More than 3,000 Texas lawyers and judges received emails from Osler McCarthy about Texas Supreme Court developments for two decades.
McCarthy retired as staff attorney for public information four months ago, but his days of lounging at home watching reruns of Lou Grant were short-lived.
Last week, McCarthy joined The Texas Lawbook as the publication’s managing editor and head of appellate law coverage.
The Lawbook sat down with McCarthy last week for a Q&A. Here is that interview:
Texas Lawbook: You were a journalist for 20-plus years and a staff attorney for the Court for more than two decades. What are the differences and similarities of the two positions?
Osler McCarthy: I’m bemused by antagonism between lawyers and journalists, who can’t see they are so often mirror images: both story-tellers, both protecting civic and constitutional rights, both fundamental to democracy’s success. I approached my role with the court as a journalist. I thought that was critical in the beginning. I still do, whether you speak the journalists’ language or understand their problems. Having covered the court for the Austin American-Statesman, I knew the difficulties reporters faced: How to follow issues the court was considering for argument, how to calculate when a case will be decided. And more specifically I relied on my training as an editor to reduce a 20- or 30-page or greater opinion to three or four paragraphs and prayed I had a summary that made sense. I designed the opinion summaries to tell readers enough that they could choose either to call the opinion from the link to read it in full or flag it so they could come back to review it. Lawyers like all people have only so much time to read. I wanted them to get a sense of what the Court decided and why.
Lawbook: Nearly everyone in the Texas Bar knows you through those email updates. What was the genesis of that idea and how did it develop over the years?
McCarthy: I began the opinion summaries for Capitol reporters. When I covered the court for the Statesman, I tried to cover it as a legal institution: That meant I tried to explain why and how the court arrived at a decision, as a legal matter. Many of my colleagues covered the court as another political entity. So when the court decided a case, reporters would be inundated by faxes (and later emails) from special interests. As a journalist I tried to find the legal experts to dissect a case, its holding and explain, if appropriate, important procedural twists. The summaries when I worked for the Court were simple: I presented the principal issue or issues in a case, gave the holding and, as cogently as I could, explained the court’s reasoning. Although I started these for the press, practitioners and judges would hear about them or get them passed along and they would ask to be included on the list.
Lawbook: How many people got your email updates?
McCarthy: My guess is about 3,000, maybe 3,500. Almost all asked to be on the list after hearing about it, literally by word of mouth. I never put a link on the website because initially the court was skittish about my summarizing opinions, fearful such summaries might be considered commenting on cases or that my summaries could be regarded as an official statement from the court. The court even worried about lawyers citing my summaries as the law. To my knowledge, that never happened and, with one exception I know of, reporters never did either. But I kept faithful to the court’s reservations and addressed them with an admonition that the summaries were my work alone and reflected my judgment alone on facts and law. Justices never saw my summaries before I sent them to the list. I had two justices over my tenure who objected to two summaries for what I knew were political sensitivities across the street in the Legislature (even though I tracked the language verbatim in the opinions). But I considered my admonition, which the court agreed with in the beginning of my tenure, a bond with readers: no slant, no manipulation. If requests like those I got had happened again, I was willing to quit. I would have done so in a news organization. Why not in service to the court?
Lawbook: A few people praise you for pushing increased transparency at the court. What do you think is the biggest effect you have had during your 21 years there?
McCarthy: I hope I had sway in helping make the court more transparent. But I would be kidding myself. Much of what you might say was transparent was the result of technology for which I had nothing to do. But when the Court reissued an opinion with changes, I made a point of showing the changes so practitioners didn’t have to search a revised opinion side by side with the original as they once did to see the changes. And for anyone who might not trust me, I linked to the original opinion.
I did argue for and cajole for plain language in opinions, with too little success. Yet to my fault I probably wrote my summaries too much for lawyers and not enough for the lay audience. I held the line on acronyms and initialisms, however – the alphabet soup that plagues so much legal briefing and judicial opinions and, if we’re being honest, journalism too. In the law, court opinions too heartily adopt from the briefs the gobbledygook that legal authors think of as shortcuts – they imagine – to avoid using – god forbid! – a phrase or descriptor again to be clear instead of incomprehensible. Lawyers and judges should write for Mabel, that little old lady in Plainview who wouldn’t know a law degree from a GED but who pays taxes and ought to be privy to what the law may be doing to her world.
Lawbook: People may assume your politics are not aligned with any member of the court you served. How did that impact your work?
McCarthy: I could tackle the assumption about my politics, but the quick answer is that it didn’t. In my law practice – much of it court-appointed – I considered my job to protect the constitutional rights of people whose only guard against a conviction summarily affirmed on appeal was me. Does that say something about my politics? It probably says I didn’t go to law school to make money. People who know me know my hobby interest in history. In history I try to see the yin and yang, the struggle between our demons and our better angels. Am I progressive? Oh, hell, yes, at least I hope so. Without progressives we’d still be living in caves or burning witches. All is a matter of degree. But politics these days often asks of us a false choice between progress and conservativism. But I very seldom, if ever, saw a decision from the Texas Supreme Court I could not respect because my disagreement was on judicial philosophy, not politics. Think about Felix Frankfurter, who was quite the progressive as lawyer and legal scholar, but was a “conservative” Supreme Court justice based largely on a judicial philosophy rooted in restraint.I grew up on the High Plains. You don’t grow up in West Texas without being shaped by its agrarian ethic. But I found growing up that culturally entrenched people are so often intellectually entrenched too. I developed in high school what I consider a healthy skepticism and honed that with a liberal-arts undergraduate education. Where I grew up, asking critical questions branded you – back then, during the Vietnam War – as something akin to a commie. We’re in similar political throes these days, only the dire straits might have more dangerous consequences. That’s what I saw January 6.
Whatever my politics, my loyalty was to the Court when I believed it was unfairly attacked. That’s the lawyer in me. I strove to be an honest broker. I vigorously defended the Court, but my responsibility was to the institution. The people of Texas did not pay me to flack for nine justices. Or to answer political inquiries.
Lawbook: What was your best day on the job during the past 21 years?
McCarthy: Two actually: when I walked into the Court on my first day and when I walked out on my last.
Lawbook: Tell us about where you grew up and your family?
McCarthy: I was fourth of six kids and grew up in Plainview, between Lubbock and Amarillo. My father was, from what he told me, the first board-certified obstetrician and gynecologist in West Texas when he was certified after World War II, the only certified OB-GYN between Albuquerque and Fort Worth, maybe between Denver and San Antonio. He was also board-certified by the American College of Surgeons and by the International College of Surgeons. He was from Brooklyn and my mother, a board-certified kid wrangler from Atlanta, settled in West Texas after the war and he built a tiny hospital – and “women’s clinic” – in Plainview. He retired three times, first from his practice, then from a contractor at the Mercury nuclear test site in Nevada and, at 84, from the faculty of the University of Texas Medical Branch.
Lawbook: Any lawyers or journalists in the family?
McCarthy: No lawyers, two journalists. I met my wife, Diana, when we were both at The Kansas City Star. She now is a University of Texas journalism professor and founded the Moody Writing Support Program in the UT College of Communications. Despite our daughter’s protestations that she would never be a journalist, she is editor of the weekly Blaine, Washington, newspaper, where she cut her reporting teeth on the murder-hornet story.
Lawbook: Why go to law school and why become a journalist?
McCarthy: My interest in studying the law began when, as a reporter in Sherman, I covered the fourth retrial in a sensational murder case in Sherman and Denison involving one suspect, two very different victims and two distinctly different “confessions” and other strange wrinkles. Then the interest in the law was nurtured by my graduate adviser at the Missouri School of Journalism, a lawyer and journalism professor, who encouraged me to go to law school because of my interest in media law.
Lawbook: How do you think your two decades at the Texas Supreme Court help you in being an editor and reporter?
McCarthy: I practiced appellate criminal defense after I clerked for the Washington State Supreme Court, but if only I had known then what I understand now I would have been so much better in my practice. I hope to bring that perspective to my responsibility to cover courts and the law as a composite whole.
Lawbook: What do you think the news media is missing in its coverage of the law in Texas?
McCarthy: The press generally covers the law and courts as politics. Maybe I’m naïve, but I watched for more than 20 years good judges grapple with hard legal questions. The law can be covered in its sophistication without sacrificing its drama by writing about its issues and its players.
Lawbook: How can The Texas Lawbook do a better job of covering the business law community in Texas?
McCarthy: Continue writing good stories that spot trends, that delve into personalities, that explain. The law is not as complicated as the lay public believes or as practitioners sometimes would like you to believe. I think The Texas Lawbook does a great job at that.
Lawbook: What do business lawyers in Texas need to know about you and your position?
McCarthy: I was, as everyone on the Texas Lawbook staff, trained to distinguish fact from fiction and to verify fact and discard fiction. I will do my best to continue that in a world that sometimes seems lost to sort one from the other.
Lawbook: How heartbroken were you when Gonzaga lost this year and how are the Zags looking for the upcoming year?
McCarthy: I’ve gone through too many seasons believing this is the year. One of these years will be the one. I just hope I get to see it. The team is loaded again this year, so time will tell.
McCarthy can be contacted at firstname.lastname@example.org.