Annual Meeting On Demand 2020
By Justine Carreon, Adam Faderewski, Patricia Busa McConnico, and Eric Quitugua
The State Bar of Texas held its first-ever two-day virtual Annual Meeting packed with CLE offerings, well-being programming, and more for its members.
The State Bar of Texas canceled its Annual Meeting in Dallas
scheduled for June 25-26 due to COVID-19. Volunteers and staff members
quickly developed a virtual event, Annual Meeting On Demand, to take its
place, featuring 25 sessions of up to 8 hours of video-on-demand CLE, an
awards presentation, and a 30-minute CLE on lawyer well-being led by the
Texas Lawyers’ Assistance Program. State Bar sections provided
programming on Thursday, which featured pre-recorded, practice-specific
seminars including Asian Pacific Interest; Bankruptcy Law; Computer
& Technology: Being an Adaptable Lawyer; Criminal Justice; the
Diversity Forum; Family Law; General Practice, Solo & Small Firm;
Hispanic Issues; LGBT Law; and more. Executive Director Trey Apffel
kicked off Friday’s programming with a welcome message. Additional
content included a short awards presentation, parting remarks from
2019-2020 President Randall O. Sorrels and 2019-2020 TYLA President
Victor A. Flores, a CLE well-being session, and the swearing in of
2020-2021 President Larry McDougal and 2020-2021 TYLA President Britney
After being sworn in by Judge Andrew Wright, of Harris County Criminal Court at Law No. 7, McDougal noted many of the things the bar does for its members, such as providing some of the best CLE in the country and offering support through the Texas Lawyers’ Assistance Program. “After heart attacks and cancer, suicide is the number one cause of death of lawyers,” McDougal said. Lawyer wellness has been an important issue and will continue to be a focus, he said, noting that TLAP will be adding a new lawyer to its team this year to assist in efforts to help members. “During the pandemic, our services never stopped,” McDougal said. “We haven’t missed a beat. Everyone is working from home. We are still doing CLEs. We are still out there. We are still doing everything we have done for the lawyers of Texas.”
Harrison was sworn in by GoransonBain Ausley attorney Tom Goranson. Afterward, Harrison laid out her initiatives for TYLA: expand on the Vote America! project to more widely disseminate voter registration, develop a leadership toolkit for smaller communities, and roll out a project to educate students on iconic women in history who paved the way for women’s rights. The new president mused over the civil unrest and global pandemic of 2020, calling on lawyers to respond. “What if 2020 is the year we’ve been waiting for? A year so uncomfortable, so painful, so scary, so raw that it finally forces us to grow? A year that screams so loud, finally awakening us from our ignorant slumber?” Harrison asked. “Young lawyers of Texas, each and every one of you has a voice, a strong voice and the ability to create change and make things better. I encourage you to listen to others and stand for what is right—and engage in respectful and insightful dialogue.”
Below is a brief summary of the virtual panels that occured over the course of the Annual Meeting On Demand. Click for the list of the 2019-2020 BAR YEARS AWARDS and for coverage of the ANNUAL MEETING ON DEMAND STATE BAR BOARD MEETING.
Why You Should Keep a Bankruptcy Lawyer on Speed Dial
In the midst of the COVID-19 pandemic and the unemployment crisis accompanying it, bankruptcy filings by individual consumers and businesses have been on the rise. Stephen G. Wilcox, of Wilcox Law in Arlington, said corporate bankruptcies increased by about 60% and consumer bankruptcies declined by about 48% in April and the numbers were about the same for May. Wilcox credited unemployment payments and pauses on rent payments and evictions for keeping the consumer number down. However, he said the rise in consumer bankruptcy filings would likely begin in September and October, with a huge number of consumer case filings beginning in 2021. Theda W. Page, of Page Law Firm in Frisco, said debtors are looking at either filing for Chapter 7 or Chapter 13 bankruptcy. Page said Chapter 7 is her preference for clients because the filing is quickly processed and people can get back to their lives whereas Chapter 13 requires reorganization and payment over 36 or 60 months. The basis for filing Chapter 7 or Chapter 13 is a “means” test that takes into account income of the six months prior to the case—the current mean income. Page said she only files Chapter 13 bankruptcies if she’s absolutely forced to do so—either her clients have too much income for Chapter 7 or they’re really trying to keep some of their assets. These filings generally result in $600 to $700 payments each month for her clients. On the creditors’ side, Wilcox said lien documents, bills of trust, and Uniform Commercial Code loans must be on file before the bankruptcy is filed because they cannot be added after the debtor has filed for bankruptcy. If they aren’t filed on time, the creditor will be labeled as unsecured rather than as secured.
COVID-19’s Impact on Hispanic Communities
With the pandemic still in full swing, it’s important to understand the disproportionate impact the coronavirus has had on Latinos and Blacks. About 60% of essential workers are Black, Latino, or Asian, panelists on Hispanic issues said. Currently, employers adhere to safety standards set by the Occupational Safety and Health Administration, said Javier Perez, of Scott | Perez in Dallas. These include a clause to furnish a workplace free from hazards likely to cause physical harm or death. But how that gets fleshed out in a pandemic is in question. While there are arguments that gloves and masks should be part of personal protective equipment, there’s no hard and fast rule that they have to be provided at work. “That is going to disproportionally and adversely affect communities of color where they are working in closer proximity to one another and that sort of risk is very high in terms of it spreading,” Perez said. “There is some basic requirement but it is not—and a lot of people agree—sufficient to even help us fight back this virus.” Tricia Freshwater, of Lopez & Freshwater in Richardson, discussed instances of undocumented immigrants being apprehended by Immigration and Customs Enforcement after seeking medical help. If there’s any question whether it happens, the answer is yes, she said. However, instances in Texas have been isolated as ICE identifies hospitals as sensitive locations and generally won’t engage in enforcement actions barring any extraordinary circumstance like a threat to public safety, she said. “So my advice to my clients has been to absolutely seek medical attention when needed,” Freshwater said. “I can never tell them there’s a zero percent risk of being apprehended by ICE, but I think that should be very low going to the hospital and should always be outweighed by the need to seek medical care.” Felix Villalobos, of RAICES in Dallas, gave updates on the status of detention centers, saying people aren’t being quarantined, court delays are being emailed to attorneys minutes after courts decide to close, and policies aren’t being shared. “Unfortunately, that’s always been the case with immigration law, but even now with COVID-19 with this current administration putting out anti-immigrant policies, it’s very hard,” he said.
Panelists Craig Ball, of Austin, and Judge Emily Miskel, of the 470th District Court in McKinney, discussed the nuances of videoconferencing in a session titled “Upping Your Game in Zoom.” Over the past few months, lawyers have quickly learned how to conduct business, partake in conference calls, talk to clients, and more over Zoom, a relatively inexpensive conferencing app that the Texas court system is using due to the effects of COVID-19. In fact, Miskel helped oversee the first Zoom jury trial in Texas and possibly the nation. She and Ball provided tips on how to make a good impression online because they believe Zoom is in it for the long haul. The panelists recommended turning on your camera first and foremost because of the benefits of nonverbal communication. Next, set your device so that the camera is parallel with your eyes—whether that means stacking books or purchasing a gadget to attach to your phone. Lighting is important. “One of the faux pas you have to be mindful of is a window or bright light behind you,” Ball said. Inexpensive lights and diffusers placed at the right angles can make all the difference, as does a dedicated camera. Ball noted that Miskel was using a photograph of her courtroom as her virtual background, which provided some context. He said to practice with the virtual background to make sure it doesn’t make everything look worse—especially when you move—and that photos work better than logos. Ball said sound is a big issue and recommended purchasing a microphone and possibly an articulating arm so you don’t have to lean in while speaking. Miskel said Zoom works best if everyone is on a separate device and in a separate room. Ambient noise is disruptive, she said, so everyone should know how to mute and unmute. Miskel said everyone should be familiar with the various Zoom settings. “To its credit, Zoom is adapting,” Ball said. “And helping people be a better Zoomer.”
Building an Online Presence
Frisco-based solo practitioner Ronald Chichester provided myriad options for law firms experimenting with an online presence but afraid of making an expensive mistake. In his session titled “Long Term Ethical Video Conferencing and More,” Chichester walked through the steps of creating a presence on the internet, from file storage with encryption and document collaboration to videoconferencing and a website. He recommended moving to a virtual private server, or VPS, which is basically an isolated server sold as an internet hosting service that provides more privacy—think your own server in which you can run any operating system within a larger server. A VPS will cost a modest amount of money, but Chichester said there are many price levels and options from companies such as DigitalOcean, Togglebox, Amazon Lightsail, and more. He discussed using open-source software, which firms should be able to download and use for free. Next, he walked through the steps of putting it all together: create a server (virtual or not), install the operating system of choice, get an internet protocol address (think postal address for computer networks), get an FQDN (a fully qualified domain name, which is the most complete domain name that identifies a host or server), get a digital certificate (provides an electronic means of proving your identity), install the firewall (security system) and software, and tell your clients about your presence in an ethical manner.
Advocating for LGBTQ+ Dignity and Humanity
At the time this panel discussion was recorded, Title VII cases involving discrimination based on sexual orientation or gender identity were before the U.S. Supreme Court, with decisions expected soon. So it was no surprise that the big question on the minds of panelists was whether the two constitute sex discrimination, which is prohibited by Title VII. “[T]here are a host of federal laws and equal protection analysis that look to or conflate Title VII’s definition of sex in the analytical framework,” said Beth Littrell, of the Southern Poverty Law Center in Alabama. “If the court rules in favor of the employers, it would in essence create an exemption to potentially a host of laws that are designed to protect people based on sex.” The panelists said people are looking at other ways in which the law can potentially protect people from discrimination based on sexual orientation or gender identity. “[I]t will be important to argue that even if Title VII doesn’t protect LGBTQ employees, Title IX, which is worded differently in a way that can be interpreted and applied more broadly… should still be construed [to] protect LGBTQ students or [the] Fair Housing Act’s sex discrimination provision should be construed to protect LGBTQ people,” said Shannon Minter, of the National Center for Lesbian Rights in Washington, D.C.” [Editor’s Note: On June 15, 2020, the Supreme Court found that Title VII prohibits an employer from discriminating against an individual on the basis of sexual orientation and transgender status.]
Live Event and Entertainment Issues in the Wake of COVID-19
Saba F. Syed, of Bell Nunnally & Martin of Dallas, said the most common questions she has been asked are: “What do I do if my event is canceled?” and “How do I protect myself and my business if the event has to be canceled?” Syed said event planners should look at their insurance policy, especially an event cancellation insurance policy. While doing so, the planner should see what is covered in the policy and should also look at the commercial general liability policy, Syed said. Event professionals should also look at options to postpone or reschedule the events. Brent A. Turman, of Bell Nunnally & Martin, looked at some of the prominent postponements of films—such as the upcoming James Bond movie and the latest installment of the Fast and the Furious franchise. Additionally, Turman said there have been disputes between theater chains and production companies about the release of movies directly to streaming services at the same time as the release to theaters. Also of concern for movie theaters is rent payments as they take up large real estate footprints for landowners. Turman said businesses should be transparent with clients and employees; clients should be treated right and treated like human beings, rather than dollars and cents; and businesses should over-communicate with clients—not letting any worries slip through the cracks. Ira B. Perez, of Bell Nunnally & Martin, covered some of the measures taken by the federal government to alleviate concerns of employers and employees, including unemployment benefits under the Coronavirus Aid, Relief, and Economic Security Act; Economic Injury Disaster loans; and Paycheck Protection Program loans.
Privacy Issues Related to Videoconferencing
“As lawyers, we have additional considerations that other professionals don’t,” said William Smith, of Business Talent Group in Austin. “For lawyers, this means using technology effectively but also in compliance with legal and ethical obligations toward clients and their information.” In a session titled “Privacy Issues Related to Video Conferencing and Cloud Based Programs,” Smith and Elizabeth Rogers, of Michael Best & Friedrich in Austin, and Lisa M. Angelo, of Angelo Law Firm in Houston, discussed privacy issues facing attorneys in a world where names like Zoom, Slack, and Microsoft Teams have become commonplace. Lawyers need to keep in mind ethics requirements, specifically, the ethical duty of technology competence, Rogers said. Comment 8 to Texas Disciplinary Rules of Professional Conduct Rule 1.01 deals with maintaining competence and will likely work hand in glove with Rule 1.05, the ethical duty of confidentiality, Rogers said, noting that lawyers are working in spaces now that might pose risks such as a violation of client-attorney confidentiality. Rogers said that lawyers need to ensure that third-party vendors are following strict security protocols as well, which includes making sure Zoom settings are correctly updated to ensure privacy. She reviewed the reasonable security requirements by the Federal Trade Commission. Angelo said the FTC has determined that unreasonable security is unfair to consumers and misrepresentations about security can be deceptive. She said one of the biggest questions she gets from lawyers is, What is reasonable security? Angelo said we can use complaints to the FTC as guidance. For example, in a case involving Uber, the FTC determined that not using two-factor authentication was unreasonable, Angelo said. Lawyers need to be aware of who has access to files—especially during this time of remote working—and placing restrictions on sharing as needed, which would be considered reasonable security, Angelo said. She also discussed practical considerations for lawyers with regards to the functionality and settings of videoconference platforms such as meeting invite forwarding, unidentified attendees, and automatic or unintentional recording.
Hot Topics in Probate
Judge Brenda Hull Thompson, of Dallas County Probate Court No. 1, and Judge Ingrid M. Warren, of Dallas County Probate Court No. 2, covered issues in probate law with an emphasis on protecting the elderly from abuse. Thompson said elder abuse is rampant in the United States, with six million cases reported annually and 18 million cases that likely aren’t reported. In the wake of COVID-19, robocalls, test and treatment scams, and supply and provider scams are being used to scam elders. Thompson said attorneys can assist their clients by engaging them in estate planning projects, identifying their needs and cultivating partnerships, and knowing the resources available for protecting them. Warren discussed how to grow a probate practice amid COVID-19. First and foremost is safety, she said, for both clients and employees. Warren also said embracing technology can help to build a base, such as using videoconferencing, working remotely, and using available software to streamline and manage office tasks. Firms should not stop planning for the future, she said, and must plan for life after shelter-in-place.
Don’t Panic During the Pandemic
In a session titled “60 X 60 Apps: Don’t Panic During the Pandemic,” panelists Michael Curran, Chris Krupa Downs, Kristen Knauf, Shannon Warren, Tony Ray, Craig Ball, and Alex Shahrestani provided tech tips and discussed apps. Curran recommended LAWCLERK.LEGAL, a site for attorneys that lets users post legal projects and set a fee; Wix, a template website builder; and Wash Your Hands!, a personal hygiene helper that nudges users into safer habits. Downs recommended LastPass, a password manager; AVG Internet Security, which stops viruses and malware; and Office Lens, a scanner app that captures pictures of whiteboards, business cards, and receipts and saves them as a PDF that can be shared. Knauf suggested NotaryCam, which lets users get their documents legally notarized in a matter of minutes by uploading a document, connecting to a live notary, confirming their identity face-to-face via a webcam, and electronically signing and applying an eNotary seal; Nomorobo, a robocall blocker; and LogDog, which provides alerts any time suspicious activity occurs in Gmail, Facebook, and other accounts. Shahrestani suggested Canva, a graphic design template, and Amazon Polly, a natural language processor that creates audio files and publishes blog posts as a podcast. Ray recommended TextExpander, which allows for keyboard shortcuts and snippets to fill in recurring text, and MindMeister for free, which creates “mindmaps” to visualize a user’s case. Warren suggested FindTime, which allows for easily scheduling meetings with multiple participants, and Siri, which allows for voice dictation on an Apple device. Ball recommended Zoom for videoconferencing and provided some helpful tips such as turning on the camera, positioning the camera at eye level, and investing in a good microphone.
Trying the High-Profile Case
In a session titled “The Impact of the Media (Social or Otherwise) on How You Try the High-Profile Case” Dallas litigator Tom Melsheimer, a partner in Winston & Strawn, said to treat every case as a high-profile one because it is likely that your potential jurors have been exposed to the case through social media or traditional news. He said topics such as drunken driving, corporate misconduct, and sexual assault are litigated on social media and social movements like Occupy Wall Street, Me Too, and Black Lives Matter can have an impact on your case because that may affect juror opinions. Melsheimer, who was lead counsel for billionaire Mark Cuban in a highly publicized case, discussed seven issues lawyers should be aware of when trying a high-profile—or any—case: (1) Ethical issues—Be mindful of Texas Disciplinary Rules of Professional Conduct Rule 3.07, which states that “[i]n the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding”; (2) Jury selection—If you have limited voir dire time, get to the issues as quickly as you can; (3) Theme development—Make your case relevant and timely and work on your themes before you get to the courthouse; (4) Client and lawyer well-being—Learn to navigate the personal stakes in a high-profile case; (5) Social media—Prepare for the viral moment; you should know when there is going to be an explosive witness or something that is going to get a lot of attention; (6) The “No comment” challenge—Dictate your own narrative in court; and (7) Actions under a microscope—Assume people are watching or studying you. “I would urge you all as good trial lawyers to think about the issues I’ve raised in this presentation and how they would apply to your cases,” Melsheimer said. “The best kind of case is not a high-profile case but the case you win.”
Trial Tactics That Need to Go Away
Chief District Judge Barbara Lynn, of the U.S. District Court for the Northern District of Texas in Dallas; Judge Melody Wilkinson, of the 17th District Court in Fort Worth; and Presiding Judge Bonnie Goldstein, of the 44th Civil District Court in Dallas, discussed tactics in the courtroom they would like to see go away. In a session titled “Trial Tactics That Need to Go the Way of the Dinosaurs,” the panelists covered topics such as discovery motions, legal writing, and oral motions. When asked what judges find so abhorrent about discovery motions, Goldstein said, “For me, it is that the litigants want me to work harder than they do.” Goldstein said that good faith discussions should be happening before involving the court. “I find that lawyers don’t do that, which is why it is the bane of my existence,” Goldstein said. When asked if legalese in writing adds value, Lynn said, “It adds no value.” She said it gets in the way of understanding and persuasion. “Tight writing is the best writing.” When asked if there were any cursed technological developments, Goldstein said, “PowerPoint can be overused.” She also said she doesn’t like it when lawyers don’t take the time to practice with technology or know the courtroom setup. When asked what attorneys should be doing to engage the jury, Wilkinson said, “I think the key is to let jurors visualize what they can and hear it as well.”
Criminal Justice’s New Normal
A panel of Rockwall County District Attorney Kenda Culpepper; Texas Tech University School of Law’s Dwight McDonald; Judge Lisa Michalk, of the 221st District Court in Conroe; Brittian Featherston, of the U.S. Attorney’s Office in Beaumont; and Carmen Roe, of the Carmen Roe Law Firm in Houston, dove into the coronavirus’ impact on court proceedings. Zoom hearings have taken center stage as late summer jury trials, originally set to resume in August, loomed. In a discussion that at times put digital trials on trial—fittingly through a webcast—attorneys offered mixed takes on the eagerness to get back to the courthouse and the sustainability of using Zoom in the long run. Concerns over accessibility to Zoom and the Sixth Amendment confrontation clause were at play, as was the musing of gas trips potentially saved from driving from faraway stretches to the courthouse. No matter what side attorneys stand on, courthouses are preparing to resume in-person proceedings. The eastern district began its jury trials in late June with a large room for grand juries set up for social distancing and juries spread out in the audience. The staff at the 221st, aiming for a reset in September, has outfitted the jury paneling rooms for social distancing as well as adding plexiglass dividers and a requirement for masks in the building.
A History of Voter Suppression
The Diversity Forum, in its examination of voter suppression, held a mirror up to the United States as well as Texas to show the fight against disenfranchisement is far from over. The 2013 U.S. Supreme Court decision in Shelby County v. Holder ruled that certain provisions under the Voting Rights Act—that state and local governments receive federal preclearance to change voting laws and which jurisdictions are subject to preclearance—were unconstitutional. Preclearance, which was targeted at states with a history of discriminatory voting laws, was intended to protect the passage of new restrictions that would stifle votes from minorities. The shutdown of that tool was just one instance in history of what the panel considered suppression—others included the lack of enforcement over 14th Amendment voter rights provisions, poll taxes, literacy tests, discriminatory voter ID laws, and a lack of public accommodation laws in states including Texas. “[L]awyers play a tremendous role particularly in states that have complicated and hard-to-navigate election laws,” said Nina Perales, of the Mexican American Legal Defense and Educational Fund in San Antonio. “I think lawyers can really be helpful in terms of spreading correct information in how to navigate the barriers we have to voting.”
Solo and Small Firm Criminal Law Update
Judge James Mosley, of the 316th District Court in Hutchinson County, provided an extensive recap of criminal law cases in the U.S. Supreme Court, Texas Supreme Court, and the Texas Court of Criminal Appeals. Some of the U.S. Supreme Court cases reviewed were Mitchell v. Wisconsin (plurality concludes that when a drunken-driving suspect cannot take a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant); Flowers v. Mississippi (the trial court at Flowers’ sixth murder trial committed clear error in concluding the state’s peremptory strike of a particular Black prospective juror was not motivated in substantial part by discriminatory intent); and Gamble v. U.S. (the court declined to overturn the dual-sovereignty doctrine). Some of the Texas Supreme Court cases reviewed were State v. R.R.S. (a child’s legal inability to “consent to sex” did not render him illegally capable of committing the offense of aggravated sexual assault) and In re Commitment of Jones (the appeals court erred in holding the trial court committed harmful error when it declined to submit an instruction explaining a verdict for the defendant). Some of the Texas Court of Criminal Appeals cases reviewed were Hyland v. State (a trial judge does not need a heightened legal standard for an affidavit after a sustained Franks motion resulted in the excision of some statements, and an officer sensing a strong smell of alcohol is sufficient to support a blood search warrant); Fisk v. State (a defendant convicted of indecency with a child under Texas Penal Code § 21.11 who has a prior conviction for a sexual offense enumerated in Texas Penal Code § 12.42(c)(2)(B) receives a mandatory life sentence); and Tilghman v. State (hotel staff can generally not consent to a police search of a guest’s room).
Texas Court of Criminal Appeals Update
Texas Court of Criminal Appeals Judges David Newell and Bert Richardson provided a recap of 10 cases decided in the court’s past term: State v. Ruiz (577 S.W.3d 543), Dixon v. State, Holder v. State, Williams v. State, Hughitt v. State, Fraser v. State, Jordan v. State, Metcalf v. State, Stahman v. State, and State v. Ruiz (581 S.W.3d 782). The following was determined in each of the 10 cases: Ruiz (577 S.W.3d 543)—private citizen violations of the Fourth Amendment don’t trigger Texas Code of Criminal Procedure Article 38.23; Dixon—excluding spectators from closing argument because the courtroom was full doesn’t violate public trial rights; Holder—obtaining 23 days of cellphone location tracking data without a warrant violated Texas Constitution Article 1, § 9; Williams—defects in a Texas Code of Criminal Procedure Article 38.41 certificate may not violate the confrontation clause given the opportunity to object for any reason; Hughitt—possession with intent to deliver is not a predicate felony for engaging in organized criminal activity; Fraser—injury to a child is not a lesser-included offense of manslaughter for felony murder purposes; Jordan—aggregating threat by multiple assailants can justify deadly force self-defense instruction; Metcalf—spouse must intend to assist sexual assault in order to be guilty as a party to sexual assault; Stahmann—tampering with evidence requires removal from sight in order to conceal; and Ruiz (577 S.W.3d. 541)—implied consent does not justify warrantless blood draw from an unconscious person.
Eminent Domain and Texas
Luke Ellis, of Marrs Ellis & Hodge in Austin, talked about the rising tensions in Texas in regards to eminent domain in a session titled “Eminent Domain & Texas: the Tension Between Demographic Growth, Infrastructure Projects, and Protecting Private Property Rights.” In 2014, the state had 26.5 million residents, or about 8.4% of the country’s population, he said, and by a 2019 estimate, 29 million people now reside in Texas. Austin, Fort Worth, Houston, and San Antonio are among the top 10 fastest growing cities in the U.S. on a percentage basis. If net migration maintains on this course, the state is projected to be the home of 54 million people by 2050. Ellis said the increased growth leads to a need for increased infrastructure, including road projects, high-voltage transmission lines, and oil and pipeline easements. When eminent domain is used, Ellis stressed the difficulty in determining valuation of land—something Ellis said courts often don’t spend enough time doing. The current framework doesn’t allow property owners to find themselves back in a “whole” position, Ellis said. To provide for just compensation under eminent domain, Ellis argued that highest and best use should be used as a primary determinant, with the historical use of the land only being the starting point. Other factors that should be taken into consideration are the size of property and the easement valuation.
Jury Full of Boomers, Gen Xers, and Millennials
Juries aren’t the same as they were 10 years ago or even five years ago. They’re more educated with a combination of college experience and the ability to learn by touching glass, said Jason S. Bloom, of Bloom Strategic Consulting in Dallas. His group, which helps shape witnesses into effective communicators and “any attorney into a star in the courtroom,” according to its website, took data of the jury hearings held in Harris County in the first few months of 2020. Bloom defined three generations—baby boomers, Gen Xers, and millennials—and generalized their different attitudes toward the jury duty process. For example, in the current “need for speed” learning environment, millennials want people to get to the point, on average staying focused for about 20 seconds on things such as opening statements, closing arguments, or witness answers to critical questions, Bloom said. Of the jurors reviewed, 95 were baby boomers, 108 were Gen Xers, and 109 were millennials—each group representing roughly a third of the jury selection. An interesting stat: When examining whether the fact a defendant is a corporation adversely affects consideration for the cases, 28% of millennials, 14% of Gen Xers, and 9% of baby boomers said yes. Another: When looking at whether the spirit of the law is more important than the letter of the law, 56% of millennials, 44% of Gen Xers, and 37% of baby boomers agreed. One takeaway from Bloom’s presentation was that when describing the details of a case to jurors, who may have other things on their minds, “it just means we have to identify and embrace the rules of the sandbox we are playing in.”
Women and the Law
In a session titled “From the Right to Own Property and Vote, to the Right to Control Her Body and Fertility,” panelists reviewed milestones in women’s rights. Sharon Hemphill, of Sharon Hemphill & Associates in Houston, discussed the 1919 suffrage act in Texas, the 1925 appointment of Miriam A. “Ma” Ferguson as the first female governor of Texas, and the 1953 swearing-in of Charlye O. Farris, the first Black female lawyer in Texas. Hemphill also looked at the Texas Marital Property Act of 1967 that granted equal rights to women and Texas Family Code § 2.501 stating each spouse has the duty to support the other and a spouse who fails to discharge that duty is liable to whomever provides necessaries to that spouse. Author and journalist Erin Geiger Smith, a former attorney, discussed the struggle for women to get the right to vote, starting with the 1848 Seneca Falls Convention. In 1870, Victoria Woodhull petitioned Congress that the 14th and 15th Amendments gave citizens the right to vote and women therefore were entitled to a vote because they are citizens. The radical shift from intellectual conversations for the right to vote (which had shown to be ineffective) led to American women adopting the verbal assaults on politicians being deployed by British women who found success with such tactics. American women also adopted measures to show uniformity in their ranks, including wearing the same color clothing and carrying signs with similar slogans. Hunger strikes were also employed and open rebellion with some protests turning violent. The gathering steam of these efforts led President Woodrow Wilson to change his position on women’s voting rights. Houston litigation attorney Ellen Yarrell examined two recent cases regarding infertility issues between divorced partners—Terrell v. Torres in the Arizona Supreme Court and Bilbao v. Goodwin before the Connecticut Supreme Court. In Torres v. Terrell, the wife, Ruby Torres, had frozen embryos after being diagnosed with cancer in 2014. A contract was signed at the time noting that if divorce occurred, the embryos would be donated to a third party. Torres argued against this as she wished to use the embryos in the future. The Arizona Supreme Court ruled against Torres, stating that parentage could not be forced upon John Joseph Terrell. A statute enacted in 2018 in Arizona would have given Torres the right to the embryos but it was not retroactive and therefore did not apply to the embryos frozen in 2014. Similarly, in Bilbao v. Goodwin, the Connecticut Supreme Court ruled that a genetic donor could not be forced to become a parent against his or her wishes.
Labor and Employment Law Issues During COVID-19
Numerous labor and employment issues have been generated by the COVID-19 pandemic, including unemployment payments, leave options, returning to work and employee safety, and privacy concerns. Jason Boulette, of Boulette Golden & Marin in Austin, said any employer with fewer than 500 employees is covered by the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, including employers with less than 50 employees who were not covered by the Family Medical Leave Act in the past. Kathryn Youker, of Texas RioGrande Legal Aid, reviewed unemployment provisions of the Coronavirus, Aid, Relief, and Economic Security Act, which made many workers eligible for unemployment benefits for the first time—including independent contractors and self-employed workers (the unemployment provisions of the CARES Act expired on July 31). When it comes to returning to work, Boulette said a plan must be in place that might include temperature scanning and contact tracing with a need to invest in the latest technology for doing so. Boulette noted problems with temperature scanning include privacy concerns under the Health Insurance Portability and Accountability Act of 1996 and the occurrence of false positives because of exposure to high temperatures, such as walking through a parking lot to work during the Texas summer. Additionally, Boulette suggested having employees self-diagnose at home and report whether anyone in the household had symptoms within the past 72 hours. Richard Carlson, of South Texas College of Law Houston, discussed legal issues employers could encounter with the return to work, such as possible workers’ compensation suits due to employees contracting COVID-19 at the workplace.
Compassion Fatigue During COVID-19
“When my clients tell me, ‘I am putting my life in your hands,’ I feel personally responsible for the outcome of each of those cases whether it be good or bad,” said family law practitioner Sally Pretorius, of KoonsFuller in Plano. Pretorius joined Jenny Gomez, also of KoonsFuller, and Chris Ritter, director of the Texas Lawyers’ Assistance Program, on a panel to discuss compassion fatigue—taking on the emotional pain of a person’s agony—and how to deal with it, especially during the pandemic. Family law attorneys often don’t realize how much these difficult cases can mess with their emotional state and everyday life, Pretorius said. Gomez shared coping mechanisms on how to handle compassion fatigue and manage stress during COVID-19. Think about the serenity prayer, she said, and analyze what you can and can’t control. The panelists also stressed the importance of taking care of your mind, body, and spirit and designating a start and finish time to your workday. Ritter advised walking, meditating, spending time with family, putting down devices, and reaching out to friends in the same practice area and seeking their advice. “Try naming three things that are positive each day,” Ritter said. Additional resources can be found at tlaphelps.org and at tyla.org by typing “Compassion Fatigue” in the search bar under “Legal Resource Library.” Call or text 800-343-TLAP (8527) to get confidential help with substance use and/or mental health issues.
Immigration Law at the Extremes
Panelists Vishal Chander, of the Chander Law Firm in Dallas; Caroline Tang, of Ogletree, Deakins, Nash, Smoak & Stewart in Austin; and John Ting, of the Ting Law Group in Houston, discussed how COVID-19 has impacted immigration lawyers. Finding protective gear to wear to court was a struggle in the beginning of COVID-19 because immigration attorneys were still expected to show up in person. On March 18, 2020, all in-person services were suspended at field and asylum offices, green card interviews, and Application Support Centers. By March 25, a standing order was issued that some courts allow telephonic appearances. If an attorney decided to do this, he or she would waive the right to object the admissibility of documents on the basis of inability to review, which to most immigration attorneys is a validation of due process, the panelists said. According to Chander, “80,000 to 94,115 immigration hearings have been postponed due to COVID-19.” On the positive side, the pandemic forced immigration courts to upgrade their technology so they can now accept e-filing for motions. Ting said all immigrants’ visas are currently on hold except spouses of U.S. citizens. People can still file for naturalization even though services have been suspended at all embassies and consulates. The U.S. borders to Mexico and Canada are closed to all nonessential workers and tourism, Tang said, and Canada has a 14-day quarantine for travelers coming into the country.
Equal Access to Courts
Self-represented litigants need information that courts can disseminate to them so they can know what to expect going into the proceedings, said Trish McAllister, executive director of the Texas Access to Justice Commission in Austin. As hearings have shifted to Zoom, the limitations to accessibility can be profound—not everyone has reliable internet access, let alone the internet. Not everyone can call in to hearings if they are on limited phone plans. Notices of hearing or general court information can sometimes be in language that isn’t plain and clear, she said. In working with the Office of Court Administration, McAllister has sought to provide best practices and guidelines for self-represented litigants and for courts on handling them. The goal is to find ways for people to be able to tell the court whether they have internet or a limited ability to access the court by phone or caregiver responsibilities or whether they or a witness need an interpreter or accommodations or whether they have evidence, McAllister said. “These are the things that are really problematic right now and not being handled in a uniform way,” McAllister said. “A lot of times, that information isn’t getting to the court.” Brian East, of Disability Rights Texas in Austin, said legal obligations such as the Americans with Disabilities Act’s Title III, state law, and the Rehabilitation Act’s Section 504 may still apply. Some substantive legal requirements still in place for effective communications include auxiliary aids and services like Braille and sign language interpreters. For the blind or those with vision impairments, East suggested the use of screen readers for websites and video platforms. Documents should be in an accessible format circulated in advance of a hearing and with talking features. Individuals should specify needs to courts in advance if possible, East said, and if they don’t, then courts need to ask for any potential accommodations. Holli Siler, of the Texas Advocacy Project in Austin, pointed out further complications that go beyond accessibility: safety of victims of sexual assault, intimate partner violence, and stalking. For example, many victims have been and are currently sheltering in place with their abuser, she said. And with privacy a concern, who is watching a hearing and is confidential information being kept that way? “When I first heard about courts doing Zoom hearings, I thought that this was fantastic that courts were trying something new,” Siler said. “But then my second thought was, Well what about clients or victims of domestic violence? What were they going to do and how were they going to participate in these hearings? What were pro se litigants who have limited means going to do? How is the court going to keep that open and fairness element to the court system for them?”
Tips to Lawyer Well-Being During COVID-19
Erica Grigg, Shawna Storey-Lovin, and Chris Ritter, of the Texas Lawyers’ Assistance Program, provided 10 tips for lawyer well-being during COVID-19. The first suggestion was to keep a sleep routine because people with regular sleep schedules are about 1.5 times more likely to report feeling well-rested. Secondly, attorneys should limit social media intake, unfollow “toxic” friends on Facebook, and avoid following trending news, which is mostly bad. Other suggestions included defining spaces, such as a designated “office space” and “charging space” that is outside of “sacred” household spaces; reframing thinking and validating fears and worries by practicing self-compassion and staying present and mindful; and allotting time for self-care activities, such as connecting with nature, writing, taking virtual classes, and practicing calming activities. The panelists said that in this time of self-isolation and stay-at-home mandates, it is important to connect with others and debrief to achieve some sort of order or meaning. Those who volunteer can offset the effects of a stressful year on one’s health, they said. Finally, the panelists said attorneys should practice gratitude journaling, which has been shown to have a greater impact on increasing happiness over time than winning the lottery.
Nik Sallie Franklin, an intellectual property law attorney based in Austin, said she has seen a shift where personal and professional lives have become one. She said bringing your “whole self” to work can result in being happier and more productive, which is good for business. Franklin stressed being authentic. “Self-care needs to be part of your life so you can be a better you at work,” she said. Franklin described three practices that can help you find clarity, connection, and relief while working from home: play favorites, adhere to the 50/10 rule, and compartmentalize. Play favorites means to surround yourself with all your favorite things in your new workspace at home, said Franklin, recommending to engage all the five senses if possible. She suggested having a plant, candle, snacks, and photo frames on your desk—things that bring you comfort. She also noted that being organized can make you more efficient. The 50/10 rule means work for 50 minutes and then a 10-minute break. Franklin suggested scheduling breaks into your calendar and said apps like Todoist are available for download to help you get started in organizing your workday. Compartmentalize means to remember that whatever happens at work, let it stay at work. Franklin said to be in the moment with your family and friends.TBJ