Journey to Justice Corpus Christi

Journey to Justice September 9, 2022 Corpus Christi

Course Directors:

Jeep Darnell, Lisa Greenberg, & Danice Obregon

The seminar is sponsored by CDLP, a project of TCDLA, funded by the Texas Court of Criminal Appeals

JOURNEY TO JUSTICE SEMINAR INFORMATION Date Location Course Director

September 9, 2022 Omni Corpus Christi Hotel | 900 N Shoreline Blvd, Corpus Christi, TX 78401 Jeep Darnell, Lisa Greenberg, & Danice Obregon

Friday, September 9, 2022 Time

CLE

Daily CLE Hours: 6.0 Ethics: 1.0

Topic

Speaker

7:30 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Lisa Greenberg & Danice Obregon

8:30 am

1.0

Call to Action | Open and Closing Arguments

Joseph Hoelscher

9:30 am

.75

Seeking the Truth | Voir Dire

Shawn Sareen

10:15 am 10:30 am

Break .75

11:15 am 11:30 am

Preparing for the Journey | Pre-Trial Investigations

Clifford Duke

Lunch Line 1.0

12:30 pm

Lunch Presentation: Staying Mentally Strong for the Journey | Mental Health

Angela Moore

Break

12:45 pm

.75

Using the Right Tools for the Journey | Technology in the Courtroom

Nneka Akubeze

1:30 pm

.75

Brothers and Sisters in the Walk | Experts & Witnesses

Roberto Balli

2:15 pm

1.0

Remembering Why We are on the Journey | Client Relationships & Communications

Alex Fuller

3:15 pm

Ethics

Adjourn

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

Criminal Defense Lawyers Project

Journey to Justice Table of Contents

Speakers

Topic Friday, September 9, 2022

Joseph Hoelscher Shawn Sareen Clifford Duke

Call to Action | Open and Closing Arguments Seeking the Truth | Voir Dire Preparing for the Journey | Pre-Trial Investigations

Angela Moore

Staying Mentally Strong for the Journey | Mental Health

Nneka Akubeze

Using the Right Tools for the Journey | Technology in the Courtroom

TBD Alex Fuller

Brothers and Sisters in the Walk | Experts & Witnesses Remembering Why We are on the Journey | Client Relationships & Communications

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

Texas Criminal Defense Lawyers Association

Journey to Justice

September 9, 2022 Omni Corpus Christi Hotel 900 N Shoreline Blvd.

Corpus Christi, TX 78401

Topic: Call to Action | Open & Closing Arguments Speaker:

Joseph Hoelscher 3030 Nacogdoches Rd Ste 222 San Antonio, TX 78217-4540 (210) 222-9132 Phone (888) 519-8229 Fax joe@hgclaw.com email www.hgclaw.com website

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

Joseph F. Hoelscher, II 909 NE Loop 410, Ste 500 San Antonio, TX 78209 210-222-9132 (o) 888-519-8229 (f) Joe@HGCLaw.com SUMMARY Award-winning attorney with experience in over 100 trials, both civil and criminal, as well as high-profile and complex cases. Previous cases have featured in national media including “America’s Most Wanted,” “Dateline NBC”, The New York Daily News, People Magazine, and National Public Radio. Legal news commentator featured in outlets such as Rolling Stone Magazine, The Washington Post, U.S. News & World Report, and the ABA Journal. Published author and regular Continuing Legal Education presenter. Principle practice areas are civil Child Welfare, felony Child Abuse, and Intoxication Offenses.

PROFESSIONAL EXPERIENCE Hoelscher Gebbia Cepeda PLLC, San Antonio, Texas Managing Attorney, May 2017-Present General practice law firm with emphasis in Family and Criminal Law. Practice areas include child welfare (CPS/DFPS cases), Foster Parent law, Driving While Intoxicated and other intoxication offenses, major felonies, capital cases, complex divorce and child custody, and trial advocacy. ● Lead Counsel for novel case regarding paternity and child custody after informal assisted reproduction in an alleged same-sex informal marriage ● Mediated simultaneously, as Lead Counsel, twenty-three child welfare cases on behalf of an attorney and guardian ad litem against the Texas Department of Family and Protective Services, the Bexar County Ad Litem Attorneys’ Association, and the Bexar County District Attorney’s Office resulting in a reversal of a communications ban on our client ● Maintained winning record in jury trials in civil and felony cases ● Won appeals supporting suppression of blood alcohol evidence and standing for foster parent intervenors in a child custody case Our Lady of the Lake University, San Antonio, Texas Adjunct Professor of Political Science, Spring 2020 Teaching Law School Preparation & Intro to the Legal System (POLS 3337) course designed to prepare students for the first year of law school.

Hoelscher Law Office, San Antonio, Texas Attorney-Owner, May 2007-April 2017 General practice law firm with emphasis in Child Welfare and Criminal Law. Hoelscher 1

● Successfully exposed systemic failures in the Bexar County breath alcohol testing program, resulting in Brady notices in dozens of cases ● Caught a corrupt lab tech resulting in the suspension of blood alcohol testing in Bexar County, ultimately affecting hundreds of cases ● Forced an investigation and suspension of a San Antonio Police Dept. Field Training Officer who was considered the best DWI officer in Bexar County ● Appointed by two courts as prosecutor pro tem St. Mary’s University, San Antonio, TX Asst. Director of Forensics, January 1998-July 2002 Developed and instituted primary training program for an internationally competitive speech and debate team. Taught persuasion, logic, rhetoric, and procedure. Analyzed lay person judging in adversarial systems to construct model decision making paradigms. ● Featured by the BBC for a global audience ● Toured Israel by invitation to lecture at major universities ● Worked with Russian, Japanese, British, and Israeli National Debate teams in cultural exchange programs Texas Military Institute, San Antonio, TX Director of Forensics, August 1999-July 2001 Head of nationally competitive speech and debate program, managed travel budget over $40,000 annually, hired and directed coaching staff.

CLERKSHIPS Hon. George Allen, District Court Judge (51st District Court), Waco, TX Judicial Clerk, August 2006 – January 2007 Prepared bench memoranda, performed legal research and analysis, handled court correspondence.

Goldstein Goldstein & Hilley, San Antonio, TX Law Clerk, May 2004 – August 2004 Performed legal research, drafted trial motions and supporting briefs, prepared appellate documents and writs. Assisted in trial preparation and investigation.

FORMAL EDUCATION Baylor University Law School, Waco, TX Juris Doctor with Criminal Law Concentration, November 2006 ● Order of Barristers, Moot Court Board, Moot Court and Client Counseling Teams. ● Dean’s Academic Excellence Scholarship Hoelscher 2

●

Designed trial advocacy problems for the Practice Court program as assistant to Prof.

Gerald Powell, Head of Practice Court.

St. Mary’s University, San Antonio, TX Master of Arts in International Relations with Western Hemisphere Concentration, December 2002 ● Conducted economic and political development field research in Haiti and Cuba ● Completed foreign language component of comprehensive examination in Spanish St. Mary’s University, San Antonio, TX Master of Arts in Communications Studies, December 2002 ● Thesis: Deconstructing Speech Codes - an analysis of critical race theory and deconstructionism in relation to First Amendment free speech protections in the context of institutional rules regulating communication in academic settings.

St. Mary’s University, San Antonio, TX Bachelor of Arts in Political Science, May 1998 ● University President’s Scholarship PUBLICATIONS Practice Guide to Texas Drunk Driving Law, 2021 Ed., Matthew Bender/Lexis-Nexis Publishing, 2023.

Practice Guide to Texas Drunk Driving Law, 2021 Ed., Matthew Bender/Lexis-Nexis Publishing, 2021.

Practice Guide to Texas Drunk Driving Law, 2020 Ed., Matthew Bender/Lexis-Nexis Publishing, 2020.

Contributor, “Law in the Time of Coronavirus.” Voice For The Defense (Vol. 49, No. 6, p. 24).

Texas Criminal Defense Lawyers Association, July/August 2020.

Practice Guide to Texas Drunk Driving Law, 2019 Ed., Matthew Bender/Lexis-Nexis Publishing, 2019.

Practice Guide to Texas Drunk Driving Law, 2018 Ed., Matthew Bender/Lexis-Nexis Publishing, 2018.

“Consider A National Registry For Child Abuse Cases,” San Antonio Express-News, September 3, 2018.

“Alcohol Can Dim Holiday Cheer,” San Antonio Express-News, Sunday, December 17, 2017.

Practice Guide to Texas Drunk Driving Law, Matthew Bender/Lexis-Nexis Publishing, 2017.

Hoelscher 3

“Speedy Trial: Punishing the System for Making Us Wait.” Voice For The Defense Magazine, Texas Criminal Defense Lawyers’ Association, November 2015.

“Sealing Criminal Records,” The Defender Magazine, San Antonio Criminal Defense Lawyers’ Association, (Summer 2012).

Contributor, “Foreign Corrupt Trade Practices Act,” Chester’s Practical Guide to International Trade Law, (2008).

SPEAKING ENGAGEMENTS “Game Day Ready: Technology in the Courtroom,” Game Day CLE – Waco, Texas Criminal Defense Lawyers Association, January 14, 2022.

“Client Interview: Information Gathering, Written Fee Agreement, Ascertaining Client Goals, and Ethics,” Handling a DWI Case in Texas, MyCLE, December 21, 2021.

“Keep Your Head in the Game: Mental Health,” Game Day CLE – Laredo, Texas Criminal Defense Lawyers Association, November 12, 2021.

“Rules of the Game/Penalties: Client Relationships & Communication,” Game Day CLE Victoria, Texas Criminal Defense Lawyers Association, September 2021 “The Resistance is Self-Sabotage: Mental Health Law,” Battling The Resistance CLE – South Padre Island, Texas Criminal Lawyers Association, July 2021.

“The Resistance is Self-Sabotage: Mental Health Law,” Battling The Resistance CLE – Fredricksburg, Texas Criminal Lawyers Association, February 2021.

“The Resistance is Self-Sabotage: Mental Health Law,” Battling The Resistance CLE – Brownsville, Texas Criminal Lawyers Association, November 2020.

“Playoffs?: Appeals,” Defense: We Make Champions CLE – MacAllen, Texas Criminal Defense Lawyers Association, November 2019.

“Playoffs?: Appeals,” Defense: We Make Champions CLE – San Angelo, Texas Criminal Defense Lawyers Association, September 2019.

“Discovery and Evidentiary Issues in Child Abuse Cases,” Against All Odds CLE, Texas Criminal Defense Lawyers Association, August 2018.

“Asymmetrical Discovery - Tactics to Make the State Fight Itself,” San Antonio Defense Lawyers’ Association Monthly CLE, August 2017.

Hoelscher 4

“Elements of Storytelling in Criminal Trial,” San Antonio Criminal Defense Lawyers’ Association Monthly CLE, December 2016.

“Cops as Witnesses: Friend and Foe,” Plaintiff Litigation INSIGHT CLE, August 2015 “Communicating With Clients With PTSD,” PTSD: The Elephant in the Courtroom CLE, 2015.

“Unsinking the Ship: What to Do When Your Client Has Confessed,” San Antonio Criminal Defense Lawyers’ Association Monthly CLE, March 2015 “Marijuana Law in Texas,” Bexar County Republican Liberty Caucus, January 2015 “How Judges affect the Residential Care Industry,” San Antonio Residential Care Homes, October 2012 “Contract Systems for Indigent Defense,” Bexar County Task Force on Indigent Defense, March 23, 2011 “Changing Lanes: New Directions in Vehicle Search Laws,” San Antonio Criminal Defense Lawyers Assoc. Monthly CLE, June 2009 Business and Non-Profit Organization Radio Series, sponsored by Get Up! Community Center: Guest Host ● Serving the Community as a Business, July 5, 2009 ● Legal Issues Involving Minors, June 20, 2009 ● Selecting Legal Representation for Your Business, June 14, 2009 ● Open Forum Legal Q&A, June 6, 2009 ● Criminal and Civil Liability Issues for Non-Profits, May 30, 2009 ● The Role of Non-Profits in Criminal Justice, May 16, 2009

MEDIA APPEARANCES & COMMENTARY (Not Comprehensive) Seagal, Edward. “Supreme Court Nomination Process Calls Attention to Role of Background Checks When Hiring Workers.” Forbes, January 17, 2022.

Briggs, Zach. “Expanded medical marijuana access has officially gone into effect in Texas.”

KENS5 News (CBS Affiliate), San Antonio, Texas, September 1, 2021.

Smith, Matt. “Court at law resumes jury trials; Termination case first on the dockets.” Cleburne Times-Review, June 12, 2021.

Hoelscher 5

Briggs, Zach. “Family law attorney weighs in on Texas foster care system after shut down of Children’s Shelter facility.” KENS5 News (CBS Affiliate), San Antonio, Texas, April 27, 2021.

Briggs, Zach. “Bexar County resumes in-person court proceedings with remote options still available.” KENS 5 News (CBS Affiliate), San Antonio, Texas, April 5, 2021.

King, Seth. “How Some THC Is Legal – For Now.” Rolling Stone Magazine, Jan. 18, 2021.

O’Hare, Peggy. “Sheriff send Anaqua Springs shooting deaths case back to investigators for more scrutiny.” San Antonio Express-News, Jan. 4, 2021.

Kowarski, Ilana. “What Can You Do With a Criminology Degree?” U.S. News & World Report, Nov. 12, 2020.

Bernstein, Leandra. “Intimidation tactics could backfire on protestors, sway voters in November.” Sinclair Broadcast News, August 28, 2020.

Caan, Nicole. “Coughing in the time of coronavirus could be criminal.” KENS5 News (CBS Affiliate), San Antonio, Texas, July 9, 2020.

Medina, Mariah. “Bexar County to hold civil jury trials virtually, opening door to possibility of remote criminal jury trials.” KENS 5 News (CBS Affiliate), San Antonio, Texas, July 29, 2020.

Braff, Danielle. “Some lawyers have baked their political views into their firms’ DNA.” ABA Journal, June 1, 2020.

Olsen, Alexandra. “Employers navigate virus pandemic without clear guidelines.” Boston Herald, March 13, 2020.

Lauer, Claudia and Colleen Long. “U.S. Prisons, jails on alert for spread of coronavirus.” The Washington Post, March 6, 2020.

Medina, Mariah. “Here’s Why January is Known as Divorce Month.” KENS 5 News (CBS Affiliate), San Antonio, Texas, January 1, 2020.

Williams, Geoff. “6 Financial Considerations for Remarriage.” U.S. News & World Report, November 18, 2019.

Salles, Alice. “Child Abuse Training for Teachers Both Praised and Criticized,” The Epoch Times, November 1, 2019.

Zapata, Kimberly. “How to Tell If Someone Is Lying,” O: The Oprah Magazine, October 25, 2019.

Hoelscher 6

Bruk, Diana. “12 Ways to Get Help If You’re a Victim of Domestic Violence,” MSN.com, Oct. 22, 2019.

Yuko, Elizabeth. “Facts About Mass Shootings in America,” Reader’s Digest, August 2019.

Martin, Eric J. “One Quarter of Small Businesses Plan to Reinvest in Their Enterprises,” CO (United States Chamber of Commerce Newsletter), May 7, 2019.

Kowarski, Ilana. “Why Is It So Hard to Get Into a Top Law School?,” U.S. News & World Report – Grad School Ranking Edition, March 2019.

Galli, Joe. “Lawyers respond to Gov. Abbott’s request to fast track executions for mass murderers.” News 4 San Antonio (NBC Affiliate), San Antonio, Texas, September 4, 2019.

Caltabiano, David. “Convicted habitual drunk driver faces murder charge.” News 4 San Antonio (NBC Affiliate), San Antonio, Texas, February 28, 2019.

O’Neil, Bill. “Defense Attorney Criticizes Bexar Prosecutors.” KTSA Radio, San Antonio, Texas, March 16, 2017.

McCarty, Melissa. “San Antonio Mother of Three Remains Missing a Year After Dispute with Husband.” Crime Watch Daily with Chris Hansen. (Warner Bros.), Feb. 13, 2017 Dunson, Alex. “Special Report: Where’s Bianca?.” CBS-7 News (CBS Affiliate), Midland, Texas, Nov. 04, 2016.

Bourke, Justin. “Search Continues After 6-month Anniversary of S.A. Mother’s Disappearance.”

KENS-5 News (CBS Affiliate), San Antonio, Texas, Nov. 04, 2016.

Contreras, Guillermo. “A District Attorney’s Bumpy Ride.” San Antonio Express-News, Oct. 7, 2016.

Spriester, Steve. “SAPD Chief, Attorney Have Different Reactions to Dashcam Video.” KSAT12 News (ABC Affiliate), San Antonio, Texas, Aug. 29, 2016.

Santos, Renee. “Bexar County in Need of Foster and Adoptive Parents.” FOX 29 News (Fox Affiliate), San Antonio, Texas, Aug. 28, 2016.

Avila, Jaie. “Undercover Investigation: Parking Lots Booting Cars Against City Ordinance.”

NEWS 4 San Antonio (NBC Affiliate), San Antonio, Texas, Aug. 28, 2016.

Santos, Renee. “The Fight For Kenya: Families seeking adoption of one year old girl.” FOX 29 News (Fox Affiliate), San Antonio, Texas, May 5, 2016.

Hoelscher 7

Degollado, Jessie. “Foster Parents Sue CPS To Adopt Child: Agency defends family reunification policy.” KSAT-12 News (ABC Affiliate), San Antonio, Texas, April 27, 2016.

Locklear, Michael. “Bexar County Catching Up On DWI Blood Sample Backlog.” NEWS 4 San Antonio (NBC Affiliate), Dec. 11, 2015.

Price, Robert. “Attorney Accused of Sex with Clients Remains on Job.” News 4 San Antonio (NBC Affiliate), Dec. 1, 2015.

Baucom, Emily. “Candid Conversation On Police Patrol.” WOAI News (Fox Affiliate), San Antonio, Texas, Nov. 20, 2015.

Chasnoff, Brian. “When Do We Get The Blood Back?” San Antonio Express-News, July 31, 2015.

Spriester, Steve. “Bad Blood?” KSAT-12 News (ABC Affiliate), San Antonio, Texas, February 25, 2015.

Guzman, Stephanie. “Lawyers Adjust Amid Changes In Prosecuting DWIs.” San Antonio Business Journal, Jan. 30, 2015.

Malik, Alia. “DNA Links Man to Knifepoint Rape.” San Antonio Express-News, April 24, 2014.

Cassidy, Michelle. “Jury Acquits Man in Prostitute Knife Attack.” San Antonio Express-News, Feb. 4, 2014.

Goyette, Braden. “Dog left out in Texas heat bites face of 3-year-old girl.” New York Daily News. June 26, 2012.

Wolfe, Elaine. “Lawyers Challenge Reduced Fees for Children’s Court.” Plaza de Armas, 2011.

(No Longer Available).

Wolfe, Elaine. “For Poor Defendants, The Wheel Spins Once More.” Plaza de Armas, 2011. (No Longer Available).

AWARDS Super Lawyer, Thomson Reuters, 2021, 2022 Best of San Antonio - Attorney, Reader’s Choice, San Antonio Current, 2021 DWI Trial Warrior Award, Texas Criminal Defense Lawyer’s Association, 2021 Best of San Antonio - Attorney, Reader’s Choice, San Antonio Current, 2020 Top DWI Lawyer in San Antonio, Scene in San Antonio Magazine, 2020 Top Family Lawyer in San Antonio, Scene in San Antonio Magazine, 2020 Client Champion Award – Gold, Martindale-Hubbell, 2019, 2020 Hoelscher 8

Top 100 Trial Lawyers, National Trial Lawyers, 2014 - 2019 Member in the Spotlight, National College of DUI Defense, May 2019 “Best DWI Lawyers,” Scene in San Antonio Magazine, 2018, 2019 “Best Lawyers” list, Scene in San Antonio Magazine, 2012 - 2019 Client Distinction Award, Martindale-Hubbell, 2015 “Best Family Lawyers,” Scene in San Antonio Magazine, 2014, 2016 “Top 30 Criminal Defense Attorneys,” Scene in San Antonio Magazine, 2014, 2015, 2016 Avvo.com “Superior” 10 out of 10 Attorney Rating, 2011-Present Delta Theta Phi International Legal Fraternity: Justice James Norvell Memorial Award & Scholarship, 2005, 2006 University of San Diego: 2nd Place Overall, National Criminal Procedure Tournament, 2005 Naman Howell Smith & Lee: Semi-Finalist, Client Counseling Tournament, 2005 Texas Forensics Association: Texas State Championship Coach, 2001 International Public Debate Association: National Debate Champion, 1998

MEMBERSHIPS AND ADMISSIONS Member, State Bar of Texas, Admitted May 2007 Texas State Bar No. 24042972 Admitted, Federal Western District of Texas, 2007 Member, Board of Directors, Texas Criminal Defense Lawyer’s Association, June 2020 – Present • • •

Member, Judicial Conduct Committee Member, Media Relations Committee Vice Chair, Cannabis Law Committee

Board Member, Starlite Autism Center, 2018-2020 Co-Chair, Retention Committee of the San Antonio Criminal Defense Lawyers Association (advises newly elected Bexar County DA regarding retention of ADAs), 2018 Speaker, Texas Criminal Defense Lawyers Project, 2018-Present Member, College of the State Bar of Texas, 2009-Present Member, Pro Bono College of the State Bar of Texas, 2015-Present Member, American Bar Association Advisory Panel, 2009-2014 Hoelscher 9

Mentor, San Antonio Bar Association Mentorship Committee, 2010-2015 Member, National Association of Criminal Defense Lawyers, 2009-Present Member, National College of DUI Defense, 2016-Present Member, Texas Criminal Defense Lawyers’ Association, 2007-Present Founding Member and Parliamentarian, Texas Association of Cannabis Lawyers, 2017-Present Member, Legal Committee, National Organization for the Reform of Marijuana Laws, 2008Present (some years excepted)

Hoelscher 10

OPENING STATEMENT AND CLOSING ARGUMENT

Joseph Hoelscher Joe@HGCLaw.com HGC LAW 909 NE Loop 410, Suite 500, San Antonio, TX 78209 www.HGCLaw.com

TABLE OF CONTENTS

I.

Opening Statement…………………..…………………..……………………..page 1 A. Persuasion in Opening Statements…………………..………………………..page 1 B. Elements of Storytelling…………………..…………………..……………….page 1 C. Evidence in Opening Statement…………………..…………………………...page 4 1. Pre-Admitted Evidence…………………..…………………..….….….…..page 4 2. Demonstrative Exhibits…………………..…………………….….….…....page 5 3. Excerpts of Testimony…………………..…………………..……………...page 6 D. General Law of Opening…………………..…………………..……………….page 6 1. State Chooses to Open…………………..…………………..……………...page 6 2. When Defense May Open…………………..……………………………...page 6 3. Content…………………..…………………..…………………..………….page 7 4. Opening the Door…………………..…………………..…………………..page 8

II.

Closing Argument…………………..…………………..………………………page 8 A. Persuasion in Closing Argument…………………..…………………..………page 8 B. Structure of Closing Argument…………………..……………………………page 8 C. Evidence in Closing Argument…………………..…………………………...page 10 D. General Law of Closing Argument…………………..………………………page 11 1. Order…………………..…………………..…………………..…………..page 11 2. Content…………………..…………………..…………………..………...page 11 a. Plea for Law Enforcement…………………..………………………..page 12 b. Improper Arguments…………………..……………………………..page 12 c. Attacks on Defense Counsel…………………..………………………page 13 d. Attacks on Defendant…………………..……………………………..page 14 e. Facts Not in Evidence…………………..…………………..….….…..page 14

Page 1

I.

Opening Statement A. Persuasion in Opening Statements

Opening statement is your first chance to tell the jury explicitly your story, theme, and key points of evidence. A good voir dire helps set up a strong opening opening statement, but the rules of voir dire require ambiguity that a strong opening can dispel. The most effective opening will tell a story that impacts the jurors emotionally, influencing how they receive the evidence that follows. Opening statements are particularly important because of the massive amount of research finding that humans make up their minds quickly. As soon as we have an emotional reaction to information, we begin committing ourselves to a particular opinion regarding that information. So, lawyers who can provoke a strong emotional response that is favorable to their client, early, have a stronger chance of persuading jurors to adopt the lawyers’ positions.

Generally, the surest method of provoking a controlled emotional response is through storytelling. When an audience hears a story, they tend to visualize themselves in the role of the protagonist. Their emotional barriers are lowered and they feel the events of the story as though the events are happening to them. Setting up your client as the protagonist of a story told in opening can put the jurors in your client’s shoes, building sympathy, and causing them to receive the evidence in your case from your client’s perspective.

On the other hand, when you need to disassociate the jury from their immediate emotional reactions, choosing a protagonist other than your client may be effective. Where the evidence is overwhelming and you are compelled to make a more technical argument rooted in the burden of proof or in refocusing the jury’s attention on police misconduct, you can make the jurors the protagonists as heros for justice, setting up a request for them to give the story of your case a happy ending by standing up for a more equitable system.

Storytelling has a primitive power when used well.

B. Elements of Storytelling The elements of storytelling are the pieces of a story that make it effective as a shared emotional journey. Entire books have been written and courses taught about how to tell a story well. However, constructing a story around the following elements will give your message a strong foundation.

1. Setting The setting is the time and location in which your story takes place. Settings can be very specific, but can also be more broad and descriptive. A good, well-established setting creates an intended mood and provides the backdrop and environment for your story.

Example 1: July 21st, 1865 – Springfield, Missouri – Town Square – 6pm.

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Example 2: A tired little cottage on a lonely night.

2. Characters A story usually includes a number of characters, each with a different role or purpose.

Regardless of how many characters a story has, however, there is almost always a protagonist and antagonist.

Central Characters: These characters are vital to the development of the story. The plot revolves around them.

Protagonist: The protagonist is the main character of a story. He or she has a clear goal to accomplish or a conflict to overcome. Although protagonists don’t always need to be admirable, they must command an emotional involvement from the audience.

Antagonist: Antagonists oppose protagonists, standing between them and their ultimate goals.

The antagonist can be presented in the form of any person, place, thing, or situation that represents a tremendous obstacle to the protagonist.

3. Plot The plot is the sequence of events that connect the audience to the protagonist and their ultimate goal.

Example: A group of climbers plan to escort paying clients to the summit of Mt. Everest.

There is always a clear goal. In this case, it’s to get the paying clients safely up the mountain and return them to basecamp unharmed.

4. Conflict The conflict is what drives the story. It’s what creates tension and builds suspense, which are the elements that make a story interesting. If there’s no conflict, not only will the audience not care, but there also won’t be any compelling story to tell.

Example 1: “We climbed Mt. Everest without issue.”

Without some sort of conflict, there’s no story. It’s just a statement. As an audience member, I think, “Oh, cool. Sounds like fun. Did you take any photos?”

Example 2: “We attempted to climb Mt. Everest and were suddenly hit with an unexpected storm, causing our team to become dispersed with zero visibility and a lack of oxygen, ultimately leading to the death of 13 people.”

Now there’s a story. As an audience member, I want to know, “What happened? How did 13 people die?”

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Conflict is what engages an audience. It’s what keeps them white-knuckled, at the edge of their seats, waiting impatiently to see if the protagonists will overcome their obstacle.

5. Theme The theme is what the story is really about. It’s the main idea or underlying meaning. Often, it’s the storyteller’s personal opinion on the subject matter. A story may have both a major theme and minor themes.

Major Theme: An idea that is intertwined and repeated throughout the whole narrative.

Minor Theme: An idea that appears more subtly, and doesn’t necessarily repeat.

6. Narrative Arc A strong story plot has a narrative arc that has four required elements of its own.

Setup: The world in which the protagonist exists prior to the journey. The setup usually ends with the conflict being revealed.

Rising Tension: The series of obstacles the protagonist must overcome. Each obstacle is usually more difficult and with higher stakes than the previous one.

Climax: The point of highest tension, and the major decisive turning point for the protagonist.

Resolution: The conflict’s conclusion. This is where the protagonist finally overcomes the conflict, learns to accept it, or is ultimately defeated by it. Regardless, this is where the journey ends.

C. Evidence in Opening Statement 1. Pre-admitted evidence The purpose of an opening statement is “to state what evidence will be presented, to make it easier for the jurors to understand what is to follow and to relate parts of the evidence and testimony to the whole”. United States v. Dinitz, 424 U.S. 600, 612 (1986).

Importantly, consistent with Dinitz, courts have recognized the ability of the parties to use admissible evidence in opening statements. See e.g. United States v. Holder, 476 Fed. Appx. 295, 297 (5th Cir. 2012) (holding that the trial court did not err when it permitted prosecutors to reference otherwise admissible evidence in opening arguments); United States v. Taren–Palma, 997 F.2d 525, 532 (9th Cir.1993) (holding that an opening statement should only refer to admissible evidence), overruled on other grounds by United States v. Shabani, 513 U.S. 10 (1994).

Texas courts have consistently found that there can be no error in admitting pre-admitted Page 4

evidence or summaries of such evidence. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 342 (Tex. 1998) (“Charts and diagrams that summarize, or perhaps emphasize, testimony are admissible if the underlying information has been admitted into evidence, or is subsequently admitted into evidence.”); Speier v. Webster College, 616 S.W.2d 617, 618-19 (Tex. 1981); Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889, 891 (Tex. 1969); Champlin Oil & Ref. Co. v. Chastain, 403 S.W.2d 376, 389 (Tex.1965). In fact, no case has found reversible error when the same or similar evidence was actually admitted at trial. Guerrero v. Smith, 864 S.W.2d 797, 800 (Tex. App.— Houston [14th Dist.] 1993, no writ) (“Since the photograph was later introduced without objection by appellant, the display of it by counsel for appellee during his opening statement is deemed harmless.”); see also Blonstein v. Blonstein, 831 S.W.2d 468, 473 (Tex. App.—Houston [14th Dist.]), writ denied, 918 S.W.2d 848 (Tex.1992) (per curiam) (Evidence that is merely cumulative of other admissible evidence cannot be the basis for reversal).

Further, even the Federal Courts of Appeals have consistently agreed - there is no error in allowing pre- admitted evidence or summaries of pre-admitted evidence during opening statements. United States v. Porter, 821 F.2d 968, 975 (4th Cir.1987) (“Summary charts may be admitted if they are based upon and fairly represent competent evidence already before the jury.”); United States v. Davis, 564 F.2d 840, 846 (9th Cir. 1977) (holding there is no reversible error regarding the use of charts and diagrams during an opening statement); United States v. Diez, 515 F.2d 892, 905 (5th Cir.1975); United States v. Possick, 849 F.2d 332, 339 (8th Cir.1988). Oregon has allowed the use of pre-admitted trial exhibits by any party at any time during trial from opening statement through the conclusion of Plaintiff’s rebuttal case. U.S. v. Various Gold, Silver and Coins, 2013 WL 5947292 at *9 (D. Or. Oct. 30, 2013).

2. Demonstrative Exhibits Texas law allows the use of visual aids to assist juries during opening statements.

Jarnigan v. State illustrates this very point. In Jarnigan, an alleged error on appeal was the display of a chart during opening argument before the contents of that chart had been introduced to the jury in the form of evidence. 57 S.W.3d 76, 91 (Tex. App. — Houston [14th Dist.] 2001, pet. ref’d). Moreover, the chart was not admitted into evidence until the very end of trial. Id. Jarnigan reiterated that trial courts have broad discretion in permitting visual aids and charts to summarize evidence for the jury. Id. at 92. The court held that use of such aids to assist the jury was consistent with the Rules and appropriately within the Court’s discretion. Id; see also Gibbons v. State, 794 S.W.2d 887, 893 (Tex. App. — Tyler 1990, no pet.) (chart used during jury argument summarizing evidence proper); Wells v. State, No. 2-05-352-CR, 2007 WL 942038, *5, (Fort Worth, March 29, 2007) (projection of counsel’s own trial notes taken of witness testimony during trial during jury argument appropriate in order to emphasize points of a witnesses’ testimony). For evidence to be admissible it must be relevant. Tex. R. Evid. 402. For evidence to be relevant, it must have any tendency to make the existence of a fact that is of the consequence to the determination of the action more or less probable than it would be without the evidence. Markey v. State, 996 S.W.2d 226, 231 (Tex. App - Houston [14th Dist.] 1999, no pet.) Charts, graphs, maps, diagrams, or Page 5

other exhibits prepared for courtroom use which clarify or illustrate some fact in issue may, in the trial court’s discretion, be admitted into evidence. Id. at 231. Thus, if a trial court is of the view that a visual aid is relevant, admissible, and has be pre-admitted, it may be used during opening statements of trial.

A single case suggests that evidence may not be exhibited during opening, Guerrero v. Smith, 864 S.W.2d 797 (Tex.App.-Houston (14th Dist.) 1993), but actually determined that 1) such display would be improper if no determination had been made at that time as to whether such evidence would be actual evidence in the case, and 2) for actually admitted evidence, there would not be error in permitting display during opening.

Evidence to be displayed during opening, such as documentary exhibits or excerpts of video deposition testimony, has already been subject to this Court’s ruling on its admissibility. Not a single published (or non-published and able to be located) opinion suggests that a party should be precluded from referring in opening to evidence fully admitted and known to be presented to the jury at trial.

3. Excerpts of Testimony The federal District Courts across the country have made a practice of allowing preadmitted video depositions during opening statements. Smith v. I-Flow Corp., No. 09 C 3908, 2011 U.S. Dist. LEXIS 63329, at *11-12 (N.D. Ill. June 15, 2011); MBI Acquisition Partners, L.P. v. Chronicle Pub. Co., 2002 WL 32349903, at *1 (W.D. Wis. Oct. 2, 2002) (Counsel was allowed to use excerpts from video depositions during opening argument but were required to advise opposing counsel promptly of the particular excerpts they intended to show). Sadler v. Advanced Bionics, LLC, illustrates this very point. 2013 WL 1340350, at *3.

D. General Law of Opening 1. State Chooses Whether to Make Opening Statement The State has the choice whether to make an opening statement or not. Tex. Code Crim.

Proc. art. 36.05(a)(3).

2. When Defense May Make Opening Statement The defense has the right to make an opening statement after the State’s opening statement but before evidence is introduced. Tex. Code Crim. Proc. art. 36.01(a)(5). However, the defense may reserve its opening statement until after the State closes its case in chief, but only if the defense intends to produce evidence during its own case in chief. Tex. Code Crim.

Proc. art. 36.01(a)(5); Norton v. State, 564 S.W.2d 714, 718 (Tex. Crim. App. 1978). When the State does not make an opening statement, then the defense must wait to make an opening statement until after the State closes its case. Penry v. State, 903 S.W.2d 715, 760 (Tex. Crim.

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App. 1995). A defendant is not entitled to make an opening statement, prior to the introduction of the State’s evidence, unless the State (prosecution), has in fact made an opening statement. See Boston v. State, 871 S.W. 2d 752 (Tex. Cr. App. 1994). In a situation when the State does not make an opening statement, the defendant is still entitled to make an opening statement upon the conclusion of the State’s evidence or case. See Moore v. State, 868 S.W.2d 787 (Tex. Cr. App. 1993).

Warning: There seems to be no clear answer as to what happens if the State waives their opening and the Defense has no evidence to present. In that situation, you may be denied the opportunity to make an opening statement. However, you should be entitled to an opening statement any time you intend to introduce evidence. If the situation changes, for example, if your client decides he doesn’t want to testify after all, then your opening statement has already been made.

Strategic Point: When you are unsure what evidence will come out, then keep the opening statement general or reserve it. For example, if you suspect the State may have trouble producing a particular witness, then mentioning that witness’s evidence will put it in front of the jury when the State may not be able to introduce such evidence during trial. On the other hand, if you tell the jury you will prove something that you cannot, your credibility may be undermined. Only get detailed about evidence you know will come in and always pause to ask yourself if you should reserve the opening statement. If you waive your opening statement at the commencement of the trial, always reserve your right to make an opening statement upon the conclusion of the State’s case. When a defendant makes a timely request to exercise his statutory right to make an opening statement before the jury, it is error for the trial court to deny the defendant’s request. See Espinosa v. State, 29 S.W.3d 257 (Tex. App. – Houston [14th Dist.] 2000, pet. ref’d).

3. Content of Opening Statement The State is allowed to state the nature of the accusation and the facts the State expects to prove in support of the accusation. Tex. Code Crim. Proc. art. 36.01(a)(3). The defense may state the nature of any defense to be relied upon and the facts they expect to prove in support of their defensive theory. Tex. Code Crim. Proc. art. 36.01(a)(5). Argument is not allowed during opening statements nor is reference to evidence which may not be admissible. See Torres v.

State, 794 S.W.2d 596 (Tex. App.—Austin 1990, no pet.). Instructions to disregard improper statements will cure all but “flagrant” error. Wesbrook v. State, 29 S.W.3d 103, 115–116 (Tex. Crim. App. 2000).

Strategic Point: Because opening statements are made without full knowledge of what will occur at trial, most objections may be overcome by simply restating the objectionable material after the phrase, “We expect the evidence will prove … .” Unless there is a motion in limine prohibiting you, then you may expect the evidence will prove exceptions to certain rules of evidence. If you expect the State might have such expectations, then you will want to file a motion in limine.

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4. Opening Statement May Open the Door Theories advanced in opening statements may be rebutted by otherwise inadmissible evidence. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008). However, simply advancing a theory that the Defendant is “not guilty” will not open the door to extraneous evidence. Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002).

Warning: The risk of opening the door in opening statement is greater for the Defense than the State. If you open the door, then the State may bring rebuttal evidence whenever they choose during their case. You, however, will have to wait to bring your own evidence unless it can be admitted under a State’s witness. This allows the State to preempt your argument and potentially reduce its impact. For example, if you tell the jury that the evidence will show your client isn’t much of a drinker (which is impermissible), you might end up listening to a witness go through his credit card transactions detailing every bar tab he’s had.

Strategic Point: If you have what amounts to a punishment case, then consider waiving opening statement at the commencement of the trial but reserving the right to give an opening statement at the conclusion of the State’s case. This helps avoid “opening the door” regarding any potential extraneous offenses, prior to the introduction of the State’s evidence.

II.

Closing Argument A. Persuasion in Closing Argument

Unlike opening statement, defense counsel, often, must address specific points of evidence and law in closing. The need to make arguments about the details of events at trial can impede your ability to tell a story effectively. For this reason, I suggest the use of the “extemporaneous speech” format to structure closing argument. This format makes use of key principles of communication such as primacy and recency, trilogies, and repetition, but allows for story telling and integration of a theme into closing argument.

B. Extemporaneous Speech Structure The key to the extemporaneous speech is the structure of the speech itself. This structure enforces effective organization and uses repetition and symmetry for impact. You may still effectively weave your theme throughout the speech, but it will function more as a memory aid for the audience than as emotional shorthand. In each step of the speech structure provided below, look for ways to restate your theme. The extemporaneous speech structure follows this outline and you should not deviate without good cause: I. Introduction

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A. Attention Getter: an anecdote (quick story), joke, or quote to focus the audience. It should be related to your theme. This is a good place to re-tell the story from opening statement, though modified based on the actual evidence at trial and based on your time constraints. The story need not be long, but should utilize each element of storytelling.

B. Transition: a sentence or a few sentences that smoothly moves the audience from your attention getter to your theory of the case.

C. Statement of Theory: This should be one sentence that sums up your argument, ideally by reiterating your theme.

D. Road Map: Describe how you will prove your theory in three parts (you may go to two parts but it will be less effective in most instances). Use your theme in the road map. State the three parts, in order, then move to your first broad point, or “area of analysis.”

II. First Area of Analysis A. Restate thesis/theme in context of this argument.

B. Signpost: give a brief preview of what you will discuss in order.

C. Specific arguments: aim for three arguments. Pick your best.

D. Reverse signpost: remind jury what you’ve discussed, in order.

E. Restate theme.

F. Transition: One sentence to direct audience to the next area.

III. Second Area of Analysis A. Restate thesis/theme in context of this argument.

B. Signpost: give a brief preview of what you will discuss in order.

C. Specific arguments: aim for three arguments. Pick your best.

D. Reverse signpost: remind jury what you’ve discussed, in order.

E. Restate theme.

F. Transition: One sentence to direct audience to the next area.

IV. Third Area of Analysis

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A. Restate thesis/theme in context of this argument.

B. Signpost: give a brief preview of what you will discuss in order.

C. Specific arguments: aim for three arguments. Pick your best.

D. Reverse signpost: remind jury what you’ve discussed, in order.

E. Restate theme.

F. Transition: One sentence to direct audience to the next area.

V. Conclusion A. Reverse Road Map: remind jury what areas you’ve covered, in order.

B. Tell jury that these arguments prove your thesis and incorporate theme.

C. Transition back to attention getter.

D. Attention Getter: don’t restate it completely, but make a clear reference to it. Often, if you have told an effective story, then revisiting the moment that your narrative arc reached its peak will be effective.

C. Evidence in Closing Argument The trial court also has broad discretion in controlling the scope of closing arguments. Roberts v. State, 2016 Tex. App. LEXIS 11557 * 32 (Tex. App. -- Austin, 2016, no pet.) (Appellant argued that he suffered harm because the prosecutor exceeded the scope of proper jury argument in which she used a stopwatch demonstration to show how long it takes to kill someone through manual strangulation). It is well established that the trial court has the discretion to permit the use of visual aids and charts in the summarizing of evidence. Id at 31. An appellate court’s primary focus is on the prejudicial effect of an improper jury argument. In reviewing the challenged remarks, the appellate court analyzes them in light of the entire argument and the context in which they appear. Id. at 41. In Roberts v. State, the appellate court held that the prosecutor’s jury argument permissively summarized the medical examiner’s testimony concerning the length of time it takes to kill someone through manual strangulation. 2016 Tex. App. LEXIS 11557 * 36.

The Fourth Court of Appeals found no abuse of discretion when the trial court allowed the use of dolls with a child during jury argument. See Vera v. State, 709 S.W.2d 681 * 687-687 (Tex. App. -- San Antonio, 1986, no pet.) The Fifth Court of Appeals went as far as allowing the State’s use of a demonstrative exhibit not admitted into evidence during closing statements that contained the words “Larry Lawrence Glover, Jr., Page 10

is guilty,” finding that the exhibit simply reiterated the State’s ultimate contention. See Glover v.

State, 2003 Tex. App. LEXIS 5596 * 15 (Tex. App. -- Dallas, 2003, no pet.); See also Adi v.

Dretke, 2006 U.S. Dist. LEXIS 16552 * 19 - 20 (The trial court was found to not have abused its discretion when it permitted the use of an organizational chart detailing the insurance scheme.); Cf. Watson v. State, 2012 Tex. App. LEXIS 331 (District court did not abuse its discretion by excluding a demonstration which injected new facts which were not in evidence).

Consistent with Texas law, Federal District Courts also consistently allow the use of visual aids, charts, and diagrams to summarize evidence for the jury. See e.g. Bultema v.

Caterpillar, Inc., 1999 WL 258440 at *2 (N.D. Ill. April 19, 1999)(“We allow defendants to show a video exhibit during the opening statement if it is a representative sample of the raw tape.”); Edgerson v. Matatall, 2014 WL 172258 (E.D. Mich. Jan. 15, 2014)(holding that a video previously admitted into evidence can be played during opening statement).

D. Law Of Closing Argument 1. Closing Argument Order The judge determines the order of argument, but the State always gets the last word. Tex. Code Crim. Proc. art. 36.07. The State may reserve all of their time for rebuttal and force the defense to go first. Norris v. State, 902 S.W.2d 428, 442 (Tex. Crim. App. 1995). Further, the State may raise new arguments and issues in the concluding address to the jury. Granato v. State, 493 S.W.2d 822 (Tex. App. 1973). However, as long as the State gets a chance to speak last, the Court may allow the defense additional arguments. Nelson v. State, 828 S.W.2d 185, 187 (Tex. App.—Houston [14th Dist.] 1992). Both sides may split their time between more than one attorney in a felony case. Varela v. State, 561 S.W.2d 186, 192 (Tex. Crim. App. 1978).

2. Closing Argument—Proper Content Proper closing argument should be confined to four areas: 1. Summation of evidence already admitted.

2. Reasonable inferences from that evidence.

3. Answering arguments of opposing counsel.

4. A plea for law enforcement.

Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007).

Exception: Explaining the law to the jury is an exception to the rule confining argument to only four areas. Using various rationales, a consensus exists that restating or explaining the charge Page 11

and its application is allowed so long as the prosecutor’s explanations do not go beyond “an attempt to clarify the meaning of the jury instructions.” Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007). However, misstating the law is improper, as is any argument that reduces the burden of proof.

Exception: A separate line of cases allows argument of law outside the jury charge as long as the law is stated correctly. Renteria v. State, 977 S.W.2d 606, 608 (Tex. Crim. App. 1998); Daywood v. State, 248 S.W.2d 479, 484 (Tex. Crim. App. 1952). Some lower courts have added a requirement that “parties may argue law not present in the jury charge to the extent that it is implicated by the facts in evidence, and no further.” Vasquez v. State, 484 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2016). a. Pleas for Law Enforcement The State may argue that the jury is the voice of the community and represents the interests of the community. Myers v. State, 468 S.W.2d 847, 848 (Tex. Crim. App. 1971). The State may ask the jury to “send a message” that the community is tough on crime. Hicks v. State, 545 S.W.2d 805, 810 (Tex. Crim. App. 1977). The State may argue similarly in punishment by telling the jury that your client must be stopped from “doing it again” by receiving a long sentence. Asay v. State, 456 S.W.2d 903, 905 (Tex. Crim. App. 1970). These arguments are common in DWI cases.

Warning: Pleas for law enforcement can quickly turn into impermissible argument, such as an argument that the community expects a particular result from the jury. Often, prosecutors will imply that the defendant will be a repeat offender during the guilt/innocence phase, instead of sentencing. They also love to imply that your client just “got lucky” or he might have injured someone or killed someone. Be ready to object, even if you have a motion in limine in effect that precludes these arguments. b. Improper Arguments There a number of arguments that are impermissible. Potentially improper arguments must be evaluated on a case-by-case basis in the entire context of the statements and what they would “naturally and necessarily” mean to a jury. Cruz v. State, 225 S.W.3d 546, 549 (Tex. Crim. App. 2007). The following issues are generally improper for argument: 1. 1. Defendant’s failure to testify. Lopez v. State, 793 S.W.2d 738, 741 (Tex. App.—Austin 1990).

2. 2. Defendant’s motive (as comment on failure to testify where only Defendant could know motive). Minton v. State, 285 S.W.2d 760 (Tex. Crim. App. 1956).

3. 3. Defendant’s right to appeal. Crow v. State, 26 S.W. 209 (Tex. Crim. App 1894).

4. 4. Inciting prejudice or bias based on Defendant’s status in society. Atkeison v. State, 273 S.W. 595, 596 (Tex. Crim. App. 1925).

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5. 5. Attacks on defense counsel personally including implications of dishonesty or deception. Gomez v. State, 704 S.W.2d 770, 772 (Tex. Crim. App. 1985).

6. 6. Personal attacks on the defendant. Swilley v. State, 25 S.W.2d 1098 (Tex. Crim. App. 1929).

7. 7. Expectations of community for a particular result. Cox v. State, 247 S.W.2d 262, 263 (Tex. Crim. App. 1951).

8. 8. Facts not in evidence. Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004).

9. 9. Ignoring the charge or misstating the law. Whiting v. State, 797 S.W. 2d 45 (Tex. Crim.

App. 1990).

10. 10. Reducing the burden of proof, even by implication. Blount v. State, 509 S.W.2d 615 (Tex. Crim. App. 1974); Crow v. State, 26 S.W. 209 (Tex. Crim. App. 1894).

11. 11. Expressing personal beliefs about the case or specific evidence. Fowler v. State, 500 S.W.2d 643 (Tex. Crim. App. 1973).

Strategic Point: If you are concerned about potential impermissible arguments that may be raised by the State during the guilt-innocence or punishment phase of trial, then you can file a motion to put the court on notice and limit the State’s arguments on the record. This motion provides an extra means of preserving any errors relating to impermissible arguments to the jury. c. Attacks on Defense Counsel Attacks on defense counsel directly or by implying dishonesty, bad faith, or subterfuge are generally impermissible. Additionally, arguments contrasting the ethical obligations of prosecutors and defense attorneys are improper. Mosley v. State, 983 S.W.2d 249 (Tex. Crim.

App. 1998), cert. denied, 526 U.S. 1070. However, attacks on defense arguments, even if colorful, are appropriate. See Garcia v. State, 126 S.W.3d 921 (Tex. Crim. App. 2004) (implying the statement “that hogwash you’ve heard” was proper). The line between an attack on counsel and counsel’s argument is finely drawn. For example, arguing the jury “should not be thrown down a rabbit trail” and the defense was “smoke and mirrors” has been upheld. Graves v. State, 176 S.W.3d 422 (Tex. App.—Houston [14th Dist.] 2004). On the other hand, the statement, “It is his intention to run you down a rabbit trail so you will lose focus” was “assumed” to be improper (though held harmless error). Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007). An attack on a defense expert or witness which implies defense counsel knowingly would allow perjury are also deemed attacks on defense counsel. For example, arguing that an expert was paid to say whatever would help the defendant is improper. Bell v. State, 614 S.W.2d 122 (Tex. Crim. App. 1981); George v. State, 117 S.W.3d 285 (Tex. App.—Texarkana 2003, pet. ref’d).

Warning: These attacks in DWI cases are common. A few I’ve seen are: “He thinks he knows better than the officer how to do SFSTs, but he’s a lawyer, he’s not in the field”; “All he wants is to distract you from the real science”; and “He saw the same video and knows what we know, his client was drunk.” DWI defense relies on attacking the witnesses’ personal performance of their duties. Often, the other team takes that personally and will cross the line.

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d. Attacks on Defendant Personal attacks on the Defendant are improper. Tompkins v. State, 774 S.W.2d 195 (Tex. Crim. App. 1987). “There is abundant room for legitimate discussion of the testimony and the law applicable, without indulging in personal abuse of the man who is at the bar of justice.”

Swilley v. State, 25 S.W.2d 1098 (Tex. Crim. App. 1929). These include calling names such as “animal” or “scum” or comparing a defendant to Osama Bin Laden. The rule is unevenly enforced, with names such as “jerk,” “a fool,” “biggest coward that walks the face of the earth,” and “animal” allowed where they are a “reasonable deduction from the evidence.” See Kennedy v. State, 193 S.W.3d 645 (Tex. App.—Ft. Worth 2006, pet ref’d). However, any attack on the defendant implicating religious, racial, ethnic, political or class bias is improper. Renn v. State, 495 S.W.2d 922 (Tex. Crim. App. 1973).

Strategic Point: Prosecutors do not shy away from arguing the defendant’s character. Unless the comment implicates an attempt to incite bias, many of these kinds of comments are better objected to as a fact not in evidence. The value of objecting to a personal attack on your client is in highlighting the prosecutor’s over-the-top behavior, where it occurs. This can be particularly effective if your theme involves overzealous conduct on the part of the State, such as rush to judgment, or lack of respect of the public. This objection also lends itself to speaking objections.

Just don’t look angry. Look disappointed. e. Facts Not in Evidence The objection “facts not in evidence” covers references to anything that could be evidence, including direct testimony, opinion testimony, and inferences from the evidence that only an expert could make. Arguing that a particular type of evidence is uncommon, in the prosecutor’s experience, is improper. Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004). Comparing the instant case to other cases, even in general terms, is improper. In re J.B.C., 233 S.W.3d 88 (Tex. App.—Ft Worth 2007). Implying that an officer conducted SFST’s in accordance with NHTSA standards where no expert had testified in support of the officer was improper. Baker v. State, 177 S.W.3d 113 (Tex. App—Houston [14th Dist.] 2005). Interjecting the prosecutor’s opinion about evidence is not proper, if expressed as the prosecutor’s personal opinion. Smith v. State, 842 S.W.2d 401 (Tex. App.—Ft. Worth 1992, pet. ref’d). Of course, stating directly that other evidence exists beyond the record is improper. Boyde v. State, 513 S.W.2d 588 (Tex. Crim. App. 1974).

Warning: This is commonly heard when prosecutors are talking about how tough it is in the field when trying to excuse mistakes in the SFSTs. They will go further and argue that the SFSTs, because they were designed as “field tests,” are reliable despite specific errors. There are no studies linking reliability of SFSTs to specific errors. Another common example is telling the jury that it’s common for officers to leave blanks on their forms or checklists or make typos in police reports. This is not common knowledge, but relies on the prosecutor’s personal experience. If these arguments are implicated by your evidence, request a motion in limine prior to closing.

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Texas Criminal Defense Lawyers Association

Journey to Justice

September 9, 2022 Omni Corpus Christi Hotel 900 N Shoreline Blvd.

Corpus Christi, TX 78401

Topic: Seeking the Truth | Voir Dire Speaker:

Shawn Sareen

310 S. St. Marys Suite 1910 San Antonio, TX 78205 (210) 449-4994 Phone (210) 547-9615 Fax Shawn@sareenbozza.com email

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

SEEKING THE TRUTH: VOIR DIRE Journey to Justice Seminar Corpus Christi, TX 2022

Shepherds and Sheep: Focusing on Leadership Indicators and Juror Psychology to Optimize Voir Dire

Presented by: Shawn Sareen Attorney at Law Sareen & Bozza, PLLC The Tower Life Building 310 S. St. Marys, Suite 1910 San Antonio, TX 78205 Office: (210) 449-4994 Email: shawn@sareenbozza.com

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“The shepherd always tries to persuade the sheep that their interests and his own are the same” - Stendhal Intro: Much earlier in my career, I would let the legal issues give me tunnel vision about the dynamics of a juror in jury selection. In an ABI-FV where my male client was in a mutual fight with a rather aggressive female complainant, a male juror was saying all the positive things about how a woman could be the aggressor and how he had either seen or experienced that. All efforts were made to try to keep him on the panel, and he eventually made it on. However, at the verdict, the jury said guilty, and after being polled, he admitted that he personally was not guilty, however, stated that the jurors as a whole was guilty. The judge sent them back to deliberate, and seconds later, he yielded to the other jurors and simply went along with a guilty verdict.

Conversely, I have also more recently had a person say a terrible statement during voir dire about why a client would remain silent: “To cover up their lies and misconduct.” Despite that statement, we chose not to strike her, she made it onto the jury and acquitted on a DWI. In fact, we kept her on because we needed to strike somebody else more dangerous, and we were down to our last peremptory.

Regardless of favorability to our client, each of these jurors’ opinions were essentially neutralized because they were not the shepherds of the herd. This paper is inspired by a combination of Robert Hirschhorn books and CLE materials, some psychology-based books and articles on the Jury Trial Processes and Jury Selection and my anecdotal experiences over the last decade. Because the “shepherds” on a panel can absolutely neutralize positive or negative jurors who do not assert their position, we should add that dimension to our jury selection and understand some of the psychological processes of what a juror experiences to optimize our jury selection decisions.

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Jury Selection: Focus on Shepherds and Sheep In jury selection, all practitioners will have their own internal hierarchy of variables guiding their decisions between striking and keeping jurors. That hierarchy is meant to strike bad jurors and keep good jurors along a positive and negative spectrum so that jury will be most inclined to embrace their client’s story in trial. The most contentious part of a trial for me comes after completing the voir dire presentations and deciding with colleagues and the client at which jurors to strike and which jurors to keep. Have you ever been in trial and thought you picked great jurors, only to find out after a crushing verdict that those jurors were bad for your client? What about the opposite where you dreaded that a juror made it onto the panel, but then found out they were either good for your client or contributed to an acquittal? With the limitations of time and information during jury selection, it is almost impossible to predict whether certain variables among jurors will truly be beneficial to your client in the deliberations.

If a juror communicates favorably but lacks the fortitude to maintain those positions in deliberations, then their influence is lost. Aside from a juror’s positive or negative statements relating to the charge or the client or some experience, the variable that all practitioners must fit into their favorable or unfavorable juror hierarchy is discerning whether the juror demonstrates characteristics of “power-broker” or “follower,” as defined by Cathy Bennett and Robert Hirschhorn in Bennett’s Guide to Jury Selection and Trial Dynamics. My hope is that this paper’s discussion what I loosely call “shepherds” and “sheep” among the panel help practitioners observe characteristics they did not ordinarily focus on and employ strategies for more effective decision-making in light of those observations.

What is more persuasive to a juror than an attorney is another juror. The ultimate goal is that you are merely the prod to condition the jurors to shepherd themselves to the right verdict.

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When categorizing jurors who could do that, I have tried to develop a better hierarchy to assess indicators of leadership among people in my panel. This is separate and apart from whether I think they are favorable to the defense, some aspect of my case or my client. I have listed a non-exhaustive set of indicators to help find shepherds.

Indicators of Potential Shepherds: Experience Jurors will always bring their experience with them and whoever can claim prior experience with some aspect of the case or the process might become leaders regardless of personality, occupation or other demographics. Typically pay attention to someone’s experience in the following: -

Prior Criminal Jury Service

-

Prior Criminal Case Participant (as a defendant, prior witness, or complainant)

-

Legal Knowledge (Lawyer/Police Officer/Government worker)* *[Don’t forget people married to or in constant contact with those people]

There is a much higher chance the other jurors will yield to the experience of somebody who has actually participated in jury selection before because they need guidance from someone who can claim a level of authority in the subject matter of the process. You have to decide if you want that experienced person on. If the State’s case is perhaps missing a lot of evidence for example, you might bet on the possibility that the person with prior jury experience has seen a much stronger trial to compare this one to.

Other types of experience: Consider jurors who have experience with certain personalities or characters in your case. For example, if a female complainant comes off as jealous, unstable or attention-seeking in an assault family-violence or sexual assault allegation, she might draw judgment or ire from women or benefit from someone who is divorced. If your

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client is in an occupation that someone on the panel might understand. Where someone on the panel has experience residing in a certain zip code, they might be from a part of town that is less sheltered and could understand something about the case or the area and thus have more influence over the decision of the other jurors.

Indicators of Potential Shepherds: Specialized Knowledge Consider potential shepherds in jurors who may have experience with the subject matter of this type of allegation. For example, somebody with firearms knowledge in a case involving a shooting. If a juror has specialized knowledge of an area or an issue in your case, maybe an accountant in white collar cases, or somebody who sells a similar type of product if there is a dispute over value in a theft, for instance. Nurses and emergency room physicians also could be shepherds, but harmful, because they have lots of experience with intoxicated people or have had to work with law enforcement to stabilize people who end up as defendants. Despite instructions that they cannot be a witness in the case, there is a risk that other jurors will seek their expertise in deliberations to determine their verdict.

Indicators of Potential Shepherds: Managers/White Collar If someone has managed employees they tend to be comfortable directing others. It is not simply that managerial or corporate, “white-collar” jurors themselves are inherently in the shepherd position, but that other jurors might perceive them that way, and thus yield to their position. Ferreting out their managing style could be helpful to see how they could be influential with other jurors. Sometimes teachers can be classified as having this type of skill, but it is trickier when leading kids, maybe a more conciliatory/nurturing style in leadership with the potential to bend to other authoritarian personalities. Sometimes we make assumptions that a stay at home mother or housewife would not fall into the shepherd category. However, they manage

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the household, planning activities for their children (and even their spouse), which could allow for comfort in directing the other jurors or organizing the information so as to persuade the other jurors to follow.

Indicators of Potential Shepherds: “Black Sheep”/Holdouts There are jurors that I think could be independent in their position that it could inspire others to follow. Jurors with graduate degrees, with an emphasis on engineering or technology degrees, are people I focus on. Regardless of leadership influence, they tend to be very analytical and should have the tendency to pour attention into jury instructions for things like affirmative defenses and even limiting instructions. On average, the social pressures of going along may not pressure them to bend one way or another. In the event they do not encourage others to their position, engineering/technology-minded jurors could make for hold outs for mistrial potential.

Indicators of Potential Shepherds: Age I think older jurors simply have more life experience to draw from to have a better chance of an experience that connects them to the case at hand. While I think certain there exist some generational attitudes about life that are more likely among older people that could persuade other jurors, I have, however, ceased thinking that jurors will yield to somebody solely because they are the older in the group. Elder people certainly have more experience in life, but his or her life experience is many different life experiences. Even the evidence used involves a level of technology that may seem difficult for older jurors to digest or claim enough knowledge over to possess an authoritative position in deliberations. Younger generation millennial attitudes also have a more complicated view of older people and authority as well.

The Psychology of How Jurors See the World At all times the purpose for voir dire is to find the truth among the jurors, not create or really

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change their beliefs. According to Dr. Matthew Ferrara, Ph. D., a trial consultant based out of Austin, jurors are bringing in a belief system, defined as the “totality of an individual’s values, attitudes and opinions,” that is based on a lifetime of conditioning. Everyone sees the world through an “activating event” that is filtered through that belief system, resulting in a consequent emotion. The theory is that the facts and arguments of your case are filtered through the juror’s belief system. Through that belief system, the juror organizes events, facts and arguments into a story. That story, the way the juror uses beliefs to organize facts and arguments, is what leads them to an emotional response that, ultimately, dictates their verdict. At best, we may educate them about the law and requirements of how to follow it, but “ 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.” (Bennett and Hirschhorn). They either have it in them to acquit someone, or they don’t. Same goes for the leadership instinct. – you’re not creating them, you’re finding them, steering them towards their influence. In essence, you are not trying to change them, but instead just trying to see the truth of who they are, as best as you can.

Engaging Shepherds and Sheep Observe how jurors talk, how decisively they deliver what they say, if they don’t mince words or use qualifiers to determine how forceful they feel about their opinions and therefore, how strongly they may sway the rest of the jurors. There are times whenever the jury is asked scaled questions by one side or the other and amidst answering numbers, there is a lull where people will seemingly all repeat the same number usually a moderate position. Whenever somebody breaks that trend with a different number, I tend to take note of them as having shepherd potential, because of them thinking independently about the scaled question and actually asserting a different position. But essentially, sometimes the best way to find out

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whether somebody sees themselves as a leader is just to simply discuss it upfront. Bennett and Hirschhorn describe just flat out and asking, “Some people like being leaders and some do not – how about you?” If you want to gauge somebody in a managerial occupation or working a job that may give them insight into the case, you could simply ask, “Because of what you do for a living, you could be an influential person on this jury – how do you feel about that?” If they have prior jury experience, ask the more open-ended question, “how do you think your prior jury experience will affect you on this case?” Instead of the general question of, “So, can you be fair?”

We have a view of followers/sheep as quiet, soft spoken, even hiding in their posture.

Sometimes people avoid eye contact, seem instantly agreeable. It is hard to read the tea leaves without more. Encourage them where you can and try to make hesitation ok. Try to empower your favorable followers by reminding them, “If you don’t know what to say, that’s ok. That’s a sign of deliberating, considering what you’re hearing before deciding. Something you might have to do if called upon.” Do not alienate anybody who has spoken up, but try to explain that you need more from them for the sake of your client. “Presuming innocence is hesitating at an accusation. Reasonable doubt is hesitating at a rush to judgment.” You can try to set it up as your tribe and see if it provokes responses from those who do not wish their hesitation to seem that way. To try to decipher if the silence is due to being more of a sheep than a shepherd, again, just ask them. “Some people like being leaders/in charge of things and some do not – how about you?” It’s a loaded question, but it might provoke responses that enlighten your decisions.

Juror Communication Beyond Statements (Focus on them where possible) Potential jurors can be outspoken about certain topics and whether it is unprompted, this could be a seemingly obvious indicator of shepherd potential in this type of case. But there are

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many more things to observe. Some are obvious, such as the way somebody is clothed. How put together somebody is or if they are wearing a casual shirt that displays messages about interests are all things we can interpret. Those things could show us signs of going against norm for potential holdout jurors, or signs of higher socio-economic status, which might inform us one way or another about the chances they will relate to our client or the case at hand. We as attorneys are trained to extract verbal statements but not really trained to focus on or provoke nonverbal or physiological responses, beyond an interpretation of a “gut feeling” about a person.

There are psychological studies about body language and non-verbal communication that require some attention on our part. Focus on “kinesic cues,” such as posture, eye contact, and facial cues to determine more genuine emotional reactions during discussions. Consider the nonverbal cue when balanced against the juror’s verbal response to determine if there are signs of deception, which may or may not be voluntary or conscious.

In understanding the juror’s experience, some studies suggest that jurors experience “situational anxiety” generated by the experience of being in a group setting, for example. Such anxiety physiologically alters that juror, slightly increases heart rate, more labored breathing and presence of nonverbal clues. – Scientific Jury Selection by Joel Lieberman and Bruce Sales.

Additional studies also suggest jurors experience greater anxiety when questioned by an attorney he or she dislikes, or when the juror dislikes the side that attorney represents.

Psychologists study speech patterns to attempt detection of anxiety. The concept describes “pauses” and “latencies.” A pause refers to extended periods of silence within a sentence while speaking, vs. a latency, which is a pause before even beginning the answer. The latter tends to mean more anxiety. Some suggest that those are indicators of deception.

Additionally, things like the amount of speech and “speech disturbances,” are indicators of

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anxiety, while changes in voice pitch are studied and sometimes interpreted as potential deception when the person speaks in a “higher pitch” than their baseline.

Where they focus their gaze matters to me at various points. I look at people who are looking at my client while the State is talking. I try to see if I can gauge reactions to certain content. If jurors have more eye contact with me, it tells me they are engaged, but also that they could be used to speaking to people and maintain eye contact, which is an indicator of leadership. If you ask a question and the juror looks at opposing counsel, it might mean they are more comfortable with opposing counsel and looking for their approval. If a juror looks to the judge for assistance with understanding something someone just said question, he or she may prefer a more authoritarian.

Conditioning the Herd While these are not quite exact sciences, and we are clearly not trained in psychology, our observations of those things could help guide us to exercise more accurate decision-making when employing strikes, especially if we believe we may not be getting the true or forthright version of the juror. There brings about the purpose in relaxing them as both a physiological one and a way to lower the odds of deception or presenting the anxiety that make us perceive deception or that bad feeling in our gut. Things we can do to relax juror: empathize and show our own vulnerability.

We’re not only relaxing them to build rapport, but to feel comfortable to tell the truth and be open about difficult issues in front of many strangers. The goal is that the jurors know my client and I are among their herd and like them. I emphasize that my client asked for a jury of his or her peers. The State is this faceless institution, trying to lock up my client and he or she turning to you for the help against them. Try to emphasize your genuine fear for your client. If

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there are unfavorable jurors, very vocally defensive about law enforcement or angry about somebody accused, I will sometimes let them go off on me and beat me up to an extent. While on the one hand it helps me loop other “like-minded” jurors, you could also draw out people that may be shepherds who want to save me.

Answer nonverbal communication with your own nonverbal communication to prod the honest answer. In a situation where a potential juror has given a “bad answer,” you can follow up by saying: “Sir, thank you for sharing that. So you would agree with me that, if there is a case with that kind of issue, you would start out prejudging with a bias?” While asking the question, you can subtly nod your head affirmatively. The juror picks up the answer with his eyes and brain before he hears all the words. Sometimes I almost open my hands and gesture like a maître de showing them the door to the right answer. The jurors eyes and brain have already seen the right answer, but now their mouth has to say it for the record.

How you ask a question also matters. Asking something in the form of an open-ended question allows for an uninhibited answer. It could help explore and focus on one juror or one topic in more depth. Asking something in the form of a closed-ended questions could be helpful to scan the room to get quick yes or no. The form is better to explore breadth and cover more jurors. Scaled questions help gauge how strong or weak on opinion could be for each juror.

You can also front load your rehabilitation questions to innoculate favorable jurors. For example, if someone has had a bad experience with law enforcement, to save them upfront, present them with a leading question, that they would be fair and considerate first or put aside their bias before assuming an officer in this circumstance was like the one in their previous experience.

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Your Shepherd or the State’s Shepherd?

If there is a positive juror for your side, and you find them to have leadership potential, there is probably a judgment call on whether to hold off on further inquiry or whether to dig deeper. Especially with time restrictions it is difficult to really fish out complete aspects of a person. Plenty of times there have been assertive people who have spoken up and given great answers to questions that are favorable about the case or what type of proof they might need if selected. However, then when the State brings them back individually, they reveal something problematic. For example, maybe they would like to see the number to convict on a DWI (where you know the number was excluded), but they may be close to someone who was harmed by someone guilty of a DWI one way or another. Assess whether to strike, whether to keep and gamble on whether the State will use up a strike. You can also see if the State will agree on a strike for cause, so nobody loses peremptories. Compare the rest of your bad jurors with bad answers and assess from there. Always praise the sharing of the answer, even when it’s not great for your client. “You don’t have to tell me what I want to hear, just need to tell me what’s true.”

Embrace the negative parts of your case and how it could be dangerous to certain jurors.

What is unclear about case? What is bad about the case? What do you want to know about people listening to case and looking at your client? People with kids have changes in their personal priorities for example, and might be more prone to “public safety” arguments. Yet, if your case about children testimony, they might be more aware of children lying or acting out for attention. Best advice I’ve heard is to think of the worst characteristics you could possibly have on your jury and ask questions to find that out. Topically, start with issues you expect to see in your jury charge, like defensive issues, ask them about limiting instructions, nature of the relationship, 404B and 38.37 issues and discuss if jurors would you be able to limit your view of

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something if these or other bad facts were presented at trial.

Knowing the Field and Maximizing Time None of this focus on leaders and followers can be developed properly without already being aware of the court’s procedure and having as much time as possible. Do some reconnaissance and know in advance how much time your judge typically allows. Know the court’s voir dire procedures from court staff, other lawyers or the judge, if you haven’t practiced there before. If some judges divide general voir dire and specific voir dire or if they just have a free for all, and strategize accordingly.

Consider if your judge will cover certain topics upfront. Articulate fundamental items yourself, like the presumption of innocence and burdens of proof for example. The juror will have an easier time speaking up to disagree with the lawyer than the Judge. Instructing them to remind them how important it is and to condition them about following the court’s instructions in the places I want them to be reminded.

Know when the judge requires you the exercise strikes for cause. Most judges in my experience do so after both presentations before the court, but outside the presence of the venire panel. However, some judges require a motion to strike for cause in front of the jury, as soon as it arises, in front of the panel.

If you need to request more time, you must object that the time allotted was not reasonable and cite Ratliff v. State, 690 S.W.2d 597 (Tex. Crim. App.1985). State that you are prevented from intelligently exercising peremptories and your client is being denied effective assistance of counsel under the 6th and 14th Amendment and Art. 1, § 10 of the Texas Constitution.

It is not enough to just request more time, but also you must have your specific questions

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to specific potential jurors ready to present to the court on the record. If you have them written out, you can mark them as an exhibit. It is crucial that these objections be made prior to the jury being sworn. The reviewing court standard is an abuse of discretion and part of the inquiry is whether the questions the party was not permitted to ask were proper voir dire questions and not duplicitous. See Boyd v. State, 811 S.W.2d 105 (Tex. Crim. App. 1991). The questions must be “relevant, not repetitious, and neither vague nor open-ended.” Dhillon v. State, 138 S.W.3d 583 (Tex.App.--Houston [14th Dist.], 2004). Finally, you must make a bill on what the jurors’ answers might have been if there were more time to question the panel, and make a clear record which jurors were not questioned who actually served on the jury. Ratliff v. State, 690 S.W.2d 897 (Tex.Crim.App.1985).

The court’s denial of a “proper” question is not harmless error. Florio v. State, 568 S.W. 2d 132, 133 (Tex. Crim. App. 1978). However, the court can deny a question that are “vague or broad in nature as to constitute a global fishing expedition.” Fuller v. State 363 S.W. 3d 583, 585 (Tex. Crim. App. 2021). It is best to present questions particular to your specific issues in your case first. As the questions relate to more fundamental issues like presumption of innocence, burdens of proof and views on the exercise of the 5th Amendment right to remain silent, it is harder to suggest that those questions are improper, because those questions seek to discover the juror’s views on an issue applicable to the case.

Culling the Herd I used to think that if only I could just find the right words, I could win over even the staunchest of critics on the panel. The truth is, strong beliefs or long-held opinions simply do not change. Some jurors just need to go and will not be able to serve fairly no matter how well you can advocate for your client. While we have the general question of asking if someone can or

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cannot be “fair,” it is easier to agree with another panel member after their admission than just the lawyer. Looping is crucial when a juror expresses that they cannot be fair, because of the odds the other jurors will follow the shepherds in the venire panel.

Argue under Texas Code of Criminal Procedure 35.16 (a)(9) and (10): “That the juror has a bias or prejudice…. against the defendant; and That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror's opinion, the conclusion so established will influence the juror's verdict. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court. If the juror answers in the negative, the juror shall be further examined as to how the juror's conclusion was formed, and the extent to which it will affect the juror's action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged.”

Also, be aware of Texas Code of Criminal Procedure 35.16(11)(3)(c)(2): “That [juror] has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.”

After the juror reveals something that could be strong enough for cause, ask the Juror in the following: Would it be fair to say that you have a strong opinion on an issue in this case?

And you would agree that you had this feeling for quite some time? Given your opinion, would it

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be fair to say that if this were a horse race, that my Client is not starting at the same start line as the State? Given what you have shared with us, do you mind if I ask the judge to excuse from serving today?

If the Court denies your challenge for cause, object to the denial and use a peremptory challenge on the denied challenge. East v. State, 702 S.W.2d 606 (Tex.Crim.App.1985). Then, after exhausting the peremptory challenge, request additional peremptory strikes in light of the denial of your challenge for cause, because you would have used your strike on somebody who was seated. Homan v. State, 662 S.W.2d 372 (Tex.Crim.App.1984).

Conclusion No matter how positive or negative a juror’s expressed opinion might be to our client, if they do not assert that position, they may not make a difference in deliberations. Focusing on jurors with the leadership qualities can influence the other jurors to our position is crucial to jury selection because it neutralizes negative jurors and allow us to make better decisions within our criteria for striking jurors from the venirepanel. If we can add a little bit of jury psychology to our acumen, we can help be more influential with our panels. Our goal is not to change jurors, but to discover them, understand them and find the shepherds within the panel who can guide them to the correct verdict.

References: Cathy E. Bennett and Robert Hirschhorn, Bennet’s Guide to Jury Selection and Trial Dynamics in Civil and Criminal Litigation (1993).

Joel Lieberman and Daniel Krauss, Jury Psychology: Social Aspects of Trial Process: Psychology in the Courtroom, Volume 1 (2009).

Joel Liberman and Bruce Sales, Scientific Jury Selection (2007).

Lisa Blue and Robert Hirschhorn, Preparing for Voir Dire (2014).

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Matthew Ferrara, “The Psychology of Voir Dire” The Jury Expert: The Art and Science of Advocacy. Maryland: American Society of Trial Consultants (2010).

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Texas Criminal Defense Lawyers Association

Journey to Justice

September 9, 2022 Omni Corpus Christi Hotel 900 N Shoreline Blvd.

Corpus Christi, TX 78401

Topic: Preparing for the Journey | Pre-Trial Investigations Speaker:

Clifford Duke

133 N Riverfront Blvd, LB2 Dallas, TX 75207-4339 (214) 875-2319 Phone (214) 653-3539 Fax cliff.duke@dallascounty.org email

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

Preparing for the Journey Pre-Trial Investigations Clifford P. W. Duke Dallas County Assistant Public Defender 133 N. Riverfront, LB 2 Dallas, Texas 75207 214-875-2319 cduke@dallascounty.org “Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing…” TEX CODE CRIM PROC. 37.07, §3(a)(1).

“The sentencing stage of any case, regardless of the potential punishment, is the time at which for many defendants the most important services of the entire proceeding can be performed.” Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983) cert denied, 464 U.S. 1053 (1984).

Those two quotes summarize the gravity of the second stage of a trial. Not only is this where the rubber truly meets the road for a criminal defendant, but just about anything is usually game.

No matter how you plan on proceeding for guilt or innocence, punishment needs to be on your mind from day one. While every one of us would like that two-word verdict, the reality is that most trials aren’t about guilt or innocence. More often than not it’s because the defense and the state couldn’t agree on a final outcome. The goal of this paper is to provide some guidance on the following issues: what sentencing actually is; to explore tools to

help determine what is coming at you; what defense attorneys should be looking for; and some technical considerations in punishment, enhancement, and community supervision.

I. Figure Out What Is Coming "Talent is cheaper than table salt.

What separates the talented individual from the successful one is a lot of hard work." - Stephen King The number one tool for any case of any kind is preparation. Unfortunately for many defense attorneys, the sentencing phase of a trial is often spent rebutting bad information instead of being able to provide good information about our clients.

The biggest advantage is preparation, and knowing what is coming at you before the second half of your trial.

Luckily the Texas Code of Criminal Procedure and the Texas Rules of Evidence provide requirements of information that the State must provide.

Below are some avenues that can be used in finding out what is coming at you, and your client, in the second half of the trial.

A. The Indictment The first and best place to see what will be presented at sentencing is the

indictment.

The indictment and subsequent motions to amend or enhance the indictment put you on notice of what range of punishment your client will be looking at and what extraneous bad acts will be presented at sentencing. The specific ranges of punishment and enhancement will be discussed later in this paper, and at Appendix B. Take the time to look at the enhancement paragraphs if they are there. Make sure dates and cause numbers are correct. Pull copies of past convictions, including probable cause affidavits and, if appropriate, testimony from those proceedings.

Your client may have previously been convicted of aggravated robbery, but it could make the difference to a judge or jury if your client was just the driver instead of the one inside with the gun.

Be aware, prior offenses used to enhance your client’s range of punishment do not have to be included in the indictment. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997) If the enhancement paragraphs are not in the information or indictment, the State does not have to amend the indictment or have a motion granted to enhance the punishment, only give ‘proper notice’ of the intent to enhance. Id. That notice to enhance can come as late as the beginning of the punishment phase of the trial.

Villescas v. State, 189 S.W.3d 280, 294 (Tex. Crim. App. 2006) Make sure to use your requests for disclosure, discussed below, to know what prior offenses the State intends to use during your trial.

B. Discovery Orders Under the Due Process Clause of the Fourteenth Amendment, a prosecutor has an affirmative duty to turn over material exculpatory evidence. Brady v.

Maryland, 373 U.S. 83, 87-88 (U.S. 1963); Ex parte Kimes, 872 S.W.2d 700, 702 (Tex. Crim. App. 1993). Brady is also now codified in the Texas Code of Criminal Procedure §39.14(h).

The prosecution violates due process when it suppresses evidence in its possession favorable to an accused "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. Evidence withheld by a prosecutor is "material" if there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 782 (1985). A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id. Prior to the passage of SB 1611, better known as the Michael Morton Act, a Defendant was required to make a showing of good cause to have the inspection and copying of evidence in the State’s possession and have the court order the production.

Now, upon a ‘timely request’ a Defendant is entitled to inspection and duplication of essentially everything in the State’s possession. TEX CODE CRIM PROC. 39.14(a) “[C]riminal defendants now have a general statutory right to discovery in Texas beyond the guarantees of due process. Under this new

version of this statute, we interpret the word “material” as it appears in context to mean “having some logical connection to a fact of consequence.” Watkins v. State, 619 S.W.3d 265 (Tex.Crim.App 2021) If discovery is requested and the State fails to comply then the nondisclosed evidence should be excluded from trial. “Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence."

Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006), citing Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim.

App. 1978). However, when the evidence is disclosed during trial and still comes in, the materiality question turns on whether the defendant was prejudiced by the delayed disclosure. Williams v. State, 995 S.W.2d 754, 761-62 (Tex. App.-San Antonio 1999, no pet.). When previously withheld evidence is disclosed at trial, the defendant has an opportunity to request a continuance. Id. The failure to request one waives any Brady violation, as well as any violation of a discovery order. Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.Austin 2002, pet. ref'd) If confronted with evidence that was not turned over in discovery you must make your objection, request a continuance, and make your record to object to the surprise the evidence creates and how it is materially adverse to your client.

C. Requests for Extraneous Offenses

Disclosure

of

Like the new procedures under the Michael Morton Act, a request for disclosure triggers an automatic requirement for disclosure of prior bad acts and extraneous offenses. “On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner as required by Rule 404(b), Texas Rules of Evidence.” TEX CODE CRIM PROC. 37.07 §3(g). “If the extraneous offense is one that has not resulted in a conviction then notice must include 1) the date of the alleged bad act 2) the county in which the alleged bad act occurred and 3) the name of the alleged victim of the crime or bad act. Id. Additionally, Texas Rule of Evidence 609(f) also excludes evidence of prior convictions if proper notice is not given after a specific request.

Special rules apply to cases involving a sex offense against a child under 17 years old. TEX CODE CRIM PROC. 38.37. Evidence of other crimes, wrongs, or acts by a defendant against the child victim in this type of case will be admissible to show the relationship between the defendant and the child. In this type of case, make sure to include in your request those prior bad acts pursuant to TEX CODE CRIM P ROC. Article 38.37 §3, which must then be disclosed in the same manner as Article 37.07 notice.

D. Expert Disclosure In addition to the information obtained from the State in discovery, TEX CODE CRIM PROC. Article, 39.14(b) allows for discovery of experts the State intends

to introduce. When granted, the defense is entitled to the name and address of any experts to be used to present evidence under Rule 702, 703, and 705.

It is important to note however that a motion to disclose experts is completely worthless unless it is ruled on. See Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993). Unlike your requests under Code of Criminal Procedure 39.14, the Michael Morton Act, or a request for disclosure under 37.07, you must file a motion and get an order regarding experts. Make absolutely sure to make your record, hold your pre-trial hearing before the day of trial. Get a ruling on your discovery motion. Your order needs to specify the time, place, and manner of the disclosure, at least twenty (20) days before trial. TEX CODE CRIM PROC. 39.14(b) Unlike traditional civil discovery, disclosure of an expert’s identity does not necessarily entitle a defendant to disclosure of an expert’s opinion, or the facts and data used to form that opinion.

Additionally those facts and data may not necessarily be in the State’s control.

Make sure to include in any request for expert disclosure the summary opinion of each expert, as well as the facts and data relied on to form that opinion pursuant to Texas Rule of Evidence 705.

reluctant District Attorney to offer probation, or to prepare for an open plea of guilt for probation.

Under the amendments to the Texas Code of Criminal Procedure Article 42.12, codified in article 42A, if punishment is being assessed by the Judge, the court is required to order a Pre-Sentence Report, with some exceptions. TEX CODE CRIM PROC. 42A.252 A defendant is allowed to waive the preparation of a Pre-Sentence Report. TEX CODE CRIM PROC. 1.14; Griffith v. State, 166 S.W.3D 261, 263 (Tex. Crim.App. 2005) A judge is not required to order a Pre-Sentence Report if punishment is agreed to by plea bargain, the only possible sentence is imprisonment, or if punishment is to be assessed by a jury. Id. A Pre-Sentence Report is also not required in a misdemeanor case if waived by the Defendant or the Judge finds sufficient information is apparent from the record.

Id.

E. Pre-Sentence Report – formerly PreSentence Investigation (PSI)

A Pre-Sentence Report will include, at the least, a report of the offense, restitution if any, and the criminal and social history of your client, a community supervision plan, IQ testing or “any other information relating to the defendant or the offense as requested by the judge.”

TEX CODE CRIM PROC. 42A.253 It can also include a drug or alcohol evaluation, TEX CODE CRIM PROC. 42A.257, and sexual evaluations in cases of sex offenses. TEX CODE CRIM PROC. 42A.258.

A Pre-Sentence Report can be a useful tool in convincing an otherwise

A Judge is not allowed to review the report or disclose it to any party until

there is plea or finding of guilt. TEX CODE CRIM PROC. 42A.254 However, at least 48 hours prior to sentencing a Defendant must be allowed to review the Pre-Sentence report and comment or introduce evidence alleging factual inaccuracy in the report. TEX C ODE CRIM PROC. 42A.255 Be cautious. The State is allowed access to any information provided to the Defense in the Presentence Report. TEX CODE CRIM PROC. 42A.255(C)

EVID. 401 “Relevancy in the punishment phase is ‘a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.’

Accordingly, the admissibility of evidence during the punishment phase of a noncapital trial is a function of policy rather than a question of logical relevance.” Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006) citing Rodgers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App 1999).

II. Admissibility – What’s coming in?

On the opposite side, a defense attorney can and should use the broadness of the sentencing law to provide any and as much positive information as is available.

A defendant’s personal responsibility and moral blameworthiness for the offense is admissible. Miller-El v.

State, 782 S.W.2d 892, 896 (Tex. Crim.

App. 1990). Evidence that a defendant is remorseful may be admissible. Renteria v. State, 206 S.W. 3d 689, 697 (Tex. Crim. App. 2006). Jurors may consider what sentence will sufficiently punish the defendant, and what sentence is appropriate to deter future criminal conduct of a defendant. Lopez v. State, 860 S.W.2d 938, 946 (Tex.App. – San Antonio 1993, no pet.). Be creative in presenting evidence to judge or jury to lessen your client’s punishment.

As noted above admissibility of evidence during sentencing is governed in section 37.07 of the Texas Code of Criminal Procedure.

The purview is broad, allowing for anything the court deems relevant. Ellison v. State, 201 S.W. 3d. 714, 721 (Tex. Crim. App. 2006). The general, overarching rule is that punishment evidence is relevant if it provides information about the defendant’s life and characteristics.

Brooks v. State, 961 S.W.2d 396, 396-400 (Tex.App – Houston [1st Dist.] 1997, no pet.).

A. Relevance Relevance is not without limits.

The Texas Court of Criminal Appeals equates relevance analysis to that of Texas Rule of Evidence 401: that evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. TEX. R.

B. Penitentiary Packets and Prior Convictions To prove that a defendant has been convicted of a prior offense, the State must (1) prove the existence of the conviction and (2) link the conviction to

the defendant. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).

For enhancement purposes the State must also prove that your client’s second previous felony conviction was committed after the first previous conviction became final. TEX. PENAL CODE § 12.42; Wiggins v. State, 539 S.W.2d 142 (Tex. Crim. App. 1976).

One of the most frequently used pieces of information that will be used against your client to prove prior convictions will be prior Judgments or Penitentiary Packets.

While both are hearsay under Texas Rule of Evidence 801, both have exceptions to them under Texas Rule of Evidence 803: TRE 803(6) for Penitentiary Packets as Records of Regularly Conducted Activity and TRE 803(22) as Judgment of a Previous Conviction.

Don’t accept the State’s offering of evidence on its face. Just because an exception exists for a type of document does not mean the document fits into the exception.

Look again at Texas Rule of Evidence 803(6), better known as the Business Records Exception. Business records are accepted over a hearsay objection because of their inherent trustworthiness. There is no need for confrontation or cross-examination because the documents themselves are trustworthy. But section 6 has a failsafe built into it when “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” TEX. R. EVID. 803(6) Courts have recognized that just because

information is in a government report that it does not automatically have the “indicia of reliability sufficient to insure the integrity of the fact-finding process and commensurate with the constitutional rights of confrontation and crossexamination.”

McCrary v. State, 604 S.W.2d 113 (Tex. Crim. App. 1980) citing Chambers v. Mississippi, 410 U.S. 284 (1973).

Remember too that beyond overcoming hearsay, documents entered into evidence must be authenticated.

While the Court of Criminal Appeals has done away with the requirement that a certified judgment from the original court accompany a penitentiary packet to self authenticate, there must still be some evidence to support that the evidence in question is what its proponent claims. See Reed v. State, 811 S.W.2d 582, 587 (Tex. Crim. App. 1991); TEX. R. EVID. 901 Even if a penitentiary packet is admitted, be careful to review what information is being admitted.

Just because the record itself is admissible the probable cause affidavit, victim impact statement, motions to revoke probation, or random notations in the file contain testimonial information not subject to cross-examination and should not be admissible. When a business record contains “sterile recitations…of offenses and punishments” that information can be admitted as a business record. Ford v.

State 179 S.W.3d 203, 208 (Tex.App – Houston [14th Dist.] 2005, pet. ref’d).

However, incident reports or disciplinary reports from correctional facilities or the

like that include statements from corrections officers or narrative reports are not admissible if those individuals are not there to testify to them in open court.

Russeau v. State, 171 S.W.3d 871, 880 (Tex Crim. App. 2005). Make sure to object to those statements to keep them out.

One special circumstance to look at is prior Juvenile Convictions.

An adjudication under Texas Family Code Section 54.03 provides that when a child engages in conduct that occurred on or after January 1, 1996 that results in a commitment to the Texas Youth Commission is a final felony conviction for enhancement purposes. TEX. PENAL CODE § 12.42(f) However, because of the family code’s limitation of the effect of juvenile felonies “a defendant with only a juvenile felony can apply for probation and truthfully aver that he has not been previously convicted of a felony.”

Thompson v. Sate, 267 S.W.3d 514, 517 (Tex. App. Austin 2008, pet. ref'd) Those juvenile priors can’t remove your client’s eligibility for probation, but they can enhance the punishment.

Finally, remember that with any extraneous offense the State must prove the offense beyond a reasonable doubt.

TEX CODE CRIM PROC. 37.07 §3(a)(1).

The defense has an absolute right to request that the court make a determination that the State has sufficient evidence to prove it to a jury beyond a reasonable doubt prior to it being submitted to the jury. Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994).

Look at what evidence is in the packets and judgment to reflect that the person in that judgment is your client.

Most often this is done by comparing fingerprints in the judgment or penitentiary packet to fingerprints from your client. Review the prints in the packets before hand if possible and see if they are viable.

Always review the demographic and identifying information.

You will be amazed at how often typos and mistakes occur that may keep a prior judgment out of evidence.

C. Other Objectionable Evidence Evidence that is admissible during the sentencing phase of a trial is broad, but 37.07 does not give the State cart blanche to the judge or jury. Aside from objections to relevance, the Texas Rules of Evidence addressing hearsay, privilege, competency of witnesses, either lay or expert, and authentication of exhibits still apply. This is in addition to constitutional rights of confrontation of witnesses for any evidence to be presented. Although outside the scope of this paper, objections based on Crawford, Melendez-Diaz, and Daubert all still apply during a sentencing hearing. Constitutional protections do not go out the window just because your client has plead or been found guilty.

Ultimately, whether evidence is relevant is left to the trial court which has broad discretion in making that determination. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006).

Don’t roll over and just accept that everything that the State attempts to

introduce is relevant and in the same breath fight for the relevancy of any positive piece of information you can find.

III. What should we be looking for?

From the first day of being appointed to or retained by a client we have to start the process of finding positive information about them. The purpose of this is threefold: first obviously to help counter the view that our client’s purported crime makes them an unsalvageable criminal. The second is that collateral information from friends, family, doctors, therapists and so on may assist in winning a case outright. Finally, identifying problem areas that our clients may have such as anger management, drugs, or psychological issues and addressing them far before trial will not only help with showing remedial measures at trial but will probably help in your attorney-client relationship as well.

A. Friends and Family Aside from being the first and most obvious place to start humanizing our clients, failure to interview friends, family, teachers, coaches, co-workers, church members and so on for mitigating evidence in our client’s past has been found to be ineffective. See Wiggins v.

Smith, 539 U.S. 510 (2003).

Kevin Wiggins was convicted of first degree murder, robbery, and theft. Wiggins’ attorneys failed to present evidence of their client’s difficult childhood including evidence of alcoholic parents and sexual abuse by his foster parents. The Supreme

Court found their performance to be deficient not because they failed to present the mitigating evidence, but because they failed to investigate mitigating factors.

A court will be hesitant to second guess trial strategy if an attorney determines that a clients background would not be helpful in trial, but the decision not to pursue such avenues must be based on professional judgment, not failure to investigate. Ex Parte Woods, 176 S.W.3d 224, 228 (Tex.Crim.App. 2005).

Don’t limit your investigation just to people. School, military, CPS, medical, and prior criminal records all can provide insight into the human being that your client is. You know that the State is going to introduce that aggravated robbery charge, so find the records that mitigate the prior offense. The State is going to show one side and one side only of your client. Your job is to paint the rest of the picture.

B. Medical Experts

and

Psychological

Medical and scientific advances are beginning to call into question the volition behind many criminal acts.

Minor changes in the balance of brain chemistry, even small ones, can cause large and unexpected changes in behavior. See e.g.

David Eagleman, “The Brain on Trial”, The Atlantic (July/August 2011), available online at http://www.theatlantic.com/magazine/arch ive/2011/07/the-brain-on-trial/8520/1/.

Beyond biological changes brought on by

drugs and disease, our very ability to make appropriate choices is influenced by our beginning biology and the environment we grow up in. Our client’s mother’s substance abuse during pregnancy, low birth weight, neglect and physical abuse as a child, head injuries, and untreated childhood disease all affect development and accordingly their adult ability to control behavior. Alternatively, consider a completely well developed adult and introduce completely legal medication such as Xanax, Lunestia, or Ambien and you can and will find bizarre and frightening results.

It is extremely important that all of these avenues be researched and it is our duty as attorneys to educate ourselves on our client’s issues and situations. In your interviews with friends, family, and doctors find out what medication your client is on and what medical problems they have. Know the side effects of the medication your client is taking.

Familiarize yourself with more common psychological disorders to be able to spot them in clients who may have never been diagnosed. When friends and family tell you that the criminal actions your client is accused of are completely out of character ask yourself, “What is causing it then?” A change in medication? An undiagnosed issue? Remember, it was a nickel-sized brain tumor on the thalamus of Charles Whitman’s brain that caused him to kill 13 people and wound 32 more from the UT Tower in 1966.

In order to be able to truly assist your clients you will at some point need

expert assistance.

Psychologist, psychiatrists, medical doctors, therapists, pharmacologists and so on can help with biological and developmental explanations and mitigation.

Gang experts, parole experts and prison consultants can help convince a judge or jury that a shorter sentence with rehabilitation would be more beneficial than long term incarceration. The goal is to explain the factors that led to a bad decision, and how those risk factors can be taken away in the future through treatment, medication, and rehabilitation.

If your client, either appointed or retained, is indigent and cannot afford to pay for necessary expert assistance you must request for court funds pursuant to Ake v. Oklahoma, 470 U.S. 68 (1985). If you cannot get the money you need to properly investigate your case, you should move to withdraw. Ex Parte Briggs, 187 S.W.3d 458, 468 (Tex. Crim.App. 2005).

IV. Technical Considerations A. Enhancing Ranges of Punishment Attached at the end of this paper is a flowchart of the standard punishment ranges and enhancements under §12.42 of the Penal Code. This is only a starting place. For every case step through your information or indictment for the charge itself and every enhancement allegation.

There are specific enhancements to different types of crimes (e.g. multiple charges of DWI, Burglary of a Motor Vehicle, Evading Arrest, or Prostitution)

and different enhancements outside the charges themselves. A Drug Free Zone enhancement, found in Texas Health and Safety Code §481 will not only increase the potential jail time for your client, but can also make the sentence automatically stacked. TEX. HEALTH & SAFETY C ODE § 481.134(h). Also don’t be surprised if the State is attempting to enhance something improperly. Go through each and every charging instrument every time.

Different enhancement rules apply to different levels of charges.

It is important to figure out if the charge your client is facing has been enhanced, or only the punishment range. State Jail Felonies will always be State Jail Felonies. Even if the punishment is enhanced by prior State Jail or penitentiary trips, they are still State Jail convictions. This does two things: First is that your client can never face more than second degree penalty ranges for a State Jail offense, 2 – 20 years. See Dickson v. State, 986 S.W.2d 799, 803 (Tex. App. Waco 1999). Second is that even if a prior charge has been enhanced to penitentiary level punishment, a State Jail offense can never be used to enhance a 1st , 2nd, or 3rd degree felony. Campbell v. State, 49 S.W.3d 874, 877 (Tex. Crim. App. 2001).

Remember too that in enhancing 1 , 2 , and 3rd degree felonies, “the State carries the burden of proving beyond a reasonable doubt that a defendant’s second previous felony conviction was committed after the defendant’s first previous felony conviction became final” Jordan v. State, 256 S.W.3d 286 (Tex. st

nd

Crim. App. 2008). A conviction is not final if a case is appealed. Jones v. State, 711 S.W. 2d 634, 636 (Tex. Crim. App. 1986).

If the evidence of a prior conviction raises the question of an appeal or final disposition, the State has the burden of making a prima facie showing of finality. Id. Finally remember that even if your client is convicted, but is given community supervision, the conviction is not final (so cannot be used to enhance) unless the community supervision is revoked. Ex Parte White, 211 S.W.3d 316 (Tex. Crim. App 2007) citing Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim.

App. 1992), citing Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). (“[i]t is well-settled that a probated sentence is not a final conviction for enhancement purposes unless it is revoked”).

More importantly, if a conviction is set aside after probation pursuant to Texas Code of Criminal Procedure 42A.701(f) that person “is not a convicted felon.” Cuellar v. State, 70 S.W.3d 815, 818 (Tex. Crim. App 2002) (emphasis in original). Rudy Cuellar was convicted of Unlawful Possession of a Firearm by a Felon, but had his conviction overturned because the underlying predicate felony was discharged after community supervision. Id. The Legislature has made an exception where some probated sentences can be used to enhance in Texas Penal Code §12.42(g). Check all of the enhancements that the State is attempting to use against your client, and make sure

they are actually useable to enhance.

On a practical note, try and be strategic in how you deal with enhancement paragraphs. Remember that just because an enhancement is presented the judge or jury does not have to find them true. They must be proven beyond a reasonable doubt. This can create an equitable argument for your client who is facing 25 – Life because of two prior felony convictions that were from thirty years ago. There is no legal basis for a judge or jury ignoring proof of a prior, but it can be done. Alternatively, if you are looking at deferred probation when enhancement paragraphs are present, ask your judge to defer a finding on the enhancement paragraphs as well. That way if revoked, your otherwise 25 – Life client may still have some wiggle room if you can work out a plea.

B. Stacking The concurrent or cumulative imposition of sentencing is governed by Texas Code of Criminal Procedure §42.08 and Texas Penal Code §3.03. For multiple offenses out of the same criminal episode that are prosecuted in one trial the sentenced must run concurrently unless they fall under the exceptions to §3.03, or are specific in the charge as with Drug Free Zones mentioned above. A ‘criminal episode’ is defined as multiple crimes are in the same transaction or toward a common goal, or are the repeated commission of the same crime. TEX. PENAL CODE § 3.01. The same offense committed on separate days, constitutes

the same criminal episode. White v. State, 543 S.W.2d 130, 131 (Tex. Crim. App. 1976). If offenses are "similar" is a question of judicial interpretation. In Barker v. State, even though three offenses were directed at three different victims on multiple days because each was a woman, living in the same town, attacked in or near her home, while she was alone in the early morning hours the three offenses were considered similar offenses. Baker v. State, 107 S.W.3d 671, 673 (Tex. App. San Antonio 2003, no pet.).

If the offenses are out of multiple criminal episodes, or if they are tried separately, the decision to run sentences concurrently or consecutively is completely in the discretion of the Judge.

TEX CODE CRIM PROC. §42.08. Even if you elect to have a Jury assess punishment, a Judge may still stack punishments within their discretion.

Barrow v. State, 207 S.W.3d 377, 379-380 (Tex. Crim. App. 2006).

Make sure to check that the offense you are defending is not stackable, or mandatorily stacked. One way to get around mandatory stacking is to plea bargain or have your client found guilty of an ‘attempt’ of the offense. A conviction for an attempt to commit one of the offenses under Section 3.03 does not qualify for the stacking of sentences.

Parfait v. State, 120 S.W.3d 348, 350 (Tex. Crim. App. 2003). The exceptions to mandatory concurrency are included on the enhancement flowchart at Appendix B.

C. Judge vs. Jury The determination of whether you will present your case for punishment to Judge or Jury will largely be a case by case determination. It will depend on the Judge you are in front of, the jury pool you can expect to draw from, and how your specific facts will play to each one.

Take the time to research who you will be arguing to. If you are not familiar with a Judge or jurisdiction, ask attorneys who have practiced there before. One Judge may be great to bring a certain case to while the other may max your client out.

In either instance, you must make the election for punishment prior to the beginning of voir dire. If an election is not made then punishment will be determined by the Judge. TEX CODE CRIM PROC. 37.07 §2(b). In order to elect for a Jury to assess punishment the request must be made in writing prior to the beginning of jury selection. Id. After a finding of guilty you can change your election of who will assess punishment, but only with the consent of the State. Id. Aside from personality determinations on who will assess punishment there are some technical matters to keep in mind. The Judge is the only person who can give your client Deferred Adjudication Probation, and then only on a plea of guilty or nolo contendre.

TEX CODE CRIM PROC. 42A.101. As an interesting side note, depending on the Judge you are in front of, the Judge may still acquit your client upon a plea of nolo contendre.

See In re State ex rel.

Villalobos, 2006 Tex. App. LEXIS 109, 2006 WL 20617 (Tex. App. Corpus Christi Jan. 3, 2006) (mem. op., not designated for publication). In contrast, a Judge cannot give straight probation in cases that involve a finding of a deadly weapon, murder, capital murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, aggravated robbery, sexual assault, injury to a child in the first degree, sexual performance of a child, criminal solicitation in the first degree, if there is an affirmative finding of a Drug Free Zone or that a child was used in a drug offense, or when the minimum punishment is over ten years. See TEX CODE CRIM PROC. 42A.054 and Appendix B. Many, but not all, of those charges can receive deferred adjudication.

If you elect to have a jury assess punishment then the Judge is required to suspend the sentence if it is recommended by the jury and the defendant otherwise qualifies.

TEX CODE CRIM. PROC. 42A.055.

In order to qualify, the Defendant must have not been previously convicted of a felony and must file a sworn motion before the commencement of trial to that fact. TEX CODE CRIM. PROC. 42A.055(b). The length of the community supervision cannot be less then the penalty recommended by the jury.

TEX CODE CRIM PROC. 42A.053(d)(1).

For example, if the jury returns a sentence of five years with a recommendation for community supervision, the least amount of community supervision the judge can impose is five years. Remember, even a jury cannot recommend community

supervision for a sentence over ten years, or for a conviction for indecency with a child, aggravated sexual assault, sexual assault, sexual performance by a child, aggravated kidnapping of a child under 14 with the intent for sexual abuse, or murder. TEX CODE CRIM. PROC. 42A.056.

Additionally a jury cannot recommend community supervision if there is an affirmative finding of a drug free zone when there has been one in the past. Id. The other consideration to make when presenting a punishment case to a jury is how to start preparing them in voir dire. It can seem weird to talk to a jury about punishing your client in the same breath that you’re reminding them about the high burden of beyond a reasonable doubt and how your client is innocent until proven guilty. It doesn’t have to be though. In fact, ferreting out jurors’ opinions on punishment and rehabilitation can often help identify those jurors who would be better or worse during the guilt and innocence portion of your trial. It is a proper question to ask the panel what factors they feel are important in assessing a sentence. Davis v. State, 349 S.W.3d 517, 519 (Tex. Crim. App. 2011). It is also proper to ask prospective jurors if they can follow charging instructions not to consider parole, and if they can consider the entire range of punishment.

Jones v. State, 223 S.W.3d 379, 382 (Tex. Crim. App. 2007) Knowing what buttons may press a juror one way or another can assist not only in punishment but also when presenting your client’s case which will hopefully keep you from having to make that punishment case at all.

D. Community Supervision Too often prosecutors, and even our judges and jurors, think that probation is akin to an acquittal. It is anything but.

Knowing what Community Supervision is, and what it is not, can help you overcome this perception and get your client on probation if that is what they want. More importantly knowing ahead of time what probation is really going to mean for your client will help you plan accordingly to advocate for that goal.

As noted above there are two types of community supervision: deferred adjudication or a suspended sentence a.k.a. straight probation.

Deferred adjudication probation, while potentially beneficial because there is no finding of guilt, has limitations and potential liabilities that should be considered. Only a judge can grant deferred adjudication.

TEX CODE CRIM PROC. 42A.101 A judge cannot grant deferred adjudication in a number of cases, enumerated in Appendix B. Additionally, your client will face the entire range of punishment on a showing that they violated their deferred community supervision. It is important to consider what is more important: avoiding a final conviction or limiting your client’s potential exposure to incarceration down the road. Finally, remember that deferred adjudication will not remove the entire taint of a guilty plea. Even after dismissal and discharge, deferred adjudication can be used in subsequent punishment proceedings.

TEX C ODE CRIM PROC. 42A.111 It can also be used in

consideration for certain licenses, and cannot remove affirmative findings of family violence or requirements under the Sex Offender Registration Program. Id. Deferred adjudication will also usually be treated the same as a finding of guilt for deportation and removal proceedings with Immigration. Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999) (holding that deferred adjudication is considered a conviction for immigration purposes).

In contrast a suspended sentence or straight probation is where your client is sentenced to some term in jail or prison and then that sentence is suspended pending some period of time on community supervision. In this type of probation your client is convicted of the underlying crime, and will remain so without additional action by a judge. See TEX CODE CRIM PROC. 42A.701 With both straight and deferred probation it is important to be familiar with what is going to be required of your client. Beyond any fine imposed and costs of court a probationer will be responsible for monthly supervision fees up to $60 per month, urinalysis and drug testing fees, costs for classes required by probation, and community service hours.

They are required to maintain their residence in the county of their supervision, allow visitations to their home on request, and report to their officer as often as ordered. These are just some of the standard conditions for probation spelled out by TEX CODE CRIM PROC. 42A.301 Add to that special programs for DWI convictions (42A.403

& 404), drug rehabilitation (42A.4045), sex offender classes (42A.258), jail time as a condition of probation (42A.302) and it’s easy to see that probation is no walk in the park.

Additionally be aware that §42A.301 gives the Judge the ability to impose “any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.” TEX CODE CRIM PROC. 42A.301(a). This includes confinement as a condition of probation, which can be added at any time during the probation.

TEX CODE CRIM PROC. 42A.302.

There are limitations on conditions of probation that a judge may impose based on your client’s ability to pay for those conditions. A judge must consider the ability of a defendant to make payments before imposing monetary conditions as a condition of probation.

TEX. CODE CRIM. PROC. 42A.655 The trial court’s ability to order terms and conditions of probation is limited to the ability of the defendant to pay. Mathis v.

State, 424 S.W.3d 89, 94 (Tex. Crim.

App. 2014).

The reason to be aware of what may be required of your client is threefold. The first is when making a plea for probation to judge or jury you can use this information to remind them that probation is not letting your client get away with anything. The State will often argue that probation is somehow the same as an acquittal, which is simply not the

case. The second is to be aware of what conditions are usually imposed, what conditions are going to be imposed, and argue for your clients on what should be imposed. Conditions of probation are completely within the discretion of the judge, which means that conditions can be added or taken away depending on what we ask for.

Finally, make sure that probation is the right thing for your client. Is it in their best interest to have 25 – life hanging over their head with a pretty good chance they will violate their probation?

Should they place themselves under the control of the court for up to ten (possibly 20 if they start with deferred probation and are later revoked to straight probation) years when they could resolve the case with some relatively small amount of jail time? These are important factors to consider when deciding on what to ask for in a punishment case.

V. Conclusion Let’s be honest, punishment is the last place that any defense attorney really wants to be. It means we lost, right? No. Not necessarily. The more important half of the fight is what will happen to our clients after they’ve been found guilty.

The conviction on their record is going to mean a lot less than the number of days, months, or years that they will be spending in prison. Punishment is the place that with good preparation and a little creativity we can make a real difference for our clients.

Appendix - Penalty Levels - Punishment Enhancement - Community Supervision -Unpacking

§481.134

-

Drug

Free

Zones

Penalty Level

Community Supervision

Capital Felony · Death or Life Imprisonment

Ineligible for Community Supervision

First Degree Felony · Confinement for life or a term from 5 to 99 years in prison and; · An optional fine not to exceed $10,000

· Up to 10 years Deferred Adjudication · Up to 10 years post conviction supervision for sentences under 10 years · Up to 180 days in county jail as condition of probation

Second Degree Felony · Confinement for a term from 2 to 20 years in prison and; · An optional fine not to exceed $10,000

· Up to 10 years Deferred Adjudication · Up to 10 years post conviction supervision for sentences under 10 years · Up to 180 days in county jail as condition of probation

Third Degree Felony · Confinement for a term from 2 to 10 years in prison and; · An optional fine not to exceed $10,000

· Up to 10 years Deferred Adjudication · Up to 10 years post conviction supervision · Up to 180 days in county jail as condition of probation

State Jail Felony · Confinement for a term from 180 days to 2 years in state jail and; · An optional fine not to exceed $10,000

· Up to 10 years of Deferred Adjudication · Initial 2 – 5 years of post conviction supervision; extendable to 10 years · Up to 90 days in county jail as condition · From 90 – 180 days in state jail as condition · From 90 – 365 days in state jail if offense is delivery of marihuana or penalty group 1, 1A, or 2 controlled substance · 90 – 180 additional days in state jail as a condition following violation of condition of supervision

May be found guilty of a felony offense and punished as a Class A Misdemeanor – PC 12.44(a) At the request of Prosecuting Attorney, any State Jail Felony may be prosecuted as a Class A Misdemeanor – PC 12.44(b)

Class A Misdemeanor · Confinement for a term not to exceed 1 year in county jail and/or; · A fine not to exceed $4000

· Up to 2 years of Deferred Adjudication · Up to 2 years of post conviction supervision extendable to 3 years

Class B Misdemeanor · Confinement for a term not to exceed 180 days in county jail and/or; · A fine not to exceed $2000

· Up to 2 years of Deferred Adjudication · Up to 2 years of post conviction supervision extendable to 3 years

Class C Misdemeanor · No Confinement · A fine not to exceed $500

· Up to 180 days of Deferred Adjudication

Punishment Enhancement Penal Code §12.42 Non-State Jail Felony Enhancement

State Jail Felony Enhancement

One Prior Non-State Jail Felony Conviction

SJF + 2 SJF Convictions ····························· 3rd Degree either concurrent or in sequence

3rd Degree ················ 2nd Degree 2nd Degree ················ 1st Degree 1st Degree ················ 15 – 99 years or life

SJF + 2 Felony Convictions in sequence ··········· 2nd Degree

Two Sequential Prior Non-State Jail Felony Convictions

SJF + Deadly Weapon or one Prior 3g offense ······ 3rd

1st, 2nd, or 3rd Degree ·········· 25 – 99 years or life

SJF + Deadly Weapon and any prior non SJF ······ 2nd

Misdemeanor Enhancements

* Note: Unlike penitentiary enhancements, State Jail Felony Enhancements can be concurrent convictions.

Class A + Prior Class A Or Any Felony ······· 90 – 365 days Class B + Prior Class A, B or Any Felony ····· 30 – 180 days Class C Public Intoxication or Disorderly Conduct + 3 prior of either within last 24 months is enhanced to Class B Punishment

** Note: The State cannot ‘double enhance’, using prior convictions to increase a State Jail Felony to a 3rd or 2nd Degree Felony and then enhancing under PC 12.42(c) or (d). The highest a SJF can be enhanced to would be a second degree felony. Gonzalez v. State, 915 S.W.2d 170 (Tex. App. Amarillo 1996, no pet.)

Automatic Life Sentences – CCP 12.42(c)

Special Enhancements

Auto Life for:

PC 12.47 PC 12.49

Trafficking Child for Sex Indecency w’ Child by Contact Agg Sex Assault Sexual Assault Agg Kidnap w’ Sexual Assault Burg Hab w’ Sexual Assault

-PC 20A.02(a)(7) (8) - PC 21.11(a)(1) - PC 22.021** - PC 22.011 - PC 20.04(a)(4) - PC 30.02(d)

If Previously Convicted of: Trafficking Child for Sex Continuous Sex Abuse Child Indecency with a Child Sexual Assault Agg Sex Assault Prohibited Sexual Contact Burg Hab w’ Sexual Assault Obscenity Depicting a Child Sexual Performance by Child Child Pornography Agg Kidnap w’ Sexual Assault Similar Laws Different State

-PC 20A.02(a)(7) (8) - PC 21.02 - PC 22.11 - PC 22.011 - PC 22.021 - PC 25.02 - PC 30.02(d) - PC 43.23(h) - PC 43.25 - PC 43.26 - PC 20.04(a)(4) - PC12.42(c)(2)(v)

Bias or Prejudice Use of a Controlled Substance to Commit an Offense PC 12.50 Crime Committed in a Disaster Area PC 71.028 Gang Free Zone HSC 481.134 Drug Free Zones HSC 481.140 Use of a Child in a Drug Transaction Stackable Offenses PC 20A.02 Trafficking of Persons PC 21.02 Continuous Sexual Abuse Child PC 21.11 Indecency With a Child PC 21.15 Improper Photography PC 22.011 Sexual Assault PC 22.021 Aggravated Sexual Assault PC 22.04 Injury Child/Eld/Disabled SBI PC 25.02 Prohibited Sexual Contact PC 33.021 Online Solicitation of a Minor PC 43.05 Compelling Prostitution PC 43.25 Sexual Performance By Child PC 43.26 Child Pornography PC 49.07 Intoxication Assault PC 49.08 Intoxication Manslaughter Code Crim Pro 42.0197 – Affirmative Finding of Gang Conduct Health and Safety Code § 481.134(h) – Drug Free Zone (mandatory stacking)

Community Supervision – Code of Criminal Procedure §42.12 No Judge Ordered Supervision CCP 42A.054

Community

No Jury Ordered Community Supervision CCP 42A.056

PC 1.07

Aff. Finding Deadly Weapon

CCP 42A.056(1)

Sentence over ten years

PC 15.03

1 Degree Criminal Solicitation

CCP 42A.055(b)

Prior felony convictions

PC 19.02

Murder

HSC 481.134

PC 19.03

Capital Murder

Drug Free Zone with Prior finding of Drug Free Zone

PC 20.04

Aggravated Kidnapping

PC 20A.02

Trafficking of Persons

st

PC 21.11(a)(1) Indecency With Child PC 22.011

Sexual Assault

PC 22.021

Aggravated Sex Assault

PC 22.04(a)(1) 1st Degree Injury to Child PC 29.03

Aggravated Robbery

PC 30.02

Burglary with intent sex assault

PC 43.05

Compelling Prostitution

PC 43.25

Sexual Performance Child

HSC 481.140

Child in Drug Case

HSC 481.134

Drug Free Zone w/ prior

PC 20A.02

Trafficking of Persons

PC 21.11(a)(1)

Indecency With Child under 14

PC 22.011

Sexual Assault under 14

PC 22.021

Aggravated Sex Assault under 14

PC 20.04

Aggravated Kidnapping under 14 with intent sex abuse

PC 43.05

Compelling Prostitution

PC 43.25

Sexual Performance Child

PC 19.02

Murder

PC 19.03

Capital Murder

No Deferred Adjudication Supervision CCP 42A.102 *PC 19.02 Murder **PC 21.11 Indecency with a child **PC 22.011 Sexual Assault **PC 22.021 Aggravated Sexual Assault PC 21.02 Continuous Sex Assault Child PC 22.021 Agg. Sex Child under 6 y/o or; -Under 14 & Kidnapping or SBI -Capital Sex Assault PC 49.04 Driving While Intoxicated PC 49.045 DWI with Child PC 49.05 Flying While Intoxicated PC 49.06 Boating While Intoxicated PC 49.065 Assembling or Operating An Amusement Ride While Intoxicated PC 49.07 Intoxication Assault PC 49.08 Intoxication Manslaughter HSC 481.134 Drug Free Zone with prior DFZ

* Can still defer if a finding that Defendant did not cause, intend, or anticipate that human life would be taken. * With a showing of prior community supervision for Indecency, Sex Assault, or Agg. Sex Assault.

Unpacking The Drug Free Zone – Texas Health And Safety Code §481.134 481.134(b) (1000ft of Institution of Higher Learning, youth center, playground, or 300 feet of public pool or video arcade) (SFJ = Punished 3rd Degree; 2nd = Punished 1st Degree) HSC 481.112 HSC 481.1121 HSC 481.113 HSC 481.114 HSC 481.120

MFG/DEL PG1 MFG/DEL PG1-A MFG/DEL PG2 MFG/DEL PG3 Delivery of Marihuana

HSC 481.134(c) (1000 ft of a School, public or private youth center, playground, or school bus) (minimum confinement + 5yrs & double max fine) 481.112(c), (d), (e), (f) 481.1121(b)(2), (3), or (4) 481.113(c), (d), (e) 481.114(c), (d), (e) 481.115(c) – (f) 481.1151(b)(2), (3), (4), (5) 841.116(c), (d), (e) 481.1161(b)(4), (5), (6) 481.117(c), (d), (e) 481.118(c), (d), (e) 481.120(b)(4), (5), (6)

MFG/DEL PG1 MFG/DEL PG1-A MFG/DEL PG2 MFG/DEL PG3 Possession PG1 Possession PG1-A Possession PG2 Possession PG2-A Possession PG3 Possession PG4 Delivery of Marihuana

2nd Degree or Higher (one gram or higher) 2nd Degree or Higher (20 units or higher) 2nd Degree or Higher (one gram or higher) 2nd Degree or Higher (28 grams or higher) 3rd Degree or Higher (more than one gram) 3rd Degree or Higher (more than 20 units) 3rd Degree or Higher (more than one gram) 3rd Degree or higher (50 lbs or more) 3rd Degree or higher (28 grams or more) 2nd Degree or higher (200 grams or more) 2nd Degree or higher (50 lbs or more)

HSC 481.134(d) (1000ft of premise of School or School Board, youth center, playground, or school bus) (becomes a felony of the third degree) 481.112(b) 481.1121(b)(1) 481.113(b) 481.114(b) 481.115(b) 481.1151(b)(1) 481.116(b) 481.1161(b)(3) 481.120(b)(3) 481.121(b)(3)

Man/Del PG1 Man/Del PG1-A Man/Del PG2 Man/Del PG3 PCS PCS 1-A PCS PG2 PCS PG2-A Delivery of Marihuana POM

SJF (less than one gram) SJF (less than 20 units) SJF (less than one gram) SFJ (less than 28 grams) SJF (less than one gram) SJF (less than 20 units) SJF (less than one gram) SJF (more than 4oz less than 5 lbs) SJF (more than 1/4oz less than 5lbs) SJF (more than 4oz less than 5 lbs)

HSC 481.134(e) (1000ft of premise of School or School Board, youth center, playground, or school bus) (becomes a SJF) 481.117(b) 481.119(a) 481.120(b)(2) 481.121(b)(2)

PCS PG3 Class A Misd (less than 28grams) Misc. Cont. Sub. Class A Misd Del of Marihuana Class A Misd (less than 1/4 oz w/remuneration) POM Class A Misd (less than 4oz more than 2oz)

HSC 481.134(f) (1000ft of premise of School or School Board, youth center, playground, or school bus) (becomes a Class A Misd.)

481.118(b) 481.119(b) 481.120(b)(1) 481.121(b)(1)

PCS PG4 Misc Cont. Sub Del of Marihuana POM

Class B Misd (less than 28 grams) Class B Misd Class B. Misd (less than 1/4foz w/o remuneration) Class B. Misd (less than 2oz)

HSC 481.134(g) – does not apply if in private residence & no kids present HSC 481.134(h) – automatic stacking

Texas Criminal Defense Lawyers Association

Journey to Justice

September 9, 2022 Omni Corpus Christi Hotel 900 N Shoreline Blvd.

Corpus Christi, TX 78401

Topic: Staying Mentally Strong for the Journey | Mental Health Speaker:

Angela Moore

316 Martinez St. San Antonio, TX 78205-3407 361-389-3329 Phone (210) 800-9802 Fax angelamooreattorney@gmail.com Email www.angelamoorelaw.com Website

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

Legal Burnout Suggested Solutions Identifying and Managing Attorney Anxiety

The Struggle is Real.

Delivered by Angela J. Moore SBN 14320110 316 Martinez St. San Antonio, Texas 78205 361-389-3329 210-364-0013

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Six things Mentally Strong People Do 1. They move on. They don’t waste time feeling sorry for themselves.

2. They embrace Change. They welcome challenges.

3. They stay happy. They don’t waste energy on things they can’t control.

4. They are kind, fair, and unafraid to speak up.

5. They are willing to take calculated risks.

6. They celebrate other people’s success.

They don’t resent that success.

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I. Statistics: In a 2022 Mental Health Survey by Law.com and ALM Intelligence, 67% of attorneys reported anxiety.

Some identified causes reported in this survey are: 74% stated work environment as #1 The most prevalent concerns were: Always being on call Billable hour pressure Client demands Lack of sleep Not mentioned in this survey are personality traits that many lawyers possess, such as perfectionism, pessimism, and believing we can handle everything and everything life throws at us. The truth is: we can’t Lawyer burnout, however, isn’t inevitable—especially if you can manage it before it wears you too far down.

It is helpful to look at the causes, signs, and consequences of lawyer burnout— and how you can take steps to avoid becoming another burned-out lawyer.

Why are lawyer burnout and stress levels such severe issues within the industry?

How to prevent burnout, or how to deal with it once you have it?

Burnout is real, and it’s more severe than just being tired at the end of a hectic day. According to the World Health Organization (WHO), burnout is an occupational hazard—“a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed.”

The WHO outlines several signs of burnout, including: Feelings of exhaustion Pulling away mentally from a job Work-related cynicism 4

While anyone in any profession can experience burnout, lawyers are particularly prone to suffering from it and the consequences.

In extreme cases, the impact of burnout on lawyers is vast, significant, and profound. Terry, a Master Certified Coach,1, said, “The last information I saw indicated that lawyers had the highest alcoholism rates, the highest depression rates, the highest suicide rates. There’s much dissatisfaction in the profession.”

While most people experience stress in their lives, lawyers and people in the legal profession face a unique conundrum: For many, the drive and dedication that make them successful as a lawyer is also what’s causing stress and burning them out.

Many careers are high stress—so why are lawyers at a higher risk of burnout than many other working professionals? Why do lawyer stress statistics show that lawyers are experiencing greater stress levels than their counterparts in other professions?

Usually, a combination of factors, like those listed below, work together over time to create overworked, stressed-out, burned-out lawyers:

II. PERSONALITY TRAITS To become a lawyer, a person generally has a high-achieving personality—once practicing law, that intensity and ambitious drive can lead to stress that, eventually, builds towards burnout. We are historically overachievers, place a lot of pressure on ourselves to perform, yet suffer from the imposter syndrome.

According to a 2016 study by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs, 21% of licensed, employed attorneys are problem drinkers, 28% suffer from some level of depression, and 19% struggle with symptoms of anxiety.

ALM’s Mental Health and Substance Abuse Survey, published in 2020, found that 31.2% of the more than 3,800 respondents feel they are depressed, 64% feel they have anxiety, 10.1% feel they have an alcohol problem and 2.8% feel they have a drug problem.

1

https://www.inner180.com/about-2/ last accessed September 6, 2022 5

III. PERFECTIONISM This trait serves us well when dealing with a complex legal case. However, that can lead to more significant lows and disappointment with failures (or perceived failures). Nothing is ever “finished” or good enough.

As a result, we work long hours. Lawyers tend to work—a lot. The 2018 Legal Trends Report surveyed lawyers' working hours and found that 75% of lawyers are frequently outside regular business hours. The report also found that lawyers work, on average, 140 unplanned hours a year—which works out to about 3.5 weeks a year of incredible work. These statistics alone make it clear why lawyers are burned out.

IV. PROFESSIONAL CULTURE Law firms can be competitive environments built on a tradition of overwork as a badge of honor. Because the law is rooted in ideas that tend to value overworked lawyers, attitudes of strength, and “toughing it out,” it can be difficult for lawyers to ask for help when needed.

V. LACK OF SUPPORT Similarly, when some law firms are hyper-focused on generating profits and billable hours, they might overlook lawyer wellness. By not taking breaks or stress-relieving resources readily accessible, lawyer stress can build towards burnout. Lawyers may not be getting support to care for their mental health, or it may not appear to be a priority: In the same ALM study above, more than 35% of survey respondents didn’t know whether their firms offered mental health support and benefits.

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VI. WHAT ARE THE SIGNS OF LAWYER BURNOUT? Lawyer burnout doesn’t happen overnight—it builds up gradually over time.

To deal with (and hopefully avoid) lawyer burnout, it’s critical to know the signs to recognize when you might be on the verge. A large part of that is paying attention to how you’re feeling.

“A lot of the early signs come from, ‘I used to feel kind of happy or excited when I got into the office, or I felt enthusiastic about my day, and I’m noticing that I don’t feel that way at all and it’s starting to become a real drag,’” Terry explained, “that is a very, very big warning sign.”

For Terry, her experience of lawyer burnout impacted multiple aspects of her life. “The stress level got so high that I didn’t want to get up in the morning and go to work most of the time,” she explained. “Even though there were aspects of my work I loved, the stress levels were so high that it was impacting my relationship with my children, my relationships, and it felt very close to what depression feels like—like you’re just slogging through molasses and don’t want to do it anymore.”

Detecting lawyer burnout can be tricky—there’s no medical diagnosis for burnout, and many signs can be caused by other ailments (which is why it’s a good idea to consult with a doctor if you’re feeling burned out but aren’t sure).

While there’s no one experience of lawyer burnout, there are several common signs to be mindful of. Here are some of the common symptoms that you’re getting close to burning out: YOU’RE EXHAUSTED Extreme fatigue, even when you get adequate sleep, could signify more than just sleep-deprived after several long days at the law office.

A. YOU FEEL DETACHED Was there once a time when you couldn’t wait to get to the office, but now you find it hard to muster the energy to pretend to care? Becoming disengaged from work and cynical (or, worse, completely dreading the day-to-day practice of the career you once loved) are classic signs of burnout.

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B. YOU CAN’T CONCENTRATE A lack of attention and missing vital details could be signs of burnout—and can impact more than just you if you’re accidentally overlooking details on cases.

You’re self-medicating.

As Brian Cuban explored through research and his own experience in “The Addicted Lawyer,” the legal profession is an industry that suffers from addiction issues. Turning to alcohol and other substances to push through your day signifies that something is off.

C. YOU HAVE NO WORK-LIFE BALANCE. “My whole life is “have to.”

Working so much that you’re missing out on your family and personal time erodes your wellness; feeling chronically imbalanced and feeling stressed or guilty about it can signal incoming burnout. Your relationships are in trouble.

As Terry explained, people on the verge of burnout can exhibit irritability when they do have a moment of home time. “I think relationships, personal relationships, start to deteriorate. People get crabby with their partners; they get crabby with their children.”

D. YOU’RE FEELING “STUCK.” When you’re burned out, you might be working day and night—but still, feel like you aren’t getting anywhere or making any progress. The self-doubt and feelings of inadequacy that come with this hard-work-no-results experience can be hard to handle.

E. YOU’RE ALWAYS STRESSED. Chronic stress (and the physical signs of stress like sweating and heart palpitations) could signal impending burnout.

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VII. IF YOU THINK YOU’RE AT RISK OF BURNOUT: Step back Assess your situation Seek ways to curtail lawyer burnout Here are a few tactics recommended for lawyers to use for their mental health and to keep lawyer burnout at bay.

A. RECHARGE YOUR BATTERIES. First and foremost, you must sleep if you don’t want to burn out. Rest, and prioritize taking care of your body and mind as a human instead of focusing on yourself just as a lawyer. Self-care is not selfish.

Precursors for lawyers burning out are often simple things like not having any personal time, not having any time to exercise, to take a yoga class, to feel like you can walk outside and get a breath of fresh air.”

B. DO THINGS THAT MAKE YOU HAPPY, BESIDES THE LAW. Make a conscious effort to integrate non-work-related activities and hobbies into your day. Those non-billable hours can help make your billable hours more productive if you’re refreshed and energized. Engagement and activities that engage us are highly rejuvenating.

Take a walk, visit a church, synagogue, mosque, or temple, and pray or meditate. Somewhere quiet and relaxing.

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Go to a museum, a park, somewhere out of the office, and perhaps alone is best for some quality quiet time.

Listen to music.

Some people work out at lunch hour. Use that time wisely. (I work out first thing in the morning. 6:30 or 6:45 a.m.)

Most importantly cut ties with Toxic people and Unhelpful Activities.

Nurture friendships and time well spent with other friends who are not in the legal profession. Join a group that engages in activities that you find rewarding and enjoyable. But do not over-volunteer!!

C. SET BOUNDARIES: JUST SAY NO! If you don’t want to be burned out, you need to know (and respect) your limits, learn to say no, and let go of the belief that you can handle more than you can.

Don’t over-explain why you can’t attend or allow others to manipulate you or make you feel guilty for not attending, joining, or sitting on that committee. (My pet peeve is “parties” where you have to buy something. Grrrr.) Set boundaries, clarify your “why,” and prioritize doing things you love when you’re not at work. This way, you’ll be on your way to the work-life balance you crave.

A subset of setting boundaries is CLIENT C ONTROL. BUSINESS IS BUSINESS ; YOU DO NOT HAVE TO BE ON CALL 24-7. Use an answering service. Put clear boundaries in your contract. Use Jpay to stay in contact with clients for a routine checkin.

D. CREATING A NEW RELATIONSHIP WITH TIME IS KEY TO SUCCESS. When you talk to lawyers about what is bothering them, they will consistently tell you there’s not enough time, which is a lie. That’s not a fact; it’s a belief. And when we ask ourselves, is that belief true? We find out that there’s not enough time is not an honest belief. We can’t work 36 hours in a 24-hour day, and we can’t even work 24 hours in a 24- hour day. At some point, we stop. So, it’s coming to terms with the limitations of being a human in a human body and honoring that.” Create a realistic “time budget” for your work time. Make a list of things you can realistically accomplish that day. In those time blocks, build in time for exercise, a quiet break, healthy food, and sleep.

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Take at least one day off a week without law. You can be more productive and effective during your working hours—and enjoy your life more outside work. It’s possible to thrive as a lawyer and a human being. TAKE VACATION! You are not lazy or a slacker to take time off. You will be more productive in the long run.

VIII. OFF LOAD WHAT YOU CAN: WORK SMARTER, NOT HARDER While this is a more concrete tactic, tech that streamlines workflows, saves time, and makes work easier can support a better work-life balance and help relieve the time pressures of getting the job done.

A. LEGAL SOFTWARE

Software such as CLIO and MY CASE gives you the flexibility to be productive when (and where) you want to be — so you can disconnect when you need to. There are Apps to handle your billing and pull-up documents. TDCLA has an app for the Texas Criminal Codes!

B. HIRE TEMPORARY EMPLOYEES.

Use non-paid law students on a particular project and offer to provide them with writing credit, pro bono credit, or independent credit if it can be used for this project. Some students are happy to learn by working with you on projects. Paralegal students from your local colleges or community colleges have extern hours they must log. Your project could provide for you. You cannot, of course bill the free law student’s time. If you hire assistants or paralegals, you can bill a lower hourly wage.

C. HIRE AN ASSOCIATE for a particular project or regular hours. Students can work remotely at least part of the time, making it a win-win situation. Have all employees bill their time and sign a confidentiality agreement.

D. HIRE A COLLEAGUE'S ASSISTANT to edit briefs, and documents, catch up on filing, enter data, such as billable hours, or create the table of contents and index of authorities for a brief as an after-hours project. (always clear it with your colleague to prevent representation conflicts and no poaching!) Any specific bite-size tasks you can offload, do so.

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E. A secret I just discovered, Westlaw has a “drafting assistant” feature that will easily capture and paginate your index of authorities in briefs and cite each citation. It’s a beautiful thing!

F. ORGANIZE YOUR OFFICE. Have your kids or spouse help or grab a good friend.

If you can’t mentally concentrate, the action of moving boxes and separating your stacks of papers, files, and sticky notes will help you feel more in control. It will also help you feel more in control and PUT you more in control of your caseload.

G. GET A HOUSEKEEPER TO ORGANIZE YOUR HOME. A clean, inviting space is relaxing and nurturing.

IX. ACKNOWLEDGE THE SITUATION The first step to managing lawyer burnout is acknowledging the situation for what it is. This can be tough for lawyers who’ve been conditioned to have an image of themselves as superhuman, but if you can admit that when you’re getting burned out, you’ll be able to take better care of yourself and your clients in the long run.

A. ASK FOR HELP Don’t go it alone. When you notice a change or shift in yourself, “talk to someone, talk to your mentor, talk to an advisor from one of the lawyer assistance programs. Talk to a life coach but talk to someone in confidence about what’s going on because, at this point, there needs to be a bit of analysis.”

“Sometimes you just have to admit you need support,” Terry explained. “Coaches like [name] and I support attorneys and help them explore options and realize they’re not as trapped as they think.”

Engage in counseling. Counseling can now be done online, wherever and whenever you choose. It’s not a crisis line but regular counseling. www.betterhelp.com Talk to your physician. Medication may be the answer. Do not ever feel that seeking medical help is a sign of weakness. Chemical imbalances can be resolved.

It’s imperative to recognize postpartum depression or psychosis. This is a genuine mental health risk for all mothers. Family, friends, and partners should be aware of the signs. www.cdc.gov/reproductivehealth/depression/index.htm

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New mothers, allow others to help you.

B. LOOK AT WHAT NEEDS TO CHANGE TO FIX THE SITUATION. Once you’ve found a support system to talk to, ask questions to unpack the situation. Allison advises looking at questions like, “what are the hours looking like?

What’s causing the heaviness? What needs to happen? What can be brought in or introduced? What’s going to help rejuvenate? What can be an energizing piece to add in?”

Of course, it sounds obvious to take a break if you’re overworked. This can sometimes be easier said than done. But a break could be the best solution for an overworked lawyer. This could look like a vacation (without constantly checking your email), or it might mean taking a temporary leave of absence. Reconnect with your “why.”

Remember when you were fresh on the job and how exciting it felt to be a lawyer? If you don’t, you should.

“Nobody goes to law school because they want to be miserable, “Terry said.

“Many lawyers go for excellent reasons. They want to help others, change the world, and do important work. So, I think it’s critically important to get back in touch with what your initial goals were in the first place, admitting that you’ve really separated from that, and finding your way back to your initial motivations.”

C. MAKE A PLAN Just as your law practice has a business plan to help it succeed, it is recommended to make a personal plan for thriving to help guide you away from burnout.

“What are the things that give you energy, and what are the things that engage you deeply? And how can you ensure that these are part of every single day and that they’re a bigger part than the energy drains and the energy sucks? And structure this, build a plan around it, make this [plan].”

STAY OFF SOCIAL MEDIA! Don’t engage with cowardly big mouths who hide behind their computer screen to rant and attack you. It’s a waste of your valuable time and energy.

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This could look like switching practice areas, practicing law part-time, on a freelance or contract basis, or something outside of law altogether.

X. STATE BAR OF TEXAS RESOURCES Learn about the life-saving services of the Texas Lawyers’ Assistance Program through these inspirational videos. TLAP helps lawyers, judges, and law students whose professional performance is impaired because of substance abuse, dependency, or mental health issues. All communication with TLAP is confidential by statute. Seek help now by calling 1-800-343-8527. https://www.texasbar.com/AM/Template.cfm?Section=Texas_Lawyers_Assistance_ Program1&ContentID=37222&Template=/CM/HTMLDisplay.cfm#imposter

THE TEXAS LAWYERS’ ASSISTANCE PROGRAM Provides confidential help for lawyers, law students, and judges who have problems with substance abuse and/or mental health issues. TLAP’s experienced and professional staff are available by phone and email to answer your questions about substance abuse, mental health, and wellness issues.

You can call us any time at (800) 343-8527. By statute, all communications are confidential. (Read more about our confidentiality.)

TLAP SERVICES INCLUDE: • Confidential Support and Referrals • Peer Assistance

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• Self-Help Information • Volunteer Opportunities • Customized CLE and Education Without help, substance abuse and mental illness are both chronic health conditions that worsen over time. If you are suffering or a lawyer, law student, or judge you know needs help, please call TLAP for confidential guidance and support at 1(800)343-TLAP(8527).

TLAP The Texas Lawyers’ Assistance Program provides confidential help for lawyers, law students, and judges with substance abuse problems and/or mental health issues.

TLAP’s experienced and professional staff are available by phone and email to answer your questions about substance abuse, mental health, and wellness issues.

You can call us any time at (800) 343-8527. By statute, all communications are confidential.

TLAP SERVICES INCLUDE: • Confidential Support and Referrals • Peer Assistance • Self-Help Information • Volunteer Opportunities • Customized CLE and Education Without help, substance abuse and mental illness are both chronic health conditions that worsen over time. If you are suffering or a lawyer, law student, or judge you know needs help, please call TLAP for confidential guidance and support at 1(800)343-TLAP(8527).

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25 Things I Wish I Learned in Law School

lawpay.com 866-376-0950

Foreword Being a lawyer is inherently stressful, and the first few years of practicing law are arguably the most anxiety-inducing periods of your life (aside from 1L finals and the bar exam). As you enter the real world, you’ll learn very quickly that law school did not teach you how to actually practice law. It becomes a matter of survival and avoiding committing malpractice at every turn during your baby attorney years.

But rest easy! Practicing law doesn’t have to be as terrifying as it seems. Below are some practical tips gathered from seasoned attorneys across the country from their years of experience (that they wished they’d learned in law school).

Table of Contents

LawPay

3

Practice

4

Clients

5

Billing and Time Entry

6

Ethics

7

Professional Development

25 Things I Wish I Learned in Law School | 2

Practice When you graduate from law school, you may have no idea how to work a case. The first year of a legal practice is full of self-doubt and uncertainty, but fear not! Here are some tips to help get you through your formative legal years.

1. Learn how to work a case from start to finish. From drafting a petition, filing, getting it served, actually trying the case, and closing out the file, you need to know how to work an entire file without any help or support. This usually means sitting with a senior paralegal and observing, asking as many questions as possible.

2. Your client’s problems are not your problems. It is easy to become emotionally invested in a case, especially in your first year of practice. To preserve your sanity, you need to divorce yourself from the emotions of the case. Just because your client is going through a tough time does not mean you need to, as well.

3. Confirm everything, with everyone, via email. Did a partner give you a deadline for a project? Confirm it via email. Did opposing counsel confer with you over the phone about a discovery deadline? Confirm it via email. Email is your best friend, and will save you from many future headaches when people try to dispute events.

4. Familiarize yourself with the most common objections and exceptions to

hearsay. Actually trying a case in a courtroom is an anxiety-riddled adventure. You can make it a lot easier on yourself by memorizing the most common objections and exceptions to hearsay. Objection, non-responsive, and the hearsay exception of admission by the opposing party will become powerful tools in your kit.

5. Every court has local rules - learn them. Don’t rely on the paralegals to know every rule of every court. Ultimately, it is your bar card on the line, and you bear the responsibility of blowing an arbitrary deadline imposed by the court.

LawPay

25 Things I Wish I Learned in Law School | 3

Clients A pain point for many attorneys, client relationships are both the lifeblood of the practice but also a source of constant anxiety. The ability to manage these relationships is crucial for your practice and your sanity. Here is some advice on how to maintain these relationships.

1. Don’t ever assume that your client is an angel. Clients come to you because they have a problem, which means they want you on their side when they tell you their story. Be skeptical about everything, including your client’s story.

2. Clients will lie, even if they don’t mean to. Even the most trustworthy and responsible members of the community will become embarrassed when recounting things for their attorney. This means they might embellish the truth or omit certain relevant details in their talks with you. Have patience and ask many questions.

3. Never be the third attorney on a case unless one of the prior attorneys

is dead or incapacitated. Be wary of potential clients who have been through multiple attorneys, especially if the attorneys are ones whom you respect. These clients are rarely worth the hassle.

4. Know when to fire a client. As a baby attorney, it is easy to become emotionally invested in a case, which means you may overlook things like unpaid invoices.

Sometimes, you stay on a case that isn’t paying because you need the experience, and that’s fine. But for any other case, fire that client immediately when they fail to pay their invoice.

5. Do NOT give clients your personal cell phone number. Ever. Once you give that out, your clients WILL abuse it and you WILL be sorry. Never do it - there is VOIP technology for this.

LawPay

25 Things I Wish I Learned in Law School | 4

Billing and Time Entry Ah yes, the banes of legal existence—time entry and billing. This is how you get paid.

Want to become the favorite attorney in your office? Enter your time daily, stay up to date with your billing, and follow these tips: 1. Become comfortable talking about money. It’s inherently awkward to finish a phone call with a client by saying they owe money. But it’s money that they are obligated to pay and you do not work for free.

2. Properly capture your time. Do not wait until the end of the day, week, or month to input your hours. You will forget a large chunk of time. Instead, keep a spreadsheet open all day and track it as you go.

3. Follow up on unpaid invoices. You should know, at any given time, if any of your clients owe you money. If they have not paid their invoice, you should personally be following up with each non-paying client.

4. Utilize evergreen retainers. An evergreen retainer is used for when a client dips below a certain percentage of their original retainer. Once that percentage is triggered, the client is obligated to replenish their retainer up to the original amount. It’s always better to work against money in trust rather than try to chase after it post-invoice.

5. Make it easy for clients to pay you. Put a link in your email signature block that gives your client a way to pay you online. Don’t wait for a “check in the mail” or similar excuse. Have them put it on a credit card and be done with it so that you can continue your work, uninterrupted.

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25 Things I Wish I Learned in Law School | 5

Ethics A cornerstone of the profession, ethics and professionalism are oft-touted but can also be hard to navigate. Here are some tips that will hopefully help you avoid possible grievances and future ethical issues.

1. Never speak in absolutes. Many times, clients want you to make snap judgments.

But in many cases, you will not have all of the information. Your answer to a lot of questions will always be “it depends.”

2. Always Google your potential client, the opposing party, and your opposing counsel for every single case. Sometimes, you find gems like discovering your opposing counsel’s bar license has been suspended and they should not be practicing. Do your research.

3. Does a document bear your signature? Then you need to be the one reviewing it. Some attorneys grow complacent and allow their paralegal or associate to sign their name on pleadings and motions. Do NOT do this. Your bar card is on the line.

You should be reviewing every single word in that document.

4. You do not have to take that case. As mentioned above, if the client has been through multiple attorneys, or if they knowingly lie to you, do not take the case.

Even if you think you need the money or experience, don’t do it. These are the types of clients that pose many ethical dilemmas the minute you come onto the case.

5. Trust your gut. If something sounds fishy, talk to a senior associate or partner about it. Tell opposing counsel you can’t agree to something until you speak to the lead associate on the case.

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25 Things I Wish I Learned in Law School | 6

Professional Development After a full day at the office, the last thing you want to think about is networking.

However, it is vital you do this, as it will pay off in dividends. Here are some tips to help you get started: 1. Find a mentor as soon as possible. Can’t find one at your firm? Join your local Inn of Court. You need to be able to get advice from someone who has seen it all in your field.

2. Always have a pen and paper with you. You never know when an attorney is going to give you invaluable advice at a luncheon, or a court clerk is trying to give you the direct line to the court coordinator. Always have something on hand with which to take notes.

3. Carry business cards on your person at all times. Even though you are a brand new attorney, you will need business cards to network. You will be surprised at how many people ask for them, whether they are a member of the legal community or the general public.

4. Be courteous to court clerks and secretaries. These people in particular can make your life miserable. It should go without saying you should be nice to them, even if they do not treat you with the same sentiment.

5. Attend as many networking events as possible in your first few years. On top of working 10 hour days and being constantly stressed, you really do need to make every effort to network within your community. Go to the happy hour, make an appearance at that judicial fundraiser. People will start to recognize you.

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25 Things I Wish I Learned in Law School | 7

Conclusion Pressure and drama go hand-in-hand with the practice of law, especially for your first few years. However, by utilizing some of the tips outlined above, you can hopefully alleviate stress and become a better attorney in the process.

Just remember—every attorney goes through this period in their legal practice. Have grace with yourself, and remember that you are not alone.

About LawPay LawPay was developed specifically to provide a sophisticated payment solution for legal professionals. The LawPay platform contractually protects your client funds, correctly separating earned and unearned fees and by restricting the ability of any third-party from debiting monies from a Trust or IOLTA account. LawPay is available through all 50 state bars and the ABA Advantage program as a vetted and approved payment solution for the legal industry. Learn more about how LawPay can help your firm at lawpay.com.

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Texas Criminal Defense Lawyers Association

Journey to Justice

September 9, 2022 Omni Corpus Christi Hotel 900 N Shoreline Blvd.

Corpus Christi, TX 78401

Topic: Remembering Why We are on the Journey | Client Relationships & Communications Speaker:

Alex Fuller

2150 S. Central Expy.

Ste 200 McKinney, TX 75070 (972) 905-0572 Phone (214) 556-3612 Fax afuller@afullerlaw.com Email www.afullerlaw.com Website

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

Client Communication in the Digital Age

Prepared by: H. Alex Fuller THE LAW OFFICE OF H. ALEX FULLER, PLLC 2150 S. Central Expy, Ste. 200 McKinney, TX 75070 Telephone: (972) 905-0572 Facsimile: (214) 556-3612 afuller@afullerlaw.com

Introduction We are professionals, and our profession is communicating. We went to school and trained in how to present our ideas clearly and persuasively. So, as one of my old bosses loved to say, “We are the communicators, so any miscommunication with the client is your fault!” That always seemed suspect to me, he was right that the person responsible for communications isn’t the client, it’s us: “A lawyer should maintain communication with a client concerning the representation.” Tex. Rules Disciplinary P. Preamble § 3.

To avoid miscommunications, we must remember at all times who our audience is, what we have to communicate, when to do it, and how to effectively get our point across. The keys to successful client communication are (1) communicating with the right person, (2) building rapport with the client, (3) prompt and clear communication of important information, and (4) remembering why we are communicating in the first place.

Who am I communicating with?

First, the client. You must communicate with the client! “A lawyer

shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”

Tex. Rules Disciplinary P. R. 1.03(a) (emphasis added).

As always in the legal field, the word “reasonable” does a lot of heavy lifting. Obviously, you should update a client as soon as possible about major events in their cases, such as plea offers or new discovery or Brady notices that change your litigation strategy or that could change their objectives.

For most cases when not much is happening for weeks or months at a time, a good rule of thumb for most clients is to update them about their case monthly. For many clients, that is easy – we see them in docket and can give them an update then. But if you’re retained soon after an arrest, or if your courts don’t require the clients to appear at every setting, many clients will get antsy if they don’t hear from you every month. For them, a monthly email can help calm their nerves. Scheduling those emails also lets you follow up to make sure they are pursuing their mitigation strategies, not smoking the devil’s lettuce, or otherwise complying with their bond conditions. I like

setting aside the last Friday afternoon of the month for client updates.

Of course, there are always those clients who are incredibly, unbelievably anxious and need a lot of hand-holding. For these clients, setting expectations early and then maintaining those expectations are key to a good relationship. Your engagement agreement can and should tell them how and how often they can contact you.

Second, the prosecutor. You must communicate with the prosecutor!

You can’t keep your client fully informed about his case unless you have the latest discovery, Brady disclosures, and CW contact notes from the State. And, if the client chooses to take a plea, failing to inform the State is ineffective assistance of counsel – see “Plea Bargains”, below.

Third, non-clients! Well, if you want to stay in business, that is. Unless you’re the rare, lucky lawyer whose business is all word-of-mouth, you will be constantly communicating to the public in the form of advertising.

And you have some responsibilities here, too. Section IIV of the Disciplinary Rules governs communications about your services, advertisements, and solicitations.

You are prohibited from making “false or misleading communication[s] about the qualifications or services of a lawyer or law firm. Information about legal services must be truthful and nondeceptive.”

Tex. Rules Disciplinary P. R. 7.01(a). Note that your communications and advertisements may be truthful but still misleading if they create unjustified expectations. For example, if you tell a prospective client that you win 75% of your cases, but don’t tell them you’ve only tried four cases in four years because those were the only ones with facts you could win, you may be misleading them.

The Disciplinary Rules apply to all communications with prospective clients, including advertising. The advertising rules are complex, too much so to go into here other than to note that the best way to avoid grievances and disciplinary action related to advertisements is to presubmit your advertisements to the State Bar Advertising Review

Committee.1 The review costs $100 per advertisement, but a finding that your ad is in compliance with the Rules is binding in a later disciplinary proceeding.

How do I communicate with them?

“How” we communicate with clients includes both the mechanical processes we use to communicate and the human interaction between us. The mechanical bit is the easy part.

The means and methods of communicating Mechanically, the best method I have found for dealing with clients is…staff! Good staff provide an incredibly important buffer between the attorney and our frequent caller clients. But staff aren’t always available or affordable. Technology can help cut down on unnecessary client interaction and improve the quality of the necessary communications.

In my experience, clients overwhelmingly prefer texting for routine communications, and 1

https://www.texasbar.com/Content/NavigationMenu/ForLawyers/GrievanceandEthics/AdvertisingReview/default.htm

telephone calls when they need immediate reassurance. The problem with that from our end is that an attorney who answers every text and every call from needy clients will quickly become overwhelmed, burned-out, and unable to perform actual legal work.

One way to satisfy the clients’ urge to text is to use a desktop-based texting system. I have used Google Voice. Google Voice is tied to my Google business account. It serves as my main office number that I can redirect to any other phone, and clients can text it! The texts are sent to my email inbox, and my responses are sent to the clients as texts.

More recently I have been using a client portal as part of my case management software. I require clients to use the portal for routine communication. They would prefer texting, but I have had surprisingly little push-back on the portal. The portal allows me to keep all of our communications and document exchanges in one place. If a client needs a phone conference, I ask them to request one through the portal. When clients call, text, or

email instead of using the portal, a gentle reminder usually gets them back on track.

Finally, for difficult clients never underestimate the power of a CYA letter. If a client insists on pursuing a foolhardy objective, or refuses to accept a very favorable plea deal, make sure to put it in writing and send it to the client via mail, email, or client portal – just make sure they get it! If they still persist on making their terrible decision, you can ask them on the record whether or not they got your advice and understood it, all without divulging the contents of your communications.

As for the human side – this is something we all struggle with.

There are some people we just “click” with, and some we do not, and there are some we just can’t reach. But there are techniques for reaching across a communication chasm. I intentionally try to make use of validation, code-switching/mirroring, and finding common ground.

Validation is a technique especially helpful in building a relationship with a difficult or non-trusting 2

https://www.psychologytoday.com/us/blog/pieces-

client.2 In short, validation involves actively listening to the client, accurately repeating their concerns back to them, actually understanding their point of view in light of their circumstances, and giving the client permission to feel the way they do. A client who feels heard is a client who can then rationally deal with their situation.

Example: I was appointed to a “problem client”. The client was on five years deferred adjudication for a first-degree felony, and was revoked for picking up multiple new charges. The State offered to continue the client on deferred with no new conditions and no extension of time in exchange for a plea to a technical violation. The client refused, said he wasn’t guilty in the first place, and wanted to “take the case to the Supreme Court.” My first two sessions with the client went nowhere. On the third session, I sat with the client in a conference room and asked him how he felt about his original plea deal.

The client spent thirty minutes complaining about his trial attorney and how unjust the process was. I “validated” his anger by listening to him and telling him that I would be angry in his position too. It was only mind/201204/understanding-validationway-communicate-acceptance

after he was able to get his anger off of his chest that he was able to hear my advice that taking the State’s offer was the right thing to do.

not talk down to the client. Not much is more toxic to building client trust than inauthenticity. Not much irritates clients more than being treated like they are stupid.

Mirroring is a technique that, to a degree, allows you to form a rapport by subtly mimicking the client’s speech patterns or behavior.3 Is the client formal? Informal? Do they want to engage in small talk or get down to business? Does the client want to focus on how to solve their problems, or does the client want to discuss how their case makes them feel?

The best method I have found for establishing a good attorney-client rapport is establishing common ground, or a human connection with the client. No matter their color, gender, race, or ethnic background, every client is concerned about their case and wants you to show that you are concerned about it too. Every client has a story, a parent, a child, a hope, a fear, something in common with you, if you can just tease it out.

Code-switching is a related technique that for our purposes can be defined as shifting or manipulating your language or behavior to appeal to different audiences. We do this constantly, often without even realizing it. For example, when I am talking in my office with the rector of the local church, I will use formal, mannered language. When talking with a gang member in the local jail, I might throw in a cuss word or two and speak informally. When talking to a good-ol’-boy, I might let my country accent come out a bit. It is vitally important that you use these techniques subtly, and that you do 3

https://www.psychologytoday.com/us/blog/how-dolife/202110/the-power-mirroring

Example: I was referred a juvenile case for a young African-American boy. At the initial meeting his parents told me about son’s incredible achievements at a very young age, all, they thought, now in peril because of a first-degree felony case.

At one point during the meeting, his mother turned to me and asked, “Do you know what it’s like, being the mother of a young black man today? Do you know how I feel about this situation.” The only answer, I thought was the truth: “No,” I said. “I don’t. I don’t know

anything about being black, or a mother, or being a black mother today. But I do have children, and I do know what it is like to desperately love them. And I know what it is like to see their wide-open universe of opportunity shrink, and I know how much that hurts. So I think I do know what you’re feeling right now. And I will do everything I can to help your son move past that and get back on track to keep achieving those things we know he is capable of.” What I said was sincere, and that sincerity landed the client.

Do’s for building client confidence: 1. Validate their feelings 2. Mirror their language patterns 3. Relate to them on a human level Don’t: 1. Talk up/down to the client 2. Try on an accent you didn’t grow up with 3. Be inauthentic 4

Tex. Rules Disciplinary P. R 1.03(b).

Tex. Rules Disciplinary P. R. 1.02 Cmt. 1.

6 Tex. Rules Disciplinary P. R. 1.02: “(a) Subject to paragraphs (b), (c), (d), (e), and (f), a lawyer shall abide by a client's decisions…(3) In a criminal case, after 5

What do we have to talk about?

We must give our clients enough information to to allow them to decide how to resolve their cases.

“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”4 The client gets to choose the objective, and also has the right to “consult” with the lawyer about the means to achieve them.5 The lawyer, however, is ultimately responsible for the means to achieve them, and has “very broad discretion to determine technical and legal tactics” to achieve the client’s goals. At the end of the day, in criminal cases our clients alone get to make four decisions: (1) whether to plead guilty or not guilty, (2) whether to waive a jury or not, (3) whether to testify, and (4) whether to admit guilt or not.6 Everything else is our responsibility – but a smart lawyer will involve the client consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.”

See also McCoy v. Louisiana, 138 S. Ct. 1500 (2018).

in tactical decision making, both to keep the client happy and because the clients often know their case better than we do – after all, they lived it. Especially in assault cases, having the client deeply involved in trial tactics and strategic planning can open up doors to witnesses and information a lawyer can’t glean from state-sponsored discovery.

So what do we need to tell the clients? The Comments to Disciplinary Rule 1.03 help us. Comment 1 says that we must give the client “sufficient information to participate intelligently in decisions” about their objectives and the means to achieve them, IF the client is willing and able to do so.7 Comment 2 clarifies that while in litigation the client should be kept informed of general strategy, the lawyer generally isn’t required to describe trial or negotiation strategy in detail.8 The lawyer should provide information appropriate for a comprehending and reasonable adult, but if the client is a child or suffers from diminished capacity, the lawyer should try to maintain “reasonable 7

Tex. Rules Disciplinary P. R 1.03, Cmt. 1.

8 Id. at Cmt. 2.

9 Id., Cmts. 3, 5.

10 Id., Cmt. 4.

11 Id.

communication” and provide the information appropriate for their ability.9 But what if your client isn’t ready to hear what you have to say? What if they are psychologically unstable and a bad update may push them over the edge? Rule 1.03 has you covered. If you reasonably believe that your client would “imprudently react” to an immediate communication, you are justified in withholding that information.10 You are also justified in withholding information if you’re prohibited by law or court order from doing so – a common occurrence under the Art. 39.14 discovery regime.11 Plea Bargains If there is one thing you absolutely must communicate to a client, it’s a plea offer and the deadline to accept or reject it. “Failure of defense counsel to inform a criminal defendant of plea offers made by the State is an omission that falls below an objective standard of reasonableness.”12. This includes an obligation to fully advise the client of 12

Turner v. State, 49 S.W.3d 461, 464 (Tex. App.—Fort Worth 2001), citing Ex parte Lemke, 13 S.W.3d 791, 795 (Tex. Crim. App. 2000); Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993)

the terms and desirability of the plea offer, as well as any deadline.

As previously noted, you must also communicate a client’s acceptance of a deal to the State, and not doing it promptly renders you ineffective.

“Just as a defense attorney has an obligation to fully advise his client of the terms and desirability of a plea bargain extended by the State, we hold that he also has a concomitant obligation to communicate the acceptance of such plea bargain to the State.” Flores v.

State, 784 S.W.2d 579, 581 (Tex. App.—Fort Worth 1990)13.

Is there an exception? What if the client already told you they are innocent and not willing to accept any deal? Yes! “Except where prior communications have made it clear that a particular proposal would be unacceptable to the client, a lawyer is obligated to communicate any [plea bargain] to the client…”.14 But honestly, do you want to take that chance?

dispute between her and her husband. In the car he has a Glock with a 50-round drum magazine, a ski mask, and 2 grams of meth. He is charged with Unlawful Possession Firearm by Felon and PCS Pg 1 14g, both enhanced to 2nd degree felonies. Client say he will do 5 years and won’t accept anything more. The State offers 18. You set the case for trial and before the pretrial the State offers 10 years. You would be justified under the Rules in not tendering the offer. But you do, and the Client ends up taking it.

It is always best practice to communicate the offer, in writing if necessary.

In summary, at a minimum you need to talk to the client about their objectives and how to achieve them, and then provide them enough information to make informed decisions about what plea to enter, whether to go to trial or take a deal, whether they should testify, and whether or not to admit guilt at trial.

Example 1: Client, a repeat felon, is pulled over on the way to his girlfriend’s house to settle a domestic

When do I have to communicate with them?

13

CODE OF PROFESSIONAL RESPONSIBILITY EC 7-7, EC 7-8 (1988) 14 Tex. Rules Disciplinary P. R. 1.02, Cmt 2.

citing Ex parte Wilson, 724 S.W. 2d 72 (Tex.Crim.App. 1987); Pennington v.

State, 768 S.W.2d 740 (Tex. App.--Tyler 1988, no writ); STATE BAR OF TEXAS, ETHICAL CONSIDERATIONS ON

You are required to keep the client “reasonably informed” of their matter’s status and “promptly comply” with “reasonable” requests for information.15 This is all very case specific. As an example, in an appellate case my incarcerated client requested an update on his matter months after I filed his brief along with a copy of the appellate record.

I sent the client a letter along with a copy of the brief, apologized for the delay in sending it, and told him I would send him the paper copy of the record as soon as I was finished with the reply brief. Furious that I had not made his requested futile and frivolous appellate arguments, the client filed a grievance claiming I did not adequately communicate with him, listen to his desires, or send him the brief and record in a timely manner. The grievance was dismissed as an inquiry.

What about when the case is over?

You still have obligations. Ethics Opinions 570 and 657 are clear that your files belong to your clients, and everything in those files must be turned over to them upon request, with certain exceptions.

This includes your notes and correspondence! None of it is yours, all of it is the client’s. Well, almost all.

You are, for example, forbidden 15

Tex. Rules Disciplinary P. R. 1.03(a)

from turning over discovery received from the State under Article 39.14. You are further prohibited from turning over information that is otherwise confidential or protected, such as information protected by court order (i.e. CPS records) and information about jurors. Finally, as noted above, you are permitted to withhold information from a client if you believe it may harm them or cause them to act imprudently.

Ok, but how do you have to produce the file and, most importantly, who pays for it? Ethics Opinion 657 gives us the answer. You may produce it in the format you keep it, and you can make it available at your office for pick-up. If you have a paper file and want to keep a copy, you have to pay for that copy.

However, the client must pay for you to deliver it to them. While you may produce the file in the format you kept it, if any portion of the file is kept in a software format that is not “reasonably accessible” to the client, you must pay to have it transformed into a format the client can open.

Why do I have to communicate with them at all? After all, the practice of law would be great if it wasn’t for the clients.

Yes, yes, that’s partly true. It’s certainly been true for me on one or two dark days. And if you’re having one of those days, try to communicate with your clients out of selfpreservation.16 The most frequently sanctioned misconduct is lack of communication with the client.

Don’t be one of the lawyers in the back of the Texas Bar Journal. Talk to your clients.

But of course the real reason we got into this business in the first place, and the real reason we exist as a profession, is to help people through the minefield of the law, to protect their God-given and Constitutional rights, and, every so often, to be a guardian of justice for the wrongfully accused. Our clients, guilty or not, are scared, confused, anxious, and worried about what might be the most important thing that will ever happen to them. Don’t make their situation worse – help them through it by keeping your lines of communication open and honest.

16

https://www.voiceforthedefenseonline.com/ethics-and-the-law-apeek-behind-the-curtain-the-tx-attorney-

grievance-process-in-a-nutshell/, accessed on August 14, 2022.

PRACTICE TIPS 1. Listen to clients and validate their feelings.

2. Subtly use psychological techniques (such as mirroring) to build rapport.

3. Make sure to be authentic and sincere, especially when mirroring or code-switching.

4. Use your engagement agreement to set expectations and manage goals.

5. Use technology to moderate client communications.

6. Inform clients of major updates in their case that could change their objectives.

7. Always promptly communicate plea offers and their deadlines.

8. If in doubt, put it in writing!

Opinion Number 570 May 2006 QUESTION PRESENTED Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer refuse a former client's request to disclose or turn over the lawyer's notes made in the course of and in furtherance of his representation of the client?

STATEMENT OF FACTS A former client of a lawyer has demanded to see the lawyer's file on the representation of the client. The lawyer has previously provided copies of most of the file to the former client but has withheld copies of the lawyer's notes created during the representation of the client. The lawyer is not claiming a lawyer's lien or other similar right over the notes.

DISCUSSION Although no lawyer's lien is asserted in this case, the issue here considered has arisen in the past primarily in cases in which the lawyer was asserting such a lien. In the context of cases concerning a lawyer's lien, this Committee has distinguished between matters of legal ethics and matters of law. Specifically, prior Professional Ethics Committee Opinions have recognized that a lawyer is permitted to retain a client file pursuant to a proper legal claim so long as doing so will not prejudice the client in the subject matter of the representation. See e.g. Opinion 411 (January 1984) and Opinion 395 (May 1979, modified March 1980).

It is also important to note that a lawyer's file may contain many different types of documents or records created by the lawyer, documents obtained from the client, documents obtained from third persons, pleadings, court orders and contracts. A lawyer's ethical obligations may vary depending on the type, source, or content of the document and other relevant factors. This opinion is limited to a consideration of the issue with respect to notes created by a lawyer, and this opinion does not address the issue with respect to other types of documents or information contained in a lawyer's file.

Rule 1.14(b) of the Texas Disciplinary Rules of Professional Conduct provides that "[e]xcept as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client ... any funds or other property that the client ... is entitled to receive ...." In Hebisen v. State, 615 S.W. 2d 866 (Tex. App. Houston [1st Dist.] 1981, no writ), the court interpreted the meaning of the predecessor of current Rule 1.14(b), holding that the term "other properties" included the client's papers and other documents that the lawyer had in his file. 615 S.W.2d at 868.

Rule 1.15(d) provides as follows:

"(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."

Read 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.

In In re George, 28 S.W.3d 511 (Tex. 2000), the Court ruled on the issue of whether the work product of disqualified counsel should be made available to the disqualified counsel's client and successor counsel. The Court struggled with the conflict between the client's right to access work product and the interest in preserving the purposes of the underlying disqualification by restricting access to the tainted work product. In the course of its analysis, the Court noted that "[t]he attorney is the agent of the client, and the work product generated by the attorney in representing the client belongs to the client." 28 S.W.3d at 516, citing Rule 1.15(d) and the opinion in Hebisen v. State, discussed above.

In Occidental Chemical Corp. v. Banales, 907 S.W.2d 488, 490 (Tex. 1995), the Texas Supreme Court described the work product privilege: "First, the privilege protects the attorney's thought process, which includes strategy decisions and issue formulation, and notes or writings evincing those mental processes.

Second, the privilege protects the mechanical compilation of information to the extent such compilation reveals the attorney's thought processes." 907 S.W.2d at 490.

Work product has been subsequently defined in Rule 192.5(a) of the Texas Rules of Civil Procedure as follows: "(a) Work product defined. Work product comprises: (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents: or (2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents."

In Resolution Trust Corporation v. H ___, P.C., 128 F.R.D. 647 (N.D. Tex. 1989), the court considered the issue of the ownership of files generated by a law firm during its representation of a client and determined that the entire contents of the law firm's files concerning the representation of the client belonged to the client and ordered the law firm to turn over the entire contents of the firm's files, including work product generated by the lawyer such as notes and legal memoranda. In reaching this decision the court considered the predecessor to current Rule 1.14(b), this Committee's Opinion 395 (May 1979, modified March 1980), Hebisen v. Texas, 615 S.W. 2d 866 (discussed above), and Matter of Kaleidoscope, Inc., 15 Bankr. 232 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 Bankr. 729 (D.C. Ga. 1982). The court considered and rejected arguments

that the files did not have to be turned over when there were allegations of misconduct by the lawyer or because the documents contained information that was attorney-client privileged or work product (including documents produced in anticipation of litigation with the client).

Restatement (Third) of The Law Governing Lawyers (American Law Institute 2000) (the "Restatement") Section 46 addresses a lawyer's duty to provide to the client documents held by the lawyer. A portion of the discussion in Comment c to Section 46 of the Restatement recognizes circumstances that Texas courts have not recognized but that some courts in other jurisdictions have found would justify not providing a portion of a lawyer's client file to the client: "A lawyer may refuse to disclose to the client certain law-firm documents reasonably intended only for internal review, such as a memorandum discussing which lawyers in the firm should be assigned to a case, whether a lawyer must withdraw because of the client's misconduct, or the firm's possible malpractice liability to the client. The need for lawyers to be able to set down their thoughts privately in order to assure effective and appropriate representation warrants keeping such documents secret from the client involved ....."

In light of the Texas cases discussed above that recognize a strong obligation on Texas lawyers to provide files to clients and in the absence of any Texas court decision recognizing a limitation such as that stated in the Restatement passage quoted above, the Committee is of the opinion that the exception described in the quoted passage for internal law-firm materials relating to a client should not apply in the application of Rules 1.14(b) and 1.15(d). As in all other circumstances, the lawyer is an agent of and in a fiduciary relationship with the client. The Committee recognizes that a lawyer's motivation for withholding his notes from a client may be the result of a temptation to put the lawyer's own interests ahead of those of the client. The Committee believes that allowing a lawyer to unilaterally make a decision to withhold from a client notes relating to the client and created in the course of the representation of the client because the notes may reflect the firm's interests vis-à-vis the client undermines the duties owed by the lawyer to the client. In addition, withholding such notes from a client denies the client the full benefit of the services the lawyer agreed to provide to the client.

However, like the Restatement, 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

discussed above or by other law to retain those documents and can do so without prejudicing the interests of the former client in the subject matter of the representation.

CONCLUSION Under the Texas Disciplinary Rules of Professional Conduct, a lawyer must upon request provide to a former client the notes of the lawyer from the lawyer's file for that former client except when the lawyer has the right to withhold the notes pursuant to a legal right such as a lawyer's lien, when the lawyer is required to withhold the lawyer's notes (or portions thereof) by court order, or when not withholding the notes (or portions thereof) would violate a duty owed to a third person or risk causing serious harm to the client.

THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS Opinion No. 611 September 2011

QUESTION PRESENTED Is it permissible under the Texas Disciplinary Rules of Professional Conduct for a lawyer to include in an employment contract an agreement that the amount initially paid by a client with respect to a matter is a “non-refundable retainer” that includes payment for all the lawyer’s services on the matter up to the time of trial?

STATEMENT OF FACTS A lawyer proposes to enter into an employment agreement with a client providing that the client will pay at the outset an amount denominated a “non-refundable retainer” that will cover all services of the lawyer on the matter up to the time of any trial in the matter. The proposed agreement also states that, if a trial is necessary in the matter, the client will be required to pay additional legal fees for services at and after trial. The lawyer proposes to deposit the client’s initial payment in the lawyer’s operating account.

DISCUSSION Rule 1.04(a) of the Texas Disciplinary Rules of Professional Conduct provides that a lawyer shall not enter an arrangement for an illegal or unconscionable fee and that a fee is unconscionable “if a competent lawyer could not form a reasonable belief that the fee is reasonable.” Rule 1.04(b) sets forth certain factors that may be considered, along with any other relevant factors not specifically listed, in determining the reasonableness of a fee for legal services. In the case of a non-refundable retainer, the factor specified in Rule 1.04(b)(2) is of particular relevance: “the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer . . . .”

Rule 1.14 deals in part with a lawyer’s handling of funds belonging in whole or in part to the client and requires that such funds when held by a lawyer be kept in a “trust” or “escrow” account separate from the lawyer’s operating account.

Two prior opinions of this Committee have addressed the relationship between the rules now embodied in Rules 1.04 and 1.14.

In Professional Ethics Committee Opinion 391 (February 1978), this Committee concluded that an advance fee denominated a “non-refundable retainer” belongs entirely -1-

to the lawyer at the time it is received because the fee is earned at the time the fee is received and therefore the non-refundable retainer may be placed in the lawyer’s operating account. Opinion 391 also concluded that an advance fee that represents payment for services not yet rendered and that is therefore refundable belongs at least in part to the client at the time the funds come into the possession of the lawyer and, therefore, the amount paid must be deposited into a separate trust account to comply with the requirements of what is now Rule 1.14(a). Opinion 391 concluded further that, when a client provides to a lawyer one check that represents both a non-refundable retainer and a refundable advance payment, the entire check should be deposited into a trust account and the funds that represent the non-refundable retainer may then be transferred immediately into the lawyer’s operating account.

This Committee addressed non-refundable retainers again in Opinion 431 (June 1986). Opinion 431 concluded that Opinion 391 remained viable and that non-refundable retainers are not inherently unethical “but must be utilized with caution.” Opinion 431 additionally concluded that Opinion 391 was overruled “to the extent that it states that every retainer designated as non-refundable is earned at the time it is received.” Opinion 431 described a non-refundable retainer (sometimes referred to in Opinion 431 as a “true retainer”) in the following terms: “A true [non-refundable] retainer, however, is not a payment for services. It is an advance fee to secure a lawyer's services, and remunerate him for loss of the opportunity to accept other employment. . . . . If the lawyer can substantiate that other employment will probably be lost by obligating himself to represent the client, then the retainer fee should be deemed earned at the moment it is received. If, however, the client discharges the attorney for cause before any opportunities have been lost, or if the attorney withdraws voluntarily, then the attorney should refund an equitable portion of the retainer.”

Thus a non-refundable retainer (as that term is used in this opinion) is not a payment for services but is rather a payment to secure a lawyer’s services and to compensate him for the loss of opportunities for other employment. See also Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App.-Austin 2007, no pet.).

It is important to note that the Texas Disciplinary Rules of Professional Conduct do not prohibit a lawyer from entering into an agreement with a client that requires the payment of a fixed fee at the beginning of the representation. The Committee also notes that the term “non-refundable retainer,” as commonly used to refer, as in this opinion, to an initial payment solely to secure a lawyer's availability for future services, may be misleading in some circumstances. Opinion 431 recognized in the excerpt quoted above that a retainer solely to secure a lawyer’s future availability, which is fully earned at the time received, would nonetheless have to be refunded at least in part if the lawyer were discharged for cause after receiving the retainer but before he had lost opportunities for other employment or if the lawyer withdrew voluntarily. However, the fact that an amount received by a lawyer as a true non-refundable retainer may later in certain -2-

unusual circumstances have to be at least partially refunded does not negate the fact that such amount has been earned and under the Texas Disciplinary Rules may be deposited in the lawyer’s operating account rather than being subject to a requirement that the amount must be held in a trust or escrow account.

In view of Opinions 391 and 431, the result in this case is clear. A legal fee relating to future services is a non-refundable retainer at the time received only if the fee in its entirety is a reasonable fee to secure the availability of a lawyer’s future services and compensate the lawyer for the preclusion of other employment that results from the acceptance of employment for the client. A non-refundable retainer meeting this standard and agreed to by the client is earned at the time it is received and may be deposited in the lawyer’s operating account. However, any payment for services not yet completed does not meet the strict requirements for a non-refundable retainer (as that term is used in this opinion) and must be deposited in the lawyer’s trust or escrow account. Consequently, it is a violation of the Texas Disciplinary Rules of Professional Conduct for a lawyer to agree with a client that a fee is non-refundable upon receipt, whether or not it is designated a “non-refundable retainer,” if that fee is not in its entirety a reasonable fee solely for the lawyer’s agreement to accept employment in the matter. A lawyer is not permitted to enter into an agreement with a client for a payment that is denominated a “non-refundable retainer” but that includes payment for the provision of future legal services rather than solely for the availability of future services. Such a fee arrangement would not be reasonable under Rule 1.04(a) and (b), and placing the entire payment, which has not been fully earned, in a lawyer’s operating account would violate the requirements of Rule 1.14 to keep funds in a separate trust or escrow account when funds have been received from a client but have not yet been earned.

When considering these issues it is important to keep in mind the purposes behind Rule 1.14. Segregating a client’s funds into a trust or escrow account rather than placing the funds in a lawyer’s operating account will not protect a client from a lawyer who for whatever reason determines intentionally to misuse a client’s funds. Segregating the client’s funds in a trust or escrow account may however protect the client’s funds from the lawyer’s creditors in situations where the lawyer’s assets are less than his liabilities and the lawyer’s assets must be liquidated to attempt to satisfy the lawyer’s liabilities. In those situations, client funds in an escrow or trust account may be protected from the reach of the lawyer’s creditors.

Accordingly, if a lawyer proposes to enter into an agreement with a client to receive an appropriate non-refundable retainer meeting the requirements for such a retainer and also to receive an advance payment for future services (regardless of whether the amount for future services is determined on a time basis, a fixed fee basis, or some other basis appropriate in the circumstances), the non-refundable retainer must be treated separately from the advance payment for services. Only the payment meeting the requirements for a true non-refundable retainer may be so denominated in the agreement with the client and deposited in the lawyer’s operating account. Any advance payment amount not meeting the requirements for a non-refundable retainer must be deposited in a

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trust or escrow account from which amounts may be transferred to the lawyer’s operating account only when earned under the terms of the agreement with the client.

CONCLUSION It is not permissible under the Texas Disciplinary Rules of Professional Conduct for a lawyer to include in an employment contract an agreement that the amount paid by a client with respect to a matter is a “non-refundable retainer” if that amount includes payment for the lawyer’s services on the matter up to the time of trial.

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THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS Opinion No. 627 April 2013 QUESTION PRESENTED Under the Texas Disciplinary Rules of Professional Conduct, what are the responsibilities of a law firm for preserving or disposing of files of a former client after the lawyer who represented the former client leaves the firm?

STATEMENT OF FACTS Lawyer A is a Texas lawyer who was a member of Law Firm X for several years. During his time at Law Firm X, Lawyer A represented many clients, including some who later ceased to be clients of Lawyer A and Law Firm X. When Lawyer A left Law Firm X to become a member of Law Firm Y, Lawyer A’s existing clients instructed Law Firm X to transfer their open files to Law Firm Y and these files were transferred. The closed files of Lawyer A’s clients and former clients remained with Law Firm X in storage along with Law Firm X’s other closed files.

Under Law Firm X’s record retention policy, files are scheduled for destruction five years after being closed. Law Firm X notified Lawyer A of its plan to destroy such files of Lawyer A’s clients and former clients. Lawyer A informed Law Firm X that he did not want those files and that he wanted no responsibility for maintaining or destroying those files.

Law Firm X then contacted Lawyer A’s former clients to inquire whether they wanted their closed files returned to them. In most cases, those former clients responded that they did not want their closed files and that they would not be responsible for storing or disposing of them. Some of Lawyer A’s former clients, however, requested that Law Firm X review the closed files to determine whether the files contained any “important papers” that should be retained. Conducting such a review would be expensive for Law Firm X, especially because Law Firm X, unlike Lawyer A, is not familiar with the contents of the files, making it difficult for Law Firm X to evaluate whether any of the contents are potentially “important.”

DISCUSSION At the outset it must be recognized that there are no specific provisions of the Texas Disciplinary Rules of Professional Conduct that provide detailed guidance for the question considered in this opinion. The Texas Disciplinary Rules contain specific governing rules on many subjects important in the proper conduct of the practice of law in Texas–for example, protecting client confidences, conflicts of interest, solicitation of legal business, and lawyer -1-

advertising. But, with few exceptions, the Texas Disciplinary Rules themselves do not specifically set out requirements or prohibitions with respect to the stored files relating to a lawyer’s past representation of clients. The only exception relates to the continuing requirements set forth in Rule 1.05(b)(1) and (3) to protect confidential information relating to a former client against disclosure and adverse use against the former client.

Another possible source of guidance in the Texas Disciplinary Rules are rules governing the handling of clients’ money and other property (Rule 1.14) and the handling of a client’s files when a lawyer’s representation of the client in the matter terminates (Rule 1.15(d)). Rule 1.14 of the Texas Disciplinary Rules of Professional Conduct, entitled “Safekeeping Property,” provides in full as follows: “(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 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 other 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.”

Rule 1.15(d) provides as follows: “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 -2-

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.”

The committees of other states that deal with questions of professional ethics of lawyers are split as to whether the equivalent of Texas Disciplinary Rules 1.14 and 1.15(d) provide specific guidance for a lawyer’s handling of closed client files. See Louisiana State Bar Association Rules of Professional Conduct Committee Public Opinion 06-RPCC-008 (2006) (Louisiana rules, which include provisions similar to Texas Rule 1.14, do not contain any specific provisions dealing with the retention of client files); Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility Formal Opinion 2007-100 (2007) (provisions equivalent to Texas Rule 1.14 do not directly apply to the complete client file); Illinois State Bar Association Advisory Opinion on Professional Conduct No. 95-2 (1995) (the equivalent of Texas Rule 1.14(b) applies to closed client files); and Alabama Ethics Opinion 2010-02 (2010) (applying the equivalent of Texas Rule 1.14 to closed client files). Although the committees in other states differ as to whether the detailed provisions of the equivalent of Texas Rule 1.14 and Rule 1.15(d) should be treated as applying to closed client files, most or all committees on professional ethics in other states that have considered the issue have made reference to these rules (particularly to part or all of the equivalent of Texas Rule 1.14) for guiding principles on lawyers’ handling and disposition of closed client files.

Although this Committee relied in part upon Rule 1.14(b) and Rule 1.15(d) of the Texas Disciplinary Rules of Professional Conduct in Professional Ethics Committee Opinion 570 (May 2006), which ruled that a lawyer is normally required to turn over files including the lawyer’s notes if requested by a client, the Committee does not believe that Rule 1.14 and Rule 1.15(d) should be interpreted as providing specific, detailed guidance for lawyers with respect to the disposition of closed client files generally. Rule 1.14 does not refer to “files” but does refer to “other property” as part of the phrase “funds and other property” in contexts where clearly the meaning of the word “property” is “property similar to cash” (such as bonds and stock certificates). The conclusion that “property” in Rule 1.14 refers to valuable property like certificates for stocks or bonds and not client files is supported by the analysis used in the American Law Institute’s Restatement of the Law Governing Lawyers (2000) (the “Restatement”). Sections 44 and 45 of the Restatement, entitled “Safeguarding and Segregating Property” and “Surrendering Possession of Property” respectively, are based largely on Rule 1.15 of the American Bar Association Model Rules of Professional Conduct which is similar to Texas Rule 1.14 quoted above. These sections of the Restatement deal with lawyers’ obligations concerning money and valuable property of clients and others, but these sections do not include client files within the scope of “property.” On the other hand, Section 46 of the Restatement, entitled “Documents Relating to a Representation,” deals with client files as a category separate from “property.”

Rule 1.15(d) of the Texas Disciplinary Rules uses the term “papers” in a way that clearly refers to client files in paper form. However, that Rule by its terms applies at the time a lawyer’s representation of a client terminates and the Rule does not apply to files that are retained and stored by a lawyer as closed files after the representation of the client in a matter ends.

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An additional factor that makes specific provisions of the Texas Disciplinary Rules unsuited to be a source of detailed guidance for the handling of closed client files is that the files of clients and former clients are no longer solely, or in most cases even primarily, in tangible paper form. Particularly in the last twenty years or so, the law practice of most lawyers in Texas has evolved to the extent that paper notes and documents are frequently a small part of the total records of a lawyer’s work on a matter. The increasingly important part of most lawyers’ files is electronic data stored in digital form on the lawyers’ computers and servers. These relatively recent developments would make it even more difficult to use the literal terms of Rule 1.14 and Rule 1.15(d) as the primary source of guidance on handling closed client files.

The conclusion that the literal terms of Rule 1.14 and Rule 1.15(d) do not supply specific guidance for a lawyer’s handling of closed client files does not mean that these Rules are irrelevant to the Committee’s response to the question here considered. Instead the principles and values underlying these Rules – particularly the emphasis on the duty of lawyers to protect the interests of current and former clients – are critical guides for lawyers’ conduct with regard to closed client files.

A number of principles relating to a lawyer’s or law firm’s closed files of clients or former clients arise from provisions of the Texas Disciplinary Rules. Application of these principles will in most cases be subject to modification by agreement between lawyer and client and will also be subject to any requirements of applicable statutory and decisional law.

First, since client files almost invariably contain confidential information concerning clients, lawyers in possession of client files must comply with the obligations of Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct requiring that confidential information of current and former clients not be disclosed outside the law firm except in specific, narrowly defined circumstances set forth in Rule 1.05. The obligation to protect confidential client information would preclude any disposition of closed client files that could result in unauthorized persons having access to the contents of the files.

Second, subject to limitations to protect important interests of other persons as well as the interests of clients themselves in certain circumstances, the client concerned normally has the right to obtain possession of the lawyer’s files arising from the lawyer’s representation of the client. See Professional Ethics Committee Opinion 570 (May 2006); Hebisen v. State, 615 S.W. 2d 866 (Tex. App. – Houston [1st Dist.] 1981, no writ) (applying former Disciplinary Rule 9102(B)(4) of the Texas Code of Professional Responsibility as in effect before 1990, which is a predecessor of current Rule 1.14(b) of the Texas Disciplinary Rules of Professional Conduct).

Third, under the Texas Disciplinary Rules a lawyer has continuing obligations not to harm the interests of former clients with respect to matters for which the lawyer provided legal services. Under Rule 1.09 and Rule 1.10, a lawyer may not act adversely to a former client on a matter for which the lawyer provided legal services. In the case of closed files held by a lawyer, this principle requires that a lawyer protect from destruction files arising from the representation of the client if the lawyer has reason to believe there is a reasonable likelihood that important interests of the former client would be harmed by destruction of information and documents -4-

contained in the file. Among the factors that a lawyer should consider in determining whether there is a reasonable likelihood that important interests of the former client would be harmed by destruction of a file are any client instructions concerning the file, the amount of time that has passed since the file was closed, the nature and content of the file as known to the lawyer based on memory or on the labeling of files, and normal business practices. A detailed review of files for items of information that might be of value to a particular client is not required before closed files are destroyed. However, the obligations to protect property of current and former clients embodied in Rule 1.14 would require that a lawyer proposing to destroy closed files have an adequate basis for assurance that items of property–such as jewelry, currency, stock and bond certificates, and original deeds–are not included in the files destroyed. There would be an adequate basis for such assurance if the law firm had procedures in place to review all files prior to placing the files in storage so that all items of property that had been contained in the files are identified and delivered to the client before the closed files are sent to storage. Where there is not another adequate basis for certainty as to the absence of client property in closed files, there should be at least a brief visual review of the actual contents of physical files proposed to be destroyed so that items of property that can be identified in such a review may be removed and not destroyed along with the rest of the files. These obligations to protect closed files from destruction that would be likely to be harmful to former clients and to protect items of property contained in closed files will apply not only to the lawyer or law firm in possession of a particular closed file but also to other lawyers of the former client if these lawyers are requested by the former law firm or by the former client to assist in the evaluation of closed files.

Beyond the principles set forth above, the Texas Disciplinary Rules of Professional Conduct do not provide guidance as to how these principles should be implemented. For example, questions of how long files should normally be retained by a lawyer, whether notice should be given to clients before closed files are destroyed in a manner consistent with the principles discussed above, which lawyers should continue to hold closed client files when a lawyer or lawyers leave a law firm, and whether closed files originally in paper form may be converted and stored as electronic files are questions of importance but are simply not specifically answered in the Texas Disciplinary Rules. Instead these and similar questions must be answered with reference to the principles set forth above as these principles relate to particular circumstances.

Costs of complying with the basic principles of the Texas Disciplinary Rules governing closed client files may be substantial. In many cases the most significant cost will be the cost of secure storage of files before the time when the files may be appropriately destroyed. It is implicit in the Texas Disciplinary Rules that, in the absence of agreement with clients for a different treatment, ordinary costs of complying with applicable rules, whether relating to the treatment of client files or other matters, should be borne by the lawyers incurring these costs and should be treated as part of the costs of providing legal services to clients. Thus costs of storing client files should, absent an agreement to the contrary or other special factors, be borne by the lawyers concerned. However, costs of complying with client requests concerning closed client files that go beyond what is required by the principles of the Texas Disciplinary Rules of Professional Conduct should be borne by the client making the requests. Consequently, if a client requests that a lawyer continue to hold files beyond the time that the files are required to -5-

be held under the principles discussed above, a lawyer need not comply with the former client’s request unless the client takes appropriate steps to pay for the requested additional period of storage. Moreover, if, after a law firm determines that files may be destroyed under the principles discussed above, a former client requests a lawyer to undertake a detailed review of the contents of closed files to identify information that the client would want to preserve, such detailed review should be treated as additional legal services subject to normal rules as to lawyer competence to provide the services requested and subject to arrangements for the client to pay for the additional legal services involved in such a review.

In view of the discussion above, it is clear that Law Firm X is permitted under the Texas Disciplinary Rules to destroy, after evaluation of the files as discussed above, closed files of a current or former client as to which lawyers in Law Firm X do not have reason to believe there is a reasonable likelihood that important interests of the client would be harmed by destruction of the files. If Lawyer A is notified or otherwise becomes aware of the proposed destruction by Law Firm X of closed files of a former client and Lawyer A has reason to know that there is a reasonable likelihood that important interests of the former client will be harmed by destruction of the information and any documents contained in the closed files scheduled for destruction, Lawyer A will have a duty to inform Law Firm X and to offer to assist in other steps necessary to protect the apparent interests of Lawyer A’s former client. Law Firm X and Lawyer A should each bear their own costs of steps necessary to protect likely interests of the former client, and any additional services requested by the client should be provided if the lawyers believe themselves competent to provide the services and if the client makes arrangements to provide compensation for the additional services provided.

CONCLUSION Under the Texas Disciplinary Rules of Professional Conduct, closed files of current or former clients that are held by a lawyer or law firm are held subject to certain basic principles.

First, confidential information of clients or former clients must be protected from unauthorized disclosure. Second, except when important interests of other persons or the client would be compromised, a lawyer or law firm possessing closed client files should turn them over to the client if requested by the client to do so. Third, a lawyer or law firm is permitted to destroy closed files when circumstances, including the passage of time, the nature of the files, and the absence of client instructions to the contrary, justify a reasonable conclusion that destruction of the file is not likely to harm material interests of the client concerned, provided that reasonable steps (such as a brief visual review of physical files) have been taken to avoid destruction of items of client property, such as currency, bonds and original deeds, that might be included in the files to be destroyed. Outside lawyers who are no longer practicing law with the lawyer or law firm in possession of closed client files may be called upon to assist the lawyer or law firm in possession of closed client files with respect to decisions as to the appropriateness of destroying particular closed files that were created or contributed to by the outside lawyer. Lawyers are not required to undertake a detailed review of the contents of closed files if destruction of the files is otherwise permitted, and any such detailed review should be treated as additional legal services subject to normal rules concerning lawyer competence to provide particular services and agreed -6-

compensation for legal services provided. Costs of complying with the basic principles of the Texas Disciplinary Rules of Professional Conduct applicable to closed client files should be borne by the lawyers and law firms having responsibility for the files, and costs of additional services provided at the request of a client should be borne by the client requesting such services.

In addition to the principles of the Texas Disciplinary Rules of Professional Conduct, requirements with respect to the treatment of closed client files may also be created or modified by statutory or decisional law of Texas and by agreement between client and lawyer.

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THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS Opinion No. 657 May 2016

QUESTIONS PRESENTED 1. What documents and information must be delivered by a lawyer to a former client convicted of a criminal offense when requested by that former client?

2. Who bears the costs of delivering the documents and information to the former client?

3. In what form must the documents and information be delivered?

STATEMENT OF FACTS A lawyer represented a former client in a criminal matter in which the client was convicted. All appeals in the matter have been exhausted. The former client requests the lawyer to furnish the entire contents of the lawyer's file regarding the matter. The lawyer is not claiming a lawyer’s lien or a similar right over the file contents.

DISCUSSION In general, the documents, papers and other information received from a client or received or generated in the course of representing the client (including the lawyer's notes and work product) are the property of the client and must be transferred to a former client on 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.

Professional Ethics Committee Opinion 627 (April 2013). As Opinion 570 (May 2006) recognized, exceptions to the former client’s right to some of the contents of a client’s file may arise from the lawyer's duties to others or the client. The exceptions noted in Opinion 570 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.”

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These exceptions would include documents or information that might reveal the identity of the lawyer’s other clients or the nature of the other clients’ representations, such as the results of internal conflict of interest checks and information about other clients contained in “forms” or pre-existing research memoranda placed in the former client’s file during the representation.

A lawyer’s duty to turn over file materials to a former client is also subject to exceptions created by Texas law. In particular, the lawyer’s file in a criminal representation may contain documents and information produced by the state pursuant to Tex. Code Crim. Proc. art. 39.14(a). Article 39.14(f) prohibits defense counsel from providing a copy of such documents to the defendant (other than the defendant’s own statement). Article 39.14(f) also prohibits defense counsel from disclosing to the defendant certain personal information regarding witnesses. Accordingly, a lawyer may not deliver to a former client documents provided to the lawyer pursuant to article 39.14(a) (other than the defendant’s own statement). Further, if the lawyer’s file materials (including notes) contain information that must be withheld from the defendant under article 39.14(f), the lawyer must redact that information before turning over the file to the former client.

Similarly, Tex. Code Crim. Proc. art. 35.29 prohibits the disclosure of personal information about jurors except as permitted by the court upon hearing. A lawyer responding to a former client’s request for the client’s file must therefore ensure that any such information is removed before turning over the file.

Subject to certain exceptions such as those discussed above, the client's file must be surrendered to the former client by making it available for the former client or a designated representative of the former client. Because the file belongs to the former client, if the lawyer desires to retain a copy of documents and information in the file, that expense must be borne by the lawyer in the absence of an agreement otherwise. The lawyer may tender the client’s file to be picked up during ordinary business hours at the lawyer’s office. In the absence of an agreement otherwise, the former client bears the expense of delivering or shipping the file to another location. See Opinion 627 (April 2013) (costs of complying with a client’s request concerning closed client files beyond what is required by the principles of the Texas Disciplinary Rules of Professional Conduct are borne by the client).

In most cases, the client’s file will consist of paper documents, electronically stored documents or information, or some combination of the two. The lawyer may generally provide such portions of the client’s file to the former client in any format that is reasonably accessible to the ordinary client. The lawyer may provide the file as it is maintained, or convert (at the lawyer’s expense) some or all of it to paper or to a reasonably accessible electronic format for delivery to the client. However, if some of the information in the file is maintained in a special format that is not reasonably accessible to the ordinary client, the lawyer must bear the cost of converting the information to a 2

reasonably accessible format or print the information in a format that can be read by the client. If the file contains material that has unique or significant value in the form originally acquired by the lawyer, such material should be returned to the client in its original form.

CONCLUSION In general, the documents, papers and other information received from a client or received or generated in the course of representing the client, including work product and notes, are the property of the client. When a lawyer receives a request for those materials from a former client, the lawyer must make those materials available for delivery to the former client, except as prohibited by statute, court order or the lawyer’s duties to third parties or the client, or 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.

A lawyer must make the client’s file available for transfer to the client or a designated representative at the lawyer’s office. The lawyer may require the client to pay any delivery or shipping expenses associated with delivering the file to the former client at a location other than the lawyer’s office. If the lawyer deems it necessary to retain a copy of the file, that expense will be borne by the lawyer in the absence of an agreement otherwise.

The lawyer may provide the client’s file in the form in which it is maintained, or convert some or all of it to paper or to a reasonably accessible electronic format for delivery to the client. However, if some of the information in the file is maintained in a special format that is not reasonably accessible to the ordinary client, the lawyer must bear the cost of converting the information to a reasonably accessible format, or print the information in a format that can be read by the client. If the client’s file contains material that has unique or significant value in the form originally acquired by the lawyer, such material should be returned to the client in its original form.

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TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT (Including Amendments Effective January 31, 2022)

January 31, 2022

TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT Preamble: A Lawyer's Responsibilities 1. A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's affairs and reporting about them to the client or to others.

3. In all professional functions, a lawyer should zealously pursue clients' interests within the bounds of the law. In doing so, a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Texas Disciplinary Rules of Professional Conduct or other law.

4. A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.

5. As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

6. A lawyer should render public interest legal service. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the 5

Neglect 7. Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Under paragraph (b), a lawyer is subject to professional discipline for neglecting a particular legal matter as well as for frequent failures to carry out fully the obligations owed to one or more clients. A lawyer who acts in good faith is not subject to discipline, under those provisions for an isolated inadvertent or unskilled act or omission, tactical error, or error of judgment. Because delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness, there is a duty to communicate reasonably with clients; see Rule 1.03.

Maintaining Competence 8. 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.

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 12

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.

Comment: Scope of Representation 1. Both lawyer and client have authority and responsibility in the objectives and means of representation.

The client has ultimate authority to determine the objectives to be served by legal representation, within the limits imposed by law, the lawyer's professional obligations, and the agreed scope of representation.

Within those limits, a client also has a right to consult with the lawyer about the general methods to be used in pursuing those objectives. The lawyer should assume responsibility for the means by which the client's objectives are best achieved. Thus, a lawyer has very broad discretion to determine technical and legal tactics, subject to the client's wishes regarding such matters as the expense to be incurred and concern for third persons who might be adversely affected.

2. Except where prior communications have made it clear that a particular proposal would be unacceptable to the client, a lawyer is obligated to communicate any settlement offer to the client in a civil case; and a lawyer has a comparable responsibility with respect to a proposed plea bargain in a criminal case.

3. A lawyer should consult with the client concerning any such proposal, and generally it is for the client to decide whether or not to accept it. This principle is subject to several exceptions or qualifications.

First, in class actions a lawyer may recommend a settlement of the matter to the court over the objections of named plaintiffs in the case. Second, in insurance defense cases a lawyer's ability to implement an insured client's wishes with respect to settlement may be qualified by the contractual rights of the insurer under its policy. Finally, a lawyer's normal deference to a client's wishes concerning settlement may be abrogated if the client has validly relinquished to a third party any rights to pass upon settlement offers.

Whether any such waiver is enforceable is a question largely beyond the scope of these rules. But see comment 5 below. A lawyer reasonably relying on any of these exceptions in not implementing a client's desires concerning settlement is, however, not subject to discipline under this Rule.

Limited Scope of Representation 4. The scope of representation provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. For example, a retainer may 13

10. The last clause of paragraph (c) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.

11. Paragraph (d) requires a lawyer in certain instances to use reasonable efforts to dissuade a client from committing a crime or fraud. If the services of the lawyer were used by the client in committing a crime or fraud, paragraph (e) requires the lawyer to use reasonable efforts to persuade the client to take corrective action.

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.

Comment: 1. The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued to the extent the client is willing and able to do so. For example, a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter, inform the client of communications from another party and take other reasonable steps to permit the client to make a decision regarding a serious offer from another party. A lawyer who receives from opposing counsel either an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable. See Comment 2 to Rule 1.02.

2. Adequacy of communication depends in part on the kind of advice or assistance involved. For example, in negotiations where there is time to explain a proposal the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that might injure or coerce others. On the other hand a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail. Moreover, in certain situations practical exigency may require a lawyer to act for a client without prior consultation. The guiding principle is that the lawyer should reasonably fulfill client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.

3. Ordinarily, a lawyer should provide to the client information that would be appropriate for a comprehending and responsible adult. However, communicating such information may be impractical if the client is a child or suffers from diminished capacity; see paragraph 5 and Rule 1.16. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its 15

members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.12. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.

Withholding Information 4. In some circumstances, a lawyer may be justified in delaying transmission of information when the lawyer reasonably believes the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. Similarly, rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.04(d) sets forth the lawyer's obligations with respect to such rules or orders. A lawyer may not, however, withhold information to serve the lawyer's own interest or convenience.

Client with Diminished Capacity 5. If a client appears to suffer from diminished capacity, a lawyer should communicate with any legal representative and seek to maintain reasonable communication with the client, insofar as possible. Even if the client suffers from diminished capacity, it may be possible to maintain some aspects of a normal attorney-client relationship. The client may have the ability to understand, deliberate upon, and reach conclusions about some matters affecting the client's own well-being. Children's opinions regarding their own custody are given some weight. Regardless of whether a client suffers from diminished capacity, a client should always be treated with attention and respect. See also Rule 1.16 and Rule 1.05, Comment 17.

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; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; 16

Texas Criminal Defense Lawyers Association

Journey to Justice

September 9, 2022 Omni Corpus Christi Hotel 900 N Shoreline Blvd.

Corpus Christi, TX 78401

Topic: Remembering Why We are on the Journey | Client Relationships & Communications Speaker:

Alex Fuller

2150 S. Central Expy.

Ste 200 McKinney, TX 75070 (972) 905-0572 Phone (214) 556-3612 Fax afuller@afullerlaw.com Email www.afullerlaw.com Website

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

SEEKING THE TRUTH: VOIR DIRE Journey to Justice Seminar Corpus Christi, TX 2022

Shepherds and Sheep: Focusing on Leadership Indicators and Juror Psychology to Optimize Voir Dire

Presented by: Shawn Sareen Attorney at Law Sareen & Bozza, PLLC The Tower Life Building 310 S. St. Marys, Suite 1910 San Antonio, TX 78205 Office: (210) 449-4994 Email: shawn@sareenbozza.com

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“The shepherd always tries to persuade the sheep that their interests and his own are the same” - Stendhal Intro:

Much earlier in my career, I would let the legal issues give me tunnel vision about the

dynamics of a juror in jury selection. In an ABI-FV where my male client was in a mutual fight with a rather aggressive female complainant, a male juror was saying all the positive things about how a woman could be the aggressor and how he had either seen or experienced that. All efforts were made to try to keep him on the panel, and he eventually made it on. However, at the verdict, the jury said guilty, and after being polled, he admitted that he personally was not guilty, however, stated that the jurors as a whole was guilty. The judge sent them back to deliberate, and seconds later, he yielded to the other jurors and simply went along with a guilty verdict.

Conversely, I have also more recently had a person say a terrible statement during voir dire about why a client would remain silent: “To cover up their lies and misconduct.” Despite that statement, we chose not to strike her, she made it onto the jury and acquitted on a DWI. In fact, we kept her on because we needed to strike somebody else more dangerous, and we were down to our last peremptory.

Regardless of favorability to our client, each of these jurors’ opinions were essentially neutralized because they were not the shepherds of the herd. This paper is inspired by a combination of Robert Hirschhorn books and CLE materials, some psychology-based books and articles on the Jury Trial Processes and Jury Selection and my anecdotal experiences over the last decade. Because the “shepherds” on a panel can absolutely neutralize positive or negative jurors who do not assert their position, we should add that dimension to our jury selection and understand some of the psychological processes of what a juror experiences to optimize our jury selection decisions.

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Jury Selection: Focus on Shepherds and Sheep In jury selection, all practitioners will have their own internal hierarchy of variables guiding their decisions between striking and keeping jurors. That hierarchy is meant to strike bad jurors and keep good jurors along a positive and negative spectrum so that jury will be most inclined to embrace their client’s story in trial. The most contentious part of a trial for me comes after completing the voir dire presentations and deciding with colleagues and the client at which jurors to strike and which jurors to keep. Have you ever been in trial and thought you picked great jurors, only to find out after a crushing verdict that those jurors were bad for your client? What about the opposite where you dreaded that a juror made it onto the panel, but then found out they were either good for your client or contributed to an acquittal? With the limitations of time and information during jury selection, it is almost impossible to predict whether certain variables among jurors will truly be beneficial to your client in the deliberations.

If a juror communicates favorably but lacks the fortitude to maintain those positions in deliberations, then their influence is lost. Aside from a juror’s positive or negative statements relating to the charge or the client or some experience, the variable that all practitioners must fit into their favorable or unfavorable juror hierarchy is discerning whether the juror demonstrates characteristics of “power-broker” or “follower,” as defined by Cathy Bennett and Robert Hirschhorn in Bennett’s Guide to Jury Selection and Trial Dynamics. My hope is that this paper’s discussion what I loosely call “shepherds” and “sheep” among the panel help practitioners observe characteristics they did not ordinarily focus on and employ strategies for more effective decision-making in light of those observations.

What is more persuasive to a juror than an attorney is another juror. The ultimate goal is that you are merely the prod to condition the jurors to shepherd themselves to the right verdict.

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When categorizing jurors who could do that, I have tried to develop a better hierarchy to assess indicators of leadership among people in my panel. This is separate and apart from whether I think they are favorable to the defense, some aspect of my case or my client. I have listed a non-exhaustive set of indicators to help find shepherds.

Indicators of Potential Shepherds: Experience Jurors will always bring their experience with them and whoever can claim prior experience with some aspect of the case or the process might become leaders regardless of personality, occupation or other demographics. Typically pay attention to someone’s experience in the following: -

Prior Criminal Jury Service

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Prior Criminal Case Participant (as a defendant, prior witness, or complainant)

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Legal Knowledge (Lawyer/Police Officer/Government worker)* *[Don’t forget people married to or in constant contact with those people]

There is a much higher chance the other jurors will yield to the experience of somebody who has actually participated in jury selection before because they need guidance from someone who can claim a level of authority in the subject matter of the process. You have to decide if you want that experienced person on. If the State’s case is perhaps missing a lot of evidence for example, you might bet on the possibility that the person with prior jury experience has seen a much stronger trial to compare this one to.

Other types of experience: Consider jurors who have experience with certain personalities or characters in your case. For example, if a female complainant comes off as jealous, unstable or attention-seeking in an assault family-violence or sexual assault allegation, she might draw judgment or ire from women or benefit from someone who is divorced. If your

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client is in an occupation that someone on the panel might understand. Where someone on the panel has experience residing in a certain zip code, they might be from a part of town that is less sheltered and could understand something about the case or the area and thus have more influence over the decision of the other jurors.

Indicators of Potential Shepherds: Specialized Knowledge Consider potential shepherds in jurors who may have experience with the subject matter of this type of allegation. For example, somebody with firearms knowledge in a case involving a shooting. If a juror has specialized knowledge of an area or an issue in your case, maybe an accountant in white collar cases, or somebody who sells a similar type of product if there is a dispute over value in a theft, for instance. Nurses and emergency room physicians also could be shepherds, but harmful, because they have lots of experience with intoxicated people or have had to work with law enforcement to stabilize people who end up as defendants. Despite instructions that they cannot be a witness in the case, there is a risk that other jurors will seek their expertise in deliberations to determine their verdict.

Indicators of Potential Shepherds: Managers/White Collar If someone has managed employees they tend to be comfortable directing others. It is not simply that managerial or corporate, “white-collar” jurors themselves are inherently in the shepherd position, but that other jurors might perceive them that way, and thus yield to their position. Ferreting out their managing style could be helpful to see how they could be influential with other jurors. Sometimes teachers can be classified as having this type of skill, but it is trickier when leading kids, maybe a more conciliatory/nurturing style in leadership with the potential to bend to other authoritarian personalities. Sometimes we make assumptions that a stay at home mother or housewife would not fall into the shepherd category. However, they manage

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the household, planning activities for their children (and even their spouse), which could allow for comfort in directing the other jurors or organizing the information so as to persuade the other jurors to follow.

Indicators of Potential Shepherds: “Black Sheep”/Holdouts There are jurors that I think could be independent in their position that it could inspire others to follow. Jurors with graduate degrees, with an emphasis on engineering or technology degrees, are people I focus on. Regardless of leadership influence, they tend to be very analytical and should have the tendency to pour attention into jury instructions for things like affirmative defenses and even limiting instructions. On average, the social pressures of going along may not pressure them to bend one way or another. In the event they do not encourage others to their position, engineering/technology-minded jurors could make for hold outs for mistrial potential.

Indicators of Potential Shepherds: Age I think older jurors simply have more life experience to draw from to have a better chance of an experience that connects them to the case at hand. While I think certain there exist some generational attitudes about life that are more likely among older people that could persuade other jurors, I have, however, ceased thinking that jurors will yield to somebody solely because they are the older in the group. Elder people certainly have more experience in life, but his or her life experience is many different life experiences. Even the evidence used involves a level of technology that may seem difficult for older jurors to digest or claim enough knowledge over to possess an authoritative position in deliberations. Younger generation millennial attitudes also have a more complicated view of older people and authority as well.

The Psychology of How Jurors See the World At all times the purpose for voir dire is to find the truth among the jurors, not create or really

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change their beliefs. According to Dr. Matthew Ferrara, Ph. D., a trial consultant based out of Austin, jurors are bringing in a belief system, defined as the “totality of an individual’s values, attitudes and opinions,” that is based on a lifetime of conditioning. Everyone sees the world through an “activating event” that is filtered through that belief system, resulting in a consequent emotion. The theory is that the facts and arguments of your case are filtered through the juror’s belief system. Through that belief system, the juror organizes events, facts and arguments into a story. That story, the way the juror uses beliefs to organize facts and arguments, is what leads them to an emotional response that, ultimately, dictates their verdict. At best, we may educate them about the law and requirements of how to follow it, but “ 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.” (Bennett and Hirschhorn). They either have it in them to acquit someone, or they don’t. Same goes for the leadership instinct. – you’re not creating them, you’re finding them, steering them towards their influence. In essence, you are not trying to change them, but instead just trying to see the truth of who they are, as best as you can.

Engaging Shepherds and Sheep Observe how jurors talk, how decisively they deliver what they say, if they don’t mince words or use qualifiers to determine how forceful they feel about their opinions and therefore, how strongly they may sway the rest of the jurors. There are times whenever the jury is asked scaled questions by one side or the other and amidst answering numbers, there is a lull where people will seemingly all repeat the same number usually a moderate position. Whenever somebody breaks that trend with a different number, I tend to take note of them as having shepherd potential, because of them thinking independently about the scaled question and actually asserting a different position. But essentially, sometimes the best way to find out

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whether somebody sees themselves as a leader is just to simply discuss it upfront. Bennett and Hirschhorn describe just flat out and asking, “Some people like being leaders and some do not – how about you?” If you want to gauge somebody in a managerial occupation or working a job that may give them insight into the case, you could simply ask, “Because of what you do for a living, you could be an influential person on this jury – how do you feel about that?” If they have prior jury experience, ask the more open-ended question, “how do you think your prior jury experience will affect you on this case?” Instead of the general question of, “So, can you be fair?”

We have a view of followers/sheep as quiet, soft spoken, even hiding in their posture.

Sometimes people avoid eye contact, seem instantly agreeable. It is hard to read the tea leaves without more. Encourage them where you can and try to make hesitation ok. Try to empower your favorable followers by reminding them, “If you don’t know what to say, that’s ok. That’s a sign of deliberating, considering what you’re hearing before deciding. Something you might have to do if called upon.” Do not alienate anybody who has spoken up, but try to explain that you need more from them for the sake of your client. “Presuming innocence is hesitating at an accusation. Reasonable doubt is hesitating at a rush to judgment.” You can try to set it up as your tribe and see if it provokes responses from those who do not wish their hesitation to seem that way. To try to decipher if the silence is due to being more of a sheep than a shepherd, again, just ask them. “Some people like being leaders/in charge of things and some do not – how about you?” It’s a loaded question, but it might provoke responses that enlighten your decisions.

Juror Communication Beyond Statements (Focus on them where possible) Potential jurors can be outspoken about certain topics and whether it is unprompted, this could be a seemingly obvious indicator of shepherd potential in this type of case. But there are

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many more things to observe. Some are obvious, such as the way somebody is clothed. How put together somebody is or if they are wearing a casual shirt that displays messages about interests are all things we can interpret. Those things could show us signs of going against norm for potential holdout jurors, or signs of higher socio-economic status, which might inform us one way or another about the chances they will relate to our client or the case at hand. We as attorneys are trained to extract verbal statements but not really trained to focus on or provoke nonverbal or physiological responses, beyond an interpretation of a “gut feeling” about a person.

There are psychological studies about body language and non-verbal communication that require some attention on our part. Focus on “kinesic cues,” such as posture, eye contact, and facial cues to determine more genuine emotional reactions during discussions. Consider the nonverbal cue when balanced against the juror’s verbal response to determine if there are signs of deception, which may or may not be voluntary or conscious.

In understanding the juror’s experience, some studies suggest that jurors experience “situational anxiety” generated by the experience of being in a group setting, for example. Such anxiety physiologically alters that juror, slightly increases heart rate, more labored breathing and presence of nonverbal clues. – Scientific Jury Selection by Joel Lieberman and Bruce Sales.

Additional studies also suggest jurors experience greater anxiety when questioned by an attorney he or she dislikes, or when the juror dislikes the side that attorney represents.

Psychologists study speech patterns to attempt detection of anxiety. The concept describes “pauses” and “latencies.” A pause refers to extended periods of silence within a sentence while speaking, vs. a latency, which is a pause before even beginning the answer. The latter tends to mean more anxiety. Some suggest that those are indicators of deception.

Additionally, things like the amount of speech and “speech disturbances,” are indicators of

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anxiety, while changes in voice pitch are studied and sometimes interpreted as potential deception when the person speaks in a “higher pitch” than their baseline.

Where they focus their gaze matters to me at various points. I look at people who are looking at my client while the State is talking. I try to see if I can gauge reactions to certain content. If jurors have more eye contact with me, it tells me they are engaged, but also that they could be used to speaking to people and maintain eye contact, which is an indicator of leadership. If you ask a question and the juror looks at opposing counsel, it might mean they are more comfortable with opposing counsel and looking for their approval. If a juror looks to the judge for assistance with understanding something someone just said question, he or she may prefer a more authoritarian.

Conditioning the Herd While these are not quite exact sciences, and we are clearly not trained in psychology, our observations of those things could help guide us to exercise more accurate decision-making when employing strikes, especially if we believe we may not be getting the true or forthright version of the juror. There brings about the purpose in relaxing them as both a physiological one and a way to lower the odds of deception or presenting the anxiety that make us perceive deception or that bad feeling in our gut. Things we can do to relax juror: empathize and show our own vulnerability.

We’re not only relaxing them to build rapport, but to feel comfortable to tell the truth and be open about difficult issues in front of many strangers. The goal is that the jurors know my client and I are among their herd and like them. I emphasize that my client asked for a jury of his or her peers. The State is this faceless institution, trying to lock up my client and he or she turning to you for the help against them. Try to emphasize your genuine fear for your client. If

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there are unfavorable jurors, very vocally defensive about law enforcement or angry about somebody accused, I will sometimes let them go off on me and beat me up to an extent. While on the one hand it helps me loop other “like-minded” jurors, you could also draw out people that may be shepherds who want to save me.

Answer nonverbal communication with your own nonverbal communication to prod the honest answer. In a situation where a potential juror has given a “bad answer,” you can follow up by saying: “Sir, thank you for sharing that. So you would agree with me that, if there is a case with that kind of issue, you would start out prejudging with a bias?” While asking the question, you can subtly nod your head affirmatively. The juror picks up the answer with his eyes and brain before he hears all the words. Sometimes I almost open my hands and gesture like a maître de showing them the door to the right answer. The jurors eyes and brain have already seen the right answer, but now their mouth has to say it for the record.

How you ask a question also matters. Asking something in the form of an open-ended question allows for an uninhibited answer. It could help explore and focus on one juror or one topic in more depth. Asking something in the form of a closed-ended questions could be helpful to scan the room to get quick yes or no. The form is better to explore breadth and cover more jurors. Scaled questions help gauge how strong or weak on opinion could be for each juror.

You can also front load your rehabilitation questions to innoculate favorable jurors. For example, if someone has had a bad experience with law enforcement, to save them upfront, present them with a leading question, that they would be fair and considerate first or put aside their bias before assuming an officer in this circumstance was like the one in their previous experience.

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Your Shepherd or the State’s Shepherd?

If there is a positive juror for your side, and you find them to have leadership potential, there is probably a judgment call on whether to hold off on further inquiry or whether to dig deeper. Especially with time restrictions it is difficult to really fish out complete aspects of a person. Plenty of times there have been assertive people who have spoken up and given great answers to questions that are favorable about the case or what type of proof they might need if selected. However, then when the State brings them back individually, they reveal something problematic. For example, maybe they would like to see the number to convict on a DWI (where you know the number was excluded), but they may be close to someone who was harmed by someone guilty of a DWI one way or another. Assess whether to strike, whether to keep and gamble on whether the State will use up a strike. You can also see if the State will agree on a strike for cause, so nobody loses peremptories. Compare the rest of your bad jurors with bad answers and assess from there. Always praise the sharing of the answer, even when it’s not great for your client. “You don’t have to tell me what I want to hear, just need to tell me what’s true.”

Embrace the negative parts of your case and how it could be dangerous to certain jurors.

What is unclear about case? What is bad about the case? What do you want to know about people listening to case and looking at your client? People with kids have changes in their personal priorities for example, and might be more prone to “public safety” arguments. Yet, if your case about children testimony, they might be more aware of children lying or acting out for attention. Best advice I’ve heard is to think of the worst characteristics you could possibly have on your jury and ask questions to find that out. Topically, start with issues you expect to see in your jury charge, like defensive issues, ask them about limiting instructions, nature of the relationship, 404B and 38.37 issues and discuss if jurors would you be able to limit your view of

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something if these or other bad facts were presented at trial.

Knowing the Field and Maximizing Time None of this focus on leaders and followers can be developed properly without already being aware of the court’s procedure and having as much time as possible. Do some reconnaissance and know in advance how much time your judge typically allows. Know the court’s voir dire procedures from court staff, other lawyers or the judge, if you haven’t practiced there before. If some judges divide general voir dire and specific voir dire or if they just have a free for all, and strategize accordingly.

Consider if your judge will cover certain topics upfront. Articulate fundamental items yourself, like the presumption of innocence and burdens of proof for example. The juror will have an easier time speaking up to disagree with the lawyer than the Judge. Instructing them to remind them how important it is and to condition them about following the court’s instructions in the places I want them to be reminded.

Know when the judge requires you the exercise strikes for cause. Most judges in my experience do so after both presentations before the court, but outside the presence of the venire panel. However, some judges require a motion to strike for cause in front of the jury, as soon as it arises, in front of the panel.

If you need to request more time, you must object that the time allotted was not reasonable and cite Ratliff v. State, 690 S.W.2d 597 (Tex. Crim. App.1985). State that you are prevented from intelligently exercising peremptories and your client is being denied effective assistance of counsel under the 6th and 14th Amendment and Art. 1, § 10 of the Texas Constitution.

It is not enough to just request more time, but also you must have your specific questions

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to specific potential jurors ready to present to the court on the record. If you have them written out, you can mark them as an exhibit. It is crucial that these objections be made prior to the jury being sworn. The reviewing court standard is an abuse of discretion and part of the inquiry is whether the questions the party was not permitted to ask were proper voir dire questions and not duplicitous. See Boyd v. State, 811 S.W.2d 105 (Tex. Crim. App. 1991). The questions must be “relevant, not repetitious, and neither vague nor open-ended.” Dhillon v. State, 138 S.W.3d 583 (Tex.App.--Houston [14th Dist.], 2004). Finally, you must make a bill on what the jurors’ answers might have been if there were more time to question the panel, and make a clear record which jurors were not questioned who actually served on the jury. Ratliff v. State, 690 S.W.2d 897 (Tex.Crim.App.1985).

The court’s denial of a “proper” question is not harmless error. Florio v. State, 568 S.W. 2d 132, 133 (Tex. Crim. App. 1978). However, the court can deny a question that are “vague or broad in nature as to constitute a global fishing expedition.” Fuller v. State 363 S.W. 3d 583, 585 (Tex. Crim. App. 2021). It is best to present questions particular to your specific issues in your case first. As the questions relate to more fundamental issues like presumption of innocence, burdens of proof and views on the exercise of the 5th Amendment right to remain silent, it is harder to suggest that those questions are improper, because those questions seek to discover the juror’s views on an issue applicable to the case.

Culling the Herd I used to think that if only I could just find the right words, I could win over even the staunchest of critics on the panel. The truth is, strong beliefs or long-held opinions simply do not change. Some jurors just need to go and will not be able to serve fairly no matter how well you can advocate for your client. While we have the general question of asking if someone can or

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cannot be “fair,” it is easier to agree with another panel member after their admission than just the lawyer. Looping is crucial when a juror expresses that they cannot be fair, because of the odds the other jurors will follow the shepherds in the venire panel.

Argue under Texas Code of Criminal Procedure 35.16 (a)(9) and (10): “That the juror has a bias or prejudice…. against the defendant; and That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror's opinion, the conclusion so established will influence the juror's verdict. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court. If the juror answers in the negative, the juror shall be further examined as to how the juror's conclusion was formed, and the extent to which it will affect the juror's action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged.”

Also, be aware of Texas Code of Criminal Procedure 35.16(11)(3)(c)(2): “That [juror] has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.”

After the juror reveals something that could be strong enough for cause, ask the Juror in the following: Would it be fair to say that you have a strong opinion on an issue in this case?

And you would agree that you had this feeling for quite some time? Given your opinion, would it

15

be fair to say that if this were a horse race, that my Client is not starting at the same start line as the State? Given what you have shared with us, do you mind if I ask the judge to excuse from serving today?

If the Court denies your challenge for cause, object to the denial and use a peremptory challenge on the denied challenge. East v. State, 702 S.W.2d 606 (Tex.Crim.App.1985). Then, after exhausting the peremptory challenge, request additional peremptory strikes in light of the denial of your challenge for cause, because you would have used your strike on somebody who was seated. Homan v. State, 662 S.W.2d 372 (Tex.Crim.App.1984).

Conclusion No matter how positive or negative a juror’s expressed opinion might be to our client, if they do not assert that position, they may not make a difference in deliberations. Focusing on jurors with the leadership qualities can influence the other jurors to our position is crucial to jury selection because it neutralizes negative jurors and allow us to make better decisions within our criteria for striking jurors from the venirepanel. If we can add a little bit of jury psychology to our acumen, we can help be more influential with our panels. Our goal is not to change jurors, but to discover them, understand them and find the shepherds within the panel who can guide them to the correct verdict.

References: Cathy E. Bennett and Robert Hirschhorn, Bennet’s Guide to Jury Selection and Trial Dynamics in Civil and Criminal Litigation (1993).

Joel Lieberman and Daniel Krauss, Jury Psychology: Social Aspects of Trial Process: Psychology in the Courtroom, Volume 1 (2009).

Joel Liberman and Bruce Sales, Scientific Jury Selection (2007).

Lisa Blue and Robert Hirschhorn, Preparing for Voir Dire (2014).

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Matthew Ferrara, “The Psychology of Voir Dire” The Jury Expert: The Art and Science of Advocacy. Maryland: American Society of Trial Consultants (2010).

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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.

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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.

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MARCH 2014

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