Beyond Hourly Podcast

Read the transcript below:

Amy Geise:
Welcome to this episode of Beyond Hourly hosted by Omni Bridgeway, one of the world's most experienced dispute funders and enforcement specialists. Our podcast focuses on commercial disputes around the globe and innovative ways to maximize value for clients and law firms. Episodes of this podcast can be found on our website, www.omnibridgeway.com, iTunes, Spotify, and other podcast networks. We welcome you to subscribe to the podcast and leave us reviews.

My name is Amy Geise and I'll be your host today. On today's episode, former Justice Scott Field and veteran clerk Marshall Bowen of Butler Snow in Austin give us a sneak peek behind the curtain of the workings and decision-making process of the appellate courts. I asked Scott and Marshall to join me today because of their first-hand experience as decision makers behind the bench. Scott, as a justice on the Third Court of Appeals in Austin for six years and Marshall, as a veteran clerk of both the Supreme Court of Texas and the Court of Criminal Appeals.

Before we dive in, I'll briefly introduce myself, and Scott and Marshall, to give our listeners some context. I am an Associate Investment Manager and Legal Counsel in Omni Bridgeway's Houston office. I've been with Omni for just over three years. During that time, I have sourced and diligenced a number of investments in almost every area of law, including appellate funding. Before joining Omni, I was a bankruptcy attorney and a litigator at Porter Hedges LLP.

Scott is a member of Butler Snow's Litigation Department and practices primarily within the Appellate and Written Advocacy and Commercial Litigation groups. Scott joined Butler Snow after serving on the Court of Appeals, where he authored over 900 opinions for the court and was consistently ranked as one of the most efficient appellate court justices in the State of Texas. His docket at the court included civil and criminal appeals. The court also handled nearly all administrative appeals brought in Texas. Scott now uses this experience, and his experience as an appellate and trial attorney, in advising clients from the outset of litigation through the conclusion of the appellate process.

Marshall Bowen is also a member of Butler Snow's Appellate and Written Advocacy Commercial Litigation groups. Prior to joining Butler Snow, Marshall clerked at both of Texas' highest courts, the Supreme Court of Texas and the Texas Court of Criminal Appeals. Marshall also worked as a public affairs consultant and in public policy in the Texas legislature. Marshall applies his acute understanding of appellate and legislative procedure to assist clients with complex problems before and during all stages of litigation.

Scott, Marshall, thank you both so much for joining me today. Now, time for the fun part. I'm going to ask a couple introductory questions, so our listeners get to know you and your experience. I'll start with you, Scott. You were in private practice for almost 20 years before you took the bench. Tell us a little bit about your pre-judicial experience and how that shaped your approach as a justice.

Scott Field:
Sure. Thank you. I practiced for a good while before I was on the bench, which of course, I think is important for judges to have experienced before they get there. I always worry when you see really inexperienced lawyers who want to be on the bench. The key for me, I think, was the fact that I had a mixture of appellate and trial experience. I was a clerk at the Texas Supreme Court, and then I was at Baker Botts’ Trial and Appellate Department. I had about a 50-50 practice and ended up first-chairing a lot of jury trials in my career before I was on the appellate bench. I think for an appellate judge, you want someone with appellate experience, of course. But I think that trial experience actually makes... that combination makes for a better appellate justice, in my opinion, and if you can have that, all the better.

Amy Geise:
Absolutely. How important do you think it is for practitioners to consider your background or the background of any given judge or justice that they're in front of?

Scott Field:
I think it's extremely important. It's really good to know—once you know your panel makeup on the Court of Appeals—to know if someone has an experience that would give them insight into what you're arguing—the type of dispute or in the industry area. If they've actually worked in that—represented clients in a particular industry, that certainly helps. I actually had a few advocates in oral argument who would point out they had looked up what cases I handled. They knew, for example, in sovereign immunity that I was one of the main lawyers on a seminal sovereign immunity case in Texas—the IT Davy case. I had one lawyer who said, "Justice Field, as you know, from your experience in the IT Davy case..." Also, I was kind of shocked and extremely impressed, first of all, at that level of research.

But I think for the etiquette, really, it does help. You want to start at a very base level of information that always explains it as if they have zero knowledge. Especially in oral argument, it helps a lot if you know that the judge can follow what you're saying and how far you have to break it down.

Amy Geise:
That is a really interesting anecdote and actually addressed a question I was going to follow-up with. You've got a panel and each judge may have different experiences that applies in different ways to the argument being addressed that day. And it is appropriate and, in fact, welcome to sometimes call out. We put specific things that may resonate, or a specific judge may have experience with and it's not viewed as inappropriate to identify how each judge may relate to a different issue.

Scott Field:
In fact, the other thing I'd say related to this—dovetails with it—is if you know a judge on the panel has written a decision that could be considered adverse to your position, go ahead and talk about the elephant in the room. Just go ahead and say, "Look, Judge Field, I know you wrote X, Y, Z in this case. Here's why this case is different." I mean, just go ahead and hit it head on because that judge is sitting there thinking it anyway.

Amy Geise:
That's very useful insight. I'm going to flip it to Marshall.

Marshall, you clerked for both the Supreme Court and the Court of Criminal Appeals. That seems like a unique opportunity to have clerked in both of those courts. Are there many lawyers out there who have that combination of experiences?

Marshall Bowen:
It was a unique experience. From my research, there had only been one or two other attorneys who had clerked on both of our high courts. Texas is unique in the country to have two high courts that have independent jurisdiction over criminal and civil matters—two true courts of last resort. I knew I wanted to be a Texas lawyer practicing in Texas courts. I figured the best way to learn about our court system is to go clerk for judges on both the high courts. I had a great experience. I clerked for Judge Kevin Yeary on the Court of Criminal Appeals and then I clerked for Justice Paul Green, who has since retired on the Supreme Court of Texas, and both of them are outstanding judges and really great mentors. I had a wonderful experience.

Amy Geise:
What differing knowledge and experience did you glean from each respective court?

Marshall Bowen:
That is a great question. We have two high courts that operate similarly and are in the same building, but they are really two totally different procedural courts. Scott knows well from his time and in intermediate court, seeing both civil and criminal cases. When the case is split from the intermediate courts, they go into two very different environments. The Court of Criminal Appeals has a huge docket of writs of habeas corpus that consumes a lot of their time. They have discretionary review like the Supreme Court. They also have the death penalty cases that skipped the intermediate appellate courts and go straight to the Court of Criminal Appeals. So, they kind of have three buckets of jurisdiction.

The Supreme Court is structured more like a traditional state high court with primarily a discretionary docket on petitions for review, but they also have a writ docket of writs of mandamus and some original jurisdiction. The courts operate a lot differently because of their different jurisdictions, but the posture is the same by and large, reviewing the opinions of the Courts of Appeals. I think really getting a year in each court allowed me to understand the jurisprudence of those courts and the overall trends in Texas law. It was a tremendous experience and anyone who is interested in practicing in Texas I recommend those clerkships to you because they are really unique experiences in our state.

Amy Geise:
I can imagine, and (they are) obviously also coveted positions, so kudos to you for getting two amazing clerkships under your belt. Now, I have a couple of questions that I'll direct to each of you, and I'd love to get both of your opinions on these questions.

Scott, I'll let you answer first. What was the adjustment like coming from private practice to the bench and what experience about that transition is worth sharing?

Scott Field:
It was a big adjustment. The biggest thing I learned is just what really matters and what doesn't in a court case—lawyers are so focused on perfectionism and it's not a bad thing, right? We tend to do better work and we are perfectionists in a lot of ways. Just to give you an anecdote, I was involved in a trial in Philadelphia shortly after I got back in private practice—and it was one that everyone knew was going to go poorly—so they wanted an appellate counsel to preserve error, get ready for the appeal, and they had a lot of large law firms involved in that case.

After losing the trial, the post-trial motion is due. We know the judge doesn't like our client and is not going to give any relief. We are really just trying to preserve error at that point, and he had four lawyers on the phone. It was a 120-page draft document. I didn't draft it, but I was asked to review it. These lawyers were on the phone, it was late at night, and I was on the phone with them. And they were arguing over a sentence on page 84 of this document. I said, "Well, can I ask y'all a question? Are we confident that we have preserved all the error in this document that we need to preserve?" "Oh yes, definitely. Definitely." "Okay. Well, another question, is there any chance, I mean, even a 1% chance the judge is going to give us any of the relief we are seeking?" "Oh no, no. He hates this." So, my next question really kind of angered them, which is, "Then why are we talking about the sentence? It doesn't matter. And we're wasting the client's time and money."

I can tell you, some of them really did not appreciate the comment, but it was sincere. The client, if they had been on the phone, I think would have appreciated it and I just developed little patience for lawyers that want to quibble over everything. It's interesting when you can tell them, "Well, I sat on the bench, and I can tell you how I would have viewed that. I can tell you how all of my colleagues viewed it. And I can tell you how the judges... It's a kind of a fraternity out there." You get to know the other judges really well and you realize that there is a commonality across these courts. You just learn that some of the things that lawyers think are really effective and important and all that, at the end of the day, just don't really matter.

Amy Geise:
Well, I would think from the client perspective, that is incredibly, valuable insight because it is hard to ever make the call to tell your lawyers to back off when perfectionism is often considered a requirement in this profession, and to hear from someone who actually sat behind the bench, to be able to filter out the things that are necessary and will matter from those that are just not even padding the file maliciously but just overworking the file, that's invaluable.

Scott Field:
If lawyers are good at anything, it's overworking the file sometimes. Like you said, not maliciously, just because we are trained to be pessimists, right? We are trained to assume the worst is going to happen. We were worried that if we don't dot that ”I”, the worst is going to happen, that they are going to find some things waived or something like that. Having been on the bench for a while, you realize how to differentiate the true danger zones from "this never matters."

Amy Geise:
Marshall, let me flip it to you. What was the adjustment like coming from clerking to private practice?

Marshall Bowen:
The biggest adjustment was just learning how to start an appeal or start a case in private practice. I think when you're at the court, you have the benefit, especially at the high court, of having everything presented to you in the best way. You see everything brought to you clearly and you understand what these different briefs are and how the appeal got to you. But then, when you're in private practice, you have to start all of that on your own. I remember one of the first appeals I worked on, I had to file the docketing statement—and I read a lot of docketing statements—but I had never filed one so I had to figure out how. So, I think just that adjustment of moving from the court where everything's presented to you. You're not really learning how to file those pieces of an appeal.

Fortunately, I work with great mentors like Scott who have trained me, but I think it is a big adjustment coming into private practice after clerking. I think the advantages of having been in the court, you understand where to look for answers to questions. You have relationships, the court to call, you have this built-in knowledge that comes from those years spent at the court that makes that learning transition a lot quicker and you can start adding more meaningful value really quickly as opposed to just coming out of law school. I think just that initial startup of, “how do I file this? Where does this get filed?” Those kinds of basic questions were the biggest adjustment for me coming into private practice for the first time from the court.

Amy Geise:
On that note of things about your clerkship experience that gave you a leg-up coming into private practice, what are some of the effective advocacy techniques that stuck out to you as a clerk and how have they helped you in private practice?

Marshall Bowen:
I think one important thing to think about as an advocate is that in the appellate courts, certainly, the first person to read your brief is likely a law clerk. That law clerk has probably just come out of law school, has very little knowledge about the area of law that your case is focused on, and very little context about your case. I think writing in a way that presents the clear issue of what happened, how we got here, and really what is at the heart of the dispute. I think the best briefs I read when I was clerking were the ones that put that up front really clear in a way that I understood. My audience is probably initially a law clerk who is going to make a recommendation about this case and help his or her judge decide the case.

Be able to present that in a way that is sympathetic to the fact that the person reading your case has never really practiced in this at all—much less in this very nuanced issue—and especially at a high court. If it is at the high courts, it is probably a complex issue—often an issue at first impression, a statutory interpretation—and putting that in context for the law clerk is immensely helpful.

Amy Geise:
I think it is helpful to law clerks who are just out of law school and also to practitioners who've been doing whatever area of practice they've been specializing in. Lawyers, in my experience, can be very tunnel-visioned. To them, they have been living and breathing this case for four years and now it is finally on appeal, and so they delve in just talking about these discrete issues and factual details and citing cases that are something they've read a million times, but the person they're talking to probably hasn't, or if they have it's been years. I think that that is really great advice and something that it is easy to forget when you are living and breathing a case that the person who is making the decisions on the case has not been.

Marshall Bowen:
Yes. You can glean that too from reading well-written opinions that start out by saying, "This is a property dispute about a boundary." That sounds basic to start an opinion that way, but I appreciate it when judges write that way because then it's like, "Okay, well, now where is my brain moving into. We're in a property dispute about a boundary," as opposed to section whatever of the property code. I think that's important for the reader to understand where we are starting.

Amy Geise:
Scott, what about you? What were some effective advocacy techniques that stuck out to you as a judge?

Scott Field:
The lawyers who understood what your job was to do on the appellate court. In other words, the lawyers who understood I had to write an opinion that explained the answer to all the questions raised and who would basically approach the brief or oral argument in an effort to basically say, "Here's how you write the opinion judge. Here's what it would look like. Here are the tough issues that you're going to have to deal with, and here's how we would resolve it." Like Marshall said, instead of diving down into the weeds immediately, giving the big picture of what the dispute's about, educating the judge on it and then saying, "Here's how you get to where you need to go." Only a few advocates did this when I was on the Court of Appeals, but I now do it in my own oral argument because I thought it was so effective.

After the introduction, I will say, "I'm here today to assist you in writing an opinion that resolves this,” if I want an affirmance affirming the trial court order (that was) reversed in a trial court, “and here's how you get there.” I'll start an outline and, of course, I want your questions along the way because I want to help you flush out what that opinion is going to look like and how you get there. There were some lawyers who were very good at it—interestingly, most of them were former judges. You'll even see one of our colleagues, Amanda Taylor, who actually filed a brief one time when I was a judge. I remember vividly because at the end it was a mandamus, so it was a little different, it was more of what would the order looked like. She basically wrote the order. Here's the order we asked you to enter, and it was beautiful because I was looking and going, "Thank you."

That was going to be a very difficult thing to write and even if we don't go with you, we have ideas of how to go the other direction. But if we do go with you, I know what it looks like now. And it's just an extremely effective technique. I think the roadmap—even the core roadmap—and then with the trial court, I have also learned that you need to let them know.

I'd be very delicate as a former judge on the appellate court with the trial judges. You don't want them to think that you think you're somehow better or more experienced. It's not that. It's just giving them a heads-up of, "Look, I'm here to help you because I know you're not going to say this out loud, but I know you don't have the staffing that I did as appellate judge, and so I'm going to help you. I'm here to help you. I'm going to be your staff attorney basically and help you get ready to go. But I'm also going to identify for you the traps, the ones that are going to get your reversal on appeal."

Now, of course, they know you're advocating, right? But at the same time, in all seriousness, you need to express concern, "Judge, here's one, this one right here.” Again, these are all important issues we are talking about, but this is the one. This is the one that I guarantee you, if you rule against us, we are going up and it is likely going to be reversed if you don't go our direction." And it is important for them to know that. And again, in a non-obnoxious way, you got to be very careful with that. I think in a good advocate, you want to show the judge that you are not just advocating, but you are actually concerned about helping them and helping them not be reversed too. Judges do care. They all act like they don't, but judges do care when they get reversed, and they want to get it right. A lot of that is making sure that the judge knows you are their ally. Yes, you are advocating, but you are also trying to help them.

Amy Geise:
That is not the first time I have heard that from a judge and I think that your point—that yes, judges don't want to get reversed—of course, it's human nature. But, like you said, they also just want to get it right. They want to understand the issues, they want to make the right decision, and they want to feel intellectually confident about the decision they made. It is intuitive in a lot of ways as the advocate to have your goal be to help the judge get to the place you want them to be. But just as often, I think practitioners when they're standing at that podium, all of a sudden feel almost adversarial to the judge who is interrupting them and asking questions and taking issue with something. But those are opportunities, right? Those are opportunities to help the judge not to shut down the question and change the judge's mind in a hostile way.

Scott Field:
I get hired to help people prepare for arguments in different firms. I was reminding them that if you don't get a word of your outline out, who cares? At the end of the day, you are not there to give a speech. They set your case for oral argument. They have questions. Trust me, you want those questions answered favorably to your client. More than you're talking, listen and answer the question because, at the end of the day, I would much rather have a panel that spins my entire whatever—I have 15, 20 minutes of them asking me questions—than sitting there listening to me. They can read my brief and arguments are in there. I want to know what is concerning them.

Amy Geise:
But that's a lot harder, right?

Scott Field:
So much harder. I still remember to this day, a lawyer who was probably a 30- to 40-year lawyer, at an oral argument who never once looked up from the podium. I had drawn the case and I was with the opinion writer—I already knew that going into oral argument—and he would not look up from his podium. I had to try to interrupt him about six times before he realized that someone is talking and wants to ask a question because he would not look up. I'm amazed that someone could practice for that long and still think they are qualified to go to oral argument and argue and doesn't have the sense not to get up and read an outline. It's flabbergasting. How do you not know? The last thing you want to do is get up there and read an outline. No one cares about your outline. No one does.

Amy Geise:
Now some fun questions. Key pet peeves. Marshall, what were the key pet peeves you developed while working behind the bench?

Marshall Bowen:
I didn't see this often, but I think a couple of times when lawyers kind of engage—especially at the high appellate court level—in a kind of snarky comment about the other side or the other lawyers. I just think that is unnecessary in the appellate courts and especially at the high courts, and it does nothing for the argument other than I think discredit your position. So, I think anything that is kind of a shot across the bow at the other side that has nothing to do with whether that is in a footnote etc. I just don't think that is an attractive quality.

Amy Geise:
What about you, Scott—pet peeves from behind the bench?

Scott Field:
Marshall also hit on one that was absolutely my pet peeve—snarky—I just hated it. The attacks on the other side just irritated me. I immediately became irritated reading your brief if you made some comment about the other side or even the other party that just wasn't about the law. Forget all that. Leave it at the trial court. Don't need it anymore. And honestly, it has no place in trial court either. It doesn't help you. I think it makes you feel better, but it doesn't help you.

And then, the biggest one for me, I was shocked by how many people do not file reply briefs. Brief of the appellee comes in, you as the appellant get one more shot to convince the court, and you don't file a reply brief. I don't understand that. Okay, if the client stopped paying or something, I get that. I do. I get that as a practitioner, but you still owe a duty. I mean, you filed the opening brief, you are there to help the court reach a decision. File something. It really helps when the reply briefs are filed.

Then lastly, it was amazing how many lawyers would not take on the difficult cases that the other side had to cite to the point that towards the end of my six years, I started reading the appellee's brief before I read the appellant's brief, and it was amazing how often the appellant's brief just happened not to mention a case that was close to dispositive. They would on reply. Now, sometimes that's because of a mistake. We all miss cases and things like that. I get it. So long as it's not a pattern, a court is not going to hold it against you too hard. But sometimes I do think lawyers are just afraid to talk about odd facts and bad law when, in fact, take that opportunity to be the first one to talk about. That was the other pet peeve I had.

Amy Geise:
I'd be remiss if I didn't mention the client who stops paying on appeal. There are options, right? We actually see a lot of those kinds of situations where you're at the 11th hour and the client's been pouring money into this case for too long, and either the appetite diminishes or there's literally not the funds there anymore. Like you said, Scott, the attorneys do still owe a duty and that is the worst time to back down and not close your case off on a strong note.

We love talking to lawyers and clients who find themselves in that situation where the litigation cost is no longer palatable, even if it is at very late stages. So hopefully, we could provide a solution if an attorney does find themselves in that difficult situation. Where they want to bring the case as strongly across the finish line as possible but, financially, it is difficult for the firm.

Scott Field:
Absolutely. It is important.

Amy Geise:
Last question—page limits. When should we have them and when should practitioners be permitted to exceed them? Scott, I'll let you give your thoughts on this one first.

Scott Field:
Mainly I tell lawyers that judges are—they're human. Probably, they will go look at your table of contents first, which is one thing we can talk about in a different time and advocacy tip. Well, I'll go ahead and say it. Don't make your table of contents just say argument page whatever, prayer page whatever, and a brief. Put the points in the table of contents, make it a little mini-outline for your judge.

Having said that, if you see the brief is 70 pages, is there going to be a sigh of sadness? Yes, there is. And you know what? There are very few cases that require a long brief. The problem is, it takes a skilled lawyer to write a concise brief, and it takes far longer for a lawyer to write a concise brief. As you can probably tell, I'm not a fan of exceeding page limits. I think the page limits in Texas, at least, are generous. That's a long-winded way of saying, try to meet the word limits and the page limits. You rarely ever need more.

Amy Geise:
What about you, Marshall? What are your thoughts on the matter?

Marshall Bowen:
I agree with everything Scott said. I think easily the best briefs I read when I was at the courts were the briefs that were the shortest. I can't think of a case or a situation where I felt like, "Man, I really wish we had more briefing on this issue." I think that rings true for the judges too, as Scott talked about. I think that great advocacy—and I'm experiencing that now as an appellate advocate—that it is more difficult to draft a concise brief, but once you finished it and you read it, you say, "Man, that reads a lot better than my much longer version that I started with." Embrace the page limits and aim to fall short of them, I think, would be my advice. You need to be an effective advocate, not cut corners, but figure out the balance there and just say all you need to say and no more.

Amy Geise:
Brilliant brevity. You heard it here first. All right. Thank you so much, Scott and Marshall, for being our guests today and sharing your knowledge with our listeners. It has been really fun talking to you both.

You can access a transcript of this podcast on our website blog page at www.omnibridgeway.com. I invite you to follow up with me, Amy Geise, at [email protected] for any feedback, ideas, or insights you have on topics we should cover on this podcast in the future. Thank you for listening and goodbye.