and faith organizations. This is especially true of those who serve in leadership positions. The dedicated, passionate, and talented lawyers who serve on the Austin Bar Board of Directors or as officers, along with those who chair its committees, and lead its sections, are in the unique position of significantly impacting the Austin legal profession and the community at large.

If you’ve been active in the Austin Bar and would like to join this dynamic leadership team, now is the time. If you are interested in running for a position as an officer or on the Board of Directors for the Austin Bar, please send a resume, along with the desired position, by Friday, Feb. 28

to: Austin Bar Association, ATTN: Nominating Committee, 816 Congress, Suite 700, Austin TX 78701.

Officer positions are one-year terms; director positions are for two years. Nominees for the office of president-elect shall have served at least two years of the Board of Directors prior to assuming office.

The Nominating Committee’s decision will be announced on or before Wednesday, March 15. The number of candidates to be nominated for each position shall be left to the discretion of a majority of the Nominating Committee. Any qualified member not receiving the nomination of the committee may be included on the ballot by submitting a written petition signed by 75 members of the Austin Bar by April 10. Voting shall be conducted via electronic ballot and at the annual Bench Bar Conference on May 12.

AUSTIN LAWYER AL AL Questions? Contact DeLaine Ward at DeLaine@austinbar.org.

ADVERTISERS ADVERTISER . . . . . . . . . . . . . . PAGE

Apple Leasing . . . . . . . . . . . . . 6 Armbrust & Brown, PLLC. . . 7

Responsive. Experienced. Professional.

Your Austin source for reliable U.S. and Global Immigration expertise.

EMPLOYERS

INVESTORS & STARTUPS

INDIVIDUALS & FAMILIES

Foster delivers a full suite of immigration enterprise solutions customized to meet the needs of your organization.

We are experienced in resolving complex immigration problems while taking into account the realities of investors, start-ups and entrepreneurs.

At Foster, we’re proud of our long history of service and advocacy on behalf of individuals and families.

Request a consultation: +1 512.852.4142

Broadway Bank . . . . . . . . . . . 24 Constable 5 . . . . . . . . . . . . . . . 20 David M. Gottfried – Mediator . . . . . . . . . . . . . . . . 23 Financial Valuation Services, LC . . . . . . . . . . . . . . . 16 Floyd Real Estate . . . . . . . . . 15 Foskitt Law Office . . . . . . . . 7 Foster, LLP . . . . . . . . . . . . . . . . 22 Horizon Bank . . . . . . . . . . . . . 7 Hyde Park Schools . . . . . . . . 20 Innovative Computing Systems . . . . . . . . . . . . . . . . . . . 5 Judge Stephen Yelenosky . . . . . . . . . . . . . . . . . 20 Lakeside Mediation Center . . . . . . . . . . . . . . . . . . . . 5 Law Office of Tim Whitten . . . . . . . . . . . . . . 13 LawPay. . . . . . . . . . . . . . . . . . . . 2 Lexis Nexis . . . . . . . . . . . . . . . . 4 Meroney Public Affairs . . . 21 Moreland Properties . . . . . 12 Noelke Maples St. Leger Bryant, LLP . . . . . 19 Patrick Keel . . . . . . . . . . . . . . . 10 Robert M. Cain, MD, PA. . . 3 Smith Law Group, LLLP.. . . 10 St. Clair Coaching. . . . . . . . . 5

www.fosterglobal.com

22

AUSTINLAWYER | FEBRUARY 2017

Serving Austin since 1999.

912 S Capital of Texas Hwy, Suite 450 Austin, TX 78746

Texas Lawyer Insurance Exchange. . . . . . . . . . . . . . . . . . 12 The Snell Law Firm, PLLC. . . 8 Thomas Esparza, Jr. PC . . . 3 West, Webb, Allbritton & Gentry, PC . . . . . . . . . . . . . . 17

DEVELOPING YOUR PRACTICE

Two Keys to Developing Clients

BY RADNEY WOOD

I

remember attending a Career Services workshop at the University of Texas during my first year of law school. I don’t recall the speakers, or exactly what was said, but I do recollect one piece of advice.

An older attorney, presenting on client development, stated “the connections you make now will help develop clients later in your career when your classmates are moving into general counsel roles.” The comment made sense, but lacked any applicable instructions for building a law practice, other than be friendly to your classmates because you don’t know which one may become your client.

After law school, I began my practice at Baker Botts Austin.

As a big firm attorney, I didn’t have a lot of client interaction and the advice I received my first year of law school seemed to make sense—work hard and wait for classmates and colleagues to become the general counsels who will hire you. As a result, I didn’t put much time into client development. Outside the office, I didn’t join any chambers of commerce or young business lawyers’ associations. I joined a rugby club, became a board member for a non-profit I cared

about, and spent a lot of time enjoying Austin—going to concerts, running around Town Lake, and meeting lots of different people. I figured I had time. No one I knew was going to be general counsel anytime soon.

Then four years in, I left Baker Botts. This change meant I was no longer able to rely upon institutional clients or a rain-making partner’s book of business. I was on my own. It was during this transition period when I learned two lessons that helped me develop my practice: (1) harvest fields planted by others who are more successful than you; and (2) meet as many people as possible in non-business settings. Let’s tackle one at a time.

First, let’s talk about the harvesting. “Harvesting fields” does not mean I’m encouraging you to become a lawyer farmer. It’s an analogy. Think of it this way: If a lawyer is a farmer, then her practice is her farm and her crops are her clients. When developing clients, it’s helpful to team up with someone who is further along in the farming process than you are.

In my case, I joined my now-partner Kevin Vela and was able to rely upon the firm he had built and the connections he had cultivated to fast forward my client

development process. Kevin had been planting for years, and as a result, I was able to harvest some of those crops without having to do the upfront work. It’s important for attorneys of all ages to look for opportunities to build upon a strong foundation that already exists when developing clients.

Second, stop hanging out soley with attorneys and stop going to events where everyone is there to develop business. By diversifying who you spend time with and by spending time in a meaningful way as opposed to a manufactured setting where everyone has an angle, you get more authentic connections who are more likely to become clients.

While I didn’t know it at the time, my participation in non-legal and non-business activities I cared about allowed me to make lasting connections and friendships which have proven to be invaluable to client development.

Indeed, many of the people I met playing rugby or volunteering are now my clients; they own bars and marketing agencies, they are doctors and programmers, and they have started tech companies and travel concepts. And I met all of them outside of any networking event or attorney referral.

I just entered my ninth year of

Radney Wood is a 2008 graduate of the UT School of Law and a named partner at Vela Wood where he divides his practice between commercial litigation and general corporate matters, concentrating on corporate governance, venture financing, and contract negotiations.

practice. Some of my law school classmates have recently become general counsels. None of them have hired me. Yet. I’m hopeful, however, that the older attorney’s advice will prove prophetic and at least one will become a client.

But when they do, I know part of the reason will be because they see the practice that Kevin and I have developed at Vela Wood and the client development we did leading up to that moment. Not just because I was nice to them in AUSTIN LAWYER law school.

AL AL

THE LITIGATION, CO-COUNSEL TRIAL TEAM FOR SOLO AND SMALL FIRM PRACTITIONERS

Negotiate With Confidence - Our Trial Team Has Your Back Meghan Alexander | David M. Gottfried | Michael Jurgens | Tara Gillespie

FEBRUARY 2017 | AUSTINLAWYER

23

GOOD IS always moving forward.

What is good? Good is setting out on a path to reach your goals sooner than expected. It’s having a trusted advisor guide you for your next adventure. From Private Banking to Wealth Management, Broadway Bank has the customized financial solutions to take you further than you ever thought you could.

BUSINESS SOLUTIONS | PORTFOLIO MORTGAGES TRUST & ESTATES | INVESTMENTS

Austin Regional Headquarters | 911 W. 38th Street, Suite 100 512.465.6550 | 800.531.7650 | broadway.bank | mmmm INVESTMENTS ARE NOT FDIC INSURED | NOT GUARANTEED BY THE BANK | NOT A DEPOSIT NOT INSURED BY A FEDERAL GOVERNMENT AGENCY | MAY LOSE VALUE