Appellate lawyer David Coale lines up photos on his office wall of justices he’ll appear before in upcoming oral arguments. To prepare, he faces the photos and recites his arguments.
On Wednesday morning, Coale, of Lynn Pinker Hurst & Schwegmann, had two rows of photos on his wall representing the two cases he’ll argue before the Fifth Court of Appeals before the end of the year. A third of the justices in his photos will be leaving the bench after Tuesday night’s elections ushered in a Republican sweep of the Fifth Court of Appeals in Dallas.
Republican candidates won big on the First, Fourth, Fifth and Fourteenth courts of appeals. They took back control of the Fifth Court of Appeals from the Democrats after a so-called blue wave in 2018. This time, Republicans won all eight seats up for election on the Dallas court.
In terms of the makeup of the courts, the election means all nine justices on the Fourteenth Court of Appeals are Republican and the First Court of Appeals has seven Republicans and two Democrats, while the Fourth Court of Appeals has four Republicans and three Democrats. The Fifth Court of Appeals has eight Republicans and five Democrats.
These major shifts have lawyers asking what the changes mean, how lawyers should prepare and whether there are specific kinds of cases that will be most impacted, attorneys told The Texas Lawbook on Wednesday.
It’ll take about a year to get a sense from the new justices’ opinions about what interests them and what details they pick up on, said Craig Enoch, founding member of Austin-based Enoch Kever and a former Texas Supreme Court justice.
“After the wave hit in 2018, our chief justice, in his talk to the legislature, let them know that we lost 700 years of judicial experience overnight,” Enoch said. “It won’t be quite as long this time, but we might have lost decades of experience because of this.”
Such a loss is “harmful to the rule of law,” Enoch said, and presents disruptions to the courts and the lawyers who practice in them. Many lawyers will now research the new justices’ backgrounds to tailor their writings and oral arguments, he said. But early on, attorneys are merely “guessing,” he said.
Enoch anticipates some specific types of cases, such as consumer and insurance injury complaints, might be especially impacted by the new slate of justices, because Republican judicial candidates often come from the defense side of the bar whereas Democratic candidates tend to be plaintiffs lawyers. But any impact “would be on the margins,” Enoch said, as justices practice setting aside their biases.
“After this red wave, it’ll take a while, but there will be judges who will develop the reputation for being fair,” Enoch said.
The wave is disruptive in the same way any organizational change is, said Anne Johnson, name partner of Tillotson Johnson Patton. But she balked at the notion the political affiliations will have an impact on the way the majority of cases that come before the intermediate appellate courts are decided.
“Name any of the hot button issues in this election. They don’t really come into play in deciding whether one party breached a contract, whether somebody committed fraud in a particular transaction, whether a criminal conviction should be affirmed,” Johnson said. “They don’t turn on your personal political beliefs.”
One disruption facing the courts and their staff is determining how to handle oral arguments in the final two months of the year that involve outgoing justices. The panel could hear the arguments and hammer out an opinion before the outgoing justice’s term expires, or they could leave the case for their successor to decide, or they could substitute another justice to hear arguments, Coale said.
If the courts give Coale advanced notice that one of the justices in his two oral arguments will be replaced, he’ll print a new set of photos for his practice rounds. Otherwise, he said, he’ll be nimble.
“I’ve had it where they do a substitution that morning for some reason, and I’m like, ‘This looks wrong,’” Coale said. “The very thing that makes it a powerful tool in nine out of 10 cases, in one out of 10, can make it a little weird.”