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Handling the Texas Supreme Court’s Public Information | Osler McCarthy

Any serious Texas Supreme Court follower knows that the Court isn’t the only institution in that courthouse. Osler McCarthy, the Court’s staff attorney for public information, is another one. Many court watchers wait eagerly on Friday mornings for Osler’s order summary email before reading the Court’s opinions for themselves. But, that position did not even exist before Osler took it on and shaped it into what it is today. In this week’s episode, Osler joins Todd Smith and Jody Sanders to discuss how he came to the job, what he has done in that role, and how he prepares his weekly summary email turning the Court’s orders and opinions into digestible information for even casual readers. He also discusses his background in journalism and how it helps with his writing, shares tips that attorneys can incorporate into their own legal writing, and reveals his future plans.

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Handling the Texas Supreme Court’s Public Information | Osler McCarthy

We have as our guest Osler McCarthy, the Staff Attorney for Public Information from The Supreme Court of Texas. Welcome to the show, Osler.

I’m glad to be here.

If you are practicing appellate law in Texas and even if you don’t practice appellate law, you have probably heard Osler’s name. Aside from Chief Justice Hecht, Osler is the voice of the Texas Supreme Court. He communicates on behalf of the court. Many of us get his weekly emails, which contain summaries of the court’s opinions and notifies us of the Supreme Court orders every Friday shortly after 9:00 AM. He’s a well-known figure in the appellate community in Texas. We are glad, Osler, that you took the time to join us. One thing that we don’t get to do, especially in these times, is we haven’t run into you at a function. I might see you around town here in Austin. Allow our readers to get to know you a little bit. Tell us a little bit about where you come from, your educational background and maybe your early career.

I grew up in Plainview between Lubbock and Amarillo. My father was an OB-GYN. He was the first certified OB-GYN probably from Albuquerque to Fort Worth after the war. I graduated from Plainview High School and went to Austin College in Sherman. After Austin College, I went to the University of Missouri for graduate school in journalism. I got what I wanted out of Mizzou without the degree. I came back to Sherman.

I was a broadcast major and I was telling the PR Director at Austin College how I had a professor at Mizzou who told us that if we didn’t find a broadcast station that cared about and knew what it was doing, then get a job with a newspaper because you learned more. I told my friend that and a moment later, he was on the phone setting up an interview for me at the Sherman Democrat, the paper we used to laugh at when I was living in the dorm.

There I was, a few months later, working with the Sherman Democrat. I spent about 2.5 years at the Democrat. Later, I went on to Temple as the city editor and working for a friend of mine that I worked with at Sherman. I went on to Gonzaga Law School because I always wanted to study law. My advisor at Mizzou was a lawyer and journalism professor and I decided that’s what I wanted to do. I went to Mizzou and left because a friend of mine offered me a job in Temple. I was hired in Spokane where, incidentally, Gonzaga had a part-time program day or night. As best I could tell, it was unique because I could go to school day or night in a part-time program and that fit newspaper hours.

At the time, Spokane paid well for newspaper work. I thought, “This will be good. I can pay my tuition as I go through.” I didn’t get started on it before a friend of mine hired me in Kansas City. I went to Kansas City and spent six years. I had a great experience. I had a great newspaper job. I came back to Spokane when I decided that I still wanted to pursue a law degree. I started part-time and did that for two years. I was newly married. I decided, “This will be going to take a little bit longer than I had anticipated.” I quit the newspaper job and finished up almost on time with the full-time class that I entered with. It took me a summer more.

I clerked for the Washington State Supreme Court for the Chief Justice. I came back to Spokane, set myself up in my basement and called myself a criminal appellate defense lawyer. I did that for about three years and then decided that I was going to starve. We had a new child. I was probably the only person in journalism who saw more profit there than there was in the law. I came back to journalism. A friend of mine hired me in San Bernardino. I was sentenced to nineteen months in San Bernardino, Southern California. Then I fled to the Austin American-Statesman. When this job was created, I interviewed and was hired as the first person in the position.

Chief Justice Phillips had decided that the court needed somebody to handle public information. He expected this influx of public information requests that never materialized. I decided it was my job to design. What I needed to do was to try to inform the press about what it was about appellate law and decision making. That was the source of the summaries. The problem was that Chief Justice Phillips wanted summaries of everything so I didn’t favor anything. Instead of me making news judgments and summarizing opinions that I felt more newsworthy, I was summarizing everything. From that, I would like to say that Bill Powers heard about my summaries and said, “You put me on that list.” That’s a bit of an exaggeration but from there, it took off. The focus on the press was long since buried. Now I have, as I like to say, 2,800 of my best friends all by word of mouth.

That’s the number of folks on your email list, 2,800. For clarification, you’re talking about Bill Powers, who was the dean at UT Law School at that time.

In my last position at the Statesman, I covered the courts. I got to know Powers through that. Also, my uncle-in-law, my wife’s uncle was Bob Dawson.

Dawson was the author of a big criminal treatise. Those are certainly some players in the Austin institutions, UT primarily. Austin then was a little bit smaller town than it is now. Everyone still knows everybody here seemingly anyway. I’m curious. There had been some change in the Public Information Act or something and Chief Justice Phillips was concerned about getting a bunch of PIAs.

people sitting at a table in a meeting

Public Information: The problem with the court is that everybody looks at somebody new and gives the task to them.

They implemented Rule 12, Rules of Judicial Administration, which was the functional equivalent of the Public Information Act for courts. Things were tense back in those days if they are not still. The plaintiff’s bar, personal injury bar and the court were at each other’s throats. One of the things I was trying to do is communicate with both sides and say, “This is what the court has decided. Here’s some of that reasoning. Here’s it holding. You guys decide for yourselves rather than run with a bottom-line holding and start cranking out fax missives to protest or to applaud what the court had decided.”

This was your job to create. Aside from doing opinion summaries as that evolved rather than being selective as you pointed out to summarizing every opinion from the Texas Supreme Court, what other things did the job take on as far as duties over time?

The problem with the court as I came to realize is that everybody looks at, “Here’s somebody new. Let’s give it to Mikey.” I was doing a lot of things that were not public information. My position was shared in the beginning with the Office of Court Administration. I was doing some PIO stuff for them. After two years, the half funding that OCA had contributed to my position went away and the court assumed all funding. The job has evolved helter-skelter. I have been the court’s photographer. I don’t know what other hats I have worn. A lot of them have had nothing to do with public information. There was one thing I was talking about. I’m walking in the door before I can find where the bathrooms were and somebody said, “Why don’t you recruit law clerks?” I did that for a little while and then that disappeared. Whatever we want Mikey to do, Mikey can do.

The staff attorney at-large roving commission.

It is a little tough when you are answering to all nine of the justices. I suspect you also work closely with Chief Justice Hecht and with the predecessor chief justices as well.

What is your process for doing the opinion summaries? I know that is the thing that you are most well-known for. How do you handle that each week?

Not well.

We should preface that, Jody, by pointing out that the court is winding up its term and there’s a certain amount of pressure on the Supreme Court now. For a couple of years, it has cleared its docket of argued cases.

We are recording this in late June, and I don’t have it in front of me but the court put out 8 or 9 opinions.

I counted sixteen that were decided. Several of those were PCs that were routinely spun off of In re Allstate. It’s somewhere around twelve but probably ten of them were significant.

All that’s to say, Osler has been a busy man for a while because the court has been trying to get those orders and opinions out and the argued cases and the companion cases. That has been a steady stream. What is the deadline by which the court tries to accomplish that? Remind me.

The last Friday of June.

We are doing this on June 25, 2021. By the time you read this, you will know that there will be no more Texas Supreme Court opinions, at least not issued in the ordinary course on Friday orders. Is that right?

Not on argued cases during the term. If an emergency comes up, it will be addressed. One time, the court issued a school finance case in the middle of summer so it can happen.

That’s an exceptional situation though. School finance, we have talked about that some on this show. That’s its own animal. You talk about the importance to the jurisprudence of the state, the importance of the operation of the state period. The court will deviate from its ordinary schedule somewhat and handle a case like that. I didn’t mean to sidetrack Jody’s question. He had asked about your process for creating those opinion summaries.

It has varied, Jody. There was a time when I tried to rework everything the court was issuing. Not so much in my own words but to grasp it and try to make it understandable. Now I’m more likely to pick up chunks. I will put them down in one file. I will massage them. I’m always looking at what I think is first-year law school stuff. What’s the issue? What are the pertinent facts? What’s the holding? How did the court get to its holding?

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Partly out of habit and some out of necessity, I will work on those generally late on Thursday night and sometimes all night. I haven’t pulled a true all-nighter in years, but I used to be down there when we had hands down as we did now. I would spend all night on it. The executive assistant to the court would come in and there I was still in my clothes from the Thursday before. I get opinions on both the drafts and the finals and then the supplemental finals. Those that have changes to be made yet on Thursdays, I get them, try to read through them early but not start to write until Thursday evening.

Do you do the summaries that show up on the video arguments, the summary cards that come up before the video?

Yes.

For those that have ever watched a live stream Texas Supreme Court argument, maybe you know what I’m talking about. They are summary cards that introduce the case and generally what the issue is that’s being presented.

One of the things I did when I first started and it’s evolved in various ways but I print a pamphlet for the courtroom with a summary of the cases that are being argued. That’s gone away. I keep it very brief. It’s an 8×12 folded pamphlet. On the inside-facing pages, I will summarize those cases that are being argued. That will be picked up then for the video card that you are talking about. Since the pandemic, there haven’t been oral arguments. There’s not an easy way to do that. That’s gone away. When the court grants a case, I will summarize the issues. If I’ve got time, I will do some facts to orient. Generally, it’s just the issue. I pick that up as a place setter for an opinion. If it looks like issues fell away, then I will take them away and hold close to what the court has identified, what its concern is and the issues presented.

One of the first things I do on Friday morning is not only will I look at the court’s orders but I’ve gotten to where I do rely on your summaries. In the old days, I would print the opinions and then read through them as I could. It got to where your opinion summaries were so helpful to me that I was able to not print them anymore. If there was an opinion that I saw that you had written a summary on and that I thought it was something I needed to read more closely, I would do that. The way that you approach these in terms of laying out the principal issues in the court’s holdings and summarizing even the separate writings, I have found it to be super helpful. Also, it’s quite a service, Osler, what you have done for the lawyers for Texas for all these years.

In the beginning, they were very brief. That grew and grew. In their growth, it’s more of a recognition that I’m talking mostly to lawyers and appellate lawyers. I’m making them longer than they maybe should be. I have always tried to, at a glance, give somebody what it is that the case is about. If you need to go to the opinion, look at the briefs, there’s a link, you can call it up and check them out. If you need to look at the Court of Appeals, I have done that.

They are the right length. I can look at your summary and I can tell that you drill right down to it but you provide enough detail. You have done it and I have seen it for so long that I have a lot of confidence when I read your summaries, you are giving me accurate reporting of what the case has got going on. I will even offer a little side note here. For a long time, going back to 2007 or so, I used to write a lot of blog posts. I thought it would be a cool thing to do, to summarize Texas Supreme Court cases. I started paying attention to your summaries and I thought, “Osler is already doing this. Why do I need to do this?” You were providing a lot of value and digestible chunks of information in those emails. I hope nobody is criticizing you for the length of those summaries because you are doing it right.

I’m a journalist. You can always squeeze things down. I had an editor in Kansas City who said, “Every story can be a third shorter.”

two people sitting at a table in a meeting

Public Information: Public information grasps opinion summaries and makes them understandable.

The same is true for a brief.

Or court opinions for that matter, usually. The Supreme Court does write consistently crisp opinions. There are not a lot of wasted words. It’s like social media. When Twitter first came and you were limited to 140 characters per tweet, a lot of people learned to write tweets concisely. It’s probably the same principle in your summaries. You’ve got to learn how to whittle those opinions down into digestible chunks. That’s a real skill. That’s almost like an editor’s pen that you have to break out to do that.

There’s definitely a lot of editing that goes on. You are talking about tweets. Having done a little bit of everything in a newsroom, working on the copy desk and writing headlines, that’s poetry in newspaper work but it’s also a good skill to bring over to anything including the law and legal writing.

Speaking of Twitter, you do have a Twitter account that you use to publish the court’s orders as well.

The court has a Twitter account. I had set one up early on. OCA came and said, “We’ve got this Twitter account. Do you want it?” I said, “No. I’ve got this one.” The only thing I use Twitter for is some breaking news. I don’t do opinions on it unless it’s breaking. I use the email in a separate way from the Twitter account. I don’t use Twitter quite as much as maybe modern times would demand.

That’s debatable. What I also noticed though is whenever there’s a big event or an announcement, I recall getting an email sent out that way. It’s separate and apart from the usual format of your opinion summaries. When there is a new justice appointed, or over the years, we have had the deaths of some of the former justices on the court. That information also falls within your purview.

I have done obituaries. It’s basic journalism.

Website content falls into there as well. Some of the announcements that I see there look like they have your touch on them.

How did the pandemic affect what you were doing as the staff attorney for public information? Did it change your responsibilities much? I know a lot was going on and the court issued a whole bunch of orders. The orders process is something different than what you do as a staff attorney for public information.

Those are emergency orders. In most cases, because they are emergency orders, I’m trying to summarize and then keep people up-to-date with how different orders are changing that address the same topics, for instance, eviction protections pleadings. It added a new dimension. For a new rule that I thought the bar needed to know I, would leave them to administrative orders and let people find them there. That’s the reason in my summaries of opinions at the bottom that I will put a link there to recent administrative orders. People who want to watch closely will find them there. If there’s something that more people want to know or should know, then I will maybe put a summary.

I don’t think I can remember a time where the court had as many administrative orders in such a short time and ones that did many different things. If you think about Supreme Court administrative orders, they are usually bland and don’t do a lot. We had a quick succession and every week or two, it felt like changing the way that we do business, understandably.

Not only the pandemic but the ransomware attack too. I would imagine it threw a wrinkle. It certainly threw a wrinkle in the flow of information as we have talked about on the show before. I don’t know that I have any great appreciation for how that would have affected what you were doing. What was going on there?

A lot of it was technical and OCA jumping in and doing various things. On the day of the ransomware attack, I might have been the first person to know about it because I was up at 2:30 in the morning doing what I was doing for May 8th orders. Suddenly, everything went blank. I scrambled around and said, “What’s going on here?” I was working from home where I mostly work. I drove down to the office to figure it out, “Is it my connection? Is it my internet service here?” I got down there and alerted Chief Justice Hecht that something was wrong. Soon thereafter, we discovered how wrong things were.

One of the things about my job is it’s both frustrating and rewarding. The frustrating part is I hit my send button and I don’t know whether anything goes out, “Does anybody see what I do? I have been up all night. Do they care?” On the morning of the ransomware attack, communication was hampered all the way around. Nobody is writing me and saying, “Where are my opinions?” I thought, “I’ve been doing this for twenty years. Nobody gives a sh*t.” I’m thinking, “I’m communicating important information and nobody is complaining that I don’t have my opinions now.”

We maybe didn’t complain directly to you but many of us sit at our computer at 8:59 hitting the refresh button going into 9:00. It is monitored and it’s appreciated when things come out right on time.

That part of it is an OCA or a Blake Hawthorne issue. If those orders aren’t released on time, which I can only recall a few times ever that has been an issue, the next thing I look for is Osler’s email coming shortly after 9:00 AM. The person I’m going to speak about won’t object to this. I can think of one lawyer who I used to work with in Dallas who would be responding and letting you know he had missed your weekly orders. That would be my former boss and mentor, Ben Taylor. I will call Ben out a little bit for that. He won’t mind.

person speaking to media

Public Information: Public information used to print pamphlets with a summary of the cases that were being argued.

Occasionally, I will hear from Ben. It’s the same thing.

Ben might help you correct some of your grammar or your punctuation, too. People do notice. I have said it before but I will say it again, it is quite a service that you provide to the lawyers of Texas. You do have a skill in distilling down the essence of those opinions into bite-sized chunks, which is extremely valuable. That journalism background has to help you accomplish that. This is something that I don’t think a non-lawyer could do as effectively either. Having the dual background of journalism and law, it seems like you are well suited to that set of responsibilities and created a job that’s worked well for you all these years.

Todd, you will have me crying here about the whole idea of leaving. What am I doing?

I don’t mean to make you cry, Osler. Now would probably be the appropriate time. You’ve got a little announcement to make about your future. I don’t want to steal your thunder at all. I want you to let folks know, in your own words, what you’ve got coming up.

I have been retiring for two years. The first time is in August of 2019. I decided that I’m not quite ready. There’s going to be August of 2020. I decided, “We are in the middle of a pandemic. I would imagine it would be hard to hire anybody in a pandemic but certainly one that needs to circulate the court, know something about the court. Most of the courts are at home working out of their home offices.” It finally came down to largely because of the pandemic that I would see it through to the end of August 2021. It looked like things were going to go to relax. I’ve got a couple of possibilities in journalism.

The first thing I’m hoping to do is I’m rebuilding an airplane and I want to do as much of it by myself as possible. I have even thought about going to San Antonio Community College to take aeromechanics, just because. I have had an airplane that I bought from the college expenses for those kids. It has been sitting on the ground for many years and I’m anxious to fly it a little bit while I still can. I’m rebuilding a ‘68 Cessna Cardinal and I’m about to take my wings over to a guy to repair them because they are leaking. I will take it over to Eagle Lake to a guy. I hope that maybe I can do most of that work myself but I need to get it done.

Justice Paul Green is not the only budding aviator at the Texas Supreme Court or was.

Judge Green is a neophyte when it comes to flying. Although I have flown with him a couple of years ago, he had me hold the controls and he figured that I wasn’t holding a steady course enough so he took it over.

That sounds like a fantastic project. You mentioned that you might be interested in getting into podcasting. We would certainly welcome you into the world of podcasting with open arms if you chose to do that.

It goes back to Twitter. I’m subscribing to a lot of Twitter feeds. Other than to rebuild my plane, I need to take some time and think through some pressing issues for me and American society. We have gone through something the last four years, especially the last year, that has been an unprecedented assault on democracy. I need to think about that. I have thought about doing some Twitter. The other thing is podcasting, maybe along those lines, maybe along with the law.

Also, in my quest to rebuild this airplane are 2, 3 or 4 coffee table book ideas that I don’t believe I’m going to make any money off of. I’ve got some ideas that would be fascinating. One, for instance, is World War II training fields across the Southwest. If I can find places where there’s still a visual representation and probably interview some people who are learning to fly outside Pecos for instance. People who, as kids, we were around when the B-29s and the B-17s were flying overhead. I think I can put something together. Podcasting could lend itself to promotion if nothing else. It might be fun. I’m looking for creative ideas.

I imagine, after all the years of being the outward voice of the court, it will be fun to pursue your own projects and tell your own stories.

We are certainly sorry to see you go because you have become part of that institution. I sure hope the court appreciates and it does, everything you have done over the last 24 years –

21, don’t make me older than I am!

– in that position. I can’t believe it has been that long.

We have talked about it here before, I don’t do math too well. I have to ask you one thing that we haven’t covered yet, as we start winding down and that is about the sign-off on your email. There’s a certain Spanish phrase there that I see all the time. I’m not a Spanish speaker but I did go and look it up once. It’s “A luchar por todos.” Do you want to explain that for us, those of us that don’t quite get it?

It’s something I started to throw in after the pandemic and basically, we are all in this together.

It’s colorful and I sure appreciate that. I will give you a nod for the historical blurbs. If you read these emails, Osler usually puts in something relevant to that week or that day in history. It’s always a lesson when I open one of those emails.

I haven’t done any of those in months now. Some of it this pandemic was wearing. I have always done them except when there are a great lot of opinions, which started me working in the middle of the night because I didn’t believe the State of Texas was paying me to do little historical asides. During the pandemic, I said, “I will get back to it,” and I will when opinions have stopped and I’m still sending out orders on Fridays. That has been fun. That has been a creative outlet. It started a few years ago. I got bored sending out summary orders one after the other. There was a link there and I thought, “I’ve got to entertain myself in some way, maybe entertain some other people.” I tried to do it with a sense of humor and some perspective that might mean something for that day but also lessons of history.

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We are getting towards the end of our time. We had a lot and we want to let you get back to your day, but before we go it has always been our tradition to ask our guests if they have a tip or a war story that they would like to share.

A tip for appellate lawyers is, don’t write so bloatedly. Don’t write with acronyms or initialisms because they are death to a reader who is not closely following your topic and that’s going to include almost any judge, whether they will admit it or not, because they use them all the time. It’s a real irritation. You will see that I’m not going to, except for things like the FBI or HUD and maybe, I’m not going to use initialisms because they are all capital letters.

Research shows that capital letters are deadly for reading and comprehension. They are death to understanding. That, dummy subjects, it is, there are and those sorts of things just flotsam in the language that shouldn’t be there. And a lot of that stuff that I picked up as an editor, preached as an editor and journalism instructor and picked up from Bryan Garner. We write too much. We use too many words and we don’t appreciate that to communicate, we need to do some different things that lawyers don’t want to do. We learned legalese in law school and that’s the beginning of the problem.

For war stories, I will tell you one. One war story was Tom Phillips padding around in his sock feet all over the court. When I first got there, I thought, “What is all this?” I came to appreciate that that’s Tom Phillips. There was a time when Chief Justice Jefferson was coming back from a conference on a Saturday and he needed to make a wedding of a law school friend in Round Rock. He asked me if I would mind picking him up because his car was at the court. I said, “I would be glad to do that.”

I picked him up, his plane was running late, I had my dog in the car and I said, “I will drive you straight to Round Rock. You are not going to have time to go by and get your car.” He said, “That’s fine.” I took off for Round Rock on what then was a relatively new toll road 130. We are going along and he’s over in the right seat of the car, changing clothes because he’s putting on a suit and tie. He had come in wearing jeans. The dog is in the backseat and the dog’s name is Bacchus. I pulled him up to the church and off he goes. All was accomplished.

Several months later, I sent him an email. I said, “Chief, I’ve got a call from a reporter. He says he’s got pictures that look like they were taken from a toll camera of you in your underwear in a car speeding down State Highway 130.” He writes back said, “Don’t bring those things to me by email. Come down here and talk with me.” You can hear it in the email response. A moment later, he says, “That was when you picked me up at the airport.” I said, “I don’t remember that.” He said, “You had Bacchus in the car with us.” I go, “I don’t remember.” I came down to his office and he’s red in the face angry that I would do this but then he realized he had been had.

We don’t hear too many war stories about Chief Justice Jefferson so it’s good to have one and who’s in a better position to tell it than you.

We appreciate your time, coming on and sharing stories with us.

block letters making up the word acronym

Public Information: Don’t write with acronyms because they are death to a reader who is not following your topic.

I enjoyed it, other than Jody’s side for business. I wouldn’t want to edit this thing so good luck to both of you.

This is great.

We are so grateful for you doing this, Osler, we certainly wish you the best going forward. Keep in touch with the lawyers of Texas. I know we will enjoy hearing from you.

I hope that maybe I will make the State Bar Appellate Conference in September 2021.

It’s the Advanced Civil Appellate.

I was hoping that maybe I would get a chance to pick up some CLE and see some folks for the last time.

Thankfully it’s going to be live and in-person.

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