Enhancing Your Visib ...

Enhancing Your Visibility Through Media Commentary | David Coale

April 28, 2022 | by D. Todd Smith

While lawyers are used to reading and speaking legalese, breaking complex legal concepts into digestible bits is a talent not all lawyers have. But, with legal issues and court proceedings frequently in the news, it’s becoming an increasingly necessary skill set. This is particularly true when attorneys need to speak to the media about legal issues and cases. This episode’s guest, David Coale, a partner at Lynn Pinker Hurst & Schwegmann, LLP, has developed a talent for addressing hot legal topics in the media. David shares with Todd Smith and Jody Sanders how he uses his blog and podcast to produce media commentary about various aspects of the law that anyone can easily understand. He also offers tips for attorneys discussing their own cases or broader legal concepts in the media and how to protect their clients’ interests while educating the public.

Listen to the podcast here:

Enhancing Your Visibility Through Media Commentary | David Coale

Our guest is David Coale from Lynn Pinker in Dallas. David is an appellate lawyer who has done many different things. You may have seen him on media appearances. He’s got some appellate blogs, and we will talk about all that stuff. David, thank you so much for joining us.

Thanks for having me, and I look forward to returning the favor and having you guys.

For any of our readers who may not know you, tell us a little bit about yourself and your background.

I’m a sixth-generation Texan. I was born in Dallas at Presbyterian Hospital when it was out in the country. I grew up in Allen in the suburbs up there, when it was still largely country. We just turned 4A. I went out of state for college. I came back to law school at UT and clerked in Dallas and have practiced law in Dallas ever since. I’m a Dallas guy from way back. In our city, that is relatively uncommon. Most people seem to move there from somewhere over the years, but I have been for a while here.

You clerked for Judge Higginbotham of the Fifth Circuit. How was that experience?

He was top of his game. He has been active since then. Even though he’s taken senior status, he had been on the shortlist for a Supreme Court nomination in the Reagan administration that had come and gone but he was still very prominent in judicial circles. He was very active in a lot of activities. He flew to Washington to testify a couple of times. It was exciting to get to go to New Orleans, which I had never been to before. Suddenly, you get off the plane, and there is this ginormous courthouse in the middle of Sin City. It is the biggest contrast you can imagine. That was a wonderful experience above and beyond the ordinary things about being in a clerkship.

I always thought that would be a great aspect of being a Fifth Circuit clerk being in your local spot with your judge and their locale but being able to go to New Orleans periodically for oral arguments.

When the Fifth Circuit is in session, you can go station yourself somewhere on Bourbon Street, the place I leave to your sound discretion, but you can sit there and watch all these people carrying on and having parties. You will see some of the most Conservative Federal judges in America walking down the street to their hotel. There will be street hustlers and people banging on drums and partiers with drinks in their hands, and Edith Jones walking on by with her law clerks. It is the most fascinating contrast, but it enriches both—the court benefits by being part of the unusual culture in New Orleans. They are very proud of it there, and it is something everybody looks forward to.

You were there at a time when some of the very legendary Fifth Circuit judges were still on the bench or maybe even in senior status, Judge Wisdom or Judge Brown, people like that?

Judge Brown had passed away, but we did sit with Judge Wisdom a couple of times. Once in particular, and I remember vividly but I forget who the third judge was on the panel but the arguments had concluded for the day, the judges were getting up to go back to their conference. The parties were still hanging around from the last argument and packing up their stuff. Judge Wisdom and his big booming voice and he says in his loud voice to his clerk that was sitting there, “Tell my law clerk,” with this big Southern accent.

Everybody in the room is like, “The old man is going to give it up. He is going to say how he is going to vote in this case. He is going to blow it right here in front of us.” Everybody is listening to what he has to say. Even the other two judges are turning around like, “What the hell is Wisdom doing?” The booming voice continues, “To get my salmon sandwich from the refrigerator and place it on the table.” You just trolled the whole room. He did that on purpose. We were like, “Get that man his sandwich. Don’t keep him waiting.” He was a showman. He had a sense of the theater. We had moments like that when we sat with him. I thought, “You could have waited to get your sandwich, but you had to do it right there in front of everybody.” I was impressed with the style points.

How did you get to what you are doing now after you got done with your clerkship? What was your career path?

I had practiced as a General Business Litigator for a number of years. I had tried cases and took depositions and all that stuff. I still do a little bit of that on some clients I have had for a long time, but I joined this firm Lynn Pinker several years ago. It very quickly evolved into the practice I have now. They didn’t have an appellate specialist. I was interested in trying to develop that practice, and very quickly it evolved where I became the appellate lawyer at a firm of trial lawyers and a trial boutique.

We have grown over time and my responsibilities have evolved with that, but I’m still the appeal guy. We are 30, 40 lawyers, depending on the vagaries of the season. I’m the law guy in the face of people that are going down to the courthouse and trying cases. The pandemic slowed things down a little bit, but it is a daily rollercoaster ride around here. I love adventure in this office, which is fantastic. It is very stimulating and enriching.

You have associates in the office that you have at your disposal. Do you have anybody dedicated to you in your practice specifically?

Not really. Over time, people have been more or less interested in appellate work. I have had people that have spent more of their out time with me, but generally speaking people come here because they want to go to trial. They will take depositions and want to go to court. They are certainly happy to help with appeals, but that is not why they get out of bed in the morning to work on appellate stuff.

I have to be creative and resourceful in getting that in any brief. On some days, that is more of a challenge than others. It is great that you have a lot of associates that want to go to court and kick butt and take names, but I have to acknowledge the reality that people want to be trial lawyers, even if from a young age here. I’ve got to deal with that in getting things staffed up the way I would like to. If you like bureaucracy, this is not the place to be. This is not how we roll here at this office.

How much of your practice is the trial side of appellate stuff, the legal issues, the talking to judges, the charge stuff versus briefing and courts of appeals?

It is about half and half on average. It has never been an average day, but generally speaking I would say about half the practice in a given week, given day is traditional thinking great thoughts and writing briefs type of practice. The other half is what I would call either trial practice and sense of motion practice or the drop-in traffic, which is my 30 to 40 aggressive partners not long ago, things come up, and they come by, and the questions you hear them all the time, too. Number one, can we appeal that? Number two, can we mandamus that? Number three, do you know a good bail bondsman?

During the pandemic, I missed that because people would call up and email but it is one thing to do that and another thing to be sitting in your office and having people drop by. I can give a very quick answer sometimes; other times it turns out there is something going on and I need to get in and draft something or something like that. That is a benefit of our lack of structure that people can come and go like that.

I can be a part of a lot of different cases without having to stick my nose in and appear, and they have more of me than they want. All you want is a fifteen-minute consult. That is good. By the way, the question I used to get a lot that you know in your practice was in addition to, “Can we appeal that?” is, “Does the TCPA apply to that?” That was a full-time practice there.

The answer was almost always yes.

I missed my TCPA notes because I haven’t had a look at them for a couple of years now. I have to find out for good ideas.

How are things now? We all have probably seen it in the last couple of years. Everything went quiet on the trial side. For a trial firm, how is business? Are things coming back with a vengeance? For me, I have seen so many things get set in the last 6 to 8 months that hadn’t been set for 2 years.

What I noticed over the last couple of years, more in the first year of the pandemic, was after an initial shock where nothing happened because everybody was home, then things began to come back online. As an appellate lawyer, my overall workload returned to the normal level but the composition changed. Judges are still going to the office. They’ve still got law clerks. They were doing other things besides trying cases.

Motions that might have sat around for a while to get decided, now they are getting decided like that after the hearing. The velocity of motion practice picked way up, and that was a lot of things that otherwise lingered were not lingering. People then got more used to Zoom and were able to conduct trials, hearings, and whatnot. That got the trial guys back in business again.

We have had jury trials and bench trials scheduled now without much in the way of COVID protocols required. That is good. Everyone seems comfortable with that now. The backlog is enormous. I’m not sure what we are going to do about all that, particularly in Federal Court, where a lot of criminal cases by law have priority to be trialed. That is going to be a real challenge that we are going to have to deal with in the next couple of years. I don’t know what there is to do except get to it and start trying cases.

It had an impact on what comes out of the Court of Appeals if you look at opinions. The last couple of years have been a lot more motion-type things, a lot of summary judgment rulings, and forum-type things. That is what there has been. There haven’t been trials to review. My jury charge folder here is sad and lonesome. I have to dust it off and do some stuff with it one of these days.

You talked about the delay and getting to trial in Federal Court because of the Speedy Trial Act and the criminal cases. In the major Metropolitan jurisdictions, we are very fortunate to have separate civil and criminal courts, so I don’t think we will have quite as much trouble in state courts in those types of jurisdictions but it is still a problem. We still have giant backlogs from the pandemic. Maybe it is consensus or not that certainly trial lawyers, and then the appellate lawyers who go to trial with trial lawyers like the three of us, are going to be busy for quite some time to come.

I have high hopes for that. There are a couple of other pressures that we are going to experience. There is certainly going to be some pressure to settle cases because who wants to wait a long time to have a trial? The flip of that is nothing induces settlement quite like a trial date in an incredible time. Being 42nd on the docket doesn’t do very much.

Judges may become more assertive on that set of cases that are in the strike zone, ordering mediations or something to try and move a few extra cases along. This is a reason why appellate work might increase. It is obviously a good thing, but it might not be good for society if people start rushing and maybe don’t take the time to get everything lined up like they might want to because they are so excited to get a bunch of stuff in the pipeline. I’m not sure how that might play out, but it is something to be mindful of.

We have unusual pressures on people’s dockets now, both courts and litigants, that we have not ever seen. We have never had two years where people didn’t do anything. I’m not quite sure how that is going to cut, but it can’t have that many cases built up and not have it influence behavior somehow. We are more reliant on forums or more pressure to get stuff out there, settle or something. We are going to be seeing that bubble up into the work we do.

How much of your practice is Federal versus state or does it vary? I know you keep up with both a lot.

Honestly, it will be 100% of one or 100% of the other. A couple of big things take up a lot of time, and it swings back the other way. On average, it is probably more state than Federal over the course of a year. At any given time, a couple of big Federal things are coming along and that is all-consuming. It is hard to generalize.

For example, we had a couple of cases set. One is settled. I don’t know about the other. One was in state court in Dallas. The other is in a Federal report out in Texarkana, and that is how it goes. You have a couple of things that are in different jurisdictions. For appellate lawyers, there is no place for us to speak up to the court but for trial lawyers, it is very real.

It is something that factors into the mix, too, of where your partners are going and what they are doing. That isn’t quite covered. AAA has got a lot of stuff on its docket but its pressures are a little different than a courtroom. They were able to move things along, maybe a little better during the pandemic, but that is just speculation.

We are a little bit like the appendix of arbitration proceedings because we are there, we are superfluous, but if something goes wrong, then occasionally, we get involved.

We are useful if the arbitrator wants to follow the law.

That is right. Is arbitration a more efficient, faster way of resolving cases? It depends on the case.

Everyone here probably has a similar perspective about that.

You never know how it is going to go.

It is a little hard to get super interested in arbitration as an appellate lawyer because they have pretty much killed every challenge that there ever was.

Does your office have a fair amount of arbitration practice? Is that something you all do quite a bit of?

Yes, it depends on the type of case, but you see it and you see a lot of sparring around about whether a case will be in arbitration or another form in any of your cases. Sometimes that can be outcome determined. If you have that and the case resolved once you know where it is going to be. During the pandemic, I’m not going to suggest that anything was just rocking along.

man looking at laptop screen taking notes
Media Commentary: Appellate law is not about being done. It’s just whether you have all the information or not. You hustle every day. It is a stressful job.

Everything was so affected but in addition to a couple of bench trials by Zoom, we were able to do some arbitrations using COVID protocols and things. It went fine. We are able to control things a little more in your office than you already have jurors coming in and how you run a public building. I’m hopeful that was the case around the country, and we were able to at least keep those cases moving along somewhat through the pipeline.

That makes a lot of sense. I hadn’t thought about it. To your point, I don’t get involved in arbitrations unless the question is, “Is this arbitrable?” That is the one place appellate lawyers get to weigh in and maybe have something to do, but other than that people don’t need us for a whole lot of stuff there.

The only reason I was willing to work on that one arbitration was they were going to have it at a hotel somewhere. It was 2020, and everything had failed. The air conditioning failed at the hotel. They came to our office. They had conference rooms down the hall and got shanghaied for this arbitration. They finished it out in our office. We did have air conditioning for the rest of the week, but I thought that was bad. The COVID box ended up in the global warming box. It is a rough year.

It has been an interesting couple of years. That is for sure.

One of the things that people probably know you for is your blogs. I’m going to call them the 600 blogs. The 600 Camp, 600 Commerce, and 600 Hemphill, which are the Fifth Circuit, Dallas Court of Appeals, and Texas Supreme Court. How did you get into legal blogging?

The 600 Camp was the first. The year before I joined this firm, I was the Chair of our State Bar Appellate Section. At least during that year, it seemed that a lot of CLE programs liked to have the chair of the appellate section on their program. I was invited to speak for a number of more CLEs then I ordinarily would, and I did to try to get some common ground so I didn’t have to write a whole bunch of papers. I focused on Fifth Circuit updates and issues that were relevant in the Fifth Circuit. I got in the habit that year, maybe the year before that, of reading daily or at least interacting daily with the email the Fifth Circuit sends out that summarizes what cases they decided that day. It is three per day.

I got in the habit of that. That is where I processed it pretty quickly and said, “I could do a blog with this. I’m doing the reading anyway. I’m getting a lot out of this. This is something I should keep on doing. I could do a little summary of some things and have a blog.” That fit in well with some things we were doing here when I joined with our website and the internet presence. I started simply with the published cases, not unpublished cases, and I went on from there.

I was thinking about expanding it to our Intermediate Court of Appeals here in Dallas. I was thinking about names, and my colleague, Mike Lynn, goes, “Doesn’t the state courthouse here have the same address as 600 Camp?” which, in fact, it does. I went, “You are exactly right, Mike.” That is how 600 Commerce was born, same format and style. I didn’t do much on it.

For the first couple of years, we did it. One of my colleagues did it, some other people did it, and then over time a couple of them left. Some other associates moved on to other kinds of practice. I picked that up as well. Both have had a similar voice, so I will do the content for both of them. 600 Camp celebrated its 10th anniversary in 2022, which is a good long lifetime.

The key to longevity there is, it is better to be competent than brilliant. I try to say something useful every week or two. A few posts a week are short. None of them are masterpieces, but over time, during the course of a year, I hope that I have said a lot of little things that add up to wisdom. What kills you in blogging is trying to do brilliant work every week or two. You can’t do it. No one is that smart. Anyone who’s a practicing lawyer has a lot of other demands on their time. You aren’t going to get it done.

By setting the target of being competent but maintaining it, I was able to keep it going for years. It fits right into my schedule now. I’m efficient at it. I know what I want to do. Other people may not like it. If it may not be for them, then start your own blog. It is free. I get a lot of excitement and happiness out of that. I enjoy it. It is fascinating to be engaged with all these cases coming out with these reports every week. I can very quickly leverage it into CLE programs on the courts, particular issues, or anything of that nature that I may find interesting. One foot in front of the other for ten years. That is how it’s worked.

I agree with what you said about how to keep a blog going, because having ventured down that path myself, it is extremely difficult to do at a high level for any length of time. For any blog that has been around for ten years, I’ve got to pay my respects.

I had some ten-year of celebratory posts here. There were a couple of running gags that I have had for that time. One is anybody who corrects a mistake, sends me an email, is on the list for valuable 600 Camp merchandise. I don’t have any merchandise. I had never had any merchandise, but if I ever have some I have a long list. Send me your correction when you see something. Several years ago, there was a case involving a seizure of a boat. It was a merchant vessel. The case was held to be moot on appeal because the ship had sailed. It had left New Orleans and the Fifth Circuit. There was nothing anybody could do about it. That was the ship had sailed mootness doctrine.

I thought that was fascinating. I had a little heading on the blog for about a year called, Where is the Name of the Boat? You can track these things. There are websites with active radars, and you can see where it is every day. It is nowhere near New Orleans. I looked it up for the ten-year posts. I wonder how my old friends are doing, and the boat is still floating.

It has changed names a couple of times, but it was in Singapore or something. There’s my old friends still sailing, hasn’t been to the United States in the last several years ever since it left New Orleans. That has been a funny encounter. Those people on that boat are probably wondering why they get all these hits. That is a fun thing you run across when you read a lot of cases. There are mini-stories like that.

You are building your own research library. One of the great things I learned in blogging was you know your work product. You get a little personal library of research and things that have piqued your interest. I can see how you could turn that into a CLE pretty easily.

If someone says, “Do you know a case that says such and such?” An associate that goes to answer that question will get on Westlaw. “I might, depending on the question. I’m probably going to get on one of the blogs, and I remember something and look it up and then go from there.” I started 600 Hemphill a few years ago to keep the same format going with the State Supreme Court. I’m going to fold that into 600 Commerce.

The Supreme Court of the United States and Texas are different than the Intermediate Courts of Appeals. They don’t produce that many opinions. Opinions they do produce are much longer, have a lot more dissents and things. The real action in those courts is on what they decide to take and don’t decide to take. That is very hard to keep up with, without doing a lot of reading. All I have to do for the other blogs, I get an email every day and it says, “Here is what we decided. In the case of a Dallas court, I go look, and there it is,” but to do that extra work starts you down the road of having to do something as high-quality every couple of weeks.

I’m going to take it and fold it into 600 Commerce and have occasional reports about the State Supreme Court, particularly if they involve a Dallas case. It has been fun, but it isn’t the same thing as the other two blogs. Look at SCOTUSblog with Tom Goldstein. They have got a whole set of conversations going there all the time.

It is this fascinating place to go look and read about Supreme Court cases, but that is never going to happen for a blog about an intermediate Court of Appeals. There are way too many cases. It’s spread way all over the place. You aren’t ever going to get that sustained dialogue, even in the highest-profile case. That is fine with me. I will do my thing and let somebody else cover those courts.

Even if somebody takes one nugget here and there, at least it is something useful for the reader and, frankly, for you and the people that you work with because you practice in Dallas.

If you want to subscribe, subscribe, that is great. If you want to look in every month or so, it is there. It is not going anywhere. In fact, I’m going to try to upgrade the tech. My poor WordPress off-the-shelf thing I have used is obsolete. The guy doesn’t update it anymore. I’m the only person still using this particular package. It is time to make it look less 2011, but it works. People can access it. It doesn’t have to be fancy. That is another thing that will kill you in blogging is trying to make something stunningly beautiful. People don’t want that. They want to read. They are appellate lawyers. They want to read words. They don’t want to look at pretty pictures.

If you look at the formatting of a Westlaw case that you print out, it is more about utility than beauty, and that is fine because I’m going to mark it up anyway with my highlighting.

They can look at pictures and try to find some meme or something, and that makes somebody laugh but I’m not in the meme business. Some professional comedians can do that. I’m just a guy with a blog. You’ve got to know what you are good at.

One thing I have found with the Texas Supreme Court was there were others out there who were already doing the same work. You get Osler’s summaries in the email every week, and now it has been taken over. It is like, “Why am I going to sit down and summarize the Texas Supreme Court cases when you’ve got the staff attorney already doing that?”

The Supreme Court worked its tail off for the last couple of years, with all the COVID orders, these elections, and all that. That is fantastic, and there is a lot of output. How much is relevant to what I do is not a whole lot. A lot of those statutory questions are very important for Texas, very important for certain industry groups but not that relevant to general Civil trial practice.

I was finding that the email you talk about, I’m glad to read it but there wasn’t a whole lot that I wanted to engage beyond that. The occasional case will come along, and I will handle it somewhere else. It is a different rhythm. Other people are covering it and covering it very well. There are plenty of courts to go around.

Every appellate lawyer in Texas could have their local appellate lawyer.

As I said, the United States of America has thirteen Intermediate Courts of Appeals and one Supreme Court. Texas has 14 and 2 Supreme Courts.

Another thing that you are known for, particularly in the DFW area, is a frequent appearance in the media as a legal commentator. How did you get into that?

Michael Hurst joined our firm in 2015. He brought with him a relationship with a well-known communications firm that does a lot of different things called Androvett Consulting here in town. Being a new partner and trying to get along with his new partner, he said, “Anybody who wants to meet my friends from Androvett and schedule a conference, they will be here next week.”

Being a blogger at that time, I scheduled it. I thought that would be interesting. We meet, they say, “What is your law practice? What do you do?” I said, “Civil Appellate Law.” That was a conversation killer. There is a ton of ice fell out of the ceiling under the middle of the room. Everyone was smiling awkwardly at each other for the next few minutes.

To the credit of Barry Pound, who’s a partner at that firm said, “Is that Constitutional Law?” I said, “Yes. It is not every day but I handle constitutional issues in my practice, and constitutional issues, that’s what we have Courts of Appeals for. It is to resolve that question. I’m not going to tell you I’m the world’s biggest expert but that is part of what I do.”

Conversations ends, and months go by. I figure I’m never going to hear from those people again. I don’t until there was an election in 2016. Surprisingly, to most people, Donald Trump wins the popular vote. Some time goes by, and Androvett gets a call, which they then relayed to me from a reporter in town wondering if anyone knows about faithless electors, Hamilton electors.

I said, “No, I don’t know a thing about them.” Notice, neither does anybody else in Dallas. I’m as good as anybody else. I can go read about it and come up with some things. If you want to scratch and find some Law professor in Washington, you can but that is going to take you a few days. Having boldly proclaimed that I covered, those guys move fast. In the morning, when they decided to have a story at 9:00, they were there.

That was back when they sent camera crews around. Now, it is 10:30 they are knocking at the door with the camera. I said, “I’m ready to go,” acting like I knew what I was doing. “Where do I sit? Where do I look?” They sat me down and showed me where to look. We got along great. Shaun Rabb was the reporter. He is a very conversational guy. He interviewed tons of people who had never done it before. He helped me understand what he was looking for. It went wonderfully.

Trump is inaugurated, and it is one constitutional thing after another for the next four years. When I spoke to those Androvett people about the idea of a Constitutional Law commentator, there wasn’t one. Maybe nationally, CNN would have somebody talk about a Supreme Court case or something but in the Trump administration, everybody is a Constitutional lawyer all of a sudden.

That created the demand. I started getting a whole bunch of calls about that. I understood how it worked and got some basic familiarity with how the media process works. That created the position. Now, the producers think of constitutional angles to things they might not otherwise think of, and there is more demand than there was before.

I basically owe it to Donald Trump, who greatly stimulated interest in our country about the constitution during his time in office. Nothing like a couple of impeachments to get people going. I like to think that Constitutional Law is one of the things that the glory of the internet has made everyone an expert on over the last few years. Infectious disease is one of those areas. Everybody is an expert on infectious disease, Constitutional Law and, lately, armored battle strategy is something everyone is an expert on. Everybody and their dog knows about that. I’m in step with the internet universities handing out PhDs.

That is consistent with what I have seen on my social media feeds over the last few years.

The same people that are good at Constitutional Law will quit that, and then they pick up their infectious disease thing for a while. Now, they know all about tanks, missiles, and stuff.

One of the things I appreciate about you, David, is you don’t take yourself too seriously.

I share this stuff on social media because I’m doing it so that people can see my smiling face but if I post, “I’m this amazing guy, here is this awesome thing I did,” people are going to switch me off. They’ve got off switches.

You are as likely to be poking fun at yourself, though. When I see a post on Facebook, and it is David Coale, Constitutional Law Expert, usually there is some self-deprecating comment about, “This is not an area in which I appear to be an expert, but I’m going to talk about it anyway.”

There are occasions when I have said things that I’m pleased with myself for having said something profound, and then that got on the air. Remember, a couple of years ago, Ezekiel Elliott was in all this legal trouble, and the NFL was going to suspend him. He sued to be reinstated, and there was a lawsuit in the Eastern District and Judge Mazzant’s court, and there was a parallel lawsuit in New York against the NFL. There are all these lawsuits there. The first week or so of that, the pundit world was dominated by these “sports lawyers” talking about all that. Who are these people? I have no idea who these people are, but these sports lawyers are saying all this stuff. Some of it is accurate about these legal proceedings.

man and woman having coffee and conversing
Media Commentary: You cannot overload your conversation with jargon when talking about the law. You can’t just throw out a bunch of acronyms and numbers and expect people to understand you.

I thought, “They are going to get tired of these sports lawyers after a while.” Sure enough, after about a week of that, the sportspeople found their way to my door. These sports reporters are showing up in the office with their cameras. I was explaining to them, “Appellate Law is like a booth review. They take the tape, and they watch it again.” They are like, “We get that.” They were likable. They wanted to do a story and do it right.

This one particular thing, it looked like Judge Mazzant’s ruling might go to the Fifth Circuit and then even be possibly considered for review. This was the quote that got on the air for about a ten-minute discussion as follows, “When the two new members of the court are confirmed, the court will go from 13 to 15 members.”

Right after that, they were trying to fill airtime because this judge in New York was supposed to rule a certain time, and he hadn’t ruled, so they popped that up there. I’m like, “What are they going to do next?” Here is what they did next. They had some Dallas Cowboy in the locker room, and they stuck a mic in his face and said, “What do you think about the Ezekiel Elliott arbitration?” This guy has no earthly idea. He is like, “We are trying to win the football game and get out there and score.” In a minute, it is a random thought about football.

That was an unusual thing. Generally speaking, these guys worked their tails off. They started in the morning. They have a meeting about what they are going to cover. They hustle around and get their footage. 5:00 is our deadline. When the judge says, “Mr. Smith, you may proceed.” You better proceed. 5:00, the little thing is going to run, and they are on the air, and it is done. That is not a question about it being done. It is whether you have it all in the pieces there or not. You hustle every day. It is a stressful job.

You can’t get extensions quite like you can in the law sometimes.

There are some things that you are familiar with it, and you have covered before. They would try to develop expertise. There is one person that covers the courthouse, city hall or what have you, and they know people, but you are going to get stuff someday as a reporter and you are like, “I don’t know.” One time, one of these reporters was leaving me, it was a question that had something to do with the military, and there was a veteran they were going to interview about the issue. He was at some truck stop over in Irving. He was on the phone with this guy at this truck stop saying, “We will be there in fifteen minutes,” and I thought, “What a day,” going to the law office to the truck stop. That is how they do it.

Your face and name are on the news. People would look at that and say, “I wonder how that affects business development from outside cases.” You’ve got plenty of work coming in sounds like through your own law firm and supporting the trial lawyers there. What effect has that had on your business development within your law firm?

The media is a lot like winning various lawyer recognitions that you can win. It raises your reputation. It gives you more cache if you are in the discussion for a particular representation, but it doesn’t lead to work by itself. If some general counsel is presented with a choice among various appellate lawyers and they say, “I saw David on TV last week.” You have a leg up there. If you are already in the conversation, it certainly is a plus because you are familiar, you are a known quantity, but no one is going to call you because they saw you on TV.

With that said, I do receive occasional voicemail, email messages from people that saw me on TV and want me to take their case. I have yet to accept one. The contact you make with the community through the media is probably not what’s going to lead to a lot of business, but it contributes in the same way that winning recognition as a super lawyer or something contributes to your stature. It does that, but it is an indirect way of assisting with business development. It is not a direct way.

Right up there with blogging or maybe bar service.

It is good to do, but I wouldn’t do it if I didn’t enjoy it. It was a good thing to help explain to those sports guys how the appellate process worked. That was time well spent. They learned, I learned. Everybody was better for that. What got on the air is another matter, but it is useful to try to educate people about what we do and how our courts work.

We need more of that in our society. That makes me feel good. I enjoy doing that, but if it was a drag I would have quit doing it a long time ago. If it was a source of stress, no way. You have stuff like that, as you said, Todd, you know all about that from your various social media things you’ve had over time. If you don’t like it, it is never going to work. You’ve got to do stuff you enjoy. I happened to like reading Intermediate Court of Appeals and blog them. There aren’t that many people that like to do that, but that is their loss and my gain. I like it.

We all like reading Intermediate Court of Appeals.

I haven’t done this in a while. I was going to restart it this year, but I would send out a communication, mailing or whatever. It said, “Top five cases from the XYZ court for the previous quarter, half-year or something.” One time, I got an email from somebody who was like, “Those are the top five cases from the Fifth Circuit. It must not have been very busy,” gigging my choice of the top five cases. I’m like, “Make your own list. I don’t care what you think about my list. It is my list.” One said, “You didn’t read all the cases.” You are not in a position to criticize my list.

There are always going to be critics.

You don’t like my top five. I’m sorry about that. My life is going to go right on pretty much unchanged with that knowledge.

What are some things that attorneys might keep in mind if they are dealing with the media, whether on their own case or in general, giving commentary? Any tips or thoughts?

I have several. Let me jump to technical stuff first and then think back to strategy a little bit. Reporters are professional BS detectors. They know when they are being lied to or when you are fudging. Even if they don’t know the subject matter well, they know. You have to be speaking in a straightforward, honest way with them or they will totally switch off.

They genuinely want to get it right. They get a reputation as a sloppy reporter that doesn’t help them. If they get a reputation as someone who is accurate and honest, that only helps their stature. A lot of the time, if you talk to a reporter about something, 95% of the conversation is you helping them understand what they are working on. In exchange for that, they will put a little soundbite on there as payment for your services, in a way. That is a very crass way of saying it.

You gave me your time generously to help me do my story. I will give you a little bit of my time to show my thanks for that. You have to come at it, and this is true to the reporters and to the audiences they are ultimately trying to reach. You have to not overload your conversation with jargon. You can’t throw out a bunch of acronyms, numbers, and things and expect people to understand. You can’t over outline things. You have to speak in one level of bullet points.

The flip of that, and it ties to what I was saying about being honest, you cannot ever talk down to a media audience or a reporter and say, “The constitution, that is that document we signed to form our country.” You turned everybody off. We have a tendency sometimes to do that as lawyers, when we are dealing with non-lawyers, is to inadvertently come across as patronizing. You have to be very mindful of that as much as you have to be mindful of overdoing it and throwing in too much technical stuff.

That is what audience you are speaking to. You are speaking to an intelligent person who probably doesn’t know all the vocabulary, wants to be able to develop their story, share it with an audience that is similarly, generally interested but doesn’t know a lot of vocabulary, doesn’t have a lot of time and doesn’t want to be BSed around.

Back to strategy, it depends on why you are talking to the media. If you are talking to them because they need help with a story, you proceed as I said. They want to be educated. You educate them, you speak until the conversation is done. You don’t hurry. You answer questions. Help them understand, and you teach. If you are talking about a case or something, you have to be a little more judicious there.

We have a fear in our business of the press. We are worried the press is going to get to talk to us, they are going to say something, and we are going to feel bad about that. If you are dealing with a reporter and you want to say something to them but you don’t want it to appear on the front page of the paper, you have to say to them, “I would like to talk to you on background about this,” and then they have to say back to you, “Yes, we are talking on background.” That is the journalistic ethical standard. I can’t quote you chapter and verse on that, but that is the way it is supposed to work textbook.

If you both say that, they are going to honor that. A reputable journalist will not use your name in connection with what you have to say. That is something to know. Even then, some clients are often having their own views about the press of want you not talking even on background or whatever, and that is fine. You have to respect that as representing the client.

If you have a case and the press is covering it, and you want to influence that, and the client is okay with you doing that, you can befriend the reporter, talk, and explain to them. “Here is why we did what we did this day. Here is what this exhibit is. Here is what’s coming up,” with the understanding that it is on background.

It is like the reporter that you are educating for their segment on the news. You are teaching them. They are going to respond to that probably in a positive way. That doesn’t mean they are going to write a great story about your client, but at least they are not going to torch them. At least they won’t write out of ignorance. They may learn everything you said and decide that your case still sucks, but you had your chance. At least you’ve got them talking about something relevant instead of the fact that your client did a little bit on the stand that day.

There are people out there that are hostile, have agendas and axes to grind, but the people that cover cases and do legal work generally do it all the time. They don’t want to get a reputation as someone who’s dishonest, a jerk or unfair. They want to learn. If you approach them that way and be careful about what’s for on the record and not on the record, you can do a lot by way of educating people about your case or a legal position or what have you without endangering what you want to be doing in court.

Judges sometimes clamp down on that too and say, “Nobody is going to talk to the press.” In which case, you should not talk to the press. Even with the most carefully maintained background, it will be obvious to the court that somebody associated with the case was the speaker, and everybody gets in trouble, so you don’t want to do that. Subject, of course, to that ground rule from the court or client, you can treat the press with respect and they will treat you back with respect, even if they don’t always go the way you want them to go.

What you were saying about educating the reporter, I could see parallels between that in your everyday job as an appellate lawyer trying to educate the courts. That role seems very similar.

There is a lot of overlap there. You are not educating the judge about the standard or review or anything like that, but on the same side, by not talking about that thing, you are showing respect and not patronizing. You can come into an experienced appellate panel and say, “Judge, as you know, we are here on a De Novo Standard of Review.” They are going to be like, “Who invited you? Why are you here?” You are wasting their time on stuff they already know, but they probably don’t know X, Y or Z. “Why exactly is your client in this business? What do they do? How does it work?”

They genuinely want to know. You’ve got to explain it in a way where you can either answer all their question or you get them going in the right way to where they can get in the briefs and understand it with the benefit of your explanation. There are definite parallels, not the same subject matter but the same concept applies quite a bit.

With clients, too, if they have a question about the legal system, “When am I going to hear from the court?” You can explain, “This and that is going on. The Dallas stuff, and there is a lot to do down there, and we are in line. It is very important to us, but there are 500 other people who are also very important.” That explanation about the system can come in handy.

That general and informative commentary is a very useful service that you provide in interfacing with the media. The other thing we hear about in terms of lawyers in media is a trial lawyer trying their case in the media. There is a big cautionary tale to be told on that because our Supreme Court has said that, “The cloak of judicial privilege does not necessarily extend that far.” What you are talking about, what you do day in, day out, you are not standing in front of the media talking about your own cases and trying to taint the jury pool.

I would not do that unless I had a very clear mission for it to do that for some client or another, and I don’t know who that client would be. Some of these statements by courts that you are talking about are in the context of this litigation about the 2020 election. Most of which didn’t go very well for the people challenging it. Those lawyers were in the media a lot. They were not talking about what’s in the pleadings that were carefully drafted, and sure enough, I’ve got a lot of litigation as a result of that unusual situation but there are cautionary tales there.

Let’s switch over to your podcast because I don’t want to leave that out. Tell us a little bit about it, like how it got started and what it is.

It was suggested to me by, again, Shaun Rabb from FOX 4, the first guy I met in this business who did the interview about the Hamilton electors. We got to know each other because we did several other things as the Trump administration continued there. He said, “Do you want to do a podcast?” It is a typical sit-down Zoom type of interview with a reporter for 10 to 15 minutes. You can do that on about any of these topics. You know the questions and the answers that people are interested in. You could easily do that.” He even suggested the name. I nodded politely, and then the pandemic came, and there I sat at home and said, “Maybe I will start that podcast.”

I read about the technical stuff you need like a decent microphone and that kind of thing. I started out, and the Androvett folks helped and taught me that you need all the music at the beginning. I got to where I could do all that. Whenever the mood strikes me, I record. If I have a thought, I will record David talking for about fifteen minutes.

I do interviews as well. I started doing that once the pandemic wound down and people were out and about again. Those are much better liked than David talking. I found all sorts of people, college friends, and lots of non-lawyers. You can edit it down to about half an hour, and you can talk about something of general interest to the legal community, and people will like that.

The whole blogging thing started because I was reading the cases anyway, and then it is relatively easy to leverage that into a discussion about the cases, which includes the media. Once you are doing that, it is relatively easy to leverage that into leading your own discussions, which is what podcasting is. Again, it is a very specific model. I don’t do hour-long episodes. I could never do that. If I tried to do that, I would run to the sound of blogging, which is trying to be brilliant every week or two. It is better to put something out every couple of weeks.

Although with podcasting, I will take much longer breaks than with blogging. With blogging, I don’t like to let more than a week or two go by without having something because people forget you are there. In podcasting, it doesn’t matter if you let it go for some time, you can return to it pretty easily, and they will still come back to you.

I’m more comfortable taking a break from that if I feel I need to. It does take a little more time because it is longer, but once I learned how reporters did what they do I started doing it myself on a much smaller scale is the quick answer to how I got into it and what guides me. It’s things people will find interesting or that I want to talk about, or there are friends of mine who I think have interesting perspectives on the world.

Are you not limiting yourself to legal topics, then?

They generally have something to do with the law. Although I interviewed the interior architect that we worked with at my original law firm when we moved space, who I have kept up with over the years. I interviewed her about what law firms are doing as they return to the downtown office buildings. Are they revamping their space or do they have new needs? We talked for half an hour about that. It was interesting. She had a lot of different perspectives about that. That is not legal, but it is about the practice of law and that kind of thing. It is legal, loosely.

There is something to that, though, particularly with your role to explain things to the public in a way that makes sense to them. There is a lot of value there doing it that way and making it not strictly high-level legal discussions for people that want to pick up some learning.

The most successful episode so far in terms of people looking is an interview with a guy I knew in college, who’s a communications professor at a college in Georgia. We did a thing on critical race theory. What is it? Does our Texas statute about it, in fact, deal with it? He was a very engaging guy. He talked a hundred miles an hour. It took forever to edit that episode with his Southern accent. I was like, “Slow down.” He is good. He is very well spoken.

two people being interviewed in background, image focuses on camera filming them
Media Commentary: People enjoy the dialogue. If it’s just some reporter sitting and talking, who wants to watch that? But if you have something that gets you moving out of the studio, it makes the story go better.

I would read him excerpts from the statute and say, “Is that describing critical race study as you understand it?” He would say, “No.” He would explain what he understood the statute to be about. It was well liked, and I frequently send the link to people when these CRT things pop up and discussions about school boards. You’ve got to listen to this guy to get a little perspective. I’m not saying he has all the answers, but he can teach you a little bit more than you would tweeting about it.

One of the nice things about hosting your own podcast is you get to pick the conversation.

It is my top five list. If you don’t want my guests, don’t listen.

We try to debunk the notion that all we ever talk about is meaty appellate issues because who would listen to that? I get it. Going beyond legal stuff, and we go beyond appellate stuff all the time.

People enjoy the dialogue. If you look at news stories, a lot of the time they will have an interview or two to break it up. If it is some reporter sitting there talking the whole time, who wants to watch that? If you have something that gets you moving out of the studio, look another person with books and stuff behind them. It is more engaging. It makes the story go better.

I bet your experience is similar to ours, too. We do this because we enjoy doing it, but as much as anything we learn from our visits with our guests. I have seen you post on social media about your interviews and all that. It is amusing when you make fun of yourself doing that, but you have given me a whole new perspective on, “What are things to think about as you are getting into dealing with the media call, and the whole idea of being on background,” is a significant thing to know. You’ve given me information that I didn’t have before. It was worth the price of admission.

Some reporter is going to call you someday, maybe tomorrow, and say, “Todd, what is going on with this?” You can say, “Todd Smith can’t talk to you about that, but let’s go behind the curtain for a second.” They will appreciate that. They are like, “I get it. I can do my story better now.” Questions like, “What exactly does this court do? They filed a writ of what?”

They are going to talk to you about that and why they are doing these things. It is invaluable to somebody. They have no reason to know that. I have no reason to know how the plumbing works. It is not something I deal with every day. Now you know the story. If you don’t like it, you shouldn’t be doing it. If you like it and you are enjoying it, the rising tide lifts all boats. It makes the practice a lot more fun.

You do the fun thing, go talk to a reporter, you come back, you are excited to work on your cases, and you do a better job on them. Everything is energized by doing it, at least that is my experience. Go forth and blog. Do it if you like it, don’t do it because you think that some other reason like, “It will look good on my resume,” or something. Don’t do that. It is going to cause yourself stress, and you are not going to be happy with the product.

Be authentic.

Life is too short not to be. You have to enjoy what you are doing. Regardless of what it is.

I have to ask you about one other media appearance, though, that you mentioned on your website bio, which is that you have been fictionalized as an attorney in a romance novel. I have to hear more about that.

My wife, we are both very lucky to have law practices that we like. I enjoy my practice, and she, for a number of years, did bankruptcy work. She was at Weil Gotshal doing bankruptcy work during the Enron bankruptcy and moved to a smaller firm doing that. Ever since she was able to read, she has been a big romance novel fan. She likes romance novels. It is something she enjoys reading. She happened to get a client who was a romance writer, who was having a problem, to make a long story short, a publisher. She was in some financial straits needed bankruptcy counsel to help work the situation out, and she did.

From there, she has developed a full-time practice as a lawyer to romance novelists. She is a solo practitioner. She practices at our house and represents romance writers. She has picked up a few other kinds of writers. She goes to romance writer conventions. She talks to romance writers on the phone. She reads advanced copies of romance novels.

She knows what’s going on in the romance scene. One of her clients, Joanna Wylde, has a series called the Reaper series about a motorcycle gang. I got to know Joanna. She was coming to town for things, and we had met. She wrote a character into her last Reaper book, Dobie Coales, and I have an excerpt from it. I put it up on the wall.

It says, “Dobie Coales has been one of the Reaper’s attorneys for nearly ten years now. He looked like a big dumb, good old boy, which had served us well many times but the man was effing brilliant. I couldn’t imagine anyone I would rather have on my side. It was Sunday afternoon, and Coales sat across me at the table holding a file folder of papers. I sincerely hoped it included a strategy to save my ass. Coales was good, very good.” I have that blown up on my wall here. The cover is a real buff guy with a leather thing, Reaper’s Fire. There is another Reaper’s book that she has finished but hasn’t made its way to publication yet. I don’t know if Dobie Coales is in that one or not.

Maybe he will get his own series.

How could you not with a description like that? I was like, “You put me as a big dumb, good old boy? Thanks.” Dobie Coales, my alter ego there in the Reapers gang. He did get the Reaper out of jail. I confess I haven’t read much past that. You think we have wild stuff in our practice sometimes, romance writers.

David, we sure appreciate you being with us. Our tradition here is to invite our guests to offer a tip or a war story to share with our audience. Do you have something that comes to mind that you would like to share?

I will tell a funny war story, which has no relevance to anything, but I will tell the David Keltner Zoom story. We had a Zoom argument a while ago. It was a Fort Worth case that got transferred to Amarillo under the docket control thing. Keltner was on the other side. We are getting ready to go online. We are in the room waiting for the click, and it goes over to YouTube, and I make a joke of something like, “Mr. Keltner, you are looking very hip there with all this high-tech stuff.”

He perks up, does his glasses there and says, “It is not me, David. I’m blessed to have on my team, Joe. Joe has done a hundred Zoom hearings and knows everything. He is a master of Zoom, and we have done Zooms here and there and everywhere. They have been amazing, all because of Joe.” And like any experienced litigator, I’m thinking, “You are jinxing, Joe. Stop it. Don’t do it.” He talks up Joe some more, and we go online.

He is the appellant. “Ladies and gentlemen, may it please the court,” he goes for about a little over a minute, and Kelly Hart & Hallman loses its internet connection. The whole firm goes black. They are trying to email it, and it won’t work. We are all sitting there, so we go offline, and a few minutes go by, and whoever it is in your basement, your building there that rides the bike to turn on the lights. They get it back on again, and Joe is nowhere to be found.

They are back on. This one judge from the Amarillo Court leans in and goes, “Mr. Keltner, when we go back online, you ought to look at the camera and tell everybody you are not a cat.” It was perfect. It totally captured the moment, the whole Zoom thing there. Keltner won the case, by the way. I have a petition for review on file, but that was funny. David is larger than life and has a good sense of humor. It is a good thing. Joe was not the guy’s name, but he probably doesn’t want to talk about it.

I’ve got to ask around and find out, though.

He got jinxed. He was asking the litigation gods to smack you down. That is one of my war stories. It is not relevant to anything except that Zoom causes funny stuff to happen.

It doesn’t have to be relevant, and it was entertaining.

We have all had stuff like that. The whole cat thing was priceless.

David, thanks so much for being with us.

It was a delight to talk to you guys. I will look forward to talking to you in a week.

It sounds good.

Take care. Bye-bye now.

Important Links

About David Coale

David Coale

Recognized as one of the top appellate lawyers in Texas, David Coale approaches law in a practical way with a respect for tradition. His diverse experience ranges from helping to win the largest verdict in Dallas County history to defending a payphone operator before a Tarrant County Justice of the Peace. He’s also the only known Texas appellate lawyer who has been fictionalized in a romance-novel series as the lawyer for an outlaw motorcycle gang.

Love the show? Subscribe, rate, review, and share!

A special thanks to our sponsors:

Join the Texas Appellate Law Podcast Community today:

Related Professionals