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?
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.
CF: We appreciate your service to the Bar.