Features for November 2018

Welcome to the November 2018 edition of the Appellate Lawyer --
the newsletter of the HBA Appellate Practice Section.

by Justice Evelyn Keyes and Angela Spoede, First Court of Appeals, Houston

Edited by Jo Ann Storey

Edited by Jo Ann Storey

by Jill Schumacher, Caldwell Boudreaux Lefler, PLLC and Adam Schumacher, CISSP

Case updates for the Houston practitioner
by Rachel Stinson, Morgan, Lewis & Bockius, LLP
Kyle Lawrence, Beck Redden, LLP

by James Marrow

A look at the upcoming CLE luncheon for the
HBA Appellate Practice Section

I’m (Going to Be) a Lawyer. Why Should I Study the Humanities

by Justice Evelyn Keyes and Angela Spoede

This article is on a much deeper topic than the ones Angela and I usually write about. But I think it is one that is important to all of us—more than we commonly realize—and one we seldom think and talk about.  Why, as lawyers and judges and future lawyers and judges, should we study the humanities?  What do they offer us that we need in our daily personal and professional lives? 

First of all, the legal system is a structured value system.  The positive law—the public laws we write in our legislatures, incorporate in our law codes, and enforce in our legal decisions—can be defined as those values that we as a society have determined to promulgate, to publish, and to enforce as rules of conduct equally applicable to all (affirming equal protection of the law and due process).  The law is the embodiment of the ordered rights and liberties that we and our fellow citizens mutually perceive to be essential to advance our common good.  If you think about it, each operative concept expressed here—equality, rights, liberty, the common good—is a value concept, indeed a moral concept.  Law reflects what we as citizens of a republic founded on constitutional principles (fundamental value concepts) agree should be the common rules of conduct enforced equally by a government of all upon all and on behalf of all for our mutual safety and happiness (our common good).  And when we determine that the law is not fair or just or does not produce good results (value concepts) we change it, using the tools of representative government—government grounded in respect for the equal dignity and worth of every person (the essence of value).

But what does that have to do with the humanities?

The humanities teach values and the means of analyzing and applying values—analysis, interpretation, logic, and evaluation.  They give us the tools for making sound laws and sound legal arguments and judgments.  Lawyers work every day with both the substantive values and the analytical tools given them by the humanistic study of “the best which has been thought and said in the world.”[1]  

Law takes values seriously. It does not treat them as historical artifacts to be examined with an entomologist’s microscope or an anthropologist’s critical legal theory.  It treats values as things that matter to us and make us what we are.

What values do the humanities teach us that lawyers use?  What tools do the humanities give us to apply our values to practical ends?  Think about it.

English literature teaches us what it is to be fully human and how to think metaphorically and analogically, appealing to our emotions as well as our minds.  It teaches us to interpret what the words on a page really mean and how those words, their context, and the artist’s tools work to shape meaning.  It teaches us to look for what matters—what the author is ultimately trying to say and the tools he uses to say it.  These are tools that a lawyer or judge can and should use to help his audience see what he sees from where he is in the context of where we are. 

History teaches us what mattered to people in the past, what caused them to act as they did, what happened when they acted as they did, and which outcomes turned out to be better over the long term.  This is all information invaluable to us in making our own decisions about what we as a society should value and how we should act (moral concepts) in present circumstances.  The study of history gives a broader context to the specific conflicts and legal concepts that the bench and bar consider every day.

Philosophy offers us the tools of logical argument, complete with the thinking of the greatest minds of the past on the most profound questions of the present: What is justice? What are the good and the right?  Does natural science or natural law or divine law or history have an essential arc that leads to an ineluctable end, or do we construct our own existences and are we responsible for our own destinies?  How do we justify our lives?  Does an ideal social contract or a set of objectively just fundamental principles underlie a truly just society, and if so, how?  In seeking to answer these questions, the study of philosophy provides attorneys and judges with the vocabulary and language to consider such weighty concepts as rights, justice, and law.  Though the concepts are abstract, their impact on the day-to-day functioning of a court is undisputedly concrete—it goes to the very heart of what courts do.  The study of philosophy helps us learn to bridge the gap between abstract concept and concrete reality.

And the study of religion addresses the spirit and clarifies the moral codes for organizing our personal and social lives. Along with civil law (the Code of Hammurabi), religious law (the Ten Commandments) underlies most fundamentally the rule of law.

Think about how legal opinions (and briefs) are constructed and what they do.  The first part of an opinion sets out the issues, the material facts of the case, and the governing law—what matters factually and legally, what is material to the decision.  The judge then applies the law to the facts through logical argument from legal principles and the material facts, hopefully leading to a logical conclusion.  When no clear answer flows from the black letter law as applied to the facts of the case, the judge applies principles of equity or soundness in considering the consequences of one judgment versus another. How well do the opinion and judgment accommodate the relevant principles and facts?  What will be the effect of the decision on the law and on the parties?  The judge evaluates the potential outcomes and reaches a judgment—a value judgment—that the judge objectively believes best accommodates all these considerations. And that decision is always subject to correction.

The entire process requires applying the values we as a society have determined to live by when there is a legal issue—an issue requiring resolution by the rules we have set down in our constitution and laws for the governance of all.

I end with this consideration.  In one recent week, four of the five cases submitted to our panel for review and decision involved sexual assaults—sexual assault of an adult, sexual assault of a minor, sexual assault of a disabled person, and sex trafficking of a minor.  Why is sexual assault a crime when love and sexual relations in the right context are at the core of our being and valued above all else? The key word is “right.”  Doing what is “right” is the operative procedural word for enforcing moral values and laws.  It lies at the core of how we construct a just society that advances the common good.  It determines the behavior we penalize as crimes and wrongs, or torts, and the behavior we regulate in a society of ordered liberties.

Humanistic studies are studies of value, and they impart both substantive knowledge and the tools of analysis, interpretation, logic, and evaluation.  We should continue to study, to think about, and to debate the substance the humanities impart to us, and to use the tools they give us to make informed decisions about what is best for all of us, as people, as citizens, and as guardians of the law. 

[1] Matthew Arnold, “Culture and Anarchy” (1869).

An Interview of Justice Kevin Wiggins

Interview conducted by Carol Farquhar, Dallas, Texas.
Except edited and submitted by Jo Ann Storey.

The following is an excerpt of an interview of Justice Kevin Wiggins (KW) conducted on July 10, 2015, by Carol Farquhar (CF).  Justice Wiggins served on the Dallas Court of Appeals from March 1992, through December 1992.

Justice Wiggins’s interview is part of an ongoing effort by the State Bar of Texas Appellate Section to preserve and document matters of historical interest to members of the bar.  The video of Justice Wiggins’s oral history is available at this link on the Section’s website: https://vimeopro.com/user45474482/oralhistoryproject/video/157519278.

CF:      Judge Wiggins, when did you first think of becoming a lawyer?

KW:   When I was about 11 or 12.  I grew up during the Civil Rights era and was fascinated with what was happening in terms of how the law could bring about change and equality for African-Americans.  I wanted to be a part of that process.

CF:      Was there anything you did before going to law school that prepared you for law school?

KW:    No.  I was fortunate enough to get into Harvard.  There were no lawyers in my family, so I didn’t know exactly what being a lawyer would mean, or the path to take, other than I knew that lawyers had to go to law school.  All I knew was, I wanted to be a Civil Rights lawyer.

CF:      After getting your undergraduate at Harvard and your J.D. at Stanford, how did it come about that you chose to practice in Dallas?

KW:    My wife was a student at Harvard Medical School.  We had met as undergraduates, and so we had a 3,000-mile romance while I was in law school and she was in medical school.  Law school was three years and medical school was four years, so I had to make a decision before she did.  It was a collaborative decision.  We drew up lists of cities.  I got peremptory strikes on some of her cities, she got peremptory strikes on some of mine.  We narrowed it to Dallas or Washington.  The clinical training opportunities for her were better here, she felt.  I was comfortable with the Dallas law firms I had interviewed with; one had extended me a job offer, so we decided to move to Dallas.

CF:      Tell us a little bit about your practice before you went on the court.

KW:    I was a lawyer at Strasburger & Price.  I became a partner there, I guess in ‘88 or ‘89.  I did antitrust litigation, complex business litigation, business torts, that kind of thing.

CF:    Were there any particular cases before you went on the court that were particularly inspirational or challenging?

KW:  Actually, the first assignment that I got when I went to Strasburger & Price was a case involving allegations of price-fixing among natural gas producers in the state of New Mexico.  The case had been bifurcated and a liability verdict had been entered against our client.  We were moving for a new trial on the ground that one of the jurors had failed to disclose information during voir dire.  The information he had failed to disclose was that he was related to members of the class.  The law at the time was not all that clear.

While the case was pending before the District Judge, the Supreme Court accepted cert in a case that raised the exact issue in our case, when does a juror’s failure to disclose information deprive one of a peremptory challenge?  I ended up working on an amicus brief to the Supreme Court.  The Court upheld the principle that we needed to maintain our new trial motion.  I was inspired by that [experience], in terms of appellate law.

CF:      When did you first decide to become a judge?

KW:    That’s an interesting question (laughs), and it’s a complex question.  I remember very clearly getting a call from a good friend, Mark Stanley, in January, 1992.  My wife and I both had the flu.  Mark had been active in Governor Richards’ campaign.  He told me there was an opening on the Fifth Court of Appeals and that I should indicate [to the Governor] that I was interested [in an appointment].  I told him I was not thinking clearly (laughs) because of the flu and to call me back in a couple of days.  We talked further and, in the meantime, someone else filed for the position.  Mark told me I’d have to run in the primary.  I kind of bowed out because I’m not a politician and I’d never run a race.  Mark said the Governor wanted me to do it, so I talked to my partners at Strasburger.  They thought it was a good opportunity, so I decided to do it.

CF:      What can you tell us about running in the primary?

KW:    It was a real eye-opener for someone with no political experience.  It called on me to develop skills I did not have, walking up to strangers and asking them for votes, calling around trying to raise money.  It was a wild process.  I visited places I had never been (laughs), never heard of.  It was an educational experience.  I did win the primary, so that afforded me the opportunity to serve on the court.

CF:      In what way was it eye-opening?

KW:    That goes to my criticism of the system.  The only people really interested in the race are the people who would have cases before the court, or were likely to have cases before the court.  Those are the ones who would give you money.  I don’t think you could design a system more calculated to undermine public confidence in the judiciary than one in which the people who have cases before you are paying you (laughs) to run.  And the public is supposed to believe that has nothing to do with the outcome of the case.  Now, I can say, having served on the court, I don’t think that it does, but certainly in terms of public perception, I think it creates a real problem.

CF:      Did Governor Richards appoint you to the bench?

KW:    Yes.

CF:      What was it like working on the Court of Appeals?

KW:    I loved it.  It was a great job.  It fitted me temperamentally, I think I was well suited for it.  I like to write, I like to participate in oral argument.  I did that while I was in law school. I really enjoyed my time on the court.

CF:      What part of the job as an appellate judge did you find most interesting?

KW:    I thought the most interesting was the oral argument.  I still believe that oral argument is a valuable tool for the appellate lawyer.  The best advocates are the ones who will answer the questions the judge asks, as opposed to coming with a prepared [speech].  The object is to convince the judge to decide in your favor.  To do that, you’ve got to satisfy the concerns the judge has and answer the questions he has.

CF:     When you were on the bench, did you find that the appellate lawyers were able to adequately respond?

KW:    I did, for the most part.  I think Dallas, the Fifth District, has a very talented Bar.  The people who came before the court had experience arguing before the court and they knew how to handle themselves.  I think they did a good job.

CF:      What were some of the challenges you faced as an appellate judge?

KW:   The major challenge was the whole election process, to be quite honest.  Running in the general election was the part of the job I liked the least.  I detested going out and campaigning and raising money.  But, in Texas, it is a necessary evil. 

CF:      Were there any cases that you found particularly challenging?

KW:   At first, I didn’t have a lot of experience with criminal law.  The judge I clerked for in Massachusetts didn’t need any help on the criminal cases; his clerks only did the civil stuff.  I didn’t have a criminal practice when I was at Strasburger & Price.  It took probably a month to familiarize myself with that area of the law.  The civil cases, obviously I was much more familiar with.

CF:      Were there any particularly memorable cases that you were involved in?

KW:    I remember one case where probable cause was the issue.  The incident occurred in Highland Park.  As part of the probable-cause evidence, they cited that the defendant was African-American.  I remember asking the other judges on the panel, “What relevance does that have for probable cause?”  There was this kind of silence.  But, then, I do recall that in the opinion, that fact was not mentioned as a factor in the probable cause finding.  So, that was interesting just from a historical point of view, and certainly given the issues that are being raised today.  I think the judiciary has to be careful that they don’t stigmatize people because of race and use that as a factor in probable cause findings.

CF:      Can you tell us how the judges on the court interacted with each other during the day?

KW:    It was fairly collegial.  There wasn’t a lot of interaction outside of oral argument.  There would be oral argument and then the judges would retire to the back room to discuss the issues and how the case would be decided.  There were some fairly robust arguments during that process.

CF:    Do you have any advice or pointers for anyone practicing in appellate law, based on your experience with the court?

KW:    Yeah.  In terms of oral argument, I think the most important thing is to know the record.  That controls what you can and cannot say, in terms of what happened below.  Answer the questions asked during oral argument before going on to make whatever points you want to make.  Write succinctly and clearly.  Finally, I think a certain decorum during oral argument [is necessary], with opposing counsel and with the court.  It doesn’t stand you in good stead with the court to be vitriolic with opposing counsel or with the court.

CF:      Would that carry over to what we call a jury argument?

KW:    I think that’s right.  The record establishes what the facts are.  The facts have been determined, unless there’s a legal sufficiency point.  Concentrate on what the legal issues are.  The appellant should know that only 15 or 20 percent of cases are reversed and, therefore, he or she has a heavy burden.  The issue for the appellant is not whether the court can decide the case another way, but whether the court must decide it another way.  I think the path of least resistance is for the court of appeals to affirm.  The appellant needs to say, no, this was clearly wrong and there will be these consequences, so you must decide it another way.  I think that’s the approach the appellant should take during argument.

CF:      What advice would you give to someone who’s interested in becoming an appellate judge?

KW:    Well, in Texas you have to have political friends.  I think that that’s the short answer to that.  This is not a meritocracy.  It’s pretty much a question of who you know.  The path in Texas is to become involved in politics.  I was not all that involved in politics, to be quite honest.  But, I had friends who were very actively involved in politics who thought I would do a good job in this position and they recommended me.  So, if that’s something you know you want to do, the path is to somehow become involved in the political party and be recognized by people who have the power to make recommendations to people who will appoint you.

CF:     How did your experience on the court help your work as a trial lawyer and as an appellate lawyer?

KW:    It certainly helped me as a trial lawyer.  I view motions for summary judgment almost like appellate work.  You know, it’s, as a matter of law, this case must be decided this way because the facts are undisputed and clear.  So it certainly helps my framing summary judgment arguments much better.  In terms of the appellate work, I know the process and how to frame my arguments in order to be most effective in the court.

CF:      Thank you for your time here today.  It’s been a pleasure.

KW:    Thank you.

CF:      We appreciate your service to the Bar.

KW:    Thank you.

An Interview of Judge Larry Meyers

Interview conducted by Andrew Guthrie, Haynes & Boone, Dallas, Texas
Except edited and submitted by JoAnn Storey

The following is an excerpt of an interview of Judge Larry Meyers (LM) conducted on June 25, 2015, by Andrew Guthrie (AG).  From 1989 to 1992, Judge Meyers served as an associate justice on the Fort Worth Court of Appeals.  At the time of his interview, Judge Meyers was a judge on the Court of Criminal Appeals, having been elected to that court in 1992.

Judge Meyers’s interview is part of an ongoing effort by the State Bar of Texas Appellate Section to preserve and document matters of historical interest to members of the bar.  The video of Justice Meyers’s oral history is available at this link on the Section=s website: https://vimeopro.com/user45474482/oralhistoryproject/video/146340359

AG:     Judge, I appreciate you being here with us today.

LM:     I’m quite honored.

AG:     What was it that made you decide to become a lawyer?

LM:     I guess it was about halfway through college [at SMU].  I had taken a lot of science courses, thinking I would go to medical school.  But, then I decided I’d rather go to law school, so I took the LSAT and did that.

AG:     You went to the University of Kansas for law school?

LM:     Uh-huh.

AG:     Came out and worked as a District Attorney for a few years.

LM:    I worked for a judge in Kansas City after graduation, and then I was an Assistant District Attorney.

AG:     You went into private practice in Fort Worth for a dozen or so years.  What was the nature of your practice? 

LM:     It was kind of general.  I did a lot of everything, some civil litigation, lots of criminal defense, and probate.

AG:     Talk about the persons who guided you early on in your career.

LM:     There were a lot of good lawyers that I looked up to.  Some of them were very generous in helping me out in my practice; a lot of them I went up against in my practice.  I learned a lot from the way they handled their cases.

AG:     Did you do appellate work in your private practice?

LM:     Yes, I did.

AG:     You joined the Second Court of Appeals in Fort Worth in 1989.  Can you talk about what that transition was like?

LM:    I ran [as a Republican].  No one from that party had ever been elected to that Court.  I was elected along with some other very outstanding judges.  They were very helpful to me as far as getting me transitioned.  I’m very grateful to their hospitality and efforts to help me during the four years I was on the Court.  It had been almost a decade since the Court had begun to decide criminal and civil cases, so we were pretty accomplished in handling both.  It was quite interesting and I enjoyed that.  The staff was also was very good and they were always very helpful to me.

AG:     Talk a little bit about the early-learning process on the Court.  What was that like?

LM:     Unfortunately, you’re elected to these courts and so, there’s always political pressure on you.  But I was going to try to avoid all that and the judges that I was served with had that same attitude.  So, it was just a matter of trying to get to the bottom of what the case was about, try to be not so expansive, and be as open-minded as you could.  There was always new law coming from higher courts, so we always wanted to be aware of that and didn’t necessarily want to rubber stamp an opinion one way or the other.

AG:     What was it about that job that attracted you, that made you want to run for that position?

LM:     I knew I probably didn’t have the disposition to be as good a trial judge as a lot of other folks had been.  I always liked the research and the writing part of it, that’s what interested me more.  Plus, you are able to delve into newer aspects [of the law] that you didn’t quite have the freedom to do on the trial bench.

AG:     Talk generally about the relationships on the court, learning how to work with other judges and deciding cases together.

LM:     The Court was a seven member court.  We rotated, with different members all the time.  But I was very fortunate, every member I sat with was smart, hard-working, and very generous with their time and their expertise in helping me.  I’m still grateful, I keep in touch with some of them still, to this day.  They went out of their way to try to be helpful to me and that’s what I’m appreciative of and hopefully I returned that by working hard and being fair.

AG:     Can you give a specific example of what a criminal lawyer does well in a civil case and vice versa?

LM:    Well, Andrew, you’re a civil lawyer and so, as you know, your pleadings are important, and then you have all the discovery.  But, in the criminal cases you don’t have all that.  You have your indictment and the Charge and things of that nature.  But, I’ve tried to emphasize to some of the criminal lawyers that, even though you’re just dealing with the indictment, you need to be aware of all aspects of what the State is trying to put on.  The criminal lawyers are much more active as far as pushing the judge for certain issues and in the way that they handle juries and things of that nature.  I always thought that those particular aspects of a criminal practice would help the civil folks, too.

AG:     Then in 1992, you joined the Court of Criminal Appeals.  Tell us where that desire to run for a higher office came from?

LM:     Well, I always liked criminal law.  I was the first [Republican] elected to that Court and, once again, I came upon all the rest of the eight judges who were of the other party.  But they were all very, very hospitable and very helpful and I’m eternally grateful to them.  I just talked to one of my former colleagues from that time yesterday.  It was really neat to be able to specialize and to go much deeper into that particular specialty than you are able to do at the Court of Appeals.

AG:     What’s the most difficult part of sitting on the Court of Criminal Appeals and having to decide these big criminal cases?

LM:     Well, I think sometimes it’s the outside pressures that you have politically and also from the community itself.  People aren’t necessarily always as attuned to how constitutional rights are to be implemented.  To me, the hardest part is that you really can’t do anything just out of popularity or in order to satisfy certain political wants and needs.  You have to be vigilant to the law and the constitution.

AG:     You’ve sat on the Court of Criminal Appeals since 1992.  What are some of the changes in the practice of law you’ve seen?

LM:    This is my 23rd year of being on the court; I went from being the most junior judge on the Court to the senior judge. I’ve been the senior judge now for about 17 or 18 years.  I’ve seen a lot of people come and go.  Some of them have fairly definitive ideas of how the law should be decided.  A lot of them are very bright and I hated to see some of them retire and leave.  It’s really interesting that you’re under a microscope there as to everything you do.

AG:     Now, as the dynamics of the court change, as people come and go, did you find that your personal practice changed?  Whether you spent more time going to somebody’s office and arguing with them or spent more time writing memos or writing drafts?

LM:    The Court doesn’t necessarily have cliques, but there are certain judges that kind of look at cases in a similar way.  I do remember a case involving the arrest of a woman who was a kind of soccer mom.  As you may know, reasonable suspicion of a violation of a traffic ordinance or other kind of law is required to stop the car.  There was a statute prohibiting the State logo and renewal stickers on a license plate from being covered.  The woman was stopped for violating that statute.  I dissented in the case.  All sorts of news crews and cameras descended on the Capitol filming all the license plates on the Legislators’ vehicles.  The Legislature ended up repealing that statute.  It was a kind of satisfying moment for me because the statute was very vague and that’s why I thought it was unconstitutional.

AG:     Talk about the lawyers that have come before your court, between 1992 and now.

LM:     It’s amazing, sometimes you see the same lawyers come argue, and they are very good.  Other times, you will see someone for the first time, perhaps a newly elected DA or a lawyer fresh out of law school.  And while these kids are fairly new in their practice, they will come in there and be as well-spoken as any well-seasoned attorney.  I am amazed at how good some of these young lawyers are.  I’ve seen a lot more women than when I first got on the court.  There weren’t any women on the court when I was elected, but there have been times since then that women have been in the majority on the court.  It also kind of warms my heart when I look out there and see someone I’ve seen for the last 20 years come and argue.  I may not necessarily agree with their position, but I find it hard to be real aggressive or try and grill them too hard.

AG:     And when it comes to the art of persuading judges, whether written or oral, what do you see the lawyers in your court do really, really well and what do you see them still struggle with, at times?

LM:    Well, when someone tries to turn an oral argument into a jury argument, sometimes that is persuasive and sometimes it is not.  We try to narrow down the issues pretty tightly, so the lawyers should argue the law.  We know it’s their duty to try and get us to change the law.  That’s the most interesting part, when the lawyer tries to persuade us to change the law, particularly in death penalty cases involving juvenile defenders in capital murder cases.  That’s the best part, having them try to persuade us to expand our horizons on certain issues.

AG:     It sounds like oral argument plays a pretty significant part.

LM:     I love oral argument.  There are times I will go into oral argument thinking the case should go one way.  I may be very sympathetic to the first lawyer’s argument, but then when the second lawyer gets up, I’m saying, “I don’t know,” I’m thinking the other way around.  So, I love oral argument and I think it’s very helpful.  There have been times I was the presiding judge, which was enjoyable, because I like to move along and get them going, instead of us just sitting there just trying to debate, you know, a fairly esoteric point.  So, that’s always been interesting.

AG:    What would you say to someone who wants excel in appellate advocacy or even become a judge some day?

LM:    There are many aspects to being a judge that the practice of law entails.  If you want to practice appellate law, I would concentrate as much as I can on those particular aspects.  If you want to be a trial judge, get in as much trial work as you can.  I’ve always thought that judges should be board certified.  That is something that I decided to do years ago; I got board certified both in Criminal and Criminal Appellate Law.  So, I would do as much as you can to get certified and then if you want to be a judge, then unfortunately, you still have to be somewhat aligned with some political situations, but that’s kinda shifted.  It’s not shifting as much right now, but it will sooner or later.

AG:     Judge, I appreciate your time today.

LM:     Once again, I’m honored and you couldn’t have been a better host, so I very much appreciate you inviting me to do this.