Austin Lawyer, July/August 2022

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austinbar.org JULY/AUGUST 2022 | VOLUME 31, NUMBER 6

Looking Back and Looking Forward Judge Lora Livingston Speaks on Her Career, Accomplishments, and Retirement BY JUDGE LORA J. LIVINGSTON

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hen I first started practicing law, a lawyer’s word was a lawyer’s bond, a handshake was as good as a written contract, and civility was a practice, not an aspiration. These were some of the golden rules “back in the day.” I know, I know—that was a long time ago and things have certainly changed. I can only hope that the bar finds its way back to these golden principles. Over the past few decades, the law has undergone significant changes. Consider changes in tort law (reform is in the eye of the beholder, so I won’t use that descriptor here) and workers’ compensation law. It’s amazing how the laws designed to compensate an injured or deceased human being have changed over time. I learned years ago that the purpose of civil remedies—and civil courts, for that matter—is to put injured parties in their rightful position. Perhaps some concessions have been made since then. Now it makes me wonder how, or if, our society values human life. Recent gun legislation continues to confront

Judge Livingston and her husband, Eric Kennedy, on the set of the Stephen Colbert Show.

The creation of the Travis County SelfHelp Center, located in the Travis County Law Library, stands out as one of the things I am most proud of during my tenure on the bench. … I leave with a sense of accomplishment. I leave feeling that I fulfilled a great purpose. And I leave with enormous pride. It has been an honor to serve this community. me with this question. Consider, also, changes in family law. When I first started practicing law, most divorces involved only two parents and their joint offspring. Not so today! The family tree has been replaced by the family flow chart

since the branches no longer have marriage at the root. And then there is the Texas Citizens Participation Act. I’ll just stop there and say, “no comment.” This is to say many substantive areas of the law have changed drastically during my career. Of course, significant changes have been made to procedural rules and practice as well. I remember when the discovery rules were still called “new.” These new rules were designed to stem the unprofessional conduct of the “Rambo” lawyer and yet, some might argue that these cumbersome rules supplied Rambo with additional ammunition. I have been absolutely amazed by the number of self-represented litigants we encounter each year. I can’t remember more than a handful of cases in which even one side was self-represented when I began to practice law. Today, many cases involve self-represented litigants on both sides, even in jury trials. Rather than debate the many facets of this phenomenon here, I’ll simply say that I am extremely proud of the way in which the local legal community has stepped up to meet the challenges this reality continued on page 15


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CONTENTS

AUSTINLAWYER JULY/AUGUST 2022 | VOLUME 31, NUMBER 6 AL A L INSIDE FEATURED ARTICLES

IN EVERY ISSUE

CONNECTIONS

1

Looking Back and Looking Forward

11 Be Well

5

ONLINE austinbar.org

Newly Elected Austin Bar Association Board Members

8

2022 Bench Bar

12 2022 Legacy Luncheon 17 TCWLA and TCWLF Award $85,000 in Grants

President's Column

23 Opening Statement 24 Practice Pointers

ONLINE

EMAIL sonta@austinbar.org

19 Third Court of Appeals Civil Update 20 Third Court of Appeals Criminal Update 21 Federal Civil Court Update 22 Criminal Court News

DEPARTMENTS 6

16 Briefs

24 AYLA

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AUSTINLAWYER OFFICIAL PUBLICATION ALOF THE A L AUSTIN BAR ASSOCIATION AUSTIN BAR ASSOCIATION

Amanda Arriaga ������������������� President Justice Chari Kelly ��������������� President-Elect Mary-Ellen King ������������������� Secretary Maitreya Tomlinson ������������� Treasurer David Courreges ������������������ Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION

Blair Leake ����������������������������� President Sarah Harp ���������������������������� President -Elect Emily Morris �������������������������� Treasurer Ciara Parks ���������������������������� Secretary Rachael K. Jones ������������������ Immediate Past President

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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 above. For editorial guidelines, visit austinbar.org in the “About Us” tab.

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Newly Elected Austin Bar Association Board Members These Smiling Faces Have a History of Serving the Judicial and Legal Communities

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he Austin Bar Association held its board member election for the upcoming year. Four members were selected. These individuals are already hands-on and making a difference through their involvement in programs and initiatives such as Leadership Academy, Bench Bar, Lawlapalooza and more. The Austin Bar congratulates each of you! Elliott Beck has served as the staff attorney for the 345th District Court since 2017. He is in his second year as a co-chair for the Austin Bar/AYLA Leadership Academy, graduated from the 2018 Leadership Academy class, and has been a member of the Austin Bar and AYLA since he graduated from Baylor Law in 2011. Beck previously served on the Austin Bar Gala and Bench Bar committees, and presented at the 2020 Bench Bar Conference. Beck is a precinct chair and the chair of the rules committee for the Travis County Democratic Party, and previously served as the chair of the LGBT Law Section of the State Bar of Texas and the president of the former Austin LGBT Bar Association. Leslie Boykin practices criminal defense law and started her solo firm in July 2005. Since then, she has represented over

ABOVE: (from left) Beck, Boykin, Denton, and Judge Guerra Gamble.

2,500 individuals charged with crimes in seven different counties in Texas, as well as in the U.S. District Court for the Western District of Texas. Boykin has focused her client base on those who suffer with mental illness and was one of the few court-assigned attorneys appointed by Travis County to start its mental health specialty docket program back in the early 2000s. She has given presentations about people who suffer with lasting brain injury (TBI), and how they become trapped in the criminal justice system, as well as ways that we can help them rise out of it. Sam Denton serves as Associate Corporate Counsel at University Federal Credit Union. He has previously worked as an attorney with the Special Prosecution Unit and also co-founded Denton & Fahring, PLLC. Prior to assuming his role at UFCU, Denton

worked as staff attorney for the 459th District Court. Denton is a co-chair of the Austin AYLA/ Bar Leadership Academy and a Life Fellow of the Texas Bar Foundation, and has served in several volunteer bar and legal-related roles. Beginning in 2003, Denton served in the Active Duty and Reserve components of the U.S. Army, both as a Military Intelligence Officer and as a Judge Advocate (JAG) Officer. His time in the military included a deployment to Iraq. Judge Maya Guerra Gamble was elected to the 459th District Court bench in 2018. Her varied career prior to taking the bench included a solo practice representing children and parents in child protective services cases; representing whistleblowers at O’Connell & Soifer; prosecuting child pornography and child exploitation cases for

the Texas Attorney General; suing companies committing fraud against the United States for the Department of Justice; and clerking for Judge Richard Cudahy on the 7th Circuit. She was elected as a director on the Austin Bar board for the 202022 term and appointed as the chair of the Equity Committee. In that position, Judge Guerra Gamble oversaw the Austin Bar’s AUSTIN LAWYER AL AL inaugural Equity Summit.

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PRESIDENT'S COLUMN AMANDA ARRIAGA, TEXAS CASA

Get to Know the 2022-23 President Meet Amanda Arriaga as She Takes the Helm at Bar

manda Arriaga is the general counsel and chief external relations officer of Texas CASA. She served as president of the Austin Young Lawyers Association during the 2014-15 bar year. She is a graduate of Texas A&M University and The University of Texas School of Law. She was the recipient of the 40 Under 40 Award for the International Association of Chiefs of Police in 2017. She has been a frequent speaker on project management, contract management, and change management.

for multiple people, rather than one person at a time. My first grown-up job out of law school was as a policy advisor for Governor Rick Perry. I had clerked in the Governor’s General Counsel’s office, but, to me, the policy office was where the action was. If you were motivated and worked hard, there was always more to do. I had many different assignments throughout the years, but the one that was constant was border affairs. I helped to establish Governor Perry’s Border Security Council and was the lead policy advisor for the Border Governors Conference. The BGC was an annual event where all of the U.S. and Mexican border governors and their staff worked together on common issues. While we didn’t always agree, the relationship-building was the real goal, and that always got accomplished.

AUSTIN BAR: What was your first job out of law school?

AUSTIN BAR: What has been your career path from then?

ARRIAGA: I always knew my career would be in public service. I liked the idea that that if I could have a role in changing the law, I could potentially make an impact

ARRIAGA: After the Governor’s office, I spent over a decade at the Texas Department of Public Safety, focusing on many different issue areas, including

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overseeing contracts and HR, where I learned that administrative law is fun. This past January, I left state government for a child welfare nonprofit organization, Texas CASA, where I serve as general counsel and chief external relations officer. This job lets me work both sides of my brain: the side that likes administrative law, and the side that likes public policy work. AUSTIN BAR: How long have you been involved with the Austin Bar? ARRIAGA: I joined the Austin Young Lawyers Association right out of law school. I had been part of the Student Bar Association at UT Law, so when I heard about AYLA Docket Call, I showed up to the next one that was scheduled. The first person I met was an outgoing, fun lawyer checking people in. She invited me to sit down and chat with her. A few weeks later, I saw her again at auditions for Bar & Grill. She told me that I HAD to join AYLA and help her out with some projects, and I quickly became the government lawyer representative on

the AYLA board. That lawyer is Amy Welborn, and we have been friends ever since. I served as president of the Austin Young Lawyers Association during the 2014-15 bar year. Not all AYLA presidents decide to go on to join the “Big Bar,” but I had so many ideas and experiences from the AYLA perspective that I decided I needed to join so that I could make a difference on the issues I think are important. One of those issues involves the price of dues. I am proud to say that after raising the issue of government lawyer dues for many years, this past year, we finally created a new dues rate of $95 for all government lawyers and lawyers who work for nonprofits. I hope we will be able to recruit more members from those areas, and that the new members will receive value from the Austin Bar. AUSTIN BAR: What excites you most about being the new president of the Austin Bar? ARRIAGA: People who know me know that I ask a lot of questions, and I am not afraid of change. The answer that bothers me the

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We are a voluntary bar association, and you choose to be a member, so you should know where the money goes. By the end of this bar year, we will publish an annual report, and I hope that will be an ongoing report for years to come. most is “because we have always done it that way.” I have heard throughout the years that the Austin Bar can seem like a “closed” club, where only certain people are recognized, get to be featured in CLEs and articles, and get all the awards. I want to make sure that we address this, and the only way to do it is to face it head on. I am not the kind of president that is afraid of a hard question, afraid of change, or who thinks discussion means dissent. If you have thoughts, or want to be part of the process, let me know at amanda@austinbar.org. Questions welcome. AUSTIN BAR: Do you have a particular focus or theme for your term? ARRIAGA: As president of the Austin Bar, I plan to bring a focus on transparency, governance, and inclusion. Transparency: When I was researching Texas CASA, one thing I noticed is that they have reports that show that 88% of all funds they receive from state funding goes directly to the local programs to serve children in the child welfare system. I realized that I haven’t ever seen that type of document about the Austin Bar, and we should have one. We are a voluntary bar association, and you choose to be a member, so you should know where the money goes. By the end of this bar year, we will publish an annual report, and I hope that will be an ongoing report for years to come. Governance: A focus on governance will help explain how decisions are made and will

ensure that you can trust they will be made objectively. Moving forward, when we have a call for award nominations, requests for sponsorship, or call for leadership positions or presenters, there will be a form to fill out with a consistent set of questions so that we can evaluate based on standard criteria. My hope is that this will prevent any perception that “we only help our friends.” But, when those calls go out, I will need your help in getting us nominations from the people you know, who you think deserve to be recognized. Inclusion: I was part of a committee that worked on an Equitable and Inclusive Vendor Policy last year to ensure that when the Austin Bar spends over $1,000 on a contract, we seek out diverse businesses and show our commitment to equity with our dollars. I have already heard some questions about whether the Austin Bar actually follows those policies and if anyone is ensuring that we keep our commitment to the policy. I want to assure you that these are discussions that we have in executive committee meetings every time a purchase of that size comes up. There are times when we have a need and we can’t find that many respondents. For example, for a venue for an event as large as the gala, those will typically be in larger ballroom spaces, and there may not be an obvious HUB vendor that can hold a 600+ event. However, if we are overlooking vendors for these kinds of events, and you know of them, I want that information so we can be as competitive as possible. We are looking through all of our current contracts with

ABOVE (from left): Jacquelyn Wilson, Debbie Kelly, President Amanda Arriaga, Emily Scholten, and Nadia Bettac. These ladies worked hard to make the Austin Bar Foundation Annual Gala a success!

a focus on being competitive and adhering to our policy. While the Austin Bar may have relationships with vendors that have been made over time, no contract is owed to a vendor in perpetuity, and we wouldn’t be very good lawyers if we allowed for that. I have also gotten feedback that since many of the Austin Bar events have a cost to attend, it could seem to exclude those that can’t afford it. I agree that we should have more events like AYLA, where you are invited to participate because you are a member, without an additional charge. One thing I have talked about with our executive director and the new executive committee, is how can we better add value to our members. We are discussing holding additional events, some of which I hope will be family friendly. Keep an eye out for some sort of cocktail party this fall. Don’t worry, there won’t be any speeches, awards, or high school photos. Instead, it would be a time for us to just gather as a group, at a low-key, no-pressure party. Think more boots and jeans than black tie and boots. AUSTIN BAR: What challenges, if any, do you believe we face as an organization and how will you address them? ARRIAGA: One challenge that we still have is a lack of meeting space for our sections and committees. When the Austin Bar Foundation purchased the Hilgers House, there was a prom-

ise to turn the current garage into a technology conference center. However, because of the pandemic and the supply chain shortage, and now increased costs as a result of the supply chain shortage, that has yet to come to fruition. I know that we owe the sections a solution to that problem. One potential solution that some of you know and like is the ability to have meetings and CLE virtually. I am not the only person who likes the freedom of being able to login one minute before the start time, and still wear my pajama pants. However, while we begin the planning process for the renovation, we are also actively looking at signing contracts with new facilities around town (with parking) that can hold our large events and are available for use. If you have an upcoming event that needs space, please reach out to me or our events manager, Chase Brunson, at chase@austinbar.org. If you have or know of a location that you would be willing to rent out for our Austin Bar events, please reach out to Chase or me with that information as well. AUSTIN BAR: Tell us a hobby or little-known fact about yourself. ARRIAGA: As part of my research for the last Austin Bar gala, I found my high school letterman jacket. I lettered in dance and mock LAWYER trial. So, some things AUSTIN AL AL never change. JULY/AUGUST 2022 | AUSTINLAWYER

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2022 Bench Bar Great In-Person Insight!

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he Austin Bar and AYLA’s 32nd Annual Bench Bar Conference took place on June 3, 2022. The in-person event bounced back after previously going virtual due to the pandemic. Those who attended expressed excitement over getting to “rub elbows” with fellow members. The event featured members of the judiciary and the legal community providing invaluable insight to members on issues crucial to judicial process in Travis County. Bench Bar committee members worked hard to make the conference a success and included moderators and panelists from various sectors of law. The committee included Justice Chari Kelly, Judge Karin Crump, Judge Brad Urritia, Scott Brutocoa, Maitreya Tomlinson, and Rob Frazer. Attendees were treated to panels including justices, judges, the district attorney, the county attorney, and more. From judicial bingo to ethics Jeopardy, the learning never stopped! The full-day event was engaging yet fun filled, with an atmosphere allowing a free flow of questions and answers. Awards were presented to the following legal professionals who have made a difference in the field of law and the community:

ABOVE: (from left) Davis, Dippel, McNamara

Ira Davis (Posthumous Award) – 2021 Regina Rogoff Award for Public Interest Work: The late Ira Davis was a graduate of The University of Texas School of Law. The father of four was also an Army veteran. Davis practiced criminal defense law. He was well-regarded for his commitment to justice for all. Beginning in 2014, he served as the first executive director of the Capital Area Private Defender Service, a nonprofit that revamped the indigent defense system in Travis County. Leslie Dippel – 2022 Regina Rogoff Award for Public Interest Work: Leslie Dippel is the director of the litigation division in the Travis

The event featured members of the judiciary and the legal community providing invaluable insight to members on issues crucial to judicial process in Travis County. County Attorney’s Office. Dippel also leads the Austin Bar membership committee and supports various bar initiatives and programs. She is a member of the Robert W. Calvert Inn of Courts and also dedicates her talents to numerous groups in Travis County. Mary Evelyn McNamara – Professionalism Award: Mary Evelyn McNamara practices

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family law. She is devoted to helping families through crises. At the Austin Bar, she provides monthly case updates to the Family Law Section. McNamara also serves on the State Bar’s Family Law Council and was a founding member ofLAWYER the BarbaAUSTIN AL AL ra Jordan Inn of Court.


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BE WELL

Self-Care: Strategies to Sustain and Protect Lawyer Well-Being BY CHRISTINA LOFTUS

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s more data emerge about the protective benefits of self-care for those in helping professions, the legal field is similarly recognizing the importance of self-care strategies. The topic is now being promoted in the law to address the prevalence of substance use, mental health challenges, and burnout among legal professionals. Organizations such as the Institute for Well-Being in Law (IWIL) https://lawyerwellbeing.net, Texas Lawyers’ Assistance Program (TLAP) www.tlaphelps.org, and the Austin Bar’s Well-Being Committee provide resources to promote attorney well-being and counteract the effects of burnout, compassion fatigue, and vicarious trauma. Yet, what does “self-care” truly mean? I struggled with the importance of self-care during my social work graduate studies, as this topic never came up during my earlier legal education. My initial thoughts about self-care included: What is all this talk of self-care? Don’t we have more substantive things to learn? And as professionals, don’t we just need to do what needs to be done? It turns out that self-care is not a subterfuge for shirking hard work, but instead may be the key to performing better in your work and promoting health in mind, body, and spirit. Based on my own experience, I cannot help but wonder: Despite all the articles, CLEs, and strategies promoting self-care, how much do we in the legal profession understand and embrace self-care? The Green Cross (www. greencross.org), an international, non-profit organization providing support to those who serve others experiencing trauma following a crisis, imposes “Standards of Self Care Guidelines.” The guidelines have a persuasive statement that self-care is not only a duty needed to preserve the dignity and worth

Self-care is not a subterfuge for shirking hard work, but instead may be the key to performing better. of the helper but is required so that the volunteer does not inadvertently do harm to those served. The guidelines direct the volunteer to make a formal commitment to self-care, to include physical, psychological, social/ interpersonal, and professional elements. Lawyers, similarly, are serving clients affected by conflict and adversity: Perhaps our profession should promote guidelines to sustain and protect legal professionals (and, by extension, their clients)? Some may say guidelines are too restrictive or limiting, citing barriers to self-care, including: a perceived lack of time; lack of money or resources; feelings of guilt for putting oneself “first”; a perception that self-care is a weakness; or a lack of awareness of what truly restores you. Organizational psychologist Alyssa Westring suggests making a shift in mindset to these common self-care barriers to conceptualize self-care as less of a trade-off swapping one resource (time, money, or energy) with another, and more of promoting the interconnections between different parts of our lives. She shares the following tools: • Defining self-care on your own terms, noticing patterns of when or what leaves you feeling either energized or drained and looking for opportunities to add more rejuvenating activities. • Checking for all-or-nothing thinking, foregoing a complete schedule overhaul, and integrating small lifestyle changes with a spirit of curiosity and compassion. • Seeking opportunities to

integrate the different parts of our life together, such as walking with a colleague or volunteering with coworkers. Ultimately, there is no formulaic answer on the best way to implement self-care. Perhaps the guidelines suggested by another helping organization along with creative tools for overcoming common barriers to self-care will inspire you. For in the end, selfcare can truly provide a strategy to both sustain those in the legal field asLAWYER well as protect lawyer AUSTIN AL AL well-being.

Christina Loftus is a lawyer, licensed social worker, and life coach who previously practiced law for more than a decade. Loftus earned a master’s degree in social work from The University of Texas at Austin and is a certified Human Potential Life Coach. She is employed at Travis County Health and Human Services.

JULY/AUGUST 2022 | AUSTINLAWYER

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2022 Legacy Luncheon Austin Black Lawyers Association Remembers the Past While Shaping the Future BY CIARA PARKS

The Austin Black Lawyers Association hosts this event each year to honor Attorney’s in the African American community that have made an impact in the memory of Andrea Pair Bryant.

Ciara Parks is the general counsel for the Texas Board of Law Examiners, president of the Austin Black Lawyers Association, and secretary of the Austin Young Lawyers Association. She enjoys spending her spare time with her husband and three children.

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he Austin Black Lawyers Association (ABLA) held its annual Andrea Pair Bryant Legacy Luncheon at Chateau Bellevue on May 25, 2022. The luncheon was hosted by the Honorable Eric Shepperd and chaired by the Honorable Velva Price. In attendance were many judges and justices from Travis County criminal and civil courts, and the Third Court of Appeals. We host this event each year to honor attorneys in the African American community who have made an impact in the memory of Andrea Pair Bryant, an iconic figure in Travis County who held a deep passion for law, the arts, and volunteerism. This year, we honored past presidents of ABLA whose work and commitment helps to exalt their respective communities, organizations, and the city. The honorees included: Hon. Brenda Kennedy Hon. Eric Shepperd, Hon. Rudy 12

AUSTINLAWYER | JULY/AUGUST 2022

Metayer, Hon. Aurora Martinez Jones, Aden Allen, Ayeola Williams, April Griffin, Robynn Fletcher, Kameron Johnson, Brian Jammer, Monica Ingram, John F. McCormick, Linda Von Quintus, Linda Sorrell, Karen Kennard, Gary Cobb, Hon. Velva Price, Arthur Walker, Andrea Bryant, and Bobby Taylor. Andrea Pair Bryant was always a “woman with a mission.” After several years as a programmer, she embarked on a path to become an attorney, working as an attorney in training for IBM by day, attending law school by night. She graduated in 1978 with a J.D. from Georgetown University Law Center, Washington, D.C. Andrea was then transferred to Austin by IBM. Soon after becoming an

Andrea Pair Bryant

attorney, Andrea began her participation in the National Bar Association (NBA), the nation’s oldest and largest association of African American lawyers and

Legacy Luncheon Honorees: (front row, from left): Judge Brenda Kennedy, Linda von Quintus, Karen Kennard, April Griffin, Ciara Parks, Gary Cobb, and Hon. Velva Price. (Back row, from left): Brian Jammer, Judge Lora Livingston, Hon. Rudy Metayer, Kameron Johnson, Ayeola Williams, Judge Eric Sheppard, Bobby Taylor, and John MCormick.

judges. She was passionate about the organization, becoming a dedicated member and leader within the NBA. She served on the Board of Governors as secretary from 1988 to 2000, when she was named secretary emerita. Andrea also served on the National Bar Institute’s board, chairing its grants committee. Andrea was also active in the Austin community. She was selected for the Leadership Austin program, and worked with groups such as the Austin Area Urban League and the Paramount Theater, participating on their boards of directors. She represented individuals pro bono through Voluntary Legal Services divorce cases and the Catholic Diocese Law Project. Andrea’s passion for the law and the arts is exhibited by her participation over the years on boards and committees of organizations including the Austin Bar Association, American Bar Association, Legal Aid of Central Texas, Austin Black Lawyers Association, State Bar of Texas, Austin Symphony Orchestra, Women’s Symphony League, Pro Arts Collective, Zach Theatre and the City of Austin Arts Commission. Before obtaining her law degree, Andrea Pair Bryant attended Howard University and Morgan State College (now University), where she earned a B.S. degree in Physics, graduating with high honors in 1965. Andrea continued her physics studies as a Fulbright Scholar in AUSTIN LAWYER AL AL Karlsruhe, Germany.



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AUSTINLAWYER | JULY/AUGUST 2022


Judge Livingston Looks Back and Forward continued from cover

Judge Lora Livingston has been a judge for 27 years. Judge Livingston says what she loves most about her work is getting to be the one person in the room who is 100% focused on a just and fair solution. She grew up in the Crenshaw neighborhood of Los Angeles, Calif. and went to Oregon State University for two years before transferring to UCLA. Judge Livingston holds both a B.A. and J.D. from UCLA.

presents. The creation of the Travis County Self-Help Center, located in the Travis County Law Library, stands out as one of the things I am most proud of during my tenure on the bench. I learned about this idea while attending a program sponsored by the American Bar Association (yet another reason to participate in bar association activities at the local, state, and national levels). My idea to replicate this idea in Travis County was initially met with skepticism but—eventually— the team I convened was able to persuade all the right people, and we were given the green light to proceed and to succeed. And succeed we did! Thousands of individuals and families have been served by the Self-Help Center. While the Center does not represent anyone, it does provide legal information to individuals, which allows them to make informed decisions. I appreciate that so many get this information with the help of the dedicated public-in-

terest lawyers and other professionals committed to this cause. The Self-Help Center is celebrating over twenty years in operation, and I could not be prouder of this access-to-justice initiative. Considering all that has changed over the years, I still believe COVID-19 has by far forced the most profound—and most exciting—changes. To be sure, the practice of law will never be the same. Moving out of the courthouse and turning my home office into a courtroom was an amazing experience. Many were terrified that the rule of law would suffer and that our increasingly fragile justice system would suffer a terrible blow. Instead, it was the faith in our justice system and our adherence to the rule of law that made remote court proceedings work so well. Remote proceedings allow attorneys to multitask in new and more efficient ways. Remote proceedings also allow clients to realize significant savings in attorney fees. Before the pandemic, I could not imagine a remote jury trial and now, I cannot imagine why we didn’t implement that option earlier. Jurors appreciate the convenience of serving on a jury in a remote proceeding. I have yet to be convinced (and few have tried to persuade me) that any summary-judgment argument needs to be in person. The benefits are enormous for litigants who face transportation and childcare challenges as well as those who have trouble taking time off work. Many of our dockets have experienced better participation and more engagement than ever before. Remote proceedings are not optimal in every situation, but they must be included among the options in any robust legal-services delivery system. The transition to remote proceedings was almost seamless for the courts. The technology was new to many but not new to the marketplace. I was using Zoom well before the pandemic for national conferences and

meetings, so the platform was not facility that is “alive after five.” unfamiliar. Many lawyers were I am extremely proud of the new already familiar with Webex and courts’ facility, and I’m confident other videoconferencing applicayou will enjoy working there. tions, so their transition was easy Enjoy! as well. These applications were Though I acknowledge these easy to navigate, and training the exciting developments in the unfamiliar user was a relatively practice of law in our community, simple task. No system is perfect, I’m personally looking forward but we have proven that our justo spending more time with my tice system is adaptable, resilient, family. I am blessed to still have and fair. my parents and in-laws (all in As a lawyer, and especially their nineties), and I want to during my tenure on the bench, spend as much time with them as I have literally dreamed of a new possible. I’m also looking forward courthouse in Travis County. The to spending more time with my civil and family courts and the grandsons (ages one and three, so public they serve are long overyou know I’m in for some fun!). due for new and improved court My husband and I also want to facilities. Finally, thanks to the travel and visit other parts of the leadership of Judge John Dietz, world. I hope retirement will suit (ret.) the Travis County Comme, and I’m looking forward to missioners Court, and countless giving it a try. others, that dream will soon be a I love my work, and I’m going reality. The construction of the to miss the full-time practice new Civil and Family Courts Faof law. I leave with a sense of cility (CFCF) is proceeding apace accomplishment. I leave feeling and will be completed by the that I fulfilled a great purpose. end of this calendar year (2022). And I leave with enormous pride. Working on this project has been It has been an honor to serve a labor of love (think childbirth: this community, and it has been After the labor pains, it’s nothing a pleasure to work with everyone but love!). involved in the legal profession The new building will be throughout my career, including worthy of the work conducted lawyers and other legal profeswithin, and it will feature several sionals. I am so, so grateful to amenities not currently available one and all for your trust and in the historic courthouse. It will confidence in me over the years, feature a child drop-off center for and I wish nothing but the best parents with short-term childcare to each of you. Thank you for needs while conducting court making my time on the bench so business. Private and appropriinteresting, so engaging, and— ate “mothering rooms” will be despite the difficult issues—so available for nursing mothers. uplifting at times. Attorney-client conference rooms The legislative branch has will be available for private conbeen entrusted to create substanversations during recesses, and tive laws. The judicial branch additional conference rooms will has been entrusted to interpret, be also available to support the apply, and enforce those laws. work of the courts. A large speHowever, the practice of law, a cial-proceedings courtroom will true art form, is left to the lawbe a feature in the new building, yers. For almost three decades, along with a large multipurpose you have entrusted me to do my room on the ground floor. The part as a judge; I now leave it to building will boast amazing art you to continue to play your part installations, and the hope is that to serve your clients, to serve the building will serve the wider the general public, and to make community once court sessions AUSTIN ourLAWYER justice system the best in the AL AL conclude. Imagine a public court world. JULY/AUGUST 2022 | AUSTINLAWYER

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BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Brett Adamie Jeff Bradley Lowell Brown Kayla Dailey Mindy Davidson Joshua Eames-Cepero Preston Edmondson Danielle Garcia Eli Gaylor Alicia Hernandez Samuel Hooper Ylise Janssen Tristan Kaisharis Brandon Livengood Zeca Mazcuri AnneMarie McComb June Moynihan Mary Neusel Nelson Remels Ashley Smith Sujan Trivedi Breanna Wenke Lama Zakzok

ABOVE: (from left) Avery, Thompson

MOVING ON UP

Goranson Bain Ausley announces the addition of Jasmine Avery to its roster of skilled family law attorneys. Avery is a Regent University School of Law graduate and was selected by Hampton Roads Bar Association as Law Student of the Year. She has an undergraduate degree in sociology and minor in child development. Avery worked as a law clerk with Goranson Bain Ausley before transitioning to an associate attorney. She is passionate about families and will focus on family law. Working with Texas Advocacy Project, Inc. as a law clerk strongly influenced Av-

ery’s affinity for family law. Cases involving domestic violence, protective orders, and children’s issues gave her experience in walking with clients during the most challenging situations. She strives to keep relationships and finances intact when family law concerns arise. Latitude announces the hire of Jeremy Thompson as Director of Legal Recruiting and Placement in the company’s Austin office. Thompson will work with experienced attorneys, paralegals, and other legal professionals in Texas and nationwide by matching them with corporate legal departments and law firms

in substantive contract engagements and traditional permanent positions. Before joining Latitude, Thompson developed a diverse law practice, both in scope and geography. In Austin, he practiced first- and third-party insurance litigation as a partner in a midsize Texas based firm. He previously practiced insurance defense in a West Coast law firm before opening a real estate law practice in the Deep South. Latitude is a high-end legal services company headquartered in Nashville, Tenn. Latitude expanded into Austin in September 2021 under the leadership of Jeff Lilly, a former Am Law 100 partner.

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

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AUSTINLAWYER | JULY/AUGUST 2022


TCWLA and TCWLF Award $85,000 in Grants Travis County Women Lawyers’ Association and Travis County Women Lawyers’ Foundation Hold 2022 Grants and Awards Luncheon BY SHELBY O’BRIEN

Shelby O’Brien is a partner at Enoch Kever PLLC where she specializes in litigation at the trial and appellate levels. Before joining Enoch Kever, she was a staff attorney at the Supreme Court of Texas and legislative counsel at the Texas Legislative Council. She has served as chair of the Travis County Women Lawyers’ Foundation, president of the Travis County Women Lawyers’ Association, and chair of the Austin Bar Association Civil Appellate Section’s Governing Council. She is a member of the Robert W. Calvert American Inn of Court and is certified in Civil Appellate Law by the Texas Board of Legal Specialization.

O

n May 6, 2022, the TCWLA/TCWLF Annual Grants and Awards Luncheon was held at the Fairmont Hotel. The Foundation awarded $85,000 in grants to local nonprofits that provide free legal or legal support services to women and children in Travis County. The 2022 grant recipients were: American Gateways, Asian Family Support Services of Austin, Casa Marianella, Family Eldercare, Jane’s Due Process, Texas Rio Grande Legal Aid: Foster Youth Project, VECINA, Volunteer Legal Services of Central Texas, and Women’s Storybook Project. Chandler Baker, local attorney and New York Times bestselling author of Whisper Network and The Husbands, gave the keynote address. She explained what motivated her to pivot from practicing law to writing books about modern, working women, and she addressed the difficult multitasking many attorney

TOP: KXAN News anchor Sally Hernandez capturing the attention of attendees. ABOVE: New York Times bestselling author Chandler Baker gives keynote address.

mothers in particular face. She provided inspiration for women to follow their dreams, wherever they may lead. Sally Hernandez of KXAN News spoke about her personal experiences growing up in El Paso and ultimately becoming a newscaster in Austin. She urged attendees to donate to the Foundation so that the Foundation can continue its mission of providing grants to nonprofits

The Foundation awarded $85,000 in grants to local nonprofits that provide free legal or legal support services to women and children in Travis County.

that serve disadvantaged women and children. Hernandez also ran a story on the Foundation on KXAN news. The following Attorney Awards were given to recognize achievement of women attorneys in the community: • Public Interest: Laurel Holland • Contribution to Minority Community: Dominique McLeggan-Brown • Advancement of Women’s Interests: Jenny Jackson • Government Service: Lynn Carter • Pro Bono: Rachel Ekery • Litigation/Appellate: Natasha Martin

• Corporate/Transactional: Pam Madere • Criminal Justice: Jana Ortega • Firm/Organization/ Government Entity: Wittliff Cutter • Outstanding Achievement: Sheila Gladstone TCWLA/TCWLF would like to thank all the sponsors who made the annual luncheon possible. For more information about the Travis County Women Lawyers’ Association or Foundation, AUSTIN LAWYER please AL AL visit www.tcwla.org.

JULY/AUGUST 2022 | AUSTINLAWYER

17


FREE ESTATE PLANNING / WILLS CLINIC FOR VETERANS

Senior District Judge

Stephen Yelenosky

                              The Gillespie County Veterans Service Office is hosting a free,  in-person Estate Planning / Wills clinic for Active Duty Military  Service Members, Veterans, and military family members!   Date: Thursday, August 25, 2022  Time: 1:30 p.m. – 4:00 p.m.*   Where: 95 Frederick Rd., Suite 200,   Fredericksburg, TX 78624   *This clinic will be BY APPOINTMENT ONLY.  Please see below for registration details. 

              

                              REGISTRATION INFORMATION   To register for the Free Estate Planning / Wills Clinic, you will need to RSVP with Tami King, Gillespie County’s Veteran Service Officer and complete an intake form. Ms. King will then assign a time slot to meet with an attorney upon completion of your registration.

Please contact Ms. King at (830) 997-3758 or by email at tking@gillespiecounty.org to be included in this event!

  To best assist you, please bring any paperwork relevant to your case.  

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Program support provided by the Texas Access to Justice Foundation and the Austin Bar Association provide support to this program. For any questions about the Legal Advice Clinic or Legal Assistance Program please contact the Austin Bar Association at 512-472-0279 x110.

Family Law Specialist

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

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AUSTINLAWYER | JULY/AUGUST 2022


THIRD COURT OF APPEALS CIVIL UPDATE

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The following are summaries of selected civil opinions issued by the Third Court of Appeals during May 2022. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of May 31, 2022. PROBATE: Court affirms order admitting will as muniment of title. Castillo v. Castillo-Wall, No. 0321-00081-CV (Tex. App.—Austin May 6, 2022, no pet. h.) (mem. op.). After husband’s death, wife’s attorney advised that there was no need to probate the will when all property passed to her. Years after husband’s death, wife tried to sell property and discovered the will needed to be probated. She immediately took steps to have it probated. The trial court found wife not in default and ordered the will admitted as a muniment of title. The court of appeals noted that the law is liberal in permitting wills to be probated as muniments of title after the four-year statute of limitations, particularly when an attorney advised that probate proceedings were unnecessary. The court rejected opponent’s argument that discrepancies on appraisal district records put wife on notice of the need to probate the will. The court affirmed.

TRIAL PROCEDURE: Trial court lacked plenary power to sign nunc pro tunc judgment. Chitsey v. Otten, No. 03-1200539-CV (Tex. App.—Austin May 6, 2022, no pet. h.) (mem. op.). Ron Chitsey obtained a default judgment in 2001 to quiet title to property. Appellants inherited Ron’s interest in the property and in 2021 filed a motion for judgment nunc pro tunc, contending the default judgment erroneously described the property. The trial court signed a judgment nunc pro tunc. Claiming to own the property, Otten intervened and filed a motion for new trial. The trial court declared the nunc pro tunc judgment void because it was signed after plenary power expired. According to the court of appeals, if the judgment entered is the same as the judgment rendered, even if the rendition were incorrect, a trial court has no nunc-pro-tunc power to correct the judgment after plenary power expires. There was no evidence that the trial court rendered the default judgment different from the one it entered. The court affirmed. TTCA: Court affirms denial of immunity claim based on emergency response exception. City of Austin v. Powell, No. 0321-00146-CV (Tex. App.—Austin May 13, 2022, no pet. h.) (mem. op.). Powell sued City for injuries sustained following a collision

PATIENT

with two police vehicles. The trial court denied City’s plea to the jurisdiction. The court of appeals noted that the TTCA does not apply to claims arising from an employee’s actions while responding to an emergency if the action complies with applicable laws or is not taken with reckless disregard for the safety of others. The court held that because officers were responding to a fleeing suspect on a “shots fired” call, officers were responding to an emergency. The crash report listed officer’s inattention, failure to control speed, and failure to maintain a safe following distance as causes of the collision. Accordingly, the court concluded that there was a fact issue on whether the officer should have known his actions were reckless. The court affirmed. MEDICAL LIABILITY: Court affirms order denying challenge to expert report. Zachariah v. Durtschi, No. 03-2000394-CV (Tex. App.—Austin May 13, 2022, no pet. h.) (mem. op.). Plaintiff sued doctor and hospital for wife’s death. The trial court denied Defendants’ challenge to Plaintiff’s expert report. The court of appeals concluded that the report sufficiently detailed the breaches of the standard of care—failing to order testing and schedule follow-up visits—that caused the failure to timely detect staph infections that ultimately

PRACTICAL

Laurie Ratliff, a former staff attorney with the Third Court of Appeals. She is board certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.

led to patient’s death. The court explained that the report need not provide an exhaustive explanation of the details or “litigation-ready” evidence. The court further rejected Defendants’ challenge to the expert’s qualifications. According to the court, to be qualified, a medical expert need not be a specialist in the same practice as the defendant AUSTIN LAWYER AL AL doctor. The court affirmed.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

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histories are current as of June 1, 2022. EXTRANEOUS-OFFENSE EVIDENCE – REMOTE CONVICTIONS: Evidence of remote convictions admissible under Rule 609; common-law “tacking” doctrine no longer applies.

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries represent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.

The following are summaries of selected criminal opinions issued by the Third Court of Appeals from December 2021. The summaries are an overview; please review the entire opinions. Subsequent

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LLP

Garfias v. State, Nos. 03-19-00877CR & 03-19-00879-CR (Tex. App.— Austin Dec. 2, 2021, pet. ref’d) (mem. op., not designated for publication). Garfias was charged with and convicted of the offenses of (1) assault family violence with a prior conviction and (2) repeated violations of a condition of bond in a family violence case. During trial, the parties discussed the admissibility of Garfias’s prior convictions, including a 2004 conviction for assault against a female, a 2006 conviction for theft, and a 2013 conviction for assault family violence against the victim in the current case. Garfias

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objected to the admission of the 2004 and 2006 offenses under Rule 609, which allows for the admission of a conviction older than ten years “only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.” In admitting the 2004 assault conviction, the trial court referenced both the common-law “tacking” doctrine and Rule 609. On appeal, Garfias asserted that the trial court erroneously admitted the 2004 conviction. Specifically, he challenged the trial court’s application of the “tacking” doctrine, which provides that a conviction that is more than 10 years old can be “tacked” onto a more recent conviction for remoteness purposes, thereby making the remote conviction admissible under certain circumstances. The appellate court observed that the “tacking” doctrine no longer applied and that the admissibility of evidence of convictions older than 10 years must be evaluated under Rule 609. Here, the State intended to use the 2004 conviction to rebut Garfias’s theories that the victim instigated the altercation and that Garfias was acting solely in self-defense. For that reason, the Court concluded that the probative value of the 2004 conviction substantially outweighed its prejudicial effect. CHARGE ERROR – COMMENTING ON THE WEIGHT OF THE EVIDENCE: Jury charge erroneously referred to the relevant testimony of the complainant. Castro v. State, No. 03-19-00882CR (Tex. App.—Austin Dec. 30, 2021, pet. ref’d) (mem. op., not designated for publication). Castro was charged with and convicted of seven counts of indecency with a child by sexual contact. The jury charge included language referring to the relevant testimony of the complainant for each count. For example, the first sentence of Count I provided, “This count refers to the testimony by M.C. regarding [the specific allegations].” On appeal, Castro

argued that such language was an improper comment on the weight of the evidence in violation of Article 36.14, which prohibits the trial court from, among other things, “expressing any opinion as to the weight of the evidence” or “summing up the testimony.” The appellate court agreed that the charge was erroneous: “By explicitly and repeatedly referring to the testimony of the complainant—the sole witness to testify about the facts underlying the charges—the court influenced the State’s burden and engaged in the very conduct proscribed by Article 36.14.” However, the Court was split on whether the inclusion of the language egregiously harmed Castro, who did not object to the charge at trial. The majority concluded that the error was not egregiously harmful for various reasons, including that (1) the charge “instructed the jury at length about the State’s burden of proof” and that the jury alone was the factfinder; (2) during argument, “both sides reminded the jury of its role as the trier of fact and judge of credibility, as well as of the State’s burden of proof”; and (3) “statements made by both sides during voir dire” emphasized “the State’s burden of proof and the jury’s role as the trier of fact.” The dissent concluded that Castro was egregiously harmed because “[t]he very basis of this case was M.C.’s credibility, and the primary defensive theory was that M.C.’s testimony was not credible.” The dissent explained that “[t]he court’s charge, by referencing specific portions of M.C.’s testimony, essentially communicated to the jury that it should focus its attention there. Such a focus egregiously harmed Castro because it encouraged the jury to consider only the specific portions of M.C.’s testimony in which she testified to what Castro allegedly did, rather than the entirety of her testimony, including the portions of her testimony on cross-examination in which the defense challenged her AUSTIN LAWYER AL AL credibility.”


FEDERAL CIVIL COURT UPDATE

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The following is a summary of an opinion issued by the United States Supreme Court. The summary is an overview of particular aspects of the opinion; please review the entire opinion.

ARBITRATION: Prejudice is not a condition of finding that a party waived its right to arbitrate under the Federal Arbitration Act (FAA) by participating in litigation before invoking the right. Morgan v. Sundance, Inc., No. 21-328, 2022 WL 1611788 (U.S. May 23, 2022). Robyn Morgan was an employee of a Taco Bell franchise owned by Sundance. When applying for the job, Morgan signed an agreement to arbitrate any employment disputes. Nevertheless, Morgan filed a nationwide collective action against Sundance in court, alleging failure to pay overtime. Sundance filed a motion to

dismiss the lawsuit, which the district court denied, and then engaged in mediation, which was unsuccessful. Only then, eight months after the suit was filed, did Sundance invoke the arbitration agreement, moving to stay the litigation and compel arbitration. Morgan argued that Sundance waived its right to arbitrate by litigating for so long. The district court agreed and denied Sundance’s motion, but the Eighth Circuit reversed on appeal. Under a test that the Eighth Circuit and several others (including the Fifth Circuit) had long followed, a party waives its contractual right to arbitrate only if it both acted inconsistently with that right and, relevant here, prejudiced the other party by its inconsistent actions. The Eighth Circuit held that although Sundance had acted inconsistently with the right to arbitrate, its actions had not prejudiced Morgan and, therefore, did not amount to waiver. The Supreme Court granted

certiorari to resolve the circuit split on whether prejudice to the other party is required to show waiver under the FAA. In a unanimous opinion, the Court held that prejudice is not a condition of finding waiver, abrogating precedent in the First, Second, Third, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits. The Court observed that, outside of the arbitration context, federal courts assessing waiver do not ask about prejudice; instead, the focus is solely on the actions of David Shank represents clients in highthe party who potentially commitstakes, complex disputes in Texas and ted waiver. By demanding proof around the country. He is a partner at of prejudice in the arbitration Scott Douglass McConnico, LLP. context, then, courts created an arbitration-specific rule of waiver. Federal courts had justified this arbitration-specific rule by refersimply acknowledges the FAA’s encing the oft-cited liberal federal purpose in ensuring that courts policy favoring arbitration. The place arbitration agreements Court explained, though, that the on theLAWYER same footing as other federal policy favoring arbitration AUSTIN AL AL contracts. does not authorize federal courts to invent special, arbitration-preferring rules. Rather, the Court’s frequent reference to that policy

JULY/AUGUST 2022 | AUSTINLAWYER

21


CRIMINAL COURT NEWS

Priors and Prejudice BY DAN DWORIN

D an Dworin is a criminal defense attorney 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.

W

ith certain well-defined exceptions, a Texas criminal trial jury is usually not informed of a defendant’s prior criminal history at the guilt-innocence phase of the trial. The Texas Court of Criminal Appeals recently decided a case that called for an analysis of several of those exceptions. In Valadez v. State,1 the defendant was the back-seat passenger in a car in which police discovered 18 pounds of marijuana in the trunk after a traffic stop. The defendant maintained that he was not aware of the presence of the

to questions about the purpose of the trip, and the fact that drug couriers rarely invite someone along for the ride. Thus, any probative value of the extraneous offenses was limited. Further, since all of the other offenses were held to be inadmissible regardless of their extraneous nature, the Court held that they were due no weight from the jury, so any weight they may have been given would be undue as they were “misleading” for purposes of Rule 403.6 Although the Court remanded the case for a harm analysis, the lack of any kind of jury instruction as to the relevance and permissible purpose of the wrongly admitted extraneous offenses would seem to be a major factor weighing in favor of a new trial AUSTIN LAWYER AL AL for the defendant.

When determining whether to allow evidence of prior “bad acts” into evidence at a trial, the judge is supposed to balance the probative value of the evidence against the danger of unfair prejudice to the defendant. 1

marijuana and therefore was not guilty of possessing it.2 To rebut the defendant’s theory of the case, the State, over defense objection, was allowed to put on evidence of six other marijuana-related arrests on the defendant’s record to show a pattern and familiarity with the drug. At least one of the arrests occurred two years after the arrest in the case, which the Court pointed out stripped it of any probative value. The evidence about the prior offenses was provided in summary form by a witness who had no personal knowledge of the facts of those cases. Worse, the trial court did not instruct the jury that they could consider the extraneous offenses only if they believed beyond a reasonable doubt that the defendant was, in fact, guilty of those offenses.3 When determining whether

to allow evidence of prior “bad acts” into evidence at a trial, the judge is supposed to balance the probative value of the evidence against the danger of unfair prejudice to the defendant.4 Showing that the defendant has a propensity to commit crimes is exactly the type of evidence disallowed by the rules of evidence.5 The Court considered various rationales for the admission of the prior arrests, concluding that each one failed. The State argued that the defendant’s “innocent passenger” defense made his prior law enforcement contacts relevant. The Court disagreed, noting that the State had ample evidence of possession based on the locations of the drugs and the defendant, that fact that he was nervous when approached by law enforcement and didn’t have logical answers

Footnotes 1. __ S.W.3d__, 2022 WL 946268 (Tex. Crim. App. 2022). 2. Id. 3. Id. 4. Tex. R. Evid. 403. 5. Valadez, citing Segundo v. State, 270 S.W.3d 79, 87–88 (Tex. Crim. App. 2008). 6. Id.

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OPENING STATEMENT

Readable Contracts Part 1 ALL-CAPS and Passive Voice BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

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his is part 1 of a series on contract drafting; I’ll report on a study of contract language and offer comments and recommendations. The study is “Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language.”1 The three authors (two linguists and a lawyer/linguist) used corpus analysis to discover why contract language “remains notoriously inaccessible” to nonlawyers. They asked which of these two causes could account for the difficulty: • Is it the specialized and complex content? • Is it the form of expression— the way contracts are written? They compared a corpus (think “database”) of contracts with a corpus of standard English—newspapers, magazines, blogs, web pages, and TV and movie scripts. The two corpora2 contained more than 10 million words, and the authors assessed five variables: frequency of allcaps, frequency of passive voice, frequency of center-embedded sentence structure, frequency of everyday words, and frequency of words with a higher-frequency synonym (fancy words that could’ve been simple). The authors found that “all of the metrics we looked at were prevalent to a greater degree in contracts than in the standard-English corpus.”3 Let’s start with the first two variables: Contracts use all-caps and passive voice more than everyday writing. ALL-CAPS I’m not surprised that contracts use more all-caps than other writing, but the questions is, why? Typically, all-caps are used

to draw attention, to make text conspicuous and noticeable. In fact, there are Texas statutes that require certain contract language to be “conspicuous.”4 But those statutes don’t expressly require all-capitals text. For example, here’s one definition of conspicuousness: “Required information in a document is conspicuous if the font used for the information is capitalized, boldfaced, italicized, or underlined or is larger or of a different color than the remainder of the document.”5 So all-caps is one option, but not the only one, although I did find two Texas regulations requiring all-caps.6 Still, the question remains: why does all-capitals text persist in contracts? Three possible reasons and a recommendation: First, all-caps is a vestige of the typewriter, which couldn’t produce boldface or italics, so some form contracts retain allcaps because they’ve never been updated. Second, all-caps really do stand out if the rest of the contract is in regular type. Third, some lawyers mistakenly assume that statutes require all-caps for conspicuousness; but although some statutes mention all-caps, they almost always give other options. (See the example quoted above.) Recommendation: Convert allcaps to boldface—and maybe even increase the font size. Blocks of all-caps text are difficult to read7 and are nowadays perceived as shouting. PASSIVE VOICE Why do contracts have more passive voice than other ordinary writing? Two possible reasons: Passive voice is preserved because “it’s in the form.” Many contract drafters are wary of changing form language,

Convert all-caps to boldface—and maybe even increase the font size. Blocks of all-caps text are difficult to read and are nowadays perceived as shouting. especially if that form was the voice version: basis for numerous contracts that 2a. The Buyer shall pay have closed and been performed the Purchase Price by wire without a glitch. transfer of immediately And passive voice just sounds available funds. more formal—more lawyerly. But Next month: additional if that’s a source of excessive AUSTIN findings of the contract-language LAWYER AL AL passive voice, we can let it go. study. Consider these examples of Footnotes passive voice that are clearer in the active: 1. Permits must be secured before work commences. • By whom? Better in active voice: 1a. The owner or contractor must secure permits before work commences. 2. The Purchase Price shall be paid by wire transfer of immediately available funds. • Certainly, the buyer’s obligation to pay the Purchase Price was stated earlier in the contract, but I still prefer this active-

1. Eric Martinez, Francis Mollica, & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, Cognition 224 (2022). 2. Yes, that’s the plural of “corpus,” which I had to look up. 3. Poor Writing, Cognition 224, at 3. 4. E.g., Tex. Bus. & Com. Code Ann. § 2.316. 5. Tex. Bus. Orgs. Code Ann. § 1.005. 6. 7 Tex. Admin. Code § 84.808; 16 Tex. Admin. Code § 22.71. 7. Matthew Butterick, all caps, Butterick’s Practical Typography, https://practicaltypography.com/allcaps.html (last visited June 1, 2022).

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AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN BLAIR LEAKE, WRIGHT & GREENHILL, P.C.

Meet AYLA’s 2022-23 President

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lair Leake is a civil trial lawyer practicing at Wright & Greenhill, P.C. Leake handles civil rights, employment, and personal injury cases. The University of Houston Law Center graduate notes that both his father and grandfather are also attorneys. AYLA: Tell us about yourself. LEAKE: I grew up in Mesquite, which is a suburb of Dallas. I am the youngest of four children— which probably explains a lot for those who have spent time with me. I moved to Austin in 2006 and later graduated from the University of Texas with a degree in history. The history factory was inexplicably not hiring in 2009—nor was anyone else—and so I spent time after college doing professionally what I had already been doing for the final few years of college, i.e., being a broke sportswriter. My grandfather was an attorney, and my father is an attorney, so naturally I vowed for years that I was not going to be an attorney. After experiencing post-college poverty and surveying the ailing job market, I finally listened to my grandfather’s advice of “do what you’re good at” and studied for the LSAT. I enrolled at the University of Houston Law Center, competed in every advocacy competition I could find, and graduated in 2013. 24

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During my first year of law school, I met my now-wife and fellow attorney, Erin Leake. We have been happily married for over seven years, and together we have an adorable two-year-old son and a daughter on the way. Outside of the practice of law, I enjoy spending time with friends, cooking, gardening, shooting sporting clays, and rooting for sports teams that consistently disappoint me (How ’bout them Cowboys!). AYLA: What kind of law do you practice? LEAKE: I am a civil trial lawyer. I phrase that moniker ambiguously because I genuinely enjoy taking on new cases in areas outside of my wheelhouse. I have found that stepping outside of my legal comfort zone has provided me incredible professional growth. Just as examples, beyond what I normally handle, I have gone to trial on will contests, adverse possession disputes, and DTPA claims, and I have otherwise handled cases that range anywhere from federal trade dress disputes to lawsuits based on Texas cemetery laws (twice!). If nothing else, it keeps things interesting. My penchant for straying notwithstanding, I predominantly handle civil rights, employment law, and personal injury cases—in that order. My civil rights practice consists mainly of defending local government officials and employees, including and especially first responders. I enjoy representing both plaintiffs and defendants, but most of the cases I handle fall on the defense side of the aisle.

AYLA event I ever attended was a Docket Call happy hour. A fellow reveler encouraged me to run for an AYLA director position, and I subsequently ran an absolute nail-biter of a campaign in an uncontested election. The reason why I stayed in AYLA and subsequently kept running for other leadership roles, however, is because AYLA is a fantastic organization. It provides a social outlet for young attorneys to get to know each other and foster rapport in an increasingly lonely digital legal landscape, but it also serves as essentially a public service arm for the entire Austin legal community. The Austin legal community is better off because of the existence of AYLA, and I am proud to be one of many people who help keep it running. AYLA: Name some of your goals and/or plan for the upcoming year with AYLA. LEAKE: Like most organizations, AYLA struggled over the past two years. Membership numbers dropped as the social opportunities and events had to be either canceled or fundamentally altered—and as many of our members fell on hard times. Under the leadership of past president

Rachael Jones, the AYLA membership numbers have improved considerably, but we still are not back to where we were before the pandemic. If I had to articulate a specific goal, it would be to transition AYLA from “recovering” to “off and running.” If all goes well, the 2022-23 bar year will feature a full slate of in-person AYLA events, including monthly Docket Call happy hours, Bench Bar, Judicial Reception, Bar & Grill, Crawfish Boil, volunteer events, in-person CLEs, wellness events, our annual tailgate, and more. Beyond just that, we are also looking at adding new events and programs, including a CLE series focused on trial skills. AYLA: What would you say to young lawyers to show them the benefit of joining AYLA? LEAKE: Getting involved with AYLA is the best way for a young Austin lawyer to integrate him or herself into the local legal community. AYLA puts you in a position to meet judges (some of whom might even finally remember your name!) and, most importantly, hone skills that the practice of law alone will not. You will grow both AUSTIN LAWYER AL AL personally and professionally.

UPCOMING EVENTS

AYLA: Why did you first get involved with AYLA?

THURSDAY, AUG. 18, 2022 AYLA Bar Year Kick-Off Party Hilgers House, 712 W. 16th St. 5:30 – 7:30 p.m.

LEAKE: Like many, the first

Visit ayla.org for a complete list of events and updates.


AUSTIN YOUNG LAWYERS ASSOCIATION

The Winner’s Circle

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he hard work of AYLA didn’t go unnoticed as The Texas Young Lawyers Association (TYLA) announced its annual Awards of Achievement. AYLA received recognition from TYLA for several of its programs and initiatives! Our members work hard to raise money to support the legal community and community at large, promote wellness, and more. We are excited to

announce these awards. • Single Project – Service to the Public Award • FIRST: Austin – Virtually Legal • Single Project – Service to the Bar Award • SECOND: Austin – Practice to Fitness • Comprehensive Award • THIRD: – overall AUSTINAustin LAWYER AL AL programming

Let’s Get This Started — It Begins with You Carrying Hope Summer Service Project

Hope Packs are backpacks filled with everything a child would need during his/ her/their first 24-48 hours in a new home.

P

lease help the Austin Young Lawyers Association support Carrying Hope this summer. Carrying Hope is a local nonprofit founded in 2016 by foster parents and advocates who were heartbroken watching children arrive on their doorsteps with nothing but the clothes on their backs. They came up with the idea for Hope Packs: backpacks filled with everything a child would need during his/her/their

Mediation. Arbitration. Resolution.

first 24 - 48 hours in a new home. Since 2016, Carrying Hope has distributed more than 15,000 Hope Packs to CPS and foster care agencies across Texas. Items can be selected from the Amazon Wishlist (direct link on ayla.org) all summer long. Please deliver items to Debbie Kelly. At the beginning of the 2022 -23 bar year in August, AYLA will host an event at Hilgers House to assemble theLAWYER packs to donate to AUSTIN AL AL Carrying Hope.

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JULY/AUGUST 2022 | AUSTINLAWYER

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PRACTICE POINTERS

Collaboration, Community, and Culture Lessons Learned from 20 Years in Austin BY KIM YELKIN, FOLEY & LARDNER LLP strength but also by the collaborative culture in the firm and in the Austin office itself. Since day one, our team has been dedicated to acting upon four foundational elements: relationship building, collaboration, inclusivity and mentorship, and work-life balance. These principles have driven the 20 years of prosperity that we are celebrating today, and I firmly believe they are central to the success of any law firm. Kim Yelkin is nationally recognized in government affairs. She brings a unique blend of legal talent and business acumen to assist her clients in solving complex problems which include transactional, regulatory, legislative, litigation avoidance, premium tax, and routine compliance matters before various state agencies.

I

n May, Foley & Lardner LLP celebrated the 20th anniversary of the opening of its Austin office. When I opened the office in 2002 (formerly Gardere Wynne Sewell LLP before the 2018 combination with Foley & Lardner LLP), Austin was a very different city than it is today. Throughout these 20 years of growth and change, our team has cultivated valuable relationships with colleagues, clients, and the Texas state government. These connections have positioned our office as the hub for the firm’s leading government solutions practice, ensuring continued success for clients that conduct business within the state of Texas. The combination with Foley further strengthened our bench and the services we could offer our clients. Foley’s leading position in Texas was made possible not only by the tremendous bench 26

AUSTINLAWYER | JULY/AUGUST 2022

Client relationships should not be exclusively transactional. Frequent communication is important, even if it is just a check-in regarding personal wellbeing. These informal conversations can also be used to keep a finger on the pulse of ongoing issues our clients are facing.

FOSTERING COLLABORATION AND TRUST

I have always been told, “you are only as good as the people around you.” To effectively serve clients, a legal team must consider multiple perspectives from various stakeholders to achieve the greater good. As each of us at Foley individually works to advance our careers, we understand the need to collaborate and elevate our colleagues to build a strong, multifaceted firm. It is through listening, learning, and collaborating that lawyers become experts. Collaboration among different sectors of a law firm enhances the value of the services provided to clients. If you aren’t the top expert in an area, invite the person who is to join the discussion. This transparency establishes trust with your clients and highlights the strength of your firm. BUILDING RELATIONSHIPS WITH THE COMMUNITY

Collaboration extends beyond your team into your relationships with clients and the community at large. Client relationships should not be exclusively transactional. Frequent communication is important, even if it is just a check-in regarding personal well-being.

These informal conversations can also be used to keep a finger on the pulse of ongoing issues our clients are facing. If you learn of legal and legislative developments in your clients’ industry that will impact their business, let them know early on that you are there as their partner to help them achieve their longterm business goals. This is key to client retention and strong relationships. Another way to strengthen ties across your city and state is to give back to the surrounding community. Foley Austin is a firm-wide partner with the Boys

and Girls Club of America, and our team also volunteers their time elsewhere, including The Center for Child Protection, Seedling Mentor Program, and Habitat for Humanity Texas. COMMITTING TO INCLUSIVITY AND MENTORSHIP

When I first began practicing law, I was one of very few women in the field. While we have made strides within the legal industry, there is always room for more diversity—diversity of gender, background, race, creed, age, and thinking. All these can only make an organization stronger. It’s not


enough to hire attorneys who are diverse. The firm must first create an inclusive and supportive environment and create equitable advancement paths for everyone. No one becomes a great lawyer overnight. Finding a mentor is a great way to learn and advance your career. Mentors encourage you to ask questions and think outside the box. My mentors taught me how to build a collaborative enterprise, serve my clients, and manage an office with compassion and innovation. As businesses become more inclusive, their trusted advisors in

law firms must do the same. The more we see women and people of color in leadership roles, the more those individuals will believe they can achieve the same, especially if they have a mentor who has directly experienced the unique challenges facing their community. CELEBRATING THE BEST PARTS OF LIFE

It is easy for a firm to say they promote work-life balance. But true work-life balance is about more than the number of PTO days. It’s about allowing employ-

ees to celebrate the important ALWAYS LOOK FORWARD moments in their life and celeBeing the office managing brating alongside them. partner of the Foley Austin This appreciation for personal office has taught me a lot, and it priorities also extends beyond has also given me unparalleled the office. My clients appreciated connections with the firm, within my decisions to attend my child’s the Austin community, and school performance or athletic within the state of Texas. These event. After all, they have faced guiding principles will not only the same challenges in managing help propel Foley Austin toward priorities. As a single mom and another successful 20 years, but female leader, finding the balanceAUSTIN also LAWYER help other law firms achieve between career and family is a AL AL success. lifelong pursuit, but having the support of your team makes all the difference.

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Attorney Erin Leake

Board-Certified in Family Law by the Texas Board of Legal Specialization

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