Austin Lawyer, October 2015 by Monarch Media & Consulting, Inc.

austin lawyer October 2015 Volume 24, Number 8 www.AustinBar.org

Features Vote FOR the Bond on November 3!................. 1 Travis County Law Library................................. 7 And Justice for All: An ABA Day of Service........ 8 VLS Highlights Meaningful Work of Volunteers... 9 Chief Justice Shannon Back on the Bench........ 14 Austin Bar Helps Launch Legal Eagles............. 16 Honoring Longtime Austin Bar Members......... 17 Civil Litigation Section Supports CFCC............ 18

Departments President’s Spotlight........................................... 4 Opening Statement.......................................... 11 Austin Bar CLE Spotlight.................................. 12 3rd Court of Appeals Update........................... 15 Briefs............................................................... 19 AYLA............................................................... 20 Upcoming Events............................................ 22 Classifieds /Ad Index........................................ 23

Vote FOR the Courthouse Bond November 3!

ravis County voters will decide the fate of the Civil and Family Courts Complex (CFCC) bond on Nov. 3, 2015. As members of Austin's legal community, the Austin Bar hopes you will not only cast your vote in support of the bond, but tell your clients, colleagues, friends, and family why the new CFCC is a necessity for Travis County and encourage them to vote too. Early voting begins on Oct. 19 and ends on Oct. 30. Many who work in the Hemann Marion Sweatt Courthouse know firsthand why the 84 year-old building can no longer provide the citizens of this county with adequate access to justice. Most people — when they hear about the rats, leaks, disrepair, and unsafe conditions — are in agreement that a new courthouse is needed. The questions most people ask relate to location and cost. Here are some frequently asked questions to help you as you discuss the bond:

Wouldn’t it be cheaper if it were built somewhere other than downtown?

It will cost $287 million no matter where you build it — downtown, Highland Mall, East Austin, or on Airport Boulevard. The cost of construction will remain the same no matter the location. The safety and security features needed in a modern courthouse make it more expensive to build than an ordinary office building. Even so, in a comparison to other similar courthouse projects around the country, the CFCC is slightly below the average price per square foot than others in our region. continued on page 6

austin lawyer Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 700, Austin, Texas 78701. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab. Austin Bar Association Judge Eric Shepperd.......... President Leslie Dippel.................... President-Elect Amy Welborn................... Secretary Adam Schramek............... Treasurer Judge Elisabeth Earle �� Immediate Past President Austin Young Lawyers Association Chari Kelly....................... President Katie Fillmore................... President-Elect Jorge Padilla..................... Secretary Austin Kaplan................... Treasurer Amanda Arriaga............... Immediate Past President Austin Lawyer ©2015 Austin Bar Association; Austin Young Lawyers Association Executive Offices 816 Congress, Suite 700 Austin, Texas 78701-2665 E-mail: austinbar@austinbar.org Website: www.AustinBar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward.................. Executive Director Nancy Gray...................... Managing Editor Debbie Kelly.................... Director of AYLA Kennon Wooten............... Editor-in-Chief Britni Rachal..................... Editorial Assistant Published by Monarch Media & Consulting, Inc. Ph: 512.680.3989 | Fax: 866.328.7199 www.monarchmediainc.com Advertising inquiries call 512.293.9277.

October 2015 Austin Lawyer

President’s Spotlight Judge Eric Shepperd, County Court of Law #2

“ I Hope That Inspiration Leads to Aspiration” Over the coming months, this column will spotlight people and organizations in Austin who are working to bring legal services to those in our community who need them most. I hope you will be inspired by these stories as we take a look at some of the heroes in Austin’s legal community. And I hope that inspiration will lead to aspiration. We should all aspire to be the kind of lawyer that Barbara Jordan described when she said, Lawyers are people who help you to navigate life. Lawyers have the kind of breadth of experience and training which helps you to avoid pitfall, avoid problems — to reach solutions, and attain the kind of equanimity, the kind of equality, the kind of commonality and caring that exists between individuals. Helping the citizens of Travis County navigate life is exactly what Lisa Rush, Manager of the Travis County Law Library and Self-Help Center, does every single day.

Travis County Law Library and Self-Help Center

cross the street from the Heman Marion Sweatt Courthouse in the Ned Granger Building is the Travis County Law Library and Self-Help Center, managed for the past 15 years by Lisa Rush. With the quiet strength of a ninja librarian, Rush makes sure every person who walks into the library needing help is greeted by a friendly face belonging to someone on her small but knowledgeable staff. Rush and her staff are eager to help provide resources to the thousands of Travis County residents who have visited through the years, answering questions, referring services, assisting with paperwork, and providing help for pro se litigants and others needing help with civil court matters. The library staff consists of six reference and technical support librarians and two reference attorneys. This mix of staff and continuum of services allows patrons to take advantage of both the self-help and library services offered. The head of reference has a law degree. When someone first comes to the library and stops at the reference desk, many questions can be answered quickly and efficiently at that point. If the question involves research, the research librarians can assist in pointing the patron to the right forms, books or websites where the information can be found. The majority of the patrons needing help from the reference attorneys are pro se litigants trying to represent themselves in uncontested family law matters. The attorneys also help with occupational driver’s licenses, expunctions, and landlord/tenant issues. According to Rush, if Travis County didn’t have the pro se program there would no longer be a need for the Law Library. “You can’t justify having a Law Library when your attorney patrons stop coming,” says Rush. “Now, about 20% of our patrons are attorneys, but the majority are pro se litigants who are generally trying to represent themselves in the family courts. If the case is uncontested family law, we’ve got a pretty good system in place to help them. If their case is contested, we don’t have anything to help them. We can show them the Family Bar Practice Manual, or we can send them to Legal Aid, but their 4

Austin Lawyer October 2015

Lisa Rush, Manager of the Travis County Law Library and Self-Help Center

funding restrictions are very tight. We have a lot of working poor in Austin who are not so poor that they can qualify for attorney help but they still have a need.” The library does provide services for attorneys. It’s a quiet place to escape from the courthouse across the street. Copiers and printers are available for use, and small conference rooms are available to attorneys and mediators for $20/hour. The rooms are free for Volunteer Legal Service, Texas Rio Grande Legal Aid, Austin Dispute Resolution Center, and for those who have been ordered by the court to sit down and talk to their

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clients. These services are in addition to all of the regular library resources, which include such things as Westlaw and the State Bar collections and publications. Helping people get occupational driver’s licenses has become an overwhelming task for the reference attorneys of late, mostly due to the surcharge program imposed by DPS. If someone misses a payment, their license is automatically suspended again. They may not realize that and then they drive to work, ending up back in the criminal court building. They may get a court-appointed attorney for the criminal case, but if they can get civil help and get the occupational driver’s license issues resolved — sometimes just by paying a fine — their criminal court case is often dismissed. Gaining an occupational driver’s license can be a transformative event. And the number of people needing assistance in this area greatly exceeds the capacity of the two staff resource attorneys. According to Rush, she and most of her staff are limited in what they can say to patrons, because offering advice can be considered practicing law. They can point people to forms or show them information in a book or on a website, but many of the library patrons don’t have the literacy level needed to interpret the information or to fill out the forms or write an order. They need an attorney. “And I worry about them (the patrons),” says Rush. “Because sitting down and talking with an attorney can be a life-changing opportunity. An attorney can give you guidance, show you a warning, tell you about a pitfall that you can avoid. They can find a route or a solution out of your

problem. People don’t know what they don’t know. Hearing something from an attorney could save them a lot of time. We would love it if every one of our patrons could sit down and talk to an attorney.” In September, the Library partnered with UT School of Law to provide two evening expunction clinics. And beginning in October, they will offer a walk-in clinic five days a week from 10 a.m. to noon where patrons can ask the resource attorneys questions about uncontested family law matters. If more attorneys were available to help, occupational driver’s licenses could also be addressed during the clinic hours. Taking on a client is not the only way an attorney’s expertise is needed. Reviewing forms is another. “Right now,” Rush said, “The Austin LGBT Bar is helping us review our divorce forms in light of the Obergefell decision. They are going to rewrite them for us. We’re very excited!” In addition to reviewing and updating forms, attorneys would be helpful in simply attending clinics and being a scribe. To a patron who is not literate in English or who can’t read or write, having a knowledgeable scribe to help fill out the proper forms could be a game-changer. The Austin Bar Association is currently developing a partnership with the Travis County Law Library to help provide such assistance. Talks are underway about how the Austin Bar can help the Law Library with occupational driver’s licenses, forms, clinics, or other legal needs. Watch Bar Code or future issues of Austin Lawyer for more details in the coming weeks and months. • AL October 2015 Austin Lawyer

Vote for Safe, Secure, and Accessible Justice on November 3 Civil & Family Courts Complex FAQ continued from cover

The downtown location is desirable for developers who wish to build a second tower simultaneously with the CFCC. The second tower will be leased to the private sector for retail, restaurant, and office space, generating income to offset the cost of the CFCC and adding even more vibrancy to the downtown area. The CFCC will have a 4-story underground parking facility with over 500 parking spaces available to the public after hours and on weekends. Income generated by the parking garage will provide revenue for the county and help ease the strain of limited parking downtown after hours. Neither the second tower nor the parking garage would be viable if the location of the courthouse were anywhere but downtown.

Why can’t you put the courthouse somewhere else, such as Highland Mall, in East Austin, or on Airport Boulevard? The county already owns the property at 3rd and Guadalupe. There is no property for sale around Highland Mall. Airport Boulevard property owned by the county has height restrictions and is in a residential neighborhood. Fifty-four bus lines converge at 3rd and Guadalupe. Yet only eight buses go to the Airport Boulevard location, and only one goes to the Walter Long Lake area in East Austin. Current court services that are limited at the HMS Courthouse, such as evening clinics, will be made available after hours to accommodate those Travis County citizens who are not able to leave their jobs during the day to take care of their important legal business. Other legal services, such as the Law Library and Self-Help Center, will be available to the public and accessible to all. The citizens who need these services most are also the ones who need access to public transportation. The economic impact to downtown would be significant if the courts moved out of downtown. In addition to the 200,000 visitors a year, the courthouse also attracts the majority of Austin’s lawyers to downtown office space, and they, in turn, support local shops, restaurants, dry cleaners, print shops, and numerous other support businesses. All major metropolitan areas in the country have their courthouses downtown. It is perceived as a neutral site for resolving disputes. A courthouse in North Austin is very far from someone in South Austin, and vice-versa. Downtown is central and accessible to all. The CFCC is designed to be “alive after five” with public use space available for groups to rent out after hours for parties, meetings, and any number of other events. Talks are underway with local arts groups to possibly utilize this space for rehearsals or performances. Escalators will be placed in the lower three floors so that the public can access the building after hours, without compromising the security of the upper floors. Travis County is only one of two counties in the state to use a Centralized Docket System to assign civil and family cases. This system allows cases to be heard quickly and judicial time to be maximized. As a result, Travis County residents have swift and clear access to the resolution of their disputes. The Centralized Docket System relies on judges, lawyers, and court personnel being in one centralized location, not spread out all over the county. 6

Austin Lawyer October 2015

Why does it cost so much? The original cost of the project was $350 million. Because of the work of the Commissioner’s Court and the Community Focus Committee, the cost dropped to $291.6 million in February, 2015, and again to $287 million in August, 2015. The cost to taxpayers will be $15.75 per year for every $100,000 in appraised home value. After tax exemptions, the owner of the average $355,000 home would pay about $40/ year or $3.33 per month. This cost would drop over time as the bond was paid off.

“The reality is, we need the capacity, and we have a constitutional obligation to provide the capacity. I believe the proposal we’re putting forward is the most effective and efficient way...” — COUNTY JUDGE SARAH ECKHARDT The County Commissioners have taken affordability very seriously for the 10+ years they have been working on this project and have developed five strategies to reduce the tax burden of the proposed CFCC: Sale of underutilized county-owned property, releasing these properties back on the tax rolls; Civil case filing fees; Parking revenue from after hours and weekend use of the CFCC garage; Lease revenue from the agreement for the construction of a South Tower on the CFCC block; and Property tax revenue generated by the South Tower. County Judge Sarah Eckhardt, in a press conference held after the Commissioners Court unanimously voted to send the $287 bond to the voters, said, “The reality is, we need the capacity, and we have a constitutional obligation to provide the capacity. I believe the proposal we’re putting forward is the most effective and efficient way to provide the capacity. If we are not successful in this proposal, we will have to retool and look for other ways to provide the capacity. From where I stand today, I don’t see other options that are as effective or as efficient as we are proposing.” You can help make sure this bond passes. Vote. And encourage others to do so as well. The citizens of Travis County deserve to have access to justice that is safe, secure, and accessible to all. After 84 years, the time has come. • AL

A Vision for the Future: Expanded Hours for Travis County Law Library and Self-Help Center at the CFCC

n evening clinic is held once a month at the Heman Marion Sweatt Courthouse. Volunteer Legal Services and other pro bono lawyers staff the uncontested docket, while judges volunteer their time to serve the many Travis County residents who can’t make it to the courthouse during regular business hours. Recently, Judge Lora Livingston shared her vision for expanding these services at the new Civil and Family Courts Complex (CFCC). “The folks at VLS do a great job of staffing the evening clinic,” said Livingston. “It’s a really great program because so many people can’t take off work without penalty or without pay. It’s a great service to the members of our community to be able to provide access to the court off-hours. The evening clinic is wonderful because it does that, but it only does it one night a month. If the bond passes and the new CFCC is built downtown, I’d like to be able to provide that service on a more regular basis. The new CFCC would have an ideal space for us to do that.” The plans for the CFCC also include space to house the Travis County Law Library

and Self-Help Center. Judge Livingston and Lisa Rush, manager of the Law Library and Self-Help Center, share a similar vision of expanding the services of the Law Library after hours as well. As Livingston said, “Don’t we often take our kids to the library after school, or go to the library to pick up a book after we get off work or on the weekend? It would be lovely to be able to do that at the courthouse as well. Because that’s how life works, and that’s how people’s schedules work. I would like to be accommodating to our community in that way.” The Law Library and Self-Help Center began in the HMS Courthouse, but was moved to the Ned Granger building due to space constraints. Both Rush and Livingston are thrilled that the plans for the new Courts Complex include space for these vital resources to once again be co-located in the same building with the courts. “We need for people who come here to file papers to be able to complete their business without going across the street, and then back to this building, and then back across the street to make a copy or to look at a book, or get help

The new CFCC will offer the citizens of Travis County access to justice in a way they have never experienced before, at hours that actually support and encourage their work and productivity. filling out a form,” said Livingston. “Right now, we aren’t able to accommodate the sort of “one-stop shopping” of all they need. I’m very excited that the new space will be able to provide that.” Rush would offer the Library and Self-Help Center’s services after hours today, if she could. “Our patrons need that,” she said. “We get a real rush at lunchtime, as people are getting off of work, and when the bus lets off. People are tied to those schedules. I would be so glad to have hours that corresponded to the uncontested docket at night. Many of my patrons are hourly workers. If they are waiting in court they aren’t getting paid. If they aren’t getting paid, they can’t support their families.” More often than not, patrons of the Law Library bring their children with

them to ask questions or get help on their pro se cases. Currently, the Law Library has very little in the way of a children’s waiting area. In the new CFCC, the Library patrons would be able to take advantage of a fully supervised children’s area where all children who come to the CFCC with their parents will be able to wait in a childfriendly, safe, and age-appropriate environment. The new CFCC will offer the citizens of Travis County access to justice in a way they have never experienced before, at hours that actually support and encourage their work and productivity. It will provide legal resources to an under-served population of working poor who have every right to conduct their legal business, but none of the privileges so many take for granted. • AL

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October 2015 Austin Lawyer

And Justice for All: An ABA Day of Service, October 30

he American Bar Association has designated Oct. 25 – 31, 2015 as the National Celebration of Pro Bono. The Honorable Lora Livingston of the 261st District Court is co-chair of the ABA’s Standing Committee on Pro Bono and Public Service. The committee is launching a new initiative during this year’s National Celebration — ABA President Paulette Brown’s signature event: And Justice for All: An ABA Day of Service. And Justice for All: An ABA Day of Service is a tool for enhancing and expanding local efforts to increase access to justice for all. Throughout the week, the ABA will be making special efforts to recognize the valuable pro bono contributions made by lawyers across the country through a little friendly competition and a social media blitz, with a big push for service on Oct. 30. Overall goals for the celebration include: Recruiting more pro bono volunteers and increasing legal services to vulnerable people; Mobilizing community support for pro bono service; Fostering collaborative relationships; and Recognizing the pro bono efforts of America’s lawyers. Over the past seven years, the ABA’s Standing Committee on Pro Bono and Public Service has succeeded in creating an annual national spotlight on pro bono service. Although national in breadth, the Celebration of Pro Bono service provides an opportunity for local organizations across the country to take the next step in their efforts to provide high quality legal services to those living on the economic margins. The work of pro bono attorneys who take on cases without charge for the public good has been a powerful force for progress and equality in the United States, and there is always more we can do. According to Judge Livingston, “The goal is to promote not only a celebration of pro bono, but to also have a day of service on which lawyers around the country would take on a pro bono project, or some service activity. Show up and do something. Go out and help someone. Do something meaningful that would provide a service to a community you live in or care about.” Please visit celebrateprobono.org to register for And Justice for All: A National Day of Service and to learn more about the competition. Use the hashtag #ABAdayofservice throughout the week as you engage in pro bono activities. While the National Celebration of Pro Bono will culminate with a big push

for service on Oct. 30, any service that is done throughout the month of October will count towards the competition. Every group, organization, and individual performing community service or pro bono work during the month should go to the website and register. “I’m very excited,” said Livingston, “because one of the things we want to do is highlight just how important it is to our profession to engage in pro bono activities. But we also want to highlight public service and the fact that lawyers, as a profession, make a huge contribution to the public. There are lots of lawyer jokes about how we’re only in it for the money and that sort of thing. Of course, we in the profession know that’s not true. But this is an opportunity for us to highlight some of the fabulous and wonderful things that lawyers do for the communities they live in.” The Austin Bar Association encourages every member, section, and committee to visit celebrateprobono.org to register for And Justice for All: A National Day of Service. Let’s make this month a true Austin Celebration of Pro Bono. • AL

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Austin Lawyer October 2015

VLS Highlights Meaningful Work of Volunteer Lawyers

olunteer Legal Services of Central Texas — along with the Austin Bar Association, the State Bar of Texas, the Texas Access to Justice Commission, and the American Bar Association — proudly support the National Pro Bono Celebration Week (Oct. 25–31). Pro Bono Week is an opportunity to educate the public about the good work the legal community is doing to improve the lives of vulnerable Texans and to encourage more individuals in the legal community to get involved. VLS would like to use that opportunity to highlight examples of the important and meaningful pro bono work done by lawyers in Central Texas. Two of those volunteer lawyers are J.R. Skrabanek and Robert Wall of Segal McCambridge Singer &

Mahoney in Austin, who recently represented Bob*. Bob has been disabled since birth. As a child, he received a significant legal settlement due to malpractice resulting in his disability, which was held in trust until he turned 18. Bob reported that when he turned 18, his father forced him to use the trust money for various improper purposes, including making payments on a mortgaged property where Bob and his father lived. After his trust was depleted Bob’s father forced him to leave the property. For the following year, Bob reported living in a tent in the woods, where he subsisted on his modest disability check. But in late 2014, the Social Security Administration (SSA) discovered that Bob’s name was on the deed of his father’s property. As a result, SSA cut off all Medicaid coverage and

benefit payments, and demanded Bob repay more than $30,000 in back benefits. Skrabanek and Wall volunteered to take Bob’s case. First, they brought suit against Bob’s father, and after researching the property’s title history and the father’s equity in the property, obtained a declaratory judgment finding Bob never actually had a proper ownership interest in the property. Using this judgment, Wall went with Bob to the SSA office and helped explain why SSA had wrongfully denied Bob’s benefits. Fortunately the SSA agreed, finding that its denial was wrongful and reimbursing Bob for approximately 18 months of unpaid benefits. Further, it canceled the back pay and penalties previously assessed against Bob and reinstated his benefits going forward. Bob and his mother

were overjoyed. “It was one of the highlights of my career. This is why I do pro bono work and encourage others to do the same,” said Wall. “Ultimately, these cases provide a certain type of emotional fulfillment that you probably won’t get from your normal work.” Skrabanek also had advice for lawyers thinking about taking a case. “Just do it. Sometimes young lawyers are scared to take a case all on their own. But they should know the staff at VLS will be there as a safety net and can help if things get complicated.” If you are interested in learning more about VLS or the pro bono cases available through VLS, contact Anna K. Meyers at 512.640.7745 or akmeyers@vlsoct.org. Or, visit our website at vlsoct.org. • AL *Names have been changed to protect client confidentiality.

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October 2015 Austin Lawyer

GOOD IS

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We are pleased to announce the addition of Carey Leva to our Wealth Management team. With more than 20 years of experience in estate planning, trust and estate management, Carey has spent the majority of his career helping clients achieve greater success through better wealth management. He knows how to help you make the most of your future.

ANNETTE M. McCLINTOCK Senior Vice President, Business Development Officer 512.805.0982 | amcclintock@broadwaybank.com

We are also excited to welcome Annette McClintock to our Wealth Management team. Annette has been specializing in client relationship management in the Austin region for more than 30 years, helping countless business banking customers achieve greater success through better financial management.

opening statement Should You Outline?

Tools for Powerful Legal Writing By Wayne Schiess, Texas Law, Legalwriting.net

es. We all know we should, and as writing advice, it’s ubiquitous. But why? In this column I’ll give you a good reason to outline before you write and offer some empirical data to back it up. The reason writers should outline has to do with what’s called “task load” or “task demands.” Suppose you’ve done your basic research and identified the topics you’ll be writing about. If you skip outlining and begin writing, you’re trying to complete two tasks at once: organizing and composing. More specifically, you’re asking your brain to (1) see the connections and relationships between the topics, and (2) write coherently and informatively about those topics. Given the task demands of organizing and composing, it’s hardly surprising that our written product is poorer when we skip outlining. Our brains don’t have the capacity to do both tasks well at the same time. Thus, when we outline before composing, we should expect the finished product to be better. Is it? Yes. There’s solid evidence that outlining, in particular linear, hierarchical outlining, produces better writing. The cognitive psychologist Ronald Kellogg has done several studies on this topic, many of which are explained in his book The Psychology of Writing. I’ll describe just one of his studies here. Kellogg assigned 200 college students to write an informative essay calling for analytical thinking. (It was actually an LSAT essay question.) One-third began writing with no time for outlining; one-third wrote after creating a cluster outline (“a visual network of ideas and their relations”); and one-third wrote after creating a traditional, hierarchical outline. He created other sub-groups and implemented other conditions that aren’t relevant here. Kellogg paid two graduate students to read the essays and score them on a scale of 1 to 7 in two areas. One was content: how well ideas were developed, how coherently the text was organized, and how effectively the text communicated its message. The other was style: word choice, sentence structure, spelling, and grammar. He also measured the essays’ word length. You can predict the results. The no-outline essays scored consistently lower, with an average content score of 4.7, an average style score of 4.6, and an average word count of 350. The cluster-outline essays were better written — content at 5 and style at 4.8 — but shorter, with an average word count of 335. The traditional-outline essays were the best by far, with both

content and style at 5.4. They were also longer, at 400 words. Another way to put the numbers is this: traditional outlining could raise your grade by 10 to 15 percent. And isn’t it interesting — and telling — that outlining improves style? That’s right. If you outline, you’ll make fewer spelling and grammar mistakes. Having the outline in place lets you free up brain space for the task of writing mechanically healthy prose. Who knew? I did, actually. When I give students a substantively demanding assignment on a short deadline, I’ve come to expect more mechanical mistakes than usual because I’ve increased the task load. With less time for outlining, they have to do some of that work while composing. With demanding material, they’ll be doing some substantive mastery while composing. Increase the task demands, and they make more mistakes. We all do. One last thing. Don’t let the higher word count deter you from outlining. Don’t assume outlining leads to wordy, verbose writing. That’s the wrong takeaway. Remember, the longer essays scored better on content and style, both of which should be harmed by wordy, verbose writing. For a lawyer, the longer word count that results from outlining means you can write, not more, but faster. “Fluency,” as Kellogg calls it. You’ll finish sooner. Yes, you should outline. Next month: guidance on how to outline effectively. • AL October 2015 Austin Lawyer

austin bar cle

spotlight

WTH?!?! What's Next In Your Law Practice?

ll are welcome to a day-long CLE program on Oct. 9, from 8:30 a.m. to 3 p.m., in the Austin Bar Seminar Room. A variety of speakers and topics will address new ways to practice in these changing times.

Topics will include:

Top Tech Tips for Practicing Attorneys Unbundled: Enhancing the Limited Scope Practice (Ethics) Social Media for the Practitioner (Ethics) Introduction of the Texas Incubator/Residency Program Lunch Panel — Beyond the Bar Legislative Updates — Family Law Legislative Updates — Criminal Law All Things Fees

All are invited to stay for a Minority Bar Leaders Happy Hour & Networking in the Seminar Room immediately following the conclusion of the program. • AL

Program speakers will include: Judge Aurora Martinez Jones, Judge Lora Livingston, Judge Eric Shepperd, and Judge Todd Wong. Also speaking are Dirk Jordan, Philip Friday, Lee DiFillipino, Tracy McCormack, Ashton Cumberbatch, Richard Jund, Gerado Incenterio, David Gonzalez, Kristen Levins of the Texas Access to Justice Commission, and others.

Registration fee: $40 for members of the Austin Bar and partnering organizations and $60 for all others. Use member code ATX2015 to receive discount. For more details and to register, visit austinbar.org. CLE: 4.5 hours (1.5 hour ethics)

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

ion

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Austin Lawyer October 2015

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Former Chief Justice Bob Shannon Back on the Bench By Justice Scott Field, Third Court

Appeals

iscussion topics over lunch in Austin may range from a Clinton-Bush race for the White House, a Baywatch reboot, or, if there are lawyers in the group (and aren’t there always in Austin?), the latest Third Court of Appeals opinion by Bob Shannon. Based on these topics, it may feel like the early 90s, but the time is now. At the Third Court of Appeals, there is a “back to the future” movement that includes the return of former Chief Justice Bob Shannon. Soon after his successful race for Chief Justice in 2014, Jeff Rose began searching for additional ways to trim the Court’s docket. The Court had already employed former Chief Justice Marilyn Aboussie using funds specifically set aside for visiting judges, and Rose suggested that the Court explore the use of other former Third Court justices as visiting judges. In turn, the Court’s justices unanimously supported the idea of employing former Chief Justices Bob Shannon and Jimmy Carroll as visiting judges. Each has issued at least one opinion as of this writing. Bob Shannon served on the Third Court of Appeals for 20 years, from January 1971 until he retired in December 1990. He became Chief Justice in 1985. In his time on the Court, Judge Shannon never had a contested election and became one of the most beloved figures in the Austin legal community. Much has changed for Judge Shannon since he left the Court — at that time, for example, he had never used a computer. The passage of time, however, does not lessen the benefit of having a great legal mind on the Court. As a justice, Bob Shannon was known for his legal acumen and concise writing, attributes he still brings to his opinions and to the Court. Judge Shannon has become a welcome regular in the office the Court has set aside for visiting judges. He also recently joined other justices in taking the Court’s interns to Lockhart for BBQ, a tradition he started while serving on the Court. For me, it feels like old times. When I was a law clerk at

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Austin Lawyer October 2015

Justices Scott Field, Melissa Goodwin, Former Chief Justice Bob Shannon, and Chief Justice Jeff Rose having BBQ with staff attorneys and court interns in Lockhart.

Baker Botts-Austin, the first assignment I received was from Judge Shannon, who asked me to draft a reply brief to the Texas Supreme Court. Over the next several decades, Judge Shannon became not only a mentor, but a friend. Now he is a colleague, and the Third Court, as well as the attorneys who practice there, benefit greatly from his presence. For anyone who would like the opportunity to see Judge Shannon back on the bench, the Third Court has set oral argument in Horse Hollow Generation Tie LLC v. Whitworth-Kinsey #2 Ltd., on Nov. 4, at 9 a.m. The panel for the argument will be Chief Justice Rose, Justice Field, and former Chief Justice Bob Shannon. All are welcome. • AL

3rd court of appeals update

he following are summaries of selected Third Court of Appeals’ civil opinions issued during August 2015. The summaries are intended as an overview; counsel are cautioned to review the complete opinion. Subsequent histories are current as of September 3, 2015. Appellate procedure: Voluntary payment waived appeal. Norton v. Cheney, No. 0314-00087-CV (Tex. App.— Austin August 14, 2015, no pet. h.) (mem. op.). The trial court characterized certain stock as community property and awarded wife her share of it. The parties’ agreement to have husband’s company execute a promissory note to pay the judgment was incorporated into the divorce decree. Husband appealed, challenging the trial court’s characterization of the stock as community. According to the court of appeals, when a judgment debtor satisfies a judgment, an appeal is waived unless the judgment debtor clearly expresses an intent to appeal and ap-

pellate relief is not futile. Husband never expressed an intent to appeal. Further, husband’s company’s agreement to pay the judgment resolved the controversy between husband and wife. Thus, appellate relief would have no legal effect. The court affirmed. Probate: Conditional will not subject to probate when contingency did not occur. Allen v. Allen, No. 03-1400066-CV (Tex. App.—Austin August 18, 2015, no pet. h.) (mem. op.). Before leaving on an international family vacation, husband signed a holographic will that was conditioned upon husband and wife dying simultaneously. Husband died a year later, without revising the holographic will. Husband’s father challenged family’s attempt to probate the holographic will. The trial court found the will invalid. The court of appeals explained that a conditional will takes effect only upon the happening of a specified contingency. Husband’s will did not address the event of only

one spouse dying. The court concluded that the will was unambiguously conditioned on the simultaneous death of husband and wife. The contingency did not occur. Thus, husband’s will was not operative or subject to probate. The court affirmed. Governmental immunity: Escrowing funds held to be a proprietary function. Canario’s, Inc. v. City of Austin, No. 03-14-00455-CV (Tex. App.—Austin August 26, 2015, no pet. h.) (mem. op.). In compliance with City’s requirement, Canario placed escrow funds with City for a construction project. After completion of the project, City released the funds to an authorized person. Canario sued City. The trial court granted City’s plea to the jurisdiction. The court of appeals noted that a municipality is not immune when performing a proprietary function. Governmental functions are those that a municipality must do; proprietary functions are those that it may do in its discretion. The analysis turns not on the department involved but on the specific acts performed. Escrowing funds is traditionally done by a private entity. The court held that City’s decision to act as an escrow agent was thus a proprietary function for which City was not immune. The court reversed and remanded. Real property: Reverter clause in deed construed to avoid forfeiture. Lindig v. Pleasant Hill Rocky Community Club, No. 03-1500051-CV (Tex. App.—Austin

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

August 28, 2015, no pet. h.) (mem.op.). At issue in this case was whether the reverter clause in a deed was triggered to forfeit the conveyance. A 1927 deed provided that if the “[s]chool house is removed from said land...,” the land reverts to grantor and his heirs. The property was used for a school from 1927 until 1952, when it became a community center. The original school building remained on the property. Heir of original grantor sought to confirm his ownership of the property under the reverter clause. The trial court granted summary judgment for grantee. The court of appeals concluded the reverter clause had not been triggered. The reverter clause became operable only if the school house were removed. The reverter clause was not based on whether the use of the property as a school changed. The court affirmed. • AL October 2015 Austin Lawyer

Austin Bar Helps Launch Legal Eagles with Akins High School

s part of the new bar year, the Austin Bar and Austin Young Lawyers Association (AYLA) have launched a new partnership with Akins High School. The new law internship/ practicum program, called Legal Eagles, consists of ten top-notch students, all of whom were selected by application after a series of in-depth interviews. It’s just one of many options through Akins Career and Technical Education program, or CTE. Whether it’s for a trial, hearing, plea bargain, or docket call, volunteer attorneys allow students to shadow them at the Criminal Justice Center one morning a week. Attorneys also work with students to evaluate their work and make sure they are gaining practical

skills in the legal field. Akins hopes to conduct its first mock trial presentation by the end of the 2015-16 school year. In addition to the new Legal Eagles program, the school has a brand new $19,000 courtroom to use. Akins High School is 70 percent HisPhoto by Jesus Perez, Commercial Photography Student, Akins HS panic and 70 Front row (from left): Erica Martinez, Marissa Uballe, Leanna Gonzales, and Beatris Aguirre; percent free/ Back row (from left): Omar Trejo, Esmeralda Orozco, Aimee Morales, Robyn Katz (teacher), reduced-price Cindy Ruiz, Maritza Ramirez, and Zac Treviño lunches. More than 25 students applied for Volunteer dates for the If you would like to get the inaugural Legal Eagles remainder of fall 2015 are: involved, please contact program, but only 10 were Oct. 7, Oct. 14, Oct. 28, Debbie Kelly at Debbie@ selected. Nov. 12, Dec. 1, and Dec. 9. austinbar.org. • AL

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Austin Lawyer October 2015

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Honoring Longtime Austin Bar Members Celebrating 40 Years of Board Certification and 50 Years with the State Bar of Texas

ongtime Austin Bar members Phillip Friday, Kenneth Houp, and Terry Weeks are among an elite group of 73 attorneys celebrating their 40th anniversary as Board Certified attorneys in Texas. Achieving Board Certification is a rigorous process and maintaining it for 40 years is a historic accomplishment. Launched in 1974, the Texas Board of Legal Specialization initially inducted just over

300 Board Certified attorneys. From the original class, only 73 attorneys — including eight from Austin — are still Board Certified today. Currently, there are around 7,300 active Board Certified attorneys spanning across 21 specialty areas, making TBLS the largest and most successful legal Board Certification program in the nation. Of the more than 95,000 attorneys licensed to practice law in Texas, those 7,300 are

truly set apart as attorneys with the highest public commitment to excellence in their areas of law. The process of becoming Board Certified is voluntary and can only occur after an attorney has been in practice for five years, with a minimum of three years’ experience in the specialty area, and after the successful completion of a rigorous exam. On July 19, 2015, TBLS hosted a 40th anniversary

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reception in conjunction with the State Bar of Texas Annual Meeting and the Annual Rusty Duncan Advanced Criminal Law Course events at the Henry B. Gonzalez Convention Center to honor 35 attorneys from the original class to be Board Certified in criminal law. TBLS Executive Director Gary McNeil recognized and lauded them as trailblazers who paved the way for thousands of attorneys who have since become certified. Thirteen attorneys were present to accept a special plaque of recognition from Board Certified criminal defense attorney Stanley G. Schneider and to mingle and network, sharing their insights on the importance of Board Certification to guests at the reception. • AL

50-Year Lawyers The Austin Bar congratulates the following attorneys for reaching a 50-year milestone with the State Bar of Texas.

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October 2015 Austin Lawyer

Austin Bar Civil Litigation Supports New Courts Complex Austin Bar Civil Litigation Section Contributes $10,000 to Raise Public Awareness

he Austin Bar Association Civil Litigation Section has decisively moved to raise public awareness of the pressing need for the new Travis County Civil and Family Courts Complex. In a special board meeting held July 23, 2015, the Section’s Board of Directors voted 14-0 to contribute $10,000 toward educating the public about the urgent need for a new courthouse. The money will be used to encourage public participation in supporting new infrastructure for our civil justice system. Jim Richardson, who chairs the Civil Litigation Section, noted, “Our leadership has been unanimous in calling for a

new Civil and Family Courts Complex, and our members fully support this initiative. In contributing $10,000, we are confident that sister sections of the Austin Bar will match the effort. There’s simply no better time than now to make this a reality for Travis County, and the election is right around the corner.” The Commissioner’s Court already voted to place a $287 million bond election on the November ballot for the courthouse, which would be built on the block south of Republic Square at Third and Guadalupe streets. It would free up space at the aging Heman Sweatt Travis County Courthouse, which Richardson says is “dilapidated and overcrowded.” • AL

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Austin Lawyer October 2015

David Moore

Ben Cunningham

Greg Bourgeois

Fred Hawkins

briefs Farris, Fischer, Henneke, and Stonedale

IN THE NEWS Pirkey Barber attorney and founding partner, Bill Barber, was recently named Best Law-

New Members Please welcome the following new members to the Austin Bar: Nadine Orrell K. Cullen McMorrow, Environmental Law Mishkin Santa John Donovan, Representation of Home Builders and General Contractors Brittany Sharkey, Family Law Natasha Belisle, Environmental Law Kate Young, Intellectual Property and Real Estate Law William Smith, Contract Negotiation, Labor and Employment Law Compliance Matters David Shank, Complex Commercial Litigation

yers 2016 “Lawyer of the Year” for Litigation – Intellectual Property in Austin. Allensworth & Porter, an Austin based construction law firm, has announced Joe Basham as a new Managing Partner. Basham has been with the firm since 2002.

NEW TO THE OFFICE Andrea Bergia has joined the Law Office of Becky Beaver as an associate. Kelly Hart & Hallman has hired April Farris as an associate in the Appellate Practice Group at the firm’s Fort Worth office. Scott Douglass & McConnico have recently added associates John Ellis and David Shank to their firm.

A. Robert Fischer has been selected for inclusion in the 2016 Best Lawyers in America in the categories of Employment Law – Management and Litigation – Labor and Employment. Fischer is a shareholder with Jackson Lewis. Bill Powers, former president of The University of Texas at Austin, is entering private practice as Of Counsel at Jackson Walker. While working for the firm part-time, he will also research, write, and teach courses as a full-time law professor at UT School of Law.

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Elizabeth Douglass, Labor & Employment

Munsch Hardt Kopf & Harr has moved its office to the Colorado Tower. 303 Colorado Street, Austin, TX 78701.

The Honorable Robert Henneke has joined the Texas Public Policy Foundation as the director of its Center for the American Future. As the Center’s director, Mr. Henneke will head the Foundation’s litigation efforts in furthering its mission to promote and defend liberty, personal liability and free enterprise in Texas. Christopher Oddo is now Managing Partner at Barron & Adler’s Austin office. Barron & Adler is a boutique law firm, focusing on eminent domain, condemnation, inverse condemnation and regulatory takings. Joel Stonedale has joined the Texas Public Policy

Foundation as an attorney in its Center for the American Future. As a Center attorney, Mr. Stonedale will advance the Foundation’s litigation efforts in furthering its mission to promote and defend liberty, personal liability and free enterprise in Texas.

ELECTIONS/APPOINTMENTS Jacqueline Lee Watson, of the Law Office of Thomas Esparza, Jr. and Associates, has been elected Chair of the Texas, Oklahoma, and New Mexico Chapter of the American Immigration Lawyers Association.

If you are an Austin Bar member and you’ve moved, hired an associate, or received a promotion or award, we’d like to hear from you. Announcements for Briefs should include all pertinent information including firm name, address, and contact numbers. Send submissions to Communications Assistant Britni Rachal at Britni@austinbar.org.

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w w w. a y l a . o r g

AYLA President’s Column Chari L. Kelly, Office of the Comal County Criminal District Attorney

Avoid Objections that Miss the Mark Recalling the Rules of Evidence

Hearsay v. Authentication Don’t object to hearsay when you really mean authentication and vice versa. For example, “Objection, hearsay — we don’t know where this e-mail came from,” is not a hearsay objection. Know your objection. If you think it is an out-of-court statement offered for the truth of the matter asserted, say “hearsay.” If you think the e-mail may be a fake, or the other side didn’t lay any foundation, say “authentication.”

Admission by Party Opponent v. Statement Against Interest Admission by party opponent is a party’s own statement, offered by the other side. It is categorically non-hearsay under Rule 801, which means it can be considered for any purpose. The general rule of thumb 20

Austin Lawyer October 2015

is: if the other side said it, it’s not hearsay. Remember, you can’t offer your client’s own self-serving statements as an admission by party opponent. In contrast, statements against interest have different requirements. They must be “so far contrary to the declarant’s pecuniary or proprietary interest . . . that a reasonable person would not have made the statement unless believing it to be true.” In a criminal case, if a statement is one that would likely subject the defendant to criminal liability, it has to be corroborated. (Additionally, under the Federal Rules of Evidence, the declarant must be unavailable.)

Impeachment v. Refreshment You impeach when the witness said something different than before or when the witness tries to avoid a prior statement with an “I don’t know.” You refresh when the witness doesn’t remember. For impeachment, remember the three C’s: Commit, Credit, and Confront. Commit the witness to his statement at trial, credit the impeaching statement, and then confront the witness with the impeaching statement. Alternatively, refreshment is not confrontational; you simply

give the witness something to help refresh his memory, ask him to read it silently to himself, and then ask the question again. If he still doesn’t remember, then you may be able to read into evidence the prior statement as a past recollection recorded.

Best Evidence Rule This is not the better evidence rule. It simply means one cannot testify to something about which he has no direct knowledge, like something he read in a document or saw in a video or photograph. However, if a witness was present as an event occurred, the best evidence rule simply does not apply. For example, if a police officer conducts a traffic stop, he can testify to anything that he observed,

SEE THERE

awyers of all types and experience levels are often befuddled by the Rules of Evidence. They stand up at trial, confidently announce “Objection, your honor,” and then spend the next five minutes firing off rules they have not read since the Bar exam. While we can’t all be Wigmore, we can brush up on these common evidence mix ups.

YOU

regardless of whether it is also on video. This is different than an officer, who did not conduct the stop, being called to testify as to what he only viewed on a video.

Rule of Optional Completeness This is not an objection. It is a rule of inclusion, not exclusion. If someone offers a piece of an otherwise admissible statement or document, you can — and should — ask that the rest of the statement or document be admitted so the jury can understand the full context of the statement. Finally, if someone objects, and you don’t have a reply, simply heave a sigh, reply “Your honor, that goes to the weight, and not to admissibility,” and cross your fingers. • AL

Upcoming Events AYLA Docket Call Thursday, October 15 5:30 to 7 p.m. J. Blacks, 710-B West 6th Street Sponsored by Scarab Consulting Bar & Grill Episode XXIII Bar Wars – The Farce Awakens Friday, October 16 8 p.m. Stateside at the Paramount Tickets on sale now at austintheatre.org

w w w. a y l a . o r g

Judicial Program Hosts Texas Supreme Court Justices

n Aug. 25, the Austin Bar Association and Austin Young Lawyers Association held the most recent installment of the Bar’s award-winning Judicial Program. August’s program brought two of our esteemed Texas Supreme Court Justices, Justice Debra Lehrmann and Justice Jeff Brown, to meet with a diverse crowd of lawyers about their experiences as lawyers, judges, and Supreme Court Justices. Lunch was provided by sponsor, Broadway Bank. Justices Lerhmann and

Brown discussed their lives, their day-to-day jobs on the Court, and the Texas Supreme Court’s recent accomplishment: For the first time in recent history, the Court has cleared all of the cases on its yearly docket before starting its next judicial year. Additionally, Justice Brown offered useful tips on succinct drafting, and Justice Lehrmann offered battle-tested advice on oral advocacy. The Judicial Program, co-chaired by AYLA Treasurer Austin Kaplan and Tom Jacob, provides quarterly opportuni-

(from left) Laura Ramos, Justice Jeff Brown, Justice Debra Lehrmann, Tom Jacob, Austin Kaplan, and Katie Filmore.

ties for young lawyers to meet the judiciary. AYLA is taking

recommendations for future installments of this event • AL

AYLA Wins Programming Award … Again!

n Aug. 4, during its annual meeting in Chicago, the American Bar Association (ABA) Young Lawyers Division (YLD) announced the annual awards of achievement for outstanding activities and accomplishments of its affiliates for the 2014-2015 Bar year. Austin Young Lawyers Association, one of the smallest competitors in the 800-2,000 member mid-size division, received: First place in the “comprehensive” category, as the association with the most outstanding overall programming; Second Place for Service to the Bar category for Judicial Programs; and

Special Recognition for Service to the Public for the Austin Reentry Spanish DVD. For more information on the ABA/YLD, go to americanbar. org/groups/young_lawyers.html. • AL

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The Frontier of Legal Practice Seminar

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Texas Animal Welfare Legislative Update CLE Friday, Oct. 16 Time: Noon – 1p.m. Location: Austin Bar, 816 Congress, Suite 700

Austin Heart Walk

Join the Austin Bar Association’s team for the 2015 Austin Heart Walk. Time: 8 – 10 a.m. Location: The Long Center, 701 W. Riverside Dr. Register for free at http://bit.ly/2015AustinBarHWalk Time: Noon – 1 p.m. Location: Austin Bar, 816 Congress, Suite 700, Seminar Room Topic: Texas Supreme Court Update Speaker: Lisa Bowlin Hobbs Register at austinbar.org

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