The Texas Appellate Law Podcast: Justice Brett Busby is uniquely qualified to help advocates provide better briefs and conduct more effective oral arguments. With a background as a U.S. Supreme Court law clerk, appellate practitioner, and Justice on Texas’s Fourteenth Court of Appeals, serving on the Texas Supreme Court seems like a natural fit for Justice Brett Busby. Today, he joins Todd Smith and Jody Sanders to share his experiences transitioning from the Court of Appeals to the Texas Supreme Court, including insights learned from the bench and from his background and experience as an appellate advocate. Justice Busby provides timely tips for anyone appearing before the Texas Supreme Court—in person or remotely—and offers practical advice to strengthen appellate advocacy at any level.
We’re very lucky to have a sitting Supreme Court Justice, Justice Brett Busby, with us. Justice Busby, thank you so much for joining us.
It’s my pleasure. Thanks for the invitation. I’m glad to be with you.
I know you’ve been on the Court for a little bit, but a lot of people may not know your background. Can you give us a little bit about how you got to where you are now?
I’m a native Texan. I grew up in Amarillo and Austin, and then went to Duke undergrad and Columbia for law school. Both my parents are lawyers. My mom is the one that inspired me to get into law. She was the only woman to graduate in her law school class from St. Mary’s in 1971. She became a tax litigator and had a very successful career. She never lost a trial in tax court in the cases she worked on. Her preparation was incredibly diligent. She would have me read some of her briefs when I was in high school. I got steeped in that and thought I was going to be a tax litigator. I took a lot of tax classes at Columbia, but one of my professors said, “Why don’t you think about doing a federal appellate clerkship? It would probably prepare you well for any kind of litigation.”
I was very fortunate to be hired by Gerry Tjoflat on the 11th Circuit there in Jacksonville, Florida. I spent a year with Judge Tjoflat who just took senior status. He was the longest-serving active federal Court of Appeals judge in US history. He used to serve on the old 5th when he was appointed in ‘75 by President Ford to the 5th Circuit. He had some wonderful stories, great tips, and advice for people starting out their careers. I then had the good fortune to be hired by Justice Byron White, who was retired at the time, at the US Supreme Court but still taking law clerks. He would sit some on the Courts of Appeals by designation. I did get to work on some 9th Circuit cases with Justice White on some cases that he was working on there.
I went out to Montana with him for a sitting on the 9th Circuit. This professor had given me the advice to apply to the retired justices saying, “They don’t have enough to keep you busy full-time. They typically share you with an active justice.” Justice White was sharing his clerks with Justice Stevens at the time I worked for him. I got a chance to work for Justice Stevens the same year. He was very gracious and treated me like one of his own clerks, and I worked on a number of projects with him during that ‘99 term. I also met my wife, Erin, who was a law clerk for Justice Breyer. It was a great year both personally and professionally for me. That’s what got me interested in appellate law was having those wonderful opportunities.
What an incredible experience overall that had to be. That’s the pinnacle. If you’re going to do a judicial clerkship, the US Supreme Court is the Pantheon. I’ve always found that very impressive. I didn’t know that you had done quite so much traveling around in your clerkship experiences. Jacksonville, and of course you mentioned all the 9th Circuit stuff you did. Was Justice White the 9th Circuit Justice? Was that the connection out there?
He may have served as the 5th Circuit Justice. Also, as the 10th Circuit Justice when he was on the court. After he retired, he chaired the commission that the federal courts had set up to try to figure out how to split the 9th Circuit. He developed a relationship with a lot of the judges out there from that. Of course, being the man of the West that he was, he enjoyed spending time out there. There was an event I’ll never forget on our trip to Montana. They had a reception for him at the Museum of the West in Bozeman, Montana on the campus of the university there. The warmth and obvious affection that everybody there had for him was something to see.
Did I hear you correctly that you went from your 11th Circuit clerkship to the Supreme Court clerkship with Justice White?
I went straight from law school to the 11th Circuit clerkship and then straight to the clerkship with Justice White. Knowing that I had wanted to do appellate work, I was trying to decide what to do next. I interviewed with a lot of different firms both in DC and back in Texas. I spoke with Greg Coleman who was then our Solicitor General when I was home for Christmas that year in 1999. He asked me if I wanted to come and work for the then-new Solicitor General’s office. I said, “I appreciate that opportunity, but I need to make some money first coming out of law school. Where would you recommend?” At that time, the appellate boutiques were still fairly new, but one of the ones that he recommended that I talk to was Hogan Dubose & Townsend in Houston.
That’s where I ended up starting my career and worked there for three years with that wonderful firm. It was a great place to learn Texas appellate law from some of the first people to be appellate specialists in Texas. I was there for three years and practiced with Richard and Jennifer Hogan, Roger Townsend, Kevin Dubose, David Gunn, Russell Post, and me. It was a wonderful learning experience. No brief went out of that office without being read by several lawyers. We did moot courts for every case, whether we charged the clients for them or not. It was an incredible way for me to learn as a young lawyer. When that firm split up, I went to the Houston office of Mayer Brown and practiced with Claudia Frost who had been the head of the appellate group at Baker Botts. I had a great practice there. I made partner at Mayer Brown and kept up my Texas appellate practice, but also had a pretty active US Supreme Court practice working with some of the lawyers in Mayer Brown’s offices.
I got to argue a case in the US Supreme Court right after our daughter was born. You couldn’t have asked for a more understanding spouse since my wife was also a Supreme Court clerk and knew what needed to be done to prepare for a US Supreme Court argument. I was able to take off a couple of weeks right after, and then fly up to DC, do some moots, and get ready for that. I had a wonderful experience at Mayor Brown. About 2008, I started visiting with Bracewell where Erin had practiced earlier in her career and they were growing their offices in the Northeast and looking to expand their appellate practice. I took the opportunity to go over there and work with Warren Harris and was at Bracewell for several years until I went on the Court of Appeals. It was a great place to practice. I had general civil appellate practice, all different subject matters. From my clerkship days, I had always thought that public service and an opportunity to serve as a judge would be something that I’d enjoy. I was excited when that opportunity came along for the Court of Appeals in 2012.
With your credentials, that should not have been a surprise to anyone that you practiced with, that you would seek out something like that. You’ve moved on even from the Court of Appeals to the Texas Supreme Court. Tell us a little about the process of getting on—you were on the 14th court, right?
Yes. I served on the 14th court for six years. I went on in 2012 through 2018 and then I was appointed by Governor Abbott to the Supreme Court in February of 2019. Justice Johnson had announced that he was going to retire. I interviewed and was very fortunate to be selected and have this opportunity to serve at the Supreme Court, which is a dream job for an appellate specialist like me. I went through a confirmation process because the legislature was in session at the time that I was appointed. I was unanimously confirmed by the Texas Senate in March of 2019 and I started my term on the Supreme Court then.
At the time I started, they had finished all of their oral arguments for the term, but I was still able to participate in several other cases at the end of the 2018-19 term. I wrote one opinion for that session. This term that we just completed for the 2019-2020 term was my first full term on the court. I had eleven authored majority opinions for this term. It didn’t end the way we expected with the pandemic and that sort of thing. I know we’ll have a chance to visit about some of those challenges later, but it’s a real joy to have a chance to serve on that court, having argued there several times. Many of the justices on the Court have been mentors of mine over the years.
You almost forget about Senate confirmation for Texas Supreme Court appointments. We’re so used to hearing about it for the US Supreme Court, but I recall that going on. The timing is such that if the legislature happens to be in its biennial session when there’s an appointment made, then you’ve got to go through and be confirmed. How did that process go? Was that a challenge to you? We had Jeff Brown on. He talked a little about his Senate confirmation process, but I suspect it was a little different.
It’s quite a bit different than what some of my friends have been through in Washington with the process. That’s a real tribute to the Texas Senate and the way that they conduct their business. I did have an opportunity to visit with all the senators on the nominations committee and with several of the other senators. I sent letters to all of them offering to meet and answer any questions that they might have. All the ones that I spoke with were very gracious and asked me some great substantive questions about my approach to the law and my background and experience as an appellate advocate. What other things I might be interested in doing on the Court in the way of our administrative work, including some of the things that I’ve done on my access to justice through the course of my career. I had great substantive conversations with the senators about those issues and they took the process very seriously. I was honored to be confirmed unanimously.
Do you have to testify in the Texas Senate?
Yes. The nominations committee had a hearing and several people testified that day. I was the only judge, but there were several other non-gubernatorial nominees for other boards and commissions that testified the same day. Every week or two, they’ll have a hearing during the session to hear from and give senators a chance to ask questions. Other than members of the committee, senators can also drop in and ask questions. We had a couple of people who did. John Whitmire is my Senator from Houston. Although he’s not on the nominations committee, he came and introduced me to the committee. A couple of other senators came and asked questions as well.
Todd’s right, you don’t think about the Texas Senate confirming nominees, but it does happen.
It was fun. My family got to come. My kids are 14 and 11 now, when I became a judge on the Court of Appeals, they were pretty young, but they got to get a full sense of this process and be part of it, which was special for us.
You’ve been on both the intermediate court at the 14th and now you’ve been on the Supreme Court. How do those two differ from each other being a justice? What are some things that you’ve seen now that you’ve done both?
The intermediate court, certainly we had a huge variety of cases there, including a criminal docket. The intermediate court justices are some of the few remaining legal generalists, which is helpful. Knowing how different areas of law address similar concerns helped strengthen our jurisprudence. That’s an interesting perspective that those justices get to have. There’s also a very heavy caseload on the courts of appeals in terms of the sheer number of opinions that they have to get out to keep up with the filings. You’ve got to work collaboratively with your colleagues and we were for the most part on panels of three. That’s a different perspective for somebody who’s used to writing briefs in private practice. Sometimes you’ve got a committee that you’re writing a brief with, but sometimes you’re doing it on your own and then passing it by the client or the trial lawyers to get their feedback.
Having to get at least one of their votes to do anything on the Court of Appeals was certainly a change for me from private practice. On the Supreme Court, there are nine of us. You need four other votes to do anything. It’s that collaborative decision-making aspect that is something I’ve enjoyed, but it takes a while to learn how to do it well. It’s not something that you have to focus on as a practitioner in private practice. Although I will say, one of the things that has come in handy for me as an appellate specialist being on the court is when you’re trying to persuade your eight other colleagues after you’ve listened to each other and thought about each other’s views and come to rest on it. What you think is the correct legal conclusion, your skills as an appellate advocate can come in handy to say, “Justice so and so, you said this in this case, and so you should be with me here for this reason,” and then a different reason for another justice.
There are some similarities and some differences for sure. It’s a pleasure to have great advocates in front of us and engage with them. The craft of writing opinions that are clear and readable and easy for people to understand and that clarify and settle the law, but answer enough without going too far, is something that’s important on the Court of Appeals and even more important on the Supreme Court. That is something that I enjoy very much. Those are some of the things on the Court of Appeals. As far as the Supreme Court, it has been extremely welcoming and it’s a great, very collaborative process. I enjoy working with my colleagues and people are willing to listen and think hard about what you say. We may not always agree in the end, but I appreciate the detailed substantive discussions that we have at conference.
Memos going back and forth, emails digging in and saying, “You said this at conference, Justice so and so. I want to understand why that’s your view and think hard about it.” Everybody does dig in and provide that good substantive back and forth, which is helpful in deciding the cases. There are a lot more people around the table to do that with at the Court since all nine of us sit on every case. That’s obviously different. The docket is a discretionary review. That adds a different piece to it as well as deciding which cases to take is a big part of what we do. We’ve also got the administrative piece at the court of liaison responsibilities being the head of the judicial branch in Texas. There are a number of commissions and other boards that we are responsible for overseeing, and that each justice takes a lead on dealing with. That’s another different piece of the job on the Supreme Court that we didn’t have on the Court of Appeals.
What liaison positions have you taken on since you’ve joined the Supreme Court?
I’ve got several and two of the ones that I end up spending a lot of time on, one is I’m the Deputy Liaison for access to justice. I have been working as a committee chair on the access to justice commission for several years. That’s something that’s very important to me. Personally, when I was in private practice, I did a lot of pro bono work. Now that I’m a judge, I can’t do that anymore, but there are other ways that I can try to help and be sure that people either can get a volunteer lawyer to help them or, if they’re not able to do that, I can make sure our rules and procedures are set up in such a way that they can access the court systems themselves as self-represented litigants and be able to get the business done that they need to get done fairly and expeditiously.
I was on the rules and legislation committee for many years, chaired that committee trying to update some of those processes to make it easier for self-represented litigants. It’s great to be able to continue to be involved with that work at the Court. I’m also the liaison for the Board of Law Examiners. We’ve been particularly busy with that during the COVID pandemic of trying to figure out how we’re going to administer the bar exam safely and get people licensed so they can go ahead and begin their practices. Also, I’m the liaison to the Judicial Section and to the Appellate Section, which I enjoy very much. As a former chair of the section, it’s always great to continue to be involved with the Appellate Section.
I know there’s been a lot of talk on social media about that. I know that you can’t speak freely about it because of the pending issue. I know that it has to be a very difficult thing to try and resolve because on the one hand, we’ve got the issue of test taker safety, proctor safety, and other exam staff safety. On the other hand, you’re trying to balance that against the protection to the public and making sure people are well qualified to get a law license. There’s been a lot of solutions out there floating around I know you all are considering, so I do not envy that task of trying to get that resolved.
It’s an important issue. We appreciate the input that we’ve received from a lot of different sources of good ideas of what we can do. We’re considering all that carefully, but it is an important issue and very important to the students, the recent graduates who’ve applied to take the bar exam. Their safety is very important to us. We take that very seriously. Also, we’ve got the public protection aspect of being sure that we’re licensing people who are qualified and who are going to be good stewards for their clients. There are a number of solutions out there and a lot of people have offered their thoughts and input, and we’re going to be taking all that into account and coming up with a plan. We’ve already issued two orders. They’ve set up two different bar exams in July and September to spread people out. Another one is shortening the bar exam, but we’ve been continuing to look at this as the disease continues to progress. We need to be nimble as conditions on the ground change to continue adjusting our plans so that we can serve all those goals that you’ve mentioned.
We appreciate all your work, all the Court’s work in supervising the bar and administering justice. A lot of people who come before you don’t appreciate that that is a big task that the Court is responsible for. Thank you very much for sharing that detail.
One of the things that makes the Supreme Court unique is the fact that you all allow law clerks in the conference room when you’re debating cases. With your clerkship, I’m not sure that you had that opportunity at the US Supreme Court. I’m pretty sure you didn’t. I wanted to ask you, how do you use your clerks? What did they do for you to help you prepare, to help you advance cases? What’s their role?
I did not have that opportunity in any of my clerkships. That’s one thing that’s special about a clerkship at the Texas Supreme Court is the opportunity to be involved in conference and we’re working it out. It’s been more challenging as we’ve been moving conference on to Zoom, how to make that all work. It’s best if we can all be in the same room together, but right now that’s just not possible. We’ve been making adjustments to how that works, but I love having law clerks. I had only one on the Court of Appeals each year and at the Supreme Court I get two. I enjoy very much being a mentor and it’s a way that I can pay forward some of the wonderful things that my judicial mentors have given me over the years.
One of my favorite parts of the job is working with my law clerks. I also have a wonderful staff attorney, Heather Holmes, who’s been at the court for many years and worked for Justice Johnson. And Georgie Gonzalez, my executive assistant, is one of the longest-tenured employees at the court. I had a lot of great experience, too, to draw on when I was coming in. I treat Heather and my law clerks as members of the team. We divide up the cases and I consider their preferences on cases they’d like to work with me on if they are interested in a particular subject matter or whatever. If they might have worked on the study memo for the court, if it’s a case that we granted, that’s probably a case that’s likely to go to them.
All of those, that’s randomly assigned. The person who draws the presumptive majority opinion assignment is random. You may not necessarily get a case that one of your clerks wrote the study memo on as a case that you’re going to write, but if they did, it obviously makes sense for them to work on that case. We divide it up according to what their preferences or their interests might be. We read the briefs and get ready to go through the record and the cases and get ready for oral argument. Talk about the case, which way we might be leaning, because the way the court works, right after argument, within a few days, we have to produce a short post-submission memo that will be on conference the next week on Tuesday.
That’s a tentative recommendation from the offering justice of how he or she thinks the case should come out. We’ll do a bunch of prep work to get ready for that. We’ll have oral argument. Afterwards, the clerk will work with me to put that memo together for the court and we’ll circulate it. We’ll go to conference and see what the vote is after conference and how different justices feel about the case. We’ll start work on the majority opinion. Usually, what I’ll do is have the clerk do a first draft after we talk about it pretty extensively and maybe work up an outline. I take it and do a rewrite of it and we keep going back and forth until we get a draft that we’re happy with.
We circulate that on a schedule that the Chief has established to keep us on track for a conference a few weeks down the road. We get feedback at conference and then the clerk and I will go and work on responding to that feedback. There may be a concurrence or a dissent. We’ll work together on responding to that. It’s a lot of back and forth and collaborative work. I enjoy that. The clerks get a lot out of it too. They’re getting feedback from me on their work that hopefully, they can use in private practice as well.
The Supreme Court has done a great job the last few years of clearing out their dockets so that by the end of the fiscal year, they’ve decided every case that’s been argued before them. You talked about keeping on the schedule. That’s something that you all have done well, particularly for those of us in the bar who await those opinions. We at least can tell our clients, “If it’s argued, it’s going to be decided by X.”
That was definitely not the way it was when I first started practicing. We’d have to wait 2 or 3 years for a decision. It’s something that’s very important to me personally, having had to lead clients through that long timeline. We had to be sure that we do get our work out in a timely fashion. I’m particularly proud we were able to do it this year with some emergency matters that came up that we needed to add to our docket in the spring. Plus having to transition everything online, not only us but the operations of the entire Texas judiciary and issue of the administrative orders that went along with that. We had a ransomware attack at the Court as that disrupted our access to our computer resources for a while. With all of that, we owe a big debt of gratitude to David Slayton in the Office of Court Administration and Blake Hawthorne, our clerk, and his wonderful team for helping us get what we needed to have in order to meet that deadline. It was more challenging than usual, but it’s important to us. We wanted to be sure we met it.
I feel a little bit bad. Todd and I came down at the beginning of March 2020 and recorded our first episode. Shortly after that, COVID hit and then ransomware. I don’t think we’re to blame, but the timing is a little suspicious on our part about that. Sorry if we had anything to do with that.
In fairness, COVID was already in the works when we recorded that episode in March, so we didn’t start it. It was already coming.
I will say, and I’ve said this before, I have immense respect for the way that the Court has responded to not only COVID but also the ransomware attack. I’ll echo your praise for David Slayton, and Blake Hawthorne and his staff. They both have done a tremendous job. I think people that aren’t down in it all the time don’t know that. They can’t be praised enough, even though I would say it’s been a terrible inconvenience for everyone who’s so used to and spoiled by the technology that we’re using on a daily basis.
Here we are two months after ransomware and I’m finally used to not having complete and total access on-demand to everything that I want to see on the court websites. But I want it back. I know that it’s well underway. Blake is very good about reporting on Twitter what the latest status is. People don’t appreciate that either. It’s more of an unknown. They’re used to seeing the Supreme Court as sort of the ivory tower and things come out when they come out. As you all have been discussing, it is nice to be able to tell clients, “If this case was argued in December, January or whenever, then there’s going to be an opinion out.” The fact that you all are able to keep that up and keep the wheels of justice turning, it’s something that is a tremendous accomplishment.
We couldn’t do it, as you said, without Blake, his team, and David. We’re very grateful to them for being such great public servants and also for keeping the bar informed about the help that we need and steps that were taken to bring everything back online so that we have that convenience that we’ve all grown to expect.
I saw that the Court set a bunch of oral arguments in the last couple of weeks. Is there a plan as to whether or not those are going to be in-person or remote yet?
We’re still evaluating that for the fall. We’ll continue to do that for a while. No, we don’t have anything to announce on that yet. We did want to go ahead and get those cases scheduled so that people will know what to expect as far as if there are any other briefs that might come in, Amicus briefs or what have you. People will know when those were scheduled and we’ll be having them one way or the other.
Have you seen any difference in doing oral arguments on Zoom versus in-person and anything that you’ve noticed between those two things?
I was trying to think about it from the advocate’s perspective too, of how can we make it easier for the advocates to transition to this new format. We did several arguments on Zoom. There are a few things. One is to be sure from the advocate standpoint that you prepare for it and are able to do a dry run. Blake and his team were great about that with the advocates of letting them log on before the actual argument to run through the technology and how it was going to work. Being in a breakout room and then being transferred in. Blake came up with the idea of having the timer have its own screen on Zoom so that you can see how much time you have left, which I thought was perfect.
Basic questions like, “Are you going to be on the screen while your adversary is arguing?” If you’re over at the counsel table, you may not have to be quite as careful with your facial expressions as if you’re right there in front of the justices. Blake set it up so that the person who was not arguing was not visible, but that would be a good thing for the advocate to know, so that do you have to keep your poker face during argument or not. Different courts have been doing that different ways. Having a dry run is helpful. We had one at the Court to be sure we could all get on and they talked us through what to expect. One thing I observed about the arguments was that advocates tended to get a little bit longer at the beginning of the argument to talk before they started getting questions than they would if they were in-person in Austin.
It pays to have a little bit more prepared to start out with before you start getting questions than you might ordinarily expect in our court. Although there was active questioning, certainly in the cases, but the advocates got a little bit of a longer lead time to lay out what they wanted to cover before people jumped in with questions on Zoom. Unlike some courts, we didn’t take turns or certain time limits, or do it by seniority or anything like that. It was the normal way we do it. Anybody can jump in with a question like we do in the courtroom and that seemed to work pretty well. One thing we did to try to ease the transition a little bit is to say Mr. or Ms. So and So before asking a question, just so the advocate would have a little bit of time to stop and prepare to listen. It’s not quite as seamless as in-person. That seemed to help a little bit with the transitions. Simple things like getting comfortable with the technology, where you’re going to sit or stand, are you going to sit or are you going to stand? We had people do it both ways.
Some people are more comfortable standing like they would normally in a courtroom. We had some people that did that effectively. We also had some people that preferred to sit and they were closer to the camera. I don’t know whether that’s an advantage, but it’s a little bit easier to see them if you’re a little bit closer. That’s something for advocates to think about. Do you want to sit or stand so you can be close to the camera? We all had backgrounds for a uniform look. We have pictures of the Supreme Court bench behind us when we’re arguing just so that all the justices have a uniform look. Most counsels used whatever. They didn’t use an artificial background. They use their natural background. I recommend that because you lose a little bit of the visual depth perception and nonverbal cues when you’re using an artificial background. Using a regular background is probably the way to go for an advocate. With a green screen, it might be different.
I haven’t had the privilege of giving an oral argument over Zoom yet, but that’s a great tip. In part, because the backgrounds without a green screen, it can tend to get a little distorted and they can be a little distracting if somebody’s head suddenly disappears, or there’s a pet or something that jumps over the screen or something. It can be a distraction. That’s an interesting perspective. That’s something else we’ve talked about here on the show, is how well those arguments have come off so far, all things considered, technological challenges notwithstanding.
We’ve had a few people that have had a little bit of technology challenges. One advocate in particular we lost, and we were able to get him back and gave him his full time, but that’s another tip. If you can be on a hard-wired connection rather than by Wi-Fi, it reduces the possibility that you may have a problem with the signal during the argument. We will get you back and give you your full time. We haven’t lost any justices yet, but if that were to happen, obviously it would be recorded. You just don’t want to have to deal with that. You’d rather be focused on your case and not be worried about the disruption of, “I’ve got to get back on,” and that thing. Trying it out ahead of time and having the best connection you can prevent a lot of problems.
Usually when we’re asking for tips, and I’m not trying to steer you away from that at all, but we’re getting tips on how to be more persuasive and things like that instead of make sure you’re using fast internet.
That’s as important a tip. You can be as persuasive as you want, but if nobody’s hearing you because you’ve dropped off your call, it doesn’t help you a whole lot.
We thought we might ask you a few practical things. What is important to you, when you’re reviewing a petition for review? What is a good way you find to be effective for an advocate to get the justices’ attention? What do you find to be effective ways of getting the Court’s attention at the petition for review stage?
There are some things that we’re obviously looking for most in a petition for review. If there’s a split among the Courts of Appeals, that’s going to be important. Also, if there’s an opportunity to clarify the law on an issue that’s recurring or otherwise important to the jurisprudence is what we’re looking for. There are different aspects that go into that. Sometimes statutes change. One of the things we’re thinking about is, “Is this an issue under the old statute that’s going away? Is this an issue going to be an issue under a new statute?” There are a lot of different iterations in particular kinds of cases of what’s important to the jurisprudence. We’re looking for recurring issues. We still do have an active PC docket at the court, which is one way that we’re different from the US Supreme Court.
We do do some error correction as well. If it’s an egregious error in your particular case, you can pitch a petition for review that way as well and pitch it as a PC even, is something to consider. There are a lot of things that go into the petition process. I would say, too, both for petitions and briefs, having right upfront signposting the structure of your argument, and also narrowing and framing the issues so that you’ve got your best issues right up front there. The reader has a context for how what you’re talking about is going to be important to the development of the argument. One thing that is different on the Supreme Court than on the Court of Appeals obviously is issue selection and being careful not to clutter up your petition or your merits brief with hard, unimportant issues that you’re less likely to win on.
I know that’s difficult. Having had that conversation with clients and colleagues sometimes who feel very passionate about certain issues in a case but they’re not recurring issues that would be important to the jurisprudence. They’re not ones where the answer is necessarily even that clear. That’s something that I’ve noticed since coming to the court. You always hear that advice at CLEs, but it’s true to be very careful about issue selection. Don’t load your brief up with those issues that might prevent the court from reaching the issues that are most important to the jurisprudence of the state. Also, I would say don’t spend a lot of time on the statement of jurisdiction. When I first started practice, that was pretty important. We’ll certainly check it, but I wouldn’t put a lot of your argument there.
One thing that I noticed, too, is often in the petition, this is less important because it’s so short, but particularly for merits briefing, think about making the facts shorter. To give the reader an orientation for the issues that are coming up and then say further factual development for the merits part of the argument where the reader can immediately see how those details are going to be relevant rather than having to remember them from the first part of the brief. There are different cases and some call for a full treatment of the facts, but by and large, if you can prevent the reader from having to flip back and look for details and the facts and remember how they’re relevant to your argument, that’s something that can be helpful too.
What about oral argument? Now that you’ve been on both sides of the bench in two different courts, are there things that you see that you think advocates could do differently or better in oral argument to help their case along?
Obviously, you don’t want to repeat your brief, focusing on the key authority that explains why you win and the essential facts that support that application of that authority to your particular case or what you want to do. Being sure to clash with your opponent’s brief and the best points that he or she’s making on the other side. It may be your first time to do that if you were the appellate or the respondent and you haven’t had a chance to respond to the reply brief yet. That will be important to do in your oral argument. Also, don’t be dismissive of your opponent’s arguments. This goes for both briefs and oral arguments.
I recall one oral argument from when I was on the Court of Appeals that has two lessons to it. One was in the brief, the advocate had said, “This is a disingenuous argument from the other side,” and didn’t have a substantive response to it. I thought it was a pretty good argument. I said in oral argument, “You described this as disingenuous, but I’d like to know what your answer is to it.” They didn’t have one. It goes to a different point that I also have noticed being on the bench even more than when I was in private practice, which is about tone and being sure that you don’t attribute bad motives to opposing counsel or to the court or to the legislature.
There’s no reason for you to say opposing counsel is trying to mislead the court when you can say they’re wrong and here’s why. Let the court conclude whether they think opposing counsel is trying to mislead them or not. That’s not something that you need to get into as an advocate. It can be grating after a while and diminish your credibility if you’re constantly harping on opposing counsel. That’s something to keep in mind during oral argument and also in briefs. Also, be sure you answer the question in oral argument and be sure that you stop when justice is trying to answer the question. I thought that was probably a given, but there are a lot of people who don’t stop when justices are trying to ask them a question.
It bears repeating to be sure. As much as you feel like you need to finish answering the other justice’s question, go ahead and stop and answer this justice, and then try to get back to the other justice’s question if you still need to finish answering something. Those questions for the most part, especially at our court, are gifts to the advocate because it shows you where the justices are having concerns and problems with your case so that you can try to help them understand how that’s not a problem. Maybe they can rule for you on another issue. In the US Supreme Court, sometimes the justices were talking to each other through the questions. This was something I got to see a lot of when I was clerking there. They would beat up on counsel.
If they didn’t agree with you, they would keep coming with more questions and in an aggressive way. I feel like our Court has a pretty good job of not doing that, but I ask them questions because they want to know the answer. I want you to help them understand what they’re having a concern about isn’t a problem for your case, or maybe why you went on another basis. I would assume good faith on the part of the questioner and try to answer the question the best you can.
Those have all been great tidbits. We could all stand to sit up and pay attention, particularly at the oral argument stuff. We do like to ask our guests if they have a tip or a war story that they want to bring up, not necessarily in response to our questioning. Judge, did you have something that you wanted to share with our readers?
I’ll share one story also from the same oral argument on the Court of Appeals where the advocate had described the other side’s argument is disingenuous and didn’t provide a substantive response to it. That case had several complicated issues in it. We had pre argument conferences at the Court of Appeals. We had gathered the three of us who were on the panel and talked through the case and thought the issue we need the most help on is this from the advocates. When we came out, the presiding justice said to the advocates taking appearances, “In addition to whatever you want to talk about, whatever else you want to talk about, would you please address this particular issue?”
The advocate’s response when the first advocate came to the podium was, “Well I guess I’ll just throw out my outline now.” They started with that question. We thought we were doing the advocate a favor of this is what the court’s concerned about. I understand that advocates would like to have that information perhaps before oral argument. Sometimes, especially on the Court of Appeals, we didn’t have time to get to that issue that much in advance of oral argument, given the press of the docket and other things that we had to get to. We were doing our best to do the advocate a favor and say, “This may be where you want to use most of your time because this is where we have concerns.” Assume good faith on the part of the court and try to answer the question the best you can.
Justice Busby, we can’t thank you enough. You’ve offered up so many useful nuggets of advice. It’s great to know more about your background and what you bring to the job. We’re thankful for you taking the time to be with us.
It’s a pleasure to join you all. Thanks for the invitation. I’m glad that you all are doing this for the appellate bar in Texas to help get the word out about these kinds of tips and so that people can get to know each other. It’s a wonderful bar and I’m privileged to be a part of it. Thanks for your contribution to it.