Transition from Benc ...

Transition from Bench to Practice and Judicial Mental Health | Justice Scott Field

April 7, 2020 | by D. Todd Smith

Whatever field you’re practicing in, the importance of keeping tabs on your mental health can’t be overstated. Judges often encounter litigants on their worst days, and they often make heavy decisions affecting the parties without realizing the effect these decisions have on themselves in the long run. Justice Scott Field previously served on the Third Court of Appeals and is now practicing law with Butler Snow LLP. He converses with Todd Smith and Jody Sanders about his transition back into private practice and issues involving judicial mental health. Justice Field opens up about some difficult moments in his judicial career and how he bounced back and moved forward. Don’t miss out on this enlightening discussion.

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Transition from Bench to Practice and Judicial Mental Health | Justice Scott Field

Our guest is former Third Court of Appeals Justice, Scott Field. Justice Field, welcome.

Thanks for having me.

We’re glad to have you. You’re one of our early guests and we thought we’d ask you on to talk about a couple of things that you have a unique perspective on. Before we do that, will you give us a little background and introduce yourself to our readers?

I served on the Third Court of Appeals from 2013 to 2018. I’m currently a partner at Butler Snow here in Austin. You’ve known me for a long time, Todd, because we were co-law clerks for Raul Gonzalez at the Texas Supreme Court straight out of law school. After spending a number of years at Baker Botts, I went out with a few partners and formed a small boutique firm and then eventually practiced on my own before going on to the court.

You mentioned that you are at Butler Snow now. I know you have been on a CLE panel presentation recently about transitioning from being a justice on the court of appeals to back to private practice. We’d like to cover that with you first. Can you give us an overview of the perspective that you bring on that?

Do you mean to the practice itself?

Just covering generally that topic. Unfortunately, we’ve seen in the last couple of election cycles some folks involuntarily returned to private practice. I don’t think you’d mind me saying that that was your fate. That’s what brought you back. You served six years on the Third Court and did so with distinction. Knowing each other the way we do, I know everything about the story, but Jody and our readers don’t. Give us some background on that.

I’ve talked to people about this, with Craig Enoch and Dale Wainwright, who left the bench voluntarily, and how that differs from those of us who didn’t leave by choice. Craig was incredibly excited to go back to private practice. When it’s not your choice, it’s a little less exciting, at least initially. It was interesting after the election happened, a lot of us who lost were on the phone with each other constantly. We’ve become friends. You become friends through the appellate community, right? And then when you’re on the bench, you see each other at judicial conferences. I was calling people like Brett Busby, Jane Bland, Bill Boyce, and a bunch of people. We were all talking about, who have you interviewed with and what are you thinking about doing? We’d find firms that interviewed several of us and things like that.

Everyone had different perspectives. I had a hard time figuring out what I wanted to do. I wasn’t sure if I wanted to go back to a large firm, if I wanted to start my own practice again, if I wanted to do mediations and arbitrations. The scary part when you’re in that situation is, at least from my own perspective, I had my own firm. I had a pretty solid book of business. Everything was going well and then I went on the bench. You give away all your clients, shut down your firm, and for six years, you’re on the bench, and I loved it. I would have stayed there for a long time had the electorate allowed it.

The hard thing is coming back and realizing that you’re basically starting over. Yes, you’ve been a judge, but from a business perspective, you’re starting over, and that’s the most challenging part. From a practice perspective, it’s been great. I love advocating. I liked the objective deciding cases better, but you have to convince people that you add value. And number two, we all know people don’t know who the judges are and that goes for the whole business community too. They don’t know who the judges are. People know of us, but they had no idea.

From the business community perspective, what I find is, you talk to in-house counsel at different companies. They don’t even know what happened in the election. They don’t realize that statewide we lost 400 judges overnight, 31 or 32 on the appellate courts. They had no idea. They don’t know who I am and they don’t know what I can bring to the table for the most part. It is interesting. In the legal world, you assume people know the Third Court of Appeals. They might’ve run into me at some point. But in the business world, they have no idea who you are.

Scott, for those of us that don’t know you very well, what were you doing before you went on the bench? What was your practice like?

It was a split practice between litigation and appellate. I admire Todd and others who have been able to do 100% appellate, but I did both. I had done that practice from the get-go at Baker Botts. Their trial and appellate departments overlap. I don’t know if they still do, but back then, they did. I did both and I enjoyed both. I’m one of those rare appellate people who love going in front of a jury and interacting with people. This whole isolation thing is driving me crazy. I had a practice that was probably 60/40 weighted toward trial and then went on the appellate bench. People think of me now as 100% appellate. Even when I’m supporting a trial or something like that, there’s a piece of me inside that’s like, “Here, let me take a witness.” It’s unusual for an appellate lawyer, but I’ve done a good job of staying in my lane and just doing the appellate side.

Now that you’ve been on the bench, you’ve been in private practice and you’re back with a different firm, what are some things that you learned while you were on the bench that you wish you’d known before you went on the bench?

TALP 6 | Mental Health
Mental Health: People get so worked up over the smallest things in their cases. You realize after serving on the bench that those things hardly ever matter.

The biggest thing to me is I feel like lawyers, and I’m right there with everyone, we tend to over-lawyer things. People get so worked up over the smallest things in their cases, and you realize after serving on the bench that those things hardly ever matter. Let me give you an example. I can do this now that the case is pretty much over. A perfect example of this is I did appellate support of a four-week trial in Philadelphia right when I got back into practice. The rules up there, you have to have a full briefing JNOV within seven days of the verdict. We have all these lawyers, huge case, from all over the country drafting different pieces of this JNOV, 120-page draft. At 1:30 AM on the morning it’s due, I’m on the phone, and it’s at least four or five lawyers, Philadelphia, Chicago, San Francisco, me, some others, and these lawyers are arguing about a paragraph that’s on page 84 of the JNOV.

I finally had enough and I said, “Can I ask all of you a question? Is there anything in this paragraph that we’ve been arguing about for 10 or 15 minutes?—I say “we” loosely because I wasn’t arguing about it—“Is there anything in this entire motion that the court is going to grant? Is there any chance at all?” The answer was no. This judge is not going to grant anything. I said, “Is there any doubt in anyone’s mind on the call that we’ve preserved error as is. This JNOV preserves error as it is right now?” “No, we’ve preserved error.” “Why in the world are we spending client money up at 1:30 AM arguing about something on page 84?” I can tell you the lawyers on the phone didn’t really appreciate the comment.

It was interesting because, as lawyers, we often let the perfect become the enemy of the good. That’s what I’ve learned as a judge is, the good is what you want. You’ve got to preserve error. You’ve got to make the argument. The fact that your sentence is perfect is not going to win the day. And that’s a change in me since I’ve been on the bench. I’m much more streamlined in the way I look at cases, the way I look at arguments. Sometimes that’s a great thing. Sometimes clients don’t even want to hear it. Sometimes, the clients want to sit and argue about page 84 as well. From my perspective, so much of what we do, it matters, but not to the extent we care about it.

I don’t want to deride our trial lawyer brothers and sisters, but it seems to me that what you just described is a skillset that we develop as appellate lawyers and appellate judges—the ability to cut through the fluff and see what’s important. I tell folks all the time, “You probably have maybe three decent issues in your case. If you’re arguing that fourth, fifth, sixth issue, if you think that’s the one that’s going to get you relief, you’re sadly mistaken.” I’d love to hear your perspective on that. That’s in my hip pocket for almost every client. You may think that the judge did all these things wrong, but at the end of the day, there’s only going to be a handful of things that could get you the relief you want if we persuade the court of appeals to go with us on those. People still get hung up on evidentiary issues and I say, admitting or excluding evidence is almost never going to lead anywhere. You’re going to spin your wheels.

To me, it’s important in this day and age when we’ve got to be as efficient as we possibly can be in handling an appeal. It should, as you’re suggesting, trickle down to the trial level, and that is where folks like the three of us can help. I’m glad to say that I’ve got loyal clients who know this about me, that you’re going to be able to cut through the fluff, Todd. You’re going to be able to see the things that are important. It sounds like that was the case in that Philadelphia trial where the lawyers lost seeing the forest for the trees and are arguing about the minutiae that in the end just doesn’t matter.

It’s so hard to convince some lawyers of that, but what I’ve found, the good trial attorneys understand that having an appellate attorney involved in the trial level helps exactly with what you’re saying. Cutting through the issues that don’t really matter and streamlining things. It’s like the old adage, the old advice, a lot of trial lawyers used to give of doing the jury charge first. No one really does that unfortunately because clients usually won’t pay for it, but having an appellate lawyer involved at the trial level is exactly that in some ways. It’s like having the jury charge done already, and of course, by the time we get in, sometimes it is.

It’s bringing that view of, why are you worried about this issue? That doesn’t answer the question the jury is going to be asked. It’s that thinking and then honing in on the legal issues that helps. As you know, Todd, even when I was trying cases, I would always have someone else there worrying about the jury charge. My view was, if you’re trying the case, you ought to be focused on the witnesses and the jury and judge and let someone else worry about the legal issues. We’ve all played the role of appellate attorney as well. It’s a great 1-2 punch but a lot of lawyers out there don’t realize that, a lot of clients don’t realize it or aren’t willing to pay for it.

You mentioned dealing with the jury charge. What I tell trial lawyers is you’re about to make your closing argument. You need to be focused 100% on your closing argument. This is the point in the trial where you get to wrap it all up and tie it up with a bow and tell the jury exactly what you want them to do. Do you really want to shift from arguing the minute point of an instruction in a jury charge to ten minutes later making your jury argument? I know it’s one of the reasons why I didn’t excel at trial work. It was that I couldn’t make that mental shift that quickly. Some people can, but it’s tough.

It’s extremely hard to do that. It’s a different skillset, and even if you can do it, the question is should you be doing it?

Speaking of arguments, Scott, did being on the bench change your perspective about the value or maybe the strategy that you would use going into oral arguments?

My approach on oral argument is, subconsciously, I don’t think I intended it, but according to my partner, Amanda Taylor, I’m much different at oral argument now than before I was on the bench, and in a good way. I’ve only had two since I’ve been on the bench, but I felt better about those than I’ve ever felt about oral arguments before. Some of it’s the approach. It’s much more conversational now. Admittedly, I have some leeway with that having been on the bench because the judges I’m arguing to have been on the bench. That is an unfair advantage in some ways, but I’ve found the twenty minutes or an hour or however long they end up giving you is more, “Let me help you write the opinion in my client’s favor. Here’s how it’s going to look.” Taking them through an outline and then, “Let me help you fill in the details of what that opinion is going to look like.”

It’s very different now. I used to go in more with the, “I want to make this point and I want to make that point.” I still have that, believe me, it’s all ready to go. I’m far more interested now in figuring out, because I know there’s someone up there who’s drawn the opinion, and the only reason they’ve set it is they’re having trouble writing the opinion. Truly, the only reason a judges set oral argument at the court of appeals level is if they’re having trouble writing the opinion or there are some thorny issue. I’m trying to figure out, where in the outline that I have for how they would write an opinion in my client’s favor, where is that hurdle and how can I help them get past it?

For years, Randy Roach has taught this concept of how do you help the judges do their job. That echoes what Randy has said. You do have a completely different perspective than most advocates going in who you want to make their points and be right and get through the questions and move back to their outline.

I had one, and I didn’t even think about it until Amanda mentioned afterwards. It was aTCPA case ,and they raised this issue, “How do we deal with X, Y and Z?” I don’t want to give it away because it’s still pending. My response was, “I had that come up in a couple of cases, and here’s how I dealt with it.” I didn’t do that at a, “Hey, look at me.” It was natural. I was having a conversation with someone who I knew exactly what they were struggling with. I knew I had struggled with it in a TCPA case before, and here’s how I dealt with it. That’s a license I had because of my experience. Also, it’s the exact strategy you’re talking about. Any appellate lawyer can do that by saying, “I’ve seen that issue come up, and here’s how I would deal with it, and here’s how other courts have dealt with it, and here’s how I would deal with that.” Anyone can do it. It’s a little bit different perspective.

TALP 6 | Mental Health
Mental Health: Judges have stuff going on in their own lives too, and they often make tough decisions without realizing the effect these decisions have on them.

That’s a great perspective and thank you for sharing that. I’d like to shift gears now to the second topic that we were interested in exploring with you. You wrote a couple of articles addressing mental health issues in the judiciary. In my term as president of the Austin Bar, I’ve made that a priority, not judiciary specifically, but lawyer well-being across the profession in our local bar. You were gracious enough to write this article called, Don’t Forget – Judges Are People, Too, which you followed up with very shortly after with a Texas Lawyer article titled, The Mental Challenges Judges Face. We’re going to post links to those articles. Tell us a little about what led you to write those articles?

I’m on the Well-Being Committee that you started with the Austin Bar, and as I recall it, we were in a brainstorming session of articles that could be in this well-being series. It was Erica Grigg at TLAP. Everybody probably knows Erica. Her personality is big enough. She said something about we’ve always wanted to come up with something to address judges and get them talking about these issues. I volunteered and I wasn’t quite sure what I would write, but I volunteered to write an article. As I started writing, I started thinking about it. I knew exactly what I wanted to write about, which was a dark time in my life and how judging affected it. The fear and the self-doubt came in of, “Do I really want to share this with anyone? Is this just me writing about me and is it going to help anyone? If that’s not, then why am I doing this?”

I wrote that article and I bet I wrote that thing in 30, 45 minutes because it was so personal. It was easy to write. I sat there and waited to hit the send button for I don’t know how long before I sent it to the Austin Bar because it made me nervous. It went and was published, and I didn’t hear anything for a couple Of days. All of a sudden, people start sharing it on social media, and the next thing I know, it took off and some judges were chiming in. I had sat as a judge, so a lot of these folks were personal friends and I started getting texts and emails from judges I knew. The next thing I know, I started getting handwritten notes from judges all over the country that I didn’t know. I realized that, unwittingly on my part, I hit a nerve that there are a lot more people struggling with the very issues I identified than I realized. The Texas Lawyer contacted me after that to see if I’d write a follow-up. The first one is in the Austin Bar.

It’s easy to forget that judges often encounter people on the worst days of their life. You’re dealing with family, with freedom, with finances. By the time someone’s in a courtroom, particularly in an appellate courtroom, something has gone wrong for somebody to get to that point and you think judges are these automatons. They get on there and make these decisions and go home at night, but you’re going to take that with you.

That’s the key. When I was on the bench, I always told my trial judge friends that I thought they had it harder because they have to look at the people. They have to see them, to see the emotion. Especially if you rule from the bench, how difficult that is. In appellate, what’s so hard about it too is in my situation, I detailed in that article a lot what I was going through with my parents’ care at that point and how incredibly depressing that was. All of a sudden, you get into a record. The examples I used, what I did, I had three in a row. I had a gang rape of a fifteen-year-old. That was a long trial. There’s a long record. And then I had a very, very close—which is unusual, by the way—termination of parental rights appeal, and then another criminal one for intentional starvation of an infant.

I didn’t realize that that, in combination with what was going on in my outside life, was bringing me down. I made some adjustments once I realized it. That helped, and that’s what I suggested in the article, some tips to help judges and to help lawyers help judges. You’re right, Jody. These judges, they have stuff going on in their life too, and they’re making decisions. A lot of times, they don’t realize the effect it’s having on them. I got a handwritten note from a district judge across the country who said, “I’ve been on the bench for five years. I read your article and a light bulb came on and it made me realize why I’ve been treating my wife and daughter wrongly. I made some changes.” I couldn’t believe it and the honesty was amazing to me and I thought, “People need to start talking about these issues more. It’s helping people.”

What are the tips? Do you have a few that you could offer?

They’re mostly simple and common sense. It’s difficult because every judge has a different docket. Mine on the Austin Court of Appeals, we were close to 70% civil, 30% criminal. What I realized I needed to do is if I had a nasty criminal case or a termination case or some other depressing content, I needed to mix in your regular civil case on the next one. This is appellate, so you can choose what you work on next, like yours or Todd’s cases, after the particularly depressing criminal case or even a tax case or an administrative case. Don’t sit and read records for three weeks on horribly depressing things. Even for the judge, you can’t get away from it.

Let’s say it’s a district judge on the criminal side. It’s very hard to get away from it. Make sure you’re staying in contact with the outside world. The toughest thing for judges is isolation. It’s very weird in Texas. You go through an election, you’re on the road constantly. You’re constantly shaking hands and meeting new people. Whether we like it or not, you become a politician for a short time. When you win, then you have your investiture, that’s a big to-do, and party. You go to your chambers and everything goes quiet. The phone doesn’t ring, which for practitioners, is awesome. After about a year, you realize the phone doesn’t ring.

You might get ten emails a day, which sounds awesome to practitioners. At some level, if they’re going through something, that isolation is not healthy. As a judge, you’ve got to be willing to reach out to people and to go to lunch, see people and make sure you get somewhere where they’ll treat you like a normal human. Whether that’s your kid’s sporting activities, church, going to lunch, whatever the case may be. Find people. For me, it was people like Todd that I’ve known for 25 years. You’ll find people who will not treat you any differently, and be a normal person. It will help immensely.

With mental health across the board and the profession and among the judiciary, you hit on one of the major points, which is we need to get this stuff out in the open. People are suffering in silence and they’ve done it for too long and that’s one of the aims of programming directed to lawyer well-being and now I suppose judicial well-being. I will say that I was impressed and proud of you for putting that story out there. You’ve described the result. You were able to help some people who maybe didn’t even know that they needed help. When that light bulb went off for that judge who sent you the note, that had to make it worthwhile right there.

It absolutely did. Like I said, a lot of notes. One described going through a termination trial and how it kicked her in the guts and she couldn’t sleep for days. Realizing that people are waking up and going, “This is affecting me when I leave the office.” Like you say, Todd, so much of it is talking about it. The moment I realized there was a problem, I was able to work it out. I know there are other people who it’s more of a mental issue and you need to get professional help and things of that nature. I encourage those judges or lawyers to do that. A lot of times for a lot of people, it’s realizing there’s an issue and figuring out a way to work around it and solve it because I loved my job. I would have been a judge for a long time had the electorate had me. It wasn’t that. The job was wonderful. That was a weird situation with both parents sick and dying. That doesn’t happen very often. It happened to be while I was a judge. You have to figure out a way to manage life sometimes and of course that’s managing what you do for a living as well.

We’re very grateful for you being with us. We do like to ask guests if they have an anecdote or a war story or possibly a tip or a takeaway. You have certainly given plenty of tips already, but do you have any parting thoughts for us along those lines?

It’s probably the best war story I had was about page 83 or 84 of that JNOV. It is interesting to me, and I encourage lawyers to keep doing it, counsel your clients and give them the actual answer. But I am amazed how much clients don’t want to hear the answer sometimes. I’ve had to adjust so far since I’ve been in practice. I’ll give an example. I had a client who wanted me to review a contract that they had done a couple of years back. Tell me how I thought it applied to the situation they were in, and I gave him the answer. That client had drafted that agreement. My answer was completely against how that client intended it, and it was a how dare you response like, “How dare you say that’s what it means? No one could think that’s what it means.”

TALP 6 | Mental Health
Mental Health: You have to figure out a way to manage life sometimes and of course, that includes managing what you do for a living as well.

I was thinking, “Ask someone else then.”  I got someone down the hall To look at it without me telling them what I thought. They felt the same thing. That client truly did not want to hear that. They wanted to hear what they already had in their mind. It’s difficult, but I encourage everyone, you’ve got to stick to your guns. The reason we do appellate law is we become familiar with how courts review these things. We become familiar with how contracts are being interpreted, and there’s value to that. I’ve always told people that I enjoy being counselor at law. It’s part of our job. It’s a lot now in the practice, but continue being a counselor at law, even if the client does want to hear it.

Thank you so much, Scott.

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