Last week, the Austin Bar Association sponsored “An Evening with the Supreme Court of Texas,” featuring a panel discussion in which six of the Justices participated.
The Court discussed some of the hot new topics of appellate law, along with some of the perennial answers that evolve as the Justices do.
I’ve jotted down some highlights. (( I wish I had been able to attend live. But one side effect of me having to watch the program on video is that I could take down these notes. About the quotations: What appears here is what I typed while watching the video at live speed, so I may have missed a few nuances. I believe these quotations are faithful to the spirit of what was said, and I’d be happy to make any tweaks needed to make them match more perfectly. ))
With several Justices using a “petition pool”, should advocates change how they write their petitions?
Justice O’Neill took this question. She explained that currently three Justices participate: Justice Johnson, Justice Willett, and herself. Within the pool, the law clerks summarize the petitions before the Justices review them. The summaries are available to all chambers.
She took pains to distinguish this from the federal “cert pool” because the focus here is to summarize the petition, not to recommend how it should be disposed.
In the end, having these summaries lets her “concentrate” on the petitions that warrant the most attention and “streamline” her consideration of those that do not. If anything, “[t]he tendency of law clerks is to think every case is important.”
She ended: “Always write your petitions to the judge.”
What should advocates make of the so-called “shadow docket”?
Several Justices participated in this discussion. The answers focused on the petitions that were “linked” in some way to another pending case on the docket, usually because they had an overlapping issue.
Justice Hecht discussed the new safeguards that the Court takes. When it appears there might be a reason to hold up a petition, the Court asks the Justice with responsibility for the supposedly-linked case to weigh in with a recommendation.
The Justices of course have better information that we do on the outside about the reasons why each petition is being held. But, as Chief Justice Jefferson explained, that should not necessarily make a hold mysterious to the parties involved: “The vast majority of those cases really aren’t in a shadow,” because it’s pretty obvious that there is a key issue in your case linked to another one on the docket. He gave as examples the sue-and-be-sued cases that accumulated while the Court considered Tooke and the flurry of similar expert-witness cases.
The Court is receptive to counsel suggesting that the Court “link” or “de-link” particular cases. It did not sound like the Court wanted that to be in a formal motion. (Those are just “carried with the case,” as noted by Justice Hecht, which means the Court would likely deny it as moot when the case is over.)
The Chief suggested that advocates “become a student of the docket.” He noted how helpful it can be when a petition for review identifies other pending petitions that are related. He recommends making these connections explicit. And he suggested that this can be a place for effective advocacy, to perhaps explain why your petition is a “better case” to reach the same issue or why one petition “has other complexities” that also need the Court’s attention.
Has there been a surge in recusal motions after Caperton?
The Court has not seen one, either itself or among the lower courts. Justice Hecht credits the recusal procedures that are already in place for the lower courts, which provide a quick way for a regional administrative judge to resolve those motions.
What happens when a party advances too many issues?
Everyone knows the basic answers that too many issues mean you have too few pages for the ones that matter or that not being able to discard weak issues hurts your credibility as an advocate. That’s not what the Justices talked about here.
Chief Justice Jefferson pointed out how having more issues can undermine a petition by suggesting too many ways that a court with discretionary review (like the Texas Supreme Court) might fail to reach the one truly interesting and grant-worthy issue. He related that when he’s reading a petition, he’s “sort of projecting ‘how is this gong to play out if an opinion needs to be written’.” With that in mind, having 15 issues becomes a serious problem. Some of those issues are just unimportant, and it’s easier to imagine the Court never reaching the ones important to the jurisprudence or even reaching a fragmented decision, where nothing gets five votes except the judgment. More issues “makes it less likely I’m going to be a vote for a grant.”
His view is that “[t]hree is about the most that a good lawyer will present.”
A response to the petition is optional until requested. Should a party waive their response or file immediatley?
The Chief Justice explained how his “thinking about that had evolved.” He used to advise people that waiving would let the Justices form a first impression of the case with only one side of the story, and that the “ball gets rolling” toward a grant before they could be heard.
But now, he explained, he finds that’s not really the case. The Court’s internal procedures minimize the chance that the Court would discuss your case before the response is requested. With that in mind, “My recommendation would be that you don’t need to [file a response] in every case.”
He did note that waiving a response adds time to considering your case. If it’s a case where you are fairly certain that a response would be requested anyway, you can expedite things by filing the response without waiting for a request.
What about reply briefs at the petition stage?
Justice Hecht “can’t imagine not wanting to have the last word.” On the other hand, “A reply that says ‘what I said in my petition’ is not helpful and is irritating.”
The Court’s practice is now to wait for the reply briefs, even at the petition stage. The clerk’s office can now grant extensions of up to 15 days before the file will be forwarded to the Court.