Clearing the Pandemi ...

Clearing the Pandemic Backlog with Special Judges | Judge John Wooldridge

December 1, 2022 | by D. Todd Smith

Very few civil cases end up going to trial. But even fewer have been tried since the pandemic hit. Like everything else, strategies to resolve cases through mediation, arbitration, and other alternative dispute resolution methods have had to change as well. In this episode, Jody Sanders and Todd Smith talk with Senior Judge, mediator, and arbitrator John Wooldridge about how attorneys can better utilize those processes post-pandemic. Judge Wooldridge also shares some insights for attorneys mediating cases on appeal and discusses a little-known way to clear up civil case backlogs—through use of a special judge procedure under Texas Civil Practice and Remedies Code chapter 151. Join us to discover new ways to get those long-pending cases resolved!

Listen to the podcast here!

Our guest in this episode is Judge John Wooldridge, who was formerly of the 269th District Court in Harris County and now sits as a visiting judge, works as a mediator, and an arbitrator down in the Houston area. Judge Wooldridge, thanks for being here.

Thank you, Jody. Good to see you again. Todd, it’s nice to see you.

You too. Upfront, I should say Judge Wooldridge is a very special guest because when I was in law school, I spent a little over two years as a law clerk in his court. He helped me start in law. I’m grateful to him for all that.

Let’s not forget the most important qualification that Judge Wooldridge has for coming on the show. That is, he is a proud TCU Horned Frog.

For our readers who don’t know you, tell us a little bit about your background and how you got into the law.

Jody and Todd, thank you for letting me be here with you. I don’t think your show has enough time for me to go through the whole story, so I’ll give you the abbreviated version. I knew very young in life that I was unusual. I knew that the law was what I wanted to go into. I grew up down in South Texas at McAllen. I’m the son of a doctor. I watched my dad over the years as a general practitioner. I thought he worked too hard. I thought, “I don’t want to do that. I want to do something like play golf and be a lawyer.” Little did I know lawyers worked too hard as well.

At a very young age, I used to go over to this law office behind the alley from where my dad’s office was. One of the lawyers had me come to work for him. I used to carry his briefcase to the courthouse. In those days, there was nothing electronic. I would drive from McAllen to make filings at the district clerk’s office or the county clerk’s office in Edinburgh. I enjoyed being around the law and being at the courthouse. At about 16 or 17 years old, I knew I was going into the law at some point. I went with this old lawyer, Hollis Rankin. He took me to the courthouse to watch him try a case. When I went to the courthouse, I was so excited. I was sitting there and heard these three hard wraps on the door. The bailiff stood up and said, “All rise.”

The judge walked out. I looked and said, “I want to be that guy.” That’s how it happened. I set my sights on college to make the right grades and prepare myself to go to law school, and I did. That’s how I got interested in becoming a lawyer. It’s worked out. I ultimately became a judge, which is one of my life goals. It was a good process to go through. It’s gone by too fast.

How did you get to the bench? You did civil practice in Harris County and then you went on to the civil bench there?

When I was in law school, I knew I wanted to go into the military and serve my country. It does sound a little corny. I thought it would be good for me and every young man to serve his country. I also thought I would get good trial experience by going into the service. I also thought, “Someday, if I run for judge because there is a political aspect to it, having served in the military would be good background information for me to get elected.” I joined the Navy in the JAG Corps and the student law program in my first year in law school and went on active duty right after the bar exam.

Female Solider Saluting US Flag at Sunrise
Special Judges: Going into the military to serve your country has its benefits. There’s also a political aspect to it. So if you run for judge, having served in the military is great to have in your background.

I practiced for five years on active duty. When I was on active duty, I was a prosecutor for most of that time. I went to sea quite a bit. I loved going to sea. I loved going on board ships. I had an interest in Admiralty from that experience by going to see the way ships navigate and cut through and some of the investigations I had that involved collisions, which is a criminal offense in the military. I applied and was accepted to Tulane Law School and their LLM in Admiralty program. I went back to law school, got my LLM in Admiralty, and left active duty. I kept my commission in the Navy Reserves. I did 25 more years. After 30 years, I retired from the service.

I practiced Maritime Law here in Houston for a few years. Have you seen the new movie Top Gun? Well, my claim to fame is at the very end of the movie when they fly off that aircraft carrier CVN-71, the USS Theodore Roosevelt, I had the privilege of serving as its command prosecutor for the year 1988. My claim to fame is off that ship. I went to see that ship. Lieutenant Commander Jim McPherson, at the time, was the JAG and I was a young lieutenant. Commander McPherson went on to be the Judge Advocate General of the Navy. I had the pleasure of being catapulted off that ship. I saw my claim to fame as I was catapulted before Tom Cruise was. That was many years ago.

The military service got me interested in Admiralty. I practiced Maritime Law for a few years here in Houston with a small firm, Royston, Rayzor, Vickery & Williams. I had a higher calling. It was my desire to always go to the bench. I thought it would be much later in life, but I was appointed to the 269th District Court when my predecessor retired. I was appointed by Governor Bush. I was very lucky to get that appointment at the time. I was early. I was 37 when I went to the bench. I still had my military service at the same time and did that. I was on that bench for twelve years of active service. During my military reserve time, I was appointed to be a United States Military Court Judge and was the Executive Officer for the Navy-Marine Corps Trial Judiciary.

As a military court judge for four years, which is a federal court or criminal court, the state of Texas gave me four years of judicial credit for that service. It was 12 years of active service on the 269th and 16 of judicial service, which was a great benefit to receive. I love what I did. I didn’t want to leave. Unfortunately, judges get paid a lot less than most lawyers. I had one pay change in twelve years. Our pay is determined by the legislature. Todd, you and I were talking before we started the show. My wife and I have four children. By the time I got to 12 years, I had 2 daughters at TCU and 2 sons at Episcopal High School. I went broke. I had to get a job.

It was sixteen years of judicial service. I resigned and went to work for a company doing Foreign Corrupt Practices Act. I did that for a few years when the company wanted me to go to Angola for two weeks, Luanda, not Louisiana. By this time, my oldest son, who was a senior in college, played football at TCU during the glory days of 2009 through 2014. I wasn’t going to miss it. I said, “I’d go another time.” They said, “You got to go now.” I said, “I’m leaving,” and walked out of the door without a plan B. After I went home, I said, “Honey, guess what? I quit my job today. Let’s pack. We got to go to the game.” She had a little more to say about that like, “What about health insurance?”

That was a long car ride, I would imagine.

I stopped for health insurance, and I could get it to the state retirement system since I was vested in that retirement system. To qualify for it, I had to take visiting judge assignments. I did, and I gave up the practice of law to take visiting judge assignments. Every time I sit by assignment, I get more judicial credit. Now I’ve reached 60 with 20 years of judicial service. Now, I’ve taken senior status, and I continue to do it. I sit even now about 1/3 of my time since I was a military court judge, and my court was a court of general jurisdiction. I sit in all divisions, family, juvenile, civil, and criminal, and mostly in civil. I continue to do that. I can practice. I can do mediation and arbitrations. I can’t practice law, have clients, and get legal advice. That’s my practice. That’s the way. That’s the shortened version of a 35-year career. There you go.

I want to talk and take a sidebar over to the military stuff because we haven’t had anybody talk about that on here. Can you tell us a little bit about how military justice works and what the roles are?

That’s something that a lot of people don’t know about and recognize unless you served in the military, and even if you did serve in the military. Unless you’re in trouble, you don’t want to know anything about it. The military justice system is a federal court system Article 1 federal court. The military courts are designated by that and created by Congress. We have three basic forms of court-martials. Court-martials are what we call trials. Here’s the equivalent in civilian court. We have a special court-martial, which is a misdemeanor court, and then a general court-martial, which is a felony court. It’s very similar. We use the federal rules of criminal procedure modified for the military because of the special circumstances the military has for its mission.

We have the Uniform Code of Military Justice, which is our statutory criminal justice. For example, it’s a crime not to go to work, whereas in the civilian world, it’s not that way. If you miss the ship’s movement, the ship is underway, and you didn’t show up at the pier in time to get on board, that’s called missing movement. That’s a crime in the military. We got to have people go to work. Most of those are unauthorized absences, where you just took off a day of work without permission, all the way to murder. We have Article 118 of the UCMJ as a murder. We had those. I prosecuted a murder case while I was on active duty and drug cases. That world is just like the civilian world.

In the court-martial setup, we have juries. It’s the same like federal courts. The military justice system is very paternalistic to the defendant. We’re conscious that people don’t think that we’re kangaroo-type courts. We are interested in due process and making sure that individual rights are protected. The quality of military judges is high. They’re good. You have to go through a separate selection board in the Navy and Marine Corps to be selected to be a military judge. Not everybody can do it. They then send you to military judge school, which is the Army JAG School. All of us go to the same place, the Army JAG School, at the University of Virginia in Charlottesville.

It’s a very comprehensive course on military justice and process. Since I was a reservist, in order to do the work, I had to go on active duty. I would be brought on active duty to try a case. I tried cases all over the world. I tried two rape cases in Okinawa. I tried a sexual assault case in Sicily. I’ve tried shaken baby death case in Hawaii plus all over the United States, like Washington DC, Jacksonville, Groton, Connecticut, Bremerton, Washington, and San Diego. It’s a criminal case, and you have appeals from the trial court. You go to the Navy-Marine Court of Criminal Appeals. Another level above that is the Court of Appeals for the Armed Forces, which is a civilian court that reviews it. You then go to the United States Supreme Court after that.

That’s a full career, even before you even factor in your Texas practice and being a judge in Texas. It is fascinating.

It is a full career because I was a sitting judge at the time, so it made it easy to go off thirteen weeks to judge’s school, which enhanced my civilian judging practice as well. The Navy sent me to the National Judicial College to do capital cases. I was capital case certified to try capital murder cases. The training is excellent. It worked well on the civilian bench as well. I enjoyed my time on both of those courts.

I take it you were a civil judge in Harris County.

Correct.

That’s a big contrast between what you were doing day in and day out as a sitting judge in the Civil District Court in Harris County versus a lot of the criminal prosecutions and things you were doing in the military.

You shift gears. Harris County and in large metropolitan areas like Dallas-Fort Worth, Austin, and San Antonio, the judiciary is so big, particularly in Harris County. We have 60 district courts. We have 25 county courts. It’s a big complex. What they did historically is they divided the courts up by division. We have a civil division, criminal, juvenile, and family. Since I was mostly an admiralty lawyer doing civil practice, that’s what I was interested in doing for the most part. To get out and go do something else, you have to shift gears and put a different hat on. You got to think about it. These are large metropolitan areas.

four people holding puzzle pieces that fit together
Special Judges: In large metropolitan areas, courts are divided up by division. There are civil, criminal, juvenile, and family. So you get to go out, shift gears, and put on different hats.

In the rest of the state, like in the big state of Texas, the great number of judges out there are courts of general jurisdiction. They have to put on a different hat every day. They’re shifting hats every day. I had the pleasure of sitting for my good friend, Judge Craig Estlinbaum, for a number of years down in the 130th District Court in Matagorda County. He shifted gears every day. He was a court of general jurisdiction. He did criminal, family, juvenile, and civil.

A lot of our judiciary has to do that. It’s not something that I shied away from at all because others have to do it. I enjoyed it. It made me better to be able to go off and do something else and see that the world is not just in my fishbowl here in Harris County and that there are other things going on. It’s very important places and things. It helped me become a better judge practitioner by seeing different types of cases.

One of the things we wanted to talk about in particular here was some of the ADR processes in Texas. That’s something I know you’ve been doing for a long time. As a judge, you did some of it, and now after being a judge, you do a lot of it. That’s a whole lot of what you do. Let’s dive into some of them. Let’s start with mediation. Everybody here and everybody that’s reading has done a lot of mediation. To me, it feels like it’s changed a little bit after COVID. Is that a sense you have?

Mediations have changed since COVID. In March 2020, I had a full docket of cases. By the end of March, everything I had in April had gone away. Everybody canceled. It was a quick turnaround about what do we do because all of the mediations before that time were live. People would come to see me live. In March, it shifted. In order to live and make a living, you had to adapt. Zoom came along. The first I heard about Zoom was from my youngest son, who said, “Dad, you ought to pick up Zoom,” and I started talking with others, and they started doing Zoom. By May, I started picking up mediations via Zoom.

That’s now become the new norm. That’s not going away, in my opinion. It will be here. If you remember, Jody, you worked in the court with me. We would take phone calls, but Zoom’s even better. If I were in the court process, I would implement Zoom for oral hearings so that you don’t have to come to Houston from Tarrant County. We can appear like this on a Zoom call. It has made mediation a different practice. You have to be more flexible. It gives us the opportunity to see people face to face. I still prefer live mediation because it’s hard to say no when you’re sitting in the same room with somebody, and you’re looking them in the face.

I can keep them occupied on Zoom. When I leave the room, I can do something else, and people are multitasking in their offices. It doesn’t work in all cases, but it does work for half days and full days. I’ve had hybrid mediations, which has been a plus, where I say, “Let’s take a car wreck case.” Years past, the adjuster for the insurance company, who may be residing in Cincinnati, Ohio, is not flying down to a half-day mediation for a live mediation.

In Zoom, I get to see them face-to-face now. They can appear, and I can let them see the plaintiff and make their own assessment. There are some real pluses to it having it done that way, but there are pluses and minuses. The minuses are you get distracted doing something else and are not completely involved in the mediation. The pluses are I get to have people present, see their facial expressions, and talk to them one-on-one, looking in the face. It’s here to stay. It’s not going away.

What about mediations during appeal? We have a pretty good cross-section of trial and appellate practitioners that read this. As an appellate practitioner, they happen. It’s not that frequent, but it does happen. I feel like I’ve seen it happening more in the last few years than previously. Do you have thoughts on that type of mediation in particular?

I do get some cases from the Court of Appeals. In Houston, we have two. Everybody probably is aware, but if not, we have the 1st and 14th Court of Appeals here that sit in Harris County and Houston and in the surrounding counties. I find them interesting. I’ll get cases that are up on appeal. They’re a little unique because you already have an answer. Either the trial judge has granted a motion or denied a motion, and you’re taking it up on appeal.

I find it interesting that if I get an order to mediation from the Court of Appeals directly to me, having been a trial judge, when I would typically order something to mediation, it’s because there is confusion. I like to tell people that if there’s confusion, there’s opportunity. When I have a mediation where there’s an appeal, and the lawyers come in and say, “I won at the trial court,” my typical response is, “If it was a slam dunker, why do you think the Court of Appeals is sending you to mediation?” They’re sending you a signal. They’re giving both sides an opportunity because they’re looking at your case. That’s how I read it. They’re looking heavily at your case.

They’re just not sending it off to slow the process down. Don’t be too confident in your position. You may have won in the district court, but you may lose the war. You may have won the initial battle, but the nine on high are looking at it pretty close. This is a good opportunity to get something resolved before something is done to your case. Remember, when you’re on appeal, what is the Court of Appeals going to do? They’re either going to affirm, reverse and render, or reverse and remand. There’s confusion. If you’re up on appeal, and the justice sends you to mediation, you might consider, “Do I really want to reverse and remand and start all over again?”

Think about the cost of litigation that you’re spending. You hired good appellate lawyers, and you’ve had trial lawyers, and you’re going to start it all over again. If you reverse and render, what does that mean? That means you lose. They turned it around and fixed it, and you lost. You have two shots of losing and one shot of winning. Don’t get too confident. Today’s a good day in mediation, maybe to take things into your own hands and stop the financial bloodbath. I’m all in favor of lawyers making money, but you got to do the economics and decide, “Do I want to go all the way back, start all over again, and try this case all over again?” There’s a good opportunity in cases that are up on appeal to get things settled.

Even if the Court of Appeals doesn’t send it to me and the parties get together, it may have been something in your briefing that raised an issue on the other side for them to have some concerns. We call that risk assessment. What are the strengths and weaknesses in your case? I always focus on weaknesses because they translate into risk. In risk assessments, what we do as counselors at law is advise our clients. A good appellate motion or brief may raise a significant risk where the parties want to say, “Don’t go through the whole process. Do I really want to go to the next step to the Supreme Court?” It’s because you’re just bleeding money from there. There are good opportunities to get cases settled, even on appeal.

I was curious how deeply you get into the merits of the case. You answered that by looking to pick out what the risk is, what the holes or the warts are, and the prevailing party’s case. If they’re holding on to a million-dollar judgment, you go to mediation with the assumption that you’re going to negotiate off of that to some degree. Is there anything more about the merits that you look at or otherwise? How do you help the parties get to the proper settlement value of a case like that?

Todd, you raise a good point because you have an upper limit, and it’s already been set. The bottom limit is zero. You already start off with a realistic bracket in the mediation. Unlike in the trial court, in the old days, we plead the minimum jurisdictional limits of the court. I don’t know what that is. You throw out your damages. The trial’s already happened, and the jury already assessed the award. What I work with is I try to find the little one or two nuggets in the case. It may have been from the briefing that the lawyers had on the issue. I look at the jury charge. Is there something in the charge that was not correct or may cause some problems? Did the judge submit a charge and, on judgment, throw something out?

Let’s take, for example, punitive damages. Did they keep the punitive damage aspect in the judgment when you look? You don’t get punitive damages in this case because of the subjective and objective standards and looking at it. There’s a risk, but I already have a cap. You’re coming off that number to get it resolved. It may be a million-dollar award, and then it’s a zero. I then shift to looking at economics. It’s none of my business what the client’s relationship is financially with their attorney. When I raise that question with them, “I don’t know how much you’ve spent on your lawyer, but how much do you think you’re going to spend to take this all the way through?”

You then look at a million-dollar verdict and start looking at it going, “Why would I spend any more money when I can resolve it for something less than that?” It’s economic, and a lot of them are business decisions on the civil side or complete business decisions for the parties. It’s like, “How do I get this resolved without spending any more money?” The worst thing you can tell somebody is it’s a matter of principle. There’s no such thing as principle in the courtroom. It doesn’t exist. It’s in the movies. Somebody might say, “I’m going to stand on principle.” No, you’re not. That doesn’t exist. Somebody gave you some idea about principle, but at the end of the day, if you spent $20,000 when you could have settled it for $2,000, why would you do that?

I have an example I use that came from a family member. It was a case where they hired a lady to work for her. She worked for her for two weeks, and they didn’t get along. A family member terminated the employment of the person. The family member got a letter from a lawyer saying, “Wrongful termination. We’re going to sue you, but we’ll settle out of court for $2,000.” My family member said, “What do I do?” I said, “You write a check for $2,000.” It’s wrong. It’s an employment-at-will state. They were only there for two weeks. They didn’t make $2,000. It’s household help. It’s a matter of principle.

I’m like, “You’re probably going to win on a summary judgment. If I had to look in the crystal ball, maybe, it depends on which court you’re in nowadays, but you’ll spend $20,000 when you can be done out of this for $2,000. It’s wrong, but economically and financially, why would you do that? Write it and be done with it. Be careful next time who you hire.” Those are examples that you take even in the Court of Appeals when you start adding those numbers together. Nowadays, you can run up a million dollars in legal fees. There’s a lot of economics that I try to focus on, particularly business people who appear in mediation.

Here’s another topic I want to talk about a little bit. Full disclosure, I love that I’m still learning things from you. At the business disputes seminar, you and Scott Field, who is Todd’s former partner, who retook the bench, talked about ADR. You talked in particular about the special judge process in Texas. I had never heard of that in many years of practicing law, but it’s fascinating. Can you outline it for us, tell us about it, and tell us some of the benefits as someone who does that sometimes?

There are a couple of things before I get into that a little bit. This is often overlooked. There are two provisions in Texas that I rely on as a judge. It’s sometimes overlooked by sitting judges nowadays. Texas Civil Practice and Remedies Code 154 is the whole basis for providing alternative dispute resolution in the process. There are a number of different types of alternative dispute resolution. One’s mediation, mini-trial, and moderated settlement conference. There’s a summary jury trial, and there’s even arbitration that’s in section 154. If you were so accustomed over the years of looking at mediation as ADR, and we refer to ADR as mediation, but ADR encompasses these basic five other areas.

Practitioners should look at those five to see what’s appropriate for a case for alternative dispute resolution. Not just focus on mediation but others. I remember in court one time. I was looking at trying to be innovative. I ordered the parties to go to arbitration. The parties filed their initial motion for a mandamus, saying, “I’m ordering you to arbitration under Section 154, the Texas Civil Practice and Remedies Code.”

They filed a notice of mandamus saying that it was inappropriate for me to order them to arbitration. I quickly called a hearing and had them come in. They said, “You ordered us arbitration, which is binding.” I go, “No, that’s contractual arbitration. Arbitration under 154 is non-binding. I’m trying to be innovative. You can go off and tell the Court of Appeals mandamus, but you’re wasting time and money. I’m not ordering you to a binding arbitration, but I want you to arbitrate, get some decision, and maybe mediate after that.”

It was a big case. It needed special handling. I also used summary jury trial on a couple of occasions. I try to think outside the box. There’s another provision under Texas Rules of Civil Procedure 166. In Texas Rules of Civil Procedure 166, there’s a laundry list of things that a trial judge is supposed to look at in pre-trying your case and getting your case ready for trial. In 166 subparagraph O, which I’m paraphrasing because I don’t have it right in front of me, it essentially says the judge should see if the parties have attempted to resolve their case without court intervention and facilitate and assist in the party’s resolution of the case without going to trial.

I paraphrased what the statute says. You can go back to take a look at the rule. In that case, we should try to get the case settled. I call that judicial arm-twisting. I’ve had lawyers come and say, “Your arm-twisting is to make it go settle.” I said, “I have two statutory provisions. One is Texas Rules of Civil Procedure 166 and Texas Civil Practice and Remedies Code 154.” I can do that. There’s another provision that you’ve raised here, which I’m a big proponent of. It’s under Texas Civil Practice and Remedies Code 151. In that, it’s called a special judge statute. It’s another alternative to resolving your case.

It’s a better alternative to arbitration. I’m an arbitrator. I’m also qualified under the statute to be a special judge, so I’m a little bit partial to that. Here are the two main differences between arbitration and special judge. In a special judge provision, you get a record. It’s a bench trial, and it can be appealed. Those are three points. Second, in arbitration, typically, you can get a record, but the appeal is very limited, essentially a misconduct of the arbitrator. Either misconduct through failure to disclose properly, or the award is so outside of the greater weight of the evidence that it can be reversed. A special judge gives you the option of appealing to the Court of Appeals. The second distinction in my mind is that arbitration under the Texas and Federal Arbitration Act generally provides a fair and just result. The rules of evidence and procedure are relaxed.

JUSTICE BUILDING PUZZLE
Special Judges: The Texas and Federal Arbitration Act generally provides for a fair and just result. The rules of evidence and procedure are relaxed so that a final hearing can be held, and the arbitrator can have a fair and just result.

A final hearing can be held, and the arbitrator confession is a fair and just result. In special judges, I’m operating under the law. While in courts of equity and law, arbitrations are more equitable. The special judge here is, “I’m going to follow the rules of civil procedure and the rules of evidence. I’m going to rule on the matter as a matter of law.” I handled my cases very differently. I wear different hats. Do you want continuance in arbitration? I’ll give you as many continuances as I can stomach. In a special judge case, I’m going to run it like I ran my district court case in the 269th.

Each side usually gets one bite at the apple and then a third time on that set. We set your case for trial, and we go try it. Lastly, the beautiful part about the special judge, which the people miss, is in Harris County, we have 24 civil district courts. When you file your lawsuit, it’s randomly assigned to a court. As a special judge, once the case is filed, if you and your opposing counsel get along very well, you can agree to have a judge you want to try your case. I’m not casting any disparagement on sitting judges that we have, nothing at all. Somebody may feel like they want a particular judge with a particular background to try their case.

I had a case in 2021 where the lawyers called me and were asking me questions. I said, “You guys are interviewing me, aren’t you?” They said, “I guess we are.” I go, “How beautiful is this.” It works. It’s a good provision. You file a joint motion for a special judge, and the district judge should sign. It should be just a ministerial task to sign it. The special judge tries the case just as they’re trying the case out of the court in which the case was filed. I have to follow the local rules and procedures of the sitting judge. I cannot try it at the courthouse. It has to be off campus.

You get a court reporter, the judge enters a verdict, and that verdict is not summary. It’s not an advisory to the sitting judge. It is a final award or final verdict in the case, and a judgment is entered, and then the parties are entitled to take that up on appeal. You may have a reason to do it because you can get into a special judge in three weeks or a month. Whereas with a COVID backlog of cases they’re experiencing across the state, it may be a couple of years before you get something. There are a lot of practical reasons for doing it. I encourage people to utilize it. I’m surprised that more people don’t know about it. That’s been my soapbox that I’m screaming from. It’s like, “Let’s look at this. It’s a good option.”

It surprises me. Someone said, “We want you to arbitrate a case.” I said, “Why don’t you let me be your special judge?” They said, “We want it to be private and confidential.” I go, “If you ask for me as an arbitrator to file a reasoned award, you go to the court to enter the reasoned award and have it converted to a judgment. How private is that? It’s all on the court’s file.” Everything I did in the reasoned award, the findings, the facts, the conclusions, all the whole case I’ve outlined, and you filed it, so it’s not confidential. It’s all in the file. Why not have something that’s a special judge provision where you can take it up on appeal?

I don’t mind you appealing me. If you say, “I do the best I can based on the law in my reading of it,” if you have a problem with my ruling and think I abused discretion, I’m very thick-skinned about that. That’s what our appellate courts are for. Take it up on appeal. Go up there and tell them that I did something wrong. What I have a hard time with is when you go on arbitration, we went through it, and both sides picked me. I did all my disclosures, and you don’t like my award.

What do you do to get it overturned? You attack me personally. I don’t have a very thick skin on that. You put it in, and all the records in the courthouse to get it overturned about what an evil person I am when you picked me because you didn’t like the result. I would rather you take me up on appeal and have the Court of Appeals go back and take a look at it and say, “He made a mistake,” or “No, he didn’t,” and it’s done.

It sounds like the special judge arrangement has a lot of the advantages of arbitration, but not that one big downfall of not being reviewable. Arbitration went through something years ago, this big push, and the courts started reviewing these arbitrators’ decisions. It became pretty clear that you can’t appeal on the legal correctness of the award. It amazes me that more people don’t know about this special judge procedure because it brings elements of both ordinary judging and arbitration together, the best of all worlds. The one thing is you still got to pay your judge. One of the downfalls to arbitration is you’ve got to pay for the service. The idea of getting in front of a special judge quickly to get your case resolved one way or the other and still maintaining the right of appeal seems to me to be a huge advantage.

I personally don’t think there is a big difference in cost between a special judge and an arbitration. You’re paying your arbitrator the same amount of money. In many cases, I had arbitrations where they had a court reporter in the room, so you’re paying for the facilities that you’re doing. The costs are the same, essentially. I don’t see a big difference, if any, in cost. It’s not going to be cheaper, but it can be faster in the process. My experience is younger lawyers are not going to court. They’re cutting their teeth in trials on arbitrations. I would rather you cut your teeth in a case where you come in and are trying to introduce a document, the foundational requirements for introducing a document.

In arbitrations, it’s like, “Let’s put it in. I’ll give it its proper weight and value.” I’ll make it a special judge. I’m going to make you prove up your document if the other side objects to it, so you get some good trial experience available. Like I said, I’m partial to a special judge because I qualify. There are qualifications, and I can’t remember off the top of my head what those numbers are. You have to have been a judge for so many years in order to qualify to be a special judge. You get judges. In arbitrations, there are fine arbitrators who have not been jurists. Very technical knowledge of a particular area of the law is wonderful to have.

Judges are more jack of all trades and masters of none, where you might need somebody who is a master in a particular area. Being a special judge, we see so many more cases. We’ve been exposed to far many more cases than most lawyers. Having a working knowledge of the rules of civil procedure and rules of evidence is very helpful. I’m a big proponent of it. You get a decision maker and get a decision made. There are time limits for the judge to issue a special judge verdict, so it moves pretty quickly. I would encourage everyone to look at Texas Civil Practice and Remedies Code Section 151.

The special judge statute is a great alternative to arbitration. It’s a way to potentially lower some costs, but not tremendously. I’m a AAA panelist. They do fine work at AAA. I’ve been on JAMS panels too. Sometimes in those big organizations, you have to go through their processes and post large deposits from time to time. Where a special judge, the judge just bills you. It’s part of the process.

You have to deal with those administered arbitrations where your court is AAA and pick your arbitrators. I’ve been involved in more than one where there have been three arbitrators. You’re multiplying your cost for your arbiter by three. We don’t need to talk about it, but in that situation, you’re potentially in a situation where each side gets to pick an arbitrator, and then the other arbitrators pick a third arbitrator. You’re lobbying for a favorable result based on how you constitute the arbitrator. Special judging seems like there’s a lot more opportunity for someone like you to look at the facts in the law and spit out a decision that’s more consistent with who has the relationship with the arbitrator and more based on the facts in the law.

Also, since I’ve taken senior status, I’m not practicing law. I’m not on one side of the docket or the other. I gave up the practice of law, and I don’t want to do what you guys do either at the appellate level or the trial level. I don’t want to go back. I’m not a plaintiff’s lawyer arbitrating. I’m neutral. I don’t have skin in the game in the sense that I have defense clients going to say, “How come you’re ruling for the plaintiff or vice versa?” A lot of the special judges are that way. It’s a good process that people need to take time to look at. They’re just reluctant to do it. I remember people were reluctant to use mediation, and now it’s the norm.

You mentioned how Zoom impacted mediation at the beginning of the pandemic and now is here to stay. We’re now coming to grips with the backlog that the pandemic left us in the cases that need to get resolved. Aside from folks like you who are down in this encouraging lawyers to get together and use this special procedure, it seems like there is a great opportunity. If someone has a case that’s languishing, can’t get reached, and wants to have a jury trial, the main thing they have to give up is not having the actual elected official judge decide to make key rulings. Secondly, they would have to give up a jury. Otherwise, if speed is one of the most important factors in getting the case resolved, it seems like this is a great option for folks who have cases that aren’t moving for whatever reason.

It is. If I were an active judge and got requests for special judge, go. What a great way to have another jurist help me by getting my backlog taken care of. I’m not offended by that at all. The other thing is, by our local rules in Harris County, if I sent a case to another judge to try, I attracted a new case. In this case, if a case goes to a special judge, I’m getting the case off my docket, but I’m not attracting a new case. My docket is going down. That’s beautiful. If you got a judge you want to try because you all feel more comfortable with that judge, or you can get it in faster, knock your lights out. Do it. I’m not offended at all by that. I’m more interested in reducing my docket than my feelings getting hurt because you want another judge other than me.

You look like a hero with OCA at the end of the year. You’re clearing your cases off your docket. You’re not going to be one of those that gets singled out on the judicial efficiency watch.

You just knock them out. I’m not even going to ask you your reason. Go. Sign the orders. When Jody and I were working together, we had 1,500 cases on our docket. They were all paper files in Harris County in 269th back then. They’re probably 2,500 to 3,000 each. My statistics back in my days, I had 90 new cases filed every month. That’s Smith versus Jones car wreck case versus the multiparty complex business dispute. I had to reduce by 100 to keep a healthy reduction on my docket. I’m a manager of a docket. I’m not a lawyer. I’ve tried to reduce dockets so that litigants can get into court in a reasonable amount of time and get their cases resolved, not have them languish. That’s my philosophy.

All the more reason to lean on the authority of the ADR statute in rule 166a and remind litigants that, “You’re not the only case I’ve got. I’ve got a much bigger job.”

This case is the most important to them. In their case of 1,500, there’s not one more important than the other. If we can get them resolved and get their dispute taken care of without them, they can have confidence in our system of justice, our court system, so they don’t languish forever. I’m always conscious of lawyers concerned about their clients calling them, “What’s the status of my case? I thought I hired the best lawyer in Houston, and you can’t get me a trial.” That’s not good. 151 is a good process your readers need to look at because if you’re accustomed to arbitrations, you should pick this up with no problem.

At what point in the process does it get referred out? Does a special judge do the discovery and all that stuff too?

It depends on how far into the process you are. I’ve known cases that, as soon as it’s filed, they’ve filed their motion with the sitting judge, and I’ve known them where they’ve been on the docket for some period of time. It’s wherever they are. As soon as the special judge gets the case, they pick it up and run with it. There’s nothing advisory. It’s not like in a lot of federal magistrates where they give their award that you can go to the district court for review. That’s not the case. You don’t take it to go to the sitting judge. It’s done.

It’s just like an arbitration. The arbitrator rules, it’s done. The nice part about a special judge is it cuts out a step. In arbitration, once you get your final award, if you want to reduce it to a judgment, you’ve got to take that final step and go down to the courthouse and wait for the judge to get that converted and have a hearing on it. No. You get a verdict from the special judge, and you’re done. You can tee it up and start your appellate process. It is actually a little faster.

We’ve been so happy to have you on to talk about this. It’s a fascinating topic. We’re super happy to help educate our readers about it. For our trial lawyer friends who are reading, please consider this option. From everything I’ve learned, we still have a significant backlog from the pandemic. It does seem like a useful tool. We warned you before we started the interview that one of the things we like to do as we reach the end of the episode is to ask our guests for a tip or a war story. Was there something you had left that we didn’t have a chance to cover already?

I didn’t have anything in mind until before we went on the interview. I was talking with a lawyer who was mediating about the special judge provision. When you file your joint motion with the sitting judge, the sitting judge can deny it. Why? I have no clue why they would do such a thing, but they can. In this case, this lawyer said their workaround to it. I had one, one time. I had a sitting judge in Harris County who denied their motion. The lawyer said, “Forget that.” They came to me, and I arbitrated it. That’s another reason why.

attorney talking to judge
Special Judges: The sitting judge can deny a joint motion. To work around that, you can either arbitrate it or file a friendly suit and then a motion to refer to a special judge.

Why would the sitting judge deny it? I don’t know because they ended up arbitrating it anyway. This lawyer was telling me this war story where they filed their motion. The sitting judge denied it. It was in Harris County. The two lawyers who got along with each other thought, “How do we do a workaround on this? We can either arbitrate it.” What they did was they went to the county next door. They filed a friendly suit over there. When they filed their motion to refer to a special judge, the judge granted it, and then they came back to Harris County and non-suit.

I thought, “That’s an interesting workaround.” My knee-jerk reaction is, “Are you forum shopping?” “Not really.” “You already forum shopped and picked your judge, which is allowed under 151 to do.” I thought, “This is interesting, but you guys are the appellate guys. I might ask you. Do you see any glaring issues with that?” I thought what an ingenious workaround to get the case to a special judge because they wanted a right to appeal.

Presumably, the only people that could object to it are the ones who agreed to it. I don’t see how anybody would raise it on an appeal. I guess if somebody gets a bad result, all of a sudden, they may change their mind about it.

It’s not like the sitting judge can do anything because it’s a non-suit. There’s no discretion by the sitting judge in state courts. The 164, 167, whatever, is non-suit. There’s nothing they can do about it. It was in another county. If they file it in Harris County, it’s automatically attracted back to where it was originally filed. That’s not going to happen. If it was in another county, someone could move to transfer the venue back because they were forum shopping. Who’s going to argue? Both of them agreed to it. It’s a pretty ingenious workaround. They went off, and the special judge tried it soup to nuts from the very beginning to end. Everything was filed there. It was interesting.

It’s not every day we have the encouragement of forum shopping going on our show.

I will tell you, it’s rare. My experience with the denial of a special judge is rare. Some of the judges that have thought about it don’t know about 151 any more than the lawyers know about it. Once they’re educated on it, they go, “This is beautiful. Why wouldn’t you do it?” It’s the potential way for the future.

It’s been great to learn about it, Judge. Thank you so much for your time. I’ll let Jody speak to this. Your name has come up on our show before, so it’s a pleasure to meet you. I know that Jody spoke well of you and had a great experience working for you in law school.

I had a number of law clerks that came through. I had lots of resumes and had three piles that I would look at in interviewing, the TCU pile, the former military pile, and the former college athlete pile. With the athletes and the military, we have the same thought process of mission accomplishment, how to prioritize, and a team-oriented approach. The TCU people are close to my heart. Every TCU grad I’ve had come through has been a huge success. It was a pleasure. Jody could probably tell you more stories, but I relied on my law clerks extensively and tried to take time to help them get ready for the practice of law, making sure they looked at all the cases.

Here’s one real quick war story. I would send summary judgments. I would send them to the clerks and say, “I want to know what you think.” I would read them first, I’d go through, and send them to the clerk. They would have a stack five inches tall of a motion, and the response may be an inch tall. They would come back in and say, “I like this one.” I said, “First of all, just because it’s five inches doesn’t mean it’s a winner. The one-inch one may be the winner.” I said, “Second of all, how many pages did the lawyer spend on the brief telling me the summary judgment standard? Knock all those pages off right off the bat.”

How much did they spend on the law? They may be beautiful writers, but how many cases did they actually put in their brief? Take a look at a case where a lawyer wrote a beautiful brief who is a wonderful writer but didn’t cite one case. That’s usually a loser. Those are the training things we would go through the steps on looking at it. Give me the 1, 2, or 3 appellate cases that are right on point. Those are usually the winners. He was very good at picking the flies out of the ointment, as I call it. It’s always a pleasure to see him growing up, as we all have. It’s been a joy to be with you. Thank you for letting me come on and answer any questions that you have.

Thank you so much. We appreciate it.


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About Judge John T. Wooldridge

Judge John T. Wooldridge obtained his Master of Laws (LL.M.) in Admiralty degree from Tulane Law School, his Juris Doctor (J.D.) degree from St. Mary’s University School of Law, and his Bachelor of Fine Arts (B.F.A.) degree from Texas Christian University.

He is a Senior District Judge (Ret.) and a former United States Military Judge with the Navy-Marine Corps Trial Judiciary. Judge Wooldridge has over twenty-three years of judicial service and has presided over numerous Civil, Criminal and Family Law cases. He is also authorized and available to sit as a Visiting Judge by assignment within the State of Texas.

Judge Wooldridge is a Panelist with the American Arbitration Association (AAA), Judicial Workplace Arbitrations, Inc. (JWA), and Dispute Solutions, Inc. (DSI). He has been appointed as an arbitrator with the International Chamber of Commerce (ICC) and has been approved to provide ADR services in the U.S. District Courts, Southern and Eastern Districts of Texas. Judge Wooldridge has been inducted into the Texas Chapter of the National Academy of Distinguished Neutrals (NADN) and has been named as a 2021-2022 Houstonia Magazine Top Lawyer in ADR. He is available for Mediations, Arbitrations, Special Judge (CPRC 151), Mini Trial, as an Umpire, Commissioner, or other forms of ADR, statewide and nationally. Judge Wooldridge also provides insurance claims Umpire services and has been appointed by both Court Ordered as well as claims appraisers as an Umpire regarding valuation of personal and real property or the amount of property loss.

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