When he was younger, Johnston Tobey Baruch managing shareholder Chad Baruch heard about near-mythical figures from his father who could keep you safe — and who could keep a country from descending into the kind of tyranny his family had escaped.
Baruch’s father and grandparents were Holocaust survivors who placed great value in an independent judiciary. That early sense of justice eventually laid the foundation for his decision to become a trial lawyer.
“It was what he thought would make Nazi Germany impossible in the United States,” Baruch said. “I just knew that when I was a little scared kid at night, my dad would tell me there were these magic people called judges that would protect me. At some point, I realized you needed a special person called a lawyer to talk to one of those magic judges, and that’s sort of where I got the idea.”
Baruch grew up in Wisconsin but spent his summers in the Texas Panhandle with his grandparents. He earned both an undergraduate political science degree and a law degree from the University of Minnesota.
Baruch knew he wanted to practice law in Texas because he loved spending time in the state.
“I think everybody in my family knew that as soon as I could get here, I was going to get here,” Baruch said.
Earlier this year, Baruch, Professor Lucius T. Outlaw III of the Criminal Justice Clinic at Howard University School of Law and Professor Erik Nielson at the University of Richmond submitted an amicus brief to the U.S. Supreme Court urging it to reject the use of rap lyrics as evidence that a defendant poses a continuing threat to society when considering the death penalty. The brief was submitted on behalf of a coalition of artists, entertainers, music industry leaders and professors, including Grammy Award-winning rapper Killer Mike, Young Thug, T.I, Blackish star Anthony Anderson and music executive Kevin Liles.
The high court denied review, and James Broadnax, convicted for the 2008 murders of Stephen Swan and Matthew Butler, was executed on April 30 in Huntsville.
Baruch recently sat down with The Texas Lawbook to discuss his career, what he’s seeing in his practice area and more. The following conversation has been edited for length and clarity.
Lawbook: What is a trend you are seeing in your practice area?
Baruch: A lot more mandamus. Probably the biggest trend is the explosion of mandamus practice in Texas — that would be number one on the list.
Number two, there are a lot more appeals arising in the [Texas Citizens Participation Act] and Rule 91a context because those have become such important parts of Texas litigation practice.
It may be too early to know whether it’s permanent, but there seems to be an increasing caseload in the intermediate courts. Their case volume seems to be rising steadily. If that continues, it’s going to have substantial effects on appellate practice in Texas.
Lawbook: What has been a memorable experience in your career?
Baruch: Certainly, the attention around the two hip-hop briefs was very interesting. I was interviewed by Rolling Stone, The New Yorker did a story, and The New York Times wrote a front-page story. That was pretty interesting.
My involvement in the case that was the subject of the movie, the Linklater film with Matthew McConaughey and Jack Black, was a really interesting experience. Those are probably the two that come to mind for me as having been really fascinating.
Lawbook: What film is that?
Baruch: It was about a murder in East Texas — 30 years ago now, probably. The film became a Texas cult classic, and it’s a very entertaining movie called Bernie.
Bernie, who was sentenced to life in prison, applied for habeas relief and got out. And the victim’s family hired me as part of an effort to try and get him put back in prison to serve the rest of his sentence. Ultimately, that’s what happened. The local district attorney recused himself. The state prosecutor came in and took over the prosecution. He got a second sentencing trial, and a second jury sentenced him to life. So, he’s back in prison for life.
Lawbook: We have to talk about your most recent appellate brief on rap lyrics being used in a death penalty sentencing. Tell me about the case and how you got involved.
Baruch: That was actually the second one. I did one about 10 years ago. Very similar circumstances, although that wasn’t a capital murder case. We filed a brief for a bunch of hip-hop artists in a student free-speech case, and I got connected with a professor at the University of Richmond named Erik Nielson, who’s the leading authority in the country on that issue and the author of a best-selling book called Rap on Trial. And through him connected with Killer Mike, the Grammy-winning hip-hop artist.
Because of this capital murder case out in Dallas, I spoke to Professor Nielson, and with our little pun, we said we put the band back together and assembled another group. Killer Mike helped in that regard, and Kevin Liles, the head of Def Jam Records, helped a lot. We put together another group to try to help the Supreme Court understand how ludicrous we find it that people can be criminally prosecuted for writing rap songs or convicted based on rap songs.
Lawbook: What is your number one tip for brief writing?
Baruch: Keep it short. Make it shorter. That would be number one. Make it shorter. Number two would probably be to follow the rules. And number three would be to get to the point. Front-load content. Tell them right up front what’s going on and why you should win. I think those would probably be my top three tips.
Lawbook: What is your pet peeve?
Baruch: I would say just almost every brief I see is unnecessarily long. People include irrelevant facts. They include duplicative citations. Just all these little things that cause the brief to be 30 percent longer than it needs to be. That certainly would be one.
Ugliness would be another. I think most genuine and experienced appellate lawyers don’t engage in that sort of nonsense, but you see a lot of people who may be handling their own appeals, or they just dabble in appellate law, and they write like some trial lawyers do, and just make nasty comments and characterize arguments. That’s my personal pet peeve. I just wish everybody would be a little nicer.
Lawbook: Who or what inspires you?
Baruch: I was actually a great admirer of Dolly Parton. I’m not just saying that because she died. I’ve actually been using Dolly Parton in my legal writing presentations for four or five years now because I found her to be such a compelling writer. She also just seemed like a genuinely kind-hearted person who seemed to find something good in everyone she encountered. So, I’m a big admirer of hers.
Lawbook: What is the best thing you’ve found for prepping for oral argument?
Baruch: When you’re able to do it, setting up a moot of the argument is by far the best preparation. But unfortunately, when you’re in a small firm or a solo practitioner, that’s not always practical.
If I can’t moot an argument, I have a good friend who’s a law professor at SMU, and I at least try to talk through the argument with him. I’ve found that to be really valuable — just getting his insights on where the argument might go and talking through issues. That’s been really helpful to me.
Lawbook: What is a tip you have for a young lawyer preparing for their first oral argument?
Baruch: I would tell them, number one, there’s no such thing as being overprepared. Number two, focus on what the court is likely to be struggling with the most — not necessarily what you want to talk about but where they’re going to need help. And then when you get there, listen carefully to their question and answer the questions. Don’t try to steer them away from their question. Answer it directly.
If you or someone you know would like to be profiled in a future edition of Asked & Answered, please let us know at alexa.shrake@texaslawbook.net. Check out our other Asked & Answered interviews below:
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Lynn Pinker Hurst & Schwegmann’s Mary Goodrich Nix looks back on her early years as a trial lawyer. She also shares advice she would give to young lawyers and discusses trends she sees impacting the practice.