© 2014 The Texas Lawbook.
By Janet Elliott (September 22) – AUSTIN – Seven members of the Texas Supreme Court spent a couple hours at this past weekend’s Texas Tribune Festival answering questions important to many appellate law practitioners.
Chief Justice Nathan Hecht and six of his colleagues – Justices Jeffrey Boyd, Jeff Brown, Eva Guzman, Paul Green, Debra Lehrmann and Don Willett – provided a peak behind the curtain of decision-making at the state’s highest court.
The justices discussed recent 5-4 splits on important business cases, why the court spends so much time correcting errors, how they approach confusing contract language and the factors that determine whether they accept a case.
Texas Lawyer editor-in-chief Heather Nevitt moderated the well-attended panel discussion. Below are highlights of the discussion, which have been edited for length and clarity.
On recent 5-4 decisions:
Justice Don Willett: “There’s an assumption that, because we are all Republicans, that we march along in ideological lockstep. The stats, the numbers, the data show that to be laughably and factually untrue. Around the conference table things get spirited and feisty. The opinions sort of bear that out.”
Justice Jeff Brown: “We don’t think of them as big business cases. We think of them as legal issues that are coming to us. They may capture the public’s interest because more money is at stake. We’re looking for issues that the trial courts and the appellate courts are struggling with and they need the Supreme Court to resolve that issue.”
Justice Eva Guzman discussed an academic research project she did that surveyed appellate justices around the nation. One of the questions concerned dissents. “What factors influence a decision to dissent? It is a desire to bring issues to the public, to provide clarity, sometimes to engage the legislature. When someone writes a really good dissent, it makes both writings better and stronger.”
Justice Debra Lehrmann: “Many times opinions that come out as majority started out as dissents. Dissents not only have the effect of sharpening the majority, oftentimes they become the majority. We try not to have pluralities because pluralities do not offer much guidance to the Bar. Sometimes it happens anyway.”
On what the court looks for when accepting cases:
Hecht: “Twenty-five years ago we had more common law cases. Now we have lots of statutory cases. That’s not because we chose that, it’s because the legislature has become more active in passing statutes. Ten or 12 years ago, we didn’t get many parental rights termination cases and now we get a couple a week.”
Willett: “When it comes to deciding which cases to grant, we look to cases where lower courts are already divided. We try to iron out those differences and establish some border-to-border uniformity.”
Lehrmann: “Some mention that we’ve become more of an error-correction court, but I don’t think that is correct. If we believe the lower court got it right, even if we believe it is an issue that significantly affects the jurisprudence of the state, chances are we are not going to grant. Because once we grant, if you look at our statistics chances are we are going to reverse.
“Now we don’t ever intentionally think about that in terms of, ‘Oh, we’re going to absolutely reverse because we granted it.’ But the truth of the matter is of course that’s something we bear in mind. That doesn’t mean we are an error correction court.”
On contract disputes that drive so many appeals:
Justice Paul Green: “The best way to determine the intent of the parties is to read their writing, the text they used in the document, whether it be legislation or a contract or an insurance policy. That’s where we always start. Sometimes, unfortunately, the text can be ambiguous. Then it’s not easy to do.”
Brown: “Sticking close to the text is always going to be the best way to ensure that the folks who wrote that contract, the folks who wrote that law, their intent is being implemented. We try to stick close to that text, but sometimes we’ve got to do our job and interpret that language.”
Willett: “The lion’s share of modern-day judging is reading language on a computer screen. We used to pull a book off a shelf, but now we pull it up on an iPad. We read language on a screen and we decide what it means. The truest manifestation of what somebody intended is what they enacted, what they said, what they wrote. My default is enforcing the language that parties agree to. You think it’s clear and then the briefing comes in.”
Justice Jeffrey Boyd: “Even when it’s clear what it means, even then sometimes the law says we can’t enforce it. There are statutes that say certain contracts cannot say this or cannot say that. Sometimes we have precedent that says that certain kinds of contractual agreements are not enforceable.”
Noting that he had just signed a contract for a mobile phone upgrade, Boyd admitted he has no clue what it says. “The reality is that decades ago, two farmers would shake hands and that was the contract. Now our judicial system and legal system will be challenged in the future more and more by some of the ways that contracts occur, particularly through the technology we are seeing.”
Hecht said the compromises that often take place during the legislative process make interpreting legislative intent difficult. “I’m very suspicious of legislative history. It is someone at the time or later trying to put their own views in written form so that maybe after a while when a dispute arises, people will look back and say, ‘That’s what so-and-so thought, that’s what Chairman Y thought, maybe that’s what the whole body thought.’ ”
On the role of amicus briefs:
Boyd: “Amicus briefs play a huge role. I distinguish between the briefs that come in at the petition stage where parties are asking us to hear a case versus those that come in after we’ve already agreed to hear a case and kind of help us understand the issues from a broader perspective. There are challenges when someone tries to submit evidence to us through an amicus brief, but there are some facts that we can take judicial notice of.
“I tell people. ‘When you file a petition for review, if it’s an issue important to one or more industries, then have them send an amicus letter and give us their perspective on why we ought to take a case.’ ”
Hecht said amicus briefs are especially helpful when one party may not be presenting a particularly strong case. “It’s very helpful to us to make sure that the people who are out there who are going to be affected by the decision can at least voice the concerns that they have. The end-of-the-world briefs . . . we don’t spend a lot of time studying. And the ‘me, too’ briefs or the lobbyist brief which says ‘I’m really big and I’m really important and you should listen to what I say.’ Those are not particularly helpful.
“In particular areas in the economy or elsewhere where issues are diverse and people can help us understand fully what’s at stake, amicus briefs are great.”
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