Judging and Advocacy ...

Judging and Advocacy at Every Level | Justice Jane Bland

October 27, 2022 | by Butler Snow

Few judges in the Texas court system can claim to have served at every level—trial court, appellate court, and Texas Supreme Court. But this week’s guest, Justice Jane Bland, has done all three! Her career of service to the people of Texas gives her a unique perspective on how the judicial system should work. Justice Bland joins Jody Sanders and Todd Smith to talk about her career path, from her journey as a Fifth Circuit clerk who later went into private practice with her mentor, and through the Texas judicial system. She also discusses efforts by her and other stakeholders to make the justice system more accessible to people with mental disabilities and her role as liaison to the Texas Supreme Court Historical Society.

Listen to the podcast here:

Our guest is Justice Jane Bland of the Texas Supreme Court. Justice, thank you so much. We appreciate you doing this.

I’m delighted to be here.

We are excited because this is another one of our in-person recordings. This is our third one in a row. We’re here in Austin until mid-September 2022. I was in for the business speed course. Justice Bland gave the Supreme Court update. She was gracious enough to come over to Todd’s offices. We are hanging out in Todd’s Austin, Texas base that we have here.

It has been fun to be back together in person and record. We had to clarify before we started recording now that this isn’t live on the air. It will take us a little time to produce the episode and put it out into the ether. Justice Bland, we are thankful to have you here and glad to have you visit our office briefly, and we look forward to visiting with you.

You make it easy. You are a block away from the court in Austin. It makes it easy.

Most of our readers know who you are, but tell us a little bit about your background and how you got into law.

I grew up in Houston, and I’m the oldest of 4 children, 3 girls. Much later, my parents had a little brother who was born on my first day of class at UT. We are a living testament to the fact that even though you might have an eighteen-year gap in age, if you are raised by the same parents you have a lot in common. He is a hipster Millennial, and I’m the beginning of the Gen X-ers, which makes it fun.

In seventh grade, I went to a junior high speech and debate tournament and did extemporaneous speaking where they give you topics on a note card that you draw out of a hat. You have 30 minutes to look at the time where they clip articles out of things like Time Magazine and Newsweek. They give you 30 minutes to prepare either a 3- or 5-minute speech. I did that and I liked it. I went to high school out in the Woodlands. They had a speech and debate team so I signed up to do it. All along, I thought I might be a lawyer someday. My parents weren’t sure because lots could happen along the way, but they were supportive when I went straight from college to law school.

No lawyers in your family then?

No lawyers in my family. My sister married her college sweetheart, who became a lawyer, but no siblings. My two children, despite the fact that I have loved being a lawyer and so has my husband, apparently didn’t do well with our modeling because neither of our children is going to be a lawyer. They should have their journey and adventure, and they’re going to be great.

There are other aspects to life than the law, but the three of us agree that the law is a good profession to be part of. It sounds like that experience with extemporaneous speaking in junior high did have a direct effect. Did you know, even going back then or through high school, that maybe you wanted to become a litigator?

I think I did. I didn’t know what one was, but I came home, and this was before the speech tournament. Back in the day, Monday Night Football, the color commentator was this guy named Howard Cosell, who went down in ignominy. At that time, he was the guy. Everybody loved to not like him. Even at his zenith, he was somebody that everybody was like, “He drives me crazy.”

It was the 3rd or 4th grade, and the boys in my class had called me Howard Cosell. That was not a compliment. I went home and told my dad I was a little upset, and my father said, “One thing I know about Howard Cosell is before he was driving everyone crazy on Monday Night Football, he was a lawyer. Maybe you ought to be a lawyer.” He tried to make lemonade out of it, which is classic and true. I was chatty and a little bossy. Probably those were skills that were great skills to have later on. In college, I was in accounting. There was a fork in the road of, “Do you become a tax lawyer?” If I pass the CPA exam, why not? I thought tax law was interesting, but I kept getting drawn toward litigation. Probably a natural inclination more than anything.

You did a Fifth Circuit clerkship with one of the legendary judges on the bench there. Tell us a little bit about that.

I clerked for Thomas Gibbs Gee. On top of everything else a noted scholar, and his colleagues adored him when they weren’t disagreeing with him. Even when they were disagreeing with him, and he could be a firebrand occasionally, he loved his colleagues and, in particular, the ones that he sometimes had strong disagreements with.

On top of all the great attributes he had for judging, humility, a talent for it, and a passion for it, he also was a great boss. He was easy to work for and unstinting in his encouragement. I clerked for him the year that he decided that he would go back to private practice. He had risen up to be the senior judge next to Chief Judge Charles Clark. He was not going to be chief judge. He was going to age out before he was the chief judge.

He was ready for another challenge and decided to go back to private practice. At the same time, I was trying to make my decision, so together we went. I got an extra couple of years with Judge Gee, which was wonderful. He ultimately had Lou Gehrig’s disease. Not only did he model terrific judging for me and how to be a terrific colleague, the true devotion he had to work, but also he modeled the challenges that come with a disability like ALS and how you forge ahead. He didn’t let it get him down.

It sounds like you had a great mentoring experience with him. It went on for many years. That is a special thing.

Not long enough, but yes, it went on for a few years. He was at our wedding, and I was happy about that.

New Orleans stories, at least that you can share?

There are New Orleans stories but they are not alcohol-fueled except for my 50th birthday, which we are not going to talk about. When I was a clerk, my sister was in college. We all piled into my government-rate hotel room because we all saw this as, “We got a hotel room in New Orleans. We are all broke.” It’s no big deal to share this tiny little hotel room with my sister and future brother-in-law, but we managed. It was a great experience. You have to remember it was a time before the internet and cell phones. Gathering in person for both Fifth Circuit judges and the clerks was an important event or happening for us. We geared up for the whole month to get ready for those few days in New Orleans.

He talked on the phone every day to his colleagues but other than that, there wasn’t quite so much interaction between you and the other members that are on the panel. It was a great time to get to know each other and get to spend time together. The judges were incredibly gracious. They pretty much brought us all along when they went to dinner together. I always thought sometimes you rather come and guys will follow it. I think young people liven up the place and I realize that now.

Tell us about your experience in private practice. Once you left that clerkship, did you wind up doing mostly trial practice, or was it a mix?

I came of age before the advent of specialization. The firm I was at, Baker Botts, didn’t say it, but it was an unwritten rule. You couldn’t be a partner in the trial department unless you tried cases. Even though I worked on a lot of appeals because I came over from the Fifth Circuit and Judge Gee and I worked together, that was never going to be a path I thought. At that time, I loved every day of the practice. I never thought I would leave.

Supreme Court Clerkship: There is an unwritten rule in private practice that you can’t be a trial department partner unless you have tried cases.

I ended up doing a great mix of trial work at a docket for the farm bureau. I worked on some HLMP cases and some cases for Texas City Refining, which is long gone, but someone owns the plant now. I hope they fixed it up. At the same time, I got to do a mix of appeals back then and oral arguments. The rules didn’t change until ‘97. The Discovery Rules in ‘94 and the Appellate Rules in ‘97.

What that meant is that there were a lot of oral arguments to be had. You were willing to argue a case that was in the summer when everybody else wanted to be on vacation and out of Houston, was a sure loser, or was in some special sitting in Longview. It was a feast. If you didn’t care and you did your best and thought, “I’m going to make the best argument I can,” you would get a lot of experience. I ended up getting enough arguments, board certified in civil appellate, and civil trial later too.

It sounds like the trial practice kept pulling you back.

It’s a great thing. I understand the need for specialization. I talk to trial lawyers now that say, “I’m never going into an appellate courtroom ever again.” From the appellate lawyers’ perspective, I always encourage young appellate lawyers and people who want to specialize in appellate work not to foreclose at trial opportunities. For one thing, you might like it more than you know.

Also, if you look at the business model, where is the growth in litigation? There are only so many appeals that are heard every day. There is a finite number of appellate courts and appellate jurisdictions. You don’t want to be a person that is specializing in something that is not going to give you enough work to do once you get it. Trial judges and trial lawyers appreciate appellate practitioners who understand where they are coming from.

Supreme Court Clerkship: There are a finite number of appellate courts and jurisdictions. You don’t want to be someone specializing in something that will not give you enough work to do.

We have talked about that on this show a lot, and we both agree with it completely. It’s an important perspective to have because it’s easy to Monday morning quarterback the trial lawyers when you haven’t been in their shoes until you have sat there and seen. We have to make split-second decisions, and maybe they are not the right decision, but it’s the right decision at that time.

It also lets you get comfortable with risk in an appropriately measured way. You can’t start arguing about the company’s appeal because it is just the risk involved in that thing. It can be daunting. It’s daunting to anybody that argues that case, but if you start out trying a jury trial where the mountain controversy is something commensurate with your experience and your opposing counsels are similarly situated.

When I started out, I tried cases with law school classmates and people who became friends. We were fighting about, at that time, $1,500 sometimes, or not even that. We get it all resolved and then we go have lunch. Now, those people are in the American College of Trial Lawyers and the head of TTLA. You don’t think of it that you’re building these skillsets. At that time, you were like, “I’m having fun. I’m going out. I’m trying this case that feels right for my experience level.” That’s what I think having trial practice gives you when you’re starting out.

After me, it changed. There are people who, from day one, said, “I want to be an appellate lawyer, and this is where I want to specialize.” They have made great careers out of that specialization. There are lots of ways, as Justice Lerman always says, and I quote her more than she even says, “There are a lot of ways to get to Cincinnati.” I encourage people to try experiences if they are offered or ask for experiences. You can try it and say, “That is not for me. Working for that person is not for me.” If you don’t try it, don’t challenge yourself to do something that is maybe not as comfortable.

Speaking of trying new things, while you were in private practice, you moved on and became a trial judge in Harris County. How was that?

I got on the trial bench at a great time in Harris County’s judicial life. I was there with lots of terrific judges and lawyers. It was a relatively stable time in the judiciary. There had been a series of sweeps. The sweeps had stopped for a while, so we were able to recruit people who thought, “I can make a career doing this, even though I will have to maybe close down a lucrative solo practice or come from a place where I was making more money, but it’s public service and I can devote some time to it.”

It attracted great people like Harvey Brown, Chief Justice Tracy Christopher, and John Wooldridge. Several of these people went on to become Texas Supreme Court judges long before I came up here. Dale Wainwright, David Medina, John Devine, and Jeff Brown all came from the Harris County trial bench in and around the time I was there. Jeff Brown came shortly after I was there. Jennifer Elrod was on the trial bench. She went to the Fifth Circuit. It was a great time to be trying cases in Harris County. We have had some of the best lawyers on both sides of the docket at the time, trying terrific cases.

That is an all-star list that you rattled out.

I learned a ton from those people.

Going on the bench, once you started your career as a lawyer, was that something that you aspired to do, or were you one of those who after your story, it is about, “It came to me. It worked out.”

I’m more the latter. I never thought about it. Even when I clerked and worked with Judge Gee, I never thought, “Someday, I might want to be a judge.” For one thing, I didn’t come from law. Someone in an offhand, Eric Nichols, who you guys know, maybe, was a year older than me in law school. He probably doesn’t even remember this, but he was the Editor in Chief of the Law Review. He is ahead of me. At the eleventh hour, he passed me in the hallway one day and said, “Are you thinking about clerking on the Fifth Circuit?” I said, “No, I don’t know anything about that.” He was like, “You ought to think about it. A lot of people do it.” That’s how I found out about clerking. If he hadn’t mentioned that to me, I wouldn’t have even known.

Now, it’s a much more orchestrated process. The timing seemed to always shift. I’m pretty sure I would have been lost in the morass if I tried to do it now. Back then, it was that one comment from somebody who thought I might enjoy it that made me seek out what I needed to do and put my name in. Judging was the same way. I was presenting a witness for a deposition. It was a partner at the firm and he was a resource witness. It wasn’t contentious, which is why I was presenting him.

We are at a break and he said, “Governor Bush has this idea that there’s been a lot of turnover on the Harris County bench. He got this idea that if we can put in some young people who don’t mind taking a pay cut, they might be able to spend some time there and grow into the role.” I don’t know what I said, but he said, “That is maybe around the same age. Would you mind spreading the word?” I was like, “Sure.” I got home that night and thought about it. I talked to my husband, and I said, “Maybe I’d like to do it.” That’s how it started.

We had our first child, Daniel, and my husband is a transactional lawyer. He never sees the inside of a courtroom and does big energy transactions. This is 1997. Conventional wisdom said, “The United States of America was going to be completely out of oil and gas by the year 2020.” His clients were deploying resources around the world to try to secure access and right to energy sources. This was the beginning of exploring alternative energy, like nuclear, geothermal, wind, and other things.

He was traveling because there was no internet, cell phones, and video conference technology like we have now. They would go send him to places like Kazakhstan or Bangladesh for a while. Being grounded in Harris County was extremely attractive to me. A seat came open a couple of weeks later. I didn’t get it, but a few months after that, Justice Medina got that one, and a few months later, another one came open. Governor Bush’s office called and said, “Will you take it?”

At that point, I was nine months pregnant with our daughter. It was Thanksgiving weekend. I was sworn in on December 5th informally, and I had tried a car wreck case to show everyone I was going to do the job. I had her on December 23rd. I had immediately run to keep the seat. The 1998 election year was a good year.

We have talked to a lot of judges, and I have known a lot of judges who had to do that. I had never known anyone who took the appointment when they were nine months pregnant. Turned around and had to run with an infant. That had to be a whole different level of challenge.

My husband is fond of saying, “Short-term pain, long-term gain.” That’s what he said to me on the phone. He was gone. The time difference was such that we usually talked about 8:00 at night and I said, “They gave me 24 hours.” He said, “What do you think?” I was like, “It sounds like a great job.” He said, “Short-term pain, long-term gain.”

I look back on it as we do every time we go through some adversity. My mom is fond of saying, “Failure is good for you.” You don’t want to hear that while you’re in the middle of the challenge or overcoming the failure. Whatever it is, you don’t want to hear it at that time. Sarah and I went everywhere together. I took her everywhere, and somebody would watch her in her little infant seat while I did my one minute.

Harris County at that time was big, but it’s not as big as it is now. We took it as a grand adventure. She did take a little longer to sleep through the night. I always thought it was because that was the quietest time for both of us. I always used to say, “Sarah, please don’t blame me if you struggle as a teenager. I hope I’m doing a good enough job.” Being the kind of kid she turned out to be, I didn’t need to worry. It had nothing to do with me or my ability. She is a great kid. She says she is not scarred.

How long were you on the trial bench?

Over six years.

You got promoted in a manner of speaking. What led you to the Court of Appeals in Houston?

It’s hard to say, but I was more known as an appellate lawyer when I went on the trial bench. The appeals I had worked on were higher profile, except for maybe a couple of trials that didn’t turn out well. That is why I’m not well known. They came out great in terms of cultivating colleagues, providing a great experience, and great clients in all of it. You can’t measure your career by a particular win or loss.

That happened quickly. Governor Perry, at this time, in the middle of December 2003, had appointed Adele Hedges to be Chief of the 14th Court. She had been on the 1st Court. Part of the consideration was we needed somebody who could turn around, get the signatures, get her name on the ballot immediately and do the job. You like to think that is the first consideration and not the political side of it. I haven’t ever been in the room to know, but tap me on December 17, 1997. I wasn’t opposed that year. It was nice. I got filed, and I didn’t have an opponent. December is not bad for me mostly because of Sarah. For other reasons, too, December hasn’t been bad at all. It’s all good.

It’s funny because when you were on the trial bench, you were in what is now the Court of Appeals. When you went to the Court of Appeals, you are over at South Texas.

I’m in South Texas until 2011. I worked on the restoration of the 1910 Courthouse.

I love going over there. It’s such a neat building. The courtrooms are gorgeous. The attorney lounge probably doesn’t get enough credit, but it’s pretty great too.

That was the old commissioner’s court. It got restored to its 1910 look. It made perfect sense given that it was between the two courtrooms to make that the attorney lounge because the commissioner court graciously. They could have occupied the building with us, but they had outgrown any use of that space. Even if they didn’t move the appellate courts in there, they couldn’t fit their operation in there.

That courthouse is deed restricted to be a working courthouse. The appellate courts were fortunate that our operations fit the footprint. Once you took it back to its 1910 architecture, that meant opening up lots of spaces and losing lots of workspaces. Now it’s on Culture Map. It’s one of the oldest buildings in Houston. It’s not saying a lot because it’s Houston, but it gets a lot of visitors.

It truly is wonderful to visit as an advocate. The attorney lounge is pretty cool because you can go in there. They have this CCTV piped in if there is another argument going on. Although whenever I’m there, I’m worried about my own argument rather than watching someone else’s. All the features of it taken together make it great.

It’s fun to distract yourself with anything when you’re stressed out about whatever it is that’s right in front of you. My apartment was never cleaner than during finals. I needed to scrub everything.

You served on the Court of Appeals for a number of years, but your job is you, yet again were promoted in another manner of speaking. It maybe took a different path to get there than some.

I was fifteen years on the Court of Appeals. In 2018, I lost along with 450 other judges. I had thought that the ship had sailed and I’d go back to private practice, which I enjoyed. My children were off to college, out of college and private practice didn’t seem daunting because I was naïve. For the brief hot minute I was there, I enjoyed it and then the ship turned back into the harbor. Sometimes, it does unexpectedly.

Was it in December?

No, it was August. Daniel was born in August 1995.

Were you back at Baker Botts?

This time, I went to Vinson & Elkins. Doug is there. He has been there his whole career. The idea of if we’re going to both do these jobs. I had some idea of what that looks like and wouldn’t it be great if we could do it in the same place? Once we figured it out, it took us a while to realize, “We can take the HOV lane to do this.” We do different things on different floors for that time. It probably wouldn’t have worked early on in our marriage to both be in the same place, but it was terrific. I enjoyed every minute of it.

It didn’t last and once again, Doug said, “Go for it when it comes up.” I had said, “I wouldn’t go back to the Court of Appeals, but if this came available.” They said, “Sure.” I think they were thinking, “That is not going to happen.” I wasn’t either, and then it does. I have been fortunate to work with terrific people throughout my career.

How many years ago now? It was 2018 when you stepped off the bench.

I was only gone for fourteen months.

You are back on the bench now as a Justice of the Supreme Court of Texas. We enjoy having current and former Supreme Court justices on our show because, first of all, we get to hear all these wonderful stories. There was an adjustment making the transition from the Court of Appeals to the Supreme Court. I’m sure you had some idea of which you were getting into, but how did that work out?

I was ready for the challenge, but it was a challenge. The job is not the same as the Court of Appeals. What the two jobs have in common is the deliberative process that you go through to reach the decision. You don’t go it alone. At the Court of Appeals, you have to have at least 1 other colleague and ideally 2. At the Texas Supreme Court, you have to have at least 5 and ideally 9.

Supreme Court Clerkship: The Supreme Court and the Court of Appeals both have a deliberative process you must go through to reach the decision.

As that consensus building happens with more people, it’s an exponential process in terms of time and thought in deciding a case. There are two differences. One of the things is, by the time the Supreme Court decides a cause that it has taken, it’s lived with it for a while from the beginning of the petition stage and you get the response.

If three judges decide that briefing on the merits is warranted, we order briefs and 4 to grant, 6 to PC or otherwise, we have an argument. We deliberate after an argument, and we deliberate over draft opinions. It’s a long iterative process in reaching a decision at the Texas Supreme Court. In the Court of Appeals, you don’t have that amount of time with the case because you don’t go through that first process of saying, “Should we decide this case?” because you decide every case.

The second is you are not conferring about the case when it’s first filed like you do for any case in which we request a response. You will confer ahead of the argument and after the argument. You may confer on drafts. It doesn’t evolve over the time span that it does at the Supreme Court. It’s harder to count to five than it is to count to nine in a good way. What you want is diversity and cognitive decision-making. I’m always impressed by the approaches to problems and resolution of disputes or issues on appeal and the different takes that are all valuable to the decision-making process.

You also have to, at the same time, decide other cases if you’re going to take them or not. That is a whole different process.

Every week, I enjoy that. It’s like opening up a bunch of presents every week because you don’t know anything about anything yet, and you don’t know what problems are lurking there. You want to open the petition and read it. It’s the first cut. The decision to whether to request a response or not. It’s a decision in the grand scheme of all the decisions you make for a case that ultimately is taken in and decided by the court. It’s the first tiny little piece of the decision.

When you open up a petition to read it, where is the first place that you go?

Statement of the case, every time.

Do you like the table format that most people use?

Yes. The written narrative format doesn’t help because you’re looking for some specific things. What did the trial court do? What did the court of appeals do? What is the posture? Is it a TCPA case? Is it a case judgment on a jury verdict? What is it? You’re trying to figure out what it is. The narrative form doesn’t let you pull that information quickly. What the table does is it helps you create an architecture. As you go through the rest of the petition, you can weave into the architecture of what the arguments are and what the real issues are in the case.

Supreme Court Clerkship: Using a narrative form for a statement of the case doesn’t let you pull information quickly. Presenting it using a table helps create an architecture you can easily weave through.

That’s a great way to put that. I hadn’t thought about it that way. That’s a great way to describe that.

You can glean so much information in a few seconds. That’s exactly what you’re describing. Maybe it’s not most, but the folks who do this a lot generally do put it in the table format, it seems.

Sometimes it’s a narrative format because people want to add more explanation. It’s either because they are worried about a bumpy gap in the word count. For some reason, they think, “If I give this bare-bones statement of the case, the court isn’t going to get the right impression of what is at stake here.” I understand that. I see that as a competing consideration. I would push back a little bit and say, “By giving me the bare bones, you help me understand the narrative to come and where everything fits.” It’s harder for me to pull out those structural pieces or underpinnings. In a narrative, I can still do it. I’m not saying if you file someone out there filed their brief narrative format stating their case. I can still do it. It’s no problem.

It defeats the purpose in the petition practice. The idea is to not make the judges work any harder than they need to, like that basic grasp and understanding. I’m glad to hear you say that because I’m a table guy.

One thing I wanted to talk about is a theme that has come up here. One of your liaison assignments is to the mental health commission. Can you talk about what they do and what the court’s role is, and all that?

The Judicial Commission on Mental Health was started in 2018. It had been running for about six months when I got there. Jeff Brown had been the initial liaison. It was a natural continuation since I came into his seat that I was the liaison. It’s a joint project with the Court of Criminal Appeals. It was founded with the understanding that there is a lot of intersection of the justice system with people who have mental health challenges.

How do we serve those people and make engagement with the justice system? How do we improve engagement with the justice system for those people, not just mental illness but also people with intellectual and developmental disabilities? What we work on are three areas. One is to educate and train judges and others about mental illness and ways to help people who are encountering the justice system that have one of those challenges.

We collaborate with lots of other stakeholders, so we had an all-day meeting. On our commission, we have mental healthcare providers, physicians, law enforcement, district attorney’s offices, public defenders, trial court judges, and appellate court judges, all with the aim of looking at the problems that people with mental illness face in connection with the justice system.

Our mission is to ease the way. We do that by piloting programs and there are mental health courts in a number of Harris and Texas counties now. They’re similar to drug courts and veterans courts. We are doing what is called SIM Mapping. There is something called the Sequential Intercept Model that talks about pre-law enforcement, someone with mental illness, even before there is some engagement with law enforcement.

How do we divert that and provide outpatient restoration services? What outpatient services could potentially avoid encounters with law enforcement? When law enforcement is called, what are the best practices for assisting that person with treatment, protecting public safety, and that continuum? You move on to what does it look like when someone is then in front of a probate court or perhaps criminal court? What do we do in terms of service and medication? What can go on down the line to incarceration, release? There are all these various stages. How do we collaborate with mental health authorities, healthcare providers, and others along the way to see that these people are given the best opportunity to be well and succeed at whatever point in the process they are in? That is what that does.

I’ve learned a lot. I’m a navigator of lots of bright minds who are experts in this field. We put together legislative proposals that get vetted by the continuum of stakeholders who reach a consensus on ways that we can improve. We help improve forms for emergency detention so that if a family member is on the internet looking for a way to have a four-hour hold, they can pull up the form, and fill it out. Know that if they fill it out, it’s likely to be accepted if it has merit and not going to be rejected for a technical reason. Those are a couple of things.

The way you rattled off all the different things and components of that, you have gotten educated.

Hats off to Judge Barbara Hervey, who is Co-chair at the Court of Criminal Appeals. It is very rewarding work. I learned more about what it looks like in juvenile court when a child has had issues struggling. We all know from the pandemic that it’s an important topic right now in our society’s discussion writ large. It’s great that the two courts got ahead of it a little bit to create this structure for the exchange of ideas and improvements. There is a lot of improvement that can be made.

Supreme Court Clerkship: Mental health had been a significant issue in juvenile court, and it has become so much more relevant due to the pandemic. It is great for the Supreme Court and the Court of Appeals to exchange ideas for improvement in this area.

You are also involved with the Texas Supreme Court Historical Society.

Judicial Commission on Mental Health is modern and a little bit messy in a good way because there are lots of different constituencies. Sometimes, there is not always total agreement about the best path forward. It’s amazing when we sit down and talk and how we can often find consensus about what that path looks like. Texas Supreme Court Historical Society is the history buffs of our state. I’m happy to be their liaison and learn a lot about our state’s history and, in particular, the court’s history. It’s a well-oil machine.

Especially now that a friend of our show, Justice Ken Wise, is in charge of it, and I’m sure it’s going to be even more.

We had Cynthia Timms and Tom Leatherbury. I had all-star leaders to work with. It has been great.

I have to poke at you a little bit.

What did I do wrong?

It’s not wrong at all. It was quite perfect when you swore in Justice Wise. You had a great one-liner as you did that. It had something to do with your last name.

As they said, the name says it all. For him, that’s great if that says it all. Ken is a wise person, and he’s in particular extremely wise and knowledgeable about history. We are lucky. What does that say for me because my last name is Bland? If your name doesn’t say it all, you spend some time trying to make sure everyone knows it doesn’t. I don’t know. It wasn’t pre-arranged.

You were worried about being able to fill time, and we’re doing quite well keeping going on interesting topics of conversation. We want to make sure we cover a few other things before we let you go. You’re in a unique position given the benches that you have sat on to see advocacy at those three levels, and I’m sure a lot of good advocacy and probably a lot of bad advocacy too. Is there any overarching theme that comes to mind for you having spent time at the three different levels of our court system in Texas, and would you share that with us?

I thought this started at the trial bench. First of all, if there is a lawyer that happens to be reading this, you are a better lawyer than you think you are. As I sometimes say to an audience of lawyers, for some of you that’s a high bar because you already think you are pretty good. Lawyers can be hard on themselves. In my experience, more often than not, the ability of the lawyer is commensurate with the complexity of the case and the issues that are there. Most of the time, things are a good fit. I think when there is a real mismatch, it’s hard on the judge, lawyer, or opposing counsel whose skillset does match the case. It can be hard.

I would say that is rare. I would tell lawyers, “Keep at it. It’s practice, and you’re fine.” Good advocacy comes with experience and hard work. We are all better at what we do if we are prepared adequately. I have seen lawyers that I know are good lawyers and I have seen them perform well. Maybe they didn’t have quite the time to get ready on the case, or they were hired at the eleventh hour or something like that. It’s not as good, so you play the hands you are dealt.

That is true sometimes, especially those eleventh hour coming into argue a jury charge you have never seen before. It’s just one example but not that I’m making excuses for anybody.

It’s never a bad thing to let a younger lawyer who had more time to prepare to give that person the chance to make the argument because you don’t have to make a big deal about it. This is in the trial court, but everyone in the trial court will know when the young person steps up, and the other person is to the side watching what’s going on. You don’t have to say, “I have agreed to let my associate.” Do it, and they are going to do a great job because they know it. For you, it may be your 1,000th hearing in district court, but for them, it’s their 1st, 2nd, or 5th. It’s everything, so they are going to do a good job.

One thing I want to ask you about, and this was not on our topic list, but it’s a great gig, and I know sometimes we have law students that are reading. Would you tell them a little bit about what role they serve and how you can get to be one if you want to apply?

It’s typical of other clerkships in that. It involves a lot of research, writing, opinion writing, steady memos, and other written assignments that the judge may give you to try to suss out issues in a case. That’s typical at any level. The one distinguishing factor at the Texas Supreme Court is this unusual traditional practice at the court that every law clerk and lawyer sit in on the conference. They get to hear the discussion of the cases by the nine judges and sometimes, every once in a while, are called on to talk about a case that they may have particular knowledge about.

That is unusual. That wasn’t the case with the Fifth Circuit. I don’t think it is now or the case in the US Supreme Court. It’s enlightening for people right out of law school to hear the caliber of the discussion and the range of legal matters that percolate throughout the state. The various approaches to persuading your colleagues. There are lots of different ways to persuade. You can see nine different personalities and ask yourself, “That might work for me or not.”

What if they want to apply?

We started the 22 terms. I have hired one clerk for 23 and 24, but I haven’t filled my clerk’s class. There are several other judges that haven’t either, so it’s not too late. I say that to everybody who was like me that didn’t think about clerking until somebody said, “Maybe it would be a good idea.” You send an application to the Texas Supreme Court.

Usually, there is a cover letter, a writing sample, and recommendations from a couple of professors. It’s important to show skill at writing because that’s a big part of the job. It’s not a big part of all legal jobs, but it’s a big part of this one. If that is not something that you have an aptitude for or you have shown some demonstrated interest in, it’s probably not the right job for you. We look at grades and all of that too.

It’s not every day we have someone with your experience at the three levels. To come back to that for another minute, I do want to ask you while we’ve got you. As you suggested earlier in the conversation, there’s far more to appellate practice than sitting behind the computer and writing briefs. Appellate lawyers find themselves in trial court not infrequently.

What do you think are some of the ways that appellate counsel can be most effective in trial courts? We know what we do in Courts of Appeals and the Supreme Court. What advice would you give, even to trial lawyers because we try to address that audience in this show, in terms of the use of appellate counsel in trial courts?

My advice to appellate lawyers who appear in the trial courts is to have some familiarity with what has happened in the trial. When you come in to argue the charge, a motion, or whatever it is, you are not siloed. You are well aware of what else is going on. Maybe you haven’t been there every day, but you know what’s going on. As you are meeting with the trial team at the end of the day or having some way of keeping up to speed, and then I would look at ways to facilitate improving that trial.

Appeals are expensive and time-consuming. Clients and judges don’t want them. The jury would not be happy to hear that their whole time would have been wasted because of an error that the judge made. How do you do that? If you’re in a defamation case and the case involves a public figure, you are going to have New York Times versus Sullivan to handle the trial judge. Educate the judge about the issue of actual malice. Ask the judge to submit it and explain why.

The judge may ultimately say no and you’ve got your record at the charge conference. At the same time, you have given the judge the tools to make an informed decision about whether or not to submit a particular instruction. I also think that works with opposing lawyers. If you’re a plaintiff and working on the jury charge in the plaintiff’s case, the defense lawyer is asking for a particular instruction on the approximate cause of producing cause. It’s the one that comes to mind. They are saying, “This is the one you need to have.” Maybe they guessed at Ford Motor Company versus Ledesma or something like that. They were pushing that.

You have to ask yourself if you’re on the plaintiff’s side, is the jury going to hang up on a slight variation in the definition of causation that would harm my trial lawyer’s ability to win this case? If the answer is no, think about saying, “I will put it in the charge.” You have to work with the trial lawyer to find out. Is this instruction going to kill our case? Ask yourself. If it won’t, maybe you don’t want to give the other side that bullet on appeal.

You always have to ask yourself and evaluate whatever it is you’re advising in the trial court. This error that’s about to be made I’m going try to preserve, is it harmful? What am I going to let go of? As somebody jumps up and protects the record all the time, at some point, they become sound like a broken record, and the trial judge starts to tune the person out. The trial judge will start tuning out the person who says, “Judge, I’m going to reverse you.” They’ve heard that. Probably not, if your appellate lawyer don’t do that.

We are at the time we had scheduled now, and it has been such a great conversation. Our tradition is to allow our guests to offer a tip or a war story to cap off the conversation. Did you have something else in mind that you want to tell us?

This is a technical tip. It has nothing to do with advocacy. It is to get good at bookmarking because the first thing I do is click on those bookmarks. If you haven’t bookmarked, it’s not a big deal. I scroll to find whatever it is I’m looking for. You sure make it easy on the judge. The other thing is if you are in the Supreme Court’s requested briefing on the merits, consider attaching the Court of Appeal’s opinion and other super-relevant appendices to your briefing on the merits so they don’t have to click back to the record, the petition for review, or the response to the petition for reading to find what they are looking for if it’s something that you’re talking about a lot in your briefing on the merits.

Those are great. Thank you so much.

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About Justice Jane Bland

Justice Jane Bland has served on the Supreme Court of Texas since 2019. Before that, she served for six years as a state district judge in Houston and 15 years as a justice on the First Court of Appeals.

Justice Bland is the Court’s liaison to the Judicial Commission on Mental Health, the Texas Board of Legal Specialization, and the Texas Supreme Court Historical Society. She is the deputy liaison to the Court’s Rules Advisory Committee.

She earned her undergraduate and law degrees from the University of Texas. In law school, she was Vice-Chancellor, an editor of the Texas Law Review, and a member of the Order of the Coif. Following law school, Justice Bland clerked for the Honorable Thomas Gibbs Gee on the United States Court of Appeals for the Fifth Circuit.

Justice Bland is board-certified in civil appellate law and civil trial law. She began her practice at Baker Botts, where she handled trial and appellate matters. Before her appointment to the Court, she was a partner at Vinson & Elkins in Houston. She is a member of the American Law Institute.

Throughout her career, Justice Bland has been recognized for her work to improve our state’s judiciary. In 2010, Chief Justice John Roberts presented her with the William H. Rehnquist Award, given to a state court judge who exemplifies the highest level of judicial excellence, integrity, fairness, and professional ethics. The Texas Association of Civil Trial and Appellate Specialists has recognized her as the judge of the year four times. She has received several President’s Awards for her work with the Houston Bar Association and the Houston Young Lawyers Association.

Justice Bland previously chaired the board of Houston Volunteer Lawyers and the Oversight Committee for the Texas Pattern Jury Charges. She served on the Court’s Commission to Expand Civil Legal Services and the Board of Legal Specialization’s Civil Appellate Law Advisory Commission. She is a senior trustee of the UT Law School Foundation.

Justice Bland and her husband, Doug, have two children.

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