Appeals before the United States Court of Appeals for the Fifth Circuit can be challenging for lawyers who most often handle matters before state appellate courts. On today’s podcast, Todd Smith and Jody Sanders are joined by their first Fifth Circuit guest, Judge Gregg Costa. Judge Costa shares his career journey—from teaching fourth grade in rural Mississippi to trying the Allen Stanford case to becoming a federal district and appellate judge—providing an insider’s view of Fifth Circuit life and how the Court processes its cases.
Listen to the podcast here:
A Peek Into Life on the Fifth Circuit Bench | Judge Gregg Costa
We’re very honored. We have our first Fifth Circuit Judge on the show. We have Judge Gregg Costa, who is one of Texas’s own on the Fifth Circuit. Welcome, Judge. Thank you for joining us.
Thank you for having me. It’s especially an honor to be here with my former student. Jody took my fed courts class back at U of H and I have a strong recollection of you being in the class and we’ve kept in touch somewhat over the years. The only thing I don’t remember was the grade I gave you. I’m hoping now that it’s a good one so that I get some softballs.
Let’s say that it was, for today’s purposes. We don’t have to go down there. No, it was one of my favorite classes. I enjoyed it. A lot of it stuck with me. I still haven’t had a Fifth Circuit argument or case that you’ve been on the panel for, but I’m hoping to have one with a meaty jurisdictional question and I can say, “I learned that in law school.”
It could be, “Back when you taught me in law school, you said.”
A lot of the people reading probably know who you are, but I don’t know that they necessarily know your background. Can you tell us a little bit about your background?
I grew up in the Dallas area. It was born in Baltimore, but my family moved to Richardson, Texas when I was 1.5 years old. I wasn’t born here but we got to Texas as soon as we could. I went to Richardson High School right outside Dallas. Still to this day, I’m an ardent Cowboys fan, which wasn’t so great over the last few years, but I still pull for the Cowboys. My wife is from Houston and she won the Houston/Dallas battle like she wins most things. I’ve spent my whole legal career in Texas in Houston.
I know you went away to college, but something that people would find interesting is after college, you didn’t go straight through to law school. You took an interesting detour.
I went pretty far away, all the way up to New Hampshire. I spent four years at Dartmouth for college. From a very young age, I wanted to be a lawyer. I’m not quite sure why. There are no lawyers in my family. I didn’t even know a single lawyer growing up but I always had this desire to be a lawyer. That was always the path. At Dartmouth, there was this new program I heard about called Teach for America. It had just started. I decided I was still going to go to law school, but I’ve been very fortunate. I had some great teachers going to public schools who influenced me and are a big part of the reason I’m where I am now.
Given what education had done for me, I thought this Teach for America program was a chance to give back. I ended up teaching fourth grade in a town of 751 people in the heart of the Mississippi Delta. The town is called Sunflower. It was probably the most transformative thing I’ve done in my life. It was a heck of a lot harder than being a lawyer or a judge, I’ll tell you that. It’s not much of an exaggeration to say that my easiest day as a teacher was still harder than my hardest day as a lawyer. I have incredible respect for teachers. It was a wonderful experience, a challenging one, but also a very rewarding one. In fact, one of my star students is now the mayor of the town where I taught, which is very cool.
It does make me feel old, but I’m proud of her. I did it, like I said, because providing educational opportunity to everyone is one of the key issues of our time. I didn’t think about it this way. It ended up being the best training I had for being a lawyer. People say lawyers argue. I think the best lawyers educate or teach the person they’re trying to convince, whether that’s the judge, whether that’s the jury, whether it’s the opposing side that you’re trying to negotiate a deal with. You’re trying to explain, “My client has this situation. This is what happened to him or her or the company and here’s what needs to be done about it.” I spent most of my legal career prosecuting white-collar crime. The biggest challenge in that world is simplifying often complex financial transactions for jurors. Some of whom live in the world of accounting and finance and most of whom have expertise in other areas. You’re trying to simplify and explain it to them. Even as a judge, the way I write my opinions, I view it as a teacher. I’m trying to start with the simple things and then lead up from there.
It’s interesting how that experience has colored your whole career even through now and what a tremendous experience that would have had to be.
I’ve heard several people say when they talk about writing legal briefs that they try and write it to where maybe a high schooler could read it and generally understand it. I feel like even more so if you can break down complex principles in that way, that’s such a great and useful thing, particularly as a judge who’s having to explain the basis for your rulings in a long written opinion.
As a lawyer with a jury, it’s the same thing. Going back to the point that being a teacher is hard, the juries can’t talk back or at least they wait until the end of the trial to talk back. Your students are a bit of more of a challenge.
As a parent of three kids of various ages, I can sympathize with what it must be like to have a whole class full of fourth graders, trying to keep their attention on a particular task.
That’s so key to this whole idea of education because the law is such an incredibly broad and deep field. If you develop any expertise, you have that whole fallacy of you think everybody knows what you do and it’s so untrue. Taking a step back and putting in the building blocks to get to the logic of the opinion and the conclusion, it seems so fundamental if you think about it when we explain it that way. It’s so easy to pass it over and skip right to the details of some securities law issue that if you don’t set the stage, the average person and lawyer is going to have a hard time understanding.
That’s one of the biggest problems I see with advocacy in the appellate court, especially where the lawyer might be a specialist in insurance law and they’ve lived with the case for three years in the district court. They’re in front of judges who are generalists. I get assigned the case six weeks before. I’ve never heard of this case, let alone lived with it for three years. One of the key things lawyers need to do is to be able to give generalist judges the bigger picture of how this discrete issue fits into the larger body of law in that area. Lawyers who are specialists, they start throwing out the acronyms. I mentioned insurance law. That’s, those are some of the biggest culprits. They’re throwing out all this lingo for policies. It doesn’t mean anything to people who don’t live in that world. We can hopefully figure it out, but you’ve got to step back, like you said, and start with the basic building blocks and then lead up to this more specific issue.
You have the unique both problem and advantage in your court of having three different states laws that may or may not apply in any particular case. Certainly, Texas and Mississippi share some common law traditions, but Louisiana is its own different animal over there.
I’ll tell you a story. My first civil code case and the civil code, over the last few decades in areas like torting contract, it’s not all that different compared to what the difference is that used to exist. It was very bad for Louisiana’s economy to have a whole separate legal regime. In those more commercial areas, it’s largely been brought into line, but they still have all these different terms. There are areas like family law, and property law, that are still very distinctive. The first civil code case I’m on was a property case about easements. I forget what Louisiana calls them. I never spent a day with the Louisiana civil code. My two colleagues on the panel, two wonderful, brilliant colleagues, James Dennis and Gene Davis had a combined 100 years. If you went to them in law school in Louisiana, they had a combined 100 years’ experience with the civil code. I had not a day. They ended up disagreeing. I had to be the deciding vote and I’m still not sure if I got that one right.
That’s a foreign concept, the whole civil code notion. How wrong could you have been if you had two colleagues that were educated in Louisiana law disagree? You couldn’t go wrong either way.'My easiest day as a teacher was harder than my hardest day as a lawyer.' Click To Tweet
After you were teaching, I know you went back through law school. You’ve had a very interesting career in article three courts because you went on then to clerk at the DC Circuit and then at the US Supreme Court. How was that experience? I can’t even imagine.
It was tremendous. I went to law school. I wanted to be a little prosecutor. That was my dream. I loved my time in Austin. I had great professors at the University of Texas. I ended up having these incredible opportunities I couldn’t have imagined. I went to DC for the first three years of my career and did three different jobs. The first one was on the DC circuit with Judge Ray Randolph. I think I learned more in that one year about writing than I have the rest of my life combined. He’s an incredibly skilled writer and that was a great learning experience. I spent a year as a Bristow Fellow in the Solicitor General’s Office, which probably has the most brilliant group of lawyers working there than at any legal office in the country.
I spent the third year clerking for Chief Justice Rehnquist, which was a once in a lifetime experience. He was a wonderful boss. We would bet football games every Friday. He loved betting on anything. If there was going to be snow in the forecast, we would bet how much snow would be on the lawn in front of the Supreme Court. You’d have a ceremonial measurement with his yardstick to determine the winner. We bet on the Kentucky Derby. The way I model my chambers, as you would expect, is based on how Judge Randolph did things and how Chief Justice Rehnquist did things in terms of their procedures. That includes having an annual charades game with my law clerks. The chief had a charades game every year at his home with the clerks.
He was a stickler for the rules. You had to brush up on the charades rules beforehand. The year I clerked at the Supreme Court, given that we just honored the anniversary of 9/11, most clerks look back and say, “I was there the year of this big case.” That’s how they mark the time they were at the court. I was there during 9/11. That’s how I marked that experience and I think my co-clerks do, too, especially considering the United flight that those heroic passengers downed in Pennsylvania was headed right for the Capitol right across the street from the Supreme Court. The aftermath of 9/11 made it a very unique time to be at the court.
Part of that experience, so much of it was getting to know the chief with the other justices and the other clerks for all the justices who to this day are some of my closest friends. It’s pretty amazing. Six of us, almost 20% of our clerk class have become federal judges, which was great for me, great for my five co-clerks. It’s a worrisome trend for the judiciary that the federal judges are increasingly being drawn from this very narrow prudentials of elite law schools and elite clerkships, but it is six of us who have gone on the federal bench.
I know that, eventually, you’ve fulfilled your dream. You became more than a simple prosecutor. You became a very well-known prosecutor down in Houston.
I came back to Texas. That’s why I got the job with Chief Justice Rehnquist. He asked in the interview, “What are your plans?” I was already with Judge Randolph when I interviewed. I said, “After my time in DC, I want to go back to Texas and be a prosecutor.” I later learned so many law clerks stay in DC and he likes people who go back to where they’re from. He thinks you can make much more of an impact in the legal world in your community as opposed to staying in DC. That helped me get the job. I lived up to what I told the chief and I went back to Texas. I came to Houston. I worked at Weil & Gotshal for a couple of years and had some great mentors there, including the Texas appellate world legend Greg Coleman, who of course tragically passed away.
My plan all along when I went to law school, I wanted to be a federal prosecutor. I read a book in college called Den of Thieves about the 1980s insider trading prosecutions on Wall Street. It was one of those moments where I read the book and I said, “That is what I want to do.” It’s complex cases, in the fight, in the middle of the courtroom and against folks who think they’ve been able to outsmart you and your job as the prosecutor is to unravel what they’ve done and outsmart them. It hit me on so many levels that that’s what I’d like to do. I was fortunate that I was able to. One of my mentors at UT, Bill Powers, taught me the first year towards later.
I don’t know if he’d say better things, but bigger things as president of the whole University of Texas. I remember he said in our first-year class, “Everyone came to law school for a reason. Don’t forget why you went to law school in the first place because too many students get caught up in whether they’re going to be able to get a job at this firm that before law school started they’d never heard of. Now, getting a job there’s the most important thing in their life. Be true to yourself.” That stuck in my mind. I was one of the fortunate people who ended up being able to do what drove me to go to law school in the first place. It did end up being the perfect thing for me. I tried over fifteen cases. I argued about five times in the Fifth Circuit. It was a great experience.
In terms of complex financial cases, you ended up on one of the biggest ones in history, which was the Stanford trial.
That was that’s the professional accomplishment I’m most proud of because there’s this widespread perception, very accurate in many cases, that the justice system doesn’t treat the wealthy in the same way it treats most people in society. At least in that case, Stanford was on the list of 500 richest people in the world and we were able to hold him accountable. That’s something I’m proud of. The evidence was so strong against him. It was much less a legal challenge than an organizational or management challenge. It was such a massive case. We gathered evidence on five different continents. There were so many different people involved in the broader case.
There was an SEC proceeding in Dallas. A receiver was appointed in that. There was a receiver appointed in Antigua where the bank was based. There was a receiver in the UK where a lot of the little money that was left was in the UK. There were civil litigation, private plaintiff lawyers, suing banks and everyone else. They were involved. The media was heavily involved. People at main justice, management at main justice was intervening, looking out at the case a lot. It was this organizational challenge of keeping everything running and moving towards this goal of getting Stanford convicted and hopefully providing some justice. There are thousands of victims. That was definitely a learning experience to deal with all those different players involved.
After the Stanford trial, you mentioned some of your previous experience in Federal court and the Fifth Circuit as an advocate but you had the opportunity to take a federal district bench in Galveston.
I remember keeping up with the news when that was going on and the scope and expanse of everything that is involved I’m sure was unbelievable.
I did, being a judge was never something that was a goal of mine. I remember someone asked Chief Justice Rehnquist, “How do you become a federal judge?” He says, “It’s not something you can plan on. Lightning has to strike.” Lightning struck for me and it’s an incredibly fortunate thing. I ended up on the district court in Galveston. Trial work was my first love when I did the appellate clerkships, but I chose to focus most of my career as a practicing lawyer on trial.
The district court was a wonderful two years that was far too short and Galveston was a special place. I also sat and heard cases in Victoria. There it’s a little bit like riding circuit. I was mainly based in Galveston, but we’d go to Victoria at least once a month. When I had trials in Victoria, I’d stay there for a whole week or more. It’s an old fashioned riding circuit. The nice thing about the Galveston docket in particular was it was very heavy on the civil caseload. Between it and Victoria, I had over 500 civil cases a year. Given that I’d come off doing criminal work for seven years or so, it was nice to get re-acclimated to all the civil work with that heavy civil docket.
It’s a beautiful art deco courthouse in Galveston. It’s the most beautiful federal courtroom in the state of Texas. Galveston is a special place that despite all the BOI, Born on Island, things you hear are incredible. That was a very special two years. I tell Jeff Brown, who I know did your show, that he has the best federal gig in the state of Texas. That’s a special bench and historic bench. The first federal judge in Texas, Judge Watrous, right after Texas became a state, was based in Galveston. It’s a court bench as well.
That was also the founding place of the Texas State Bar. Galveston is definitely underestimated. It tends to fall into Houston’s shadow, which, for reasons that are obvious. Houston’s a giant legal market, but there is so much history there that we don’t often think about.
In the 19th century, that was the leading commercial city in Texas, other than New Orleans on the Gulf coast. The hurricane of 1900 ended that importance for the city tragically and then after that the ship channel was built to Houston. In fact, I guess everything keeps going back to Chief Justice Rehnquist. I said I got the job because he wants people going back to their homes after clerking and he also loves geography. That’s another thing. One of his trivia contests involves geography. He asked me during the interview, “Why is Houston such a big city where it is?” I started talking about the 1900 hurricane and then the dredging of the ship channel to Houston. We had a great discussion about that.
The district court’s my first love in many ways. I still try to do a couple of trials a year sitting by designation. I presided over two trials in Laredo. It’s tough to get them sometimes because there’s a vanishing jury trial. I do it because it’s fun. I like interacting with the jurors and seeing the lawyers try their cases. I also do it because it’s nice to stay grounded in what the challenges are that the district judges and lawyers are facing at the ground level.
We don’t often think about that. Sometimes you see district judges visiting as judges on the Fifth Circuit, but we don’t think about it going the other way. It makes sense to think that you can keep your hands on what’s going on at the district bench level by going down and extra presiding over a case periodically. Were they civil cases or criminal cases?
Those were criminal in Laredo. I’m going to try to go out to Austin and do some civil cases. They have a heavy civil docket. My colleague, Judge Elrod did a civil trial in Houston a couple of years ago and she’s done a number of sentencings since we get so many sentencing appeals. Judge King on our court many years ago sat by designation on the bankruptcy court. That would take a lot of bravery for me to go do that. Maybe one day. It’s any judge who wants to do it and then you need to seek out a judge that is willing to give you their cases, which usually they have incredibly busy dockets. They’re the workhorses of the system. Usually, you can find it. In a city like Houston, there aren’t that many trials. I’ve been to Corpus. I’ve been to Laredo.
You’d have a district judge grading your homework on a bankruptcy appeal for a change. That’s interesting. Is that something that the Fifth Circuit decides, how they designate the judges or if judges want to be designated to the Fifth Circuit makes that call?
With COVID, I very much miss going to New Orleans. My daughter and I started a tradition every Sunday of trying out a recipe. I guess I miss New Orleans because one week we made gumbo. When I got on the court, I went to all my colleagues and asked for advice. I got a lot of good advice on how to be a Fifth Circuit judge, but the advice they were most passionate about was which restaurants to eat at in New Orleans. There are very strong divisions on our court about where the right places to eat are.
You spent a couple of years in Galveston and you had to come back up the causeway back up to Houston, but you get to go to New Orleans quite a bit now.
It’s surprising because I’ve been in New Orleans many times. You can’t possibly eat at all the good restaurants in New Orleans because they’re all good. What does it come down to as far as why some people like some restaurants versus the others, what causes the division?
Some of it’s the food, but some of it’s maybe they have a relationship with the owner. There are some restaurants in New Orleans that have broken apart and now they’re rival restaurants. You have to be loyal to one member of the family versus another.
You’ve gone through two Senate confirmations now. We got Judge Brown to tell us a little about his process and he was a little hesitant to get into too many details on that because it’s some super-secret stuff that happens there. That’s fine, but what can you tell us about your experience going through the confirmation process twice?
I was fortunate. Once my nominations got to the Senate, they were fairly non-controversial which, unfortunately, a lot of people have different experiences. For me, given that President Obama was in office and Texas had two Republican senators, the bigger issue was the senators and the President finding a candidate they could agree on. That often took a long time. Once that happened and the nomination was official with both the President and the Texas senators agreeing, the rest of the Senate didn’t have much of a problem with that arrangement.
It was 2009. I was in the US attorney’s Office. I got an email late one night around midnight from a lawyer saying, “Gregg, I was at a meeting. Congressman Al Green from Houston put together a committee of lawyers to recommend candidates for federal judgeships. Your name was thrown out there.” He had represented someone I was investigating. He said, “Since I have a matter with you, I left the room and I want you to know that.” That was the first I heard my name was even out there. Sure enough, that morning, I was called by the chair of the committee and I ended up interviewing with the committee. They had me interview with Congressman Green. He was the first person who put my name out there. He sent my name to the White House. I’d never met him. I’d never donated money to his campaign or to anyone’s campaign. I owe a lot to Congressman Green for choosing me as someone who he didn’t even know I’m into his committee.
The senators have, as you probably know, a bipartisan committee of Texas lawyers. It was about 35 people. I had to go through that path too. It was almost two paths I had to go through for the district court. That ended up taking a few years largely because the Southern district judges decided not to fill. When Judge Kent resigned, they did not fill the Galveston bench immediately. They moved the bench to that position at South Texas. It was only a couple of years later when John Rainey in Victoria took senior status that they decided there would be an opening in both Galveston and Victoria. That’s when the process rebooted itself.
The one good thing about going through the process twice, and most people wouldn’t wish that on anyone, the nomination hearing is a special one. You bring your family. My son Joshua was, for the first one, about five. When Senator Hutchison was introducing me to the judiciary committee, we mistakenly had him sitting right behind her. These things are not telecast or broadcast on TV, but they are recorded and they’re on the Senate website. He was rolling his eyes. You’ve never seen someone look so bored in your life. My wife and I were leaning over saying, “We’ll buy you ice cream afterwards.” We don’t usually believe in bribery as a discipline technique, but it was desperate times. It had gone all the way up to we’ll buy you a video game console and it still wasn’t working. He was the most bored-looking kid you’ve ever seen. He did get a second chance at behaving a little bit better for the circuit.
It sounds like he knew he was in the catbird seat and he was going to play that for all it was worth. Of course, you put a five-year-old behind a senator in a confirmation hearing, what could go wrong? One thing I’m curious about is because most of my practice has been in state court. I’ve been in the Fifth Circuit a number of times. I clerked at the state Supreme Court. I did not clerk at the Fifth Circuit. I didn’t get that insider’s knowledge that a lot of people get through that experience. Tell us about the process by which cases come in once the appeal is perfected and how they’re assigned and how the panels work together. You’ve got people dispersed throughout the state and throughout the South. You were ahead of the game when it came to working remotely, I suppose.
That is a challenge for a court like ours, as opposed to say the Texas Supreme Court, is that we’re not all in the same building. COVID has been an even bigger challenge and not having in-person oral arguments because a lot of it is not about seeing the lawyers in person, which of course is nice. It’s also about getting together in person to decide the cases and also to maintain collegiality and edge up on how our families are doing and go out to a dinner in New Orleans together. To back up to your question, how we get the cases, we have thousands of cases a year. Each judge handles over 200 decisions a year. Before I came in, someone told me that, I said, “How is that even possible?” There’s this perception out there that, “You get on the Fifth Circuit or a Court of Appeals, it’s like being a law professor and you can sit around for days pontificating about these things.
Our docket, we have to move a lot of cases. Part of the way we do that is there are screening panels. You’re on the same screening panel for the entire year with two other judges. That stays the same for an entire court term. Every single case pretty much goes through a screening panel. The most newsworthy constitutional cases still go through this screening panel to decide if the case should get an oral argument or if it should be resolved without oral argument by the screening thing. The cases get randomly sent to a screening panel and they rotate. Sometimes I’m judge one, sometimes I’m judge two or judge three. If I’m judge one, I look at it and I say, “This needs an oral argument.”
If I think that, I send it to oral argument, my other two colleagues on the screening panel never touch it. It gets completely reassigned to an argument panel. I could randomly be on the case again, but I have no better chance than any other judge on our court of being on the actual argument panel. If on the other hand, I think the case doesn’t need an oral argument, I would write an opinion for my screening panel. I would send it to the two other judges and they would either sign off and then it gets issued as an opinion or any single one of them can say, “It’s more complicated than he thinks. There’s this issue here that needs more discussion,” or for whatever reason, they can send it. One judge only can send it to an argument. If you’ve got our overall numbers, it’s maybe about 30% of cases get an oral argument. If you look at the numbers for paid civil cases, it’s over half. We have a decent percentage of oral argument compared to a number of other circuits.
What will sometimes happen then that panel that ends up with the case, the argument panel might look at it and say, “Judge Costa thought it needed an oral argument, but it’s not that complicated.” They can then take it off the oral argument calendar. I’m sure many attorneys out there have had this experience. It’s set for argument and it gets taken off the argument calendar. We try to do that not too close to the argument date because we know people who have made travel arrangements, they’ve been doing moot courts. We try to do it well enough in advance to prevent that wasted time and expense. That does happen where the argument panel sees it differently in terms of the need for argument than that screening judge.
Once it’s been assigned to the argument panel, that’s locked in. Even if you don’t wind up having an argument, that’s the panel that decides the case.There are folks who think they've been able to outsmart you. Your job as the prosecutor is to unravel what they've done and outsmart them. Click To Tweet
Usually, with the argument cases, there are a handful of non-argument cases that the panel is still deciding that. Maybe there’s a pro se litigant, maybe it’s a complex issue or a difficult issue, but there’s a pro se litigant who isn’t allowed to argue in the Court of Appeals or for a variety of other reasons, but that’s right. Once it’s assigned to the argument panel, that sticks.
When do you first talk to your colleagues about a particular case, if you’re on an argument panel?
Usually not until after the argument and then we go right back and discuss and decide the cases right after each day’s argument. Every once in a while, the judges might send an email beforehand, but that’s rare. What does happen on our court is that a bench memo will get circulated from one chamber to the full panel. That’s usually the law clerk’s view. It’s not necessarily reflecting what the judge’s view is. In the normal case, the judges have not communicated until oral arguments. That oral argument is also the judge’s first time to discuss the case maybe through their questioning with each other.
Do you have internal deadlines for when the case is in the screening process? Is there something that’s telling your chambers, “We’ve got to get this out by a certain date,” or it either needs to be screened or funneled into the OA process?
We do have deadlines and they’re shorter for criminal cases. Those things are kept track of and obviously exigencies arise or situations that prevent those deadlines from always getting mapped. I do think that, considering the volume of our caseload, we move cases at a relatively swift rate.
Does your court assign a particular judge to write a case before an oral argument or do you do that when you meet as a panel?
No, it’s the presiding judge at the end of the week that’s to assign the cases to the panel for that week.
I know that the Fifth Circuit has a unique en banc procedure. Once a case has already been decided and that comes in, how does the court handle en banc rehearing motions?
I get usually over 200 a year. That’s an active part of the court. A judge can also, even without an en banc petition, a judge can pursue that any judge on the court, or any active judge on the court, can pursue a vote of a case. I think a small number are granted each year, fewer than ten typically. We have three times each year when we hear en banc cases, January, May and September. A case may not get voted for that sitting, but there are three preset sittings to spread out the en banc cases. If you look at the total number of en banc cases heard, it’s a very small percentage of the petitions that get filed. What may not be as apparent though is that sometimes the en banc process may lead to a modification of the opinion without the need for full en banc court review. Memos get exchanged between the panel and a judge who may have concerns and the panel can make a modification that results in issuing a new opinion. That’s another part of the en banc process that may not be as apparent on the outside.
You mentioned law clerks. I know that the circuit has a traditional clerkship model where you’ve got a new crop coming in every year. Are there also permanent staff attorneys at the Fifth Circuit?
There’s a large number of staff attorneys in New Orleans that do invaluable service to our court. Those screeners I mentioned, when I get a case as the one to be screened, often in criminal cases, immigration cases and habeas cases, there are various categories of cases where they will first go through the staff attorney. It often comes to us with a memo from the staff attorney. Those permanent staff attorneys enable us to do our work in a thorough yet timely manner.
Maybe you can’t speak for the other judges on the court, but how do you use your law clerks in going about taking care of the court’s business?
One of my colleagues says the two best parts about being a federal judge are no billable hours and the relationships with your law clerks. I think he’s got it right. That’s one of the wonderful things about being a federal judge is to have these young and talented lawyers come work with you for a year. I liked the old model, the traditional model, where they come to you straight from law school. Increasingly in the federal judiciary, especially at the district court level, there’s a trend to have people work in a firm for a couple of years and then come clerk. I like the traditional model where they’re eager and excited. The main thing is that they don’t come with habits from some other lawyers.
I use them as very highly trusted advisors. I think there’s also a trend and part of it relates to bringing people who practice for 3 or 4 years where the clerks are almost adjunct judges. My view is for better or worse, the President and Senate put me in this position. It should be my work. Although the courts of course play an indispensable role. I couldn’t do the job without them, but at the end of the day, it should be more of my work. One of the key ways I use them, I have them involved in every case that gets argued. I mentioned that we usually have, on our court, have one chamber do a bench memo. Two-thirds of the cases, another judge’s chambers is doing the bench memo, but I have my clerks write a short memo for me before they’ve looked at that memo from the other chamber. I don’t want it to have even a subtle influence on their thinking.
I send it to them and they’ll say, “We agree. That’s great,” or “We disagree and I still think this way or know that person’s changed my mind.” It allows for more perspectives. Before we go to New Orleans, I sit down with my clerks as a group. We discuss all the cases that are being argued. Sometimes if we see it all the same way and that clerk and the other chamber sees it the same way, it’s a pretty good indication that the case is going to come out that way. If there’s some disagreement, that lets me know that this is one of the cases where the panel, once I talk to my colleagues, may see things differently. That’s how I use the clerks on the front end.
We have some robust and heated discussions. That’s one of the fun parts of the job. On the backend, they play a very big role in helping draft the opinions. I usually have the clerks do the first draft. I like to do a few first drafts myself of majority opinions each year. Partly to stay in the habit. Sometimes I have such a sense of what I want to say or what’s going to work for the whole panel. In the Texas Supreme Court, it’s rare that the clerks are in the deliberations. On our court, they’re not and about every other court, they’re not. Sometimes it’s hard to communicate to my clerks exactly what the panel wants to do.
Typically, anytime I write a dissent, I write the first draft because the tone is so important in a dissent. I believe there’s a way to be forceful, but yet still respectful. Clerks have a different perspective. They’re here for a year. I’m going to be here decades, hopefully with some of these colleagues. It’s a different perspective. I even remember I was young, I got all fired up about a case and the US attorney said, “Gregg, it’s going to be okay. If everything you’re saying is true, you’re ultimately going to prevail. Don’t worry about that lawyer and everything he’s doing.” I do tend to write the sense myself and then obviously get the input of the clerks and they can tear apart my work and tell me what I messed up.
You have a unique perspective having sat on both the district bench and now the Fifth Circuit. What are some differences or some similarities that you see having sat in both positions now?
The jobs on a day to day basis are not as different as you might think. Years ago, the difference between being a federal district judge and a federal Court of Appeals judge was stark. District judges then were like a lot of state judges are now. In court, all the time, ruling orally after a hearing. The reality is federal district judges, they’re very busy, but they spend most of their time in chambers reading hefty summary judgment briefings and writing lengthy opinions. Everyone talks about the vanishing jury trial. In federal court, there’s also the vanishing hearing, which worries me. Most district judges on most days are not in court. It’s a little different than the border where they have heavy criminal dockets than in a city like Houston or Dallas or Austin. On a day to day basis, it’s not that different. You’re working with your coach, you’re reading these briefs and you’re deciding the case. You’re writing an opinion, going through drafts of opinions. The obvious difference in the Court of Appeals, you’re working with others.
Those are the toughest parts of the job is when are you going to agree with a decision, even though it’s not exactly how you see it or not exactly how you’d write it, but you can’t be a purist or a perfectionist on the appellate court. Well over 95% of our decisions are unanimous and there is an effort to try to reach consensus. It’s that psychological part of the job of dealing with other people and what’s going to work with one of my colleagues, what approach might work with one is going to be different than an approach that works with another. When do you dissent? There’s no fed I can look up that’s going to tell me the answer of when to dissent. That’s a pure judgment call of when is it better to maybe ask to modify the opinion a little bit, even though the opinion’s not exactly how you would have seen it if you were a single judge. Maybe that’s accomplishing more than firing off a dissent. They are different in ways, but the day to day surprisingly is very similar. Reading-heavy and writing-heavy jobs.
Have you seen a difference in the types of advocacy between the lawyers that are more trial court type lawyers and appellate lawyers at the Fifth Circuit?
That’s an opinion where I’ve changed my mind. I generally don’t like to increase specialization of the law and it’s one of the reasons I love the job I’m in now because we’re among the last generalists out there. Specialization, it’s not affecting the law, it’s affecting all professions. Look at medicine, it’s the same thing. It’s the way the world’s moving. That’s an unfortunate trend because I found as a lawyer, I did mainly trial work, but I still tried to do an appeal each year because I think doing appeals makes you a better trial lawyer. Having some trial experience makes you a better appellant. It’s also a reason I’ve spoken about the decrease in civic engagement of lawyers. I think specialization is part of that. The number of the percentage of lawyers in Congress is at an all-time low. Some might say that’s a wonderful thing.
I think it’s an unfortunate thing for the profession. I generally have this aversion to specialization. I came into that thinking, “I was a trial lawyer. I was able to go do an appeal. You don’t need specialists.” I’ve somewhat changed my tune on that. It’s not that trial lawyers can’t be as good a writer as appellate lawyers or as good as advocates in front of judges, as opposed to juries. That may generally be the case. You have trial lawyers who are incredible writers. The biggest thing that the appellant specialist brings is a similar perspective to the perspective the appellate judge is going to have. What I mean by that is the appellate lawyer hasn’t lived with the case for three years. Too many of the lawyers who you’ve been in the trial court, living with the case for years, can’t step back and look at the big picture the way the appellate judge is going to look at the case.
There are these grievances that have built up over three years with opposing counsel that appellate judges don’t care about. I do think even if a trial lawyer is going to handle the case in the Court of Appeals, it’s helpful to get an appellate lawyer or anyone with a fresh perspective to review the brief, to do a moot court, to have that perspective that the appellate judge is going to have of being new to the case. I never heard of this case I’m deciding until six weeks before the oral argument when the brief show up in my court. As the advocate, you need to be thinking from that judge’s perspective. Step back, the big picture, start with the simple building blocks. To me, that’s what the appellate specialist is most about, is being able to see the case similar to the perspective of the appellate judges.
Since COVID has started, the Fifth Circuit, like so many courts has transitioned over to Zoom oral arguments and non-in-person proceedings. How has that experience been for you? Do you see it as a good thing? Has it been challenging? Has it been a little bit of both?
I’d say both. We’re fortunate we have the technology to make it happen so the cases can keep moving. These cases obviously matter a great deal to the parties and our technology staff has been amazing. The technology has worked extremely well. I haven’t seen any problems with the technology. I don’t think anyone can say it is as good as in-person arguments. Part of that is the experience with the lawyers and even the grandeur of coming to New Orleans in that beautiful courtroom and the building. Especially for us, the judges not being in the same city like Texas Supreme Court is or the Texas Intermediate Appellate Courts are, it’s missing that interaction with colleagues and deciding the cases in the same room, working the cases out. There isn’t a substitute for that, but we are doing the best we can and it’s worked as well as it can, given the circumstances.
I’ve seen some cases that have been scheduled for argument, even on Zoom, but then have the arguments postponed. The messaging I’m seeing is this giving a glimmer of hope that the court hopes to resume in-person arguments at some point before too far distant a point in the future. Is that accurate or does it depend?
It’s everyone’s hope that we can resume as soon as possible, but when that will be, like everyone else, I’m as uncertain of that as anyone. I wish I had some special insight for a variety of reasons, not court-wise, but my children and everyone else’s sake about when life will get back to normal. Everyone is hoping that we can be back in New Orleans.
Have you seen anything in Zoom arguments, tips that you could offer advocates that this has come up, you might want to think about this before you do one of these?
Generally, the advocates have been very good. There is a little more of a problem with talking over people than there is in person. That’s something to be aware that the judges may be about to talk and you don’t have as many of the visual cues that you have with an in-person argument. That’s a challenge. Realizing that you’re right there in front of the judges, in a real oral argument, the judge is only going to focus on the person speaking. With the Zoom, you’re looking at both sides of the whole time, not reacting to what the other side’s saying in a way that’s not going to reflect well. I do think people have said, and I agree with this, having a less distracting background, like my background right now, you can see my bookshelves and my pictures on the wall. That’s fun to look at. For an oral argument, having a boring blank backdrop, it’s not going to be distracting.
We’re coming to the end of the time that we had scheduled and we want to be respectful of your time. It’s been so great for you to be with us and to hear your thoughts about all these topics that we’ve covered. As we get to the end of every episode, we like to ask our guests if they have a particular tip or war story that they’d like to share. You’ve given lots of great tips already, but if you’ve got anything that we haven’t covered, we’d sure like to give you the chance to talk about it.
I don’t know what this qualifies as. One of the things I learned as a lawyer trying cases is to not live in the moment and to think about the appeal. I tried a number of cases in David Hittner’s court in Houston’s federal court. If I was pushing to get some evidence in, he was saying, “Do you need it?” If I was objecting to evidence, he would say, “Does it hurt you?” You’re in the heat of the battle as a trial lawyer, and you’re wanting to win then. You do need to think about the appeal. I’m surprised, especially in civil cases trials that I saw as a judge, I don’t think lawyers are thinking at all about the appeal.
They’re taking such an aggressive position. Part of that is civil trials are so rare. These lawyers haven’t been in many trials, they probably haven’t had a trial reversed. When I started as a trial lawyer and where I ended up, that was probably the biggest change. Trying to think not about the here and now but about down the road. That might be more of a message for trial lawyers who are not the appellate lawyers, who are the audience for this show. If I look at the bracket, the one thing I learned over my career trying cases, that is probably it.
We invite all trial lawyers to read this blog. It’s not because we’re selfishly trying to recruit them as referral sources or clients. Jody would agree with me on this. We see a lot of trial lawyers who handle their own appeals and not every case certainly justifies having a specialist. That observation is helpful. It’s helpful for the trial lawyers to hear it from people other than myself and Jody.
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