The inner workings of courts of appeals are sometimes hard to understand from the outside. Staff attorneys play a critical role in screening cases, assisting the justices, and helping the court handle its workload. This week, Todd Smith and Jody Sanders get an inside look at that process from their guest, the El Paso Court of Appeals’ Chief Staff Attorney, Kirk Cooper. Kirk gives an insider’s view of how the El Paso Court works, how it has handled challenges from the pandemic, and his background and path to appellate law.
We have as our guest Kirk Cooper, who is the Chief Staff Attorney with the Eighth Court of Appeals in El Paso. Welcome to the show, Kirk.
Thanks for having me.
We’re super happy to have you on the show. We haven’t had enough court staff as our guests yet and that’s a trend that we’re looking to change. We’re fortunate to have Kirk reach out to us and talk to us about coming on the show. We’re pleased to have him because he’s got some interesting things to say. I look forward to hearing those things. Kirk, tell the audience a little about yourself, where you come from, your background, and how you became a lawyer.
I was born and raised in the great city of El Paso, where I reside. My story is the standard borderland desert story. My dad is white. My mom is Mexican American. I grew up in a mixed culture household with great food. I got used to living in 100 plus degree heat all my life. Being a lawyer was never something that was on my radar. Originally, I had wanted to be a professional musician. I went to the University of North Texas, they told me they had one of the best music schools in the country. I was like, “I want to be one of the best musicians in the country.” I auditioned and got in. In my first semester of college, I was a Jazz Studies major, which is a real thing. People don’t believe that it’s a real thing.
After about a semester in the music school, I decided that it wasn’t for me, so I switched out for multiple reasons. Many of which are encapsulated by the movie Whiplash. I don’t know if you’ve ever seen it, but it’s Miles Teller, who’s the drummer. There’s a crazy band director played by JK Simmons who may be psychotic. I’m not saying that was my experience. I’m saying it resonated a little too close to home. I switched out of music school, went into journalism school because I like to write. I worked for the school paper and enjoyed that. I ended up minoring in Journalism and majoring in International Studies with a focus on the Middle East.
During college, I had done a study abroad in Tunisia as part of a State Department program to learn Arabic, fell in love with the language and fell in love with the country. When I graduated from college, I thought that I was either going to do something in journalism or that I was going to do something related to national security, maybe go to the FBI Academy, but I was still a little young for the Academy. I graduated in 2009. I don’t know if you all remember, but the economy in 2009 was horse manure, let’s say.
I moved back to El Paso, tried to find a job, had a lead on an on-air reporter position with a local TV station, but before I could go in for the interview, some company in the corporate chain went bankrupt. They’re like, “Sorry. We don’t have this position open anymore.” As I was looking for work, I started doing volunteer work with an organization called the Las Americas Immigrant Advocacy Center. A local nonprofit that still does pro bono legal work for immigrants and refugees from all around the world who pass through Juarez into El Paso. That was where I started doing some legal work.
One of the attorneys taught me how to use LexisNexis and everything came together and clicked. I was able to have that little international facet of being able to talk to clients from around the world. I was able to use my writing skills to help draft briefs and even parts of appeals to the Board of Immigration Appeals, the administrative body overseeing the immigration courts. I got to do research. I like to learn and it was the perfect opportunity to learn something new every day. I thought to myself, “Maybe law is where I belong.” I would never have thought it would be where I belong, but I ended up applying and went to George Washington University for law school. I came back to El Paso. I got a job with the Eighth Court of Appeals and I’ve been there ever since.
We’ve had some guests on to talk about the nontraditional paths to appellate practice and I love your story. It fits right into that alternative way of getting into the practice area and becoming interested in it. That’s neat.
I would have never thought that I would become an attorney, but it’s been a great fit and appellate law, especially for someone who likes to write, a nerd, and can spend all day in front of a computer, reading and digesting a lot of information, it’s great. You get to learn something new every day. I can tell you that working at the court, I’ve learned something new every day.
We completely understand sitting in a computer reading and digesting all day. That’s where we spend our lives as well. You started as a staff attorney with the chambers.
When I first started, originally, it was going to be an interim internship while I was waiting for my bar results. There were two positions open, but they were looking for someone with more experience but eventually, they said, “Why not hire him on?” It was a question of whether I was going to go with Chief Justice Ann McClure or Justice Yvonne Rodriguez. Justice Rodriguez ended up calling dibs, so I ended up working for her. I started as her law clerk. The way that it works with us is we don’t do it with the federal courts where there’s a law clerk who works for 1 or 2 years. It’s more of you start as a clerk and you can get promoted. We’re more of a permanent staff model. I started as a law clerk and was promoted up through a staff attorney and senior staff attorney. That was for about six years. A couple of years ago, Chief Justice McClure retired. Her Chief Staff Attorney had retired. At that point, I was promoted to Chief Staff Attorney.
As Chief Staff Attorney, do you work for the court as a whole or are you assigned to particular chambers?
I work for the court as a whole. I answer to the Chief Justice, but basically, it’s a blended role. Different courts do it in different ways. I don’t think I’m giving away any state secrets by saying this, but in some courts, the chief staff attorney will be the head of the attorney, and there’ll be a central pool. Other courts have them serving in a general counsel role, where they’ll counsel the Justices about the administrative procedure, HR things. Some of them have their chief staff attorneys doing mandamuses or emergency proceedings, so it depends on the court.
At my court, I do a little bit of everything. I do provide advice to all the Justices. I handle the mandamus and emergency docket. I handle parental rights terminations, basically anything that’s faster-moving either I’ll handle it directly or I’ll be the first person to touch that. I’m the legal adviser to the clerk’s office. If there’s a question about, “Is this document compliant,” or whatever, that’ll come to me. I get to look it up in the rules and say, “No. It’s not PDF searchable. Tell them to make it PDF searchable.” There’s that fun back and forth with that. I do advise the clerk’s office. I advise the Justices. I have my caseload. Chief Justice Rodriguez has hired some extra help, so we have a central staff to help us clear our backlog. I’m supervising them. I’m pretty busy. I’ve got a lot on my plate.
I would imagine, especially with the original proceedings, family termination, and stuff, that things have to have a quick turnaround. You have your plate, and suddenly, things start getting dropped in, particularly on Fridays at 4:00 PM.
I am familiar with the Friday at 4:00 PM syndrome. I dread Fridays now. I don’t want to say it, but I’m like, “What fresh hell will this bring? Please don’t file something at 4:55 PM. Don’t ruin my weekend.” If you have to, do it, but there’s always an anxiety spike around that time.
Experienced appellate lawyers typically don’t do that. They certainly know that if they need to do something, even approximating that, they need to be calling the clerk and letting the court know. If you’re reading and you don’t know how to do that, I’ll speak on Kirk’s behalf here and say, “Please let the court know if you’re going to drop an emergency on them late in the afternoon on a Friday.” Don’t do it, preferably, but it’s best to communicate.
We are more than willing to stay late. For us, it’s more of we need communication and to be able to plan, logistically because it’s like, “Are you talking about, you’re going to file something at 5:15, and we need to ask our deputy clerks to stay a little late? Are you going to file something at 7:00, 8:00, or 9:00?” There was one situation where a building was going to be demolished, so they said they needed an emergency order. That ended up having to be filed at 10:00 PM or 11:00 PM, so if there’s something like that, that’s an unusual situation.
We had a judge available and we had someone available to help process it through us. The other thing is that if you’re going to file something that’s an emergency motion, sometimes we’ll get calls where it’ll be around, let’s say, 3:00 PM and the clerk’s office will let me know, “Someone says they’re going to file an emergency motion.” I’ll be like, “Are they asking for an extension?” They’ll say, “No. They’re just going to file it.” I’m like, “Let’s keep an eye out.” If 5:00 PM will roll around and we haven’t heard anything, I’ll have them reach out and say, “Call to make sure.”
The attorney will be like, “We’re going to file it, but we’re going to file it tomorrow.” First of all, if you’re going to file it tomorrow, how much of an emergency is it? For me, an emergency is you’re going to file it and it either needs a quick turnaround, or it can be filed outside of regular business hours. If you’re calling and saying you’re filing an emergency motion, and it turns out that you can wait until tomorrow, let us know because it’s a matter of logistics. We’ll look at it, but we need to know.
I would imagine that a lot of practitioners and court staff have different definitions of what constitutes an emergency.
There’s that. We’re talking about the Friday at 4:50 situation where somebody has forgotten that there’s a hearing on Monday and all of a sudden, it’s an emergency and we need to stop it. There may be a legitimate basis for doing that, but generally things that are calendar issues or things like that aren’t necessarily emergencies. We’ve had a situation where buildings were going to be turned down and we needed to issue an emergency order to prevent that from happening.
We’ve had depositions where there’s a privilege issue and we’re running up against a statute of limitations. There’s a question of whether someone needs to answer that question by 5:00, or otherwise everything expires and will blow a statute of limitations and someone loses a claim. To me, those are a little bit more of an emergency. If you call it an emergency, we’ll look at it. It doesn’t necessarily mean it’s going to be an emergency. It doesn’t necessarily mean we’re going to rule on it. It’s a flexible standard but generally speaking, forgetting about a hearing on Monday is probably not as much of an emergency as the other things that I talked about.
It’s probably hard to come up with a real litmus test for an emergency, but a building getting knocked down is a good thing to consider. You’re thinking about things that can’t be undone. The privilege, like you point out, destruction of property and when the bell’s been rung, you can’t unring it. I would encourage lawyers to think long and hard before filing something as an emergency. Your client is facing the loss of some right that can’t be remedied. Maybe that’s the litmus test. I hadn’t thought about it but maybe.
We talked about this before, but the good news for those of us in a lot of part of the state is you have an extra hour with the Eighth Court. You can go until 5:55 Central Time before you file your emergency motion on him right before the end of the day because you all are in a different time zone.
That’s true, but that can cut both ways. I remember there was one time when we did have a mandamus filed by an attorney from outside the time zone. I don’t remember if it was Houston, Austin, or Dallas, so I won’t speculate as to which city to blame for this. They did inform us, “We’re filing this mandamus and along with a mandamus, we’re requesting emergency relief.” I don’t even remember what the relief they were requesting was, but they had specifically said, “We need a ruling by 5:00 or 5:30” or something along those lines and in the context of something that had made sense.
I told the clerk’s office, “Don’t worry, I’m going to run this by the judges to see what they think. We will get them a decision, but I need to do a workup.” This was filed maybe around, say noon. I was like, “I’m going to get a workup. I’m going to get a grasp on this. Run it by them and let them get a grasp on this and we’ll get a decision.” I want to say maybe around 2:30 or 3:00. We start getting a lot of antsy calls, very sharp-toned to the clerks.
They’re upset because they still haven’t gotten a decision and I’m like, “It’s only 3:00. We’re working on it,” and we already promised them that we’ll get them something by 5:00. At 3:30, we get a call saying, “If the court doesn’t issue anything by 5:00, we’re prepared to take this to the Texas Supreme Court. We’ll bypass you because we need a decision now.” The clerks were like, they are getting snippy with us and rude. At this point, I’m like, “One, the court acts on its timeline. We don’t act on your timeline, but we’ve also told you we’re going to get it to you by 5:00. I don’t know what the deal is.”
At 3:45, we noticed that a mandamus had been filed against us in the Texas Supreme Court because we hadn’t ruled yet. Finally, I figured it out and I was like, “This is a time zone issue because in Austin, Dallas, or Houston, it’s already 4:45, but here it’s 3:45.” It’s one of those logistical things that you don’t think about, but if you need something by 5:00 Central tell us by 5:00 Central or otherwise, it’s going to be 5:00 Mountain. It can be an advantage if you need the extra hour, but otherwise it can present a problem.
I’m thinking about those midnight e-filings which, thankfully, I’m doing fewer of these days. In Central Time, if I went to file something, it’ll say, 11:45 PM, technically, I’d get that extra hour. I don’t want to influence anyone to push it that close.
The rule says, “It’s midnight, wherever the court is sitting.” That’s exactly right. It’s 12:01 Central and you’re like, “I forgot to submit it. It’s still 11:01 El Paso time.” Don’t quote me on that, but I’m sure it would still be timely because it’s based on wherever the court is sitting.
That’s right, but let’s not encourage anyone to push an envelope.
Get it on time. I’ve had situations where someone will file something at 12:02. It’ll be that they clicked it and thought it went through, but it didn’t get in until 12:02. The next morning, I’ll have a Motion for Extension of Time on my desk and I’m like, “What is it talking about?” It’s asking for a two-minute extension of time to make it timely because when they clicked on the electronic submission, it was midnight, but the time it made it through all the pipes, it was about 12:02, and it was technically late. I’m like, “Really?” I’m like, “We got to handle this. Let’s dot I’s and cross T’s.” These are the things that can blow up in your face.
These are details that you don’t think about necessarily.
You mentioned Chief Justice McClure and she’s now departed from the court. Former Justice Rodriguez is now the Chief. It’s a three-judge court and you’ve got a couple of relatively new faces. One is Justice Alley, who joined the court in 2021. Justice Palafox has been there for a few years now. You’ve been around the court longer than two of the sitting justices. How’s that been going through the transition?
I will say off the bat, Justice Alley was previously the Chief Justice and now he’s Associate Justice, but even though he’s been a Justice for maybe for about a couple of years, he was Chief Justice McClure’s Staff Attorney for a few years before then. The good thing was, he already knew our procedures. He’d done the work of a line attorney, so he is sympathetic to what goes in. He knows what goes into an opinion. He’s intent on being a good writer. In terms of getting him up to speed, there wasn’t a lot to worry about. He had been part of the court community before, so it wasn’t a super rough transition.
I will say, Chief Justice McClure, who I love dearly, is an amazing judge and Family Law practitioner. When she retired, having to deal with that transition was a little bumpy in terms of trying to manage okay. We need visiting judges to fill out the third spot because, at bigger courts, you rotate somebody in, but then we’re trying to figure out okay, “Who is on deck as our visiting judges? Who can sit on this?” With a three-judge court, a lot of the bigger logistical issues that bigger courts don’t have to deal with turn into issues with us, but we managed to get through it. It’s been fairly smooth. Chief Justice Rodriguez is pushing us to clear out our backlog, so we’ve made some good progress on that. In a way, the Coronavirus, slowing things down, has helped us. The number of filings has fallen dramatically, which on the one hand is bad but on the other hand, is good for us at the court because it helps us clear out our inventory.
It would be the right time to give a shout-out to a friend of the show, Judge Roy Ferguson, who I noticed as one of your visiting Justices and has told us how much he enjoys doing that.
He’s great. I love Judge Ferguson. He’s got the best stories. He’s super smart too. He’s always a pleasure to have on our panels.
There were a few other unique issues about the Eighth Court that we thought we might explore with you. Aside from being in a different time zone from the majority of our state, it is one of the few courts, the Corpus Christi Edinburg Court is another, that is in a border town. El Paso’s more than just a border town, but I assume that being located where it is there are some unique issues involving the border and transnational or international matters. Is that accurate?
I would agree with that. Our docket tends to be a little bit smaller. We may not get a lot of the special appearance issues that you get out of Houston and Dallas, but the ones that we do get are fairly interesting. A few years ago, I worked on a case that involved a traffic accident in Mexico, but the tire had been sold in the United States. The suit was brought in El Paso, so the big question was, “The tire may or may not have been sold in Texas. The accident happens in Mexico. The people who are in the car are El Paso residents. Where does this go to court?”
We’ll get things like that. I know that Chief Justice McClure had worked on a divorce case involving a prenup signed in Mexico for a couple that was a prominent couple of Mexico. They’re wealthy. The wife filed divorce in the United States and the question was, “How do you interpret the prenup? It involved going through Mexican law and things like that.” She and her husband both know a lot about the Mexican Family Law system, so it was an interesting case. We’ve had cases involving injunctions where someone will take documents from a business in Mexico and here in the United States. They want to try and get them back to Mexico.
It’s not happening all the time, but I will say that we do get some juicy, international issues. Some of them are logistical challenges. We’ve had cases where it’ll be a juvenile defendant and they’ll cross back and forth between El Paso and Juarez. The court will be trying to get ahold of them and they’re not able to. Even the attorneys aren’t able to get ahold of them because it’s like, “We don’t know they’ve gone back to Mexico.” We do see those. Sometimes we get child abduction cases. We have a mix of some interesting issues that pop up.
You also cover a lot of important oil and gas territory too. I bet you see a lot of those issues as well.
I would never have thought that I would have learned as much about oil and gas as I did. I didn’t go to law school in Texas. I went to law school in DC. There’s not a lot of oil out in DC, so I came back. I had to learn oil and gas for the bar. I was like, “None of this makes any sense. Thank God, I’ll never have to see this again.” I started working in the Eighth Court. We have all kinds of complicated oil and gas leases.
One of the first cases I didn’t work on, but it was at the beginning of my career with the court was, some company was releasing carbon dioxide as a byproduct of oil and gas production. Originally, no one cared what happened to the CO2. It was just vented out. As fracking became more common, all of a sudden that CO2 had value, and everyone was scrambling to try and figure out under this contract that was probably written in the 1930s or 1940s, who was entitled to the CO2. That was not something that had ever been contemplated by the people who signed the lease because back then, you vented out the gas, but it turned into a big controversy. It was an interesting case, but we do get a lot of oil and gas cases.
It’s not always from counties that have a lot of population. Loving County is the least populated county in Texas, if not the United States. It’s in our district, but we do get a fair amount of oil and gas litigation disproportionate to the population because Exxon Mobil has a pretty big operation out there. Even though there are not many people living out there, we do get a lot of cases coming from these smaller counties. We call them the Down District Counties.
For a number of years, your court was a transfer record from a lot of different courts. Is that still the case?
Yes.
Do you see probably a little bit of everything coming from some of the other courts of appeals throughout the state?
That’s true. We’ll get transfers from Fort Worth. We’ve gotten transfers from Austin that are those big unwieldy administrative law cases, the specialized ones for Austin. We got them and they were like, “What is this? I’ve never seen this before.” We do get a little bit of everything. The transfer cases have been controversial. I know that during the last legislative session, that was one of the issues that had come up during redistricting, in terms of trying to figure out, “How do we equalize the case numbers among the justices?” Right now, the way that it works is that the Texas Supreme Court tries to make sure that each Justice in the state system has relatively equal amounts of cases.
There’s a formula that they use. It’s arcane. I’m not even 100% sure. Sometimes I wonder if it’s incense and astrology in terms of trying to figure out how we equalize these cases. We do tend to get transfers. The number of transfers went down during COVID. The transfers have started up again, but we’re always cognizant of the fact that when we hear a transfer case, in a way, we’re almost sitting as a panel of the original transfer court. The rules of appellate procedure require us to apply the precedent of the transfer court, where it would conflict with our own. We’re always cognizant of that, we’re always trying to make sure that we’re faithful to the law of the district from which the cases come.
How do you approach that in an area where maybe the law is unsettled? Say that you have a transfer from the Third Court and the Third Court hasn’t decided the issue. It would be an issue of the first impression on the Third Court. Do you fall back on the proverbial law of Texas, which is what I was always taught? There is only one body of law. There’s not fourteen bodies. As we all know, it’s most helpful to cite cases when you appear in a particular jurisdiction from the Court of Appeals that presides in that jurisdiction. What do you do in a case of first impression situation, if you can answer?
In a first impression situation, we treat it like we would any other case of first impression. If there are guiding case laws similar to the transferor district that’s pointed to our attention, then we’ll apply it and try to analogize it as best as we can. If it’s a statutory construction issue, we treat it like a regular statutory construction issue and say, “Let’s go through plain reading, canons of interpretation, and giving effect to all parts of it.” It depends on the situation, but if it’s an open question, we treat it as an open question.
The good thing is, 90% of the law is the same among the districts and people may push back on that. For the most part, a lot of things are similar enough to where you can make an eerie guess if you want to call it that for the other districts. We have had situations where we had these two cases got separated and they were administrative cases. Austin had a group of energy companies having to deal with a specific type of equipment. Whether there was a tax benefit associated with that, Austin had one group of applicants. We got another group of applicants by accident, so it did end up being a split, where Austin came out before the Eighth Court came out one way on the question of law. The majority at the Eighth Court came out a few days later. It’s another way on a question of law of seeing a distinction. That ended up having to go to the Supreme Court and getting resolved. That was one of the cases that was going to be resolved by the Supreme Court anyway.
If I remember correctly, we had a case, I won’t say out of which district, but we had made an “eerie guess” of what they were going to do. A couple of years later, that court took up the same issue, and they’re like, “We recognize that the El Paso court came to this decision, but we decided that we’re not going to agree with it.” They went another way, so they created a split with us. As far as I know, that never went to the Supreme Court. I still don’t know what value that has as precedent, whether we rely on that as precedent. If it’s an errant decision hanging out in the ether. It’s a weird situation, but I will say those situations are incredibly rare.
That’s an appellate lawyer’s dream right there. Having an eerie guess from one court sitting as a transferee court, and the actual transferor court comes out a different way, you can do a lot with that.
I don’t know what the answer to that is. That’s above my paygrade. That’s for the Texas Supreme Court to decide if they ever decide they want to wade into that. I will not speculate.
One of my recollections, and I may be wrong about this, was that your court for a long time has embraced video argument as an alternative. You guys were positioned well, at the beginning of the pandemic, you already, at least in practice, had some familiarity with video arguing.
When I first started in the court, we did have a giant TV on what looks like a gallows and it has a camera. It was Cisco equipment. At the time, it was super high-tech, and it would zoom in on a Justice who was asking a question. We would use that for some of the transferor cases to where people could be in Dallas arguing a case and we would use the video conference to avoid having them travel out to El Paso. A lot of people, even those who work in the court system, were unaware that video conferencing has been an option since at least 2010, if not earlier. That’s in the Government Code that the Chief Justice of each Court of Appeals has the discretion to decide whether they want to hear oral argument by video conference technology. We were one of the only courts. The Thirteenth Court may also have because they’re a big district, but we were one of the only courts that embraced that for logistical realities.
I do remember a funny story when I first started. The youngest attorneys are the ones that are required to run the buzzer during oral arguments. For the first 2 or 3 years that I was at the court, I was the one who was running the buzzer. During the transferor cases, they would roll out the giant TV and put it in front of the bench. One of the first times I saw it, our clerk at the time was trying to turn on the TV. He kept saying, “The Court of Appeals is now in session. The Court of Appeals is now in session.”
At the other end, they were at the SMU. Somewhere like a courtroom or whatever. You could hear the crowd going on in the background. She kept saying, “The court’s in session.” It’s like, “Court’s in session. Shut up now. Why is there so much noise going on?” It turned out something was on mute. Once they realized it was on mute, everyone got quiet, and the session started. It was an aside afterward, “Thank God. We don’t have to do this every time.” COVID hits years later and we’re like, “At least we know how to handle the, ‘You’re on mute,’ problem.”
Having already been used to video conferences for oral arguments, that was maybe another way the Eighth Court was already prepared to deal with the pandemic. Did you all transition pretty quickly into handling arguments over Zoom? How did you do it?
The transition out during COVID was fairly quick. I want to say maybe about a week or two ahead of time. Justice Rodriguez is concerned about the COVID stuff. None of us knew how serious it was going to be, but it was one of those, “Just in case we may need to evacuate the courthouse or whatever, let’s come up with a continuity plan.” We started looking into that. Luckily, we had done some preparations in anticipation, so when we did go into lockdown, the court was able to go fully remote. It was a little scary at first for people, not necessarily, because we didn’t have the technology. It was a new process, but we were able to do that.
Jeff Alley was the Chief Justice at the time and he adopted Zoom oral arguments fairly quickly. We were one of the first courts to do it because his attitude was like, “Just because we’re in a pandemic doesn’t mean that the wheels of justice have to stop.” We did start doing oral arguments and at first, it’s weird for everybody involved. One, it’s an unusual situation globally going on. Two, there’s a lot of challenges that come with losing some of the physical elements of not being in the courtroom. People are used to projecting their voices, so we’d have a lot of people yelling into the microphone. It’s like, “Calm down. You don’t need to project. We’re not ten feet away.”
The other thing is that now we all know this, but at the beginning, we didn’t know it, but on Zoom, the judge’s faces are right in your face. When they’re sitting 6, 10 feet, or however many feet away and elevated, you can see their faces, but they’re not super close. Whereas on Zoom, every facial tic, eye roll, smirk, or whatever is available. That cuts both ways because I’ve heard it at CLEs, “Counsel, don’t roll your eyes when opposing counsel says something because it’ll show up on Zoom.” Sometimes you have to remind the judges, “You’re on camera, too. Make sure you’re stone-faced and that you don’t tip your cards.”
Is your court looking to go back to in-person? Are you going to continue to offer Zoom as an option? Have you decided yet?
We’re still on the fence about that right now. We do have Zoom sessions scheduled. We do have court staff doing a mix of remote and on-site situations where some people are going to the office. Some people are still working remotely. We do have some permanent staff that we’ve hired, temporary staff, attorneys that are fully remote and don’t live in El Paso. We’ve hired outside of El Paso, so that’s been good for us because sometimes it’s difficult to attract people to come to El Paso if they’re not from here.
I love El Paso. We’ve had some great personnel come out to El Paso, but usually, they’ll stay for 1 or 2 years and treat it like a federal clerkship. You’re here for two years and you’re gone. Being able to hire people out in Lubbock, Houston, or the Austin area has been great for us. In terms of oral argument, we’re still up in the air. We’d like to go back to doing oral argument in-person at some point, but I know that Chief Justice Rodriguez does want to retain the teleconferencing as an option.
Some attorneys also want to retain that as an option. At first, there was a lot of resistance to teleconference arguments, but once we got past the jitters, some people were like, “This works out fairly well.” It’s a lot better than the United States Supreme Court. I don’t know if you guys have listened in, but it’s Round Robin. It’s the worst conference call ever where everyone gets 30 seconds and nothing gets decided on. Whereas Zoom is a pretty good balance, I would say.
The El Paso court, in my recollection, has occasionally sat in other locations. I recall, specifically, it was Midland that was going on pre-COVID times. Is that something that the court was regularly doing before the pandemic? Maybe we could see that happen again afterward?
We’re allowed under the statute to sit in any one of the seventeen counties over which we have jurisdiction. Occasionally, I want to say maybe we would do it once a year, once every eighteen months. We would go to Alpine or Marfa. Judge Ferguson would host us out there in his courtrooms. The one in the one in Alpine is a little small, but the one in Marfa is like To Kill a Mockingbird, where they redid it, and they have the railings up top. It’s fun to go out and do that. The judges have to make accommodations in terms of how they sit because the Court of Appeals has a bench and three judges. It’s like, “You’re in a trial court.” The Chief Judge sits where the trial judge would sit, and someone’s got to sit in the witness box and where the court reporter would sit.
There are some logistical challenges, but it’s nice. You get to see all these different courtrooms. You get to be out in the middle of the desert. Going from a big city, 650,000 people, to a smaller town and getting a real feel for some of these places where we’re deciding cases, but we don’t know much about it. It’s nice. Judge Ferguson is great. He always shows us great hospitality. It’s a good opportunity. We do like to travel, and that’s one of the things that I hope we get to do again real soon.
I wanted to take advantage of the fact that we’ve got an expert in mandamuses and motions for emergency relief, which we covered to some degree earlier. We were chatting before that we like to talk more about original proceedings on the show. We tend to talk about general concepts of advocacy, oral argument, briefing, and so forth. Have you all seen an uptick in mandamus filings in relation to ordinary appeal filings during the pandemic? How has it come about?
I would say that our mandamus filings are probably normal. I wouldn’t say there has been a spike. I had expected there to be people challenging the emergency orders, trying to force a trial, or things like that, but I was surprised. I did a CLE for the appellate sections Diversity Committee where I went through the mandamus filings and thought they would spike up. For the most part, people accepted the emergency orders and haven’t brought a lot of challenges to those necessarily except a little bit more recently. For the most part, our mandamus filings stayed steady.
If there’s anyone who’s in a position to talk about the differences between mandamus and ordinary appeal, Kirk, you’re the guy. Can you run through a couple of the major differences? We know what the standards are generally, abuse of discretion for which there’s no adequate remedy at law. In terms of, let’s say, advocacy, how you present the arguments in written form, how you present the arguments, maybe even at oral argument if you have oral argument on mandamus. That’s pretty rare in the third court. What would you say would be the big differences to think about as advocates?
The big thing to watch out for in original proceedings is not necessarily the first prong of the abuse of discretion but the second prong of adequate remedies by appeal because that’s where all the litigation has happened. After the Prudential case, it’s a lot more subjective. There are a lot more different factors. The big thing is going in and explaining why there’s no remedy by appeal or why whatever remedy by appeal you have is inadequate. That’s number one because a lot of the mandamuses will get kicked out.
I’ll give you an example. This has been a recurring issue and it’s not settled. When the trial court grants or denies a motion for a temporary injunction, there’s a right to interlocutory appeal from that. Sometimes we’ll get mandamuses filed where they’re trying to challenge the temporary injunction, but there’s a right to interlocutory appeal. That’s been a recurring issue. If you can challenge us by interlocutory appeal, that suggests that you have an adequate remedy. Why is it that you weren’t able to take that appeal timely? You have to explain the extraordinary circumstances because otherwise, that’s going to be an automatic knockout that you can’t get past. I see that as step one. Is there an adequate remedy by appeal?
We had a weird spate of criminal discovery cases that came up, which is unusual because there’s not a lot of criminal discovery going on. The Code of Criminal Procedure does allow for limited discovery. We did have a group of those come up. For example, one case was sexual assault. The defense was trying to use a criminal subpoena to get access to the victim’s cell phone. Under the rules of civil procedure, there’s a lot of details when you can get access to third-party materials. There’s not as much in the Code of Criminal Procedure. We did select those for oral argument. We do get some of those.
In terms of advocacy, I would go back to remember the logistical concerns of the court. For example, if you have a discovery issue, you’re trying to see if there’s a privilege or not. You’re running up against the statute of limitations. You need a decision by the end of the week. We had a case that involves the closing of a house. It’s like, “The closing date is on Friday. Today is Monday.” Make that clear in your petition. If you want to cover all your bases and be safe, you can even file a motion for expedited consideration or something like that. At the least, communicate that to the court and say, “We’re looking for a decision by X date.” Otherwise, it may end up getting lost in the fray.
For a mandamus with a request for emergency relief, oral argument as a practical matter is probably off the table. You’re not going to have the time.
Theoretically, it can happen, but usually, there’s not enough time to do that.
The lesson is to put your best foot forward in your mandamus petition and your motion. Make it clear to the court what it is you want the court to do and why it’s important enough to grant emergency relief on top of any potential relief on the actual writ.
On the portion dealing with emergency relief, it’s a weird situation because that’s the shadow docket. It’s the US Supreme Court shadow docket where you have all these ancillary orders that come out and they’re not case law, but they’re kind of case law. You can interpret what the court is saying or trying to read the tea leaves. There’s not a lot of case law specifically interpreting the rule that deals with emergency relief for original proceedings. There’s been some stuff that’s come out for the Texas Supreme Court that has touched on that issue. Sometimes, we are in a position where we have to deal with complicated motions on the emergency relief itself.
This was a COVID issue where El Paso County had issued a stay-at-home order and the governor had issued a superseding open-up order. That resulted in temporary injunction litigation that was going on that came to us. That was an interlocutory appeal, but it’s the same thing where we have an emergency motion in the meantime to grant an injunction that the trial court had denied. There was a lot of briefing on that specific point alone. There were orders that were more detailed than what would you would normally get granted or denied. There was even a dissent. Don’t necessarily look at the opinions. Sometimes these orders on the shadow docket can have little nuggets of information that may prove useful. Unfortunately, those don’t always get picked up by Westlaw.
Emergency orders are a rich area for that sort of thing. Another one that comes to mind is motions to review supersedeas orders because it’s the same deal. Those can generate mandamuses, particularly in the Supreme Court. Having seen some of that myself about these orders not being available on Westlaw, it’s a little frustrating when you know the court has decided an issue and you don’t have anything good to cite to.
They’re extremely difficult to find if you’re not on Westlaw and you have to go through the Texas Supreme Court search where you’re trying to go through the documents and you’re trying to find injunction. You have all this stuff pop up. It’s not easy to do. There hasn’t been as much interest in the shadow docket at the state level as there has been at the US Supreme Court level. I read SCOTUS blog every morning. I know that there are all kinds of law professors trying to interpret even the little standard two-line this-motion-is-denied thing. They’re like, “What does it mean? Who’s voting this way?” There’s a large body of speculation from these professors and they’ve picked up on important things.
With the COVID stuff, a lot of important decisions have been made on these interim orders by the Supreme Court. You have to interpret these orders that may or may not have precedent. You don’t even know because they’re interlocutory. That’s problem one. Problem two is if you can’t find these, how useful are they? That would be a good area of focus for someone interested in writing an article or something like that on the shadow dockets and how they work for the state of Texas.
That’s a great topic.
Pam Baron talks about the shadow docket sometimes in her CLE presentations. Don Cruz might also.
At the Texas Supreme Court.
You don’t think about it in the intermediate courts that much. These are some great examples that we’ve talked about, ways that can happen in important areas that affect the litigants directly. From the lawyer’s perspective, you want to be able to cite precedent to the court. You agreed that this is what TRAP 24.2 meant in this case but that rarely comes up because that’s an ancillary issue to the actual meat of the appeal, the merits.
Let’s say you have an ordinary appeal. You have an interlocutory appeal. You have an original proceeding. The interlocutory appeals and the original proceedings have rules that specifically allow for emergency relief to happen. Whereas in an ordinary appeal, there’s no mechanism in the rules to get this emergency relief. The scope of relief that can be granted on an ordinary appeal, the way I understand it, is more limited because there’s not a rule specifically authorizing it. You have to fall back on the court’s inherent injunction powers. Even then, the Court of Appeals only has the power to issue an injunction that would go to protect its own jurisdiction.
In the example I gave of the building coming down, the reason that the court is able to issue an injunction there is because it would moot the subject matter of the appeal. There’s more leeway in an interlocutory appeal and an original proceeding, which is why a lot of people file original proceedings that may not go anywhere. They want to get the foot in the door to get a stay knowing that the mandamus is going to fail on the merits, which gets annoying for me. I’m like, “I see what you’re doing.”
The powers for interlocutory appeal and original proceedings aren’t as clearly defined. There is even an open question about whether they necessarily follow the standards of an injunction in the trial court and whether that is the framework you use, whether it’s broader. I don’t remember the specific language, but it says something like, “Whatever necessary order.” Does that mean you have to follow the injunction standard or don’t have to follow the injunction standard? There are a lot of open questions. It’s a ripe area for litigation. Fortunately for me, because I don’t want to have to write all these five-page orders. Unfortunately, there’s not a lot of clarity on it.
The Supreme Court handed you all some interesting issues with that Geomet case and what you have to do with temporary orders. They’re still not well fleshed out.
I would agree with that.
One thing that’s worth mentioning before we move on from mandamus that a lot of trial lawyers overlook sometimes is they’re focused on, “Well we got a bad outcome, we need to get this stayed.” They forget that the only way to get temporary or emergency relief in the court of appeals is by filing your motion at least concurrently, if not after you file your mandamus petition. That is one instance in appellate practice where it most closely resembles trial practice in terms of the timelines.
If you’re dealing with a true emergency, for example, the building that’s going to be knocked down, you’re right in there with temporary injunctions and TRO in terms of the level of intensity that you’ve got to operate with. I’ve seen many instances in which you got to get a mandamus petition on file quickly. It hasn’t happened often, but when trial lawyers ask or worse yet, take action like file an emergency motion without a mandamus petition, I can tell you right now exactly what the order is going to say or at least the thought process that the courts go through, “We can’t grant you a relief without a mandamus petition on file.”
People don’t understand that. It’s funny you mentioned that because that happened. The front desk lets me know that there’s an emergency motion has come in, and I’m like, “What case is it?” They’re like, “There’s no case for it.” I’m like, “What are you talking about?” They’re like, “They filed a motion.” I was like, “Have they filed a mandamus petition?” They’re like, “They said that they’re going to.” I was like, “Tell them that they can file this motion once they filed the mandamus petition because we don’t even have a case number open yet. I don’t know what’s going on.”
I understand and I’m sympathetic because when there’s a fast-moving situation like that and you say, “You have to file a mandamus petition before you file the emergency motion.” You’re there trying to type something out, and you may not be able to get everything you want in that original mandamus petition. Your goal is to get that stay. It’s a balancing act of how much you put in there, how bad you want to stay. You’re willing to risk asking the court to let you amend the mandamus petition later to include things that you may have forgotten. The court doesn’t necessarily need to allow for an amended mandamus. As far as I’m aware, that’s still a discretionary issue, but maybe not.
It probably is. Having looked at that issue before, I don’t see anything in the rule prohibiting an amended mandamus petition. As long as you’re seeking a review of the same order, you could amend it. What I’ve seen come up that’s even more problematic is if the orders in the trial court amended and you got a mandamus petition on file, then what? Is it an amended petition or do you refile with a new mandamus petition to attack that new order? My sense of it is if it’s a different order, you need to file a new mandamus or amend to make clear that you’re applying your petition to the new order.
I would agree with that. It’s hard to know because you have to look at the order and the new order and how they interact. It’s always a good idea out of an abundance of caution to do exactly what you said. It’s either file a new mandamus or file an amended motion saying, “Something’s happened in the trial court.” The other thing you have to worry about is, does this moot your entire petition? If the orders changed, then all of a sudden, it’s moot. You’re like, “Great.” It may be good for you because that was what you were ultimately seeking. It does get complicated fairly quickly. It’s not something people tend to think a lot about until they’re in the midst of it, and then they’re trying to learn how all this emergency stuff works on the fly.
Important footnote there. If that does happen and your petition is mooted, please tell the court.
We’re trying to clear things out. We don’t want things hanging out on the docket. I don’t want there to be a situation where it’s like, “We’ve worked this up.” All of a sudden, they’re like, “Sorry, this was moot two weeks ago.” I’ve wasted two weeks of my time.
Here’s your advisory opinion. As we’re closing up, one thing we wanted to touch on that we’ve talked about with some other guests is diversity. I know you’re a part of the Appellate Section Diversity Committee. Can you tell us a little bit about that committee and what you guys do and that type of thing?
The Appellate Section Diversity Committee, our goal is to try and increase the number of women, people of color, LGBTQ attorneys that are arguing at the appellate level here at the state and nationwide. Diversity is such a huge issue. There are so many moving parts to it. It used to be that we would take CLE to parts of the state that may not have a lot of appellate lawyers, the El Paso area, the Valley area, and then try to use that as the diversity component. We continued doing CLEs, but because of COVID, they’ve gone online. We’ve seen our attendance go up. It’s a challenge to do diversity initiatives in appellate law because, one, it’s such a niche area of law that not a lot of people are interested in to begin with. First of all, you have to have the personality type to sit in front of a computer all day and absorb. You have to be a legal nerd.
Even separate and apart from that, there’s still a lot of issues. For many appellate lawyers, there’s a pipeline. It starts your 1st or 2nd year of law school. Did you get the grades to get on law review? If you got on law review, did you get in with the right firm? Did you get in with the right clerkship? If you have the right clerkship at the district court level, did you get a federal court with chief level? It goes to another firm, so there’s a pipeline. If you’re not at the right moment doing what you need to be doing, you could potentially be excluded from the field entirely.
I wasn’t necessarily the best law school student in terms of test-taking or whatever. Where I did excel was in all my appellate and writing classes. You give me a case. I can sit down, I can research it myself, and come back with something. That was where they’re like, “We don’t understand. You’re way up here on appellate stuff. On the test, you’re doing okay.” It’s because there’s a lot of different skillsets and issues that I don’t think that pipeline we’ve talked about necessarily captures. If you’re not within that pipeline, regardless of whether you are “diverse” or not, it can be hard to break into appellate law.
We’ve had a lot of conversations. We had Juvaria Khan from The Appellate Project on to talk about that. If you don’t even know about the pipeline or that it exists until it’s too late to be part of it, it does erect some barriers that don’t need to be there.
I can say that I’ve been lucky because when I graduated from law school, I did the federal clerkship process. I applied to district clerkships all across the country. I didn’t get anything. There were some state clerkships in South Florida that had shown some interest because I’m bilingual. That didn’t pan out anyway. I got lucky in that I was able to come back to El Paso, my hometown, and work for the Court of Appeals there and be able to go from someone who wasn’t necessarily inside that pipeline and someone living in El Paso.
I love El Paso, but we’re in the middle of the desert. We’re 500 miles from everywhere else. We’re in a different time zone. I came from a law school outside of Texas so I didn’t have those connections, making it even more difficult. I was lucky enough to get this job to where now I’m able to do appellate law, which I love. I was able to get board-certified, serving all these committees, and stuff like that. I was not the traditional student that would have been caught up in that pipeline. If I had not had this opportunity, I don’t know that I would be doing appellate law right now.
Kirk, you’ve been gracious with your time. We’ve gone a little longer than we anticipated going. I enjoyed hearing your insights and your stories. The discussion of original proceedings and emergency motions, particularly, is useful and something that practitioners will appreciate learning about.
Before we go, Kirk, we always like to ask our guests for a tip or a war story. Do you have something you can share with us on that?
I went to law school in DC. One of the advantages of that is that the Supreme Court is right down the road. Our first-year professors had a policy where it was like, “Never skip my class ever for any reason. If you skip to go and watch a Supreme Court argument, we may look the other way.” In my first year of law school, there was this big first amendment case called Snyder v. Phelps involving the Westboro Baptist Church. I don’t know if you guys remember that they’re the ones who are holding up signs out in front of the military funerals saying, “Thank God for dead soldiers.” A lot of ugly and homophobic stuff. The question was whether they could be sued for intentional infliction of emotional distress or whether they had a First Amendment defense to sue.
Our professor reminded us of the policy and was like, “You can’t miss class but if you were to go see Snyder v. Phelps, let me know how it goes.” At 8:00 PM the day before, my friend, Josh, calls and says, “You need to get to the Supreme Court right now.” I’m like, “What are you talking about?” He’s like, “We’ve camped out because we were trying to get tickets to get in the next morning. You need to get here immediately because there’s already a line. Get here now.” I was like, “I don’t have a tent or a blanket.” He’s like, “Whatever you’re wearing, get here.”
I show up. It’s October at night, 40 degrees. We’re camped out in front of the Supreme Court. It was a good little bonding experience because it was a horrible night. It was cold. The sprinklers of the Supreme Court lawn went off at 3:00 AM. No sleep. We’re soaking wet. Finally, they line us up in the morning, and they say, “The first 50 people are going to get floor seats because everyone and their grandma and the Supreme Court bar has called in their tickets. We don’t have as many seats, so the first 50 people get to sit for the whole time. The rest of you have to cycle in and out of the gallery.”
I ended up being person number 52. Half my classmates got to go in. I end up my first time being in the US Supreme Court sitting up in a visitor gallery. They sit me down behind a pillar. I can’t see anything. They’re in the middle of an argument and I’m trying to lean over the side to see what’s going on. They’re asking questions. I was excited to be there. I was 22. I was in street clothes and tennis shoes. I was soaking wet, dirty, and delirious. Finally, after about five minutes, the Supreme Court police was like, “Get up. You got to go.” I was like, “No. They’re doing the rest of the argument.” They’re like, “No. Get up. We got to get the next group of people to cycle in.”
It was funny, but I tend to think about that a lot. Having gone from someone who was a kid who knew absolutely nothing about appeals and showed up to the Supreme Court in absolutely the wrong clothing, the wrong mindset, dirty, cold, wet. It’s been a crazy journey now that I get to be an appellate lawyer. Hopefully, one day, I’ll get to be in the Supreme Court appropriately dressed doing argument as opposed to being sleep deprived and probably smelling like a wet dog.
That’s a great story. Thank you for sharing that.
We’re glad to have you as a guest. Thank you for spending the time with us.
Thanks for having me.
Important Links:
- Eighth Court of Appeals
- Roy Ferguson – Previous episode
- To Kill a Mockingbird
- Juvaria Khan – Previous episode
- https://www.LinkedIn.com/in/gwkirk/
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