From Appellate Lawye ...

From Appellate Lawyer to Trial Judge | Judge Dustin Howell

November 19, 2020 | by D. Todd Smith

Judge Dustin Howell of Travis County’s 200th District Court took a different path to the trial bench than most. Starting as a Spanish major, he entered the corporate world before going to law school. After law school, he took an appellate path, with a Texas Supreme Court clerkship, private practice, and time at the Texas Solicitor General’s office before ascending to the trial bench. Judge Howell joins Todd Smith and Jody Sanders in this week’s episode to talk about how his appellate experience impacts his work as a trial judge. He also offers insights on how trial judges think through cases, how lawyers can help educate judges, the challenges faced by court proceedings during the pandemic, and his plans for the future once his term is over.

Listen to the podcast here:

From Appellate Lawyer to Trial Judge | Judge Dustin Howell

We have with us Judge Dustin Howell from the 200th Judicial District Court of Travis County, Texas. Welcome to the show, Judge Howell.

Thanks for having me. This is exciting.

We’re glad you’re here.

It’s always fun to have someone on who’s got some familiarity with what we’re doing. You are even beyond that because we’re going to get into what you’ve done in your career before you took the bench. You’ve definitely got a perspective that’s relevant to appellate practice that I look forward to hearing about. Let’s talk a little about your background, where you come from, and your early career.

I grew up in Wichita Falls, Texas. I came down to UT Austin for undergrad where I majored in Spanish. When I enrolled at UT, my plan was to be a high school Spanish teacher, but I got more interested in business when I was there. After I graduated, I went and worked at Dell. I worked at Dell for five years before I went to law school, in sales roles primarily. I started out in the consumer segment and then moved over to the higher education market. In my last job at Dell, my wife and I moved to Atlanta. My territory was the southeast US where I set up programs for college students to buy Dell laptops through their colleges at a discount.

The SEC was my territory for Dell. It was when we were living in Atlanta that my wife decided to go to law school. We were at a coffee shop and she was studying. I was reading a book. I started flipping through her LSAT study book and I said, “I bet I can beat you at this test.” She said, “Sign up for it then.” I did. I took the LSAT the same day she did with no intent at that time to go to law school. I wanted to win and I did. I won by two points which is within the statistical deviation but a W is a W. My plan career-wise was to get an MBA, but when my wife decided to go to law school, I thought, “I’ll go to law school when you do. I’ll get a JD and I’ll go back into business after that.” We ended up going to Texas Tech for law school together. It was out there where I fell into a more traditional legal career path.

It sounds like you got indoctrinated. It’s your path. I did not know either that you were a Spanish major or that you had spent all that time working at Dell. If someone ever needed a bilingual computer salesman, maybe you were the guy.

I would not be the guy because I always clarify in every job interview I’ve ever had, they see, “BA in Spanish, you must be bilingual?” I always have to clarify, I have a BA in Spanish, but I do not speak Spanish fluently. I never studied abroad and have never been immersed in it. I can get through it, but I do not consider myself fluent. I like to joke that my resume should have, “BA in Spanish but does not speak Spanish.”

After Texas Tech, you went on to a judicial clerkship at the Texas Supreme Court.

I clerked for Wallace Jefferson who was the Chief Justice of the Texas Supreme Court at that time. I had a wonderful experience there and learned a ton. That was where the seeds of my interest in becoming a judge were planted. I worked for Chief Justice Jefferson for a year and that was the 2008 to 2009 term which coincided with the economic downturn, which resulted, from there, I went to the Austin office of Baker Botts. My start date was delayed as, what was happening in a lot of big firms, I had an extra three months at the end of my clerkship where I wasn’t going to be doing anything. As it turned out, Justice Green’s secretary or executive assistant had retired right at the end of that term. She was planning on coming back, but there was going to be a three-month lag. I ended up moving down the hall and being Justice Green’s executive assistant for three months. It was a third law clerk for him and I got to extend my clerkship time. That was a real treat to do that.

It’s a unique experience that no one has ever done before in the Supreme Court.

It was for a law clerk turned executive assistant. Although, my co-clerks in Justice Green’s chambers had no idea how bad I was as an executive assistant until I was replaced.

For a guy that fell into the law through a competition with his wife, you were off to a strong start there, in clerking at the Supreme Court, moving on to Baker Botts. How was your practice at Baker Botts? Were you able to do appellate work there? Backing up a step further, did you catch the appellate bug while you were clerking at the Supreme Court?

Certainly, initially, because I was immersed in it for 1 year and 15 months. I got to continue to do appellate work at Baker Botts. I was there for about 2.5 to 3 years. My docket was evenly split between federal district court litigation and that was primarily in the Stanford International Bank Receivership which was being litigated in the Northern District of Texas in Dallas. Half of my work was coming from that case, and the other half was appellate work working primarily with retired Chief Justice Tom Phillips there in the Austin office. That time confirmed my interest in appellate law. Amazing mentor and friend Tom Phillips was to me then and still is now. To go from working with Chief Justice Jefferson to Chief Justice Phillips, I’m lucky to have had that opportunity.

You were at Baker Botts for about three years. I know at some point you went on to the Solicitor General’s Office. Was that the next step?

It was. I went for Baker Botts to OSG. In my time as a law clerk at the Texas Supreme Court, I had seen a fair amount of the work from the SG’s office and knew how high quality their work was. While I was at Baker Botts, I decided that I wanted to specialize in appellate law. It’s going to go back to your observation about my change from not being interested in being a lawyer into being a lawyer. What I found was a skillset that I felt like I always had. I always enjoyed research and writing. It was never anything that was tapped into at Dell. When I got into law school, I realized, “I have the skillset and it suits me well in this career,” and appellate law in particular is well suited for that. Once I decided this is where I want to specialize in the more appellate level of practice. I knew that if I had the opportunity to go over to the SG’s office, I would take it. As it worked out around the time I went over, they had expanded the office a couple of spots. I put in for one of those openings and was fortunate enough to get that.

That’s an excellent training ground for a young appellate lawyer. Those spots are highly coveted because they do some extremely important work. For those who don’t know, the appellate law firm for the state is part of the Attorney General’s office. Every time you see a case up in the US Supreme Court or in the Fifth Circuit or Texas Supreme Court or even the lower courts where the state’s a party, quite often, the SG’s office has taken over those cases. It’s not always, but I’ve always admired the office in the fact that it offered younger and sometimes not so young appellate lawyers, or lawyers who wanted to be appellate lawyers, a great opportunity to learn what it was all about and work on cases at an extremely high level.

I learned so much working there. I was there for almost four years and worked on some interesting cases. I described it as the appellate boutique within the Attorney General’s Office. All of the practice in the US Supreme Court was done by the OSG. Even when appellate matters were not handled by our lawyers, we were in consultation with the divisions of the AG. I got to pick my own cases. My goal was to get as much experience as I could in the time that I was there. I handled cases where I argued in the Texas Supreme Court, in the Intermediate Courts of Appeals, State Courts of Appeals, had several Fifth Circuit arguments and it was a phenomenal learning experience.

It was one lawyer, one case primarily but we worked well as a team without the pressures of, “Am I billing too much? Is this person assigned to this matter? Can I go and spend an hour in his or her office bending their ear about this issue? Am I eating into their billable time?” It was collaborative. Every brief we filed had to be read and reviewed by two of your colleagues. Every argument that we had, we had to move it twice before a panel of three colleagues. Every case was done right.

That’s one of the things that you do miss out on in private practice is that the cost-benefit decisions that have to be made so often on those things. That’s great that you are able to do that in every case, because it does make such a difference to be able to have people freely give you input, not worried about the time constraints and the billing constraints.

It was such a collegial office too. We all got along well. We all go to lunch every Friday together at the Dog & Duck which is now the location of the new Travis County Courthouse on that same block. I loved my time there. I handled interesting cases and had a ton of fun doing it.

You had some more private practice experience before you went on to become a judge. That was at McKool Smith here in Austin.

I had been at OSG for almost four years. I had come off of my massive defeat in the Patel eyebrow threading case, my legacy of my time there, which was a fun and interesting case to work on. I argued in the Hill County Courthouse. All the practitioners in the state now do roadshow arguments where they hear arguments outside of Austin. This one was in the old Hill County Courthouse in Hillsboro, Texas. The eyebrow threading case was a challenge to the constitutionality of the state’s regulation of eyebrow threading, which is a means of plucking eyebrows. The state required a license. I was there arguing on behalf of the licensing requirement and the threader is represented by a group called the Institute for Justice who was challenging the constitutionality of that regulation.

The state had prevailed in the trial court, prevailed in the Court of Appeals. It goes to the Texas Supreme Court and it’s in this beautiful old courtroom with the gallery on the second floor. It looks straight out of To Kill a Mockingbird, but a trial bench is a 1-judge bench and 9 justices were there to hear an argument. The way they set it up, they had a couple of long tables in the well of the courtroom right in front of the bench with a music stand right in front for the lawyers to stand at with their binders on. I get there for the argument and I’m thinking about, “How is this going to work?” I get up there and it’s bizarre because I’m looking down on the justices, which is an unusual setting for an attorney.

Not to mention, there was also no skirting around the table. The first thing I hone in on is Justice Willett’s socks. When they start asking questions, all of that goes away. I’d had that case. I finished that. I got reached out to by an OSG alum who was at McKool Smith and they were wanting to build their appellate section and asked would I be interested in joining them. My wife and I were about to have our third child. For financial reasons, I decided to jump over and go back into private practice where I had a great experience. While I was there as an appellate lawyer, it is a trial-intensive firm, I got a lot of good trial experience.

Did you do more of the appellate side of the litigation, help them preserve error, charge and that stuff? Did you do some of the trial work as well?

Primarily appellate trial work. I was the law guy. I handled all the briefings that were in the couple of big cases I worked on. I was primarily the one writing the briefs. The couple of cases I was in went to trial when I was there, I was at trial every day or most of the days, either writing the bench briefs or working on the charge and consulting on the various legal issues that come up along the way.

That’s some of the kinds of work that to me make this practice fun. It’s writing-intensive but you’re not locked behind the desk, constantly at the computer. We’re all hanging onto our computers these days because of COVID and the status of jury trials in our state and all over the country. What a great way for you to segue, take all that wonderful ivory tower appellate experience gained at the SG’s office, and then take it back out into the trenches into the trial courts.

TALP 38 | Sitting On The Bench
Sitting on the Bench: It’s a good practice to educate the judge, whether that judge is assigned to your matter for just one hearing or for the whole case.

I was part of a team that went to a jury trial in Marshall, Texas in the Eastern District out there. Seeing the presentation and the jury arguments, we do get a sense when you’re there in person of the fluidity of arguments and how they evolve, how organic the whole thing is when you’re there live in real-time. It was different when I was at OSG and everything was delivered to me in a reporters’ record. It looks a lot drier than it is when you’re right there in real life, seeing witnesses being cross-examined and seeing the expressions on the jury’s faces as they see some of that unfold.

You did a lot for a young lawyer with those various moves. You were involved in TYLA.

I’m no longer a young lawyer by definition. Since I was in law school, I was the law student liaison to the state bar when I was at Texas Tech. Through that, I became the law student liaison to the Texas Young Lawyers board. At the time that now-Judge Karin Crump was the president of that board. She’s now a colleague of mine here in Travis County. I got the bar bug then. I got involved with Austin Young Lawyers when I moved back to Austin as a lawyer. I eventually ended up on that board and ran for the Texas Young Lawyers Board to be the rep from Austin. I served on that board and was elevated to be chair of that board. I’m in my last year of eligibility and now Texas Young Lawyer.

I was chair of that board, which was a cool experience because I was involved in all of our projects that we did all over the state, focused on all kinds of important matters. It’s geared not just towards lawyers but the community. The Texas Young Lawyers is billed as the public service arm of the State Bar and they take that responsibility seriously. We were out there generating new content and projects to present to students, teachers, veterans, you name it, we were out there. It was fun. I love to go out and speak to groups of students about the projects we were working on, and teaching them about our democracy and/or the civil rights movement. That was a fun and neat experience.

You went on and became a trial judge. Tell us the story about how this young appellate lawyer, still at that time certainly eligible for TYLA, manages to ascend to the trial bench?

I left OSG maybe two years prior and had been in McKool. I was enjoying my experience, but I felt the tug to get back into public service. At the outset, once I had clerked for Chief Justice Jefferson, I knew that if I ever had the opportunity to become a judge, I wanted to go for that. Whether it was on a trial bench or an appellate bench, I would love to serve on an appellate court one day. A lot of the appellate judges that I admire spent significant time on district court benches too. The way that it panned out for me was people I knew from the SG’s office had followed then-Attorney General Abbott to Governor Abbott’s office to work in his general counsel’s office.

I stayed in touch with those people because they were friends of mine. Talking to a couple of them, I expressed my interest in becoming a judge and asked, “I don’t know the first thing about this process, but now that you all are over there and you’ve been involved in appointments, do I have enough tenure as a lawyer? Would I be considered for it?” They said, “Put in an application. If something comes up, then you may have a shot.” I put in an application blindly. There was no opening at Travis County at the time. It was in the springtime and the legislature was in session, and that particular session, the leg created the 459th District Court in Travis County, which created a vacancy out of nowhere.

Not long after that bill was signed into law, I got a call asking if I was interested in interviewing, which I did. Thankfully, the governor appointed me to that opening. I was grateful for that opportunity to serve. As it turned out, it was a one-year vacancy and I fully expected that I was going to probably return to private practice after that. As it turned out, towards the end of that term, one of my colleagues, Gisela Triana, won election to the Court of Appeals and she had two years left on her term as a trial judge. The governor appointed me to fill that vacancy. Now, I’m at the tail end of that term. What was one, became three years. That’s how I got my spot.

You had done public service at the Supreme Court. You’d done it again at the SG’s office, which you’d also been back in private practice. How was it going back to the court side of things?

I loved it. It’s been a different area of the law than what I had previously done as an appellate lawyer. It’s fast-paced. We’re not doing jury trials now in the courthouse, but the pace of trials on the bench side of things was unlike anything I’d experienced before. The volume of work that comes through the courthouse was also a big change. As an appellate lawyer, I had my handful of cases that I was responsible for at any given time. As the trial judge, every day I’m having hearings and either I’m ruling from the bench or more often taking them under advisement. Perhaps because of my appellate background, I’m not comfortable ruling on something until I’ve dug into the case law and gotten comfortable with it. It was a change for sure, but fun. I loved it.

I don’t practice in Travis County Trial Courts a lot but you do the rotating pre-trial docket system.

We call it a central docket, which means that any given case can be heard by any given judge. If you’ve got your cases, Smith vs Jones, and you’ve got a motion for summary judgment and the case is nominally assigned to the 53rd District Court, but you decide that you want to have a hearing on your MSJ, you set it on the docket. You’ve found out the date of your hearing and who’s going to hear your motion. With the Zoom scheduling, it requires a little more advanced notice. You find out on the week before who’s going to hear your motion.

As the judge, when do you get access to the papers for that type of thing?

The same time the lawyers do. When we were making those announcements the day-of on motion weeks or on non-jury weeks, we had settings at 9:00 and 2:00. I found out at 8:30 and 1:30 when I was 9:00, which is enough time to skim the briefs before you go. It’s a challenge and it’s not how I would have preferred to do it, but I’ve seen it work. I’m a believer in the central docket. It is efficient and it ensures that people get setting. It works well. For the more deliberative types like me, I make it work. I take things under advisement. I never have felt like it’s held me back.

That’s the trade-off. You mentioned for people that don’t practice here, San Antonio has a similar system. You don’t know most of the time when you’re going into a hearing, who your judge is going to be, and some people don’t like that. The benefit is you can get your case set. You can get a jury setting. If you have an MSJ, you’re going to be able to get it set not too far off of the 21-day minimum. It does add a lot of predictability scheduling-wise. Your judge, in most instances, is not going to know anything about your case if you walk in.

Certainly, if you’re appearing for the first time before them on that case, but it changes the strategy a little bit because in ordinary cases, one of the tasks of the trial lawyer or whoever’s arguing as a summary judgment motion is going to be to educate the judge. That education that you go through at any given hearing doesn’t carry through to the next one. Unless you happen to draw that judge at random, you may never appear before the same judge.

It’s a good practice to educate the judge whether that judge is assigned to your case or not. In confession time, even in the cases that are assigned to me, it’s an exception to the rule. When we do have cases assigned to us, I still need that reorientation because of the massive volume. It’s transactional. All of the motions that we handle, I can’t possibly remember all the nitty-gritty. I need that refresher, even in cases that I have heard before. All it takes is a little bit, but I think it’s a good exercise to walk through the background. I tell people, “Explain this case to me the same way you explained it to your mom or some non-lawyer. Give it to me at that level and let’s get deeper.” Let’s start at a high level because people are involved in the case.

I heard Judge Costa’s interview and he had a similar opinion that it’s easy when you’re involved in a case and you live it to jump right into the details. For the judge who was hearing the motion, a little context is needed in background and tell that story the same way you do it in an appellate brief. There are a lot of skills that appellate lawyers have that can translate well to motion practice at least in the trial court. I wish I saw more of it, frankly.

What stuff do you think appellate lawyers can do on their own in assisting trial counsel to make the most effective motion practice in the district court?

There is a misconception at least in Travis County. I would think that there was a similar sense about briefing generally in state trial courts, that briefing isn’t as important. That is completely wrong. Briefs are important because they are the guide to the judge. A motion for summary judgment, some legal issue that’s going to be taken under advisement, your brief is your voice to that judge and his or her staff after your hearing. It is the guide to the decision that the judge has to make.

It’s the same in the trial court as it is in an appellate court. At least in Travis County, where we had the central docket and everybody knew, the judges don’t get a chance to study the briefs before they come out and have the hearings that don’t matter that much. If anything, they’re more important. I’m going into a hearing, I don’t know a whole lot about the case, I’ve had a chance to maybe skim the briefs before I come out, but if I take it under advisement, then that brief becomes important because that is my resource that I’m going to start from to get oriented to the case. Trial lawyers would benefit from appellate-minded counsel in preparing briefs that act as a guide to the trial judge the same way as they would an appellate judge.

I’ve been telling lawyers around Travis County that the written work product is crucial for that reason. When you’ve got a judge like you that we know to be deliberative and who’s going to read the cases, study the issue, and try to get it right. I know there’s a lot of pressure to move cases, but you also want to get it right. If the third court is going to check your papers, you’d like to hold onto the ruling that you got. Getting it right the first time is important. It’s incredibly short-sighted for a lawyer to go into a court in Travis County and rely on their oral argument to the judge to make their case, especially when it’s a legal issue.

I see motions that if they don’t have a requirement to be responded to, a lot of lawyers don’t respond to them. A discovery dispute, for example, motion to compel. I go in and now that I find out on Friday what I’m going to hear the next week, if I do have the time to read the briefs before the hearings, I do. I’ll look and see a motion but no response. I think to myself, “Why on earth would you pass on that opportunity to advocate? Not only before the hearing but potentially after, if the judge takes it under advisement?” It’s the transition from trial to vice-versa. I am a judge who likes to read the cases and dig in. In terms of not wanting to be reversed, as I like to put it, whether as a matter of vanity or judicial economy, I don’t want to get reversed. I want to do the right thing so I do dig into the cases to try and make the right decision because I don’t want to make an error in the law that results in people having to incur additional expenses to come back, especially on a remand after a trial. If I have to try a case because I made a wrong call, that’s always in the back of my mind. I’m always thinking about what’s the Court of Appeals going to make out of this decision or that decision?

As the attorney sometimes that gets overlooked, it is the cost to the client because you want to get the law right and the client wants to get a result and a lot of times the law right, but you do have to think about what it costs to go through that process. I appreciate that you can keep that in the back of your mind.

Your approach is methodical as an appellate lawyer. I get where you’re coming from when it comes to getting it right on the law, but have you found it difficult dealing with discretionary decisions on the problem? We all know that’s a tough standard to review when you get up on appeal. Most often you’re going to be affirmed no matter which way you go as long as the record backs you up. How has it been for you approaching those issues?

You don’t always have clear guidance from the case law that gives you a clear up and down on something. Thankfully, there is abuse of discretion review on a lot of the decisions that we make. It depends on what’s in front of me. One concept I was not super comfortable with as a new judge, and it was something that they preached at new judges school, it was the idea of rule and run, which was the exact opposite of my instinct. Especially in trial and all these evidentiary objections that come up, you can’t get too bogged down in them because you have to move on. You’ve got to make decisions and move on.

Early in my trial judge career, I would want to dig into the intricacies of every hearsay exception and exception to the exception. I still do that more than others. Sometimes, I do have to make a decision and move on. Sometimes, I’ll have counsel who wants to insist on arguing even after I’ve made a decision in that realm where it’s abuse of discretion review. A lot of the times I have to say, “Counsel, I’ve made my decision. Your point is preserved if you want to raise this on appeal, but we’ve got to move on.” That’s not a legal mindset that came naturally to me, but it’s something I’ve had to adopt out of necessity.

It is nice as an appellate lawyer that you do have the lens of thinking about, is it preserved? You let them make their objection and put it in the record and keep a good clean record going for whoever wants to take it up on appeal, assuming that they do.

TALP 38 | Sitting On The Bench
Sitting on the Bench: The drama and the energy level is so high in jury trials. It’s great to see that aspect of our civil justice system playing out right in front of you.

I tried to. I don’t want to stand in the way of somebody preserving their error. When people want to put on an offer of proof or the various other things we have to do to preserve error, I get it. I’m never annoyed when counsel asks to do whatever it is. It has to be done. One of the areas that we as appellate lawyers get lectures on every time we go to an appellate conference is charge error and how to preserve that properly. That is an intricate dance. As far as I’ve seen in the couple of dozen jury trials that I’ve had, I don’t know that I’ve seen it preserved properly more than once or twice, then you’re falling on the mercy of the Court of Appeals to say, “There’s enough here that we’re going to go ahead and let you raise this point.” That’s one where, for whatever reason, the trial lawyers don’t have that figured out yet. All the more reason to have appellate counsel involved.

We try not to make it easy. We try and use the most complicated rules and standards that we can so that they don’t figure it out. We’ve got to keep ourselves employed.

That’s a point that we’ve preached a number of times here on the show. Jury charge is not a phase of the case where you want to mess around with error preservation. You don’t know if the Court of Appeals is going to do what you said, which is good enough. I’ve always seen that as a great entry point if you haven’t had appellate counsel already on the case. If nothing else, focus on your closing argument and let someone else handle the jury charge for you, especially if there’s any issue foreseeable involving error preservation because you may win, but you may not. If it goes up on appeal and there’s something in there that wasn’t objected to, it could be dangerous. You wind up having a big judicial economy problem because the jury charge error most of the time is going to wind up with a reversal and remand and retrying the case.

Charge work always ends up being more than the lawyers expect it to be. It is a time-consuming task that most lawyers don’t appreciate how much has to go into it. Understandably so, you’ve got experts you’re trying to cross and parties you’re trying to put on. There are decisions and big matters to be dealt with in a short amount of time to trial. It’s been my experience that lawyers tend to underestimate the amount of time that needs to go into getting the charge ready and tend to put it off out of triage. It’s always at the front of my mind at the beginning of a trial and certainly my staff attorney’s, who is the one shepherding through those revisions over the course of the trial. In terms of trial judge advice, don’t underestimate the level of effort that has to go into having a charge ready.

I’ve seen that, if I’m on one side as the appellate lawyer helping with the charge, every once in a while, you’ll have someone who will have an appellate lawyer show up the day of the charge conference, and then they’ll hand them the charge and go, “Go make the objections.” That’s a disservice to both the appellate counsel and the trial counsel, because how am I going to know? You can hand me what you want to hand me and I’ll make whatever objections I can make, but there’s no way I’m going to be able to competently go through everything and see the issues if you hand me, “Here’s the charge, go up there and tell them what you need to tell.”

Make a bunch of no evidence objections.

It’s about all you can do. Maybe cast the objection here or there.

The informal charge, I come out and we chat about, “Here’s what I’m thinking, she’d go in question one and this and that,” but that’s on the record. When we start the formal charge conference, it is me saying, “This is the formal charge conference, counsel. Do you have anything to say?” I’m not going to guide you through it. I expect the lawyers to know how to say what they need to say. There’s little participation for me in that process other than making my rulings. It’s something you need to know how to do and how to get it right.

Have you tried any cases over Zoom? Everybody’s going to Zoom now. I’m sure you’ve had plenty of hearings, but have you done any trials?

Bench trials, yes. I have not done any jury trials. This was supposed to be our first jury week on Zoom in Travis County District Courts. I didn’t have one assigned to me. There were 1 or 2 that were teed up that for whatever reason didn’t go. I am told that our next, we’ve got three on standby ready to go. We’ll see if they go or not.

You are not assigned any one of those three at this point?

I don’t know. I don’t think so. At least back in pre-COVID times, I found out the same time the lawyers did what case I was going to try.

It’s not just regular hearings, it’s trials too, who your judge is going to be until you showed up. I have been following what’s been going on in Travis County with the possibility of remote jury trials. I know that the district judge has been working hard to try and figure out a way for cases to go forward. I believe that the way that that’s been structured is that the judge is directly teaming up, as far as board trial versus getting into presiding over trial. There are many judgments, particularly, that have to be made to prior case. We’re talking about over Zoom as opposed to some hybrid model, at least now.

Some of the groups I participated in, I’ve been trying to educate not only lawyers but the public about how these things can go forward. There are some neat technological initiatives, like OCA has agreed to provide cellular-enabled iPads to each of the potential jurors. I know there’s been a lot of thought that’s going into how these can proceed. I look forward to seeing how that turns out. We’ve been slow to get out of the gate, even though we’re faster than most. I think we’re ahead of the game compared to a lot of counties. It’s been difficult to get the process started because few lawyers wanted to be in the test case for what’s going to go forward.

I’m proud of the work that’s gone into getting us ready. Judge Crump, who chairs our jury committee, has been a leader in the creative thinking and collaborating with OCA or judges about how we can do this over Zoom. At least here in Travis County, we have not reached a point where we’re going to say, “Your trial date is November 1st and you’re going on Zoom whether you want to or not.” The rules, as I understand, that the emergency order from the Texas Supreme Court authorizes counties to do that, but we’ve chosen to make it voluntary and we are ready to go. It’s a matter of whether the cases that are teed up do decide to go. I don’t know that there’s been broad uptake on it yet but it may take a few of these to go and go smoothly for people to be more comfortable with it.

In addition to the everyday civil cases of personal injury and commercial cases, another part of our jury docket for the civil district judges in Travis County is the CPS docket. We, other than Judge Byrne and the rest of the district, don’t handle the CPS cases pre-trial. We do handle the trials of those cases and those cases are subject to statutory deadlines. It is more likely that we will try those because they have to be tried. I don’t know in terms of what’s scheduled when, but it’s likely that those will be some of the first to go.

This is separate and apart from any criminal cases. Your court, the Civil District judges, only hear civil cases. We have a separate criminal courthouse for the Criminal District judges and County Court judges. They’re dealing with these issues all on their own and have their own statutory limitations, speedy trial act to deal with. That’s been my impression that the cases that are going to pave the way, and this is not limited to Travis County, are going to be those that address their CPS matters with those kinds of built-in statutory deadlines. We’re going to learn a lot because those cases are going to be proceeding sooner rather than later probably in a virtual forum.

I know that setting is coming up. Even the CPS cases sometimes get resolved on the courthouse steps as it were, but we’re going to start seeing it sooner rather than later. The lawyers practicing in other parts of the civil bar need to sit up and take note because I know that Travis County is not imposing virtual jury trials at this point, but you can see the day coming that that might happen. It’s not comments about Travis County specifically. It’s a comment on what I hear from OCA, which is every day that goes by, that we’re not trying, we’re going further in the hole. The numbers are astounding. David Slayton has reported that 5,500 jury trials were supposed to go over a six-month period and there were 45 cases tried statewide during that period. You can see the trend. We’ve got to find a way to start clearing this out because it’s going to be an incredible backlog.

The work that’s been put in on the front end allows us, we are in a position to try cases and we are ready to go. I understand why lawyers might be hesitant to do so, but for any of those who are out there who are thinking, we’re ready for that for sure.

Knowing what you know now, you’ve been on the bench for many years, what would you say are some of the lessons that you’ve learned over that time that you would like to impart to either trial lawyers coming before you or our audience specifically, who is more likely to be interested in appellate issues?

I talked before about what I think is the underappreciated importance of briefing in trial courts and also the importance of giving context to your arguments and telling a story. Making sure that you create that framework for the judge that you’re educating them on. I tell lawyers, “I will allow you to educate me on this. That should be your role. It’s to inform, not just argue.” When you’re in the heat of the battle, it’s easy to see, “The other side is the bad guy and I’m the good guy. Judge, you need to understand why they’re wrong and I’m right.” That’s one way to approach the problem, which is you’re asking the judge to solve. The more effective approach is to explain rather than argue. It’s subtle in its difference, but I think that lawyers who do a good job of that and of giving a story that can be understood by someone who’s unfamiliar with the case, those are huge.

This is something that we hear as lawyers throughout our career. It doesn’t seem to sink in that casting aspersions on the other side, trying to say that the other side is being dishonest, is rarely effective. It’s not enough to justify doing it. I can’t tell you how often I see lawyers saying the other side is misrepresenting things for being dishonest. The other side gets a chance to respond. It’s like, “There is a reason difference here.” It leaves a bad taste in my mouth and it makes the accuser look worse than the accused in my experience.

Try to be positive. It’s easy for me to say as the judge who’s the neutral in the whole thing and not as dug in, but I also experienced this as an appellate lawyer brought on to prior matters and the trial lawyer would call me and say, “We need you to handle this motion. You can’t trust a word this guy says.” Sure enough, he looked through the deposition transcripts from the case and they’re sniping back and forth and I get on the phone with them and like, “He seems like a nice enough guy.” It’s easy to get caught up in the adversarial nature of our business. When the time comes to present a case to a judge, I think it is way more effective to focus on the legal issues and be positive. That’s how I prefer it.

It would make all our lives a lot easier if more people would follow that approach. We’ve seen a trend over the last six months or so of even more snarkiness in briefs and pleadings that we might have seen otherwise because people were expressing frustration sometimes inappropriately.

This should be a time where we’re showing everyone more grace than perhaps we would. It’s a tough time for everybody, but I find it to be more effective when people are positive with the presentations.

I know that you are not seeking re-election to your bench. What are your plans for the future when your term is up?

This is being recorded in October of 2020. At the end of the last legislative session, the legislature created yet another civil district court for Travis County, the 455th District Court. That sits vacant and would be up for election in 2022. I’ve indicated my interest in that appointment to the governor’s office and fingers crossed they’ll consider me for that. I might get a couple more years on the bench. If not, I’ll go back into private practice and we’ll see what is in store from there. If it’s back into practice, I’ll have to think about what I want that practice to look like because I’ve worked in big firms and in the SG’s office. I’m sitting here not exactly sure what I would want my private practice to look like now that I’ve had this time on the bench because I want to make the most of the lessons I’ve learned. I think the experience that I’ve gained in this time could translate to good counsel to other lawyers and to parties. How that translates into practice, there are a lot of variables that I have to sort through and determine exactly how I’d want to build a practice after this.

If you look at your resume and I think big firm, SG’s office, another great litigation firm on the trial bench. You’ve got an incredible amount of experience that it would be great for you to continue on as a trial judge. If there’s another opportunity that comes your way, I would think that you would bring a lot to the table. We’ve enjoyed visiting with you. I always like to hear a trial judge’s perspectives. When you’re one of the bold, even better. I like it when judges come on and say how important appellate lawyers are. We certainly want the trial bar to be reminded of that from time to time.

TALP 38 | Sitting On The Bench
Sitting on the Bench: Casting aspersions on the opposing side and trying to make them look dishonest is an ineffective strategy in court.

You certainly are and don’t let anybody tell you you’re not important. This has been a lot of fun. I’ve enjoyed your show. I’ve loved being a trial judge and getting to see it from the perspective I had coming into it. It’s been a thrill to me. My favorite part of the job is the jury trials. It’s what I miss the most. The drama and the energy level are so high in those jury trials. To get to see that aspect of our civil justice system playing out right in front of you, it’s such a treat, and to be a participant with the best seat in the house is a real blessing, and getting to interact with the jury afterwards and get their impressions.

I’ll leave you with this. I have complete unqualified faith in our jury system. One of the things that affirmed that for me was in the first few trials, I’m hyper-focused on what the lawyers are doing, what they’re saying, when they’re objecting this and that. What I found is when I go back and talk to the jurors after a trial, they’re focused on the witnesses and on the evidence. When I asked them, “What made the biggest impression on you?” They’re talking about, “This expert got into this analysis and this expert said that. We had a tough time.” When you look at the whiteboard and the jury room after a trial, they have filled it with notes and the lawyers are secondary, tertiary to their observations of what was important about the trial.

That’s exactly what it’s supposed to be. I guess I shouldn’t have been surprised by that. The fact of the matter is juries are smart and they get the work done. They see through the noise. They always ask, “Do you agree with us?” The answer is, “Your decision is the right decision. We asked you to make this difficult decision.” For a lot of them, it is a life moment for them. Sometimes they were asking a jury to decide for them. It’s a lot of work. It’s emotionally draining for jurors, but they get in there and they do the work. I’m proud of the jurors and it’s been neat to be involved in that process.

It’s always great to hear that and hear those reassurances from the people that are on the front lines and get to see it up close and personal in a way that we never do. Sometimes you’ll get to talk to the jurors afterwards, but you never get the same level of candidness that you get to see from your side of the bench.

There is a level of candor that they have with me after that trial when they’re relieved to be done. The other thing too is my office is right down the hall from the jury room and you hear the rise and fall of emotion there. You hear them all laughing or you’ll hear somebody talking loud, and then the other person talking across the table. It’s a real thing how this body of twelve people reaches a decision. It’s neat to have that perspective as a judge.

We have been glad to have you here.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to

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About Judge Dustin Howell

TALP 38 | Sitting On The Bench

Entered Office: 01-01-2019

Term Ends: 12-31-2020

District: 200

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