Getting Wise About A ...

Getting Wise About Appellate Law, Texas History, and Podcasting | Justice Ken Wise

April 14, 2020 | by D. Todd Smith

Listen to the podcast here:

A judge’s life doesn’t necessarily have to revolve around the law 24/7. There are many pursuits worth going after if you’re passionate about them and willing to put in the work. Todd Smith and Jody Sanders talk with Justice Ken Wise of the Fourteenth Court of Appeals. Justice Wise shares his journey, which has included several interests far removed from the law. Having served on both trial and appellate benches, he also imparts lessons learned from both roles. Don’t miss what Justice Wise has to say. You might just find it useful in your own life and practice.

We have the original Texas appellate law podcaster himself, Justice Ken Wise of the Court of Appeals in Houston. His podcast, Wise About Texas, is not necessarily about appellate law, but he’s definitely the first appellate law recorder that we know of in the state. He’s coming to us from the Wise About Texas World Headquarters down in Houston. Welcome, Justice Wise.

Thanks for having me. It’s good to be with you.

We’re glad you’re here.

We usually open up the show with the guest telling us a little about themselves, how they got where they are. As Jody mentioned, you’re a justice on one of the courts of appeals in Houston, but you’ve been a judge at another level. You’re a trial court judge before you came to the court of appeals, weren’t you?

I was. I got appointed to the 152nd Civil District Court in Harris County in 2002 and was unelected in ‘08. I practiced law for a little while and decided I still felt the call. I was reappointed in 2011 to the 334th District Court in Harris County, where I picked up where I left off there and then was appointed to the 14th Court of Appeals in 2013.

Before all that, you had some other interesting things in your background. You sent us an email with some highlights of them that aren’t necessarily part of your legal career but are interesting. If you wouldn’t mind hitting a couple of those.

What do you want to talk about? I have trouble sitting still and I have an intensity gene that carries everything to the extreme. I’ve done several things.

You mentioned that you had a brief pro golf career. You were at the top ten in sporting clays and you’re a member of an Indy racing team pit crew. Was the Indy pit crew just a one-time deal or were you back there for a long time?

Actually, that’s a funny story because I was practicing law and I’ve been a racing fan my whole life. I was a big NASCAR fan when NASCAR was peaking in the early to mid-’90s, late ‘90s. This is going to sound weird, but a friend of mine’s brother-in-law was a Le Mans champion for Jaguar and he was starting in the Indy Racing League team. Now back then, the Indy Racing League, now it’s the only American Open-Wheel Oval Series, but then there was kart and there was Indy Racing. It has the Indianapolis 500, so that’s part of its series and it was called the Indy Racing League.

He needed some legal help. His brother-in-law, my friend was trying to get him some sponsorship and business help and I said, “Sure, I’ll take a look at it.” It turns out he should have called me sooner, but that’s a different story. When you’re running a race team on the thinnest budget you can and trying to race in the premier Open-Wheel American Racing series, you take any free hand that knows anything about a car. I ended up not only helping him with some legal work but on the pit crew. I cannot imagine anything more dangerous than putting me in the pit of a car that’ll do 230 miles an hour.

Over time, I learned a lot about it. The peak would be the ‘99 Indy 500 when I was in charge of all the tires for one of our cars, and if I may say so, we got to the top ten at one point, but there was a whole slew of engine problems with Infiniti engines, probably outside the scope of this podcast. The engine let go but the tires were in great shape. That’s one of the coolest things I’ve ever done. It’s one of the most stressful and intense things I’ve ever done, but it was cool and I would love to do it again.

Makes oral arguments seem very tame.

Indy’s very special, obviously, but some of the other tracks we raced at were fascinating. To be around that for a year and a half, it was really neat. But it changed my perspective. A lot of people watch auto racing and they think, “Those wrecks are cool.” Now, I cringe when I see one because I know what it costs.

The other element that you had let us know about, you were on the pro golf circuit of some kind there for a while.

In the spirit of appellate law, “pro” and “golf” is a very technical term. If you ever sign up to play in a tournament where they award money, this is back in 1991, then you’re considered a professional and you don’t have to do anything more than enter and you’ve lost your amateur status. They’ve massaged that a little bit since, but back then, I did. I played a few Texas tour events, very undistinguished. It’s a life lesson. I learned what the high level was and that I wasn’t there, a little bit about what it took to get there. Maybe it made me a better lawyer.

I’m picturing scenes from the movie Tin Cup in the back of my head.

It was close. I didn’t have a caddy. I could play pretty well, but there are a lot of guys that can play well. When I entered and it was the lowest level tournament you could possibly find, but I was playing against guys who had had successful Southwest Conference golf careers and they weren’t good enough to do any better than that. I learned a lot about what high-level golf really is. Also, I learned it wasn’t all that much fun when you’re grinding like that. I can still get it around, but it gave me a lot more respect for the guys that play the PGA tour. That’s a level of golf that us mere mortals just cannot comprehend. It’s gotten worse, or better, depending on how you look at it.

Talking about other activities, one of the things outside of the appellate world that you’re most well-known for is your Texas history podcast. Looking through your résumé, you’ve got a lot of other Texas history things that you do both with relation to the courts, things like the Supreme Court Historical Society, but then you’re also an adjunct professor. How did you get your interest in Texas history and how did that lead you to a podcast?

I’ve always been interested in Texas history. My ancestors go back to 1836. I grew up running around some land in Montgomery County where the old house was, and it burned down. The typical story in old Texas. I would be running around as a little kid and what I remember doing is finding bricks, and we still have the bricks, in either the chimney of the house or chimney in the kitchen or something, and asking questions, “What is this? Where’s this from?” I would get those family stories. I felt connected to it. Growing up in Texas, you get Texas history in fourth and seventh grades. We go to the Alamo, we’ll go to San Jacinto, traditional Texas upbringing. The Disney Davy Crockett series was on. The true Texas history is exciting when you’re a kid. You don’t need to fictionalize.

Every time people try to fictionalize Texas history, they fail miserably because the truth is so much better. I’ve always been interested in it, and the podcast and the more serious aspects of my work have come about through the Texas Supreme Court Historical Society, where I’ve had a chance to interact with serious historians, and research and writing is what I do. With age and maturity and all of that, I’ve just taken a more serious turn. The podcast itself came about because I was looking for podcasts and I searched Texas history and there was only one at the time and it wasn’t even focused exclusively on history.

They would tell historical stories, but it wasn’t serious scholarly kind of history. It was a great podcast, but they did a lot of culture and all that. I thought, “Here’s something that I have time to do.” Writing articles and books is hard if you’ve got kids and the day job the state expects you to show up for. I thought, “I can podcast because that’s like talking an article or just telling stories, which I do anyway.” Instead of boring my hunting buddies, maybe I can bore the whole world. I looked into how to start a podcast and discovered it wasn’t all that hard.

I did it as an experiment, and it took off pretty quick and has become a thing. It has led me into teaching a college class on Texas History and Government. I’m doing some more writing. I do a ton of speaking on history. It’s been fun because it’s plugged me into the history community, but it’s also enabled me to go around the state, which again, I like to do anyway. I meet all kinds of great people. It’s become big enough now that I’m getting interactions every week from listeners around the world. It’s in over 135 countries around the world. It’s a ton of fun.

It really is amazing. I would like to know, given your experience with podcasting, you’re our seventh guest on. This seems like a good opportunity, a good time to ask you if you have any tips for newbies because we’re still newbies.

I feel like I’m a newbie from time to time. The biggest thing with podcasting, you need to know what your goal is. My goal is to preserve and promote Texas history. If one person listens or, I’m up to over 500,000 downloads, it doesn’t matter to me. But I’m going to do it and I want people to hear it and love Texas, and I view it as an extension of my service to the state. Identify your goal. Do you need a big audience? Do you not? What are you trying to do with it? And that’ll dictate how you do it. If you’re trying to get twenty gajillion listeners, then you want to get as many celebrities as you can. If you’re trying to fill a niche and get everybody who practices appellate law in Texas to listen, you’re probably going to get that because you’re the only one and you mix up your content.

TALP 7 | Appellate Law
Appellate Law: The biggest thing with podcasting is that you need to know what your goal is.

I do think one thing that goes across the board on podcasts is regularity. You need to keep putting it out there. I know if I go more than about three weeks without doing an episode, I start getting emails from listeners. “What’s going on? We’re ready for another one. Come on.” It’s nice, it’s flattering, but we all have regular jobs and so it’s hard. It is difficult to do quality work and put it out there sometimes. Time-wise, regular content is the key. You all are doing a great job. The first six have been wonderful. I hope this one turns out as good.

I don’t want to put you on the spot, but do you have any Texas appellate history stories that you want to share?

The most famous appellate-related history is probably the Semicolon Court back during Reconstruction. That story has been told again and again, where the Reconstruction governor EJ Davis rigged up a false election fraud charge to try to get the Supreme Court to invalidate the 1873 election, which he lost two to one. They indeed did invalidate it, and they invalidated it based on the position of a semicolon in a sentence in the Election Code, which led to a near-riot in Austin. It led to the newly elected legislators getting ladders and climbing into the chambers on the second floor of the Capitol, inaugurating Richard Coke as governor, convening as a legislature, even in the face of this Supreme Court ruling. Eventually, Davis had to resign.

There are a couple of funny aspects to that. There’s one account that says that John Ireland, who later was on the Texas Supreme Court and was governor, kicked Davis in the seat of the pants on his way out of the building. I don’t know if that’s true, but it ought to be true. What is true is Davis left the governor’s office, which was then on the first floor of the then Capitol, and locked it and took the only key. Richard Coke had to break the door down to get into his office. The Supreme Court that issued that ruling, and they were a court of three at the time, was branded the Semicolon Court. To this day, you just don’t cite Semicolon Court opinions in your legal work. There was a historian named Wooten who wrote in a history of Texas, “The bar will not cite the opinions from that court.” That’s about as exciting as appellate history probably gets.

It’s a good reminder that punctuation matters, too.

Punctuation matters and legally, the ruling was probably correct, but I guess I can say that now.

You mentioned your involvement with the Texas Supreme Court Historical Society, which obviously seems like a natural fit for you. Were you involved in putting together the Taming Texas program that’s going out to the elementary-aged and middle school-aged kids?

I’m in my second year chairing that for the Houston Bar Association, which is the Houston component, and that’s where it was rolled out. I did not put it together. David Furlow, Warren Harris, and Brett Busby were very involved at the beginning. Jim Haley and Marilyn Duncan had written the books, which are fantastic. A new one has just come out. On the chief justices, it’s the third in a series and these books are distributed around the state to school libraries. The program has been tremendous. Richard Whiteley of Bracewell & Patterson and I are chairing the Teach Texas Committee in Houston for the second year in a row. We’re getting it rolled out in Dallas, Austin, and San Antonio. It’s a great program. It’s been very successful in Houston. Thousands of kids have learned about the court system.

I know they’re trying to get it rolled out in Dallas and in Austin as well. Isn’t the purpose of that program to supplement the historical education of this age group of kids because they’re not taught much about the judiciary in their history programs, is that right?

That’s exactly right. Don’t get me started on history education, but yes. What this program does is it talks about the history of the Texas legal system in an episodic way that ties in with what they do learn in class, on the timeline. It talks about the third branch of government and it talks about the structure of the different courts. It talks about a few cases, how judges make decisions. It’s a great program. As an example, we talk about the first lawyer in Texas, perhaps being a Karankawa medicine man who saved the life of some Spanish explorers. It’s an interesting program.

I hope they want to bring it to Fort Worth. I’d love to be a part of that.

It’s available. Somebody’s got to take the laboring oar, and the bar association will be coordinating all the volunteers and getting the schools to sign up. There’s a lot of logistical work. When you go into that classroom and you get to make it real for the kids, you find out they are interested in this stuff. It’s good.

I remember vague references to the Texas judicial system going through school, but beyond that it was, we have one and it’s got some courts in it. That was about as deep as any of it ever went.

I know that program, as you’ve said, has had a lot of success in Houston, and so we’ve had some discussions here in Austin about trying to bring it here. I know that they’ve been having those same conversations in Dallas and that they’re actually in the process of getting it launched if they haven’t already in Dallas. If we’ve got bar leaders out there reading who are interested in helping to bring this program to their bar association, we’ll be happy to put you in touch with the right people to make this happen.

I’m going to have to make a note to myself to follow up on that, too, with our people and see if we’ve got some interest here. I’d love to be part of that. Talking about your interest in Texas history, my parents used to ask me where I wanted to go on vacation in the summers because I was an only child and they quit asking after the third time. I said, “Let’s go to Huntsville and see the Sam Houston home again.” Twice is enough. My kids get tired of the historical marker stops.

With your different experiences, turning back to your judicial career, I’m always curious when we visit with folks who’ve been both trial and appellate justices, how you would describe the differences in the job. It might seem obvious to those of us that do nothing largely but appellate practice. I always like to hear it straight from the horse’s mouth. What are the day-to-day differences between what a trial judge does and an appellate judge?

I’m going to quote my buddy Jeff Rose from the Third Court of Appeals. He said, “Trial work is more fun. Appellate work is more interesting.” There’s a lot of truth to that. The life of the district judge is as far as the case goes, you’re looking forward to the next step. You have some pretrial hearings. You’re looking forward to maybe a summary judgment or whatever. You make your motions and limiting rulings. You’re looking forward to the presentation, and you get through the evidence, you’re looking forward to the jury. And now I’m looking forward to like, “I can’t wait to get there and it’s so exciting.” You are looking in a forward direction toward the next step and then ultimately the jury charge and the jury verdict.

In appellate court, you’re looking backward and that’s the first thing that hit me when I got on the bench. I probably shouldn’t tell a story on myself, but the first conference with the two other members of my panel on a case that I was going to author, I said, “We need to do this.” They said, “We have precedent on our court that says you can’t do that.” I said, “I don’t care. It’s wrong.” Somebody shook their head and I went, “You’ve got to be kidding me.” I do think it’s very beneficial to have been a district judge, but of course, I would say that because I was one. One of the problems is you don’t have unfettered discretion. In fact, you have none basically, and you don’t exercise discretion where day to day, on the trial court, you’re doing it every day.

The variety on the trial bench is interesting sometimes because you’re dealing with people, the clients, a lot in different kinds of cases on the fly. Appellate work is more interesting because you have time to think about the issue. You have time to shape it a little bit. We don’t often change the world on the intermediate court of appeals, but you do need to make sure that when you take that case and start putting your hands on it, you want it to be legally correct, but you also want it to be procedurally sound. That’s an inartful way to say it, but you want to take the right approach to that analysis because you’re not the last set of eyes that are going to look at it. The pieces need to fit together if that makes any sense. They’re very different, and I’ve enjoyed both of them very much.

I always heard that having some time in as a trial lawyer made you a better appellate lawyer. In my own personal experience, and I was trained up in a litigation program at a big firm, I do think that there’s some merit to that. You get to see how things are done at that level and really experience it, and when you’re dealing with a case at the next level, you don’t forget those lessons that you learned. Would you agree with that, Judge?

Absolutely. As with many things, there’s a difference between knowing about it and experiencing it. When you can get down and experience it, it makes a big difference. One of the trends that I saw at the end of my trial court service, and I would imagine has only increased and was a real benefit to everybody, was the presence in a trial of an appellate lawyer. I remember very well one case. I don’t remember much about the case, but I remember that two brand new faces came in the courtroom to do the jury charge because it was going to be complicated. I’m going to name their names. It was Bill Boyce and Russell Post, and I thought, “This is the best jury charge conference I’ve ever had.”

We all understand the objections and what has to be done. Any trial judge will tell you drafting jury charges is not the thing you wake up most looking forward to. It was not only efficient, but the charge was going to be better and the objections were going to be better and everything was going to be preserved. That’s how it ought to work. I’ve had other appellate lawyers who’ve sat through trials. A bad part of that is it’s kind of necessary now, but it’s good to have. I would imagine it would make the appellate lawyer better the next time.

TALP 7 | Appellate Law
Appellate Law: For a judge, there’s a huge difference between what’s considered a good brief among the rest of the briefs.

We want to be respectful of your time. In closing, do you have any tips for appellate or litigation practitioners, or maybe a war story or anything you’d like to share?

One thing that I’ve noticed is there’s a big difference between a good brief and most of the briefs. The quality of writing. I’m not a great writer. I don’t claim to be. But it’s a craft. Whether you’re writing a song or a novel or a brief, writing is a craft. You are a tradesman, you’re a writer if you’re an appellate lawyer. I would work on that. You don’t have to be Bryan Garner, but you need to practice and think about it. That’s something that I noticed. When I pick up a good brief, it’s awesome. I’ve been on the court long enough. I’ve had some I just couldn’t get through. I put it down. I’m like, “This is ridiculous. I’m not learning anything. I’m going to pick it back up later.” It’s tough.

If a decision-maker is having to struggle to understand what the decision is or what you want the decision to be, you’re losing. It’s the equivalent of a jury argument that rambles everywhere and all those CLEs. We do it in writing. I would say practice your craft. I don’t know if I have any appellate war stories. I had a summary judgment hearing one time where I had read and prepared for a case that was on the following Friday’s docket, not the Friday of the docket I’m talking about. I go out there and ask the first question and the lawyer’s like, “I don’t even know who that is.” I looked at my docket sheet and I realized, “I asked him a question about another case.” He was so confused.

I can imagine how that guy felt though. That’s never the question you’re prepared for.

He had a lot of confidence in the judge. The other one, I got to tell this one because I don’t know who it’s happened to or who will admit it, but I’m old enough that I’ll admit it. I was striding confidently to the bench when I was on the trial court, stepped on my robe, and went flat down. You hear everybody gasp. I waved, “I’m okay.” Anyway, I had a lot of fun serving as a judge. It’s really an honor. Despite appearances, I take it very seriously. I love this state and I love being a part of it.

We appreciate you coming, Judge, and sharing those anecdotes. If you can’t laugh at yourself, there’s something wrong, especially in our times.

 Important Links:

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

Join the Texas Appellate Law Podcast Community today: