Beck Redden’s Russell Post initially rejected the idea of becoming a lawyer because everyone assumed he would be a lawyer.
“I rebelled against that assumption by electing to go to graduate school first,” Post said.
The rebel, who received his bachelor’s degree from the University of Texas in 1991, then made his way to Northern California, where he earned a master’s degree in American history from Stanford University in 1992.
But during his postgraduate studies, he realized he wasn’t as passionate about the work of being a historian as his peers.
“I decided I needed to find a professional path in which I was as passionate about success as they were in their graduate programs, and that led me to clarity, that I really did want to go to law school for myself,” Post said.
He earned his law degree from the University of Virginia in 1996 and then came back home to the Lone Star State, where he clerked for Judge Jerry E. Smith on the U.S. Court of Appeals for the Fifth Circuit.
After his clerkship, Post went to work at a boutique firm in Houston and mulled the idea of becoming a law professor. His wife, Stephanie, was at the same time finishing her doctorate degree at Rice University.
“By the time she finished her Ph.D., I’d become established in appellate practice. We had become established in Houston and were very grateful for the life we had been able to build and chose to really just reinforce my professional trajectory and our life in Houston, and so it’s been 30 years now,” Post said.
Last month, the U.S. Supreme Court unanimously ruled in favor of Post’s clients, parents who fed their baby contaminated food. The high-profile baby food contamination case against Hain Celestial and Whole Foods resolved a circuit split and reinforced limits on federal removal jurisdiction. Post, who argued the case before the justices, called the experience and the outcome a “rare privilege” and “the highlight of my career.”
Post recently sat down with The Texas Lawbook to discuss his recent appellate win and trends he is seeing in his practice. The following conversation has been edited for length and clarity.
Texas Lawbook: What trends are you seeing in your practice area?
Russell Post: In the state system, I’m seeing increasing trends to grant oral argument in our local appellate courts, which is a very healthy sign. During the pandemic, several of the intermediate appellate courts had gotten away from oral arguments, and I think over the last couple of years the judges, certainly locally in Houston and since statewide, have been making a greater priority of setting cases for oral argument.
That’s been a very healthy development. It’s just a very healthy opportunity for the entire system when the lawyers have the opportunity to converse directly with the judges about the case, to answer questions directly, and when clients have a sense that their cases are being heard and they can see the judges on the bench really asking the hard questions and grappling with the hard issues in the case. I’m really pleased to see that development in the Texas appellate courts, and I hope that will continue.
Texas Supreme Court’s shift in its petition for review practice, and the shift away from a two-stage model of review to making the decision whether to grant or deny review solely on the original petition documents — that is going to be, I think, an important inflection point for appellate practice in Texas, because I think it’s going to naturally shift Texas Supreme Court practice more in the direction of important issues and away from correction of errors. The Texas Supreme Court has always emphasized issue importance, but there’s always been a strong component of error correction to the Supreme Court’s docket. I think that this practice of granting review solely on the petitions will naturally shift more emphasis toward the importance of the issues, and I think it reflects a long-standing trend toward a more federal approach to Supreme Court practice in Texas. You have several members of the court who either clerked on the U.S. Supreme Court or practiced before the U.S. Supreme Court, several members of the court who were clerks in the federal appellate courts. I think that there is a certain federal perspective here that is being integrated into the Texas Supreme Court practice, and I think that there’s a lot to be gained from it.
I know that there are some concerns about the loss from having a full set of merits briefing before the court decides whether to grant review. But I think, on balance, it’s going to be healthy. I think it eliminates a lot of waste for clients in cases where you spend significant sums to write briefs on the merits in cases that are ultimately denied. I think that’s valuable, but I also think there’s always been a certain distorting effect in the merits briefing stage, because the petitioner was still trying to persuade the court to take the case, and so was arguing about the importance of the case and not strictly about the right answer on the merits. And a respondent was incentivized to try and deflect attention from the case, and so a respondent wouldn’t always develop the full scope of arguments that were necessary to win on the merits, because you didn’t want to make the case look more interesting to the Supreme Court. Now that the grant decision is going to be made at the petition stage, those incentives are all eliminated; and now the briefing on the merits, the parties know they’re going to be getting a decision on the merits, and so all the incentives are to just fully develop the correctness of the decision below on the merits. I think that’s going to be a healthy development.
And I think there’s one other interesting aspect of that transition that is not being fully appreciated by, I think, the entire Texas bar — although I think the appellate practitioners have recognized it. The court is signaling that when it grants review, it’s going to be setting cases for oral argument, and so there’s not going to be a significant period of time during which the parties can request extensions of time for their briefs, there’s going to be time for basically one extension for each party to write a brief, which is very different than the court’s historic practice. It’s going to streamline the process to decision in a way that is much more reminiscent of practice in the U.S. Supreme Court, that requires a whole different degree of focus for the advocates who are briefing those cases, but also I think it shows a really healthy awareness from the Supreme Court about the consequences of delay, and delay is an acute problem in the Texas appellate system.
We have got far too many choke points in our system where cases are delayed indefinitely, and the lower courts learn from the Supreme Court. And so I’m hopeful that not only is this a good development for the Supreme Court but that it will underscore to the lower courts greater emphasis on efficiency in moving cases forward rather than allowing them to stagnate. I think that’s a really promising development.
Lawbook: Do you think that will impact the trend of trial lawyers using embedded appellate counsel?
Post: I think that is an increasingly prominent practice in high-stakes cases. And I don’t know that the change to granting review from the petition alone will necessarily increase the prevalence of embedded appellate counsel. What I think it does do, though, is in those high-stakes cases where you’re going to have appellate counsel engaged early, you’ve got to be thinking about issues that would potentially be Supreme Court-worthy issues to preserve in the record at the beginning of the case. Because again, there’s likely to be less emphasis on pure error correction, more on identifying really important issues. But I would say, to that trend, I do think that that is a promising trend. I am frequently engaged early in high-stakes litigation. I’m involved in one matter right now that’s not even filed yet. It’s still in a confidential negotiation stage, but in which the stakes are sufficiently high that the client wanted to have appellate counsel involved from the very beginning, thinking about the right legal analysis. I do think that that’s an increasingly prominent trend.
Lawbook: Tell me about the appeal you just won at the U.S. Supreme Court.
Post: That was the first time I had appeared in the U.S. Supreme Court, and so really a remarkable opportunity, and very much a classic civil procedure, federal courts kind of problem involving federal jurisdiction and what’s the correct remedy when federal jurisdiction is improperly exercised. It was a lot of fun, because it was [about] really foundational questions of federal practice. As we went through the moot court process at law schools around the country, I was amazed by how many law students wanted to come and observe the moots, because these were sort of foundational questions about federal courts that the law students themselves could engage in a serious way. It made for a really fascinating experience.
Lawbook: What is a takeaway from clerking for Judge Jerry E. Smith?
Post: It was a phenomenal experience. It’s nearly 30 years ago now, which is hard for me to fathom, but it really was a foundational experience. Judge Smith gives his law clerks a great deal of responsibility to really master the details of the cases. And in my generation, and I am confident it is still true today, the law clerks in the Smith chambers wrote very detailed and very comprehensive bench memoranda that fully analyzed the legal issues in every case. It was not an impressionistic process. It was very thorough and very detailed, and that really influenced my approach to appellate advocacy once I entered practice. Emphasis on very thorough, comprehensive legal analysis, I think, was a very foundational part of my experience.
I’d say another part of my experience with Judge Smith that was significant was he’s always been a proponent of bright line rules, of strong legal principles that create certainty in the law and party-neutral rules. I think there’s a tendency to think that legal principles that are frequently thought of as being conservative legal principles are aligned with defense-oriented interests, and that’s not necessarily the case. Conservative legal principles are frequently party-neutral principles and can be used very effectively on behalf of both plaintiffs and defendants. One of the things that I think I took away from my experience with Judge Smith into my practice, where I represent both plaintiffs and defendants, is thinking about using party-neutral principles that are perhaps facially conservative legal principles but in a way that can work to the advantage of plaintiffs in many instances, not simply defendants. I think that a lot of lawyers who represent plaintiffs don’t tend to think in those legal terms, and I found it rewarding in that I practice on behalf of both plaintiffs and defendants, which brings that methodological toolkit to every case. And I think that those principles can be effective on both sides of the docket.
Lawbook: What is a memorable moment in your career so far?
Post: It will be hard to eclipse the experience of the U.S. Supreme Court. For certain, I have been blessed to appear several times in the state Supreme Court and in the federal appellate courts, and truly each time it’s a humbling experience. I find that each case becomes the most important case in my experience for that window of time when that case and that client are front and center. I have distinctive moments, either in appellate arguments or in the trial courts, that stand out.
I’m, for some reason, I’m thinking about this morning, a large antitrust case in which we were involved. This goes back now, 10 or 12 years. It was being tried in federal court in the Eastern District of Texas, and I was responsible for handling the jury instructions as embedded appellate counsel in that case, and it was a very high-stakes, very complicated antitrust case. The jury instructions were voluminous, and we were not given a great deal of time to prepare for the final charge conference with the judge. And in the final charge conference, I persuaded the judge to give an instruction that he had not agreed to give originally, and ordinarily, in that process, the final charge conference is simply a process of memorializing for the record the party’s positions. There’s little opportunity to actually persuade, and I was able to persuade him to give an instruction that I knew was potentially decisive. And it’s probably the only experience in my career where I can genuinely say I thought an argument that I made at a charge conference directly impacted the outcome of the trial, because I knew this instruction would have such great importance. I can remember in the moment when the judge agreed to give the instruction, the two lead trial counsel just sort of quietly looked up at counsel table and looked over at me, and all three of us were just mentally connecting, saying that could turn this case, and I really sincerely believed it did.
And so that is a great memory, because as an appellate lawyer, you’re looking for moments where you feel like you can add value in the trial court to the work that your colleagues as trial counsel are doing to put them in the best position to win. I love the practice of writing briefs. I love the experience of giving oral arguments, but there’s also a skill to adding value in the trial court, not simply preserving the record for the appeal. That was a memorable moment as well, and there have been a few memorable moments from charge conferences that make for good stories after hours.
Lawbook: Do you still want to be a law professor?
Post: It’s not something that I would aspire to do professionally, but the experience of giving the U.S. Supreme Court argument, as I said, I gave moot courts all around the country, and had lots of law students participate in those moot courts, and at the end of the moot courts, each of the law schools would ask if I would participate in the question and answer session with the students, and we talked about the case, we talked about the legal principles that influenced the case, talked some about my professional experiences. I really enjoyed that experience and came away thinking I might enjoy doing some adjunct teaching at this stage, now that my own kids are gone and I have the time to direct my energies in other ways. I have envisioned doing a little more that kind of work, although I think the prospect of a career as a law professor is thankfully behind me now.
If you or someone you know would like to be profiled in a future edition of Asked & Answered, please let us know at tlblitigation@texaslawbook.net. Check out our other Asked & Answered interviews below:
Quinn Emanuel Urquhart & Sullivan partner Chris Porter discussed what he loves about being a trial lawyer, his early dreams of being a restaurateur and how the door closing on his football career opened other opportunities.
Hilgers partner David Sillers talked about his First Amendment practice and shared the most memorable moments in his career so far. Sillers recently joined the firm and reunited with managing partner Grant Schmidt and partner Cynthia Schmidt, whom he met while clerking alongside them for former U.S. District Judge Barbara M.G. Lynn.
Mo Lovett Law’s founder discussed opening a new office in the Dallas-Fort Worth area and growing her law firm a year after opening. She also talked about mentorship and the state of the profession.
Trial lawyer Chrysta Castañeda reflected on her career and offers advice for young lawyers. While she has closed her firm, retiring for good is not in her plans.
A&O Shearman partner Billy Marsh discussed trends he’s seeing in shareholder, securities and mass tort litigation. He also talked about what it was like as a first-year associate to defend the NFL against fraud claims brought by a group of fans.