Keep your brief to 10,000 words, and you'll get more investment from Texas appellate justices. Those are just a few words of wisdom from Justice David Gunn in this conversation with hosts Todd Smith and Jody Sanders. After a clerkship, where he observed lawyers making mistakes and judges making decisions, Justice Gunn spent over three decades in private practice before joining the First Court of Appeals in October 2024. Tune in as he reflects on his “accidental” path to law, explains how his court decides when cases get argued, and describes his wish for a “fast track” system for some cases. Make sure to stay for his war story about a lawyer who snatched defeat from the jaws of victory.

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Welcome to the Texas

Appellate Law Podcast,

the show that takes you inside the

Texas and federal appellate systems.

Through conversations with judges, court

staff, top trial and appellate lawyers,

academics, and innovators,

we provide practical insights to help

you become a more effective advocate.

Whether you're handling

appeals or preparing for trial,

you'll discover strategies to sharpen

your arguments, innovate your practice,

and stay ahead of the latest developments.

And now, here are your hosts,

Todd Smith and Jody Sanders.

Produced and powered by LawPods.

Welcome back to the Texas Appellate

Law Podcast. I'm Jody Sanders.

And I'm Todd Smith.

And our guest today is a name that I bet

is going to be familiar to a lot of our

listeners. It is Justice David Gunn

from the First Court of Appeals.

Justice Gunn, thanks

so much for coming on.

Pleasure, guys.

Well, just kind of to get us started,

maybe give us a little

bit of your background,

how you got into the law and kind

of how your career has progressed.

I got into the law by accident. It was

not planned. I wanted to be an engineer,

but my father was a patent

lawyer and had made the same

change of direction.

Starting in engineering and finding

it not congenial path that he wanted

ultimately.

I had something similar when I was in

graduate school in engineering and found

the laboratory

too isolated and I wanted more

social interaction with people.

I was looking out the window one day

and all of my lab mates were working on

their molecules and my molecule

was just as cool as theirs,

but I was looking out the window at the

girls playing Frisbee out on the lawn

college. And I thought, "Oh,

that looks awfully attractive.

I'd rather be out there playing Frisbee

today with the undergraduates." And I

began to think maybe a life of

the lab is not where I want to be,

but I didn't know where I wanted.

And my father said, "Look,

I'm not pushing law, but you could try

it. " I tried it, it worked for me.

And so that's what I did.

I thought about patent law,

decided that was not the way to go,

but stumbled into a

clerkship at the 14th court.

And that turned out to be

just perfect because I got

exposure to all sorts of cases and

ended up staying on a total of three

years. And by the end of the three years,

I had seen most of the

mistakes that lawyers make,

most of reasons that judges

come up with for deciding cases.

And I thought, "Okay,

this is a good time to get off the

government train and go into private

practice." So that's kind

of how I ended up ... Well,

also I got married at that time and

getting a little bit of a salary increase

was imperative. They were paying

us $35,000 a year when I left.

Wow.

And that was not going to be enough,

even with my wife's salary added together.

We're not going to be able

to do very well that way.

So it was time to go into private

practice and I've done appeals ever since.

So did you go straight from

law school to the court?

Yes. And again, by accident,

I knew someone who was an

appellate judge and he said,

"What are you doing after law

school?" I said, "I don't know.

Go back and we didn't have the internet.

You couldn't look around and

research firms the way you can.

" There was Martindale Hubble, the

big hardback for the sizable firms,

but mainly it was just a dart board,

a bulletin board at the placement

office with little index cards.

Five person firm in El Paso is looking

for someone in the top half of the

class or 10 person firm in Beaumont wants

a trial lawyer.

That was all the information you had

So I was grateful for any opportunity

when this appellate judge says,

"Come work for me for a year and you'll

get a little bit more time to look

around." And I liked it so much I

stayed for three years and discovered

it was not court cases or contract cases

or criminal cases that I liked. It was

just appeals. That's been my life.

When you got started

coming out of the court,

was there sort of an appellate specialty

that had formed or was it still sort of

in its infancy?

It had formed, but as you say,

Jody is only in its infancy.

In the late 1980s,

the Fulbright and Jaworski firm

had very good appellate group.

They produced a number of amazingly

talented lawyers over the years.

Started with Rusty McMains, then Roger

Townsend, Jennifer Hogan, Sarah Duncan,

Scott Rothenberg. I mean, the list

just went on and Bill Boyce. I mean,

Ben Taylor, just a real murderer's

row of excellent lawyers.

And a few other firms were

starting to get into it,

but nothing like what Fulbright had.

And there were certainly no proliferation

of boutiques like you see now.

Whereas now you might see a former

Supreme Court judge or a couple of former

court of appeals judges forming

their own shop. That was not a thing.

Most of the practitioners were familiar

with the world where a trial lawyer

tried the case and then appealed it.

It was uncommon to see

full-time appellate lawyers,

but that was starting.

And I don't remember exactly when the

board certification exam began for civil

appellate. I think it

was in around 87, 88.

So there were a few names that

you'd see around the state,

you'd see Mike Hatchell

or Dorsanio and so on,

Royal Brynn up in Dallas, but

not a lot. And about that time,

our mutual friend, David Keltner,

left the Fort Worth court and went

to Haynes & Boone and started up an

appellate section. It

was just getting going.

And it took all through the '90s really

for that fire to spread. Now, of course,

it's part of the practice,

but back then it was very much

embryonic and I didn't have

any idea what was out

there, but I had an offer,

grand old man of appellate

practice down here in Houston,

a fellow named Jim Kronzer.

He had two associates and one of them

resigned and he was

looking for a second one.

The one who was remaining called me

because we had overlapped at the court

briefly. And she said, "Hey,

I heard you got married.

I thought you might be looking for a

job." I said, "Yeah, as a matter of fact,

I am." So she said, "Well, let's

go talk about it. We've got one.

I'll tell you what it is. " I didn't know

who he was. He said, "Well, you know,

the office is just around the corner.

Just come by and say hello for

one minute." I said, "Okay,

fine." Said hello for one minute and left.

What I didn't know at the time was

he had been longtime law partners

and best friends in law school

with the chief justice at my court.

So he picked up the phone

and he says, "Chief,

tell me about this young man,

David Gunn." Says to him,

"I will not tell you about him.

Keep your fat hands off our good

employee." Told me the story years

later and he said, "Thank you.

That's all I needed to know.

" He called me and made me a job offer

right on the spot, partly to hire me,

but mostly just to tweak

his old best friend.

And so here we are. I took

it, was off to the races.

Sounded like the shortest

job interview process ever.

Yeah. It was all about the references.

And I happened to be working for

his old longtime law partner.

They formed that firm in the 50s.

It was Hill Brown, John Hill,

Curtis Brown and Kronzer.

And it lives on today with

the name Abraham Watkins,

but perhaps the longest

lived plaintiff's firm

in the history of the state. And

just they did wonderful work.

John Hill was one of the

first lawyers, I think,

to get a million dollar verdict,

personal injury case, great trial lawyer,

went on to become attorney general,

Chief Justice of the Supreme Court.

Curtis went on to the 14th court, which

is where he spent several decades,

illustrious group of folks.

I never came across probably seven or

eight years after you in terms of when I

came into practice.

But I did have the pleasure of practicing

at Fulbright with some of those

notorious names that you mentioned,

including Ben Taylor. And Ben,

I remember back going on, gosh,

probably 27 years ago, Ben

throughout this name, Jim

Cronzer, and I was like,

"Who?" Because I didn't know

anybody in Houston. But over time,

that name became known to

me just working with Ben,

because I know Ben had a lot of

respect for him. And of course,

Ben's dad taught at South Texas College

of Law, and that was from Houston,

even though he was by

then practicing in Dallas.

So that's when I think

back to the original,

the OG appellate lawyers

in the state of Texas,

that name comes to me just because of

the people that I know and respect who

revered him so much.

He was just remarkable. As I say,

he was sort of the pivotal figure in

this part of the state for becoming a

full-time appellate

practitioner. In Texas,

we have a history of stubbornness

and willing to go to court,

a willingness to litigate,

and people will go to trial and we

produce some magnificent trial lawyers,

but over time,

it became clear there was a place for

appellate lawyers, The procedure and just

a second set of eyes on your

record. I got the elements covered.

Everybody who speaks Texas appellate

law knows how big a deal the jury charge

is. And back then, I mean,

it's not like the simple old

days, you'd have these 50, 60,

70 paid charges in a car

wreck case because you would

submit all the inferential rebuttals,

last clear chance and every ...

Did he not do this? And was

this guy not the sole cause?

And it was just a harrowing experience.

So you needed somebody to be

thinking about the charge.

And that's what Bronzer was

very, very good at. I mean,

he was very good in the appellate

level as well as an advocate,

but he was at his best in front of

a single district judge trying to be

persuasive.

And you had Royal Brand up in Dallas who

practiced at Strausburger for years and

years and years,

pioneered things up there. So our

friends like Michael Young and so on.

Now you know Nina Cortel, some

of the modern practitioners,

Dallas has had excellent

appellate lawyers.

It's just part of the way

the Texas system evolved.

And Granzer really was one of a

kind. I caught him at the right time.

I was there till the end, the

last five years of his life.

I don't want to gloss over. I mean,

you've had a legendary career in private

practice cause you've done so many

things and we could

easily fill an episode,

but I kind of want to talk more about

your time on the bench and the things that

you've learned. I guess, what made you

decide you wanted to be on the bench?

Partially the season in my life. It was

a good time. My kids are out of school,

mortgages paid for, but also

we had that expansion, Jody,

where Texas said we're going to

add some new structure to our court

system, add the business

courts, add the 15th.

And those steps were a little

bit controversial and I thought,

"This is a good time in my life.

I'll put my name in the hat." I don't

know what kind of person the governor's

looking for, but I want to at least

volunteer if you need the help,

here's my background.

And they did kind of what baseball

managers call a double switch. And so

I had applied for the 15th court and

they called me up. I had an interview.

By the time the dust settled,

what they did is they said,

"We're going to move a judge from

the first court, April Ferris,

very fine judge, to the 15th, and

we're going to put you into her spot,

which has been great.

I don't need to commute to Austin.

I don't need an apartment up there.

And I'm in a building with 21 judges.

We've got nine on my court. We've

got nine across the hall, the 14th.

We have two business judges, the

business court judges down here,

and we have ... Judge Ferris

has a chambers here with 15.

So I can walk down the hall and drop in on

plenty of judges every day,

and I do. I go visit with them.

It is just a marvelous

place to learn the rope.

I'm a rookie as a judge trying

to learn how do you handle this?

I've never seen what is this case,

but it's criminal particularly.

That's not my background.

If there's a particular hallucinogenic

drug that I've never heard of,

I've got some colleagues

and let me tell you,

they've heard of it or evidence about

ballistics. I mean, all of that,

I can get help from other

judges in the building.

So it's just a bird's

nest on the ground for me.

That's fantastic.

And a great building to boot on top

courthouse in Houston that's just after

the renovation, they did gorgeous,

probably much nicer updated digs than

the ones you were in in South Texas back

in the late '80s.

Yes.

The one advantage we had in the South

Tech building was we were all on the same

floor. So everyone at my

court, which was the 14th,

we were all on the same floor. There

was no such thing as remote work.

Back in the days when there

were two Germanys, I mean,

it was a different world and you

could walk around to other offices and

talk to judges.

The way we are structured now is we were

stacked vertically like an ant farm.

Everybody on the north side of the

building, that's the first court,

and we're all stacked on multiple

floors. Same on the south side,

that's the 14th, but

it is a great building.

This was the 1910 courthouse where

County and marvelous history.

Too much to go into here,

but really cool to think about

the cases that took place here

way back in the day. There was even a

law school that operated here between the

wars. From 1919 until 1945,

there was a school called

the Houston Law School,

and they would have their lectures

after court in the courtrooms.

A law school without a campus

in the conventional sense,

it's not associated with

UT Mary's or Baylor.

It was just a place you could

go essentially tonight school,

very much the way South Texas

started down the street at the YMCA.

And one of the driving figures on

the faculty was a practicing lawyer

named Ewing Warline Sr.

His son, Ewing Warline Jr.,

Is a federal judge here

in the Southern District,

but practicing lawyer Ewing

Warline Senior was one of the

lecturers and eventually

became civil district judge

in the mid 50s. And then when

the Galveston Court of Appeals,

the Galveston Court of Civil

Appeals moved to Houston,

one of the three members of

the appellate court said,

"I'm not moving to Houston.

I quit." So Judge Wurline got appointed

to the Houston, now the

Houston First Court of Appeals,

and he served here from

it's a very storied building with

lots of ghosts that haunt the place.

I can imagine. And two

beautiful courtrooms,

and I always like to talk up the

attorney lounge that's shared between the

courtrooms. It's a great

facility, just really,

I don't think anybody rivals that.

Any appellate court I've been in.

It is a magnificent place. I grew up

when the civil trial courts were here,

and it's hard for me to forget hearing

the voices of those judges and those

lawyers like Joe Jamal and John

O'Quinn and booming down the halls.

But every grown community, you

guys have lived through it.

You've seen courthouses have

to migrate down the street,

have a renovation and so on. And it's

a growing society, successful economy.

We are extremely lucky to be in

here. I love getting people in here.

We don't have nearly enough for

my tastes, but I'm working on it.

Kind of on the topic,

you've been on the bench a little

over a year now after being in private

practice for a long time. I guess what

surprised you from sitting in that chair?

One of the big surprises is the nature

of the docket is so different from what I

had at my law firm.

I practiced at a litigation boutique

of about 40 to 50 lawyers and we

were up against pretty high

quality counsel, very challenging.

And in a way, it's better to have a good

lawyer on the other side. It's clearer.

You know what the arguments are.

You don't have to spend your

time on a lot of rabbit trails.

That has not been the case here.

We've seen a much different

cross section of practitioners

and I don't see many

appellate specialists.

I won't say I see zero,

but it is far and away to

get somebody board certified,

to get somebody from the

recognized appellate boutique. Now,

you don't have to be an appellate boutique

to be able to do appeals, not at all.

Sure.

But we get a lot of briefing that

I find disappointing.

And sometimes that's just

the nature of the case.

And I think this case

just shouldn't be here.

Really should not have been appealed

because there's no hope. Obviously,

criminal is a different beast,

but just on the civil side,

I think I was spoiled and

people on the other side or

as co-counsel of your caliber, that's

not what I'm seeing. The vast majority,

I mean,

you just go to our website and click on

some of the cases on the case submission

link and just pull up the briefs and

read them. And you'll think, "Okay,

that's not really as good as it could be.

" And I'm not here to

throw rocks at people.

I just got to tell it

like it is though and say,

"Sure. I'm kind of underwhelmed."

And there will be arguments that I

just look at and think,

"This never had a chance.

This should not have been appealed or

this mandamus just should never have been

brought." That has probably been the

biggest surprise is just how much of

that there is. I mean, sometimes

it's the standard of review,

but whatever it is,

the appellate lawyer needs to

take that into account upfront.

Do I really think I have

something here? I mean,

we all know don't go hunting with a

shotgun, right? Hunt with a rifle.

You're the appellant, right?

If you're the appellant,

issue selection is the number one task.

Went down to smaller number of

stronger issues and go with that.

That to me is still a plaguing problem.

And with the ability to

bring mandamus now, right?

There's almost no time when you tell

the client, "Mandamus is impossible."

When I started practice,

mandamus was very difficult,

very rare.

You had to file a motion for leave.

And there were certain things that the

courts would say categorically that is

not subject to mandamus. We

don't have those categories now.

We now have this balancing

that, well, yeah,

your summary judgment motion was denied

and normally we wouldn't get into it,

but hey, maybe ... And you can make

your case. It's just a different world.

And it's really important for appellate

lawyers to think, "Do I need to take

this appeal? Does it need to be this

broad?" Narrower is usually better.

Are you finding.

Those same observations to hold true

in cases that the court is holding

argument,

quality of the oral argument as opposed

to what you might have expected,

certainly in your own

cases, I would imagine,

but just from a broader perspective?

The quality of the arguments

themselves is not bad.

We don't have the really awkward

exchanges where it's just hopeless.

Or when you go to New Orleans and you

might see a case argued and the poor

lawyer just gets beat up and

doesn't even know how to advocate,

I'd like to have more arguments.

And I think many of the cases are being

screened and decided on the briefs when

maybe they shouldn't, but

the conversation is good.

And I have to tell my staff,

because I've encountered some pushback

internally about we don't need argument

on that case. And I've had

to say, "I believe you.

I know you think you don't

need it, and maybe you don't,

but there's more to the system than just

you and just me. " I'll tell you who

needs it is the clients.

The public needs it.

The clients come up

here thinking so often,

the appellant comes up here thinking

the trial judge was either stupid or

bribed, corrupt. Even when that's

not true, the vast majority of time,

neither of those is true, but

the clients genuinely think that.

I don't know about your

counties, but where I am,

it's not as easy to get a hearing

in a civil case as it used to be.

It's very difficult.

So the clients may come up here

having lost and having never gotten a

hearing with that judge. It's

just decided on the papers.

Those clients really can

benefit from an oral argument.

They will come in here and we've all

seen it. You go, you argue your case,

the court asks even handed questions of

both sides and the client goes out of

there saying, they get it.

Those judges are trying.

They understand the

case and you tell them,

I don't know if we're going to win

or not, but they get the issue.

Those clients will accept a defeat

because they've had a day in court.

I've seen it so many times.

If the client feels like they

were heard by a fair tribunal,

they're much less concerned

about the outcome.

They feel like they had the process.

So that's a service we can supply,

but I've had to make that

point internally to say,

"I've had a lot of clients

and y'all have not.

We really need to do this for

the benefit of the clients,

as well as for the benefit of the public.

The public deserves to see

some of the sausages made.

And so it's healthy for citizens to

be able to walk in, watch an argument,

see what the court's doing.

All the arguments are recorded now, right?

They're on YouTube. And that is a

great service, not just for lawyers,

but for the public.

How does your court decide

when cases get argued?

As a practical matter, it's

the author. Whoever drew it,

it's a random distribution of cases like

cards being dealt at the poker table.

The author makes that decision.

There is technically the right of

a majority to override the author,

but that doesn't really happen.

Everybody's got their hands full.

And so if I draw the case,

I'm the one who decides sometimes we'll

set an argument because we don't have a

clear picture of what's going on.

It's confusing. This is a mess.

We need to get to the bottom of this.

Sometimes we set it because it's

not unclear, but it's close.

Not exactly sure what this document

means or what this statute means.

Let's get people in and have a

conversation about it. But yeah,

that's up to the author.

Now, the 14th court,

they operate by panels rather than sort

of the man-to-man defense that we have

individualized,

but it's more of a zone over there and

the panel will vote. They'll have a

majority vote. Do we argue it? Yes

or no? There's no perfect system.

I assume it's the same way in the

second and third court. I don't know.

What do you guys know about that?

I think in the third,

I think it's more like your court

where it's one judge that makes

the decision and it's the same system

where whoever's assigned it when it comes

in, that's the judge that

gets to make the call on.

Argument. I don't know what they're

doing in the second court now.

I'm not sure what their system is.

The Fifth Circuit has the completely

different system screened up front,

goes to screening panel. They

decide, are we going to write this?

Are we going to kick it into the queue

and any one judge can kick it out of that

screening pipeline? Just put

it in the queue for argument.

It's not quite like that here. This puts

a lot of responsibility on the author.

And so I'll talk to my folks. And I mean,

I will pay attention to things

in the brief that say, "Hey,

we want this young lawyer to get

board certified. That matters to me.

" But it's not really a science. We have

a certain number of slots to fill up.

A few years ago,

my court had a total of about 20 oral

arguments in an entire fiscal year.

Really? Yeah. It was not

good. And my first year here,

we upped that number to 50. If I'd had

my way, it would have been a hundred.

If you extrapolated from the number

that I caused to go to argument,

it would have been a hundred.

And that's what I'd really like.

And the 14th court has really

driven up the number of art.

They are arguing stuff there all the time.

And I'm afraid they're going

to leave us in the dust.

I really want to get our numbers up.

I just think argument has so much

value and heck it's good for the court.

It can often shorten the amount of

time you have to spend on an opinion.

If you actually talk about

it and say, "Oh wait,

I don't need to go into that part of the

analysis at all now that I see what's

going on. " Nevermind all that hard

stuff I might have spent four days on.

I just think argument, if I had my way,

I'd have almost every case argued.

It might be a short argument.

They don't all need full time.

Sure. But I really like argument

trying to get the numbers

up as high as I can.

Do you have a hard time having

been an advocate for so long,

not wanting to do people's

job for them a little bit,

especially if you feel like some of the

briefing is not as thorough or quality

as it should be? I feel like I

would have a tough time with that.

There's so much to do.

That is not too bad.

It is much less stressful

to be the umpire.

A big argument I would spend two or

three weeks getting ready for in advance

the last few years. I mean, if it's

record intensive, oh my goodness.

And I would do practice arguments.

I'd get a stopwatch and work on how far

can I get before I have to shift to the

next issue and so on. Life

now is nothing like that.

I mean, nothing like that. It's so

different. It's not stressful at all.

We'll meet ... My panel typically

meets in the afternoon for argument,

but we'll meet in the morning and we'll

chew over the case as a panel with the

staff lawyer who's working

on it. If I drew it,

I will have been working with

that staff lawyer on the writeup,

essentially the draft

opinion well in advance,

probably for weeks.

And we'll have a lot of energy put in,

but walking into the argument's

not stressful at all.

It's very straightforward.

We are now going over

the time limits a lot.

So I just tell people, when you

come down here, be prepared to ...

Your 20 minutes aside argument

could easily double or triple,

but you may not want to drink all of

that big gulp right before you walk in.

So it can go, and if we

go long on the appellant,

we'll add that time to the appellee.

Whether they want it or not,

they're going to get extra time. And it

can easily go beyond an hour for a case,

which is not a failure, it's a

success. If you're covering substance,

it's great. And we've got some

very active questioners here now.

It's really quite a lot of

fun. And I just love argument.

I'd like to have more. I don't

necessarily want longer briefing,

but you want longer arguments.

I love that take. I

acknowledge longer briefing,

this would not necessarily be

better, but those kinds of numbers,

when you mentioned that the 20

arguments in a whole one year period of

time,

that's so few arguments for a court with

a docket of the first court of appeals.

Absolutely. We get 1,000,

1,200 cases in a year. Now,

half of those are going to just fizzle

out, settle untimely notice of appeal,

whatever it was. They'll be dismissed

and not really resolved on the merits,

but you're still going to have a good

500 that are going to need opinions.

And so let's get argument.

I mean, 50 is a start.

I'd like to have more like a hundred of

those being argued and they don't all

need argument, but a lot of them do.

And I just think it's

better for the system.

That's a long-term work in progress,

trying to get that consciousness.

I think it's happening. I can't

speak to what's happening statewide,

but in this building with

the two courts we've got,

it's definitely on the uptake. People

are getting a lot more argument.

I'm hoping that your fellow intermediate

appellate court judges hear this and

think, "Justice Gunn

makes a really good point.

All the reasons why we need

to have more arguments.".

I mean, look, there are extroverts,

right? There are introverts.

There are people who don't need argument.

Take Jerry Smith on the Fifth Circuit,

for example. He's not an oral argument

person. I mean, yes, he participates,

but he is perfectly capable working

up the case based on the briefs.

That's not how my mind works.

I actually prefer the give

and take the conversation,

the free form discussion

like we're having right here.

It can take any direction and we cover

what we need to cover and when we're

done, we stop. That for

me has so much value.

I think partly it is for the clients.

I've had so many clients

who lost the case,

but felt like I was heard and

justice was done Because I

got to see three judges and they got to

ask hard questions of the other side.

That just has a ton of value.

It does. Well,

it's also good for the lawyers because

if you're only doing 20 arguments a year,

that's maybe 20 people,

probably not even 20 people

that get the chance to argue.

And in a city like Houston,

that's kind of shockingly low.

That's a good point. Every generation

needs experience at the courthouse.

We don't have one day workers' comp

One of my friends Long ago,

Don Whitinger got out in the early

started his first day at

work at Abraham Watkins.

And the secretary said,

"Okay, here is your file.

You're going to trial this afternoon

at 1:30 in Judge so- and-so's court.

It's a workers' comp case. Plaintiff

lost his thumb, whatever it is.

" And he's like,

"I don't know anything about this case."

Literally just his first day on the

job. And she said, "Your opposing counsel

is old so- and-so. He's a great guy.

Go find him down at the

courthouse in the so- and-so room.

He'll tell you what the case is about.

It's going to probably be two witnesses.

You'll put on your plaintiff,

you'll put it on whoever it is,

and that's it.

" And that's how he did it. So those guys,

think about how many verdicts they got.

They were able to try literally

hundreds of cases to verdict. And

later in life,

parlayed those skills into the skills

to win a big billion dollar antitrust

case or a patent case up in East

Texas. My former partner, David Beck,

started out in the 1960s

trying very simple cases.

The big firms had an

insurance defense doc.

They did the workers' comp and so

on. Well, those skills do translate.

And the same with appeals.

You get somebody who's had

a bunch of oral arguments.

Even in simple cases,

those skills carry over to the

monster cases that we all aspired to

handle as practitioners.

It's just good for the profession to

get young lawyers some time in the

crossfire.

How has the kind of political

side of things been?

Because that's very different

from the private practice side.

It is very different. I was

never especially political.

I spent seven years on a little city

council in my west side municipality,

nonpartisan elections.

Nobody raised money.

And so I had really no experience with the

big league political process.

And that's the system we have.

People looked at changing it and with

no luck and there's no reason to think

it's going to change.

I'm having to learn that.

It helps to be around other people who've

been through it or to talk to folks

who've been through it. We all have our

friends that were once in the system,

whether it's David Keltner or some

other former judge who can say, "Look,

this is kind of how it goes."

Scott Brister was a very

close friend of mine and

we practiced together on cases or

against each other on cases for a

number of years before he went back

into the system on the 15th. And people

like that are a great resource.

So I've been able to learn,

but I was very surprised

some of the regulations,

some of the rules. When I

got here, somebody told me,

"Don't ever post a review

on TripAdvisor." What?

If I go to a good or a bad hotel or

read a good book, no, no, no, no,

don't do that.

Judges are not supposed to lend the

prestige of their office to some private

interest. And you're asking for trouble

if you post a product endorsement.

I thought, "Okay, I see it now that

you explain it. " Well, anyway,

that's just one small example. There have

been a lot of things like that. Yeah.

I was like, "Okay, I see.

Yeah, yeah, I get it.

" The further you get from my

desk, the more different it is.

So where you sit now and where I sit now,

we're debating the meaning of a statute,

interpretation of a contract. That work

here is identical to what lawyers do,

but the further you get away from

that, the more different it is.

So if I get invited to a

function, you got to think about,

okay, did I do this? What are the

optics? What are the ethical rules?

You've got to raise money.

How does that work? Well,

I've never had to do that before. I

drummed up business trying to find client,

but that's not what's going

on. Now I have the work,

but I have to raise money for a

campaign. Well, what are the rules?

What are the reporting requirements?

All of that is brand new.

And I'm getting there, but

that is completely new.

It's part of our system. Other

people have done it. I can do it,

but it's required some education.

I keep smiling because of the way that

you described Justice Bristol's reentry

into being a judge is going back into

the system like he was a recidivist

or something. I was like, "Well,

I suppose you could look at it that.

Way." Yeah.

He was such a wonderful lawyer

to have as co-counsel or

opposing appeals. It was just marvelous.

He was utterly undisciplined. You

could never pin him down and say, "Hey,

here's the plan." I had one where we

split the oral argument and I said, "Okay,

we're going to argue this.

We're not going to stay away from

this one issue." Okay. Okay. I got it.

And then what did he do? He got

up there and he started arguing.

And I just thought, oh my. Because

he's so creative. He's so smart.

And he'd come up with an idea

and say, "You know, Judge,

something just occurred to me.

" He just put it out there.

It was his greatest strength.

And so he's a real asset to the system

to be able to bring that experience to

it. But much as I love him, he

was a great co-counsel to have,

but very challenging to corral.

How does the workflow

work on the court side?

You don't have the sort of deadlines in

the sense that you've got a brief due on

this date, but how does it

work on your side of things?

Yeah, you're right.

You don't have a hard

deadline in most of the cases.

There are a couple exceptions.

The parental rights termination

cases do have a hard deadline.

You've got your 180 days,

you got to get that thing done

from the notice of appeal.

And that is problematic if the

court reporter needs extra time,

because that six month period

is shrinking every day.

And then the appellant

says, "Well, I'm busy.

I need an extension." And we're also

accustomed to conventions in the appellate

world,

but you can't give unlimited extensions

in the parental rights termination cases

Because the opinion's got to get

out. So that has been a challenge.

The bigger deadline, Jody,

is the two year deadline

from the notice of appeal.

OCA keeps track and it's like,

are we keeping things moving so

that cases are out within two years

of the notice of appeal?

That's kind of the big driver.

And so you can devote

resources to this one case

if it's harder or say, "No,

I got to get this one out because the two

year deadline's coming." That's really

what I deal with the most. And

it's not a perfect metric because

measuring from the notice of appeal,

like I say, what if the court

reporter takes a few months?

What if the parties are okay with

extensions because they're not in a hurry?

Well, it doesn't matter if the two

year deadline's still out there.

And so that's a bit of a constraint

that has pinched our ability to get some

cases to oral arguments like, no,

we need to get this thing out.

I would like to come up with a fast track,

not a rocket docket, but a modified

fast track for a number of cases.

If we could figure out how

do we identify the case,

let's say you guys are opposing

counsel and I'd love to have a status

conference, get y'all in

for 20 minutes and say,

"Let's get this thing out in

a year. Let's work backwards."

Jody, you're the blue

brief, you're the appellant.

Can you get it in with no more than one

extension? I know the record hasn't hit.

Can you start working now? You

probably know what you want to appeal.

Start working on it now. And Todd,

you'll get an extension because you

don't know what he's going to argue,

but don't ask for two. Let's

get this thing briefed.

If you guys will get this thing briefed

by three to four months from now,

I'll get you a submission date in

month nine and hopefully decision

month 12. Something like that.

I think that's workable. I mean,

it's a team sport up here. I would need

some buy-in from some of my colleagues,

but that's what I'd really like.

Sort of the equivalent of a docket

control order in a trial court to say,

"Let's have a plan." And I don't

know how to make that happen.

I would really like to,

and I think I have more ability on this

court because we're not panel driven,

we're individually driven.

I'm looking for the right

case to try that and see,

can we get this through here?

It would take cooperation.

People would have to want

to do it, but why not?

Then we get it out in a year instead

of two years, even if it's a big case.

That sounds like a pilot program.

Yeah.

Maybe the appellate section

could weigh in on that, Jody.

And it could be something that

try it out at your court, Judge,

and maybe it could get some wider

implementation because one of

the things that talking about clients

and their expectations is it's really

difficult to, as you well recall,

advise clients on what

to expect as far as time,

short of the two year

measurement that you mentioned.

So that could be really valuable, frankly,

in terms of being able to

gauge timing much better.

Yeah. Maybe if we modified the docketing

statement so that people could say,

"Yes,

put us on sort of a modified

fast track." Not anything

outrageous, but so they know upfront,

I should not expect two extensions.

And so often the appellant

can have a running start.

You're just waiting on the court reporter

to get those exhibits and that last

volume of the reporter's record,

but you've got everything, right?

You're really complaining

about the summary judgment.

You've got daily copy

for the things you need.

The appellant can frequently

get a running start. Yeah,

we need to find a way that we can beat

up some of these cases because I just

think they're just lingering too long.

And I'd never feel like I'm drowning,

but I feel like I'm up

to my waste and molasses.

I can move a step in any

direction that I want,

but I can't move a long

distance very quickly.

And so we need to find ways

to move things forward.

Well,

and it's difficult on our side because

you submit your last brief and then it

just sort of goes into a hole from our

perspective because we really don't know.

Maybe in a month you

get a submission notice,

maybe it's three or four or six months

in some courts and you just don't know

what's going on.

Well, that's right. And it's very

different between the two Houston courts.

On the other side of the hall of

14th, it's the panel that runs that.

The panel has its own consciousness and

it moves things forward and then just

says, "Okay, judges, here's

a batch of cases." Over here,

it's the card deck, right?

It's the poker game.

And I get the cards from the dealer.

I get every ninth card and I can get

on the computer right now and pull up a

notice of appeal that was filed today

that lands in my office and I can

look at it and frequently, just from

looking at the notice of appeal,

you can figure out here's what's

going on. I can tell, "Oh,

it's denial of an immunity summary

judgment motion or it's a TI appeal or

whatever it is.

" I can often see a post-trial motion.

It's often

attached or the judgment is often

attached to the notice of appeal and I can

immediately get an idea. I will

occasionally reach down and say, "Okay,

that one,

I can see how that story's going to end

right now." That temporary injunction

order is void. It doesn't have a

trial date or whatever the problem is.

So I'm not going to let

that sit for two years.

We're going to reach down and

grab it and move it forward.

Or you've got somebody who has a personal

issue and you can tell they need a

ruling just for their

life. They need it fast.

So I'll reach in and try to

grab it and move it forward.

I can't do that in every case.

I can only do it in a few,

but I'm trying to do that.

And I had one where we got an

injunction appeal out six months

after it got here. Boom. Just

turned it around and got it done.

Can't save all the starfish,

but you can't save one.

Well, you make a good point. It is

difficult because there are so many,

and I'm using air quotes here,

accelerated appeals that aren't really

accelerated because when everything's

accelerated, nothing is.

That is exactly right.

It's like when you're driving on

the highway and you get into the HOV

lane and it's slower than the

regular lanes. And you think,

"There's something

wrong with this picture.

I'm being passed by the

Walmart truck next to me.

How did this happen?" And you're

right, when everything's accelerated,

nothing is. And we're getting more

every few years from the lawmakers,

we're getting more appeals.

State bail appeals are one,

and there's a strong policy reason for it.

I don't expect a flood of state bail

appeals, but that is an example. I mean,

all the stuff in 51014 that it

was not there when I started very

few. You could appeal a TI, you could

not appeal a special appearance. Well,

now you can't. I mean, just

on and on media defendants,

I'm trying to think of all the

expert reports, got plenty of

those, the certificate of merit,

all that.

When you add them all up,

parental rights terminations and juvenile

certification, we add them all up,

you're right, there's not a

whole lot of acceleration.

Yeah. You've got parental

termination, criminal,

everything else that kind of goes on

top of the hopper even above a regular

accelerated civil appeal.

That is absolutely right. We're

bailing water the best we can,

but we need some structural changes.

Find ways to get these

things in and out of here.

Back on the accelerated appeals,

it has been my observation generally

that those really don't get decided any

faster than any other appeal.

And it's notable that the

deadlines are shorter.

And so maybe the Supreme Court

should consider, well, as Jody says,

if everything's accelerated, nothing is,

maybe the rules ought to be changed

to make it a little easier on the

practitioners because those shortened

deadlines really don't mean anything.

No.

If I had a wish to ask for from the genie,

it would be the ability that the

Fifth Circuit has just to say

affirmed. Affirmed. Full stop. Yeah.

And I wouldn't want to overuse it,

but just some of them you think,

"Okay, there's no there, there,

but I really don't want to explain why

because the reality is this lawyer messed

it up, nothing's preserved,

and I'm just going to sow the seeds of

dissension if I put that in the opinion."

And there are a lot of times, like with

mandamus, we can just say, "Denied.".

Right.

With the direct appeals, can't do that.

You got to write on the issues.

And I would prefer some

flexibility to be able to say

occasionally, "Let's not do that.

" We're just going to say

that would be a trade-off,

but it would allow us to speed

up dispositions a lot. Now,

it's not the cards. I'm not agitating

for it. It just, that would be really,

really useful because writing

up an opinion in every case,

yes, it has public value, but

it has public cost as well.

Absolutely. Well,

that's probably a good point for me

to come in with our request for a

typical war story is we've spent, gosh,

more than 45 minutes together

talking this afternoon, judge,

and we really appreciate your time.

We've certainly enjoyed the conversation.

Did you have a moment to think of

something tip or war story wise,

either from your days as a practitioner,

which I'm sure there are many of those,

and you've maybe given us a little hint

on what some of them might be in your

view from the bench,

but does anything come to mind that

would be appropriate for you to share?

Well, one tip would be in brief writing,

if you can streamline the writing,

the issues, keep the word count to

10,000, that has a lot of value.

Now There are Complicated cases

where it's just not going to happen.

You got a product case with multiple

design theories and you got to

brief sufficiency on all of it.

Okay, that's going to take a while.

But if you can hold it to 10,000 words,

you will be able to, I think,

get more investment from all

three judges than if it's a

monster brief where two of the judges

rely a little more heavily on the author,

say, "I'm depending on you to go fly spec

that record." If you keep the brief a

little bit lighter weight,

you're going to get more participation.

The incentives are better for the

non-authoring judges to really ...

You made it easier for

them to dive into it.

The war story is one that

Jim Cronzer told me long

ago.

We were sitting in court

and we saw a young lawyer

not know when to tell

the judge, "Thank you,

may I be excused and get

out of the courtroom." And

we've all had to learn that

when you won the ruling,

stop arguing and just get out.

This young fellow had actually

gotten the judge to sign an

order granting a new trial,

and the other side just kept

trying to chirp and keep it going.

And he took the bait,

started debating with them,

and the judge began to get

interested and said, "Wait,

give me that order back,"

and he pulled it down.

Oh.

No.

And it was particularly brutal

because we're not in a position to

take an appeal for the fellow,

because it was a plaintiff's case,

it would have been contingent fee, would

not do a plaintiff's defeat on appeal,

on a contingent fee. And

so it was a painful lesson.

And so as we went back to the office,

he told me about his first oral argument.

It was during war time.

There was still gasoline

rationing in World War II.

And the way you got gasoline

was you would get these coupons.

When you collected enough coupons, you'd

go trade them in for some gasoline.

So he had his first appeal.

It was some kind of

probate will contest case,

and he had to go to the Waco Court

Civil Appeals, arrive from Houston.

He saved up his gasoline coupons,

drove all the way to Waco,

drove up in the courtroom, and the panel

came out and they said, "Well, counsel,

we have good news and bad news. The bad

news is your opponent doesn't have any

gasoline coupon, so he can't make it.

We'd like to take the case on the briefs.

The good news is you've written a

good brief and we think that would be

sufficient." And he

didn't know the phrase,

"Take the case on the

briefs." He said, "Well,

I don't understand,

Judge." And they said,

"Decide the case without oral argument,

but I've come all this way, really

ready to go. " And they said, "No,

it's not necessary." Well,

he wasn't getting the hint.

And they finally said, "Look, if

you really want to argue, you can,

but we don't think you

need to. " I said, "Oh,

I really want to argue." "Okay,

they said with some exasperation,

podium is yours. "And he began to argue,

and as he did, they would say," Wait,

oh, is that what you're saying? ""Oh."

And the light begins to come on,

and his case begins to fall

apart right in front of his eyes.

And by the time it was over,

his whole appeal laying

shambles at his feet,

and they not only ruled against him,

when he took it to the Supreme Court,

the Supreme Court refused

the writ outright,

adopted the opinion. It's a case

called Olds Against Trailer,

and he said, "So let me

just say it this way,

oral argument and its value is

incomparable." And so

I always remembered when you're winning,

you don't need to argue any further.

Just get out of the courtroom.

So I don't know if that's

what you had in mind, Todd,

but that's one I remembered

and we need to hand it down.

That's a great one. Oh, hey, that is a

tremendous war story and a very wise,

well, a hard lesson to

learn for one thing,

but a very wise thing to pass

on to the next generation.

So thanks for sharing that, Judge. Well,

thanks again for spending the time

with us. We really enjoyed it.

We think this is all going to be

really interesting to our audience,

so really appreciate

you being with us today.

Thank you guys. It's really good

to see y'all and keep it up.

This is a wonderful,

wonderful service you do.

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