Making Appealing Arg ...

Making Appealing Arguments in Federal District Courts | Judge Jeff Brown

May 26, 2020 | by D. Todd Smith

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Few judges have sat on a trial-court bench, a court of appeals, and the Texas Supreme Court. Our guest for this episode, Judge Jeff Brown, has done all three and more. Today, he joins Todd Smith and Jody Sanders to talk about his time as a state trial and appellate judge and his recent transition to the federal district bench. Sharing his career background, Judge Brown touches on how a judicial clerkship helps new lawyers understand how the court operates and makes decisions. Judge Brown also offers his take on advocacy in the courts where he has served and highlights similarities between the skill sets involved in federal trial courts and state appellate courts.

We have a guest with us who many of you will know from his days on the state appellate courts here in Texas, the court of appeals in Houston and also the Texas Supreme Court, and lately of the United States District Court in the Southern District at Galveston. We have Judge Jeff Brown with us. Judge, welcome to the show.

Thanks a lot. I’m glad to be here.

Would you tell our audience a little about your background, where you went to school and the early stages of your career?

I grew up in the Dallas area. I grew up in Garland. My dad was a Dallas police officer. I did my undergraduate work at the University of Texas. I got an English degree there. I met the woman who would become my wife, who was also an English major in Shakespeare class. We got married right after we graduated. I moved to Houston to go to University of Houston for law school. After finishing law school, I clerked on the Texas Supreme Court. I was hired by Jack Hightower, who was an elder statesman Democrat on the court.

He’s such an elder statesman that he retired while I was clerking for him. Governor Bush at the time appointed Greg Abbott, who at that time was a young trial judge in Houston to replace Judge Hightower. I had an elder statesman Democrat. The other half of my clerkship was with a rising star young Republican judge. It’s a great year. I worked on the court. My buddy, Todd Smith, was working for Judge Gonzales at that time. From there, I went to Baker Botts in Houston where I practice for a while before I went on the bench.

One thing that’s unique about you is you mentioned coming on the bench after Baker Botts. You started off on the trial bench as I recall. Sometime later, you went up on the appellate bench. You were a judge on the 14th Court and then eventually, you went on to the Texas Supreme Court. I’d love to hear some stories about your take on the differences between those courts and how the differences in advocacy and all of that.

The only other person who I know of for sure who served at all three of those posts and as a USC District judge like I am now is another U of H law grad, Mike Schneider. He was on the trial bench in Harris County, then on the Court of Appeals and Houston’s Supreme Court. He was a federal district judge in Tyler. He’s still around. He’s retired from the bench. It’s funny that you ask whether it was the 1st or the 14th, I’d have long said that there were only eighteen people on the planet, which judges are on the 1st in which were on the 14th so those are eighteen people. It’s been a great career. I had six years at the trial court, six years at the Court of Appeals and six years on the Supreme Court. All of them are very different. All of them were Perry appointments to begin with. I had to run for election many times to keep those various seats.

I get asked a lot which one I liked the best. I don’t know that there is one that I liked the best. There were pros and cons to parts of each one that I enjoyed. As I would move from one to the other, there were parts I missed about the one that I left behind. That’s one of the nice things about this gig is, in many ways, it’s a lot of the best parts of those jobs all in one. I run my own court, which I did when I was a state court trial judge. A lot of more exposure to the bar and to the public than appellate judges generally get. State and federal district judges are expected to write. State district judges in Texas are not, they write opinions. That’s one of the things I liked about the appellate jobs was the writing. I still get to write. I have law clerks who helped me do it. I get in a relationship with my law clerks who’s always been something that’s very special to me too. I still get to do that. It’s a nice combination of the best parts of all three of those jobs.

Your proximity to the beach has significantly improved from being in Austin or the 1910 courthouse?

We live within easy walking distance of the beach. My wife and I walk on the seawall every night. In the other direction is the courthouse, which is less than a mile from our house. It’s not a bad place live.

You mentioned getting to write. Instantly, I did think about the advantages that federal district judges have over our state district courts, which is having the law clerks there. Are you all hiring what we would consider to be a law clerk or a briefing attorney in your chambers or is it all full-time permanent staff or how is your court handling that?

The way I’m doing it, I have three single-year term law clerks. Every year I’m bringing in three new law clerks. The other judges are doing it in a different way. A few do two-year terms, not very many of them do two-year terms. We also have an option of either a judicial assistant secretary and two clerks or three clerks and no judicial assistant. I went to three clerk routes. I had a case manager, a court reporter and three law clerks as my staff. Some of the judges have hired permanent law clerks, but I have not done that at this point. I don’t anticipate it. I like having the fresh blood every year.

There’s also your own experience having done a clerkship coming out of law school, which I’m biased toward that myself. I hear the stories about permanent law clerks or staff attorneys in the state appellate courts here. When it becomes clear to me that’s an either/or proposition, I get sad because I’m thinking about all the young lawyers coming straight out of school who won’t get the benefit of that experience, which was so valuable to me as I began my career. You’d agree with that. I certainly respect you creating those three jobs for those newbie lawyers.

I do agree with you, Todd, about that. I was one of the last justices on the 14th to still hire a term briefing attorney, a law clerk. I understand why people who switched to permanent clerks have done it. The work never stops at the courts of appeals. They’re opinion factories. The judges who have single-year term clerks can easily fall behind the ones who have permanent staff attorneys when the fall rolls around and you’re ramping up a new law clerk. I understand why they did that, but like you it’s a real loss. There were a lot more clerkships around when the courts of appeals were hiring law clerks each year. I don’t know that there are very many at all anymore.

When I was in law school, also a U of H Cougar, I clerked for Judge Wooldridge right down the hall from your chambers. It was such a great experience to get to sit in and see day in and day out, what the court operates and how they make decisions. I loved it. It’s such a valuable experience when you’re in law school or coming out of law school.

One reason I like to get new clerks each year is they come in so enthusiastic about that. It’s all new to them. They’re not jaded by years of practice or anything like that. It’s all new, fun and exciting to them. The older I get, the more I appreciate having young people around. It’s a lot of fun.

I recall when Judge Lee Yeakel took the federal district bench here in Austin. He had a short lag in between, but he had been on the Third Court of Appeals here in Austin. He was doing very similar work to what you were doing and then went into the federal district bench. I’m not quite the same path. I remember very distinctly Judge Yeakel talking about how the skillset involved in advocacy in federal district courts is very similar to that of appellate lawyers and our state court practices particularly the writing skill and the oral advocacy skill. He tried to recruit some of us, not directly, but he said, “State court appellate lawyers ought to come over here to the federal district court more because we could use the advocacy that you bring in the matters that are pending before our courts.” Do you agree with what Judge Yeakel said at that time and what would you add to it?

I do agree with that 100%. It’s the fact that we are expected to write reasoned opinions for so many of the decisions that we make. As a state court trial judge, I was not expected to write those opinions. Whenever a judge has to write an opinion to justify the decisions that he or she makes, it’s always great to have good briefs coming up from the lawyers who were in the case to help you. I also have the good appellate lawyers in there to begin with. They helped me learn the law. They help my law clerks learn the law and help my law clerks learn how briefing is supposed to be done. It’s the nightmare of every trial judge that the judge will issue an opinion, issue a decision based on some bad lawyering in the trial court level. The client parties go and hire a good appellate counsel and get the judge reversed. The judge ends up looking like an idiot. At least part of the reason will be because the judge didn’t get the briefing that maybe he should have gotten at the trial court level.

TALP 13 | Appellate Judge
Appellate Judge: Judges who have single-year term clerks can easily fall behind those who have permanent staff attorneys when the fall rolls around and they’re ramping up.

Do you find that it’s fun to put your fact-finding hat back on after so many years of not being able to do much with the facts and only operating in the law and the record?

It is fun to get to do that. In the time I’ve been on the bench, unfortunately, I’ve only had two trials. I’ve had one jury trial, which was a criminal case and one bench trial, which was a civil case. I was doing all the fact finding in that case. I will say that in a way, I have discovered the juries had it a little easier. They have to fill out a verdict form. I’ve got to write conclusions law when I decide a bench trial. Even in the more day-to-day matters that come up, I’ve got to make a lot of fact findings. It’s nice to get down in the weeds a little bit more than I did in those twelve years when I was doing appellate work.

What do you miss about being an appellate judge as opposed to being a trial judge now?

From the Supreme Court specifically, I miss my colleagues. Todd, you know what a great family it is over at the Texas Supreme Court. A lot of the folks who are there when you and I were law clerks a long time ago are still there. I miss the court family a lot. At the Texas Supreme Court, you’re dealing with cutting edge stuff. It’s important to the jurisprudence of the state. That’s how we get jurisdiction over it. I miss those big cases that we would work on at the Texas Supreme Court. Coming from the Court of Appeals where we had to issue a decision and an opinion in every case that came before us at the Supreme Court, we’ve got to deny 90% of the stuff that came up. I’m getting some cases here at the trial court again where I would love to say, “Petition for review denied.”

You’re back in that same boat where you’re compelled to decide the case in some fashion. You’ve got to dispose of it other than saying no. One major advantage to having now accomplished an Article 3 appointment, you don’t have to campaign anymore. There will never be another judicial campaign unless something significant happens I assume.

There better not be anymore. I don’t think Mrs. Brown will stand for any more campaigns. That part of my life is over, which is fine with me. Coming from the Texas Supreme Court to this job, there were some people who asked me why do you want to make that move? There was one person who understood it completely from the very beginning. Part of the steps that you take in the appointment and confirmation process is going up to Washington and meeting with two US senators from Texas. I met with Senator Cruz first and then I met with Senator Cornyn on the same day. When I was escorted into Cornyn’s office, he said, “Judge, explain this to me. You don’t want to run for election anymore. You don’t want to call people and raise money anymore. I can’t imagine that’s true.” He understood it perfectly having lived it himself and still living it.

You reminded me that Senator Cornyn was Justice Cornyn at the time that you and I were clerking. That was quite a bunch that we had there at 201 West 14th Street back in the mid-‘90s. A future governor, a future US Senator and a future chief judge of the Fifth Circuit. There’s a future chief justice of the Texas Supreme Court. This was an overall bunch of underachievers I would say. Present company included compared to my peers of mine that we’ve had on the show so far. We had Scott Field on as one of our early guests. I joke around that I’m the slacker in the group because nobody calls me, “Your Honor.”

Not at all, Todd. Somebody in the group had to be the preeminent appellate lawyer and you took that role.

That’s nice of you to say. There might be some people that would disagree, including me. I have enjoyed following your career, Scott’s career and the careers of those that I knew. The court family is a very special thing. Generally, there’s a reunion of the justices, staff attorneys and former briefing attorneys, law clerks every year. It’s always so nice to have everybody come together and relive old times. It’s a very tight knit group. We’ve been able to maintain lots of relationships that would have been a lot harder to maintain outside of that environment over a long stretch of time. For our audience who wants to apply to become a law clerk at the Supreme Court, I would certainly encourage you to do that, to be able to get into that fraternity.

There’s no slouch in the federal district or Fifth Circuit judiciary either when it comes to law clerks. Those are highly sought-after positions. The people that I know that have done federal clerkships, they develop close relationships with their judges. It’s very similar. It’s a super tight knit community. They say enough good things about it because it’s done a lot for my career. I’ll never forget Justice Hightower retiring and then Judge Abbot coming in. He was super energetic, eager, very humble and wanting to learn. It was a very interesting time at the court.

It was fun to be there at the ground floor when he came on board. You remember, Todd, that building was far from ADA compliant, far from ready for a judge who uses a wheelchair to show up. I remember that the facilities people frantically got the building ready for him to come in and did a good job of it. He was such a cheerful guy to be around all the time. I feel blessed to have gotten to work for him and Hightower both. They were very different judges to work for. I wouldn’t get back a day with either one.

I do remember that on the building issue and I remember them blasting out the pink granite to build a ramp. It seemed like a historic moment I remember at the time. You mentioned the process of Senate confirmation and your talk with Judge Cornyn. Tell us a little bit about that experience because from the outside looking in looks like an ordeal to have to go through. You’re vetted in every possible way before you ever get there. That’s the final audition, right?

I had been through three appointments at the state level and more than more than that, getting considered for a couple, but I didn’t yet. I had been through the vetting process before. This is not to say that the governor’s office does not properly vet its judicial appointments because it certainly does, but the federal process is even more of an exam. It was a little bit of an ordeal. It was thousands and thousands of pages that I had to come up with and turn over to the Senate. There were interviews with DOJ, White House counsel, two senators. The first thing was with the Senators Committee, which is running a government in itself. It’s about 30 of the finest attorneys in Texas who are interviewing you all at one time.

There were some groups that didn’t like the fact that I’d been nominated and said some terrible things about me that my wife had to read. It wasn’t very pleasant to go through. We came out okay on the other end. It was a three-hour interview with my ADA person who was going to decide whether I was well qualified, qualified or not qualified. That was a long process. I was well-qualified thankfully. My hearing was ten minutes long. I got a few softball questions from Ted Cruz. That was it. I ended with a whimper, but I’m not complaining.

When your moot is worse than the actual oral argument.

That’s what you want it to be. You want the moot to be harder than the argument. That’s the way it turned out.

One of the things I’ve always heard is that the appellate bench is a little bit isolated. You find yourself cut off from the public. You would think that in your new role you probably wouldn’t be as much, but your timing seems to be pretty impeccable because now you’re in the middle of all this Coronavirus stuff. How’s your court handling Coronavirus and the restrictions? We know what the state courts are doing, but either Todd or I know as much about how federal courts are handling it.

It’s being handled mostly on a district by district basis. We’ve had some phone conferences and even our most recent one was a Zoom conference with all the judges from the Southern District. We make a lot of decisions on a district wide level. In some of them we make on a more division level and Galveston division ends up going along a lot with what the division does. In our two divisions, we’re not calling any juries in until July 6th at the earliest. That’s been a date that we pushed back once or once or twice.

TALP 13 | Appellate Judge
Appellate Judge: It’s the nightmare of every judge to issue a decision based on some bad lawyering at the trial court level.

The two courthouses are close to the public right now. All of our hearings at this point are virtual, are either telephonic or on Zoom. Our courthouse here in Galveston won’t be open until June 1st at the earliest. Once the courthouses are open, how quickly judges end up having people in their courtrooms will be made on a judge by judge basis. We don’t get any orders down from the Supreme Court or from the Administrative Office of the US Courts in Washington. We are left to handle it on our own, which is fine with us.

Have you been doing remote hearings for your court while this has been going on?

Yes. I have started to use Zoom. I’ve used Zoom for a few hearings. I’ve been doing telephonic hearings. We continued to do that. It’s the criminal cases where it gets a little dicier. We have to jump through some hoops to be able to do it, but we can do criminal hearings by video also. Civil hearings are no problem at all. Aside from it being able to put cases to trial, we’ve been able to keep up with our civil docket. I’ve probably fallen a little bit behind on my criminal docket and I feel like we can catch up pretty fast once we’re able to open.

You were a civil district trial judge and then you were on a court of appeals with general jurisdiction. You went back to a civil court and then now you’re back in a court that has general jurisdiction again. Did you have to pick up criminal law and relearn it a little bit?

I have. Even when I was doing criminal law in the Court of Appeals, doing appellate criminal law and running a criminal trial court are two very different things. This is something that even if I had criminal jurisdiction as a state court trial judge, it would still be new to me in Texas. That’s sentencing. It’s the biggest and toughest job that we have. Even federal district judges who had criminal jurisdiction in Texas State Trial Courts would agree with that. In Texas, juries do most of the sentencing. It’s new to about any federal judge in Texas. It’s a lot to learn. I haven’t touched much federal law in the past several years. There’s been some federal law to pickup along the way too. That’s where those three law clerks come in.

You have maritime cases than you probably had on the Texas Supreme Court.

I’ve got a fair number of maritime cases here in Galveston as you would expect. Maritime stuff pops up more often than you might think at the Texas Supreme Court. Even when I was on the other two courts, but not near as much as here. The procedure is so different. Even when a maritime issue comes up in state court, you’re still doing state court procedure than maritime procedure. It’s much more like a civil system than a common law system. It’s a lot to learn. It’s a whole new vocabulary. If there’s anything that I feel like I need a lot of education on maritime law. I took the maritime law and wrote a couple of maritime notes when I was in law school. I wasn’t coming in completely blind, but there’s a lot to learn.

The criminal cases are pretty different too than what you would have you seen on the Fourteenth Court. It’s federal jurisdiction so you’re dealing with probably a lot of drug offenses, wiretapping, moving things across state lines, things that might be criminal acts in the State of Texas. Whatever they have to do to be federalized that’s happening. I’d imagine that’s a pretty different enterprise too.

I’ve had to sign some wire taps. We have a lot of drug trafficking cases. We don’t have any drug possession cases. We do have a lot of drug trafficking cases. Child pornography is a huge part of federal criminal work. In fact, that one jury trial that I’ve had was child pornography trials. That’s some pretty unpleasant stuff. I had a couple of bank robbers who I sentenced have come through. A lot of illegal reentry by people who committed felonies, were deported and then came back into the United States. That’s another common case that we see on a criminal docket.

I know there’s some limit to discretion that those impose. I don’t know a ton about it because I don’t do any criminal work myself. Have you been able to adjust to those and use those as a guide? That’s a big part of the sentencing process in federal court.

They’re very complicated. There’s a book that’s two-and-a-half inches thick that has the guidelines in it. I would say that they’ve been more helpful than onerous. As someone who has started the sentence, it’s been nice to have something to give me some rails to stay between. The probation people are well versed in the guidelines and do a great job of helping us out on that. My law clerk had learned a lot about them as have I. We can lean pretty heavily that the US Attorney’s Office in our district is awesome and so is the federal public defender. You get some good criminal advocacy and all of that comes together to make a very hard job as easy as it is.

One thing we wanted to be sure and ask you about was how the Camry of Justice was doing?

The Camry of Justice is doing fine. It is perfectly happy to be retired from tweeting. It doesn’t have to tweet anymore. That part of campaigning was fine. Not all of it was terrible. A lot of it was fine. My alter ego, the Camry of Justice, was the fun part of my campaign stick. It’s not something that I missed too much.

It seems to be the rule basically. I don’t know if it’s a written rule or not, but once you take the oath as a federal judge of any kind that pretty much does away with Twitter as far as being able to post anything. That’s understandable. On behalf of the Twitter verse, we missed the Camry of Justice, like we miss Justice Willett and Judge Willett, it’s the same thing. We understand. We’re glad that you can come and be with us in this forum.

I am too. I wish I could tell you that I missed being on Twitter, but it’s liberating to not have to deal with that platform anymore.

We’re good to get to hear from you and hear your thoughts on how this process has played out for you and to know that things are okay down there in Galveston. You’ve adjusted nicely it seems to be on the federal district bench.

I have certainly enjoyed it. I appreciate it, Todd that you and Jody calling and inviting me to be on the podcast. The podcast is a great idea. I hope it’s going well for you. I hope we all get to see each other in person here real soon.

We always like to leave our guests with maybe a tip or a war story if you have one that you’d like to share here in closing.

TALP 13 | Appellate Judge
Appellate Judge: With the coronavirus, all of the hearings at this point are virtual; they’re either telephonic or on Zoom.

I’ll make it a tip. It’s a tip that I give to young lawyers mostly, but it goes for anybody. This goes from trial court, court of appeals, wherever. When young lawyers asked me for advice on how they can be better lawyers, I always say to strive to be the most reasonable person. You will endear yourself to whatever judge you’re appearing in front of. You’ll do your client a lot of favors too. Always keep that in mind, strive to be the most reasonable person.

I wish more people would hear and follow that advice not even as the judge. Thank you so much for coming on. Thanks to our audience for tuning into this episode. If you’re enjoying the podcast, please recommend it to colleagues you think might benefit from it.

Taking the time to rate and review the show on Apple Podcasts. That would be great too. We appreciate everyone who’s rated us so far.

If you have questions, thoughts or comments, please shoot us an email, message us on Twitter or reach out through the podcast Facebook page. We’d love to hear from you.

Until next time, we wish you all the best. We hope you’re staying safe and healthy.

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About Judge Jeff Brown

Judge Jeff Brown has served as the United States District Judge on Galveston Island since 2019. He previously served six years each as a justice on the Supreme Court of Texas, a justice on Texas’ Fourteenth Court of Appeals, and judge of the 55th District Court.

A sixth-generation Texan, Judge Brown was born and raised in Dallas County. He received a B.A. in English from the University of Texas and his law degree, magna cum laude, from the University of Houston. He then clerked on the Texas Supreme Court, for Justices Jack Hightower and Greg Abbott, before practicing at Baker Botts in Houston. He is just the fourth Texas Supreme Court law clerk to later return to the court as a justice.

Judge Brown was named Outstanding Young Lawyer of Texas in 2006 and Appellate Judge of the Year by the Texas Association of Civil Trial & Appellate Specialists in 2010. He also received two judge-of-the-year awards as a state trial judge. He is co-editor of the Texas Rules of Evidence Handbook and is board-certified in civil trial law.

While serving on the court of appeals, Judge Brown also volunteered weekly as a judge for Harris County’s STAR Drug Court. STAR (“Success Through Addiction Recovery”) is a therapeutic program for non-violent felony offenders who suffer from drug addiction.

While on the Supreme Court of Texas, Judge Brown co-founded and co-chaired Texas’ Judicial Commission on Mental Health. As the court’s liaison to the Texas Board of Law Examiners, he oversaw Texas’ adoption of the Uniform Bar Exam.

A member of the American Law Institute, Judge Brown also serves on the boards of the Houston Law Review, the Texas Supreme Court Historical Society, and the UH Law Foundation. Judge Brown has taught trial skills at the University of Houston Law Center, constitutional law at the National Judicial College, and comparative law as the Distinguished Visiting Jurist at St. Mary’s Institute on World Legal Problems in Innsbruck, Austria. He is also on the editorial board of The Advocate, the journal of the State Bar of Texas’ Litigation Section.

Judge Brown, who became an Eagle Scout at age 16, serves on the board of directors for the Boy Scouts of America’s Bay Area Council, which is headquartered in Galveston. In 2016, he received the Outstanding Eagle Scout Award from the National Eagle Scout Association.

Judge Brown and his wife, Susannah, live in a historic home on Galveston Island. They are active “Old 300” members of the Bryan Museum and attend Moody Methodist Church. They have three grown children—and one elderly Great Pyrenees.

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