From Courthouse Runner to Chief Justice: A Profile of Chief Justice Kem Frost, 14th Court of Appeals

By Meredith Parenti, Parenti Law PLLC

What led you to consider a career in law?

Growing up I didn’t have any lawyers in my family, but I learned about them early in life. I remember as a young child standing at my father’s side when a Sunday School teacher looked at me and told him, “You have a little lawyer there.” I didn’t know what a lawyer was but the comment so amused my father that I took it as a good thing.

Hanging on the wall of my office is a framed contract that I drafted in the fourth grade. It is typed, signed, stamped “duplicate,” and accompanied by a carbon copy. The official-looking document spells out the rights and obligations surrounding a treasured possession my younger sister wanted to borrow. The contract would be an impressive piece of work except that instead of providing for damages in the event of breach, it says that should my sister violate its terms, the contract is void. (At the time, a law school class covering legal remedies was at least 12 years in my future.) Still, it was a pretty good effort for a ten-year old.

When I was a sophomore in high school, I took a vocational guidance course through First Presbyterian Church. We visited professionals from several fields. One week we went to the Harris County Courthouse to see Judge Wyatt Heard, the father of one of my Lamar High School classmates. (See attached photo.) The visit made quite an impression on me. I knew from at least that point that one day I wanted to be a lawyer and maybe a judge.

During college I got a summer job in downtown Houston working as a runner for Liddell, Sapp, Zivley, Brown & LaBoon (now Locke Lord, LLP), the firm that later would give me my first job out of law school. My main duty as a runner was to file papers at the courthouses. Occasionally, I would get to sit in a courtroom “on call” for firm attorneys in trial. Watching lawyers in action was the best part of the job.

Spending so much time at the courthouse, I got to know every nook and cranny of the building and all the secrets to getting things processed expeditiously. I struck up a good rapport with the clerks who manned the filing windows and the personnel who worked in the County Law Library. Those people were still there when I returned as a new lawyer. (By that time, the County Law Librarian had become a judge and he remembered the friendly runner who daily listened to his stories while making photocopies.) The friendships I formed and the walking-around-knowledge I picked up as a courthouse runner served me well in my early years of practice. Today, as a judge, I work in the same building, now restored to its 1910 glory.

When did you first realize that you might be interested in becoming an appellate justice?

While I was in private practice, I worked at two big firms, first as an associate at Liddell, Sapp (now Locke Lord, LLP) for nearly four years and the rest of the time at Winstead, P.C., where I became a shareholder. Neither firm had an Appellate Section while I was there. I enjoyed brief-writing and gravitated toward appellate work, but I spent much more time in trial courts. For most of my 15+ years in private practice I concentrated heavily on injunction work, the legal profession’s counterpart to working in an emergency room. The practice was demanding, fast-paced, and often unpredictable. The same can be said of motherhood. Soon after I started having children, I discovered the unsustainability of having two jobs like that.

My husband and I were blessed with four sons in less than five years (no multiples). The growing demands of motherhood and the crazy pace of the practice prompted me to consider making the move that until then had seemed like such a distant spot on the “someday” horizon. When a vacancy opened up on the Fourteenth Court of Appeals in late 1998, I applied for the position. Then-Governor George W. Bush appointed me to fill it.

I’ve now been a judge longer than I was a practicing lawyer. When I went on the appellate bench, our youngest son was a baby. Last week, he graduated from high school and will be heading to college in August. Becoming a judge when I did was the perfect vocational move. I remain as grateful today as I was then for the opportunities to serve, grow, and contribute that life on the appellate bench provides.

After 15 years as a civil trial and appellate practitioner, were you surprised by any aspect of your new job as an appellate justice and, if so, which aspect of your new role has surprised you the most?

Once I took my place on the court of appeals, I developed a better appreciation for the appellate process. Appellate judging is a fascinating and sometimes surprising phenomenon. Judges come to the appellate bench from different paths and different places, each bringing to the work of the court special gifts, unique perspectives, and idiosyncratic styles. Together, we solve problems. As a team, we are far more effective than any one of us is individually. Though we sometimes disagree, we share a genuine zeal to find the right answer and to reach the right result. The process promises surprises and there have been plenty over the years.

From time to time, there are jurisprudential surprises, too. The peculiar shared-jurisdiction structure of the Houston courts of appeals delivers them regularly. Because the First and the Fourteenth share judicial power in a single ten-county region, when the two courts come down on opposite sides of a legal issue, people and trial courts in the affected districts ostensibly must obey two opposite yet equally binding rules. It makes the law unpredictable in split-of-authority cases and that tends to produce surprises. As a practitioner, I occasionally ran into conflicts between the First and the Fourteenth but until I went on the bench, I did not realize how frequently they occur nor did I fully appreciate the inherent challenges they present.

As the longest-serving member of the Fourteenth Court of Appeals, what significant changes have you seen at the court since your appointment to the bench by then-Governor George W. Bush in 1999?

C.S. Lewis said, “Isn’t it funny how day by day nothing changes but when you look back everything is different.” That’s how I feel when I think about my time at the court.

When I arrived 17+ years ago, the designated author of an opinion would circulate a single draft (printed on yellow paper) to the other panel members, one at a time in order of seniority. Judges would handwrite edits and circulate proposed revisions on a single hard copy. If someone else had the record, you had to wait to review it, and sometimes the record was so big and heavy you had to load the volumes onto a cart to get it to your office. Today, with electronic filing and circulation, panel members can view the record and proposed drafts and revisions simultaneously. We can access and word-search records with the stroke of a key. Now, the hyperlinking of citations in the briefs makes access to the facts and the law nearly effortless. These and other improvements have revolutionized the way the court processes opinions.

One of the best changes to date came in 2011, when the First and the Fourteenth moved into the beautifully restored Harris County 1910 Courthouse, where we now enjoy state-of the-art facilities in historic surroundings. The new place provides fabulous and functional office space for judges and staff as well as majestic public areas. The two courts and the entire appellate community enjoy the advantages of our new home in the splendid old courthouse.

The courts and public also benefit from many other positive changes in technology, docket management, court administration, and general operations, far too many to list. Suffice it to say that today’s judges and court staff stand better-equipped to serve the people of Texas.

What are your favorite aspects of being an appellate justice?

My favorite part of the job is solving problems.

How would you describe your judicial philosophy?

I am a textualist in the tradition of the late, great Justice Antonin Scalia. My judicial philosophy mirrors his.

On what devices (e.g., desktop at the court, remotely from home, hand-held devices) do you prefer to review appellate briefs?

I can access my court computer from work or home. I generally read briefs at my desk, on a computer screen. (Reading briefs under a tree, at the beach, or while lounging in a hammock has never worked for me because a big part of my process is taking notes, making chronologies, reading authorities, and accessing the record– activities that I find easiest to perform at a desk.)

Do you have any suggestion for improving the readability of electronic briefs, as in particular styles, formats, or fonts that you find easiest to read?

Use boldfaced type and italics sparingly so that it means something when you do.

In your opinion, what distinguishes an effective appellate brief from one that is not?

Good writing.

Do you have any suggestions about how attorneys can improve their written work product in the court of appeals?

Tell the court, in the simplest possible terms, what you want and why you are entitled to it. To maximize clarity, write precisely. Provide context, but do not overwhelm the reader with unnecessary information. Strive for brevity. Invest the time to rewrite, edit, and proofread.

Brief writers can enhance readability by doing these simple things:
  • Use headings and subheadings to give the reader a roadmap. (Make the headings and subheadings parallel so that they tell a story if read in succession.)
  • Use active voice whenever possible.
  • Vary sentence length and complexity.
  • Mind your tenses. (State facts in the past tense and propositions of law in the present tense.)
  • Use short words. Substitute words for phrases. And, eliminate unnecessary words and phrases.
  • Use reader-friendly terms and use them consistently, both for clarity and so that word searches will reveal all relevant points of discussion.
  • Use footnotes sparingly.
  • Omit unnecessary facts and dates.
Most judges find visual aids especially helpful, so when it is feasible, include diagrams, charts, graphs, and photos in the body of the brief.

Do you prefer legal citations in appellate briefs to be contained in the text itself or in footnotes?

As a reader, I prefer citations in the footnotes, but I don’t feel strongly about it and I believe mine may be the minority view. Most lawyers and judges seem to prefer citations in the text, so when writing majority opinions, I generally bow to that preference. But, for my separate writings, I tend to put citations in the footnotes because that makes for a crisper, pithier read.

How do you decide whether to grant oral argument in one of your cases?

I generally find oral argument helpful. For many, oral argument is important for procedural fairness because it provides parties with their “day in court.” The chances of getting a panel to grant oral argument seem to increase when the issue is new or the law is undeveloped. When appropriate, advocates should emphasize the novelty of the issue and point out when the case presents an issue of first impression. Many judges find argument especially helpful in statutory-construction cases. Some lawyers ask for oral argument without giving any reasons. Explaining why oral argument would be helpful is a key first step to getting it. The quality of the briefing usually factors into the decision, too. A good brief suggests the argument is likely to be of the same caliber.

In what ways do you find oral argument helpful or unhelpful?

Oral argument is most helpful when everyone comes to court prepared. Sending a “focus letter” identifying specific issues the panel would like the advocates to address during oral argument seems to improve the experience for everyone.

Do you have any suggestions for how attorneys can improve their performance at oral argument?

The process tends to be most effective when advocates do the following:
  • assume judicial preparation;
  • focus on the points that have the best chance for success;
  • get to the point without spending too much time providing factual context;
  • emphasize and clarify;
  • listen carefully;
  • master the record as well as the holdings and reasoning of key authorities;
  • come prepared to explain what the advocate is asking the court to do and what the impact of the holding would be;
  • clearly articulate the rule the advocate wants the court to apply and explain how the court has the ability to do what the advocate is asking;
  • welcome questions from the bench and answer them without dodging; and
  • maintain credibility by not pushing the law or the facts too far.
What are your interests and hobbies outside of the legal profession?

My biggest interest is being with my family, so to some extent their interests have become mine. My husband is an avid golfer, so I enjoy time with him on the golf course, mostly driving the cart but occasionally swinging a club (really ugly golf.) One son is a music enthusiast and I love watching him perform on drums or guitar. Another son runs cross-country and I enjoy cheering him on. Two other sons really like going new places and I get a kick out of planning interesting and adventuresome vacations for our family.

I like projects and my volunteer work provides plenty of opportunities. It seems I always have a few projects going.

Reading and writing are favorite pastimes. I enjoy reading American history in period prose, especially Presidential biographies. (I like finding accounts of historical events in older sources, written close in time to the event. The writers’ perspectives are interesting and sometimes surprising.) I have a handful of ongoing writing projects, some well underway and some just beyond the planning stages.

I’m a collector and I enjoy hunting for treasures, especially antique and vintage things. I also enjoy genealogy and learning about ancestors. I like piecing their stories together.

Though I’m not artistically gifted, I enjoy being creative and from time to time I dabble in painting, pottery-making, ink drawing, printing/imprinting, and the like. I especially enjoy retrofitting old things (interesting antique finds) for new purposes. I also like designing living spaces.

I especially enjoy unwinding with sisters and friends -- swapping stories, playing Head’s Up!, exploring new eateries, or just hanging out. Some of my best friends today I met in elementary school. There’s something special about lifelong friendships and part of the beauty of being a native Houstonian is having lots of lifelong friends in town.

And, I love taking short vacations – little get-aways that allow you to recharge your batteries without paying too much of a price for taking time off. I’m looking forward to a week-long Frost Family adventure this summer, a quick “sisters trip” to Colorado this fall, and a high school reunion later this year.