Episode 38: Debra H. Lehrmann
Senior Justice on the Supreme Court of Texas
01:20:38
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Show Notes
Justice Debra H. Lehrmann is a senior Justice on the Supreme Court of Texas and the Court’s longest-serving woman justice in Texas history. She joins MC Sungaila to share her journey to the Supreme Court, and to provide some appellate advocacy tips and insights for those appearing before Texas' highest court.
Chief Justice Debra H. Lehrmann
Justice Debra H. Lehrmann has served on the Supreme Court of Texas since 2010, having been elected to the Court twice following her gubernatorial appointment. She serves as the Court’s liaison to the State Bar of Texas, the Board of Disciplinary Appeals, the State Bar Judicial Section’s Judicial Ethics Committee, the Texas Association for Court Administration, the State Bar Family Law Section, the State Bar Family Law Council, and the Texas Attorney–Mediator Coalition.
With a cumulative total of over 33 years of judicial experience, she was a trial judge in Tarrant County for 23 years prior to her appellate service. A member of Phi Beta Kappa, Justice Lehrmann graduated from The University of Texas with high honors in 1979 and from The University of Texas School of Law in 1982. She received her LL.M. degree through Duke Law’s Master of Judicial Studies program in 2016.
Transcript
I'm very pleased to have joined us on the show, Justice Debra Lehrmann of the Texas Supreme Court. Welcome, Justice.
Thank you so much for having me. I do appreciate the opportunity to get to visit with you some more.
To be clear, for those reading, you are on the Texas Supreme Court that covers the Civil side. That’s a little bit different. We have been exploring some of that between the different states. Some judges even at the highest courts are elected, and some are appointed. Here we have a division in the different courts at the Supreme Court level.
It’s unusual. We are the only court in the country other than Oklahoma where the cases are divided between Civil and Criminal. That happened back in the Jacksonian era when there was a real push to dilute power. That was the whole idea behind it. The one entity that the Supreme Court of Texas would not have as much power concentrated within the court. The pros and cons of that, we could talk for hours probably about that or it has served its purpose over the years. That's what originally happened.
That’s an extension of the balance between Federal and state and all the other entities as well. A lot of justices on the Supreme Court who have been on the show said, “We have such a wonderful variety of cases. We could be doing this kind one day and this another day.” It does reduce that a little bit. Obviously, there's a lot of variety in Civil cases.
Not much, you would be surprised because we do everything except those capital felony cases or any criminal cases other than those having to do with juvenile justice. We do hear some things that have to do with Criminal matters having to do with incarceration and some types of things that do end up in our court also. When you think about this spectrum of Civil law, that is huge.
We hear things that range from sovereign immunity to oil and gas cases, to all kinds of contract disputes, tax cases, public utility commission cases, child abuse, and neglect, and Juvenile law. It's huge the variety of what we do. I enjoy it. It's wonderful. It's very different every day. Every case is extremely unique in its own back and subject matter. There's never a boring moment by any of that.
That's what I like about being an appellate lawyer too is we work where the law is developing. That could change the day-to-day and year-to-year, and that keeps it fresh, not always doing exactly the same kinds of issues or cases.
Since we accorded discretionary review, we hear about approximately 10% of the cases. That's not an exact number but it's generally correct, 10% to 12%. Our guiding principle is whether this issue affects the jurisprudence of the State of Texas. We don't hear anything unless it's a significant issue that affects a lot of people and has an impact on the citizens of our state. It is always a wonderful opportunity to make a difference.
That's so perfect that you went to that because that was going to be my next question. We are on the same wavelength. I was like, “It's a discretionary review. It’s perfect.” That's exactly where I was going to go because that's true in most states in terms of it being a discretionary decision. The state Supreme Court is a policy-making court but there are a few where there's no intermediate court and you have to go straight up. You don't get a choice.
Texas is so large, second to California, which I don't understand how California does it because we have nine SCOTUS. California has 7 and their population, although ours is 30 million. What is California now?
It’s so much more than that. The California State system is the largest judicial system in the world.
I think 50 million now. It's very large, yet the Supreme Court is only comprised of seven justices and does not only all the civil docket but also does those felony criminal cases.
You were saying about 10% in your case of the civil and the juvenile cases. I was thinking in my experience, “Those are good odds,” because, in California, it's about 3% of civil petitions.
I've always wondered how they were able to manage that caseload with that number but they are taking fewer cases, I guess.
They can't take that. It has been about 3% in civil petitions for many years. That's about where it is. When you get a California Supreme Court review, it's a big accomplishment. In our circumstances too it doesn't necessarily mean if the petition is granted that you are going to win.
We are not at the court of error correction. The percentage of cases that are reversed, you would assume would be higher than it is. It is more than 50% but it's not anywhere near the 80% range.
It's not like, “You got it granted, we know what's going to happen.” It's not the case. You are policymaking, not error-correcting. You are looking at an important issue of law for the state. You are deciding in the context of a case for particular parties but you are also thinking about how that rule will impact everyone else in the state and getting that rule right for the state overall.
That's a frequent question in oral arguments because, of course, the advocates who are excellent in our court are wonderful. They are focused on their client and that's what they are going to be focused on but we have to step back and look at the larger picture and have a bigger perspective. Although certainly, it's going to affect their clients since it's important to those clients, it also affects a lot more people. We are very cognizant of that.
I always think of that too. Especially when I'm arguing before a novel issue or a Supreme Court, I'm conscious of that and think that our job not only is to place this case in the flow of the law for our client but to figure out why that makes sense and why it wasn't making sense for everyone else too.
Also, why does it matter?
There's never a dull moment in the wide spectrum of civil law.
Tell me how you started your journey from the law all the way to the Texas Supreme Court? What made you decide to study Law and go to law school, to begin with?
It's a funny road to get where I am now. First of all, when I was in law school if you would have asked me, “Do you think you will end up on the Supreme Court of Texas,” I would fall off my chair laughing. No, that's not like I had this grandiose plan, and I was going to end up here. I'm very thankful that I am here but it's certainly not like I had this big plan.
In fact, I always had at the back of my mind law has always been intriguing and thought it would be something I would be interested in but I was planning on getting my PhD in Psychology. I was doing my undergraduate work at the University of Texas. I did an internship at the Austin State Hospital, which has severely challenged people who are going through very difficult mental issues.
Here I was a young girl. I don't even know if I was twenty yet doing my internship there. I was somebody who was always involved in social activities and was very active. Friday night I'm ready to go to a party and I would be working at Austin State Hospital. It was so depressing to me because these people were terribly hurt, challenged, and needed so much help. I remember on Friday evenings coming home and wanting to get a bed, which was not like me, that's not my personality.
When I would sit down and look at their files, I was in the women's unit, and how many of those young women had been abused as children? The numbers were very huge. I wanted to help them but I knew that this professional route was not going to work for me because it depressed me. I thought, “If I can go to law school and help these people sooner or differently, maybe I can make a difference in their lives in a way that will still be satisfying to me and stress not wear on me too much.” All of a sudden, I made good grades and was able to do it so put two and two together.
That's an important point in terms of selecting your profession or your career in terms of how you are going to help people. I think people always think about your skills, your strong suits, where your talents are, and can give the most but it's important to consider the impact on you of what you are doing. If that depresses you, you are like, “This is not going to be something that I need to sustain.”
It's in the category of, “I don't like who I am when I'm doing that.” That's not a good part of the equation. I had a similar experience when I had an early midlife thing. Before I became a lawyer, I thought I wanted to be a writer. It works out perfectly well being an appellate lawyer because that's what I am as a writer in large part.
I remember taking classes during my legal career in terms of what if I should have been a writer or if I should write on the side. I remember thinking, I don't like who I am when I'm doing this. It's like your situation in that you are alone even more than you are when you are an appellate lawyer and ruminating a lot of stuff.
I wasn't the most fun to be around. I thought this is not good for the holistic part of my life before, not that I don't want to be around me, and I don't want to be around me. This is not a good choice for me, whether I could do it or not. I don't like who I would be to do it. It's an important point. I don't think we've covered that or talked about that in the show before. The impact on you impacts what you decide to do and how much long-term you can stick with that and do good with it.
If you are in a place where whatever you are doing is too emotionally taxing on you, then you are not going to stay there or hopefully, you won't. That's one thing I tried to visit with young people about the importance of that, and taking yourself into consideration, not because you are selfish but because that's the way you can do the best you can do and be the best for others. It's a healthy thing to do. Also, to sometimes say, “I need to give up on this or that.”
Giving up is not the right word but let go of it. Sometimes, we put too much on our plates and it's impossible to get everything done. If we can step back and say, “I need to maybe let go of that for a while or maybe forever.” Realize that I need to give myself a little bit more space to do what I need to do. I'm going to be able to help others and do what I want to do, which is going to bring me more satisfaction in the long run.
In your case, sometimes we also see problems because the law is a way of problem-solving too. You see problems and you are like, “This is the problem.” When you look at the larger piece of it, you are like, “It started way down here and maybe I can do something at that stage to stem the tide for all the people coming out here.” What law did you practice when you came out of law school? Was it related to that original interest?
Yes. When I first got out, I was a prosecutor and that was a great experience because when you go to an office like that, you are in the courtroom immediately. You go in there and hit it running. It's interesting because I didn't sit in law school thinking, “I'm going to jump in the courtroom and be very nice,” or anything. It happened and there I was in the courtroom and liked it. I enjoyed it.
It was comfortable for me, and it fits. That was a surprise. It’s not something I particularly expected. I went with a large law firm and was there for several years doing a lot of courtroom work, focusing largely on those Family Law issues. I was fortunate that, at a very young age, I was appointed to the bench. I have been on the bench a long time.
I was going to say the significant portion of your career on the bench in different roles.
I was first appointed as an Associate Judge. That appointment was made by the Board of District Judges in my community. I always joke about it. In my first appointment, my courtroom was about the size of a very small restroom. It was in the basement of a Civil Courts Building. I will never forget my first day on the job. I had been at this big, large law firm in Fort Worth. I go into this little bitty broom closet-type of a courtroom but that day I will never forget because of the significance of what I was doing and the responsibility of what I was doing was so huge. I felt it immediately.
That changed how I felt. It's not that practicing law I felt responsible for but this was at a different level. It's true that the difference in the way I felt when I took that first step into that little bitty courtroom was more than when I was sworn in by the governor of the State of Texas to the Supreme Court of Texas, with my hand on Sam Houston's Bible. It is a pretty cool thing that we are sworn in with. It was wonderful. I don't mean to diminish that but it simply stepped from the role of an attorney to the bench that was hugely different and significant. For me, that has been so rewarding and satisfying. It’s something that I have never, ever tired of at all.
That's the difference between being an advocate for a position and the decision-maker on that and impacting the people who are in the courtroom. As you go on to the appellate bench so many more in the state, and that's a very different mantle to have than when you are the lawyer advocating for a position.
For me, it was very different, wonderful, and significant. That first year that I was an Associate Judge, I was having headaches all the time and I had never had headaches ever. I went to the doctor to have tests like, “There’s something wrong here.” It was stressful that first year because of wanting so much to do such a good job and be the very best that I could be in that particular job. After that year, it went away, and I have never had that since.
It was a huge adjustment period and a learning curve too. That's an interesting point. That's something we've explored on the show too that there are so many different ways to become a judge. As you mentioned in this case, your first entering to the bench was an appointment through the judges, which is a corollary to, in the Federal system of the magistrate judges who were appointed by the district judges.
That's what it's like. The associate judge in Texas is like a magistrate in the Federal system. I did that for several years. I was appointed by then-Governor Bush to the district court. I served in that capacity for, I don't know, a long time. I was a Trial Judge for 23 years in total. I went to the Supreme Court of Texas in 2010.
That is a long and distinguished career on the bench and many different roles. It's a good thing that you enjoyed the trial courts since you were in them for so long.
If you're in a place where whatever you're doing is too emotionally taxing, then you're not going to stay there.
I was there for a long time. I did enjoy it. It's very different. When you are in a trial court, you are in there. You are ruling on objections. You are in front of juries and dealing with all of that. You are handling things quickly and fast every single day. When you get on the appellate bench, I work more on the appellate bench but it's steady reading and writing.
It's like you were saying earlier, it's a lot of alone time, which I like. That has always been something that I've enjoyed. When I was a Trial Judge, I did a lot of writing. I authored a Treatise for Lexus. I did another treatise and was always writing law review articles because I enjoy that. I've always enjoyed writing. It’s something I love but it was not part of my day job.
There is a lot of downtime as a trial judge too. You are there all the time but a lot of times parties are negotiating. They are trying to figure out if they are going to be able to settle. I was able to do a lot of that work in between when the lawyers were doing that, and we weren't on trial. I have been devoting all my time to that. I love trial work but I did do it for 23 years. I’m starting on my thirteenth term. I don't know that I would ever get tired of this. I love it.
How does your experience on the trial bench form your review of the record and your work on the Supreme Court? You have a long history both in the court as an advocate and also as a Judge. How do you think that impacts your decision-making or perspective on the Supreme Court?
It does bring a helpful perspective. We are a court of nine justices and all come from different backgrounds. That part of my background is very helpful because I was right in the trenches for so many years for the various types of issues that we hear whether they are procedural or substantive. A lot of procedural issues, certainly. It's having been there. It's one thing to talk about the importance of deferring to the trial court on matters of fact, etc. When you have done it for so many years, especially from the position of the decision-maker, I can lend a different perspective to eliminate what that exactly means in this particular situation.
It comes to mind a couple of things that would be helpful. One would be, I have been a litigator before and an appellate lawyer sometimes when I read the record, I get a different sense of what's going on or might have been happening in terms of the interactions between counsel and the bench, and things like that. In terms of the practical impact of rules, you are making these decisions for the state and what is going to be workable, feasible, and pragmatic to some degree when you are assessing what rule to decide or apply.
Yes. A record is a cold, hard record that you are reading. When you have been there for so long, it's not the same as having been the one there obviously, which is why we differ so much. Having had all those years of experience, there are very few records that I can in some way relate to.
I don’t understand where this came from, a case management perspective or something. You enjoy your position now. What do you like the most about serving on the Supreme Court and the work?
There are so many things. It’s hard to narrow it down to 1 or 2 but first, the study, the writing, that part of it. I have two clerks that come in every year and they are wonderful. I have a staff attorney who's there permanently and she is absolutely phenomenal. We are very much a team. We work together. When I interviewed for clerks, I always tell people, “I do not want yes men.” I want a person that challenges me. That's an important thing that I need to get across because some people would be intimidated to be able to do that.
That's how you reached the best decisions. You want to debate things in advance and work through them.
I will give a draft or whatever. Michelle, who's my staff attorney, can be in between the two of us sometimes. I will send back some edits and comments and the law clerk would say, “Is Justice Lehrmann upset with me?” Michelle is like, “No, she doesn't ever get upset about anything. She wanted to get it right. You don’t have to agree with her.”
Maybe that's not exactly what that phrase meant in that particular case depending on whatever else. Point out what you are noticing that made you think that case or whatever it is. There are a gazillion things that could be. I love that part where we are very much a team. Our chamber is very much a team. We are a court of nine justices and working with the other justices. That's absolutely wonderful.
We have a very collaborative court. I like to say this and it's true. Everyone is very smart, hardworking and nice. All three of those things are important when we are dealing with such important issues affecting the jurisprudence of the State of Texas. We've studied these things a lot before we get into a conference room and are formally discussing them.
We have our view at that point in time about what the correct application of the law is. If I'm reviewing one of my colleague’s writings, it's one thing for me to say, “On this issue, this is what I was thinking about this. As I read such and such, it seems to me that this is the way it would apply. What are your thoughts about that?”
We talk together to try to get the right result. Sometimes we do our separate writings or might visit with each other after a conference, and maybe we will convince each other. Maybe we won't. Who knows how that's going to work out? It's so important to have the kind of personalities on the court that can do that because we get to a better result instead of being it's my way or the highway. I respect my colleagues. I want to know why they think that the law should be applied differently than the way I'm seeing it.
It's like oral arguments. Sometimes not that we are not familiar with all of the cases and the facts by the time we get in there but they can present it in a different way than you are, “I hadn't thought of it from that perspective.” You can leave the courtroom with a whole different view of it. The same thing can happen with a conference. At the conference, we are talking about dozens and dozens of cases.
Although we give each case a lot of attention, the conference is very intense. It starts at 9:00 and frequently, it will go until 7:00 or 8:00 in the evening. It's very intense but still, I can't sit down with a colleague for two hours and try to hash all this out. It's very good for us to have that relationship and respect for each other so that we can put our heads together and hopefully, come up with the right result. It's wonderful.
I know in my practice, there are a lot of solo appellate lawyers. I can't fathom working in that way because I still think even as an advocate, what we are trying to tussle and work something else, I want to debate it. I want to consider every side. What you said about oral argument is resonant of things, both experiences I have had and also talking with other former justices. When they say, “Oral argument is your opportunity to have this discussion with us and to present things differently,” it doesn't mean you are presenting whole new arguments. Maybe a different aspect to it or a different implication of it, or a different analogy. It's the thing that turns the light on. You go, “I hadn't considered it that way. Now, it's going to change how I view this.”
I think people would be surprised how much that happens. Quite frankly, I think that all of us, when we first got on the bench, we were a little surprised about how frequently that happens. By the time we get into oral argument, we have read all the briefs and the seminal cases. We haven't thoroughly gone through the record yet as we will after when we start writing but we are pretty familiar with it and the facts. Another thing is when people start arguing, we do our own internal briefing. We have what we call a steady memo that goes overall.
All the different arguments are the seminal facts, whatever, lots of times it involves a statute and comes up with a recommendation. The nine of us all know what that recommendation is. We go in thinking of it at least to the same extent, as far as what's covered in that setting memo. If someone gets up and starts to either recite the facts or talk about very basic legal principles, I'm usually one of the first to start asking questions because I want to get them in the right direction. You only have twenty minutes of time.
I don’t want them to be wasting their time on things that we totally already know and get. It's not shedding anything new on anything. It's a combination of hearing where the justice is going with their questions because that can help you know what we are focused on. Also, make sure that whatever way it was presented in the briefs to make that point to get to the same results that you were already made clear in your brief that there may be a little bit different way to make us look at it in a way that we had not previously. We are going to be basing a lot on those briefs, not everything but a lot will be.
The briefs must be done well and are helpful, to begin with.
Do not look for yes men. Look for people that can challenge you and are not intimidated by you.
We are not going to probably grant the case if they are not.
That's one of the unspoken considerations often is this is an important issue but how well on both sides is it going to be briefed? Can I see from the petition the answer? The advocates like, “No matter what it's going to be well done on both sides, which is going to help the court make the decision.” That's a factor.
It could be a very important issue. In fact, if there's poor briefing, we would probably even be less inclined to grant it.
You would be concerned like, “We are going to make this decision that they are not fully fleshing it out for us.” That's a concern. We could do more harm in that situation. The other interesting thing is the combination of your staff. You have the longstanding attorney and the annual switchover of an attorney serving as a law clerk. There you get an institutional understanding of how your chambers work in the court and some long-term view of what's come before, and you have the fresh insights each year. It sounds like a good combination.
Unfortunately, a lot of our Intermediate Courts of Appeals in Texas are moving away from the law clerks and moving to permanent staff. I understand why it's certainly efficient because you don't go through the training process every year but at least, for me, and my chambers, that has never been a problem. These young people are so delighted to be there. They are brilliant.
They have so much to offer. They are extremely energetic and dedicated. It has never been a problem. It’s such a service that we provide to the legal and young professionals entering into the field that I hope to continue this. As long as I'm in my chambers, we will do that. That is the trend in our court that we still do that.
I like the combination. Our Supreme court and our Intermediate Courts of Appeal have historically had where you are saying, your intermediate courts are going, which is career research attorneys or chambers and also court wide. The Supreme Court is changing that some of the justices have opted for a combination like you have in terms of they have their attorneys that have been there a long time and have institutional knowledge of the court but also have 1 or 2 term clerks that come through each year.
It's nice to have that combination and switch up a little bit with some of the justices. Some of them go on to clerk at the Ninth Circuit or other clerkships in the Federal system as well. That has an impact too on the collegiality, between the local Federal courts and the local State Supreme Court. They know each other. Their clerks are feeding back and forth. It's nice to see that collegiality across Federal and state as well.
In Texas, we have the unique ability for the chief of our court, Chief Justice Nathan Hecht to be married. We get along well.
Your court is very much in alignment and literally with the chief’s married. That's good.
They have been a couple for a long time but they tied the knot.
It's exciting to see that. It's always nice to see people are happy.
They met years ago because she was on our court. Judge Priscilla Owen was a Justice on the Supreme Court.
We've talked a little bit about your first time on the bench. You were appointed by judges and appointed by the governor to the trial court position. For the Supreme Court, is that also an appointment or did you have to run for election for that? Tell me how that works.
All of our court positions from the trial court up to the Supreme Court are handled basically the same. They are all elected positions. Trial judges are elected for four years, and appellate justices are elected for six-year terms. During the interim, if there's a vacancy, the governor makes that appointment. On our court, many of us were appointed by a governor because that's how that works. A lot of times people will step down at a time.
That's not always the case but it is a lot at the time. I was appointed by Governor Perry to my position on his court. What had happened, not that's not very interesting but it's a little bit more interesting. I told you that when I was a Trial Judge, I always like to write and that was where my heart was. A lot of people knew that. I always assumed that I would first serve on the Intermediate Court of Appeals, the Second Court of Appeals, where I was a Trial Judge. All the justices on that court were about my age. I had young children who were settled in our community in Fort Worth. I wouldn't run against one of my colleagues.
There never was a vacancy where it was something that would happen to me, time-wise but when our two sons, who are now lawyers, when were seniors in high school, Justice O'Neill, who was one of the justices on our court decided to step down. Rather than step down at a time when the governor could make an appointment, she stepped down in such a way to open it up for people to run. The timing for me was perfect. My kids were getting ready to go to college. That's the reason I bypassed that Intermediate Court of Appeals. Six of us ran.
There were five other people who ran. All but one of us were judges, highly qualified, and somehow, in the grace of God, I won. Once I won that, Harriet O’Neill stepped down, so the governor could appoint me. I was appointed by the governor but after going through the process of being elected from a group of six people. Texas is a big state, too. It's never simply because you've got where the voters are. They will be some community events in Houston for lunch. There's another event in Dallas, which is many miles away for dinner. The next morning you need to be back in Houston for breakfast. It's a big state to campaign in.
I ask about that because it's important to know if you want to join the bench, part of the thinking about that is not only how do you get there generally in terms of your background and everything but, “Am I going to have to go through an election process? Am I comfortable doing that? If I'm not comfortable, can I get comfortable or at least does it push through being uncomfortable? Is it some appointment process?” Thinking about the different ways to join the benches and how within the same state, there are different positions that have different ways of getting there. If you don't want to run for election, that would be the last thing you would ever want to do. There might still be other options to investigate those in terms of thinking about that.
That is a part of it that's very different than the work. From the work, we have both the substance of the cases and administrative responsibilities. A lot of administrative responsibilities take up a lot of our time. When you add to that, having to campaign every six years and now for a reason, our terms are staggered. It's 3 of us in 1 cycle then 3 to 3. The idea of that is so that we won't all be doing that at once.
If all nine of you were doing that in the same year, it would be hard to make sure that the court's work was done and all of that too.
It takes time away from the very important work of the court. As I always say, and I think all of us do, we didn't choose the process but this is where we live. We love where we live and what we do. We do that because it's what we need to do the work that we love. There are good parts to it. We get to meet lots of people and that's wonderful and fun. It's extremely time-consuming. Raising money is always very challenging.
It's a difficult thing to do. I don't think any of us enjoy that part of it. On the other hand, the truth of the matter is we have to get the word out because it's all about name recognition and people knowing who you are. People don't know who we are as judges. It takes money to get that word out. Unfortunately, that's becoming more and more expensive as the years go on. There are some things that we wish might be done differently. We didn't create the process. We live by the rules.
If you want to join the bench, first and foremost, don't be afraid of it.
What advice would you give to those who are considering or might think they would like to join the bench at some point?
It’s the normal thing that you would think of. First of all, don't be afraid of it. Back when I was in law school, if you would have told me I was going to be a justice on the Supreme Court, I would have started laughing. I never dreamed in a million years that I would end up where I am. When you think about it, for me, what happened was I found something that I was very interested in. I loved courtroom work and litigation.
I let myself get into that and wasn't afraid of it. I tried not to let that ever intimidate me. I had mentors that I saw when I was in the courtroom and many wonderful judges that I learned so much from. Some judges that maybe weren't so good that you also learned from and observed all of that. I thought because I was so comfortable in the courtroom and enjoyed being in the courtroom, that would be something that I would like to do from the other side of the bench.
Working hard, writing, and getting published so that said that people see what you are doing and what you are capable of doing. I got on the speaking circuit for CLEs throughout the state and the nation. I'm a commissioner on the Uniform Law Commission. I got into ALI. I became the Chair of the Family Law Section of the American Bar Association. I got involved in local and national bar associations and bar activities. Anyone can do that.
I remember when I was a brand-new lawyer and got a call from a friend of mine at another law firm and said, “There's this luncheon down the street that they have at the Petroleum Club and its women lawyers. Do you want to go?” I’m like, “Sure,” so I went. The next thing you know, I got involved in young lawyers. You get to where you are not young anymore. You go to the big lawyer stuff and be involved. I say that now to back off but when you are young, you might be afraid to say yes sometimes because you are so young. Don't be afraid. Go for it. You can do it. You get to a certain age where you have to back off and said no but that's a different issue.
Earlier you want to have the opportunity to get out and meet people outside of your workplace and get a broader sense of what the bar is like in your place.
If you see some issues that you are passionate about, a real need for whatever, it's easier to do it. You can start writing about whatever legal or procedural issue. As a Trial Judge, I saw a lot of conflicts you can imagine throughout the litigation process. I was struck by the importance of alternative forms of dispute resolution. I did a lot of study and writing in that area, and there were other areas. You will see whatever it is that you think is important. It makes it easier to devote a lot of time to writing, studying, publishing, and whatever it is that's fun for you. It will also help you in terms of achieving your perhaps long-range goals.
That's the sweet spot. It’s something that you are passionate about, interested in, and how that converges with service or other things outside your immediate sphere. People can get to know you, your thought leadership, and things like that also. As long as you enjoy doing it, and there are some passions to it, you can see when people don't have that. It's not good. You won't stay with it very long and you are volunteering your time to do this, so you might as well feel that it's meaningful when you are doing that.
Like you were saying, “I never thought that I would be on the Supreme Court. I certainly wouldn't have imagined that from law school.” Taking opportunities when they present themselves and going forward but also being open enough to recognize what you like. You have experience in the courtroom and you are like, “I feel comfortable here. I enjoy this. I had even enjoyed being on the bench, not just advocating.”
Sometimes people have real tunnel vision about what they are after. I'm to be guilty of that too. Like, “This is where I'm going.” Look on either side of the street, there might be something else you like better or of interest, or as your skills develop, you realize you liked this other thing better. You couldn't have known that when you were in law school earlier because you didn't have the exposure to being in court or doing other things that you would know you enjoy.
If you will let yourself relax let that happen. For me, running for the Supreme Court was a big leap to do that. A lot of people would be, “I don't know that I can do that.” It's not like, “I'm this huge, confident person that thinks I can do anything in the world.” I don't mean that but there was that opportunity. It seemed to be ideal in terms of our family. I went, jumped in, and did it. It’s taking risks and knowing that there was a good chance that I may be successful and maybe I wouldn't but being willing to jump in and try and know, “I did my best,” the outcome would be fine, whatever it was. For a lot of people and myself included that sometimes it's challenging.
For a lot of people but for women too we feel better if somebody taps us on the shoulder and says, “Here's an opportunity coming up and you should consider it.” It can be a lot harder for us to do that for ourselves, so consider it because there is that disconnect moment sometimes like you said, “Run for the Supreme Court seems like a leap.” Being willing to make that leap can be the hardest part in the beginning.
Now, I am the Senior Justice on the court and the longest-serving woman on the Supreme Court of Texas in the history of the state.
That's quite an accomplishment and amazing.
It’s something I would never envision a gazillion years ago but here I am.
Congratulations. You are continuing to love it. That's the thing too. You have been there for such a long time because it's still fresh, new, and interesting to you.
Everything we do is so broad. There's such a broad spectrum of things. It never gets old. Even the pandemic has been challenging.
That has been challenging but you stepped up in terms of adjusting the technology and all of that.
We were the first court to do the Zoom oral arguments. We did not skip one oral argument. We jumped in there with the help of David Slayton, who was then the Head of the Office of Court Administration. We started doing it and haven't had any problems with it. It's worked very well. We know it's a tool if we need it. For example, we are totally back to the full in-person oral argument that we all prefer but, in a pinch, last winter, we had an ice storm. Some lawyers had to come from Dallas, and Houston throughout the state and it presented a danger for them driving. We decided to have the oral argument via Zoom. It has given us a tool that we were not familiar with before.
Now we have it if we need it. We have had that. We had a lot of election issues because of all the types of things that are happening in our political world. It all ended up in our courts. We had a meltdown with our computer system. We had an attack on our system. Everything was shut down and all this was happening at once. We had been outside this a lot of times. We have conferences by either we will do Zoom or may all get on a big text message together at midnight, 1:00 in the morning. A lot going on.
That whole pandemic, you would think would slow down for us. First of all, it takes it a little bit longer to get to us but even now it's not slowing down. The number of mandamus petitions has gone up, so anything that’s gone down at all which hasn’t been much had outweighed the number of mandamuses. Our workload has increased rather than decreased in a crazy period, and we still have it.
It's a good thing you do, given how much of it you have. It is good to have the alternative of Zoom for arguments for the situation you mentioned. The Ninth Circuit had a head start on remote video arguments. They had set up for similar situations because the circuit is so widespread across many states. If there’s a public defender or a solo practitioner from, let's say, a remote town in Montana, they wanted to give them the option of being able to present an argument rather than having to come all the way to California.
Tweet: You would think that the whole pandemic would slow down the Supreme Court of Texas, but it didn't.
It’s usually where they would have the argument and do it from their offices, and not incur the expense and the time. They had that as a backup for that situation. When the pandemic happened, they were like you. They could immediately switch everything over to using the system that they had already started in place. That was a good thing.
They didn't skip a beat either.
Not at all. It’s as usual, only remote and video. That was good to see but our state courts had more of an issue because they didn't have that capability. You could do telephonic arguments but that whole technological base for doing that wasn't in a place where they were having telephonic arguments but that's so much different than having video.
We have a task force through our Supreme Court Advisory Committee, which works on our rules of civil procedure, telephonic procedure, evidentiary rules, and so on. They are looking at this. This issue is about what did we learn from the pandemic, particularly about virtual hearings or virtual discovery. Where will this work so that we don't throw it all out because we don't have this terrible situation affecting us at the work? We will be making some decisions on that. As far as the authority that we are under now to allow that it's still under our emergency orders. Our rules typically provide for it. We had to do that to fill in the gap there during that very serious period. We are looking at that to change our rules.
As you mentioned, in addition to your caseload on the Supreme Court level, you have, in particular, a lot of administrative aspects with regard to the courts, the rules, and all of that. You can have a significant impact on the justice system in that capacity as well in the Supreme Court.
I'm the liaison to the State Bar of Texas, for example. We also have a commission on children, youth, and families, for which I'm also the liaison on that. We are over the Board of Disciplinary Appeals and our whole grievance process. We are also over the licensing. A lot that people don't realize and all the rules. The Disciplinary Rules, and not just the process but the rules themselves. The courtroom rules, the Appellate Rules, Evidentiary Rules, there's a lot of administrative stuff that goes on.
That's true if you have an administrative role in the trial courts as well but the Supreme Court has such a broader expanse of responsibilities.
It's more than I think most people realize.
That's why I wanted to mention that, and some people find that rewarding. Chief Justice McCormack of the Michigan Supreme Court, one of the things she enjoys from that position is the administrative part impacting how the courts overall are run. She didn't realize exactly how expansive her role would be in that regard before she was there. She's like, “I enjoy this part but I hadn't considered it as being such a significant part of your position on the Supreme Court.”
That’s what a lot of people don't realize. Another thing that I don't realize is how much time it takes to review the petitions to determine which cases we are going to accept. That's the hidden thing that we do, although it takes up probably that part of our responsibility, meaning the case part of it. It’s probably at least half of the time.
It’s deciding what you are going to decide.
What everybody sees are those orders that come out every Friday and say, “This is what we are deciding and not deciding. This is what we did decide,” but nobody ever realizes what it takes to get down to that percent. There's a lot involved in that as you can imagine. It takes a whole lot of time. For our court, we try to get all our cases out by the end of June for a few years.
People say, “You are on vacation until September.” I'm like, “No, because we are reviewing petitions.” That doesn't stop. Everybody is awake for the whole year. It is slower. Now is the busiest time of the year because we are writing and studying each other's writings like crazy. All that is intense. At the same time, we are still reviewing the petitions. This is the busiest time of the year but it still is always busy.
Looking at the numbers, you decide to take about 10% of the petitions. That's a whole lot more petitions letter out there that you are reviewing. That's interesting that your court tends to follow in that regard the way the US Supreme Court proceeds, which is we try to have argued and decided these cases within a particular term until June.
That's what we try to do. There was a period years ago when we were not successful in doing that. It has always been a challenge to get it down to that point. When Justice Wallace Jefferson was our Chief Justice, he did a very good job of getting it down. When I first was appointed to the court in June of 2010, there were 64 cases pending at the time. That term ends at the end of August. The court got it down to 42 held over cases. Think about that. As a new justice, you are having to read all those cases that are pending because you are expected to be up to par on all of them. It was a fun summer but it was a lot of reading going on.
You would get up to speed quickly as a result.
Chief Justice Jefferson was able to get that down to four. It was between 4 and 6 for quite a few years there. When Chief Justice Hecht was appointed, he was able to get it down to zero. We have been at zero ever since. It's important because that whole, “Justice delayed is justice denied,” there's a lot of truth to that. We do try to try to get them out within the term.
We don't have the same system here in California but we do have a requirement by statute that within 90 days of submission of the case, there needs to be a decision. It depends on when that submission and oral argument happens. It isn't in the same term and timeframe.
There is a rule. Is that a rule of an Appellate Rule or an Internal Rule?
No, it's from the legislature. The Courts of Appeal and the Supreme Court have 90 days from submission to provide the opinion. They can vacate and resubmit for particular reasons if they had good reason to do so. The idea is exactly that, and we are going to try to do that. If they don't then, their pay is withheld. That's the way the legislature has done it.
We are the largest court system, so there's much coming through. The way they try and handle the workload then is maybe your oral argument isn't as soon because then you are not going to be submitted until later. It doesn't come on the back end but it will come on the front end in terms of time to an argument.
We are all a little bit different. Our process of deciding whether to grant a review is pretty different. We have what we call a petition process. It was several years ago. The Appellate Bar entered into an agreement with the Supreme Court of Texas, that we would change the process so that the petitions for review would be filed. I use page numbers because it's easier to understand or word limit but it's about fifteen pages limit per petition. We promised the bar that we would read every single petition that came in. We weren't doing that before because you couldn't.
A soft answer turns away wrath, but grievous words stir up anger.
You were having regular 50-page briefs on merit. When you are reading anywhere from 1,200 to 1,500 a year, that's not possible. It’s not that many hours in a day. We entered into this agreement with the bar that we would change the process so that we had fifteen-pages petitions and also responses if there is a response. We read everything, whether that's the perfect system, whereas we are in the process of studying that again now to figure out maybe is that because we also don’t grant review.
We have a petition. If we have enough votes, we asked for a full briefing on the merits but our full briefing on the merits comes before a decision is made about whether or not we will grant a review of the case for oral argument. A lot of those ended up getting denied. I don't know the exact numbers but from doing it, I can tell you there's a lot. These parties have put so much time and effort and money into this. Probably more than 50, it's going to be denied. We are in the process of trying to figure out how to improve that system.
I was with Haynes and Boone for many years. I remember the comparison. It was like we were in different universes. We are talking about the different Supreme Courts. I'm like, “You do what before what?” That's very different.
The people, who hear it were like, “Where did that come from?” It was from this idea that we will read everything that comes in because before that it was divided among the nine chambers. My chamber would never have ever met set eyes on this particular case. We were trying to resolve that problem but recognizing that there are only so many hours in a day to be able to achieve that. There could be ways that we could fine-tune it some more.
That has been studied now. It's the main thing. You get granted a petition for review but when you are doing your brief on the merits, at least in our court, we are still trying to convince you to grant. The decision to grant is not until after that. You've already filed your brief on the merits, which you are limited to. You may have raised that a little bit differently and focused on what the actual issues are rather than trying to convince us to grant.
I think about that both at the California Supreme Court and US Supreme Court level when we are working at the petition stage and the merits briefing stage after it has been granted. It's a different inquiry in part as to whether is this an important issue that should be decided like, “Why now and why this case? Here's how the issue should be decided in that particular case.” It's a little different orientation.
California mirrors the SCOTUS process in that regard, we have petitioned answer, reply, amicus letters, and decide whether they are going to take it and have the merits briefing. I do remember it was completely different and was puzzled. When I would ask, “You have the merits briefing. When are you going to have an argument?” We are like, “No, we don't know that yet.”
It does make sense when you were saying how it happened. It came out of the particular concern and an agreement between the Appellate Bar and the bench. Now you have had time with it, you are like, “Maybe it's time to look and see if is it the best approach now that we have a data set of how it’s working on both sides.”
What we are hoping is that we can come up with a system where it's still manageable that we can read everything but we will avoid having the parties do a full briefing on the merits before you even know if it's going to be granted. That's the thing that I think needs to be addressed.
That's a challenging thing from the pragmatic in the client side.
That can be a tough thing too. You've got to stay on the conveyor belt a little bit longer. That's a good thing.
That's a good sign. I think about that here. When we have repetitions of the court as for a preliminary response or something like that, “We are not there but there's an interest. It's possible.” We are not out of the game. That's a good thing. Thank you so much for taking the time to have this discussion, especially during your very busy season as you indicated. It means a lot to me that you were able to do this and were willing to do it. I appreciate it.
I so appreciate your inviting me too. I would like for us to sit down and visit a little bit more, maybe about the differences in the different courts because we do need to look at some of these issues.
It's helpful to consider. I also like that there are differences between the courts because sometimes you get so involved in your system or the approach that you are tapping your state and you think, “That's the way I know.” To hear how it's developed into other states and say, “That's another way of doing that,” that's something we have never considered.
Would it work here or not? Does it not serve our needs? It's always good to keep your mind open and think about other things and how things can be improved. As you mentioned with regard to COVID, there are a lot of things in that regard that the courts have gone through. There are some helpful things that we might want to retain.
We were talking earlier about joining national groups like the Uniform Law Commission, which I've done much work with or the ALI. I have learned that I have gained so much from being members of those national organizations for the exact reason you are talking about. When you see how other places things do differently, it gives you a better perspective, not just on how things could perhaps be approved but also about your own system. I know that it's made me a better judge having exposure to these groups that have given me insight into how it's done throughout the country. That's important also from a mentoring perspective.
ALI certainly has been that way for me too and the ABA. The RAND Institute for Civil Justice does a lot of thought leadership and data analytics on courts and litigation and has a wide array of board members, judges, Federal, and state from across the country, and also plaintiff's lawyers, defense lawyers, academics, it's all sides. It’s like ALI where we are trying to figure out what is the best approach without a partisan approach to things.
Getting the different players, when say for talking about class actions, where we have plaintiffs, defense lawyers, the courts that handle them, let's talk about how those issues look to each of those parts of the system. Is there something we should consider in managing them differently or something like that? It's nice to open your mind to those things and have some good-hearted discussions and different ideas that come from different experiences. I wanted to ask a few closing questions from the lightning round before we leave. Which talent would you most like to have but don't?
Probably to be able to sing, I'm terrible. I would love to be able to sing.
For what in your life do you feel most grateful?
My family, by far, I'm very fortunate. My parents passed away quite a while ago. I’m married to my husband and have 2 sons, 1 in California and 1 in Houston. We have two little grandbabies, so it's a lot of fun. We love that.
That's exciting to be near them and be part of their lives. This might be harder. You are pretty sociable and like lots of people. If you had a small dinner party, who would you like to invite?
There could be so many people. I don't know. Probably maybe as of where we are in terms of the divisiveness in our country and things that are going on throughout the world, I would like to have dinner with our Founding Fathers perhaps. Pick their brain about what was going on in their minds during that period. Particularly, you think about someone like George Washington, who voluntarily says, “I'm going to do this for two terms.” He didn't want to be a king. He was so humble and the antithesis of an authoritarian or into power. That's so admirable. I would love to visit with him about that. Think about Benjamin Franklin and where did you ever come up with those ideas?
It would be a lot of fun. One thing about being in this position, you do get to meet a lot of people that you would have admired from afar. I have had the good fortune of being able to enjoy dinners with Antonin Scalia, Ruth Bader Ginsburg, Sandra Day O'Connor, and quite a few people like that. It is interesting when you've read so many of the writings and gotten to know these people from a different perspective to sit down, be able to get to know them one-on-one, and ask questions. When you think about that, and you think about if it would be possible to do that with George Washington that would be pretty cool.
Justice O'Connor, the first time I met her, I was completely tongue-tied and couldn't speak at all, which was not very impressive. She was very gracious but I can't believe this is the only time for an appellate lawyer like, “She’s like a rock star.” One of my friends gave me the opportunity to redeem myself and we had a small dinner with her and my friend and one of her friends. It’s amazing to talk to her and hear about everything and her insights on things.
She's so humble and down to Earth. We were talking about a passion, her thing with iCivics that she does want to do and is trying to do as much as she can to get an education for young people in government.
That was the context in which I had met her was some of the iCivics work. She was always wanting to promote that and get engagement in that. We were involved in getting the word out for her on that project in the beginning. It's amazing to see where it's gone and to see Justice Sotomayor take up the mantle now and work with iCivics on that. It's such an important project that she started. Last question, what is your motto if you have one?
My motto like most people would say in our country, “Do unto others as you would have them do unto you,” is the Golden Rule. One of my mentors when I was a very young Judge. His name was Judge Charles Murray. He was one of those judges that you admired so much. He was always gentle wise, well-prepared, and knowledgeable, all of the things you would expect and find. He had a saying on his bench from Proverbs, which is, “A soft answer turns away wrath but grievous words stir up anger.” He had that on his bench.
I had that typed up and put that on my bench. I tried to live by that as a Judge every day that I was on the trial bench. Although I'm on a bench with nine others, I obviously can't have it right there on the bench but I do have it in my office before and after going into an oral argument. For me now, it's more about a conference. That’s when things can get more contentious. We don't want that. I guess that would be my motto too. They are similar.
They are obviously very related in that regard. Temperament is important. That's both with the public but you are saying also at the appellate level. We are talking about temperament with your colleagues.
The way to approach life generally, not just professionally. It’s a good thing to keep in mind.
You bring yourself to everything you do, whether that's professionally on the bench or personally. If you are the same core with the same integrity in all settings, you are doing pretty well.
I do appreciate you having me on and giving your time like this. This is wonderful what you are doing to help others and especially young attorneys to see that anything is possible. You don't have to have this grand scheme. Just work hard, do the best you can, and next thing you know, who knows where you will be.
That's a beautiful way to conclude, Justice Lehrmann. It’s perfect concluding remarks there. Thank you so much once again for joining me on the show.
Thank you so much for having me. I enjoyed it.