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TLAP is a Treasure of Resources for the Texas Lawyer Law School Health & Wellness Small Law, Big Time Recovery Stories Improving the Indoor Environment Law Students Should Not Be Afraid nch to Get the Help They Need

lawyer

THE HOUSTON

inside...

Volume 60 – Number 4

January/February 2023

contents January/February 2023

Volume 60 Number 4

FEATURES

10

Law School Health & Wellness

14

is a Treasure of Resources for 10 TLAP the Texas Lawyer

By Melanie Bragg

School Health & Wellness 14 Law How Law Schools Are Bringing Wellbeing to the Forefront of the Student Experience University of Houston Law Center’s Focus on Wellness Creates a Supportive Learning Environment

By Anna Archer

Thurgood Marshall School of Law Student Wellness Effort: Sustain Focus Through Balance

By Amy Li Ratra

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Recovery Stories

Thriving at Baylor Law School and in the Profession: Finding Harmony

By Stephen L. Rispoli

The University of Texas School of Law Invests in Wellness

By Christopher Sokol

Law, Big Time: Maintaining 19 Small Wellness and Balance as a Small Firm Lawyer

By Jonny Havens

20 Recovery Stories

By Andrew Pearce

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• Judge Beau A. Miller: A Story of Rededication • Judge Steven E. Kirkland: A Story of Recovery • Judge Mike Engelhart: A Story of Recalibration • Judge Lauren Reeder: A Story of Reset

Roots: Detangling the Nexus 24 Dark Between Black Haircare, Public Health, and Clean Beauty Equity

By Anietie Akpan

Students Should Not Be Afraid 28 Law to Get the Help They Need

By Augustin Rivera, Jr. and Nahdiah Hoang

the Indoor Environment to 30 Improving Promote Attorney Wellness

By Xperanza Uviedo

Does Your “Dash” Represent?

32 What Discovering the Motivation Within to Pursue Your Goals

The Houston Lawyer

By Dose Khan

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur. com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2022. All rights reserved.

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contents January/February 2023

Volume 60 Number 4

departments

34

36

Message 6 President’s The Business Case for Wellness

By Christopher V. Popov

the Editor 8 From “How Are You?”

By Brooksie Bonvillain Boutet

Lawyer Spotlight 34 Young Sabrina Jiwani THE RECORD 36 OFF Giving Yourself the Gift of Life

Experiences: Nicole Voyles

By Andrew Pearce

37

42

in professionalism 37 ATheProfile Hon. Daryl Moore Of Counsel, AZA Law

Spotlight 38 Section HBA Sections Kick Off 2023 With

a Trivia Showdown and Essentials for Music Attorneys

By Maggie Martin

trends 40 legal When a Car Crash Case Can Also

Be a Medical Malpractice Case – And When Not

By Randall Sorrels and Jessica Rodriguez-Wahlquist

reviews 42 Media Behind Blue Eyes: How an ERISA

Attorney Shed Everything That Underpinned His Existence to Transform Into a Modern Day Adventurer Reviewed by Jennifer Smith

Business and Commercial Litigation in Federal Courts, Fifth Edition Reviewed by Brooksie Bonvillain Boutet

The Houston Lawyer

44 Litigation MarketPlace

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president’s message

By Christopher V. Popov Vinson & Elkins LLP

The Business Case for Wellness

S

The Houston Lawyer

up emotional resilience takes work and self-care. Ignortudy after study has found that lawyers suffer ing stressors doesn’t make them go away; we have to deal higher rates of substance use and mental health with them one way or another. The healthy ways involve disorders than the general public. This is an area instituting healthy habits, seeking care from mental where one might expect us to beat the national health professionals, commitment to spiritual commuaverage. We’re highly educated people, with acnity, and making changes in our lives that reduce our excess to medical care and financial resources. You might posure to stress and increase our resilience to it. The unthink that the good fortune of being a lawyer would lead healthy ways manifest as self-medication with us to comfort and happiness, and away from desalcohol or other drugs, emotional outbursts, peration and despair. low self-esteem, depression, and anxiety.

The data suggest the opposite, however. A study For what it’s worth, your HBA president has by the Hazelden Betty Ford Foundation found One of our sought help from a therapist, and participates that 28% of attorneys struggle with depression, 21% are problem drinkers, and 19% suffer from goals for this regularly in a self-help program which has brought calm and clarity to parts of his life anxiety—all at higher rates than experienced by bar year is that were once filled with fear and angst. I beother professionals and the general public. Other reputable studies corroborate these findings. to educate lieve those things have made me into a better person and a more highly functioning lawyer.

That’s troubling, and it’s bad for business. firm leaders My only regret is that I didn’t seek help sooner.

One of our goals for this bar year is to educate firm leaders on the role they can play in improvon the role And I would be remiss if I didn’t acknowledge one of the reasons I felt empowered to seek ing the mental health of our legal community. they can play that help was because of mentors at my firm who The altruistic reasons for that goal should be obin improving were candid with me about their own expevious, but the business case is just as compelling.

The most important asset of every law firm is its the mental riences. When I learned that some of my role models—the strong, unflappable, problempeople. Without well-adjusted, high-functioning health of solving giants of the profession—had to seek lawyers and support staff, there isn’t much value in a law firm. Drunk lawyers aren’t particularly our legal help to deal with their own personal turmoil, I was less ashamed to admit that I needed help effective. An anxious or depressed lawyer is likely community.” myself. to function below her potential. And burnout-inI hope to spread that message to the legal duced employee turnover is expensive. community this year. In January, we hosted a wellness There are many explanations for the attorney wellness forum with over a dozen managing partners and benefits crisis. While there is room to debate which factor is most professionals from Houston law firms. We exchanged significant, the explanation I encounter most is that lawideas on how to promote wellness at our firms, and how yers are less likely than others to acknowledge that they to eliminate the stigma around asking for help. It was a are suffering and to seek help. wonderful evening, and it felt like we took a small step I identify with this reluctance to ask for help. My vitowards making positive change in our legal community. sion of a lawyer is of an unflappable professional—strong; I look forward to watching how those leaders carry forth calm under fire; the one who has the answers; the person this message at their firms. who can lead his clients out of crisis. I still believe that What are you doing to manage stress? What is your these characteristics are necessary to long-term success in relationship with alcohol? Are there colleagues in your the profession. When our clients call upon us in times of workplace who would benefit from learning about your crisis, we do need to be unflappable. own self-care regime? Asking those questions of yourself But what do we do to prepare ourselves for those highis good for you, and it’s good for business. stress moments, when we have to be at our best? Building

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from the editor

By Brooksie Bonvillain Boutet Shipley Snell Montgomery LLP

Associate Editors

Anna M. Archer U.S. District Court

Ryan Kent Harris County District Attorney’s Office

Elizabeth Furlow Malpass Baker Botts

Carly Milner Foglar Brar O’Neil & Gray

The Houston Lawyer

Nikki Morris BakerHostetler

Andrew Pearce BoyarMiller

8

“How Are You?”

J

ust this morning, on my walk from the parking garage into the office, a stranger said “good morning,” then asked “how are you?” I politely replied, then we shared an elevator ride together in silence.

This exchange took me back to high school, where one of the clergy members would roam the hallways meeting students with a similar greeting ending in “how are you?”

Then—without stopping to await a reply—he would continue down the corridor, onto the next student.

I remember at that time, as a teenager, having a conversation with my mom and asking why he would say “how are you” without so much as waiting for a perfunctory, surface level response. Why even ask someone how they are doing if you are not going to genuinely listen?

Many years later, this is clearly still on my mind. And, in terms of attorney wellness, it is important. All too often we walk the hallways of our offices—surrounded by colleagues we see daily—and share similar exchanges that include “how are you?” But how often do we stop to listen? Or, even more, how often does this question solicit a meaningful response?

Very few people will take this opening as an opportunity to reveal something going on in their personal lives, be it good or bad. Do we truly pose this question expecting to hear “I’m getting married this weekend” or “my mother passed away last week?” Occasionally, the prompt will solicit something on the professional front, such as “I’m getting ready for a trial,” or “I just settled a really tough case and now have more time to focus on this one.” More often, it yields a surface level response about the weather, an impending holiday, or an upcoming citywide event.

Many of us experience most of our social interaction through the legal community, whether it be in the course of our workday conversations, team lunches, or evening happy hours. Some reading this note may take the position that professional conversation should be just that—professional, work-centric, and surface level. But I disagree. So much of our lives are dedicated to the legal profession. To completely silo our professional and personal lives inhibits the formation of deeper connections

January/February 2023

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among us. I have experienced my happiest and saddest personal times during my years practicing law. Sharing the happy moments with my colleagues made them more joyous. And, I sometimes wonder, had I opened up about the tough times—instead of leaving those issues at home so I could focus on work—would they have been more bearable?

This issue focuses on attorney wellness, and not just the fitness component of it, but a holistic view. A big part of wellness is mental health and wellbeing. The content covers educational offerings and preventative measures, including how Texas law schools are starting students on the right track from day one. And the Texas Board of Law Examiners explains their decision to revise the character and fitness screening to destigmatize mental health. For those of us who find ourselves in need of assistance during our practicing years, the Texas Lawyers’ Assistance Program offerings are highlighted in a standalone article and throughout the issue. And, four of our local judges share their own wellness journeys on wide-ranging topics. A solo practitioner explains how he keeps his sanity while wearing the many hats involved in a small practice, and we also learn about architectural trends in wellnessfocused firms looking to attract attorneys back to the office. A personal trainer gives his advice for maintaining a positive attitude. And, one of our former editors in chief provides a look into how Black haircare products can affect wellness.

Thank you to our guest editors, Sara Prasatik and Nikki Morris, for collaborating to bring this issue to fruition. And, as always, Anna Archer has beautifully complemented these articles with our companion podcast, Behind the Lines, with interviews about best practices for attorney wellness and the intersection of law and mental health.

After taking in this issue and learning more about the shift to a comprehensive approach to attorney wellness, I challenge us all to listen a little more closely when visiting with our peers. Dig a little deeper to see how your colleagues are doing on not just a professional, but a personal level, as well.

Thank you for reading The Houston Lawyer.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Immediate Past President

Christopher V. Popov

Daniella Landers

Diana Gomez

David Harrell

Greg Ulmer

Jennifer A. Hasley

Second Vice President

Greg Moore

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By Melanie Bragg

TLAP is a Treasure of Resources for the Texas Lawyer

O

Scan this QR code for TLAP resources.

ne of the best programs the State Bar of Texas provides its members is the Texas Lawyers’ Assistance Program (TLAP). TLAP is a confidential, respectful, and voluntary program that helps law students, lawyers, judges, and legal employees in the areas of wellness, stress and anxiety, depression and bipolar disorder, suicide prevention, substance abuse, and more recently, cognitive decline. TLAP promotes knowledge and understanding of the risks that the stresses of the legal profession place on lawyer wellness. TLAP has a program to meet the needs of anyone, from helping one person maintain wellness in the face of seemingly insurmountable obstacles to counseling another who may be contemplating suicide.

TLAP provides a strictly confidential 24/7 phone support line that allows members to openly discuss their challenges.

The callers can receive therapist recommendations, support from local peers, funding for treatment, after-care support, and access to educational programs. Since being appointed to a three-year term on the committee by then-State Bar President Sylvia Borunda Firth, I have realized just how airtight and inviolate that

confidentiality promise is to the staff and members. This is because the fear of a confidentiality breach is one of the main barriers to lawyers seeking help.

I glow with pride when I see how dedicated the staff is to the cause of lawyer wellness in a variety of areas and how the committee, which is composed of leaders from across the state—many of whom have been through the very same burnout or other challenges that cause lawyers to seek help from TLAP—comes together to address member needs. A great example is TLAP professional staff member Paul Jacobs, who shared with me the importance of TLAP in his own life: The Texas Lawyers’ Assistance Program is very special to me. I was a civil litigation attorney for over 30 years, and I burned out, lost focus and motivation. Rather than call TLAP for help, I wrongly chose to self-medicate myself during that rough patch. Despite my training and education, my ignorance as to the underlying cause of my symptoms and the fear of the stigma I might face if I did reach out caused my care to be significantly delayed. As a member of the TLAP family and now a staff member, I share my journey publicly and honestly whenever I can to educate and help attorneys with mental-health and substance-use disorders and to aid in the de-stigmatization of these diseases. It has been my privilege to help suffering attorneys, law students, and judges recover from mental-health and substance-use disorders. It is my hope that the amazing work of TLAP will help suffering attorneys timely seek the treatment they need and to increasingly become more willing to reach out and accept the help they need.

Another benefit TLAP provides is the Sheeran-Cowley Trust, which serves both the substance-use and mental-health needs of Texas lawyers and is funded solely by the contributions of lawyers. The Trust provides financial aid to attorneys who need assistance to pay for treatment or other forms of help. Visit tlaphelps.org

for more information on this valuable program.

We are fortunate to have the exceedingly capable and wonderful-to-work-with Erica Grigg as our executive director of TLAP. She works tirelessly and travels the state to educate lawyers on what TLAP does and the services they provide to Texas lawyers. Erica is dedicated to attorney wellness and knows firsthand the effects of burn out. She candidly shared the immense impact TLAP has made on her: My involvement with TLAP saved my life. Making that call 13 years ago when I was in treatment for a substance-use disorder and major depressive disorder connected me to a network of attorneys who had been exactly where I was at that moment. Their willingness to share their own experiences and how they were able to reclaim their lives and law practices showed me it was possible to find hope again.

One of the highlights of Erica’s involvement with TLAP has been “to help create a suicide prevention video that has been watched almost 30,000 times by our attorney community.”1 Terry Bentley Hill, a Dallas criminal defense attorney, is the chair of the TLAP committee this year. She has been active in TLAP for many years and shares her compelling story with audiences all over the state: TLAP is more than a volunteer opportunity, it is personal. After I passed the Bar Exam, one of the first calls I made was to volunteer with TLAP. For years I watched my former husband, who was an exceptional attorney, succumb to the pressures of his job. After struggling with alcoholism for years, he took his life. He was isolated in his illness with nowhere to turn. A few years after his death, I attended an event where highly regarded attorneys talked about their sobriety and recovery and how TLAP changed their lives. I thought that if my former husband had known about TLAP and the support it provides struggling attorneys, perhaps things

would have turned out different for him. I volunteer because I want to provide that lifeline to lawyers who need understanding, compassion, information, and help.

Terry Bentley Hill often talks about the power of speaking out and how it can change lives one at a time. She believes that lawyers sharing personal stories of how they overcame difficulties with the help of others encourages other lawyers to seek help: When I speak on behalf of TLAP, I tell my story in a raw, honest, and transparent way. I talk about surviving suicide and share the lessons I have learned.

After one of my presentations, a woman approached and said, “Terry, my dad died when I was 15 years old, and I always told people he died of a heart attack. After hearing your story, for the first time in 45 years I shared that he died by suicide.” I often encourage people to share their story because their

story could be the key that unlocks someone else’s hell.

Another emerging area in lawyer wellness that TLAP is tackling is cognitive decline. According to Terry, this is one of TLAP’s big focuses, given the demographics of practicing attorneys in the state: TLAP and its excellent staff stay abreast of the full spectrum of mental health issues, including cognitive decline in our aging attorneys. Over 16,000 attorneys over the age of 65 are practicing law in Texas. TLAP formulated a plan of action to help lawyers who need help in this area, including professional referrals and assistance in closing a lawyer’s practice.

In addition, succession planning is a major part of current State Bar President Laura Gibson’s initiatives for her bar year.

As a committee member, I have had the opportunity to help mentor an overwhelmed lawyer back to functioning sta-

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tus. She was at a dark place where she did not see the light at the end of the tunnel.

We walked through it step-by-step and met on a regular basis for several months.

What she shared with me was that just by hearing my stories of what I went through so many years ago in my burnout period really helped her to not feel so alone. It gave her hope that she could turn things around with the support a mentor provides. It was great to see her get a handle on the situations in her life and begin to dig out of her problems proactively and in a healthy way.

Lawyers are human, just like everyone else. We have a great degree of responsibility to help our clients with a wide range of difficult and complex problems.

With all of that negative energy and pressure coming our way each day, we have to find healthy ways to disperse it, or it will take over inside of us and cause dysfunction and disease. Being mindful and aware of our own personal health is a big step in the right direction for each lawyer to begin to incorporate healthy practices into their daily lives. The dedicated staff at TLAP has lawyer wellness at the top of their list, and Texas lawyers are the beneficiaries. I encourage every lawyer to check out the TLAP website at tlaphelps.org for great programs on lawyer wellness and useful resources for lawyers struggling with mental health issues. And please feel free to contact me directly if you have any questions or want to know more.

Melanie Bragg is the owner of Bragg Law, P.C., a general civil firm in Houston. She focuses on mediation, arbitration, probate, guardianships, and small business legal advice and believes in the power of preventative legal practice. She can be reached at Melanie@bragglawpc.com.

Endnotes

1. Texas Lawyers’ Assistance Program, Just Ask: How We Must Stop Minding Our Own Business in the Legal World (Short Version), https://texasbarwo4m90g.vids.io/videos/4d9dd9b11b17ebc1c4/ final-short-version-tlap-suicide-prevention-video8-5-2021-1-mov (last visited Jan. 15, 2023).

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Law School Health & Wellness

How Law Schools Are Bringing Wellbeing to the Forefront of the Student Experience

L

aw schools are tasked with educating students about the rule of law before they ever set foot in a law firm or courtroom. But law schools also consider how to prepare students beyond the textbooks. How do you find and nurture mentorships? How do you maintain professionalism in your practice and treat opposing counsel with civility? And what are best practices to begin incorporating into your life that will help to ensure your health and wellbeing remains at the forefront of your career? To that last point, The Houston Lawyer editorial board explored how Houston area and Texas law schools are promoting student health and wellbeing.

University of Houston Law Center’s Focus on Wellness Creates a Supportive Learning Environment

M

By Anna Archer

emories of law school generally do not bring the nostalgic “glory days” type of reminiscing that most people experience when thinking about high school or college. Instead, lawyers are usually glad those days are behind them. Law school is stressful. In 2017, the National Task Force on Lawyer Well-Being found that while “students start law school with high life satisfaction,” within the first year they become “the most dissatisfied, demoralized, and depressed of any graduate student population.”1 A 2016 survey found high levels of alcohol use, anxiety, depression, and illegal drug use among law students, and also, unsurprisingly, found law students were reluctant to seek help for mental health issues.2 Law students are stressed, but they are also busy and do not want to take time away from studying to figure out how to deal with the stress. When law schools provide support to help law students

face law school stressors, they can make a significant difference to students who encounter, for the first time, an extremely stressful and competitive environment.

The University of Houston Law Center (UHLC or the Law Center) has taken student wellness to the next level through (1) a thoughtful design of the new Law Center building that considers student wellbeing; (2) wellness-focused programming during Mental Health Week and finals; (3) professors who are attuned to the students’ wellbeing and a special wellness class; and (4) a new Mental Health Fund established in 2022.3 The John M. O’Quinn Law Building made its debut in the fall semester of 2022. The building includes rooms that celebrate the diversity of UHLC, including an African American Heritage classroom, a Hispanic Heritage classroom, and a Women in the Law classroom. There are also rooms named after

trailblazing alumni like Justice Ruby Kless Sondock, the first woman to serve on the Texas Supreme Court during a regular term. These classrooms enable students to “have role models with whom they can identify.”4 The new Law Center also dedicates spaces to support student needs, including a medical privacy room, a lactation room, a meditation room, commuter showers, changing rooms, all-gender restrooms, and an active study/workout room.5 The building’s design also creates a sense of wellbeing with its light-filled, open design, which features a patio where students can relax and enjoy a fantastic view of the Houston skyline.

In addition to having the opportunity to study in a beautiful new building, UHLC students benefit from wellness-focused programming throughout the school year. During finals, the Law Center provides Finals Stress Reliever events like table massages. UHLC also hosts numerous events during Wellness Week, which typically falls around October 10—National Mental Health Day for law schools.6 This year, that programming included a catered lunch and dinner with a speaker from the Texas Lawyers’ Assistance Program, a lunch-hour meditation, snow cones, and a health fair that provided students with many different resources to support their mental health and wellness needs. Professor Lauren Simpson hosted one health fair table and “brought native grasses, bee and wasp charts, and live caterpillars to be viewed and held.”7 The final event of the week was a petting zoo, where students could hold a baby pig or a bearded dragon.8 While these are not typical law school activities, they can help take students’ minds off of the pressures of law school.9 Finally, UHLC has an outstanding group of professors who are not hesitant to lend a helping hand when students need additional mental health support.

According to Erin Dickson, UHLC’s Director of Student Advisement, the “faculty promote wellness initiatives and keep an open dialogue with their students about it, making sure they have access to the many other resources at the Law Center.”10 In addition to a supportive faculty, Professor Lonny Hoffman teaches a course called Well-Being in the Law, which “explores the challenges to wellbeing and happiness [faced by] law students and legal professionals and then examines possible paths to overcoming those challenges.”11 The Law Center is committed to making sure it has resources available to fit a wide variety of wellness and mental

health needs. The Law Center partners with the main campus for counseling and psychological services, student accessibility, health, and wellness; it partners with outside agencies such as AccessLex, the Texas Lawyers’ Assistance Program, Houston Volunteer Lawyers, and the American Bar Association’s Health and Wellness Committee for financial literacy and mental health resources; and it recently received a $50,000 gift to establish a Mental Health Fund.12 While resources like these alone cannot take away the stress of law school or guarantee the same type of life satisfaction to law students that they had when they started law school, when the resources are combined with supportive faculty, helpful programming, and a thoughtfully designed facility, the chances of having graduates who look back on their time at law school with warmth rather than distress is greatly improved. Most importantly, happy and healthy law students will likely result in happier and healthier lawyers.

Anna Archer is a 2006 graduate of UHLC. She works as a career law clerk for the Honorable Gray H. Miller, who is also a UHLC graduate. Anna is an associate editor on The Houston Lawyer editorial board, and she hosts Behind the Lines: The Houston Lawyer Podcast.

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Thurgood Marshall School of Law Student Wellness Effort:

Sustain Focus Through Balance

By Amy Li Ratra

W

hen we think about law school, the first word that comes to mind may be “lawyer” or “judge.” However, soon after 1L law students embark on their journeys to be lawyers or judges, the word hovering in their minds will probably be “stressful.” Law study is full of academic challenges that are vastly different from undergraduate study. The academic environment of law school includes intense academic rigor, reading assignments of hundreds of cases, statutes, and articles, grading curves, and demands of lawyering and critical thinking. In addition to academic challenges, TMSL has students may also encounter their established own personal challenges, such as financial difficulty, family cona support cerns, and health issues. Chalsystem to help lenge is value-neutral. It can be a stimulus of creativity, curiosity, students thrive or ambition for accomplishment. both academically It can also be a primer to generate stress. Excessive stress may cause and mentally. wellness issues that negatively imStudents are pact academic performance.

In keeping with the mission of embraced with a Thurgood Marshall School of Law wide range (TMSL) as part of a historically black university, TMSL places of counseling special emphasis on educating resources. TMSL’s African Americans and Hispanics, two traditionally underrepreStudent Services sented groups.13 Many of our stuOffice (SSO) dents expect to be the first in their has an open- immediate and extended families to become lawyers and have little door policy for to draw from when acclimating walk-in general themselves to the rigors of law school life. Therefore, it is vital for counseling.” a law school to provide an effective support system to help students adjust, overcome challenges, and avoid letting “stress” become “stressfulness.”

TMSL has established a support system to help students thrive both academically and mentally. Students are embraced with a wide range of counseling resources. TMSL’s Student Services Office (SSO) has an open-door policy for walk-in general counseling. For therapeutic counseling, students will be

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referred to the University Counseling Center (UCC) and the Texas Lawyers’ Assistance Program (TLAP). TMSL seamlessly provides accommodations for students with physical or mental disabilities through a joint effort with the law school’s SSO and the University’s Student Accessibility Services Office (SASO). University Student Health Services (SHS) provides students with high-quality healthcare and health-related advising.

TSML invites UCC, TLAP, SASO, and SHS to present during Thurgood Law’s 1L new student orientation week.

The ancient Greek philosopher Heraclitus has a well-known saying: “No man ever steps in the same river twice.” Nothing is permanent except change. For example, the COVID-19 pandemic changed how we view and manage health challenges.

From our COVID-related knowledge, we better understand the importance of good physical and mental health in everyday life and the importance of preventive and proactive care in facilitating wellbeing. Inspired by this, the SSO will launch new wellness initiatives to proactively foster a culture of student wellbeing. First, the SSO plans to conduct a student wellness climate survey to have a clearer picture of current student wellness. Second, the SSO webpage will be updated with wellness resources information to increase information visibility and access efficiency. Third, we will organize wellness education events, such as a wellness week or mental health lectures. Increasing mental health knowledge can serve as a preventative measure to control stress and maintain mental health. Therefore, these events will focus on common causes and remedies for mental health issues, including academic-related stress, poor financial management of budgets and loans, family emergencies, illness, quality of “rest” during winter and summer breaks, and how to build some margin of calmness and tranquility into a busy life.

At TMSL, one goal of wellness is to guide our students to manage stress at the right amount and right level that can generate self-motivation but not lead to health concerns. Through our wellness initiatives, we hope to equip students with the knowledge to not only push through their challenging law school journeys, but also to push forward to their futures in the challenging yet rewarding legal profession.

Amy Li Ratra is the associate dean for student services and instructional support at Thurgood Marshall School of Law and an international administrator with over 20 years of experience in higher education. She has an LL.M. with Commendation in International Law from the University of Aberdeen.

Thriving at Baylor Law School and in the Profession:

Finding Harmony

By Stephen L. Rispoli

Forget balance, find harmony. Lady Justice has a set of scales, and we advocate every day to ensure those scales remain fair and balanced for our clients. It makes perfect sense that we might also seek balance in our personal and professional lives.

But, in that regard, balance is misleading. It implies that we should have a formula for allocating equal time to work, family, friends, and other personal activities. That thought alone creates a heightened sense of anxiety. Instead, find ways to integrate different parts of your life to reduce the stress of juggling all the activities simultaneously. In music, harmony is described as the art of combining different pitches into cords.

Still, a harmony doesn’t have to be “harmonious.” Harmonization occurs when there is a blending of “tense” and “relaxed” moments.

Victor Flores14

portance of healthy eating and physical exercise, maintaining mental health, and practicing gratitude. Other quarterly events include dog park socials, support during finals, and a mentorship program for our Practice Court students. We also participate in national awareness initiatives, such as wellness week and suicide awareness and prevention week. (The law school also recently received a grant from the Texas Bar Foundation to help fund several of these activities this past year.) In addition, we include a “Weekly Wellness” message in the weekly “Student Announcements” email that is sent to every student each Monday. These experiences culminate in our third-year, required Practice Court program, where the skills of grit,17 growth mindset,18 and resilience19 are all discussed as the keys to success in the practice of law and managing physical and mental wellbeing.

Baylor Law also offers several services to assist he practice of law can be stressful. The presstudents with developing these skills or handling sure can come in many forms. Whether it is a crisis. Our students have access to the Baylor demanding clients, imminent trials, or agWe want Counseling Center20 and the Baylor Health Center21 gressive negotiations, these high-intensity every student to monitor and maintain their mental and physical situations all call us to be at the top of our game. health. Through the Baylor FitWell program,22 stuto leave Baylor dents can participate in a wide variety of exercise That stress can have a profound impact on our mental and physical wellbeing. By not learning healthy Law with a classes, work with personal trainers, and engage ways to deal with the stress of the practice of law, with nutritional consultants. Students experienctoolkit of skills ing a crisis have 24/7 access to a mental healthcare we are not serving our clients, or ourselves, well.

The research tells us that after the basic needs that will serve professional with the Baylor Telehealth program.23 of food and shelter are met, wellness emerges from them well in Also available is the Baylor Care Team, which is a nourishing six dimensions of your health: physical, group of experts solely dedicated to making sure the future.” emotional, intellectual, social, spiritual, and occuthat students get the care and help that they need.24 pational.15 Trying to balance all of these facets of health The Baylor Law faculty and staff are also actively can seem daunting. However, with intention and routine, lawengaged with students, reminding and reinforcing these mesyers can learn how to harmonize all aspects of our life. sages.

At Baylor Law, we hope to help students learn to find their “Work-life balance” is often referred to as “impossible” for own harmony while in law school. We know that the practice lawyers. But we do not believe that is necessarily true. While of law will bring unique challenges for every graduate, but we “work-life balance” may not be a daily occurrence, “work-life want them to learn how to handle the pressure and face those harmony” can occur over time. It is our goal that we give our challenges in healthy ways before graduation. We want every graduates the skills to enter the profession seeking harmony in student to leave Baylor Law with a toolkit of skills that will their personal and professional lives. serve them well in the future.

Building that toolkit starts at our 1L orientation, where we Stephen L. Rispoli, underscore the importance of wellness and wellbeing. Those Baylor Law J.D. ‘12, messages are reinforced with quarterly presentations about Texas Law LL.M. ‘18, wellness in our Professional Development Program.16 In these is the assistant dean of presentations, we discuss the statistics about mental health and student affairs and strategic substance abuse in the profession, but we also discuss healthy initiatives at Baylor Law mechanisms for handling pressure and stress, such as the imSchool.

T

‘‘

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A

The University of Texas School of Law Invests in Wellness

By Christopher Sokol

full-time mental health professional, therapy dogs, massage chairs, cardio dance, a visit from the Texas Lawyers’ Assistance Program (TLAP), yoga in the courtroom, gratitude cards, a petting zoo, intramural sports, healthy snacks, a wellness room, and a magically self-filling bowl of candy.

If this doesn’t sound like your law school experience, it’s because it’s not. It’s the robust list of offerings from the University of Texas School of Law (Texas Law). With stress levels at an all-time high, Texas Law has invested time and resources into helping students learn not only the law, but how to live a healthy, balanced life.

Our goal is that students leave Texas Law equipped for whatever comes next, and while petting a hedgehog or learning a dance routine to Cardi B might not be the traditional approach, we want to

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make sure our students take breaks to combine their studies with healthy stress relief techniques.

Christopher Sokol is the assistant director of student affairs at the University of Texas School of Law. Endnotes

1. AM. BAR ASSN, SUBSTANCE USE AND MENTAL HEALTH TOOLKIT FOR LAW SCHOOL STUDENTS AND THOSE WHO CARE ABOUT THEM 8 (3d ed. 2020), https:// docs.google.com/document/d/1Q-2gorCHI4HhwBzihKJI4KR79d0e-AdHicUuX5xXKTo/ edit. The task force is a collaboration of the ABA Law Student Division and the ABA Commission on Lawyer Assistance Programs. Id. 2. Id. (citing the 2016 Survey of Law Student Well-Being).

3. Many thanks to Sondra Tennessee, UHLC’s Associate Dean of Alumni and Community Relations, for providing a tour of the new building; Carrie A. Criado, UHLC’s Assistant Dean, Communications and Marketing, for providing information about the amenities available in the new building; and Erin Dickson, UHLC’s Director of Student Advisement, for answering questions about wellness initiatives and programming at UHLC. 4. Email from Carrie Criado, Ass’t Dean, Commc’ns & Mktg., Univ. Hous. L. Ctr., to Anna Archer (Nov. 21, 2022) (on file with author).

5. Id. 6. See UH Law Center Hosts Annual Mental Health Week to Encourage Student Wellness, UNIV. HOUS. L. CTR. (Oct. 22, 2019), https://www.law.uh.edu/news/fall2019/1022Mental.asp.

7. Email from Erin Dickson, Dir. Student Advisement, Univ. Hous. L. Ctr., to Anna Archer (Dec. 6, 2022) (on file with author).

8. Id. 9. E.g., Melanie Greaver Cordova, Spending Time in Nature Reduces Stress, Research Finds, CORNELL CHRON. (Feb. 25, 2020), https://news.cornell.edu/stories/2020/02/spendingtime-nature-reduces-stress-research-finds (noting research that “found that as little as 10 minutes in a natural setting can help college students feel happier and lessen the effects of both physical and mental stress”).

10. Email from Erin Dickson, supra note 7.

11. Id. More information about Professor Hoffman’s wellness initiatives and a short mindfulness activity is available for Houston lawyers on the September/October episode of Behind the Lines: The Houston Lawyer Podcast.

12. Id. 13. Admissions, T. MARSHALL SCH. L., http://www.tsulaw.edu/admissions/index.html (last visited Jan. 12, 2023).

14. Victor A. Flores, Officer, I Wasn’t Going That Fast, 82 TEX. B. J. 638 (2019). Victor Flores served in the Marine Corps, is an Iraq War veteran, practices government law in Plano, Texas, and served as the 2019−2020 Texas Young Lawyers Association President.

15. See NWI’s Six Dimensions of Wellness, NAT. WELLNESS INST., https://nationalwellness.org/ resources/six-dimensions-of-wellness/ (last visited Feb. 6, 2023).

16. Professional Development Program, BAYLOR UNIV., https://www.baylor.edu/law/currentstudents/index.php?id=933502 (last visited Jan. 12, 2023).

17. ANGELA DUCKWORTH, GRIT: THE POWER OF PASSION AND PERSEVERANCE (Scribner 2018) (2016).

18. CAROL DWECK, MINDSET: THE NEW PSYCHOLOGY OF SUCCESS (2006).

19. Larry Richards, Building Lawyer Resilience, LAWYER BRAIN, http://www.lawyerbrain. com/our-services/building-lawyer-resilience (last visited Feb. 6, 2023).

20. Baylor Counseling Center, BAYLOR UNIV., https://www.baylor.edu/counseling_center/ (last visited Jan. 12, 2023).

21. Baylor Health Services, BAYLOR UNIV., https://www.baylor.edu/healthservices/index.php (last visited Jan. 12, 2023).

22. FitWell, BAYLOR UNIV., https://www.baylor.edu/wellness/index.php?id=929285 (last visited Jan. 12, 2023).

23. Baylor Telehealth by AcademicLiveCare, BAYLOR UNIV., https://baylor.academiclivecare. com/ (last visited Jan. 12, 2023).

24. Care Team, BAYLOR UNIV., https://shw.web.baylor.edu/our-partners/care-team (last visited Jan. 12, 2023).

By Jonny Havens

Small Law, Big Time:

Maintaining Wellness and Balance as a Small Firm Lawyer

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he demands on a small firm lawyer’s time never stop. In addition to legal work, the small firm lawyer can be expected to spend time on any number of non-legal, firm-related tasks: bookkeeping, human resources, information technology, marketing, intake, business strategy, and taking out the trash (to name a few). Imbalance can result if the small firm lawyer does not make time for a life outside the law firm. When imbalance occurs, a person’s wellness suffers.

To restore balance in my life, I return to the basics. I develop my body. I nurture my soul. And I nourish relationships with family and friends. After those basic tasks are addressed, I use the remaining time to meet the demands of my law firm successfully and much more contentedly.

I develop my body by doing CrossFit at a local gym. I start most days with the 5:30 a.m. class and enjoy the challenge of strength training and conditioning. Any stress, workrelated or otherwise, bleeds away, and I am ready to tackle the challenges of the day. An unexpected benefit of this regular workout routine is the relationships developed with the coaches and other members of the gym.

It’s like a healthier version of the old sitcom, Cheers, where everyone knows my name.

I nurture my soul through staying active in my faith. Workday problems and stressors are put in their proper perspective when viewed through this spiritual lens. When I nurture my soul, it positively impacts not just me but those around me. My wife and

I coordinate our church’s marriage preparation class for engaged couples and have done so for many years. It is a one-day retreat where married couples share their experiences with a group of engaged couples on topics like communication, finance, parenting, and more. Anonymous surveys of the engaged couples (including some members of The Houston Lawyer editorial board!) show the retreats have a positive impact on the couples’ preparation for marriage. More surprising was the positive impact teaching this course has on my own marriage. As my wife and I prepare for a topic, we share stories about our relationship that we otherwise might have never told each other. This deepened connection to my wife would be lost had I stayed at the office one or two more hours, instead of nurturing my soul by living out my faith.

I nourish my relationship with family.

My family and I try to have a meal without phones together every day. These regular touchpoints regularly and happily remind me that there is more to life than the law.

With three teenage girls, I also experience ancillary benefits, such as expanding my vocabulary with new phrases, including “living rent-free in my mind” (which has nothing to do with landlord/tenant law). If I only gave time to the law, my relationships would suffer, and my vocabulary would be smaller.

While my legal work is important, it is only one part of my life. I must give time to my body, soul, and relationships to live a full life. When my time is aligned properly, I come to work in the morning eager to tackle my legal (and non-legal) work and leave in the evening content with my use (and enjoyment) of my most precious resource.

Jonny Havens is the founding member of Havens & Associates, PLLC, a law firm representing personal injury and wrongful death plaintiffs. When not in the courtroom, Jonny enjoys spending time with his family, volunteering at St. Anne Catholic Community, and serving in the U.S. Army Reserves.

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Recovery Stories

For this month’s wellness issue, The Houston Lawyer talked with four members of the bench about their personal stories of wellness. What follows are these synopses of rededication to wellness, recovery, reset, and recalibration. By Andrew Pearce The Honorable Beau A. Miller is the presiding judge of the 190th Judicial District Court, Harris County, Texas.

Judge Steven E. Kirkland served as judge of the 334th Civil District Court from 2016 to 2020, the 215th Civil District Court from 2009 to 2012, and in Houston Municipal Courts from 2001 to 2008. Judge Kirkland is currently city attorney for Nacogdoches, Texas, and regularly handles mediations and arbitrations.

The Honorable Mike Engelhart is the presiding judge of the 151st Judicial District Court, Harris County, Texas.

The Honorable Lauren Reeder is the presiding judge of the 234th Judicial District Court, Harris County, Texas.

Judge Beau A. Miller:

J

A Story of Rededication

udge Miller’s focus on health—both mental and physical—began in high school.

But Judge Miller’s story is not one of a constant, unwavering commitment to fitness that he has successfully maintained. Instead, it is a story of committing and recommitting to health and fitness as many times as it takes. In doing so, Judge Miller found motivation and purpose while also being of service to, and unquestionably serving as a role model for, countless others.

As a junior in high school, Judge Miller suffered from ulcerative colitis, a chronic disease that causes inflammation in the digestive tract.

He treated the condition by eating healthy and exercising. And, when the condition reemerged in college, primarily triggered by stress, Judge Miller treated it again by running and working out.

In 2006, Judge Miller was confronted by something entirely different. He was diagnosed with HIV, which he contracted from a longtime partner who never shared his condition. He initially disregarded his health altogether, culminating in a diagnosis of AIDS in 2009. Judge Miller now found himself dealing with the external stigma of AIDS and, maybe more importantly, with a profound internal stigma and range of emotions.

Something had to give. He realized that others may be confronting the same, or similar, experi-

ences. In 2010, Judge Miller created LIVE Consortium to provide HIV and anti-stigma education, support, research, and advocacy. LIVE’s purpose is to provide all people, regardless of status, with the opportunity to live healthy and full lives.

Dealing with, and overcoming, those internal and external stigmas began with Judge Miller publicly telling his story to almost 200 individuals at a LIVE event. Although he was “hugely anxious” before the inaugural event, Judge Miller was met with love and acceptance afterward. Several others also participated by telling their stories during later events.

During COVID, Judge Miller rededicated himself to fitness, as well as to weekly meal preparation and early morning workouts, and he found “fitness friends” to provide him with comradery and accountability. Likewise, he collaborated with a professional trainer who guides, teaches, and assists him and provides a measure of accountability and a commitment to form. For Judge Miller, the key is maintaining a schedule and setting goals.

Through it all, Judge Miller’s commitment to good health has positively impacted his mental and physical wellbeing and has also touched and inspired countless people with his story of courage and service to others.

JUdge Steven E. Kirkland:

A

A Story of Recovery

lthough his family had a history of alcoholism, Judge Kirkland did not appreciate his potential predisposition to it. Instead, he found himself floundering in college as he became a “fairly functioning” alcoholic while at Rice University. His grades suffered significantly. Thankfully, a group of professors helped him through, and he successfully obtained a Bachelor of Arts degree as the first in his family to graduate from college.

Judge Kirkland continued to struggle in his twenties, feeling shame about his drinking, then drinking more to suppress the shame. And while it may have been evident to others that he had a problem, he didn’t recognize it for himself for some time. Eventually, he got sober. And two years after getting sober, at the age of 26, Judge Kirkland considered attending law school. He had a great LSAT score but a terrible GPA, and it was one of his Rice professors who once again stepped in to help—this time by writing a letter of recommendation.

Although Judge Kirkland had problems with evictions and lost jobs in his younger years, all the stability pieces were now in place following years of developing healthier habits and patterns without alcohol. Judge Kirkland successfully obtained his Juris Doctorate from the University of Houston Law Center while working his

way through law school as a paralegal at Texaco.

Judge Kirkland also began attending 12-step meetings and dealing with the “rigorous honesty” those meetings required as a gay man in alcohol recovery seeking to live life credibly.

In the mid-2000s, Judge Kirkland developed and implemented Houston’s Homeless Recovery Court. He never shied away from telling his story. And when an opponent later sought to use his history of alcoholism against him during a political campaign, Judge Kirkland chose to address the issue head-on and make it a more prominent part of his public persona. What followed were Judge Kirkland’s annual messages, which he used as an opportunity to encourage recovery to others, and a very open and honest “Addiction & Recovery” page on his website at judgestevenkirkland. com—a message that remains on his website to this day.

Ultimately, recovery did not mean all of Judge Kirkland’s problems suddenly disappeared. Instead, recovery provided him with the tools necessary to manage his problems. And now, when others talk to him about the difference his story has made in their lives, it is powerful feedback that helps him stay committed to sobriety.

While it was never his intent to lead by example or provide a path to others, by opening himself to these wellness conversations, he has done just that.

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Judge Mike Engelhart:

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A Story of Recalibration

‘‘

At first, Judge Engelhart gave himself two weeks to see what, udge Engelhart worked out sporadically over the years— if anything, might begin to change by counting running was his exercise of choice—and he calories. When he saw the changes that two weeks had also worked with a trainer at times. But, brought, he became increasingly motivated to stick beginning in 2018, he found himself weighwith his plan. ing more than 300 pounds and dealing with sleep Judge Engelhart Now, four years later, Judge Engelhart has successapnea, high blood pressure, high cholesterol, and arthritis in his hip. He decided it was time for a began making fully lost 125 pounds and kept it off. Along with that change, his self-confidence has improved. Gone are lifestyle change. He knew he had a lot to live for— changes, startthe days disliking seeing himself in photos and the a wonderful wife, two teenage sons, and a great ing with his diet. difficulty in finding clothes he likes. career.

So, Judge Engelhart began making changes, He bought a food But even more valuable is the fact that Judge Engelhart is off the medications he had previously needed starting with his diet. He bought a food scale and scale and began to treat his high blood pressure and cholesterol. His began weighing all of his food. He now owns two food scales—one at home, and the other on the weighing all of resting heart rate is in the mid-40s, and he no longer a CPAP machine. corner of his office desk. He also counts calories, his food. He now needs Although difficult at first, the habits became more limiting himself to 1,900 per day, and regularly owns two food routine as Judge Engelhart experienced a mindset tracks all his meals using a phone app.

Throughout the process, Judge Engelhart rescales—one at shift about food. And while he routinely eats the same meals for breakfast and lunch and does not schedule alized the need to become educated about diet, home, and the planned cheat days, he does allow himself to splurge finding the foods and snacks that best served his goals. For example, when he reduced his red meat other on the occasionally, most often at dinner. But now he stops intake, he found he had become iron deficient, so corner of his eating after a slice or two rather than eating the whole pizza. The key is moderation. He also knows that if he he found sources of iron that he could incorporate office desk.” ever strays for too long, he has the tools and knowlinto his diet. He also found low-calorie snacks that edge to make the necessary changes to get back on were tasty and filling. The same was true for finding track. The plan is to put in the hard work to continue enjoying desserts that could satisfy a sweet-tooth craving without putall the gifts he’s been given. ting a dent in his diet plan.

Judge Lauren Reeder:

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A Story of Reset

udge Reeder’s legal career began as a commercial litigator at both a large firm and a specialized litigation boutique, then as an assistant district attorney in Harris County, and currently as the presiding judge of the 234th District Court.

Seeing how many women with young children tried to keep their personal and professional lives separate, Judge Reeder sought to do the opposite. She brings her young children to the courthouse and encourages others to do the same in an effort to normalize the shifting meaning of—and the relationship between—work life and family life. In doing so, Judge Reeder has wanted to be very open about her struggles to manage both.

More recently, a new opportunity to lead by example presented itself. In November, Judge Reeder was coming off of a successful 22

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reelection campaign, her husband had opened a litigation boutique with three other attorneys, and she and her husband had recently welcomed the birth of their second child. And, like all of us, she was coming out of the COVID pandemic.

In the midst of it all, Judge Reeder knew something was “off.”

More specifically, she felt it was becoming increasingly essential to carve out time and space for herself. She realized that when you have depleted your tank, you are not a bad spouse, parent, colleague, or friend for wanting (and needing) to take time for selfcare. In fact, taking the opportunity to focus on yourself and, in doing so, becoming more present and giving more grace to yourself and others, is how you can improve in each of those roles.

Likewise, Judge Reeder knew a break was not a sign of laziness, selfishness, or weakness —which can so often be the feelings that

people struggle with when needing a break while also not knowing how to ask for one.

Instead, prioritizing self-care was a continuation of the changes that Judge Reeder had sought to exemplify when she took the bench.

So, Judge Reeder spent five days, by herself, at a retreat in Arizona, where she left her devices behind and “curated a time of reading, writing, hiking, equine experiences, meditation, creating, and mostly just practicing listening” to her intuition instead of checking off to-dos. She has also made changes since returning home—she deleted social media from her phone and has become mindful of maintaining a healthy distance from electronic devices. Judge Reeder readily acknowledged this opportunity came from a place of privilege. Still, her hope is that everyone can find ways to carve out space to find their own stillness, mindfulness, and self-care.

Like before, Judge Reeder is leading by example. Shortly before leaving for Arizona, Judge Reeder posted about her upcoming trip on Facebook. That post received more likes than anything she had previously posted. The takeaways seem clear: first, friends and family will offer their unconditional support when loved ones seek self-care; and second, people are eager to express their appreciation for those who are open and visible about seeking self-care because a great first step toward taking better care of ourselves is the realization that we are not alone in needing to do so.

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By Anietie Akpan

Dark Roots:

Detangling the Nexus Between Black Haircare, Public Health, and Clean Beauty Equity

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I. Introduction n October 21, 2022, St. Louis resident Jennifer Mitchell filed a mass tort lawsuit in federal court against L’Oreal USA Inc. for the development, marketing, and sale of their chemical hair straightening products, alleging that the use of these products over many years resulted in her diagnosis of uterine cancer in 2018.1 She has asked the court to order L’Oreal to pay compensatory and economic damages for the company’s “complete disregard and reckless indifference for the safety and welfare of the general public.”2 In her complaint, she asserts that L’Oreal “knew or should have known” that the use of toxic chemicals in its products significantly increases health risks, including, but not limited to, the risk of cancer.3 This suit comes on the heels of a recent National Institutes of Health (NIH) study that not only links the chemicals

in hair relaxer products to uterine cancer, but also finds that frequent use of chemical hair straightening products doubles the risk of developing these conditions among women who used these products compared with those who did not.4 This finding is particularly alarming for Black women, who report using chemical hair straightening products at an exponentially higher rate than other populations.5 A hair relaxer is a cream that straightens hair by opening the hair cuticle and penetrating the cortex layers of the hair shaft to loosen the natural curl pattern.

Depending on the hair’s growth rate, women usually get relaxer “touch-ups” every six to 10 weeks, thereby creating a beauty regimen that for some may be practiced for decades. In decoding the layered (pardon the hairstyle pun) history of Black haircare over the past century, chemical relaxers have played an integral, and at times, antagonizing, role in how Black womanhood is experienced, expressed, and viewed by other communities.

The discourse about the use of chemical relaxers is often accompanied by discussions of conforming with Eurocentric standards of beauty (which in itself is rooted in racist binaries of desirability and femininity), as well as social pressures of outward appearances in “certain” workplace settings. For many Black women, however, relaxing our hair is not meant to make a political (or non-political) statement, but simply to make our hair more manageable and less time-consuming to style.

But the politicization, legislation6 (and now, litigation) of Black hair cannot be escaped. Increased discussions of self-care and self-acceptance in the last decade or so have resulted in the use of chemical relaxers dipping significantly in recent years.7 This recent L’Oreal suit, however, has sparked a very important discussion not only about how the past long-term use of these products disproportionately impacts Black women’s health, but also highlights the void in American jurisprudence about the lack of inclusive protections regarding consumer health and wellness.

II. Examining Chemical Exposure Disparities Through an Environmental (and Social) Lens Health effects from chemical exposure is fundamentally an environmental issue. The environmental injustice of beauty emphasizes how intersectional systems of oppression and social factors have influenced racialized beauty practices, which has led to unequal chemical exposures among different populations.

To understand how social and environmental factors jointly influence health disparities caused by cosmetic use, we first evaluate the social and economic dimensions of product use. African American women purchase nine times more beauty products than other groups and disproportionately purchase hair relaxers and straighteners.8 Sociocultural factors, such as colorism and texturism, can often influence product use, which has also led to toxic chemical exposure inequities among Black women compared with other communities.

Other drivers of product use differences include place-based determinants (the types of products sold in the purchaser’s neighborhood),9 occupational determinants (exposure to toxic products in the workplace), and cultural determinants (how beauty standards affect which products the purchaser uses).

Secondly, it is important to examine these health disparities within an environmental framework, which requires looking at preexisting institutional vulnerabilities Black women face compared to other groups. One well described example is environmental racism, the disparate impact of environmental hazards and industrial pollution on people of color. This is prominently exemplified by the construction of invasive pipelines, refineries, and landfills, all of which occur notably in African American neighborhoods.10 As expected, these environmental burdens have been tied to a litany of negative health outcomes for residents, including birth defects and cardiovascular disorders. These systemic, harmful environmental factors already disproportionately impact communities of color—but coupling this place-based pollution with elevated

beauty product use further highlights the differential vulnerability to health exposures between Black women and other women. In sum, evaluating social factors that may influence beauty product use against cooccurring environmental exposures is imperative to understanding how devasting health outcomes of women like Ms. Mitchell, the woman suing L’Oreal, have come to be.

One of the primary tenets of environmental justice is toxic equity, a problem that has been perennially enmeshed in the beauty industry. This is illustrated by a number of factors, including the regulatory void on safe beauty products used by Black women, environmental risk factors that disproportionately impact Black women and compound adverse health outcomes (as described above), but primarily—as is the focus of this article—on the haircare and beauty products commonly used by, and marketed to, Black women, notably, chemical relaxers, which are often introduced to us during our formative childhood years.

III. (Lack of) Federal Cosmetic Oversight of Chemical Relaxers Garrett Augustus Morgan, an African American tailor, made a chance discovery in 1909 when he found that an alkaline-based chemical used to polish his machine needles also caused the straightening of hair. From this discovery, he patented the first chemical hair straightener, launching “G.A. Morgan Hair Refining Cream,” which was marketed to African American consumers, and would have a transformative impact on Black haircare over the next century.11 After the introduction of chemical relaxers in the early 20th century, the late 1960s and 1970s ushered in a natural haircare movement—contemporaneous with the emergence of the Black Power movement—in which Afros, braids, and locs were sported as powerful political symbols against anti-Black racism. Jheri curls were popularized in the 1980s, and the 1990s introduced the first chemical relaxer product marketed for young Black girls called Just for Me™, resulting in a substantial increase of relaxer

use among youth. Getting your first relaxer thereby became a rite of passage in Gen X and Millennial Black girlhood for many of us (including myself), and subsequently became imbedded in our personal care routine for years.

The late 2000s generated a new natural haircare movement through community-based social media platforms and blogs. However, here we are in the early 2020s, now being confronted with the deleterious risks of the continuing use of chemical hair relaxers, which have been supported by a litany of scientific studies and grassroots-based investigations.

As abovementioned, the NIH’s findings were used to support Ms. Mitchell’s L’Oreal complaint. The NIH conducted an 11-year study of 33,497 women, ages 35–74, to identify risk factors for uterine cancer, breast cancer, and other health conditions associated with their longterm use of chemical hair straightening products. During the course of their study, 378 uterine cancer cases were diagnosed.12 Moreover, NIH researchers had also identified links between chemical straighteners and increased risk of ovarian and breast cancers,13 endocrine disruption, asthma,14 and alopecia.15 This clearly illustrates that the use of relaxer is a paramount issue of public health for Black women. It also speaks to a broader concern of the lack of regulatory and legislative protections for Black women within the consumer health space.

It is important to note that government regulation of the cosmetics industry is bare-boned. The most prominent statute is the Federal Food, Drug, and Cosmetic Act (FDCA), introduced by the Food & Drug Administration in 1938, which in part regulates “adulterated” or “misbranded” cosmetics. An “adulterated” cosmetic is one that contains any harmful substance which may be injurious to a user under the conditions of use prescribed in the labeling; moreover, a cosmetic would be deemed “misbranded” if its label is false or misleading, including but not limited to, the name and place of the cosmetic manufacturer and the quantity of contents in terms of weight or measure.16 This statute sounds pro-

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tective on its face, but it fails to address the regulation of chemicals used specifically in hair relaxers and straighteners.

Another consumer safety statute, the Fair Packaging and Labeling Act (FPLA), which requires all “consumer commodities” (i.e., “personal use” cosmetics) to include ingredient declaration on its labels, would seemingly offer a solution.17 The caveat, however, is that the FPLA does not require the listing of individual fragrances on its labels. This means that potentially cancer-causing ingredients in chemical relaxers would not be listed on a label if they are combined with a fragrance (compounding this problem, most hair relaxers include “fragrance” or phthalates, as a primary ingredient).

The lack of regulatory oversight of chemical relaxers has also generated discourse about the marketing and inclusivity practices of “clean beauty,” a term used to describe cosmetics and skincare products that are free from harmful chemicals. Over the past few years, “clean” beauty has substantially grown more popular, marketing skincare and beauty products with descriptors such as, “eco-friendly,” “sustainably sourced,” and “plant-derived.” Though the intent of the clean beauty movement may seem admirable on the surface, it is incredibly non-inclusive as it fails to market to women of color. It is often promoted (and experienced) through the prism of White, affluent female “influencer” culture, even though women of color, namely Black women, bear the brunt of toxic exposure in beauty products. The “Goopification” of beauty and wellness over the years has greatly exacerbated these marketing disparities, failing to address the needs of diverse populations or ensure that clean products are affordable and accessible to every customer, regardless of race.

Furthermore, there is little to no regulation on clean beauty consumerism, including lack of a definitive definition of what “clean” beauty even is. This is because “clean beauty” is fundamentally a marketing term, and there’s no legal definition for “clean,” “natural,” or “green” beauty products (though the lack of an objective definition has resulted in its 26

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own fair share of lawsuits).18 Ultimately, the marketing disparity of clean beauty alternatives, as well as the disparity in which neighborhoods where these products are placed, operate in concert to perpetuate toxic inequities among women of color, immigrant women, and women who are economicallydisadvantaged.19 IV. What Comes Next?

There has been no major federal law passed governing the cosmetics industry since the FDCA was first introduced in 1938. Fortunately, there has been growing awareness among lawmakers and corporate leaders of the racialized health outcomes from exposure to harmful chemicals in beauty products.

In response to these inequities, the U.S. Congress introduced a suite of bills in its last legislative session, dubbed the “Safer Beauty Bill Package,” whose objective is to modernize cosmetic oversight of beauty and personal care products, proposing the following significant changes to the FDCA: • Toxic-Free Beauty Act would prohibit the use of 11 hazardous chemicals from beauty and personal care products sold in the U.S., including formaldehyde, paraformaldehyde, and methylene glycol, which are found in hair straightening products.20 • Cosmetic Fragrance and Flavor Right to Know Act of 2021 would require the disclosure of these secret, unlabeled, and often toxic chemicals in our personal care products (this is already required in California), remedying the gap of its legislative grandfather, the FPLA, which does not require the listing of individual fragrances on labels.21 • Cosmetic Supply Chain Transparency Act would require upstream suppliers to provide ingredient disclosures and safety data to cosmetic companies so they can make safer beauty and personal care products.22 • Cosmetic Safety Protections for Communities of Color and Salon Workers Act would defend the

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health of beauty industry workers (which are predominantly women of color and immigrant women) who disproportionately face occupational health hazards from chemicals in professional cosmetic products and workplace safety standards. This bill, in part, would federally mandate full salon product ingredient disclosure and fund development of green chemistry safer alternatives.23 Though none of these bills have been signed by President Biden as of yet, their introductions demonstrate a long overdue response by our lawmakers to strengthen cosmetic oversight of personal care products that disparately impact the health of Black women.

Putting an end to this toxic reality for Black women requires several important changes: first, brands and retailers must put racial equity as a primary tenet in their clean beauty efforts; second, legislation introduced in 2021–2022 to expand inclusive consumer health and safety protections must garner more robust support for President Biden to sign it; third, the environmental and pollution-based infrastructural issues that compound health disparities among Black women must also be addressed by legislative and public policy leaders; fourth, health professionals should increase their study of beauty product use, specifically its inexplicable link to chemical exposures, and promote policies that include improved ingredient testing and disclosure; and fifth, there must be increased diversity in manufacturing and ownership of beauty retailers.

Within the framework of self-esteem and mental health, haircare is an integral part of wellness, especially for Black women. Our hair defines our cultural identity and allows for self-expression.

But in the example of Ms. Mitchell, who has bravely come forward with her suit, our hair has also served as a linchpin of much-needed changes to beauty consumer protections.

The pandemic seismically changed discussions about wellness, emphasiz-

ing the importance of practicing good self-stewardship not only for our benefits, but also for those we care about. For wellness, however, to be fully holistic, dimensions of wellness should go beyond the broad lens of “lifestyle” choices—it must also include evaluations of how our environment, institutions of oppression, and public policy play a role in Wellness (capitalization intentional) being equitably accessible.

Anietie Akpan is immediate past editor in chief of The Houston Lawyer.

Endnotes

1. Compl. at 47, Mitchell v. L’Oreal USA, Inc. (N.D. Ill. 2022) (No. 1:22-cv05815). Several other women who have been diagnosed with uterine cancer have also filed suit against cosmetic companies, alleging these devasting health outcomes resulted from long-term use of the companies’ chemical relaxer products. E.g., Gamble v. Strength of Nature Global, LLC (S.D. Ga. 2022) (No. 4:22-cv-00256); Sanders v. L’Oreal USA, Inc. (N.D. Ill. 2022) (No. 1:2022cv07227); Brownlee v. L’Óreal USA, Inc. (W.D. Ohio 2022) (3:22-cv-336). With hair relaxer lawsuits on the rise, the Judicial Panel on Multidistrict Litigation heard oral arguments on January 23, 2023 to determine if these suits – including Ms. Mitchell’s – should be consolidated into a new class action MDL. Notice of Hearing Session, Case MDL No. 2566 (filed Dec. 16, 2022).

2. Compl. at 75, Mitchell v. L’Oreal USA, Inc. (N.D. Ill. 2022) (No. 1:22-cv05815).

3. Id. at 46.

4. News Release, Nat’l Inst. of Health, Hair Straightening Chemicals Associated with Higher Uterine Cancer Risk (Oct. 17, 2022) (on file with author).

5. Becky Sullivan, Hair Straightening Chemicals May Increase Women’s Risk of Uterine Cancer, Study Finds, NPR (Oct. 19, 2022, 5:01 AM), https://www. npr.org/2022/10/19/1129764003/hair-straightening-chemicals-may-increase-womens-risk-of-uterine-cancer-study-fi.

6. E.g., The CROWN Act, S.B. 188, 2019 – 2020 Leg. Sess. (Cal. 2019) (historic law which prohibits discrimination based on hair style and hair texture); see also CROWN Act of 2022, H.R. 2116, 117th Cong. (2021) (proposed bill which would federalize the California CROWN Act).

7. See Relaxer Sales Fall but Black Haircare Market is Booming, Thanks to Natural Hair Movement, FASHION NETWORK (Sept. 20, 2017), https:// ww.fashionnetwork.com/news/Relaxer-sales-fall-but-black-haircare-market-is-booming-thanks-to-natural-hair-movement,870603.html (highlighting consumer study which found that relaxer sales dropped 36.6% between 2012 and 2017).

8. Maia Hoskin, How ‘Inclusive’ Beauty Leaves Black Women Wanting, HEALTHLINE (May 20, 2020), https://www.healthline.com/health/howinclusive-beauty-leaves-black-women-wanting; see News Release, Nat’l Inst. of Health, Hair Straightening Chemicals Associated with Higher Uterine Cancer Risk (Oct. 17, 2022) (on file with author).

9. See e.g., Marcus Biddle, The Historical ‘Messy, Moral Dilemma’ of Marketing Menthol Cigarettes to Black Communities, PBS (June 20, 2022), https:// whyy.org/articles/fda-menthol-ban-history-marketing-menthol-cigarettes-black-communities/ (noting how highly targeted marketing for menthol cigarettes in low-income African American neighborhoods generated a racialized geography of tobacco-related health disparities; targeted marketing of cosmetic products has demonstrated similar racialized health disparities).

10. Hiroko Tabuchi & Nadja Popovich, People of Color Breathe More Hazardous Air. The Sources Are Everywhere., N.Y. TIMES, Apr. 28, 2021, https://www. nytimes.com/2021/04/28/climate/air-pollution-minorities.html.

11. Garrett Morgan, BIOGRAPHY, https://www.biography.com/inventor/garrett-morgan (last updated June 3, 2021).

12. News Release, Nat’l Inst. of Health, Hair Straightening Chemicals Associated with Higher Uterine Cancer Risk (Oct. 17, 2022) (on file with author).

13. News Release, Nat’l Inst. of Health, Permanent Hair Dye and Straighteners May Increase Breast Cancer Risk (Dec. 4, 2019) (on file with author).

14. Jessica S. Helm et al., Measurement of Endocrine Disrupting and Asthma-

associated Chemicals in Hair Products Used by Black Women, 165 ENVTL. RES. 448, 449, 454–56 (2018).

15. See SARA ASBECK ET AL., AFRO-ETHNIC HAIRSTYLING TRENDS, RISKS, AND RECOMMENDATIONS, MDPI, 3 (2022), available at file:///C:/Users/Owner/Downloads/cosmetics-09-00017.pdf (highlighting data suggesting a potential association between relaxer use and scarring alopecia).

16. 15 U.S.C. § 361–62; see, The Texas Food, Drug, and Cosmetic Act, state statute which parallels the language in the FDCA. TEX. HEALTH & SAFETY CODE § 431.021.

17. Id. § 1453(a).

18. In contrast with these terms, the term “organic” is regulated, but by the U.S. Department of Agriculture (USDA), not the FDA. If a cosmetic is made up of agricultural ingredients and can meet other regulatory standards, then it could be certified as “organic” under the USDA’s National Organic Program. Cosmetics, Body Care, and Personal Care Products, U.S. DEP’T OF AGRIC., https://www.ams.usda.gov/grades-standards/ cosmetics-body-care-and-personal-care-products?dDocName=STELPR DC5068442 (last visited Dec. 30, 2022); see e.g., Finster v. Sephora USA Inc. (N.D.N.Y. 2022) (No. 6:22-cv-1187) (class action suit against Sephora alleging that a number of cosmetic products tagged “Clean at Sephora” contain synthetic ingredients, including some known to cause skin irritation or allergic reactions).

19. An often forgotten component in the “clean beauty” discussion, is that the use of natural ingredients for health and beauty practices is intrinsically engrained in Black, Indigenous, and People of Color cultures. Rich minerals indigenous to Black and Brown countries, such as marula oil, shea butter, and yerba mate, have been used within these communities for holistic wellness practices. The modern beauty industry, however, has demonstrated a problematic practice of exoticizing these ingredients and repackaging them as “trendy” finds, failing to acknowledge the origins of the ingredients and thereby erasing their rich ancestral significance and historical uses.

20. H.R. 5537, 117th Cong. (2021).

21. H.R. 5538, 117th Cong. (2021).

22. H.R. 5539, 117th Cong. (2021).

23. H.R. 5540, 117th Cong. (2021).

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By Augustin Rivera, Jr. and Nahdiah Hoang

Law Students Should Not Be Afraid to Get the Help They Need

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he Texas Board of Law Examiners (BLE) investigates applicants seeking admission to the Texas Bar to determine whether they have the requisite present good moral character and fitness to practice law. The investigations are thorough: BLE staff runs fingerprints, reaches out to past employers, investigates taxes and debt, and delves deeper into instances of behavior that suggest applicants may have character traits that could make them likely to injure a client, obstruct the administration of justice, or violate the Texas Disciplinary Rules of Professional Conduct. To aid these investigations, staff previously asked applicants broad questions about their mental health history, use of illegal substances, and misuse of legal substances.

The BLE also conducts annual visits to each Texas law school and makes in-person presentations to first-year law students to explain the investigation process and that applicants cannot become licensed in Texas if they do not possess the required good moral character and fitness.

As part of that presentation, the BLE explains to law students that simply being diagnosed with, or seeking treatment for, mental health or substance use issues is not a barrier to being licensed. A representative from the Texas Lawyers’ Assistance Program (TLAP) also speaks at these presentations, and students are encouraged to seek help for these issues as needed, from TLAP or elsewhere.

Unfortunately, some law students believed that seeking help for depression, anxiety, other mental health issues, or substance use issues would call into question their fitness to practice law, and they prepared for entry into the profession without the benefit of professional mental 28

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health services. As TLAP Director Erica Grigg notes: “Law students are fearful that if they reveal a mental health diagnosis or get help for a mental health issue this will be a barrier to bar admission. A consequence of this fear is that law students are not getting the help they need.”

At its June 17, 2022, board meeting, the BLE unanimously voted to discontinue inquiring about applicants’ diagnoses of, or treatment for, certain mental health conditions or substance use as part of its character and fitness investigation. The BLE determined that removing the questions would avoid any misunderstanding or confusion about the purpose of the investigation. The BLE also concluded that removing these questions would not interfere with the BLE’s ability to fully investigate an applicant’s background or to make the required character and fitness assessment. More importantly, the BLE wants to encourage applicants to seek appropriate help for mental health challenges when necessary.

As Grigg says: “Removing questions about mental health and substance use history alleviates the concern of students who need help, encouraging them to engage in the mental health services from which they, and subsequently the health of our profession, will benefit.”

Augustin “Augie” Rivera, Jr. was appointed by the Supreme Court of Texas to the Board of Law Examiners in 2011 and elected as vice chair in 2017. Augie practiced for over 25 years serving as a litigation and insurance defense attorney throughout South Texas. He currently serves as general counsel for the Del Mar College District.

Nahdiah Hoang joined the Board of Law Examiners staff as its director of eligibility and examination in 2014 and now serves as executive director. Before that, Nahdiah worked as an attorney for the Texas Commission on Judicial Conduct and the Texas Secretary of State.

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By Xperanza Uviedo

Improving the Indoor Environment to Promote Attorney Wellness

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eople spend 90% of their time indoors,1 yet conversations around attorney wellness rarely focus on the law firm’s indoor environment. The workplace plays a significant role in the mental and physical health of employees.2 Law firms of all sizes can design their offices to reduce occupational health risks and create conditions that support mental wellbeing.

Changes in office design, workplace ergonomics, temperature control, and adding indoor plants are some of the features law firms can implement to promote attorney wellness in their offices.

1. Law firms should introduce “resimercial” design elements to give the office a more relaxed ambience.

Traditionally, law firms have been designed with the client in mind. The large, marble reception desk and the over-thetop beverage carts were installed to impress clients by providing them with an experience as rich as the firm’s hourly rates. But with the rise of technology and

the lasting impacts of the COVID-19 pandemic, clients visit law offices much less frequently. The change has caused a paradigm shift in how firms design and structure their office spaces. Linnea Wingo, a licensed architect at Mayfield and Ragni Studio, says that law firms are now asking the question, “how do we make the office a destination?” Law firms and their architects have answered this question by placing attorney wellness at the forefront of the design process and emphasizing an “at-home” office feel. “For better or worse, the workplace has invaded into our home, and now we are allowing the home to invade a little into the workplace,” says Wingo. The large reception areas of the past are fading out, and communal rooms and lounges are moving in. Law firms such as Wilson Cribbs + Goren are throwing out the commercial style in favor of a “resimercial” design, a design that mixes residential and commercial elements, to promote overall attorney wellness and productivity.3 2. Law firms can integrate ergonomics into the workstation to reduce attorney fatigue.

Attorneys spend most of their time in the office sitting and working at their computer. Prolonged sitting can cause long-term health problems, such as musculoskeletal disorders, obesity, increased blood pressure, high blood sugar, and abnormal cholesterol levels.4 Law firms can reduce these health risks by incorporating ergonomics into the workstation. Law firms such as Gibson, Dunn & Crutcher LLP and Shipley Snell Montgomery LLP have incorporated ergonomics by replacing sitting desks with sit-stand desks, height-adjustable desks that reduce musculoskeletal discomfort.5 The desk upgrade has had a positive impact. “Switching to a standing desk has made a huge difference at work. I am more productive and more comfortable,” says Tien Hunter, associate at Shipley Snell Montgomery. In addition to sit-stand desks, other work-

station accessories, such as chairs with lumbar support, height-adjustable monitor stands, footrests, and ergonomic keyboards and mice, can improve workstation ergonomics.6 3. Individual or grouped control over office temperature can increase thermal comfort and promote mental wellness.

Individual thermal comfort impacts an individual’s level of motivation, alertness, focus, mood, and productivity.7 Offices that are too cold or too hot can cause discomfort, but it is often challenging to ensure that every attorney is comfortable with the indoor temperature. WELL, an organization committed to “people first workplaces,”8 provides some guidance on the matter. WELL suggests that the thermal comfort goal is to create “baseline satisfaction for the largest number of people.” One way to accomplish this task is by providing grouped or sectional temperature control, a feature that Doyle Dennis LLP and Norton Rose Fulbright’s Houston office have incorporated. Grouped temperature control may not be an option for every office, so law firms should consider individual thermal comfort devices, such as desk fans or space heaters.

4. Indoor office plants promote mental and acoustic wellness by reducing

stress and noise.

For small firms, plants are a cost-effective option to promote mental wellness.

Office plants bring nature inside and can liven up a space. Studies have shown that interactions with indoor plants are associated with lower reports of stress, reduced sick leave, and higher productivity.9 Plants also have natural properties that reduce indoor noises, making them an excellent choice for firms in a smaller space.10 Adding indoor office plants is an economical way to promote attorney wellness—just remember to water them.

Intentional workplace design can have a significant effect on attorneys’ physical and mental wellness. Law firms can incorporate attorney wellness into the office space by introducing a more relaxed office design, ergonomic workstations, tailored thermal controls, and even indoor office plants. Law firms that want more information on promoting workplace wellness should visit WELL at wellcertified.com.11 Xperanza Uviedo is a second-year associate at Shipley Snell Montgomery LLP where she practices civil litigation.

Endnotes

1. Healthy Buildings, Healthy People- A Vision for the 21st Century, ENVIRONMENTAL PROTECTION AGENCY https://www.epa.gov/indoorair-quality-iaq/healthy-buildings-healthy-people-vision-21st-century (last updated Jan. 18, 2022).

2. Health, U.S. GEN. SERVS. ADMIN., https:// sftool.gov/learn/about/244/health (last visited Dec. 16, 2022).

3. Manoj Tomar, What is Resimercial Corporate Design and Why Does it Matter More Than Ever for a Modern Workplace?, LINKEDIN (Dec. 23, 2021), https://www.linkedin.com/pulse/whatresimercial-corporate-design-why-does-mattermore-manoj-tomar/.

4. Workstation Desktop Ergonomics, FRANCISCAN HEALTH (Sept. 17, 2018), https://www.franciscanhealth.org/community/blog/workstationdesktop-ergonomics.

5. Shuchi Agarwala, Sit-stand workstations and impact on low back discomfort: a systematic review and meta-analysis, 61(4) ERGONOMICS 538, 550 (2018), https://www.ocf.berkeley.edu/~asrg/ wp-content/uploads/2018/07/Agarwal-2018-sitstand-workstations-meta-analysis.pdf.

6. Office Ergonomics: Your How-to Guide, MAYO CLINIC (Apr. 23, 2021), https://www.mayoclinic.org/healthy-lifestyle/adult-health/in-depth/ office-ergonomics/art-20046169.

7. Thermal Comfort, WELL, https://v2.wellcertified. com/en/wellv2/thermal%20comfort.

8. WELL, https://www.wellcertified.com/ (last visited Dec. 16, 2022).

9. Tina Bringslimark, et al., Psychological Benefits of Indoor Plants in Workplaces: Putting Experimental Results into Context, 42(3) HORTSCIENCE HORTS 581, 586 (June 2007), https://journals. ashs.org/hortsci/view/journals/hortsci/42/3/ article-p581.xml.

10. Kenneth Freeman, How Plants Can Reduce Noise Levels Indoors, HUFF. POST (Feb. 2, 2014), https://www.huffingtonpost.co.uk/ kenneth-freeman /how-plants-can-reducenoi_b_4802876.html.

11. WELL, https://www.wellcertified.com/ (last visited Dec. 16, 2022).

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S What Does Your

By Dose Khan

“Dash” Represent?

Discovering the Motivation Within to Pursue Your Goals Understanding the value of members outside of our profession to inspire us to achieve wellness, The Houston Lawyer reached out to Dose Khan, a local personal trainer, for motivational advice our legal community can use to be their best selves.

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tress is a part of each of our lives, personally and professionally. It’s crucial to think about how you can take control of your mind to harness your stress and use your thoughts for your body instead of against it. One way you can go about taking ownership of your thoughts is by using positive affirmations. This only works if you’re committed to becoming the words you tell yourself.

Much of this comes down to internal motivation. Ask yourself if you’re the type of person who’s motivated to push forward and keep going, even when things get tough. Are you constantly comparing yourself to others, or are you focusing on yourself and honing in on who you are?

Ultimately, pushing through moments that are uncomfortable or out of your comfort zone will lead you to accomplish more than you ever thought possible. That’s because taking radical ownership of your everyday thoughts is a game changer. It’s how successful people are able to find a spot at the top.

They don’t sit back and get lazy when others are putting in consistent effort to change how they think about themselves, others, and life.

So, how will you choose to define yourself? Are you the type of person who follows through on the plans you’ve set for yourself, despite not wanting to do the difficult tasks, or will you give up before you achieve greatness?

The best way to change your thoughts and mindset is by taking on, as Kobe Bryant dubbed it, “mamba mentality.”

That’s when you become the best version of yourself, and every day strive to become better. You can take inspiration from some of the greats in sports such as Kobe, LeBron, Jordan, and Messi. They constantly kept the end goal in mind, even when they didn’t want to spend hours on end training. Use the mamba mentality when you need to remind yourself why you’re doing what you’re doing. Implementing positive affirma-

‘‘

tions can help propel you forward when you don’t feel like Ultimately, getting out of pushing through bed at 5 a.m. to moments that run before work, for example. are uncomfort- So when life able or out hits you with of your comfort those moments that seem unzone will lead bearable, that’s you to accomplish where the mindset comes in. more than you All those early ever thought mornings when possible.” you woke up, even when you didn’t want to, or the long runs when it felt like it was impossible to push through—those are the moments that will make you mentally strong and capable of taking on anything that’s in your way because you’ve callused your mind.

Your feelings will not always cooperate with your dreams. If you live in a fixed mindset or “woe is me” mentality all the time, your thoughts will be the results you get. If you truly want something bad enough, you will find one way or another to make it happen, but it starts with the words we tell ourselves.

My brother, Taj Khan, and I opened up our personal training business during a worldwide pandemic. We made no excuses, and we not only opened—we thrived. I believe this success occurred because of waking up every day at 4 a.m. and lunging half a mile. And while we lunged and trained, we put those positive affirmations and thoughts into the universe. It’s compound interest. One small step leads to another and another.

That’s why we lunge. Because it’s more than just an exercise. If you can physically push through the pain barrier, you can push through anything you want to accomplish.

Your mindset is what separates a “what if ____” person from an “I did ____” person. Decide who you’re going to be and follow through each and every day.

All of the little moments add up and can come together to create something beautiful.

Ask yourself this: there’s a dash between the day you were born and the day you die. What’s your dash going to represent?

Dose Khan is the co-founder of Khango, founded in 2018 by brothers Dose Khan and Taj Khan with a vision to bring a different atmosphere to Houston. Khango is a family-owned business that strives to motivate, empower, and instill a lifestyle change to everyone who walks in their doors. They train anyone from beginners to professional athletes that include DePictured left to right: Cole Peyrot, Taj Khan, Jenna Khan, Andre Hopkins, Andre Johnson, Dose Khan, Halima Khan, and Bhadshah Khan.

Owen Daniels and PJ Tucker. thehoustonlawyer.com

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Young Lawyer Spotlight

Sabrina Jiwani Where do you work and what is your practice area?

Sabrina: I am a senior attorney in-house at KBR and handle global litigation and arbitration with some labor and employment.

Where did you go to school?

Sabrina: Washington University in St. Louis.

What prompted you to join the Houston Bar Association?

Sabrina: When I moved back to Houston in January 2017, I knew I wanted to get involved in the larger Houston legal community. The HBA does so much amazing programming, whether it’s for seasoned lawyers or law students, and I knew I wanted to be part of an organization that actively raises up lawyers in Houston.

You are a 2022-2023 co-chair of the HBA’s Diversity, Equity & Inclusion Committee. What do you enjoy most about your role?

Sabrina: The part I enjoy most is either when I review the application packets from students for the summer internships or when we have the Summer Associate Luncheon.

Those are the times you really see how much of a difference this program makes and being a co-chair and knowing I helped spearhead this program, which creates so many opportunities, is a really special feeling.

What DEI Committee programs, initiatives, or events are you most proud of?

Sabrina: Every year in April, the committee hosts a “bootcamp” for students going into their internships where they learn a little about the litigation and transactional practices and hear a panel of diverse attorneys discuss what they value in summer interns. In the last couple of years, we were able to overhaul that program and really tailor it to the students and give them the information they need to be successful in their summer internships.

What other Houston organizations are you involved with?

Sabrina: I am also involved in the local Houston chapter of the ACC (Association of Corporate Counsel), as well the IPN (Ismaili Professional Network).

What keeps you grounded outside of your practice?

Sabrina: Riding horses (I train at Memorial Park Hunters and there’s another lawyer in my barn!) and playing with my dog Bluesy!

What podcast, book, or film is on your go-to list?

Sabrina: The podcast Darknet Diaries has been on my go-to listen list recently. It’s about hackers, breaches, shadow government activity, hacktivism, cybercrime, and all the things that dwell on the hidden parts of the internet.

The Houston Lawyer

What advice do you have for young attorneys?

Sabrina: Prioritize self-care. You may think that putting in 12+ hours a day, working days, nights, weekends, and holidays is going to put you at the top of your career, but burnout is real. You need to take the time to take care of yourself and your mental health. Otherwise, all the hard work you put in to advance your career will only get sidelined because you’re not physically or mentally in a place to succeed. Leave the “lawyer you” in the office when you come home, unwind, take time to sit down with loved ones for dinner, and learn how to (appropriately and professionally) say no when you’re at your capacity. Being the best version of you outside of your practice will ultimately make you the best version of you in your practice.

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Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteers Lawyers.

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Baker Botts L.L.P. BakerHostetler LLP Balch & Bingham LLP Beck Redden LLP Blank Rome LLP Bracewell LLP Law Office of David Hsu Brogden and Associates CenterPoint Energy, Inc. Chamberlain Hrdlicka Chevron USA Dentons US LLP The Ericksen Law Firm Eversheds Sutherland US LLP Exxon Mobil Corporation Fleurinord Law PLLC Foley & Lardner LLP Frye and Benavidez, PLLC Fuqua & Associates, P.C. Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Gray Reed Greenberg Traurig, LLP Halliburton Energy Hasley Scarano, L.L.P. Haynes and Boone, L.L.P. Hunton Andrews Kurth LLP Jackson Walker L.L.P. Jenkins & Kamin, L.L.P. The Jurek Law Group, PLLC Katine & Nechman L.L.P. Kean Miller LLP Law Firm of Min Gyu Kim PLLC

King & Spalding LLP KoonsFuller, P.C. The LaFitte Law Group, PLLC Kirkland & Ellis LLP Locke Lord LLP LyondellBasell Industries Martin R.G. Marasigan Law Offices Marathon Oil Company McDowell & Hetherington LLP McGarvey PLLC Morgan, Lewis & Bockius LLP Norton Rose Fulbright US LLP Ogletree, Deakins, Nash, Smoak & Stewart P.C. Painter Law Firm PLLC Rita Pattni, Attorney at Law Law Office of Robert E. Price Rapp & Krock, PC Reed Smith LLP Royston, Rayzor, Vickery & Williams, LLP Sanchez Law Firm Shell Oil Company Shipley Snell Montgomery LLP Shortt & Nguyen, P.C. Sidley Austin LLP Angela Solice, Attorney at Law Sorrels Law Squire Patton Boggs Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Law Office of Cindi L. Rickman Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP thehoustonlawyer.com

January/February 2023

35

OFF THE RECORD

Giving Yourself the Gift of Life Experiences:

O

The Houston Lawyer

By Andrew Pearce

Nicole Voyles

nce you have successfully completed several marathons, more half-marathons than you can count, and even a Half Ironman Triathlon, what else can offer the same type of physical and mental challenge? For Nicole Voyles Marrs, an attorney with Laura Dale & Associates, P.C., it was the 29029 Challenge.

The 29029 Challenge, which is also known as Everesting, has been referred to as a “new breed of restorative endurance event” where Mount Everest is brought to you. More specifically, the 29029 Challenge takes place over three days, where participants have only 36 hours to ascend a mountain, take the gondola back down, and repeat until they have successfully summited the 29,029 feet needed to equal that of Mount Everest.

In September, Nicole, with Jarrod Marrs, her husband and coach, took on Whistler Blackcomb ski mountain in Whistler, British Columbia, Canada. The course totaled 31.2 miles and 31,120 feet. This was Nicole’s third time to complete the 29029 Nicole with husband Jarrod Marrs.

Challenge, having previously participated in events at Snowbasin Resort in Utah and Sun Valley in Idaho.

At first blush, a 31.2-mile event over three days may seem easier when compared to a 26.2-mile marathon or a 70.3-mile Half Ironman Triathlon, both of which are completed in one day. That is, until you realize you are essentially climbing to the same height as a commercial airplane’s cruising altitude.

The event is set at various ski resorts using black diamond trails scaled in reverse. As a result, participants find themselves climbing the equivalent of 100 flights of stairs over a relatively short distance. For Nicole, it was the hardest mental 36

January/February 2023

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challenge of her life given the tremendous amount of energy it required – and the focus on nutrition and diet needed as a result. And there are other, less obvious challenges as well, from the extreme and sudden changes in temperature over such elevations to the animals that participants see (or hear) when hiking at night.

Yet the event has also provided Nicole with an immense sense of gratification, which revealed itself to her in two ways. First, the 29029 event has been described as a chance to invest in yourself. Nicole described it as giving herself the gift of life experiences, which has certainly been true for her.

Second, and maybe more importantly, the event has given Nicole the chance to be off the grid and alone with her thoughts for 25-plus hours. As Nicole said, how often do we get that opportunity?

To make the most of her chance for self-reflection and contemplation, Nicole prepared note cards for each summit.

Whistler consisted of eight summits, each gaining almost 4,000 feet of vert, so Nicole would identify something to reflect on for each one—such as her children, her marriage, or loved ones who have passed. At the end, Nicole felt empowered and thankful.

Next year, Nicole’s husband will once again be a coach—this time, in Jackson Hole, Wyoming. And for Nicole? She will be volunteering. Ultimately, whether you participate in events like the 29029 Challenge, or volunteer at them, the lesson is clear: Give yourself the gift of life experiences.

Andrew Pearce is a shareholder and the litigation group chair at BoyarMiller. He is the Legal Trends editor for The Houston Lawyer.

A Profile

in pro f e s s i o n a l i s m

A

The Hon. Daryl Moore Of Counsel, AZA Law

mong the non-lawyer public, two words don’t get paired up often: “Lawyers,” and “empathy.” That’s unfortunate because they can, and should, coexist. Too frequently they don’t.

Maybe that’s because some think being a zealous advocate eliminates their ability to show empathy for fear of being perceived as weak. Maybe it’s peacocking for clients, conflating being aggressive with being effective. Maybe it’s living in a time when empathy seems outdated and stridency pervades our profession and our politics.

Whatever the cause, it’s time to reassess the role of empathy in advocacy.

My favorite fictional lawyer, Atticus Finch, said it best: “You never really understand a person until you consider things from his point of view... until you climb inside of his skin and walk around in it.” I agree. To appreciate another perspective, it’s best to try it on—to imagine what it’s like to have another’s experience instead of your own.

Being empathetic makes us better advocates. First, empathy invites honesty. Clients who feel their lawyer understands them are more likely to share information than if they feel their lawyer is judging them.

Second, understanding a client’s perspective allows a lawyer to tell a more compelling story. If being a trial judge taught me anything, it’s that juries get it right most of the time.

They reward advocates who tell stories they understand and see through those who are performative but lack empathy.

Third, understanding another party’s perspective is critical in prosecuting a case against them. It’s hard to take apart another party’s case if you don’t understand their motivation for bringing it.

Finally, empathetic lawyers find practicing law easier and more gratifying. To quote Atticus again, “you’ll get along a lot better with all kinds of folks” if you consider things from their point of view.

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37

SECTION spotlight

HBA Sections Kick Off 2023 With a Trivia Showdown and Essentials for Music Attorneys

T

The Houston Lawyer

By Maggie Martin

he Houston Bar Association has 26 substantive law eral counsel program in February. The section will delve into resections that provide education and networking opnewable dealmaking and incentives in March, and then explore portunities for attorneys in practice areas ranging from retained acreage and royalty clauses in May. energy law to appellate practice and family law. These sections host programs throughout the year, Environmental Law Section most of which offer MCLE accredited hours. HBA The HBA Environmental Law Section hosted a section programming jumped right into the new program about the Securities and Exchange Comyear. Here’s a look at just some of the programs held mission (SEC)’s proposed climate disclosure rule The Houston in January. Professor Victor B. Flatt of the Univerin recent weeks, and what’s in store for the rest of the HBA bar year (as of the time this article was writof Houston Law Center covered where the rule Bar Association sity ten). stands now and the potential legal challenges that has 26 substantive lie ahead.

Alternative Dispute Resolution Section law sections that Family Law Section Charles H. Howard was the featured guest at the ADR Section’s January 23 program, “Comparing provide education The Family Law Section hosted a presentation Ombuds and Mediation Services,” covering how about waste claims in January. Then, a virtual conand networking versation with several Harris County district court ombuds skills can be learned and developed. The section’s 2023 Annual ADR Conference is schedjudges as a Part One panel discussion in February. opportunities for The section will return with a Part Two part of the uled for Friday, May 5 at South Texas College of Law Houston. attorneys in prac- program in March, followed by a program about deposition techniques in April. tice areas ranging Appellate Practice Section Judge Tanya N. Garrison of the 157th Civil District from energy law to Labor & Employment Law Section Court hosted this section’s trivia challenge on JanuThe HBA Labor & Employment Law Section’s January 12, testing attendants’ knowledge about appelappellate practice ary program featured a panel of governmental and late ethics, laws, and procedures. The section’s Febinstitutional employment attorneys about the comand family law.” ruary program took a look back at key appellate cases plex legal challenges they face. The section’s Februfrom 2022, featuring former Texas Supreme Court ary program was a review of changes to Chapter 21 Justice Eva Guzman, Jessica Barger, and Marie Jamison with of the Texas Labor Code regarding sexual harassment.

Wright Close & Barger, LLP. To learn about the latest HBA section events, or to join a secEntertainment and Sports Law Section tion if you’re an HBA member, visit hba.org. Missed a section This HBA section’s February program, “Back to the Future of event in person? Many previous programs are hosted in our onMusic: A CLE on the Essentials for Today’s Music Attorney,” line CLE library at hba.org. covered key agreements involved in working with recording artists and the legal protections beyond the music.

Maggie Martin is the marketing and communications director of the Houston Bar Association and managing editor of The Houston Energy Law Section Lawyer. She previously served on the marketing and communicaThis HBA section started the new year by taking a look back at tions team at the Greater Houston Partnership and produced for major updates in Texas case law from 2022, followed by a genHouston Matters at Houston Public Media.

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January/February 2023

‘‘

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Join the HBA 100 Club!

The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools, and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Ajamie LLP Alvarez Stauffer Bremer PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Christian Levine Law Group, LLC Coats | Rose Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin, Naylor & Turbyfill, P.L.L.C. Dobrowski Stafford LLP Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Slaughter & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Germer PLLC Givens & Johnston PLLC Gordon Rees Scully & Mansukhani, LLP Hagans Montgomery Hagans Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin LLP Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC

Kane Russell Coleman & Logan PC Kean | Miller LLP Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Liskow & Lewis McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs PC Ogletree Deakins Nash Smoak & Stewart, P.C. Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Sorrels Law Spencer Fane LLP Sponsel Miller Greenberg PLLC Strong Pipkin Bissell & Ledyard LLP

Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart & Boundas, LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Andrews Myers, P.C. Beck Redden LLP BoyarMiller Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom LLP McDowell & Hetherington LLP Yetter Coleman LLP Firms of 50-99 Attorneys AZA Law BakerHostetler LLP Brown Sims, P.C. Chamberlain Hrdlicka Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P Morgan, Lewis & Bockius LLP Susman Godfrey L.L.P. Winstead PC

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Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy, Inc. EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County, Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals

January/February 2023

39

LEGAL TRENDS

When a Car Crash Case Can Also Be a Medical Malpractice Case – And When Not

By Randall Sorrels and Jessica Rodriguez-Wahlquist

I

The Houston Lawyer

n 2020, the National Safety Council reported 180 deaths in crashes involving emergency vehicles.1 A significant portion involved ambulances. If the victim’s injuries are life-altering, falling within the claws and caps of the Texas Medical Liability Act (“TMLA”) can be devastating. Fortunately, there are exemptions—some more distinguishable than others—that may allow for a more just and righteous recovery.

For a claim to be deemed a healthcare liability claim in a lawsuit, these three elements must be satisfied: (1) a physician or healthcare provider must be a defendant; (2) the claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare; and (3) the defendant’s act or omission complained of must proximately cause the injury to the claimant.2 The second element is usually the disputed and deciding element as to whether a claim resulting from an ambulance wreck is a healthcare liability claim.3 Let’s Start With The Obvious To decide if a claim is a healthcare liability claim, courts focus on the “nature of the acts or omissions causing the victim’s injuries and whether the events are within the ambit of the legislated scope of the TMLA.”4 The pivotal issue becomes the nexus between the duty of care and whether the 40

January/February 2023

breach of the duty is one implicated to the defendant’s duties as a healthcare provider, including patient safety.5 Intrinsically, simply because an ambulance is involved in a wreck does not automatically morph an otherwise regular negligence claim into a healthcare liability claim.6 Driver or Passenger Of Another Vehicle Claims brought by drivers or passengers of other vehicles are not healthcare liability claims. When the occupants of another vehicle impacted by an ambulance bring a claim against the ambulance, the ambulance is not seen as an instrumentality used in the provision of healthcare, regardless of whether they were providing medical care to someone onboard. Why? Because those victims are not patients of the ambulance: their alleged injuries occurred outside the ambulance and not in a place where they were receiving medical care as they were either the driver or the passenger of another vehicle.7 That is, the ambulance driver is considered to have failed to follow the rules of the road by negligently operating a vehicle—legal duties that apply to any common driver and are not unique to a healthcare provider.8 A Pedestrian The same could be said about pedestrians. However, be careful and do not assume. If the injured pedestrian is, for example, the nurse in charge of the patient’s transfer from hospital to ambulance, the claim will be deemed a healthcare liability claim. However, if the injured pedestrian is simply a civilian, then her claim is not one within the reach of the TMLA. To determine whether the TMLA does reach the pedestrian’s claims, courts will analyze the facts through what are called the Ross standards (titled after the Texas Supreme Court case where these standards are articulated, Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015)). The Ross standard asks: (1) whether the alleged negligence occurred in the course of

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the defendant’s performance of tasks with the purpose of protecting patients from harm; (2) whether the alleged injuries occurred in a place where patients were receiving care, so that the obligation of the provider to protect persons who require medical care was implicated; (3) whether the claimant was seeking or receiving healthcare when the alleged injuries occurred; (4) whether the claimant was providing or assisting in providing healthcare when the injuries occurred; (5) whether the alleged negligence arises from safety standards that are part of the professional duties owed by the healthcare provider; (6) if an instrumentality was involved in the defendant’s alleged negligence, whether it was a type used in providing healthcare; and (7) whether the alleged negligence implicates safety-related requirements set for healthcare providers by governmental or accrediting agencies.9 A Passenger Non-Patient Generally, claims brought by a non-EMS/ non-patient passenger traveling inside an ambulance are not considered healthcare liability claims. While the injuries may occur in the healthcare setting of an ambulance, mere location of an injury does not bring a claim within the TMLA when a passenger is simply accompanying a patient along the ride.10 As with a pedestrian, courts will also analyze the facts surrounding the passenger through the Ross Standards, specifically focusing on factors three and four, whether the claimant was seeking, receiving, assisting, or providing healthcare when the injuries occurred.

Watch Out For The TTCA Do not let your guard down. Remember there are city-owned ambulances. While in the instances mentioned above the TMLA may not apply, the Texas Torts Claims Act could limit recovery. Ambulances are considered emergency vehicles, which will trigger the limitations of the TTCA under certain circumstances. In

LEGAL TRENDS

turn, the plaintiff will bear the burden to establish that the emergency response exception does not apply.11 Conclusion The review of a potential case involving an emergency transportation vehicle must be done with careful diligence. Mistakes made if the case involves a Chapter 74 medical liability case12 can be consequential and case determinative. “Better safe than sorry” definitely applies in these cases.

Randall Sorrels is double board certified in personal injury trial law and civil trial law.

He is a past president of the Houston Bar Association and State Bar of Texas. Randy is a founding partner at Sorrels Law. Jessica Rodriguez-Wahlquist is a personal injury and medical malpractice attorney at Sorrels Law. She is proud to be an out LGBTQ+ lawyer, bilingual, and an immigrant, who is dedicated to helping those in her community. Jessica is recognized as a Super Lawyers Rising Star amongst many other accolades.

Endnotes

1. Emergency Vehicles, NATIONAL SAFETY COUNCIL INJURY FACTS, https://injuryfacts.nsc.org/ motor-vehicle/road-users/emergency-vehicles/ (last visited Jan. 6, 2023).

2. Psychiatric Sols., Inc. v. Palit, 414 S.W.3d 724, 725 (Tex. 2013) (quoting Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179–80 (Tex. 2012)).

3. See, e.g., Taton v. Taylor, No. 02-18-00373-CV, Tex. App. LEXIS 5422, at *10 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.) (analyzing second element only because plaintiff did not dispute that defendants (an ambulance company and its employee) were health care providers or that a causal nexus existed between defendants’ conduct and plaintiff’s injury).

4. Coci v. Dower, 585 S.W.3d 652, 655 (Tex. App.— Eastland 2019, pet. denied).

5. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015).

6. Coci, 585 S.W.3d at 656.

7. See Canter v. Toca, No. 10-22-00166-CV, 2022 Tex. App. LEXIS 6713, at *1 (Tex. App.—Waco Aug. 31, 2022, pet. filed) (mem. op.).

8. See id.

9. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015).

10. Id. at 504–05.

11. Quested v. City of Houston, 440 S.W.3d 275, 284 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

12. TEX. CIV. PRAC. & REM. CODE Ch. 74

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41

Media Reviews

Behind Blue Eyes: How an ERISA Attorney Shed Everything That Underpinned His Existence to Transform Into a Modern Day Adventurer

By Mark S. Miller Published by Sheathed Quill Press Reviewed by Jennifer Smith

The Houston Lawyer

A

partner in one of the largest law firms in the United States, author Mark Miller had a thriving ERISA practice and was a billing machine for his firm.

But in 2013, at age 52, he was burning out. Miller was concentrating on his clients’ issues rather than his own, and he didn’t want to wake up at 65 wondering where his life had gone.

With The Who’s “Behind Blue Eyes” playing in the background, Miller decided that he needed to take an “adult time out” and find out who he was—in other words, Who was the man behind his blue eyes?

Miller recognized that a significant roadblock to his planned time out would be that “Big Law” lawyers really don’t take vacations, let alone extended ones. And even if they do manage to escape abroad or to a beach somewhere, their work tends to follow them. He also was aware that even proposing a long vacation might be perceived as a path leading to eventual sepa42

January/February 2023

ration from the firm.

Because asking for a time out in his circumstances was (so far as he could tell) unprecedented, he was unable to find resources to help him pitch this request to his firm. So, he made his own. Specifically, he devised a 13-step framework he called his “Jerry Maguire manuscript,” so named for the 1996 movie about a sports agent who is fired when he proposes a new way of doing business. Miller sent this manuscript to his managing partner and, after some negotiation—and to everyone’s surprise—the firm accepted the proposal, and Miller secured a four-and-a-half month sabbatical.

Miller launched his adventure with a 29-day voyage on a container ship from Newark, New Jersey, to Genoa, Italy. The long, slow trip helped set the stage for the rest of his time out—largely cut off from emails and phone calls, Miller wound up meeting many interesting people along the way. Once in Italy, he traveled the country enjoying great food and wine.

In contrast to the first phase of his sabbatical, Miller next traveled to Cape Town, South Africa.

There, he connected with a welcoming running group but also climbed Table Mountain solo. He traveled up the coast visiting surfer towns like Saint James and Jeffreys Bay and eventually made his way to Mozambique to enjoy that nation’s beaches and sailboats. A tour of Uganda followed, including safaris featuring chimpanzees and gorillas, as did a grueling climb of the Rwenzori Mountains.

Later, in Tanzania, he even summited Kilimanjaro.

Miller ended his journey in Europe, first returning to Italy to take in the impressive architecture of Rome and Vatican City, the beaches of Tropea, and the running trails of Sicilia. Finally, he set out for France, where he ran a marathon in Bordeaux and spent a day exploring Paris. He then returned home to Houston.

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As Miller acknowledges in the book, he wasn’t entirely “unplugged” from work throughout his time out—predictably, remote meetings and long-distance phone calls followed him overseas—but he did manage to keep to his planned course and adventures. And more than just experiencing those adventures, Miller’s time away from his practice allowed him the space to reflect on his life and career, reflections that evolved as his journey progressed.

And while much of the book offers the reader a chance to live vicariously through the author’s globetrotting, perhaps a more significant aspect of it is its encouragement that each of us seek out our own adult time out to discover—or, for some, rediscover—who we were meant to be.

Jennifer Smith is director of communication and associate corporate counsel for PPI Quality & Engineering, LLC.

Business and Commercial Litigation in Federal Courts, Fifth Edition Edited by Robert L. Haig Reviewed by Brooksie Bonvillain Boutet

W

here to begin? If you are anything like me, you probably ask yourself this very question when tackling a new topic. Through my litigation practice, I have often found that a treatise or scholarly article can be an excellent starting point for breaking into unfamiliar territory. For those venturing into the multifaceted, oftentimes complex world of business and commercial litigation in federal courts—or for those who merely need a refresher—editor Robert L. Haig’s aptly-named Business and Commercial Litigation in Federal Courts, Fifth Edition,

Media Reviews

is just that sort of resource.

Across its first 86 chapters, the treatise primarily begins with the fundamentals— from federal court jurisdiction to procedural concerns at all stages of a case. This section also contains strategic content on crisis management, social media discovery, and budgeting. Impressively, the treatise then tackles 93 separate subjects—neatly organized into individual chapters—all of which fall under the broad umbrella of business and commercial litigation. Helpfully for litigants, procedural considerations appear throughout these chapters.

And in addition to updating the law from the fourth edition, the fifth edition contains 26 new chapters, each of which is outlined in the Foreword.1 Of particular interest to us Houstonians, perhaps, is the new chapter on space law.

Although a print version of the hearty 16-volume treatise is available, I myself chose to peruse it as an eBook. I highly recommend the electronic format for ease of navigation and searchability.

As a more granular example of the treatise’s substantive coverage, the chapter on admiralty and maritime law includes sections on maritime jurisdiction, maritime actions, transportation of goods and services, and maritime transactions, all written in refreshingly plain language. It also concludes with useful practice aids—a feature of most of the treatise’s 180 chapters.

In addition to many sample pleadings, the chapter includes multiple checklists to guide the reader through procedural and substantive considerations for various types of admiralty and maritime actions, whether as plaintiff or defendant. As a subscriber to an admiralty and maritime law treatise, I must say that this chapter succinctly covers many issues that I have encountered when handling these types of cases, and the footnotes are filled with case law and secondary sources for those interested in a deeper dive.

If you are not yet convinced of the need for this treatise, notably for HBA members,

the 373 principal authors of the Fifth Edition include Judge George C. Hanks Jr. and Judge David Hittner, both of the United States District Court for the Southern District of Texas, as well as Houston lawyers Thomas R. Ajamie, Charles L. Babcock, Barry Barnett, David J. Beck, Van H. Beckwith, Layne E. Kruse, Mary-Olga Lovett, Rod Phelan, Harry M. Reasoner, and Melanie B. Rother.

Brooksie Bonvillain Boutet is a trial and arbitration attorney at Shipley Snell

Montgomery LLP. She is currently editor in chief of The Houston Lawyer.

Endnotes

1. The new chapters cover animal law; art law; artificial intelligence; budgeting and controlling costs; climate change; congressional investigations; constitutional litigation; coordinating counsel; corporate litigation reporting obligations; oorporate sustainability and ESG; fee arrangements; fraudulent transfer; litigation management by judges; monitorships; political law; shareholder activism; space law; third-party litigation funding; trade associations; use of jury consultants; valuation of a business; and virtual currencies. Four additional chapters offer a comparison between business and commercial litigation in federal courts and their counterparts in Canada, Delaware, Mexico, and New York.

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43

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Pocket doors, tasteful trim work, patterned hardwood floors and large front porch. 4-5 offices with conference rooms. Historic charm with modern amenities on a pretty tree lined street near great restaurants. Contact Bill Baldwin at 281-850-6862.

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January/February 2023

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FIVE EXCESS VERDICTS

SECURING FULL DAMAGES JURY AWARDS Insurance companies must exercise reasonable care in handling claims against their insureds.

In these last two years, the Sorrels Law team has secured verdicts for five of their clients in excess of the defendants’ insurance policy limits – after the insurance carriers were given the opportunity to settle each case for the policy limits. The Stowers doctrine is still alive and well in Texas.

With each client, we try to fully convey the total impact of the injuries and damages caused by negligent defendants. Scientists tell us that 90% of an iceberg is below the water. For far too long, insurance companies have focused on just 10% of the injuries suffered by the victims.

Telling the story of what is below the surface is what we do best. We joint venture and co-counsel with lawyers across Texas. Referral fees are generously paid. Call any of the Sorrels Law lawyers any time.

5300 Memorial Drive, Suite 270 Houston, TX 77007

(713) 496-1100

www.SorrelsLaw.com