Andrew L. Kerr
San Antonio Bar Association
August 2012 - San Antonio Lawyers – Making a Difference
You can probably name a dozen or more San Antonio lawyers who are making a difference by what they are doing in their careers. Not just by what they do for their paying clients, but by how they use their training and experience as lawyers to serve the bar, the poor in need of legal services, their churches and synagogues and their communities at large.
On Saturday, August 25, we get the opportunity as a bar association to honor four outstanding individuals who have dedicated themselves to service of others and who are now in positions where they shape the law and public policy across the State of Texas and the United States:
United States Senator John Cornyn;
United States Representative Charles Gonzalez;
Texas Supreme Court Chief Justice Wallace Jefferson; and
Texas Supreme Court Justice Paul Green.
But before reading more about how each of them have made and are making a difference, you must answer the following trivia questions, the answers to which are in the traditional upside-down format in microscopic type at the end of this article:
1. What common elected position was held by both John Cornyn and Charles Gonzalez?
2. What common elected position has been held by John Cornyn, Wallace Jefferson and Paul Green?
3. Which honorees worked for the same firm, and what was the name of that firm?
4. Who is the only honoree to have served on the Fourth Court of Appeals?
5. Which honorees’ fathers held elected office in San Antonio? Who were they and what offices did they hold??
6. Which honorees served as pres-ident of the San Antonio Bar Association?
7. Whose grandfather was president of the San Antonio Bar Association?
8. Who is the only honoree who has a San Antonio school named after him? What type of school is it and in what district is it located?
The Rotary Club has a Motto: Service Above Self. If ever a motto could epitomize the careers of John Cornyn, Charles Gonzalez, Wallace Jefferson and Paul Green, it would be this one. For example…
Senator John Cornyn:
A graduate of Trinity University and St. Mary’s Law School, Sen. Cornyn started his career at Groce, Locke & Hebdon, was elected as Judge of the 37th District Court in 1984; as Texas Supreme Court Justice in 1990; as Texas Attorney General in 1998; and as United States Senator in 2002. He is a member of the Senate Armed Services, Budget, Finance and Judiciary Committees and Chair of the National Republican Senatorial Committee. What you may not know is that Sen. Cornyn was instrumental in ensuring the passage of the bill that continued FDIC insurance coverage on IOLTA accounts after these accounts had been excluded from such coverage under the Dodd-Frank Act. Because of his efforts in preserving this vital funding source for legal services to the poor, the Texas Access to Justice Foundation awarded him its prestigious Harold F. Kleinman Award in 2011.
Congressman Charles Gonzalez:
After graduating from Edison High School, Rep. Gonzalez attended The University of Texas, where he received his BA degree and then returned home to earn his law degree at St. Mary’s University School of Law. He was in private practice in San Antonio for ten years before launching his judicial career as a municipal judge. A year later in 1983, he was elected County Court at Law Judge. He was elected Judge of the 57th District Court in 1989, the same year he also served as president of the San Antonio Bar Association.
Following in his father’s footsteps, Rep. Gonzalez was elected to the U.S. House of Representatives from the 20th Congressional District in 1997. Rep. Gonzalez serves on the Energy and Commerce and House Administration Committees. For all of his accomplishments, perhaps Rep. Gonzalez’s highest calling was his one-year stint as a 5th grade teacher at Kindred Elementary School in the South San Antonio ISD. That experience certainly prepared him as a judge for adjudicating disputes between contentious litigants, and as a congressman for navigating the often puerile waters of the United States Congress.
Chief Justice Wallace Jefferson:
Chief Justice Jefferson graduated from John Jay High School, strayed to Michigan State for his undergraduate degree and returned to get his law degree at the University of Texas. He began his legal career at Groce, Locke & Hebdon, where he was one of a handful of lawyers who specialized in appellate law. In 1991, he and fellow Groce Lockers Tom Crofts and Sharon Callaway formed their own firm, Crofts Callaway and Jefferson. After serving as president of the San Antonio Bar Association from 1998-1999, the Chief was appointed in 2001 by Governor Perry to be a Justice on the Texas Supreme Court. Three years later, he was Chief Justice. Besides presiding over the court and participating in the major legal decisions in Texas over the past decade, Chief Justice Jefferson is recognized throughout the country for his leadership. From 2010 to 2011, he served as the President of the Conference of Chief Justices, chairing the National Center for State Courts board of directors. The Chief has also been a tireless advocate for access to justice. In 2009, when interest rates were cut to the bone and IOLTA revenues dropped from $20 million per year to $2 million, he personally requested the legislature to provide funding to the Texas Access to Justice Foundation to keep the delivery of legal services to the poor alive for the next two years. For the first time in history, the legislature responded by appropriating $20 million.
Justice Paul Green:
Justice Green is a graduate of Alamo Heights High School and the University of Texas. After finishing law school at St. Mary’s University School of Law, Justice Green joined his father’s firm, Green & Kaufman, later Green & McReynolds, where he was a trial lawyer for 17 years. In 1994, he was elected to the Fourth Court of Appeals, where he served until 2004, when he was elected to the Texas Supreme Court.
From 1991 to 1992, Justice Green served as president of the San Antonio Bar Association. He has continued his service to the legal profession as a member of the American Law Institute and American Judicature Society and was recognized by St. Mary’s as a distinguished law graduate. In addition to his contributions both as a judge and leader of the bar, Justice Green has been active in the San Antonio community through his involvement with the Cross-point Halfway House and the Boy Scouts.
We are proud to call Senator Cornyn, Congressman Gonzalez, Chief Justice Jefferson and Justice Green “San Antonians” — and particularly San Antonio lawyers. They have made a difference in what they have done in their careers and have brought honor and recognition to our city through their service to others. I hope you will join me on August 25 at the Rosenberg Sky Room at the University of the Incarnate Word to express in person our gratitude for their service.
Answers to trivia questions:
1. District Judge: John Cornyn (1984-1990); Charlie Gonzalez ( 1989-1997)
2. Texas Supreme Court Justice: John Cornyn (1990-1997); Wallace Jefferson (2001-present); Paul Green (2004-present)
3. John Cornyn and Wallace Jefferson - Groce, Locke & Hebdon
4. Paul Green
5. Charlie Gonzalez (Henry B. Gonzalez, U.S. Congress); Paul Green (Hubert W. Green, District Attorney)
6. Charlie Gonzalez (1989-1990); Paul Green (1991-1992); Wallace Jefferson (1998-1999)
7. Paul Green (Hubert Green, Sr. 1932-1933)
8. Wallace Jefferson; Wallace B. Jefferson Middle School; Northside ISD
September 2012 - Why Did We Become Lawyers?
Have you ever looked back and wondered how you ended up where you are today? Why you chose a certain path over another? It is an interesting, if not always useful, exercise. But at its best, it can refocus us on the reasons we made the decisions we did, whether those reasons are still valid or if they have changed, and what now serves as our touchstone for the future.
So why did you become a lawyer or, with apologies to Elizabeth Barrett Browning … How did I choose thee? Let me count the ways:
1.You were nearing graduation from college and you had no idea what you were going to do with your life, so you went to law school.
2.You got a job after college, hated it and thought the law looked like a promising alternative.
3.You thought you could make a lot of money (or at least more than in the job you hated).
4.The apple did not fall far from the tree. One or more members of your family were lawyers and because the law was in your blood, you were expected to become a lawyer, too.
5.You love competition and no other profession has clear winners and losers like the law. Practicing law would provide both the thrill of victory (for you) and the agony of defeat (for the other side).
6.You were a drama major in college. There is no stage like a courtroom, with a captive audience to boot.
7.You are smart and have a genius-level vocabulary but did not want to rely on crossword puzzles as your primary source of intellectual stimulation.
8.Being a lawyer carries a certain amount of prestige and you would be respected for what you did.
9.As a lawyer, you would have the background to influence the development of the law and be involved in government and politics.
10.You had seen people wrongly accused, treated unfairly or who were just overwhelmed by their circumstances, and you wanted to become a champion of the underdog.
11. You were aware of the importance of lawyers to society and felt a calling to become a lawyer to be a part of protecting and upholding the rule of law.
Chesterfield Smith, former president of the American Bar Association and founder of Holland & Knight, once bluntly told a group of law students about the ABA: “We are not a trade association. We are not a union. We are out to improve justice and its administration of society. If you don’t intend to work to improve the quality of justice, then I hope you flunk your exams.” (You may now, if you wish, change your answer to No. 11.)
Chesterfield Smith saw the big picture and had a platform to espouse and implement big ideas. But what can we, as everyday, ordinary lawyers, do to improve the quality of justice? The answer is to do what we do every day. In representing our clients to the best of our ability, we are validating a legal system where getting to the truth in a trial or preparing a contract that can be enforced actually matters. It is the quality of the job we do for our clients that improves the quality of justice.
We may have become lawyers for the money, the prestige or the thrill of victory but at the end of the day, we signed on to help people. In a recent interview with the San Antonio Express News, Tom Frost, chairman emeritus of Frost Bank, lamented how the major banks’ entry into investment banking changed banking from a relationship oriented business to a culture of “put-it-in-your-pocket Wall Street.” “My Uncle Joe told me we were not in the money business,” he said. “We were in the people business and happened to use money as a way to serve the needs of the people.” So it is with lawyers and the law. We are first and foremost in the people business, using our knowledge of the law to meet the needs of our clients.
There are lots of jokes about how ruthless and heartless lawyers are. I won’t repeat them here. But the truth is that beyond the zealous and, all right, sometimes over-zealous, representation of our clients, the majority of us are committed not only to helping our clients but also to helping those less fortunate, tangibly improving the quality of justice in our communities every day. Locally, hundreds of lawyers “take just one” for the Community Justice Program each year. Across the state and nation, hundreds more have devoted their careers to helping the poor as public defenders and legal aid lawyers. Many of us, because of the positions we are in as lawyers, see and react to situations that largely go unnoticed by others.
Take Henry Strasburger, for instance. A noted trial lawyer from Dallas, Mr. Strasburger obtained a defense verdict in a very serious wrongful death case in West Texas. The widow was seen sobbing in the courtroom after the verdict had been returned. During the case, Mr. Strasburger had become aware that the widow needed to recover enough money in the lawsuit to put her son through college. Her dreams had been dashed by Mr. Strasburger’s able defense of his client. Many years later, one of Mr. Strasburger’s partners saw a note taped to the wall in the lobby of the firm’s offices. Air Force wings were pinned to the note. It was from the son of the widow, thanking Mr. Strasburger for putting him through college and making it possible for him to have become an Air Force pilot.
The law is often referred to as a high calling. And for good reason. However we came to be lawyers, the law, like an inexorable force, requires us to raise our sights and serve something greater than ourselves. In doing so, we draw on the inspiration of those who came before us and strive to serve as an example for those who follow.
October 2012 - It Doesn’t Just Happen
The Greater San Antonio Chamber of Commerce once had a saying: “Doing What Most People Think Just Happens.” It is a slogan used by many chambers around the country but when I first saw it, I was struck by how true it was. It is particularly true of the San Antonio Bar Association, and so I want to share with you just some of the things that are happening as the result of the efforts of the Bar Association’s board of directors, staff and members.
We are off to a great start. At the Installation Gala in August, we honored four of our own who are making a difference as San Antonio lawyers. Senator John Cornyn, Congressman Charlie Gonzalez, Chief Justice Wallace Jefferson and Justice Paul Green drew a sell-out crowd and by the end of the evening, we still had a hardy group of revelers who filled the dance floor as the Hot Cakes closed out the night. To our sponsors and guests, many thanks. Through your support, we raised over $45,000 for the Community Justice Program — and had a good time doing it.
The Board of Directors
What goes on at the Bar begins with the six officers and eight board members who meet once a month and devote much of their “free” time developing and overseeing the programs and events we enjoy. What you may not know is that these hard-working lawyers not only serve as the board of the San Antonio Bar Association, but also as the trustees of the San Antonio Bar Foundation and the Community Justice Foundation. In September, the board participated in a one-day retreat to make plans for this bar year and to consider long-range plans for how the Association can better serve not only our members but the San Antonio legal community as a whole. One of the recurring themes during the retreat was the importance of collegiality and the value of networking. The board is considering a new event with this in mind and would appreciate hearing from you about what you would like to see.
The Bar’s staff — Jimmy Allison, Gabe Gonzales, Kim Palmer and Liz Castillo — plus the director of the Community Justice Program, Suzanne DeWalt, are the key to the implementation of the projects and programs developed by the Board. Behind the scenes, they make it happen.
SABA provides a multitude of services to its members including:
The Directory: A members only publication, it contains photos, educational background, practice areas and contact information for each member.
The Subpoena: All the news every month about what is happening through the Bar Association.
The San Antonio Lawyer: A bi-monthly publication containing more in-depth articles on subjects ranging from local lawyers to developments in the law.
Library: Located on the 5th floor of the courthouse, with actual law books.
Presiding Court Conference Area: Opening October 1, 2012, next to the new presiding court. Fourteen conference rooms, common area and copy services available to all lawyers.
Lawyer Referral: For just $200 per year, you can join the Lawyer Referral Program and receive referrals of potential clients in a variety of practice areas.
Auto Purchase Service: In collaboration with the Bexar County Medical Society, this program entitles SABA members to discounts on their car purchases.
Courthouse Badges: Skip the metal detector at the courthouse by purchasing a badge from SABA.
Seminars: SABA sponsored three seminars in September — Juvenile Justice, Solo and Small Firm and Military Divorce and Retirement. Upcoming seminars include the Criminal Law Institute in April and Bench Motions and Trials (TBA).
Monthly Luncheons: Get CLE at the SABA monthly luncheons held at the Plaza Club on the fourth Thursday of the month.
Last Chance Videos: Meet your CLE requirements by viewing videos of previous CLE presentations.
Ethics Videos: Get those hard to earn ethics hours in these videos devoted to ethics topics.
Installation Gala: The annual kickoff of the Bar year and a chance to party with your fellow lawyers.
Monthly Luncheons: Great programs and a regular networking opportunity.
Fun Run: Ready, Aim, Run on November 17 along the Mission Reach. This year’s 5K race features a virtual relay.
CJP Golf Tournament: Spring tournament with a new location (TBA).
Peacemakers: January 25, at Leon Springs Dance Hall. Recognizing individuals and organizations for their contributions to the community.
Law Day: May 2013. A celebration of why we do what we do.
To get involved with a community of lawyers who practice the same type of law as you, join a section. You may do so by checking the box on your dues statement and enclosing the amount of your section dues with your bar dues. Otherwise, call or email Jimmy Allison (firstname.lastname@example.org) or Gabe Gonzales (email@example.com) for information on how to join. The current sections are:
Alternate Dispute Resolution
Consumer and Commercial Law
Immigration and Nationality Law
Another opportunity for involvement in the Bar is by volunteering to serve on a committee. An email to Liz Castillo at firstname.lastname@example.org will get your name to the committee chair. The committees and their chairs are as follows:
Civil District Courts - Steve Weakley
Community Justice Program - Justice Phylis Speedlin
Community Relations/Media Response - Barry Beer
Continuing Legal Education - Judge Larry Noll
County Courts - Steve Treu
Criminal Law and Procedure - Judge Juanita Vasquez-Gardner
Federal Courts - George Parker
Fee Dispute - Gilbert Vara
Justice of the Peace & Municipal Courts - Tammy Wincott
Law Day - Judge Ed Prado
Law School - Al Hartman & Faye Bracey
Lawyer Referral - Zack Aoki
Library - Gary Hutton & Reed Greene
Medical/Legal Liaison - Jeff Anderson
Membership - John Muller
Mentor - Robin Teague
Military Liaison - Jim Higdon & Daryl Harris
Program - Jane Macon & Dawn Finlayson
Publications - Judge Barbara Nellermoe & Pat Autry
Technology - Mark Unger
Unauthorized Practice of Law - Steve Cennamo
Community Justice Program
You can join the hundreds of lawyers who give of their time to provide pro bono legal services to the poor by volunteering to “take just one” case per year. To sign up and serve at one of the family law, wills or veterans clinics held during the year, contact Suzanne DeWalt at email@example.com.
Now you know more than you ever wanted to know about what is happening at the San Antonio Bar Association. The things we take for granted are actually the product of the vision and tireless efforts of the board, the staff and lawyers who volunteer their time. If you are not involved in the Bar, get involved. There are opportunities galore to contribute and do what most people think just happens.
November 2012 - Football and the Rule of Law
The Rule of Law was on full display late on the evening of Monday, September 24. At about 11 p.m. San Antonio time, the “Monday Night Football” game between the Green Bay Packers and the Seattle Seahawks was in its final seconds, with Seattle trailing 12-7. On the last play of the game, Seattle quarterback Russell Wilson launched a Hail Mary pass to the end zone. Seattle receiver Golden Tate pushed a defender out of the way and went up for the ball. At the same time, Green Bay defensive back M.D. Jennings out-jumped Tate and appeared to intercept the ball. As both players fell to the ground, Tate looked like he got his hand on the ball but did not have control of it. Under National Football League rules, if two players gain control of a ball simultaneously, the offensive team retains possession. Thinking Tate had simultaneous possession, one of the referees rushed in and signaled a touchdown, giving Seattle a stunning victory.
But there was still hope for Green Bay. In the NFL’s version of due process, through the magic of instant replay, the play was reviewable. Anyone who saw the replay, except perhaps Seattle Coach Pete Carroll, recognized that the official had made the wrong call. Surely it would be overturned. But the rule governing reviews of officials’ calls is that the ruling on the field stands unless there is “indisputable evidence” that it was erroneous — not far different from reviewing a decision for abuse of discretion. The replay officials ruled that the replay was inconclusive and therefore upheld the ruling on the field. Although the decision was uniformly lambasted in the press and on Twitter, the ruling stood and Seattle was declared the winner.
Not only did the rule of law prevail, but the decision, however incorrect, was respected in a very American way. Sure there were howls of protest and widespread criticism of the referee who made the call. But there were no riots by Packer fans in the stands or in the streets of Green Bay that night. There was no strike by the Packers. The players did not assault the referees. Rather, the final decision ultimately was accepted by the teams and their fans and everyone moved on. Why? Because the rule itself was fair, as was the process by which the ruling was made.
The hallmark of the rule of law is fairness. If laws themselves are fair and administered fairly, they will be obeyed and respected. That is not to say that they will always be administered perfectly. As in the football game, there will be errors in how laws are interpreted or administered. The NFL rule regarding simultaneous possession of the ball is a fair rule. The referee just made a mistake in what he saw. Much was made of the fact that the referee was a replacement for the regular, experienced referees who had been locked out over a labor dispute. But the quality of the decision-maker is secondary to the rule of law. Without a doubt, the rule of law is enhanced if we have judges who apply it correctly and without bias. But at the end of the day, if the law itself is fair to all and rulings are made in good faith, those subject to the law will respect and obey even the worst decisions.
As John Adams observed, we are “a government of laws, not of men.” We are not a law unto ourselves. We don’t decide whether a red light means stop or go or settle a dispute over a touchdown or interception by taking the ball and walking off the field. We instead choose to have laws and judges govern our conduct. Justice Felix Frankfurter stated it thus: “There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” United States v. United Mine Workers, 330 U.S. 258, 312 (1947) (Frankfurter, J., concurring).
We take the rule of law for granted because in the United States it is a part of us and we know nothing else. But in other countries and societies, laws may not be grounded in fairness, but in oppression. Unlike in the United States, there is not always a legal system that allows laws to be challenged and changed or permits lawyers to take on a case against the government without fear of reprisal. In Iran today, lawyers who are defending the rights of dissidents are being arrested, imprisoned and prosecuted for crimes against national security. The rule of law has been suspended to silence opposition to the controlling regime.
Dwight Eisenhower noted in the aftermath of the Holocaust that “[t]he clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” The rule of law is a precious asset that must be jealously guarded. As lawyers, legislators, judges and professors, we have a special responsibility to ensure that not only are our laws fair and just but that we engender respect for the decisions made by those who are charged with interpreting and enforcing those laws, whether those decisions be good or bad, favorable or unfavorable. Even one that snatched victory from the jaws of defeat on a Monday night in Seattle.
December 2012 - What Goes Around Comes Around
Former United States Senator Bill Bradley recently spoke at a Policy Maker Breakfast sponsored by Trinity University. If you are of my vintage, you may also recall that he was an All-American basketball player at Princeton, Rhodes Scholar and star forward for the New York Knicks. He knows a little something about teamwork and achievement. He brings that perspective to bear in his most recent book, We Can All Do Better, which was the topic of his talk.
Among other things, Bradley was bemoaning the lack of bi-partisanship in Congress, which he attributes in no small measure to the fact that Democrats and Republicans do not know each other. They no longer live in Washington, they do not socialize with each other, and they rarely reach across the aisle to pursue compromise for fear of alienating the extreme wings of their respective parties. As a result, there is no foundation of trust and respect that would naturally give rise to communication and cooperation. Bradley’s prescription to break the resulting gridlock and restore some sanity to our political process? Get to know your colleagues.
This advice should not be lost on us as lawyers. Quite by happenstance, I had the good fortune to learn this lesson early in my career. I first started practice as an Air Force JAG officer at F.E. Warren AFB in Cheyenne, Wyoming. There were only five lawyers on base, one of whom, Doug Deibert, was assigned to defend the airmen the rest of us were prosecuting. We all knew each other well, socialized at the Officer’s Club and vacationed together. I found that because of my relationship with Doug, I could communicate openly with him about the cases we had, working out pleas in some and gearing up for trial in others. That we were looking out for the best interests of our clients was never in doubt. To the contrary, our clients benefitted from our ability to communicate as we did with each other.
After leaving the Air Force, I moved to Midland to begin a civil litigation practice. In one of my first cases, I was asked by a partner in my firm to help him out in a case brought against our client by a lawyer in neighboring Odessa. Our client was based in Pennsylvania, and the plaintiff’s attorney set a deposition of our client there. The three of us travelled to Philadelphia the day before and as soon as the plane landed, my partner and the plaintiff’s attorney began making dinner plans. I did not know the plaintiff’s lawyer and was uncomfortable socializing with him given that we were adversaries. I should have trusted my Air Force experience, but I thought things would work differently outside the military cocoon. Needless to say, the dinner provided the opportunity to get to know plaintiff’s counsel and opened the door not only to a great working relationship in that case but to a life-long friendship.
I did not know what to expect when I came to San Antonio 27 years ago. It was a big town with lots of lawyers. I knew only a handful of them. I imagined that relationships would be more adversarial, arms-length. What I discovered instead, to paraphrase Yogi Berra, was that San Antonio was like a small town, only bigger. The lawyers were friendly and professional, just like those with whom I had practiced in Midland and Cheyenne. In fact after one appellate argument, my opponent came up to me and complimented me on a job well done! I knew then I was in the right place and have never forgotten the courtesy and professionalism he displayed that day.
I recently had a case in which a former partner and neighbor of mine represented the opposing party. We began virtually every meeting and telephone call with a conversation about our families, vacations and the misfortunes of the Dallas Cowboys. Through our relationship, and many frank discussions about our case, we constructed a path forward in a dispute that easily could have become bogged down in acrimonious arguments and behavior. All that is to say that there are benefits to having a friend or acquaintance on the other side of a case.
I will confess that I have had some unpleasant experiences with lawyers but by and large, they have only happened when I had no previous relationship with those lawyers. In retrospect, I think that the lack of a personal history with opposing counsel allowed behavior like:
a telephone conference followed by a letter that twisted what we had discussed into an unrecognizable rendition of the conversation.
withholding key documents in discovery in order to spring them on a witness in a deposition
a refusal to cooperate in pretrial matters or to agree to anything
the repeated failure to return phone calls and reply to emails.
People you know don’t do those things to you. They give you the benefit of the doubt. They call you to clarify any misunderstanding. They treat you with the respect they would accord any friend.
So how do you establish those relationships? One way is to get to know your fellow lawyers by being an active member of the Bar Association. Get involved in a section, committee or a pro bono program. You will be a better lawyer for it.
Another is to take the opportunity to get to know opposing counsel during the matter you are handling. Go to lunch, play golf, invite him or her to get involved in an organization in which you are active, talk about something other than the case or deal. Treat your opponent as you would like to be treated —fairly and with respect.
And remember what Speaker Sam Rayburn often reminded his colleagues in the U.S. House of Representatives —what goes around comes around.
January 2013 - ‘Tis the Season
In the last couple of weeks, a lot of elevator conversations have started with, “I can’t believe it’s December already.” “This year sure has gone by in a hurry.” “Are you ready for the new year?” These conversations, while seemingly superficial, are, like falling leaves and daytime temperatures below 60°, the first signs of the season — of the transition from one year to the next. For it is at the end of every year that we set aside time to reflect on the year gone by and to resolve to make the coming year better. It is a time of memory and hope.
The Past as Prologue
As I write this, a few memories of 2012 are left to be made — will we go off the fiscal cliff, will the Cowboys eke into the playoffs, will I be wearing shorts on Christmas day? Only time will tell.
Henry Ford once said that “history is bunk,” implying not too subtly that an obsession with the past will impede innovative thinking and progress. A differing and more eloquent view of the past was expressed by Shakespeare in The Tempest, Act 2, Scene 1, when Antonio tells Sebastian — “… what’s past is prologue; what to come.” In other words, the past shapes, and sets the context for, the future. Thus, the past is not to be dismissed but to be embraced.
Take, for example, how the history of the University of Texas volleyball team influenced their performance in the 2012 national championship game. From 2008-2010, they had three appearances in the Final Four. In 2009, they were leading Penn State two games to none in the finals, needing to win only one more game to claim the championship. In a gut-wrenching collapse, they lost 3-2. Three years later, in December 2012, they were back in the finals, this time against Oregon. Drawing on the experience of their coach and their past appearances, the Longhorns swept the Ducks 3-0. As UT coach Jerritt Elliot said afterward, “I’ve been in this thing a lot of times. We’ve broken through, this has been a long time coming.”
Sportswriters often refer to schools that have successful sports programs year in and year out as having a winning tradition where success in the past begets success in the future. In a recent article in the Express-News, Texas A&M’s head coach Kevin Sumlin, a former OU assistant, described the winning culture Sooner head coach Bob Stoops has created at Oklahoma: “It’s how you do things on an everyday basis, the expectation level you have with the players and the program, how you treat people.”
So rather than just recount the highs and lows of 2012, I propose that we reflect instead on how the events of 2012 have impacted our lives and prepared us for 2013.
Of Resolutions & Predictions
The beginning of the new year is often marked by a period of resolution-making. It is an exercise in identifying things you wish you had done the previous year and resolving to actually do them during the new year. Since most resolutions are broken shortly after they are made, you may find yourself making the same resolutions year after year, falling within the well-known definition of insanity – doing the same thing over and over while expecting a different result.
Equally maddening are the kissing cousins of resolutions – predictions. My favorite philosopher, Yogi Berra, once observed that “it’s tough to make predictions, especially about the future.” My mother and father certainly would have agreed. My mother was born 100 years ago in 1913; my father in 1910. They both lived to be 93 and in their lifetimes, they saw and experienced things that they could never have predicted. When my mother was a young girl, she travelled with her family from their dairy farm in Humble to West Texas and back in a covered wagon. My father grew up in a small frame house in Ex-Ray, just outside of Stephenville, and as a boy, watched his house burn down after the flame from an oil lamp caught the curtains on fire. Thirty-five years later, my parents were driving to California in their Studebaker with a bag of water strapped to the front grille to keep the radiator from overheating and flicking on their electric lights when they returned a week later to their unlocked, but predictably safe, home in Lubbock.
Of course, trying to predict what will be going on 35 years in the future is an exercise in futility. George Orwell tried it in his book Nineteen Eighty-Four, which he wrote in 1949. His depiction of a society tyrannized through surveillance and mind control by Big Brother seemed far-fetched when 1984 rolled around — although some might contend that he just missed the year.
The future is much more predictable from one year to the next. For example, in 2013, I undoubtedly will write “2012” on my first 10 checks in January. When I leave work to go home in the first two months, it will be dark. I will not lose 15 pounds by February or, for that matter, by December. My office will still look as though Hurricane Sandy veered west to San Antonio.
The Confluence of Past & Future
When Ed Koch was mayor of New York City, he was famous for walking the streets and asking people, “How am I doing?” The question evoked an evaluation of the past with an eye on the future. I may regret this, but let me ask you: In looking back on 2012, how are we doing? Is the bar association meeting your needs and expectations? How can we do better?
In an anticipation of 2013, I am reminded of what John M. Richardson, Jr., professor of international development at American University, said about the future: “When it comes to the future, there are three kinds of people: those who let it happen, those who make it happen and those who wondered what happened.” Let’s resolve to make it happen in 2013.
P.S. One more prediction: The 2013 Peacemaker’s Rodeo Round-Up will be one of our best and most fun yet as we honor Ray Terracena, The Bexar County Dispute Resolution Center, Alan Dubois and Judson High School with our Peacemaker Awards. I also predict that if you become a sponsor of or otherwise come to this event on January 25 at the Leon Springs Dance Hall, you will feel a lot better about yourself for having supported the AIM (Amigos in Mediation) Peer Mediation Programs in schools throughout Bexar County. We hope to see you there.
February 2013 - The Future of Judicial Elections
“No man’s life, liberty or property is safe while the Legislature is in session.”
— Mark Twain
Our lives just got more interesting. The Texas Legislature is back in session.
One of the more interesting bills the 83rd Legislature will be considering is one filed by Senator Dan Patrick, R-Houston, relating to the elimination of straight-party voting for judicial offices. Patrick’s proposal would move all judicial races, from chief justice of the Texas Supreme Court to justice of the peace, to the bottom of the ballot and not count straight-party votes in these races. A judicial candidate’s party affiliation, however, would be displayed next to his or her name. The bill is S.B. No. 103 and seeks to amend Sections 52.071(b), 52.092, 52.0921 and 65.007(b) of the Election Code.
What’s the Problem?
Senator Patrick’s bill is meant to divorce the way we elect our judges from the blindly political act of pulling the lever for a political party, without regard to the qualifications of the candidates. It is designed to make voters at least think about their choices and, optimistically, determine the qualifications of the candidates before entering the voting booth.
Why, you ask, should judicial races be different from races for the legislature or county commissioner? In Check One and the Accountability is Done: The Harmful Impact of Straight Ticket Voting on Judicial Elections, Meryl Chertoff and Dustin F. Robinson argue that straight-ticket voting in judicial races “corrupts the integrity of a judicial selection system, impacts judicial independence and makes the accountability of judges flow not to the voters, but to party bosses.” A good argument can also be made that straight-party voting is an anachronistic device designed to keep the majority party in power and should be eliminated altogether. Or, as one concerned citizen put it, “Straight party ballot voting for any office is the work of the devil.”
But politics is the art of the possible, and Sen. Patrick has made the pragmatic choice of taking a baby step by focusing solely on the judiciary. And his step is not without precedent. Dating back to at least 1997, the elimination of straight-ticket voting in Texas judicial elections has been considered by the legislature, but never enacted. Nationally, straight-party voting for the judiciary is a practice whose time has come and gone. Of the 13 states that allowed straight-ticket voting at all in the 2012 general election, only six permitted it for judicial elections.
The rub with such voting for the judiciary is that partisan sweeps result in highly qualified judicial candidates being defeated simply because they bear the wrong party label. Chief Justice Wallace Jefferson addressed the issue with respect to sitting judges:
“When qualified judges who have invested considerable time and expertise to pending cases and heavy dockets are removed from the bench by an electorate who likely voted along party lines, the public is ill-served. Party affiliation is no indicator of judicial competence.”
(The Advocate, vol. 53, Winter 2010, p. 9)
Will Outcomes Be Changed?
In the 2012 general election, the largest Texas counties reported the straight-party voting statistics contained on the chart on page 3. Given these startling percentages, you would expect the political affiliations of the judges to mirror exactly the party prevailing in the straight party vote. But that is not always the case. Charles Kuffner at offthekuff.com undertook an analysis of the effect of straight-ticket voting on the outcomes of the 2012 judicial elections in several Texas counties. For example, in Bexar County, 24,711 more Democrats voted straight-party than Republicans. If the margin of victory for a Democrat was less than 24,711, then, according to Kuffner, the straight-party vote was decisive. If more, then the Democratic candidate probably would have won anyway. Of the 12 races for District and County court in Bexar County, only two could be said to have been decided by the straight-ticket vote, even though only one Republican judge was elected. In Houston, only one race was decided by the straight-party vote and in Dallas, none were.
Of the 200,000 Bexar County voters who did not pull the lever, approximately 175,000 voted in the judicial races. While straight-party voting was not decisive in most of those races, the marginal advantage cannot be ignored. In other words, a Republican candidate in Bexar County had to overcome a 4 percent advantage for his or her Democratic opponent because of straight-party voting. Nonetheless, this analysis suggests that when it comes to judicial races, voters who do not vote the straight-party ticket may base their decisions on more than party affiliation, which also suggests that Democrats and Republicans might be less likely to vote along party lines if they could not vote a straight party ticket.
What Are the Consequences?
Almost 25,000 Bexar County voters declined to vote for any judges in the 2012 general election. An unintended consequence of eliminating the straight-party vote might be that even fewer people will vote in the judicial races. Fewer voters might mean better-informed voters, which would not necessarily be a negative. But the ostensible goal is not to decrease the number voting in judicial elections, but to require voters to consider each contested race and choose the best candidate.
That said, the elimination of straight-party voting would not eliminate the ability to vote for judicial candidates based on their political party. Because Sen. Patrick’s bill continues the designation of the candidate’s party affiliation, voters who get to the bottom of the ballot can still vote for the party of their choice — just on a candidate by candidate basis.
Sen. Patrick’s bill has been described as a solution in search of a problem. If the outcomes of judicial elections are not affected by straight-party voting, then what are we trying to solve? Perhaps the better question, though, is what virtue is there in straight-party voting? Expediency? Surely we aspire to more than just getting voters through the ballot as fast as we can or electing judges blindly rather than on their merits. As Hugh Rice Kelly has observed:
“At a minimum, [the elimination of straight-party voting] would remove the most blatant form of blind partisan voting by requiring the voter to at least pause long enough to make some kind of individual decision about each judicial candidate on the ballot.”
(The Advocate, vol. 53, Winter 2010, p. 31)
Why Do We Care?
Lawyers have a vested interest in the way judges are selected. We are officers of the court, charged with presenting our cases honestly and fairly, not only for the benefit of our clients but for the integrity of our judicial system. We must have qualified and competent judges to administer justice to those who come before our courts. Whether the elimination of straight-party voting improves the chances of selecting qualified judges or the current system of electing judges has served us well, it is incumbent on us as lawyers to make our views known to those who make the laws. Even if our life, liberty and property are not at stake, we owe it to our judges to weigh in on this debate over the way they are elected.
March 2013 - Judicial Selection: Imperfect Solutions
Last month, we focused on a bill introduced by Senator Dan Patrick, R-Houston, to eliminate straight-party voting for judges. This month, we step back and look at the broader landscape of judicial selection — where we are and where some would like to go.
There are three principal methods of judicial selection — election, appointment and merit selection. In Texas, as required by Article V of the Texas Constitution, all judges, with the exception of most municipal judges, are elected. You might be surprised to know that early in our state’s history, the Constitution of 1869 provided for judges to be appointed by the governor. Nine years later, however, the drafters of the Constitution of 1876 apparently had had enough of the governor’s judicial appointments and amended the Constitution to provide for the partisan election of all judges. And so it has been for the last 137 years.
While partisan elections are an anathema to most sitting judges, they do provide an accessible and realistic entry and, for that matter, re-entry point for those aspiring to the judiciary. Elections also hold judges accountable to the people they serve, they enhance democracy and, all-in-all, they have produced some very fine judges. Lest we forget, the revered judges who are turned out in periodic partisan sweeps were at one time the beneficiaries of the electoral system and may not have had the opportunity to serve at all under an appointive one. Which brings us to partisanship in judicial elections.
In a poll conducted in 2002 by Campaigns for People, 83 percent of voters supported non-partisan elections. While this poll reflects a belief that judges should not be elected or defeated based on party affiliation, it does not address the more troubling issues of campaign finance and judicial qualification that are present in non-partisan as well as partisan elections. Moreover, the perceived salutary effect of non-partisan elections is somewhat illusory. Even in a non-partisan election, a candidate’s party affiliation is not a secret, and more than a few have sought party endorsements and touted their Democrat or Republican bona fides during the campaign. In fact, removing party affiliation from the ballot may eliminate the only useful information many voters have in deciding how to vote in a judicial race. So if non-partisan elections are not the perfect solution, what can be done within the framework of elections for judges? One proposal, the elimination of straight-party voting, is a reasonable compromise that would ameliorate some of the effects of partisan elections without stripping the candidates of party identity on the ballot.
Elections and Campaign Finance
But those “solutions” beg the question whether we should be electing our judges at all. Although electing judges has stood the test of time in Texas, the process is fraught with problems, particularly in the area of campaign finance. Like any other candidate, a judge has to run a campaign to be elected. A campaign requires money. Those most interested in the outcome of judicial elections are lawyers and businesses appearing regularly before the courts, so most contributions to judicial campaigns come from them. Such support can create the appearance of impropriety when a judge is assigned a case in which a contributor is a party, particularly if the contribution is sizable.
The United States Supreme Court addressed this issue in Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252 (2009). In that case, Massey’s CEO contributed directly and indirectly over $3 million to the campaign of a candidate for the West Virginia Supreme Court while his company was appealing a $50 million judgment. The candidate was elected, and the case made its way to the state supreme court. Despite two requests by the plaintiff, the newly-elected judge refused to recuse himself when the case got to his court. The state supreme court reversed the trial court’s judgment in a 3-2 vote, with the Massey-backed judge voting with the majority. The United States Supreme Court held that under the circumstances of that case, the Due Process Clause of the Constitution required the judge’s recusal.
Texas has addressed this problem in part by limiting the amount of contributions that can be made by individuals, PACs and law firms, prohibiting contributions from corporations other than professional corporations and restricting the time period during which contributions can be accepted. Nonetheless, the necessity of raising funds puts the judiciary, the parties and their lawyers in an awkward position, particularly in light of Caperton. To eliminate the need for candidates to solicit contributions and remove the potential conflicts of interest, some states have adopted public funding for judicial races and others have required campaign contributions to remain anonymous to judicial candidates.
Elections and Judicial Qualification
Another drawback of partisan elections is the qualification threshold. If you meet the basic qualifications of a law license, age and years in practice, you can be a judge. There is no peer evaluation to determine suitability or depth of experience. Rather, the primary factors upon which most judicial races are determined are the name-recognition of the candidate established through advertising, his or her party affiliation and, ultimately, the wisdom of the electorate.
The most prevalent of the ideas to extract the judiciary from partisan elections is merit selection. In a merit selection system, whenever a judicial vacancy occurs, a commission of a few individuals, usually appointed by the governor, meets to screen and nominate persons to the governor to fill the vacancy. The governor is then required to appoint one of the nominees. After serving some period of time, the judge must stand for a retention election, which is uncontested.
Various iterations of merit selection have been proposed in Texas since 1946, none of which have been adopted by the Texas legislature. The staunchest advocate of merit selection in the legislature in recent times is Sen. Robert Duncan, R-Lubbock, who has introduced a bill to replace partisan elections with merit selection in every session since 1995. In his 2011 bill, Sen. Duncan apparently recognized the futility of trying to pass legislation providing for the initial appointment of judges by the governor and proposed instead an initial partisan election, followed by retention elections. Even with that change, his bill did not make it out of committee. To date, no bill for merit selection or retention has been filed in the 2013 session.
Proponents of merit selection argue that not only will it reduce the reliance on campaign funding but it will ensure a better qualified judiciary because of the screening required to select the nominees. In addition, it will prevent the disruptive turnover resulting from partisan elections and protect good judges from being ousted from the bench based solely on their party affiliation. Opponents contend that the candidates proposed to the governor under a merit selection plan will not be the most qualified but the most politically connected and that the process just shoves into the private smoke-filled room what should be conducted in the public light of day.
Partisan elections are not the perfect way to select judges given the reliance on campaign contributions, the risk of blind selection based solely on party affiliation and the lack of a screening process to identify qualified candidates. Merit selection has its drawbacks as well, primarily by removing voters from the process and shifting the selection process to a small, elite group answerable only to the governor. Sen. Duncan’s view is that “we’re never going to get this perfect, because there is no perfect solution, but at some point everyone has to lay down their own personal bias and say we have to make this work better.” In the words of Hugh Rice Kelly, “the problem now is to determine which imperfect solution to pursue.”
April 2013 - PLAY BALL!
“Baseball is 90 percent mental, the other half is physical” —Yogi Berra
Baseball is a lot like practicing law, particularly trial law. First, there is the preparation — scouting reports on your opponent and the judge, practicing your direct and cross examination as you would your batting and fielding, and psyching yourself up so that you will be at your best. And then there is the day of trial, filled with the same mixture of dread and excitement of stepping into the batter’s box and facing a 90 mph fast ball, the anxiety at the thought of striking out on your first at bat, and the anticipation of finally getting to play. Just as the umpires walk onto the field to begin the game, the judge enters the courtroom, asks for the lineups, turns to the plaintiff’s lawyer and bellows “Call you first witness.” Play Ball!
The relationship between baseball and the Law runs deep. The first commissioner of baseball was a federal judge, Kenesaw Mountain Landis, who, as commissioner, took on the Black Sox scandal and banned from the game eight White Sox players, including Shoeless Joe Jackson, for conspiring to lose the 1919 World Series. For good measure, he continued to serve on the bench during the 2 years it took to resolve the scandal. He did not even have to sacrifice a lifetime appointment after his resignation as a federal judge in 1922, serving as commissioner until his death in 1944.
One of the game’s best managers, Tony La Russa, was a lawyer. He attributed his success as a manager in large part to his legal training, which allowed him to “see the game playing out in front of me on the field in a very different way…. to put myself in our opponent’s dugout ….to analyze how to deal with a specific situation. The best degree a baseball manager can get is a J.D.”
“Correct thinkers think that ‘baseball trivia’ is an oxymoron: nothing about baseball is trivial.” —George Will
Many prominent San Antonio attorneys and others associated with the profession can attest to the connection between their college or professional baseball experience and success in their careers. See if you can identify some of them:
He played catcher for the Texas Longhorns from 1959-1962 during which UT won consecutive Southwest Conference titles and appeared in the College World Series twice.
He played in the Baltimore Orioles organization from 1954-1956 and pitched back-to-back no hitters, the second of which was against a team coached by Johnny Vander Meer, the only major league player ever to pitch consecutive no-hitters.
This former San Antonio attorney was a walk-on outfielder at the University of Texas from 1968-1971. His son currently plays for the Texas Rangers.
He was a standout pitcher for Texas A&M in the early 1950s who went on to become president of the State Bar of Texas.
He played college ball at Allegany Jr. College and Southern Illinois University from 1965-1968 and is now the starting catcher for the San Antonio Rangers of the San Antonio Men’s Senior Baseball League.
As we know, the Law is a jealous mistress. It commands our full attention and can sometimes cloud our judgment on a personal level. Baseball has a similar effect on its most ardent fans, an effect lost on those unaffected by the siren call of the game. Humorist Dave Barry explains it this way:
If a woman has to choose between catching a fly ball and saving an infant’s life, she will choose to save the infant’s life without even considering if there are men on base.
The Law, like baseball, also has uncodified rules and mores by which one is expected to abide. For example, the deposition of a party opponent is traditionally noticed for the office of opposing counsel. Failure to abide by this unwritten rule is not only a breach of etiquette but can have consequences when your client’s deposition is set. In baseball, a batter who is suspected of peeking at the catcher to see the sign for the next pitch is subject to immediate discipline through the administration of a fastball to the ribs.
The Law and baseball have many other similarities. There is no time limit. The players, like attorneys in court, alternate between offense and defense. Rules of the game are enforced by impartial umpires. Each side gets its turn in the field and at bat and cannot run out the clock to secure a victory. There are no ties. Although there is no crying in baseball, this principle is not universally recognized in the Law, particularly during testimony or after a verdict is rendered.
One difference between baseball and the Law is the involvement of spectators. Unlike the trial of a case, baseball encourages participation by the spectators. While those in the courtroom are admonished at regular intervals to be quiet, baseball fans, in the words of George Bernard Shaw, “are allowed, and even expected, to join in the vocal part of the game… to put the batsman off his stroke at the critical moment by neatly timed disparagements of his wife’s fidelity and his mother’s respectability.”
For those lucky enough to have played baseball or softball, there were many life-lessons learned in the process. For one, we learned that you can’t win ‘em all and that good fortune can sometimes trump pure talent. As Tommy Lasorda, manager of the Los Angeles Dodgers, said:
No matter how good you are, you’re going to lose one-third of your games. No matter how bad you are, you’re going to win one-third of your games. It’s the other third that makes the difference.
We also learned that hard work, fair play and teamwork pay off. And we learned from our baseball forefathers the standards by which we were to be held as players, just as our legal ancestors and mentors have shaped our conduct and principles as lawyers.
Baseball and the Law. Like peanuts and Cracker Jacks, they’re different but also a lot alike.
Answers to trivia questions:
1. John Pinckney, USMC, former Assistant US Attorney (WD TX), and trial lawyer.
2. Jimmy Allison, Executive Director of the San Antonio Bar Association since 1966.
3. Larry Berkman, tax and corporate attorney in Fredericksburg. His son, Lance, was a six-time All-Star with the Houston Astros and MLB’s 2011 Comeback Player of the Year.
4. Charlie Smith, trial lawyer and bar leader extraordinaire.
5. Tom Keyser, criminal and family lawyer; vice president of the San Antonio Bar Association.
May 2013 - The Ministry of the Bar
When we think of the Bar Association, we mainly associate it with monthly luncheons, continuing legal education, and periodic events to get us all together to support worthy causes. But there is a side to the Bar that goes largely unnoticed — its ministry to its own: to the families of those who have died, to those suffering from substance abuse, depression or anxiety, and to newly-minted lawyers who are just beginning their practices, just to name a few.
They don’t occur that often. Maybe three or four times a year. But when they do, they are a powerful and poignant reminder of those lawyers who have died, but whose legacy lives on. I am talking about the San Antonio Bar Association’s memorial services.
At the request of family or friends, the Bar Association will hold a memorial service for a deceased member of the Bar. The service is held in the Fourth Court of Appeals courtroom and the Justices of the Fourth Court preside. Family members and friends are called upon to remember these colleagues. The testimonials are personal and insightful, ranging from hilarious stories about the trials and tribulations of practice to the importance of faith in their lives. I come away from each one with a greater appreciation for the character of San Antonio’s lawyers.
The effect of the service on the families is palpable. The memories and pride for their loved ones well up as judges, court personnel, lawyers and friends filter into the courtroom and begin to reminisce about the lawyer they knew so well. The families are deeply touched by the service, especially when they see how much the one who meant so much to them was revered and respected by his or her peers. The service ends with the presentation of a resolution from the Bar Association, reciting highlights of the lawyer’s life and career.
While the service is not a religious ceremony, it is a religious experience, as moving as any held in a church sanctuary. If you know a colleague who has died and will be memorialized, you should attend the service. Not only will it mean the world to the family, but you will have a front-row seat to one of the Bar’s best ministries.
The Texas Lawyers Assistance Program became an active program of the State Bar of Texas in 1989. It is designed to assist lawyers caught in the downward spiral of alcoholism, substance abuse, and mental health disorders break out of that cycle. It does that by providing information about peer and community assistance and support groups to help those in need learn about and find solutions for dealing with their issues. Members of the San Antonio Bar are in the thick of this ministry. Through Lawyers Concerned for Lawyers, lawyer support groups have been formed at Alamo Heights Methodist Church (meetings on the first Tuesday of the month beginning at 6:30 p.m.) and St. George’s Episcopal Church (meetings on Thursdays at 8 p.m.) Texas Lawyers Concerned for Lawyers is a voluntary group of attorneys who work with TLAP to reach out to attorneys challenged by these issues that impair their ability to practice law. In San Antonio, a number of attorneys are active members of TLCL, and they volunteer to reach out to attorneys on a confidential basis to provide assistance. In that regard, the assistance provided benefits from the statutory confidentiality and immunity protections afforded peer assistance programs under the Texas Health and Safety Code. Moreover, TLAP staff and TLCL volunteers are independent of the State Bar disciplinary process and do not advocate for or against a lawyer who has sought help but finds himself in that system.
San Antonio, through the efforts of many local TLCL volunteers, also is hosting the 24th Annual Convention of Texas Lawyers Concerned for Lawyers from May 31 to June 2, 2013, at the Crowne Plaza Hotel. At this convention, an annual award, known as the Ralph Mock Award, in honor of the founder of TLCL, is given in recognition of service by TLCL volunteers to attorneys in need. Past recipients of this award from San Antonio are Allan DuBois, Cary Barton, Tom Keyser and Sara Dysart. These courageous lawyers have made the lives of many other San Antonio attorneys better through their commitment and dedication to this important ministry of the Bar.
Robin Teague would not refer to himself as a minister but let there be no doubt, he ministers to the young and inexperienced lawyer like no other. Robin is the chair of SABA’s mentor committee, one of the most vibrant of all of SABA’s committees and, without doubt, one of the best mentor programs in the state. Every month Robin organizes a relevant and interesting program, featuring presentations by leading lawyers, and cajoles his mentors and mentees relentlessly to be sure there is a good turnout. This mentoring program is a lifeline to those just beginning their practices, with useful tips from experienced lawyers on the how to’s of practicing law. It also provides a great opportunity for the more experienced among us not only to help others learn the practicalities of the practice but also to play a part in molding young lawyers into the type of lawyers who will be a credit to the profession.
Lest you think that the Bar’s outreach is confined to these programs, think again. On countless occasions over the years, the Bar has come together, as families do, to help lawyers, court personnel and their families through times of personal hardship. There is no limit to the generosity and empathy demonstrated by the members of our Bar in response to the needs of others. It makes me proud to be a member of our association and proud of the way we minister to our own in so many different ways.
June 2013 - Legal Aid in Texas
“It was the best the best of times, it was the worst of times ….”
– Dickens, A Tale of Two Cities (1859)
So it is with legal aid in Texas. The forces at work that have decimated legal aid funding in Texas are counterbalanced by the extraordinary efforts of the Access to Justice community, the Texas Legislature, and yes, the San Antonio Bar Association, to mine new sources of revenue for the provision of legal services to the poor.
The Structure and Funding of Legal Aid
To appreciate where we are today, a brief overview of how legal aid is administered and funded in Texas may be helpful. There are three primary legal service providers in Texas — Texas Rio Grande Legal Aid (TRLA), which covers Austin and San Antonio, south to the Valley, and west to El Paso; Lone Star Legal Aid (Lone Star), covering the Houston area north through Waco and East Texas; and Legal Aid of Northwest Texas (LANWT), covering the Dallas area, southwest to Midland/Odessa, and north to the Panhandle.
The principal sources of funding for these legal service providers have been the federal Legal Services Corporation (LSC) and the state Interest on Lawyers Trust Account (IOLTA) program. In 1984, the Texas Supreme Court established the IOLTA program and created the Texas Access to Justice Foundation (“TAJF”) to administer it. At first, participation by attorneys in IOLTA was voluntary but in 1989, it was made mandatory. As a result, the interest generated from lawyers’ trust accounts jumped from around $500,000 per year in 1988 to a high of approximately $20 million in 2007. This increase enabled the legal service providers to expand their programs to better serve the more than 5.7 million Texans who qualify for legal aid.
The Worst of Times
As we all know, 2008 brought significant changes to the financial landscape in this country. The bottom fell out of the stock market and the Federal Reserve pushed interest rates to near zero to stimulate borrowing. As a result, the interest rates on lawyers trust accounts plummeted from around 5.25 percent in 2007 to 0.25 percent in 2008. And there they have remained. Consequently, IOLTA revenues dropped from $20 million in 2007 to a projected $3.6 million in 2013.
At the same time, Texas legal aid providers lost $6.1 million in LSC funding at the beginning of 2012 and an additional $600,000 in 2013 as a result of the sequester. The fallout from these cuts has been devastating. Early this spring, TRLA faced a $2.5 million budget deficit. In April, it announced it was laying off 65 of its 294 employees to try to manage its expenses. Fortunately, through reductions in staff pay and other measures, that number was reduced to 36 by the May 17 effective date. Ten of those employees, including 6 attorneys, worked in San Antonio. TRLA, which serves about 25,000 clients per year throughout its 68 county territory, predicts that an estimated 5,000 fewer households will receive legal services this year because of the LSC funding cuts.
The Best of Times
In true Texas fashion, these setbacks have been the rallying point of a concerted effort to find alternate sources of funding for legal aid. The focal point of this effort has been in the Texas Legislature. Until 2009, the Legislature had never been asked to provide funding for legal aid. IOLTA and LSC revenues had been sufficient. In 2009, though, the story was different, and the Legislature stepped up with a $20 million shot in the arm to carry the providers to 2011. Facing the same dilemma in 2011, the Legislature provided $17.6 million to make up for the loss of IOLTA funds. This year, members of the Texas Access to Justice Commission (“TAJC”), TAJF, and the Texas Supreme Court, joined by a delegation from the San Antonio Bar Association, descended on the Capitol in February to meet with representatives, senators and their aides to request that funding for legal aid be included in the State’s budget. Our delegation included Justice Rebecca Simmons, Tom Keyser, Marty Truss, Dan Vana, David Evans, and me. We met with a number of legislators, including House Speaker Joe Straus. At the moment, the budget contains an appropriation of $17.6 million for legal aid, which, if adopted, will go a long way toward maintaining the current level of services.
In addition, the House and Senate passed a bill that updates an existing statute that allows the Attorney General to transfer civil penalties recovered by the state for violations of consumer protection, public health or general welfare law to the Supreme Court for legal aid and pro bono programs. The existing statute contains a $10 million limit on such transfers. The new legislation increases that cap to $50 million. Although such penalties are rare, the bill does present a possible long-term solution. On May 20, the bill was sent to the governor for signature. Fittingly, the new statute will be known as the Chief Justice Jack Pope Act in honor of the jurist who signed the Supreme Court order creating IOLTA nearly 30 years ago.
Of course, the San Antonio Bar Association has done its part, too. Through its annual installation gala and golf tournament, the Association raised over $50,000 in 2012-2013 for the Community Justice Program (CJP), the top pro bono program in the nation.
TAJF and TAJC are also focused on other ways to bridge the funding gap, including:
The Champions of Justice Gala raised $338,000 in 2013 from leading law firms and companies for the provision of legal services to veterans
The Champions of Justice Society recently formed to provide a vehicle to recognize those who financially support access to justice at a higher level
State Bar Dues Statement provides the opportunity for each lawyer to make a $150 contribution that goes to programs funded by TAJF and the Texas Bar Foundation
Prime Partner Banks they pay a higher interest rate on IOLTA accounts, ensuring more funds for legal aid. A list can be found at www.teajf.org.
The Importance of Legal Aid
In 2011, legal aid programs handled more than 100,000 civil cases, helping to improve the lives of more than 225,000 Texans, including persons with disabilities, the elderly, domestic violence victims, children and veterans. Many of those who received aid were from San Antonio and were served through the combined efforts of TRLA and the Community Justice Program. Take, for example, the case of Steven Sommerville, an unemployed disabled veteran with Stage-4 cancer. His veteran’s benefits were his only means of support. Shortly after he began receiving them, though, he was notified by the Veterans Administration that his benefits were being garnished because of a delinquent loan his ex-wife had obtained 20 years earlier but had failed to repay. That was when Mr. Sommerville came to a CJP veterans’ clinic and met San Antonio attorney Bill Tran. Mr. Tran immediately took action, petitioning the VA to discharge the debt in light of Mr. Sommerville’s medical disability and financial hardship. Six weeks later, Mr. Sommerville’s benefits were restored. Now in remission, Mr. Sommerville credits Bill Tran and the veterans’ clinic with getting his family and him through a very difficult part of their lives.
The Times Ahead
Without the helping hand of legal aid, many like Steven Sommerville could wind up lost in the bureaucracy or, as in the case of abused women and children, trapped in a never-ending cycle of violence. The Legislature has answered the call to maintain legal aid in Texas and undoubtedly will be asked to do so again unless IOLTA and LSC funding can be restored. In the meantime, we can do our small part by volunteering at the CJP and veterans’ clinics, checking off the ATJ contribution on our dues statements and becoming members of the Champions of Justice Society. It all adds up. Even in the worst of times.
July 2013 - All Good Things
All good things must come to an end. The 83rd Legislature. The Spurs’ fantastic season. And a year as President of the San Antonio Bar Association.
Let’s start with the Legislature. It could be said that the good thing about this past legislative session is that it came to an end . . . at least the regular session did. And with sine die on May 27, so came the end of several bills designed to minimize the effect of partisanship and money in judicial elections.
The bill filed by Sen. Dan Patrick to eliminate straight-party voting in judicial elections (SB 103) made it out of the State Affairs Committee by a one vote margin but the rest of the Senate expressed little interest in it. Senator Robert Duncan’s bill (SB577/SJR 34), which proposed initial partisan elections in judicial races followed by non-partisan retention elections, was considered in the State Affairs committee in April but never saw the light of day after that. A bill introduced by Rep. Rafael Anchia to provide public financing for campaigns for appellate judicial offices (HB 1126) made it as far as the House Elections Committee but died there.
With the Legislature thumbing its nose at these reform measures, what happened with Rep. Justin Rodriguez’s HB 2772, authorizing an interim study on the method of selecting judges, was Lazarus-like, reminiscent of legendary UT basketball coach Abe Lemons’ pronouncement when all seemed lost for the Horns’ 1977-1978 season. As his regular Sunday night television show opened prior to the last week of the season, Lemons was seen lying in a coffin in a dark suit with his hands folded on his chest around a carnation. He slowly rose up, looked straight at the camera and shouted, “We ain’t dead yet.” Indeed, they went on to share the Southwest Conference title and win the NIT.
Against all odds of surviving what appeared to be the collective will of the Legislature to quash judicial reform, HB 2772 breezed through the House and Senate and was signed by the Governor before the end of the regular session. The Act provides for the appointment of a committee comprised of six senators and six representatives to study all options for selecting trial and appellate judges, including partisan elections, non-partisan elections, appointment and combinations thereof. The Committee is to report its findings to the Lieutenant Governor, the Speaker and Governor not later than January 6, 2015. Whether the Legislature just kicked the can down the road or the study will lead to reform remains to be seen. If nothing else, the exercise will engage the State’s leadership, which may at least give any proposed legislation enough legs to make it out of committee in 2015.
So close … yet so far. If you, as I, spent a sleepless night distraught over the Spurs’ collapse in Game 6 of the NBA Finals, you also sensed the inevitability of the outcome of Game 7. But despite the disappointment of the last two games, the Spurs gave us a season to remember. Western Conference champs. Sweeps of the Lakers and the Grizzlies in the playoffs. Danny Green’s record-setting three-point exhibition in the Finals. The heart of Tim Duncan. It had to end at some point, but why couldn’t it have been in Game 6?
“If I have seen further it is by standing on the shoulders of giants.” In his famous observation to Robert Hooke in 1676, Isaac Newton captured the sense of gratitude for the work of others who go before us, for laying the foundation of what is built in the present. Each president and board of the San Antonio Bar Association is the beneficiary of each preceding president and board. We take the best of the ideas, programs and events of the past and do our best to improve upon them, to see just a little bit further or with a new perspective.
For those who have gone before, from past presidents Henry Burney, who served as our first president in 1916, to Gary Hutton, who did such a fantastic job last year and actively continued to serve the Bar this year as immediate past president, I am extremely grateful. I am also thankful to the officers and board members who served this year for their commitment to and support for this Association. But rather than attempt to recognize the contributions of each president and director over the last 97 years, I instead give you my final trivia quiz to see if you can identify the following San Antonio Bar leaders:
1. Which five San Antonio lawyers have served as President of the State Bar of Texas since 1940?
2. Which three San Antonio lawyers have served as President of the Texas Young Lawyers Association?
3. With which five Presidents of the San Antonio Bar Association did I have the privilege of practicing law?
Due to the vision of these lawyers and others who have served our profession through leadership in our Association, we enjoy outstanding legal education and other programs year in and year out. This year, for example, was the 50th anniversary of the A.A. Semaan Criminal Law Institute and the 17th year of the Bench Motions and Trials (formerly Anatomy of a Civil Trial) seminar. The Community Justice Program, the leading pro bono program in the nation, began eleven years ago and, to date, has processed over 7,000 cases.
Not only did we continue with the things we have done well over the years, but we also added some new programs and events this year. We started off with a new educational opportunity, the Juvenile Law Seminar, spearheaded by Judge Laura Parker. We held our first annual Chili Cook-off at the Barrera ranch thanks to the efforts of Bobby Barrera, George Taylor and Jimmy Allison. In May, our new Beer Law seminar at Freetail’s Brewery, organized by Dave Evans and presented in conjunction with the San Antonio Young Lawyers Association, was a rousing success. There is talk about expanding this idea into other spirits next year. Which brings me back to the shoulders on which we stand. We are blessed to have creative members of our board willing to turn out-of-the-box ideas into reality. Or as Yogi Berra said, “In theory there is no difference between theory and practice. In practice there is.”
This message is my last chance to express to you how grateful I am for having had the opportunity to serve you as the President of the San Antonio Bar Association. While a lot was accomplished, there is much still to do with the legacy we have inherited. With the work and dedication of the officers and directors of the board who will remain, of Jimmy Allison and the staff of the Association, and of the chairs and members of our committees and sections, I have no doubt that next year will be better than the preceding ones.
As I prepare to place the responsibilities of the presidency in the capable hands of Hon. Rebecca Simmons, I am reminded of Don Meredith’s rendition of Willie Nelson’s “The Party’s Over.” As you may recall, Meredith, the Dallas Cowboys’ first quarterback, went on to a career as a co-host of Monday Night Football. When a Monday Night game reached the point where the outcome was inevitable, Jeff and Hazel’s baby boy, as Meredith liked to call himself, would begin to sing:
Turn out the lights, the party’s over
They say that all good things must end
Call it a night, the party’s over
And tomorrow starts the same old thing again.
Like the 83rd Legislature, the Spurs’ season and Willie’s party, my year as your president is at its inevitable end. I thank you for entrusting me with the leadership of this great Association. It has been an honor and a privilege to serve you.
ANSWERS TO TRIVIA QUESTIONS:
1. State Bar Presidents – since 1940
R.N. Gresham - 1954-55
Ralph Brite - 1968-69
Charlie Smith - 1985-86
Jim Branton - 1994-95
Lisa Tatum - 2013-14
2. TYLA Presidents – since 1930
John Compere - 1978
Bill Ford - 1988
Sylvia Cardona - 2008
3. SABA Presidents
Jack Hebdon - 1969-70
Charlie Smith - 1976-77
Paul W. Green - 1991-92
Wallace Jefferson - 1998-99
Lamont Jefferson - 2006-07