Getting Game Day Ready in San Angelo

San Angelo, TX January 14, 2022

CDLP Chair:

Adam Kobs - San Antonio

CDLP Vice Chair:

Monique Sparks - Houston

GAME DAY! HOW TO TACKLE ANY COURTROOM SITUATION SEMINAR INFORMATION Date Location Course Director Total CLE Hours

January 14, 2022 San Angelo, Texas |Springhill Suites Marriott|2544 Southwest Blvd. San Angelo, TX 76901 Tip Hargrove and Adam Kobs 6.0 Ethics: 1.0

Friday, January 14, 2022 Time

CLE

Daily CLE Hours: 6.0 Ethics: 1.0

Topic

Speaker

7:45 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Tip Hargrove and Adam Kobs

8:30 am

1.0

Kick-Off & Red Zone | Opening and Closing Arguments

John Hunter Smith

9:30 am

.75

Scrimmaging | Pre-Trial Investigations

Patty Tress

10:15 am 10:30 am

Break .75

11:15 am 11:30 am

Scouting | Voir Dire

Judson Woodley

Lunch Line 1.0

Lunch Presentation: Keep Your Head in Game | Mental Health

David Bost

Break 12:45 pm

.75

1:30 pm

Instant Replay | Technology in the Courtroom

Clay Steadman

Break

1:45 pm

.75

Special Teams | Experts & Witnesses

Amber Farrelly

2:30 pm

1.0

Rules of the Game/Penalties | Client Relationships & Communications

Carol Camp

3:30 pm

Ethics

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Game Day! How to Tackle Any Courtroom Situation Table of Contents

-Speaker

Topic January 14, 2022

John Hunter Smith Judson Woodley

Kick-Off & Red Zone | Open and Closing Arguments Scouting | Voir Dire

Patty Tress

Scrimmaging | Pre-Trial Investigations

David Bost

Lunch Presentation: Keep Your Head in Game | Mental Health

Clay Steadman Amber Farrelly Roger Nichols

Instant Replay | Technology in the Courtroom Special Teams | Experts & Witnesses Rules of the Game/Penalties | Client Relationships & Communications

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Springhill Suites 2544 Southwest Blvd.

San Angelo, TX 76901

Topic: Kick-Off & Red Zone | Opening and Closing Arguments

Speaker:

John Hunter Smith 707 W Washington St Sherman, TX 75092-5639 (903) 893-8177 phone (903) 892-0916 fax jsmith@wynnesmithlaw.com www.wynnesmithlawfirm.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

GETTING GAME DAY READY! How to Convey the True Story in Opening Statement/ Closing Argument

San Angelo, Texas January 14, 2022

Presented by: JOHN HUNTER SMITH WYNNE & SMITH 707 W. WASHINGTON STREET SHERMAN, TEXAS 75092 TELEPHONE (903) 893-8177 FACSIMILE (903) 892-0916 jsmith@wynnesmithlaw. com

1

Telling our Story Through Opening Statements and Closing Arguments

I.Introduction The opening statement and closing argument are some of the most crucial components of any trial. In order to effectively engage and persuade the modern jury we must learn how to present a compelling story that sets forth our framework, and crafts the lens through which the evidence will be viewed. Such a task may seem daunting at first, but persuasive storytelling is an art form that we have been inoculated with our entire lives. Conveying a persuasive story starts with a few universal methods and techniques that have been utilized for decades. This article aims to address a few of these methods and techniques that we can all utilize to more effectively persuade in our opening statement and closing argument.

II.Elements of the Opening Statement The opening statement is your first opportunity to present your case to the jury, and to shape the jury’s perspective of the entire trial. Needless to say, you cannot underestimate the importance of an opening statement. In the words of renowned trial lawyer Gerry Spence: “You can have the greatest close in the world, but if you haven’t won the case by the time that you get to the close, it’s too late. The opening statement is where you win the trial” A good opening statement should serve as the lens through which jurors see the evidence as it comes in over the course of the trial. How we provide the lens is through the art of persuasive storytelling. When telling our clients story we must be cognizant of who our audience is, their limitations and expectations, and what methods and techniques that can be utilized to reach them.

Come Out Swinging Start strong! “You never get a second chance to make a good first impression”.

This age-old adage has never been truer than the beginning of a jury trial. The opening statement presents the first opportunity to speak directly to the jury and tell them what the case is all about. As the jury is sworn in and seated in the jury box their interest is at the highest point of the entire trial. In an unfamiliar setting they are curious, fresh and receptive. Don’t waste this opportunity. You have to take advantage of the juries’ heightened interest and proceed with an opening that will convey your message in a way

2

that they will embrace and enhance the prospect of obtaining the only verdict you and your client care about… Not Guilty.

While generalizing human behavior can be difficult, social scientists have taught us that most people make up their minds early and stick with their decision. When making up their minds, people inherently rely upon their widely held beliefs and preconceived notions based on past experiences. This allows people to process large amounts of information quickly and come to a decision. Decisions are comforting.

Indecision causes stress, anxiety, and nervousness. Importantly, once making up their minds people are reluctant to reverse their decision. A study from the University of Chicago in viewing human behavior in trial advocacy concluded that 80 percent of jurors form opinions following opening statements and do not change those opinions after hearing the evidence.

How the opening begins is so important that it must be structured to grab the attention of the jury when it is at its highest point and then begin to direct the jury through the evidence that you will be presenting. The principle of primacy also dictates the need for a strong beginning. People tend to retain those things they hear first and they are slow to change their view afterwards. If you can express the essence of your case in the first four minutes, you will take full advantage of primacy. So the question becomes, how do we start strong and communicate our client’s defense in a persuasive manner that takes full advantage of the juries receptiveness and malleability?

Develop a Theme It’s critical in the opening to construct a framework as to how the jury will view the case. It is widely recognized that jurors process information in light of the theme that is introduced and they adopt. Any information that is consistent with the adopted theme is easily remembered and information not consistent with the theme is forgotten or disregarded. A major battle is won when the jury views the evidence in the case through the framework that you have constructed for them.

When delivering your opening statement, you should focus on providing the jurors with factual information that is designed to create an embedded memory. As the case unfolds this embedded memory will cause each juror to perceive the evidence in accord with your theory of the case, i.e., the fact based reason why you are entitled to the jury's verdict. In opening you will try to convey a view and feelings to your listening audience. Your view will be slanted toward building a story of the case that will evoke the ultimate response you seek - a not guilty verdict.

Jurors do not come into court empty, void of any knowledge or feelings. Their minds are not a blank slate ready for you and the prosecutor to fill with only the evidence of the case. They absorb information based upon their values and experience. It has been said that every case turns on a few fundamental concepts. Identifying those concepts and weaving them into your theme is the key to success. If you do not have a theme, you will be like a warrior going into battle without a sword.

3

What is a theme? It is a short, simple concept that states a capsule of your case. It provides essential meaning to the jury and helps them to organize and remember the case facts and is the means to reach the ultimate action in the case.

If you had to explain the case in 30 words or less, what would it be? If you had to explain it to your children when they ask you what the case is about, how would you explain it in a short, concise statement? If a neighbor asks what kind of case are you working on, how would you tell them what the case is about?

A theme should be easy to remember, favorable to your client, and consistent with universal concepts of fairness and what is right. When identifying a theme, it should be based on life’s experiences, human values, and general principles that are inherent within our society.

You then arrange the facts in support of the theme to persuade the jury. The right theme helps jurors rationalize any and all of the case conflicts and gives them the means to justify the desired result. If you fail to give the jury a theme, they will come up with one on they’re own, or worse, use the prosecutor’s theme.

The theme must be told so that each juror can index his or her own favorable beliefs and principles to that theme and use it in processing the evidence to reach a conclusion or result in your favor. Jurors use conceptions based on past experiences to organize information and come to a quick conclusion. Verdicts almost always connect the juror’s mind to points made in the opening. So how do we effectively convey our theme?

Tell a Story You do this by presenting the information and evidence you have so that the jury will understand it and its relationship to the theme. We persuade by delivering and telling our story to the jury.

Much of what we learned in life, we learned through stories. How we tell someone about an event is through a story, with action, suspense, drama, vivid character development and foreshadowing.

You want to make your opening statement like a good story. A story can make the complex simple, the boring interesting, and the dull exciting. It should have a beginning, middle and end. In the beginning, you grab their attention with your impact theme.

Stories are based on facts, not abstractions. Keep in mind that your opening is when the jurors will begin to form their first mental pictures of your case. You want the mental images to be vivid, but they also have to be factual. They must make logical sense. The story must be simple in the sense that the jurors must be able to fully grasp it.

4

Know your audience and shape your story to appeal to the commonly held values. (e.g. sense of justice and fairness, righting a wrong, preventing a wrong, etc.)

Tell the heart of your story in the present tense, concentrating the jurors' attention on the relevant conduct and event(s) and not on what each witness will testify to in court.

Eschew the "Jonny will testify to blah-blah-blah. Then Susie will testify to blah-blahblah. Then Officer Jones will testify to blah-blah-blah" method. You'll get the jurors on your side of the case during your opening by helping them mentally visualizing what happened in real life, not what is going to occur in the courtroom. While depicting your story and creating these mental images, don’t forget to tell the Jury what they will not hear, but may expect.

Sequencing of the facts is also important in how you tell your story. Who are you going to focus on? When you begin to tell the story, consider starting with the defendant’s conduct. Studies have shown that you achieve the most impact if you start with the defendant’s conduct.

The middle is where you provide the facts and evidence with the theme woven throughout. Keeping in mind the principles of persuasion, the middle of the story should employ techniques such as rhetorical questions, analogies, visual aids, and the rule of threes. Use passion to draw the audience into the story and use your theme to relate to general principles and universal truths. (e.g. good vs. evil; abusive vs. fair; trust vs. betrayal; chaos vs. order; knowledge vs. ignorance, etc…). Don’t forget to drive home roadblock facts that will maximize the chance the jury will examine the prosecutions case with a critical eye.

The end or conclusion should be dramatic and powerful and connect to your opening. It should give them a call to action and involve them in the process of making the right and just decision.

A well-told story engages the jurors and provides them with a framework they can use to filter and organize the evidence they will see and hear during the trial So how do we tell a good story?

Tools of Persuasion How we persuade is how we deliver and tell our story to the jury. Be a persuader and not a lawyer. You must learn to walk the tightrope of persuasion without falling into the pit of objectionable argumentation. Many years ago, the Roman lawyer Cicero, set forth Six Maxims of Persuasion. These maxims can be used and incorporated into any opening to effectively communicate and persuade the jury.

1. Understand that what reaches the mind moves the heart.

Passion, as well as reason, must be used.

5

2. Understand motives to understand human behavior. The defendant’s conduct is an essential part of persuasion and should come first.

3. Move from the particulars of the case to universal truths. Social importance of taking action is an important element in the story.

4. Draw the audience into the story. Tell the story in the present tense as if the jury was watching the events unfold in front of them, rather than hearing a narrative of something that happened in the past.

5. Expose the flaws in the opponent’s position.

6. Communicate your passion and logic in words the jury will understand.

Communicate with Conviction Social scientists have studied the impact of messages related to the three primary channels of delivery: verbal (words), vocal (how the message is delivered), and nonverbal (facial expressions, eye movement, body positions). What is said (the words) accounts for only 10 percent of the impact. Our voice message, inflection, and resonance, account for 40 percent. By far the most important aspect of the message is nonverbal, which delivers 50 percent of the impact. You have to use all three means of delivery if you are going to persuade in your opening.

Repetition Repeat words and your theme. Repeat the theme throughout the opening.

Repeating words or phrases can give them more significance and importance.

Rule of Three Social scientists again tell us that information is best understood when it is presented in groups of threes.

Use trilogies to drive the point home. Some powerful three-word combos are: •

Describing interactions between police and our clients: Abused, taken advantage of, violated;

•

No loss of faculties: Reacted normally, walked normally, talked normally;

•

Discrediting State’s science: Inaccurate, unreliable, and unscientific;

•

Reasonable doubt: Wavering, unsettled, unsatisfied.

6

Common Examples ◦

He walked normally, talked normally, and stood normally on the videotape.

◦

Without a check for calibration with each test, this machine is inaccurate, unreliable, and unscientific.

◦

I expect the judge to tell you that reasonable doubt may come from the evidence, a lack of evidence, or a conflict in the evidence. (Then consider using a chart where you can list facts in each category.) If your minds are wavering, unsettled, or unsatisfied, then that is the doubt of the law, and in that event you should acquit the defendant.

Rhetorical Questions Is that fair? What would it be like to be accused of something you didn’t do? Is that right? Why would an officer fail to do that? Why would the State not tell you about that?

Visual Aids Visual aids may be effective in conveying a point. Just be careful not to use too many. Charts and diagrams can be helpful in understanding. Jurors remember what they see and hear better than what they just hear. Remember, persuasion is the key. Think “show and tell”. You can tell an effective story in such a manner using common rhetorical aids. Retention is six times greater when information is presented by visual and oral means than when the same information is presented by the spoken word alone.

The old saying that “a picture is worth a thousand words” turns out to be true, particularly when it comes to persuasive storytelling at trial. Visual information assists juries in a number of ways that are extremely useful, if not essential. Visual aids help make difficult concepts imaginable by prompting sensory imagery with concrete depictions rather than abstract ideas; it tightens the proximity between the information and the jury by decreasing the number of mental steps the jury must take to convert information to an understandable form; and it promotes recall by using memory-encoding pathways that are more effective than the pathways that encode memories of words alone.

Further, combining images with words may have an exponential effect on a juror’s ability to remember information. Cognitive science indicates that if information is coded redundantly with both words and images people are more likely to remember that information. Finally, in addition to aiding memory, images can improve comprehension.

Thus, images have some advantages over words, and because graphic novels tell stories with both images and words, they are excellent vehicles for storytelling analysis.

7

Foreshadowing Foreshadowing is the technique of indicating your future argument beforehand by creating an expectation in the jurors' minds. You can do this in opening statement when you come to a key part of the story by making a parenthetical statement, an aside, to the effect that "This is an extremely important part of what happened, and later in the case we are going to talk about it and have you understand why it's so important”.

Humanizing Pull back the curtain and let the Jury know what you want them to know about your client. If you allow your client to be an inanimate object then they will be viewed and treated as such. As Gerry Spence says, let them be real people; real people have faults.

No matter who your client is or what they may have done, he or she possesses some qualities that people will identify with. Explore how to get these good character traits before the jury, without opening unwanted doors. Again, borrowing from Spence, with a few additions, here are some examples: • • • • • • •

Hard working Honest Simple Not the type to be on welfare Worked with kids Cared about the poor Faithful member of ______ church

Avoid Clichés and Boilerplate Don’t waste time getting to your story. Avoid pointless clichés and boilerplate statements that don’t add to your story. Some common examples are: “What I say is not evidence” “This is a road map” “The evidence will show” “It is like a jigsaw puzzle” “At the close of the case, the court will instruct you” “It is your decision to determine the facts” “It is now my opportunity to give an opening statement to tell you what I think the evidence will be.”

If you do that, by the time you are finished with your introductory remarks, the jurors will be thinking about something other than you. It wastes time and gets into the fourminute window—that period of time when the jury is most receptive and you have to get your point across or the window will be shut.

8

Do Not Give the Jury Unconnected Facts Explaining and arguing, while great at showing rhetorical skills, is not as persuasive as storytelling. A cold listing of facts to which each witness will testify fails to persuade. It is recognized that when people receive random data or unconnected facts, it seldom leads to understanding or knowledge. Data does not equal understanding, and understanding is the key to persuasion. Henry David Thoreau said “It takes two people to speak the truth, one to speak it and one to hear it.” The overall goal is to tie in the facts to your theme and present them in a manner that leaves the Jury with only one conclusion--the one you are advancing.

Avoid Overstating and Reveal Weakness Never overstate what your case is or state something that you will not be able to prove. Credibility is an important factor in a jury trial, and the loss of credibility will result when you overstate what your evidence may be. Reveal your weaknesses. To defuse or mitigate the known problems or weaknesses in your case, identify those matters early on. This will cause a jury to emotionally identify with your client. Explain before you have to contradict.

Anchoring Anchoring is a rhetorical device during which you refer to a certain event, theme, or piece of evidence at a particular place in the courtroom. Every time you come back to it, the jurors are anchored by that position.

Avoid Legal Talk Get on the jurors’ level. Word choice that may impress your fellow legal colleagues has the high potential to confuse, mislead, or lead to a misunderstanding of the point you’re trying to convey. You don’t have to be Forrest Gump, but avoid the legalese and use everyday language. The words should be simple and direct in everyday English.

Richard Leder in The Miracle of Language said that 11 words account for 25 percent of all spoken English, and 50 percent of the most common spoken words are one syllable.

Be Credible Always be the most credible person in the courtroom. This deserves its own section because it is so critical. Your credibility is the most important thing you have.

Tell a compelling, convincing story, but do not overdo it. Make sure your story is true, and that you can prove it. If not, and the prosecutor capitalizes on exposing the defense lawyer’s questionable credibility, the case is lost. Whatever you do, do not overpromise and under deliver.

9

Conclude, empower, and call the jury to action.

There are many different ways to conclude. Remember the recency effect. Jurors will recall most what you tell them at the end of your opening. Strive to impassion and empower the jury.

End Strong End as you began, with a strong statement that ties your entire case together and gives the jury a call for action. The opening is the most critical point of the case since you have the undivided attention of the jury. They are fresh, eager, and anxious to hear why they are seated in the jury box. With a powerful theme stated forcefully at the beginning of the opening, then developed into a story that you present with a beginning, middle and end, you will take the jury where you want them to go—accepting your theme and making it their own by reaching a verdict in favor of your client.

How your opening is presented will decide how your case will end. So, conclude your opening confidently, and with an unambiguous message. You must leave the Jury with a clear understanding of your client’s position in the case, a basis for believing you side, and an appreciation for their role in the rest of the trial.

III.

Closing Argument “The only cases that can be won in the final argument are those that have not been previously lost. On the other hand a good case can be lost in those fatal, final moments.”

-Gerry Spence Closing argument is the culmination of all of your hard work during the trial. It’s your last chance to make a positive impression before the jury begins deliberations.

However, a good case can be easily lost in closing argument. Don’t waste this opportunity by a mere summarization of the evidence presented during the trial. A wellcrafted, well-delivered closing argument will encapsulate your client’s story and build upon the framework you laid during your opening statement. Your closing should grab the jurors’ attention, cause them listen intently, and remember what you’ve said. Most importantly, a persuasive close will cause the jurors to invest in your client’s story with their hearts and minds.

The persuasive methods discussed above that make an effective opening statement are equally applicable to crafting a powerful and persuasive closing argument.

Additionally, the following techniques will allow you to formulate, and deliver a more effective closing argument.

10

Closing Argument Comes First When it is time for closing argument it is no time to start deciding what to say.

The essence of persuasive closing arguments is known and practiced well before jury selection starts. The closing must be theory driven and dovetail with the message delivered in the opening statement.

It’s never too early to start thinking about your closing. I find it essential to begin drafting your closing argument even before you prepare your opening statement. This will assist you in developing the theme of your case, and allow your formulate a story that will encapsulate unified, and easy to follow arguments throughout the trial. I find it helpful to think of fact-based conclusions you want the jury to reach and then work backwards to develop questions that would lead to those conclusions. These questions will assist you in developing a theme and corresponding story that drives home why you win. In general, a good case theme has the following characteristics: •

It clearly tells the jury what verdict you want and why

•

It is logically based on the evidence

•

It is consistent with common sense

•

It accounts for all of the important evidence

•

It concentrates on the most important items of evidence

•

It avoids legal technicalities as much as possible

•

It explains both why you are right and why your opponent is wrong

•

It uses specific evidence and specific legal principles, not generalizations

•

It suggests reasonable ways to resolve disputes

•

It appeals to the jury’s sense of fairness and justice

•

It is entertaining and incorporates visual aids

Arm your Troops Closing argument should not be predicated on recruiting new jurors to swing your way, but for arming those already on your side. You are the general who provides a battle plan to your troops who will fight for your side in the jury room. Your argument should try to accomplish six goals: 1. Reiterate your theory of the case and make sure the jurors understand it.

The importance of having a clear, simple theory cannot be overstated. It provides direction to your jurors.

11

2. Emphasize favorable evidence, but don’t waste time with a detailed rehashing of every detail.

3. Rebut your opponent’s allegations though your own story. However, don’t focus too much on the prosecutions version of events and evidence, but instead weave your rebuttal through your own story.

4. Suggest specific ways for the jury to resolve conflicts in your favor — both affirmative reasons why your position is right, and negative reasons why your opponent’s position is wrong.

5. Explain the law and show how the evidence requires a verdict in your favor.

6. Most importantly, reduce your case to a good story, including plot, motives, adventure, battles between good and evil, human weaknesses, temptation, drama, and a moral at the end.

Facilitation Not Declaration Communication, in its simplest terms, involves the sending of information and the receipt of that information. When talking about verbal communication the process implies that there is a speaker and a listener. If the jurors don’t listen there is no communication. If you make the closing about you, by talking at them instead of with them, by being condescending in your voice and mannerisms, by telling them what to do instead of showing them the way and letting them get their on their own, they will tune you out and turn you off. We must learn to be facilitator with our argument and guide the jury through the evidence and law in a way that supports the ultimate decision we want them to reach.

Principles of Effective Argument Use the theme from your opening statement. This is your opportunity to drive home the theme you supplanted in the mind of the jury during opening statement, and wove throughout your direct and cross examinations.

Keep it simple. Simple does not mean simplistic; it means uncomplicated.

Concentrate on the real disputes, resist the temptation to offer several alternative theories, and avoid becoming bogged down in reviewing uncontested or trivial matters. Social psychologists indicate that about seven points are all you can argue persuasively. After that, arguments become confusing.

Be specific. Facts are more important than generalizations or rhetoric. Be specific about the important factual points, and the details that corroborate them.

Be explicit. Psychologists have demonstrated that an argument is more persuasive if the desired conclusions are explicitly drawn than if you leave it up to the jury to draw its own conclusions. Jurors will generally hold more strongly to a conclusion they reach on their own, but if you don’t lead them a conclusion, the juror may reach one you don’t like.

12

Be organized. Remember the concepts of primacy and recency. Jurors tend to remember more of what they hear at the beginning and what they hear at the end.

Do away with the formal introductions and platitudes.

Stick to your Story. Don’t waste time attacking the prosecutions story or theory, instead focus on your own and incorporate the prosecutions weaknesses throughout.

Use visual aids. Use them! But do not limit yourself to exhibits already introduced. Charts can be prepared specifically for closing argument, and arguments can be illustrated via PowerPoint, ELMO, or flip board. The uses of descriptive exhibits are as varied as your creativity.

Support your positions with jury instructions. Rather than just summarize all the law at one time, weave instructions into the fabric of your argument.

Humanize and Personalize. You should make conscious efforts to personalize your client by referring to him or her by name and telling the jury personal things about your client’s life throughout your story. Always remember, if you present your client in an inhuman manner the jury will to.

Use analogies to common experiences. If you think a jury may have difficulty understanding a legal concept, try to analogize it to some common experience.

Be positive. Spend your time arguing your own case, not the prosecutions.

Emphasize your strengths and concentrate on your main points. Discuss the prosecution’s case only to the extent necessary to refute it briefly.

Admit your weaknesses. Every case has weaknesses. You should confront those inherent in your theory, admit them, and deal with them as best you can. The jury is probably already aware of them from the evidence, and the prosecution is sure to bring them up, so you cannot make them go away. Therefore, you might as well at least earn points for candor and honesty. However, the dividing line between a candid discussion of your weaknesses and a defensive argument that focuses on your opponent’s evidence is a fine one. It is not necessary to confront every piece of contradictory evidence. Rather, you should discuss and explain away the major weaknesses in your own theory.

Conclusion The final part of your argument should be a strong statement of your position. Who did what to whom, why did they do it, why is it legal (or illegal), and why does it entitle you to a verdict in your favor. Keep your summary brief and stick to your own case. Don’t rehash both sides of the argument or end on a defensive note, because that gives too much credit to your adversary’s position. Make clear to the jury exactly what verdict you expect them to return. If they made any promises to you in voir dire, remind them of 13

that. Then, conclude with a strong finish that sums up the central theme of your argument and the justice of it. Thank the jury on behalf of your client, and sit down.

14

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Springhill Suites 2544 Southwest Blvd.

San Angelo, TX 76901

Topic: Scouting | Voir Dire

Speaker:

Judson Woodley PO Box 99 Comanche, TX 76442-0099 (325) 356-2502 phone (325) 356-5193 fax jud@woodleydudley.net www.woodleydudley.net

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

The Basics of Jury Selection

Presented by Jud Woodley Woodley & Dudley Law Firm Comanche and Brownwood, Texas 806.773.3525 (cell)

TCDLA GETTING GAME DAY READY Scouting – Voir Dire

*Special thanks to Jeff Kearney, portions of whose written jury selection works were sampled in this paper.

The Basics of Jury Selection By: Jud Woodley I.

Setting the Stage

It’s Monday morning. Trial day. You have a feeling of angst while getting dressed to go to court.

You don’t think your case will be reached for trial because it’s number three among the cases on the list. You texted the defense lawyers with the two cases ahead of yours last night, and both assured you that their case would not settle.

You’ve brought with you some trusty jury selection tools: 1) an outline of topics and questions, 2) a juror seating chart with room for notes, and 3) a jury questionnaire covering the most important issues of your trial.

You finally arrive at court and are confronted with the news that the two cases ahead of yours settled, and your case is going to trial.

II.

We’ve All Been Here

If you’ve represented indigent clients charged with crimes for any length of time, particularly in rural areas, you’ve been here. Most of us have scores of indigent cases at a time. We will have multiple felony cases set together on the same jury docket. There will be multiple other cases set along with our cases on the same docket. It’s common for us to not know for certain if our case will be reached for trial until a few days prior to jury selection, or, frankly, until the day of jury selection. But we are the battle tested. We know how to pick a jury, and we’re always ready to go because this is what we do.

III.

The Jury Questionnaire

For years we’ve been taught at TCDLA seminars about the effectiveness of jury questionnaires. We’ve been given samples of questionnaires to tweak and use in our cases. As of this writing, I have never used a juror questionnaire, and know of no attorney in the region I

practice having used one in any criminal trial. I want to change this, so I decided to find out how hard it would be to integrate questionnaires into my trials.

If you’ve ever picked a jury in a case involving issues that are taboo, repugnant, or likely to induce hostility, then you’ve confronted the reality that most jurors are not going to give meaningful responses. In such cases you walk a tight rope, asking questions that conjure up repulsive and distressing thoughts and images, while at the same time trying to establish rapport with 50 strangers. Your presentation easily becomes awkward and disjointed. Disoriented and embarrassed faces stare back at you from the jury panel.

Many prospective jurors suffer anxiety in anticipation of being asked questions, and will pay little to no real attention to the points you’re trying to develop and convey. You’ll get ineffectual responses from 5 to 10 prospective jurors, whose answers are constrained by an unfamiliar environment with dozens of strangers listening. You will not receive substantive information because their responses will be demure and calibrated to avoid feeling ashamed or judged by their peers.

The object of the questionnaire is to find out information about the prospective jurors so that you can effectively exercise peremptory strikes, and consider challenges for cause.

If you’ve ever thought about using a questionnaire, you’ve probably contemplated the logistics of how to get it done, particularly in a court appointed case where you may not have help. Ideally, you should get approval from the Judge and agreement of the prosecutor before trial.

When Judges learn that the questionnaire will save the court’s time, they should normally appreciate them.

The best practice is for the jurors to write their answers when they arrive at the courthouse, prior to being qualified. In jurisdictions where I practice, Judges qualify the jury. This process can take from 30 minutes to an hour (depending on how much politicking the Judge wants to do with the panel). During this time, the lawyers are usually sitting around. While the jury panel is being qualified, rather than sitting around, the lawyers could be analyzing the questionnaires. The only problem with this is that you won’t know what order in which the jurors will be seated, and you may spend

time analyzing questionnaires of jurors who are excused during the qualification process.

Each prospective jury should receive a questionnaire on triplicate, carbonless paper with a cardboard backing and a black ink precision point pen. Once you draft your questionnaire, you can send it to any copy shop to be assembled for 50 cents apiece. 70 questionnaires will cost you $35, and 70 decent black ink pens will cost you around $30. All in: less than $100, for which you may seek reimbursement from the court.

Prospective jurors should be given at least 15 minutes to answer the questions. The Judge should allow them to answer the questions in the hall outside the courtroom. The more comfortable they are, the better answers you should get. The Judge should put the bailiff in charge of handing out and collecting the questionnaires.

IV.

Challenges For Cause

Challenges for cause can consume a great deal of time in voir dire. If you have jurors who give answers that suggest further questioning is necessary to determine if a challenge for cause is appropriate, the questioning process can exhaust precious time. You should ask the Judge if further challenge for cause questioning can be taken up at the end of the entire voir dire.

Judges should be amenable to this process because it allows for the maximum use of the attorney’s time during voir dire and does not interrupt his/her flow. If the attorney has a talkative juror who is subject to a challenge for cause on one issue and the juror wants to assert his/her view on another issue, the attorney can be polite and not offend the juror by saying, “[Juror’s Name], I know I am cutting you off, but we will be talking with the Judge a little later.”

By doing the challenges for cause at the end, the attorney knows, and more importantly, the Judge knows, exactly how many jurors are being challenged, how many unchallenged jurors are left, and which of the challenged jurors are most likely to be excused for cause.

There are many inherent problems with the challenge-for-cause-as-yougo approach. For example, fully developing the challenges for cause as

they arise is not time efficient, other jurors may get bored, qualified jurors may learn how to disqualify themselves, and some cases get reversed because the Judge doesn’t grant an early challenge for cause for fear there will not be enough jurors left. Therefore, counsel would be well-served to ask the Court to allow the additional challenge for cause questioning to occur at the end of voir dire.

V.

Strategy

Following are several topics for consideration regarding objectives and strategies for any jury selection.

A. To Learn or To Teach?

It is human nature for an attorney who has spent months preparing a case to want to convince everyone in the courtroom that his or her position is the correct one, and that the client is deserving of a favorable verdict.

Potential jurors come to the courtroom with a mind-set that has developed over the span of many years, and seldom (if ever) will an attorney change a juror’s mind. In fact, it is rare to change a person’s mind and futile to try to change a person’s heart. Time should not be wasted trying to convince anyone to change. Attempting to convince jurors to change will only alienate them, shut down any possible dialogue, and encourage arguments, one-upmanship or lying. It is the wise and skillful attorney who listens to the jurors and learns from them.

The attorney who asks jurors questions with an I-want-to-learn-fromyou attitude will find that jurors are more willing to share their feelings or opinions when there is no threat of a challenge or criticism. These jurors will provide the information with which counsel can make meaningful challenges for cause and intelligently exercise peremptory strikes, while encouraging the other panel members to share their opinions or feelings because it is safe to do so.

By the same token, providing some information to jurors, such as how the criminal justice system works, and the concept of the presumption of innocence and the like can be very effective. I’ve found that most jurors have no idea what it takes to get from being a citizen, free from the bonds of a criminal prosecution, to being a citizen under indictment and sitting in

the chair facing them. In many cases, it only takes an allegation, in the form of words, to be uttered against a person to put them on trial.

Many jurors also don’t have an understanding of the right not to testify, or indeed the right of the accused to not utter a single word throughout the trial. I’ve seen looks of surprise when the jury learns that if the accused stands mute when asked for a plea after the reading of the indictment, the court must enter a plea of not guilty on his behalf. Sharing some knowledge and providing the jury some understanding of the process, can accomplish two things: 1) impress upon them the fact that our laws were designed to protect the innocent, and 2) establish your credibility on the law with the jurors.

B. Never Be Judgmental of the Jurors In any meaningful relationship, it is important to trust and not be judgmental of the other person. This is especially true when it comes to jury selection. Too many times lawyers will alienate potential jurors by saying things like, “Do you understand the law says...” or, “Are you telling me that you can not follow the law?”. When an attorney makes statements like these, the potential juror instinctively feels defensive or put on the spot.

Even more damaging is the fact that the other potential jurors will feel empathy for the juror and animus towards the attorney. A better approach and one that will foster open communication is when the attorney has the courage to commend a juror who has given a painfully honest, yet negative answer. There is no such thing as a bad answer. The reason for this is because bad answers will open the door to challenges for cause or peremptory strikes. For example, imagine a situation where a juror has said that a person on trial should testify. Instead of responding with, “Do you understand that every citizen has the right to not testify, and that the State bears the burden of proving a defendant guilty?”, say to the juror: “Miss Smith, I appreciate your honest and candid answer. The beauty of our system is that everyone is entitled to their own opinion. You have had the courage to express yours. Is it okay with you if a little bit later we visit (some attorneys would feel more comfortable saying talk) with the Judge about this?” This non-judgmental approach will be appreciated by the questioned juror and will create a setting that will encourage the other jurors to be honest with the attorney as well.

C. Concentrate on the First Thirty-Two Jurors With voir dire time strictly limited, it is important not to use valuable time talking to jurors who will never sit on the panel. Limit questions to the first thirty-two jurors. If some of the first thirty-two jurors will be subject to a challenge for cause, talk to a sufficient number of jurors past juror number thirty-two. For example, if you feel that four jurors may be excused for hardship or subject to a challenge for cause as a result of the prosecutor’s voir dire or answers contained in the jury questionnaire, then talk to jurors through number thirty-six. The exception to this rule is if there is an expert who can educate the panel on a very important point and whose number is beyond thirty-two. Otherwise, there is no benefit talking with jurors who will not serve, and valuable voir dire time that could be used getting to know potential jurors will be wasted.

D. Looping One of the most powerful and effective voir dire techniques is called looping. Looping is a technique whereby an attorney asks one potential juror a specific question and the juror responds. The lawyer then uses the juror’s name, repeats the juror’s exact words, and then asks another juror for a reaction to what the first juror said. A third juror is then asked to respond to the answers given by the first two jurors, with the attorney repeating their answers exactly and always using the juror’s name.

This communication technique has many benefits. The jurors are educating each other rather than the panel hearing the propaganda of the lawyers. By repeating the juror’s exact words, any juror who disagrees is, essentially, disagreeing with another panel member and not the attorney.

Using the jurors’ names compliments the jurors who have spent all day being treated as nameless and faceless entities, and the attorney becomes the one person who has recognized the jurors as people. The jurors will feel that they are held in positive regard and that their answers are valued.

This technique makes the jurors more likely to share honest feelings and opinions, and is the single greatest tool in encouraging a roomful of strangers to do so

Looping is also an effective way to deal with unfavorable answers.

Following an unfavorable answer, a lawyer should thank and praise the juror for the answer. The attorney should explain to the juror and the entire panel that the purpose of voir dire is to learn what people’s opinions and feelings about certain subjects are, that the beauty of our system is that everyone is entitled to their opinions, and that there are no right or wrong answers, just honest ones. The attorney can then determine how many jurors agree or disagree with the view expressed by that particular juror.

Jurors who share a similar opinion or feeling can be identified. Once the attorney has determined this group of potentially unfavorable jurors, he or she can then focus on jurors who are favorable on thisi ssue, i.e., they disagree with the previous (and unfavorable) answer. Opposing viewpoints can then be expressed by the other jurors. By handling an unfavorable answer in this manner, the lawyer has identified potential problem jurors, maintained or increased credibility, encouraged further candor from the jurors, and has once again segued back to positive ground by having the good jurors educate the panel.

E. Closure Question As a general rule, we do not advocate asking general questions to the entire venire. Many times, when a probing and meaningful question is asked in a group setting, jurors are reluctant to answer. For example, in this day and age most potential jurors have opinions and feelings on laws, crimes and punishment. Too many times we have heard a lawyer say to the jury panel, “Will any member of the jury panel hold it against the Defendant if he/she does not testify?” We know that many jurors have strong feelings and negative opinions on this topic and will usually share this information when properly asked on an individual basis (i.e., “What would your reaction be if a person on trial did not testify on his own behalf?” or, “What are some reasons why an innocent person would not testify?”).

What often happens in a group setting is that no one will raise their hand. General questions to the panel will only encourage the most outspoken jurors to participate. These jurors are just looking for the opportunity to speak their minds. Our goal is to get the other jurors to talk.

Therefore, we recommend that an attorney ask specific jurors specific questions until such time as the attorney is ready to bring the topic to a conclusion. That is the time to ask the entire venire the closure questions, “We have heard quite a few of your fellow jurors say they feel that there are

valid reasons why an innocent person would not testify. Are there any members of the jury panel who feel differently or disagree? There is nothing wrong with disagreeing, but we need to know, so please raise your hand.” Conversely, if the prior jurors said that a person accused of a crime should testify, the attorney should ask a series of questions in the following manner: “Before we leave this topic, I need to ask you as a group, how many of you agree and disagree with Mr. Gray and Ms. Dodson. First, how many jurors agree that a person should testify? Please raise your hands.”

After recording the names and numbers of the jurors who agree, ask: “How many jurors disagree with Mr. Gray and Ms. Dodson that there are valid reasons why a person would not want to testify?”

Again, record the jurors’ names and numbers. This time go back and ask several of the jurors why they disagree. Finally, some jurors will not raise their hands at all. Pick two or three jurors and say: [Juror’s Name], I noticed that you didn’t raise your hand. What is your feeling or opinion about an innocent person on trial not testifying?

-END

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Springhill Suites 2544 Southwest Blvd.

San Angelo, TX 76901

Topic: Scrimmaging | Pre-Trial Investigations

Speaker:

Patty Tress

222 E. McKinney Suite 210 Denton, TX 76201-2900 (972) 325-1758 phone (940) 222-2769 fax planyourdefense@yahoo.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

BATTLING THE RESISTANCE: PRETRIAL INVESTIGATIONS

Patty A. Tress 222 E. McKinney Street, Suite 210 Denton, Texas 76201 planyourdefense@yahoo.com (972) 325-1758 (office) (972) 922-5498 (cell)

Pretrial investigation is THE most important part of what we do as criminal defense attorneys. The information we hear, flesh out and use is all gathered during this phase of our representation. This is everything up until trial. Pretrial Investigation is what will provide you with the information you need for gathering additional evidence, witnesses, direct examination and cross examination. You must be thorough in your pretrial investigation on each case.

I.

WHEN TO START YOUR INVESTIGATION

You must conduct an independent investigation. You cannot solely rely on the State’s Evidence. Relying solely on the State’s investigation/evidence and failing to conduct an adversarial testing of the State’s evidence is ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984).

You will begin your investigation as soon as your representation starts. This can be as soon as you are retained or appointed to a case. If you are retained, it will likely begin during your consultation/sign up with the client. If you are court appointed, it will begin when you meet with your client for the first time. In person meetings are preferable, however, given the pandemic we are facing, you can utilize zoom, securus, home wave, facetime, or a meeting at your office or at the jail. It just depends on your and the client’s level of comfort. If for whatever reason, you cannot get to the jail to see your client, and you do not wish to use

securus or home wave, please send the client a letter with a questionnaire and selfaddressed stamped envelope to send back to you. This will help get you started on the information you need to be looking into on your client’s case.

DO NOT JUST WAIT FOR THE CASE TO BE FILED OR INDICTED. Waiting could allow time for witnesses to disappear, documents to go missing, or just plain old people forgetting what happened. So, make sure to start your investigation right away. Remember, timing can be everything. Additionally, make sure you get an investigator to help you on the more complicated cases.

2. BUILD YOUR TEAM Having a team to help you is imperative in having a successful representation.

Who should be in your team? Well, that is up to you but there are always a few main players. You, your assistant/paralegal, any associate attorneys, investigators, and experts. One of the first people other than myself and my assistant that becomes involved in a case are my investigators. It is important to seek out an investigator that is experienced and whom you can work well with on your cases. I use the same investigators on my cases but you can have different ones for different cases if you choose.

Investigators and experts cost money.

If your client has money and is

retained, you will just need to contact the investigator or expert and have your client

pay the fee. However, if your client is indigent or has become indigent during your retained representation, you need to request an investigator and expert from the court. Remember not every case requires an investigator or expert.

To have the court foot the bill for the investigator or expert, you need to file a motion. Attached to this paper are the motion and order I use for both appointment of an investigator and expert. You will be filing an Ake v. Oklahoma, 470 U.S. 68 (1985) and Ex Parte Briggs, 187 S.W. 3d 458 (Tex. Crim. App. 2005) motion. Even if you are retained, if your client has become indigent do not hesitate to file this motion when you need an investigator or expert. The Court often wants to limit funds for experts and investigators. If they do not authorize enough money, make sure you contact other experts, get affidavits of what they charge and reapproach the court about additional funds. I cannot stress this enough---You must continue to ask for additional funds or find an expert at the price you have. If you do not, you are setting yourself up for an ineffective assistance of counsel claim. Finally, make sure that you stay involved with your investigator and experts to make sure you will get the information you need on your case.

3. THINGS TO WATCH OUT FOR DURING YOUR INVESTIGATION

Our clients seem to absolutely LOVE social media. They cannot seem to stay off their accounts. While you are NOT allowed to tell them to delete anything with regard to the offense, it is wise to advise them to cease using their accounts. Social media can also work for you during a pretrial investigation. You/your investigators can gain a wealth of information on witnesses by scrolling through social media.

You can find out background information, have they posted about the alleged offense, drug use, alcohol use, promiscuity, acts of violence, religious beliefs, illness (whether real or imaginary), employment, education, travel, and the list just goes on and on. There are tons of social media outlets but the main ones appear to be Facebook and Instagram.

Another thing to watch out for are your client’s jail calls. If your client is still in jail, their calls are being recorded as you know. I know that it doesn’t seem to matter how many times I tell them to not talk about their case on the phone, they always talk about their case on the phone!!! Make sure you get the jail calls. The State of Texas is not allowed to just dump calls on you without letting you know which ones they plan on using. In other words, you do not have to search for the needle in the haystack. See Skurka v. State, 512 S.W. 3d 444 (Tex. Ct. App.—Corpus Christi 2016) and Cerrillo v. State, 2019 Tex. App. Lexis 7138 (2019). Every letter sent out from my office to a client in jail reminds them that their calls are recorded. Our clients seem to forget they are recorded. These calls can come back to bite them in

the bum later. Make sure you are warning them every chance you get to cover yourselves.

A special note must be made regarding affidavits of non-prosecution. I often have client’s wanting me to obtain the affidavit. I let them know that my investigator does this as I cannot be a witness at trial. This will usually alleviate any concerns as to why you yourself are not getting the affidavit. It is important that you never meet with a complaining witness by yourself. Complaining witnesses often change their minds regarding whose side they are on throughout the course of a case. First, you cannot be a witness when they change their minds regarding what they told to you alone. Texas Disciplinary Rules of Professional Conduct 3.08 states “a lawyer is generally prohibited from being “an advocate before the tribunal...if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client.”

Second, they can make allegations like “the big mean defense attorney made me do it.” Third, the complaining witness may make allegations that you gave legal advice. You cannot and should not give legal advice to the complaining witness EVER.

4. RESOURCES

Other than your investigator and experts, there are a vast number of resources you can utilize to find information on witnesses, the complainant, and others in your case. For example, if you have a family violence case, sexual assault, or sexual assault of a child, odds are there might be a civil case out there. Look for divorces and SAPCRs. These can bring you a wealth of information you can use on cross examination. Most SAPCRS, Motions to Modify etc have an affidavit filed with them. If your witness or CW tells a different story in the affidavit than to the police or on the stand you can use this a fodder for your examination. Make sure to have your investigator run a background check. You can gain a wealth of information on a background check.

So, you need to essentially be checking on everything possible. That seems very overwhelming. But if you have put your team in place, you should be able to get the information you need. One of the ways to know what to start looking for in a case is to LISTEN to your client. I stress this only because as attorneys we often hear but don’t actually listen to what our clients are saying. Here is a list of pretrial investigative tools you should be addressing or looking into depending on the type of case you have (this is not a fully inclusive list as there are infinite possibilities for investigation in criminal cases): a. CPS records; b. Divorce/SAPCR records;

c. Employment records; d. Crime lab records; e. Medical records; f. Mental health records; g. Crime victim fund records; h. Transcripts of pretrial hearing or civil hearings; i. Investigate the State’s experts (use google scholar etc.) j. TDCJ records, probation records, records from County jail k. Jail calls (as discussed above) l. Affidavits of non-prosecution (see below); m. Photographs of your client and family members for use in sentencing—always remember to figure out ways to make your client human in the eyes of the jury no matter how tough the case.

Now that you have your sources for information, you will need to actually obtain the information. The easiest way to do this is through a subpoena duces tecum. You can issue a subpoena duces tecum requesting for example medical or mental health records. Just make sure you will receive your records in advance of when you will need them. For medical/mental health records for your client’s use a HIPPA release and not a subpoena. The State can see what subpoenas you issue and will issue the same subpoena for the records to try and figure out what you are doing. Try not to

give them that opportunity. Our client’s medical/mental health records often contain information that could be harmful to their case.

Begin gathering your documents right away in a case. This will provide you ample time to review the records. Further, your review of the records could lead to additional records that you will need to obtain. Remember to have these records entered in court, you must have a business records affidavit on file 14 days before trial begins under TRE 902 (10).

5. VISITING THE SCENE One important aspect of pretrial investigation is that you visit the scene. This seems impossible to do sometimes but you must make time for this visit. It is important for you to be able to visualize how/where things were when you are later questioning a witness. Remember you OWN the courtroom. You do not need a witness to tell you exactly where things were and how the furniture was set up.

If you cannot go to the scene itself because there have been changes or it no longer exists, get your client and witnesses to describe in painstaking detail how everything was set up. One advantage (of many) to 39.14 is that it has made officer worn body cameras more readily available to us. Make sure you watch the videos as they go through a scene. Look at photographs to see how and where items are placed.

When the scene is the side of the road, it is important to not just rely on the officer’s description form that says “flat, hill, etc.” Go out there and see. There might be a dip in the road right before where your client was seen by the officer that he didn’t mention. This dip could have been the cause of your client’s swerve instead of intoxication. The bottom line is that if you do not go out and look at the scene you will not know how to describe it or defend from it.

6. WITNESS INTERVIEWS You must interview witnesses to prepare for trial. This should never be done on the eve of trial. A witness could provide additional information that needs to be investigated.

Initially, your investigator can make contact with a witness. Your investigator will conduct an interview and obtain information from the witness. You must review this information and determine if there are further items that need to be investigated.

This will also help narrow your interview with the witness.

When I interview witnesses, I typically try not to have them all in the same room at the same time (even pre-pandemic). This is to keep their information as their information and not what they heard from someone else. This can be hard for clients,

witnesses and their families to want to comply with. You must be firm when letting them know this is how the interviews will be conducted.

Make sure you are prepared to question a witness. I don’t mean just make sure you have pen and paper. Make sure you have reviewed all the evidence, you have reviewed their statements, and other statements. You need to know your case front to back and back again. The reason you need to know this is not just to conduct a fruitful interview but also to avoid any tampering. If your client’s family members are wanting to help with statements etc., please make sure to warn them of the risk of charges for tampering with a witness.

Now with your pretrial investigation complete, you are ready to file your pretrial motions. I am not going to delve into pretrial motions in this paper. TCDLA has a ton of prior CLEs and upcoming CLEs that teach on pretrial motions. I will, however, attach a few of the motions I use at the beginning of my representation.

Hope this paper has been helpful and informative. Happy Verdicts to All!!

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Springhill Suites 2544 Southwest Blvd.

San Angelo, TX 76901

Topic: Keep Your Head in Game | Mental Health

Speaker:

David Bost

600 Scott Ave Ste 204 Wichita Falls, TX 76301-2531 (940) 766-8199 phone (940) 716-8561 fax dtbost@gmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Getting Game Day Ready 2022

Keep Your Head in the Game: MENTAL HEALTH

Speaker:

David Bost

Wichita County Public Defender’s Office 600 Scott Street Wichita Falls, Texas 76301 Office: 940.766.8199 Cell: 806.448.9487 David.Bost@co.wichita.tx.us

Keep your head in the Game: (Mental Health)

By David Bost The purpose of this paper is to give you a basic reference user guide to major aspects of our law as it relates to mental health and to touch on attorney mental health. This paper is designed to be brief so that it is usable at a glance if necessary. By their very nature, summaries leave out some details that may be important in your case, so you’d be well served to pull the precise statutes identified in this summary as necessary.

Sections: Clients

pages 3-12 Jail Identification/Sandra Bland Act

pages 3-5

Mental health bonds

pages 6-7

Competency

pages 8-12

Sanity

pages 11-12

Attorneys

pages 13-16

Burnout

pages 13-16

Substance abuse

pages 16

Page 2 of 16

CLIENTS Jail identification

In response to Ms. Sandra Bland’s untimely death in the Waller county jail, 1 the “Sandra Bland act” was passed in 2017 with (presumably) good intentions. Among other things, it amended the Code of Criminal Procedure to attempt to require diversion of people who are booked into jail with mental illness or disability to appropriate treatment. 2 Unfortunately, in most counties the changes have mostly been ignored, possibly due to lack of adequate funding for the appropriate mental health diversionary treatments. 3 You could take advantage of some of the provisions of the act, but it comes with risk to your client, as you will observe below. This section will give you the rundown of the applicable provisions of the Chapter 16.22 of the Code of Criminal Procedure.

The act is triggered upon jail officials “receiv[ing] credible information that may establish reasonable cause to believe that the defendant has a mental illness or is a person with an intellectual disability.” 4 At that point the jail must give notice of the information, along with other information relevant to that determination, to a magistrate within 12 hours. 5 If the Magistrate finds “reasonable cause to believe” that the defendant has a mental illness (or is a person with an intellectual disability), then the Magistrate must order the service provider that contracts with the jail (or another qualified mental health expert) to interview the defendant (by phone or in person) 6 and provide a report to Magistrate. 7 That report should include: 8 (1) Whether the defendant is a person who has a mental illness or is a person with an intellectual disability; (2) Whether there is clinical evidence to support a belief that the defendant may be incompetent to stand trial and should undergo a complete competency examination; and https://en.wikipedia.org/wiki/Death_of_Sandra_Bland S.B. No. 1849 “Sandra Bland Act” 3 Some limited grant funding was made available as part of the act. See Julie Anderson’s “Senate Bill 1849 Breaking Down the Sandra Bland Act – 85th Legislature” December 3, 2017 by County Progress 4 Tex. Code of Criminal Procedure art. 16.22(a)(1) 5 Id. 6 Tex. Code of Criminal Procedure art. 16.22(a)(4) 7 Tex. Code of Criminal Procedure art. 16.22(a)(1) 8 Tex. Code of Criminal Procedure art. 16.22(b)(1) 1 2

Page 3 of 16

(3) Any appropriate or recommended treatment or service.

The report is “confidential” but may be used for basically any purpose you’d expect in the case itself, including in punishment as authorized by statute (the Statute does not make any notes on authentication). 9 The magistrate shall provide copies of the written report to: (1) The defense counsel; (2) The attorney representing the state; (3) The trial court 10 A review of relevant case law did not yield any notable results as of Dec. 1, 2021.

Several defendants have attempted to use the fact that a report of some kind was made, and that their lawyer did not follow up on that for mitigating information, in an attempt to overturn their convictions for ineffective assistance of counsel. Those attempts have so far been fruitless. 11

Tex. Code of Criminal Procedure art. 16.22(c)(3) Tex. Code of Criminal Procedure art. 16.22(b)(1) 11 . See Leshikar v. State, Tex Court of Appeals, 3rd Dist. 2017 and see also Alaniz v. State, Tex Court of Appeals, 13th Dist. 2011 9

10

Page 4 of 16

Jail receives credible information that may establish reasonable cause to believe that the defendant has a mental illness

Jail has less than 12 hours to report the informaiton to a magistrate

Magistrate shall order the service provider that contracts with the jail

That provider is supposed to interview and provide a report to Magistrate and include information relevant to competency

The magistrate shall provide copies of the report to the defense counsel, the attorney representing the state, and the trial court

Jail Identification/Sandra Bland Act Page 5 of 16

Mental Health Bonds Similar to the Sandra Bland Act, the purpose of the mental health bonds statute contained in Art. 17.032 of the Texas Code of Criminal Procedure appears to be motivated by good intentions of trying to divert people out of jail and into the hands of competent mental health professionals. However, also similar to Art. 16.22, these provisions appear to go mostly unused except in the largest of Texas Counties as the local mental health authorities do not have the resources to take on their end of the responsibilities. 12 A magistrate is supposed to release someone on a 17.032 bond if ALL of the following are met: 1) The Defendant is not charged with and has not been previously convicted (includes Deferred adjudication) of a violent offense; 2) The Defendant is examined by the service provider; 3) A written report by the service provider is submitted to the magistrate 4) That report concludes that the defendant has a mental illness or is a person with an intellectual disability; 5) That report concludes that the defendant is competent to stand trial 6) That report recommends mental health treatment or intellectual and developmental disability services for the defendant, as applicable 7) The magistrate determines that appropriate community-based mental health services for the defendant are available 8) The magistrate finds, after considering all the circumstances, that release on personal bond would reasonably ensure the defendant’s appearance in court as required and the safety of the community and the victim of the alleged offense The magistrate, unless good cause is shown for not requiring treatment or services, will require as a condition of release on personal bond under 17.032 that the defendant submit to outpatient or inpatient mental health treatment as recommended by the service provider if the mental illness is Chronic or if the client’s ability to function independently will continue to deteriorate if the client does not receive the recommended treatment or services 13 Neither my jurisdiction, nor any similarly situated jurisdiction around Wichita County uses 17.032 bonds; however, I hope yours does in the appropriate cases. You may call your local mental health authority and see if you can talk them into taking on some of these clients before you make a motion for this bond before a Judge.

13 Tex. Code of Criminal Procedure art. 17.032 (b) 12

Page 6 of 16

Charge/History • not charged with and has not been previously convicted of a violent offense • DACS counts as a conviction

Service Provider Report • examined by the service provider • written report submitted to the magistrate • concludes that the defendant has a mental illness and is competent to stand trial • recommends mental health treatment or services for the defendant

Magistrate • the magistrate determines that appropriate community-based mental health services for the defendant are available • release on personal bond would reasonably ensure the defendant’s appearance in court as required and the safety of the community and the victim of the alleged offense

Mental Health Bonds/ Art. 17.032

Page 7 of 16

Competency Everyone (even lawyers) are initially presumed competent. 14 However, a defendant may not be considered competent if the defendant, at the present time, either 1) does not sufficient present ability to consult with the lawyer with a reasonable degree of rational understanding; 2) does not have a rational as well as factual understanding of the proceedings against the person.; 15 or 3) lacks the capacity to “engage” with his counsel rationally or make rational choices with respect to his legal strategies and options 16 Any party or the court may raise the suggestion of incompetency. 17 The court ought to raise the issue on its own motion, if “evidence suggesting the defendant may be incompetent …comes to the court’s attention.” 18 However, the case law on that matter appears to give the court extremely broad discretion to write off absolutely crazy behavior. 19 Effectively, you as the defense lawyer, has the burden to raise the issue.

Once the issue has been raised by any “credible source” 20 then the Court “shall” hold “informal” inquiry to see if there is “some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.” 21 Simply saying categorically that you think your client is incompetent is not enough to warrant more than an “informal inquiry” even if that is paired with “disruptive and uncooperative behavior” 22 At this hearing, the court is to only consider evidence of incompetency and is not to consider evidence of competency. Failure to follow this rule may result in reversible error. 23 see Tex. Code of Criminal Procedure art. 46B.003(c) Tex. Code of Criminal Procedure art. 46B.003(a) 16 Turner v. State, 422 S.W.3d 676, 2013 Tex. Crim. App. LEXIS 1592 (Tex. Crim. App. Oct. 30, 2013), reh'g denied, No. AP-76 580, 2014 Tex. Crim. App. LEXIS 445 (Tex. Crim. App. Apr. 2, 2014) 17 Tex. Code of Criminal Procedure art. 46B.004 18 Tex. Code of Criminal Procedure art. 46B.004(b) 19 Emotional outbursts and defenses contrary to the law with will not automatically trigger the court to start the competency inquiry. ( Charley v. State, No. 05-08-01691-CR, 2011 Tex. App. LEXIS 885 (Tex. App. Dallas Feb. 8, 2011)(testified sex abuse was a cultural thing).( Taylor v. State, 948 S.W.2d 827, 1997 Tex. App. LEXIS 2438 (Tex. App. San Antonio May 7, 1997, no writ)(bizzare behavior not necessarily enough).( Sparks v. State, No. 2-07-285CR, 2008 Tex. App. LEXIS 6818 (Tex. App. Fort Worth Sept. 11, 2008)(punched hole in wall).

20 Tex. Code of Criminal Procedure art. 46B.004(c-1) 21 Tex. Code of Criminal Procedure art. 46B.004 22 Jones v. State, No. 11-17-00049-CR, 2019 Tex. App. LEXIS 1277 (Tex. App. Eastland Feb. 21, 2019); Keigley v.

State, No. 05-17-00436-CR, No. 05-17-00437-CR, 2018 Tex. App. LEXIS 2323 (Tex. App. Dallas Mar. 30, 2018).

23 Boyett v. State, 545 S.W.3d 556, 2018 Tex. Crim. App. LEXIS 126 (Tex. Crim. App. Apr. 25, 2018, no pet.)

14 15

Page 8 of 16

Upon finding “evidence to support finding of incompetence,” court shall stay all further proceedings. 24 This finding also triggers the requirement that the court order a competency evaluation by a qualified evaluator. 25 Evidence from this evaluation, unlikely a sanity evaluation, cannot be used against the defendant in future guilt/innocence/punishment proceedings unless the defendant opens the door by offering the evidence. 26 The evaluation is supposed to be completed in 30 days. 27 The evaluator is ordered to consider the following factors: (1) the capacity of the defendant during criminal proceedings to: (A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings; (B) disclose to counsel pertinent facts, events, and states of mind; (C) engage in a reasoned choice of legal strategies and options; (D) understand the adversarial nature of criminal proceedings; (E) exhibit appropriate courtroom behavior; and (F) testify; (2) as supported by current indications and the defendant’s personal history, whether the defendant: (A) is a person with mental illness; or (B) is a person with an intellectual disability ; (3) whether the identified condition has lasted or is expected to last continuously for at least one year; (4) the degree of impairment resulting from the mental illness or intellectual disability , if existent, and the specific impact on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and (5) if the defendant is taking psychoactive or other medication: (A) whether the medication is necessary to maintain the defendant’s competency; and (B) the effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings. 28

Tex. Code of Criminal Procedure art. 46B.004(d) Tex. Code of Criminal Procedure art. 46B.005 26 Tex. Code of Criminal Procedure art. 46B.007 27 Tex. Code of Criminal Procedure art. 46B.025-.026 28 Tex. Code of Criminal Procedure art. 46B.024 24 25

Page 9 of 16

If the parties’ attorneys do not agree as to whether the court should find the defendant competent or not, trial on competency is held. 29 Yes, the rules of evidence apply. 30 The burden is on the defendant’s attorney to show by a preponderance of the evidence that the defendant is not competent to proceed, unless, the person has previously been found not competent in the same case. 31 Either party may request a Jury to make the determination and the verdict must be unanimous. 32 It cannot be the same jury as is convened for the guilt/innocence/punishment phases. 33 There is no interlocutory appeal from a competency trial verdict. 34 When a person is found to be competent, the trial on the merits continues. 35 When a person is found to be incompetent, the judge has several options: 36 1) Commit the defendant to state hospital (for a class A or higher offense) 2) Commit the defendant to jail based restoration 3) Released on bail 37 and order outpatient restoration 38 Should the judge commit a defendant to a facility, the code requires the local Sherriff’s department take custody of the person for that transport. 39 The committed defendant may only be held initially for 120 days on a felony and 60 days on a misdemeanor. 40 The initial commitment may be extended for 60 days at the request of the head of the facility or program if there is sufficient evidence to believe that the defendant will attain competency in that time. 41 The court can only order one of these commitments and subsequent extension in connection with the same offense. 42 Tex. Code of Criminal Procedure art. 46B.054. notably, the client is not required to sign off on an agreed judgement of incompetence.

30 Tex. Code of Criminal Procedure art. 46B.008 31 Villarreal v. State, 699 S.W.2d 364, 1985 Tex. App. LEXIS 12445 (Tex. App. San Antonio Oct. 23, 1985, no writ).

(TO preserve this, you have to fight the restoration report from t the state hospital.)

32 Tex. Code of Criminal Procedure art. 46B.0051(a) and 46B.052 33 Tex. Code of Criminal Procedure art. 46B.051(c) 34 Tex. Code of Criminal Procedure art. 46B.011 35 Tex. Code of Criminal Procedure art. 46B.053 36 Tex. Code of Criminal Procedure art. 46B.071 37 Tex. Code of Criminal Procedure art. 46B.071 38 Tex. Code of Criminal Procedure art. 46B.0711 39 Tex. Code of Criminal Procedure art. 46B.075 40 Tex. Code of Criminal Procedure art. 46B.073(b) 41 Tex. Code of Criminal Procedure art. 46B.079(d) 42 Tex. Code of Criminal Procedure art. 46B.085(a) 29

Page 10 of 16

If, in the initial competency evaluation or in the subsequent commitment, it is determined that the defendant is unlikely to regain competency “in the foreseeable future”, the only options available to the court outside the State dismissing the charges, is civil commitment under the Subtitle C, Title 7, Texas Health and Safety Code. 43 This can be problematic in that the reasons for civil commitment do not include incompetency 44 and requires at least two certificates of medical examination by licensed physicians. 45 At the risk of oversimplifying, civil commitment in this context requires that the examined person is a person with mental illness; and as a result of that illness the examined person is (a) likely to cause serious harm to the person or to others; or (b) is suffering severe and abnormal mental, emotional, or physical distress; experiencing substantial mental or physical deterioration of the proposed patient's ability to function independently, which is exhibited by the proposed patient's inability, except for reasons of indigence, to provide for the proposed patient's basic needs, including food, clothing, health, or safety; and not able to make a rational and informed decision as to whether to submit to treatment 46 The maximum amount of time a person can be held on a commitment is the maximum allowable punishment for the non-enhanced offense. 47 Misdemeanors must be dismissed when the max is served under commitment, there is no such rule for felonies.

Sanity In Texas, the insanity defense is codified under Penal code Sec. 8.01 and Tex Code of Criminal Procedure chapter 46C. It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong. 48

Tex. Code of Criminal Procedure art. 46B.071(b) Tex. Health and Safety Code Sec. 574.034-.035 45 Tex. Health and Safety Code Sec. 574.009(a).

46 Tex. Health and Safety Code Sec. 574.034-.035 47 Tex. Code of Criminal Procedure art. 46B.0095; Ex parte Reinke, 370 S.W.3d 387, 2012 Tex. Crim. App. LEXIS 814 (Tex. Crim. App. June 20, 2012, no pet.)

48 Tex. Penal Code Sec. 8.01 43 44

Page 11 of 16

In the words of Rubio v. state 49 ”the defendant must prove he or she had or was in an extreme delusional state that caused [him or her] to misperceive the very nature of [his or her] acts, or to believe that in acting, [he or she was] obeying rather than violating the laws of society.” After Hinkley and Frazier were found not guilty by reason of insanity, Texas no longer recognized “irresistible impulse” are part of the insanity defense.

“Wrong[fulness]” under Texas law does not mean moral wrongfulness. It mean “illegal.” 50 In other words, if your defendant killed those girls because he believed they were angels who were suffering on earth and needed to be sent back to heaven, but he knew that killing them was technically illegal under the law; then, your pretty well out of luck under Texas law. In an extremely annoying 51 rule, the legislature prevents attorneys from informing the jury of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned. 52 Voluntary intoxication is not a defense. 53 Interplay between drug use and mental illness does not necessarily prevent the argument of insanity, but it is difficult to find experts who will say that a person was insane when they were also voluntarily intoxicated.

The Burden is generally on the Defendant to prove insanity by a Preponderance of the evidence, then the burden shifts to the state to prove beyond a reasonable doubt that the defendant was not insane at the time of the offense 54 unless they have previously been adjudicated insane in which case state has to prove sanity beyond a reasonable doubt. 55 The Defense must give notice 20 days before trail or pretrial hearing, or it will bar presentation of the defense. 56 The State may exercise the option of having their own expert evaluate the Defendant for sanity. 57 Unlike competency, the statements made during sanity evaluations may be used against the defendant for any purpose.

Rubio v. State, 241 S.W.3d (Tex. Crim. App. 2007); Tex. Code of Criminal Procedure art. 46C.153(a)(2) Ruffin v. State 270 S.W.3d 586 (Tex. Crim. App. 2008) 51 Personal experience 52 Tex. Code of Criminal Procedure art. 46C.154 53 Tex. Penal Code Sec. 8.04 54 Manning v. State, 730 S.W.2d 744, 748-49 (Tex.Crim.App. 1987) 55 Riley c. State 830 S.W.2d 584 (Tex Crim App 1992).

56 Tex. Code of Criminal Procedure art. 46C.051-052 57 Tex. Code of Criminal Procedure art. 46C.104 49 50

Page 12 of 16

ATTORNEYS Burnout I have been frustrated by the amount of times “burnout” has been mentioned in self-care type CLEs with very nebulous definitions and absolutely no evidence based research. I am not a statistician, nor am I a psychologist; but, I dug deep and found some peer reviewed meta-analysis on what is out there research wise. The following is a summary and amalgamation of the most useful peer reviewed articles on the subject. 58 To be clear, most of this information is ripped right out of their research papers which I encourage you to read.

Burnout is a psychological syndrome emerging as a prolonged response to chronic interpersonal stressors on the job. 59 It is generally characterized in research as “overwhelming exhaustion, feelings of cynicism and detachment from the job, and a sense of ineffectiveness and lack of accomplishment” 60 This is generally broken down into three components: 1) The exhaustion dimension was also described as wearing out, loss of energy, depletion, debilitation, and fatigue.

2) The cynicism dimension was originally called depersonalization (given the nature of human services occupations), but was also described as negative or inappropriate attitudes towards clients, irritability, loss of idealism, and withdrawal.

3) The inefficacy dimension was originally called reduced personal accomplishment, and was also described as reduced productivity or capability, low morale, and an inability to cope.

Research is fairly new and the initial research was more exploratory and descriptive (qualitative) rather than quantitative or treatment oriented. There have been few studies that actually try to determine cause of burnout, most have simply used assumptions and correlations.

The few longitudinal studies seem to break down cause into the following categories: workload, control, reward, community, fairness, and values. See chart below for description of each cause.

Christina Maslach 1 and Michael P. Leiter 2. World Psychiatry. 2016 Jun; 15(2): 103–111. Published online 2016 Jun 5. “Understanding the burnout experience: recent research and its implications for psychiatry”; Burnout Research Volume 4, March 2017, Pages 1-11 “Interventions to alleviate burnout symptoms and to support return to work among employees with burnout: Systematic review and meta-analysis” Kirsi Aholaa Salla, ToppinenTannera, Johanna Seppänenb 59 https://youtu.be/rTgj1HxmUbg for an hour long excellent informational on burnout 60 Christina Maslach 1 and Michael P. Leiter 2. World Psychiatry. 2016 Jun; 15(2): 103–111. Published online 2016 Jun 5. “Understanding the burnout experience: recent research and its implications for psychiatry” 58

Page 13 of 16

• When overload is a chronic job condition, there is little opportunity to rest, recover, and restore balance.

• A sustainable and manageable workload provides opportunities to use and refine existing skills as well as to become effective in new areas of activity

Workload

Control

• A clear link has been found between a lack of control and burnout.

• When employees have the capacity to influence decisions that affect their work, to exercise professional autonomy, and to gain access to the resources necessary to do an effective job, they are more likely to experience job engagement.

Reward

• Insufficient recognition and reward (whether financial, institutional, or social) increases burnout, because it devalues both the work and the workers, and is closely associated with feelings of inefficacy.

• Consistency in the reward dimension between the person and the job means that there are both material rewards and opportunities for intrinsic satisfaction.

Community

Fairness

Values

• When work relationships are characterized by a lack of support and trust, and by unresolved conflict, then there is a greater risk of burnout.

• When job‐related relationships are working well, there is a great deal of social support, employees have effective means of working out disagreements, and they are more likely to experience job engagement.

• Cynicism, anger and hostility are likely to arise when people feel they are not being treated with the appropriate respect.

• People use the quality of the procedures, and their own treatment during the decision‐making process, as an index of their place in the community.

• Beyond the work-for-money exchange, Values are the ideals and motivations that originally attracted people to their job.

• When there is a values conflict on the job, and discover a gap between individual and organizational values, employees will find themselves making a trade‐offPage between work they want to do and work they have to 14 of 16 do, and this can lead to greater burnout.

Burnout has been associated with various forms of negative reactions and job withdrawal, including job dissatisfaction, low organizational commitment, absenteeism, intention to leave the job, and turnover. 61 Cynicism has been found to be the pivotal aspect of burnout to predict turnover. 62 For people who stay on the job, burnout leads to lower productivity and impaired quality of work. As burnout diminishes opportunities for positive experiences at work, it is associated with decreased job satisfaction and a reduced commitment to the job or the organization.

The negative reactions and job withdrawal caused by burnout can be “contagious” and compound itself through social interactions. 63 Burnout increases in work environments characterized by aggression. 64 Burnout ought to be considered as a characteristic of workgroups rather than simply an individual mental state.

Companies and employers have tried various home remedies to attempt to mitigate burnout including changing work patterns, developing coping skills, obtaining social support, utilizing relaxation strategies, promoting good health and fitness, and developing a better self‐ understanding (via various self‐analytic techniques, counseling, or therapy). Unfortunately, there is very little research that has evaluated the efficacy of any of these approaches in reducing the risk of burnout. 65 Most Randomized controlled studies of interventions did not present effects on exhaustion and cynicism. 66

Schaufeli WB, Enzmann D. The burnout companion to study and practice: a critical analysis. London: Taylor & Francis, 1998.

62 Leiter MP, Maslach C. Nurse turnover: the mediating role of burnout. J Nurs Manage 2009;17:331‐9 63 Bakker AB, LeBlanc PM, Schaufeli WB. Burnout contagion among intensive care nurses. J Advanc Nurs 2005;51:276‐87; González‐Morales M, Peiró JM, Rodríguez I et al. Perceived collective burnout: a multilevel explanation of burnout. Anxiety Stress Coping 2012;25:43‐61.

64 Gascon S, Leiter MP, Andrés E et al. The role of aggression suffered by healthcare workers as predictors of burnout. J Clin Nurs 2013;22:3120‐9; Savicki V, Cooley E, Gjesvold J. Harassment as a predictor of job burnout in correctional officers. Crim J Behav 2003;30:602‐19 65 Christina Maslach 1 and Michael P. Leiter 2. World Psychiatry. 2016 Jun; 15(2): 103–111. Published online 2016 Jun 5. “Understanding the burnout experience: recent research and its implications for psychiatry” 66 Kirsi Aholaa Salla, Toppinen-Tannera, Johanna Seppänenb Burnout Research. Volume 4, March 2017, Pages 1-11 “Interventions to alleviate burnout symptoms and to support return to work among employees with burnout: Systematic review and meta-analysis” 61

Page 15 of 16

So what can you do? First of all, healthy habits can increase your general happiness level. 67 Just don’t expect to solve your burnout with them. What the literature seems to suggest is to attempt to address the causes of burnout themselves by controlling workload, letting your employees have some professional autonomy, instill a reasonable reward system for yourself or your employees, develop a supportive work community, and find work you can believe in.

Substance abuse It’s been beaten into us as lawyers at this point but it’s still worth touching on briefly: substance abuse is a real problem in the attorney community. Nearly 70% of lawyers are likely candidates for alcohol-related problems at some time within the duration of their legal careers. 68 TLAP (Texas Lawyers assistance program) cites that 32% lawyers 30 or younger have dinking problem, 28% lawyers some level depression, 19% symptoms of anxiety, 11% suicidal thoughts at some point.

We are supposed to report “knowledge or susp[icion]” of attorneys impaired by chemical dependency on alcohol or drugs or by mental illness to the state Bar; HOWEVER, there is a safe harbor provision in the rules if you make the report to TLAP instead. 69 Some of the warning signs of substance abuse include maladaptive changes in behavior, more confusion or concentration difficulties, absenteeism, wide unpredictable mood swings, excessive paranoia/suspicion, and, well, smelling like alcohol or drugs at work.

What Can You Do? If you are concerned or struggling with these issues involving yourself or someone else, consider making a confidential call to: TLAP (Texas Lawyers assistance program) – confidential help 1-800-343-TLAP (8527). They can guide you in the right direction in a calm, nonjudgmental, confidential way. Even if you’re not struggling with these issues, it’s good to remember to exercise good judgement and moderation. 70

67 Cristia´n Coo, Marisa Salanova. Mindfulness Can Make You Happy-and-Productive: A Mindfulness Controlled Trial and Its Effects on Happiness, Work Engagement and Performance. J Happiness Stud (2018) 19:1691–1711 (effects on mindfulness and happiness); Zhanjia Zhang, Weiyun Chen. A Systematic Review of the Relationship Between Physical Activity and Happiness J Happiness Stud - Springer Nature 2018 (discussing exercise and happiness) 68 George Edward Bailly, “Impairment, the Profession and Your Law Partner,” 15 Me. B.J. 96, 96- 97 (April 2000).

69 Texas-Disciplinary-Rules-of-Professional-Conduct 8.03 70 Parker, T., Stone, M., Hayes, I., Comedy Central (Firm), & Paramount Home Entertainment (Firm). (2005). South Park: Season 9, Episode 14 “Bloody Mary”. Hollywood, Calif: Paramount Home Entertainment.

Page 16 of 16

Game Day Ready!

Technology in the Courtroom September/October 2021 Molly Bagshaw Hochglaube & DeBorde, P.C. Houston, Texas molly@houstoncriminaldefense.com (713) 526-6300

1

1) Slide 1: Technology in the Courtroom 2) Slide 2: Sometimes dealing with technology can feel like this...

• The files are “in the computer???” and Hansel throws the computer and destroys it…a classic Zoolander scene • This is what technology can feel like a lot of the time. Someone tells us “oh, it’s easy, just do it like this…” and then you don’t want to sound “dumb” or like the person who doesn’t know, so we just never learn. So that’s what this paper/presentation is for…the practical tools you can implement in your practice tomorrow that will catapult you in to 2021, or 2000, whatever you are most comfortable with!

3) Slide 3: Objectives • Why? o Why should I care? What I’ve been doing works for me!

• What? o Okay so what are you actually talking about? What sort of things do I need to implement?

• How? o Great – “prezi” sounds cool, but how do I actually implement that? How do I make sure my camera is off when I enter in to a zoom?

• We will be tackling all of this in today’s presentation/paper and I will provide you with actual strategies to use. I want every person at the end of the presentation to be able to say here is the 1 thing I’m going to implement in my practice tomorrow!

4) Slide 4: Rule 1.01 • Why? Because it’s our ethical duty!

• Rule 1.01 from TX Disciplinary Rules of Professional Conduct o https://www.txcourts.gov/media/1443638/199016.pdf o Comment 8: Maintaining Competence: “Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology. To maintain the requisite knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances. Isolated instances of faulty conduct or decision should be identified for purposes of additional study or instruction.” February 26, 2019.

5) Slide 5: Why Else?

• Engage with the veniremen/jurors o If you are doing jury selection and you have an engaging presentation, you are already bonding with the jurors. People love visuals, and if you can get them to see that you are prepared, polished, and trying to engage with them, it will go a long way. Plus, they’ve already been waiting for so long to get to you (not to mention they probably don’t want to be there), so you want to grab their attention.

2

•

Preparation o Let’s face it, it’s easy to let things fall by the wayside in our profession. But you can’t show up anywhere with a blank presentation. Creating a presentation forces you to sit down, think through your strategy, and commit it to memory • Control of the courtroom o With a solid presentation and effective use of technology, you are showing the jurors, the judge, the prosecutors, and your client that you aren’t merely a guest in the courtroom, it’s yours too. Demonstrating that you have a grip on the tech and on the room sends a message of confidence • Meaningful client contact (especially during a pandemic) o For clients that live far away or feel more comfortable at home, zooming with clients for meetings instead of at the office or on the phone is invaluable. You get that face-to-face contact without the stress of coming in to an office during a pandemic • Not to mention - it helps to connect people. People love technology, and we need to start looking forward and embracing it, instead of shying away from it 6) Slide 6: Why else? What about when technology IS the courtroom • In the presentation I include a picture of the legendary Mac Secrest literally doing oral argument for the court of criminal appeals LIVESTREAMED on youtube! If someone had told me that was going to happen 5 years ago I would have laughed you out of the room. But times are changing, and sometimes you are literally forced to embrace the technology or the technology will leave you • Virtual court is such a great way not only to learn, but also to save time and advocate for our clients by cutting out the travel and focusing on what really matters, the representation itself • You can learn by watching other courts, watching the court of a judge you’re approaching the next day, or brushing up on oral argument skills. That’s the beauty of our profession, the learning never stops 7) Slide 7: Zoom is Your Friend • Minimize distractions o When you are zooming in to a court or a meeting, you want your background not to be distracting. Of course we can’t help it if a pup (or 2!) pop in to the screen, but the background itself could be a wall, a nice painting, or even a bookshelf o Virtual backgrounds – this is a personal preference but I prefer not to use them. I think a virtual background is much more distracting than just a plain wall, and then you’re inviting needless additional technical difficulties in to what you’re doing. You want the people to focus on your words not your background • Ring lights o I know what some of you might be thinking, and NO ring lights are not just for Gen Z tiktok stars! Lots of people are using ring lights to light up their

3

•

•

•

4

face if they are in a room/office with bad lighting, so that they don’t have to reconfigure their space o There are lots of models, etc. on amazon to pick from, and they make a big difference. I feel much more confident speaking when my face is well lit o https://www.amazon.com/Extendable-Sensyne-YouTube-CompatiblePhones/dp/B08B3X7NXC/ref=sr_1_3?dchild=1&keywords=ring+lights&qid= 1631136061&sr=8-3 Your name o Make sure that your name is your full name, and check it on each device before you log in o I may not mean to be logging in as “David’s iPad” but if I do it will be confusing for everyone involved Settings to mute/turn off video when entering a meeting o Sometimes you get put in a waiting room or you’re on hold for a while on zoom, and this is why you want to have your settings automatically on “mute and video off” when entering a meeting. Then you can unmute and show yourself as you are totally ready to go. We’ve all had a co-worker walk in and say an unsavory thing JUST as you see the zoom is connecting

o Screen sharing o Screen sharing is a beautiful tool. We use it with client constantly to go over discovery with them, and anything in their case. o You can use “whiteboard”, hook up your phone, share your ENTIRE screen, share only ONE document. There’s a screenshot below but I also will show these in real time during the presentation

8) Slide 8: Using Zoom in Your Practice • Paying for the premium account (meetings over 45 minutes) o Do yourself a favor and upgrade to the premium account. You won’t ever get cut off in the middle of a very important meeting. You can always be the one to volunteer to host because you know what you have is reliable • Client meetings - for viewing discovery o Already discussed this but a great way to stay in touch with your clients, check in with them, go over discovery with them. They see you and you see them even during a pandemic. It is a great way to build rapport with your client that everyone should embrace • Internal team meetings o Someone working from home? No problem! Hop on a team zoom and get everything done o You can share documents with the whole team so everyone is looking at the same information no matter where they are o We sometimes even do this when we’re all in the office so that everyone can sit comfortably at their own desk with access to their resources, and we’re at a safe distance • Meetings with other lawyers 5

•

o Same rules as above apply!

Using doodle to schedule meetings o Do you ever find that it gets really annoying emailing a group of people all trying to find a date/time that works? If you know what I mean, then doodle is a great tool for you. o It’s free, and you can pick the available dates/times, then send in one email for everyone to vote § https://doodle.com/en/

9) Slide 9: Presentation Applications • Sick of seeing the state’s same presentation over and over again? Same! That’s because it is outdated and overused. We all know powerpoint (PPT) but here are some alternatives that are awesome! o ALL of these are free, and you can use pre-existing accounts to sign up • Prezi o Prezi takes PPT to a whole other level § You can upload your PPT to Prezi and they will embed it in to a presentation of their own o The 2 links below are a great way to get introduced/started with Prezi § https://prezi.com/dashboard/next/#/presentations § https://prezi.com/p/coqe-amrty8e/round-up-meeting/ o Prezi also can imbed the presentation on to the screen while you’re talking about it which is awesome (if you’re giving a virtual presentation) § Download Prezi video app: https://support.prezi.com/hc/enus/articles/360036062534-How-to-install-the-Prezi-Video-app • Google slides o Google slides is very similar to PPT but I think it is more user friendly

6

o The beauty of google slides is that it’s constantly being saved automatically, and you can access it from any computer where you can login with your ID. So if your computer crashes on you, it’s automatically backed up o In the presentation – I will show how I made mine, and how I embedded videos in to the presentation using youtube o https://www.google.com/slides/about/ • Visme o Another option is Visme o Visme has awesome templates you can take and run with o https://www.visme.co/templates/presentations/ • Canva o Canva is newer on the scene but the design elements are beautiful o https://www.canva.com/design/play?category=tACFasDnyEQ 10) Slide 10: State’s Technology • File a motion in limine to see the State’s tech before they show it to the jurors!

• Make sure you check that EVERYTHING is accurate before they put it up there • A juror can’t unsee something • Always check their computer diagrams, maps, etc. to make sure they are accurate before they slap it up on the screen 11) Slide 11: Know the Courtroom!

• Each and every courtroom is different • Be aware of your surroundings/technology • What is available? What’s not? o Are you dealing with doc cams? Or does every juror have a nice little screen in front of them? Figure out where you are, what your options are, and make it work 12) Slide 12: The Court Staff • The court staff is your best resource. If you’re gearing up for trial, there’s no doubt that you will have a pre-trial conference. Or maybe you’re in court when a trial is already going on! Take a seat, see what they’re doing!

• Ask the staff, the bailiffs, etc. about what to use or what not to use. For example, if the speakers in there NEVER work, that’s something you want to know! If there’s no video screens and only doc cams – you need to know that too 13) Slide 13: Your Backup Plan • Your presentation could fail on you! Here are some precautions to take as a backup just in case: • Print out everything (twice!)

• Bring your own HDMI cord • Multiple devices (iPad, computer) • Use google slides so it is always backed up no matter what!

• Put it on a thumb drive • Email it to yourself • Bring your own audio speaker (just in case the court speakers are not working!)

7

•

Bring another lawyer/clerk/intern with you o If you’re not as comfortable with the technology, bring someone with you whose sole job is to work your technology. They’ll be grateful for the experience, and you’ll be grateful for the help!

14) Slide 14: Be Flexible!

• Video in presentation of man throwing his computer • All jokes aside, we’ve all been there with technology! It’s not a reason not to try to embrace it • Every single person has had tech fail on them - it makes us endearing to the jurors!

Roll with it • Do not let the technology ruffle your feathers, it is there to help US, not the other way around. That’s why putting the backup plan in place is so crucial 15) Slide 15: The Other Side’s Tech • If you are provided technology you don’t understand…

• Ask for help from colleagues • Ask the court for funding for a tech or discovery expert o Sample Ake motion attached • Use experts in their fields - blood testing, DNA, scene reconstruction, etc. whatever it is, reach out! Use the TCDLA listserv or a local one, defense attorneys are so collaborative 16) Slide 16: Looking to the future…

• What will courts look like in 5, 10, 15, 20 years?

• We need to be creative and keep up with tech, not shy away from it. We can use these tools to help us make our lives easier and our representation better • I have this crazy idea to give venirepeople clickers like the ones they have for the audience on “Who Wants to Be A Millionaire,” that way you can get through scaled questions in record time. Who’s to say a judge wouldn’t let you do it? You won’t know if you don’t ask!

• There are so many possibilities of the future and we need to embrace them all, starting in this room

8

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Springhill Suites 2544 Southwest Blvd.

San Angelo, TX 76901

Topic: Instant Replay | Technology in the Courtroom

Speaker:

Clay Steadman 612 Earl Garrett St Kerrville, TX 78028-4535 (830) 257-5005 phone (830) 896-1563 fax CSteadman612@hotmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

GAMEDAY! HOW TO TACKLE ANY COURTROOM SITUATION TCDLA October 1, 2021 El Paso, Texas Thomas Wynne MILNER FINN Dallas, Texas PERSUASIVE VISUAL AIDS FOR THE COURTROOM

1

Persuasive Visual Aids For The Courtroom Introduction

There’s a multitude of different types of visual aids that can be utilized within the

courtroom setting. Becoming familiar with what visual techniques are available is essential to determine what techniques may work best for your practice. In modern day courtrooms, It’s undeniable that visual aids can drastically impact how a jury, and even judge, view a case.

Visual aids have the ability to help a jury better understand the facts of a case, relate to pertinent issues, and retain information. This paper aims to address the importance of using visual aids in the courtroom, discuss different techniques that can be effectively employed, and provide a practical approach on how to implement them into your practice.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

2

Get Out of Your Comfort Zone!

Oftentimes I have conversations with fellow criminal defense attorneys about how to

become a better litigator. These conversations usually revolve around the theme of the best methods/techniques of persuasively communicating with the jury or jury panel.

More often than not, during these conversations, I hear something like “using power point/ keynote just isn’t me," “I don’t have time to mess with all that technology stuff," or simply “I’m old school”. In all honesty I can understand where fellow trial attorneys are coming from when they say these things, but it doesn’t make them right.

While trial advocacy is steeped in

traditions of oral and written advocacy, it has minimal tradition of visual advocacy. Rarely is visual advocacy taught in law schools, and even more infrequently is it learned in practice.

Compounding this problem is the generality that lawyers have an inflated view of their own ability to communicate effectively using only words. This upbringing has too narrowly focused our methods of trial advocacy, and limited our ability to persuasively communicate.

Failing to use visual presentation techniques is like choosing to voluntarily get into a fist

fight with one arm tied behind your back. Sure, you may be adept enough to get away with fighting like this sometimes, but is that what’s best for your client? And why? Most of the excuses I hear for not using visual presentation tools really boil down to two things in my opinion…. fear and laziness. It’s easy to stick with our “tried and true” methods, and hard to find time to learn new skills. Furthermore, technology can be intimidating. We must learn to combat these excuses and utilize our full arsenal of persuasive techniques to better serve our clients.

While society around us evolves, we too must learn how to evolve and adapt our

courtroom communication skills, or suffer the consequences. Luckily for us, never has there been an easier time to incorporate visual persuasive techniques into our trials.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

3

The Importance of Visual Presentation in The Courtroom

I think we all can agree that

in order to persuasively communicate with people, or more specifically, with judges and jurors, we must be able to reach them in a manner that is consistent with “what they need” and “what they expect”.

An overwhelming amount of scientific support exists for the proposition that visual displays communicate information powerfully and effectively. Visual displays have the ability to resonate with people in a way that auditory and kinesthetic mediums just can’t. Simply put, when people want to lean something, they want to be visual stimulated. In fact, of the three primary learning styles (visual, auditory, and kinesthetic), the majority of people are primarily visual learners. 1 Additionally, techniques that combine multiple mediums of communication can drastically enhance information retention. One study of juror memory retention found that retention increased by 650 percent when oral and visual communication were utilized in conjunction with one another.2 Another study, by 3M, put this observation in more measurable terms, finding that 90% of the information transmitted to the brain is visual. Further, visuals are processed 60,000 times faster than text. For far too long have defense lawyers neglected the most influential form of communication they can use with juries.

Not only are visual presentations something that our jurors need to better comprehend

and retain the information we are trying to relay to them, it’s also what they have come to expect.

Kenneth J. Lopez, Attorney Communication Style Study 6-8 (Jan.2, 2007), available at. http://www.ceuworks.com/cme/ Animatorsatlawstudy.pdf.

1

2

Id. at 10.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

4

As a culture we have become inundated with visual stimulus. Whether it be in the office, or at home, we have all grown accustom to visually receiving information. Don’t believe me? Just turn on the news. News stations have become masters at conveying information to viewers concisely with simultaneous oral and visual presentation techniques. These techniques quickly grab their audiences attention, and relay the pertinent information.

Demonstrative

evidence like diagrams, charts, graphs, visual summaries, and depictions of physical objects should be a regular part of our presentation at trial.

Skillful visual presentation of key evidence and themes will engage jurors, improve their understanding of the material they are presented with, and increase their ability to recall the content of the defendant’s case during deliberations.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

5

Social Media Fun Facts • 78% of all Americans have at least one social networking presence; 58% have two or more.

Techniques For Developing and Using Visual Aids in the Courtroom

There are several tried-and-true evidence

presentation techniques that lawyers have used for decades: writing information on a whiteboard or easel, handing printed documents or photographs directly to the jurors, reading original testimony straight from a transcript, presenting important documents or images by mounting them on a foam core board . . . the list goes on.

While those techniques have proven to be

effective in their own right, they’re becoming

• Sixteen minutes of every hour spent online is spent on Facebook.

• More Facebook profiles (5) are created every second than there are people born (4.5).

• More than a billion tweets are sent every 48 hours.

•

Every 60 seconds, there are over 293,000 status updates posted on Facebook.

• 146 million “likes” generated every hour.

increasingly antiquated as a new generation of jurors rushes in–a generation accustomed to the latest and greatest technology our modern world has to offer. Many of today’s jurors find the presentation of evidence more effective when technology is used.

Enter the electronic courtroom, also known as the e-courtroom. While there is no set

standard, and all courtrooms will differ, many are adopting an array of new technology. This includes the use of interactive flat screen displays, webcasted testimony, use of dual screens that present several documents to the jury at once and even personal screens for each juror in the jury box.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

6

Visual aids can take many forms, and have the ability to be utilized through all aspects of

a trial. Examples include: • Video Recordings (e.g., a shortened clip of the arresting officer improperly administering SFST’s, your client walking and talking normally, or a tour of the scene of the alleged crime); • Physical Objects (e.g., replicas of weapons, tools/equipment used in the testing of blood/breath, • Computer Animation (e.g., a illustration of how an incident occurred); • Diagrams, Charts, and Graphs (e.g., presenting data, concepts, summary of evidence)

These are some of the easiest types of demonstrative evidence to produce, and when

done well, present ample opportunity for us to add compelling visual elements to your trial presentation . The following tips are a foundation for developing and using visual aids.

PowerPoint and Keynote

Microsoft’s PowerPoint and Apple’s Keynote are some of the most accessible and easy to

use programs when developing visual aids. To that end, this paper will primarily focus on these platforms when discussing the crafting and presentation of visual aids in the courtroom.

Additionally, I’ve included numerous articles, cheatsheets, and guides on how to effectively utilize these programs. However, a simple youtube search will provide video tutorials on how to do just how about anything on either one of these platforms. I highly suggest that you take some time watching these informative tutorials if you have any questions.

Figure Out What You Want to Say First!

One of the biggest mistakes you can make when preparing a slide show on either one of

these programs is getting your ideas out onto slides first. If properly done, designing your slides should be one of the last things you do. Instead, try following the routine below.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

7

1. Knowledge: Having a solid knowledge of your case is absolutely key. It will allow to convey your message naturally, and provide the foundation of your presentation.

2. Content: With great knowledge, comes great content to support your presentation. Think though the elements of your case and how visuals can support your theme and storyline.

3. Synthesis: The editing part is where most people fail the test, as it is probably the hardest and most thorough process of all. It implies getting rid of any unnecessary information, and focusing on small chunks of information that people will be able to grasp and remember. After all, people came to listen to you, not to read a manifesto from a projection. A poor editorial work is a slippery slope that leads to blasting your slides with an insane amount of data, causing the infamous Data Dump and Death by PowerPoint.

4. Outline: After you’ve successfully synthesized all the main ideas that you wish to convey, it is time to arrange all the chunks of information into a logical presentation outline. Probably the best piece of advice I can give you is to do everything up to this point without even touching your presentation software. Scribble on a piece of paper, on your iPhone or on a computer if you must, but resist the temptation of jumping into your presentation tool for drafts until you’ve PERSUASIVE VISUAL AIDS FOR THE COURTROOM

8

managed to complete all the prior steps. It will only distract you, and make you waste valuable time.

Your slides should be a screenplay for your outline that engages the audience (Jury) and

allows them to easily follow along.

Slide Creation

The biggest thing to remember is that your presentation is there to support what you are

saying. The most powerful presentations are accomplished by speaking well and with good content.

That said, when creating slides try and follow the rules below.

1. No more than one idea per slide, or one image, model. Keep your slides' content simple i.e. uncluttered. Slides should not have to contain everything that will be said during the presentation.

2. If you and your slides are saying the same thing, one of you is not necessary. Technology is the medium not the message. Your slides should be more than simply your notes on a screen. The goal is not to replace your argument, but to supplement it in a way that engages the viewer and allows them to retain your message more effectively.

3. Use note or presenter view. Seeing notes on the screen adds nothing to your argument.

Adding images that help your audience visualize or more easily understand what you are saying is the goal. If you like the ability to have your notes that accompany your presentation to aid you, the notes should be in “notes” or “presenter” view and only visible to you.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

9

4. Follow the 3 Second Rule. To be most effective, the audience should see your slide and refocus on you (the presenter) within three-seconds. To accomplish this you need to spend time simplifying you slides so that they can be quickly and easily disseminated.

5. Keep uniformity between slide design and layout 6. Keep uniformity between the images you choose to use.

7. Keep uniformity between type face, size of text, colors etc.

8. Keep the look and feel simple.

9. Try and keep the number of slides to an absolute minimum.

10. Images are easier for the human brain to recall than text.

Best Practices/Rules of Thumb •

Simplicity is always a safer choice that is most likely going work best in your presentation design.

•

Quotes form testimony are a powerful content resource: take the time to make them stand out.

•

Not all information should be granted the same level of importance in your slide. Use focal points in order to establish visual hierarchy.

•

Big fonts work great on presentations and also forces you to keep the amount of text on the low levels.

•

An overcrowded slide is a slippery slope that leads to cognitive overload. Avoid!

•

Great images pay off. Avoid poor quality, or stocky photos.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

10

•

Icons are a great visual resource.

•

Nice looking slides draw attention, regardless of the content. Go the extra mile.

•

Keep graphic effects subtle. The main focus should always be the content.

•

A great way display screenshots is to show them in a vector frame of a laptop/tablet/ phone.

•

Emphasize a certain piece of information by highlighting or repeating it in a bigger, more notorious way (e.g. callouts).

•

Edit charts in order to get rid of unnecessary elements and leave only the most essential data sets.

•

Type is probably the most effective way to convey visual hierarchy in your content, so keep that in mind when you work on your presentation design.

Below is an example of slide creation I’ve shamelessly stolen from Frank Sellers.

Here you can see how Frank took a concept he wanted to convey to the jury panel in voir dire, and crafted a visceral image that added to his presentation.

1.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

11

2.

If a person believes he is under attack by multiple assailants, that person has the right to use any means at his command to prevent a perceived attack by one or more of those assailants a.

3.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

12

Practice Makes Perfect

It should go without saying that you must devote ample time to practicing your

presentation before your trial or hearing. This should include all logistics of how the presentation is being controlled, timing between slides, where you will be standing, etc… The more adept you become at using these programs the less time you will need practicing. That said, presentations can, and will, be disastrous where the presenter has no idea what will appear on the slide next, or seems entirely unfamiliar with what is on the current slide. To that sentiment “Winging it” is not a good idea. One good way to practice is simply printing out your slideshow and reading over it a few times before presenting. I like to make handwritten notes on my printouts and review them almost like flashcards. When practicing always try and keep a good idea on the time it takes to get through the presentations. Generally, the more you practice the more precise your timing will become. This can become very important when dealing with “stopwatch” judges. There’s no worse feeling that being 1/3 through your voir dire presentation and hearing “ two minutes counselor”. Practicing should mitigate potential issues, and give you complete command and ownership of the material your are presenting.

Always Have a Backup Plan

Even the most well-rehearsed

presentation will fail at some point in one way or another. Such is the rule, not the exception. When this happens, have a backup plan in place. Having hardcopies of your presentation is always a good backup.

Additionally, I like to always save my presentation on multiple different platforms. When walking into the courtroom I like to have my presentation saved to my desktop, on a flash drive, printed out, and emailed to myself. This covers most bases in the likelihood that a problem arises.

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

13

Know Your Battlefield and Its Limitations

Know your courtroom and what it has to offer. Like “practicing” and having a “backup

plan”, knowing what technology the courtroom you will be presenting in is equipped with is vital.

Moreover, you should always be aware of what you need to bring to connect with the technology the courtroom has. Trust me, I use a Mac and have run into issues with connecting my computer to the courtroom display more than I would like to admit. To combat these issues, I like to do a complete dry run of my presentation in the actual courtroom I will be presenting in at least the day before my trial or hearing. I also like to talk to other lawyers, or court staff who regularly work in that particular courtroom. I have found that bailiffs are generally a wealth of information about not only what you will need, but also about generally courtroom logistics. I’ve had bailiffs advise me on how to cut lag time when loading up my presentation, how to best position my computer, cords, and documents for presentation, and most importantly what the Judge likes and dislikes. The court staff has seen it all, and in my experience are more than willing to help if asked. Knowing your courtroom obviously takes more time, but in the end should drastically reduce the risk of running into potential problems. Not to mention, it’s a huge stress relief to know your ready to rock-androll when you walk into the courtroom for your trial or hearing.

Conclusion

No matter how good of an orator you may be in the courtroom, if you’re not using some

type of visual presentation during your trials and hearings you’re selling yourself short, and hurting your client. Science and decades of studies have shown that listeners better receive and retain information when they can use both their eyes and ears. It’s just how our brains are wired.

Furthermore, todays modern juror has come to expect some type of visual presentation when PERSUASIVE VISUAL AIDS FOR THE COURTROOM

14

walking into the courtroom. With two-thirds of the general public preferring visual communications to the spoken word, creating effective demonstratives means the difference between being an effective communicator and an ineffective one. As trial lawyers, it’s incumbent upon us to adapt and give Judge’s and jurors “what they need” and “what they expect”.

Spending time working with programs like PowerPoint and Keynote are relatively easy ways to incorporate visuals into your trials and hearings. Like any skill, it takes practice, preparation, and time to develop. I strongly encourage everyone to challenge themselves, do away with the excuses, and utilize the tools we have be given to more effectively communicate with our courtroom audience. Good Luck and Good Verdicts!

PERSUASIVE VISUAL AIDS FOR THE COURTROOM

15

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Springhill Suites 2544 Southwest Blvd.

San Angelo, TX 76901

Topic: Special Teams | Experts & Witnesses

Speaker:

Amber Farrelly 505 W. 12th Ste 204 Austin, TX 78701-1865 (512) 551-4269 fax adfelaw@gmail.com www.adfelaw.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Springhill Suites 2544 Southwest Blvd.

San Angelo, TX 76901

Topic: Rules of the Game/Penalties | Client Relationships & Communications

Speaker:

Carol Camp

1201 Franklin St. Floor 13 Houston, TX 77002 (713) 274-6967 Phone carol.camp@pdo.hctx.net

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

GAME DAY: PLAYING BY THE RULES In football, one objective is to play a game as penalty-free as possible. To avoid committing unnecessary and potentially devastating penalties, here are the applicable rules you need to keep in mind to enable you and your client to get the ball across the goal line.

Here in Texas, the ethical rules to which lawyers must adhere are codified in the Texas Disciplinary Rules of Professional Conduct, Tex. Govt. Code Ann., Title 2, Subtitle G, Appendix A, Article 10, §9. This paper will review the rules that criminal defense attorneys frequently encounter while representing their clients.

The Preamble to the disciplinary rules sets forth aspirational standards which lawyers should strive to achieve. Clearly, lawyers are expected to wear several different hats while representing their clients. Not only do lawyers have to represent their clients; they must also act as officers of the legal system, public citizens, and guardians of the law. While representing clients, lawyers must act as negotiators, advocates, advisors, intermediaries, and evaluators.

How must a lawyer perform these roles? Paragraph 3 of the Preamble requires lawyers to zealously pursue their clients’ interests “within the bounds of law” while being “competent, prompt and diligent.” Additionally, lawyers must maintain communication with their clients and only disclose information in accordance with the disciplinary rules or applicable law.

The Preamble also emphasizes that lawyers “should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession.” As public citizens, lawyers should strive to provide legal services to those who cannot afford to retain counsel and “to devote professional time and civic influence in their behalf.” Although such service is not required, the Preamble clearly states that “[t]he provision of legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the profession generally.”

Perhaps most importantly, the Preamble reminds us that “[e]ach lawyer’s own conscience is the touchstone”, and that the risk of losing the public’s confidence and respect “is the ultimate sanction.” The practice of law is a “noble profession…[t]his is its greatness and its strength, which permit of no compromise.”

1

Duties of lawyers to their clients Competency and diligence Rule 1.01. Competent and Diligent Representation (a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence, unless: (1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or (2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances. (b) In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer; or (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.

(c) As used in this Rule, “neglect” signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.

“Competent” or “Competence” is defined as “possession or the ability to timely acquire the legal knowledge, skill, and training reasonably necessary for the representation of the client.”

“Reasonable” or “Reasonably” refers to “the conduct of a reasonably prudent and competent lawyer.”

To determine whether a particular legal matter is beyond a lawyer’s competence, several factors must be taken into consideration. These include the complexity and specialized nature of the legal matter; the lawyer’s general experience in the particular field; the preparation and study the lawyer will be able to give to the matter; and whether the lawyer can refer the matter to another lawyer or associate with a lawyer who is competent to handle the matter.

The comments emphasize that a lawyer can still accept employment in a matter with which she is unfamiliar and that the appropriate level of proficiency required in most matters is that of a general practitioner.

If the additional study and preparation a lawyer must do to become competent in a particular field will cause the client to incur undue delay or expense, the client must consent to the lawyer doing what she needs to do to become proficient enough to handle the matter.

2

The comments further emphasize that a lawyer must act with competence, diligence, and dedication to the client’s interests, and advocate zealously for her clients.

Procrastination is discouraged because it can potentially destroy a client’s legal position (i.e., missing a statute of limitations.)

The final comment to the rule recognizes the importance of technology, and states that “each lawyer should strive to become proficient and competent in the practice of law, including the benefits and risks associated with relevant technology.”

Not surprisingly, a lawyer’s competency in the use of technology has increasingly become the subject of ethics opinions. See, e.g., Tex. Comm. on Prof. Ethics, Op. 680 (Sept. 2018)(stating that “a lawyer should remain reasonably aware of changes in technology and the associated risks” and “a lawyer must take reasonable precautions in the adoption and use of cloud-based technology for client document and data storage or the creation of client-specific documents that require client confidential information. These reasonable precautions include: (1) acquiring a general understanding of how the cloud technology works; (2) reviewing the “terms of service” to which the lawyer submits when using a specific cloud-based provider just as the lawyer should do when choosing and supervising other types of service providers; (3) learning what protections already exist within the technology for data security; (4) determining whether additional steps, including but not limited to the encryption of client confidential information, should be taken before submitting that client information to a cloud-based system; (5) remaining alert as to whether a particular cloud-based provider is known to be deficient in its data security measures or is or has been unusually vulnerable to “hacking” of stored information; and (6) training for lawyers and staff regarding appropriate protections and considerations.

These precautions do not require lawyers to become experts in technology; however, they do require lawyers to become and remain vigilant about data security issues from the outset of using a particular technology in connection with client confidential information.”)

See also Tex. Comm. on Prof. Ethics, Op. 665 (Dec. 2016)(“In the opinion of the Committee, a lawyer’s duty of competence requires that lawyers who use electronic documents understand that metadata is created in the generation of electronic documents, that transmission of electronic documents will include transmission of metadata, that the transmitted metadata may include confidential information, that recipients of the documents can access metadata, and that actions can be taken to prevent or minimize the transmission of metadata. Lawyers therefore have a duty to take reasonable measures to avoid the transmission of confidential information embedded in electronic documents, including the employment of reasonably available technical means to remove such metadata before sending such documents to persons 3

to whom such confidential information is not to be revealed pursuant to the provisions of Rule 1.05. Commonly employed methods for avoiding the disclosure of confidential information in metadata include the use of software to remove or “scrub” metadata from the document before transmission, the conversion of the document into another format that does not preserve the original metadata, and transmission of the document by fax or hard copy.”)

Scope of representation Rule 1.02. Scope and Objectives of Representation (a) Subject to paragraphs (b), (c), (d), (e), and (f), a lawyer shall abide by a client's decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; (3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify. (b) A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation. (c) A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law. (d) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in substantial injury to the financial interests or property of another, the lawyer shall promptly make reasonable efforts under the circumstances to dissuade the client from committing the crime or fraud. (e) When a lawyer has confidential information clearly establishing that the lawyer's client has committed a criminal or fraudulent act in the commission of which the lawyer's services have been used, the lawyer shall make reasonable efforts under the circumstances to persuade the client to take corrective action. (f) When a lawyer knows that a client expects representation not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

The comments to Rule 1.02 make it clear that the lawyer and client should ideally work together as a team. While the ultimate objectives of the representation are for the client to decide, the attorney’s job is to “assume responsibility for the means by which the 4

client’s objectives are best achieved.” This gives the lawyer “very broad discretion to determine technical and legal tactics” while considering the cost to the client and being mindful of how third parties might be affected.

The rule does not require a lawyer to convey a settlement offer or a potential plea bargain to a client if the proposal would clearly be unacceptable to the client (as determined by the lawyer’s prior communications with the client.) However, a common complaint of clients in post-conviction proceedings is that their attorneys did not communicate with them about potential plea offers, so the better practice may be to convey any and all plea offers to the client.

Recently, the Supreme Court of the United States held that an attorney cannot concede a client’s guilt during opening statement over the client’s objection. McCoy v. Louisiana, 138 S.Ct. 1500, 1509 (2018). Specifically, the Court emphasized that “[a]utonomy to decide that the objective of the defense is assert innocence” belongs to the accused and that this decision “[is a] choice about what the client’s objectives in fact are.” McCoy, 138 S.Ct. at 1508 (citations omitted). “When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal act, his lawyer must abide by that objective and may not override it by conceding guilt.” Id. at 1509 (emphasis in original.)

The McCoy majority considered the issue to be one of client autonomy and relied on Faretta v. California to come to this conclusion. In Faretta, the Supreme Court held that the accused had a right to represent himself and if competent to do so, could not be required to have a public defender represent him. Faretta v. California, 422 U.S. 806, 817 (1975).

The Court emphasized that “[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Id. at 819. This personal right to determine one’s own defense is “necessarily implied” in the structure of the Sixth Amendment. Id. After all, “it is [the accused] who suffers the consequences if the defense fails.” Id. at 819-20.

Counsel’s role is to “supplement” the accused’s right to determine his own defense, “and an expert, however expert, is still an assistant.” Faretta, 422 U.S. at 820. Forcing a public defender to represent an unwilling accused, therefore, is antithetical “and the right to make a defense is stripped of [its] personal character” when counsel is permitted to assert his will in this instance. Id. As the Court acknowledged, “An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense 5

presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.” Id. at 821. In sum: Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant and not his lawyer, or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage.

And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.”

Id. at 834.

A lawyer may limit the scope of representation in a written retainer agreement that states a specific objective. The agreement may exclude specific objectives or means that the parties consider to be imprudent or repugnant. The retainer agreement must comply with the disciplinary rules and cannot require the client to give up terminating the lawyer’s services or the right to settle or continue the litigation, even if the lawyer would handle the matter differently.

Unless the representation is terminated in accordance with Rule 1.15, the lawyer should continue to represent the client until all matters undertaken on the client’s behalf have concluded. If the representation is limited in scope, it ends when the matter or matters have been resolved. If the matter was decided against the client, and if the lawyer has not been instructed about pursuing an appeal, the lawyer should advise the client of her right to appeal.

A recurring issue we see in writ cases is attorneys failing to advise their criminal clients of their right to pursue an appeal and/or to file a petition for discretionary review in the Texas Court of Criminal Appeals if the client loses her appeal in an intermediate appellate court. Even if a lawyer does not intend to represent her client on appeal in a criminal case, the lawyer must advise her client of her right to file a pro se notice of appeal and file a motion to withdraw.

Trial counsel’s obligations to her client “do not magically and automatically terminate at the end of the trial.” Ward v. State, 740 S.W.2d 794, 796 (Tex. Crim. App. 1987).

Regardless of whether trial counsel is retained or court-appointed, …trial counsel…has the duty, obligation and responsibility to consult with and fully to advise his client concerning meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, the necessity of giving notice 6

of appeal and taking other steps to pursue an appeal, as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal. The decision to appeal belongs to the client.

Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988); see also American Bar Association, Criminal Justice Standards for the Defense Function (4th ed. 2017), Standards 49.1(a)-(d); 4-9.2(i)(describing trial counsel’s continuing obligation to protect client’s appellate remedies upon conclusion of trial.)

If trial counsel does not withdraw, he “still represents [the client] on appeal.” Ward, 740 S.W.2d at 796 (citation omitted.) [Trial] “counsel may seek the trial court’s permission to withdraw at any time so long as the defendant’s appellate rights are protected, the appellant is given notice of withdrawal, and the trial court’s signed order permitting withdrawal is in the record, and if the defendant is still indigent, substitute counsel is appointed.” Id. at 797 (citation omitted.)

In other words, “[trial] counsel can’t be permitted simply to bow out without notice either to court or client and frustrate forever the right of the client to protect his vital interests.” Atilus v. U.S., 406 F.2d 694, 696 (5th Cir. 1969).

A lawyer may not knowingly assist a client in committing criminal or fraudulent conduct. She cannot reveal the client’s wrongdoing except as permitted under Rule 1.05. Nor can the lawyer further the client’s unlawful purpose or continue assisting the client upon discovering the client’s misconduct. The lawyer may have to withdraw from the client’s case. The lawyer must use reasonable efforts to dissuade the client from committing a crime or fraud, and if the client has utilized the lawyer’s services to engage in such conduct, the lawyer must use reasonable efforts to persuade the client to take corrective action.

Communicating with clients Rule 1.03. Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation .

A lawyer must provide her client with enough information about the objectives of the representation to enable the client to participate intelligently in discussions about the 7

objectives and how to accomplish them to the extent that the client is willing and able to engage in discussions of these issues. The lawyer should provide her client with sufficient information to enable a comprehending and responsible adult to make informed decisions. A lawyer may be prevented by a court order or rule from disclosing information to a client. Disclosure of information may be delayed when a lawyer reasonably believes that a client would act imprudently if the information was disclosed immediately.

A lawyer must strive to maintain reasonable communication with a client who suffers from diminished capacity and treat the client with attention and respect.

In Hines v. Comm’n for Lawyer Discipline, 28 S.W.3d 697 (Tex. App.—Corpus Christi 2000), no pet., appellant agreed to represent Nancy Hennessy in a child support enforcement proceeding after her former attorney moved to Fort Worth. Appellant met with Hennessy, her husband, and son and Hennessy paid appellant $500 to represent her at the hearing. Hennessy’s ex-husband did not appear at the hearing and could not be located, so the hearing was reset. Appellant represented Hennessy at the rescheduled hearing, but the judge dismissed Hennessy’s case because her pleadings were defective.

Although appellant told Hennessy she could appeal, he did not prepare any paperwork and did not maintain contact with Hennessy. Id. at 699.

Both the trial and appellate courts held that appellant violated Rules 1.03(a), 1.03(b), and 1.15(d). Appellant accepted money to represent Hennessy, did not amend her defective pleadings, failed to inform her of her options after the judge ruled against her, did not respond to reasonable requests for information, and failed to protect her interests after he stopped representing her. Moreover, appellant never told Hennessy verbally or in writing that he was no longer representing her. Id. at 701-02.

Fee agreements Rule 1.04. Fees (a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable. (b) Factors that may be considered in determining the reasonableness of a fee include, but not to the exclusion of other relevant factors, the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; 8

(3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. (c) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. (d) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (e) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined. If there is to be a differentiation in the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, the percentage for each shall be stated. The agreement shall state the litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement describing the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (e) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case. (f) A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is: (i) in proportion to the professional services performed by each lawyer; or (ii) made between lawyers who assume joint responsibility for the representation; and (2) the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed, including: (i) the identity of all lawyers or law firms who will participate in the fee-sharing agreement, and (ii) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and (iii) the share of the fee that each lawyer or law firm will receive or, if the division is based on the proportion of services performed, the basis on which the division will be made; and (3) the aggregate fee does not violate paragraph (a). (g) Every agreement that allows a lawyer or law firm to associate other counsel in the representation of a person, or to refer the person to other counsel for such 9

representation, and that results in such an association with or referral to a different law firm or a lawyer in such a different firm, shall be confirmed by an arrangement conforming to paragraph (f). Consent by a client or a prospective client without knowledge of the information specified in subparagraph (f)(2) does not constitute a confirmation within the meaning of this rule. No attorney shall collect or seek to collect fees or expenses in connection with any such agreement that is not confirmed in that way, except for: (1) the reasonable value of legal services provided to that person; and (2) the reasonable and necessary expenses actually incurred on behalf of that person. (h) Paragraph (f) of this rule does not apply to payment to a former partner or associate pursuant to a separation or retirement agreement, or to a lawyer referral program certified by the State Bar of Texas in accordance with the Texas Lawyer Referral Service Quality Act, Tex. Occ. Code 952.001 et seq., or any amendments or recodifications thereof.

A lawyer is subject to discipline for charging an unconscionable or illegal fee. The factors underlying a lawyer’s fee should be set forth in writing. It is sufficient to provide a client with a memorandum or fee schedule setting forth the basis of the fee.

Contingent fee agreements must be in writing and are not appropriate in divorce proceedings.

Lawyers may divide fees on the basis of the proportion of services each lawyer renders or if each lawyer assumes joint responsibility for representing the client. A client must consent in writing to the terms of a referral or association of lawyers prior to the commencement of the referral or arrangement.

Lawyers are encouraged to submit to fee resolution procedures offered by local bar associations. Several local bar associations assist lawyers and clients in resolving fee disputes and there are also regional fee dispute resolution centers that can assist with these issues.

A sample fee agreement is attached to this paper.

Confidentiality Rule 1.05. Confidentiality of Information (a) “Confidential information” includes both “privileged information” and “unprivileged client information.” “Privileged information” refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles 10

of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. “Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client. (b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the client's representatives, or the members, associates, or employees of the lawyer's law firm.

(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultation.

(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.

(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation. (c) A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation.

(2) When the client consents after consultation.

(3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client.

(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rules of Professional Conduct, or other law.

(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.

(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client.

(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.

(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.

(9) To secure legal advice about the lawyer’s compliance with these Rules.

(10) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide. (d) A lawyer also may reveal unprivileged client information: (1) When impliedly authorized to do so in order to carry out the representation.

11

(2) When the lawyer has reason to believe it is necessary to do so in order to: (i) carry out the representation effectively; (ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct; (iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or (iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client. (e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. (f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b).

Rule 1.05 protects against the unauthorized disclosure of both confidential privileged and unprivileged client information. In criminal cases, attorney-client privilege is defined in Texas Rule of Criminal Evidence 503. Rule 503 and enables a client to refuse to disclose and to prevent any other person “from disclosing confidential communications made to facilitate the rendition of professional legal services to the client.” In criminal cases, a client may prevent a lawyer or a lawyer’s representative “from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.”

Individuals who may claim the privilege include a client, her guardian or conservator, her personal representative (if the client is deceased), or a successor, trustee, or representative of a corporation, association, or other entity, even if the entity no longer exists. A client’s lawyer or lawyer’s representative when the communication was made is presumed to have the authority to claim the privilege on the client’s behalf.

The attorney-client privilege does not apply if the lawyer’s services were sought to enable anyone to commit or plan to commit what the client should reasonably know is a crime or fraud; to communications pertaining to issues between parties claiming through the same deceased client; to breaches of duty by either a lawyer to a client or a client to a lawyer; to attested documents when a lawyer is the attesting witness; and to communications between joint clients when made to a lawyer in an action between the clients on a matter of common interest.

12

A lawyer may not use confidential information to the client’s disadvantage, or to the advantage of the lawyer or a third person unless the client consents after consultation.

Nor can a lawyer use a former client’s confidential information to the former client’s disadvantage unless the former client consents after consultation or the information has become generally known.

A lawyer may reveal confidential information when expressly authorized to do so; when the client has consented after consultation; when the lawyer has reason to believe disclosure is necessary to comply with a court order, the disciplinary rules, or other law; to the extent reasonably necessary to enforce a claim or establish a defense in a dispute between the lawyer and the client; to defend against a civil claim, criminal charge, or disciplinary complaint against the lawyer or her associates by the client or client’s representative; when the lawyer has reason to believe that disclosure is necessary to prevent the client from committing a crime or fraudulent act; when necessary to rectify a client’s criminal or fraudulent act when the lawyer’s services have been utilized in its commission; to obtain legal advice about a lawyer’s compliance with the disciplinary rules; and when the lawyer has reason to believe that the disclosure is needed to prevent the client from committing suicide. Additionally, a lawyer may disclose confidential information to the client, client’s representative, and members, associates, and employees of her law firm, unless the client instructs her not to do so.

When the threatened injury due to a client’s decision to commit a crime or fraud is grave, the lawyer’s interest in preventing the harm from occurring may be greater than protecting the client’s confidential information. In this scenario, the lawyer has professional discretion to reveal both privileged and unprivileged information to prevent the commission of the fraudulent or criminal act.

Except when death or serious bodily injury is involved, a lawyer is obligated to dissuade the client from committing the criminal or fraudulent act or to persuade the client to take corrective measures.

If the lawyer’s services will be used by the client to materially further criminal or fraudulent conduct, the lawyer must withdraw.

Loyalty Rule 1.06. Conflict of Interest: General Rule (a) A lawyer shall not represent opposing parties to the same litigation. (b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: 13

(1) involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm; or (2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or law firm's own interests. (c) A lawyer may represent a client in the circumstances described in (b) if: (1) the lawyer reasonably believes the representation of each client will not be materially affected; and (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any. (d) A lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute. (e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules. (f) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer's firm may engage in that conduct.

If an impermissible conflict of interest exists before undertaking the representation of a client, the lawyer should decline the representation. If the conflict arises after the representation begins, the lawyer must act to eliminate the conflict, and may even have to withdraw from the case.

As a general rule, a lawyer may not represent opposing parties in litigation. Parties are opponents when a judgment in favor of one party would directly and unfavorably affect the other party. Additionally, a lawyer is generally prohibited from undertaking representation directly adverse to a client in a substantially related matter unless the client consents after consultation and the lawyer reasonably believes that her representation will be reasonably protective of the client’s interests.

A lawyer’s loyalty to her client must also not be blinded by her own interests. If the lawyer cannot consider, recommend, or carry out an appropriate course of action for one client because of her obligations to other clients or her own interests, there is a conflict. A lawyer’s independence and professional judgment must not be compromised. If a disinterested lawyer would conclude that the client should not agree 14

to the representation under the circumstances, the lawyer should not ask the client to agree to the representation or provide the representation based on the client’s consent.

A lawyer may be paid by someone other than the client, provided that the client is informed and consents to the arrangement and the lawyer’s duty of loyalty to the client is not compromised. This happens in juvenile cases when the child’s parents retain the lawyer and the juvenile is the client. The lawyer’s duty of loyalty is to the child, not to her parents.

On September 22, 2021, the Texas Court of Criminal Appeals granted habeas relief to a capital petitioner, Clinton Lee Young, on his fifth (!) habeas petition because investigation revealed that Weldon Petty, an appellate assistant district attorney, violated Mr. Young’s right to a fair trial by working as a paid law clerk for the judge who presided over Young’s capital murder trial while simultaneously representing the State of Texas against Young during his trial and initial capital habeas proceedings. See Ex parte Young, No. WR-65, 137-05 (Tex. Crim. App. Sept. 22, 2021).

The evidence adduced at Young’s writ hearing revealed that Petty was an integral member of the team that prosecuted Young and sent him to death row. Petty wrote most of the motions that were filed on the State’s behalf and appeared in court several times to argue legal issues. Id. at 6. As a paid law clerk in habeas cases for the same judge who presided over Young’s trial and initial habeas proceedings, Petty reviewed filed writs, performed legal research, and submitted a recommendation and proposed order containing findings of fact and conclusions of law to the assigning judge. Id. at 45. During his tenure as a judicial clerk, Petty earned at least $132,000. Id. at 7, n.2.

Petty resigned from the state bar in lieu of disciplinary action. The Texas Supreme Court determined that Petty’s dual employment violated Rule 1.06(b)(2). Id. at 8.

Safekeeping property Rule 1.14. Safekeeping Property (a) A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in a lawyer's possession in connection with a representation separate from the lawyer's own property. Such funds shall be kept in a separate account, designated as a “trust” or “escrow” account, maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other client property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be 15

kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (c) When in the course of representation a lawyer is in possession of funds or other property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest. All funds in a trust or escrow account shall be disbursed only to those persons entitled to receive them by virtue of the representation or by law. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separated by the lawyer until the dispute is resolved, and the undisputed portion shall be distributed appropriately.

Lawyers are fiduciaries with respect to the property of clients and third parties. Property belonging to clients and third parties must be kept separate from the lawyer’s business and personal property. Client funds must be placed in a trust account and the lawyer must maintain complete records of all client and third party property and funds in the lawyer’s possession.

If there is a fee dispute between the lawyer and the client, the lawyer must hold the disputed portion of the funds in trust and promptly return any undisputed funds to the client. In Texas, many local bar associations offer fee dispute resolution services, and there are also regional dispute resolution centers. When a client prepays a fee, that fee belongs to the client until the lawyer until the services have been rendered. Upon notifying the client that the work has been completed, if there is no dispute, the lawyer can then withdraw the fee earned for services rendered from the separate trust account.

In Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d 380 (Tex. App.—Dallas 2003), pet. denied (Tex. 2004), attorney Bellino committed several ethical violations, including violations of Rule 1.14. First, Bellino violated Rule 1.14(a) in one case by depositing settlement funds into his own bank account. Id. at 387. Second, Bellino failed to provide another client with a full accounting of funds he received on the client’s behalf, in violation of Rule 1.14(b). Id. And third, Bellino failed to pay a chiropractor his full fee, despite sending the chiropractor a letter of protection offering to pay the chiropractor his fee from any settlement proceeds received in the case. Although Bellino did pay the chiropractor $2500 of the chiropractor’s $6517 fee, Bellino withheld the balance and 16

demanded that the chiropractor release the rest of his claim. Bellino’s conduct violated Rule 1.14(b) because Bellino failed to promptly deliver funds to a third party.

Declining or terminating representation Rule 1.15. Declining or Terminating Representation (a) A lawyer shall decline to represent a client or, where representation has commenced, shall withdraw, except as stated in paragraph (c), from the representation of a client, if: (1) the representation will result in violation of Rule 3.08, other applicable rules of professional conduct or other law; (2) the lawyer's physical, mental or psychological condition materially impairs the lawyer's fitness to represent the client; or (3) the lawyer is discharged, with or without good cause. (b) Except as required by paragraph (a), a lawyer shall not withdraw from representing a client unless: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes may be criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services, including an obligation to pay the lawyer's fee as agreed, and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.

17

A lawyer should not agree to represent a client in a matter unless the lawyer can fulfill her obligations to the client competently, properly, and without any improper conflicts of interest. A lawyer must decline employment or withdraw from representing a client if the representation will cause the lawyer to engage in conduct the lawyer knows is illegal or conduct that violates the disciplinary rules or other law.

A client may discharge a lawyer at any time, with or without cause, subject to payment of the lawyer’s fees. Whether a client can discharge appointed counsel depends on applicable law, and the client should be made aware of the potential consequences of her actions, including the possibility that she may end up having to represent herself.

If the client lacks the legal capacity to discharge the lawyer, the lawyer may initiate conservatorship proceedings to protect the client’s interests.

A lawyer may withdraw if doing so can be accomplished without a material adverse effect on the client’s interests. A client’s insistence on pursuing a course of action that the lawyer reasonably believes is criminal or fraudulent provides another basis for voluntary withdrawal. If the client insists on pursuing a course of action that the lawyer finds imprudent or repugnant or with which the lawyer fundamentally disagrees, the lawyer may seek to withdraw from the client’s case. Discovering that the client has misused the lawyer’s services in the past is another ground for voluntary withdrawal. If the client refuses to comply with terms of an agreement pertaining to the representation, such as payment of fees or court costs or concerning the scope of the lawyer’s representation, a lawyer may withdraw after duly warning the client that the client is not complying with the agreement.

Although withdrawal under paragraph (b)(2) through (b)(7) is optional, it is permitted even if it has a material adverse effect on the client’s interests.

Upon discharge or withdrawal, the lawyer must take all reasonable steps to mitigate the consequences to the client. A lawyer may retain a client’s file as security for a fee only to the extent permitted by law.

Who does the client’s file belong to, and who gets to keep it after the lawyer’s representation ends? In Tex. Comm. on Prof. Ethics, Op. 570 (May 2006), the Committee addressed the issue of whether a lawyer could refuse to turn over notes that the lawyer had made in the course of and in furtherance of representing a former client.

The Committee stated that “[r]ead together, Rules 1.14(b) and 1.15(d) provide that, generally, the documents in a lawyer's file that are property to which the client is entitled must be transferred to the client upon request unless the lawyer is permitted by law to retain those documents and can do so without prejudicing the interests of the client in the subject matter of the representation.”

18

Despite the strong presumption in favor of the client, the Committee acknowledged that there may be certain situations in which withholding a lawyer’s notes from a former client would be justified: the Committee recognizes that there are some other unusual circumstances that would justify the withholding of certain lawyer's notes from a client. Examples include notes that contain information obtained in discovery subject to a court's protective order forbidding disclosure of the information to the client, notes where the disclosure would violate the lawyer's duty to another person, and notes containing information that could reasonably be expected to cause serious harm to a mentally ill client. See generally Comment c to Section 46 of the Restatement.

These exceptions are based on a lawyer's duties owed to others, including other clients, third persons and courts, or to the client, but are not based on the lawyer's own interests or concerns vis-àvis the client. Thus, a lawyer may withhold from a client or former client certain specific notes (or portions of notes) when required to do so by a court or when not doing so would violate a duty owed to a third person or risk causing serious harm to the client. Accordingly, documents that the former client is entitled to obtain include a lawyer's notes that constitute work product and relate to the client and the lawyer's representation of the client.

Rule 1.15(d) requires that any such documents must be given to the client upon request unless the lawyer is permitted by the exceptions.

In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013), relator, who represented the defendant in his capital murder trial, refused to turn over his former client’s file to postconviction counsel because his former client did not authorize him to provide successor counsel with the file. The CCA emphasized that the former client’s file indeed belonged to the former client. Id. at 704-05. The CCA further emphasized that a competent client has the right to prevent his file from being provided to successor counsel, even if the decision is not necessarily in her best interest: Thus, if the client makes a voluntary decision not to turn over his or her file, a client’s former counsel is obligated to refuse to provide a copy of the client’s file to facilitate the work of successor counsel. This is because the agent (the client’s former attorney) may not relinquish dominion and control of the principal’s property without the principal’s permission absent circumstances inapplicable in this case (e.g., an attorney lien, incompetency). This is true even if the client decides, against his or her best interests, not to relinquish the trial file to subsequent counsel because a legally competent client can define his or her own best interests, and that decision will control.

19

Id. at 707-08.

Relator was granted relief because his former client’s competency was not an issue, and as his former client’s counsel and agent, relator was ethically obligated to honor his former client’s decision not to turn his file over to successor counsel. Id. at 709-10.

Dealing with clients under a disability Rule 1.16. Clients with Diminished Capacity (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for another reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action. Such action may include, but is not limited to, consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, attorney ad litem, amicus attorney, or conservator, or submitting an information letter to a court with jurisdiction to initiate guardianship proceedings for the client. (c) When taking protective action pursuant to (b), the lawyer may disclose the client’s confidential information to the extent the lawyer reasonably believes is necessary to protect the client’s interests.

A lawyer should strive to treat a client with diminished capacity with attention and respect and treat such a client as a normal client to the extent it is possible for the lawyer to do so. If the lawyer represents a ward and the ward has a guardian whose interests are adverse to the ward’s, the lawyer may be obligated to prevent or rectify the ward’s misconduct. If the guardian is not acting in the ward’s best interest, the lawyer may have to seek the guardian’s removal. See Urbish v. 127th Judicial Dist. Ct., 708 S.W.2d 429, 431-32 (Tex. 1986)(holding that, considering only the ward’s best interests, a trial court can replace a guardian if the guardian has an adverse interest to the ward.)

Although a lawyer may disclose confidential information pertaining to a client with diminished capacity under Rule 1.16(c), the lawyer’s authority to disclose in order to protect the client’s interests is limited and the lawyer cannot disclose more information than is reasonably necessary.

20

Advisor Rule 2.01. Advisor In advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice.

Lawyers must give their clients straightforward advice, even if it is unpleasant and not what the client wants to hear. A lawyer may refer to relevant moral and ethical considerations when advising her clients. If the matter is within the domain of another profession, the lawyer should refer the client to consult with a professional in the applicable field when appropriate. A lawyer may initiate advising a client if it is in the client’s best interest for the lawyer to do so.

Zealous advocacy Rule 3.01. Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.

Lawyers must not file frivolous or knowingly false pleadings, nor can they assert knowingly false claims or defenses. Pleadings and assertions are frivolous if made primarily to harass or maliciously injure another person, and if the lawyer cannot make an argument that her action is either consistent with existing law or supported by a good faith argument that existing law should be extended, modified, or reversed.

In federal court, Fed. R. Civ. P. 11(b) specifies that when an attorney signs a pleading, she is representing that the pleading is not being presented for an improper purpose, including harassment, causing unnecessary delay, or unnecessarily increasing litigation costs; that there is a basis in existing law or a non-frivilous argument to extend, modify, or reverse existing law, or to establish new law; that the facts have evidentiary support or will have evidentiary support after there has been a reasonable opportunity for additional discovery; and that factual denials are based on based on the evidence or a reasonable belief or lack of information. After notice and hearing, a party, law firm, or attorney may be sanctioned for violating FRCP 11(b).

21

Duties to the court Candor toward the tribunal Rule 3.03. Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (5) offer or use evidence that the lawyer knows to be false. (b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts. (c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.

A lawyer must zealously present her client’s case while simultaneously maintaining client confidentiality and being candid with the court. If the opposing party has failed to disclose authority in the controlling jurisdiction that is directly adverse to the lawyer’s position, the lawyer must disclose the adverse authority to the court.

A lawyer must try to dissuade a client or other person from offering evidence or other material that the lawyer knows to be false. A lawyer cannot offer evidence or other material that she knows to be false. If the client insists on offering the false evidence, the lawyer may seek to withdraw.

If the lawyer subsequently learns that material evidence or testimony is false, she must try to get the client to correct the false testimony or withdraw the false evidence. If the lawyer is unsuccessful, she must take additional remedial measures.

In a criminal case, if the lawyer knows the client intends to commit perjury, the lawyer must take reasonable remedial measures, which may include revealing the perjury.

22

A lawyer may refuse to offer evidence she believes is false, even if she does not know that the evidence is false.

A lawyer’s obligation to rectify the presentation of false evidence continues as long as there is a reasonable possibility that corrective legal action can be taken.

In Tex. Comm. on Prof. Ethics, Op. 504 (1995), the Commission concluded that a lawyer did not violate Rule 3.03 when he failed to correct erroneous statements that a prosecutor made to the court about his client’s prior criminal record. Neither defense counsel nor the client made any false statements to the court about this issue.

Here, the prosecutor mistakenly advised the court that the defendant had no prior convictions and then turned to defense counsel and asked, “Right?” Neither defense counsel nor the defendant responded to the prosecutor’s question, and the trial court granted probation.

The defendant had previously informed defense counsel about his prior felony convictions, so defense counsel knew that the prosecutor’s statement to the court was inaccurate when it was made. After trial, defense counsel advised the defendant that if a probation officer asked him about his prior arrests and convictions, he had to answer and answer truthfully. Probation officials learned about the defendant’s prior felony convictions when they asked the defendant truthfully answered their questions.

Rules 3.03(a)(1), (a)(2), and (a)(5) are exceptions to a lawyer’s duty to maintain client confidentiality pursuant to Rule 1.05. The issue is whether a lawyer may remain silent when neither he nor his client has made a false statement to the court, but the lawyer knows that the court is relying on mistaken information that will benefit the lawyer’s client.

If a judge specifically asks a lawyer whether his client has any prior felony convictions, the lawyer must answer truthfully. Likewise, if the court’s question to defense counsel occurs after another person has made an inaccurate statement, the defense lawyer must correct the erroneous information, make a statement indicating that the lawyer is not corroborating the incorrect statement, or ask the court to excuse him from answering the question.

Silence by the lawyer in this situation does not constitute the lawyer’s knowing use of false evidence. Since the client did not commit fraud or perjury, the lawyer’s silence does not constitute assisting a fraudulent or criminal act. The lawyer cannot disclose his client’s prior felony convictions because doing so is prohibited by Rule 1.05.

23

In Ibarra v. State, 782 S.W.2d 234 (Tex. App.—Houston [14th Dist.] 1989), no pet., the State filed a motion to strike Ibarra’s brief because Ibarra’s attorney neglected to point out directly adverse controlling authority. Id. at 235. Nor did Ibarra’s attorney argue that the directly adverse controlling authority should be modified or overruled. Id. In fact, Ibarra’s counsel had filed more than forty briefs on the same obscenity issue and had not substantively altered his “fill-in-the-blanks” briefs. Id. Although the appellate court did not grant the State’s motion to strike Ibarra’s brief out of concern it would further delay the proceedings, the Court advised Ibarra’s counsel that he would be referred to the state bar for disciplinary action and subject to the Court’s contempt power if he filed another “fill-in-the-blank” brief. Id. Fairness in adjudicatory proceedings Rule 3.04. Fairness in Adjudicatory Proceedings A lawyer shall not: (a) unlawfully obstruct another party's access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act. (b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for his loss of time in attending or testifying; or (3) a reasonable fee for the professional services of an expert witness. (c) except as stated in paragraph (d), in representing a client before a tribunal: (1) habitually violate an established rule of procedure or of evidence; (2) state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness; (3) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, except that a lawyer may argue on his analysis of the evidence and other permissible considerations for any position or conclusion with respect to the matters stated herein;

24

(4) ask any question intended to degrade a witness or other person except where the lawyer reasonably believes that the question will lead to relevant and admissible evidence; or (5) engage in conduct intended to disrupt the proceedings. (d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's willingness to accept any sanctions arising from such disobedience. (e) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

Tex. Penal Code § 37.09(a)(1) prohibits a person who knows that there is a pending or ongoing investigation or official proceeding from altering, destroying, or concealing any records, documents, or things, with the intent to impair their verity, legibility, or availability as evidence. Tex. Penal Code §37.10(a)(3) prohibits the intentional destruction, concealment, removal, or impairment of the verity, legibility, or availability of a governmental record. Violation of subsection (a) of Tex. Penal Code § 37.09 and subsection (a)(3) of Tex. Penal Code §37.10(a) is a third-degree felony.

In Tex. Comm. on Prof. Ethics, Op. 690 (Oct. 2020), the Commission addressed the question of whether a defense attorney violated the disciplinary rules when he refused to reveal the existence of letters he received from his incarcerated client until trial and also refused to allow the prosecutor to inspect the letters until the trial court ordered him to do so.

The Commission emphasized that Rule 3.04(a) applies only to unlawful obstruction or concealment, meaning conduct that violates a court order, statute, or other kind of mandatory disclosure obligation. The Committee also stated that it was unaware “of any authority that it is a crime for a lawyer to accept and retain ordinary tangible evidence from a client accused of a crime.”

The Commission acknowledged that “there is no traditional discovery process in Texas that allows the State to obtain evidence from a criminal defendant.” The Commission further acknowledged that the state of law in Texas as to whether an attorney has a selfexecuting obligation to turn over certain kinds of evidence, including fruits and instrumentalities of a crime, is unclear, but that “a Texas court might recognize a selfexecuting obligation to produce Special Criminal Evidence. If so, a violation of that obligation would be “unlawful” for purposes of Rule 3.04.”

25

With respect to the issue presented, the Commission concluded that the lawyer did not have an obligation to turn over the letters he received from his incarcerated client in the absence of a court order or agreement to do so.

26

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

WWW.TCDLA.COM

TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

WWW.TCDLA.COM

Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership.

Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

Pledge Options Choose a fund that’s near and dear to you: For the

ASSOCIATE FELLOWS FUND ($750)

In one lump sum

Quarterly Monthly

FELLOWS FUND ($1500)

SUPER FELLOWS FUND ($3000)

In ____ payments of $________.

I would like to designate this donation for use on these specific funds: CHARLES BUTTS Law Student Scholarship in the amount of $_________ Financial CLE SCHOLARSHIPS $___________ For the COMANCHE CLUB in the amount of $_________

F or CHRISTINE S. CHENG MD MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________

BERTHA MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount of $___________ KELLY PACE MEMORIAL NEW LAWYER TRAVEL FUND in the amount of $___________

Contact Information _________________________________________________________________ Name

_________________________________________________________________ Bar Card Number/Date

_________________________________________________________________ Street

_________________________________________________________________ City, State, Zip

_________________________________________________________________ Phone

_________________________________________________________________ Email

Payment Method Check payable to TCDLEI

Credit Card (Visa, Mastercard, Amex, or Discover)

_________________________________________________________________ Credit Card Number

_________________________________________________________________ Expiration Date

_________________________________________________________________ Name On Card

_________________________________________________________________ Signature

Mail completed pledge form with payment to TCDLA • 6808 Hill Meadow Drive • Austin, Texas 78736 TCDLA Office Use Only Amount:_____________________________ Check/cc: _______________________________ Entered By: _____________________________ Date: __________________________

www.tcdla.com

©TCDLA 2021. ALL RIGHTS RESERVED.

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 6808 HILL MEADOW DR., AUSTIN, TEXAS 78736