Bringing Family Law ...

Bringing Family Law Expertise To SCOTX | Justice Debra Lehrmann

February 23, 2023 | by D. Todd Smith

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Justice Debra Lehrmann has served on the Texas Supreme Court longer than any woman before her. But even before that historic tenure, she served as a family law judge for many years. She joins Todd Smith and Jody Sanders in this episode to talk about her judicial experience and how her family law knowledge has impacted her career and the Supreme Court’s decisions. She also shares her insights about the Texas Supreme Court and the recent changes in the Court’s orders and rules relating to remote proceedings.

We’re very pleased to have as our guest Justice Debra Lehrmann from the Texas Supreme Court. Welcome to our show, Justice Lehrmann.

Thank you so much for having me. It’s a pleasure to be here with you.

We’re excited and slowly making our way through the members of the Texas Supreme Court. We have had the privilege of having several of your colleagues on the show with a few more yet to get, but it’s nice to have you with us. One thing we like to do is ask our guests to introduce themselves to our audience. We have a lot of trial lawyers and people who tune in from outside of Texas as well. Let the audience get to know you a little bit. Tell us a little bit about yourself, maybe your background, your path to the law, and so forth.

I am Debra Lehrmann. I am now the Senior Justice on the court and the longest-serving woman to ever serve on the Supreme Court of Texas in the history of the state. I’m very thrilled about that. If you would’ve asked me years ago if I would ever be in this position, I would’ve started laughing and maybe fallen off a chair or something because that’s not what I envisioned for my future, but here I am. I am so blessed and thrilled to be able to serve the jurisprudence and the people of the State of Texas in the third branch of government. The way that I’m so fortunate to be able to do it is wonderful.

I went to the University of Texas as an undergraduate student. I was getting my degree in Psychology. I thought I wanted to go on and get a PhD in Psychology. My plan was to become a professional counselor. I did an internship during my junior and senior years as an undergrad at UT at the Austin State Hospital. It was very difficult for me. The people who are in that position of having to reside in that facility are very challenged. They have such incredibly sad lives and stressful backgrounds that often brought them to that place. Here I was a young undergrad student who loved to be with people, study hard, but also have fun. On Friday evenings after working at the state hospital, I would come home and want to go to bed at 8:00. That was not like me.

I started looking at these people’s files. I was in the women’s unit. I was struck by how many of these young women had been sexually abused as children. It was a very dominant theme. That made me start thinking as I realized that this therapist role was not going to be for me. That’s when I got serious about wanting to go to law school because I thought if I could reach people sooner in their lives before things got so out of whack that it could make a difference. That’s what drew me in the first instance to go to law school.

I thought about it in the past. My father was a doctor and he had encouraged me not to be a doctor, which is interesting. Not because I was a woman or anything like that, but because doctors worked so hard. He knew that I wanted to have a family and children. Fast-forward, I was a young lawyer working in a large law firm at the time. Back then, you couldn’t do much virtually. You did everything in the library. It was very common for us to be in the office until 10:00 or 11:00 at night. I remember thinking, “Dad was not hitting it right on the mark when he thought this is going to be less time-consuming.”

Did he know any lawyers?

He didn’t know any lawyers. We didn’t have any lawyers in our family. It was an all-doctor family. My father and my grandfather were doctors. The law was a new area for us, but that’s what got me into it to begin with.

Your practice experience, as I recall, was geared toward family law. I would imagine that influenced what you experienced with the Austin State Hospital and investigating the backgrounds of the patients. It seems like that’s a natural fit. Did that greatly influence your decision to practice primarily in the area of family law?

Yes. I went into it with that in mind. I first started out at the DA’s office. I was a prosecutor in Fort Worth and was handling those types of cases having to do with child protection work, etc. It is interesting that I ended up liking the work. I liked the courtroom. I was very comfortable in the courtroom, which I didn’t particularly expect. As I say, I didn’t come from a family of lawyers. I went to law school without any assistance in terms of understanding what law school was going to be like or anything like that. I never thought at all that I would be particularly good in the courtroom or that I would like it, but I ended up liking it a lot and being very comfortable.

I did that for a few years. I then went with a large law firm in Fort Worth, Law Snakard & Gambil. At the time, the three largest law firms in town were Law Snakard & Gambill, Shannon Gracey, and Cantey Hanger. My husband was at Shannon Gracey and I was at Law Snakard. When I was there, there was a push to accommodate the firm’s clients with full services including family law. That’s what I was hired to do, to help head up that section. I also did other things as you do when you’re an associate at a large law firm, but that’s where my focus was. When I became a judge at a very young age, I was a family law judge. I was a trial judge for many years.

Going back, I met my husband in law school. I grew up near Houston in a small town called Baytown. My husband grew up in Fort Worth. We both went to the University of Texas undergrad and law school, and that’s where we met. At this point in time, as young lawyers, we had gotten pretty serious. We were both interviewed in the Houston area and the DFW area. It happens that we both got jobs in the DFW area first. That’s why we ended up in DFW. We were there for many years until the governor appointed me to the Supreme Court. We went back and forth for quite a while. We have settled in Austin. Austin is our second home. I love Austin, but Fort Worth will always be home because we were there for so long.

I can understand that.

I can too because Fort Worth is my hometown. We have a lot of affinity for Fort Worth here on the show.

I always tell people that Fort Worth is a small town with a whole lot of people. When you look at Tarrant County, there are a lot of people there, but we all know and support each other. It’s a wonderful place to be. The legal community is very tight-knit. The legal community in Austin reminds me quite a bit of Fort Worth. It’s very tight-knit also, even though there are more lawyers. I’ve enjoyed that about coming back to Austin after so many years being gone practicing law and raising a family in Fort Worth.

Family Law: Fort Worth is a small town with a tight-knit legal community full of people who support each other.

You mentioned going on the trial bench. That’s one of the things we wanted to talk about. How did you get from the private practice to the trial bench?

As I said, I enjoyed the courtroom. As I’m in the courtroom, I started realizing that being a part of the judiciaries would probably be a good fit for me and that I would enjoy it. When I was first appointed, I was appointed as an associate judge. Those are judges who do comparable work as the district judges, but they’re appointed by the board of district judges. At least, that’s how it was in Fort Worth and in most places. Any decision that’s made by the associate judge could be appealed. Now, it’s called a trial de novo, but it’s the same concept as the district court. I did that for a number of years.

There was a vacancy on the trial court where I was an associate judge. Governor Bush, at the time, appointed me to that bench as a district judge. I was a trial judge for 23 years. It has been a long time. I had always been interested in appellate work. I always thought that I probably would become an appellate judge. I was doing a lot of writing. I wrote many law review articles. The Texas Bar Foundation recognized one of my works as The Best Law Review Article of the Year. I wrote for LexisNexis. I would annotate the family code for them. I wrote another legal treatise on the representation of children.

I was always writing and publishing. That’s where my love has been for many years. People knew it because I was published. I was also published nationally. I’ve been very involved in the American Bar Association, the Uniform Law Commission, the ALI, and all these different national organizations. I was doing a lot of writing in those areas as well. It was always assumed in Fort Worth that I would go to the intermediate appellate bench, but what happened was all of the other justices on the Fort Worth Court of Appeals were my age. We all had young children and I wasn’t going to run against one of my colleagues. That’s not something I ever had any desire to do, nor would I ever do that.

There never was an opening to run for the intermediate courts of appeals. When Justice Harriet O’Neill announced that she was going to step down, it was perfect timing. Greg and I have two boys and they were getting ready to go off to college, so we wouldn’t have to be taking them out of their schools in Fort Worth and take them to Austin. It was a perfect time. There was a real need in the court for family law expertise, and the court knew it at that time. It was a good fit. That’s when I decided to put my name in the hat for that position. Fortunately, I was successful.

How was the process of going from running locally in Tarrant County to running a statewide election?

It’s quite crazy. Texas is big. The thing about it is you’re always going back and forth. You have a breakfast meeting in Austin, a lunch meeting in Houston, and a dinner meeting back in Austin. The next morning you’ve got to be in Dallas. You’re crisscrossing constantly. The question someone would ask is, “Why in the world would you do that? Set it up so that you’ll go to this part of the state and then you’ll stay there.” It doesn’t work that way. You go where the people are, especially when you were first starting and nobody knows who any of us are still. They certainly didn’t back then. You go where the people are having big events, and it was never ever in the same place. There is lots of travel.

I tell a story about the one time we were in my hometown of Baytown. We had an event. It was one of those events that lasted pretty late into the evening. It probably didn’t end until about 9:00. Greg has been a wonderful companion, supporter, and soulmate. He and I have done this together. We weren’t able to leave Baytown until about 9:30 in the evening. As we were coming into Fort Worth, Greg fell asleep and we ended up in a ditch. Luckily, we were very close to our home. Thank goodness that’s all it was and it was no big deal, but it could have been a big deal.

I often think, “Why in the world did we do that to get back to Fort Worth?” It’s a small town with a lot of people and everybody already knew us, but somehow we were compelled. We had to go to every single thing. It’s big and it’s a challenge, but we got to meet lots of wonderful people. I don’t particularly think that the way we select judges in the state is the correct way to do it. I think there are better ways to select judges, but I love the work I do and this is the way we do it in Texas so we play by the rules. That means doing the things that I’ve talked about.

You have the good fortune of having been elected and re-elected to your bench. Most recently, back in November, you were re-elected again. I suppose you can take a little bit of a pause before the election cycle ramps up again for the next go-round. Our Supreme Court justices are elected to six-year terms so you have that level of job security. You mentioned that you and Greg had made Austin your second home, but you’re here the majority of the time. Having an election behind you right before you make that decision seems like a smart choice too.

It’s nice to have that behind you at least for another six years because there is a lot going on when you’re trying to get from here to there. Also, the work of the court is very intense. We’re dealing with the most significant issues, touching real people, and having to do with the jurisprudence of the State of Texas. We’re very aware of the importance of the work. The campaign always takes a backseat to the real work of the court. That means oftentimes we’ll be traveling and I’ll be in the backseat. We would joke in an SUV that I’d be in the trunk because I’m small and I’ll fit. It wasn’t the trunk, but it seemed like it.

There I am with all my papers, laptop, iPhone, or whatever I’m working on at the time. The good news is nowadays, you can do this stuff away from the office. In a lot of ways, it’s better than being in the office to do it because you do have quiet solitude so that you can seriously study and contemplate these very heavy important issues to make. It’s so important that we get the law right and not just do it to get it out. That’s so important.

One thing you mentioned was you brought a wealth of family law experience that the court didn’t have. It seems like that’s coincided with the court taking more family law and parental termination-type cases. I know you don’t want to take credit for that, but it seems like there has been more of a focus in the last decade or so on family law at the court than there had been previously.

Do you remember in San Angelo when they had a big event where so many children had to be taken from that compound or were taken because of allegations of serious sexual abuse? It was a pretty overwhelming situation for the court because there were so many children who had allegedly been abused at very young ages. All of a sudden, there’s a whole need for a lot of family law. It’s not just expertise but also manpower because all of these children were entitled to court-appointed lawyers.

In any of these CPS cases, the parents are entitled to lawyers. Oftentimes, there are multiple fathers involved. The children are entitled to legal representation and then you have CASAs involved. There’s a lot going on there. When you multiply that by the many children that were involved, it was very overwhelming to the system and the court. That was the start of it. We had some appellate rules that have changed in terms of appellate rights having to do with CPS and terminations.

All of that has contributed to the increase in the number of cases that we have taken. It’s not necessarily in family law generally. Although I am always looking for those particular issues because there are issues that need to be settled that you may not know about that much if you weren’t in the trenches. I do keep up with it a lot. I’m always looking for those, but I wouldn’t say those are any different than other areas of the law like oil and gas, sovereign immunity, and all the other things that we do. In the CPS realm, it is different. We do take a lot of those cases.

We have a mandamus lawyer and we call that our emergency docket. Now, it’s also not just the mandamus. It’s all kinds of things, especially since the pandemic, that have come up. This CPS docket is close to half of that entire docket. I don’t mean our entire docket, but that entire emergency docket. That’s a lot. There are a lot of those cases that come in front of us. We are taking quite a few of those.

You mentioned the San Angelo situation and how it impacted the court. For those who don’t know about it, that was the Yearning for Zion Ranch going back more than ten years now. One thing that’s worth mentioning there is that was an impressive pro bono effort on the bar’s part in getting those kids represented. That was one of those moments where you felt good about being a lawyer, even though this terrible situation was going on out in West Texas.

The Supreme Court, as it tends to do, took leadership in a difficult situation. The bar took on a significant role in representing the folks that needed help back then. I hadn’t thought about that in quite some time, but you mentioned it and it made me think that was one of those shining moments that you’re proud of being a lawyer in Texas.

It was wonderful how the bar stepped up. We had no shortage of lawyers who were volunteering to assist in this crisis. As always, we ask and the lawyers step up as they always do, and they did again. It was a great thing.

Family Law: It is wonderful to see the bar step up, and there was no shortage of lawyers who were volunteering to assist in a time of crisis.

When we have your colleagues on the show, we always like to ask about their liaison assignments because you’ve got a very good and deep comfort level with family law. Family lawyers are their own tight-knit bunch. Their annual CLE program down in San Antonio makes all the rest of us a little bit jealous because they’re getting together and having a good time. As appellate lawyers, we have pretty good CLE programs too, but that one is famous in its own way. Other than your continued involvement in family law matters and the Family Law Bar, what liaison assignments are you serving at the court that are interesting or that you would like to talk about?

They are all interesting, but the position that I enjoy so much is being the liaison to the State Bar of Texas. It’s so important and it’s something that I enjoy. I love lawyers. I’m married to a lawyer. We have two sons that are lawyers. Most of my friends are lawyers. Professionally, I’ve been around lawyers all my life. Coming from a family of no lawyers, I went to the other extreme. I appreciate the third branch of government so much and what we do as lawyers, and its importance in our society. It can never be overstated. It’s something that I firmly believe. It’s a joy to be able to serve in that role.

It’s also a natural fit because I have been involved in bar politics since I was a very young lawyer, starting with going up the ranks in Tarrant County and becoming the President of Tarrant County Young Lawyers. I’ve gotten very involved in the American Bar Association and worked through the ranks there. I eventually became the Chair of the Family Law Section of the American Bar Association.

I’m also very involved in the Uniform Law Commission. That is a commission comprised of lawyers, judges, and law professors from around the country who work very diligently on the uniform laws that we all use as models or as uniform acts for our various legislatures to adopt. That has been a very rewarding experience also. Also, as a member of the American Law Institute, I’m working on the re-statement of Children and the Law. That’s all very important and fascinating work that’s very bar related. The fit between me as the liaison in the State Bar of Texas is a good one. It’s also one that I hope to continue to do for many years.

Prior to that, I was the liaison on BODA, which is the Board of Disciplinary Appeals. I enjoyed that also because that’s very important in terms of the whole disciplinary system with regard to attorneys and the service that we provide to the public. Whenever an opening came up at the State Bar of Texas, when Justice Phil Johnson stepped down, I expressed to the chief that I would be interested in that liaison position. There’s no way that I could do the Board of Disciplinary Appeals and the State Bar of Texas. I’m also the Chair of the Children’s Commission, The Permanent Commission on Children, Youth, and Families. That’s a big-league liaison role also.

I had to give up the liaison-ship with BODA, which I hate to give up anything like that, but there are only so many hours in a day. I loved that. That’s part of the work that people don’t realize. Lawyers know intellectually, but people don’t realize how much time those liaison roles take and their importance. It’s stuff that we need to devote a lot of time to, and we all do.

Will you talk a little bit about the Children’s Commission and the work that it does? I bet a lot of people don’t know what they do.

The commission was created when Harriet O’Neill was stepping down or during that period of time from her transition. She was there for a few years. She was the mastermind behind it. It did grow from this experience that came out of San Angelo in an attempt to try to fill whatever void may have existed with regard to those kinds of cases.

The commission is comprised of primarily lawyers who are assisting judges. It’s to assist the judicial branch of government to make sure that judges have the training. It’s not the facilities so much, but the tools that they need so that they can make sure that these children and families that are affected so tragically when there have been allegations of abuse or neglect by them against their children, to make sure that the professionals from the judicial side are equipped to deal with that adequately.

The commission does a lot of work looking at resources throughout the state and throughout the country. We are now doing a project on developing standards for the representation of parties, including parents and children, who represent these individuals in these types of cases. Standards are important so that we can make sure that we’re not just doing the bare minimum, but we are in fact implementing best practices so that we can be the best we can be for this very challenged segment of our society. It has been very successful.

You mentioned the Uniform Law Commission. Family law is one of those areas, especially when you’re talking about child custody issues, where you do need that uniformity in the law between the states. That’s a hugely litigated issue when you’ve got custody and support issues. In our current society where people move around a lot and they move between states, it does make a lot of sense that there would need to be a big effort made. I’m not a family lawyer. I don’t practice family law at all. From what I’ve observed, that work does seem to be super important because of the need to preserve stability in the party’s expectations across the state lines.

That’s where the UCCJEA came from, which is the act that has to do with jurisdiction. There are a lot of jurisdictional issues in terms of whether a parent can leave a state and go to another state in order to avoid whatever they want to avoid from that particular state. That’s one of the reasons that it’s so important.

We also have a uniform act that has to do with the military. It’s the same idea. When you have a military spouse that has been deployed to another state, can that spouse somehow take advantage of certain laws that may be more friendly to them in that other state? We have an act that many states have adopted that clarifies when that can and when that cannot happen to avoid that game-playing that can go on.

The commission does all kinds of things. One of the jewels of the Uniform Law Commission is the UCC, which is always being updated. We are always in the process of having a drafting committee deal with that. When I first got involved many years ago, I was an ABA advisor. I had been appointed by the American Bar Association to a drafting committee. Through that process, I saw how the whole ULC process works. It’s unlike many state legislatures where you have a lot of personal interests going on and there are a lot of negotiations. It’s not particularly to get to the right answer but it’s like, “You give me this and I’ll give you that,” and then you end up with who knows what.

This process is very different in the sense that you’ve got experts and law professors from different areas of the law, depending on whatever that particular issue is. They are going to come in and give their expert opinions. We then bring in stakeholders from different areas to make sure that we are dealing with competing views about what public policy should be. It’s vetted. It goes through a process of at least two years of intense study and discussion of what should go into these uniform laws. It goes to the committee of the whole, which is all the commissioners throughout the states. There are about 300 and something.

Every summer, we meet for about seven days. We read through every act that’s on the table line by line. You can imagine it’s a very intense process that takes a lot of time, but it’s a very good process to come up with a uniform act that had been vetted by objective experts. They have debated the issue a lot, and then come up with what that commission has determined is the best policy decision for that area of the law. That’s why I got involved because I thought the process was so well done, and not just a bunch of arguing or special interest that we know goes on in the various legislatures when they’re coming up with legislation. I will come in as a twenty-year member. I’ve been doing this for a long time. It’s very rewarding.

I forgot what we exactly call it, but we have a uniform act on the faithful of electoral college members. We do all kinds of things. We have a uniform act on the Anti-SLAPP statute, which we see a lot of that before us now, and so do other states. It’s for a very good reason that we have these statutes, but it had become so broad that almost anything was being subjected to dismissal at the very front end of the lawsuit simply by bringing a motion to dismiss under the TCPA or whatever it is in the various states. There are acts on all kinds of issues like that.

I want to talk about some recent developments at the Supreme Court a few weeks ago and some things that are happening in our state. Before I do that, I did want to ask you generally, what was something that you learned after joining the Supreme Court that you maybe didn’t expect or that was surprising or different to you?

When you’re a trial judge, you’re the boss. You make a ruling. You make the decision, affirm, overrule, or whatever you do, and that’s it. There’s no negotiation. You negotiate in your own mind to make sure that you get it right in every case. It’s just as important to get it right at that level as it is at the appellate level, but you’re the one making that final decision.

On the Supreme Court, you are trying to convince a majority of the court, depending on what level of the process we’re at. To grant review, I try to convince three of my colleagues that this is something we need to take if I believe it is, and then four colleagues to have a majority on any opinion. That entails a lot of negotiation skills going back to being a lawyer that you don’t have to deal with when you’re a trial judge. I hadn’t thought about it that much.

Reading all of these cases and being involved at the level I was, you think of it more in terms of researching, writing, studying, and getting it right. There is a lot of that that goes on. For example, right after we have an oral argument, we all know by a random assignment which case we’ve gotten by the time we get into that phase of the lawsuit. We know the case by that time very well. We’ve read all the petitions. We’ve done a lot of research. We’ve done our own internal research. We’ve gotten a full briefing by all parties. We’ve gotten quite a bit of amicus lots of times. We’ve read all of that stuff.

One thing they ask me a lot of time is, “Why even have an oral argument?” You would be surprised how oral argument does help a lot in the terms of maybe redirecting the focus or making you think about something in a different light. It’s probably not something we haven’t thought about because we’ve read all this stuff so thoroughly by the time we get to that phase, but we may not be thinking of it in the way that the lawyer is articulating it. That was not obvious from the briefing. That can change things quite a bit.

You go into the first conference after an oral argument, after we have already done what we call a post-sub memo expressing our views to the other eight justices. We then talk about it. During that discussion as we’re talking about it, you get a feel at that point of time if you’re going to have to move, how much you’re going to have to move in order to keep the majority, whether you are going to be able to keep the majority and all those kinds of things that I hadn’t thought about before I got on the court. It’s a major part of what you do.

Over the years, I’ve learned more and more that I would prefer to keep the majority if I can because that is going to mean that the law is going to be written more in accordance, which I believe is the correct application of the law. However, that means I’m going to maybe have to shift quite a bit so it wouldn’t be exactly what I believe would be the correct application. If I don’t do that, the alternative is that you give the majority up. You become the dissent. What is that? That’s Debra Lehrmann’s opinion.

Family Law: Keeping the Supreme Court majority means writing the law in accordance to its correct application while having to shift a bit.

Those are the things you learn while you’re doing it and how much that becomes a big part of the entire process, in a way as much as the studying, writing, and reading part of it. Although that’s involved too because to get to that point where you can shift a little bit, you’re not going to shift to the point where the law is not applied correctly. That takes a lot of doing in the process to get to that point also, but I didn’t expect that.

It’s hard from the outside because nobody sees that. We send our briefs or maybe we go to an oral argument, and then you get an opinion, but we don’t see everything that goes from the point you get our briefs. Out of curiosity, when you pick up a petition or a brief, where do you start when you read? What’s the first thing you go to?

It’s the statement of the case because you get from that a very condensed version of what’s going on. You can tell what issue this is. Is this an issue that has to do with the Tort Claims Act? Is this an issue that has to do with First Amendment issues or Anti-SLAPP? You get through that in a very brief way what’s going on and what the lower courts have done.

I have a template that I use for every case where I’m outlining those kinds of things. Remember, we read so much. There’s a lot of reading going on. We have to be able to assimilate what’s going on in this particular case quickly because we have so many other things to read. We all read every single petition that comes in. We made that assurance to the Appellate Bar years ago. We have lived up to that. We read a lot. The good news is we all like to read. If not, this is not a job for you.

You learn also how to get to it quickly. Immediately, I can go through and know what I have to fill in so that I have a good concept of what this issue is, and then go to the Court of Appeals’ opinion and read it to figure out their legal analysis of what was going on. That’s the most efficient way that I’ve figured out how to do it.

Your discussion reminded me that you may be the author of an opinion that winds up being a majority, but it’s worth remembering or being reminded that it’s the opinion of the court. It’s you and at least four other justices, generally. I’m sure that the first draft of an opinion may not look a whole lot like what the final draft that’s published looks like because you’ve got eight other elected justices on that court that have very strong opinions about the law. I can imagine that process of collaboration couldn’t strengthen opinions sometimes.

It does. There’s no doubt about it. I always talk about how we challenge each other, but we challenge each other in a very respectful way. Both of those parts of it are very important. When I’ve spoken at CLE sometimes, especially younger lawyers will ask me, “What do you mean we disagree, but we do it agreeably?” If I read an opinion that one of my colleagues has put on the table, I may agree with the outcome, but I don’t agree with a certain part of the analysis.

I have one of two ways to deal with that. I could say, “This is the silliest thing I’ve ever read in my life. Where in the world have you come up with this?” or I can point out that I certainly respect the work that they’ve done, and I’m just trying to understand why is it that they have come up with this answer and I’ve come up with another answer. Let’s try to work through that. We do work through that a lot of times. We end up with a much better product.

One of the scariest things that ever happens to any of us is when we put a writing on the table, it goes around, and everybody agrees with it immediately. Everyone is like, “We might want a few more eyes to be looking at this a little bit on the same level that we looked at it.” You don’t want that. When that’s happened, many times, we’ll pull it ourselves and say, “Let’s give it one more go-through and make sure.” There are things when we’re drafting that we’ll be thinking, “What about this or that?”

I cannot stress enough how much challenging each other, as long as it’s done in a respectful way, is important to end up with a better product. It’s not just being argumentative for the sake of arguing, but to challenge each other in a healthy way, which everyone on the court does. We do have a very good court right now. Our court is very respectful of each other and very constructive instead of destructive. It does end up with opinions that are much better and more valuable to the jurisprudence of the State of Texas.

Let’s transition as we wind down to the recent developments that I was alluding to. The Supreme Court issued now 60 emergency orders beginning in March 2020. Those orders allowed judges to continue doing business during the pandemic. That included adopting remote proceedings. All of our judges got a Zoom account and learned how to use Zoom very quickly. At least on the civil side, which is what your court deals with exclusively, they were able to successfully implement Zoom to have hearings, evidentiary hearings, and even virtual jury trials.

We’ve had a lot of discussion on our show about remote proceedings, generally. Folks who have tuned in to us maybe know a little bit of that history. They say, “All good things must come to an end.” Your court announced, committed itself, and issued what it titled as the final emergency order in response to Governor Abbott’s Declaration of Disaster. One thing that might be worth mentioning here is the significance of the Declaration of Disaster as far as the court issuing emergency orders and permitting trial courts to go forward.

My recollection and understanding of it are we have certain requirements in our Constitution about how courts can operate. Some of those requirements carry forward into statutes. One of those is district courts must conduct business in their local county seat. I haven’t thought too much about this over the last few years which is funny, but there was no constitutional authority for courts to conduct remote proceedings without not only the Supreme Court’s emergency order but also, as I understand it, Governor Abbott’s Declaration of a State of Disaster. Without it, there was no way that the constitution and those statutes could effectively be set aside on a temporary basis and allow courts to proceed virtually. Do I have that right?

Sort of.

I would love to be corrected.

We were playing it by ear. If you remember, it all happened so quickly. Everything is fine. We’d heard maybe a few stray cases from wherever that there was something called COVID, but it did not hit home until Tom Hanks came down with it. It was a basketball game.

The NCAA tournament.

They had to shut it down, and then our own University of Texas President’s wife came down with it, who had been in New York City. All of a sudden, in a very short period of time, here we were. We were getting together at all hours of the day and night to figure out what we were going to do even before the governor had issued it. We knew at that time we needed to start staying at home. Everybody was figuring that out. Even before Governor Abbott said, “You need to stay at home.”

We were trying to figure out, “What do we do?” Trials have to continue. People are still entitled to justice regardless of what’s going on in our environment. We never dealt with anything like this. At the time, we didn’t know that it was going to go on for years. Who would’ve had a clue that we would do 60 emergency orders? We did know that we needed to do something. Through the leadership of Chief Justice Hecht and the Head of Office of Court Administration at the time, David Slayton, the court got together and came up with this idea of Zoom, which many of us had not even heard of before then.

We started playing around with the idea that we needed to start doing things via Zoom. We were the first court in the country to start doing that and have been a model for all the other states. It was largely through the work of David Slayton, Chief Justice Hecht, and all of us getting together and putting our heads together. We decided to do our first appellate argument that was scheduled right after this all started, and we did it by Zoom. We never missed one appellate argument. We never skipped a beat.

For appellate work, that’s worked well because appellate work doesn’t have the issues that you may have in terms of evidentiary issues in terms of making sure that things are authentic and accurate, and all those kinds of things. We don’t have those issues. It worked very well for listening to oral arguments. I’m so thankful that we have that as a tool.

Even though we haven’t been doing anything by Zoom since September of 2021, we were able to use Zoom because of the ice storm that we had. We had people coming in from Dallas and Fort Worth who couldn’t fly because everything was shut down. They couldn’t drive to get to the airport, even if they could fly, and they certainly couldn’t drive here because of the bad driving conditions. So we used that.

We used it in 2022 when we had a similar ice situation. I’m glad that we have the tool. It ended up being something that we have felt out as we’ve gone. It helped when Governor Abbott issued the State of Emergency Declaration because then we had a little bit more authority than just issuing emergency orders for the third branch of government. We have cases that are coming before us right now in terms of how we deal with them in the future. Does the local government take priority or do they have the final say as opposed to what the governor says? Those kinds of issues are still coming before us and have yet to be determined. There were no clear rules on how to deal with it.

I was in a meeting with ABA practitioners on this whole virtual world that we find ourselves in. One of the attorneys from another state was saying that they are doing everything by Zoom still. I said, “That’s interesting because, in Texas, we just issued our final emergency order that is set to expire in March.” The reason that we continued with those emergency orders even after the real danger of the pandemic had passed us is we believed that we had to have some authority in order to allow proceedings to go on by Zoom or virtually.

In this other state, they’ve been doing it. They don’t have an emergency order. They didn’t change their rules as we did. We got a rule out a couple of weeks ago. They’re just doing it. As I said, we’re playing this by ear. The constitutional issue that you’re talking about has to do not so much with the ability to do things virtually. Our problem with that was more that there wasn’t any authority for it. We wanted the rule in place before we got rid of the emergency orders. The Constitution has to do with a trial judge, county or district judge, having to be in the county seat where the case is being heard.

For a lot of larger metropolitan areas, that wasn’t a problem because even though they were at their home, they were in the county seat probably. It wasn’t a constitutional issue, but it was an issue that had to do with a lack of authority. Are we making it up? Sometimes at the beginning of an emergency like that, you have to do the best you can. You have to know that the greater need for our citizens’ constitutional rights to justice and access to the courts to protect their due process rights, whatever rights are at issue, took priority over the fact that we didn’t have the authority for it.

It could even possibly take priority over some constitutional limits, which it did in those cases. There were judges who were able to hear things virtually, particularly in these areas out in West Texas where a judge will be the district judge over courts over many counties. They were able to hold court from one area within the county seat and that did violate the Constitution, but we allowed that by emergency order.

We couldn’t change it by rule because of the constitution and we no longer have that emergency. We just figured out it’s a good tool that we need to be able to use. It’s important that people realize that the new rule does not allow jury trials to be held virtually absent the agreement of the parties. If the parties agree, then they are able to have a jury trial virtually. If anyone objects, then there are no jury trials virtually. Other than that, the court does have the authority to have things done virtually, and all appellate courts do if they see that there’s good cause to do so.

Family Law: Despite the new rules, jury trials are not allowed to hold virtually absent agreement of the parties. If they agree, they can have a jury trial virtually. But if anyone objects, there are no jury trials virtually.

We’re talking about the new rule of Civil Procedure 21(d) primarily. There are some other amendments that were necessary when the court adopted that such as changes to notice requirements and so forth because parties have to be notified of the method by which the court is going to hold the hearing. I’ll hold that rule though.

You mentioned Texas being a leader in the pandemic time by creating Zoom accounts and getting everyone up and running on Zoom. I haven’t seen a rule like this in another jurisdiction. As you said, other courts are still doing whatever in other states. The Texas Supreme Court, in particular, has been proactive not only with the release of 60 emergency orders to help our justice system continue as it needed to but also in now figuring out a path forward.

What this rule seems to do is it tries to take the good that came out of using remote technology and make it available and set some parameters for that. One of which is what you’ve already mentioned, which was there’s no jury trial that can be held virtually unless everyone agrees. There are some procedural processes built into the rule. There’s a process for objecting to virtual appearances.

The one overarching theme that I get out of the new rule is that it assumes that proceedings will be in person, but there are ways to go about doing it differently, either at the court’s notification to the parties or by a party’s request. That’s a new one. It hasn’t been presumed that we’re going to be live in a lot of these things for a long time.

That is the idea. One thing that we learned as we were going through this emergency situation was that there were some good things that came out of it. I was up for election in 2022. I was going around the state, talking to different members of the legal profession lawyers about how these virtual hearings had helped them and what they didn’t like about it. We got a lot of feedback that there were some important areas where we needed to keep virtual trials or hearings to be available.

In December 2021, we appointed a committee that was headed by Chief Justice Tracy Christopher and her assistant chair, Emily Miskel, who had done a lot of exceptional work with regard to jumping in on the whole Zoom bandwagon early on. They had a Blue-Ribbon Committee that went through every single rule in our entire system, rules of civil procedure, rules of appellate procedure, etc., and identified every single thing that was affected by these virtual proceedings.

We had a very good blueprint of what needed to be done. They came out with recommendations. It was a very thorough report that then went to our Supreme Court Advisory Committee or what we call SCAA. That is where all our proposed rules go before we implement any change. Any time we’re going to have any change at all to our rules, we don’t do it without thinking about it a lot. It all goes to SCAA and there are a lot of studies and investigations that go into those determinations. They then report back to us. We may tweak it or send it back, but we never change rules without it going through this very intense process of study and deliberation.

That happened with these rules before they were able to come to fruition. That finally happened a few weeks ago, but we had been working on it since December 2021. If it’s going to be thoroughly done, it’s not going to be done overnight. We may be the first state in the country that has implemented a rule that is allowing for this type of virtual proceeding. I talked to some people from other states who said that they’re still working on emergency orders. I talked to another who said that they are doing it. Hopefully, this will be a blueprint for other states to also go through the process of figuring out a rule that will work for them.

Family Law: Texas may be the first state that has implemented a rule that allows virtual proceedings. Other states are still working on emergency orders, and they can use this as a blueprint.

As with any new rule, there are typically growing pains. This is so new that there will be some development. Courts are going to be asked to hear objections to virtual appearances or I suppose live appearances too. It will be interesting to see how that shakes out. There is a process built into the rule for the court to decide those objections. We’ll see what happens after that. There are some open questions at this point.

There always are.

What would we do as appellate lawyers specifically if there were no open questions or no gray areas in the law? I am super excited about this development because putting an end to emergency orders was a very worthy goal and a worthy thing to do. Releasing this rule, piggybacking on the end of emergency orders made a lot of sense. We may have to do a whole episode on this change because it’s going to be interesting how it develops later on.

Thank you for that. We got so much input from many lawyers around the state who did have opinions about it. We were in San Angelo on the campaign trail and we had a lot of rural lawyers that attended one of our luncheons. They very much expressed the view that it made their lives and their ability to help their clients so much better because they live in the middle of nowhere. They didn’t have to travel so much. It was more cost-saving to their clients and more efficient in terms of what they were able to deliver to their clients.

There were a lot of discussions about whether or not jury trials would be mandated over objections. That’s what kept the committee from going forward for a while because everybody got stuck into that discussion, even though internally the court had already recognized the problems with that. We weren’t at liberty to discuss that publicly, but we knew that there were a lot of problems with forcing jury trials to be held virtually over objection.

Finally, we decided that we would issue publicly that our consensus was we weren’t going to have that. Once we did that, people were able to get over what they were so afraid of and talk about all these other issues that we’re talking about having to do with what you’ve brought notice to, and all the things that had to be dealt with to finally get a finished product. As the statutes come before us, we’ll have the rules come before us. We’ll see what happens.

We are so grateful for this time, but before we let you go, our tradition is always to wrap up with a tip or a war story if you have one you’d like to share.

The first thing that comes to mind is our court is very formal. It’s not because we’re full of ourselves, but it’s because of what we do and what we represent and the importance of that to the people of our great state. With that, we are very prompt. We’re never late. We don’t ever start after the time we should. If you have a case that’s set for 9:00, you better be there at 9:00. If it’s set for 10:00, you might want to be in there 20 minutes early because sometimes we’ll go in early, but we never go in late.

We have a television inside our robing room where we can see the courtroom. We know what’s going on inside the courtroom for safety purposes. We’re getting ready and it’s approaching 9:00, and the lawyer for the petitioner is not there. We’re like, “What do we do?” At the time, Justice Wallace Jefferson was the Chief Justice. We go out and the table is empty. We proceeded with the respondent who made his argument. About five minutes into that argument, this lawyer comes running in a little bit frazzled. She runs in front of the opposing counsel’s table. She sits in her seat and waits for her turn. I’m watching this thinking, “She’s going to be so nervous and out of whack. This isn’t going to work.”

She started and she did not skip a beat. She was as eloquent and prepared. It didn’t seem to frazzle her at all. It was very impressive. It turns out she was one of these lawyers who had come several hours ahead of time and had gone to the state law library to be sure she read everything over again and get super on top of everything, and she lost track of time. She got a call from somebody who was over her where she was working saying, “You’re not there,” because everything is televised and they were watching it. They’re going, “You need to get into that courtroom.”

The answer is number one, be sure you put a timer on your phone for at least 30 minutes before you’re supposed to be in the courtroom. Be aware that if you are late, we’re not going to wait. The parade will go on. I want to thank you all for doing this. It’s so wonderful that we can do these things again virtually so that we can reach more people and communicate.

One thing we try to do as justices on the court is to humanize the court, not just for members of the public that’s important but also to lawyers and even appellate lawyers who know us more than the average citizen on the street. That’s a big thing we try to do so that people can understand that this is not just some court up on an ivory tower that’s issuing opinions and not working, not studying, and not caring. That is not the case.

The more that we can explain that to people and help non-members of the legal profession understand that these are real issues that affect their lives all the time. Whether it has to do with taxation, public education, and all kinds of issues, they affect them every single day of their lives. It’s important to be engaged and understand the importance of the rule of law, and that it’s not just talk.

It is important that the shop owner down the street can know that when he or she goes and buys those mattresses or whatever that they want to sell to the public, they can count on the fact that they will be delivered because they’ve entered into a contract. If that isn’t done, they have recourse to the courts as long as those courts adhere to the rule of law. It does affect every single person. Thank you all for doing this. We appreciate it very much.

It was our pleasure. Thank you for spending the time with us, Judge. We appreciate it.

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About Debra Lehrmann

Justice Debra Lehrmann is the Senior Justice on the Supreme Court of Texas and the Court’s longest-serving woman Justice in Texas history. With a total of almost 35 years of judicial experience, she was a trial judge in Tarrant County for 23 years prior to her appellate service and has served the Bar in leadership capacities on both a state and national level.

She served as the inaugural chair of the State Bar of Texas Child Protection Law Section and is a prior chair of the Family Law Section of the ABA. She is a commissioner on the Uniform Law Commission, a member of the American Law Institute, a fellow of the Texas Bar Foundation and the American Bar Foundation, a charter member of the Tarrant County Bar Foundation, an emeritus member and past president of the Lloyd Lochridge Inn of Court in Austin, and an emeritus member of the Eldon B. Mahon Inn of Court in Fort Worth.

Justice Lehrmann speaks frequently at continuing legal education events on a broad variety of topics throughout the state and country. She has received numerous awards and recognitions, including the Texas Women Lawyers Pathfinder Award; the Child Protection Law Section Founder’s Award; the Court-Appointed Special Advocates Scott Moore Award in recognition for her service to children who are the subjects of abuse and neglect proceedings; the Texas Bar Foundation’s recognition for Best Law Review Article; and the Judge Eva Barnes Award for dedication and outstanding service to the legal profession.

A member of Phi Beta Kappa, Justice Lehrmann received her undergraduate degree with high honors from The University of Texas, her law degree from UT School of Law, and her LL.M. from Duke University. She and her husband, attorney Greg Lehrmann, have a wonderful family: sons Gregory and Jonathan, both practicing lawyers, daughter-in-law Sarah, and grandchildren Jack and Haley.

Justice Lehrmann was most recently re-elected to her position in November 2022 to a term that expires December 31, 2028.