by Hon. Wanda Fowler (Ret.), Wright Brown & Close, LLP

Terrie Livingston, Chief Justice of the Second Court of Appeals in Fort Worth, is a relative newcomer to her current position, but not to the court. Chief Justice Livingston was appointed Chief by Governor Perry in April of this year. Before that, she was an Associate Justice on the court for 16 ½ years. Seven judges are on the court.

Justice Livingston had an inauspicious beginning, having been born in Atlanta, Georgia, but by the time she was one year old her family had moved to the town she still calls home—Fort Worth. There wasn’t any one event that changed or shaped her life—“more like 30-40,” she said with a laugh. But if she had to point to one thing, it would be her father’s influence. With no sons and two daughters, he always told them they could be whatever they wanted to be and gave them healthy doses of old adages such as, “If something’s worth doing, it’s worth doing right.” She took these to heart.

She didn’t know she was going to be a lawyer, and you wouldn’t have been able to tell from looking at her family: her father was an electrical engineer and her older sister was an anesthesiologist. But Justice Livingston didn’t have that scientific bent. When she started Texas Tech, she didn’t know what she wanted to major in, but she “knew she liked political science and government” so she started in the political science department. There she found a new sub-category: pre-law. Practicing lawyers taught the pre-law courses using the Socratic method. Her first pre-law course was in criminal law. After that, she was “hooked.” She obtained her B.A. with distinction and honors.

She went directly from Texas Tech to law school at U.T.—something her Aggie father forgave her for since A & M had no law school. While in law school, she had three part-time jobs as a law clerk for three different governmental agencies: the Texas Attorney General’s Special Prosecutor Division, the Appellate Division of the Tarrant County District Attorney’s Office, and the legal department of the Texas Secretary of State. In her second year of law school she would encounter a law professor who would have a lasting affect on her future practice; the venerable Stanley Johansson taught her property and probate and guardianship law. He kindled her interests in those areas, and the fire would never fade.

In 1980, when she graduated from law school, she returned home to Fort Worth and began practicing with a small firm specializing mainly in estate planning, probate, guardianship, and real estate. Fifty percent of the practice was litigation. Four years later, she started her own firm doing some of the same things as before, plus banking and small business litigation; she later merged with several other lawyers; and finally, the last two years before she went on the bench, she practiced by herself. Throughout this time she was heavily involved in bar activities in Tarrant County and Fort Worth. She decided to run for judge in 1994 and initially was considering a probate bench, but when eight other people filed for that spot, she turned to her long-term goal—an appellate judge. She was elected in 1994 and took office in December of 1994.

Like most judges, Justice Livingston has definite opinions about things lawyers should and shouldn’t do on appeal.

  • Bench Exhibits – Usually bench exhibits are useful especially when they contain demonstrative exhibits such as a plat showing boundaries or a timeline or a summary of a lengthy procedural issue. She and most of the other judges on her court review the upcoming week’s cases the weekend before. So for them, a bench exhibit would be most useful if filed before the weekend. She says people often will put into bench exhibits things they should have put into the appendix: “People underestimate the power of an exhibit attached in the appendix to the brief.”
  • Oral Arguments – The most effective arguments are those in which the lawyer “recognizes the weakness of her case and tells the judges why the outcome should still be in her favor.” Likewise, the least effective arguments are those presented by a lawyer who refuses to recognize the weaknesses of the case. Finally, it’s important at argument to close properly and tell the judges precisely what you want them to do. Sometimes a party will need very specific relief; if so, you should state it in your closing, especially if you didn’t state it in the brief.
  • Cases of First Impression – “Cases of first impression often require a different approach.” She finds herself going to secondary materials—such as Am. Jur, Tex. Jur, insurance treatises, criminal law treatises, advanced seminars—when she has a case of first impression. She also will look at the law of other states and to federal law for guidance. Three or four cases a year are cases of first impression.
  • Judicial Philosophy – When asked about her judicial philosophy, her father’s adages showed their continuing influence. “Try your best to get it right,” she responded. “Try not to create things out of whole cloth and stick to the arguments made by the parties.” She and the other justices on her Court are “pretty cautious about overruling our court’s precedent.” Invariably when her court overrules its own precedent, that is done by an en banc panel.

What is Justice Livingston’s favorite thing about being a court of appeals judge? Those times “when you get a case that grabs you and you can’t find enough information about it; the one that sparks that curiosity in you, whether it’s an issue or an aspect of procedure, and you really want to learn everything about the case.”

Justice Livingston does have a life off the bench, although her new position has cut into her free time. When asked what she most likes to do when she isn’t judging, she immediately responded with exuberance, “Kayaking!” She’s been on several overnight trips on Texas rivers and lakes and is hoping to go on a ten-day kayaking trip to Scotland this May.

Justice Livingston was re-elected this November, but will be on the ballot again in 2012 running for a full 6-year term.