by James C. Marrow, Hogan & Hogan
-What led you to consider a career in law?
My parents are both lawyers, so I grew up learning about how lawyers help people. In college, I chose to major in public policy and eventually discovered that I was drawn more to the work of interpreting and applying existing laws in a coherent and predictable way than to the political task of developing, lobbying for, and compromising over new laws.
-When did you first realize that you might be interested in becoming an appellate justice?
When I graduated from law school, I planned to be a tax litigator—a job that involves few factual disputes but many arguments about the meaning of a complex and interrelated set of statutes and regulations. After clerking for Judge Gerald Tjoflat on the Eleventh Circuit and later Justices Byron White and John Paul Stevens at the Supreme Court, I realized that I thoroughly enjoyed the variety of legal issues addressed by appellate courts and decided to specialize in appellate advocacy. As a clerk, I also enjoyed the process of weighing competing arguments, collaborating with the judges deciding the case, and helping to shape and refine an opinion, so I knew I would enjoy the craft of appellate judging if I had the opportunity to become a judge someday.
-After years as an appellate advocate, were you surprised by any aspect of your new job as an appellate justice and, if so, which aspect of your new role has surprised you the most?
The bar and the public see only the finished product of an opinion signed by a particular justice, but it has been surprising and encouraging to see how attentive the other justices on the panel can be to shaping a draft opinion before it is released. Each justice brings different perspectives and strengths to the court, and welcoming suggestions from our colleagues generally makes the finished opinion stronger and provides clearer guidance for future cases.
-What are your most favorite aspects of being an appellate justice?
Most of my favorite parts of the job involve collaborating with my colleagues and our staff attorneys and law clerks in deciding cases, engaging with good advocates through briefing and oral argument, and striving to write opinions that are clear and readable. I also particularly enjoy the variety of our docket—Texas appellate judges are some of the few remaining legal generalists, and I believe that knowing how different areas of the law address similar issues helps strengthen our jurisprudence.
-How would you describe your judicial philosophy?
There are too many aspects of judicial philosophy to cover in the space available, but here are a few thoughts. In our adversary system of justice, a judge should (with few exceptions) decide only issues raised by the parties. Because everyone is entitled to know what the law is so they can plan their conduct accordingly, a judge’s decisions should be based on the plain language of governing laws or other written documents and on a consistent and evenhanded application of procedural rules. To foster stability and predictability in the law, a judge’s opinions should apply or clearly distinguish relevant precedents, should explain the decision in the current case in a way that provides appropriate guidance for future cases, and should not decide too much.
Regarding Briefs:
-The Fourteenth Court of Appeals was at the leading edge in the push for electronic briefs. On what devices (e.g., desktop at the court, remotely from home, hand-held devices) do you prefer to review appellate briefs? Do you have any suggestion for improving the readability of electronic briefs, as in particular styles, formats, or fonts that you find easiest to read?
The Fourteenth Court is completely paperless, which allows the judges and staff easy access to the briefs, record, and draft opinions. I have three screens in my chambers, and two are positioned vertically so that I can view a whole page of a document. I prefer to read briefs on these screens, but I also read remotely from home and occasionally on an iPad. I do not have a font preference, but as to format, I find declarative sentences helpful in headings.
-In your opinion, what distinguishes an effective appellate brief from one that is not? Do you have any suggestions about how attorneys can improve their written work product in the court of appeals?
The best briefs signpost the structure of their argument up front so that the reader knows what is coming and has the context necessary to evaluate the facts and legal arguments as they are presented. Factual introductions may be short, saving further factual development to accompany the argument it supports. Avoid witness-by-witness summaries of testimony. For each legal issue, spell out the essential facts and the key authority that supports your argument, while acknowledging and distinguishing any contrary authority. Also, take the time to explain why a case (especially a non-binding one) is correct, rather than just providing a citation and saying that your client will win if the court follows the case. A brief should never—ever—attack opposing counsel, a court, or the Legislature. This point seems elementary, but I see a surprising number of briefs from otherwise-skilled advocates that (for example) accuse opposing counsel of trying to mislead the court rather than simply showing why opposing counsel’s argument is wrong. Such attacks are grating and distracting for the reader, and they diminish the writer’s credibility.
-Do you prefer legal citations in appellate briefs to be contained in the text itself or in footnotes?
I prefer citations in text (unless they are long string cites) because I find it distracting to look (or scroll) up and down multiple times per page in order to check the nature of the authority being cited for a proposition. Even more distracting is a page in the statement of facts that contains a footnote after practically every sentence, with each footnote offering only a very short record citation.
Regarding Oral Argument:
-How do you decide whether to grant oral argument in one of your cases?
After coming to the court, I was surprised to find that many parties do not ask for oral argument. In general, the court will not set a case for argument if no party requests it. In the cases where argument is requested, the justice assigned to write the opinion makes the first recommendation regarding argument, though any panel member may request argument. If a case appears to be controlled by existing precedent, I do not recommend the further expenditure of time and resources by all involved that oral argument would entail. If the case is ably briefed and a quick review of the brief and some key cases does not show that existing precedent provides a ready answer, I generally recommend oral argument.
-In what ways do you find oral argument helpful or unhelpful? Do you have any suggestions for how attorneys can improve their performance at oral argument?
As a former appellate advocate, I enjoy oral argument. I find that it frequently shapes the way the opinion is written, though it is less common for argument to change entirely the disposition of the case. I find it helpful if attorneys begin by providing a short introduction listing the two or three key points they hope to cover. Factual introductions and jury arguments are not good uses of the limited time available. Instead, be prepared to offer brief bullet points of the authorities and facts supporting your position, and to respond to your opponent’s key points. Be sure to welcome questions and answer them as well as you can. If an advocate does not know an answer, we welcome one short post-submission letter that provides the answer.
Regarding Himself:
-Much has been written about your musical background and talent with the violin (including an excellent piece in last month’s Texas Bar Journal). What led you to choose the violin?
My parents took me to symphony performances geared toward young children beginning at age 3. After I had attended a few times, I’m told that I pointed to the violins on stage and told my parents I wanted to play that. They thought I was a bit young to start, but they looked around and found a teacher of the Suzuki method who was willing to start teaching me to play by ear.
-Does musical talent run in your family? Did your parents play musical instruments? Do your children (Katie and Will)?
My mother played the piano and flute growing up, and she once had the opportunity to play with Van Cliburn. My wife Erin also plays the piano, and Katie is an enthusiastic piano student. Will is learning some music theory and is interested in the guitar, but he has not started taking lessons yet.
-You seem to keep quite busy, between your time on the bench, rehearsals and concerts with the Houston Civic Symphony, service with the Houston Symphony Society board of trustees, and as a husband and father of two children. If you could add a few more hours to each day, how would you spend them?
I would spend more time on these activities I already enjoy, especially time with my family, and I would likely read more for pleasure—particularly history.
-I understand you have played the fiddle a bit, too. On a truly serious note (or not), you said once (in the Texas Super Lawyers 2009 publication) that The Devil Went Down to Georgia was your favorite fiddle piece (and I respectfully submit that is the only correct answer to that question). Which side of the “duel” do you enjoy playing more—Johnny’s or the Devil’s? As the song goes, the Devil plays a pretty mean fiddle; so, in your expert opinion, did Johnny really beat the Devil?
The Devil’s part is more difficult to play because it is not very tonal and has a lot of slides. But I enjoy tonal music more (probably because of my classical training), so Johnny’s part has always been the winner in my book. Johnny’s part has a lot of chords that are fun to play, as well as an enjoyable back-and-forth with the singer.